Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1897-11-11

the default and embczz.ement aforesaid.
! within two years before the commence
| ment Of this action"
| Justice Clifford, who delivered the opin-
| ion of thc Court. simply sold that it was
| quite evident, that tine facts pleaded did
not constitute any defence to the action,
and that such being the settled law of thc
Court it was not necessary to enter into
any discussion of the question.
| | will cite at length one other case aris-
| ing upon an official bond. which is partic-
uarly valuable as an illustration of the
| principle established by The preceding
cases, although the bond is not the bond
| of public officer.
| II is the case of Hart VS.. United States,
95 L. 5. p. 3tS. This was : suit COM
menced in the Court below against the
sureties in distiler's bond, the breach
being the non-paymcnt of internal rev.
| enue tax by their principal, the distiller
on spirits distilled by him. 1t vas ar
| gued oil demurrer.
:, Mr.. Chief Justice Wait delivered the
opinion of the Court, and said "Under
lhe law as it stood when this suit was
commenced. no distilled spirits could be
removed from distillery warehouse ne
foIe payment of the tax, fifteen stat. 130
IL, without subiectine all of those en-
gagtd in such removal to heavy penalties,
id. no. sect. :36. An officer of the United
States had no authority 10 dispense with
this requirement of the law. II in yio-
lation of his duty he permitted the re-
moval he subjected himself to punish
ment, but did not bind the government by
his acts.
''Fhe government is not responsible for
the lachcs or the wrongful acts of its
officers. Gibbons VS.. United States. s
Wall 26a; United States V. Kirkpatrick,
o Wheat T20; United States V. Van
zandt. / id. lSi: United States V. Mich
oil, J.. id. sos: Jones ct al. V. United
States. 1S Wall. 6G2.
"Eveiv surety upon an official bond to
the government is presumed to enter into
his contact with full knowledge Of
this principle of law, and to consent to he
dealt Will accordingly. The government
enters into no contract with him that its
officers shall perform their duties. A gov
cnrlnent may he loser by the negli-
genrc of its Oficers but it never becomes
bound to others for the consequences of
such neglect. unless il lie by express agree
ment to that effect Hero the surety was
aware of the lien which the law gave
as security for the payment of the tax.
| He also knew that. in order to retain this
lien the government must rely upon the
diligence and honesty Of its agents. IL
they performed their duty and preserved
the security, it enured to his benefit as
well as that of the government: hut if
by neglect or misconduct they LOST it. the
government did not come under obliga-
tions to make good the loss 10 him, or,
what is the same thing, release him pro
tanto from the obligation Of his bond.
As between himself and the government.
he took the risk Of the effect of official
negligence upon the security which the
law provided for his protection against
loss by reason of the liability he as
| sumed." 3
This case is followed by Minturn V.
United States. 106 U. s.. IA, decided in
1882, in which government officer per-
mitted goods to be taken from bonded
warehouse without full payment of the
duties thereon.
Mr.. Justice Blatcbford delivered the
opinion Of the Court. and after citing the
opinion of Chief Justice Waite in Hart
VS.. L. S. and the eases cited by him, con-
l
the decisions of this Court. that the neg
ligcnce of the officers of the government
does not affect the liability of a surety in
a bond any more than it does that of his
| principal" He then cites nox V. Post
master General. Z. s.. V. kirkpatrick and
| U. $. V. Nanzandt
In all these cases. he statutory nro-
visions which We're violated by the officers
of the government. wcrc laws existing
at the time that the silreties in the of
fetal bonds entered into their contract
Of suretyship, and unqurStionably modi-
fled and decreased the rist imposed upon
such surcties by their undertaking.
In several of them, it is admitted that
| the whole loss incurred was in cunse.
qucnre Of Il violation Of those statutes by
the officers of the government.
At the same time, the Supreme Court
in another series of decisions, which have
| heen cited by counsel for complananis
as supporting their contention upon this
point, have laid down a principle which
may hest he expressed by quoting from
| the opinion of Mr.. Justice Shirus i'll the
ease Of Barnitz V. Beverly. 1G:t L. s..
t2T, which has hcen quoted in the brief
of one of complainants' counsel.
Mr.. Justice Shiras says, But this
| Court held through Mr.. Justice Miller,
| that all laws of state existing at the
| time Il mortgage or any other contract is
made. which affect the rights of the par
| ties to the contract, enter into and be-
come Il part Of it, and are obligatory on
| all Courts which assume to give remedy
on such contracts--that the construction.
validity and effect Of contracts are gov
| crned by the place whore they are made
and are TO he performed. il that be the
same-that it is therefore said that these
laws enter into and become Il part of the
contract"
Mr.. Justice Shiras reviews the we'll
known cases of Bronson Y. Kinzie, |
Howard 311, 316, and Brine v. Insurance
Company. 96 u. s. 627, 637, and many
others defining and applying this general
principle.
These cases state well settled principle
of law, but il is made plain by the author-
ties | have cited. that it mcst be applied
in connection with the equally well set
tied principle that, government is not
responsible for the laehes or the wrong
full acts of its officers"
And in the language of Chief Justice
Waite in Hart v. United States, cited
above, Every surety upon an official
bond for the government is presumed 10
enter into his contract with full know-
edge of this principle of law and to con-
sent to be dealt with accordingly. The
government enters into no contract with
him that its officers shall perform their
duty,
As was said by Mr.. Justice Story in U.
S. V. kirkpatrick. ''the surety may place
cnnfidnnrn in the nnents of Tho rnrnrn.