Dox v. The Postmaster-General. 1 P.

PETER DOX, GERRIT LA GRANGE, AND ISAIAH TOWNSEND, impleaded with GERRIT L. Dox, Plaintiffs in Error, v. THE POSTMASTER-GENERAL OF THE UNITED STATES, Defendant in Error.

1 P. 318.

Under the act of April 30, 1810, s. 29, (2 Stats. at Large, 602,) though the postmaster-general is made liable for sums due from delinquent postmasters, if he does not cause a suit to be instituted within six months after a default, yet neither the postmaster nor his sureties are discharged by such omission to sue.

Laches of the officers of the United States does not of itself discharge sureties on an official bond.

No presumption of payment of such a bond arises from the lapse of a little more than five years.

THE case is stated in the opinion of the court.

S. A. Foot, for the sureties.

Wirt, (attorney-general,) contrà.

[323] MARSHALL, C. J., delivered the opinion of the court. This suit was instituted against Gerrit L. Dox, a deputy postmaster, and against his sureties, on a bond given for the faithful performance of his duty. It was brought in the district court for the northern district of New York, and was removed, by writ of error, into the circuit court sitting in the southern district of New York, composed of the associate justice of this court and the judge of the southern district. On the hearing, the judges were divided in opinion upon three questions, which have been certified to this court: 1. Whether the district court had jurisdiction of the cause.

2. Whether by the facts appearing on the record, and admitted by the pleadings, or found by the jury, the sureties are exonerated, or discharged from their liability upon the bond so given by them, as set forth in the record.

3. Whether the said bond, from the facts found or admitted by the pleadings, as appearing by the record, can, in judgment of law, be considered as paid and satisfied, or otherwise discharged.

1. The question first to be considered, respects the jurisdiction of the court. The difficulties which were believed to attend it, when this cause was adjourned, have been removed, by the opinion of this court in the case of the Postmaster-General v. Early, 12 W. 136.

In that case, the question was fully considered and deliberately decided. The time which intervened between the default of the officer and the institution of the suit, exceeded the time prescribed by the act of congress, in that case as well as this. Consequently,

Dox v. The Postmaster-General. 1 P.

the circumstances of the two cases are, in this respect, precisely the same. But the counsel for the deputy postmaster says, that this point was not brought into the view of the court, and has not been considered. The opinion of the court, undoubtedly, did not take a view of the question, whether the postmaster-general possessed such an interest in the cause that it ceased to be a suit brought for the United States. This inquiry was not made in terms, but could not have escaped observation. The act of congress for regulating the post-office establishment does not, in terms, discharge the obligors from the direct claim of the United States on them, on the failure of the postmaster-general to commence a suit against the 'defaulter, within the time it prescribes. Their liability, [*324 ] therefore, continues. They remain the debtors of the United States. The responsibility of the postmaster-general himself, is superadded to not substituted for that of the obligors. The object of the act is to stimulate the postmaster-general to a prompt and vigilant performance of his duty, by suspending over him a penalty, to which negligence will expose him; not to annul the obligation of his deputy. Had the object of the act been to favor the sureties its language would have indicated that intention. If this construction be correct, the obligors in this bond remain the debtors of the United States, and the superadded responsibility of the postmastergeneral cannot affect the reasoning on which the jurisdiction of the court was sustained in the case of the Postmaster-General v. Early. The second question proposed for the consideration of the court is whether, on the facts appearing in the record, the sureties are discharged from their obligations.

1. That Gerrit L. Dox failed to render accounts of his receipts and expenditures, as deputy postmaster.

2. That he had failed to pay over the moneys he had received over and above his commissions, &c.

The defendant pleaded. 1. Non est factum. 2. That Gerrit L. Dox did render true accounts, &c.; and 3. That he did pay over the moneys he received. The issues joined on these pleas were found for the plaintiff.

The question arises on other pleas, the issues on which were found for the defendants; and which state, in substance, that Gerrit L. Dox was removed from his office on the 1st day of July, 1816. That the postmaster-general did not open an account against him and make any claim and demand on him for the moneys received by him as postmaster, until the 1st day of July, 1821. That at the time of his removal from office he was solvent and able to pay his debts, and

Dox v. The Postmaster-General. 1 P.

continued so until the 1st day of July, 1819, after which he became insolvent, and continues to be so. These pleas also state that the postmaster-general, well knowing that Gerrit L. Dox had neglected and refused to pay over the moneys due from him, as postmaster, at the end of every quarter, &c., did not commence a suit until August, 1821.

These facts placed on the record, without explanation, must be admitted to show a gross neglect of duty on the part of the postmaster-general. Does this neglect discharge the sureties from their obligations?

The condition of the bond is broken, and the obligation has become absolute.

Is the claim of the United States upon them released by [* 325] the *laches of the officer to whom the assertion of that claim was intrusted?

This question, also, has been settled in this court.

