Page:Federal Reporter, 1st Series, Volume 2.djvu/559

The United States v. Ambrose and others.^[1]

(Circuit Court, S. D. Ohio.May, 1880.)

Clerk of U. S. Court—Bond of—Duty to account.—1. The condition in a bond given by a clerk of a United States Court, that he would faithfully account for ail moneys coming into his possession as such clerk, did not enlarge the obligation of the bond required by statute. The accounting for moneys in his hands as clerk was one of the duties for the faithful performance of which he was requirod by statute to give bond, and the specification of one of the details covered by the general obligation does not affect the validity of the bond he was required to execute.

Same—Same—Declaration in Action for Breach.—2. A declaration alleging as a breach of such bond a failure to make the proper returns and pay over surplus funds is good, although the breach alone consists in a failure to make the proper returns. The additional allegation of a failure to pay over may be treated as surplusage, or as indicating the measure of damages on a failure to make such returns.

This suit is on the official bond of the defendant Ambrose, as clerk of the United States circuit court, for failing to make return of all his fees and emoluments. The defendants answered that the attorney general required him to give the bond sued on containing a condition not required by statute, and that said bond having been thus extorted under color of office was void. The answer was in form the same as the plea in case of U. S. v. Tingly, 5 Pet. 115, upon which the defence relied. To this answer the district attorney demurred.

The statute (act of February 22, 1875, 18 St. at Large, 333) authorizes the attorney general to require a clerk to give bond conditioned that he will faithfully discharge the duties of his office. The bond in suit is conditioned that he will faithfully discharge the duties of his office, and in addition thereto that he will faithfully account, as required by law, for all moneys that may come into his hands.

Channing Richards, U. S. Dist. Atty., for plaintiff.

George Hoadly, H. A. Morrill and George R. Sage, for defendants.

Swayne, J.The statute which lies at the foundation of

1. Prepared by Messrs. Florien Giauque and J. C. Harper, of Cincinnati, O.