§ 95. A postmaster is not bound to keep the money received for postage distinct from his own, nor to deposit it specifically in the name of the United States. Trafton v. United States, 3 Story, 646.

$96. The provision of the postoffice law, that a postmaster shall reside at the place where the office is kept, is directory to the postmaster-general; imperative on him, to be sure; but until he acts, although the postmaster may have removed from the neighborhood of the postoffice, he and his sureties are responsible to the department and to individuals injured by any neglect of duty in the office. United States v. Pearce, 2 McL., 14.

$97. Where A., being postmaster, gave an official bond to the United States, and subsequently employed B. as his assistant, and the receipts from the postoffice were deposited in their joint names, and an action was brought against A. on his bond, and judgment recovered, but he having subsequently become bankrupt, upon action brought against A. and B., held, that the deposit in the joint names of A. and B. did not make them jointly responsible; that there was no privity of contract between B. and the United States, and that even if there were, the former judgment against A. was a bar to the second action. Trafton v. United States, 3 Story, 646.

§ 98. Appointment.- When a postmaster has been nominated to an office by the president, confirmed by the senate, and his commission has been signed by the president, and the seal of the United States affixed thereto, his appointment is complete. The transmission of the commission is not essential to his investiture of the office. Nor would the subsequent death of the president have any effect on that completed act. United States v. Le Baron, 19 How.,73. § 99. Amount of diligence required.— A deputy-postmaster is only called upon to exercise, with respect to letters and packages left at his office to be mailed, the same degree of care and diligence which a prudent man would have taken of his own property. Dunlop v. Munroe,* 1 Cr. C. C., 536.

$100. The policy of the government of the United States, in respect to the business of the postoffice department, requires that principals and sureties upon the bonds of postmasters shall be held liable at all events. Neither robbery, nor theft, nor misadventure of any kind, except, perhaps, when caused by the action of the government itself, will excuse a postmaster or his sureties. United States v. Morrison,* Chase's Dec., 521.

§ 101. The only exceptions to the above rule are those provided for by acts of congress. The act of 1864 excuses loyal postmasters from losses occasioned by the Confederate forces or rebel guerillas. That of 1865 extends the same relief to cases where the losses are occasioned by armed forces other than those of the so-called Confederate States. Ibid.

$102. Discontinuance of office - Government money retained for damages.— Upon the discontinuance of a postoffice by the postmaster-general the incumbent ceases to be postmaster; and never having been entitled to any compensation except commissions and receipts from boxes, and those sources of compensation being extinguished upon the discontinuance of the office, he loses nothing to which he is entitled. Ware v. United States,* 4 Wall., 617. § 103. In suit by the government on the official bond of a deputy-postmaster, by reason of the refusal of the latter to pay over certain moneys received for postages, as exhibited in his quarterly accounts for the last two quarters preceding the discontinuance of the office, the rejoinder of the defendant that the commissions of the office, if it had not been unlawfully discontinued, would have been sufficient to justify an allowance to the incumbent of a sum greater than the amount retained, and that the commissions were wrongfully withheld from him, amounts to a claim for damages, and not for commissions. To such claim there are two sufficient answers: 1. The compensation of a deputy-postmaster depends upon postage commissions and rental of boxes, and those sources having entirely failed, the department possessed no authority whatever to make any other allowances. 2. The claim being for damages, the court could not sustain it unless the same had been presented to the auditor, and by him disallowed. Ibid.

§ 104. Abandonment of office - Failure to make return.- Under the act of March 3, 1825, a postmaster, who leaves office between the beginning and end of a quarter, is liable to a double charge for postage, if he fails to make a return and render his account within one month after the expiration of the quarter. United States v. Roberts,* 9 How., 501.

§ 105. Default-No demand necessary to constitute.- No preliminary demand of payment is necessary to put in default a postmaster omitting to pay over the public funds in his hands at the expiration of each successive quarter of his service; and no proof of such demands having been made is requisite to sustain an action against him. Demand of Payment, etc.,* 4 Op. Att'y Gen'l, 304.

