
    CONSTITUTIONAL COURT,
    COLUMBIA,
    NOV. 1802.
    Bolan v. Williamson, and Chapman.
    A postmaster is liable for money, contained in a letter deposited in his office, and which was purloined before the letter reached its destination; hut the deputy or assistant of the post master is not responsible to the parties, although the loss was occasioned solely by his default, unless he is an officer of the department recognized by law: and if he be such an officer, then he alone is responsible, and not the postmaster ; so that both cannot be made liable by a joint action, [vide 2 Bay, 551, j3, C.J
    This was an action of trespass on the case, tried before Brewakd, J., in the district court of Richlaud, on the last circuit. The case was this : Williamson was a postmaster at Columbia, and kept the post office there. Chapman was not his deputy, authorized to act as such by any regular appointment, or authority ; ■but was occasionally employed, and allowed by Williamson, to act in the office as an assistant, or rather as a servant, m receiving and delivering out letters, &c.
    The plaintiff, Bolán, enclosed sundry bank bills in a letter, which he sealed up, and directed to his correspondent in Charleston. This letter, with its contents, was placed in the post office in the ¿absence of Williamson, when Chapman was present, who received .the same, A particular description of the bills was taken, and Fept by the plaintiff. It did not appear that the letter was very carefully folded up : yet, from the evidence, it could not well be supposed that the bills would drop out of themselves, but would re. quire some force or art to get them out of the letter. It was marked by Chapman as a double letter. Chapman seemed very inquisitive to know what the letter contained, when he received it. Fhere was no evidence to found a suspicion upon, that the letter had been deprived of its contents any where between the post office in Columbia and that of Charleston. It was fully proved, .that when the letter was taken out ,of the mail in the post office in Charleston, it contained no bills. This was immediately remarkedf> as the letter was marked as a double one, and appeared to be singl®- The plaintiff’s correspondent was sent for, who opened the letter in the office. It had three seals, which had no ap. pearance of having been broken before, and no bills were therein. Some of the bills were, not long afterwards, found under a log in the street, near the plaintiff’s house, in Columbia. It was doubtful in what manner the letter was robbed of its contents. The defendants insisted that the plaintiff had taken out .the bills after the letter was delivered to the office, as he was proved to have called there before the mail departed, which carried the letter ; but it did not appear that he could have done so without detection, It was also insisted for them, that the proof of having placed the bills in the letter, and sealed them up, and the delivery of them in the letter, into the post office, was not sufficient. But this was positively proved by one witness, whose character or credibility was not impeached.
    The counsel for the defendants contended, that upon principles of law the action could not be maintained either against the postmaster general, for a loss of this sort, nor against any of his subordinate officers ; because the post office is an office of intelligence, and not of insurance : and cited Esp. Dig. 624. 1 Lord Raym. 046. 1 Salk. 17. 2 Cowp. 754. And that at any rate Williamson was not liable, because he was absent, and was not answerable for the act or neglect of Chapman. Also, that as Chapman had asked what the letter contained, and plaintiff had not informed him respecting the contents, he was not answerable for the value: for that an insurance office, or a common carrier, would not be answerable for the full value under such circumstances, without a special undertaking, or acceptance. ■
    To these arguments it was answered by the counsel for the plaintiff, with whom Brevard, J., agreed, that the action will lie against the post master general, or any of his deputies, in a case like this ; where it appeared that the loss has been occasioned by the fault of him against whom the action is brought. If he appears to have been in fault, his being an officer of the government will not protect him from an action. In such cases the public have a right to expect from post masters, and persons employed by them, a proper attention, care, and diligence, in safe keeping, and honestly transmitting letters and packages, put into the post offices under their care and direction ; and, therefore, if the loss is sustained in consequence of any want of such necessary care and diligence,- llie party injured has his remedy against the person to whom the loss is imputable. But the court made this distinction, that the ground of the action for redress is the breach of duty on the part of the party sued ; and, therefore, if it should appear that he is not such an officer of the post office department as is intrusted in contemplation of law with the care of the office, or care, custody, and management, of the business thereof, he cannot be made liable for neglect of duty, or for a loss occasioned by a want of proper care in conducting the business of the post office, as is stated to be the ground of this action : and, therefore, charged, that Chapman, who did not appear to be an authorized agent, or legal assistant oí the postmaster, should be acquitted, and that Williamson alone should be found guilty; if the jury should be of opinion, that the loss was occasioned by the misconduct of Chapman, who ought to be regarded quoad hoc, as the servant of Williamson.
