United States v. Le Baron (71 U.S. 642)
ERROR to the Circuit Court for the Southern District of Alabama.
This was an action of debt brought by the United States against Le Baron, surety of Beers, deputy postmaster at Mobile, on an official bond, dated the first of July, 1850.
The declaration set out—
'For that whereas, heretofore, to wit, on the first day of July, A. D. 1850, at Mobile, to wit, in the State aforesaid and within the jurisdiction of this court, the said Le Baron, by his certain writing obligatory sealed with his seal, &c., acknowledged himself to be held and firmly bound to the United States in the sum of $20,000.'
The assignments of the breaches were laid in these words:
'That while the said Beers was deputy postmaster as aforesaid under said writing obligatory, and after the making and delivery thereof, to wit, on the 10th day of July aforesaid, and divers other days before the commencement of the suit,' &c.
The case had been already before this court at December Term, 1856, and is reported in 19 Howard.  The facts then thus appeared:
Beers was appointed deputy postmaster at Mobile by the President during the recess of the Senate, and received a commission bearing date in April, 1849, to continue in force until the end of the next session of the Senate, that is to say until the 30th of September, 1850.
In April, 1850, before the old term had expired, he was nominated by the President to the Senate for the same office; and the nomination having been confirmed, a commission was made out and signed by President Taylor, but the President dying, it had not been transmitted to him at the date of the bond, July 1st. The condition of the bond was simply that whereas Beers was 'deputy postmaster at Mobile,' 'now, if he should well and truly execute the duties of the said office,' the bond should be void. There was nothing therefore in the bond to show to which term of office it meant to apply; whether to the earlier one which underlaid the second, or to the second which overlapped partially the first. The default assigned as a breach of the bond was admitted to have occurred under the second appointment; and the principal question on the writ of error then before this court, was, whether the bond secured the faithful performance of the duties of the office under the first or under the second appointment.
The third plea of the defendant alleged that from the 1st July until the 30th September, Beers was deputy postmaster, under an Executive appointment, made by the President during the recess of Congress, and that the bond sued on was intended to apply to that appointment and to that term alone, and that during that term no default had occurred. The replication was 'that on and after the delivery by the defendant of the bond aforesaid, to wit, on the 1st day of July,' and from thenceforward for four years, Beers held under the appointment confirmed by the Senate, and that the bond was made for the faithful discharge of duty under this appointment-the last one. The rejoinder was, that 'at the time of the execution of the bond,' Beers was not postmaster under the appointment set forth in the replication, but under the Executive appointment-and that the bond secured the performance of duty only during the time mentioned in the plea. Issue was joined on this rejoinder of the defendant.
The court held that the bond being an official and statutory bond, spoke, not like ordinary bonds, from its date, but from the time when it reached the Postmaster-General and was accepted by him. The judgment was reversed and a venire de novo awarded.
On a subsequent trial it was proved that the bond was accepted July 15th. Thereupon Circuit Court instructed the jury that if the bond given in evidence was not approved until July 15th, 1850, there was a variance between the allegation and the proof. And a verdict having gone accordingly for the defendant, the instruction just mentioned was the chief matter now assigned as error. A few exceptions to the admission of evidence also appeared upon the record.
Messrs. Reverdy Johnson, E. S. Dargan, and G. N. Stewart, for the defendants in error:
The substance of the issue was, whether Beers was, on the first day of July, 1850, deputy postmaster under his appointment confirmed by the Senate. Whether he was or not, depended on the question whether the bond was accepted on that day, and thus became a perfect obligation on the said first day. The proof showing that the bond was not accepted until the 15th, there could, under the decision in 19th Howard, when the case was here before, be no other instructions given than were given by the court. The declaration described one bond and proved another.
Suppose that the pleader had in his replication alleged the true day on which the bond was accepted, and the office, to which it was intended to apply, vested, that is to say that he had alleged in his replication that the bond was accepted by the Postmaster-General on the 15th of July, 1850; this replication would have been a clear departure from the declaration, which described a bond operative from the first of that month.
In Hall v. Matthew Denbigh and others, reported so far back as Croke Elizabeth,  the declaration described a deed as bearing date the first of November (39 Eliz.), but did not aver when it was delivered. After judgment, there was a motion in arrest of judgment, because it was not averred when the deed was delivered: after several arguments, the court said the declaration was well enough, because it must be intended that the deed was delivered on the day of its date, and further, if it had been delivered on a subsequent day, and so averred in the replication, this would have been a departure.
The later case of Williams v. Jones,  is to the same effect and in principle similar to ours. The declaration in our case describes a bond dated the 1st July. By implication, this means delivery on that day. A delivery on another day may be proved, it is true, by parol, because as this court has decided in regard to this particular bond, there is a case of exception to the general rule, and such proof is held not to contradict the instrument;  but when it is proved, the bond is varied, and no longer conforms to the bond described nor to the profert, and is therefore fatally variant from both.
It is true that the replication to the third plea asserts that the bond was made for the proper discharge of the duties of the second office, and the rejoinder says it applied to and covered only the time set forth in the plea, and no other. But these are only the legal conclusions of the pleaders, and not averments of fact. These allegations are not traversable nor issuable, involve questions of law only depending on the facts alleged and proved, which alone can determine the duties involved by the contract. These assertions, then, on both sides, are wholly immaterial. 
The plaintiff undertook, therefore, by his pleadings, to establish before the jury four propositions: 1. That the bond was made and delivered on the 1st of July, 1850, and was operative from that day. 2. That Beers was in office on that day under the second appointment. 3. That the senatorial term of office, or second term, embraced the time as early as the 1st July, 1850. 4. That as a consequence the defendant was liable for moneys received by the postmaster on the 1st and 10th of July, 1850.
But with the admitted fact that the bond was not accepted till July 15th, and the decision when the case was here before, that it operated but from that day, he undertook an impossibility.
Mr. Ashton, Assistant Attorney-General, for the plaintiff in error:
The bond given in evidence sustained the declaration. The time of the making it is laid under a videlicet. It was not, therefore, necessary to prove it as averred.  Though a deed takes effect only from its delivery, yet the delivery need not be stated in pleading.  A plaintiff may reply or show in evidence that a deed was really made on a different day from that of its date as stated in the body of it. 
In the plaintiff's replication to the third plea the time of the making and delivery of the bond are laid under a videlicet.
The issue was joined on the rejoinder of the defendant to this replication. The rejoinder was: 'That at the time of the execution' of the bond 'Beers was not postmaster in the manner and for the term of office set forth in the replication, but was postmaster by Presidential appointment.'
The execution of the bond included its signing, sealing, and delivery.  The making of the bond would seem to be the writing of it.  This rejoinder, then, tendered the substantial issue in the case, and upon that the parties went to trial.
The former decision of this court covers the merits of the case now.
Mr. Justice MILLER delivered the opinion of the court.
^1 Page 73.
^2 Page 773.
^3 5 Barnwell and Cresswell, 108.
^4 19 Howard, 73.
^5 Gould on Pleading, 183, § 29.
^6 McDade v. The State, 20 Alabama, 81.
^7 Tompkins v. Corwin, 9 Cowen, 255.
^8 Serle v. Darford, 1 Lord Raymond, 120.
^9 Burrill's Law Dictionary, tit. 'Execution.'
^10 Hall v. Cazenave, 4 East, 481.