
    Philip Ford v. Abel F. Parker.
    •Section 10 of the act regulating the jurisdiction of justices of the peace, which provides “ that justices shall not have cognizance in actions against justices of the peace, or other officers, for misconduct in office,” includes post- . masters.
    When an action' is Drought against a postmaster for misconduct in office, and . the damages claimed are less than $100, such action may be commenced in the court of common pleas.
    In such action, when the petition charges that a letter containing money was lost by the negligence of the postmaster, and the evidence introduced on the trial tends to prove that the letter containing the money reached the office of the postmaster, the plaintiff may prove, for the purpose of estab lishing the negligence, that the office was kept in an exposed situation, and that the servants and clerks of the postmaster, in a store in which the post-office was kept by the postmaster, had free access to the mail-matter in the office.
    Petition in error, to reverse the judgment of the district court an Hancock county.
    The case appears in the opinion of the court.
    JET. H. Hunter, for plaintiff in error:
    I. The action was against the defendant for misconduct (negligence) in his office as postmaster. Therefore, although the amount claimed by the plaintiff was less than $100, yet the *action was properly pro secuted in the court of common pleas originally. Justices’ act, 51 Ohio L. 181, sec. 3, clause 3.
    II. The court ordered that the plaintiff should become nonsuit, and discharged the jury from further consideration of the case, ■after (as the record shows, see bill of exceptions) it was proved in behalf of the plaintiff, or testimony given in his behalf tending to prove.
    
    1. That the plaintiff had inclosed $75 in bank-notes in a letter -directed to John T. Ford, Findlay, Ohio, and- mailed the same at Pickerington, in Fairfield county, on June 11, 1853.
    2. That the same was received at the post-office in Findlay on the 14th same month.
    3. That the defendant was postmaster at Findlay at that time; .and,
    4. That John T. Ford called for letters at the post-office uniformly once a week, and never received the letter or money in -question; and that the same was lost, being the funds of the plaintiff.
    On this evidence, tending to prove these several propositions, it would have been the duty of the jury, on principles of law, if they believed the facts to be in conformity with the evidence thus given .and thus tending, to have found a verdict for the plaintiff. For surely if they had returned a special verdict, finding the four points above named to be true, the court would have been called upon to render a judgment in favor of the plaintiff If the letter in fact came to the office of the defendant, and was lost, it could only be by the negligence of the defendant or his servants. At all events-a prima facie case would have been made against the defendant, on which, without rebutting evidence, the jury might properly have rendered a verdict against him.
    For these reasons the court erred in not permitting the case to-go to the jury.
    III. The plaintiff having given evidence to the jury tending to prove the receipt of the letter at the office of the defendant, and its-*loss, as above, it was legally proper for the plaintiff to give additional evidence, such as he offered, and such as was overruled by the court, of the exposed and careless manner in which letters-were kept in the office, and of the opportunities of access to the letters in the office by persons other than his properly sworn and qualified assistants, etc., as specified in the bill of exceptions. The loss of the letter being shown, after it reached the defendant’s office, the proof thus offered and rejected was very pertinent to make out that the loss was by negligence — that sort of negligence which did not reasonably protect the letters in the office against being stolen or against being carelessly delivered to a wrong person.
    It was not necessary in order to render this evidence competent that it should have pointed directly to the very means or specific circumstances of the loss ; it was enough for the plaintiff to have shown, as he did, that the letter came to the office of the defendant, and that the way in which the business was done in the office, was not careful and prudent. Such proof being given would entitle the. plaintiff to a verdict, unless the defendant, into whose hands the letter was shown to have come, accounted for its loss, consistently with prudence and care oh his part. In law, the letter being shown to have come into the office of the defendant, and not to have-been delivered to the party to whom it was addressed, the burden was thereby cast upon the defendant to account for the letter.
    
      M. C. Whiteley, for defendant in error:
    I. If the case was properly in the district court, the plaintiff should have given that court an opportunity to correct any error, by moving to set aside the nonsuit, and for a new trial. Swan’s Stat. 660, secs. 297, 299.
    II. The amount claimed being less than one hundred dollars, the .court of common pleas had no jurisdiction. The ease is clearly within the cognizance of a justice of the peace, not being *of the class defined in the 3d clause of section 10 of the justices’ act, Swan’s Stat. 502; 1st, because it is no part of the duties of a postmaster to* receive or transmit money — the mails were established for the transmission of intelligence, not money. Act of Congress, regulating the Post-office Department, approved March 2,1827, sec. 1; Eegulations of P. O. Depart., sec. 61. Hence defendant is not liable for the loss of money out of his office, because he holds a commission. His liability is that of a gratuitous'bailee, and not as an officer. A sheriff is not liable, in Ms official capacity, for money received by him, on judgment, after return of execution; he can not be amerced, nor are his sureties liable. The receipt under such circumstances is not an official duty. The sureties of a deputy-postmaster are certainly not liable for money lost by such deputy in the manner stated in the petition. It was not his duty to receive it, and I regard that as the test of jurisdiction.
    III. The evidence offered by plaintiff was properly excluded, no foundation having been laid for its introduction. 1. No evidence was offered that defendant knew of the arrival of such letter at his office, or that the same was ever there. Without knowledge, there can not be negligence. 2. No evidence that the office at Findlay was kept at a place forbidden by the rules of the post-office department. The rules allow the office to be kept in such place as shown by the bill of exceptions. Eeg. P. O. Depart., sec. 49.
    IY. The evidence in reference to the appointment of clerks, by •defendant, was properly excluded. (Plaintiff proved that the clerks wore all sworn, as shown inferentially by the exceptions.) 1. Because no case is made in the petition to charge defendant for default of his clerks. Dunlap v. Munroe, 7 Cranch, 242, 269; 2 Peters’ Cond. 484; 1 Bell Com. 400, 401, 468, 469. If the clerks were incompetent, defendant’s knowledge should have been proven as a preliminary fact, to make out negligence against him; without such knowledge, he *was only bound to a reasonable superintendence •over their official conduct. 2 Kent Com., sec. 40; 2 Law Reports, 229 ; Story on Bailment, 302.
    Y. Evidence tending to establish that other persons than' sworn deputies had access to the office, was irrelevant, unless the loss could be attributable to such access. That not being claimed, the evidence was properly and for that reason ruled out.
    
