The act of Congress for regulating the Post Office Department
does not in terms discharge the obligors in the official bond of a
deputy postmaster from the direct claim of the United States upon
them on the failure of the Postmaster General to commence a suit
against the defaulting postmaster within the time prescribed by
law. Their liability therefore continues. They remain the debtors
of the United States. The responsibility of the Postmaster General
is superadded to, not substituted for, that of the obligors.
The claim of the United States upon an official bond and upon
all parties thereto is not released by the laches of the officer to
whom the assertion of this claim is entrusted by law. Such laches
have no effect whatsoever on the rights of the United States as
well against the sureties as the principal in the bond.
The cause was commenced in the District Court of the United
States for the Northern District of New York, and removed by writ
of error to the circuit court.
The following were the points of disagreement:
1st. Whether the district court had jurisdiction of the
cause.
2d. 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 set forth in the
record.
3d. Whether the said bond, from the facts so found or admitted
by the pleadings or appearing on the record, can, in judgment of
law, be considered as paid and satisfied, or otherwise
discharged.
The original suit was commenced in the district court in August,
1823, and the plaintiff declared in debt on a bond in the penal sum
of $6,000, executed on 1 January, 1816, by Gerrit L. Dox, Peter
Dox, Gerrit La Grange, and Isaiah Townsend, conditioned for the
faithful performance of the duties of postmaster at Albany by
Gerrit L. Dox.
The declaration alleged two breaches of the condition of the
bond:
1. That said Gerrit L. Dox did not, at any time between
Page 26 U. S. 319
1 January, 1816, and 1 January, 1817 (he being, during the whole
of that time, Postmaster as aforesaid), render any accounts of his
receipts and expenditures according to the condition of said bond,
but utterly neglected so to do.
2. That after the date of said bond, and more than three months
previous to the commencement of the suit, there came to the hands
of said Gerrit L. Dox, as such postmaster as aforesaid, the sum of
$6,000 for postages, over and above commissions, &c., which he
had not paid over to the Postmaster General, but had refused so to
do, although often requested, &c.
Gerrit L. Dox, the principal obligor, pleaded separately three
pleas:
1.
Non est factum, and tendered an issue.
2. To the first breach, that he did render true accounts of his
receipts and expenditures as such postmaster, &c., and tendered
an issue.
3. To the second breach, that he had paid to the Postmaster
General all the moneys he had received, over and above his
commissions, &c., and tendered an issue.
Issues were joined on these pleas as tendered.
The defendants, Peter Dox, Gerrit La Grange, and Isaiah
Townsend, the sureties of said Gerrit L. Dox, pleaded six
pleas:
1.
Non est factum, and tendered an issue.
2. To the first breach, that Gerrit L. Dox did render true
accounts of his receipts and expenditures, &c., and tendered an
issue.
3. To the second breach, that the said Gerrit L. Dox had paid to
the Postmaster General all the moneys he had received over and
above his commissions, &c., and tendered an issue.
4. To the second breach, that they executed the bond as
sureties; that Gerrit L. Dox was removed from office on the first
day of July, A.D. 1816; that the Postmaster General, knowing there
were sureties, did not open an account against Gerrit L. Dox, and
make any claim and demand on him for the moneys received by him as
Postmaster, until the first day of July, A.D. 1821, at which time
the Postmaster General did open an account against and claim and
demand of said Gerrit L. Dox, the sum of $3,041.35; that Gerrit L.
Dox, at the time of his removal from office, was solvent and able
to pay his debts, and continued so for three years, and until 1
July, 1819, and that after 1 July, 1819, and before the 1 July,
1821, to-wit, on 1 January, A.D. 1820, he became insolvent, and
still continues to be insolvent. This plea concluded with a
verification.
Page 26 U. S. 320
5. To the second breach, that they executed said bond as
sureties for said Gerrit L. Dox, that said Gerrit L. Dox was
removed from office on the first day of July, A.D. 1816; that the
Postmaster General, well knowing that they were sureties for Gerrit
L. Dox, and that Gerrit L. Dox had neglected and refused to pay
over to the Postmaster General, the balance due from him at the end
of every quarter while he was such postmaster, did not commence a
suit against said Gerrit L. Dox for his neglect and refusal to pay,
until August in the year 1821, at which time a suit was commenced
against him and his sureties, on the bond in question; that Gerrit
L. Dox was solvent at the time of his removal from office,
viz., on 1 July, 1816, and continued so for three years,
and until 1 July, A.D. 1819, and that after 1 July, 1819, and
before 1 July, 1821,
viz., on 1 January, A.D. 1820, he
became insolvent, and still continues to be insolvent. This plea
also concluded with a verification.
The plaintiff took issues on the first, second, and third pleas
of the sureties as they were tendered, and to the
fourth,
fifth, and
sixth pleas, respectively, he replied that
said Gerrit L. Dox was not solvent at the time of his removal from
office, nor did he continue to be solvent for the space of three
years thereafter, or any part of said time, nor did he on 1
January, 1820, or at any other time after 1 July, 1819, become
insolvent, and thereupon issues were joined.
The issues were tried at the May session of the court in the
year 1824. All the issues were found for the plaintiff except those
joined on the
fourth, fifth, and
sixth pleas of
the sureties, which were found in favor of said sureties;
the
breaches assigned, having been found to be true, as above stated,
the damages on them were assessed at $6,000.
After the verdict and at the same session of the court, a motion
was made on behalf of the said Postmaster General for judgment in
his favor notwithstanding the verdict against him on said
fourth, fifth, and
sixth issues with the
sureties, and judgment given for the said plaintiff.
Page 26 U. S. 323
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.:
This suit was instituted against Gerrit L. Dox, a deputy master,
and against his sureties on a bond given for the faithful
performance of his duty. It was brought in the 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.:
1st. Whether the district court had jurisdiction of the
cause.
2d. 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.
3d. 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.:
1st. 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 Wheat. 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 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
Page 26 U. S. 324
defaulter within the time it prescribes. Their liability
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 Postmaster
General 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.
The breaches assigned are:
1st. That Gerrit L. Dox failed to render accounts of his
receipts and expenditures, as deputy postmaster.
2d. That he had failed to pay over the moneys he had received
over and above his commissions, &c.
The defendant pleaded 1st,
non est factum; 2d, that
Gerrit L. Dox did render true accounts, &c., and 3d, 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 1 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 1 July, 1821; that at the time of his removal from
office, he was solvent and able to pay his debts, and continued so
until 1 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 the
Page 26 U. S. 325
laches of the officer to whom the assertion of that claim was
entrusted?
This question also has been settled in this Court.
The case of
United States v.
Kirkpatrick, 9 Wheat. 720, was a suit instituted on
a bond given by a collector of direct taxes and internal duties
under the Act of 22 July, 1813, ch. 16. The act required each
collector to transmit his accounts to the Treasury 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 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
United States v.
Vanzandt, 11 Wheat. 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 duty 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
Page 26 U. S. 326
months after he 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
United States v. Kirkpatrick, 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 ensuring 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
which was permitted to elapse before the institution of the suit,
the answer must be in the negative. The bond was executed on 1
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
ascertained 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 failure they ascribe
Page 26 U. S. 327
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
discharged," 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 judgment 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.
