44 U.S. 578
3 How. 578
11 L.Ed. 734
THE UNITED STATES, PLAINTIFFS,
ELI S. PRESCOTT ET AL., DEFENDANTS.
January Term, 1845
THIS case came up on a certificate of division in opinion between the judges of the Circuit Court of the United States for the District of Illinois.
On the 4th of March, 1839, Prescott was appointed receiver of public moneys at Chicago, in Illinois.
On the 1st of October, 1840, he executed a bond, together with twenty-seven other persons, who were all defendants in the present suit, in the penal sum of $150,000, the condition of which was as follows: ‘If the said Eli S. Prescott had truly and faithfully executed and discharged, and should truly and faithfully continue to execute and discharge, all the duties of said office, according to the laws of the United States, and moreover had well, truly and faithfully kept, and should well, truly and faithfully keep, safely, without loaning or using, all the public money collected by him, or otherwise, at any time placed in his possession and custody, till the same had been, or should be ordered by the proper department or officer of the government, to be transferred or paid out, and when such orders for transfer or payment had been or should be received, had faithfully and promptly made, and should faithfully and promptly make, the same as directed, and had done, and should do and perform, all other duties, as fiscal agent of the government, which have been or may be imposed by any act of Congress, or by any regulation of the Treasury Department made in conformity to law, and also had done and performed, and should do and perform, all acts and duties required by law, or by direction of any of the executive departments of the government, as agent for paying pensions, or for making any other disbursements which either of the heads of those departments might be required by law to make, and which were of a character to be made by a depositary constituted by an act of Congress, entitled ‘An act to provide for the collection, safe keeping, transfer and disbursements of the public revenue,’ approved July 4, 1840, consistently with the other official duties imposed upon him, then the said obligation to be void and of none effect, otherwise it should abide and remain in full force and virtue.’
In June, 1843, the United States brought an action of debt upon this bond against Prescott and all his securities, setting forth, amongst other breaches, that on the 15th of June, 1842, Prescott was ordered by the Secretary of the Treasury to transfer the public moneys to Edward H. Haddock, and that he neglected and refused so to do.
The defendants filed several pleas. The 3d, 4th and 5th were of the same character, and it is only necessary to insert one of them.
‘3. And for a further plea in this behalf, the said defendants say actio non, because they say that the said Eli S. Prescott, before the commencement of this suit, did pay to the said plaintiffs all moneys which came into his hands as receiver of public moneys, excepting the sum of $12,815; and the said defendants aver that the said Eli S. Prescott tendered to the said plaintiff the sum of $127 before the commencement of this suit; and the said defendants aver that whilst the said Eli S. Prescott had said money in his possession, and before the commencement of this suit, some person or persons, to said defendants unknown, feloniously did steal, take, and carry away from the possession of the said Eli S. Prescott, the sum of $11,688; part and parcel of said money received by the said Eli S. Prescott, as receiver of public moneys, although the said Eli S. Prescott used ordinary care and diligence in the safe-keeping of the same, and this they are ready to verify, wherefore they pray judgment, &c.’
To these pleas the plaintiffs demurred generally, and the defendants joined in the demurrer.
And the cause being argued upon the said demurrer before the court, the opinions of the judges were opposed on this question, namely: Does the felonious stealing, taking, and carrying away the public moneys in the custody of a receiver of public moneys, without any fault or negligence on his part, discharge him and his sureties, and is that a good and valid defence to an action on his official bond?
Upon this question the cause came up.
Nelson, (attorney-general,) for the plaintiffs.
Dickey and Burke, for the defendants.
Nelson said, that if it were not for the printed argument, filed on behalf of the defendants, he would have thought it enough to say, with respect to the money being stolen, that there was no such condition in the bond. It was contended by the other side, that the case was to be governed by the principles of bailment. If the bond were to be laid aside, and the case examined as if it were one of parol contract, it would still be found that the defendant was responsible. In Southcote’s case, 4 Co., 83, it was held no defence to say that goods were stolen, and in Willes, 118, it was again affirmed that a defendant was responsible for robbery. But this is not a case of general bailment; it rests on special contract. All the principles which govern it are summed up in Story Bailm., 21. Bailments may be enlarged or restricted by special contract. The condition of the bond here is to keep safely, and it is of course a special bailment. It would be mischievous to apply the doctrine of general bailments to such cases. If carriers are held responsible from motives of public policy, much more strongly is the necessity felt in the cases of officers of government, where the door could so easily be opened to collusion and fraud. In Coggs v. Bernard, 2 Ld. Raym., 918, this doctrine is indicated, when speaking of the fifth species of bailment, and the same principle is sustained by Raymond, 220; 1 Vent., 190; Holt, 131; 1 Wils., 281; 1 T. R., 27; Strange, 128.
The case relied upon by the other side is 17 Mass., 479, where gold was deposited with the Essex Bank for safe keeping, and stolen by the officers of the bank. But that was a bailment without consideration. The bank received nothing for keeping it, whereas, in this case, the party undertook to keep the money, and was paid for it.
The argument of Dickey and Burke was as follows:
1. The defendant, Prescott, is a depositary for hire, and unless his liability was enlarged by the special contract to keep safely, he is only subject to the liabilities imposed by law upon such a depositary.
2. The special contract to keep safely does not enlarge the liability in the case of a depositary for hire.
1st. It does not enlarge it by the ordinary meaning and acceptation of the terms ‘keep safely,’ nor,
2d. Has the judicial construction put on those words enlarged the liability.
1. The defendant is a depositary for hire, and comes under the liability imposed upon such depositary. He is within the class laid down by Lord Holt, Coggs v. Bernard, 2 Ld. Raym., 917, as the fifth class of bailments, and called by Judge Story in his Commentary on Bailments, and Jones on Bailments, locatio custodiae, or ‘deposits for hire,’ or ‘the hiring of care and services to be performed or bestowed on the thing delivered,’ or ‘hire of custody.’ Story Bail., ?? 8, 442, 2d ed.; Jones Bail., 90, 91, 96, original ed.
Such a depositary is bound to ordinary diligence, and only responsible for losses by ordinary negligence. Story Bail., ? 442; Jones Bail., 97, 98, 99; Platt v. Hibbard, 7 Cow. (N. Y.), 497.
If he uses due care, and the property deposited is nevertheless stolen, he is excused; Coggs v. Bernard, 2 Ld. Raym., 918, where Lord Holt says, ‘he is only to do the best he can; and if he be robbed, it is a good account;’ and again, (p. 918,) ‘and yet if he receives his master’s money and keeps it locked up, with a reasonable care, he shall not be answerable for it though it be stolen.’ See also Story Bail., ?? 444, 455, 2d ed.; Roberts v. Turner, 12 T. R., 232; Brown v. Anderson, 2 Wend. (N. Y.), 593.
If then the defendant, Prescott, was such a depositary, the pleas averring that the money was stolen without any default on his part, and that he used ordinary care in keeping the same, are good pleas, and excuse his liability.
2. The words ‘keep safely,’ in sect. 6 of the act of July, 1840, and in the condition of the bond declared on, following the words of the act, do not alter or extend the liability, otherwise imposed by law.
1st. They do not by the ordinary meaning and acceptation of the terms.
In the construction to be given to words, they are to be received according to their ordinary meaning and import, or such meaning as is given to them by the common sense and understanding of mankind. In this sense no other construction can be given to the words, ‘keep safely,’ than to keep with that degree of safety which prudent men ordinarily exercise, where safety is required; the common sense of mankind would construe it to mean reasonable safety. When A. accepts to keep safely, the meaning he would be apt to give to the contract, (supposing no judicial meaning had been given to the words,) would be, such reasonable safety as in the exercise of prudence, he and other men ought, under the circumstances of the case, to use; and this is exactly the degree of diligence or care required in the contract of bailment called ‘locatio custodiae.’
The words ‘keep safely,’ therefore, considered in their ordinary and common acceptation, do not vary the usual liability of a depositary for hire.
2d. Judicial construction has not given a higher meaning to these words.
