§ 119. An objection was made that a warrant, citation and monition was not signed by the clerk of the court. It was attested by the judge, sealed with the seal of the court, and signed by the deputy clerk. Held sufficient. In general, a deputy of a ministerial officer can do every act which his principal might do. The Confiscation Cases, 20 Wall., 92.

§ 120. A sheriff is responsible for the acts of his deputy in making a levy and sale under an execution. Clute v. Goodell,* 2 McL., 193.

§ 121. Public officers are not responsible for the fraudulent acts of their clerks, if they show that the embezzlement or misconduct was not attributable to their negligence. United States v. Broadhead,* 3 Law Rep., 95.

§ 122. A government officer, in this case a quartermaster, who was empowered to appoint subordinates, cannot delegate such power of appointment to another. Burroughs v. United States,* 4 Ct. Cl., 558.

§ 123. The deputy of a marshal is a sworn officer, known to the law, and he may return, as deputy, the process served by him. Spafford v. Goodell, 3 McL., 97.

§ 124. The service of a summons, by a deputy marshal, the day after the new marshral has filed his bond and taken the oath, the process having before been in the hands of the deputy, is good. But this does not apply to the service of an execution. Stewart v. Hamilton, 4 McL., 534.

§ 125. Purchasing agents.— It seems that the official care and custody of a purchasing agent of the government is not ended by the delivery of the property purchased to a carrier of his own choosing for transportation, but continues till the property comes into the official custody of some other government agent or official. Tyson v. United States,* 4 Ct. Cl., 389. § 126. The declarations of a public agent that he has power to act are not evidence of his authority. James v. Stookey, 1 Wash., 331.

§ 127. State officers.-A suit may be maintained against an officer of the state to restrain him from invading the rights of the complainant secured by the constitution and laws of the United States. Hancock v. Walsh, 3 Woods, 351.

§ 128. A federal court cannot compel officers of a state, by injunction, to execute the laws of the state. McCauley v. Kellogg, 2 Woods, 13.

§ 129. A court of equity can enjoin officers of a state from acting under a void law. Bancroft v. Thayer, 5 Saw., 502.

§ 130. Requirements by United States courts of state officers must be in conformity with state statutes. Such officers cannot be called on to do more than by the law of the state they have the right to do. United States v. County Court of Knox County, 1 McC., 608.

§ 131. Trial of right to office.- Under section 2010, Revised Statutes, the cases in which the circuit courts of the United States have jurisdiction are limited to those in which it shall appear that the sole question touching the title to office arises out of the denial of the right to vote to citizens who so offered to vote, on account of race, color, or previous condition of servitude, and that the jurisdiction is only given to the extent of determining the rights of the parties to such office, by reason of the denial of the right guarantied by the fifteenth amendment to the constitution of the United States. Johnson v. Jumel, 3 Woods, 69.

§ 132. Section 2010, Revised Statutes, gave no jurisdiction to the federal courts to enable a party to regain an office, to which he had a title established by an election, and from which he had been subsequently ejected. Ibid.

§ 133. Captured property.- No agent of the treasury department was justified in receiving, after the 30th of Juue, 1865, any captured property, unless theretofore surrendered; much less was he warranted in making any capture of unsurrendered cotton after that date. McLeod v. Calicott,* 2 Am. L. T. (U. S.) Rep., 113; 10 Int. Rev. Rec., 94.

§ 134. A special supervising agent of the United States taking property, as captured property, under color of law, or under a mistake as to the character of the property, is not liable for such act in an action for trespass. Ibid.

§ 135. Minors may hold ministerial offices that call for the exercise of skill and diligence only. They are not eligible to offices which concern the administration of justice. The office of notary public is a ministerial one, and there being nothing in the constitution and statutes of Indiana making infants ineligible to such office, an infant can hold it in Indiana. United States v. Bixby, 9 Fed. R., 78.

§ 136. Where money is in custodia legis, the officer holding it is the mere hand of the court; his possession is the possession of the court; to interfere with it is to invade the jurisdiction of the court, and an officer so situated is bound by the orders and judgments of the court, and can make no disposition of the money without the consent of his own court, express or implied. In re Cunningham,* 9 Cent. L. J., 208.

