author: Mr. Justice DANIEL

text:
    Obadiah B. Brown, Plaintiff in error, v. The United States. The United States, Plaintiffs in error, v. Obadiah B. Brown.
    An act of Congress passed on the 2d of July, 1836 (5 Stat. at Barge, 83), directs •- that, where any money has been paid out of the funds of the Post-Office Department to any person in consequence of fraudulent representations or. by mistake, collusion, or misconduct of any officer or clprk of thé Department, the Postmaster- - General shall institute a^suit.to recover it back.
    Where the person who was the chief clerk añd treasurer óf the Post-Office Department transferred to the Department a deposit which hé had made, in liis own name, in a bank which had become broken, and in consequence - of such transfer received the full value of the deposit 'from the Department, it was a case which fell within the statute; and the adjudication of the Postmaster-General, ordering *he person to be credited upon the books and to receive the money, cannot be considered a final adjudication, closing the transaction from judicial-scrutiny.
    The rules and regulations of the Post-Office Department placed the whole subject of finance under the charge of the chief clerk. It was Within the range of his official duties, therefore, to superintend all matters relating to finance, and he was not entitled to charge a commission for negotiating loans for the use of the Department.
    These two cases were merely branches of a single case which was tried in the Circuit Court of- the United States for the District of Columbia, holden in and for the County of Washington.
    The suit was instituted by the United States against Obadiah B. Brown, upon an account, two items only of which were disputed.' Upon one of these items the instruction of the court to the.jury was unfavorable to Brown, and he took a bill of exceptions to it. This constituted the first case. .Upon the second item, the instruction was- unfavorable to the United States, and they excepted.
    The account, upon which the suit was brought was.as follows, viz.:—

      Obadiah B. Brown, late Treasurer Post-Office Department, in Da. account with the United States. Ca.
    1835.
    Jan. 27. To cash, Feb. 18. “ cash, “ 19. “ cash, April 10. “ cash,. $2,500.00 802.59 2,088.61 1,452.00
    $6,843.20
    To balance, $4,588.61
    1845.
    Mar. 31. By amount of his bill, dated 14 February, 1835, No. 460, paid sundry persons for services in Post-Office Department,
    $ 802.59
    June 26. By amount paid sundry persons for services in Post-Office De- . partment, as per bill on file, Balance, . . . .
    1,452.00 4,588.61
    6,843.20
    The two items in dispute were the charges of $ 2,500 and $2,088.61. The first of these, viz. that of $2,500, is not the first taken up in the bill of exceptions, or in the opinion of the court. In both, the latter item of $ 2,088.61 is treated and disposed of in the first instance.
    The whole of the facts in the case are set forth in the two bills of exceptions, which are recited in the opinion of the court. It is therefore unnecessary to repeat them here.
    The cause was argued in this court by the Attorney-General {Mr. Johnson), for the United States, and by Mr"; Bradley and Mr. Coxe, for Mr. Brown.,

      Mr. Johnson referred to the Post-Office Act of 3d March, 1825 (4 Stat. at Large, 102), and made the following points.
    1. That the fact being known to Mr. Barry, the Postmaster-General, that the Bank of Maryland had failed, and that the Union Bank held the certificates given to the former by the Post-Office Department, and that the certificate to Brown given by the Bank of Maryland was for his private account, he had no lawful authority to assume and pay the same to Brown.
    2. That if he had, in the absence of all improper intent, there was evidence from which the jury might infer mistake of fact, collusion, or misconduct in the Postmaster-General in making such payment.
    3. That there was no evidence from which the jury could infer that there wais any agreement to allow the defendant the commissions claimed by him, or from which it could be allowed. ' Gratiot v. The United States, 4 How. 110.
    The counsel for Mr. Brown contended that, with respect to the item of $2,088.61, the charge of the Circuit Court was •correct, and fell within-the ruling of this court in the case of The United States v. The Bank of the Metropolis, 15 Peters, 377, 400, 401; and with respect to the item of $ 2,500, they contended, —
    1. The services rendered by Mr. Brown, and for which he claimed this compensation, were not such as were ordinarily attached to the duties of the office held by him.
    2. They were rendered at the instance of the government, and he was obliged, under the circumstances, to perform the labor, and assume the responsibility necessary to execute that service.
    3. He was entitled to an equitable allowance for such extra service, to be graduated by the amount paid for like services under similar circumstances.
    4. The Department had paid for like services, under similar circumstances, more than was demanded by him.
    And to sustain these propositions they relied on The United States v. Macdaniel, 7 Peters, 1; The United States v. Ripley, 7 Peters, 25, 26; The United States v. Fillebrown, 7 Peters, 44.
   Mr. Justice DANIEL

delivered the opinion of the court.

This case is brought before us upon writs of error to the Circuit Court of the United States for the District of Columbia, holden for the County of Washington.

The facts of this case, and the questions of law arising therefrom, will appear in the following statement of the proceedings in the Circuit Court.

In the year 1839 the United States instituted an action on the. case against the defendant in error, to recover of him the sum of $ 4,588.61, in obedience to the directions of the seventeenth section of the act of Congress of July 2, 1836 (5 Statutes at Large, 83), which declares,' “ That in all cases where any sum or sums of money have been paid out of the funds of the Post-Office Department to any individual or individuals under pretence that service has been performed therefor, when in fact such service has not been performed, or by way of additional allowance for increased service actually rendered when the additional allowance exceeds the sum which, by the provisions of the law, might rightfully have been allowed therefor, and- in all other cases where moneys of the department have been paid over to any person in consequence of fraudulent representations, or by mistake, collusion, or misconduct of any Officer or clerk of the Department, it shall be the duty of the Postmaster-General to cause suit to be brought in the name of the United States of America to recover back the same, or the excess, as the case may be, with interest thereon.”

The declaration counted upon an insimul computassent, upon money paid, upon money lent and advanced, and upon money had and received. The account exhibiting the claim of the United States consisted of four items, and is in the following form.

“ Obadiah B. Brown, late Treasurer Post-Office Department, in Dr. account with the United States. Cr.
1835.
Jan. 27. To cash, Feb. 18. “ cash, “ 19. “ cash, April 10. “ cash, $2,500.00 802.59 2,088.61 1,452.00
$ 6,843.20
To balance, $ 4,588.61
1845.
Mar. 31. By amount of his bill, dated 14 February, 1835, No. 460, paid sundry persons for services in Post-Office Department,
$ 802.59
June 26. By amount paid sundry persons for services in Post-Office Department, as per bill on file, Balance, ....
1,452.00 4,588.61
6,843.20
“ I certify that the foregoing is a true statement of the account of Obadiah B. Brown, late treasurer of the Post-Office Department, as audited and adjusted at this office.
“ In testimony whereof I have hereunto subscribed my name, and caused to be affixed my seal of office, at Washington, this 2d day of July, in the year 1839.
C. K. Gardiner, .
Auditor of the 'Treasury for Post-Office Department.”

. The . second and fourth items of this account were extinguished by credits equal to their amount; the first and third items were alone contended for by the United States. The jury found a verdict for the plaintiffs for the first item, and rejected the third, under the instruction of the Circuit Court.

At the trial, bills qf exception to the rulings of the court were sealed, at the instance of both the plaintiffs and the defendant, and a writ of error is prosecuted by either party in this court.

The proofs set forth in the bills of exception, and the rulings of the Circuit Court upon' the prayers appended to those bills, are made a part of this statement,’ so far as is necessary to present the questions brought up for review.

“ The plaintiffs, to sustain the issues joined on their part, and to establish their right to recover the third item in the account, of $ 2,088.61, gave evidence by competent testimony, that, on the 3d of May, 1833, the defendant made a private deposit of his own funds in the Barik of .Maryland, off the sum-of $ 2,000, bearing interest at the rate of five per. centum per annum, and received ^certificate therefor.. That the defendant was at the time of said' deposit, and continued until the 1st of February, 1835, to be, the chief clerk and treasurer of the Post-Office Department That on the 5th of June, 1833, .the Post-Office Department borrowed of the Bank of Maryland $> 50,000, payable at nine and twelve months, and gave to the said bank two certificates of $ 25,000 each, in acknowledgment of this loan. These certificates were signed by the defendant, as treasurer of the Department. That on the 22d of June, 1833, the Bank of Maryland borrowed of the Union Bank of Maryland $ 50,000, and deposited said loan certificates as collateral security, therefor.

“ That on the 22d of March, 1834, the .Bank of Maryland failed, and the Post-Office Department, shortly after, knew of that fact. That on the 22d of March, 1834, the Bank of Maryland made a general assignment to John B. Morris and Richard W. Gill, as trustees for the benefit of its creditors. And that both the Post-Office Department and defendant were notified of said assignment to the Union Bank of the post-office certificates, as early as the 8th of April, 1834.