In Southcote’s case, 4 Co., 83, 84, the plaintiff had delivered goods to the defendant to be by him safely kept. The plea was, that they were stolen out of the possession of the defendant, and judgment was given because the goods were to be safely kept. The plea, however, was defective in not averring that they were stolen without his default, or that he used ordinary care and diligence, and theft being evidence of ordinary neglect according to Sir Wm. Jones, (although this is now doubted,) it would be presumed that the defendant had been guilty of ordinary neglect, and this is in accordance with the opinion of Sir Wm. Jones in commenting upon this case, (Jones Bail., 43, original edition,) where he says: ‘If the plaintiff, instead of replying, had demurred to the plea in bar, he might have insisted in argument, with reason and law on his side, that, although a general bailee to keep be responsible for gross neglect only, yet Bennet had, by a special acceptance, made himself answerable for ordinary neglect at least; that it was ordinary neglect to let the goods be stolen out of his possession; and he had not averred that they were stolen without his default;’ thereby intimating, that if such averment had been made in Southcote’s case, the plea would have been good. In the present case the pleas contain such averments.
The words ‘keep safely,’ then, by Southcote’s case, and in the opinion of Jones, meant to bind the depositary to ordinary diligence only.
The case of Coggs v. Bernard, 2 Ld. Raym., 909, by the opinion of Lord Holt and the majority of the court, is to the same effect.
The question in point, decided, was, ‘that if a man undertake to carry goods safely and securely, he is responsible for any damage through his neglect, although he was not a common carrier, and was to have nothing for the carriage.’ (See 1st marginal note.)
The inference to be drawn is, if there was no neglect, he was not liable.
In commenting on the effect of the undertaking ‘to keep and carry safely,’ the judges who delivered opinions in this case differed. Lord Holt, who delivered the celebrated opinion which has been the foundation of the modern law of bailment, and which is entitled to the most consideration, together with all the other judges, (except Powell, J.) held, (as is remarked by Judge Story, Com. on Bail., sect. 35, 2d edition, ‘that upon a promise by a bailee, without reward to keep or carry safely, he is not responsible for injuries or losses occasioned by the acts of wrong-doers, and a fortiori, that he is not responsible for a theft not caused by his own neglect.’ In the same section, Judge Story remarks, ‘Mr. Justice Powys, and Mr. Justice Gould, seem to have agreed in opinion with Lord Holt.’ By referring to the opinion of the judges in his case, the same doctrine will be found. Lord Holt says, (2 Ld. Raym., 915,) ‘Nay, suppose the bailee undertakes safely and securely to keep the goods, in express words, yet even that won’t charge him with all sorts of neglect. For if such a promise were put into writing, it would not charge so far even then. * * * And if a promise will not charge a man against wrong-doers, when put in writing, it is hard it should do it more so when spoken. Doct. and Stud., 130, is in point, that though a bailee do promise to redeliver goods safely, yet if he have nothing for the keeping of them, he will not be answerable for the acts of a wrong-doer. So that there is neither sufficient reason or authority to support the opinion in Southcote’s case; if the bailee be guilty of gross negligence, he will be chargeable, but not for any ordinary neglect.’ See 2 Ld. Raym., 914 and 915; Lord Holt’s comment on Southcote’s case. In the same case, Gould, J., agreeing with Lord Holt, says, (2 Ld. Raym., p. 909,) ‘So if goods are deposited with a friend, and are stolen from him, no action will lie. * * * But if a man undertakes expressly to do such a fact, safely and securely, if the thing comes to any damage by his miscarriage, and action will lie against him.’ And again, (p. 910,) ‘But when a man undertakes especially to do such a thing, it is not hard to charge him for his neglect, because he had the goods committed to his custody upon those terms.’ It is apparent by the reasoning of these judges, that they intended to place the liability in the case of a special contract to keep safely, upon the neglect or miscarriage of the depositary, and that he would not be liable for the acts of wrongdoers, without his default; and this was the opinion of Lord Holt and all the other judges, except Powell, J. See Story Bail., ? 35.
