'The rule of law is well settled, that a bond given for the faithful performance of official duties, or in pursuance of some requirement of law, may be valid and binding on the parties, although not made with the formalities or executed in the mode provided by the statute under which it purports to have been given. This rule rests on the principle that, although the instrument may not conform to the special provisions of a statute or regulation in compliance with which the parties executed it, nevertheless, it is a contract voluntarily entered into upon a sufficient consideration for a purpose not contrary to law, and therefore it is obligatory on the parties to it in like manner as any other contract or agreement is held valid at common law.'
In support of this doctrine additional authorities may be cited:
The 57th section of the act does in fact require no more than what the united conditions of the bond, as prescribed by the 53d section, do. He is to keep 'books' as to all the matters mentioned in the conditions, so that assigning, breaches in the language of the 57th section is, in truth, assigning them in what would have been the language of the condition of the bond in this case if the condition had been in literal compliance with the words of the statute.
The bond sued on was void. By the act under which it was given, no person could carry on the business of a distiller without giving a bond conditioned in a mode particularly prescribed. And it is plain that in regard to the condition prescribed, Congress meant that the collector should not make a change. Why otherwise is the condition minutely and with such pains prescribed? and why in regard to amount and sureties is the collector authorized to make a change? The act expressly refers to other duties 'required by other provisions of law,' which are 'in addition' to those which the bond is meant to enforce. But these former it enforces not by bond with sureties, but by penal or other sanctions. Such is the system which Congress, in its wisdom, saw fit to adopt. The collector here, has, therefore, taken a bond which no law required, one which supersedes the system of Congress and adopts a new system of the collector's own instead. The bond is thus one which 'under color and pretence of an act of Congress, and under color of office was required and extorted against the form and effect of a statute.' Such a bond is adjudged in United States v. Tingey, cited on the other side, to show it good, to be void; the nullity of the bond being in truth, the only point adjudged in the case, and the various remarks relied on by the other side, about the difference between such a bond and voluntary bonds being mere dicta of Story, J., extra-judicial, and irrelative, and from the purpose of the judgment which declared the bond bad.
That a bond was required, or exacted, or extorted, is certain. The distiller had to give it or give up his vocation. He 'shall' give it, is the language of the act of Congress, before he gets his license. Certainly no distiller gives voluntarily such a bond as distillers are required by the statute to give, or gives it otherwise than because he is required by the law, which commands obedience from all, to give it, and because if he don't give it he can get no license, and will be fined and imprisoned for exercising his business. Is a bond thus given, voluntarily given-given by choice? Certainly not. If it were, a statute requiring it-declaring that the party SHALL give it, and visiting him with a loss of his license if he does not-would be useless. A bond may be exacted or extorted by influences, having nothing in them of duress of person. When the law speaks it compels, it forces. The collector presents his bond ready drawn. He is particularly bound to know what sort of security the government requires. The distiller can rarely know. Independently of which the collector is 'in office,' and 'obeyed,' of course. The bond is presented for the distiller's signature, and he must sign or forfeit his right to exercise his calling. He acts at his peril if he misjudges as to the right of the government to have the exact bond put before him for his signature. And he does not presume to judge at all, but signs it as of course.
Mr. Justice SWAYNE delivered the opinion of the court.
This is a writ of error to the Circuit Court of the United States for the District of Wisconsin. The action was debt upon a penal bond in the sum of five thousand dollars. The condition was not set out and no breaches were alleged in the declaration. The declaration was framed to recover the penalty. The defendants craved oyer of the condition, and it was given. It is set out in the record, and is substantially as follows: