sions were to the effect that the settler loses the slightest degree, and, as we have seen, nothing by the neglect of the government. the prohibition against sale, entry, or preHere it is held that he gains something. If emption in § 6 extended to lands unsurveyed the survey had been completed before he as well as surveyed. How can one say in commenced his occupation, and he could not respect to any tract claimed by the railroad then enter an odd-numbered section, surely company that it was not at the time of the he could not, in face of the prohibition of filing of the map of definite location in the[156] the section, enter the land after it had been occupation of someone intending to presurveyed. If, instead of going upon lands empt or homestead it? If such occupation that had been surveyed, the settler chose to is sufficient to avoid the patent of the go into unsurveyed territory, he took his United States, has the company sure title chances of placing his improvements upon to any lands? an odd or even-numbered section. If he I think the judgment ought to be afplaced them upon what proved to be an odd-firmed. numbered section, he acquired no right as against the grant to the company. If he put them on what proved to be an evennumbered section, he would be compelled to pay the government double price. In the latter event does anyone for a moment suppose that it would be an answer to the deinand for a double price that the government had failed to make a survey before he [155] chose to occupy the land and make *im

provements thereon? The construction placed by the majority, not only takes from the railroad company the land which was granted to it, but deprived the government of that which it intended to obtain, a double price for the lands it reserved for sale.

ANDREW

W.

H.

SMYTHE, William Byrnes, Administrator of the Succession of Edward Conery, Deceased, et al., Plffs. in Err.,

v.

UNITED STATES.

(See S. C. Reporter's ed. 156-183.)

Official bond of superintendent of Mint -destruction of Treasury notes by firemeasure of damages-form of judgment.

1.

3.

Finally, I may say this decision clouds the title to all the lands granted to the railroad company. At the time the map of definite location was filed, as well as at the time the road was completed, there was not on the records of the Land Department a single word or mark which indicated to anybody that plaintiff in error was on the land or claiming it, or that the title of the rail- 2. road company was other than perfect. But because plaintiff in error was on the land it is held that the patent of the government to the railroad company conveyed to it no title, and that this occupant by parol testimony may show the fact of his occupancy and overthrow the record title. Yet this court unanimously held in Northern P. R. Co. v. Colburn, 164 U. S. 383, 41 L. ed. 479, 17 Sup. Ct. Rep. 98, that mere occupation, unaccompanied by the filing of a claim in the land office, did not exclude a tract from the operation of the land grant. And that there was no oversight or lack of attention to this particular matter is shown by the fact that the United States promptly filed a brief of thirty-six pages, quoting the principal land decisions referred to in the opinion of the majority, and asked the court to reconsider its decision, which application was denied without dissent. Indeed, as appears from the authorities cited in that opinion, the conclusion was in accord with prior rulings, to the effect that there must be something of record in the Land Department to support the contention of an adverse right. That unanimous opinion of the court is put one side by the assertion that the land there in controversy had been surveyed, while in this it had not been. No distinction was made in the discussion between surveyed and unsurveyed lands, no suggestion that it affected the question in

4.

The destruction of moneys in the custody of the superintendent of the Mint at New Orleans by a fire occurring without his fault or negligence is no defense to a suit upon, his official bond, conditioned for the faithful discharge of his duties according to the laws of the United States, which require him safely to keep such moneys as come to his hands by virtue of his office.

The amount of Treasury notes charred by

fire, but in condition to be identified as to amount and date of issue, cannot be allowed as a credit in a suit on the official bond of the superintendent of the Mint at New Orleans to recover the amount of a shortage in his accounts, where no claim for such credit was first presented to the accounting officers of the Treasury, as is required by U. S. Rev. Stat. §§ 951, 957 (U. S. Comp. Stat. 1901, pp. 695, 698), in order to make a claim for a credit available on the trial.

