§ 62. The continental congress having in 1776 and 1777 passed resolves to borrow money on loan-office certificates, and that a loan office be established in and a commissioner appointed by each of the states respectively, it was held that a person would be presumed to have been the loan commissioner who appeared to have come into possession of certificates from the governor of his state, and to have issued them for value, the interest on such certificates, and both principal and interest of others similar, having been paid by the treasurer of the United States, while the transactions were recent, without objection. Ward v. United States,* 19 Law Rep., 621.

§ 63. The general principle is "that the public acts of public officers, purporting to be exercised in an official capacity and by public authority, shall not be presumed to be usurped; but that a legitimate authority had been previously conferred or subsequently ratified." This principle has been applied to Spanish titles, but the reasons which grew out of the powers of the Spanish monarch, and his vicegerents in the new world, which called for the application of the principle, do not exist in regard to the territorial or departmental governors of California and the relations which subsisted between them and the government of Mexico. Their power to grant even vacant lands was restricted, and could be legally exercised only when in conformity with the provisions of the colonization decree of 1824 and the regulations of 1828. Their power to alienate the cattle and other fruits of labor, belonging to the neophytes of missions, is not matter of presumption. Den v. Hill, McAl., 480.

§ 64. A person cannot, by mere declarations made subsequently, invalidate his own deed or official act. United States v. Collins, 1 Woods, 499.

§ 65. Where an officer, with the creditor's consent, makes a valuation of goods without taking an inventory, such valuation is to be considered prima facie as fair and just, and the burden of proof is on the officer to establish the contrary; but it does not operate as an estoppel. Pierce v. Strickland, 2 Story, 292.

§ 66. Where a public officer is charged with conspiracy or fraud in the discharge of his duties, the presumption of law in favor of his innocence will prevail against circumstances of suspicion; but it may be overcome by proof of previous delinquencies of a similar nature. Bottomley v. United States, 1 Story, 135.

§ 67. Loss of money or property.- Where a loss of money by an assistant paymaster has been clearly shown to be without his fault or neglect, and without the slightest suspicion of fraud or collusion, but the amount of the loss was not positively proven, and could only be by the testimony of the claimant himself, but circumstances concurred in fixing the amount, the officer was held to be entitled to relief, under the disbursing officers' act. Clark v. United States,* 11 Ct. Cl., 698.

§ 68. Where a paymaster had on hand certain money of the United States, which he made into a package, and delivery to an orderly in his office to take to a designated depository where his official deposits were kept, and the package was either stolen from or by said orderly, it was held that the paymaster was at fault, and negligent in intrusting such a sum of money to an orderly, instead of depositing it himself, or sending it by his clerk, and therefore was not entitled to relief under the act of May 9, 1866 (14 Stat. at L., 44; R. S., §§ 1059, 1062). Holman v. United States,* 11 Ct. Cl., 642.

§ 69. Where a paymaster in paying certain accounts drew checks, which his clerk raised in amount, and thus embezzled a sum of money, which the paymaster afterwards paid to the United States, because he had been suspended from duty and his pay and allowances stopped, and was liable to be court-martialed and dismissed the service, held, that the funds were not in his possession or charge, and he did not lose them by capture or otherwise, and that the act of May 9, 1866 (14 Stat. at L., p. 44), only afforded relief against the loss of specific things, and not against loss by forgeries committed by employees or others, for which he had recourse against the forger and the depositary. Held, further, that his application was too late, being made after payment to the government. Hall v. United States,* 9 Ct. Cl., 270.

§ 70. The claimant was a captain of engineers, and in charge of the work for the improvement of the mouth of the Mississippi, and the money appropriated for that purpose was under his control. Having to pay off the hands, and for that purpose to leave New Orleans early in the morning, he drew his check the night before, had it cashed and placed the money in the safe in his office, of which the chief clerk had the key, and directed the clerk to be in the office the next morning when he had to leave by the boat, so that his assistant could get the money. The clerk was in the office when the claimant assumed control, and had borne for three years a good reputation. The safe being broken open and the clerk gone when the money was called for, and the money being taken, the claimant was allowed a credit for the amount under the act of May 9, 1866 (14 Stat. at L., p. 44). Howell v. United States,* 7 Ct. Cl., 512.