“ That immediately on the announcement of the failure of the Bank of Maryland, its certificates of deposit depreciated in value to the amount of eighty per cent., and continued gradually to depreciate until some three or four years after, when ■they had fallen as low as twenty-five per cent. That on or about the 9th of September, 1834, N. Williams, Esq., the District Attorney of the United States, and acting as such, procured to be made on said certificate of deposit given to said defendant the indorsement thereon signed by J. B. Morris and R. W. Gill.

“ ‘Mr. Wilson, Cashier:
“ ‘ Release the within certificate, with interest up to 22d of March, on deposit to be checked for.
“ ‘ j. B. Morris,
R. W. Gill, Trustees.
“ ‘ 3d September, 1834.’

“ And said certificate, Avitfi the indorsement of the defendant Brown, and of said Morris and Gill, was thén by him presented to the Bank of Maryland by said Williams, acting as aforesaid, and the said certificate was then and by it cancelled-, and a ■credit given for the amount, with the interest up to 22d March, 1834, to the Post-Office Department, being :the amount of two thousand and e-ighty-eight dollars sixty-one cents: this credit was given on the 9th of September, 1834, and in a day or two after, on the receipt of the account showing said credit, corresponding entries were made on the books of the Department, charging said bank, in general account, with said sum of two thousand and eighty-eight dollars sixty-one cents, and crediting O. B. Brown, Treasurer, &c., with the like sum.” That early in February, 1835, the defendant retired from' his office in the Post-Office Department, and afterwards, on the 19th of February, 1835, the Postmaster-General caused a requisition to be made out in favor of the defendant for the sum of $ 2,088.61 ; and upon this requisition a corresponding check was drawn, payable to his order, for the like amount, which, being indorsed by him, was duly paid, which sum so paid is that now sought to be recovered. That on or aboht the 5th of December, 1836, an arrangement was made between the said Union Bank and the then Postmaster-General, under which the defendant was recharged with the sum of $ 2,088.61, and the Union Bank thereupon gave the bond of indemnity in the following words.

“ ‘ Know all men by these presents, that we, the President and Directors of the Union Bank of Maryland, and Robert Mickle, of the State of Maryland, are held and firmly bound unto the United States in the full and just sum of four thousand dollars, current money of the United States, to be paid to the said United States; to which payment, well and truly to be made, .we bind ourselves and each of us, firmly and severally, by these presents. Sealed with our seals, and dated this 5th day of December, in the year 1836.

“ ‘ Whereas, Amos Kendall, Postmaster-General of the United States, hath allowed and paid to the President and Directors of the Union Bank of Maryland the sum of two thousand and eighty-eight T6TV dollars, claimed to be due to the said bank from the Post-Office Department, which claim was disallowed by William T. Barry, former Postmaster-General of the United States, and the amount so claimed by the said -bank was paid to a certain O. B. Brown by. the said Barry, on the ground that á debt due to the said Brown from the Bank of Maryland could be legally set off against the claim of said Union Bank; and the said Amos Kendall, as Postmaster-General as aforesaid, having allowed and paid the claim of said Union Bank, and recharged the said O. B. Brown with the .amount so received by him, is about to sue the said O. B. Brown for the same, in which suit' the validity of said set-off may be brought in question.

“‘Now, the condition of the above,obligation is such, that, if the validity of said set-off should in the said suit be sustained by- a judicial decision, and the said Union IBank shall thereupon, on demand, fail to repay the said sum of two thousand and eighty-eight T%\ dollars, with legal interest thereon from the time they received the same, the above obligation to be in full force ; otherwise to be void..

“ ‘ H. W. Evans, [seal.]
President of the Union Bank of Maryland.
R. Mickle, [seal.]
‘ Signed, sealed, and delivered in presence of
ÜH. A. WlLLAMSON.’

“ Whereupon the plaintiffs closed their testimony; and the defendant prayed the court to instruct the jury that, on the evidence aforesaid, if believed by the jury, the plaintiffs are not entitled to recover the said item of $2,088.61.

“ And the court, being of the opinion that-, by the evidence aforesaid, it appeared that the former Postmaster-General (Barry) had, within the scope of his official authority, and with full possession of the facts involved in the case, adjudicated the question of the right of the defendant to receive the said item of $2,088.61, and, under the said adjudication, the same had been paid to the defendant, and that this court has no authority to review and reverse the said adjudication for errors of law therein, and that, from the evidence aforesaid, the jury .-cannot-infer mistake iof fact, collusion, or misconduct of the said Postmaster-General, gave the instruction as prayed, to which instruction, as given, the plaintiffs excepted.

“ The defendant having admitted the receipt by him bf the sum of $ 2,500, as charged in plaintiffs’ account, offered and read in evidence an account presented by him to the ílepartment, claiming sundry allowances as for commission for the disbursement of sundry sums made by him from the contingent fund of the Post-Office Department, and for the like commissions on the sum of $ 190,000, being the amount of sundry loans negotiated by him, at the request of the Postmaster-General, for the usé of said Department, as charged and claimed in-said account, and then gave evidence ’ tending to prove, by credible and competent witnesses, that he, the said defendant, while chief clerk of the Post-Office Department, was employed by the said Postmaster-General to negotiate'said loáns'; that he faithfully performed that duty, and did negotiate the several loans for the sums with the parties, and at the times mentioned in the items of charge in his account. He further gave testimony tending to show that no loans were- ever made and negotiated by or for the use of the Department, except during the period when Major Barry held the office of Postmaster-General, and that no other officer or clerk attached to the General Post-Office had ever been employed in the negotiation of any loans for the use of said Department; that during the same period of time another person, viz. Samuel L. Governeur, then postmaster at New York, was, in,like manner, employed to negotiate similar loans for the use of said Department, as a srecial agent; that loans Were thus negotiated by said Governeur, as such special agent, sometimes at a very high premium, on ohe oeeacasion paying for the same at the. rate of three per cent, per month, besides collateral advantages to the lender ; that for the loans thus negotiated by said Governeur he claimed and was allowed five per cent, commission when he lent his own personal responsibility, and two and a half per cent, when he incurred no responsibility ; and these commissions were allowed and credited him by the Department in the settlement of his accounts ; that the defendant, in the negotiations intrusted to him, went personally to Baltimore and Philadelphia, where the same were conducted and effected, and that he has never received any remuneration for his services, or for his expenses in attending'to said business.

“The defendant further gave parol evidence, tending to show that no negotiations of loans, other than those made by thé defendant, were ever made by the Post-Office Department-^ or by the Department’s chief clerk, and such duties had never, before or since, been performed by any other chief clerk or treasurer, and that if any other person had been employed to perform said business, not connected with the Department, such person would have claimed and received a compensation of two and a half per cent, commission on the amount so borrowed.

“ And thereupon, the plaintiffs offered further evidence to prove that, during all the timé aforesaid in which the loans aforesaid were negotiated' by, the defendant, he was chief clerk and treasurer of the Post-Office Department, and as such received a stated salary fixed by law, and, as treasurer, had charge of the financial duties of the Department; that the general outline of his duties is stated in the published rules and regulations of March 4, 1833, issued by the Postmaster-General, but there were other minor duties for -which there were verbal directions; that the disbursements of the contingent expenses of the Department, and the settlement of accounts therefor at the Treasury, down to the year 1815, had been by the Postmaster-General, and since that year by officers of the Department assigned to that duty in addition to their other duties j that the defendant was disbursing agent from 1829 to some tiine in February, 1835, and as such settled quarterly accounts of his agency at the Treasury; that no allowance had ever been made for such services beyond the stated salaries of the officers, and none had been asked for by any officer except by the defendant, long after he had settled his accounts, and had retired from office ; that before, and during, and ever since the years 1833 and 1834, in which said loans were negotiated by defendant, it was the frequent usage of the Department for the Postmaster-General to send its officers to points of the country distant from the office, on special business connected with their respective branches of the ¡service, and they had never claimed or been allowed any compensation therefor, except their actual expenses, in addition' to their stated salaries, which continued to run on during their absence, and that no distinction was known or recognized in this respect between the financial and. other divisions of the department; that during his treasurership the defendant had made, no claim for commissions on the loans aforesaid made by him; that his predecessor in charge of the. financial department was the First Assistant Postmaster-General/: who held the office during several years, down to March, 1843, and during that time, by direction of the Postmaster-General, negotiated with distant banks for permission to make two overdrafts, of $ 50,000 each, for which interest was to be allowed, and which were to be repaid by deposits of the revenues of the Department, as collected; that he rendered these services, as essential portions of his duties, under charge of the finsínciál division of the Department, and never expected to receive any compensation therefor beyond his regular salary i that no other loans are known'to have been negotiated by the Department, nor are commissions known to have been allowed to officers of the Department for any special services rendered by them for the Department; and further offered evidence to prove, that in the Treasury Department the contingent expenses and salaries of officers, amounting to the monthly sum of $ 70,000, were always disbursed by officers of the Treasury assigned to the duty, in addition to their ordinary duties, without any charge or claim of extra compensation; and that officers of this Department were sent on missions to New York connected with public loans, and were never allowed any compensation beyond their expenses.