§ 137. The fourteenth amendment to the constitution of the United States created a disability to hold office, to be removed by a two-thirds vote of each house of congress, and to be made operative in other cases by the legislation of congress in its ordinary course. Thus

a judge holding office in the state of Virginia, who was one to whom the prohibition to hold office applied, was not removed by the direct and immediate effect of the prohibition in such amendment, but legislation was necessary to effect such removal, and his sentence of a prisoner tried in his court was lawful, Griffin's Case, Chase's Dec., 364; In re Griffin, 2 Am. L, T. (U. S.) Rep., 93.

§ 138. It is not competent for any officer of the government to donate or remit taxes due from the citizen, under the laws passed by congress for the collection of revenue. United States v. Roelle, 6 Rep., 559.

§ 139. Discretion.- Where an act declares that certain officers may, if advisable, do a certain thing, whenever the public interest or individual rights call for its exercise, the language used, though permissive in form, is, in fact, peremptory. In all such cases it is held that the intent of the legislature, which is the test, was not to devolve a mere discretion, but to impose a "positive and absolute duty." Supervisors v. United States, 4 Wall., 435.

§ 140. Warrant officers are included in the terms said officers" in the third section of the act of April, 21, 1806 (2 Stat. at L., p. 390). Johnson v. United States,* 2 Ct. Cl., 167. $141. How far government bound by acts of. It is no defense to a surety on a distiller's bond that the breach of the bond occurred with the knowledge and assent of the agents of the government. The government is not responsible for the laches or wrongful acts of its officers, and enters into no contract with such surety that its officers shall perform their duties. Hart v. United States, 5 Otto, 316.

§ 142. The agents of the government do not bind the government when their powers are transcended. United States v. City Bank, 6 McL., 130.

$143. No officer of the United States has authority to enter into a submission in their behalf which shall be binding on them unless the power is given by a special act of congress. United States v. Ames, 1 Woodb. & M., 76.

$144. Officers of the United States holding public money, as the money of the United States, are accountable only to the United States, and are not liable at the suit of an individual on account of having such money in their hands. Vasse v. Comegyss, 2 Cr. C. C., 564.

§ 145. Money in the hands of a sheriff cannot be levied on nor applied to an execution against the plaintiff. Reno v. Wilson, Hemp., 91.

§ 146. A public officer who buys a bill of exchange for public use, and agrees to pay for it when it should be duly honored, is not personally responsible. Stone v. Mason, 2 Cr. C. C.,

431.

$147. A public agent of the government, contracting for the use of government, is not personally liable, although the contract be under his seal. Hodgson v. Dexter, 1 Cr. C. C., 109. $148. Whenever a contract or engagement made by a public officer is connected with a subject fairly within the scope of his authority, it shall be considered to have been made officially and in his public character, unless the contrary appears by satisfactory evidence of an absolute and unqualified engagement to be personally liable. Parks v. Ross, 11 How., 362. § 149. An agent of the United States does not bind his principal by his declarations unless clearly acting within his authority and empowered to make them. United States v. Martin, 2 Paine, 68.

§ 150. It is too clear to be controverted, that where a public agent acts in the line of his duty, and by legal authority, his contracts made on account of the government are public, and not personal. They inure to the benefit of, and are obligatory on, the government, not the officer. Hodgson v. Dexter, 1 Cr., 345.

$151. Cotton purchased within the Confederate lines in pursuance of an agreement with an agent of the treasury department, under the act of July 2, 1864, was seized by a naval officer, and detained, the orders of the department regulating such traffic not having been received by him. Upon the receipt of said orders the cotton was delivered to the claimant, shipped to New York, and sold, the market in the meanwhile having greatly declined. Held, neither the government nor the officer was liable, the officer having acted in the line of his duty, and the government not being responsible for laches, if any, in transmitting orders. Burnside v. United States,* 3 Ct. Cl., 367.

§ 152. Although a private agent, acting in violation of specific instructions, yet within the scope of his general authority, may bind his principal, the rule as to the effect of the like act of a public agent is otherwise. Individuals as well as courts must take notice of the extent of authority conferred by law upon a person acting in an official capacity, and the rule applies in such a case, that ignorance of the law furnishes no excuse. Whiteside v. United States, 3 Otto, 247.

§ 153. Torts committed by an officer do not render the government liable on an implied assumpsit. Ibid.

§ 154. If an officer,. without just cause or lawful authority, takes or destroys the property of a citizen, though he act by color of his office, he is liable in damages to the injured party.

