ing the authority of the rightful government, I to the execution of the bond, there is but one and compelling obedience to itself exclusively ground on which the sureties could be held anthroughout a state, would not work a dis-swerable to the United States, and that is the charge of such officers or agents, if they were assumption that he still held the money in entirely free from fault, though they had given bank or otherwise. If still in his hands, he bond to pay the money to the United States." was up to that time bailee of the government; These observations show that the particular but on the contrary hypothesis he had become question raised in this case has been reserved a debtor or defaulter to the government, and by the court after its most mature considera- his offense was already consummated." That tion of the subject.. is, as custodian of the money he is bailee of the government-not a debtor. What makes him a debtor or defaulter is the very question at issue. When he becomes such, then he and his sureties are liable until the amount is paid, as we held in the late case of Bevens, before referred to. Until then, neither he nor they are liable on the bond.

So much stress has, in almost every case, been laid upon the bond as forming, either directly or indirectly, the basis of a new rule of responsibility, that it seems especially important to ascertain what are the legal obligations 351*] that spring from such an instrument. The learned judges in the great generality of the remarks made in some of the cases referred to, with regard to the liability of a receiving officer, and especially of his sureties, by virtue of his bond, have evidently overlooked what we conceive to be a very important and vital distinction between an absolute agreement to do a thing and a condition to do the same thing, inserted in a bond. In the latter case the obligor, in order to avoid the forfeiture of his obligation, is not bound at all events to perform the condition, but is excused from its performance when prevented by the law or by an overruling necessity. And this distinction, we think, affords a solution to the question involved in this case.

The following extract from Coke on Littleton expresses the law on this subject, which is repeated by Blackstone and other modern authorities: "In all cases," says Lord Coke, "where a condition of a bond, recognizance, etc., is possible at the time of making of the condition, and before the same can be performed, the condition becomes impossible by the act of God, or of the law, or of the obligee, etc., there the obligation, etc., is saved. But if the condition of a bond, etc., be impossible at the time of the making of the condition, the obligation, etc., is single." Co. Litt. 206 (a); 2 Thomas' Co. Litt. 22; Shep. Touch. 372; 2 Bl. Com. 340, 341; Bac. Abr. tit. Condition (N), (Q); Com. Dig. tit. Condition, D, 1.

We think that the case is within the law as laid down by Lord Coke, and that the receiver, and especially his sureties, are entitled to the benefit of it; and that no rule of public policy requires on officer to account for moneys which have been destroyed by an overruling necessity, or taken from him by a public enemy, without any default or neglect on his part. The judgment is, therefore, affirmed.

Mr. Justice Miller dissenting:

The case of United States v. Prescott, 3 How. 578, arose on a certificate of division of opinion of the circuit judges, on the question whether "the felonious taking and carrying away the public moneys in the custody of a receiver of public moneys, without any fault or [*353 negligence on his part, discharged him and his sureties, and may be set up as a defense to an action on his official bond.'

This question the court, without dissent, answered in the negative. The ruling was based, in the opinion of the court, on two grounds, clearly stated:

ever false or simulated it might be. And it was thought better to hold the party to the absolute payment or delivery of the money, than to open the door to such frauds.

1. That the receiver, or other depositary of public funds in such cases, could not avail himself of the ordinary circumstances which would discharge a bailee for hire, by reason of an imperative principle of public policy. This policy was founded in the danger of collusive defenses which the depositary could easily manage so as Of course the above rule does not apply to a to make a strong case, and which the governmoney bond given for a debt, where the condiment could have no means of rebutting, howtion is simply for the payment of a less sum of money than the penalty; for there, as the books say, the condition is of the same nature as the obligation itself, and not collateral to it. 1 Roll. Abr. 448; Viner's Abr., Condition, (D. e.); Panel v. Nevel, Dyer, 150 (a). The bonding in suit is not such a money bond. The condition of an official bond is collateral to the obligation or penalty; it is not based on a prior debt, nor is it evidence of a debt; and the duty secured thereby does not become a debt until default be made on the part of the principal. 352*] Until then, as we have seen, he is a bailee, though a bailee resting under special obligations. The condition of his bond is, not to pay a debt, but to perform a duty about and respecting certain specific property which is not his, and which he cannot use for his own purposes. In the case of Farrar v. United States, 5 Pet. 373, the question being whether sureties were liable for defaults made prior to the giving. of the bond, the court say: "For any sums paid to Rector (the principal) prior

2. That the depositary and his sureties, havgiven a bond, the condition of which was an express contract to pay or deliver, they were bound by that contract, according to the rigid terms which the law annexes to such covenants or promises.