“ And the defendant further gave evidence tending to prove, that the arrangement made for the overdrawing of the $ 50,000, made by the First Assistant Postmaster-General, was performed through the instrumentality of an agent in New York, acting under instructions from said assistant; that it was not regarded as a loan, but as an agreement, upon the promise of regular de-' posits, sometimes leaving large balances in favor of the government to meet and pay the drafts of the Department, in case no funds belonging to it were at the time in deposit', to the extent of $ 50,000; that the defendant had made similar arrangements for the Department with other banks, at different times, to the amount of $ 500,000, and had never claimed compensation- for this as an extra service, or received any such compensation therefor.

“ Upon the whole of the evidence, so given by the parties respectively, the counsel for the United States prayed the court to instruct the jury as follows, viz.: — That on the whole of said evidence, if believed by the jury; the plaintiffs are entitled to recover the said sum of $ 2,500, and that defendant is not entitled to set off against that item any value of his services in negotiating said loans, or for the disbursement of the contingent fund-, as claimed by him in his said account. To the giving of which instruction, the defendant, by his counsel, objected, but the court overruled the objection, and gave the instruction as prayed ; to which ruling of the court the defendant excepted/’

The inquiries arising upon this record involve, to some extent, an examination of the powers and duties of the Postmaster-General in the administration of his office, and embrace also a construction of the seventeenth section of the statute of June 2, 1835, with respect to the directions to the Postmaster-General to prosecute for' any of the delinquencies or misfeasances enumerated in that section; they imply, moreover, an examination on the part of this court as to how far the acts of the defendant helow, as characterized by the proofs on the record, fall within either category of a payment- out of the funds of the Post-Office Department under pretence of services which have not been performed, — or of an allowance for services actually performed, exceeding the compensation permitted by law, — or of money paid over to a person in consequence of fraudulent representations, — or by mistake, or collusion, or misconduct of any officer or clerk of the Department.

Without undertaking, in the solution of these inquiries, to define with perfect exactness the powers of the Postmaster-General, or-to deny or affirm any implied general power in that-officer to make loans on the credit or responsibility of the government, we think it may be safely assumed that such a power, if vested in that officer, must be limited to acts inseparable from the exigencies of the Department over which he presides; acts necessarily incident to its regular, legitimate operations. It never can be extended to a right in the Postmaster-General, at his discretion, to contract loans, or-to borrow money upon mere calculations of contingent or speculative advantage to the Department; much less can it embrace the, right in this officer to deal ad libitum in stocks, or bonds, or evidences of debt, or in certificates of deposit, either with corporations or individuals, when these subjects of traffic can in no wise be connected with the necessary or beneficial operations of the Department, nór can, indeed, be in any sense connected with'that Department, except to render the latter a guarantee for the profit of others, with whom such transactions may take place.

Under' the principles here assumed, and which are deemed by this court to be undeniable, let us look more nearly at‘ this payment of $ 2,088.61, .made by order of the Postmaster-General, to the - defendant, and at the circumstances under which it was made, in order to ascertain how far such payment, and the retention of the amount, by the defendant, are warranted by these principles. . It should here be borne in mind, that for some time previously, and to a period of nearly eleven months after the failure of the' Bank of Maryland, the defendant was not only the chief clerk, but the treasurer, of the Post-Office Department. He was, therefore, necessarily acquainted, not only with the internal details of the Department; and clothed with the control of its pecuniary operations, but was also acquainted, with the condition and character of those from whom loans- to the Department were obtained; indeed, he assumes much credit to' himself for this knowledge, and his acts .based upon it, and makes them in part the foundation of his claim for commissions on the moneys he had negotiated. But in addition to this implication, it is stated in the proofs that the Post-Office Department was informed, in March, 1834, of the failure of the Bank of Maryland-; and that as early as. the 8th of April following, both the Department and the defendant were notified, of the assignment to the Union Bank of the Post-Office certificates for $ 50,000. However possible it may be, that the. head of the Department remained individually ignorant of the several occurrences above mentioned, they warrant a fair, nay, a necessary, legal conclusion to affect him with every consequence deducible from facts which it was within the range of his duty to know. But whatever suppositions may be indulged with respect to the head of the Department, they cannot avert from the defendant the consequences of acts notoriously, designedly, and personally performed by himself. Thus situated, — under these striking facts and circumstances, — being still the chief clerk and treasurer of the Department, with full knowledge of the failure of the Bank of Maryland, and of the transfer to the Union Bank of the certificates of debt for $50,000, the defendant himself withdraws his depreciated certificate of deposit from the insolvent Bank of Maryland, and on thé-9th day of September, 1834, more than five-months after the failure of .that bank, transfers it, with the interest-which had accrued thereon, to the Post-Office Department at par. It is true he does not sign the order for the payment to himself, for he had a few days previously withdrawn from his situation in- the Department, but he obtained from the Postmaster-General a requisition on the acting treasurer of the Department for payment, and obtained on the 19th of February, 1835, a check from that acting treasurer for the amount of his depreciated certificate, with the interest thereon, at par, and received payment at that rate. Upon considering the position laid down by the Circuit Court, that this transaction was within . the scope of the official authority of the Postmaster-General, we are'irresistibly led to' inquire, What could have been its'object ? Could this possibly have been to improve the credit or to■ facilitate the operations of the Department? If so, how could either of these ends be promoted by wasting the money of the government, that.it might become the holder of a claim upon a notoriously insolvent corporation? Could the objeci have been to possess a set-oif ■ against the claims held by the Union Bank ? If' so, then surely the defendant should have, been allowed nothing beyond the value of the certificate procured from him, and that was literally nothing. If we could impute to the head, of the Department the design to fávor a subaltern in office, this too would be equally irregular and inadmissible with either of the-solutions above.suggested. In no view of this transaction have we been able to regard it as falling within the scope of the Postmaster-General’s authority. On the contrary, it has appeared to us as illegal and irregular, and, so far as the head of the Department was concerned, as perhaps flowing either from want of information, or from the absence of -vigilant personal supervision of the details of office, and of the conduct of inferior agents. But whatever may be the true explanation of the course of the Postmaster-General, that explanation can have no bearing in justification of the conduct of the defendant, or in support of his' pretension to withhold from the government the amount paid for his certificate. As the immediate actor throughout this transaction, giving it form and direction in all its progress, he could not but know the right in which he held the certificate of deposit in the Bank of Maryland. He could not but know the failure of that bank, and the consequent worthlessness of the certificate held by, him, and the injustice and fraud of the contrivance by which he palmed that certificate upon the government, and obtained thereby the amount of it atJpar. In this view of the transaction, we consider the payment to the defendant of the sum of $ 2,088.61, by direction of the Postmaster-General, as illegal and void, and' the case of .the defendant as coming regularly within the meaning of the provision, which is mandatory in directing proceedings like the present for the recovery of moneys of the Department that have • been paid over to any person in consequence of fraudulent representations, or by mistake or misconduct of any officer'or clerk of the Department, and therefore as rendering the defendant liable to refund the amount so paid to him, with interest thereon.

In the decision of the Circuit Court upon the prayer to the second bill of exceptions, sealed at the instance of the defendant below, this court can perceive no error. Upon adverting to the printed rules and regulations for the government .of the Post-Office Department adopted on the 4th of March, 1833, and referred to in the defendant’s exception, we find in the eighth rule the following provision: — “ The third division will be. that of finance, under thfe superintendence of the chief clerk, Obadiah B. Brown, who shall be treasurer of the Department. There shall be under his control the book-keeper’s, the solicitor’s office, and the pay office.”

The language of this rule, if standing singly, must be understood as ' efficiently comprehensive to embrace every thing relating to finance, — to the fiscal concerns of the Department; and it must be perceived, too, that all the functions and duties comprehended within this rule are attached to the office of chief clerk. It is as chief clerk, and by virtue of his office of chief clerk, that the entire subject of finance and financial ádininistration is devolved on him. . The only singularity marking this arrangement is the fact of its associating the powers and .duties created byfit peculiarly with this defendant individually, by declaring that the division of finance shall.be under the su-, perintendence of the chief clerk, O. B. Brown.

