
    *Sawyer v. Corse.
    January Term, 1867,
    Richmond.
    i. Pleading and Practice — Want of Issue — Case Agreed-Effect. — When before the defendant files a plea the parties agree a case, and submit it to the decision of the court, the want of a plea or issue is cured by the agreement.
    а. Same — Same—Same.—When there is a declaration and no plea, and a case agreed is submitted to the court for its decision, the plaintiff’s cause of action as set forth in the declaration, is submitted to the court without reference to any particular form of defence, and the defendant is entitled to judgment, if the facts stated afford him a defence, of which he might have availed himself under-any form of pleading.
    3. Same — issue—Case Agreed. — when there is an issue in a cause, and it is submitted to the court upon a case agreed, the decision must be restricted to the issue.
    4. Case Agreed — Substituted for Special Verdict— What Rule$. Govern. — A case agreed is. a substitute for a special verdict, and is subject to like rules. It must state facts and not merely the evidence of facts; and the court cannot infer other facts from those stated, unless they result as a legal conclusion, or unless the parties agree that it may be done.
    5. Public Officers — Liability for Personal Negligence.— A public officer or other person who takes upon himself a public employment, is liable to third persons, in an action on the case, for any injury occasioned by his own personal negligence. or default in the discharge of his duties. .
    
      б. Same — Liability for Negligence'of Agent. — A public officer is liable to third persons for any injury occasioned by the negligence or default of his private agent or servant in the discharge of his official duties.
    7.Same — Liability for Official Subordinate. — A public officer is not responsible to third persons for the negligence or default of his official subordinates.
    *8. Municipal Corporations — Enterprise of Private Nature — Liability for Officer’s Defaults. — This principle of exemption from liability, for the defaults of its officers is not extended to municipal corporations, where the authority, though for the accomplishment of obj ects of a public nature, and for the benefit of the public, is one, from the exercise of which, the corporation derives a profit, or where the duty may be presumed to be enjoined upon the corporation in consideration of privileges granted.
    9. nail Carriers — Liability of Contractor for Negligence of. — A mail carrier is -not an officer of the government, but is the private agent of the contractor for carrying the mail, and the contractor is liable to third persons for any injury sustained through the negligence or defaultof such agent in the performance of his duties.
    10. Same — Failure to Take Oath — Liability of Contractor. — The act of congress of March 3, 1825, Brightley’s Dig. p. 759, § 2, requires that mail carriers shall be sworn, and it is the duty of the contractor to see that this is done. If the carrier is not sworn he is the private agent of the contractor, for whose defaults the contractor is liable to third persons, even if on being sworn the contractor would not be liable for,his acts. • And it is not sufficient that the mail carrier took the oath when acting for a former contractor.
    
