
    
      Coleman & Lipscomb vs. Marshall Frazier.
    
    A civil action will lie, in the Courts of this State, against a post master, for negligence, whereby a letter, containing money, was stolen from his office.
    Where the proof shews that the loss arose from the negligence of the post master’s assistant, the declaration is sufficient if it charges either that the loss was sustained through the negligence, carelessness and default of the post master, his servants, agents, or deputies; or, that it occurred from the defendant’s not properly superintending his clerks or agents.
    An assistant post master is no officer of the government; he is the mere servant, or agent of the post master, and for his negligence the post master is liable in a civil action, just as if it were his own negligence.
    Where a post master is sued for the negligence of his assistant, he, the assistant, is an incompetent witness for the defendant.
    The defendant, a post master, was sued for the negligence of his assistant, in permitting money to be stolen from the office. Held, that the admission, that he had stolen the money of a deceased person, made in the presence of the defendant, was admissible as evidence of the fact, as against the defendant.
    A declaration made by a deceased witness, in the presence of a party who hears it, receives it, and acts upon it as true, is, it seems, admissible as evidence against him.
    The admission, against his interest, of a deceased witness, of an act subjecting him to infamy and heavy penal consequences, is, it seems, admissible, as evidence of tj(e fact, as between third persons.
    
      Before O’Neall, J., at Edgefield, Fall Term, 1850.
    This was an action on the case to recover from the defendant, post master at Edgefield village, a sum of money contained in a letter mailed by the plaintiffs, on the 12th June, 1848, at New Market, Abbeville, and addressed to Watson, Johnson & Co., Charleston. This letter, in its transit, had to pass through the post office at Edgefield, and in the usual course of the mail, would, have remained in that office from Wednesday till Friday. While it was there it was stolen by one Charles A. Meigs, and the contents applied to his own use. For this loss the plaintiffs sued. The declaration contained two counts : the 1st. charged that the loss was sustained “ through the negligence, carelessness and default of the post master, his servants, agents, or deputies the 2d, that the loss occurred from the defendant’s not properly superintending his clerks, or agents.
    The defendant, it appeared, did not manage the office entirely himself; when at home he usually attended to the opening of the mails, leaving the other duties to his assistant, William Ward, who generally had charge of the office ; and who, it was proved, was a careful, steady young man, of good character in every respect. Meigs was a store keeper in Edgefield village ; it was shewn that he also was a man of good character ; /and at the time he stole the money was dying with the consumption. His store and the post office were in the same building, but in different rooms. There was a door, on which there was a lock, opening from one room into the other. The post office was separated from the rest of the room in which it stood, by being enclosed with slats. In this there was a door, on which there was a lock; and another door, which was usually barred, opened into an alley. It was fully proved that Meigs had access to the post office, and that he received and delivered letters. There was no proof, however, that the defendant knew this, though it seemed to be pretty well known in the village. The declarations of Meigs, who was dead, made in the presence of the defendant, that he had stolen the money, were offered by the plaintiffs, and though objected to, received in evidence.
    When the plaintiffs closed, the defendant moved for a non-suit, on the grounds taken for a non-suit in the Court of Appeals,— which motion his Honor overruled.
    In the defence, it was proved that Meigs said he had a key which fitted the lock on the outside door, and he thus entered at night and stole the money. Ward was offered as a witness for the defendant, and was objected to, on the ground that the defendant, if liable, would be made liable fox the neglect of the witness, who would be answerable to him. The objection was sustained and the witness excluded.
    His Honor, the presiding Judge, charged the jury that the assistant post master was not a public officer ; he was the post master’s assistant, responsible to him; he took an oath to discharge the duties properly: if he gave bond, it was to the post master, and for his indemnity; that for his negligence, the post master was liable; and that the case turned upon the question, whether Meigs possessed himself of the letter stolen, by the access to the letters in the post office, which the assistant improperly permitted. If so, his Honor thought the defendant liable. If, however, he obtained it by entering the post office at night by means of a false key, then he thought the defendant was not liable.
    The jury found for the plaintiifs.
    The defendant appealed, and now moved this Court for a non-suit, on the following grounds :
    1. Because the State Courts of South Carolina have no jurisdiction of the cause of action set forth in the declaration of the plaintiifs.
    2. Because the plaintiifs’s declaration does not state or allege a cause of action in proper form to authorize the admission of testimony, to sustain a verdict against the defendant, on the ground of negligence or misconduct of the assistant post master, Ward.
    And failing in that motion, then he moved for a new trial, on the grounds:
    1. Because his Honor erred in deciding that Ward, the assistant post master, was an incompetent witness for the defendant.
    2. Because his Honor erred in ruling and deciding, upon objection being made by defendant, that the declarations of Charles A. Meigs were competent evidence for the plaintiffs against the defendant in this action.
    3. Because his Honor erred in charging the jury that the defendant was responsible for the negligence or misconduct of his assistant, Ward, in the same manner and to the same extent as other public officers, sheriffs and clerks of our courts for instance, who appoint deputies.
    4. Because there was no evidence of any negligence of the defendant, either in managing the post office himself, or in superintending his assistant.
    Bauskett, for the motion,
    contended, on the first ground for non-suit, that defendant was responsible for neglect of his official duties, only in the Courts of the Federal Government, whose officer he was, and to which Government his bond for the faithful discharge of his duties was given. He cited 2 Hill, 687; Rice, 400; Act of Cong. 1825, § 87; 7 Laws U. S. 49; 8 Stor. Com. 536. On the 2d ground, he contended that the assistant is not the agent of the post master. He is an officer of the government, responsible for his own acts, and for whom the post master is not liable. Cited 57th Rule of Post Office Department ; 7 Cranch, 266 ; 3 Wils. 443 ; 5 Bur. 2709; 2 Cowp. 763; 2 Bay, 554; Story on Bail. 299, 302; 2 Kent, 610 ; 1 Johns. R. 396 ; 8 Watts, 453. On the 2d ground for new trial, he said that the declarations of Meigs were not a part of the res gestee, and upon no other principle could they be received in evidence in this case. The silence of the defendant could not be construed into an admission by him that what Meigs said was true; for he did not and could not know whether it was true or false. (1 Phil. Ev. 236.)
    
