United States v. Prescott,
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44 U.S. 578 (1845)
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U.S. Supreme Court
United States v. Prescott, 44 U.S. 3 How. 578 578 (1845)
United States v. Prescott
44 U.S. (3 How.) 578
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, does not discharge him and his sureties, and cannot be set up as a defense to an action on his official bond.
On 4 March, 1839, Prescott was appointed Receiver of Public Moneys at Chicago, in Illinois.
On 1 October, 1840, he executed a bond, together with twenty-seven other persons, who were all defendants in the present suit, in the penal sum of $150,000, the condition of which was as follows:
"If the said Eli S. Prescott had truly and faithfully executed and discharged, and should truly and faithfully continue to execute and discharge, all the duties of said office according to the laws of the United States, and moreover had well, truly and faithfully kept and should well, truly and faithfully keep safely, without loaning or using, all the public money collected by him or otherwise at any time placed in his possession and custody till the same had been or should be ordered by the proper department or officer of the government to be transferred or paid out, and when such orders for transfer or payment had been or should be received, had faithfully and promptly made and should faithfully and promptly make the same as directed, and had done and should do and perform all other duties as fiscal agent of the government which have been or may be imposed by any act of Congress or by any regulation of the Treasury Department made in conformity to law, and also had done and performed and should do and perform all acts and duties required by law or by direction of any of the executive departments of the government as agent for paying pensions or for making any other disbursements which either of the heads of those departments might be required by law to make and which were of a character to be made by a depositary constituted by an Act of Congress entitled 'An act to provide for the collection, safekeeping, transfer and disbursements of the public revenue,' approved July 4, 1840, consistently with the other official duties imposed upon him, then the said obligation to be void and of none effect, otherwise it should abide and remain in full force and virtue."
In June, 1843, the United States brought an action of debt upon this bond against Prescott and all his securities setting forth, amongst other breaches, that on 15 June, 1842, Prescott was ordered by the Secretary of the Treasury to transfer the public
moneys to Edward H. Haddock, and that he neglected and refused so to do.
The defendants filed several pleas. The 3d, 4th and 5th were of the same character, and it is only necessary to insert one of them.
"3. And for a further plea in this behalf, the said defendants say actio non, because they say that the said Eli S. Prescott, before the commencement of this suit, did pay to the said plaintiffs all moneys which came into his hands as receiver of public moneys excepting the sum of $12,815, and the said defendants aver that the said Eli S. Prescott tendered to the said plaintiff the sum of $127 before the commencement of this suit, and the said defendants aver that whilst the said Eli S. Prescott had said money in his possession, and before the commencement of this suit, some person or persons, to said defendants unknown, feloniously did steal, take, and carry away from the possession of the said Eli S. Prescott, the sum of $11,688; part and parcel of said money received by the said Eli S. Prescott, as receiver of public moneys, although the said Eli S. Prescott used ordinary care and diligence in the safekeeping of the same, and this they are ready to verify, wherefore they pray judgment,"
To these pleas the plaintiffs demurred generally, and the defendants joined in the demurrer.
And the cause being argued upon the said demurrer before the court, the opinions of the judges were opposed on this question, namely does the felonious stealing, taking, and carrying away the public moneys in the custody of a receiver of public moneys, without any fault or negligence on his part, discharge him and his sureties, and is that a good and valid defense to an action on his official bond?
Upon this question the cause came up.