But beyond this general provision, contained in rule eighth of the Post-Office regulations, it will be found on examination that the whole' of the remaining rules; extending to number twenty-four, are made- up of a detail of duties to be performed with, respect to receipts, deposits of money, payments and disbursements, by this treasurer, so constituted in virtue of his office of chief clerk; for which last office he received a stated salary. By what course of reasoning, then, it could be shown that the peculiar or appropriate duties of this ■ officer were not his duties, but were performed by him in lieu of some other agent, and became, therefore,' the foundation for extra.compensation, this court are unable to comprehend. Some instances of extra compensation allowed at the Department have been adduced in support of the claim of the defendant to commissions in this case, and several authorities have been cited from this court, which' are supposed to tend to its establishment. With respect to the former, this court- cannot consider them as entitled to the smallest weight; we feel bound to regard them as wholly irregular, and as. examples rather to be censured and shunned, than as precedents to be approved and followed. Between the cases' of The United States v. Ripey, of The United States v. Macdaniel, of the. same v. Fillebrown, relied on for the defendant, and that now before us, we can discern an obvious distinction. Without undertaking- here, to discuss the force of. those decisions as autbvity upon this question, we may safely say that they were commended to the judgment of this court by the conviction that they were founded on services which appertained not to the regular official stations and duties of the claimants, — services, too, actually performed, and untinged by any hue or shade r of contrivance or mala jfides, and really beneficial in their character to those for whom they were performed. We deem- it unnecessary further particularly to contrast. those claims with that of the defendant in the case before us. But whatever may have been understood to be decided, or whatever may in- truth have been decided, by the cases above mentioned, the principles established by this court in the decisions of Gratiot v. The United States, 4 Howard, 80, and of The United States v. Buchanan, decided, during the' present term of this court, we consider as- furnishing the true rule as to allowances for extra services ; by that rule, we conceive that the pretension of the defendant to commissions on loans, as set forth in the proceedings in this case, must be utterly condemned. This court, therefore, approving of so much of the decision of the Circuit Court as disallowed those commissions, do hereby adjudge that the writ of error of the defendant below to this decision be dismissed-; and disapproving as erroneous so much of the judgment of the Circuit Court as authorizes the said defendant to claim against the United States the amount of the certificate of deposit from the Bank of Maryland transferred by him to the Post-Office Department, we hereby adjudge and order, that this judgment be reversed, and that this cause be remanded to the Circuit Court, to be proceeded in conformably with the principles herein above declared.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the County of Washington, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to award a venire facias de novo, and for such further proceedings to be had therein as may be in conformity to the opinion.of this court, and as to law and justice may appertain.


source: Caselaw Access Project

author: Mr. Justice WAYNE

license: Public Domain

text:
    The United States, Plaintiffs in error, v. John S. Roberts and James F. Reed, Survivors of James Adams.
    By the ninth section of the act of Congress passed in 1836 (5 Stat. at Large, 81), it was enacted that the Postmaster-General was authorized to give instructions to postmasters for accounting and disbursing the public money.
    In 1838, the Postmaster-General gave instructions to all postmasters, that, where they paid money to contractors for carrying the mail, duplicate receipts were to be taken in the form prescribed, one of which the postmaster was to keep, and the other was directed to be sent by the next mail to the Auditor for the Post-Office Department
    Where a payment was made to a contractor by the surety of a postmaster in his behalf, and no, duplicate receipt forwarded to the Post-Office Department, nor any information thereof given to the Department until after a final settlement of the accounts of the contractor had been made, in which settlement the contractor was not charged with the amount of such payment, it was error in thd Circuit Court to instruct the jury that they might allow a credit for it to the surety when sued upon his bond, provided they believed from the testimony that the contractor had not received more money than he was entitled to.
    By an act passed on the 3d of March, 1825 (4 Stat. at Large, 112), Congress declared that if any postmaster shall neglect to render his account for one month after the time, and in the form and manner, prescribed by law, and by the PostmasteriGen-' 'eral's instructions conformable therewith, he shall forfeit double the value of the postages which shall have arisen at the same office in. any equal portion of time, previous or subsequent thereto; or in case no account shall have been rendered at the time of the trial of such case, then such sum as the court and jury shall estimate as equivalent thereto.
    Where, at the time of the trial of a suit by the United States against a postmaster and his surety, there was no return for an entire quarter and a fraction of the ensuing quarter, the proper mode of computing damages was to go hack to a quarter for which there was a return, Calculate from it the amount due for the deficient quarter and deficient fraction taken together, and then double the sum arrived at by this calculation.
    The fraction is included, because the obligation to make a return is as binding upon a postmaster who leaves office in the middle of a quarter, as if he remaiaed in office until the end of the quarter,
    This case was brought up, by writ of error, from the Circuit Court of the United States for the District of Illinois.
    It was an action of debt, brought by the United. States in the Circuit Court, on ,an official bond against John S. Roberts, who had been postmaster at Springfield, Illinois, and Jam'es F. Reed and James Adams, his sureties.
    The facts in the case were these.
    On the 3d of March, 1825, Congress passed an act (4 Stat. at Large, 112), the thirty-second section of which enacted as follows, viz.: —
    • “ That if any postmaster shall neglect to render his accounts for one month after the time, and in the form and manner, prescribed by law, aiid by the Postmaster-General’s instructions conformable therewith, he shall forfeit double the value of the postages which shall have arisen at the same office in any equal portion of time, previous or subsequent thereto; or in case no account shall have been rendered at the time of trial of such case, them such sum as the court and jury shall estimate as equivalent thereto, to be recovered by the Postmaster-General, in an action of debt on the bond againstrthe postmaster and his securities, and for which the securities shall be liable.” . This was no new provision, being substantially a reenactment of the thirtieth section of the Post-Office Act of 1810. 2 Statutes at Large; 602.
    In 1836 Congress passed another act (5 Stat. at Large, 81), the ninth section of which gave to the Postmaster-General authority to prescribe regulations for the proper enforcement of the duties of postmasters.
    Under this authority, Amos Kendall, then Postmaster-General, issued the following circular.

      Letter.

    “ Post- Office Department, April 13, 1838.
    “To
    Postmaster, at Springfield, 111.
    “ Sir, — You are required, within two days after the close of each quarter, to forward your quarterly accounts to this Department ; or, if there be no mail from your, office within that time, then by the next mail. The quarters end on the 31st March, 30th June, 30th September, and 31st December.

      “ By having your accounts' of mails sent, and mails received, copied beforehand, up to-the last day, you can finish the copies, make the calculations, and have them ready to be forwarded, in a few hours.
    “ As you have no right to use or credit out the money which belongs to the United States, it is required that you have the balance due at the end of each quarter ready to be paid on demand.
    “ The contractor named at the-foot of this letter, who carries the mail on the route there stated, on which your office is situated, is authorized to demand and receive of you, either in person or by his agent, at the end of each quarter, so long as he shall actually carry the mail on said route, or until you shall be otherwise directed, the whole amount due from you to the United States, including, the quarter then just terminated, as shown in your , account current.
    “ Blank forms of orders and receipts (specimens of whieh, filled up, are hereto annexed) will be sent, for every collection, to the contractor. These forms, and no others, must be used in your payments to contractors. If the contractor call on you in person for the money, the order? will not be necessary,' and you will take from him two receipts in the form prescribed, one of which you will keep, and send the other by the next mail to the Auditor for the Post-Office Department. If any other person call for the money as agent, he must produce to you two orders in the prescribed form, signed by the contractor, with the , blank receipts .annexed ; and after you have paid him, he will fill up and sign both receipts, and leave both orders and both receipts with you ; one of each you will forthwith send to the Auditor for the Post-Office Department, and retain’ the other.
    “ These claims and orders cannot be sold, negotiated, or transferred, and no credit will be allowed you for any payment to any other person than the contractor, or the persons named in his orders; nor in the latter case will credit be allowed, unless the order accompany the receipt; nor unless the receipt be dated on the day when the .money is paid.
    “ When demand is' made of you as herein prescribed, it is expected that you will make instant payment, and the contractor is instructed to report forthwith to the Department every refusal or failure on your part.
    “ Very respectfully, your obedient servant,
    “ Amos Kendall.
    “ Pay to Robert Allen,
    Contractor on route No. 2,701.

      “ S33 You will take care to write or stamp the ríame of your office on the outside of the packet containing your quarterly returns for each quarter.
    “ Auditor’s Office, P. O. Dep.”

