Gambar halaman
PDF
ePub

one quarter), but the new enrollment did not negative the fact that Shinn was only a mortgagee. So, also, Shinn joined with Savage and Morgan in ratifying the act of Comstock in taking out a policy of insurance on the vessel, but that was not inconsistent with his present assertion that he held the property as a security for a debt. He took no note for the money advanced by him for Kelly. He could not have taken one when the bill was made, for it was then not known how much he might be required 110*] to advance. But *when the money was advanced, he did take a receipt in Kelly name. If in truth a debt was created, the fact that a bond or note was not taken does not make the bill of sale any the less a mortgage, though the absence of a bond or a note is to be considered in inquiring whether a debt was intended. Floyer v. Lavington, 1 P. Wms. 268; Russell v. Southard, 12 How. 139. Nothing in all this, we think, overcomes the positive evidence that the arrrangement was a loan rather than a purchase, and that the bill of sale was intended only as a hypothecation to secure the loan.

act under authority from him, and he 111*]
is not entitled to the freight earned. Nor does
it make any difference though the vessel be reg-
istered in his name. Howard v. Odell, 1 Allen,
85; Myers v. Willis, 17 C. B. 77; 18 C. B. 886.
It certainly cannot be maintained that Shinn
was in possession, or that he ever authorized
the expenditure that was made. And as this is
a bill, not by third parties who furnished the
supplies, but in right of some joint owners, the
ship's husband, against a mortgagee of another
joint owner, authority from the mortgagee to
contract for the supplies is indispensable to
any liability on his part.
The decree is affirmed.

UNITED STATES, Plff. in Err.,

V.

JESSE THOMAS et al.

(See S. C. 15 Wall. 337-355.)

Collector or receiver of public money is excused by act of God or public enemy-overruling necessity.

1. A collector or receiver of public money, under bond to keep it safely and pay it when required, is not bound to render the money at all events, but is excused if prevented from rendering it by the act of God or the public enemy, without any neglect or fault on his part.

2. Such collector or receiver is a bailee of the government, and by the common law is only bound to due diligence, and only liable for negligence or dishonesty; but by the policy of the acts of Conal-gress on the subject, a more stringent accountability is exacted.

It is not questioned that an instrument absolute in these terms may be shown by parol evidence to be only a mortgage. Babcock v. Wyman, 19 How. 289, 25 L. ed. 644. It is true that if trust and confidence have been reposed in it by third parties, with the honest belief that it was indefeasible, and such parties have been misled by its form, they have a right to insist that, as to them, it shall be what upon its face it purports to be. But there is not even an legation in this case that Morgan, Rhinehart, & Co. were misled. Much less is there any proof that Shinn held himself out to them as owner, or that he authorized the advances, or that they were made on his credit. On the contrary, the evidence, so far as it goes, tends strongly to show that the firm knew the real nature of the transaction, and that they believed Kelly remained an owner notwithstanding the bill of sale. Morgan, one of the firm, testifies that when Shinn paid the money he said it was money advanced by him for Kelly to pay his (Kelly's) share of the ship. The subsequent letters of Morgan and of Comstock, to Kelly, written

in November, 1865, and in the spring of 1866, are utterly inconsistent with belief on their part that Kelly had devested himself of his ownership. After the steamer was burned Comstock said she was insured for $15,000, and that none of them, and especially Kelly, would lose anything by the operation. He also asked Shinr to sign a paper for Kelly respecting the ship and to act for him by virtue of his power of attorney. More than this, Morgan afterwards made an affidavit stating in effect that Kelly was the owner of one fourth of the vessel. There can, indeed, be no pretense that Morgan, Rhinehart, & Co., did not know from the beginning that the bill of sale was a mere security

for money advanced by Shinn.

If. then, Shinn was only a mortgagee of an undivided interest in the vessel, as we think he was, he is under no obligation to contribute for repairs which he did not order. A mortgagee out of possession is not liable for repairs. 1 Pars. Ship. & Adm. 129, and note 1. The benefit of repairs inures primarily to the mortgagor. A mortgagee out of possession does not appoint the master, or the ship's agents. They do not

is particularly to be found in the official bond re3. The measure of this enhanced accountability quired by these officers, the condition of which requires the payment of the moneys that come to their hands as and when directed, the performance of which condition can only be excused by an overruling necessity.

4. The late Rebellion being a public war, the forcible seizure by the rebel authorities of public moneys in the hands of loyal government agents, against their will and without their fault or negli gence, was a sufficient discharge from their obligations in reference to said moneys.

