# Dox v. The Postmaster-General of the United States

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United States Supreme Court
26 U.S. 318
Dox v. The Postmaster-General of the United States
THIS case was brought up from the Circuit Court of the United States, for the Southern District of New-York, in the Second Circuit; upon a certificate of the Judges of that Court, that they disagreed on certain points, set forth in the certificate.
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 six thousand dollars, executed on the 1st of 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 the first day of January 1816, and the first day of 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 six thousand dollars 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 3041 dollars 35 cents; 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 the first day of July 1819; and that after the first day of July 1819, and before the first day of July 1821, to wit, on the first day of January, A. D. 1820, he became insolvent, and still continues to be insolvent. This plea concluded with a verification.
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 the first day of July 1816, and continued so for three years, and until the first day of July, A. D. 1819; and that after the first day of July 1819, and before the first day of July 1821, viz: on the first day of 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 the first day of January 1820, or at any other time after the first day of 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 favour of said sureties; the breaches assigned, having been found to be true, as above stated, the damages on them were assessed at 6000 dollars.
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 favour, notwithstanding the verdict against him, on said fourth, fifth, and sixth issues with the sureties, and judgment given for the said plaintiff.
The case was argued, on the part of the plaintiffs in error, by Mr. Samuel A. Foot, of New-York, and by Mr. Wirt, Attorney-General of the United States, for the Postmaster-General.
Mr. Foot.--
This suit was instituted to recover a balance due to the United States, by Gerrit L. Dox, as Postmaster, at Albany, in New-York. Gerrit L. Dox was appointed Postmster, in January 1816, and was removed from office in July 1816. The breaches assigned were-1. Not rendering accounts as Postmaster.
2. Not paying over moneys he ought to have paid.
The issues upon all the pleas put in by Dox alone, and by him and his sureties together, were found for the plaintiff below; the only questions in the case, arise on the fourth, fifth, and sixth pleas, put in by the sureties only. The District Court held these pleas to be immaterial, and gave judgment for the Postmaster-General.
It is admitted, that since this suit was commenced, cases have been decided in this Court, which bear upon the question, whether the neglect of the officers of the government to proceed against a debtor to the public, will discharge the sureties. 9 Wheat. 720. The United States vs. Kirkpatrick. 11 Ibid. 184. The United States vs. Vanzant. 12 Wheat. 136. But the principles settled in these cases, are not entirely applicable to this. The law of the United States relative to the post-office establishment, makes it the duty of the Postmaster-General to file, every six months, in the Treasury Department, a transcript of the balances due from the Postmasters, and to sue for the same; and if he omits so to do, the balances are to be charged to the Postmaster-General, and to be collected from him. Thus the Postmaster-General becomes himself a debtor to the government, for the amount of the delinquency of every Postmaster; unless he has taken measures to collect the same; and he may use the name of the government for the purpose. This suit is therefore for the use of the Postmaster-General, as he had neglected to proceed against Gerrit L. Dox, for six years; and the sureties are entitled, against him, to the benefit of his laches. This case is different from those referred to; and the plaintiff, who had a verdict in his favour on the fourth, fifth, and sixth counts, is entitled to the presumptions, that the Postmaster-General was charged with the balances due by Gerrit L. Dox, and that he has paid the same to the United States. In the case of the Postmaster-General vs. Early, 12 Wheat. 136, the Court is understood to have said, that if this suit had been brought for the Postmaster-General only, the jurisdiction could not have been sustained. Here, the Postmaster-General is the only person beneficially interested. If the United States were the parties really interested, a special averment should have been made; and the general formal averment in the declaration, is not sufficient. The Postmaster-General is the guarantee of the debt to the United States; he could not be a witness in the case, and the suit should have been stated to be for his use; and then the jurisdiction would have been at an end.
2. Are the issues found for the plaintiff in error, material? If they are, the district Judge erred in giving judgment; if they are not, there should be a repleader. When the finding upon the issue does not determine the right, the Court ought to award a repleader; unless it appears from the whole record, that by no manner of pleading, the matter in issue could have availed; 1 Burr, 381. The fourth, fifth, and sixth pleas, aver the solvency of the principal of the bond, for a considerable time, during which suit was not brought; and by these laches the sureties have become involved. It is not necessary to show, that the sureties applied to know what was the balance due to the United States. At Common Law, the question is, whether the case is such that the creditor might have been injured or have lost by it. The case of Law vs. The East India Company, has some application to the principles claimed in this case, 4 Vez. jun. 824.
The issues in the fourth, fifth, and sixth pleas, were material, as the solvency of Gerrit L. Dox was of the highest importance to the sureties.
Mr. Wirt, Attorney General, having, upon the authority of a private statement of the facts, made to him by the counsel of the plaintiffs in error, explained why the suit for a delinquency in 1816, was not instituted until 1823; thus vindicating the Postmaster-General from the imputation of laches; proceeded:
The case is a plain one, in favour of the Postmaster-General. All the material issues are found for him.--
1. That it was the bond of the for him.--
2. That the principal in the bond did not render an account.
3. That he did not pay over moneys received by him.
The District Court considered the fourth, fifth, and sixth pleas, immaterial, and gave judgment for the plaintiffs, non obstante veredicto. If these pleas were really immaterial, the judgment so given was correct. 2 Archibold's Practice, 229. 1 Chitty's Pleadings, 634.
If the Postmaster-General did not open an account with Gerrit L. Dox, the Postmaster, at Albany, or bring a suit according to law; would the sureties be absolved? This question has been already settled in this Court. The provisions of the law are directory to the Postmaster-General; but they create no contract with the deputy Postmaster, or his securities, that he shall open an account, and institute a suit, in case of delinquency. The case of the United States vs. Vanzant, 11 Wheat. 184, was one of great hardship; but the securities were held answerable upon the principles stated.
The finding of the jury on the second plea, establishes the no account was rendered by the Postmaster; and, therefore, the plaintiff below, had no materials to make out an account. The provisions relative to opening of accounts, have been held to be for the use of the United States, and for the direction of their officers, and with which others have nothing to do. Whether these provisions will be enforced, depends, and properly, on the discretion of the executive.
The question of jurisdiction should have been brought forward in the form of a plea. There is no averment, that the Postmaster-General was asserting this claim for himself.
Mr. Chief Justice MARSHALL delivered the opinion of the Court.--

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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