    Annexed to this letter were blank forms, which the postmaster was directed to follow.
    There was also issued the following circular to contractors for carrying the mail.
    “ Post- Office Department, ■ 183
    “To
    Contractor on Mail Route' No.
    “ The postmaster at [and]
    are instructed to pay over to you, or your order, on. demand, at the end of each quarter, so long as you shall actually carry the mail on said route, or until they shall be otherwise directed, the whole amount due from them to the Department, for the quarter then just terminated, as shown by their several accounts current.
    “ You are requested to make demand as^ soon as possible after the first day of the next quarter, and report to the Department every failure or refusal to pay, with the reasons therefor, whether given by the postmasters, or otherwise know;n to you.
    “When you have received the balances due from all these' ■ postmasters, or as many of them as can be collected, you will fill up, sign, and send to the Department the blank ‘ acknowledgment ’ sent to you, of which a specimen is annexed, showing the ñamé of each postmaster, the name of his office, and the amount received from him, upon receipt of which a draft will be forwarded for any amount which may. still be due to you ; provided that,' in case you fail-to collect any one of said balances, ño part of the balance due will be paid you until the Department shall be satisfied that you have used due diligence to effect the’collection, and that it could not be done.
    “ Herewith you will also receive the proper number of orders and receipts, in blank, for collections on the above route; that is, an original and duplicate for each office, which you are required to use in all your collections from the postmasters. Similar blanks will be forwarded for each successive quarter. You will collect at the end of each quarter from those offices ■only, which are named in the blanks sent to you for that quarter. If you apply for the money in person, the orders will be unnecessary, and you will fill up and hand to each postmaster from whom you may receive payment the original and duplicate receipts, sent to you for his office, — one for his own use, the other to lie sent to the Department. If you send any other-person to call for the money at an office, you will fill up in. his favor, and give him the two orders (original and duplicate) sent to you for that office,.with the 'blank receipts annexed; and when he has received the money, he will fill up and sign the annexed receipts, and leave both orders and both receipts with the postmaster.
    “You are not authorized to sell, negotiate, or transfer any of these claims, and no payment will be recognized by the Department unless made directly to you, or to the person named in your orders.
    “ Every order and every receipt must bear the true date of its signature, in default of which it will not be considered a good voucher at the Department.
    “ Yery respectfully, your obedient servant.”
    Annexed to this letter also were blanks, and copies were sent to the postmasters.
    On the 9th of July, 1840, John S. Roberts, being reappointed postmaster at Springfield, executed a bond to the United States, with James Adams and James P. Reed as sureties, in the penal-sum of five thousand dollars, with the condition that he should-well and truly execute the duties of the said office according to law and the instructions of the Postmaster-General, &c., &c.
    The contractor for carrying the mail on route No. 2,701, from Springfield in Illinois to Terre Haute in Indiana, was Robert Allen.
    It appeared from the testimony of Thomas A. Scott, a clerk in the office of the. Auditor of the Treasury for the Post-Office Department, that for the third quarter of 1840, Allen, the contractor, transmitted an acknowledgment for collection made on route No. 2,701; that, in this acknowledgment, the said Allen acknowledged no sum- as received from said Roberts, and that, no receipt having been received frota said Roberts, no charge was made on account of any such collection against said Allen for said quarter, nor was any credit given to said Roberts ; but that deponent, considering that said Roberts was in default in respect to said quarter by not paying over his quarterly dues to the said contractor according to his duty under his standing instructions, and upon the printed receipts sent to the contractor for that purpose, regarded it as his duty to report said default for the information of the Postmaster-General, and did accordingly make sUch report bn the 14th of November, 1840.
    “ And deponent further saith, that, for the fourth quarter of 1840, the said Allen transmitted .an acknowledgment for collecting on said route No. 2,701; that, in this acknowledgment, said Allen having reported no Sum as collected from said postmaster, and the said Roberts having forwarded no receipt, no debit to the contractor, or credit to the postmaster, in like man-ner, was given for said fourth quarter of 1840.
    9 And deponent further saith, that, for the first quarter of 1841, the said Allen transmitted an acknowledgment of collections on said route No. 2,701, a- copy of which is hereto annexed, marked I, and made part of this-deposition; that, in this acknowledgment, the said Allen acknowledged himself to have received the sum of s§ 733.28 from J. W. Keys, the successor of said Roberts; for the part of said quarter said Keys was in office, but acknowledged no sum as received from said Roberts, and that neither did the said Roberts transmit any receipt of said Allen for said first quarter, nor for any part thereof,'during which he remained in office.”
    It should be mentioned that, for the second quarter of 1840, Allen, the contractor, transmitted an account to the Department, in which he took no notice of a payment of .$ 956.87, which had been made to him by the postmaster at Springfield; but, the postmaster having transmitted Allen’s receipt in proper form for-that amount). Allen Was charged and the postmaster credited with that amount.
    In January, 1841, Allen alleged that he gave a receipt to James Adams, one. of the sureties, for $> 1,731.39, which. Adams ' had paid to him at various times, and in various amounts. The receipt was without date, and as follows : —
    “ Received of John S. .Roberts,, Postmaster at Springfield, lib; (per'Gen. James Adams, one; of his sureties,) seventeen hundred and thirty-one dollars T\0j of the amount due up to the 1st of January, 1841, to the Post-Office Department.
    “ Robert Allen.”'
    This receipt, however, ufas not transmitted to the Post-Office Department until 1843, as appears from the following deposition by P. G. Washington, then Auditor of the Treasury for the Post-Office Department.
    “And deponent further saith, that whilst holding the office of chief clerk, to wit, about the 1st of March', 1843, a letter was received at the Auditor’s office, and referred to deponent, according to the usual course of business, from J. Butterfield, Esq., then District Attorney, dated 19th February, 1843, and inclosing a copy of. an affidavit made by said Robert Allen in this cause, and a copy- of a receipt given by him to James Adams, one of the sureties of said J. S. Roberts, for the. sum of $1,731.39, the said affidavit setting forth that said Allen drew for and received said amount at different times, and informed the Post-Office Department thereof by letter; and about the same time deponent had referred to him another copy of said affidavit and receipt, with a copy attached of an affidavit alleged to have been made also in this cause by the said J. S. Roberts, setting forth, among other things, that said Roberts had large items of set-off, which had been forwarded to the Post-Office Department, and been disallowed. And deponent then made an affidavit to rebut said affidavits, and with the same object procured affidavits to be made by said Elisha Whittlesey and said Thomas A. Scott, and having, on said occasion, fully examined the whole subject, became well satisfied, as he now is, that unless the said sum of $ 1,731.39, drawn for and received at. different- times, was composed of sums which were afterwards, to wit, at the end of the quarter, merged in and covered by the sums for which the said Allen gave the proper receipts, and which he properly reported in his acknowledgments for such quarter, the said sum of $1,731.39, as a separate and specific payment, never came to the knowledge of the Department, and was never charged to him, over and above the sums regularly reported, and at the same time charged to him, and credited to the said J. S. Roberts.
    “ And deponent further saithj that from the time a statement of the account of said Roberts was sent, as before stated, to wit,' on the 29th January, 1842, for the information' of the parties liable to the present, he, deponent, has had no knowledge whatever of any exceptions taken to. said account, nor of any items of set-off on the part of said Roberts, except the pretended set-off foiinded upon the receipt of said Allen, which came first to the knowledge of deponent at the time and in the manner before stated, and long after the final payment was made to said Allen in' September, 1842, for the balance due him for carrying the mails, as before stated.
    “And deponent further saith, that the original receipt of said Allen for $ 1,731.39, before referred to, was also received at the Auditor’s office in a letter signed by James Adams, for himself and J. F. Reed, and dated 14th January, 1843, but not, as deponent believes, before the copies were received, as before stated; and that deponent returned the said original receipt to said Adams in a letter dated the 11th May, 1843, as appears by a memorandum made at the time on a copy of^said receipt, which deponent prepared and retained.”
    On the 7th of February, 1841, Roberts went out of office.

      Ia January, 1842, a copy of Roberts’s account was transmitted to J. W. Keys, postmaster at Springfield, with instructions to present said account to the sureties of Roberts, and to inform them that a draft would be issued for the amount. The account was as follows, the first item being a balance due on the 9th of July, 1840, Roberts having been postmaster previous to that day.
    “ Account.

    To balance,, . .. . . . . . $ 372.58
    To account from July 9 to Sept. 30, 1840, . . 921.40
    To balance on postages estimated to have arisen at his office, from Oct. 1, 1840, to Feb, 7, 1841, and doubled agreeably to the 32d section of the act approved 3d March, 1825, relating to the Post-Office Department, . . . . . 2,852.72
    14,146.70
    Interest from 7th February, 1841.
    “I certify that the foregoing is a true statement of the account of J. S. Roberts, late postmaster at Springfield, 111., as audited and adjusted at this office ; that the said J. S. Roberts did not render, as postmaster, an account current, as he was required to do, for the period from Oct. 1, 1840, to Feb. 7, 1841, inclusive, within one month after the expiration of ,said period, or at any subsequent time, and that I have estimated the post-ages received, in said period at $ 1,426.36, the basis of the estimate being the amount of postages received for the quarter next preceding, say from July 1 to Sept. 30, 1840, and the ,said sum of' $ 1,426.36 bearing the proportion to' $ 1,009.43 (the post-ages of said quarter) which 130 days do to 92 days (the number of days in said quarter); and that, having doubled the amount of said postages so estimated,, agreeably to the thirty-second section of the act of 3d March, 1825, I have charged the same at $ 2,852.72.
    r [seal.j
    ' “ In testimony whereof, I have hereunto subscribed my name, and caused to be affixed my seal of office, at Washing-this 17th day of June, in the year 1842.

