77 F. 944 | 3rd Cir. | 1896
These two cases are actions brought by the United States upon the official bond given by Oliver O. Bosbyshell as superintendent of the United States mint in Philadelphia; oii(' of the actions being against Mr. Bosbyshell as principal, and the other against the executors of the estate of George W. Childs, who was surety on the bond. As the cases were tried together, and the record in each is the same, they will be considered together. See 73 Fed. 616. The government sued to recover $12,810.82, being the value of certain gold bullion alleged to have been committed to the custody of Mr. Bosbyshell as superintendent of the mint, and for which, it was charged, he had failed to account. The condition of the bond is this:
“Now, therefore, if the said Oliver O. Bosbyshell shall faithfully and diligently perform, execute, and discharge, all and singular, the duties of said office, according to the laws of the United States, then this obligation to be void and of no effect.”
Section 3506 of the Bevised Statutes of the United States provides:
“The superintendent of each mint shall receive and safely keep, until legally withdrawn, all moneys or bullion which shall be for the use or the expenses of the mint. He shall receive all bullion, brought to the mint for assay or coinage; shall be the keeper of all bullion or coin in the mint, except while the same is legally in the hands of other officers. * * *”
Mr. Bosbyshell was superintendent of the mint in Philadelphia from November 1, 1889, to March 31, 1894. The evidence disclosed, that in the year 1881 or 1882 there was brought from the assay office in New York to the Philadelphia mint a large lot of gold bullion, which for several years thereafter was weighed at each annual settlement. At the annual accounting which took place on July 1, 1887, during the incumbency of Supt. Fox, the predecessor in office of Mr. Bosbyshell, this bullion ivas put in a compartment in one of the vaults in the Philadelphia mint, and a wire cage placed around it. Before this was done the bullion was weighed, and the number of bars counted, in the presence of Robert E. Preston, then a mint examiner. A certificate of the number of bars, their weight and value, was signed by Mr. Preston, and by him affixed to the cage. The door of the cage wras fastened by two locks, and it was also sealed by Mr. Pox and by Mr. Preston. Mr. Pox, the superintendent of the mint, took possession of the key of one of the locks, and the key of the other lock was deposited by Mr. Preston in the bureau of the mint, at Washington. The cage could not be properly opened without the employment of both keys. Mr. Preston testified that this gold bullion was thus placed in the cage to avoid the trouble of weighing it every year, and to await an order for its coining. On assuming the office of superintendent of the mint, on November 1,
“It is not suggested that Mr. Bosbyshell, a gentleman of the highest character, abstracted this gold. It never has been suggested or suspected but that it was done by one of his subordinates, for whose conduct in this respect he is responsible, to the extent of making good what the government has lost, — a subordinate who is now languishing in jail as a punishment for his offense.”
The learned judge gave binding instructions to the jury to return a verdict in favor of the government for the amount claimed, which was done in each case.
On behalf of the plaintiffs in error, it is contended, first, that the bullion in question was not in the custody of the superintendent of the mint. This position, however, we think, is untenable. It will be noted that section 3506 of the Revised Statutes prescribes that “the superintendent of each mint shall receive and safely keep, until legally withdrawn, all moneys or bullion which shall be for the use or the expenses of the mint.” Undoubtedly, this particular lot of bullion was for the use of the mint. Of this the evidence is conclusive. Again, section 3506 declares that the superintendent “shall be the keeper of all bullion or coin in (he mint, except while the same-is legally in the hands of other officers.” The fact that the bullion in question was placed and remained in a locked and sealed cage in one of the vaults of the mint, under the circumstances detailed by the witnesses, did not take it out of the custody of the superintendent of the mint, or relieve him of his statutory duty and responsibility with respect to it. It may here be remarked that, at the time the bullion was placed in the cage, Mr. Preston was merely a mint examiner. We add, however, that while this bullion remained in the mint it was not within the lawful authority of even the chief officer of the bureau of the mint, the director of the mint, to relieve the superintendent of his legal custody of the bullion, and his responsibility for its safe keeping. The receipt which Mr. Bosbyshell gave to his predecessor in office, and his subsequent reports to and ac
The defendants, in their sixth point, asked the court to charge as follows:
“If tlie jury believe that the director of the mint should have had the gold bullion weighed and cotmted at each of the annual settlements from 1887 to 1893, and neglected to do so, the verdict should bo for the defendants.”