[No. 27.]

Argued Dec. 6, 1872. Decided Jan. 6, 1873.
IN ERROR to the Circuit Court of the United

States for the Middle District of Tennessee.
Suit was brought in the court below by the
United States, upon a certain official bond.
Judgment having been given for the defend-
ants, the plaintiff sued out this writ of error.
The case is further stated by the court.
Messrs. George H. Williams, Atty. Gen., and
C. H. Hill, Asst. Atty. Gen., for plaintiff in
error:

Performance of an express contract is not excused by reason of anything occurring after the contract was made, although unforeseen by the contracting party and beyond his control. ed. 529; 3 Kent, Com. (6th ed.) 465 et seq. Metc. Cont. 213, and cases cited; Dermott v. Jones, 2 Wall. 1, 17 L. ed. 762; The Harriman, 9 Wall. 161, 172, 19 L. ed. 629, 633; Paradine v. Janc, Aleyn, 26.

Boyden v. United States, 13 Wall. 22, 20 L.

"We think it firmly established, both by de

Headnotes by Mr. Justice BRADLEY.

money by theft or bank failure-see note to WilNOTE.--Liability on official bond for loss of son v. People, 22 L. R. A. 449.

337-355

SUPREME COURT OF THE UNITED STATES.

cided cases and on principle, that where a party | of less dignity than the covenant of a publie has, either expressly or impliedly, undertaken, officer, when it was impossible to keep either without any qualification, to do anything, and does not do it, he must make compensation in damages, although the performance was rendered impracticable by some unforeseen cause over which he had no control."

Per Blackburn, J., in Ford v. Cotesworth, L. R. 4 Q. B. 134.

Mr. Justice Bradley delivered the opinion of the court:

This is an action against principal and sureties on the official bond of Thomas, as surveyor of the customs for the port of Nashville, Tennessec, and depositary of public moneys at that place. The condition of the bond was in the usual form that he should faithfully execute and discharge the duties of his office according to law, and should well, truly and faithfully

The rule has been applied by this and other courts to the cases of official bonds, under circumstances undistinguishable in principle from the present. United States v. Prescott, 3 How. 578; Unit-keep safely, without loaning, using, depositing ed States v. Dashiel, 4 Wall. 185, 18 L. ed. 321; United States v. Keehler, 9 Wall. 83, 88, 19 L. ed. 574, 576; Boyden v. United States, 13 Wall. 17, 20 L. ed. 527; Com. v. Comly, 3 Pa. St. 372; State v. Harper, 6 Ohio St. 607.

Malone and Henry
Messrs. Demoss,
Cooper, for defendants in error:
The effects surrendered by Thomas, Apr. 27,
1861, belonged to the United States, and Civil
War existed between Tennessee and the United
States at that time. If a war existed at the
time, then the parties were public enemies.

Miller v. United States, 11 Wall. 309, 20 L.

ed. 145.

"Every nation at war with another is justifiable by the general and strict law of nations, to seize and confiscate the movable property of the enemy."

in banks or exchanging for other funds than as allowed by act of Congress, all the public money collected by him or otherwise paid in his possession and custody, until the same should be ordered by the proper department or officer In Boyden v. United States, supra, the court to be transferred or paid out; and when such observed: "It is true that in Prescott's Case orders for transfer or payment were received, the defense set up was that the money had been should faithfully and promptly make the same stolen, while the defense set up here is robbery. as directed, and should perform all other duties But that can make no difference, unless it be as fiscal agent of the government, which might The held that the receiver is a mere bailee. If, as be imposed by any act of Congress or regulawe have seen, his liability is to be measured by tion of the Treasury Department, etc. his bond, and that binds him to pay the money, breach alleged is, that certain public moneys then the cause which renders it impossible for were collected by Thomas in his official capachim to pay is of no importance, for he has as-ity, and were placed in his possession and custody, of which a balance of $4,880 remained in sumed the risk of it." his hands on the 27th of April, 1861, which he did not keep safely, but which he paid out to persons not entitled thereto, whereby it was wholly lost; and that although the said sum was ordered by the proper department and officer to be transferred and paid out, he failed and refused to transfer or pay it out as so required. The defendants, besides performance, pleaded seizure of the moneys in question by the rebel authorities, by the exercise of force which Thomas was unable to resist, and against his will and consent, he being a loyal citizen, endeavoring faithfully to perform his duty. Upon the trial, evidence was adduced tending to support this plea, and the court charged the jury that if they believed from the evidence that, at the time the demand was made by the insurgents for the surrender by Thomas of the effects in his hands belonging to the government, there was an organized insurrection in the state of Tennessee and in the city of Nashville against the government of the United States, with a force sufficient to compel obedience to the orders and demands of the governor who led and controlled such insurrection, and that in this state of things the demand was made upon Thomas to surrender said effects; and if they further believed that Thomas was acting in good faith and surrendered the effects in his hands only in the honest belief that he would be imprisoned and the effects seized by force, and had good reason to apprehend that and other violence to his person; and if they believed that the threatened force would be applied to compel the surrender, then the court was of opinion that the seizure and appropriation of the government effects in his hands would be by public enemies of the United States, and would relieve him from liability for the same, notwithstanding the condition of his bond, but if they believed that Thomas was one of the insurrectionists or willingly co-operated with them in their lawless acts against the gov

