*1 United States v. Thomas. Statement tlie case. “ill whosesoever hands be found.” they may Unquestion ably lien, when it attaches, once continues to attach to the chattels into whosesoever hands the chattels come the time allowed for during unless instituting proceedings, the lien is the removal of the displaced by goods, by sale of the chattels the tenant course ordinary mercantile transactions. view is found in Support the fact that the act of Congress, personal providing action remedy with notice of the purchaser against lien, intends to evidently landlord to reach the permit chattels in whosesoever hands found, if the they may chattels were not sold in the usual course of business.
Judgment affirmed. v. Thomas. States or receiver of money, keep A collector under bond safely required, it when is not bound to render at all events, if prevented but is excused from rendering byit the act of God public enemy, any neglect or the without part. fault on his government, collector or is a bailee of the 2. Such the com- receiver diligence law is bound to due and only mon liable for negligence dishonesty; policy but of the acts of Congress subject on the stringent accountability more exacted. of this enhanced accountability 3. The measure is particularly to be found required officers, official bond of these the condition of which re- payment moneys quires that come to their hands as and when directed; performance of which condition can only be excused by overruling necessity. being war, late rebellion a public 4. The the forcible seizure the rebel of public moneys authorities in the hands of loyal government agents, against their will and their fault or negligence, was a sufficient from their obligations in reference to said moneys. to tbe Circuit Court for the Middle District Error Tennessee.
The United sued Thomas and others as the prin- and sureties on the official bond of the said cipal Thomas, customs for the surveyor Ten- port Nashville, VOL. xv.
. case. of the Statement at that place. moneys of and nessee, public depositary should he that form, the usual was in the bond of condition office, ac- his of duties the aud execute faithfully keep faithfully and well, should truly, and law, cording ex- or banks, depositing using, loaning, safely, act of Congress, as allowed by than other funds changing or otherwise placed him collected by all the ordered should be same till the and custody, his possession or transferred to be officer, the proper department, by transfer payment when such orders for out; and paid same make the and should received, promptly were faithfully as fiscal all duties other directed, aud should perform be imposed by might government agent the of Department, act Treasury regulation Congress certain that was, moneys The breach &c. alleged and were in his official collected Thomas were by capacity, of which a balance of in his custody, possession placed 1861, the in his hands on remained 27th April, $4880 but which he out to which he did not paid per- keep safely, lost; it was aud thereto, entitled sons not whereby wholly de- the sum was ordered the said that proper although be transferred aud he out, and officer to paid partment transfer or out, and refused to failed so.required. besides seizure defendants, performance, pleaded the rebel authorities exercise question by moneys was unable to aud resist, which Thomas force, against citizen, consent, aud faith- loyal will being endeavoring trial, evidence was Upon ad- duty. to perform fully this and the court plea, duced tending support charged if believed from the evidence that at that, they the jury was made demand for the sur- insurgents time the effects in his Thomas of hands render belonging there was insurrection in organized government, and in the Tennessee, Nashville, city State against with a States, force sufficient to government orders and to the demands of the obedience compel governor and controlled insurrection, led and that in who demand was made Thomas to things upon state sur- Argument for the United States. Thomas effects;
render said and if further that believed they in his and surrendered the effects faith, acting good hands belief that he would be honest imprisoned reason ap- and the effects seized and had force, good if that and other violence to his they prcheud person; to com- believed that the threatened force would be applied then court was of surrender, pel in his effects seizure appropriation government States, enemies of the United hands would by public notwithstand- for the same, would relieve him from liability bond; if believed of his but condition ing *3 insurrectionists, or co-ope- Thomas was one of the willingly acts them in their lawless government, with rated against that the effects in he was infer that willing jury might authori- the hands of rebel fall into should controversy from the be relieved and he would not ties, obligations whe- taken, was an To exception bond. ruling before was now in law ther the was correct point ruling this court. H. Hill, and Mr. C. Williams, Attorney-General, H.
