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public moneys, there is an express act of Congress which authorize judgment on the return of the process, with certain modifications.
Your next question is-whether, if the debtor ordinarily can be pre ceeded against by default, corporations are special exceptions to the gei eral rule?
To which I answer, that the provisions in the act of Congress in rel: tion to public debtors do not reach the case of corporate bodies; as will b obvious from their phraseology, which applies peculiarly to individual: There being, therefore, no act of Congress which directs the course proceedings against corporate bodies, that course is left under the 24t section of the judiciary act, and the 2d section of the act for regulatin processes, &c., to be regulated by the practice of the several States. 1 Maryland, where this question arises, the English practice prevails; ac cording to which, there can be no final judgment against a corporatio without appearance; and, in a common law court, there is no mode enforcing an appearance but by distringas on their lands and goods; fo a corporation, having only an ideal existence, cannot be arrested, nor out lawed. There can be no personal coercion on it, therefore, and no mean 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 bi 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 ou goods of the corporation; and the inefficacy of the distringas presupposes that there are none such.
WM. WIRT. To the SECRETARY OF THE TREASURY.
COLLECTOR TO A MOIETY OF DOUBLE DUTIES.
Where double duties are the fruits of a compromise, in a case of forfeiture, the collector prose cuting 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 responsi
bility 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. Str: 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 de. ficiency 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 loy 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 prodụce, 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
the general in the command of a post or place, or by an officer deput for the particular purpose.
I see no other construction, therefore, which can be fairly adopted, th that which I have given, and which I consider as the construction me obvious on the face of the article. The second question is this :
Whether an officer apprehending a failure is not justified making purchases, even before an absolute failure; which purchases b come chargeable to the contractor when an absolute failure shall ha been established, or remain the property of the government if no failu takes place?''
By the 5th article of the contract, which has been already quoted, understand the contractor to be liable for such purchases on no other coi tingency than on the absolute failure or deficiency of the provisions fu nished by himself; but, that contingency having occurred, he is liable fo the substituted supplies; and it is, in my judgment, perfectly immateria to the liability of the contractor whether those substituted supplies resu from a contract previous or subsequent to the contingency of his absolut failure or deficiency. If a previous contract, he is saved from its conse quences by a compliance with his own contract; if he fails to comply, hi liability attaches; and he cannot, I think, be admitted to defend himsel againsi his liability for the provisions which take the place of those h was bound to furnish, by saying that they were the proceeds of a con tract which anticipated his failure. Without entering into the particula facts of this case, (which, from the pressure for my opinion, I have neithe time nor inclination to do; nor is it my duty on the questions of mere lau submitted to me,) it is easy to conceive cases in which such anticipating contract on the part of the commander of a post or place may become an imperious duty. In the case, for example, of a contractor who may have subjected a post or an army to previous and repeated disappointments; or who may have no agent within convenient distance of the post or place; or whose only known agent may have declared himself without funds, and, under that declaration, may have left the country—can it be conceived that a commander of a post would, under such circumstances, be in the faithful discharge of his duty by waiting for the absolute failure, whose anticipation was so obvious? more especially, since, by using the precaution of a previous contract, he could not subject the contractor to its consequences, except on the precise conditions on which he had agreed to be so subjected, to wit: his own failure, or the deficiency of his own supplies. I consider it, therefore, no departure from the contract, but a decision strictly within it, when I say that, in my opinion, the contractor, on his absolute failure, becomes liable for the provisions substituted for those which he was bound to furnish, whether the substituted supplies proceed from a contract made previous or subsequent to his failure-the time of the contract being perfectly immaterial; the point of time and the fact of the failure being the circumstances on which alone the responsibility arises.
The third question is,
“3. Whether the contractor, under the 7th article of the contract, to acquit himself of the consequences of a failure, has the 'right to set up .the plea that he could not obtain an escort or guard ?”
The facts are, that General Gaines made a requisition on the contract
's agent at New Orleans, on the 11th July, 1817, for 80,000 rations, hich was sent by Captain Bee to New Orleans. It does not appear that copy of this requisition was sent to the contractor or any other of his gents. The question arises, whether the contractor, under these cirumstances, had the right to demand an escort or guard, from a place rithout the limits of his contract and the military department of the ommanding, general, through a neutral country? This requisition is istinguished from others, inasmuch as it was made only on the conractor's agent at New Orleans.
“Two contracts were made: the one, for South Carolina and Georgia, tipulated the price of the ration at 27} cents; the other, for Louisiana ind the Mississippi Territory, at 144 cents. The difference in the price of the ration seems to warrant the opinion that it was the understanding of the contracting parties that the supplies for the Georgia contract should be furnished from that State, and not from a distant market.”
