author: Mr. Justice STORY

text:
    James B. Andrews, Appellant, v. William H. Wall and John H. Geiger, Defendants.
    An agreement of consortship between the masters of two vessels engaged in the business known by the name.of wrecking, is a contract capable of being enforced in an admiralty court, against property or proceeds in the custody of the court: .
    The case of Eamsay v. Allegre,- 12 Wheaton, 61!, commented on, and-explained.' ' '
    Such an agreement extends to the owners and crews, and is not merely per- ■ sonal between the masters. '
    If made for an indefinite period, it does not expire with the mere removal of one of the masters from, his vessel, hut continues until dissolved upon due notice to the adverse party.'
    Where there is no other evidence, than.'the-answer of its having been a part of the original agreement, that such, removal should dissolve the contract, the. evidence is not sufficient..
    Whenever proceeds' are rightfully in the possession and custody df the admiralty, it is .an inherent, incident to the jurisdiction of that court, to entertain supplemental suits by the pártiés in interest to ascertain to whom those' proceeds rightfully belong, and to deliver - them. over, to the parties who establish the lawful ownership thereof.
    This was an appeal from the Court of Appeals in-Florida, .and grew out of the following circumstances ::—
    There were two vessels, o e called the Globe, and the other the George Washington,, engaged in the business 'of assisting vessels which were wrecked, or in. danger of becoming so, oh the coast of Florida. Between these two there existed the agreement of con-sortship, which will b.e spoken of presently.
    For assistance rendered by the Globe tó the ship Mississippi and cargo,; an amount of $5522- 49 was decreed as salvage. ■ Andrews, the appellant^ was part ownér of the Globe, and Wall and Geiger, the defendants in error, were part owners of the. Geofge Washington.
    Wall and Geiger filed a petition in the Superior Court for the southern district of Florida, {being the same court which decreed the salvage,) as follows

      “ To the honourable Wm, Marvin, Judge of the United States Superior Court, southern judicial district of Florida, in admiralty.
    “ Your petitioners respectfully represent, on oath, to yotir honour, that they, with J.' A Thouron, are me Only owners of the schooner George Washington; 'that said schooner has for sometime past been consorted with the sloop Globe, in the business of wrecking upon this reef, and was so éonsorted with said, sloop when that vessel performed the services to the ship Mississippi which have resulted m the payment of salvage to said sloop by your honour, in admiralty, on the 31st day of- May, 1841; that a portion of said salvage is justly due and owing unto your petitioners from said consortship, and that the master and agent of 'said sloop Globe, J. B. Andrews, positively refuses to pay to them any portion of the same. They therefore respectfully represent this matter, and pray the interference of your honour, that you may order the clerk of your honour’s coürt to. retain such portion of said salvage, now about to be paid to said sloop, as to your honour may appear equitable under said consort-ship,' due to said petitioners "as owners of schooner the George Washington. And. they are ready to show to your honour the ex"act sum due to them under said consortship; And will ever pray.
    W. H. Wall,
    John H. Geiger,
    S. R. Mallory, Proctor.”
    In conformity with this petition the. judge directed the sum. of $2455 64 to be retained, which Wall and Géiger claimed by a subsequent petition.
    Andrews answered it as follows:—
    “The answer of James B; An'drews, part owner of the sloop Globe, would respectfully represent, that a notice of .a petition filed by Wm. H. Wall and John H. Geiger, who claim as part owners of the schooner George Washington, claiming a part of the salvage decreed to Thos. Greene,- master of the sloop Globe., in the case of Thomas Greene et al. v. Ship Mississippi ánd' cargo, and has.been served upon him. To which he comes .into court, and says, that—
    “ 1. The petitioners have no right to come into your honourable court in this summary way, and obtain a decree against the earnings of the master and crew of the sloop Globe, .who were libellants in the above-case.
    ■ ' “2. That if there is any thing due by the Globe, her crew and owners, it must be by some contract. existing at the time the services for which salvage has been decreed were'rendered, and that if such' contract exists, it was not made with petitioners .by your respondent.
    “ 3. Your respondent admits that there was a consortship or agreement entered into previously to the services rendered to the ship Mississippi, by him, as master of the sloop Globe, and ’Russel* master of the schooner George'Washington, by which they agreed , to divide their respective earnings or gain between each other, their crews, and the owners of the respective vessels, in a .certain-proportion, viz.: the Globe was to be rated at sixty-three tons, and the George Washington at fifty-three tons, and the number of men 'each vessel might have on board at the time that any money might be earned. But he alleges that such' contract was made between him and Captain Russel for an indefinite time, and considered that it only remained in force so long as they both remained on board of' their respective vessels and earned salvage; and that at the time the money in dispute was earned, that Thomas Greene, the mate of the Globe, was master, and in that capacity rendered services to the ship -Mississippi, and filed a libel 'in his own name, as such, and being recognised as master by this court, salvage on the said ship was decreed to him in his own name.
    “ Whereupon your respondent prays that your honour will dismiss the said petition,sand that the amount of the money retained from the salvage decreed to Thomas Greene be paid over to him, together with his costs in this behalf expended. And.your respondent, &c.
    James B. Andrews,
    W. R. Hackley, Proct. for Resp.”
    After the cause had been argued, the court gave the following order-:—
    “ Ordered, That the clerk ascertain the number of men on board the sloop Globe and George Washington respectively at the timé of the earning of the salvage by the Globe for services rendered the Mississippi and cargo, and that he divide the salvage in that case decreed the Globe, between the.Globe and the George Washington, man for man, and ton for ton, taking the Globe at sixty-three tons, and the George Washington at fifty-three tons, and that he pay to Wm. H..Wall and John H. Geiger the George Washington’s portion for and on behalf of all persons interested therein.
    “ Ordered, That each party pay his own costs in this suit.”
    The result of the order was an apportionment of the fund between the two vessels as follows:—
    To the'Globe - _ - - - - #3066 85
    _ To the George Washington - - - 2455 64
    Total salvage - - - $5522.49
    From this decree Andrews appealed to the Court of Appeals of Florida, which affirmed the sentence, and from this affirmance he appealed to this court.

