The United States, Plaintiffs in error, v. Thomas Gibbes Morgan, Thomas W. Chinn, Micajah Courtney, Josiah Barker, and the Heirs and legal Representatives of John Davenport, deceased, 11 How. 154

Mr. Justice WOODBURY delivered the opinion of the court. This was an action on an official bond, given to secure the faithful performance of duty by one of the defendants, as collector of the port of New Orleans. His appointment took place in June, 1841, and the bond was dated in December of the same year, and the condition was averred to have been broken in 1843 by not paying over large sums .of money collected foij’ the United States, and by not making seasonable returns of his accounts.

The. breaches were denied, and at the trial it would seem that evidence was given in relation to them, and the jury returned a verdict for the plaintiffs for $ 60,569.57. But something like $ 100,000 more appear to have been claimed, which the jury,, under the instructions given by the court, disallowed, and^exceptions were thereupon filed to these instructions. The object and character of the exceptions are intelligible by means of what is stated by the judge in connection with them, though no preliminary evidence is set out, on which the points of law arose.

This mode of drawing up a bill of exceptions is defective, as the material facts or proofs on which the instructions rest should be inserted before the instructions, in order that we may see.if the points arise on which they are given, and to which exception is taken. Zeller’s Lessee v. Eckert et al. 4 Howard, 297, 298; Vasse v. Smith, 6 Cranch, 233, 234; 3 Howard, 555, 556.

The treasury transcript in support of the suit, and the precise breach, and the instructions or circulars .from the Department as to the mode of cancelling and transmitting the notes in the present case, should appear, so far as material, as well us the evidence, how they were in fast cancelled, arid what Iras' probably become of them since. / But considering that we can, by way of inference from the instructions in the'form in. which they were given, ascertain the substance of the facts, and save delay in sending the case back for a fuller and more technical bill before deciding thé points of law presented, we have concluded to state our. opinion now on those points.

And neither party can complain of this, when, as here, neither has objected to the imperfect form of this bill, and when the questions on which the judge instructed the jury are apparent, and are not pretended to have been abstruse or irrelevant, but related to the gist of the matter in controversy. Etting v. Bank of the United States, 11 Wheaton, 59.

The material,facts, from what is developed in the charge, seem to have been, that the collector, received near100,000 for duties in treasury-notes, and cancelled them; but after being. put up in a bundle to be sent to the Treasury Department, through the post-office, and orders given to the servant accustomed to deliver packages there to deliver these, the bundle was stolen or lost. It appeared further, that two of these notes for $ 500 each were soon after altered and presented to the collector in payment of other duties, and recéived by him as genuine.

One of the instructions excepted to was, that if these last two notes were taken by the collector without his knowledge or consent to their alteration, and if they appeared, to' be genuine, and he believed them to be so, he was not liable for their amount and interest. But we- all agree in opinion that this instruction was erroneous. A collector is bound to take genuine money or notes rather than counterfeit ones, or the government would be exposed to infinite frauds and losses.

The collector, too, need not thus suffer in a case like this, as he is required to keep a register of all treasury-notes received, and from whom taken; and if any prove to be counterfeit, or altered, he has a remedy in his own name, or that of the government, for the amount on the person who paid them in. It is well settled, likewise, that an attempted payment in counterfeit money, as cash, is in law no. payment. Ellis v. Wild, 6 Mass. 321; Young v. Adams, Ibid. 182, 186; Jones et al. v. Ryder et al., 5 Taunton, 488; Salem Bank v. Gloucester Bank, 17 Mass, 1, 27, 28; 2 Johns. 455; 6 D. & E. 52.

And as the collector here has given a discharge for the duties to the amount of these notes, and has acknowledged the receipt of payment for the duties to the government, as well as the importer, and received or paid over nothing for them which he was authorized to receive, he must stánd chargeable for that amount. . He was; no more justified in taking cancelled treasury-notes for duties than in taking waste-paper, and it was his particular duty to see that théy had not been cancelled or counterfeited; and in the

schedule of the treasury-notes, which he was obliged to keep, he had ample means of detection. Though the government might still possess a remedy against the importer for the duties, there having yet been no valid payment by him, yet this is no bar, if they choose to resort to their remedy on the bond of the collector, for his official negligence and wrong in taking for their revenue counterfeit or cancelled notes. The other instruction presents a question of more difficulty.

It was, that the collector was not liable for the treasury-notes which he had received for duties, if they had been duly cancelled, after received, and were put up and ordered to be delivered at the post-office for transmission to the Treasury Department, though they were lost or purloined (without his knowledge or consent) before placed in the charge of the post-office. A majority of us think that this instruction also was erroneous.

It is manifest that, if the notes, though cancelled for security in keeping them till transmitted, were still to be regarded for any purpose as money, the collector must be considered as liable for their amount till paid to the Department, or actually delivered at the post-office, in conformity with the orders of the Department.