71. A paymaster of volunteers, during the war, drew $70,000 to pay troops and put it in his trunk in the room, near the bed, in which he slept. During the night the room was

entered by burglars and the money taken. The officer promptly reported his loss and subsequently a small portion of the money was recovered. It was held that there was no bad faith or dishonest purpose in the case; that the care and diligence exercised were of a high degree, and such as a careful, cautious and prudent man would have exercised in the discharge of a high public trust, or in a matter of private interest; that therefore the money was lost while the petitioner was in the line of his duty, and without his fault or neglect, and that under the act of May 9, 1866 (14 Stat. at L., p. 44), he was entitled to a credit for the same. Malone v. United States,* 5 Ct. Cl., 486.

$ 72. Where money of the government is lost, without any carelessness, neglect or want of caution on the part of the officer in whose custody it was, he is, under the act of congress, entitled to a credit for such amount lost. Whittelsey v. United States,* 5 Ct. Cl., 452. § 73. Where a paymaster in the United States army, without his fault or neglect, was robbed of money of the government in his hands, and the greater part was subsequently recovered, it was held that the act of May 9, 1866 (14 Stat. at L., p. 44), was not confined to losses which had occurred previous to its passage, but was prospective in its operation, and that under it the officer suffering such loss was entitled to a credit for the same, including the reward offered for the capture of the thieves and the recovery of the money. Glenn v. United States,* 4 Ct. Cl., 501.

§ 74. An officer is not allowed credit for money stolen from him, under the act of May 9, 1866 (14 Stat. at L., p. 44), upon his own testimony alone, where there are disinterested parties fully cognizant of the circumstances connected with the loss. Pattee v. United States,* 3 Ct. Cl., 397.

§ 75. Where an officer had failed to pay over public moneys received by him, as required by the acts of congress and treasury regulations, and they were still in his hands when they were seized by the agents of the Confederate States, he is liable to an action on his bond for said money. (The CHIEF JUSTICE and CLIFFORD, J., dissented.) Bevans v. United States, 13 Wall., 56; Halliburton v. United States, 13 Wall., 63. Whether such forcible taking from one entirely free from fault would not work a discharge of such officer though he had given bond, quære. Bevans v. United States, 13 Wall., 56.

§ 76. Where a mandate has issued from the supreme court of the United States to a district court, reversing its judgment, with directions to cause restitution to be made to appellants of what they had been compelled to pay under the decree of the district court, and the marshal had answered to the order of the district court, under the mandate, that he had, pursuant to instructions from the interior department, deposited part of the fund in a bank which had since failed, it was held that if the money had been deposited in the bank, pursuant to instructions from the proper authority, he was exonerated. In that event the proper certificate should be given to the petitioners, and they must be left to seek redress in the appropriate manner. Ex parte Morris, 9 Wall., 605.

77. An officer of the government holding its money or property is not justified in paying to an insurrectionary government, which only demands it by ordinance or draft, but exercises no force or threat of personal violence to himself or property in the enforcement of its illegal orders. United States v. Keehler, 9 Wall., 83.

§ 78. A postmaster at Salem, North Carolina, had in his hands $330 of postoffice money, belonging to the United States, at the breaking out of the rebellion. At the same time the United States was indebted to one Clemmens, a mail contractor in that region, for postal service in a sum exceeding $300. He had been directed to pay money he might have to Clemmens, upon production of proper orders from the postoffice department. After the war broke out he paid the money to Clemmens, upon an order drawn by the postoffice department of the Confederate States, under an act of the Confederate congress. Held, in an action upon his official bond, that this payment constituted no defense to the action. Ibid.

§ 79. A receiver of public moneys was sued on his bond, and in defense to said action offered to prove that he was beset by some person or persons to him unknown, and thrown down, and, against all defense that he could make, was gagged and bound, and the moneys described in the complaint, violently and without his fault taken from him and carried away. It was held that the evidence offered constituted no defense. Boyden v. United States, 13 Wall., 17. § SO. An officer in the army, a commissary of subsistence, had in his possession certain money of the United States, which he disbursed, except a small amount. His vouchers were captured by the enemy together with the remainder of said money. The return of the vouchers being prevented by the unintermitting duty of the officer and his clerk, he was held entitled to a credit under the act of March 9, 1866, for the amount of the captured vouchers and money. Murphy v. United States,* 3 Ct. Cl., 212.