      Clement Cox, for the appellant.

      C. J. Ingersoll, for the defendants.

      Cóx made the two following points:—
    1. That the record shows.no subsisting contract of consortship at the time of the salvage service,

      2. That a court of admiralty has no jurisdiction of the case.
    In support of the first point, he said, that he had not been able to find any judicial exposition of the -contract of consortship. The' court below decided on two grounds: 1st. That the Globe was a wrecker, and, 2d. That contracts of consortship .were usual. But the record shows no evidence of these facts, and the court was not warranted in assuming them. 8 Gill- & Johns; 449, 456..
    Upon the second point, he said that he had not found a case where a court of admiralty had taken such jurisdiction, and it ought not to have been assumed. 12 Wheat. 611, 613; 3 Peters, 433; Baldw. 544; Bee, 199; 1 Pet. Adm.-Rep. 223; Gilp. 514, 184; Dunlap’s Adni. Pr. 29; 1 Hagg. 306; 13 Peters, 175;
    - C. J. Ingersoll, for defendants, said, that he could scarcely add any thing to the reasoning upon which the court below founded its opinion, which was inserted in the record. The contract was one of in admiralty character, and the case was like that of joint captors, the rules relating to which were familiar to the court. It was a' daily practice in a court of admiralty to distribute funds which were brought into court. The answer itself admitted the contract.
   Mr. Justice STORY

delivered the opinion of the court.

This is the case of an appeal in admiralty, from' a decree of the Court of Appeals of the territory of Florida, affirming the decree of the judge of the Superior Court of the southern judicial district of Florida. It appears from the proceedings, that upon a libel filed in. the Superior Court of the territory, in behalf of the owners and crew of the sloop Globe, salvage had been awarded in their favour, against ■ the ship Mississippi; that a part of the salvage so decreed remained in the registry of the court; and that the present petition was filed by Wall and Geiger, on behalf of the bwners of the schooner George Washington, for the- share of the salvage due to them, as consorting with the Globe in the business of salvage. It seems to be a not uncommon course among the owners of a certain class of vessels, commonly called Wreckers, on the Florida coast, with a view to' prevent mischievous competitions and collisions in the performance of salvage services on that coast, to enter into stipulations with each ' other, that the vessels owned by them respectively shall act as consorts with each other, in salvage services, and share mutually with each ether in-the moneys awarded as salvage, whether earned by one vessel or by l>oth. It is admitted in the answer of the appellant, who was the master and part owner of the Globe, and the original respondent in the court below, that such an .agreement or stipulation was entered into, for an indefinite time, between himself, as-the master of the Globe, and the master-of the George Washington, before the salvage service in question; but he insists that it was to remain in torce only so long as both remained masters of their respective vessels, and earned salvage; -and that at the time of the salvage services in question, one Thomas Greene, mate of the Globe* acted as master thereof. He also insists, that the libellants have no right to come into the court, in a summary way, to obtain a share of the salvage; and lastly, he insists that the agreement or stipulation was not madá between’ him and the libellants.

