
    SAUSSEE’S CASE. M. W. Sausser, assignee of McGehan, v. The United States.
    
      On the Proofs.
    
    
      A distiller, pursuant to Treasury regulations, malees application for a meter and deposits tlie prescribed amomit with a deputy collector, who receives and receipts for it. The deputy collector does not pay over the money to the manufacturer of the meter nor to the Treasury, but embezzles it. The distiller, having to pay a second time for the meter, now brings his action to recover bach the amount of the deposit.
    
    Under tlie Act Hd March, 1867, (14 Stat. L., § 15, p. 481,) and the Treasury regulations made in pursuance thereof, a collector of internal revenue is the agent of the Government for receiving deposits made to procure prescribed distillery-meters, and is not the agent of a distiller who makes a deposit. Therefore, if the collector embezzles the money deposited the loss falls on the Government whose agent he is, and the distiller may maintain an action against the Government to recover it back.
    
      Mr. 0. 8. Lovell for the claimant:
    The facts of this case are as follows:
    The fifteenth section of the Act March 2, 1867, (14 Stat. L., p. 481,) says: “ Whenever the Secretary of the Treasury shall adopt and prescribe for use any meter or meters, it shall be the duty of every owner, agent, or superintendent of a distillery to make application to the collector of his district for such meter or meters to be used in his distillery, and the same shall be furnished and attached to the distillery at the expense of the distiller, whose duty it shall be to furnish all the pipes, materials, labor, and facilities necessary to complete such attachment, in accordance with the regulations of the Commissioner of Internal Revenue.”
    On April 19, 1867, in “ Special No. 54,” the Commissioner announces that the Secretary of the Treasury has adopted and prescribed a meter, and that regulations will be issued in a few days, and that no distiller will be allowed to continue in operation after May 15 unless he shall before that time have made application, for a meter, accompanied with adequate security for the payment of the necessary expense.
    On April 26 the regulations were issued, Circular 63, among which are the following:
    “ The collector receiving the application will, by himself or his deputy, make such examination as may be necessary to verify the correctness of the description given in the application, and will transmit the application, to this office, together with his certificate of its correctness.
    “ Every owner of a distillery will be required, at the time of making application, to deposit with the collector a sum in money or in United States bonds equal to the price named above for the size of meter required, with an addition of twenty-five per centum thereto as a guarantee of good faith with which the application is made, and to secure the contractor prompt payment upon the completion of the work.” “ Meters will be attached under the joint supervision of the manufacturer and of an officer who will be specially detailed for that purpose.”
    
    
      u Should any distiller continue in operation after that date, (15thMay, 1867,) without having complied with this requirement, it will be the duty of the collector to take immediate measures for a condemnation of the distillery.and the enforcement of the penalties, as provided by section twenty-five of the Act March 2,1867.” This is a stringent penal clause of the law.
    
      There toas no other law or regulation in existence when the money was paid which is the foundation of this suit, (April 6, 1868.) Any action relative thereto must of course rest on the then existing law. That the Government, through their collectors, assumed the agency is indisputable. The distiller was a passive party to the transaction. Non-compliance on his part would have resulted in the condemnation of his distillery. (Circular No. 63; Act March 2,1867,14 Stat. L., p. 483.)
    ■With such impending consequences, the demand of the collector had to be complied with. The money was paid, and the contract was assumed by the Government to apply the same to the payment of a meter which they were to furnish. Notification did come afterward from the collector second district of Ohio that the meter necessary for the distillery had arrived, and demand made for payment, but the collector declined to acknowledge or in any way to recognize the receipt given by his predecessor, and on September 1, 1868, a second sum was paid under protest. This action is therefore brought for the recovery of the money deposited, as per receipt heretofore alluded to. It is freely admitted that if the money, the return of which is now sought, had been collected without warrant of law, it would have been an illegal exaction, for which demand could not be made directly of the United States. But enough has been shown to prove that the law authorized the Secretary of the Treasury to adopt a meter, and he did adopt one; that after said adoption the Commissioner of Internal Bevenue was authorized by law to prescribe necessary regulations, and that he did so; that the collector acted under these regulations, and, in compliance therewith, notified the distiller what was imperative thereunder. This legal notice being indisputable, the distiller deposited the money demanded with the Government, under the expressed and implied promise that it should be applied as the terms of the receipt set forth.
    Mr. Alexander Jolmston (with whom was the Assistant Attorney-General) for the defendants:
    There is no dispute about the material facts of this case. The money claimed was paid to McGroarty; but it has not been accounted for, and is not in the Treasury. The defense insist that the exaction of the money from McGehan was illegal.
    The Act 2d March,, 1807, authorizing the Secretary of the Treasury to adopt and prescribe a meter or meters, even admitting that it was intended that he should furnish them, did not authorize the exaction of the price of a meter from a distiller unless or until the same was actually furnished; much less did the act authorize the Commissioner of Internal Bevenue, who had no duty whatever to perform in reference to the furnishing of meters, to make such exaction. All officers and agents of the Government have their duties prescribed by law; and what they do outside and beyond their prescribed duties does not bind the Government. {Pierce v. The United States, 7 Wall., p. 6G6.) The Government “cannot be made liable for the unauthorized acts of its officers, even though it derive a benefit thereby.” (Gibbons v. The United States, 8 Wall., p. 269.)
    The duties imposed upon collectors by the so-called “regulations ” of the Commissioner were extra-official. They were not, nor were their sureties, liable under their bonds for moneys received for meters 5 in fact, they were not in any way responsible to the Government, but only to the parties from whom the moneys were received.
    McGehan has a claim against McGroarty individually, if McGroarty got the money. He put his money into McGroarty’s hands, receiving no consideration therefor. The fact that the Commissioner of Internal JEtevenue held out a threat which compelled McGehan to deposit the money with McGroarty may make the Commissioner also liable, but it certainly does not make the Government liable.
   Nott, J.,

delivered the opinion of the court:

The material facts of this case are not disputed, and the only question of law is whether a distiller, who has made a deposit with a collector of internal revenue to procure a meter, pursuant to the express requirements of the Treasury “ regulations for supplying distilleries with meters,” can recover back money when the Government fails to furnish him with the meter. We are of the opinion that the regulations were authorized by the Act 2d March, 1867, (14 Stat. L;, § 15, p. 481,) and that money deposited with the collector in pursuance of those regulations was money advanced to the Government, for which it is bound to account. The misappropriation of the fund deposited by the collector is like the misappropriation of any other funds committed to his official custody, and the party who paid or deposited it with him in pursuance of law is not chargeable with his official negligence or malfeasance. The Government chose to assume the responsibility of receiving these deposits, instead of allowing distillers to deal directly with the manufacturers of the meters. The collector was the agent of the Government, which had a discretion in selecting him, and was not the agent of the distiller, who was compelled against his wishes to deal with him. The loss, therefore, must fall upon the principal of this agent, which is the Government.

The judgment of the court is that the claimant recover the sum of $1,500.  