But where, in carrying out his general instructions, he must act on his judgment, and exercise discretion, his conduct is viewed with liberality. And, although there may have been no precedent authority for the particular act, if it is adopted by the government, the government alone is responsible. Wiggins v. United States,* 3 Ct. Cl., 412.

§ 155. There is no express authority given by law to any officer of the government to draw or accept bills of exchange. Whenever, in conducting any of the fiscal affairs of the government, the drawing a bill of exchange is the appropriate means of doing what the department or officer has a right to do, then he can draw and bind the government in doing so. But the obligation resting on him to perform that duty, and his right and authority to effect such an object, is open to inquiry, and if they be found wanting, or if they be forbidden by express statute, then the draft or acceptance is not binding on the government. The Floyd Acceptances, 7 Wall., 666.

§ 156. Principals in the case of private agents are in many cases bound by the acts and declarations of their agents, even when done or made without authority, if it appear that the act was done or declaration was made by the agent in the course of his regular employment; but the government or public authority is not bound in such a case unless it manifestly appears that the agent was acting within the scope of his authority, or that he had been held out as having authority to do the act or make the declaration for or on behalf of the public authorities. Hawkins v. United States, 6 Otto, 689.

$157. Where commissioners employed and authorized by the public to sell and make contracts for the sale of lands in the city of Washington had made contracts with certain parties, who had advanced a considerable sum of money, to convey certain of the lots which they had contracted for, to persons named in their orders, and, supposing that such parties had not yet received titles to land equal in value to the sum advanced, had told the plaintiff that if he would obtain an order from said parties for certain lots they should be conveyed to him, but afterwards discovering that lots had been already conveyed to the amount of the whole sum advanced, had given notice to the plaintiff of this fact, offering, however, to convey to him the lots in question on his paying for them at the rate expressed in their contract with said parties advancing said sum of money, in a suit nominally against said commissioners, but in fact against the United States, wherein plaintiff contended that the defendants, in their public character, having misinformed him as to the state of accounts between them and said parties so advancing said sum of money, thereby induced him to relinquish a demand against the latter, and sought to have discounted from a judgment which they had obtained against him for the use of the United States a sum equal to the principal and interest of the debt lost, it was held that the communication made by the commissioners to the plaintiff being altogether gratuitous, and not being within the sphere of their official duties, the United States could not be injured by it. Lee v. Munroe,* 7 Cr., 366.

§ 158. When the object and purpose of an agency is to create an indebtedness on the part of the United States, then such agency can only be authorized by that branch of the government whose function it is to pledge the public credit, and whose duty it will be to provide for this as for all other public indebtedness. The acts of congress having provided for the purchase of military supplies and organized a corps of officers called the purchasing department, and such purchasing department being afterwards abolished and the duties thereof required to be performed by the officers of the quartermaster's department, such officers are the only military purchasing agents contemplated by the statutes, and can alone bind the government by express contracts for such purpose. (CASEY, C. J., dissented.) Reeside v. United States,* 2 Ct. Cl., 1; Burton v. United States,* 2 Ct. Cl., 223.

§ 159. Where congress had authorized the construction of a mint in California, not to exceed in cost a certain sum, the law-making power was here the government, and the executive officers its agents, and no act of theirs could bind the principal for a greater sum than that fixed by the statute. Curtis v. United States,* 2 Ct. Cl., 144.

§ 160. An officer of the United States had no power to make a lease of part of the public land in California, after the treaty of Guadalupe Hidalgo and prior to the admission of California into the Union; and such lease, though approved by the general commanding, and subsequently ratified by the secretary of the interior, is void. Friedman v. Goodwin, 1 McAl.,

142.

$161. An agreement between the consul-general for the Ottoman government in the city of New York, with a manufacturing company, by which the latter agreed to pay the former commissions for services in effecting the sale of fire-arms to the Turkish government, is an agreement for the sale and purchase of the official influence of an officer of a government, and is against public policy and void. Oscanyan v. Winchester Repeating Arms Co., 15 Blatch., 79.

§ 162. The United States is not liable to a defendant for the wrongful conduct of its agents. United States v. Wickersham, 10 Fed. R., 505.