    The jury found for the plaintiff generally, against both defendants.
    On a motion for a new trial, it was argued on two grounds for the defendants : 1. That the verdict was contrary to evidence, 2. That it was contrary to law. On the last ground, it was again insisted, that no action could be maintained against an officer of the post office department, as such : and that if such action would lie, it could not he maintained against one as such, and against his private servant, in a joint action, if Chapman was to be considered as his private agent in the case ; and it he was to be regarded as his legal assistant, recognized in law, then that the action would not lie against Williamson, for the misconduct of such assistant, as every officer should be liable for his own fault. Therefore Williamson was not answerable for the default of his subordinate officer iu the same office, any more than the post master general is answerable for the fault of any of his deputies, or postmasters.
    On the other side, it was argued, that although in England the postmaster general is not answerable for the misconduct of his deputies ; yet under the acts of congress, establishing the post office-in the United States, the postmaster general here is liable for the misconduct of his subordinate officers in a civil view, in the .management of any business belonging to the office : because the postmaster general of the United States derives an emolument from the business of his department, which the post master general in England does not, who has a stated salary ; for all the emoluments, or moneys arising from the post office, go into the hands of the receiver general, and not into those of the post master general. Stat. 9, Ann, c. 10. Cowp. 754t But in England the post imsj1 ter general is responsible for losses occasioned by his own fault, 1 Ld.- Raym. 649. Our acts of congress allow the officers of the post office certain emoluments on the business by them respectively transacted. - By the act of 1799, 4 vol. Laws- of U. S. Brown’s' Ed. 595, the post master general has the direction of the revenue raised by the post office. He is authorized to appoint his deputies. Ib. p. 518. They are allowed commissions on postage, and oil collections. This act also provides, that every person employed-in the conveyance, and with the custody of the mails, shall be lia. ble to all the penalties to which regular officers are liable, whether they shall take the oath of office or not. The 5th section of the same law authorizes the employment of servants in the post offices. The 28th section subjects such persons to suits in the State courts. This act also subjects to a penalty such as embezzle any packet, or thing of value, sent by mail.
    Masters are accountable for the acts of their servants, cimliier, ó tí the principles of common law. Bac. Abr. 569. Master and Servant. K. An officer of the customs was made to answer for the misconduct of his deputy, who concealed part of the duties. So for the conduct of the servants of common carriers, carrying for hire, the master is answerable. Bull. N. P. 70. Where a servant acts by Order of his' master, both are liable. Bac. Abr. supra. Esp. Dig. 366. So where the servant by not using due care occasions an injury. Lord Holt’s opinion in the ease of Lane v. Cotton, and Sir Thomas' Frankland, 1 Ld. Raym. 646. 1 Com. Rep. 100. 1 Salk. 17, 143. 5 Mod. 472. Holt, 582. Garth. 487. 11 Mod. 12. Harg. Co. Lift. 89, b. note, &c., is strong to shew, that the post master-general is liable upon the same reason that a common carrier is ; although Lord Mansfield, in the cáse of Whitfield v. Ld. Le Despenser, et'ah opposes this doctrine, and declares that no resemblance exists between them. Cowp. 764.
   The court,

after considering the case, were of opinion, that the post master is liable for a loss occasioned by negligence in his office ; but that his deputy, or assistant, is not responsible to the party injured, although the loss is occasioned solely by his default, unless he is an officer of the department recognized by Jaw : and if he is such an officer, he alone is responsible, and not the postmaster. In either view, therefore, the verdict, being against both defendants, is erroneous, and must be set aside.

New trial granted.  