The courts below-overruled all these matters of defence; and upon the present appeal the same are brought before us for consideration and^ decision. In the first place, then, as to the original, agreement or stipulation for consortship,’ it must, although made by the masters of the vessels, be deemed to be made on behalf of the owners and crews, and to be obligatory on both sides, until formally dissolved by the owners: . The mere change of the masters would not dissolve it, since in its nature it is not a contract for the- personal benefit .of themselves, or for any peculiar personal services. It falls precisely within the same rule, as to its obligatory force, as the contract of the master óf á ship for seamen’s -wages, or for- a charter-party for'ihe voyage, which, if within the. scope of his authority, binds the owner,, and is not dissolved by the death or removal of.the master. Besides, in the present- case, the agreement or stipulation for consortship was for an indefinite period, and, consequently,’ could be broken up or dissolved only upon due rotice to the adverse party; and the mere removal of the master of one of the vessels, by the owner thereof, for his own benefit or at his own option, could in no manner operate, without such notice, to the injury of the - other. . In the next place* there is not á particle of evidence in the case, that at the time of the agreement or stipulation for consortship, it was agreed between dire parties, that a change of the masters should be treated as-a dissolution thereof. The answer is not of itself evidence to establish such a fact, but it must be.made out by due and suitable proofs; for in the-admiralty the same rule does not prevail as in equity, that the-answer to matters directly -responsive to the allegations of the bill, is to be treated as sufficient proof of the facts, in favour of the "respondent, unless overcome by the testimony of two witnesses, or -of. one witness and other circumstances of equivalent'force. The answer may be evidence, but it is not conclusive; and .in the present case, the dissolution of the agreement oí stipulation for consortship, by the change of me. master of the Globe, seems to be. relied on as a mere matter of law, and not as a-positive ingredient in the original contract.

The material and important question, therefore, is, whether the agreement or stipulation of consoftship.is a contráct capable of being enforced in the admiralty against property or proceeds in the custody of the court? We are of opinionUhat it is a cáse within the’jurisdiction of the court. It is a maritime contract for services to be rendered on the sea, and an apportionment of the salvage earned, therein. Over maritime contracts the admiralty possesses a clear and established jurisdiction, capable of being enforced in personam, as well as in rem ; as is familiarly seen in cases of mariners’ wages, bottomry bonds, pilotage services, supplies by material-men to foreign, ships, and other cases of a kindred nature,.which it is not necessary here to .enumerate. The case of Ramsay v. Allegre, 12. Wheat. 611, contains no doctrine, sanctioned by the court, to the .contrary. It is within my own personal, knowledge, having been present at the decision thereof, that all the judges of the court,, except one, at that ■ time concurred in the opinion- that the casé was one of a. maritime nature, withjn the jurisdiction of the admiralty, but that the claim was extinguished ■ by á promissory note having been -given for the amount, which note was still outstanding and unsurrenderéd. It became, therefore, unnecessary to decide the other point; The general doctrine had been previously.asserted in the. case of the General Smith, 4 Wheat. 438, and it was .subsequentlyfully recognised and acted upon by this court, in Peroux v. Howard, 7 Peters, 324. Upon .general • principles, therefore, there would be no difficulty in maintaining the. , present suit, as well founded in the jurisdiction of the admiralty.