Ware v. Hylton, 3 Dall. 226; Wheat. Int. L. 526, 596.

This is a belligerent right.

Miller v. United States, supra.

The commanding general has a right to determine whether or not the emergencies demand the seizure of an enemy's property, when subject to seizure.

Mrs. Alexander's Cotton, 2 Wall. 419, 17 L.

ed. 919.

Harris was at the head of a government of paramount force. In such a case it is not only necessity, but the duty of parties who reside in such territory, to yield obedience to the ruling power, in all civil and local matters.

Thorington v. Smith, 8 Wall. 11, 19 L. ed.

364.

Where there is no protection, no allegiance or sovereignty, there can be no claim to obedience.

United States v. Rice, 4 Wheat. 246.

It is most manifest that it was impossible for Thomas to have kept the covenants of his bond, and that he is not in fault. Will he be held to impossibilities?

A vendor is not liable, on his warranty, for
acts of the public enemy.

Curtis v. Innerarity, 6 How. 156.
And why? Because it is impossible to keep
it. Then why should the vendor's warranty be

82 U. S.

ernment, the jury might infer that he was willing that the effects in controversy should fall into the hands of the rebel authorities, and he would not be relieved from the obligation of his bonds. To this ruling an exception was taken, and we are called upon to decide upon its legality.

This case brings up squarely the question whether the forcible seizure, by the rebel authorities, of public moneys in the hands of loyal government agents, against their will, and without their fault or negligence, is or is not a sufficient discharge from the obligations of their official bonds. This precise question has not as yet been decided by this court. As the Rebellion has been held to have been a public war, the question may be stated in a more general form, as follows: Is the act of a public enemy in forcibly seizing or destroying property of the government in the hands of a public officer, against his will, and without his fault, a discharge of his obligation to keep such property safely, and of his official bond, given to secure the faithful performance of that duty, and to have the property forthcoming when required?

of courts having the custody. of property of suitors are bailees, and *liable only for 343*] the exercise of good faith and reasonable diligence, and not responsible for loss occurring without their fault or negligence. Story, Bail. § 620. Trustees are only bound to exercise the same care and solicitude with regard to the trust property which they would exercise with regard to their own. Equity will not exact more of them. Ibid. Lewin, Trusts, 332, 3d ed. They are not liable for a loss by theft without their fault. Ibid. But this exemption ceases when they mix the trust money with their own, whereby it loses its identity, and they become mere debtors. Ibid. and 2 Story, Eq. Jur. §§ 1268, 1269, 1270; and see 2 Spence, Eq. Jur. 917, 921, 933, 937; Wren v. Kirton, 11 Ves. 381; Utica Ins. Co. v. Lynch, 11 Paige, 520. Receivers, appointed by the court, though held to a stricter accountability than trustees, on account of their compensation, are nevertheless not liable for a loss without their fault; and they are entitled to manage the property and transact the business in their hands in the usual and accustomed way. Knight v. Ld. Plimouth, 3 Atk. 480; Rowth v. Howell, 3 Ves. 566; Lewin, Trusts, 332 (3d ed.); Edwards, Rec. 573-599; White v. Baugh, 3 Cl. & Fin. 44. A marshal appointed by a court of admiralty to take care of a ship

342*] *The question is thus stated in its double aspect, namely: first, in regard to the obligation arising from official duty; and, secondly, in regard to that arising from the bond, because the condition of the latter is twofold—and cargo is responsible only for a prudent that the principal shall faithfully discharge his official duties and that he shall pay the moneys of the government that may come into his hands as and when it shall be demanded of him. It is contended that the latter branch of the condition has a more stringent effect than the former, and creates an obligation to pay, at all events, all public money received.