      Had all the questions asked by plaintiff been answered affirmatively, and the answers permitted to go to the jury as evidence, a verdict could not have been sustained, for the reason that the main fact — that is, knowledge — was not and could not be proved.
    A judgment should not be' reversed merely for the purpose of clearing a party from costs. A new trial is not asked.
   Kennon, J.

The case was originally brought by Philip Ford, in. the court of common pleas of Hancock, against Parker, to recover seventy-five dollars, the value of bank-notes.

The petition stated that Parker was postmaster at Findlay, in Hancock county; that the plaintiff had inclosed in a letter seventy-five dollars, directed the letter to John Ford, Findlay, Ohio, and mailed the same at Pickerington, Ohio; that the letter was received at the post-office at Findlay, on the 14th of August, 1853; that John Ford called at the post-office soon after the day of the receipt of said letter at the office, and demanded said letter containing said money, but the same was not delivered to him; that the money belonged to the plaintiff, and that, by the negligence and carelessness of the said Parker, the said plaintiff lost the seventy-five dollars. The defendant pleaded that he had no knowledge of the letter, and that it was not lost through his negligence.

On the trial of the case in the district court, the plaintiff offered to prove certain matters, which, being objected to by the defendant, the court sustained the objections and ruled out the testimony; and the plaintiff having rested his case, on motion, of the defendant, it was ordered that the plaintiff become nonsuit, and judgment was-rendered against him for costs.

*A bill of exceptions was taken to the rulings of the court, from which it appears that the testimony of the plaintiff tended to prove, that the letter containing the $75 was duly mailed at the-post-office at Pickerington, in Fairfield county, directed to John Ford, “Findlay, Ohio;” that the letter reached the post-office at Findlay, and was lost; that John Ford, to whom the same was directed, called once a week for mail-matter at the post-office at Findlay, but did not receive the letter; and that the money belonged to the plaintiff at the time of the loss.

The plaintiff asked a witness on the stand in what manner the post-office at Findlay was kept at the time of the loss; which question was objected to by the defendant’s counsel, and the objection sustained by the court. The plaintiff then offered to prove that the post-office, at the time of the loss, was kept in’a variety store, without any separation between the letter-boxes and the goods on the shelves, and that all the clerks and the servants in said store bad free and unobstructed access to' the letters and mail-matter in the office; which being objected to by the defendant’s counsel, the objection was sustained by the court, and the evidence not permitted to go to the jury.

Other questions were also asked, objected to, and the objections, sustained.

The real question in the case was, whether the money was lost through the carelessness and negligence of the post-office. The testimony tended to prove every other fact in the case necessary to-the plaintiff’s right of recovery. Indeed, the answer put in issue no other fact. It was denied by the answer that the letter was lost by the negligence of the defendant, and it was also denied that the defendant had any knowledge of the letter; but all other facts in the petition were admitted to be true by not being denied.

The testimony tended to prove that the letter was lost, and lost, after it reached the-post-office kept by the defendant. Was it lost by his carelessness Or negligence? We do not say that the *mere loss, under such circumstances, was evidence of the negligence of the defendant, sufficient to throw the burden of proof on him that it was not lost by his negligence; but we are of opinion that the plaintiff ought to have been permitted to prove how the office was kept, its exposed position, and the probability arising therefrom that the loss was the consequence of such exposure. Now, if the postmaster had kept his office in the street, or left it open at nights in his absence, and the mail-matter in the office had become l'ost, it might reasonably be inferred that the loss was caused by such exposure. At any rate, it was proper for the jury to know how the office was kept; whether carefully or negligently; whether it was open and free of access to strangers, or otherwise. And the jury should have been permitted to determine the fact, whether the exposed situation of the letter-boxes was, or was not, the cause of the loss of the letter.

We think the district court erred in ruling out the testimony. But it is claimed by defendant, that neither the common pleas nor district court had jurisdiction of the case, because the original claim was within the jurisdiction of a justice of the peace, being only $75. The statute provides that justices of the peace shall not have jurisdiction of actions against justices of the peace, or other officers, for misconduct in office. This was án action against a postmaster for misconduct in office, and we think the language of the statute includes postmasters, and that therefore the action was properly brought in the court of common pleas.

Upon the whole the judgment of the district court is reversed, and the cause remanded to that court for further proceedings.  