There is another view of the matter, which does .not displace but adds -great weight to the preceding considerations. This is a cáse of proceeds rightfully in the possession and custody of the admirally; and it would seem to be, and we are of opinion that it is, an inherent incident to the jurisdiction of - that, court, to.entertain supplemental suits by the parties in interest, to ascertain to whom those proceeds rightfully belong, and to deliver them over to the parties who establish the lawful ownership thereof. This is familiarly known and - exercised in cases of the sales of ships to satisfy' claims for sea,men’s w|ges, for bottomry bonds, for salvage services, and for supplies of. material-men, where, after satisfaction thereof, there remain what are technically called “remnants,and' surplússés,” in the registry of the admiralty.- But a more striking example is that of supple-mental'libels ,and. petitions, by. persons asserting themselves to be joint captors, and entitled to share in prize , proceeds, and, of Custom-house officers, for ..their distributive shares of the proceeds of property seized and condemned for breaches of the revenue laws, where the jurisdiction is habitually-acted upon in all cases of difficulty or controversy. - . .

Upop the whole, without going more at large iqto the subject, we are of opinion that the-decree-of the Court -pf Apipeals of. Florida ought to bé affirmed, with costs,.


source: Caselaw Access Project

author: Mr. Justice McLEAN

license: Public Domain

text:
    Augustus and Edward Bonnafee, partners under the name and style of Bonnafee & Co., Plaintiffs in error, v. Ira E. Williams, Charles S. Spann and B. H. Cook, Defendants in error.
    Tbe Circuit Court of the United States has jurisdiction where a promissory-note is made by a citizen of one state payable to another citizen of the same slate or bearer, and the party bringing the suit is a citizen of a different state; although upon the face of the note it was expressed to be for the use of persons residing in the state in which the maker and payee lived.
    Where the citizenship of the parties gives jurisdiction, and the legal right to sue is in the plaintiff, the court will not inquire-into the residence of those - who may have an equitable interest in the claim. "
    This case was brought up, by writ of error, from the. Circuit' Court of the'United States for the southern district of Mississippi.
    The plaintiffs in error were citizens of the state of.New' York; the. defendants in error, of Mississippi.
    ' The defendants in error executed four joint and several promissory notes, pr : :ng to pay to Cowles Mead or-bearer, for the use of the Real Estate banking Company of Hinds, county, the sums of money therein mentioned;
    In 1841, the plaintiffs brought suit upon these notes, alleging 'themselves to be the lawful bearers thereof.
    The defendants demurred upon the two following grounds:

      “1. The plaintiffs- cannot maintain the action, because, by their own showing, the defendants who are sued are also a part of the personfe for whose use the suit is commenced.
    “2. The court can have no jurisdiction of this case, because,, although'it is true, the nominal plaintiffs are the bearers of the paper' ’sued on, and citizens of a state other than Mississippi, yet the usees, or those for whose benefit the suit is brought, for - any thing which^ appears in the declaration, are citizens of the state of Mississippi; and there are all other causes,” &c.
    The Circuit Court sustained the demurrer, from which decision' a writ of error brought the case to this court.
    The cause was argued for' the plaintiffs in error, by'Mr. Walker, as follows:
    The first cause of demurrer was as follows: “ The defendants wh¿ are sued are also a part of the persons for whose use the suit is brought.”
    Now, the suit is brought in the name of Bonnafee & Co. alone, and not. for the use of any one, arid therefore the demurred cannot be sustained on this ground. The note was payable to “ Cowles Meade, or bearer, for the use of the Reál Estate Banking Company of Hinds county,” and it was assigned by delivery, by Cowles Meade, to the plaintiffs, Who, throughout every count of the declaration, are described aS the lawful bearers of the note,, and in whose name alone the suit is brought. It is true, the note was payable to Cowles Meade, for the use.of the Real Estate Banking Company, and that Cowles Meade was one of that company; but this could constitute no objection to the jurisdiction, because, .before a court of common law, this company had no rights whatever. They were unincorporated, and, therefore, could not sue at law in the name assumed by them; and even if they could, no right of action would accrue to .them, where the note, as in this'base, was not payable to them, but to Cowles Meade, or bearer, in whonr alone, or the bearer, the sole legal title was vested. The .question, therefore, intended to be raised by the demurrer,'does not apply to .this case. The legal .title is vested in any bearer, and the fact that the bearer derived title .by delivery, from Cowles Meade, can have no injurious effect upon the title of the plaintiffs.
    But it is said that Cowles Meade, to whom, or bearer, the note is payable, appears to be one of the same unincorporated banking company for whose use the note is given. But if .Cowles Meade delivered the note to .the plaintiffs, and they, as is the fact, are not members of the same banking company, still the question does not arise, that one .partner cannot sue another partner at law; fqr the' plaintiffs and defendants were not partners, artd the use for which the note was given does not affect-the legal rights of the parties. The legal intendment, is, and such is the fact, that the plaintiffs,, with the consent-of the banking company, were .the purchasers of the note in question, and brought the suit for their own use alone.. But were it otherwise, could not Cowles Meade maintain a suit at law on such a note as this of the defendants, even if Meade and the-defendants were members of the. same banking company? Now,, the law is clearly settled that a partnership can sue upon a note given by one of the partners to another, even although it be for the usé of the firm. Van Ness tf. Forrest, 8 Cranch, 30.
    In that case, the person to whom the note was given was. a mere trustee for the-firm; yet the court maintained the action against one of the partners. The cases in which partners cannot sue each other,, on account oí -transactions growing out of the partnership, or where the firm cannot sue a partner, are cases of unascertained balances, or where the partnership transaction has1 not been separated by a note or express promise. In such cases a court of law cannot sever-the joint contract or liabilities, but this may be doné by the parties, themselves. Neale v. Tuston, 4 Bing. 149; Coffee v. Brian, 3 Bing. 54; Gibson v. Moore, 3 New Hainp. 527; Nevins v. Townsend,. 6 Conn. 5; Story on Partnership, 241, 527, 320; Collyer on Partnership, 392, 504, 91,' 148, 152, 147, 165’; Wright v. Hunter,. 1-East, 30; -Briérly v. Cripps, 7 Carr, and Payne, 709; Smith Barrow, 2 T. R: 476; Simpson v. Rochman, 7' Bing. .617; .Venning v. Leckie, 13 East, 7; Gale v. Leckie, 2 Starkie, 96.
    Where a note is payable-to A,for the use of B, the legal title is; in A, and he is the party to transfer it, to receive payment, and to sue upon it. . 3 ^Kent’s Com. 89; 1 Selwyn’s N. P..292; Chitty on Bills, .180, 22é, 428, 566; Baily on Bills 76, 115; Chaplin t>. Canada, 8 Conn. 286'; Binney v. Phumpley^-5 Vermont, 500.
    At law,'the trustee has thevwhole title and interest. Bank of the United States t?«.Devaux, 5 Cranch, 91; Irving v. Lowiy, 14 Peters, 300; Bauerman v. Rodenus, 7 Tv R. 663; Wake v. Tinkler, 16 East, 36; Tucker v. Tucker, 4 B. & Adol. 745; Willis’ Trustees, 72, and N.,E. 73, 83, 86, 87; Lewin on Trustees,, 267, 247, 481.
    ; The express purpose of the trust was, to . give Meade the'legal title, and enable him to sue at law.
    But even if Meade could not- sue,.the bearer could; and Meade could receive payment, or transfer by delivery.- And having done so, he is presumed to have received full value from the plaintiffs. 1 Selw. N. B. 292, citing Carth. ,5.;- 2 Vent. 307; Skinner, 264*
    The banking Company are not parlies plaintiffs er defendants,, on the record, nor is the suit brought for their use, nor have they in fact any interest in the case,. And, in the language of the Supreihe Court ofthe United States&wkey;
    - “ It. may be. laid down as a rule, we think, .which admits of no' exception,. that in all cases where jurisdiction depends on the party, it is die party named on the record.” Governor of Georgia v. Ma-drays, 1 Peters, 122.
    “Jurisdiction is neither given nor ousted by the relative situation' •of the parties concerned in interest-, but by the relative situation of the parties named on the record.” ' Osborn v. Bank United States, .©'Wheat; 738.
    A trustee’may sue in the federal courts without reference to. the domicil of his cestúi que trust. Irvine' a.-' Lowiy, 14 Peters,'298; Bank United States*.-», Devaux, 4 Cránch,’ 308; Corporation of Washington v. Yo.ung, 10 Wheat. 4;. Story, Constitution, 566; 'Sergeant,. C. L. 113., 114; 1 Kent’s Coin,'348, 349.
    These authorities are equally conclusive .against the second cause assigned in the demurrer, that.“ those for whose benefit the suit is brought” are" citizens of Mississippi.'
    No.-other cause of demurrer is assigned:
    It is clear that jurisdiction is not •divested, on the.ground'that Meadé was a citizen of Mississippi, because the note was payable to him “or bearer,” and, therefore, not within the provisions of the' 11th section of the Judiciary Act of 1789. Bullard v. Bell, j Mason, 251. And in Bank of-Kentucky v. Wistar et al., 2 .Peters, 326, the court say: “ The other point has relation to the form of the bills which are made payable to individuals or bearer, cpncern-.ing which individuals there is no averment of citizenship, and which, therefore, may have been payable in the first instance to parties not competent to sue in the courts of the United States. Bur this .is also a question which has been* considered and disposed of in our' previous decisions. This court has uniformly held that a note payable to bearer is payable to anybody, and not affected, by the disabilities of the nominal payee!”
   Mr. Justice McLEAN