It is true that Powell, J., in the same case, says, (p. 910,) ‘The party’s special assumpsit and undertaking obliges him so to do the thing, that the bailor come to no damage by his neglect, and the bailee in this case shall answer accidents, as if the goods are stolen, but not such as happen by the act of God;’ but from the reference made to the case of the ferryman, immediately after, he was probably alluding to the case of the common carrier. But, at any rate, the reason assigned by him for the liability of the bailee in case of accidents, as in case the goods are stolen, viz., that the bailee has a remedy against the wrong-doers, as an appeal of robbery, or action against the hundred, is unsatisfactory. It might furnish a reason in England, where a speedy and certain remedy is given for the man robbed, by a special action on the case against the hundred for damages equivalent to his loss unless they make hue and cry after the felon, and take him, which excuses them. 3 Bl. Com., 160. But no such remedy exists here. And it is to be observed, that the reason given by Powell, J., was probably altogether wrong. Sir Wm. Jones expresses his disapprobation as follows, (Jones Bail., 44, orig. ed.:) ‘Mr. Justice Powell, speaking of Southcote’s case, which he denies to be law, admits that ‘if a mandoes undertake specially to keep goods safely, that is a warranty, and will oblige the bailee to keep them safely against perils, where he has a remedy over, but not against those where he has no remedy over.’ One is unwilling to suppose that this learned judge had not read Lord Coke’s report with attention; yet the case which he puts is precisely that which he opposes, for Bennet did undertake to keep the goods safely; and with submission, the degree of care demanded, not the remedy over, is the true measure of the obligation, for the bailee might have his appeal of robbery. Yet he is not bound to keep the goods against robbers without a most express agreement.’ Jones Bail., 44.
In 2 Bl. Com., 452, the same construction is given to the words ‘keep safely and securely,’ viz., ‘he is bound to take the same care of them as a prudent man would of his own,’ i. e. reasonable care. And the case of Coggs v. Bernard, 2 Ld. Raym., 909, is cited, and the law is spoken of as settled.
Finnucane v. Small, 1 Esp., 315, was a case in which the depositary received pay, and he was held, by the opinion of Lord Kenyon, to be liable only for ordinary neglect. In this case the property had been stolen from the depositary.
The American authorities are to the same effect.
Foster v. The Essex Bank, 17 Mass., 479, was a case of deposit of gold in a bank, under a memo. signed by the cashier, that it was ‘left for safe keeping;’ the court, (Parker, J.,) delivered an elaborate opinion, and reasons on the nature of the undertaking to keep safely in a very full and satisfactory manner, (see pages 499, 500, 501 and 502,) showing that the contract to keep safely, in the case of a simple depositary, extends his liability to ordinary neglect, and in the case of a depositary for hire, the principle goes no farther than liability for ordinary neglect; ‘so that if he shows that he used due care, and nevertheless the goods were stolen, he would be excused.’ 17 Mass., 502.
1 Dane’s Abr., chap. 17, art. 11, ? 3, lays down the same doctrine.
Judge Story, (Story Bail., ?? 70, 71, 2d edition,) evidently leans to the same doctrine, where he says that ‘there is much to warrant the suggestion that in a case where the bailment is to keep safely, the depositary would not be liable for a loss by theft, unless it should arise from his own negligence, and want of due diligence and care.’
Chancellor Kent (2 Kent Com., 563, note d, 3d edition) alludes to the decision in 17 Mass., 479, with approbation.
The great weight of authority, then, both in England and in this country, supports the doctrine, that under the contract to keep safely, the depositary would not be liable for a theft committed without his default, and that in such case he is only liable for ordinary diligence.
The case relied on, chiefly, on the other side, is a dictum of Lord Chief Justice Willes, (Kettle v. Bromsall, Willes, 118,) where he speaks of the liability of the depositary to keep safely, in case he is robbed of the goods. But it is to be observed that this is said as being according to Southcote’s case, the case of Coggs v. Bernard. Willes, 121. It is hardly conceivable how the judge, who delivered the opinion in Kettle v. Bromsall, could have fallen into such error, for the first authority cited by him, (Southcote’s case,) had been expressly overruled in the last authority cited, (Coggs v. Bernard;) and in the last case, Lord Holt and the majority of the court, dissenting from Southcote’s case, lay down a contrary rule, (as we have shown above,) viz.: that the depositary would not be liable for the acts of wrong-doers, without his default.
Chancellor Kent savs, in the note above referred to, that the doctrine in Kettle v. Bromsall, Willes, 118, and in Southcote’s case, ‘is held to be exploded in the case of Foster v. Essex Bank.’
A distinction has sometimes been taken between a loss by theft, and a loss by robbery, from the last being considered irresistible, and the former not so. But see, as to this, Story Bail, ? 39, 2d edition, where the distinction is refuted; and it is held that ‘no degree of vigilance will always secure a party from losses by theft,’ &c., &c.
When the contract is a special acceptance, the taking a reward can make no difference in the construction of it.