The 7th article of the contract, to which this question refers, is in the following words: “7th. That escorts and guards for the safety of the provisions, and for the protecting of the cattle against an enemy, shall be furnished whenever, in the opinion of the commanding officer of the amy, or of any post to whom application may be made, the same can be done without prejudice to the service; and the said Benjamin G. Orr, his heirs, executors, or administrators, shall not be answerable for any deficiency of supplies at any of the said posts or places, if it shall appear, upon satisfactory proof, that such deficiency was occasioned by the want of proper escorts or guards.'
Thus this article expressly stipulates that the contractor shall not be answerable for any deficiency of supplies at any of the said posts or places, “ if it shall appear, upon satisfactory proof, that such deficiency was occasioned by the want of proper escorts or guards." I answer the question, therefore, by saying, that, according to the legal construction of the contract, the contractor has a right to set up the plea that he could not obtain an escort or guard; and if it shall appear in proof that the deficiency arose from this cause, he is clearly exonerated from charge in that particular instance: but the deficiency can never arise from this cause, if the route by which the supplies were to be carried did not require an escort or guard. In order to make the plea of the want of escort complete, it is not merely necessary to prove that the contractor called for an escort, but that, from the danger of the route, he had a right to call. As, for example, if the route lay through the country of a savage enemy, so as to expose not merely the provisions, but the lives of the carriers, to danger: in such a case, I believe that a court of law would hold the plea a complete defence to the contractor.
From the facts annexed by the Second Comptroller to this question, it appears that the requisition in this instance was made known only to the contractor's agent at New Orleans. The supply, therefore, was obviously expected from that place. By the requisition itself, enclosed among the papers you were pleased to hand me, the rations were to be delivered at Port Scott, near the head of the Apalachicola. Through what route were they to pass from New Orleans to the head of the Apalachicola tiver? From a glance at the map, as well as from the actual course of these operations when under General Jackson, it would seem that these supplies were expected and intended to reach Fort Scott by water-de
scending the Mississippi into the gulf, and thence up the A palachicola Was this the route contemplated ? or is there any other route, not throug the Seminole country? These are questions of fact. If there was n route from New Orleans to Fort Scott, but such a one as would make necessary for the provisions, and consequently for their carriers, to pas through the country of the Indian enemy, it is in my opinion a cas in which the contractor was authorized to call for an escort; and authoi ized, also, to claim an exemption from responsibility if the escort wa not furnished: for against whom can an escort ever be necessary, if no against the very enerny, to sustain the war with whom the supplies ar furnished ?
“The question arises,” says the Second Comptroller, “whether thi contractor, under those circumstances, had the right to demand an escor or guard, from a place without the limits of his contract and the military department of the commanding general, through a neutral country?”
Here are these objections to the demand of an escort thrown together let us separate them. Had the contractor a right to demand an escort ol guard from a place without the limits of his contract? Had the general a right to make a requisition from a place without the limits of the con tract? If he had not, there has been no regular requisition, and, conse. quently, there is no liability on the part of the contractor. If, on the contrary, he had a right to make the requisition on the agent at New Orleans, that agent had the correspondent right to demand an escort. The right of requisition and the right of escort (where necessary) are co-existent and co-extensive. If the requisition is regularly made, it must be obeyed; and if obedience to it will carry the contractor and his supplies through the enemy's country, he has, in my opinion, a clear right to demand an escort.
Had the contractor a right to demand an escort from a place out of the military department of the commanding general? To which I answer, that, if the general had a right to draw supplies from a place out of his military department, through the enemy's country, he was bound to fur. nish an escort from that place through that country. There is nothing in the contract which requires the contractor to hazard his life or those of his agents in furnishing the supplies: it was to protect him from this hazard, as well as to insure safety to the transportation of the supplies, that the escort is provided by the terms of the contract.
Had the contractor a right to call for a military escort through a neutral country? Yes; if that country was also the country of the enemy, and the commanding general had the right to call upon the contractor to bring his supplies through that country, the duty of procuring a free and safe passage for the contractor was, in my opinion, on the commanding general, or the government to which he belonged. From the circumstances and character of this particular war, Spain could not, with any show of reason, or of right, refuse a peaceable passage through her territory for the purpose of chastising an enemy whom she herself was bound by treaty to have restrained from committing hostilities on the United States. Vattel
says that “an innocent passage is due to all nations with whom a state is at peace, and this duty comprehends troops equally with individuals.”—(Vat. b. 3, chap. vii, $ 119.) 'And by the same author, (ib. S 127,)“ the granting such passage gives no room for complaint to the nation against whom it is granted. If such a passage be due among na.