To the extent of the amount of their official bonds, it is fixed by special contract; and the policy of the law as to their general responsibility for amounts not covered by such bonds may be fairly presumed to be the same."

EXTENT OF LIABILITY.-It is generally held that where an officer executes a bond which by its terms makes his liability absolute and unconditioned, or where the statute makes it absolute, he is bound to account for all the public money he receives, even though part of it be stolen from him without his fault. It is no defense to an action on his bond that the money was stolen from him: United States v. Prescott, 3 How. 578; United States v. Morgan, 11 Id. 154; United States v. Dashiel, 4 Wall. 182; Halbert v. State, 22 Ind. 125; Morbeck v. State, 28 Id. 86; Inhabitants of Hancock v. Hazzard, 12 Cush. 112; S. C., 59 Am. Dec. 171; Commissioners of Jefferson Co. v. Lineberger, 3 Mont. 231; S. C., 35 Am. Rep. 462; State v. Sheldon, 10 Neb. 452; State v. Blair, 76 N. C. 78; Commonwealth v. Comly, 3 Pa. St. 372. And even where a county provides a safe for its treasurer, and requires him to keep the public moneys in it, he and his sureties will be liable to the county for moneys stolen from such safe without any fault or negligence on his part: Halbert v. State, 22 Ind. 125; Commissioners of Jefferson Co. v. Lineberger, 3 Mont. 231; S. C., 35 Am. Rep. 462. In the case of Ross v. Hatch, 5 Iowa, 149, it was held that under the then existing statute of Iowa, and by the terms of the bond in that case, a county treasurer was only required to exercise reasonable diligence and care in the preservation and disposal of the public money, and that he was not liable for moneys which were stolen from the treasurer without any want of reasonable care and diligence on his part. This case was decided on the principle that the liability of public officers is determined by the terms and conditions of their official bonds, and if the officer is bound by such terms and conditions only to the exercise of reasonable diligence in the preservation of the money intrusted to him, he will not be liable for its loss if it is stolen from him without his fault: See District Township of Taylor v. Morton, 37 Id. 550, and District Township of Union v. Smith, 39 Id. 9, S. C., 18 Am. Rep. 39, where this case is cited and explained. Nor will the fact that the money was lost or destroyed by pure accident exonerate the officer or his sureties from liability on his official bond: Clay Co. v. Simonsen, 1 Dak. 403; District Township of Union v. Smith, 39 Iowa, 9; S. C., 18 Am. Rep. 39. In the latter case, the moneys "had been actually destroyed by fire without want of care and diligence on his part," and yet the treasurer, who had executed an official bond conditioned to be void if he should fulfill the duties of treasurer "to the best of his ability, and according to law," was held liable to account for the moneys so destroyed. In delivering the opinion of the court in that case, Beck, J., said: "But the law holds that events against which the parties could have provided in their contract shall never be alleged as an excuse for the non-performance of obligations into which they have entered." Where an officer deposits public money in his custody in a bank, and the money is lost through the failure of the bank, the fact of such loss will not exonerate him from liability: Inglis v. State, 61 Ind. 212; Lowry v. Polk Co., 51 Iowa, 50; S. C., 33 Am. Rep. 114; State v. Powell, 67 Mo. 935; S. C., 29 Am. Rep. 512; State v. Moore, 74 Mo. 413; S. C., 41 Am. Rep. 322; Ward v. School District, 10 Neb. 293; S. C., 35 Am. Rep. 477; Havens v. Lathene, 75 N. C. 505. Hough, J., in delivering the opinion of the court in State v. Powell, supra, said: 'Public officers, however, are universally held to a more rigorous accountability than simple trustees, for the public funds committed to their keeping; and though, in a general sense, they may be said to be bailees, still they are bailees who are subject to special obligations for the