§ 163. A state is not bound by the acts of its agents, unless it manifestly appears that they are acting within the extent of their authority, and individuals, as well as courts, must take notice of the nature and extent of the authority conferred by law upon a person acting in an official capacity. Bancroft v. Thayer, 5 Saw., 509.

§ 164. Unless money is in the hands of an officer of the government authorized to receive it, it is not in the hands of the government. Carver v. United States,* 16 Ct. Cl., 381. $165. The government cannot set up the wrongful act of its officers to relieve it from its legal liabilities. Bank of Boston v. United States,* 10 Ct. Cl., 544.

§ 166. The government is not responsible for the mistakes of its agents either in matters of law or of fact. McElrath v. United States,* 12 Ct. Cl., 216.

§ 167. Money is recoverable by the government which was paid out by its agents, under the mistake of law that the person to whom it was paid was an officer of the government, and entitled to it. Ibid.

§ 168. Where the agents of the government illegally sell the property of a person, and apply the proceeds to the payment of a fine illegally imposed on him, the owner can recover, and the measure of damages is the money paid over and held by the government. Devlin v. United States,* 12 Ct. Cl., 272.

§ 169. The acts of an agent of the government not harmful to a distiller give him no right of action against the government. Finch v. United States,* 12 Ct. Cl., 404.

$170. A public officer in charge of public property, exposed to the weather, has authority to procure tarpaulins for the protection of such property, if necessary and proper, and the government is liable therefor. Holton v. United States,* 15 Ct. Cl., 280.

§171. If a public agent fails in his duty, it gives a party injured no right of action against the government. Hence, when an officer removes a buoy marking a dangerous obstruction in a harbor, and a vessel in the employ of the goverment runs upon it and is lost, the owner has no cause of action against the government. Flushing Ferry Co. v. United States,* 6 Ct. CL. 7.

§ 172. A special agent of the government, clothed with no general powers, has no power to bind the government by a contract outside his powers. So where a special treasury agent sold cotton, employing an auctioneer, the government is bound by no warranty of quantity, express or implied. Bennett v. United States,* 5 Ct. Cl., 109.

§ 173. An agent of the government cau bind it only while acting strictly within the limits of his authority. Ryan v. United States,* 8 Ct. Cl., 274.

§ 174. An officer empowered to equip men at a cost not above a certain price has diseretion as to the price to be paid for each article needed. Garrison v. United States, 7 Wall., 692. $175. The government is not responsible for the acts of a government agent acting outside the scope of his authority. So where a treasury agent sells captured cotton and pays the proceeds to a claimant who is not the owner, and does not pay the same into the treasury, as he should do, the government is not liable to the real owner of the cotton for the proceeds. Spencer v. United States,* 8 Ct. Cl., 293.

$176. A mere special agent of the government, with defined powers, cannot bind the government when he exceeds them. So where the subscription agent of the government advertises government obligations for sale, his representation that they are payable in gold does not bind the government. Savage v. United States,* 8 Ct. Cl., 553.

$177. A contractor dealing with the government is chargeable with notice of all statutory limitations placed upon the powers of public officers, but there is a difference between those powers expressly defined by statute and those which rest upon the discretion confided by law to an officer. Where a statute expressly defines the power it is notice to all the world; but where it confides a discretion to an officer, the party dealing with him in good faith may assume that the discretion is properly exercised. If the discretion be vested in a superior, while the transaction is with his subordinate, the contractor may assume that the discretion has been properly exercised, and that the subordinate is acting in accordance with his superior's orders. Thompson v. United States,* 9 Ct. Cl., 197.

178. The United States is not liable for the wrongful conduct of its agents in the management of the property of a third person. Wickersham v. United States, 10 Fed. R., 510. $179. A special treasury agent is an agent of strictly limited powers, and every step taken by him beyond such powers is unlawful and does not bind the government. Noble v. United States,* 11 Ct. Cl., 620.

$ 180. Sheriff. The provision of the statute of California' that the sheriff shall sell for delinquent taxes only the smallest quantity of the property which any purchaser will take and pay the judgment and costs is intended for the protection of the tax payer, and it is incumbent upon the officer to afford the opportunity to buyers to take such quantity as will suffice to pay the judgment and costs, and not to offer the whole tract assessed at once to the highest bidder. A recital in the sheriff's deed that he sold the land described to the "highest

bidder" and for the largest sum bid for said property is evidence against the grantee and parties claiming under him, and shows that the directions to sell only the smallest quantity were disregarded. (MILLER, J., dissented.) French v. Edwards, 13 Wall., 505.