      ii. Same — Same—Contractor Not Insurer — Liability for Negligence. — The fact til at the mail carrier did not take the oath prescribed does not make the contractor an insurer, hut he is liable to third persons for injury caused by the negligence or default of the carrier.
    This was an action on the case in the Circuit court of Alexandria county, brought in February, 1854, by John D. Corse against Frederick P. Sawyer, to recover an amount of money lost out of the mail between Alexandria and Washington, on a route on which Sawyer was the mail contractor. The declaration contained three counts. In the first, after stating that Sawyer was the contractor for carrying the mail on the route between Alexandria and Washington, and that the plaintiff had deposited a sealed letter, containing $988 in bank notes, in the post office at Alexandria, to be carried by the mail to Washington, and the delivery of it to the defendant, charged that by the negligence, carelessness and default of the defendant the letter and its contents were lost.
    *The second count set out that the defendant had employed Archibald Fleming as his agent and servant to carry the mail, and that through the carelessness, negligence and default of Fleming the letter and its contents were lost. And the third count charged that Fleming was a careless, faithless and incompetent person.
    In May, 1856, without a plea filed by the defendant, or issue in the cause, came the parties by their attorneys, and a case was agreed by them to be argued in lieu of a special verdict. From the case agreed it appeared as follows:
    On the 6th of December, 1853, the plaintiff enclosed in and sealed up a letter addressed to Maury & Morton, at the city of Richmond, current notes of Virginia banks amounting to the sum of nine hundred and eighty-eight dollars, the property of the plaintiff, and on the same day deposited this letter in the post office at Alexandria, to be forwarded in due course of mail, by way of Washington city, to Richmond, to the persons to whom it was addressed. The letter was on the 6th of December duly mailed at Alexandria, and along with other mail matter deposited in a United States mail bag, which was duly locked by the postmaster, and this mail bag was, on the same day, about 4 o’clock in the evening, delivered by the postmaster at the post office, together with another mail bag of larger size, containing mail matter, to one Archibald Fleming, who was at the time in the employment of the defendant, who was then the contractor with the government of the United States for carrying the mail between the city of Alexandria and Washington.
    Fleming having received the said mail bags, started immediately, on horseback, to carry them from the post office in Alexandria to the post office in Washington city. When he received the mail bags he placed them upon the saddle, which was upon the horse to be ridden by him in *carrying them, and seating himself upon them started for the post office in Washington. When he had gone about two miles he found that the smaller bag, the one which contained the letter aforesaid, had, without his knowledge or observation, slipped from under him after his departure from the post office at Alexandria. He immediately returned along the route he had traveled, and made diligent search for the missing bag, but was unable to find it, though it was still daylight, and the said mail bag, with all the matter therein contained, was wholly lost. It was agreed that this mail was most usually carried on the steamboats plying between the two cities, sometimes along the turnpike road, and sometimes along the towpath of the Alexandria canal, and that at the time of the loss the steamers were not running, in consequence of the ice in the river, and that the tow-path was easier than the turnpike for the horse to travel upon, and it was little farther than the route by the turnpike. Fleming had been the employee from time to time of various contractors to carry the mail between the cities of Alexandria and Wáshington and elsewhere, and had always been a faithful, diligent and careful agent. Many years previous to the time of this loss, and whilst he acted in the same capacity as the employee of the Hon. William Smith, as a contractor to carry the United States mail, he was sworn faithfully to perform his duties; but he took no oath whilst in the employment of the defendant. It was agreed that either party might refer to any law of Congress or regulation of the post office department.
    The contract between Sawyer and the government under which the mail was carried at the time of the loss of the letter as aforesaid, is set out at length in the case agreed, and it is presumed is in the usual form. It shows the compensation for carrying the mail for a year ‘was four hundred and fifty dollars, and it contained, among other covenants on his part, the following:
    Second. To carry said mail in a safe and secure manner, free from wet or other injury, under a sufficient oilcloth or bear skin.
    Third. To take the mail and every part of it from, and deliver if and every part of it at, each post office on the route, or that may hereafter be established on the route, and into each post office at the end of the route, and into the post office at the place at which the carrier stops at night, if one is there kept, and if no office is there kept to lock it up in some secure place at the risk of the contractor.