Mr. G. error: in plaintiff Assistant Attorney-General, for is not excused an contract Performance express was made, after the contract occurring reason anythiug be though unforeseen contracting party, in law was declared years This England his control. yond It case of Paradine v. Jane.* emphatically in the old ago, late time in Ford v. Cotesworth: there of thus reasserted † cases both decided established, think it firmly “We or im- has either where a expressly party on principle, to do qualification, anything, without undertaken, pliedly must make damages, do it, compensation does not some rendered was impracticable performance though.the he had no control.” cause over which unforeseen in Dermoit in this enforced country rule was equally other courts this and and has been Jones,‡ applied by v. Wallace, Eeports, B. A-leyn, Law Q. Thomas. States v. United of the customs. surveyor for the Argument undistin circumstances under cases official bonds v. States United from present, principle guishable Prescott,* Keehler,‡ v. Dashiel,† v. United United States v. Bevans, Muzzy v. Boyden United UnitedStates States,§ v. Harper.†† and State Shuttuck,¶ Comly,** Commonwealthv. observes: the court States, In v. United Boyden “ defenceset up case the It is true that Prescott’s here set the defence up while stolen, had been the money held it bo difference,unless no But that can make robbery. his lia- seen, as we have If, mere bailee. receiver is a that the him to and that binds is to be measured by bility himtopay it impossible the causewhichrenders then money, the risk of it.” for he has assumed no importance, contra: Henry Cooper, Mr. that it is no defence offi concede action
"We aof receiver of bond conditioned moneys, cial that the was felo keep safely public moneys, Prescott, as in the stolen, cases United States v. niously Dashiell, over the officer volun paid a creditor of the goveriiment, authority tarily under statute States, but of the Confed from the as was the States, case of the erate UnitedStates *4 where the officer is Keehler, or and robbed, overpowered case of or UnitedStates v. where an officer Boyden, as in the default, and such default concurs the with acts of a to or contributes facilitates enemy, the public wrong, the renders possible, lost, as was of States case United the settled principles Bevans.‡‡ have the these eases no to ease.' In application present them does it that none of it was to have appear impossible the loss. And to have excused the officers, under prevented circumstances, have the door opened might fraud. we have this case: The officer was a But-here citizen loyal * Howard, Wallace, 3 578. 4 185. 9 Id. 83-88. † Wallace, Denio, 13 17. Ib. 56. 1 § 233. ¶ ** Barr, State, 6 Ohio Wallace, †† ‡‡ of the court. Tennessee, of with her States, the United property enemies, Tennessee and the States were public waging within of the latter is found war. The public property former; has the of commanding general territory sub it; seize it is to determine whether or not he will right it; and he orders Thomas to surrender seizure, ject sub latter himself without and is bound to finds protection, laws of to im mit to such as the ruler chooses territory If he had been ordered to trans United States pose. the effects could not have fer loyal possibly nor could the United States have enforced order, obeyed who here the order were at the head of a Those it. gave force. Ill such a case it is not paramount government who reside in but such duty parties necessity, obedience to the in all civil ruling power territory yield and local matters.*
It was actual violence should have been necessary constitute used to duress. Moral was sufficient. compulsion delivered the Mr. Justice BRADLEY the court. This case whether up brings squarely question the rebel seizure, forcible authorities, public, moneys iu the hands of their loyal government agents, will, against their fault not, without or is is, suffi- negligence, cient from the of their official bonds. obligations has not as This been decided j-et precise question As the rebellion has been held to have been court. a public be stated in a more war, form, as general Is act of a iu follows: enemy forcibly seizing hands property destroying government officer, will, his his fault, a dis- against and of keep property safely, charge obligation to secure the official faithful given performance and to have the when re- duty, property forthcoming quired'? *5 Wallace, Smith, Thorington v. Pierce, Wallace, 214; Morton, 12 Baker v. Id. 156. Brown court. the is thus stated in its double
The namely: question aspect, official to the from first, obligation arising duty; regard the be- from and, arising secondly, regard condition of latter is twofold, princi- cause the —that and that he his official duties, shall pal faithfully discharge come into shall that may pay moneys government is him. It his hands as and when be demanded of shall has more latter branch condition contended that the former, effect creates than obligation stringent all at all received. events, public money pay, from force inevitable necessity, That overruling arising is a sufficient answer for loss the act of enemy, public is considered in refer- when the property from ence to an officer’s merely obligation arising ap- case, from a bond exists aside pointment, not, then seems almost self-evident. If it every military lost a battle, who ever surren- commander obliged fort, added a or other civil der his ship public property, And as it to his misfortune. military regards obligation distinction it is difficult to be- perceive any this question, kind of and another. If of one tween the loss property falls on to the loss government, belongs property individuals, it falls on if it them. belongs government; rule of official imposed by law, obligation, general duties of his office the officer shall is that hon- perform the best This is and to pf ability. faithfully, estly, cases, all official oaths. In ordinary substance expect deter this would more than responsible men upright the rule office. This substantially from by which taking law measures those the common whose them to have duties custody official require property, a more If in or private. stringent obligation be statute or desirable, it must exacted prescribed by stipulation. express rule will found illustrated ordinary by number cases.
of analogous down laid Justice officers of It is Story courts of suitors are property custody bailees, having *6 Dee. 343 v. Thomas.
Opinion the court. liable for the exercise of faith only and reasonable good and not for loss diligence, responsible occurring fault or their Trustees are bound ex negligence.* ercise the same care and solicitude with to the trust regard would exercise property they with their regard, own. will not more of exact Equity are not They them.† liable for a loss theft without their But this ex fault.‡ ceases when mix the emption with their they trust-money own, it loses its and whereby mere identity, become they Receivers, debtors.§ court, held appointed by to a stricter than trustees, on account of their accountability are nevertheless liable compensation, not for a loss without their fault; and are entitled to manage property and transact the business in their hands in the usual and way. n accustomed A marshal a court of ad appointed by a take care of miralty ship cargo responsible only honest prudent and execution of his commission.¶ Scott, Sir William man,” “who undertakes a says “Every incurs all the commission that to a belongs and honest execution of that commission. Then prudent What is a and honest comes, execu prudent question fair tion of commission? performance to it. . . He duties . must belong provide compe number of tent so persons guard property; having he’has unless he can be done discharged responsibility, fraud, with affected un negligeuce amounting legal A to fraud.”** bound to exercise postmaster derstanding in the care of matter de more, due diligence, nothing He liable for loss post-office. posited hap without his fault after Soon negligence. pening 332, Bailments, Story Ib.; Trusts, on Lewin on 3d ed. Ib. § 1270, 2 Story’s Equity Jurisprudence, 1268, 1269; Ib. and see § § §§ Kirton, 917, 921, 933, Spence’s Equity 937; also 2 Jurisprudence, Wren v. 381; Lynch, 11 Utica Insurance Co. v. 11 Vesey, Paige, 520. Plymouth, 480; Knight Atkyns, Howell, v. Ld. 3 3 Vesey, Rowth 332, Trusts, ed.; 566; 3d Receivers, Lewin Edwards on 573-599; White 3 Baugh, Pinnelly, Clark & Robinson, Rendsberg, 6 ¶ ** Robinson, 154; Trevitt, Mason, see also Burke v. 96, 100. the court. it was government post
organization attempted the Postmaster-General to the same extent as the charge mails; carriers who had carried the common previously case of elaborately argued great Lane et and Lord Chief al.,* v. Cotton Justice Ilolt strenu *7 it view; contended for that but was decided that the ously was liable for his own and this postmaster negligence; case was followed Lord Mansfield the whole court, aof in the case v. later, three-quarters century Whitfield Despencer.† Le certain is cases, true,
In it more accountability stringent exacted; inas the case in sheriff, is reference to pris him held in where the law oners whole custody, puts at and makes him liable county disposal, power in all where is cases, except caused an act escape for The which thus public God enemy.‡ exception severest exaction of official qualifies law at the common is known notice. worthy particular so severe for a rule in cases The reason applying escape founded in motives of Chief Jus public probably safety. in Wheeler Gibson, v. “The tice strictness Hambright,§ says: law in this arises from respect .Lord public policy.” in his Holt, Justice in Chief Lane v. dissenting held that sheriff also same Cotton, responsible in execution; manner seized strict but he cited no goods for the rule of opinion, authority general responsi much short of that. certainly bility basis of common-law rule is founded on the doc- A bailment. officer trine of in his having property his official bailee; is a and the custody capacity rules of that relation are out held to grow govern ease. can at its But undoubtedly, pleasure, legislature change Raymond, 1 Lord 754; Story Bailments, on Cowper, 463; Munroe, see Dunlop 7 § Crunch, 242. 1; VI, Dette, p. Abridgment, Sheriff, Hen. Brooke’s 22; tit. Dalton’s Sheriffs, 485; on Watson Rawle, Sergeant & §
Opinion of the court. the common-law rule of with And responsibility. regard often accumulate sums moneys, they large in the hands of collectors, receivers, and and as depositaries, are they embezzled used susceptible being privately without are detection, identification, often difficult of for the legislation frequently adopted purpose holding such officers to a strict And in some very accountability. cases are of as were absolute they spoken debtors for, and not custodians iu of, simply their In York, hands. New in the case of Muzzy Shatt uck,* the after a court, careful examination of the statutory the duties and liabilities of a town provisions respecting came collector, to the conclusion to its (contrary previous decision he that was liable as a Supervisorsv. Dorr),† debtor,and not as a for the bailee, collected merely moneys him, and could not excuse himself, consequently in an action that, his fault, by showing *8 had been stolen from his money office. however,
Where, a statute merely prescribes duties as that he officer, shall or safely keep money prop received shall collected, or and it over erty when called to do so it upon proper cannot, without authority, more, be as or in regarded enlarging way any affecting of his The mere degree responsibility. of du prescription has ties to do with the as to nothing what shall constitute the rule of of those discharge duties, or a excuse for the legal non-performance them, aor from their The commou discharge obligation. law, reason, that; which is common and prescribes statutes, terms, subordination to their are to be construed agreeably to the rules of the common law.‡ with
The acts of to the duties of respect col- Congress and receivers, depositaries public must moneys, lectors* conceded, manifest for the due and faithful great anxiety these officers their duties, and discharge responsible * Denio, Wendell, 25† 440.. Statute, I, Abridgment, Bacon’s tit. Ct of the eourt. come moneys payment
for safety to safely, are keep required hands. They expressly to their or banks, exchanging depositing using, loaning, law, all allowed funds than specially for other or in their them, possession collected money to officer till ordered by department custody, proper trans for out; such orders and where be transferred or paid make fer are received promptly faithfully payment casual all excuse for To same directed.* obviate allowed, shall be under it is losses, provided all ad necessary of the Secretary Treasury, direction vaults, or clerks, chests or for ditional expenses fire-proof of safekeeping, transferring, other necessary expenses embez And it is made said' moneys.† expressly disbursing and a the safe officer with felony, zlement charged and disbursement transfer, public moneys, keeping, own them them' to his or to use use, to convert way them, or to loan them in to ex whatever, bank, or deposit funds them for other as ordered except proper, change receiver of Every department.or officer.‡ to render accounts required quarter-yearly proper, officers of with the neces vouchers accounting treasury, to the settlement within thereof, three months sary prompt each after the expiration however, quarter, subject, the control of this, proper, Besides all department.§ are such officers bonds with sure required give sufficient for the due of all ties these duties. And upon default sued, is directed making being prompt judgment claim for to be and no a credit is to be allowed unless given, has been first *9 it the presented officers of the accounting for examination and disallowed, unless it be treasury that the vouchers could not be for procured pur shown reason of absence from the some pose, unavoidable country, accid ent.¶
These show that it is manifest of the provisions policy 61, at Large, g 9 Stat. 62, g 9. Ib. 13. 63, 723, Ib. 3 g 16. Id. § § 75; 60, 3, 705; 61, 514, 9 Id. 2 Id. Id. 1 Id. &c. §§ ¶. court. collectors, receivers, all law to hold depositaries ato strict very accountability. money legisla public culminates them to on subject tive anxiety requiring with sufficient sureties for enter into bond the-performance criminal sanctions for duties, of their imposing use of the Whatever can he in unauthorized moneys. duty course of from this exacted from ferred justly legislation can excuse be the officers. No allowed for the ordinary committed to their hands. money non-production but bailees. To call are them Still nothing they anything are forbidden to when touch or use else, expressly directed, would be an abuse of except money terms. public bailees, are subject But they special special obligations. law of is evident that bailment cannot the-ordinary It be determine the of their invoked degree responsibility. new To the extent of on a basis. This amount placed is fixed bonds, contract; it of their official by special the law as to their for general the policy responsibility such bonds not covered amounts fairly presumed case of The same. In the UnitedStates v. leading to be on a similar was an action bond to that now Prescott* (which “ the court This is ánot under ease of say: consideration), law of bailment, and bailment does not consequently of the defendant, The liability to it. Prescott, arises apply and the bond, his official are principles out of founded After the condition of reciting policy.” with a adds, we degree court greater generality, think, “The case before than the required, obligation to keep absolute, money any condition, safely but the nothing implied; payment it, express can bond.” when required, seem to would indicate an This language broad receiver and his bond made the sureties that the liable at all as now contended events, But government. defence set was that was one in which up more limited and a much stolen, than * Howard, *10 348 Thomas. v.
