as having been made to me as the law officer of the government, and, consequently, that nothing more is expected of me than the expression of my opinion as to the law arising on the case.

It is to be collected from the documents in this case, that James Thomas, a quartermaster general in the service of the United States, is charged with having drawn from the public treasury divers large sums of money, by a fraudulent collusion between himself and a certain Michael T. Simpson, by means of which collusion he was enabled to impose on the accounting officers of the government, and to obtain a false balance. to be struck in his favor. To decide upon the truth of this allegation is out of my province; it belongs to a different department; but, assuming it to be true, it is, in my opinion, very clear that the United States may maintain an action against James Thomas before the courts of the United States, for the purpose of recovering back the money thus fraudulently obtained; and that, if they make out the fact to the satisfaction of a jury, they will unquestionably recover it back.

There is no act of Congress which subjects the quartermaster to a criminal prosecution for such a fraud as this is alleged to have been. The act of the 28th March, 1812, "to establish a quartermaster's department, and for other purposes," by its sixth section, subjected the quartermaster to fine and imprisonment on conviction of taking, or applying to his own use, any emolument or gain, for negotiating or transacting any business in his department, other than such as should be allowed by law; but this section is expressly repealed by the act, amendatory of the former, passed on the 22d May, 1812. (See the 4th vol. Laws United States, new edition, pages 397 and 347.)

This remedy, therefore, if the facts be made out, is by an action at law against Thomas, and his sureties on his bond, as quartermaster, so far as the penalty of that bond will extend; and against Thomas singly, by an action on the case for the residue.

The documents accompanying the order of the House of Representatives will be returned herewith to the Clerk of that House.

I have the honor to be, &c.,

To the SPEAKER of the House of Representatives.

WM. WIRT.

CLAIM FOR DAMAGE BY FIRE.

When the British invaded Castine, the commander of the United States ship Adams, then lying in that port, burnt her, to prevent her from falling into the hands of the enemy; the fire communicated with a neighboring warehouse, in which there was valuable property destroyed, for which a claim is made against the government: decided, that the destruction was one of those casualties of war resulting from exposure.—(See Raymond's Reports, 422, 467; 1 Salk., 12; Mod. Rep., 151.)

ATTORNEY GENERAL'S OFFICE,
January 8, 1819.

SIR: I regret that my official duties have not permitted me to attend sooner to the claim of Messrs. Caze & Richaud, on which you have asked my opinion. The case I understand to be this: When the British invaded Castine in the autumn of 1814, Captain Morris, commander of the United States ship Adams, then lying in that port, burnt her, in order

to prevent her from falling into the hands of the enemy; the fire was com municated from the ship to a neighboring warehouse, in which the petitioners had valuable property stored, which was thus destroyed; and for the value of this property the present claim is advanced. The question you ask is this: Suppose the burning to have been necessary to effect a legitimate national object; can the liability for consequential damages to

an individual be avoided at law?"

It is extremely difficult to bring a question like this to any known legal standard. All the cases of consequential damages furnished by the books, have been cases involving none but individual interests on the one hand or the other, and never complicated with any great considerations of public war or national defence. Were it possible to regard this as a question purely individual, there would be no difficulty in deciding it; for among individuals it has long since been settled

1. That though a man do a lawful thing, yet, if any damage thereby befal another, he shall answer, if he could have avoided it; and that this principle holds in all civil cases. (See Sir Thos. Raymond's Reports, 422-23, and 467-'8.)

2. That to bring a man within the protection of inability to avoid the damage, it must appear that the lawful act which produced it was not of a nature to have threatened the consequential damage so imminently, but that it might have been avoided by proper care on the part of the defendant. Thus, it is a necessary part of husbandry, in some countries, to have fire in the grounds; and it is perfectly lawful to have it. But the husbandman must at his peril take care that the fire so made shall not, through his neglect, injure his neighbor; for if it do, he shall answer. If, however, a violent and sudden tempest arise after the fire shall have been kindled, and, in spite of the husbandman's resistance, carry the fire into his neighbor's lands, this shall excuse him. (1 Lord Raymond, 264; 1 Salk. 13 and 12; Mod. Rep. 151.)