The case of the United States v. Kirkpatrick and others, 9 W. 720, was a suit instituted on a bond, given by a collecter of direct taxes and internal duties, under the act of 22 July, 1813, c. 16.' The act required each collector to transmit his accounts to the treas ury, monthly, to pay over the moneys collected, quarterly; and to complete his collection, pay over the moneys collected to the treasury, and render his final account within six months from the day on which he shall have received the collection list from the principal assessor. In case of failure, the act authorizes and requires the comptroller of the treasury immediately to issue his warrant of distress against such delinquent collector and his sureties. The comptroller did not issue his warrant of distress according to the mandate of the law; and this suit was instituted four years after such warrant ought to have been issued.

The court left it to the jury to decide whether the government had not, by this omission, waived its resort to the sureties. A verdict was found for the defendants, the judgment on which was brought before this court by writ of error.

The counsel for the defendant urged that laches might be imputed to the government, through the negligence of its officers, but this court reversed the judgment, declaring the opinion that the charge of the court below, which supposes that laches will discharge the bond, cannot be maintained in law: "The utmost vigilance," it was said, "would not save the public from the most serious losses, if the doctrine of laches can be applied to its transactions. It would, in effect, work a repeal of all its securities." It was further said, that the

13 Stats. at Large, 22.

Dox v. The Postmaster-General. 1 P.

provisions of the law which require that settlements should be made at short and stated periods, are created by the government for its own security and protection, and to regulate the conduct of its own officers. They are merely directory to such officers, and constitute no part of the contract with the security. After a full discussion of the question, the court laid down the principle, "that the mere laches of the public officers constitutes no grounds of discharge in the present case." The same question came on to be again considered in the case of the United States v. Vanzandt, 11 W. 184.

This was an action of debt brought up on a paymaster's official bond, against one of the sureties. The act for organizing the general staff, and making further provision for the army of the United States,' "makes it the duly of the paymaster to render his vouchers to the paymaster-general, for the settlement of his accounts; " and if he fail to do so, for more than six months after he [* 326 ] shall have received funds, the act imperatively enjoins "that he shall be recalled, and another appointed in his place." The paymaster had failed to comply with the requisites of the law, after which the paymaster-general, instead of obeying its mandate, by removing him, placed further funds in his hands. The circuit court instructed the jury that the defendant, the surety, was not chargeable for any failure of the paymaster to account for such additional funds so placed in his hands after his said default and neglect in respect of the funds previously received were known; and a verdict was found for the defendant. The judgment on this verdict was also brought before the court, by a writ of error, and was reversed.

The counsel for the defendant contended that this case differed from the United States v. Kirkpatrick and others, 9 W. 720, but the court said: "The provisions in both laws are merely directory to the officers, and intended for the security and protection of government, by insuring punctuality and responsibility; but they form no part of the contract with the surety." The placing further funds in the hands of the defaulting paymaster, was considered as the necessary consequence of his continuance in office. This is certainly a very strong case. These two cases seem to fix the principle that the laches of the officers of the government, however gross, do not of themselves discharge the sureties in an official bond, from the obligation it creates; as firmly as the decisions of this court can fix it. We think they decide the question now under consideration.

The third question is whether the bond can, upon the facts of the case, be considered, in judgment of law, as paid and satisfied, or otherwise discharged. If this question was founded on the time

13 Stats. at Large, 297.

Dox v. The Postmaster-General. 1 P.

which was permitted to elapse before the institution of the suit, the answer must be in the negative. The bond was executed on the 1st day of January, 1816, the postmaster was removed from office on the 1st day of July, in the same year, and this suit was instituted in August, 1821. But little more than five years intervened, between the time when the sum due from the principal in the bond was ascer tained, and the institution of the suit. The presumption of payment has never been supposed to arise from length of time in such a case, even between individuals; much less in the case of the United States, where all payments are placed on that record which must be kept by the officers of government. An additional reason exists against the presumption in this case. Length of time is evidence to be laid before the jury on the plea of payment. The pleas on which this presumption is supposed to arise, not only do not allege payment, but presuppose that payment has not been made, which [*327] failure they ascribe to the laches of the postmaster-general. In such a case, there can be no ground for presuming payment and satisfaction.

That part of the question which is general, and which refers it to the court to decide whether the bond has been "otherwise dis charged," is understood to be a repetition of the second question, and to be answered in the answer given to that question.

This court is of opinion that it be certified to the circuit court of the United States for the southern district of New York:

1. That the district court had jurisdiction of this cause.

2. That the sureties are not exonerated from their liability, upon the bond given by them, as set forth in the record.

3. That the said bond cannot be considered, in judgment of law, as paid and satisfied, or otherwise discharged.

This cause came on, &c. on consideration whereof, this court is of opinion-1. That the district court of the northern district of New York had jurisdiction of the said cause. 2. That the sureties to the bond on which the said suit was instituted are not exonerated or discharged from their liability on the said bond, by the facts appearing on the record and admitted by the pleadings, or found by the jury. 3. That the said bond cannot, from the facts found or admitted by the pleadings, or appearing by the record, be considered, in judg ment of law, as paid and satisfied, or otherwise discharged. All which is directed to be certified to the circuit court of the United States for the southern district of New York in the second circuit. 8 H. 83.