delivered the opinion of the court.

This is a writ of error from the southern district of Mississippi.

The plaintiffs brought their action on four promissory notes, payable at different times, for. different sums,-and bearing different dates, ' except two, which were dated the 23d January, 1839. In each of the notes the defendánts promised, or either of them, to pay to Cowles Meade, or bearer, for the use of the Real Estate'Banking Company of Hinds county, at their banking house in Clinton, the sum named, without.defalcation, for value'received.

The defendants demurred to-thé declaration, and assigned the following causeé óf demurrer:

1. “ The plaintiffs cafinot maintain the action, because, í>y their own showing, the defendants who. are sued are also a part of the persons for whósé u?e,the suit is commenced.”
2. “ The court can have no jurisdiction of this case, because, although it is true, the nominal plaiñtifis are the bearers of the paper sued on, and citizens.of.a state other than Mississippi, yet, those for whose benefit shit is brought, for any thing which appears in the declaration, are citizens of the state of Mississippi.”

The notes in question passed by delivery, and the plaintiffs, as hearerSj have a-right to sue in their own names, as the promise to pay is made to bearer. The plaintiffs allegp that, they are citizens of New York, and, consequently, the Circuit Court had jurisdiction of the case. : Where the citizenship of the parties give jurisdiction, and the legal right to sue is, in the plaintiff, the court will not inquire into the residence of thóse who may have an equitable interest in the claim. They are not necessary parties on the record, A person having the legal .right may súe, at law, in the federal'courts, without reference to the citizenship of those who may have the ’equi- - table interest., Irvine v. Lowry, 14 Peters, 298. The judgment of the Circuit Court, which sustained the demurrer, is reversed; and the cause is remanded! for further proceedings;