That overruling force, arising from inevitable necessity or the act of a public enemy, is a sufficient answer for the loss of public property when the question is considered in reference to an officer's obligation arising merely from his appointment, and aside from such a bond as exists in this case, seems almost self-evident. If it is not, then every military commander who ever lost a battle, or was obliged to surrender his ship or fort, or other public property, added a civil obligation to his military misfortune. And as it regards this question, it is difficult to perceive any distinction between the loss of one kind of property and another. If the property belongs to the government, the loss falls on the government; if it belongs to individuals, it falls on them.

The general rule of official obligations, as imposed by law, is that the officer shall perform the duties of his office honestly, faithfully, and to the best of his ability. This is the substance of all official oaths. In ordinary cases, to expect more than this would deter upright and responsible men from taking office. This is substantially the rule by which the common law measures the responsibility of those whose official duties require them to have the custody of property, public or private. If in any case a more stringent obligation is desirable, it must be prescribed by statute or exacted by express stipulation.

The ordinary rule will be found illustrated by a number of analogous cases.

It is laid down by Justice Story that officers

[ocr errors]

and honest execution of his commission. The Rendsberg, 6 Rob. 142. "Every man," says Sir William Scott, "who undertakes a commission incurs all the responsibility that belongs to a prudent and honest execution of that commission. Then the question comes: what is a prudent and honest execution of that commission? The fair performance of the duties that belong to it. He must provide a competent number of persons to guard the property; having so done he has discharged his responsibility, unless he can be affected with fraud, or negligence amounting in legal understanding to fraud." The Rendsberg, 6 Rob. 154; Burke v. Trevitt, 1 Mass. 96, 100. A postmaster is bound to exercise due diligence and nothing more, in the care of matter deposited in the post office. He is not liable for a loss happening without his fault or negligence. Soon after the * or- [*344 ganization of the government post it was attempted to charge the Postmaster-General to the same extent as the common carriers who had previously carried the mails; and the question was elaborately argued in the great case of Lane v. Cotton et al. 1 Ld. Raym. 646, and Lord Ch. Justice Holt strenuously contended for that view; but it was decided that the postmaster was only liable for his own negligence; and this case was followed by Ld. Mansfield and the whole court, three quarters of a century later, in the case of Whitfield v. Le Despencer, Cowp. 754; Story, Bail.§ 463; Dunlop v. Munroe, 7 Cranch, 242.

In certain cases it is true, a more stringent accountability is exacted; as in the case of a sheriff, in reference to prisoners held by him in custody, where the law puts the whole power of the county at his disposal, and makes him liable for an escape in all cases, except where it is caused by an act of God or the public enemy. 33 Hen. VI., p. 1; Brooke's Abridg. Dette, 22; Dalton, Sheriff, 485; Watson, Sheriffs, 140. The

exception which thus qualifies the severest exaction of official responsibility known at the common law is worthy of particular notice. The reason for applying so severe a rule in cases of escape is probably founded in motives of public safety. Chief Justice Gibson, in Wheeler v. Hambright, 9 Serg. & R. 396, says: "The strictness of the law in this respect arises from public policy." Lord Chief Justice Holt, in his dissenting opinion in Lane v. Cotton, 1 Ld. Raym. 646, also held that the sheriff was responsible in the same strict manner for goods seized in execution; but he cited no authority for the opinion, and the general rule of respon-officer charged with the safe keeping, transfer sibility is certainly much short of that.

