Bank of the United States v. Magill et al. communicated on that day was not such a want of diligence as would discharge the sureties from their liability for frauds committed by the Cashier on that day. Where a bond with a penalty is given for the performance of covenants, although damages may have been sustained to a greater amount, yet the recovery must be limited to the penalty,—especially in a case of sureties. Contrariety of English authorities on this point. It seems, that this is not the rule where bonds are conditioned for the payment of money. If there has not been a previous demand of the penalty or an acknowledg ment that the whole is due, interest is recoverable only from the commencement of the suit. THIS was an action of debt on a bond in the penalty of 50,000 dollars, made by Arthur W. Magill, Joshua Stow, Elisha Coe, and Nathan Starr, jun., the defendants, to the plaintiffs, conditioned, that said Magill should, during the term he should hold the office of Cashier of the Office of Discount and Deposite of the bank of the United States at Middletown, Connecticut, execute the duties thereof with integrity and fidelity, and well and faithfully perform and fulfil the trusts reposed in him. The bond was dated the 27th of August, 1819. To the declaration on the bond the defendants pleaded performance; and the plaintiffs replied, assigning breaches. At the trial the jury found a special verdict, stating circumstantially the following facts: That Magill, between the date of the bond and the 30th day of October, 1820, and while he was Cashier of the office at Middletown, fraudulently, corruptly, and unfaithfully permitted overdrawings on the bank, and was guilty of other misconduct, by means of which the bank sustained losses to the amount, with interest, of 7,933 dollars 46 cents. That after the date of the bond, and before the 30th day of said October, 1820, and while he was such Cashier, he embezzled mo Bank of the United States v. Magill et al. nies and funds of the bank amounting, with interest, from the 29th day of October, 1820, to the sum of 58,614 dollars 94 cents: That 23,366 dollars 10 cents principal and interest was to be deducted from the amount of these losses, on account of monies paid by the defendants Starr and Coe, leaving a balance of 43,182 dollars 50 cents damages sustained by the plaintiffs. The verdict also found the amount of the penalty of the bond, with interest, and without interest, after deducting the said payments, in case the Court should be of opinion that the plaintiffs were not entitled to recover more. The verdict also found that the President and Directors of the bank of the United States, on the 27th day of October, 1820, at Philadelphia, passed the following resolutions, viz. : "Whereas it appears, by a report of a committee of the directors of the Office of Discount and Deposite at Middletown, that Arthur W. Magill, Cashier of that office, has been guilty of a gross breach of trust, in knowingly suffering overdrafts to be made by individuals, and also making overdrafts himself-Therefore resolved, that Arthur W. Magill, Cashier of the office at Middletown, be, and he is hereby suspended from office, till the further pleasure of this board be made known." "On motion resolved, that the President of the office at Middletown be authorized and requested to receive into his care, from A. W. Magill, the Cashier, the cash, bills discounted, books, papers, and other property in the said office, and to take such measures for having the duties of the Cashier thereof temporarily discharged as he may deem expedient." Which resolutions were immediately transmitted by mail from Philadelphia to the President of the office at Middletown, who received them on the morning of Sunday the 29th day of said October, and on the 30th, between the hours of four and five in the afternoon, communicated them to Magill, and then and there received into his own care the cash, bills discounted, Bank of the United States v. Magill et al. books, papers, and other property in said office: That Magill, on the 2d day of November, 1820, sent to the President of the bank at Philadelphia a letter containing his resignation, and on the 7th the President and Directors of the said bank unanimously dismissed him from his office. D. DAGGETT and S. P. STAPLES for the plaintiffs. THOMPSON, J. THIS action is founded upon a bond in the penalty of fifty thousand dollars, given to the bank of the United States for the faithful performance of the duties of Cashier of the Branch at Middletown in Connecticut, by Arthur W. Magill. The bond bears date the 27th day of August, in the year 1817, with a condition in the following words: "Whereas the above Arthur W. Magill has been duly appointed Cashier of the Office of Discount and Deposite of the said bank of the United States at Middletown, Connecticut