The face value of Treasury notes destroyed by fire while in the custody of the superintendent of the Mint at New Orleans, and not the cost to the United States government of issuing new notes, is the measure of damages in an action on his official bond, conditioned for the safe keeping of the moneys in his custody, to recover the amount of a shortage in his accounts caused by the destruction of such notes.

The sureties on the bond of the superintend

ent of the Mint at New Orleans, conditioned for the faithful discharge of his duties according to the laws of the United States, must be deemed to have signed it in view of the requirement of U. S. Rev. Stat. § 3624 (U. S. Comp. Stat. 1901, p. 2418), that interest on any unpaid balance due from one accountable for public moneys shall be computed from the time when he received such

moneys.

NOTE. On the liability of sureties on bonds of public officers-see notes to Postmaster General v. Early, 6 L. ed. U. S. 577; and American Surety Co. v. Pauly, 42 L. ed. U. S. 987.

3. An absolute judgment against the adminis- | Bing. 141; Davies v. Penton, 6 Barn. & C. trator of a surety on the official bond of a 216; Niver v. Rossman, 18 Barb. 50. Federal official, rendered by a Federal court sitting in Louisiana, is not objectionable on

Argued November 12, 1902. Decided Jan- 581, 39 U. S. App. 474, 77 Fed. 944; United

"the act of God" and "the act of a public | all moneys or bullion which shall be for the
enemy." Even robbery is not regarded as use or the expenses of the Mint."
sufficient.

Boyden v. United States, 13 Wall. 17, 20
L. ed. 527; New Providence v. McEachron,
33 N. J. L. 339; State use of Wyandot
County v. Harper, 6 Ohio St. 607, 67 Am.
Dec. 363; Halbert v. State, 22 Ind. 125.

The plea non est damnificatus does not
avail against an obligation to do specific
things.

3 Enc. Pl. & Pr. p. 663, note 1; 4 Am. & Eng. Enc. Law, 2d ed. pp. 694, 695, note Hicks v. Hoos, 44 Mo. App. 579.

It appeared in the evidence that the defendant Smythe, as superintendent of the Mint, received various sums of money in United States Treasury notes, and that upon a statement of his accounts by the proper officers of the Treasury there was a deficit of $25,000.

The defense was that the $25,000 of Treasury notes was placed by the superintendent in a tin box in the steel vault *pro-[158] 1;vided by the government for the safe keeping of public funds in his custody, and that the notes while in that box were charred, burnt, and destroyed by fire that occurred in the vault, without any negligence on the part of the superintendent, or his agents or employees.

ac

Defendants were not entitled in this tion to a credit for the charred notes. Yates v. United States, 32 C. C. A. 507, 61 U. S. App. 124, 90 Fed. 57; United States v. Fletcher, 147 U. S. 664, 37 L. ed. 322, 13 Sup. Ct. Rep. 434.

The government insisted at the trial that, even if the Treasury notes were destroyed, Mr. Justice Harlan delivered the opin-in the manner and to the amount claimed, ion of the court:

This was an action upon the official bond of Andrew W. Smythe as superintendent of [157] the Mint of the United States at *New Orleans to recover the sum of $25,000 with 6 per cent interest from April 1st, 1893, until paid,-that being the amount found due to the United States at the date of the examination, adjustment, and statement of his accounts by the proper officers of the Treasury. The sureties on the bond were Edward Conery and David Chambers McCan.

"In

The circuit court of appeals approved the view taken by the circuit court, and affirmed the judgment. The opinion of the former court is reported in 46 C. C. A. 354, 107 Fed. 376.