their possession or custody, till ordered by the proper department or officer to be transferred or paid out; and where such orders for transfer or payment are received faithfully and promptly to make the same as directed. 9 Stat. at L. 69, § 9. To obviate all excuse for casual losses, it is provided that they shall be allowed, under the direction of the Secretary of the Treasury, all necessary additional expenses for clerks, fireproof chests or vaults, or other necessary expenses of safe keeping, transferring, and disbursing said moneys. 9 Stat. at L. § 13. And it is expressly made embezzlement and a felony, for an and disbursement of the public moneys, to conThe basis of the common-law rule is founded vert them to his own use, or to use them in on the doctrine of bailment. A public officer any way whatever, or to loan them, deposit having property in his custody in his official them in bank, or to exchange them for other capacity is a bailee; and the rules which grow funds except as ordered by the proper departout of that relation are held to govern the case. ment or officer. 9 Stat. at L. § 16. Every reBut the legislature can, undoubtedly, at its ceiver of public money is required to render his 345] pleasure change the common-law rule of accounts quarter-yearly to the proper accountresponsibility. And with regard to the public ing officers of the treasury, with the vouchers moneys, as they often accumulate in large sums necessary to the prompt settlement thereof, in the hands of collectors, receivers, and depos- within three months after the expiration of each itaries, and as they are susceptible of being em-quarter, subject, however, to the control of the bezzled and privately used without detection, proper department. 3 Stat. at L. 723, § 2. and are often difficult of identification, legisla- Besides this, all such officers are required to tion is frequently adopted for the purpose of give bonds with sufficient sureties for the due holding such officers to a very strict accounta-discharge of all these duties. 1 Stat. at L. 705; bility. And in some cases they are spoken of 2 Stat. at L. 75; 9 Stat. at L. 60, 61, etc. And as though they were absolute debtors for and upon making default and being sued, prompt not simply custodians of the money in their judgment is directed to be given, and no claim hands. In New York, in the case of Muzzy v. for a credit is to be allowed unless it has first Shattuck, 1 Denio, 233, the court, after a care-been presented to the accounting officers of the ful examination of the statutory provisions re- Treasury for examination and disallowed, or specting the duties and liabilities of a town col-unless it be shown that the vouchers could not lector, came to the conclusion (contrary to its be procured for that purpose, by reason of abprevious decision in The Supervisors v. Dorr, sence from the country, or some unavoidable 25 Wend. 440) that he was liable as a debtor, accident. 1 Stat. at L. 514, §§ 3, 4. and not merely as a bailee, for the moneys collected by him, and consequently that he could not excuse himself, in an action on his bond, by showing that, without his fault, the money had been stolen from his office.

Where, however, a statute merely prescribes the duties of the officer, as that he shall safely keep money or property received or collected, and shall pay it over when called upon to do so by the proper authority, it cannot, without more, be regarded as enlarging or in any way affecting the degree of his responsibility. The mere prescription of duties has nothing to do with the question as to what shall constitute the rule of responsibility in the discharge of those duties, or a legal excuse for the nonperformance of them, or a discharge from their obligation. The common law which is common reason, prescribes that; and statutes in subordination to their terms are to be construed agreeably to the rules of the common law. Bac. Abr. tit. Statute, I., 4.

These provisions show that it is the manifest policy of the *law to hold all collectors, [*347 receivers and depositaries of the public money to a very strict accountability. The legislative anxiety on the subject culminates in requiring them to enter into bond with sufficient sureties for the performance of their duties, and in imposing criminal sanctions for the unauthorized use of the moneys. Whatever duty can be inferred from this course of legislation is justly exacted from the officers. No ordinary excuse can be allowed for the non-production of the money committed to their hands. Still they are nothing but bailees. To call them anything else, when they are expressly forbidden to touch or use the public money except as directed, would be an abuse of terms. But they are special bailees, subject to special obligations. It is evident that the ordinary law of bailment cannot be invoked to determine the degree of their responsibility. This is placed on a new basis. To the extent of the amount of their offiThe acts of Congress with respect to the du cial bonds, it is fixed by special contract; and ties of collectors, receivers and depositaries of the policy of the law as to their general responpublic moneys, it must be conceded, manifest sibility for amounts not covered by such bonds great anxiety for the due and faithful discharge may be fairly presumed to be the same. In the by these officers of their responsible duties, and leading case of The United States v. Prescott, 346*1 *for the safety and payment of the mon- 3 How. 587 (which was an action on a similar eys which may come to their hands. They are bond to that now under consideration), the expressly required to keep safely, without loan-court say: "This is not a case of bailment, and ing, using, depositing in banks, or exchanging consequently the law of bailment does not apfor other funds than as specially allowed by law, ply to it. The liability of the defendant, Presall the public money collected by them, or in cott, arises out of his official bond, and the prin

ciples which are founded on public policy." After reciting the condition of the bond, the court adds, with a greater degree of generality, we think, than the case before it required, "The obligation to keep safely the public money is absolute, without any condition, express or implied; and nothing but the payment of it, when required, can discharge the bond."