3. If a man cannot use his property in any given way without inevitable injury to that of his neighbor, it is not lawful in him to make that use of it; and if he do, he shall answer the damage; because, being the inevi table consequence of his act, he will be considered as having intended it, and therefore as being responsible for it. This proceeds on the wellknown maxim of the law, sic utere tuo ut alienum non lædas. The obstruction of ancient lights, the diversion of ancient watercourses, &c., are illustrations of this maxim.

Whether these principles would, if suffered to apply, decide an action brought by the petitioners against Captain Morris, would depend on the particular circumstances of the case, which are not detailed by the peti

For example: 1. Could Captain Morris have avoided this damage by proper care on his part? 2d. Was the ship Adams fired when she was at a safe distance from the warehouse? and was she carried thither by a sudden and unexpected storm or wind, which could not have been resisted? 3. Or was the ship so near the warehouse, when fired, that the communication of the fire to the warehouse was an inevitable consequence of that measure? If the facts of the case would answer the first and last of these questions affirmatively, Captain Morris would be condemned to answer the damages, by the principles which have been stated. If, on the other hand, the facts would answer those questions negatively, or the second question affirmatively, he would be discharged.

These principles, however, are made for peace; in war, there is another maxim, which silences every other-salus populi suprema lex. If, therefore, the measure was one which the interests of the whole community called for, the officer who performed it could not, I think, be condemned. to answer the individual damage, unless his neglect in performing it was gross indeed.

How far the people, for whose benefit the ship was fired, ought to feel themselves bound to answer for this consequential damage, is a question which our law books do not enable us to answer. It is, indeed, a fundamental principle of the social compact, that individual property shall not be taken for the public good, without compensation from the individual from whom it is taken; but this proceeds upon the consideration that the public have derived an advantage from the use of the property, which it ought to requite; or, in other words, that all the members of the community are bound only to contribute equally to the public good; and that he who has been compelled to contribute more than his fair proportion shall be restored to the footing of equality by reimbursement. This is the basis of the writ of ad quod damnum, where, in time of peace, individual property is condemned for the public good: it is the basis, too, of those laws which, at the close of the late war, provided a compensation to individuals for property lost, captured, or destroyed by the enemy, while in the military service of the United States. The claim of Messrs. Caze & Richaud seems to go a step beyond these principles. Their property was not taken for the public service; the public derived no benefit from the use of it; they had no use of it. Its destruction seems to me to have been one of those casualties of war, which place them on no higher ground than the hundreds (perhaps thousands) of individuals along the shores of our bays and rivers, who (like the warehouse and sails in the present case) were ruined by the mere circumstance of their greater exposure to the calamities of war.

I am, &c.,

To the CHAIRMAN OF THE COMMITTEE OF CLAIMS.

WM. WIRT.

UNITED STATES vs. THE BANK OF SOMERSET.

A judgment may be obtained against an individual debtor by default, and against receivers of public moneys on return of process under an act of Congress; but as against corporate bodies the practice is regulated by the practice of the several States in such cases.

OFFICE OF THE ATTORNEY GENERAL,
January 15, 1819.

SIR: I have examined the two questions which have been submitted to me by you, on Mr. Glenn's letter touching the suit of the United States against the Bank of Somerset; and have now the honor of presenting the

answers.

Your first question is-whether, according to the laws of the United States, judgment cannot be obtained against a debtor who refuses to appear, and cannot be made to appear?

Against an individual debtor, such judgment can never be defeated by the refusal of the party to appear in reality. In relation to receivers of

public moneys, there is an express act of Congress which authorizes judgment on the return of the process, with certain modifications.

Your next question is-whether, if the debtor ordinarily can be proceeded against by default, corporations are special exceptions to the general rule?

To which I answer, that the provisions in the act of Congress in relation to public debtors do not reach the case of corporate bodies; as will be obvious from their phraseology, which applies peculiarly to individuals. There being, therefore, no act of Congress which directs the course of proceedings against corporate bodies, that course is left under the 24th section of the judiciary act, and the 2d section of the act for regulating processes, &c., to be regulated by the practice of the several States. In Maryland, where this question arises, the English practice prevails; according to which, there can be no final judgment against a corporation without appearance; and, in a common law court, there is no mode of enforcing an appearance but by distringas on their lands and goods; for a corporation, having only an ideal existence, cannot be arrested, nor outlawed. There can be no personal coercion on it, therefore, and no means of coercion but by the seizure of its lands and goods. Nor is this, in reality, so much a grievance as at first it may appear; for if there be neither lands nor goods of a corporation on which a distringas can act, of what avail would be a judgment by default?

