recover interest upon it, but the balance must not range everywhere between $791,000 and $216,000, and then pass for a stated balance within the rule. Even at a later date than March 7th, in the very account now introduced by the District Attorney, they undertook to give us large credits and to make additional charges.

Again, they have accepted their principal debt as a principal debt, and the interest, if allowable under any circumstances, was a mere incident to that debt, and they are therefore not entitled to it, having accepted the principal. Where there is a special agreement to pay interest, and where interest is reserved, there may be some reason for claiming it; but where the principal is accepted as a payment of the principal, and not as interest, and where there is no dissent or demur and the money is kept, then they cannot claim and are not entitled to recover interest. They claim this interest from the 14th of January, 1851, to September 14th, 1853, two years and eight months, and it will be seen that there is no time when they regarded the account as stated between these periods. If they had intended to charge us interest, clearly they should have made out an account, upon which they could have demanded interest to be paid on the account. It was proper for us to go over this account for the purpose of showing there was no defalcation on the part of the Collector, and never had been, and that he had met, so far as he was able to meet, the exigencies of the case, and had settled with the Treasury Department so far as the Treasury Department had rendered him a true account, and it was especially proper for him to do it for the purpose of showing that there was no time when they should have charged him with interest. This statute, if it does anything, authorizes the charge of interest by way of damages-making it attach as damages for the detention, by statute, when it would not have been chargeable by common law. It is a statute, therefore, penal in its character and operation—a statute in derogation of the common law so far, and for these reasons it is to be strictly construed.

The interest which they claim is based upon this erroneous estimate of fees, an amount which is shown upon the face of these proceedings to be unliquidated, because they admit they do not state the account truly, but from an estimate; and when

we place a witness upon the stand to prove what the amount of fees really was, and they have an individual in court-the author of Rodman's report-who pretends to have investigated the subject and made a report upon it, they keep both report and witness out of view; and still the Secretary of the Treasury instructs his subordinates to make up these fees upon the basis of that report, which they do not see fit to produce, nor to call the witness who can speak knowingly of the truth of the report. Then why should we be called upon to pay interest when the account has never been fixed from the beginning to the end, but, on the contrary, so ingeniously have these executive thimbles been rigged during the whole time, that the most expert among them could not tell under which one the little joker was.

But, gentlemen, there is another item in this account. It is the Monterey money stolen from the Deputy Collector's office, and it is briefly disposed of. Even if the Department had not the strict right to allow us the amount of that money, $8,110, in stating the accounts, you have the right. The claim is both legal and equitable, and may as such be set off in this suit. But we deny in the most emphatic terms that upon any principle whatever are we liable for the acts of the Deputy Collector at Monterey. He was an officer of the government as much as was the Collector at San Francisco. The Collector of San Francisco is appointed by the President with the advice and consent of the Senate. The Collector at Monterey was appointed by the San Francisco Collector with the consent of the Secretary of the Treasury; and it matters not from what source the appointment is derived. The President and Senate are not liable for the delinquencies of the Collector at San Francisco, neither is the Collector at San Francisco liable for the delinquencies of the Deputy Collector at Monterey, even if he were in default. Says Judge Story in his work on agency, page 412, § 319:

"And here the doctrine is now firmly established (subject to the qualifications hereinafter stated), that public officers and agents are not responsible for the misfeasances, or positive wrongs, or nonfeasances, or negligences, or omissions of duty of the sub-agents, or servants, or other persons properly employed by and under them, in discharge of their official duties. Thus, for example, it is now well settled, although

it was formerly a matter of learned controversy, that the PostmasterGeneral is not liable for any default, or negligence, or misfeasance of any of the deputies or clerks employed under him in his office. This exemption is founded upon the general ground that he is a public officer, and that the whole establishment of the post-office being for public purposes, and the officers employed therein being appointed under public authority, it would be against public policy to make the head of the department personally responsible for the acts of all his subordinate officers; since it would be impracticable for him to supervise all their acts, and discouragements would thus be held out against such official employment in the public service."