§ 106. Deputy's bond-Acceptance and approval of.― A bond given by a deputy-postmaster speaks only from the time when it reaches the postmaster-general and is accepted by him; it cannot relate back to any earlier date than the time of its acceptance, because it is only after its acceptance that there can be any such holding of the office as the bond was meant to apply

to. Thus where a bond recited: "Whereas the said B. is deputy-postmaster at Mobile," etc., and he was in fact postmaster at the date of the bond, but under a previous appointment, the bond must be held to be security for his duties under a new appointment confirmed after its date, but before its delivery to the postmaster-general for approval, and sureties on this bond are liable for defaults of the principal under the new appointment, but not under the old. United States v. Le Baron, 19 How., 73.

§ 107. A bond given by a postmaster, with sureties, for the performance of his official duties, does not constitute a binding contract until approved and accepted by the postmastergeneral; but the reception and detention of an official bond by the postmaster-general for a considerable time without objection is sufficient evidence of its acceptance; and the return of the bond to the principal obligor, for the purpose of obtaining an additional surety, affords no proof that it has not been accepted, nor does it amount either to a surrender or cancellation of it. Postmaster-General v. Norvell, Gilp., 106.

§ 108.

not vitiated by extension.-A postmaster's official bond, given to secure the faithful performance of official duties and the payment of money of the United States which might come to his hands, is not vitiated as security for the payment of the money stipulated because also extended to the official conduct of the obligor, although such part of said bond may be void as not being authorized by law. Postmaster-General v. Early, 12 Wheat., 136. § 109. Defenses to suit on.- In suit brought against a postmaster or his sureties on his official bond, to recover money held by him for the government, it is no defense that the money was paid to a mail contractor, a creditor of the government, either voluntarily or by command of the postoffice department of the so-called Confederate States, the defendant having been postmaster in one of the rebellious states and the payment having been made after the outbreak of the rebellion. United States v. Keehler, 9 Wall., 83.

§ 110. A postmaster who, disregarding the instructions of the department, makes a payment to a mail contractor without taking the proper receipts and notifying the department, cannot, the contractor having given no credit for the amount of such payment when his accounts with the government were finally settled, be allowed credit for such payment in an action on his official bond. United States v. Roberts,* 9 How., 501.

§ 111. Actions against - Evidence.- Deputy-postmasters are civilly liable for the acts of their servants and clerks, but the neglect of the servant or clerk cannot be given in evidence upon a count charging the loss to have been incurred by the neglect of the deputy-postmaster himself. Dunlop v. Monroe,* 1 Cr. C. C., 536.

§ 112. The instructions of the postmaster-general to the deputy-postmasters may be given in evidence in an action on the case against a deputy-postmaster for negligence. Ibid.

§ 113. Where the issue is taken upon the neglect of the postmaster himself, it is not competent to give in evidence the negligence of his assistant. Dunlop v. Munroe,* 7 Cr., 242. § 114. accounts- Quarterly returns.- Under sections 8 and 15 of the act of July 2, 1836 (5 Stat. at Large, 81, 82), transcripts of the quarterly returns of a postmaster, with the corrections of the auditor of the postoffice department thereon, and of the auditor's accounts based on them, are admissible in evidence in actions upon such postmaster's official bond, though items of credit in dispute do not appear in such transcript. United States v. Hodge, 13 How., 478.

§ 115. The provisions of the act of March 3, 1825, substitute a certified statement of the settled account, as evidence in suits against deputy-postmasters, in lieu of the certified copy of the account current, required by the provisions of the act of April 30, 1810. PostmasterGeneral v. Rice, Gilp., 554.

§ 116.

civil action for money stolen.- An averment that a letter, containing banknotes, was fraudulently and improperly secreted, withheld and taken in the postoffice by the defendant, the deputy-postmaster, is not a charge of felony, so as to deprive the plaintiff of his civil remedy. Dunlop v. Munroe,* 1 Cr. C. C., 536. § 117. - jurisdiction.—The circuit courts of the United States have jurisdiction under the act of March 3, 1815, of suits brought by the postmaster-general, on the official bonds of postmasters, for debts and balances due the general postoffice. Postmaster-General v. Early, 12 Wheat., 136.

§ 118. Limitations to actions against deputy-postmasters and their sureties. The law which limits suits by the postmaster-general against sureties to two years after a default of the principal does not operate in cases of balances unpaid at the end of a quarter, which are subsequently liquidated by the receipts of a succeeding one. Postmaster-General v. Norvell, Gilp., 106.