    He and his sureties also bound themselves to be answerable for the person to whom the said contractor should commit the care and transportation of the mail, and accountable to the United States for any damages which might be sustained by the United States through his unfaithfulness or want of care, and that said contractor would discharge any carrier of said mail whenever required so to do by the postmaster general.
    The .cause came on to be heard upon the case agreed in November, 1858, when the court gave a judgment for the plaintiff for nine hundred and eighty-eight dollars, with legal interest thereon from the 6th of December, 1853, until paid, and his costs. And thereupon Sawyer applied to this court for a .writ of error to the judgment, which was allowed.
    Daniel, for the appellant, contended:
    First. That.no issue had been made up in the cause, and for that error the judgment must be reversed.
    Second. The evidence did not sustain the first and third counts; and on the second count that the contractor was not liable for the negligence of the carrier; and that in fact there had been no negligence.
    *'Oa the first head he insisted that the contractor was not a common carrier. He made no contract with the public; receives no pay from the public; and made no warranty to the public.
    That both the contractor and the carrier were public officers, each liable for his own acts, but not for the acts of the other. That in view of the regulations of the post office department the carrier was not an agent of the contractor. That after the nomination of the carrier to the department and his acceptance, he was to take an oath, which it was the business of the post office department to see was taken; and the contractor was bound by his bond to dismiss the carrier if .required by the department to do so. Moreover the duty. was imposed upon the carrier to collect the postage on way-letters. He referred to Brightley’s Digest, § 2, p. 759, for the law of 1825: Id. 766, ? 47, p. 780, §§ 141, 138.
    The contractor being a public officer and the carrier being appointed to the discharge of public duties, the doctrine of respondeat superior does not apply. Story on Agency, l 319; 2 Parsons on Contracts, 144 and note b; Con well v. Vorhees, 13 Ohio R. 523, Stanton 541.
    He insisted further, that if the carrier was the mere agent of the contractor, that the contractor was obliged to employ agents, and was not bound for their acts. That no one would contract for carrying the mails if he was to be held bound for all the mis-feasances or malfeasances of his agents. The United States was secured by the bond of the contractor; and there was no liability to the public. He referred to Hutchins v. Brackett, 2 Roster’s, New Hamp. R. 252; Dunlop v. Monroe, 7 Cranch’s R. 242; Schroyer v. Lynch, 8 Watts’ R. 453.
    He said that the case of a sheriff and deputy was the only case of public officers in which a principal was *held liable for the acts of his deputjr, and this was an exceptional case; and it was said by Best, Ch. J., to be founded on a very ancient statute. Hall v. Smith & als., 2 Bingh. 156, 9 Rng. C. L 357; Cameron v. Reynolds, Cowp. R. 493.
    3d. That there was no evidence to subject the contractor in this case. That no more than ordinary care was required; and here there was no sufficient proof of negligence ; and negligence was not stated in the case agreed.
    Brent, for the appellee, insisted:
    First. — That Fleming was not a public officer, but was the agent of Sawyer. He referred to the cases of Lane v. Cotton, 1 Ld. Ray. R. 646, 12 Modern R. 482, and Whitfield v. Le Despencer, Cowp. R. 754; and insisted that these cases showed clearly that Fleming was not a public- officer; and he insisted that the American cases followed these; and they all established the principle that the officer is responsible for any malfeasance and neglect of his own whilst in office; and that to relieve the officer from responsibility for the act of his subordinate, an official relation must exist between them. The case of Conwell v. Vorhees, 13 Ohio R. 523, is an exception to this principle, but the case is called in question in 1 American Lead. Cas. 661, note to Wilson v. Peverly.
    Second. — That if an official character existed, yet Sawyer was responsible because of his neglect, and violation of law, in employing as his carrier one not duly qualified to carry the mail. That the act of congress, of March 3, 1825, Brightley’s Digest, p. 759, \ 2, requires that all persons employed in the care, custody-or conveyance of the mail, shall previous to entering upon the duties assigned to them, be sworn before some magistrate faithfully to perform all the duties required of them. *And Fleming had never been sworn as the carrier of Sawyer and under his contract. To constitute an official relation between Sawyer and Fleming, the latter should have been sworn. When the subordinate is not sworn the principal is liable. Bishop v. Williamson, 2 Fairfield (Maine) R. 495, 507. And this case fully meets the objection that it was not the duty of Sawyer to see that the oath was administered to Fleming.
    