It is to be observed that where there is a special contract to ‘keep safely,’ the contract is expounded according to the meaning of the terms themselves, without inquiring whether a reward was paid or not. The acceptance is a sufficient consideration for the promise to keep safely, as was determined by the case in point in Coggs v. Bernard, (see first mar. note;) and in that case the court decided that the bailee, to keep or carry safely, is liable for ordinary negligence, without inquiring whether he received a reward or not. None was averred in the declaration, and there might or might not have been one.
In Hargrave and Butler’s note to 2 Co. Litt., n. 78, it is said, in reference to the decision in the case of Coggs v. Bernard, that ‘it was wholly grounded on a special undertaking to carry safely, without stating either that the defendant was to have hire or was a common carrier.’ In giving an exposition, therefore, to the contract ‘to keep safely,’ it makes no difference whether a reward was paid or not. It is the special acceptance that makes the party bound to ordinary diligence and liable for ordinary neglect.
Again, In the contract ‘to keep safely,’ it is the special acceptance (without inquiring into a reward or not) that makes the party bound to ordinary diligence; and in the ordinary contract of a depositary for a reward, it is the reward that puts the party to ordinary diligence. Story Bail., ? 442; Jones Bail., 49, 91, 98, 99, original ed. The liability, therefore, of the special depositary to keep safely, and of the depositary for a reward, in the same; and if the depositary for a reward accepts specially, the receiving the reward cannot put him to greater diligence than what the law determines that fact shall put a depositary to, which is ordinary diligence, (Story Bail., ? 442,) and nothing more.
The cases and authorities that expound the meaning of the words ‘keep safely,’ speak of them generally in reference to the contract of depositum, or naked bailment without reward; (Story Bail., ? 33, the opinion of the judges in Coggs v. Bernard, in relation to these words altering the responsibility in case of naked bailment; Southcote’s case, 2 Bl. Com., 452; 17 Mass., 479;) and as enlarging the responsibility from slight diligence, in such case, to ordinary diligence. If the cases and authorities are silent as to the effect of these words in the case of other bailees, such as the depositary for hire, common carrier, &c., it is because, in these cases, their ordinary legal liability is the same, or more extensive, than the words ‘keep safely’ import, requiring ordinary diligence in some, and extraordinary diligence in others. No one would contend that these words enlarged the responsibility of a common carrier, who is liable for more than what they would import, viz., for all losses except ‘by the act of God, or the king’s enemies;’ neither should it be contended that they enlarge the responsibility of the bailee for hire, whose usual legal responsibility is the same as what the special acceptance in the case of simple deposit has been decided to be, viz., ordinary diligence. These words only make a difference in the case of depositum, or naked bailment, because the usual liability in that case, for gross neglect only, is inconsistent with safe keeping. And this agrees with Sir William Jones, (p. 61, original ed.) where he says, in remarking on the opinion of Powell, J., in Coggs v. Bernard, ‘Now the reason assigned by the learned judge for the cases in the register and year-books, which were the same with Coggs v. Bernard, viz., the party’s special assumpsit, obliged him so to do the thing that the bailor come to no damage by his neglect, seems to intimate that the omission of the words salvo et secur e would have made a difference in this case, as in that of a deposit, but I humbly contend that those words are implied by the nature of a contract which lies in feasance,’ &c. In the present case the duty of the receiver, for which he is paid, lies in feasance, for he is to receive, keep, transfer, and pay out, and do all other acts, as fiscal agent, which may be imposed on him by law, or the directions of the Treasury Department, (? 6, act of 1840.)
By section 12, of the act of 4th July, 1840, government-agents are required to examine ‘the money on hand and the manner of its being kept;’ and by section 13, the register is required to examine and report, from time to time, the condition of the money on hand with the receiver; and by section 14, the officers may be allowed for fire-proof chests, vaults, &c., for safe-keeping, to be expressly authorized by the Secretary of the Treasury, whose directions, &c., ‘are to be strictly followed.’
The law, then, vests the discretion of the safe-keeping, in a measure, in government agents, and in the Secretary of the Treasury, ‘whose directions are to be strictly followed.’ If, then, the Secretary of the Treasury has directed the money, deposited with the receiver, to be placed in a particular place, vault, &c., and it is stolen there; or, if the government agent, having examined ‘the manner of its being kept,’ is satisfied, and so reports, and still the money is stolen; the receiver, in either case, would not be liable, without his default; Story Bail., ? 74, 2d ed.; ‘if the depositor agree that the goods may be kept in a particular place, &c., he cannot object afterwards that the place is not a safe one.’ And non constat but that, in the present case, the money had been directed to be kept in the particular place where it was stolen, nor but that the government agent had examined ‘the manner of its being kept,’ and reported it to be safe; in either of which cases the defendant, without his own default, would not be liable.
