
    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.  