§ 81. An officer in the army, in possession of funds of the government, had locked them up in a chest in the same building where other disbursing officers kept the funds of the United States intrusted to their care. The place was captured by a raiding party of rebels and the

funds were lost. As the claimant had shown that the loss was without his fault or neglect, he was held entitled to a credit with the proper accounting officers, under the act of May 9, 1866, for the sum so lost. Prime v. United States,* 3 Ct. Cl., 209.

$82. Moneys in the hands of a disbursing officer of the United States, deposited with an assistant treasurer of the United States under the act of congress, are none the less moneys of the United States than they were before being deposited. The officer is bound to account for them to his superior officer, but if he shows that he has deposited them with a designated depositary, and not withdrawn them, he does account for them, and such a showing is a complete defense to an action against him by the United States for such moneys. The officer cannot sue the depositary for such money. If he has paid it the second time into the treasury of the United States, that circumstance alone cannot create in favor of plaintiff a right of action which did not exist. Morgan v. Van Dyck,* 11 Int. Rev. Rec., 45.

§ 53. Officers and other persons charged with the safe-keeping, transfer and disbursement of the public moneys are forbidden by law to loan any portion under any circumstances, and every such act is an embezzlement. United States v. Hartwell,* 12 Int. Rev. Rec., 50.

§ 84. The felonious taking and carrying away the public money in the custody of a receiver of public moneys, without any fault or negligence on his part, does not discharge him and his sureties, and cannot be set up as a defense to an action on his official bond. United States v. Prescott, 3 How., 578.

§ 85. Where an appointment to office is irregular — is contrary to law and its policy - this does not absolve the person so appointed from the moral and legal obligation to account for public money which has been placed in his hands in consequence of such appointment. United States v. Maurice, 2 Marsh., 96.

§ 86. Protected by writ.- Where an officer or tribunal possesses jurisdiction over the subject-matter upon which judgment is passed, with power to issue process to enforce the judgment, and the process issued is regular on its face, showing no departure from the law, or defect of jurisdiction over the person or property affected, the process will, in such case, give entire protection to the ministerial officer in its regular enforcement, against any prosecutions by the party aggrieved, although serious errors were committed by the officer or tribunal in reaching the conclusion or judgment on which the process issued. Erskine v. Hohnbach, 14 Wall., 613.

$7. When an officer is directed by the process or order of a court to seize certain specific property described in the writ, he has no discretion, but must seize the property described. And if the court issuing the writ had jurisdiction, in the case before it, to issue that process, and it was a valid process when placed in the officer's hands, and in the execution of it he kept himself strictly within the mandatory clause of the process, then such writ or process is a complete protection to him, not only in the court which issued it, but in all other courts. But where the process directs the officer to levy upon the property of one of the parties to the litigation, sufficient to satisfy the demand, the officer must use his judgment and discretion in ascertaining that the property on which he proposes to levy is the property of the person against whom the writ is directed, and by law subject to be taken under the writ, and as to the quantity necessary to be seized, and he is liable to any person injured by his erroneous action, and the court can afford him no protection against the party injured. Buck t. Colbath, 3 Wall., 334.

§ 88. A federal court will protect an officer in executing its process, and discharge him upon habeas corpus, not only when he is held in state custody under a law which seeks expressly to punish him for executing a law or process of the United States, but also when he is in such custody under a law of the state, applying to all persons equally, where it appears he is justified for the act done, because “done in pursuance of a law of the United States, or of a process of a court or judge of the same." United States v. Jailer of Fayette County, 2 Abb., 265.

§ 89. If a messenger takes goods of another, under a warrant to take possession of the alleged bankrupt's effects, he is liable to the party injured upon his official bond. He may take the goods of the bankrupt, no matter in whose hands he may find them. In re Muller, Deady, 513.

