Opinion of the Court.

14. That in the exercise of this discretion those officers, and the collector as their superior, are not responsible for any error of judgment in making the determination whether the quantity or variety of the dutiable articles was such, prior to sending the trunk to the public store.

"15. That the officers at the vessel, and the collector as their superior, can, if at all, only be held responsible for bad faith in the exercise of the discretion thus devolved upon them by the regulation established by the Secretary, under the law."

The court charged the jury, that if one of the subordinate officers of the customs, in the course of the performance of his duty, did an absolute wrong to the plaintiff, such as to take her trunk from her and keep it from her when she wanted it and was by law entitled to it, the defendant would be liable. The defendant excepted to this charge. The court gave further instructions, which bore upon the matters set forth in the defendant's request to charge, but which, in the view we take of the case, it is not important to notice. The bill of exceptions states, that the court did not comply with the defendant's requests to charge further than as appears by the charge as stated, and that the defendant excepted to the refusal to charge as to each request separately, so far as the court did refuse.

The jury found a verdict for the plaintiff for $459. The court ordered that a certificate of probable cause be entered, and on the verdict, with costs added, a judgment was entered for the plaintiff for $502.96, to review which the defendant brought a writ of error.

Mr. Solicitor General for plaintiff in error.

Mr. Edward Jacobs for defendant in error.

MR. JUSTICE BLATCHFORD, after stating the case as above reported, delivered the opinion of the court.

We are of opinion that there was error in the charge of the court, and that the defendant was not liable for the wrong, if any, committed by his subordinates, on the facts of this case.

Opinion of the Court.

There is nothing in the evidence to connect the defendant personally with any such wrong. No evidence was given that the officers in question were not competent, or were not properly selected for their respective positions. The subordinate who was guilty of the wrong, if any, would undoubtedly be liable personally for the tort, but to permit a recovery against the collector, on the facts of this case, would be to establish a principle which would paralyze the public service. Competent persons could not be found to fill positions of the kind, if they knew they would be held liable for all the torts and wrongs. committed by a large body of subordinates, in the discharge of duties which it would be utterly impossible for the superior officer to discharge in person.

This principle is well established by authority. It is not affected by the fact that a statutory action is given to an importer, to recover back, in certain cases, an excess of duties paid under protest; nor by the fact that a superior officer may be held liable for unlawful fees exacted by his subordinate, where lawful fees are prescribed by statute, and where such fees are given by law to the superior, or for the act of a deputy performed in the ordinary line of his official duty as prescribed by law. The government itself is not responsible for the misfeasances, or wrongs, or negligences, or omissions of duty of the subordinate officers or agents employed in the public service; for it does not undertake to guarantee to any person the fidelity of any of the officers or agents whom it employs; since that would involve it, in all its operations, in endless embarrassments, and difficulties, and losses, which would be subversive of the public interests. Story on Agency, § 319; Seymour v. Van Slyck, 8 Wend. 403, 422; United States v. Kirkpatrick, 9 Wheat. 720, 735; Gibbons v. United States, 8 Wall. 269; Whiteside v. United States, 93 U. S. 247, 257; Hart v. United States, 95 U. S. 316, 318; Moffat v. United States, 112 U. S. 24, 31; Schmalz's Case, 4 C. Cl. 142.

is

The head of a department, or other superior functionary, not in a different position. A public officer or agent is not responsible for the misfeasances or positive wrongs, or for the nonfeasances, or negligences, or omissions of duty, of the sub

Opinion of the Court.

agents or servants or other persons properly employed by or under him, in the discharge of his official duties. Story on Agency, § 319.

In Keenan v. Southworth, 110 Mass. 474, it was held, that a postmaster was not liable for the loss of a letter, occasioned by the negligence or wrongful conduct of his clerk. The court said: "The law is well settled, in England and America, that the postmaster general, the deputy postmasters, and their assistants and clerks, appointed and sworn as required by law, are public officers, each of whom is responsible for his own negligence only, and not for that of any of the others, although selected by him and subject to his orders." The court cited, to sustain this view, Lane v. Cotton, 1 Ld. Raym. 646; S. C. 12 Mod. 472; Whitfield v. Le Despencer, Cowp. 754; Dunlop v. Munroe, 7 Cranch, 242; Schroyer v. Lynch, 8 Watts, 453; Bishop v. Williamson, 2 Fairf. (Maine), 495; Hutchins v. Brackett, 2 Foster (22 N. H.), 252.