Opinion of the court. sufficed have would above that indicated by language And as the money to render that defence nugatory. it; is custodian his; a not as he
hands of receiver is far to it seem to engage- would be very say, going as to be absolute, quali- so ment to have it forthcoming condition whatever, even a implied fied no not condition by swallow up should in an earthquake law. Suppose no condi- is there safe money, containing building exonerate the tion the law which to receiver by implied from ? so by
We do the doctrine not question strongly urged of an express counsel for the that performance government, after occurring contract is excused reason of anything by the contract unforeseen made, contract was though his control—with qualifi beyond party, ing not become to be done does that the cation, however, thing an island which has as, cultivate physically impossible; sunk was thus decided sea. It leading is well this stated subject Paradine v. The law on Jane.* creates “When the law where he Williams,† Sergeant says: it without any and the is disabled to perform duty, party ex law will over, the and he has no him, default remedy him; if be waste, cuse as in a house destroyed by tempest, if a excused; so, in prison enemies, escape, lessee excused. enemies, be destroyed by tempest gaoler creates where the his own duty But contract party.by if he make it himself, may, bound good, charge upon because accident inevitable necessity, notwithstanding his contract.” have against might provided effect has the ease, It is contended that the cases actions contract, and several of such special official bonds have been cited support proposition. cases are the of United States relied on Those principally cited; v. Commonwealth Prescott, v. Muzzy Shattuck,‡ just Harper, n recent cases The State v. Comly,§ Saunders, 26; Contracts, 2 422 (a) 212. note. Aleyn, Metcalf on Denio, Barr, State, 6 Ohio § Tiiomas. *11 of the court. be must Keehler, and in this It Dashiel, court. Boyden in conceded used not court, that the language cases in of the other to, the case referred some but already none inBut seems to favor the rule contended for. cited, of them was defence of interposed. necessity overruling or some theft, were all cases of robbery, They alleged to have insufficient would been cause of which loss, other all concur from a common carrier liability. They exonerate much that however, of in one importance, establishing point, for and to account with an condition a bond unqualified the implied obligation over public moneys enlarges which are him of defences and officer, deprives receiving bailee; but do available an go length ordinary events; all liable at becomes that thereby deciding called but not direction, that looking although expressions have been used. may judgment, has been suf Prescott case of States v. already The was that time, in order of next, adverted to. The ficiently same Shattuck; 1845, was decided the which year, Muzzy construed Court of'New York which Supreme and the town collector State making the statutes and him, to be collected amount of taxes debtorfor was on his bond money liable notwithstanding him held correct; arrived at was but the result Here stolen. again which it was attained ques may fairly the reasoning have State, however, jus statutes The tioned. in that case. taken view was tified de Comly, case is that of Commonwealthv. next an action on the bond of a collector That was in 1846. cided same defence was tolls, theft) interposed. and (of case of refers to the United States v. Gibson Justice Chief of a that “the remarks, Prescott, bailment, the law of which is determined not by receiver where of a place special agreement supply called of his bond.” So in the but the condition none, there et which al., action on the v. Harper The State for the treasurer, conditioned pay of a county bond official come to his hands for State, that should all moneys ment Opinion of the court.' township larceny county, purposes; office, court being pleaded, say: “By accepting assumes himself the treasurer duty receiving upon ac- and of out public money, paying safely keeping fail, that he will not His bond is a contract law. cording acts;” do these the defence of lar- account, upou any was overruled. ceny examine the cases further detail.