And in the second of Kent's Commentaries, 610, cases are cited to the same point; (see also Story on Bailments, sections 462 and 463, and 6th Barb. S. C. R. 632, 635.) There are numerous other authorities that I might mention, but I will not detain the Court for that purpose. We insist that the Deputy Collector at Monterey is an officer of the government, appointed by the government, and liable to the government, upon general principles. Besides, suppose James Collier himself had lost that amount by theft, without fault on his part, would it not have been an equitable defence to the amount for him? We suppose it would. And passing from this first point of defence, we insist that the fact of the money being stolen from the place provided by the government for the Collector's Department, is a complete defence, even though it had been stolen from under the Collector's roof. It is not like the case of the individual who appoints his deputies and keeps his money where he pleases. It is the loss of the gov ernment and not of the Collector. The integrity of the officer is not doubted, and in fact the Commissioner of the Customs admits the stealing of the money in a letter, as does also the Solicitor of the Treasury. Then we have the deposition of Senator Weller, who testifies to have seen the marks of the burglarious entrance to the safe from which the money was taken. The Solicitor of the Treasury, and the United States Attorney of the District of Columbia, who appeared for the United States on the examination of Senator Weller, had no doubt of the money being stolen, and if anything is to be taken by inference from that deposition, it is most strongly against the government, for they had the means of cross

examining the witness if they had chosen so to do, and ascertaining in detail all the facts of the case.

We claim, in addition to the Monterey money, the half of the net proceeds of the sale of the seized liquors and the commissions at the rate of three per cent., upon money collected for duties, and also one half of the bonds which are in the possession of the government and of which our share is admitted to be $12,300. Without dwelling long upon the subject of these bonds, we submit, gentlemen, that after the Collector left office and all control over them, in January, and after the Treasury Department had decided that the goods were legally forfeited for which these bonds were given, the government should have exercised vigilance in collecting the bonds, and if they have slept upon the rights of the parties, and have not done their duty, while at the same time we could not get possession of the bonds to collect them our selves, we contend that the government has made the bonds its own, and that we are entitled to our share of them, and the government is liable to pay us our portion now.

Upon the subject of forfeitures, in addition to other statutes, there is one which I omitted to cite yesterday, which says, among other things, what moneys the Collector shall return, "that he shall return the amounts received for fines, penalties, and forfeitures of seized goods, wares, and merchandise, and upon compromises made for seizures." It is the act of 2d March, 1841, to be found in Gordon's Digest of 1850, page 911.

We do not pretend that there is any direct authority given to the Collector to make compromises, nor is there, we say, any given to the Secretary of the Treasury; but we contend that that gives as much authority to the Collector to compromise as to any other officer, and means such a case as ours if it means anything. There it is. Let our learned friend dispose of it as he will. Now the Collector, Mr. Collier, collected at that port upwards of $2,100,000, and upon that amount he charges commissions. They allow him commissions for a considerable period. The condition in which he found California has been very well described in his own letter. He took an early opportunity of advising the government of the state of things there.

[Mr. Dickinson here read again a portion of the letter of Collector Collier to the Treasury Department, under the date of November 13th, 1849.]

You learn it not only from him, gentlemen, but it is a part of the history of the times. You learn it from Capt. Frazer, that heroic, hardy, and weather-beaten seaman, who went out there to aid in executing the revenue laws, and he tells you, in a language and manner not to be misunderstood, that the state of things there was indescribable. You learn it from Mr. Edwin Collier, the son of the Collector, who concurs in the statement-who proves himself an honor to his father, not only by his attention to duties there, but by the fidelity with which he clung to his father's fortunes in moments of severe trial. His evidence given in this cause was so simple and so truthful that the officers of the government who had been upon the spot, and seen the Collector's doings there and are now here in Court, did not even question his testimony, or suggest a single contradiction.

It has been admitted here before you by the learned District Attorney, acting under the instructions of the Treasury Department, that there was no complaint againt Mr. Collier for extravagance or profligacy in his expenditures. What then is his offence? He remained there and collected the revenue faithfully while in office, rendered his accounts to the Department, and paid to his successors nearly a million of dollars, and only claims for his compensation what the law gives him. He has shown no disposition to clutch these funds, but, on the contrary, he has shown a desire to pay the last farthing belonging to the government, from the earliest moment. You know well the cost of living in California from the evidence of Capt. Frazer and others-Capt. Frazer, a plain and unostentatious seaman, accustomed to the most common fare, paying seven dollars for his first breakfast. A dollar each for eggs we are told was a common price, and not very good at that; twenty dollars a dozen for pickles, and everything else in a corresponding ratio. Most truly the Collector said "labor controlled capital." Every man did what was right in his own eyes. The worship of the golden calf in that region had already commenced in earnest,