§ 181. When a sheriff produces a prisoner in court under a writ of habeas corpus, his duties as custodian cease, until the order of the court clothing him with new duties and responsibilities. In the meantime the safe-keeping of the prisoner is entirely under the control and direction of the court, and if the prisoner escape from custody during such time, the sheriff is not responsible. Barth v. Clise, 12 Wall., 400.

§ 182. By an act of the legislature of Mississippi provision was made for the police court of any county, through which a certain railroad should be located, to subscribe for stock, if the sense of the people, obtained through an election, was in favor of it, and authority was given to levy a special tax if the vote was for the subscription. The sheriff of the county, who was ex officio tax collector, was required, before he entered on the discharge of the duties imposed on him by this legislation, to execute a bond, payable to the president of the board of police, and his successors, conditioned to safely keep and pay over to his order all moneys collected by virtue of the tax thus levied. The county voted the subscription, the tax was levied and collected. The police court failed to make the subscription, and the controversy arising with the railroad company resulted in litigation. This was compromised, and the railroad company agreed to release all claim for liability on account of stock voted for by the county, if the police board would pay over the amount collected by the sheriff. The president of the board accordingly, by draft, directed the sheriff to pay the money, but the sheriff would not pay it, alleging that the stock had been illegally subscribed for. Held, that the sheriff's duty was obedience, and that it was no part of his business to sit in judgment on the proceedings of the board of police, nor could he constitute himself an arbiter to settle the differences that had arisen, or might arise, between the county, the tax payers, and the company, growing out of the vote to subscribe stock, and the refusal to make the subscription. And the sheriff's omission to give bond could not affect his liability. Bell v. Railroad Company, 4 Wall., 598.

§ 183. A sheriff executing the process of a court having jurisdiction of the case in which it is issued is protected by the writ, when keeping himself strictly within its mandatory clause. Where a state court has jurisdiction of a cause in all respects until it is terminated by proceedings in bankruptcy, but the fact putting an end to its jurisdiction does not appear by its own record, and consequently is one of which the sheriff cannot, by legal possibility, have official notice, he is bound to obey the order of the court to which he is responsible. Conner v. Long, 14 Otto, 228.

§ 184. Where a sheriff in one state sells goods under the order of a court, while proceedings in bankruptcy, of which he has no notice, are pending against the owner in another state, and before notice received he has paid over the proceeds, he is not liable for them. Ibid.

§ 185. A creditor recovered judgments in the state courts against his debtor, who was afterwards thrown into bankruptcy upon the petition of another creditor. While the executions on the above judgments were in the hands of the sheriff the petitioning creditor obtained from the district court an injunction directed to the judgment creditor and the sheriff, restraining them from disposing of the property of said bankrupt until the further order of the court. Subsequently, on the petition of the judgment creditor, this injunction was modified, allowing the sheriff to sell the property levied on, and directing him to pay the proceeds into the district court to await its further orders. Held, in a suit by the judgment creditor against the sheriff, for not paying the money to him upon his executions instead of paying it into court, that the sheriff was not liable. The directions of the plaintiff will not only excuse the sheriff from his general duty, but ordinarily he is bound to obey such directions. O'Brien v. Weld, 2 Otto, 81.

186. When a sheriff receives an execution on which costs are due a clerk, and fails to make them when practicable, the sheriff becomes responsible; nor will the order of the plaintiff in execution vary the case as to the costs, whatever may be the effect on the debt. Lewis v. Hamilton,* Hemp., 21.

$187. Where an under-sheriff attached certain goods without a schedule, and made return thereof as of the value of $7,000, and obtained a receiptor therefor with the consent of the plaintiff's attorney, and afterward, by leave of the state court, amended his return by reducing the sum to $2,200, the actual value of the goods, it was held that it was within the discretion of the court to allow such an amendment, it being a case of pure mistake. Pierce v. Strickland, 2 Story, 292.

§ 188. If a sheriff fail to use ordinary vigilance to keep goods levied upon safely, and they are lost through his negligence, he is liable. Starr v. Taylor, 3 McL., 542.

§ 189. The sheriff levying an attachment on goods is the agent of both parties, and liable to either. Ibid.