In the subsequent case of United States v. Morgan, 11 How. 154, the same question is decided on precisely the same grounds.

The case of United States v. Dashiel, 4 Wall. 182, 18 L. ed. 319, was decided with merely a reference to the doctrine of the two cases just cited.

The case of United States v. Keehler, 9 Wall. 83, 19 L. ed. 574, asserts the same doctrine and applies it to an action on a postmaster's bond, who has paid the money to an agent of the Confederate States on an order made by the insurrectionary government directing him to do so.

I

Also dissenting, .Mr. Justice Swayne and Mr. Justice Strong.

WILLIAM H. KIMBALL et al., Appts.,

v.

JAMES J. WEST.

(Sec S. C. 15 Wall. 377-379.)

When the case of United States v. Dashiel | threatened to do them. Such excuse, easily tame before the court I was not satisfied with made, easily proved, hard to be confuted, is, in the doctrine of the former cases. I do not be my judgment, much weaker than that of theft lieve now that on sound principle the bond admitted to be without fault or fraud on the should be construed to extend the obligation of part of the depositary. the depositary beyond what the law imposes upon him, though it may contain words [#354 of express promise to pay over the money. think the true construction of such a promise is to pay when the law would require it of the receiver, if no bond had been given; the object of taking the bond being to obtain sureties for the performance of that obligation. Nor do I believe that, prior to these decisions, there was any principle of public policy recognized by the courts, or imposed by the law, which made a depositary of the public money liable for it, when it had been lost or destroyed without any fault of negligence or fraud on his part, and when he had faithfully discharged his duty in regard to its custody and safe keeping. Such were my opinions when, as a member of the court, I took part in the decision of United States v. Dashiel. But either no other judge shared those opinions, or, if anyone did, he felt bound by the two previous decisions. I therefore acquiesced.

I understand the opinion in the present case to be directed to two points: 1. Mainly to undermining the ground on which the prior decisions on this subject rest. And, 2. To establishing a distinction between this case and those.

Action on covenant-rescission of contracttender of title, when sufficient before final hearing.

1. When a contract for sale of lands is fully executed by a conveyance with a covenant of warremedy for a defect of title is by an action on the ranty and the payment of the purchase money, the

covenant.

2. A party declining to pursue that remedy, and applying to a court of equity to rescind the entire contract, must show very clearly that such a rescission is necessary to the ends of justice.

3. If, therefore, on or before the final hearing, the vendor makes and tenders a perfect title, no rescission will be decreed, unless the vendee has suffered great loss or injury by the delay, and not then, if such loss or injury can be fairly compensated by damages.

A

[No. 72.]

Submitted Dec. 16, 1872. Decided Jan. 6, 1873.
PPEAL from the Circuit Court of the Unit-
ed States for the District of Missouri.
The history and facts of the case, which
arose in the court below, fully appear in the
opinion of the court.

Messrs. R. T. Merrick, Glover & Shepley, for appellants:

The complainants having rescinded the contract, as they were entitled to do by the filing of their bill, an entire rescission of the contract should have been decreed, or at least comdis-pensation for the portion included in the ejectment suit.

As regards the first point. If the opinion or judgment of the court were based upon a frank overruling of those cases, and an abandonment of the doctrines on which they rest, I should acquiesce in that, though I did not in conference approve the judgment. But if the opinion of the court is to be construed as permitting those cases to stand as law while the principles on which alone they can be defended are weakened by its argument, I must express my sent from that view of the case. And still more strongly do I dissent from the distinction attempted to be drawn between this case and those. If a theft or a robbery in time of profound peace can be so easily simulated, and the collusion can be so successful that public policy requires that no such defense be listened to, I leave it to any ordinary understanding to say how much more easily the pretense of force by the rebels can be arranged and proved by consenting parties, and how much more difficult for the government to disprove such collusive arrangements than in the other case men

tioned.