      Griffin, contra.
   Curia, per

O’Neall, J.

It is true, that the Court of Errors, in the State vs. McBride, (Rice, 400,) held that the Court had no jurisdiction over the offence of stealing a letter from the mail, and reversed the case of the State vs. Wells, (2 Hill, 687); but, in so holding, it was not intended to disclaim jurisdiction of cases where the rights of parties, civiliter, were concerned.

The plaintiffs here claim for an injury done to them by an officer of the United States, in the discharge of his duties, or rather in failing to properly discharge them. Is there any thing in the Constitution or laws of the United States which forbids our Courts from trying such a case ? Certainly not. Indeed the right to hear, try and determine such a matter is a part of the common law jurisdiction of the Courts of Law of South Carolina, and unless in the Constitution of the United States it had been surrendered, it still remains.

The Court, in Bolán vs. Williamson & Chapman, (2 Bay, 551,) better reported in 1 Brer. 181, held jurisdiction of such a case as indisputable. So in Franklin vs. Low & Swartout (1 Johns. R. 396) a similar jurisdiction was exercised. It cannot be necessary to pursue this further.

The next question is, whether the declaration is sufficient. The first count charges that the loss was sustained “ through the negligence, carelessness and default of the post master, his servants, agents or deputiesthe second count charges the loss to have occurred from the defendant not properly superintending his clerks or agents.

I think either count sufficient. The first charges the defendant generally with negligence in the discharge of the duties of his office; and that the plaintrffs’s loss arose therefrom. This is clearly sufficient, if Ward, his assistant, is to be regarded as his mere servant, (1 Chitty’s Plead. 382.) That this is the true notion, is apparent when it is remembered that the defendant was the only person legally known as post master at Edgefield. The 51st regulation of the post office declares, that he shall not be permitted to transfer the charge of his office and the performance of its duties to another.

The 53d regulation provides “ that the duties of his office must be performed only by himself personally, or by a sworn assistant, or assistants, whom he may employ to aid him, when necessary; for the care and attention of every one of whom he will be responsible to the Department.” These regulations shew very plainly that his assistant is no officer of the Government, and that he is responsible for every thing as done by himself.

It is true, however, the case of Dunlop vs. Munroe, (7 Cranch, 242, 269) does sanction the doctrine, that to charge the post master for the neglect of his assistants, it is necessary to state the injury according to the facts, and that the post master’s liability will then result from his own neglect in not properly superintending the discharge of the duties of his office. This view of the law is met by the 2d count, and the defendant has therefore no ground to complain.

The next question is, was the defendant liable for the negligence of his assistant, Ward 1 That he was, is, I think clear on principle.

The 53d regulation, above cited, shews that Ward was the mere employee of the defendant; he is in no sense a public officer. There is no plainer doctrine of the common law, than that the principal, 'who holds out an agent or servant, in any public employment, is liable, in ease, for his negligence. Drayton vs. Moore, Parker & Co. vs. Gordon, (Dudley, 271-2-3-4.)