It is unnecessary the New York It from them all perhaps appears (except the founda bond is the official laying regarded case) collectors and *12 a tion of more responsibility upon stringent is referred to as a It special of receivers public moneys. additional with assume which contract, obligations they of those the moneys, to payment safe-keeping regard of the law with indication of the to and as an policy regard But, as before remarked, the nature of their responsibility. the of themselves do the decisions go length making the of On con liable cases necessity. them overruling on the that of last case Bevans in the reported subject, trary, Mr. States,* Justice Strong, delivering v. United be a whether “It court, question grave of says: this to the United States, of money belonging forcible taking of her or of one officers agents lawfully from possession a force, which at it, paramount government holding of the authority time usurping rightful govern obedience to itself ment, and compelling exclusively through not work a of such officers would State, aout from fault, were free had if entirely though they agents, the United These States.” bond given that the raised in show this question particular observations the court after reserved its most mature been has case of the subject. consideration laid case, almost been has, stress every much upon
So either the basis indirectly, directly bond forming, it seems im- rule responsibility, especially a new are the what obligations ascertain legal spring portant * Wallace, Opinion of the court. The learned from such an great instrument. judges referred the eases made in some of remarks generality officer, with of a to, receiving liability regard bond, of his have sureties, evidently virtue especially a we to be overlooked what conceive very important a to do distinction an absolute vital between agreement in a do the same inserted and a condition to thing thing, In bond. the latter in order to avoid obligor, forfeiture of is not bound at all events obligation, per- its condition, form but is excused from performance when the law or prevented by necessity. overruling think, distinction, And this we affords a solution to tlie involved in case. extract from Coke Littleton following expresses law on this Blackstone subject, repeated by “In all cases,” Lord says Coke, other modern authorities: bond, is&c., condition recognizance, possible “where condition, and before the same at time making the condition becomes impossible by can be performed, &c., or of the there the law, God, act obligee, But if the condition of &c., saved. obligation, at the time of the of the condition, be&c., making impossible *13 &c.,is single.”* obligation, rule does a course the above bond Of apply money debt, where condition is for a for simply pay given a sum of than the for there, less money penalty; ment the same nature the condition as the the books say, not collateral itself, and bond suit obligation it.† an The condition of official a bond. bond is not money not based on obligation penalty; is collateral debt; and the nor is it evidence aof debt, duty a prior a until become debt default be does not thereby secured then, Until as we have of the on the principal. made part 22; Touchstone, Litt., Shepherd’s 2 Thomas’s Co. Lit. 206 (a); Co. 310, 341; Abridgment, Bacon’s tit. Commentary, Con- 372; 2 Blackstone’s Condition, D, Digest, tit. Comyn’s (N), (Q); dition " Abridgment, Condition,” Abridgment, 448; (D, e); Viner’s 1 Kolle’s Nevel, Dyer, (a). Panel v. Thomas. Miller, J., dissenting. a he is bailee seen, bailee, resting'nnder special a debt, is, not to a condition his bond obligations. certain about and specific but to respecting perform duty cannot for bis he use bis, which is not property arand Brown v. the case of own In Farr purposes. were sureties liable
States,* the whether being question bond, defaults made to the of the court say: prior giving “ to Rector For sums any prior paid principal) (the .the there one on which execution but ground States, and sureties could be held answerable to the United that he held the in bank that is the still assumption money his hands, still in he was to that time If up otherwise. but on bailee the contrary hypothesis government; and his had become debtor to the government, defaulter is, as custodian offence consummated.” That already he is bailee of the a debtor. government —not What is the makes him debtor or defaulter question very at issue. When he becomes he and such, then his sureties are liable the amount is as we held until in the late paid, before Bevans, then, ease referred to. Until neither he are on the nor liable bond. think
We that the case is within the law as down laid Coke, Lord and that receiver, sureties, especially entitled of it; are to the benefit and that no rule of public an officer to account for which have requires policy moneys been or taken from destroyed by overruling necessity, him a fault or on his enemy, neglect part. Judgment affirmed. dissented; SWAYNE, MILLER,
Justices STRONG himself Justice MILLER for follows: saying The case arose on a of UnitedStates certificate Prescott† of division of on the Circuit judges, whether “the felonious taking away carrying *14 in the of a receiver of with- moneys custody public moneys, * Howard, 3 578. Peters, 5 373. † 353 Dec. 1872.] Miller, J., dissenting. him and or on out fault discharged negligence part, an}' a to an action on sureties, be set as defence up his official bond.” answered in the dissent, court,
This question of the court, The was in the based, negative. ruling on two stated: grounds, clearly funds or other receiver, That
1. depositary circum- cases, such could not avail himself of ordinary reason hire, which would bailee for stances This an policy px-inciple policy. impex-ative the de- defences which of collusive founded danger as make a could so case, strong easily manage positary means l’ebut- could have no which the government Aixd it was simulated it be. false or however might ting, to the absolute better to hold the party payment thought than to the door to frauds. open delivery money, sureties, and his That given depositary having an of which was conti’act to bond, the condition express were bound deliver, contract, according annexes to law such covenants terms x'igid promises. case United States v.