2

Bk. v. Hagner, 1 Pet. 455; Kleine v. Catara, Gall. 61; Cooper v. Brown, 2 McLean, 495; Taylor v. Longworth, 14 Pet. 174.

Messrs. James O. Broadhead and Dryden & Dryden, for appellee:

Complainants have never been disturbed by this adverse title, nor is it shown that they have been in anywise injured thereby.

The defendant being able at the hearing to give the complainants a good title, and offering to do so, it was the duty of the court to refuse as it did, to rescind the sale.

Edwards v. McLeay, Coop. Cas. in Eq. 308; Fierce v. Nichols, 1 Paige, 245; Seymour v. Delancey, 3 Cow. 445; Fletcher v. Wilson, 1 Sm. & M. Ch. 376; Frost v. Brunson, 6 Yerg. 36, Catron, J.

Mr. Justice Miller delivered the opinion of the court:

355*] *The Congress of the United States, recognizing the law as laid down in the former decisions of this court, provided by the act of March 3, 1865, for such cases of hardship as it thought worthy of relief. Unless, therefore, the doctrine be reviewed and placed on such basis of sound principle as would do justice in all cases. I see no reason to make exThe plaintiffs brought their bill in chancery, ceptions in favor of persons who, like the pres- to rescind a contract for the sale of land in ent defendant, holding by virtue of his office which they were purchasers from defendant. the money of the United States, delivered it The contract was an executed one, the defendinto the hands of its enemies, without the ap-ant having conveyed the land, about four hunplication of the slightest personal violence, or dred acres in quantity, to plaintiff's agent; a moment's imprisonment, or any attempt to who had conveyed to them, and the purchase seize his person or property, on the ground money had been paid. that they were able to do these things and

Headnotes by Mr. Justice MILLER.

The deed of defendant contained a clause of cause pending in this court to any party claiming under such laws. general warranty.

and because of their dignity as equal members of the Union. The reasons for preference do not apply to municipal corporations, more than to railroad and many other corporations. Nothing is shown to us which requires the advancement of the cause on account of special and peculiar circumstances.

The motion, therefore, must be denied.

ROBERT H. MONTGOMERY, Appt.,

v.

UNITED STATES.

(See S. C. 15 Wall. 395-401.)

United States v. Lane, 8 Wall. 185, 19 L. ed. 445; U. S. v. Grossmayer, 9 Wall. 72, 19 L. ed. 627; Kershaw v. Kelsey, 100 Mass. 561.

But by the occupation of New Orleans the relation of principal and agent, that had previously existed between Burbridge and Johnson, was dissolved, and Burbridge had no au thority to make any sale of Johnson's property, and no contract made by him in relation thereto could pass any title to the purchaser.

Mr. Justice Strong delivered the opinion of the court:

Whether the contract under which the appel

Purchase from enemy-sale by agent, when lant claims to have become the owner of the

sale by enemy.

1. Under an attempted purchase from an enemy of enemy's property during the war, in direct violation not only of the laws of war, but also in violation of the acts of Congress, no right can be acquired.

2. Where the sale was negotiated by agents of the enemy, living outside of the enemy's territory, it was not the less his act because it was done by those acting under his authority.

3. Although the agents had a lien upon the property for advances made by them, and had also a power to sell for the repayment of their ad

vances, the sale was still a sale by the enemy.

4. The agents might have sold their lien, or the debt secured by it; and had they done so, the sale would have involved no trading with the enemy. [No. 73.]

Argued Dec. 17, 1872. Decided Jan. 6, 1873.

A1

PPEAL from the Court of Claims.

The petition in this case was filed in the court below by the appellant, to recover for certain property seized and sold under authority of a sequestration commission, organized by order of Maj. Gen. Butler. Judgment having been given for the defendants, the claimant took an appeal to this court.

The case is further stated by the court. Mr. T. J. D. Fuller, for appellant: Johnson was not a party to the sale. His assent or dissent would not in any wise affect the interest of the parties to it.