without negligence on the part of the superintendent, nevertheless he was liable on his bond,-its contention being that he was under the obligations, practically, of an insurer in respect of all public funds coming to his hands, and could not be relieved, unless the loss occurred by the act of God or the public enemy. This view was approved by the circuit court, which, at the conclusion of the evidence, directed a verdict against the defendants, and judgment was accordingly rendered for the full amount claimed by the United States. The court The bond was conditioned that the super- added the following words to its memoranintendent should "faithfully and diligently dum of reasons for that direction: perform, execute, and discharge, all and this cause there has been no charge or insingular, the duties of said office according timation that Dr. Smythe was personally at to the laws of the United States, then this fault or blameable in any way. Such fault obligation to be void and of no effect, other- or negligence as may have been shown in wise to remain in full force and value." the cause is attributable to his subordiWhen this bond was executed it was pro-nates, and in no manner to him." vided by § 3500 (U. S. Comp. Stat. 1901, p. 2339), that every officer of the Mint, before entering upon the duties of his office, should take an oath faithfully and diligently to perform the duties thereof; by $ 3501 (U. S. Comp. Stat. 1901, p. 2339), that the superintendent, before entering upon his of appeals both held that the question of *As the circuit court and the circuit court[163] office, should become bound to the United the liability of Smythe was determined for States, with one or more sureties, in a the government by the decisions of this named sum, "with condition for the faithful and diligent performance of the duties of his office;" by § 3503 (U. S. Comp. Stat. 1901, p. 2340), that the superintendent of each Mint "shall have the control thereof, the superintendence of the officers and persons employed therein, and the supervision of the business thereof, subject to the approval of the director of the Mint;" by § 3504 (U. S. Comp. Stat. 1901, p. 2340), that "he shall The first case is that of United States v. keep and render quarter-yearly to the di- Prescott, 3 How. 578, 587, 11 L. ed. 734, rector of the Mint, for the purpose of ad- 738. That was an action on the bond of a justment according to such forms as may receiver of public moneys, conditioned for be prescribed by the Secretary of the Treas- the faithful performance of his duties, and ury, regular and faithful accounts of the that he "shall well, truly, and faithfully, transactions with the other officers of the keep safely, without loaning or using, all Mint and the depositors;" and by § 3506 the public moneys collected by him, or oth(U. S. Comp. Stat. 1901, p. 2341), that "the erwise at any time placed in his possession superintendent of each Mint shall receive and custody, till the same had been, or and safely keep, until legally withdrawn, 'should be, ordered by the proper department

188 U. S.

court, which view the defendants contro-
verted,-we must ascertain the import of
those decisions. This course is made neces-
sary by the contention of the defendants
that the latest decision of this court, to
which reference will be presently made,
modified the earlier decisions upon which
the government relies.

or officer of the government to be transferred or paid out," etc.

"has truly and faithfully executed and discharged, and shall continue truly and faithThe defense was that the money for the fully to execute *and discharge, all the du-[165] nonpayment of which the United States ties of the said office." The condition was sued had been feloniously stolen, taken, and alleged to have been broken in that the colcarried away from his possession by some lector had not paid over large sums of monunknown person or persons without fault ey collected for the United States, and by or negligence on his part, and notwithstand- not making seasonable returns of his acing he had used ordinary care and dili- counts. gence in keeping it. The receiver contended that he was liable only as a depositary for hire, unless his liability was enlarged by the special contract to keep safely, which he insisted was not the case.

