So"far as the first defense is concerned, it is suffi.cientto say the I'ltatuteis plain, and susceptible of but one interpretation, and under ita pr0Visi0l;lS and the stipulated facts there can be no question that the full amount sued for. .' Does 'the, bond, by its terms, hold the defendants liable for this mone)? .Their undertaking was that Foster should "truly and faith· the duties of his said office according to law, and truly and faitblUl1y pay over and deliver. up all etc., which shall oomeinto his hands." It would be a narrow and unreasonable interpretation of this instrument to say that it held the bondsmen liable for moneys that came into Foster's hands from other sources, but that it did hold them liable f9r moneys that the government migh1 received by Foster overpay him for salary. '!'he money having in excess of the salary then justly due him, it his duty to repay the excess to the government. The performance of that duty, and the accountjng for this money, were as fully secured to the United States by the tenus of the bond as waS t1le discharge of any duty pertaining to his offilie, or the paytnent of any other moneys that might come into his hands as such offieer. Neit)lei'does the negligence treasUl1 department release the It is trUe, as. urged,' that the officers of the government refused to pay the overdraft'm the first instance, and, it, was their duty to have deducted the 6verpayment from the subsequent drafts for sallLry. If the obligee:in the bond were any ofuert1la/nthe governlnent, this defense might, avail in behalf of the sureties. But the neglect of the United States officials does not excuse Foster's wrong, in the :first instance; in drawing for more money than was due him, or his subsequent failure to refund the sable. All the property of the United States· is held in trust for the It is now well settled upon grounds of public policy that the public intere'!!lts shlLll not be prejudiced by the neglect of the officers, or agents to whose care they are confided. U. S. v. Nashville, C. & St.L. Ry. Co., 118 U. S. 120, 6 Sup. Ct. Rep. 1006; VanBrocklin v. State of Tennessee, 117 U. S. 151, 6 Sup. Ct. Rep. 670; U. S. v. Insley, 130 U. S. 263, 9 Sup. Ot. Rep. 485. . The judgment of theeircuit court is reversed, with instructions to enter judgment for plaintiff, and for eosts.
the.suNties liable for the money; third, that the the treasury'department was of such' a character as to
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UNITED STATES v. ADAMS et
(CIrcuit Oourt, D. Nevada. November 7, 1892.)
OJUTJllD STATES MABBBAL-BOND-LUJULITY.OF SmucTIEs-LACHElI.
The faUure of the U.nited States to present their claim aga1nBtthe estate of a deceased United' States marshal constitutes no defense to an action agalnsttWi!,suretles>on his ofticial bond. Laches can never be lmputed to -any case broUi1l.t to a Pl;lbUo .
'UNtTED STATES 11. ADAMI.
At Law. Motion to strlke'out J., W. Whitcher, U. S. Atty. Clayton for defendants.
a.verments in aDswa-.
HAWLEY,.District Judge. This is an action against the sureties on the. official bond of Thomas E. Kelley, as United States marshal for this district, to recover the sum of $2,339, alleged to be due the plainti:li. The defendants, in their a.nswer, among other things, allege that at the time of the death of Kelley, in July, 1888, his estate was valued at $1,483.14; that this amount was insufficient to pay his debts; that during the time the estate was in process of settlement the plaintiff was notified that said' estate was being settled, and plaintiff was requested to· present any claim which it might have against said Kelley; that the plaintiff failed and neglected to present any claim to the administrator of the estate; that by reason of the carelessness and negligence of the plaintiff the pref(:ll'ence and priority of payment of the United States (Rev. St. U. S. § 3466) was. wholly lost, and the entire estate was distributed to other creditors, and defendants were prevented from exercising the right of subrogation. Plaintiff moves to strike out these averments upon the groond that the facts therein stated, if true, constitute no defense to this action. Defendants, in opposition to the motion, rely upon the doctrine announced in U. S. . v. Flint, 4 Sawy. 43. and U. S. v. Beebe, 17 Fed. Rep. 37, to the effect tha,t when. the United States voluntarily appears in a court of· justice it at the same time voluntarily submits to the law, and places itself upon an equality with other litigants. But this statement is always qualified by the rule that neither the statute of limitations nor