Boyden v. United States
IN error to the Circuit Court for the District of Wisconsin.
The United States sued Boyden and his sureties on his official bond as receiver of public moneys for the district of lands subject to sale at Eau Claire, in the State of Wisconsin. The bond was given pursuant to the 6th section of the act of May 10th, 1800.  The section enacts:
'The receiver of public moneys shall, before be enters upon the duties of his office, give bond with approved security for the faithful discharge of his trust.'This bond was conditioned, that if the said Boyden truly and faithfully executed and discharged all the duties of his said office according to law, then the obligation should be void. The breach alleged was, that Boyden had received as receiver $5088, of the moneys of the United States, which he had not paid over to the United States, 'although often requested so to do.'
The defendants pleaded as one plea, that Boyden had been violently robbed of the said sum of money; and under a notice that they would give in such evidence offered upon the trial to prove that, on the 23d of December, 1859, at Eau Claire, in the State of Wisconsin, while in the land office of the United States for that land district, he the said Boyden, then and there being the receiver of public moneys for said district, and then and there being in the discharge of the duties of his office as such receiver, was suddenly beset by some person or persons to him unknown, and thrown down, and against all defence 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.
To the introduction of this evidence the United States objected, upon the ground that the facts as offered to be proved constituted no defence. The court sustained the objection, and the defendants excepted.
Judgment having been given for the United States, the defendant brought the case here.
The assignments of error were:
1. That the evidence offered was improperly rejected.
2. That the declaration did not state a cause of action. This second assignment being founded on the fact that an act of August 6th, 1846,  requires all receivers of public moneys to keep in their possession all of the moneys by them treceived, until the same is ordered by the proper department or officer of the government to be transferred or paid out; and that the amendatory act of March 3d, 1857,  requires persons having moneys of the United States in their hands, to pay them to the Treasurer, the Assistant Treasurer, or public depositary of the United States, when required by the Secretary of the Treasury, or any other department.
The case was twice argued.
Messrs. M. H. Carpenter and M. M. Cothren, for the plaintiff in error:
I. The sureties contract for such capacity and fidelity as man may possess, and as may be suitable for the employment of their principal. The duty of the principal is measured by physical possibility. Their liability is no greater. They do not undertake that an earthquake shall not swallow up the property of the government; nor that the public enemy, or a robber shall not, despite all resistance that can be made by the custodian, seize, and carry away the funds of the government. At the common law, an officer was not responsible for loss of public or private funds, except upon the ground of negligence or default. This is old law, settled in Lane v. Cotton, reported by Lord Raymond,  and in Whitfield v. Le De Spencer, reported in Cowper.  The principle is adopted in our own country, as is seen by the case of the Supervisors of Albany v. Dorr et al.,  where it was held by the Supreme Court of New York, that a 'public officer intrusted with the receipt and disbursement of public funds, is not responsible for money stolen from his office, where there is no imputation of negligence or other default on his part.' Nelson, C. J., in giving the opinion, places emphasis upon the condition of the bond being for the faithful execution of the duties of his office, and says that this condition recognizes the common law rule. The case was affirmed by the Court of Errors.  The later case of Muzzy, Supervisor, v. Shattuck,  in the same State, which might appear to conflict with this decision, was placed upon the construction of a statute, which was peculiar in its provisions, and, in the opinion of the court, rendered the collector a debtor for the amount by him collected, and his sureties guarantors for the payment of the debt. It therefore does not conflict with Supervisors of Albany v. Dorr, nor with the common law rule as to official liability; but only interprets and gives effect to a particular statute.
The very terms of the statute of 1800, under which this bond was given, make the receiver an agent, trustee, or bailee. Persons occupying such relations are only responsible for the same kind of negligence that bailees are liable for; and certainly the settled rule is, that bailees in general are not responsible for losses resulting from inevitable accident or irresistible force. It is the government that is to protect the citizen against the public enemy, and the private robber; and not the citizen who is to protect the government against losses by either.
The United States v. Prescott et al.,  which might be cited against us, does not apply. In that case the sureties had undertaken in addition to the common law obligation of sureties upon an official bond, that the principal
'Has well, truly, and faithfully, and shall well, truly, and faithfully keep safely, without loaning or using, all the public moneys collected by him, or otherwise at any time placed in his possession and custody, till the same has been or shall be ordered, by the proper department or officer of the government, to be transferred or paid out. And when such order for transfer or payment has been, or shall be received, has faithfully and promptly made, and will faithfully and promptly make the same as directed.'
The conditions of that bond enlarged the obligations of the contractors beyond the contract in this case. And the contract may well have been considered a contract of insurance with the government, that all moneys which might come into the hands of the principal should be paid in the manner stipulated.
Moreover, the rule was only applied to a case of theft. The defence in this case is quite different. It is robbery. Public policy may require such vigilance upon the part of public officers as that theft can never occur. This, upon principle, would render theft no defence. Not so with robbery. That is a crime against which the utmost vigilance cannot guard. If the guardian be strong, the robber may be stronger. If government cannot so administer law as that its own property will be safe from the bandit, it ought to sustain its own losses, unless the citizen has contracted to make them good.
So too, United States v. Dashiel,  was a case of stealing, while in United States v. Keehler,  a postmaster in North Carolina, who during the rebellion had paid money of the United States to the rebel authorities, in obedience to a statute of the rebel States, and to 'a regular official order under it,' was held not discharged, because the case did 'not show the application of any physical force to compel the defendant to pay.' The intimation is, that had force been shown, he would have been held discharged.
II. The declaration does not state any cause of action. From the act of 1846, and the amendatory one of 1857,  it is obvious, that until some order is made by the head of the proper department, no cause of action accrues against a receiver. The declaration here does not state that any order or requisition was ever made upon Boyden to transfer or pay over. This being so, there is a judgment without anything to base it upon.
Messrs. B. H. Bristow, Solicitor-General, and W. A. Field and C. H. Hill, Assistant Attorneys-General, contra.
Mr. Justice STRONG delivered the opinion of the court.
^1 2 Stat. at Large, 75.
^2 9 Stat. at Large, 59, § 6.
^3 11 Id. 249, § 3.
^4 Page 646.
^5 Page 754.
^6 25 Wendell, 440.
^7 Hill, 583.
^8 1 Denio, 233.
^9 3 Howard, 587.
^10 4 Wallace, 182.
^11 9 Id. 84.
^12 Supra, pp. 18, 19.
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