      “ Elisha Whittlesey,

      Auditor of Treasury for Post-Office' DepH."

    It will be .perceived by the above account, that the Auditor adopted a rule which was one of the, points contested in the case; that for fhe quarter ending on the 30th of September, 1840, the amount of postage received was $ 1,009.43; that having no actual return of the amount received after that day, he applied the rule of three to the case, and worked out the re-suit by the following method. .As 92 days (the quarter ending on September 30th) are tó $ 1,009.43, so-are 130 days (the time between September 30th and the 7th of February, 1841, when he went out of office) to the sum with which he was properly chargeable, viz. $ 1,426.36. According to the act pf Congress referred to in the commencement of this statement, this sum was doubled. It will be seen by the bill of exceptions that the jury, under the charge given by the court, doubled only the sum of $ 1,009.43.
    In June, 1842, Allen’s contract for carrying the'mail expired, and on the 9th of September^ 1842, his account was reported for settlement to the Postmaster-General. It showed a balance due to Allen of $ 881.37, which was paid on the 13th of September; but in this account no notice was taken'of the alleged receipt by him, from Roberts’s surety, of the sum of $ 1,731.39,. no such payment having been brought to the notice of the Department.
    In December, 1842, suit was brought upon the bond by the United* States, in the Circuit Court of the State of Illinois.
    On the 14th of January, 1843, J. Adams, “ for himself and James F. Reed,” wrote a letter to the Post-Office Department, inclosing a copy.of the receipt (above mentioned) for $ 1,731.39, signed by Allen, the contractor, and claimed .credit for it in Roberts’s account.. This letter was received about the 1st of March. .
    On the 11th of May, 1843, this receipt was refused and, returned,1 for the following reasons, viz. : —
    “ I further certify, .that credit for said receipt was, and is, refused, for the reason that, by the' ninth section of the act of. 2d July, 1836, it is made- the duty of the Postmaster-General to prescribe the manner in which postmasters shall pay over their balances; that the Postmaster-General, in performance of this duty, gave to Mr. Roberts certain printed -instructions, constituting the only authority he had for paying over the money he had in his hands; and- tha,t the payment so alleged to have, been made by Mr. Allen was in direct violation of said instructions, and an evasion of the object therein intended to be secured, — the said object being, by restricting such payments to the blanks sent from t,he Department for each quarter for that purpose, and by requiring the immediate transmission of one of said receipts, when executed, to charge the contractor on account of the same quarter with the amount, and to pay him thereupon only the balance of pay remaining; that no such blanks were furnished for the payment in question ; and that, by using a manuscript receipt, not sanctioned by the instructions or practice of the Department, it remained in entire ignorance of any such payment, until the receipt was received from Mr. Adams, as before stated, and until the contracts of Mr. Allen had expired; and the full amount dué him had been otherwise paid; and, finally, as the postmaster had no authority to make such payment, his. surety, Mr. Adams, had none to make it fot him. •
    r » [SEAn.j
    “ In testimony whereof, I have hereunto subscribed my name, and caused to be affixed my seal of office, at Washingtp,js 0th day of November; in the-.year 1845.
    “P. G. Washington,

      Auditor of Treasury for Post-Office D'effiV^

    The defendants, at first, allowed judgment to go against them by default, but this was. afterwards set aside, and they were allowed to plead. The death of the defendant Adams was afterwards suggested, and issue having been joined, the canse came on for trial.in December, 1845, when the jury found the following verdict, viz.: —
    “ We, the jury, find for the plaintiffs, and assess their damages at the sum of fourteen hundred and eighty-five dollars and t,wenty-nine-cents; and the jury presented the following statement, made by them by direction of court, showing the calculations and allowances by which.their said verdict was made up, viz»: — The jury allow the amount of $ 921.40, and for the quarter from October to December, estimated at $1,009.43 doubled, making ......$2,018.86
    -921.40
    2,940.26
    Deduct for receipt, . . . . . 1,731.39
    1,208.87
    Interest on . . . $921.40 276.42
    6"--
    --_ 1,485.29
    55.2840-
    5
    276.4200
    “ Judgment.

    “ It is therefore ordered and adjudged, that the said plaintiffs do recover of and from the said defendants their debt fn their declaration mentioñed, the sum of five thousand dollars...to be released and discharged upon the payment of. fourteen hundred and eighty-five dollars and twenty-nine cents, the damages aforesaid, by the jury aforesaid assessed, as well as their -costs and • charges herein expended, and lhat they have execution thérefor,” &c.
    In the course of the trial the following bill of exceptions was taken.

      Bill of Exceptions.

    United States Circuit Court for the District of Illinois, December Term, A. D. 1845.
    The United States of America v. John S. Roberts and James F. Reed, survivors of James Adams, deceased.
    Be it remembered, that this cause came on to be tried on the 19th day of December, A. D. 1845, at the December term of the Circuit Court of the United States for the District of Illinois, the Hon. Nathaniel Pope presiding; and the said plaintiffs, to prove and maintain the issues on their part, first introduced in evidence the bond on which this suit was brought, a copy of which is attached to the declaration herein, and then introduced in evidence the following certified statement of the account of John S. Roberts, as postmaster at Springfield, Illinois, to wit. (Then followed the certified account, as it has been stated above.) '
    ' The plaintiffs, further to prove the issues on their part, then read im evidence the deposition of Robert B. Rust, as follows. (Rust was a clerk in the Post-Office Department, and deposed that- no returns had been made by Roberts for the quarter ending 31st December, 1840, nor for that part of the succeeding quarter between 1st January and 7th February, 1841.)
    It was then admitted that Roberts went out of office on the 7th of February, 1841, and the plaintiffs there rested their case.
    The defendants then offered in evidence the circular letter of instructions from Amos Kendall, the Postmaster-General, which has been given above. This was objected to on the part of the United States, but the objection was waived in the argument of the cause in this court.
    The defendants then offered in evidence the receipt given .by Allen for~$ 1,731.39, above stated, the introduction of which was objected to by the''United States; but the court overruled the objection, and permitted the paper to be read to the jury, to which the plaintiffs excepted, on the ground that it did not-appear that the claim of the defendants for - the amount mentioned in said receipt had been presented to the Auditor of the Treasury for the Post-Office Department for settlement, and disallowed by him, and because the payment receipted for was in violation of law, and contrary to the instructions of the Postmaster-General.
    The defendants then offered the certificate of P. G. Washington, Aud tor of the Treasury, disallowing the claim, which certificate is given above.
    The defen lants then called Robert Allen, who executed the receipt, as a idtness, and offered to prove by him the. circumstances under which the said receipt was given. The plaintiffs, by their counsel, objected, first,, to the competency of the said Allen as a witness in this suit, on the ground that he was in-. terested in the result of this suitand, secondly, because the said receipt was not given in the form prescribed by the PostmastenGeneral in his instructions; and, thirdly, that it was not competent for the said defendants to explain the said receipt by parol testimony'; the court overruled the said objections, and , allowed the said witness to testify; to which decision of the court the said plaintiffs, by their counsel, excepted"
    And the said Allen testified that he was a contractor for carrying the mail on route 2,701, at and before the date of the said receipt; that the money mentioned in the said receipt, before . the execution thereof, had been paid to him by James Adams, one of the sureties of the said John S. Roberts, in several small payments, for which he had given him receipts; that after-wards, some time in, the month of January, 1841, he took up the said receipts, and gave him the said receipt for $ 1,731.39; that he never reported the receipt of the said money to the Post-Office Department, but thinks that some time afterwards he .advised said Department thereof by letter, but could not state at what time ; that he ceased to be' contractor for carrying the mail on the 30th of June, 1842; that in March, 1842, he received from the Postmaster-General a draft on the said J. S. Roberts for $ 1,600 ; that he presented the same to the said Roberts for payment, and could get nothing upon it,-and returned the said draft to the Postmaster-General unpaid; that he did not recollect whether it was before or after the receipt of said draff that he advised the Post-Office Department of the reception of the money mentioned in said receipt for $ 1,731.39. Said Allen further stated, that the government was indebted to him, as contractor, five thousand dollars and upwards, and that .he had repeatedly applied for his account Unsuccessfully.
    The said defendants then called James W. Keys, who testified that he succeeded the said Roberts, as postmaster at Spring- ’ field; that he took charge of the post-office at said place on the 7th day of February, 1841. Hé was then asked by the defendants, if, after he came into office, he made, payments to Allen as contractor, and took receipts different from those prescribed by the Postmaster-General in the. printed form; which question was objected to by the said plaintiffs, first, for the reason that no usages of the Post-Office Department can be' proved variant from the printed instructions of the Postmaster-General ; and, second, because no practices pursued by the said Keys, subsequent' to the time Roberts went out of office,- could affect the rights of the plaintiffs in this suit; which objections were overruled by the court, and the witness allowed to answer the question; to which decision the plaintiffs excepted.
    The said witness then testified, that while in office he made several payments to Allen, as contractor, and took his receipts, but did not know if the said receipts varied from those prescribed by the printed instructions of the Postmaster-General ; that he- always took duplicate receipts, and by the next mail forwarded one of them to the Auditor for the Post-Office. Department, and that they were passed to his credit; that after he went out of office, on the 27th September, 1841, he paid to the said Allen, as contractor, six hundred dollars, and- took from him a receipt (which he produced) in the words and figures following, to wit: —
    “Rec’d, Sept. 27 th, 1841, of James W. Keys, late P. Master at Springfield, Ills., six hundred and .fifty dollars in part of the amt. due P. O. Dept, for the fractional quarter ending the 7th Sept., 1841.
    “ Robert Allen.”
    That he took a duplicate of the said receipt at the same time, and immediately forwarded it to the Auditor of the Post-Office Department, and that his account there was credited with the amount of the same.
    The defendants then introduced Allen Tomlin as a witness, who testified that he was postmaster in Galena, in the State of Illinois, from 1839 to the 4th of March, 1841; the witness was then asked, if he had been in the habit of making payments, as postmaster, to mail contractors, and taking manuscript receipts for such payments,, which were passed to his credit at the Post-Office Department; which question was objected to by the plaintiffs’ counsel, on the ground that the rights of the said plaintiffs in this case could not be prejudiced by the acts or dealings of the said Tomlin; which objection was overruled by. the court, and witness allowed to answer the question; to which,decision .the plaintiffs, by their-counsel, excepted.

