by John Marshall Harlan

“ 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? ”

“ He would then be bound 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. ”

“ It could not have said, in the former case, that canceled Treasury notes were to be regarded as money, or that the government was entitled to judgment for the face amount of those notes, prior to their being canceled. Nor could it say, as matter of law, that the government was, in fact, damaged by not having the canceled Treasury notes as vouchers. Such being the case, it was held that it was for the jury, under such evidence as might be adduced, to say what actual injury, if any, accrued to the United States by reason of the nondelivery of the canceled Treasury notes. ”

“ No ordinary excuse can be allowed for the nonproduction 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. ”

“ Anything less than this-any less strict rule, in the public administration of the finances-would leave everything loose or unsettled, and cause infinite embarrassments in the accounting offices, and numerous lossed to the government. . . . Finally, we decide on this last question as a matter of law this, and this only, namely, that the collector is liable for all the actual damages sustained by his not returning the notes as required by law and official circulars; or for not putting them in the postoffice so as to be returned. ”

“ In case of a breach of the bond, the amount which the goverment would be entitled to recover would be measured by the loss incurred. If the loss were shown to have been the sum of $5 or merely nominal, the plaintiff could not recover $1,000, or the penalty of the bond. It is conceded in the present case that what the defendant and his sureties have been adjudged to answer for, as a breach of the bond, was because $25,000 (less about $1,100) of Treasury notes of the United States, in the custody of the superintendent, had been burnt and destroyed by fire. ”

“ How much is the real damage, under all the circumstances, is a question of fact for the jury, and should be passed on by them at another trial. Only that amount, rather than the whole bond, need, in a liberal view of the law, and of his bond, be exacted; and that amount neither he nor his sureties can reasonably object to paying, when he, by the neglect of himself or his agent, has caused all the injury which he is in the end required to reimburse. ”

“ He may, however, make himself an insurer by express contract, and this he does when he binds himself in a penal bond to perform the duties of his office without exception. There is an established difference between a duty created merely by law and one to which is added the obligation of an express undertaking. ”

“ By their destruction, if they were destroyed by fire in the manner claimed, the United States was deprived of so much money, and the condition of the officer's bond that he would safely keep the moneys in his custody and turn them over to the government, when required, cannot be met by the suggestion that the government, if it so elects, can replace the notes destroyed by other notes, and thus make itself whole, less the cost of printing new notes. ”

“ The law does not compel to impossibilities, but it is a settled rule that if performance of an express engagement becomes impossible by reason of anything occurring after the contract was made, though unforeseen by the contracting party and not within his control, he will not be excused.' Again, in the same 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. ”

“ The keepers of the public moneys, or their sponsors, are to be held strictly to their contract, for if they were to be let off on shallow pretenses, delinquencies, which are fearfully frequent already, would be incessant. A chancellor is not bound to control the legal effect of a contract in any case ”

“ The defendants insisted there could be no recovery for this sum, as the government already had the notes in its possession, but this objection was overruled. The sections of the Revised Statutes of the United States (951, 957 [U.S.C.omp. Stat. 1901, pp. 695, 698] ) , set forth in the opinion, are said to render this defense insufficient, for the reason that the defendants had not submitted their claim for audit to the accounting officers of the Treasury. ”

“ Let such a principle be applied to our postmasters, 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 admitted 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 hardship. He must stand by his bond, and meet the hazards which he voluntarily incurs.'
The next case is that of United States v. ”

“ A complete answer to this suggestion is to be found in §§ 951 and 957 of the Revised Statutes (U.S.C.omp. Stat. 1901, pp. 695, 698) reproduced from the act of March 3d, 1797 (1 Stat. at L. 514, chap. 20) . ”