benefit of the public, and the degree of their responsibility is not to be determined by the ordinary law of bailment." In the same case it was held that the fact that the treasurer was not guilty of any negligence in failing to ascertain the financial condition of the bank did not exonerate him from liability for the money lost by its subsequent failure. Neither does the fact that the county did not provide any safe place for the deposit of public money exonerate the county treasurer from liability for money which he deposits in a bank, where it is lost by the failure of the bank: Lowry v. Polk Co., 51 Iowa, 50; S. C., 33 Am. Rep. 114. In the case of the United States v. Keehler, 9 Wall. 83, the facts were these: Kechler, who was postinaster at Salem, North Carolina, owed the United States a balance of three hundred and thirty dollars when the rebellion broke out. The United States at the same time owed one Clemmens upwards of three hundred dollars for postal services rendered by him in that vicinity. In August 1861 the Confederate congress passed an act appropriating balances in the hands of postmasters at the outbreak of the rebellion, to the payment of claims against the United States. Keehler, in obedience to orders from the post-office department of the Confederacy, paid the three hundred and thirty dollars to Clemmens and took his receipt. It was decided on these facts that such payment was no defense to an action on his official bond, and that no such voluntary payment was a compliance with its conditions. In the subsequent case of Bevans v. United States, 13 Id. 56, Bevans had been compelled by the Confederate authorities to deliver to them money belonging to the United States, which he held in his custody, but this fact was held not to be a defense to an action on his bond. In the case of Boyden v. United States, Id. 17, the plaintiff, who was a receiver of public moneys, was suddenly beset in his office, thrown down, bound, gagged, and against all defense that he could make, violently robbed; yet he was held not to be exonerated.

MISCELLANEOUS.-When the same person is collector of taxes for two successive years, and pays to the town the arrears of taxes collected on the tax list of the first year with the money collected on the tax list of the second year-the town not knowing whence the money came-and fails to perform the conditions of his official bond for the second year, his sureties are liable to the extent of his default, and are not entitled to deduct the amount so paid by him for taxes of the first year: Inhabitants of Colerain v. Bell, 9 Met. 499; State v. Sooy, 39 N. J. L. 539. The payment of money in the hands of a county treasurer to his successor, at the end of his term of office, can only be effectuated by the delivery of what the law of the land recognizes as money. Certificates of deposit, no money having been realized from them, are not payment, even if assented to by the successor. Nor will the treasurer be relieved thereby from liability on his official bond for failure to pay over the money found to be due from him to the county: Cedar County v. Jenal, 14 Neb. 254. It is the duty of a state treasurer to receive from his predecessor the moneys and securities of the state in the latter's hands, and if he accepts in lieu thereof the receipts or checks of a depositary with whom the same was left by the officer, he will be liable therefor on his official bond, in case the money is lost by the failure of such depositary: State v. Newton, 33 Ark. 276. In Arkansas, a collector who pays over to the treasurer what he collects in currency in county warrants is thereby relieved from official liability therefor, because the law makes such warrants a legal tender by the collector in payment of his indebtedness on account of taxes: Askew v. Columbia County, 32 Ark. 270; State v. Rives, 12 Id. 721.

Where a county treasurer receives, in payment of a judgment, county

AM. DEC. VOL. LXVII-24

scrip, whien ne pays out to the county superintendent of schools, and the lat ter sells it at a discount and returns the proceeds to the treasurer, the treasurer will be liable on his official bond for the amount of the discount: Blake v. Commissioners of Johnson County, 18 Kan. 266.

An officer who has received moneys raised by tax for a specific purpos cannot be allowed to withhold them from the object for which they were raised, and for which they were received by him, upon the ground that the local law under which they were collected was invalid: People v. Gallup, 65 How. Pr. 108; First National Bank of Oxford v. Wheeler, 72 N. Y. 201. A county treasurer is liable on his official bond for taxes collected by him upon the duplicate in his hands, although the rate of taxation exceeded that allowed by law: Feigert v. State, 31 Ohio St. 432. Where a town treasurer collects money virtute officii, though without the warrant required by the statute, he cannot be heard to deny that it is the property of the town: Cairns v. O'Bleness, 40 Wis. 469.