Burbridge & Co. were at all events the special owners of the property, if not general owners. If the property was of greater value than the amount of their lien, they had the power to sell, and would at best be only the trustees of Johnson, for any surplus over and above the sum necessary to discharge their lien.

Upon the question of the authority of Burbridge & Co. to sell the sugars, the following cases are cited:

sugar, molasses, and rum was so far executed
that, without more, it would have passed the
property, had it been legal, it is unnecessary
to consider; for we are of opinion that, whether
executed or executory, it was illegal and void.
It was a clear case of trading with a pub-
lic enemy. The subject of the contract was
personal property within the Confederate lines.
It was a crop at the time on the plantation of
Leo L. Johnson, in the parish of La Fourche,
near La Fourche Crossings. It belonged also to
Johnson, who was then domiciled in the
enemy's territory, and who was himself ar
enemy. This is expressly stated in the contract
itself.
founded upon an attempted purchase, during
The appellant's right, therefore, is
the war, from an enemy, of enemy's property,
in direct violation not only of the laws which
always prevail in a state of war, but also in
violation of the acts of Congress. It is vain to
contend that any right can be acquired under
such a contract.

It is true the sale was negotiated by agents of Johnson, living outside of the enemy's territory, but it was not the less his act because it was done by those acting under his *au- [*400 thority. Nothing is clearer, says Pres. Woolsey, than that all commercial transactions of whatever kind (except ransom contracts) with the subjects or in the territory of the enemy, whether direct or indirect, as through an agent or partner who is neutral, are illegal and void. Woolsey's International Law, § 117. This is not inconsistent with the doctrine that a resident in the territory of one belligerent may have in times of war an agent residing in the territory of the other belligerent, to whom his debtor may pay the debt, or deliver property in discharge of it. Such payments or deliveries involve no intercourse between enemies. The present case exhibits a transaction not wholly within enemy's territory, but a sale from an enemy to a friend. If that can be made through an agent, then the rule which prohibits commercial intercourse is a mere regulation of the mode of trade. It may be evaded by simply The contract was void. It was a sale of prop- maintaining an agency in the enemy's terrierty in the enemy's country, by the agent of an tory. In this way every pound of cotton or of enemy, to an alien friend residing in this coun- sugar might have been purchased by Northern try. Burbridge did not pretend to sell the sugar traders from those engaged in the Rebellion. except as Johnson's agent; and it is, therefore, Perhaps the rule is stated too broadly in Woolunnecessary to consider whether the sale would sey's Commentaries, and in many elementary have been valid if the sugar had been the prop-books, but it is certain that "every kind of erty of Burbridge. He sold it simply as agent trading or commercial dealing or intercourse, of Johnson, and his act was, therefore, John-whether by transmission of money or of goods, son's act. The sale, therefore, was an act of or orders for the delivery of either between two commercial intercourse between enemies, and countries (at war), directly or indirectly, or was illegal and void. through the intervention of third persons or

Mitchell v. Winslow, 2 Story, 644; Simond v. Hibbert, 1 R. & M. 719; Sullivan v. Tuck, 1 Md. Dec. 59.

The general or special owner may maintain trover for the goods. Ingersoll v. Van Bokkelin, 7 Cow. 670.

Mr. C. H. Hill, for appellee:

478-499

partnerships, or by contracts in any form look-
ing to or involving such transmissions," are
prohibited. Kershaw v. Kelsey, 100 Mass. 561.
The contract in this case contemplated the de-
livery of the sugar, molasses and rum at New
Orleans, then within the Federal lines. There,
on its being weighed and measured, payment
was to be made to Johnson's agents. If this be
allowed, the enemy is benefited and his prop-
erty is protected from seizure or confiscation.
It has been argued that because Burbridge
& Co., the agents, had a lien upon the property
for advances made by them, and had also a
power to sell for the repayment of their ad-
vances, the sale which was made ought not to
401*] be regarded as a sale by Johnson. Yet
the only authority they had to sell at all re-
sulted either from express power given to them
by the owner, or from the relation to him in
which they then stood. They might have sold
their lien, or the debt secured by it; and had
they done so, the sale would have involved no
trading with the enemy. But they undertook
to sell Johnson's property, describing it as
such in the instrument of sale, and describing
themselves as Johnson's agents. Very clearly,
in effect, the parties to the transaction were
the appellant and a public enemy.