The execution on such judgment could be only against the lands or goods of the corporation; and the inefficacy of the distringas presupposes that there are none such.

To the SECRETARY OF THE TREASURY.

WM. WIRT.

RIGHT OF A COLLECTOR TO A MOIETY OF DOUBLE DUTIES.

Where double duties are the fruits of a compromise, in a case of forfeiture, the collector prosecuting is as much entitled to his moiety of them as he would have been to his moiety of the forfeiture which they represent.

OFFICE OF THE ATTORNEY GENERAL,
March 6, 1819.

SIR: I have, according to your desire of this morning, examined the claim of Colonel Allen McLane, as stated by Mr. Ingersoll, and am very clear in the opinion, that the double duties being the fruits of a compromise in the case of forfeiture, the collector from whose prosecution those fruits arose is as much entitled to his moiety of them as he would have been to his moiety of the forfeiture which they represent.

WM. WIRT.

The PRESIDENT OF THE UNITED STATES.

DUTIES OF GOVERNMENT UNDER CONTRACTS FOR SUPPLIES.

Where contracts for supplies for the army contain the clause providing for a supply, in case of deficiency, by the commanding general or person appointed by him at each post or place, the person appointed by the commanding general to take command at the post or place is the person authorized to supply the deficiency.

Where the commandant at a post anticipates a failure in supplies contracted to be furnished, he may make provision for them before the failure absolutely occurs; yet, the contractor is not liable for them until the failure takes place; then he is liable whether they were purchased previously or subsequently; for it is the failure and time upon which the responsibility arises.

If a general had a right to draw supplies from a place out of his military department, through the enemy's country, he was bound to furnish an escort from that place through that country. If the case were one of real and imminent danger, the contractor had a right to an escort; and, if it were not furnished, he is exonerated from the consequences of the failure.

OFFICE OF THE ATTORNEY GENERAL,

March 26, 1819.

SIR: In compliance with your request, I have considered the questions of law propounded in the letter of the Second Comptroller of the Treasury, as arising on the contract between Benjamin G. Orr and the acting Secretary of War, and have now the honor to give you my answer.

The first question is as follows:

"1. Under the 5th article of the contract, whether the officer commanding at each post or place is not the person meant, by the terms of the contract, to order or make purchases of supplies, in the event of a failure of the contractor, unless some other person should be designated by the commanding general?"

The article of the contract referred to is in the following words: "5th. The commanding general, or person appointed by him at each post or place, in case of absolute failure or deficiency in the quantity of provisions contracted to be delivered and issued, shall have power to supply the deficiency by purchase, at the risk and on the account of the said Benjamin G. Orr, his heirs, executors, or administrators."

I conceive that the officer appointed by the commanding general to take the command at any post or place, is, during the continuance of such command, the person who, by the 5th article, is authorized to supply the deficiencies and failures of the contractor at such post or place; for he is the person to whom the trust is confided to see that the men under his command are properly supplied with food: in truth, he is emphatically the person within the express words of the contract, being the person appointed by the commanding general at the post or place. To suppose that, besides the person appointed to take the command at each post or place, there is to be a separate character appointed at the same time at each post or place, in anticipation of failures or deficiencies by the contractor, and with authority to supply such possible failures or deficiencies whenever they should occur, would be so superfluous, so entirely without an object, and so inconsistent with military usage, that it cannot be supposed to have entered into the minds of the contracting parties at the time; and not having been intended, it is not their contract. On the other hand, to suppose that the commanding general is to wait, in every instance, until after the occurrence of the failure or deficiency at every post or place within a military district, covering perhaps many hundreds of miles, and, after such occurrence, to issue in every instance a separate order to supply the several deficiencies, would be to give the contract a construction not only inconsistent with that purpose of prompt and abundant supplies which the contract itself was intended to produce, but a construction utterly impracticable in many cases; and this, too, without any conceivable. advantage to the contractor, since it can be of no importance to him whether his failures or deficiencies are supplied by the officer placed by