United States v. Dashiel

• Decision Date: 01 December 1866
• Parties: UNITED STATES v. DASHIEL
• Court: U.S. Supreme Court

71 U.S. 182

18 L.Ed. 319

4 Wall. 182

UNITED STATES v. DASHIEL.

December Term, 1866

ERROR to the District Court of the United States for the Western District of Texas.

The suit was brought on the official bond of Dashiel, a paymaster in the army of the United States, and Paschall, one of his sureties, for breach of the condition in not paying over or accounting for public money that come into his hands.

The only defence set up was by way of plea or answer, and in substance is, that Dashiel received of the government $28,000 in gold, at Charleston, S. C., 15th June, 1857, for the purpose of paying off the troops at Forts Dallas and Capron, in Florida, and being compelled to stop at Pilatka several days, some $13,000 of the money were stolen from him—$3320 of which were afterwards recovered—and insists that he is not liable for the remaining $9675 so lost.

On the trial, the government gave in evidence properly authenticated transcripts, from the books and proceedings at the Treasury, of the account of Dashiel, showing a balance against him on the 15th of September, 1858, of $20,085.74 and costs.

The defendant then offered evidence tending to prove the loss of the money set up in the answer or notice, which was objected, to on the part of the government, but admitted by the court, and which is set out in the record.

The court, among other things, instructed the jury that the theft or robbery, if satisfactorily proved, was a good defence, if it did not occur from any want of proper care and vigilance on the part of the officer; under which instruction the jury found a verdict for the government for the balance due, after deducting the $9675.

A motion for a new trial on the part of the plaintiff having failed, the case was now here; the instruction above given being the matter complained of.

Mr. Stanbery, A. G., and Mr. Ashton, Assistant A. G., for the United States, plaintiff in error:

It is an adjudicated principle that the felonious stealing, taking, and carrying away the public moneys in the custody of a receiver and disburser of public moneys without any fault or negligence on his part, does not discharge him or his sureties from the obligation of his official bond, and constitutes no defence to an action by the United States on that bond.

United States v. Prescott et al.^* is in point. The defendant was receiver of public moneys at Chicago, and gave bond for the faithful discharge of the duties of his office, which required him to keep safely all the public moneys in his custody, and to pay over the same when required so to do. In the action brought against him and his sureties for the recovery of moneys intrusted to his care, the defendant pleaded that a portion of the same had been stolen from the office without any fault or negligence on his part. On a demurrer by the United States, the question arose, and was certified to this court for its opinion, whether that fact constituted a defence to an action on his official bond for the recovery of the stolen money. The court says: 'The liability of the defendant, Prescott, arises out of his official bond and principles which are founded upon public policy. The condition of the bond has been broken, as the defendant, Prescott, failed to pay over the money received by him when required; 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 this would seem to be conclusive. Public policy requires that every depositary of the public...