In Commissioners of Hancock County v. Bradley, 53 Ind. 422, it was held to be a good defense that the defendant, a county treasurer, having lost the money sued for by burglary and larceny, the board of commissioners of the county, in a settlement with him as such treasurer, allowed him the amount so lost, and ordered that he be relieved and discharged from the payment thereof, which action of the commissioners had not been appealed from, but still remained in force. But in Supervisors of Richmond County v. Wand-l, 6 Lans. 33, it was held that boards of supervisors have no power to discharge a county treasurer from liability for not paying over moneys belonging to the county.

ACTS OF CONGRESS MODIFYING STRICT RULE OF LIABILITY.-The strict rule of liability adopted by the supreme court of the United States in United States v. Prescott, 3 How. 578, and applied in subsequent cases by the same court, no doubt tended to produce hardship and work injustice in some cases. And congress, in order to guard against the possible injustice which a rigid enforcement of the rule of liability adopted by the supreme court might in some cases produce, by an act approved April 29, 1864, provided "that in all cases where loyal postmasters have been robbed by Confederate forces or rebel guerrillas, of post-office stamps, stamped envelopes, or of money received and collected for, belonging to, and held for the government of the United States, and where such robbery has not been caused by the default or negligence of the postmaster, the postmaster general shall be and he is hereby authorized to credit such postmaster, in the settlement of his accounts, with the amount of which he may have been so robbed. And in cases where no such credit has been allowed, and the postmaster has been required to and has accounted for and paid over to the post-office department the sum or sums of which he may have been so robbed as aforesaid, the postmaster general is authorized to refund the same to such postmaster:" 13 Stats. at Large, 62. By the act of March 3, 1865, the provisions of the foregoing act were "extended to cases of loyal postmasters, where, by reason of the presence of armed forces, a post-office is destroyed and the postmaster loses the fixtures and furniture or postage-stamps and stamped envelopes; and also to cases where such losses are occasioned by armed forces other than those of the so-called Confederate States:" Id. 505. And by the second section of the act to extend the jurisdiction of the court of claims, approved May 9, 1865, and generally referred to as the " disbursing-officers act," it further provided "that whenever said court shall have ascertained the facts of any such loss to have been without fault or neglect on the part of any such officer, it shall make a decree. setting forth the amount thereof, upon which

the proper accounting officers of the treasury shall allow to such officer the amount so decreed as a credit in the settlement of his accounts:" 14 Id. 44. To sustain an action for relief under the last of these acts, the claimant's own testimony that he was robbed is not sufficient, especially when it appears that there were disinterested parties cognizant of all the circumstances: Pattee v. United States, 3 Ct. of Cl. 397. This act is held to extend to the case of an officer whose chief clerk steals money from the office, if the clerk was found there by the officer when he came to assume its duties, and had borne a good reputation, and the officer exercised prudence in the care of the money and diligence in the effort to recover it: Howell v. United States, 7 Id. 512. The words "without fault or neglect," contained in the act, are not technical, but must be taken in their common signification. The degree of care and diligence which the act requires is that which a prudent man would exact from his agent in a like matter: Malone v. United States, 5 Id. 486. And in that case it was held that an officer who carries money in the way officers generally do, and it is lost, but under circumstances entirely free from suspicion, is entitled to relief under this act. But where a paymaster sent an orderly with two thousand six hundred and fifty-eight dollars, in a package to be deposited in a treasury depository, and on the way the package was stolen from or by the orderly, it was held that the pay-master was not "without fault or neglect" in the matter, and relief was denied him: Holman v. United States, 11 Id. 642. An officer whose clerk fraudulently raised checks, and who was compelled, in order to avoid suspension, to make good the amount, was held not to come within the provisions of this act, for he might have had recourse against the bank where he kept the money: Hall v. United States, 9 Id. 270.

