# United States v. Thomas (82 U.S. 337)

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## Dissenting Opinion

    Miller
United States Supreme Court
82 U.S. 337
United States v. Thomas
ERROR to the Circuit Court for the Middle District of Tennessee.
The United States sued Thomas and others as the principal and sureties on the official bond of the said Thomas, as surveyor of the customs for the port of Nashville, Tennessee, and depositary of public moneys at that place. The condition of the bond was in the usual form, that he should faithfully execute and discharge the duties of his office, according to law, and should well, truly, and faithfully keep safely, without loaning, using, depositing in banks, or exchanging for other funds than as allowed by act of Congress, all the public money collected by him or otherwise placed in his possession and custody, till the same should be ordered by the proper department, or officer, to be transferred or paid out; and when such orders for transfer or payment were received, should faithfully and promptly make the same as directed, and should perform all other duties as fiscal agent of the government which might be imposed by any act of Congress or regulation of the Treasury Department, &c. The breach alleged was, that certain public moneys were collected by Thomas in his official capacity, and were placed in his possession and custody, of which a balance of $4880 remained in his hands on the 27th of April, 1861, which he did not keep safely, but which he paid out to persons not entitled thereto, whereby it was wholly lost; and that although the said sum was ordered by the proper department and officer to be transferred and paid out, he failed and refused to transfer or pay it out, as so required. The defendants, besides performance, pleaded seizure of the moneys in question by the rebel authorities by the exercise of force, which Thomas was unable to resist, and against his will and consent, he being a loyal citizen, endeavoring faithfully to perform his duty. Upon the trial, evidence was adduced tending to support this plea, and the court charged the jury that if they believed from the evidence that, at the time the demand was made by the insurgents for the surrender by Thomas of the effects in his hands belonging to the government, there was an organized insurrection in the State of Tennessee, and in the city of Nashville, against the government of the United States, with a force sufficient to compel obedience to the orders and demands of the governor who led and controlled such insurrection, and that in this state of things the demand was made upon Thomas to surrender said effects; and if they further believed that Thomas was acting in good faith, and surrendered the effects in his hands only in the honest belief that he would be imprisoned and the effects seized by force, and had good reason to apprehend that and other violence to his person; and if they believed that the threatened force would be applied to compel the surrender, then the court was of opinion that the seizure and appropriation of the government effects in his hands would be by public enemies of the United States, and would relieve him from liability for the same, notwithstanding the condition of his bond; but if they believed that Thomas was one of the insurrectionists, or willingly co-operated with them in their lawless acts against the government, the jury might infer that he was willing that the effects in controversy should fall into the hands of the rebel authorities, and he would not be relieved from the obligations of his bond. To this ruling an exception was taken, and whether the ruling was correct in law was the point now before this court.
Mr. G. H. Williams, Attorney-General, and Mr. C. H. Hill, Assistant Attorney-General, for the plaintiff in error:
Performance of an express contract is not excused by reason of anything occurring after the contract was made, though unforeseen by the contracting party, and though beyond his control. This law was declared in England years ago, in the old case of Paradine v. Jane. It is emphatically thus reasserted there of late time in Ford v. Cotesworth:
'We think it firmly established, both by decided cases and on principle, that where a party has either expressly or impliedly undertaken, without any qualification, to do anything, and does not do it, he must make compensation in damages, though the performance was rendered impracticable by some unforeseen cause over which he had no control.'
The rule was equally enforced in this country in Dermott v. Jones, and has been applied by this and other courts to the cases of official bonds under circumstances undistinguishable in principle from the present, in United States v. Prescott, United States v. Dashiel, United States v. Keehler, Boyden v. United States, United States v. Bevans, Muzzy v. Shattuck, Commonwealth v. Comly, and State v. Harper.
In Boyden v. United States, the court observes:
'It is true that in Prescott's case the defence set up was that the money had been stolen, while the defence set up here is robbery. But that can make no difference, unless it be held that the receiver is a mere bailee. If, as we have seen, his liability is to be measured by his bond, and that binds him to pay the money, then the cause which renders it impossible for him to pay is of no importance, for he has assumed the risk of it.'
Mr. Henry Cooper, contra:
We concede that it is no defence to an action on the official bond of a receiver of public moneys, conditioned to keep safely the public moneys, that the money was feloniously stolen, as in the cases of United States v. Prescott, or of United States v. Dashiell, or paid over by the officer voluntarily to a creditor of the government, without authority from the United States, but under a statute of the Confederate States, as was the case in the case of the United States v. Keehler, or where the officer is overpowered and robbed, as in the case of United States v. Boyden, or where an officer is in default, and such default concurs with the acts of a public enemy, and contributes to or facilitates the wrong, or renders it possible, by which the money is lost, as was the case of United States v. Bevans. The principles settled in these cases have no application to the present case. In none of them does it appear that it was impossible to have prevented the loss. And to have excused the officers, under the circumstances, might have opened the door to fraud. But here we have this case: The officer was a loyal citizen of the United States, with her property in Tennessee, and Tennessee and the United States were public enemies, waging war. The public property of the latter is found within the territory of the former; the commanding general has the right to determine whether or not he will seize it; it is subject to seizure, and he orders Thomas to surrender it; the latter finds himself without protection, and is bound to submit to such laws as the ruler of the territory chooses to impose. If he had been ordered by the United States to transfer the effects to the loyal States he could not possibly have obeyed the order, nor could the United States have enforced it. Those who here gave the order were at the head of a government of paramount force. In such a case it is not only a necessity, but the duty of parties who reside in such territory to yield obedience to the ruling power in all civil and local matters.
It was not necessary that actual violence should have been used to constitute duress. Moral compulsion was sufficient.
Mr. Justice BRADLEY delivered the opinion of the court.

## Notes

* ↑ Aleyn, 26.
* ↑ 4 Law Reports, Q. B. 134.
* ↑ 2 Wallace, 1.
* ↑ 3 Howard, 578.
* ↑ 4 Wallace, 185.
* ↑ 9 Id. 83-88.
* ↑ 13 Wallace, 17.
* ↑ Ib. 56.
* ↑ 1 Denio, 233.
* ↑ 3 Barr, 372.
* ↑ 6 Ohio State, 607.
* ↑ 13 Wallace, 56.
* ↑ Thorington v. Smith, 8 Wallace, 11.
* ↑ Brown v. Pierce, 7 Wallace, 214; Baker v. Morton, 12 Id. 156.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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