Finally, it may be said that government requires nothing unreasonable from its officers. If, as in the case of the Essex Bank, where $53,000 of gold was deposited, under a memo., for safe-keeping, and who might be considered in the light of a public depositary, and where considerations of public policy, in return for the extraordinary privileges conferred on the bank, were entitled to all their weight, the bank was held to ordinary neglect only, why should greater responsibility be thrown on a receiver of public money? Ch. J. Parker, in that case, 17 Mass., 501, says, ‘and this certainly is the more reasonable doctrine, for the common understanding of a promise to keep safely, would be, that the party would use due diligence and care to prevent the loss or accident; and there is no breach of faith or trust, if, notwithstanding such care, the goods should be spoiled or purloined.’ A contrary doctrine to this would be unreasonable. It would also be against public policy; for, if the receiver is to be held liable, when money is stolen from him without his default, having used due diligence and care in the safe-keeping, men of common prudence and responsibility would cease to become his sureties, since they would make themselves responsible, not merely for his prudence, good faith, and honesty, in keeping money, but sureties against the cunning, dishonesty, and villany, of all mankind.
Mr. Justice McLEAN delivered the opinion of the court.
This action was brought in the Circuit Court for the district of Illinois, on a bond given by Prescott, with the other defendants as his sureties, for his faithful performance of the duties of receiver of public moneys, at Chicago, in the state of Illinois. The defence pleaded was, that the sum not paid over by the defendant, Prescott, and for which the action was brought, had been feloniously stolen, taken, and carried away from his possession, by some person or persons unknown to him, and without any fault or negligence on his part; and he avers that he used ordinary care and diligence in keeping said money, and preventing it from being stolen.
To this plea, to plaintiffs filed a general demurrer; and on the argument of the demurrer, the opinions of the judges were opposed 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 negligence in his part, discharged him and his sureties, and may be set up as a defence to an action on his official bond?’ And this point is now before this court, it having been certified to us under the act of Congress.
On the part of the defendant it is contended that the defendant, Prescott, was a depositary for hire; and that unless his liability was enlarged by the special contract to keep safely, he is only subject to the liabilities imposed by law upon such a depositary; that the special contract does not enlarge his liability.
This is not a case of bailment, and consequently, the law of bailment does not apply to it. The liability of the defendant, Prescott, arises out of his official bond, and principles which are founded upon public policy. The conditions of the bond are, that the said Prescott has ‘truly and fathfully executed and discharged, and shall truly and faithfully continue to execute and discharge, all the duties of said office,’ (of receiver of public moneys at Chicago,) ‘according to the laws of the United States; and moreover 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 had been or should be ordered, by the proper department or officer of the government, to be transferred or paid out; and when such orders for transfer or payment had been or should be received, had faithfully and promptly made, and would faithfully and promptly make, the same, as directed,’ &c.
The condition of the bond has been broken, as the defendant, 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 had been stolen from him?
The objection to this defense is, that it is not within the condition 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 obligation, when he entered into it, and he has realized the fruits of this obligation by the enjoyment of the office. Shall he be discharged from liability, contrary to his own express undertaking? There is no principle on which such a defence can be sustained. The obligation to keep safely the public money is absolute, without any condition, express or implied; and nothing but the payment of it, when required, can discharge the bond.
The case of Foster et al. v. The Essex Bank, 17 Mass., 479, was a mere naked bailment, and of course does not apply in principle to this case. The deposit in that case was for the accommodation of the depositor, and without any advantage to the bank, as the court say, ‘which can tend to increase its liability. No control whatever of the chest, or of the gold contained in it, was left with the bank or its officers. It would have been a breach of trust to have opened the chest, or to inspect its contents.’
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 the 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 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 defence. And it is believed the instances are few, if indeed any can be found, where any relief has been given in such cases by the interposition of Congress.
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 question certified to us is answered, that the defendant, Prescott, and his sureties, are not discharged from the bond, by a felonious stealing of the money, without any fault or negligence on the part of the depositary; and, consequently, that no such defence to the bond can be made.