This point is based upon one of the regulations of the bureau of the mint, which prescribes that:
“At the close of the annual settlement, and at any other time the director may require, there shall be a full and accurate count and weighing of the moneys and bullion in the possession of the superintendents of the mints, * * * for the purpose of ascertaining whether the officer in charge has in his possession the amount of public moneys with which he stands charged by the treasury department.”
The court refused to affirm the above point, and instructed the jury that:
“The director’s neglect of duty, if he had any such duty as the point contemplates, would not relieve the superintendent from his responsibility under the statute before alluded to.”
This instruction was entirely right. No omission of duty by the director of the mint could absolve the superintendent of the mint from the obligation imposed upon him by tbe express tenas of the statute under which he held his office.
It is further urged that the case of the government was not established by such evidence as to justify the court in giving binding instructions against the defendants upon the facts, and that the. question whether the ten bars of bullion were abstracted during the official term of Mr. Bosbyshell should have been submitted to the jury. Now, the government produced the written receipt for the bullion given by Mr. Bosbyshell, when he entered upon his official duties, to Mr. Fox, the retiring superintendent, and his subsequent written acknowledgments contained in the numerous reports and accounts rendered by him to the bureau of the mint. All these papers were of an official character, and were executed in the regular-course of business. They were therefore competent evidence, as against the sureties in the bond. The receipt was none the less competent evidence against the sureties because Mr. Bosbyshell had seen lit voluntarily to waive a recounting and reweighing of this bullion. It may be that the defendants were not concluded by Mr. Bosbyshell’s receipt and the other documents. Undoubtedly, however, the prima facie liability of Mr. Bosbyshell to account to the government for the bullion was thereby established. IIow did the defendants meet this clear prima facie case? Not by evidence that when Mr. Bosbyshell receipted for the bullion the amount then on
We come now to the defense raised by the defendants’ seventh point, wherein the court was asked to charge that if the jury found from the evidence that the bullion sued for was “stolen without any fault of the defendant [Bosbyshell], without defendant’s knowledge, and not by his neglect, and not by any lack of prudence or caution on his part,” the defendants are not responsible on the bond in suit. The court refused to give this, instruction to the jury. The position taken by the defendants at the trial below, and maintained here, is that the bond in suit imposed upon the defendants a liability only for the faithful and diligent performance by Mr. Bosbyshell of the duties of the office of superintendent, and not a liability for a felonious taking of bullion without any fault-or negligence on his part. We are not able, however, to give our assent to this proposition, in view of the decisions of the supreme court, especially in the cases of U. S. v. Prescott, 3 How. 578; U. S. v. Dashiel, 4 Walt. 182; and Boyden v. U. S., 13 Wall. 17. In the first of these cases it was ruled that, to an action upon the official bond of a receiver of public moneys, it was no defense that the public moneys sued for were stolen without any fault or negligence on his part. The court there said:
“This is not a case of bailment, and consequently the law of bailment does not apply to it. The liability of the defendant Prescott arises out of liis official bond, and principles which are founded upon public policy.”
It is insisted, however, that the case in hand is distinguishable from the above-cited cases, by reason of a difference in the terms of the condition of the bonds. Here the condition is:
“If the said Oliver O. Bosbyshell shall faithfully and diligently perform, expedite, and discharge, all and singular, the duties of said office according to the laws of the United States, then this obligation to be void and of no effect.”
We are of the opinion that no sufficient reason appears for sustaining any of the assignments of error, and accordingly the judgment in each of the cases is affirmed.