In the subsequent Morgan,* is decided on the same same pi’ecisely grounds. was decided with case of United Daskiel† the doctrine of the two cases a reference to just mex’ely cited. asserts the same doc case of States v. Keehler‡ who it to an action on postmastex’’s and applies
trine of the Confederate States agent had paid direct made an order insurrectionax-y government him to do so. ing Dashiel came before the of United States
When with the docti’ine of former satisfied I was not court sound now that on principle I do believe cases. to extend construed obligation should be bond him, the law what imposes upon beyond depositary Howard, Wallace, 9 Id. 83. xv. VOL. *15 Miller, J., dissenting. the words of to over contain express it promise pay true construction of such I think the promise money. receiver, if no of the when the law would it to require the the had been bond object being bond taking given; of that the sureties for performance obligation. to obtain to there was these decisions any I believe that Nor do prior courts, the or im- by public policy recognized principle law, which made a depositary by posed it, when it had lost or with- liable for been destroyed fault or fraud and when out on any negligence part, had in to its cus- he faithfully discharged duty regard when, Such were as a and safe-keeping. my opinions tody took court, I in the decision of member of part But either other shared those v. Dashiel. no judge did, one or, if felt bound the two pre- opinions, decisions. I therefore vious acquiesced. case to directed
I understand be opinion present on two 2. Mainly points: undermining ground on decisions this 2d. prior subject And, rest. distinction this case and those. To establishing between If the first point. opinion As regards judgment a frank those cases, court were based upon overruling doctrines which I rest, abandonment they that, I did not in conference should acquiesce ap- ifBut court prove judgment. cases to stand as those law while
be construed permitting as. can be on which alone defended weak- are principles must its I dissent ened from that my express argument, still more do I view of the case. And dissent from strongly to be drawn between distinction this case and attempted If a or a time of can theft robbery profound those. peace and the collusion can be simulated, so so success- easily be that no such defence be ful, requires public policy I it to to, leave listened any ordinary understanding say of force much more the rebels easily pretence how can be and how arranged proved consenting parties, more difficult for government much disprove than in the other mentioned. arrangements collusive Winegar. Grand Chute Dec.
Syllabus. the law States, of the United recognizing Congress court, provided decisions of laid down the former cases hardship for such 3, 1865, the act of March the doctrine therefore, Unless, of relief. thought worthy *16 as on such basis sound principle and reviewed placed make see reason to excep- I no cases, would in all do justice defendant, who, in like the present tions favor of persons of the virtue of office the money holding by without enemies, into the hands of its States, delivered it aor moment’s violence, application slightest personal seize prop- attempt person imprisonment, these were able do things erty, ground made, do them. Such excuse, easily threatened to is, hard to be confuted, my judgment, easily proved, fault than that of theft admitted to be much weaker on the fraud depositary. part Winegar. Chute Grand [At Law.] abatement, plea raised a where defendant On an issue fact issue, evidence and where the (introduced the affirmative holds positive all in himself) plaintiff, favor by the defendant uncontradicted, jury properly court instructs when it directs law, plaintiff. to find issue for the them, matter of as seem, defendant, well enough plead it would To a suit on a bond the est At there is no incon- apparently debet non least both nil factum. a therefore mistake a It would court to sistency pleas. plea est inconsistent with a plea strike out of non because factum debet; if any striking occurred to the defendant such prejudice nil out, judgment difficulty sustaining would be rendered there However, plain though plea was where was plaintiff. out, rejected no technically struck evidence was on account of its ab- litigated every question fully sence, but that the defendant fact remained, and that much evidence offered if that had pleading rejected, -rejected none so because of the ab- by the defendant was this court refused to reverse. proper plea, of a sence