The court said: "This is not a case of
bailment, and consequently the law of bail-
inent does not apply to it. The liability of
the defendant Prescott arises out of his of-
[164]ficial bond, and principles which are founded
upon public policy." Again: "The condi-
tion of the bond has been broken, as the de-
fendant Prescott failed to pay over the
money received by him when required to do
so; and the question is whether he shall be
exonerated from the condition of his bond
on the ground that the money has been
stolen from him. The objection to this de-
fense is that it is not within the condi-
tion of the bond, and this would seem to be
conclusive. The contract was entered into
on his part, and there is no allegation of
failure on the part of the government.
How, then, can Prescott be discharged from
his bond? He knew the extent of his obli-
gation when he entered into it, and he has
realized the fruits of this obligation by the
enjoyment of the office. Shall he be dis-
charged from liability, contrary to his own
express undertaking? There is no princi-
ple on which such a defense can be sustained.
The obligation to keep safely the public
money is absolute, without any condition,
express or implied, and nothing but the pay-
ment of it when required can discharge the
bond.
Public policy requires that
every depositary of the public money should
be held to a strict accountability; not only
that he should exercise the highest degree
of vigilance, but that 'he should keep safely'
the moneys which come to his hands. Any
relaxation of this condition would open a
door to frauds, which might be practised
with impunity. A depositary would have
nothing more to do than to lay his plans
and arrange his proofs, so as to establish
his loss, without laches on his part. Let
such a principle be applied to our postmas-
ters, collectors of the customs, receivers of
public moneys, and others, who receive more
or less of the public funds, and what losses
might not be anticipated by the public? No
such principle has been recognized or ad-
mitted as a legal defense.
As
every depositary receives the office with a
full knowledge of its responsibilities, he
cannot, in case of loss, complain of hard-
ship. He must stand by his bond, and meet
the hazards which he voluntarily incurs."

The next case is that of United States v.
Morgan, 11 How. 154, 158, 13 L. ed. 643,
C45. That was an action upon the bond of
a collector of customs, conditioned that he

The court characterized as an erroneous impression that the collector "was acting as a bailee, and under the responsibilities of only the ordinary diligence of a depositary as to the canceled notes, when in truth he was acting under his commission and duties by law, as collector, and under the conditions of his bond. The collector is no more to be treated as a bailee in this case than he would be if the notes were still considered for all purposes as money. He did not receive them as a bailee, but as a collecting officer. He is liable for them on his bond, and not on any original bailment or lending. And if the case can be likened to any species of bailment in forwarding them, by which they were lost, it is that of a common carrier to transmit them to the Treasury, and in doing which he is not exonerated by ordinary diligence, but must answer for losses by larceny, and even robbery. 2 Salk. 919; 8 Johns. 213; Angell, Carr. §§ 1, 9."

In United States v. Dashiel, 4 Wall. 182, 18 L. ed. 319,-which was an action on the bond of a paymaster in the army for not paying over or accounting for public money that came into his hands,-the defense was that without any want of proper care and vigilance on the part of the paymaster a certain part of the moneys had been stolen from him. The trial court held that the theft or robbery, if satisfactorily proved, was a good defense. But this court held otherwise upon the authority of United States v. Prescott and United States v. Morgan, above cited, and reversed the judgment.

Substantially the same question arose in United States v. Keehler, 9 Wall. 83, 19 L. ed. 574, which was an action upon a bond of a postmaster in North Carolina. The bond was conditioned, among other things, that the obligor would well and truly discharge the duties of postmaster, and keep safely, without lending, using, depositing in banks, or exchanging for other funds than as allowed by law, all the public money at any time in his custody, till the same was ordered by the Postmaster General to be *transferred or paid out. In the spring of [166) 1861, after the Civil War commenced, the postmaster was still in office, and had in his hands $330 of postoffice money belonging to the United States. At that time the United States was indebted to one Clemnens, a mail contractor in that region, for postal service, in a sum exceeding $300. In August, 1861, the Confederate Congress passed an act appropriating the balances in the hands of such postmasters of the United States as at the commencement of the war resided within the limits of the Confederate

states, to the pro rata payment of claims | bailee, it might be that he would be relieved
against the United States for postal serv-by proof that the money had been destroyed
ice. The postmaster paid the $330 in his by fire, or stolen from him, or taken by
hands to Clemmens-relying upon the above irresistible force. He would then be bound
act of the Confederate Congress and an offi-
cial order from the Confederate Postoffice
Department directing him to make such
payment. It was admitted in the case that
throughout the year 1862 the Confederate
government had force sufficient at its com-
mand to enforce its orders, and did enforce
the orders of such government, in that part
of North Carolina in which Salem was situ-
ated, and "that no protection was afforded
to the citizens of that part of the state by
the government of the United States during
that term."