LATE DECISIONS LIMITING STRICT RULE.-Up to the year 1872, when the supreme court of the United States decided the case of United States v. Thomas, 15 Wall. 337, the strict rule laid down by the same court in United States v. Prescott, 3 How. 578, seems to have been very generally, if not universally, applied by all the state courts where the question came up for decision. In the case of United States v. Thomas, supra, a majority of the court, justices Swayne, Miller, and Strong dissenting, decided the following propositions: 1. A collector or receiver of public money, under bond to keep it safely and pay it when required, is not bound to render the money at all events, but is excused if prevented from rendering it by the act of God or the public enemy, without any neglect or fault on his part; 2. He is a bailee of the government, and is by the common law only bound to due diligence, and only liable for negligence or dishonesty, but by the policy of the acts of congress on the subject a more stringent accountability is exacted; 3. The measure of this enhanced liability is to be found in his official bond, the performance of the condition of which can only be excused by an overruling necessity; 4. The late rebellion being a public war, the forcible seizure by the rebel authorities of public moneys in the hands of loyal government agents against their will, and without their fault or negligence, is a sufficient discharge from the obligations of their official bonds in reference to such moneys. The action was brought against the defendant and the sureties on his official bond as surveyor of the customs for the port of Nashville, Tennessee, and depositary of public moneys at that place. He pleaded seizure of the moneys in question by the rebel authorities by the exercise of force which he was unable to resist, and against his will and consent, he being a loyal citizen, endeavoring faithfully to perform his duty. The questions decided squarely arose in the case, and were authoritatively determined. Of the justices who dissented.

Mr. Justice Miller only delivered an opinion. Referring to the case of United Siates v. Prescott, supra, and the subsequent cases approving the decision in that case, he said: If the opinion or judgment of the court were based upon a frank overruling of those cases, and an abandonment of the doctrines on which they rest, I should acquiesce in that, though I did not in conference approve the judgment. But if the opinion of the court is to be construed as permitting those cases to stand as law, while the principles on which alone they can be defended are weakened by its argument, I must express my dissent from that view of the case. And still more strongly do I dissent from the distinction attempted to be drawn between this case and those." These words show the ground upon which the learned justice dissented from the majority opinion. In reference to the main question involved in the case, he said: "When the case of United States v. Dashiel came before the court, I was not satisfied with the doctrine of the former cases. I do not believe now that on sound principle the bond should be construed to extend the obligation of the depositary beyond what the law imposes upon him, though it may contain words of express promise to pay over the money. I think the true construction of such a promise is to pay when the law would require it of the receiver if no bond had been given; the object of taking the bond being to obtain sureties for the performance of that obligation. Nor do I believe that prior to these decisions there was any principle of public policy recognized by the courts or imposed by the law which made a depositary of the public money liable for it, when it had been lost or destroyed without any fault of negligence or fraud on his part, and when he had faithfully discharged his duty in regard to its custody and safe-keeping."

Since the decision of the case of United States v. Thomas, 15 Wall. 337, the supreme courts of Maine and of South Carolina have had occasion to pass upon the question of the liability of a public officer for money once in his custody. In the case of Cumberland County v. Pennell, 69 Me. 357, S. C., 31 Am. Rep. 284, the facts were as follows: While the defendant, Pennell, who was treas urer of the county, was sitting in his office, with the door of the safe therein closed and bolted, but not locked, he was suddenly and violently beset, overpowered, and rendered senseless by robbers, who thereupon, against his will and without his fault, burglariously opened the safe and feloniously took and carried away therefrom the sum of money belonging to the county, not paid over by him at the close of his official term, and for the recovery of which the action was brought. The supreme court, on these facts, rendered this decision: "That the treasurer's degree of responsibility was simply that which the common law imposed upon him as bailee for hire; that the statute of this state did not extend or enlarge it; that his official bond does not increase his responsibility, but simply affords security for the performance of his legal obligations; that if, without fault or negligence on his part, the county treasurer is violently robbed of money belonging to the county, it is a valid defense, pro tanto, to an action upon his official bond; that the burden of proving such defense is upon the defendants; that evidence that the treasurer used a safe placed in the treasurer's office for his use by the county commissioners is immaterial; and that the commissioners have no authority to release a treasurer from responsibility." Virgin, J., who delivered the opin ion in that case, in discussing the question from the standpoint of public policy, said: "Were the law otherwise in this state, and known to be such, faithfulness and honesty, even if they continued to be considered commenda ble personal qualities, would be held, if not mere abstractions, matters of secondary importance, at best, in candidates. Such qualifications, accom