DOGGETT, BASSETT It HILLS CO. tI. BLACK.
CO. 'l1. BLACK
(Circuit Oourt, D. Indiana..
November 8, 1889.)
AQcidental destruction of the property by fire is no defense to an action on the deli,very bond author,ized by Rev. St. Ind. § 924, providing that defendant in attach· ment may keep the property by executing an undertaking that the property shall be properly kept and taken care of, and shall be delivered on demand to satisfy judg· ment, or that he will pay the appraised value of the property.
Morria, Newburger (Jurtis, for plaintiff. <JlaIypooZ Ketcham, for defendants.
GRESHAM, J. The plaintiff, the Doggett, Bassett & Hilts Company, brought a suit in attachment in this court against the defendant William D. Black, to recover a debt, and on the 1st day of November, 1883, the marshal, under the writ which had issued to him in the suit, seized a stock of dry goods, the property of Black. Black executed a delivery bond, in whkh his co-defendant in this suit joined as surety, and the goods remained in Black's possession. The obligation of the bond ,was that the attached property "shall be delivered up to said marshal * * *' upon demand, when said officer may be ready to receive the same, in as good condition as the same is at this date, to be sold by said marshal by virtbe ofanyexecution or judgment which may be rendered in said action against said Black. Further,that said Black may sell said propertyat private sale; and when so sold shall pay the cash value thereofto said marshal, to be applied on said execution." The goods were afterwards destroyed by fire, without fault or negligence on Black's part; and on the trial()fthe suit the plaintiff obtained for $2,222, and the attachment was sustained. Not being able to get the attached; goods or other property on demand. to satisfy the execution that 'had' issued to the marshal, he returned it unsatisfied, and this suit was brought on the bond against the prinoipal and surety. The latter answered'in several paragraphs, in the second of which he averred the los8 of the property, as already stated, to whioh the plaintiff demurred. Section 924 of the Revised Statutes of Indiana provides that "the defendantor other person having posi'ession of property attached may have the same, or any part thereof, delivered to him by executing * * * a written undertaking, * *. payable to the plaintiff, to the effect, that slichproperty shallb& properly kept and taken care of, and shall be delivered to the sheriff on demand, * * * to satisfy any judgment which may be recovered against him in the action, or that he will pay the appraised "alue of the property." The defendants were not prevented from fulfilling their obligation by the act of God, or the conduct of theJ)laintiff; its fulfillment was not made impossible by law; and th6 attachment was not dissolved. The sole ground of defense set up in the paragraph of the answer demurred to is that the attached property was
destroyed by accidental fire. That was not an act God, and the court is not called upon to decide what the effect would have been had the fire started by lightning or by some other superhuman agency. The defendants' counsel insists that a delivery bond, executed in an attachment suit, is not an absolute contract for the return of the propertyon demand or the payment of its value; but that the purpose of the statute is that the defendant shall be permitted to retain possession of the property by giving a. bond with surety that he will care for and keep it just as the officer would be required to care for and keep it if it remained in his possession, and that the liability of the latter is that of a bailee for hire only. If property in the custody of an officer uncier a writ of execution or attachment is lost 01' damaged while he is exercising that degree of care over it which is required of a bailee for hire, he is not liable. Authorities need not be cited in support of this proposition. But the relation that an officer sustains to property, thus in his custody, is not the relation .that. a defendant in attachment sustains to his own property after the execution of a delivery bond. The officer simply holds the property of the defendant to satisfy any judgment that may be obtained by the plaintiff, while the defendant retains possession of his own property for his own benefit, with the same power and dominion over it, including the right to sell, that he had before the levy of the attachment. The obligation of a delivery bond is the defendant, the owner of the property, will properly keep and take care of it, and deliver it to the officer on demand, or pay' its value at the time the bond is executed. If only part. of the attached property is delivered to the officer, or ifit is all delivered, but in a damaged or depreciated con<lition, the defendant and his surety in the bond are liable for the loss. If the property had remained in the custody of the marshal, and the attachment had failed, it would havebeen no defense, to an action on the attachment bond executed by the plaintiff, to have averred that the property had been deBtroyed by accidental fire while in the custody of the marshal, and it is equally clear that the averments contained in the second paragraph of the answer constitute no defense to the action. There is a wide difference between the possession of an officer, who levies on property under a writ of attachment and holds it for a particular purpose, and the possession ofa defendant in an attachment suit of his own property after the execution of a delivery bond, and it does not follow that because the possession and liability of the former is that of a bailee for hire only the liability of the latter is the same. If the defendants' of bailment, and counsel are correct, a delivery bond is a the defendant in· the action becomes bailee of his own property. De-murrer sustained.
BILL ".UNITED STATEs.
Hrr,L t7. UNITED STATES.
(Circuit Court, D. Massachusetts. November 21,1889.)
CLERK oJ' COURT-AcTION FOR FEES-NATURALIZATION FEES.
In an action against the United States by tbe clerk of a district court to recover fees due him, defendant cannot introduce evidence to prove, in the way of counter· claim, that plaintiff bas roceived and failed to account for fees received by him in the naturalization of aliens, since he is not bound to account for sucb fees.
At Law. Action to recover of the United States fees due plaintiff as clerk. John Lowell and Lewis S. Dabney, for plaintiff. Owen A. Galvin, U. S. Atty. Before COLT and NELSON, JJ.
NELSON, J. This is a suit to recover ofthe United States fees eamed by the plaintiff as clerk of the district court of the United States for the of Massachusetts. At the hearing the following facts were either admitted or proved, and are found by the court:
The plaintiff was appointed clerk of the United States district court for the district of Massachusetts on the 5th day of February, 1879. and duly qualified as sucb, and gave the necessary bond, and held said office until the 1st day of January, 1888, The plaintiff has transmitted to the attorney general, for each half year while he held said office, a return of the and emoluments of office, verified by oath in the form authorized and required by the attorney general. and on blanks furnished by the department of justice. in which the fees and emoluments earned from the United states, from individuals. and tn bankruptcy, have been stated, as likewise hill office expenses, with accompanying vouchers. which returns were in each ca8e duly certified by the jUdge of the United States district court, for the district of Massachusetts. in the manner required and the language set forth in said blank-accounts. The plaintiff has likewise forwarded to the first auditor of the trea8ury an abstract of compensation due him from government cases and for attendance ill court in each half year, with the accompanying vouchers, which abstract was in each case formally proved by him in open court in the presence of the attorney of the United States for the district, as required by law, and was duly allowed by said court, and was duly audited and referred by the auditor to the first -comptroller of the treasury. At the .May term, 1885, of this court, the United States, by writ dated December 4, 18l:l4, brought an action on his official bond against the plaintiff and his surety, in which the alleged breach of said bond was "that the said Hill has not properly accounted for all moneys coming into his hands as required by law, according to the condition of said bond." This -cause was. heard by the court on an agreed statement of facts, and on November 14. 1885. the judgment of said court was rendered therein for the defendant. This judgment was, on writ of error sued out by the United States, affirmed by the supreme court. The decision of the ci.rcuit court is reported, 25 Fed. Rep. 375, and that of the supreme court is reported, 120 U. S. 169,7 Sup. Ct. Rep. 510. At the May term, 1887, of this court, the United States, by writ dated April 29, lti87, brought a second action on his official bond against the plaintiff and his surety, in which the alleged breach of said bond was that "the said Hill has not properly accounted for all moneys coming into his hands, as required by law, /&Ccol'ding to the condition of said bond." .A. trial was had to a jury