Uxmcn sawrrrs v. Moaoem. 51
means of the draft inclosed. But, in fact, Mr. Morgan deposited ·
nothing. He added nothing to the money in the treasury. Instead
of depositing money, or its equivalent, as he was bound to do, he un-
lawfully drew a check against his disbursing account, which it was
illegal to appropriate to any such purpose. The treasurer thereupon
debited one account and credited the other. The only change made
by those acts was a matter of book-keeping. The moneys in the
treasury remained precisely as before. The amount now sued for has
never been withdrawn from the treasury. It was illegally debited
against the disbursing ofiicer’s account. In the eye of the law, this
illegality was known to the treasurer; and, as against Mr. Morgan’s
sureties, who are not liable for the passport moneys, such a debit must
be treated as a void act.
In the case of different sets of sureties for the same offcer, during
different te1·ms of office, it has been repeatedly adjudicated by the su-
preme court that, by no act of the othcer, or of the treasury depart-
ment, or of both combined, can ofiicial moneys, collected by the offi-
cer and paid into the treasury department during one term of ofiice,
be appropriated to the accounts of the other term, to the prejudice of
the sureties for the respective terms. U. S. v. January, 7 Cranch,
572, 575; U. S. v. Ecigford, 1 How. 250, 262; Jones v. U. S., 7 How.
681, 688. The same was held also in the recent case of State v. Mid-
dleton, 57 Tex. 185. Murfree, Off. Bonds, § 291. .
The same principle is applicable to the present case. The evidence ·
shows that there is no dencit and no defalcation as respects the dis-
bursing accounts, for which alone the defendants became liable as
sureties. The deficit is solely in the passport funds, for which the
defendants never became sureties. The government having taken no ·
security for Mr. Morgan’s acts as respects passport moneys, stands
itself as its own surety for his acts in regard to those moneys. The
situation is the same as though there were two sets of sureties,-—the—
government, for the passport funds; and the defendants, for the dis·
bursing account. Mr. Morgan, by his drafts on the treasurer, under-
took to appropriate a part of the disbursing account to the discharge
of his independent obligations for passport moneys. The treasurer
concurred in the act with full knowledge of the facts. But he parted
with no money. He only made the corresponding entries in the
books. The act was a fraud on the defendants, as sureties, and ille--
gal as respects all who concurred in it. Having parted with nothing,
the United States, in making up its account of the balance due on
Mr. Morgan’s disbursing account, cannot claim the benefit of those
illegal debits, to the prejudice ofthe sureties. The latter are entitled,
as in the case of U. S. v. Eckford, supra., to have the disbursing ac-
counts restated, and the illegal debits canceled. Upon such a read-~
justmcnt, the evidence is clear that nothing would be owing on the
disbursing account; and a verdict should therefore be directed for the
defendants. . ‘ .