United States v. Bosbyshell

73 F. 616 | E.D. Pa. | 1896

BUTLER, District Judge.

The point urged that under the terms of the bond the obligors were responsible only for the superintendent’s care and fidelity, and that the doctrine enforced in Boyden v. U. S., 13 Wall. 17; U. S. v. Prescott, 3 How. 578; U. S. v. Morgan, 11 How. 154 and other like cases, is inapplicable, was not made on the trial, though the requests for instruction to the jury embrace it.

Unless it is clear that the point is well taken, the verdict should not he interfered with on this account, but the question be allowed to go to the court of appeals. I cannot see any good reason for the distinction sought to be drawn between this case and those cited above. The bond binds the obligors for the “safe-keeping” of the property, and its delivery when required. The obligation to deliver is a plain and necessary implica lion from the language used. This obligation would not he plainer or more inrperative if expressed in words. The officer is to “safely keep” the property for the government during his incumbency of the office, and to deliver it up at the expiration of that time. But if the obligation of the bond was confined to the “safe-keeping” of the property only, it would be as clearly broken as if the obligation were held to include a delivery To the government when the superintendent retires. /The pith of the decisions cited is that obligors in official bonds will be held strictly to their undertakings — substantially as insurers.

In Boyden v. U. S. the terms of the bond are substantially indentical with those of the bond before us.

U. S. v. Thomas, 15 Wall. 337, presented a different case. The; officer was forcibly deprived of the property involved by a public enemy; and the court held that where the performance is rendered impossible by the act of God, or public enemies, he and Ms bondsmen are not responsible.

The only other reason urged in support of the rule which need be noticed, relates to the admission of the certificate from the treasury department. This I think is sound. The limitations of section 886, Rev. Ht., were overlooked. Tin* section, so far as respects tin; certification of accounts, is confined to suits founded on the “delinquency of a revenue officer, or other person accountable for public-money.” This suit is not so founded. It rests on an alleged failure of the superintendent of the mint to keep safely certain property Intrusted to his care. The language does not embrace the suit; and it cannot he extended so as to cover it, by construction. The-learned district attorney concedes that the certificate is not admissible if the suit is not founded on a delinquency respecting “public money,” but contends that it is so founded. We cannot, sustain* the contention. The claim, as before stated, is for loss resulting from failure to keep the properly' intrusted to the care of the superintendent.

The rule for a new trial is made absolute.