Now the condition of this obligation is such, that if the said Arthur W. Magill, for and during the term he shall hold the said office of Cashier of the said Office of Discount and Deposite, shall execute the duties thereof with integrity and fidelity, and well and faithfully perform and fulfil the trusts thereby in him reposed, then this obligation to be void; otherwise to be and remain in full force and virtue." The case now comes before the Court upon a special verdict by which the jury have found negligent, fraudulent, and unfaithful conduct in the Cashier, in a variety of instances, which are particularly enumerated and set forth; by which the bank has sustained losses to an amount beyond the penalty of the bond. It is unnecessary for me to notice particularly the several specifications embraced by the verdict. The defendant's counsel upon the argument confined themselves principally Bank of the United States v. Magili et al. to the embezzlement of the fifty-one thousand and eighty dollars sixty-four cents. I would, however, observe generally, that I entertain no doubt, that the losses found by the jury to have been sustained by the bank in the various other instances found by the verdict, are covered by the bond. They are all found to have been sustained by the fraudulent, corrupt, and unfaithful conduct of Magill, during the time he was Cashier of the bank, and are therefore not only within the general scope and object of the bond, but within its express provisions. The questions requiring examination in the case, may be embraced under the following heads. 1. Can the defendants, under the circumstances found by the special verdict, be made responsible for any part of the fifty-one thousand and eighty dollars sixty-four cents? And 2d. As to the extent of the recovery, that is, whether it can be beyond the penalty of the bond. The precise time when this money was embezzled by the Cashier is not found by the special verdict. It states it to have been after the date of the bond and before the 30th day of October, in the year 1820, while he, (Magill,) was Cashier as aforesaid. It was suggested on the argument, that this finding had reference to the particular situation in which the Cashier was placed by the proceedings of the directors of the mother bank in Philadelphia. But this conclusion is not warranted. It is the same language that is used in the finding as to every other default, and was manifestly intended to refer to the introductory part of the verdict, which describes him as Cashier of the Office of Discount and Deposite of the bank of the United States at Middletown. The verdict, therefore, finds the embezzlement to have been committed by Magill while he was Cashier, and before the 30th day of October, 1820; that being the day on which he was notified of his suspension. The jury have therefore Bank of the United States v. Magill et al. found, that he continued Cashier up to the 30th of October. If however, this is a conclusion of law not warranted by the facts found by the special verdict, it must be rejected as not coming within the province of the jury. If the special verdict is defective as to the precise time of this embezzlement, and if it was material, and the evidence upon the trial would justify a finding, that it was previous to the 27th of October, a venire facias de novo might be awarded, and the verdict in this respect corrected. This, however, not having been asked for on the part of the plaintiffs, the defendants are entitled to all the benefit of the presumption, that the embezzlement might have been between the 27th and 30th of October; and this brings me to the consideration of the proceedings of the Directors of the mother bank, in relation to Magill, and the legal effect of those proceedings upon the responsibility of the sureties.' The special verdict finds, that the Directors of the bank of the United States, on the 27th day of October, 1820, at Philadelphia, passed the following resolution, (after reciting some misconduct of the Cashier :) "Resolved, that Arthur W. Magill, Cashier of the office at Middletown, be, and he is hereby suspended from office till the further pleasure of this board be made known;" and the President of the office at Middletown, was by another resolution, authorized and requested to receive from Magill, the cash, books, papers, and other property of the office, and to take such measures for having the duties of Cashier temporarily discharged as he should deem expedient. These resolutions were sent by mail to the President, and received at Middletown on the morning of the 29th of October, (being Sunday,) and on the next day between four and five o'clock in the afternoon made known to Magill, and the books, papers, and property of the bank taken out of his possession. The bond was given to secure the faithful discharge of the |