      The said witness then testified, that he had, in several instances, when postmaster at Galena, as aforesaid, made payments to mail contractors, and took their receipts in manuscript; that he could not state whether such receipts varied from the printed forms or not, but that he always took duplicate receipts, and immediately forwarded one to the Auditor for the Post-Office Department, and such receipts were there passed to his credit.
    The said defendants then called George Welch as a witness, who testified that he was a clerk in the post-office at Springfield during the time the said Roberts held said office, and some time thereafter under his successor; that he thought the quarterly return of the said Roberts, as postmaster as aforesaid, for the quarter ending December 31, 1840, was made up and sent to the Post-Office Department. On cross-examination, the said witness stated that he had no distinct recollection of the said account for that quarter being made up or sent; that he could recollect no fact in relation to it; that when he said, on his direct examination, that he thought the accounts had been made up .for that quarter and sent, he merely thought so, because it had been the usual practice to make up and send the accounts for each quarter.
    The defendants here rested.
    The plaintiffs then introduced and read in evidence the depositions of Thomas A. Scott and Peter G. Washington, showing the state of the accounts with the Department, the material part of which depositions has been given in the preceding part of this statément.
    ■ The plaintiffs, by their counsel, then requested the court to give to the jury the following instructions: —
    I. If the jury believe from the evidence that the said John S.. Roberts continued to hold and exercise the office of postmaster at Springfield, in the State of Illinois, from thq date of the said bond, upon which this suit is brought, until the 7th. day of February, 1841, and then went out of office, and that he neglected to render his accounts, as such postmaster as aforesaid, for the period from October 1, 1840, to February 7, 1841, inclusive, within one month after the time, and in the form and manner, prescribed by law, and by the Postmaster-General’s instructions conformable therewith, or at any subsequent time, then the plaintiffs ár.e entitled to recover double the value of the postages-which-arose at the same offiee in an equal portion of time previous thereto, amounting to the sum of $ 2,852.72, as certified by the Auditor of the Treasury for the Post-Office Department in his- certified statement of the account of the said John S. Roberts, as postmaster as aforesaid; which said instruction was refused to be given by the court.
    II. If the jury shall believe from the evidence, that the said John S. Roberts held and exercised the said office for .the time stated in said first instruction, and neglected to render his accounts for the period stated in said first instruction within, one month after the expiration of the said period, or at any. subsequent time, that then the jjlaintiffs are entitled to recover double the value of the postages, as certified, by the saitl auditor to have arisen at said post-office for the preceding quarter, that, is to say, from July 1st to September 30th, 1840; which said instruction was given by the court.
    . III. If the jury believe the facts are as set forth in the certificate of the said auditor to the statement of the said John S. Roberts’s account, the said plaintiffs are entitled to recover the sum of $ 2,852.72 for double postages for the period that the said Roberts neglected to render his accounts, as stated in said certificate; which said instruction was refused to be given by the court. ' '
    IV. If the jury believe from the evidence that the said Roberts neglected to render his accounts, as postmaster as aforegaid, as certified by the said auditor as aforesaid, then the said plaintiffs are entitled to recover the sum of $2,018.86,-being double the amount of postages certified by the said auditor to have been received at the same office for the next preceding quarter, that is to say, from the 1st of July to September, 30, 1840; which said instruction was' given by the court.
    V. The defendants in this cause are not entitled to a credit for the amount of the receipt of. $ 1,731.39, executed, by Robert Allen, the money mentioned in said, receipt having been paid without authority, and in violation of the instructions of * the Postmaster-General; which said instruction was refused to be given by the court.
    VI. The said defendants are not entitled to a credit for the said receipt of the said Robert Allen, unless the said receipt, or the duplicate thereof, was sent by the next mail, or within a reasonable time after it was executed, to the Auditor of the Post-Office Department.
    VII. If the said receipt, or the duplicate thereof, was not sent to the Auditor of the Post-Office Department until more than a year after its execution, and until after the statement and adjustment of the accounts of the said Robert Allen, as contractor, at the Post-Office Department, as annexed .to the depositions of Thomas A. Scott and Peter G. Washington, the-defendants are not entitled to a credit or allowance for the said sum of money mentioned in said receipt.

      “Which said two last instructions were each refused to be given by the court; but the court, in answer to the first four instructions asked-for by plaintiffs, charged the jury, “ that the officers of the Post-Officé Department had no right to calculate, as they did, that, if three months produced a given sum, four months and seven days would produce so much ; that it was proper for the jury to charge the'defendants with double the postage received during the quarter ending 30th September, 1840, and this for the quarter ending December 31, 1840; and, as the plaintiffs had furnished no datum for finding a verdict for the time from 1st January, 1841, to 7th February, the jury could find nothing for that period.”
    In answer to the fifth, sixth, and seventh instructions asked for by plaintiffs, the court further chárged the'jury, that if they believed, from the testimony, that the $ 1,731.39 Were paid to Robert Allen before the 1st of July, 1841, and he was authorized by the Department, under instructions to the postmaster, to receive it; and if they believed from the testimony that he received no money of the United States which he was not entitled to over and above the $ 1,731.39, the jury might allow a credit for it to the defendants, although the receipt is not in the form prescribed, and was not reported to the Department in conformity to-the instructions, as it could work, no wrong to the United States.
    And the said plaintiffs; by their counsel, thereupon excepted to the opinion of the court in refusing to give the first, third, fifth; sixth, and seventh instructions, as asked for as aforesaid,. and also excepted to the said charge so given by the said court to the said' jury as aforesaid, and to each and every part and proposition thereof.
    The court then directed the jury to state in their verdict what items and sums they should allow, and what they disallowed, in making up said verdict. 4
    The jury then ' retired from - the bar, and afterwards, on the same day, returned into court a verdict as follows. (The ver- . diet has been given above.)
    The United States sued out-a writ of .error, and brought the case up to this court.
    ■It was argued by Mr. Johnson (Attorney-General), for the United Stated, no counsel appearing for the defendants in error.

      Mr. Johnson Made the following points : —
    I. That the testimony of Allen,- Keys, and Tomlins was iittproperly admitted, for the reasons set forth in the exceptions.