will bar the government of the United States as to any claim for relief in a purely governmental matter. U. S. v. McElroy, 25 Fed. Rep. 804; U. S. v. Southern Colorado Coal & Town Co., 18 Fed. Rep. 273. "'l'he United States are not bound by any statute of limitations, nor balTed by laches of their officers ina .suit brought by them as sovereign, to enforce a public right, or to assert a public interest; but where they are formal parties to the suit, and the real remedy sought 41 their name is the enforcement of a private right for the benefit of a private party, and no interest of the United States is involved, a court of equity will not be restrained from administering the equities between the real parties by any exemption of the government, designed for the protection of the rights of the United States alone." U. S. v. Beebe, 127 U. S. 338, 8 Sup. Ct. Rep. 1083. The general rule that laches is not imputable to the government is essential to the preservation of the interests and prosperity of the public. It is founded upon public policy. Any other doctrine would be ruinous in the extreme. The government can only transact its business by and through its officers and agents, and its fiscal operatioIlS are so various, and its agencies and officers so numerot1S and scattered, that the utmost vigilance would not the public froon the most serious losses if the doctrine of laches could be applied to lfiJ tri:lJlsOOtions. The supreme court of the United
dj:'lClaredtha,.t in a case like the present one laches cannot be set up against the government. U. S. v. Kirkpatrick, 9 Wheat. 735; U. S. v. Van Zandt, 11 Wheat. 190; U. S. v. Nich.oll, 12 Wheat. 509; Dox 1'. Postmaster General, 1 Pet. 318; Gibson v. Ohouteau, 13 Wall. 99; Gaussen v. U. S., 97 U. S. 584; U. S. v. Thompson, 98 U. S. 489; Steele v. U. S., 113 U. S. 129, 5 Sup. at. Rep. 396; U. S. v. Nashville, a. & St. L. Ry. Co., 118 U. S. 125, 6 Sup. at. Rep. 1006; U. S. v. Insley, 130 U. S. 263, 9 Sup. Ct. Rep; 485. The motion to strike out is granted.
:MEYER v. ST. LOUIS, I. M. & S. RY. CO. et aL (CIrcuit Court of Appeals, Eighth Circuit. January 27. 1893.) 1531.
CARRIERS-INSANE PASSEKGER-INJURY TO FELLOW PABBENGEB..
On triaJ. of an action against a railroad company and a sleeping-car comPlUlY to recover for the death of plaintiff's intestate, there' was proof that deceasl\d, a passenger,' while seated in a 'sleeping car, was approached by an .tnsanl:! person, who made a remark, overheard by the sleeping-car conductor, that "It's a &ll.dthing that they are trying to klll me, and I am a. defellSele8s man," and that shortly afterwards ,he shotdeceased,thereby cansing death; that such insane person was recognized, by the conductor and porters of the sleeping ear .as having. been transported. oier the line 19 days before, at which time he was in chains, violent, in charge of police officers, laborillg under a delusion of purSl11t by Jews, and expressed regret at having no gun to: protect himself. At the time of the shooting he was unattended, and prl,l)r thereto frequently stated to a number of 'persons that he was pursued by Jews who were trying to ldIl him, and that he was defenseless. The proof further showed that lie' had a dull, heavy, and Sl11len look, which might indicate insanity, and had applied to the conductor of the train for protection. Held, that an instruction that the defendant railroad company had no right to refuse transportation "on suspicion that such .person was dangerous to others from insanity, or any other cause, if such person, at the time of offering to become a passenger, was apparently harmless, and conducted himself in no way different from other passengers applying for passage," was reversible error, as the jury. might fairly infer therefrom that de;fendant was bound to receive an apparently harmless passenger, though it knew that he was insane in fact, or had grounds of suspicion that by reason thereof he might be dangerous.
2, SAllE-DUTY OF CARRIER-INSTRUOTIONS.
In such a case.the degree of care imposed upon the carrier is the bighest, and an instruction that the railroad company was bound to use the utmost care and diligence that prudent and careful men should have exercised is erroneous, in comparing the carrier's legal obligation with any degree of care required pf prudent men.
An Instruction that the carrier wall not obliged to provide guards or means of restra1nt or confinement,' anticipation of passengers becoming suddenly Insane, or' that, if the event occUrred after the passenger had begun b1s journey ,as an apparently sane person, it would bl:! the duty 01