text:
    The United States, Plaintiffs, v. Eli S. Prescott et al., Defendants.
    The felonious faking and carrying away the public pioneys in the custody óf 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 defence to an action on'his official bond.
    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.-Preseott had truly and faithfully exe- ~ cuted 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 wélí, 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 rtill 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 fiscál agent of the government, which . have been or may be imposed by any. act of Congress, or by any regulation óf 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 reve-, nue,’ approved July 4, 1840,. consistently with the other- official duties imposed upon him, then the said obligation to be void and of . hone 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, amefngst. 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. Hadduck,- 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 pecessary to insert' one of them. .
    “ '3. And for a.further-plea in this behalf, the said defendants say actio non, because they say that thé 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 1he 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 mon.eys, 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 ccfurt, the opinions of the judges were opposed on this question,, ■namely: Does the felonious stealing, taMng, ánd- 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-oh. 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 thé 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 thé defendant was respond sible. In Southcote’s case, 4 Co. Rep. 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' ease' of general bailment; it rests on- special contract.'. -All the. principles which govern it are summed np in Story on Bailments, 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 feneral bailments to sueh cases. If carriers are held responsible om 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 Lord Raym. 918, this doctrine is indicate!, when speaking of the fifth species of bailment, and the same principle is sustained by Raymond, 220; 1 Ventris, J90; Holt, 131; 1 Wilson, 281; 1 Term Rep. 27; Strange, -128.
    The case relied upon by the other side is 17 Mass. Rep. 479, where gold was depoáted with the. Essex Bank for safe keeping, and stolen by the officers of the bank.: But that was á 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 t© 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 accepta-tion 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, dpwn by Lord Holt, Coggs v. Bernard, 2 Lord'-Raym. 917, as the fifth class of bailments, and called by Judge Story in his Commentary on Bailments, and Jones on Bailments, locaiio custodiee, 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 on > Bail. sect. .8, 442, 2d e.d.; Jones on Bail. 90, 91, 96, original ed.
    Such a depositary is bound to ordinary diligence, and only responsible for losses by ordinary negligence. Story on Bail, sect; 442; Jonés on Bail. 97, -98, 99; Platt v. Hibbard, 7 Cow. R. '497.
    , If hemses due care, and the property deposited is nevertheless stolen, he is excused; Coggs v. Bernard, 2 Lord Raym. 918, where Lord Holt, says, “heds only to do the best hé 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 on Bail. sect. 444,455, 2d ed.; Roberts v. Turner, 12 T. R. 232; Brown v. Anderson, 2 Wend.” 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 ordinafy 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 cf 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 tó 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 mankmd.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 nó judicialmeaning had beep, 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 custodia.’"

    The words “keep safely,” therefore,-.considered in théir 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, arid. judg? ment -was given because’the. goods were to be' safely kept. The plea, however, was defective in, not avefring that they were stolen without his default,- or that-he used ordinary care and diligence,, and theft being evidence of ordinary neglect according to iSif Wm;. Jones, (although this is nOw doubted,) it would be presumed that the defendant had béeh guilty of ordinary- neglect, and this is in .accordance .-with-the opinion of‘Sir Wm. Jones in commenting upon this, case, (Jones'on Bail. p. 43, original edition,) where he says: If the plaintiff) instead of replying, had demurred to the-ple'a in, bar, he might haye insisted, in argument, with' reason- and law on' his side, that, although a general' bailee to . keep be responsible foe. . 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 inti- ‘ mating,-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. 1