This broad language would seem to indicate an opinion that the bond made the receiver and his sureties liable at all events, as now contended for by the government. But that case was one in which the defense set up was that the money was stolen, and a much more limited 348*] responsibility than *that indicated by the above language would have sufficed to render that defense nugatory. And as the money in the hands of a receiver is not his; as he is only custodian of it; it would seem to be going very far to say that his engagement to have it forth coming was so absolute as to be qualified by no condition whatever, not even a condition implied in law. Suppose an earthquake should swallow up the building and safe containing the money, is there no condition implied in the law by which to exonerate the receiver from responsibility?

We do not question the doctrine so strongly urged by the counsel for the government, that performance of an express contract is not excused by reason of anything occurring after the contract was made, though unforeseen by the contracting party, and though beyond his control-with the qualification, however, that the thing to be done does not become physically impossible; as, to cultivate an island which has sunk in the sea. It was thus decided in the leading case of Paradine v. Jane, Aleyn, 26; Met. Cont. 212. The law on this subject is well stated by Sergeant Williams, Walton v. Waterhouse, 2 Saund. 422, n.,where he says: "When the law creates a duty, and the party is disabled to perform it without any default of him, and he has no remedy over, the law will excuse him; as in waste, if a house be destroyed by tempest, or by enemies, the lessee is excused; so, in escape, if a prison be destroyed by tempest or enemies, the jailer is excused. But where the party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract."

of

bility. They all concur in establishing one point, however, of much importance, that a bond with an unqualified condition to account for and pay over public moneys enlarges the implied obligation of the receiving officer, and deprives him of defenses which are available to an ordinary bailee; but they do not go the length of deciding that he thereby becomes liable at all events; although expressions looking in that direction, but not called for by the judgment, may have been used.

The case of United States v. Prescott, 3 How. 587, has already been sufficiently adverted to. The next, in order of time, was that of Muzzy v. Shattuck, 1 Den. 233, which was decided the same year, 1845, and in which the supreme court of New York construed the statutes of that state as making the town collector a debtor for the amount of taxes to be collected by him, and held him liable on his bond notwithstanding the money was stolen. Here again the result arrived at was correct; but the reasoning by which it was attained may be fairly questioned. The statutes of the state, however, may have justified the view which was taken in that case.

The next case is that of The Commonwealth v. Comly, 3 Pa. St. 372, decided in 1846. That was an action on the bond of a collector of tolls, and the same defense (of theft) was interposed. Chief Justice Gibson refers to the case of U. S. v. Prescott, supra, and remarks, that "the responsibility of a public receiver is determined not by the law of bailment, which is called in to supply the place of a special agreement where there is none, but by the condition of his bond." So in the case of The State v. Harper, 6 Ohio St. 607, which was an action on the official bond of a county treasurer, conditioned for the payment of all moneys that should come to his hands for state, *county [*350 or township purposes; and larceny of the money being pleaded, the court say: "By accepting the office, the treasurer assumes upon himself the duty of receiving and safely keeping the public money, and of paying it out according to law. His bond is a contract that he will not fail, upon any account, to do these acts;" and the defense of larceny was overruled.

It is unnecessary to examine the cases further in detail. It appears from them all (except, perhaps, the New York case) that the offiIt is contended that the bond, in this case, cial bond is regarded as laying the foundation has the effect of such a special contract, and of a more stringent responsibility upon collectseveral cases of action on official bonds have ors and receivers of public moneys. It is rebeen cited to support the proposition. Those ferred to as a special contract, by which they principally relied on are the cases of United assume additional obligations with regard to States v. Prescott, 3 How. 587, just cited; Muzzy the safe keeping and payment of those moneys, v. Shattuck, 1 Den. 233; Commonwealth v. and as an indication of the policy of the law Comly, 3 Pa. St. 372; The State v. Harper, 6 with regard to the nature of their responsibilOhio St. 607, and the recent cases ity. But, as before remarked, the decisions 349*] *Dashiel, Keehler, and Boyden, in this themselves do not go the length of making court. It must be conceded that the language the contrary, in the last reported case on the them liable in cases of overruling necessity. On used by the court, not only in the case already subject, that of Bevens v. United States, 13 referred to, but in some of the other cases Wall. 56,20 L. ed. 531, Mr. Justice Strong, delivcited, seems to favor the rule contended for. ering the opinion of this court, says: "It may But in none of them was the defense of over- be a grave question whether the forcible takruling necessity interposed. They were all ing of money belonging to the United States, cases of alleged theft or robbery, or some other from the possession of one of her officers or cause of loss, which would have been insuffi-agents lawfully holding it, by a government of cient to exonerate a common carrier from lia- paramount force, which at the time was usurn.

« SebelumnyaLanjutkan »