The same result is attained against a post master, by Bolan vs. Williamson & Chapman, (1 Brev. 181,) for in that case the Court held that the post Master was liable for a loss occasioned by negligence in his office ; that his assistant was not liable to the party sustaining the loss, unless he is an officer of the Department. It is clear, from the post office regulations, that he is not such officer, and it therefore clearly follows, from that case, the post master is liable. Judge Brevard gives the true point of that decision, to wit, the verdict against the post master and his assistant could not be sustained, as both were not liable. The Court did not do what it might have done, and held the verdict to have been good against the post master alone, and permitted the plaintiff to discontinue as to his assistant.

But this case, when properly understood, removes all difficulty; the post master is sought to be charged for negligence in his assistant, whereby the plaintiffs’s money was stolen. The 61st regulation provides “ that a post master will suffer no person whatever, except his duly sworn assistants, or clerks and letter carriers, who may also have been sworn, to have access to the letters, newspapers, and packets in his office, or whatever constitutes a part of the mail, or to the mail keys.” Meigs, the unfortunate guilty man, who forfeited all the good results of a previous well spent life, by yielding to the temptation presented to him, in his dying condition, to provide for his family, by taking that which did not belong to him, had “ access to the letters, newspapers, and packets” in the post office, and thereby stole the money of the plaintiifs. This was by the neglect of Ward; he ought not to have permitted it; and the defendant having “ in person the general superintendance of his office,” as required by the 52d regulation, ought to have corrected this very matter, and hence, in the very terms of the 2d count, he is liable. It follows, too, that the negligence of his assistant, is his negligence, and therefore his liability arose as the Judge stated it to the jury.

From this view of the defendant’s liability, which arises from. Ward’s act, it follows, that he was an incompetent witness for the defendant. For he is liable over to the defendant. Parker & Co. vs. Gordon (Dud. 272.)

The only remaining question is, whether Meigs’s admission, that he stole the letter containing the money, was competent. I placed its admission on two grounds : 1st, that the defendant was present, heard it, and received it as true: and, 2d, that it was the admission of an act, committed by the party making it, against his interest, and subjecting him to infamy and heavy penal consequences, and who was dead at the trial.

In either or both of these points of view, I think the evidence was admissible, but more especially when both are combined.

It is true that the defendant had no knowledge of the act, and cannot, therefore, from his presence and silence, be presumed to have admitted it to be true, because he knew it to be so. But this is not necessary to make it evidence, on that account. lie was one of those seeking for the truth, and the ascertainment of which was very important to him. When, therefore, Meigs made the confession, and he received and acted on it as true, which he did, he cannot afterwards be allowed to say it is no evidence against me. It is, as to him, prima facie evidence of the fact. He could relieve himself of its effect by shewing that, in fact, Meigs was not the guilty man, or that he received it as true, by mistake. But, on the second ground, I think it is true that a declaration, made by the party who does the act, as in this case stealing the letter containing the money, is admissible. It is very true that the rule that, where an entry or declaration, made by a deceased person, is against the interest of the party making it, it is admissible as evidence, was qualified by Gilchrist & King vs. Martin & West, (Bail. Eq. 492,) and was restricted to cases where there was no interest to falsify the fact that it was made against the interest of the person making it, and that the entry or declaration was so ancient as to preclude suspicion that it was manufactured for the occasion. Under it alone, therefore, this declaration would not be admissible. But when it is remembered that this is not of a matter of business, like those spoken of in that case, but was a criminal act, of which none could be so cognizant as the party, I think a reason will be found for its admission, arising out of the rule, as qualified in the case just alluded to. The admission of such testimony arises from necessity, and the certainty that it is true, from the want of motive to falsify. Both these are apparent here.

In the Lessee of Clymer vs. Littler, (1 W. B. 345,) it is stated by the reporter, as a principle of the case, that a confession, by a deceased witness, that he forged the will of ’45, may be admissible. This is the very case before us. Yet it seems that the evidence was received, without objection, on the circuit: the objection was taken on the motion for new trial. Lord Mansfield said, “As to the fact, the admissibility or competence must result from the particular circumstances of the case.” He states those circumstances which shew that the deceased had no interest to state an untruth, and therefore he says, “I think it admissible.” So here we have every guaranty of its truthfulness — the grave consequences of infamy, and, at the least, ten years’ imprisonment, would certainly insuie the truth of the speaker. To this let it be added that the defendant was present, and received it as true, and do we not stand on at least as certain grounds as Lord Mansfield assumed to be sufficient on that occasion ?

The motions for a nonsuit or new trial are dismissed.

Frost, Withers and Whitner, JJ., concurred.

Evans, J.

I concur on all the grounds except the admissibility of Meigs’s confessions — of this I have some doubts.

Wardlaw, J.

I assent to all except the instructions which held the post master liable for the negligence of his assistant, without inquiry into any negligence of the post master in his duty of superintending.

Motions dismissed.  