It would then be a liability on his bond to pay over what money he had received, as that manifestly had not here been done; or it wrould be a liability to perform his .duty as'promised in his oath and bond, and as required by law and treasury instructions, — to transmit or pay over the notes, and which, considering them as money, it cam not be pretended he has done. On this it is enough, in support of his continued responsibility, to refer to the United States v. Prescott, 3 Howard, 578. But were these notes, when lost, still money ?

It is true that originally they were by law to be received as money. (Act of 12th October, 1837, 5 Stat. at Large, 202, § 6.) • The fact that he is liable for the interest on these notes after received and cancelled, and until they reach the Department, appears to favor the idea that, the notes were still, for some purposes at least, to be treated as continuing money between the collector and the Department. (5 Stat. at Large, 203, §7.) But if this view be not cleany sustainable, and we doubt whether, under all the circumstances, after cancelled, they can be regarded as money,.or money’s worth, for the purpose of sustaining this action, yet it is clear that they still possess some value as vouchers, and as evidence for the Treasury Department that they have been redeemed.

It is still clear, also, that, though cancelled, the Treasury Department, unless having possession of them, is exposed to expense and loss by their being altered, and the cancellation removed or extracted, and their getting again into circulation, as two did here, and being twice paid by the government. For that reason',' these notes, though cancelled, are, by law and treasury orders, to be transmitted to the Department, and when received there are to be credited to the collector; but not till then, as a general rule.

If the collector, therefore, fails to send them there or to do all which is proper to get them there, by having them put into the actual possession of some public transmitting agent like the post-office, he fails in his duty; and it is not enough for him to say, in justification, as in this case, and as the court below upheld, that he gave orders to the accustomed servant to put them in the post-office. That servant was his own agent, and not the agent of the Treasury Department. He allowed the notes to be lost or stolen before reaching the post-office.

His employer must suffer by his neglect or unfaithfulness rather than third persons. The condition of the bond of the collector has, therefore, in ■ this view, never been fulfilled, and primó facie he is technically liable for its penalty, and is in justice, as well as law, respon- . sible for the amount of the iniury thus caused by himself or his own agent. The rule of damage would be the amount of the notes, — unless it appeared, as here, that they had been cancelled, and unless it was shown that the government had suffered, or was likely to suffer, damage less than their, amount.

How much is the real damage, under all the circumstances, is a question of fact for the jury, and should be passed on by them at another trial. Only that amount rather than the whole bond need, in a liberal view of the law, and of his bond, be exacted; and that amount neither he nor his sureties can reasonably object to paying, when he, by the neglect of himself or his .agent, has caused all the injury which he is in the end required to reimburse. And if any equities exist to relieve him from that, none of which are seen by us, it must be done by Congress and not the courts of law.

Any thing less than this, — any less strict rule, in the public administration of the finances, would leave every thing loose or unsettled, and cause infinite embarrassments in the accounting offices, and numerous losses to the government. The argument which has been pressed to exonerate him even from this extent of liability rests on.an erroneous impression thlat he was acting as a bailee, and under the responsibilities of only the ordinary diligence of a depositary as to the cancelled notes, when in truth he was acting under his commission and duties by law, as collector, and under the conditions of his bond.

The collector is no inore to be treated as a bailee in this case than he would be if the notes were still considéred for all purposes as money. He did not receive them as a bailee, but as a collecting officer. He is liable for them on his bond, and not on any original bailment or lending.

And if the case can be likened to any species of bailment in forwarding them, by which they were lost, it is that of a common carrier to transmit them to the treasury, and in doing which he is not exonerated by ordinary diligence, but must answer for losses by larceny and even robbery. 2 Salk. 919; 8 Johns. 213; Angel on Carriers, §§ 1, 9.

Finally, we decide on this last question as a matter of law this, and this only, namely, that .the collector is liable for all the actual damages sustained by his not returning the notes as required by law and official circulars; or for not putting them in the post-office so as to-be returned. (5 Stat. at Large, 203.) But how much this damage was is a matter of proof before the jury,-fixing the real amount likely to happen from their getting into circulation again, as two of them did here, from delay and inconvenience in obtaining the proper vouchers to settle accounts, from the want of evidence at the Department that the notes had been redeemed, or from any other direct consequence of the breach of the condition: of his bond, and of his instructions under it. .

Their return in the mode prescribed was by the original treasury-note law deemed important “ to promote the public-interests and convenience, and secure the United States and .the holders of said notes against fraud and losses.” (Sec. 12th of the act of 1837, before cited.) The neglect to do this is a manifest and injurious breach of his bond. The judgment below, then, must, for both of these instructions excepted to, be reversed, and the case sent back for another trial, in conformity with the principles we have laid down. Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Louisiana, and was argued by counsél. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, ^ind the same is hereby, reversed, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to award a venire facias de novo.