§ 90. An order of a state judge to discharge a debtor from imprisonment, by virtue of an execution from a court of the United States, affords no protection or defense for the sheriff or jailer who discharged him, if the judge in making the orders exceeded his jurisdiction. Thus, where a debtor had been arrested by the marshal under a ca. sa., and afterwards was ordered to be discharged by the judges of a state court upon his application and compliance with the Pennsylvania insolvent law, the sheriff who discharged him was held liable in an action against him for escape. Darst v. Duncan,* 2 Law Rep., 357; 2 Law Rep., 246. § 91. An officer who is charged in a state court with malicious shooting cannot be disVOL. XXIV — 5

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charged on habeas corpus, unless the evidence shows that the shooting was done in order to enable the officer to execute the process in his hands. United States v. Weeden, 2 Flip., 76.

§ 92. When it appears that the officer is actually innocent of the crime imputed, and was faithful in all that he really did, he is not obliged, to entitle him to a discharge upon habeas corpus, to show that he was justified by his process in doing the very thing imputed to him and for which he is in confinement. Ibid.

§ 93. An officer cannot justify under a fi. fa. without producing it. United States v. Baker, 1 Cr. C. C., 268.

$94. It is not necessary that a peace-officer should have a warrant to suppress an affray. United States v. Pignell, 1 Cr. C. C., 310.

95. In an action of trespass against the marshal of the District of Columbia for levying a distress for a militia fine, it is only necessary for him, in his justification, to prove those facts which give jurisdiction to the military court; and that it was regularly constituted and imposed the fine. / Slade v. Minor, 2 Cr. C. C., 139.

§ 96. If the subject-matter is within the jurisdiction of the magistrate, and the execution regular on its face, the officer executing the same cannot be held liable as a trespasser. Smith v. Miles, Hemp., 34.

$97. Must act with care and diligence.- An officer is bound to use that care and diligence in the discharge of his duties that a conscientious and prudent man, acting under a just sense of his obligation, would exercise under the circumstances of the particular case. United States v. Baldridge, 11 Fed. R., 552.

$98. Statutory provisions designed to secure order, system and dispatch in proceedings, and by a disregard of which the rights of parties interested cannot be injuriously affected, are not usually regarded as mandatory, unless accompanied by negative words importing that the acts required shall not be done in any other manner or time than that designated. But when the requisitions prescribed are intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would be injuriously affected, they are not directory but mandatory. The power of the officer in all such cases is limited by the manner and conditions prescribed for its exercise. French v. Edwards, 13 Wall., 506.

§ 99. The general rule of official obligation, 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 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. But the legislature can change the common law rule of responsibility. A bond given by the officer, 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. He is liable in the case of theft or robbery of the funds, but not when they have been destroyed by an overruling necessity, or taken from him by a public enemy, without any fault or neglect on his part. (SWAYNE, MILLER and STRONG, JJ., dissented.) United States v. Thomas, 15 Wall., 337.

§ 100. A ministerial officer, in a case in which it is his duty to act, cannot be made a trespasser. The duties of a collector of internal revenue are ministerial, and where an assessment duly certified is handed to him, he is protected in the collection of the taxes, whether the assessor has acted properly or not. Haffin v. Mason, 15 Wall., 671.

§ 101. Measure of damages.- Where the law requires absolutely a ministerial act to be done by a public officer, and he neglects or refuses to do such act, he may be compelled to respond in damages to the extent of the injury arising from his conduct. A mistake as to his duty and honest intentions will not excuse the offender. Amy v. The Supervisors, 11 Wall., 136.

§ 102. Where an action is brought for an injury done in the discharge of an official duty, the damages are measured generally by the extent of that injury. Bispham v. Taylor,* 2 McL., 408.

§ 103. Where an officer is sued for any official misfeasance, the plaintiff can recover only his actual loss arising therefrom. Pierce v. Strickland, 2 Story, 292.

§ 104. Arrest.—Where an officer, lawfully endeavoring to arrest a person, is set upon and violently resisted by him, and is obliged to take the life of the party resisting, he is held justified. United States v. Jailer of Fayette County, 2 Abb., 265.

§ 105. In arresting a person, an officer should make his purpose known, unless the circumstances are such as to render it obvious. If the warrant is demanded it should be produced. In the case of a known officer, the explanation must follow the arrest, and the exhibition of the warrant after the authority of the officer has been acknowledged, and his power over his prisoner acquiesced in. If the officer is not known as such he should show his authority or warrant before making the arrest. Ibid.

$106. A constable, having a warrant to arrest a man for assault and battery, has a right to break open the door of the offender's dwelling-house to arrest him. United States v. Faw, 1 Cr. C. C., 487.