only to the exercise of ordinary care, even though a bailee for hire. The contract of bailment implies no more, except in the case of common carriers, and the duty of a receiver, virtute officii, is to bring to the discharge of his trust that prudence, caution, and attention which careful men usually bring to the conduct of their own affairs. He is to pay over the money in his hands as required by law, but he is not an insurer. He may, however, make himself an insurer by express contract, and this he does when he binds himself in a penal bond After observing that the postmaster had to perform the duties of his office without no right to select a creditor of the United exception. There is an established differStates and pay what he might suppose the ence between a duty created merely by law government owed him, the court said that and one to which is added the obligation of "the acts of the Confederate Congress can an express undertaking. The law does not have no force as law in devesting or trans- compel to impossibilities, but it is a settled ferring rights, or as authority for any act rule that if performance of an express enopposed to the just authority of the Federal gagement becomes impossible *by reason of [168] government." Referring to the statement anything occurring after the contract was of facts made in the case, and which were made, though unforeseen by the contractsubstantially as above recited, it said: ing party and not within his control, he "This statement falls far short of showing will not be excused." Again, in the same the application of any physical force to compel the defendant to pay the money to Clemmens. Nor is it in the least inconsistent with the fact that he might have been desirous and willing to make the payment. It shows no effort or endeavor to secure the funds in his hands to the government, to which he owed both the money and his alle giance. Nor does it prove that he would have suffered any inconvenience, or been punished by the Confederate authorities, if he had refused to pay the draft of the in[167]surrectionary postoffice *department on him. We cannot see that it makes out any such loss of the money, by inevitable overpowering force, as could, even on the mere principle of bailment, discharge a bailee. We cannot concede that a man who, as a citizen, owes allegiance to the United States, and as an officer of the government holds its money or property, is at liberty to turn over the latter to an insurrectionary government, which only demands it by ordinances and drafts drawn on the bailee, but which exercises no force or threat of personal violence to himself or property in the enforcement of its illegal orders." The court, reaffirming the doctrine of the Prescott, Morgan and Dashiel Cases, held that in an action on the bond of an officer receiving public funds the right of the government to recover does not rest on an implied contract of bailment, but on the express contract in the bond to pay over the funds.

In Boyden v. United States, 13 Wall. 17, 24, 20 L. ed. 527, 529, which was an action upon the bond of a receiver of public moneys, the defense being that the receiver had been by irresistible force robbed of the moneys sued for, the court said: "Were a receiver of public moneys, who has given bond for the faithful performance of his duties as required by law, a mere ordinary

case: "It is true that in Prescott's Case the defense set up was that the money had been stolen, while the defense set up here is robbery. But that can make no difference unless it be held that the receiver is a mere bailee. If, as we have seen, his liability is to be measured by his bond, and that binds him to pay the money, then the cause which renders it impossible for him to pay is of no importance, for he has assumed the risk of it."

At the same term of the court the case of Bevans v. United States, 13 Wall. 56, 60, 20 L. ed. 531, 532, was determined. That was a suit upon a bond executed by Bevans, a receiver of public moneys, in a land district of Arkansas. The court reaffirmed the rule announced in the Prescott Case, and said that it is not to be overlooked that Bevans was not an ordinary bailee of the government. Bailee he was undoubtedly, but by his bond he had insured the safe keeping and prompt payment of the public money which came to his hands. His obligation was therefore not less stringent than that of a common carrier, and in some respects it was greater," citing United States v. Prescott. In the same case the court said, in reference to that part of the defense attributing the loss of the money in question to the action of the Confederate power:

"It may be a grave question whether the forcible taking of money belonging to the United States from the possession of one of her officers or agents lawfully holding it, by a government of paramount force, which at the time was usurping the authority of the rightful government, and compelling obedience to itself exclusively throughout a state, would not work a discharge of such officers or agents, if they were entirely free from fault, though they had given bond to pay the money to