For this reason the judgment is affirmed.

CHARLES G. MILLER et al., Plffs. in Err.,

V.

THE PEOPLE OF THE STATE OF NEW
YORK.

case that this position should be maintained. We do not regard the act of 1867 as an exercise of a power to alter the charter. But as this is the only ground on which the defendants in error attempt to stand, we undertake to maintain that no such power exists.

It is true that the grantor has endeavored to reserve such a power over it.

The Constitution of New York, established in 1846, ordains "Corporations may be formed "All under general laws, but shall not be created by special act, except" in certain cases. general laws and special acts, passed pursuant to this section, may be altered from time to "The time, or repealed." Art. 8, § 1.

The Revised Statutes, 1830, enact: charter of every corporation that shall hereafter be granted by the legislature, shall be subject to alteration, suspension and repeal in the discretion of the legislature." 1 R. S. 600, § 8.

The general railroad act, section 1, subjects all corporations organized under it to the provisions contained in certain sections of the Revised Statutes, of which that last quoted is one.

We do not deny that, by virtue of one or more of these provisions, or at all events of section 48 of the general railroad act, providing that "The legislature may at any time annul or dissolve any corporation formed under it,” the grantor has incorporated in its grant a power of revocation.

But we insist that, whatever it may have intended, it could not, nor could both parties together, incorporate in it a power of indefinite (See 8. C. "Miller v. The State," 15 Wall. 478-alteration, without the consent of the grantee. State power to alter or repeal a charter-gen-power to substitute another contract for it? eral law-effect of incorporated in charter -state constitution-city charter.

499.)

1. The power to alter, modify or repeal an act of incorporation, may be reserved to the state by a general law applicable to all acts of incorporation, in which case the power may be exercised whenever the charter was granted subsequently to the passage of the general law.

2. Where such a provision is incorporated in the charter, it qualifies the grant, and the subsequent

act

exercise of that reserved power is not an
within the prohibition of the Constitution.
3. The reservation is equally valid and effectual

If it exists in the Constitution of the state, or in
a prior general law.

4. These principles applied to an amendatory act authorizing a city to elect seven directors of a railroad company instead of four, as theretofore provided.

[No. 46.]

Argued Nov. 15, 1872. Decided Jan. 6, 1873.
N ERROR to the Court of Appeals of the

Suit in the nature of a quo warranto was brought by the defendants in error in the supreme court of New York, to try the title of the plaintiff's in error to the office of directors of the Rochester & Genesee River Valley R. Co. Judgment having been given for the plaintiff's successively by the special and general terms of said court, and by the court of appeals of that state, the defendants sued out this writ of error.

The case is fully stated by the court.
Messrs. Theodore Bacon and Henry R.
Selden, for plaintiffs in error:

This contract, once complete, was unalterable
by either party without the consent of the other.
We do not consider it at all necessary to our

What is a power to alter the contract, but a

"If the assent of all the parties to be bound by a contract be of its essence, how is it possible that a new contract, substituted for one engrafted on another without such assent, should not violate the old?"

Per Washington, J., Dartmouth Coll. Cases, 4 Wheat. 518.

It is answered that the assent which is ad

mitted to be necessary is given in advance, in accepting the original grant; that the grantees then agreed at any time to accept any different grant on any different terms, at the will of the grantor.

But such presumed assent is impossible. One cannot consent to that which is utterly unknown and unascertainable.

The state and the citizen in such a case are equal contracting parties.

Bk. v. Billings, 4 Pet. 518; Fletcher v. Peck, 6 Cranch, 87; Green v. Biddle, 8 Wheat. 1.

The citizen cannot, therefore, by stipulation, give the state a power over their contract, which the state might not in the same way give the citizen. What would the courts say to a stipulation in a charter, that the corporators might at any time alter, amend, or surrender it? They would hold the right of surrender valid; and the right of alteration to extend only to the proposing of amendments for the acceptance of the state.

no more force the "The legislature can trustees to accept an alteration or amendment of their charter, than they could have forced them to accept the original charter. Sage v. Dillard, 15 B. Mon, 340,

82 U. S