§ 119. The official bonds taken by the postmaster-general from his deputies are valid, and the omission to bring suits on such bonds at the periods prescribed by law, for the defaults of the principal, does not discharge the sureties although injury has resulted to them by reason of such omission. Postmaster-General v. Reeder, 4 Wash., 678.

§ 120. Suit must be brought against the sureties of a postmaster within two years from the time the postmaster made default or the statute bars the action against them; and in computing the time, the defalcation is to be counted from the time the law requires the moneys to be paid over, viz., at the end of every three months, and not from the time the postmaster shall fail to pay the draft of the department. Postmaster-General v. Fennell, 1 McL., 217. $121. The provisions of the act of March 3, 1825, releasing the sureties of a deputy-postmaster, where suit is not brought within two years after a default, do not apply to a default which occurred before the passing of the act. Postmaster-General v. Rice, Gilp., 554.

§ 122. General liabilities of sureties. The bond of a deputy-postmaster being conditioned that he "shall well and truly execute the duties of the said office according to law and the instructions of the postmaster-general," his sureties are liable for his non-compliance with subsequent as well as past laws or orders till his official term expires, if the orders be such as are justified by law. Boody v. United States, 1 Woodb. & M., 150.

§ 123. Subsequently to the giving of a postmaster's bond, with sureties, conditioned that he, the postmaster, should pay over all moneys which should come to his hands for postages to the postmaster-general, acts of congress were passed increasing the rates of postage, and, consequently, the responsibility of the sureties. Held, that as the undertaking of the sureties was general, that all postages should be paid over, and referred to no particular act explaining or limiting the rate of postage, and was not taken under any law defining its extent and operation, the sureties were liable for moneys received by reason of the increased rates of postage; but that it would have been otherwise had the acts of congress enlarged the powers of the postmaster or superadded any new duties whereby he was made the receiver of other moneys than for postages. Postmaster-General v. Munger, 2 Paine, 189.

§ 124. The postmaster-general can employ a deputy-postmaster as agent, to keep money collected by himself or other deputies near, and the sureties of such deputy will be liable on his official bond to the extent of its penalty for any neglect by the deputy as such agent. Boody v. United States, 1 Woodb. & M., 150.

§ 125. The order of the postmaster-general to the postmaster, not to remit the money he may receive, but to retain it to answer his drafts, does not discharge the sureties. PostmasterGeneral v. Reeder, 4 Wash., 678.

§ 126.

for stamps furnished principal without prepayment.- The postmaster-general is authorized, by section 3 of the act of congress of March 3, 1851 (9 Stat. at L., 589), to furnish to deputy-postmasters postage stamps or stamped envelopes without exacting payment therefor in advance, and the sureties on a postmaster's bond are responsible for a failure by the postmaster to account for stamps furnished him by the postmaster-general without prepayment. United States v. Mason, 2 Bond, 183.

§ 127. Upon the theory that the statute did not authorize in terms the delivery of postage stamps to a deputy postmaster without prepayment, yet as the bond stipulating for the liability of the sureties is founded upon a good consideration, is executed in good faith, and is not prohibited by law, it is a valid bond, and the sureties are liable for stamps received by their principal as upon a valid common-law contract. Ibid.

§ 128.- not discharged by new bond taken. The liability of the sureties on a postmaster's official bond continues as long as the principal continues in office under the appointment or commission which placed him in office at the time the bond was given and until its legal termination. Hence the giving of a new official bond by the postmaster, at the request of the postmaster-general, does not discharge the sureties under the old bond for the past or subsequent defaults of the principal. Postmaster-General v. Reeder, 4 Wash., 678. § 129.

entitled to benefit of bankrupt law. Although a defaulting postmaster is excluded from the benefit of the bankrupt law, his surety is not, and the latter, being discharged, may plead it in bar of a suit by the government on the postmaster's official bond. United States v. Davis, 3 McL., 483.

§ 130. Sureties not relieved by delay of postmaster-general in bringing suit.— Although the neglect of the postmaster-general to bring suit against a defaulting postmaster within six months after the default has been committed renders him personally liable for the amount due from the defaulter, under the act of April 30, 1810 (2 Stat. at Large, 602), such neglect in no manner affects the liability of the postmaster and his sureties. Dox v. Postmaster-General, 1 Pet., 318.

§ 131. Under the postoffice act of 1810, which provides that each postmaster shall account at the end of every three months, and pay over to the postmaster-general the balance due him, and that, in case of failure so to do, if the postmaster-general shall not bring suit for such balance within six months from the end of the three months, the balance due from the delinquent shall be charged to, and recoverable from, the postmaster-general, held, that the neglect of the postmaster-general to sue for balances due by postmasters within the time prescribed by law, although he thereby is rendered personally chargeable with such balances, is

not a discharge of the postmasters or their sureties upon their official bonds; also that an order from the post office department, directing a postmaster to retain the balances due until drawn for by the general postoffice, does not operate as such discharge. Locke v. United States, 3 Mason, 446.

§ 132. Rights and liabilities of sureties on different bonds.- A. gave a bond as surety for a postmater, conditioned for the faithful discharge of his duties, and that he should pay over all moneys which should come to his hands for postages to the postmaster-general. Afterwards, the postmaster continuing in office, another bond with different sureties was taken with the same condition. All liabilities on the part of the postmaster incurred before the giving of the second bond having been canceled by payments, it was held, in an action against A., as surety on the first bond, for postages not paid over, that his liability did not cease upon the giving of the second bond for defaults thereafter committed; that the second bond was not a substitute for, or extinguishment of, the first, but additional security; and that equity would consider the two sets of sureties as jointly responsible for defaults occurring after the giving of the second bond. Postmaster-General v. Munger, 2 Paine, 189.

§ 133. A., having been surety on the official bond of B., a postmaster, was released, by the acceptance on the part of the government of a new bond with other sureties, from all liability for defaults of B. committed subsequent to the giving of the new bond. B. was subsequently removed, and, being at the time indebted to the government, suit was brought against A. as surety. Held, that no proof being offered by the government that B. did not have in his possession, at the time the new bond was given, all the moneys of the government with which he was chargeable, the presumption was that B. was not a defaulter, but that he then had in his hands, in accordance with his duty, whatever sum he was chargeable with in favor of the government, and hence, not A., but the sureties on the new bond, were liable for B.'s default. Alvord v. United States, 13 Blatch., 279.

§ 134. Notice to government officials of defalcation does not relieve sureties.- Where defalcation is made by a postmaster, and suit is brought against the sureties on his official bond, it is no defense that the government through its agent, the auditor of the treasury of the postoffice department, had full notice of the defalcation and embezzlement of government funds, and yet neglectfully permitted the said postmaster to retain his office, whereby he was enabled to commit all the default and embezzlement that was not barred by the statute of limitations. Jones v. United States, 18 Wall., 662.

§ 135. Application of payments as affecting sureties. In an account current between the United States and a postmaster exhibiting an unbroken series of charges against, and credits to, the postmaster from the date of the first item to the close of the account, when the final balance was struck, each payment made by the postmaster in the order of time in which it was made is to be applied to the extinguishment of the preceding quarterly balance against him, and the residue, if any, to be credited to the account of receipts for the quarter within which the payment was made. Thus, where a payment is made, sufficient in amount to satisfy a prior quarterly balance against the postmaster, the default will be extinguished, and by the operation of this principle the defaults will all be thrown on the last quarter of the account. Hence, unless the default appearing in the last quarter of the account is of two years' standing, the sureties cannot claim the protection of the act of March 3, 1825, section 3, providing that suit must be brought against the postmaster and his sureties within two years after default shall be made, or else such sureties shall not be liable. United States v. Kershner, 1 Bond, 432.

§ 136. The lapse of five years between the removal of a postmaster and demand made upon him for balances due from him to the government affords no presumption of the payment of his official bond. Dox v. Postmaster-General, 1 Pet., 318.

§ 137. A payment made by a deputy-postmaster to the postoffice department, without directions as to its application, is to be applied to the oldest debt; and it must be proved that the payment came from receipts accruing under a second bond, if that is relied on against the propriety of applying it to any balance whatever still due on a prior bond. Boody v. United States, 1 Woodb. & M., 150.

§ 138. Where a balance became due from a deputy-postmaster July 20, after the expiration of the previous quarter, and a payment was made as large as all of it but $8.34 on the 12th day of the same month, and a second bond was not taken until the 16th of the same month, the presumption is that the payment was to be applied on the balance due under the first bond, and that the money did not come from accruing receipts under the second appointment, being much larger than their ordinary amount. Ibid.

§ 139. A postmaster having given different bonds with different sureties, his payments. must be so appropriated as to give each bond credits for the moneys respectively due, collected and paid under it. The government cannot apply moneys collected by the postmaster after and under the second bond, and on the responsibility of the sureties in the second bond,

to the payment of the balance due on moneys collected, and which ought to have been paid by and under the first bond. Postmaster-General v. Norvell, Gilp., 106.

§ 140. Where a running account is kept at the postoffice department between the United States and a postmaster, in which all postages are charged to him, and credit is given for all payments made, this amounts to an election by the creditor to apply the payments, as they are successively made, to the extinguishment of preceding balances; and if, by such application, all defaults occurring more than two years previous to the institution of suit on the postmaster's bond are extinguished, the act of congress of 1825 (4 Stat. at Large, 102), which exonerates the sureties if balances are not sued for within two years after they occur, does not apply. Jones v. United States, 7 How., 681.

IV. CONTRACTS FOR CARRYING THE MAIL.

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§ 141. Proposals for carrying the mails Notice, sufficiency of. A notice published by the postoffice department called for proposals for carrying the mails on route No. 43, 132, from Portland, Oregon, to Sitka, Alaska. The distance was stated to be fourteen hundred miles; the duty was required to be performed each way once in each month, in safe and suitable steamboats, by way of Port Townsend and San Juan; the time of departure and arrival at each terminus was specified, and ten days was allowed for the passage. It was then added, "Proposals invited to begin at Port Townsend (W. T.), five hundred miles less." Held, that this was sufficient notice, under the act of congress of June 8, 1872 (17 Stat., 313, sec. 243), that proposals were desired for carrying the mail from Port Townsend to Sitka. Garfielde v. United States,* 3 Otto, 242.

§ 142.

acceptance of, what amounts to

Effect of. A proposal to carry mails at a certain price, made in response to a legal public notice inviting such proposals, and accepted by the postmaster-general, constitutes a valid contract of the same force and effect as a formal written contract subscribed by the parties. Ibid.

§ 143. The acceptance in writing by the postmaster-general of a written proposal to carry the mails, made in response to a legal and sufficient notice published by the postoffice department, calling for proposals to carry the mails over a certain route, is as obligatory as a formal contract. Ibid.

§ 144.

withdrawal of.— A person who files a written proposal for carrying the mails may withdraw it at any time before it is accepted by the department, as, until accepted, it is but a mere offer to make a contract coming from one party, and if, after the withdrawal, the other party signifies his willingness to accept, that is but another proposal coming from the opposite side. A withdrawal, however, must be notified. The mere intention to withdraw is not a withdrawal. Proposals for Carrying the Mails,* 9 Op. Att'y Gen❜l, 174.

§ 145. A rule of the department, that bids put in shall not be withdrawn after a certain time, whether accepted or not, is of no effect and cannot be enforced without authority of law. Ibid.

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§ 146. need not be subscribed. A bid for carrying the mails may be signed by the bidder in such a manner as to bind him by a valid contract, upon its acceptance, without his name appearing at the bottom of the instrument. Ibid.

§ 147. It is a sufficient signing if the name is written by the proper hand, either in the body of the instrument or on the margin, or anywhere else, so that its authenticity and genuineness are sufficiently attested. Ibid.

§ 148. — combination to prevent bidding, what constitutes. Upon the receipt of bids for carrying the mails the contract was given to parties who afterwards transferred it to other parties, who were competitors at the original bidding. The latter, being dissatisfied with the contract, asked that the service should be reduced, or that the contract should be abrogated and the route advertised and re-let, basing their claim on the twenty-eighth section of the act of July 2, 1836, which prohibits the postmaster-general from entering into any contract with persons who have combined to prevent bidding for mail contracts, and also provides for the dismissal of any mail contractor so offending. Held, that the section did not apply, as the facts did not show any combination to prevent bidding for the contract. Application of Witherspoon & Saffell,* 9 Op. Att'y Gen'l, 331. § 149. informal proposals cannot be accepted.—It is not lawful, after once advertising and failing to secure a contractor, to contract with a party who was not a bidder, on a proposition informally submitted for the contract term. Contracts for Carrying the Mail,* 13 Op. Att'y Gen'l, 473. § 150. drafts, etc., deposited by bidders - When to be returned. The draft or check deposited by bidders for the transportation of mails, as required by the fourth section of the act of March 3, 1871 (16 Stat., 572), is merely as security for the required bond, and has