Mr. Justice Woods
delivered the opinion of the court, and, after stating the case as above, proceeded as follows : —
The answer does not allege that the moneys for which the court rendered judgment against the defendants were received by Potter after Sept. 23, 1873, and during the absence of Brashear, the register, nor does the bill of exceptions profess to state all the evidence in regard to the absence of Brashear and Potter from their respective offices. Passing by these defects in the record, we shall consider the question presented by the exception of the defendants.
Their first contention is that they are not responsible for any moneys received by Potter, the receiver, during the time that Brashear, the register, was absent from the land-office. The ground of this contention is as follows: The record shows that during Potter's term of office all sales of land were either by pre-emption, or commutation of homesteads. The argument applies only to pre-emption sales. Sect. 2259 of the Revised Statutes prescribes what persons are entitled to preemption, and upon what terms the right of pre-emption is accorded to the settler upon the public lands. Sect. 2263 declares that "prior to any entries being made under and by virtue of the provisions of sect. 2259, proof of the settlement and improvement thereby required shall be made to the satisfaction of the register and receiver of the land district in which such lands lie," &c. The plaintiffs in error contend that these officers constitute a tribunal, and that no business' can be done without the presence and action of both. And as Brashear was absent from Sept. 23, 187-3, to the close of Potter's term, there could be no legal pre-emptions during that time, and that all, moneys paid for pre-emptions before the conditions prescribed by law had been complied with were not payments made to the United States, but unauthorized and unofficial payments made to the receiver, for which his sureties were not liable.
. In our judgment .this contention has no ground to stand on. There is no expression in the statute which requires 'the register and receiver to sit at the same time and concurrently pass upon the sufficiency of the proof of settlement and improvement by pre-emptors. If the proof is submitted to the register on one day and he is satisfied, there is nothing in the statute which implies'that it may not be lawfully submitted, at some subsequent day, to the receiver for his approval. The oath, of the pre-emptor, which is part of the proof required by law, may be taken before either the register or receiver. Sect. 2262. Lytle v. State of Arkansas, 9 How. 314. They are nowhere required to meet and jointly consider the sufficiency of the proof offered. If both are satisfied, that is all the law requires.
It does not appear in the record that the proof by pre-emptors of the settlement and improvement of the lands for which money was received by Potter during the absence of Brashear had not been made to his satisfaction before he left the land district. If such proof had been made -to the satisfaction of Brashear all that was necessary to complete the right of the pre-emptor was the approval of Potter, which was effectually expressed by his receipt of the money.
What -the law requires is that the conditions requisite to a pre-emption entry should be shown to. have been performed to the satisfaction of both officers. As it does not appear in the record that the proof was not made to the satisfaction of both officers, it must be presumed that the money received by Potter in the absence of Brashear was justly due the United States and was received by him in his official capacity. We find nothing either in the cases or the statutes cited by the plaintiffs in error which tends to establish a different construction of the law.
But if it be conceded that the statute required the register and receiver to pass concurrently upon the proof of the settlement and improvement before lands could be entered by a pre-emptor, we are, nevertheless, of opinion that the plaintiffs in error are responsible for the moneys received by Potter.
The moneys were received by him as public moneys, for. he charged himself with them in his accounts with the government. They were paid as public moneys by pre-emptors as a consideration for title to portions of the public domain. If any objection could be raised to the transfer of title to tbe preemptors, it could be made by the United States only. But the United States makes no objection. On tbe contrary, all objection is waived by the bringing of this suit by the government to recover the moneys paid by the pre-emptors for their lands. These moneys are, therefore, public moneys. They belong neither to .Potter nor the pre-emptors, and must, consequently, be the property of the United States. It was, therefore, his duty as receiver to account for and pay to the United States the moneys so received, and it does not lie in the mouths of the sureties on his official bond to raise an objection to the payment of the moneys to him, which he could not raise, and which is hot raised by the pre-emptors, or tbe .United States. Their responsibility for the moneys so received is therefore clear.
In support of this view, the case of King v. United States, 99 U. S. 229, is in point. That was a suit brought against one Chase, a collector of internal revenue, and the sureties on his official bond, to recover taxes collected by him, and never accounted for or paid over. The facts were that on June 1, 1868, the Toledo, Wabash, and Western Railroad Company was indebted to the United States in a large sum for the-five per cent tax for interest paid on its first-mortgage bonds. The tax was, on the day named, paid to Chase by the treasurer of the comparto At the time of the payment the treasurer delivered to Chase the monthly returns- of the taxes so due, in the form prescribed by law, signed by him as treasurer, but not sworn to, and which had never been filed with or delivered to the assessor. Chase delivered to the assessor all these returns, except those for August, September, and October, 1867, which were never delivered. He did not at any time make mention of them in his report to the government,, and he retained the amount, $24,923, paid by the company as the tax upon the returns for the three months just mentioned. Five years after his receipt of this money, and when be had become insolvent, suit to recover it? was brought on liis . official bond. The defence set up by his sureties was that, as the money was not received by him, on any Teturn made to the assessor, or on any assessment of said taxes made by the assessor or by the Commissioner of Internal Revenue, and as the return- delivered to Chase by the treasurer of the company was not verified by oath, it was a voluntary deposit of money in his hands by the treasurer, and was not received by him in his official capacity; that it was not his duty to receive it for the.government; and the sureties were not liable because its receipt was an unofficiA act.
But the court held that the payment of the taxes to the collector was a good payment to him -in his official capacity, that the money so paid was the money of the United States, and that the sureties on his bond were responsible for it.
This case is so apposite to the question in hand, and so conclusive, as to require no further remark.
It is -next contended by the plaintiffs in error that they are not liable for the $1,400 received during the absence of Potter, extending from April 9 to June 30, 1874, by the person whom he had left in charge of his office, because that person had no authority to perform any of the duties of receiver.
There are two sufficient replies to this contention. First, no such defence is set up in the answer or amended answer of the plaintiffs in error. They cannot complain that the Circuit Court did not give effect to a defence which they did not think it worth while to plead. Second, it is not made to appear by the bill of exceptions that any money was paid to Goodfellow, the person left by Potter in charge of his office, which was not due the United States from pre-emption entries made by persons who had proved the settlement and improvement of the land to the satisfaction of 'both the receiver and register. If, therefore, this contention of the plaintiffs in error is sustained, we should, in effect, decide that the sureties of the receiver would not be answerable for public moneys paid, with his concurrence and assent, to his assistant or cashier, but only for moneys actually paid into the hands of the receiver himself. It requires no argument to expose the fallacy of such a conclusion. If a public officer sees fit to allow the money of the government to be paid during his absence* from his office into the hands of his agent or servant, it is a good, payment to him, and the risk is with him and his sureties and not with the government.
Judgment affirmed.