To the same purport are Bailey v. The Mayor, 3 Hill, 531; Conwell v. Voorhees, 13 Ohio, 523, 543; Story on Bailments, §§ 462, 463; 1 Bell Com. 468, 5th ed.; 2 Kent Com., 4th ed., 610, 611.

The very question here involved came before the Circuit Court of the United States for the Southern District of New York, in the case of Brissac v. Lawrence, 2 Blatchford, 121, in June, 1850. The defendant was the collector of the port of New York. Imported goods belonging to the plaintiff had been deposited in a custom-house warehouse, and were either lost or mislaid there, or were delivered to some person not entitled to them. At the trial it was sought to show carelessness on the part of the defendant, as the head of the custom-house department, in the manner in which the books of the warehouse were kept, and also that the book-keeper was a person of intemperate habits and unfit for the situation. On the other hand, it was proved that the books were kept in conformity with the mode usually adopted at the time for keeping books of that kind; that the intemperate book-keeper had been discharged; and that, during a period of nineteen months, out of two hundred thousand packages of goods which had

Opinion of the Court.

been received at the warehouse in question, only two packages had been lost. Mr. Justice Nelson, in charging the jury, submitted to them the question whether the collector had been guilty of personal negligence in respect to the goods. In the course of the charge, the court said: "The collector is not personally responsible for the negligence of his subordinates in the custom-house department, and, therefore, he is not responsible for the negligence of persons employed in the warehouse department. In order to charge the defendant with the loss, it is necessary that the plaintiffs should satisfy you, by affirmative and responsible testimony, that the collector was personally guilty of negligence in the discharge of his duty, either by misdeed or by omission. This is

a suit against the collector, who did not have charge of the goods; and, in order to render him liable, you must find him to have been guilty of personal neglect, misfeasance, or wrong. In view of the fact that the collector of New York has charge of all the business from which two-thirds of the entire revenue of the United States is collected, and has thousands of subordinates, and upon the evidence that only one package out of every one hundred thousand which passed through the hands of those subordinates has been lost, it is strange that this case has been so urgently pressed, with the idea that, upon any principle of equity, much less of law, there could be any liability on the part of the collector." The jury found a verdict for the defendant. (See, also, United States v. Brodhead, 3 Law Reporter, 95; Wharton on Agency, § 550.) The judgment of the Circuit Court is reversed, and the case is remanded to that court with a direction to grant a new trial.

When a decree of foreclosure and sale of mortgaged property grants to the purchaser a credit for part of the purchase money, reserving a lien upon the property to enforce its payment, the court may, if the purchaser make default, and no rights of innocent third parties have intervened, order a resale of the property upon a rule to the purchaser to show cause why it should not be done.

The decree of foreclosure in this case conferred upon the purchaser at the foreclosure sale no such right of acquiring the securities of the lower classes to be paid from the fund realized from the sale, as would authorize him, as such purchaser, to dispute, in a proceeding in the original suit for foreclosure to compel payment of the amount remaining due of the purchase money, the computations by the master, confirmed by the decree of the court, of the amounts which the creditors of the higher classes were to receive from the fund.

In marshalling the classes of debts entitled to be paid out of a fund arising from a sale of mortgaged property under a decree of foreclosure, it is immaterial whether the master calculates the interest to a day prior to the date of the decree of sale, or up to that day, for the purpose of determining the principal sum that is to bear interest thereafter.

THE decrees which are the subject of the present appeal were rendered in a suit brought to enforce certain deeds of trust and mortgage liens upon a tract of land in Greenbrier County, West Virginia, known as the White Sulphur Springs, in which it became necessary to sell the property for the payment of debts, and to marshall the liens on the same in the order of their priority. The bill was filed in March, 1868, by Charles S. Gay and his wife and others, creditors and lien holders, suing as well for themselves as for all other creditors having liens on the real estate, the title to which, subject to the incumbrances, was then vested in the White Sulphur Springs Company. A portion of the indebtedness was represented by negotiable bonds, with coupons representing accruing interest thereon, and some of these had been severed