      The Words •“ keep safely,” then, by Southcote’s cqse, 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 Lcb 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 tp 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 otherjudges, {except Powell, J.) held, (as is remarked by Judge Story, Com. on Bail. sect. 35, 2d edition,) “ that upon a promise by a bailee,1 with-. out reward to keep or- carry safely, he is not responsible for injuries ' or losses occasioned by the acts of wrong-doers, arid á 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 this 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-wont charge him'with all softs oft 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-doérs, when put in writing, it is hard it should do it more so when spoken. Doct.'and Stud. 13Ó, 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 Squthcote’s case; if the bailee be' guilty of gross negligence, he will be chargeable, but not for any or1 dinary neglect.” See 2 LcT, Raym. 914 and 915; Lord Holt’s cominent on Southcote’s casé. In the same case,-Gould, J., agreeing with Lord Holt. Says, (2 Ld. Ráym. p. 909,) “ So if goods are depo- . sited with a friend, and are stolen from him, no action will lie. -. . . ■ But it a man undertakes-expressly to do such a fact, safely.and securely, if the thing copies to- anydam-age by his miscarriage, an 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 spe- ‘ cial 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: on Bad. sect. 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 áccidents, as if the goods are, stolen, but not such as happen by the act of Godbut 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 rea-, son 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 thfem. 3 Black. 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 on ■Bail. 44, orig. ,ed.;) “Mr. Justice Powell, speaking of South-cote’s case, which he denies to be law, admits that ‘ if a man does 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 against1 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 base 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 on Bail. 44.
    In 2 Black.' 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. reá-sonáble 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 Espinasse R. 315, was a cáse 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 cáse the property had been stolen from the depositary.
    The American authorities are to the same effect.
    Foster v. The Essex Bank, 17 Mass. Rep. 479, was a case of deposit of gold in á bank, under .'a memo, signed by the cashier, that it was “left for.safe keeping5” the eourt, (Parker, X,) delivered an elaborate 'opinion, and reasons on the naturh nf 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'simplé depositary, extends his liability to ordinary neglect, .and in the case of a dépositary 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. Rep. 502.
    .. l '-Dane’s Abr. chap. 17, art. 11, sect. 3, lays down the. same .doctrine.
    Judge Story,.-(Story on Bail, sects.-7Ó, 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" frflm his--own negligence,,and.want of due..diligence and care.
    Chancellor Kent-(2 Kent’s Com. 563, note d, 3d edition) alludes to the; decision in 17 Mass.- Rep. 479, with approbation.
    The great weight of authority, then, both ijx England aftd in this country, supports the doctrine, that under the contract to keep safely, the depositarywould 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 R. 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 Southcct'e’s case, the case of Coggs «. Bernard.” Willes R. 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 says, in the note above referred to, that the doctrine in-Kettle v. Broinsall, Willes R. 118, and in Southcote’s case, 11 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 on Bail. sect. 39, 2d édition, where the distinction is refuted; and it is held that “ ho' 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 thére 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 Gase 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 t(ie declaration, and there might or might not have been one.
    In Hargrave and Butler’s note to 2 Co. Lit. 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 toJ carry safely, with- . out stating either that the defendant was to have hire or was a common barrier.” -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 on Bail. sect. 442; Jones on Bail. 49, 91, 98, 99, original ed. The liability, therefore, of the special depositary to kéep_safely, and of the depositary for a rewárd, is the same; and if thfe. 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 on Bail. sect. 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 on Bail, sect. 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 Black. Com, 452; ¡ 17 Mass. Rep. 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 fee 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 beep, decided to be, viz., ordinary diligence. These words only make a difference in the case of deposition, or naked bailment, because the usual liability in that case, for gross neglect only, is inconsistent with safe keeping. And this agrees w;itK~ 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 Goggs 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 secure would.have made a difference in this case, as. m 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 casé 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 fey law, or the directions of the' Treasury Department, (sect. 6, act of 1840.)
    • By section 12, of the act of 4th July, 1840, government-agents are required to examine “ the money onrhand and the manner of its being kept;” and by section 13, the register is required to examine and report, from timé to time, the condition of the money on hand with the receiver; and by section Í4-,, the officers may be allowed for fire-proof chests,, vaults, &c., for Safe-kééping, 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 “.me 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 on Báil. sect. 74,2d ed.; “ if the depositor agree that the goods may .be kept in a particular place, &e,, he cannot object after-wards 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,” ancl 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 á memo., for safekeeping, 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. Rep. 501, says, “and this certainly is the more reasonable doctrine, for the common understanding of a promise to keep safely, would be, that the partyWould use due diligence and care to prevent the loss or, accident; énd 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 maleé 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, the 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 on his part, discharged him and his sureties, and may be set up as á defence to án 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 ter keep safely, he is only subject to the liabilities imposed by laugupon such a depositary; that the'special contract does not enlarge'his liability.

' This is not a casé 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 aré founded upon public- policy. The conditions of -the bond, are, that the' said Prescott has “ truly and faithfully 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, ana faithfully, and shall well, truly, and faithfully,.'keep safely, without loaning of using, all the public moneys collected by him, ór 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, to1 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,” &e. •

The condition of,the bond, has'been broken, as the defendant, Prescott,, failed to pay- over the money received by-him, when re-qiiired 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 defence is, that it is not within ;the condition of the bond; and tl is 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; haw, 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 nability, contrary to his' own express undertaking? There is no'principle, on which such a defence can be sustained. The obligation to keep Isately the public, money is absolute, , without any condition, express or implied; and' nothing but the payment of k, when required, can discharge the bond.

The case of Foster et al. v. The Essex Bank, 17 Mass. Rep. 479, was a mere nakéd bailment, and of bourse 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 a door to frauds,, which might, be prac-tised 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 oúr postmasters, .collectors of the customs, - receivers of. public moneys, and others who receive more or léss of the public funds, ’ and what losses might not be anticipated by the public? No such-principle has been recognised 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 volunta-' rily incurs.

The question certified to us is answered, that the defendant, Prescott, arid his sureties, are not discharged from the bond, by a felonious stealing of the money, without any fault or negligence on the . part df the depositary;- and, consequently, that no such defence to ' the bond can be made.