      II. That the instruction given by the judge, - “ that, the Post-Office Department had no right to calculate as they did, that, if three months produced a given sum, four months and seven days would produce so much ; that it was proper for the jury to charge the defendants with double postage received during the quarter ending 30th of September, and this for the quarter ending 31st of December, 1840 : and as the plaintiffs had furnished no return'for finding a verdict for the, time from 1st . January, 1841, to. 7th February, the jüry could find nothing ►for that period,” was erroneous. Because the postage to be. doubled, instead of being limited only to the previous quarter, could have been ascertained within the meaning of the thirty-second section of the act. of 1825, for the whole time claimed ; — 1st. By the mode adopted by the auditor; 2d. By the average of the two previous quarters, or any other two quarters; 3d. By taking the last or any other quarter, and an average of the previous quarter for the number of days necessary.
    It will be contended, that one of these mo.des is authorized by the law ; because, if not, the law would be wholly inoperative in the case of a default for any period short of a whole quarter.
    *111. That the construction of the instructions of the Postmaster-General, made under the authority of the ninth section of the act of 1836, was matter of law, and that the court should1 therefore have granted the fifth, sixth, and seventh instructions prayed by the plaintiffs, and should not, in answer to the said prayers, have charged the' jury that, on the facts stated in the charge hypothetically, they might allow a credit of § 1,731.39.
   Mr. Justice WAYNE

delivered the opinion of the.court.

There cannot be either security or efficiency in the business of the Post-Office Department, unless its receipts ánd disbursements are. made Upon a fixed plan. It must be executed, too, with uniformity and rigor. The duties of its officers must be definitely prescribed, and enforced without relaxation. Nor will there be either safety' or justice for the country, if the forms enjoined for receiving and paying money are permitted to be disregarded by its deputies. The establishment under our system must be made to support itself.

It is extended from day to day into territories, late wildernesses, and from place to place in and beyond them, through prairies, swamps, and marshes, • without any other trail than, those of the first wheels that passed over them. In the settled parts of the country, new routes, changes of routes, increase of speed in conveyances-, and new conveyances, are daily demanded to meet the conveniences and the wants of our almost incalculable internal commerce. Neither the cost of them nor the revenue can be anticipated. Sleepless vigilance in its chief, sleepless devotion to its business, aided by the unremit-, ting industry and intelligence of his assistants in the Department, can only meet their responsibility, as that is estimated by public expectation.,

Such is the conviction of every one who has ever had any connection with the Department, or of any one who has looked into its operations as a point of liberal inquiry. • Its deputies and agents in every branch of its business see and feel the necessity of conformity' to the rules prescribing their separate duties. Postmasters ih the most limited offices, and contractors for the smaller or larger routes, have found that their best security for the preservation of their relations to each other and to the Department is a strict compliance with its instructions. Several of them, acting in this spirit of subordination, have honorably connected themselves with the Department, in the estimation of the public. •

Congress has legislated in such a spirit. From the beginning of its legislation to the act of March, 1825, reducing into one act all that had been previously passed, large duties were imposed upon the Postmaster-General, and there was given to him a large discretion.

If looked at in detail, it is almost remarkable that any one could be found to undertake them with the hope of discharging both acceptably. It has been done, however, and the country enjoys the benefit.

But it became necessary, from the enlargement of the business of the Department, to change its organization, and to pro.vide a more effectual system for the settlement of its accounts. It was done by the act of 1836. By the ninth section of that act, the Postmaster-General is authorized to give instructions to postmasters for accounting and disbursing. The thirty-second section of the act of 1825 is, that if any postmaster shall neglect to render his account for one month after the time, and in the form and manner, prescribed by law, and by the Postmaster-General’s instruction's conformable therewith, he shall forfeit double the value of the postages which' shall have arisen at the same office in any equal portion of time, previous or subsequent thereto• or in case no. account shall have been rendered at the time of the trial of such case, then such sum as the court and jury shall estimate .as equivalent thereto.

In this case, Roberts was' the postmaster; Adams and Reed, were his securities. The Postmaster-General sent to the former instructions how he was to accojmt, and very precise directions for paying contractors. They were the same.as are sent to all postmasters, except as to the contractor to whom money was to be paid. Blank forms of orders and receipts were annexed for every collection. The order in the instructions is, — t! These forms, and no others, must be used in your payments to contractors.” If the contractor called in person, no order was necessary. Two receipts, in that case, were to be kept- in the form'-prescribed,- one of which the postmaster was to keep, and the other is directed to be sent by the next mail to the Auditor for the Post-Office Department. . Roberts was further instructed, that, if any other person calls for the money as the agent of the contractor, he must produce two orders in the prescribed form, signed by the contractor, with blank receipts annexed. After the agent was paid, both receipts were to be filled up and signed. Both were to be left with the postmaster, one of which was to be forthVith sent to the Auditor of the Department. He was told that these claims and orders could not be sold, negotiated, or transferred; that no credit would be allowed him1 for any payment to any other person than the contractor or the person named in his order, <fcc., &c., nor unless the receipt be dated on the day when the money is paid. In his official bond, among others, — and it is the first of his covenants, — he binds himself to execute the duties of his office according to law and the instructions of the Postmaster-General, and faithfully once in three months, or ofterier if required, to render accounts of his receipts and expenditures as postmaster to the PostrOffice Department; that he shall faithfully account, in the manner directed by the Postmaster-General, for all moneys, bills, bonds, notes, receipts, and other vouchers, which he shall receive as agent for the Department.

Thus instructed, forewarned, and bound, we can scarcely account for Mr. Roberts’s disregard of his corresponding obligation otherwise than-that it was wilfully done. He failed to account for the time stated in the record, and he claims in this suit, as an offset against the demand of the United States, payments which he says were made to Allen, the contractor, contrary to his instructions, which the Department had not any knowledge' of for two years after the date of his receipt from Allen, and for which amount Allen gave no credit when ■ his accounts were ■ finally settled at the Department. Such is the proof in, the case. Upon the trial, when the evidence on both sides had. been closed, the counsel for the United States asked that the jury might be instructed, if they believed the evidence in the case, that the defendant was liable for the amount which he said had been paid by him to Allen, and that the United States were entitled to double the amount of the postages which had accrued and been returned as the amount from the 1st of July to the 30th of September, for the next quarter, ending -on the last day of December, for which Roberts did. not make a return; and at that' rate for so much of the next quarter as the defendant remained in office, for which also he had failed to make a return.

In respect to the money said to have been paid to Allen, there is not a fact in the cause which can raise even a remote equity for its allowance. The facts, are all the other way. There was a violation of official duty in making them, if such payments were ever really made for the purpose stated, unfairness in dealing, no credit having been given for the amount when Allen’s account was settled at the Department, and a very wrong apprehension of right by the defendant, in his claiming to be paid to him a sum for which he had subjected the United States to a loss by an inexcusable disregard of his instructions as to the manner alone in which he was permitted to pay money to a contractor. As to the double charge for postage in the account rendered against him, we think the calculation and the time for which it is made was properly done by Mr. Whittlesey, the then Auditor of the Treasury for the Post-Office Department. For the entire quarter unaccounted for, there cannot be a doubt. There ought not to be any for the portioh of the next quarter. His obligation to account for and to pay both. eannot be denied. It is admitted it was his duty to return for an entire quarter, under the instructions of the Postmaster-General. It is equally plain that, under the thirty-second section of the act of 1825, if a postmaster shall neglect to render his account for one month after the time, and in the form and manner, prescribed by law, he becomes liable to a double charge, according to the manner stated in that section. Then the only question is, whether that obligation to make a return is not as binding upon a postmaster who leaves office between the beginning and end of a quarter, as it is upon one who shall leave office at the end of a quarter. Is he not bound to make a return within one month after the expiration of the quarter, though he has been in office only for a part of it ? By the instructions of the Postmaster-General, he ought to have done so within two days after the expiration of his quarter. Now whether the instruction or the law applies to the obligation is not material. Under the law, and without the instruction, the liability is incurred. But if the case is put under the instruction alone, we think the fair interpretation of it is, that it comprehends any time less than a quarter, as well as an entire quarter. This construction may be made from its terms. The postmaster is required to have the balance due by him ready to be paid on demand at the end of each quarter. He is, by the instructions, to make a retuon of what that amount is two’ days after the • expiration of the quarter. . If he is not ready to pay, and neglects to make his return, and says he is not bound to do either because his office terminated before the expiration of a quarter, does he not disregard the instruction as to what he has received ? If his neglect to render his accounts be omitted for one month after the time, and in the form and .manner, prescribed by law, it cannot be said he has not subjected himself to the penalty of a double charge, to be proportioned by what may have been received at his office in any equal time previous or subsequent thereto. Nor can it. be said, because no afccount was rendered in this instance, that there was no datum for such a calculation to be made, or that he was only liable to pay such an amount as a court and jury may find, upon other evidence, to be an equivalent to the penalty which he has incurred.

All of us think differently. The court below having refused to give to the jury the first, fifth, sixth, and seventh instructions which were asked by the’ counsel for the United ’ States, the judgment is reversed, and the cause will be' remanded for further- proceedings, in compliance with the opinion now given.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Illinois, and was argued, by counsel. On consideration whereof, i.t is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed,.and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to award a venire facias de novo, and. for such further proceedings to be had therein as shall be in conformity to the opinion of this court; and as to law and justice shall appertain.