§ 107. Congress, in passing a law suspending the writ of habeas corpus, may provide that the officer effecting an arrest without legal warrant shall not be liable in an action. It seems that the suspension of the writ itself practically legalizes arrests made in obedience to the order or authority of the officer to whom that power is committed. McCall v. McDowell, Deady, 233.

$108. Under the common law an officer of the law who has legal process in his hands is bound to execute it according to the mandate of the writ. He is authorized to summons as many persons as may be necessary to assist him in the performance of his legal duties. If he is resisted he must overcome such resistance by the use of such force as may be necessary for him to execute his duty. If necessary, the law authorizes him to resort to extreme measures, and if the resisting party is killed in the struggle the homicide is justifiable. A known officer, in making an arrest, is not bound to exhibit his warrant and read it to a defendant before he secures him, if he resists; if no resistance is shown, he should upon demand show his warrant. One who is not a known officer ought to show and read his warrant, if required, but the neglect of this duty does not make the officer a trespasser ab initio, if the party subject to arrest had notice of the warrant and was aware of its contents. If a defendant, without a deadly weapon, or manifestation of excessive violence, makes resistance, an officer is not justified in shooting him; but if he has a deadly weapon and manifests a purpose to use it if arrested, the officer is not bound to wait for him to have an opportunity to do so. If the defendant has ceased his resistance and manifests a willingness to submit, and the officer kills him, he is guilty of manslaughter, and if the blood had time to cool, of murder. An officer has no right to shoot a party attempting to escape, if the warrant is for a misdemeanor; otherwise in cases of felony. If the process is illegal and void on its face, or is against the wrong party, or its execution is attempted out of the district, the officer is not protected. United States v. Rice, 1 Hughes, 550.

§ 109. Individuals must take notice of the powers of government officials. Hawkins v. United States, 6 Otto, 689.

$110. Taking insufficient security.- Under the statute of Indiana providing for the replevy of an execution, a replevin bond operates as a judgment, and must be with one or more sufficient freehold sureties. Of the sufficiency of the sureties the officer serving the execution must judge, and if he take a bond with insufficient sureties he is liable to the plaintiff in the amount of the difference between the value of the judgment and the value of the security at the time the bond was executed. Bispham v. Taylor,* 2 McL., 403.

111. A levee board authorized to make contracts for work, and to issue bonds to be negotiated at a rate of discount not greater then ten per cent., may make a contract at a specified rate per cubic yard, payable in bonds at ninety cents on the dollar, and might issue the bonds direct to the contractors. Hemingway v. Stansell, 16 Otto, 399.

§ 112. County officers. Where an act of the legislature of Wisconsin directed a vote of the people of a certain county to be taken as to whether or not they would have a subscription in aid of a railroad, and authorized certain persons, entitled a board of commissioners, to borrow money on the credit of the county and to issue its bonds therefor, such persons are the agents of the people for the special purpose and not county officers in any proper sense. An officer of the county is one by whom the county performs its usual political functions—its functions of government. Sheboygan Co. v. Parker, 3 Wall., 93.

113. Escape.- In an action on the case against an officer for a negligent escape on mesne process, the damages may be less than the whole debt; the question is one for the jury. Duryee v. Webb,* 16 Conn., 552.

§ 114. A sheriff is liable personally for the escape of an insane prisoner as much as any other prisoner. Hazard v. Hazard, 1 Paine, 295.

$115. On an action for an escape, the sheriff cannot take advantage of an irregularity in the process which does not render it void. Spafford v. Goodell, 3 McL., 97.

116. An escape on final process subjects the sheriff to damages to the amount of the injury received by the plaintiff. Ibid.

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§ 117. In Michigan, although imprisonment for debt is abolished, yet where a debtor acts fraudulently, or is about so to act, he may be arrested. And after such arrest, the sheriff, if he permits him to escape, is liable to an action for an escape. Mewster v. Spalding, 6 McL., 24. 118. Deputies and assistants. The legal relation between public officers and their sworn assistants, even when they are acting directly in connection, is generally not that of master and servant, or principal and agent; and the liability of the official superior for defaults of his assistants arises only in case of his own misconduct and neglect. United States r. Collier, 3 Blatch. 325.