      
      Case Agreed — Substituted for Special Verdict — What Rules Govern. — The rule laid down in the fourth headnote of the principal case is approved in Stockton v. Copeland, 23 W. Va. 700, citing the principal case. In Dearing v. Rucker, 18 Gratt. 431, it is said : “But this was not a case agreed to be argued in lieu of a special verdict, as in Sawyer v. Corse, 17 Gratt. 230, where the court could not do otherwise than apply to the case the same rules that would have been applied to a special verdict. In this case the whole matter of law and fact was submitted to the court in pursuance of the statute. The facts stated by agreement of the parties were submitted to the court, without any restriction as to the mode in which they should be treated. It was, therefore, competent for the court to make such inferences from the facts thus submitted to it as the jury might have made from the same facts, if they had been submitted to them. There was, therefore, no necessity for a venire de novo, and it was error in the district court to award it.” See also, on the same point, B. & O. R. Co. v. Faulkner, 4 W. Va. 184, citing the principal case.
    
    
      
       municipal Corporation — Enterprise of Private Nature — Liability for Officer’s Defaults. — For the proposition, that a municipal corporation is not exempt from liability for the defaults of officers, where the authority, though for the accomplishment of obj ects of a public nature, and for the benefit of the public, is one from the exercise of which the corporation derives a profit, or where the duty may be presumed to be enjoined upon the corporation in consideration of privileges granted, the principal case is cited and followed in the following cases: Jones v. City of Williamsburg, 97 Va. 724, 34 S. E. Rep. 883 :■ Wilson v. City of Wheeling, 19 W. Va. 333 ; Noble v. City of Richmond, 31 Gratt. 278 ; DeVoss v. City of Richmond, 18 Gratt. 346; Orme v. City of Richmond, .79 Va. 89 ; M’Coull v. City of Manchester, 85 Va. 586, 8 S. If. Rep. 379. See, in accord, City of Richmond v. Courtney, 32 Gratt. 798; Gordon v. City of Richmond, 83 Va. 436, 2 S. E. Rep. 727 ; City of Richmond v. Long, 17 Gratt. 375 : 2 Dillon on “Municipal Corporations." 949, 966. See monographic note on “Municipal Corporations” appended to Danville v. Pace, 25 Gratt. 1. In Mendel v. Wheeling, 28 W. Va. 257, where it was sought to hold the city liable for failure to supply water to extinguish fire on the ground that it owned and operated the waterworks and received water rents from those supplied with water, it was held that the city was not liable, the court saying: “The case of Sawyer v. Corse, 17 Gratt. 241, is not opposed to the principles we have announced. The case is not relevant to the subject before us, as it involved the right to recover damages from a mail carrier for a package of money lost through his negligence. He was properly held liable.”
    
   JOYNFS, J.

The judgment in this case was rendered against Sawyer, who was defendant in the court below, upon a case agreed by the parties. He now contends that the judgment must be reversed, because it does not appear from the record that he had filed any plea. But this objection cannot be sustained. A case may be submitted to the court on a case agreed without a plea as well as with one, and it is sometimes done without either declaration or plea. The defect of pleadings is cured by the agreement. When there is a declaration and no plea, as in the present case, the plaintiff’s cause of action, as set forth in the declaration, is submitted to the court without reference to any particular form of de-fence, and the defendant is entitled to judgment, if the facts stated afford him a defence of which he might have availed himself under any form of pleading. When the case is submitted after an issue is made up, the decision of the court is restricted to that issue.

Sawyer was contractor with the post office department for carrying the mail between the cities of Alexandria and Washington, and Fleming was the carrier employed by him. A mail bag containing a letter of Corse, in which there was an enclosure of bank notes belonging to him, was delivered to Fleming at the post office in Alexandria to be carried to Washington, and was lost by him on the route under circumstances which need not be ^stated. This is an action on the case brought by Corse against Sawyer to recover the value of the bank notes. The declaration contains three counts. The third which alleges that Fleming was not competent and trustworthy, and seeks to charge Sawyer on the ground that he had appointed an unfit person as carrier, is not sustained by the facts agreed, and may therefore be laid out of view. The first count alleges that the loss of the letter was occasioned by negligence and want of care on the part of Sawyer himself.

It is well settled that a public officer, or other person who takes upon himself a public employment, is liable to third persons in an action on the case, for any injury occasioned by his own personal negligence or default in the discharge of his duties. So that if the facts of this case establish that the loss of the letter was occasioned by the negligence or default of Sawyer himself, he is liable even though he should be considered as holding the position of a public officer or public agent, and whatever ma.y be the legal character of his relation to Fleming. 2 Kent, 610; Story on Agency, 320, 321; Nowell v. Wright, 3 Allen’s R. 166.

The second count alleges that the loss was occasioned by the negligence of Fleming as the agent and servant of Sawyer, employed by him to carry the mail according to his contract with the post office department. And here again it is clear, that if Fleming was merely the private agent and servant of Sawyer, Sawyer is liable to third persons for injury occasioned by his negligence in the performance of his duty, according to the maxim respondeat superior. And it is equally clear that the fact that Sawyer’s obligation to carry the mail arose under a contract with the government, and that he made no contract with Corse, is no answer to the present action, which is not founded on the contract, but on the breach of *duty. Winterbottom v. Wright, 10 Mees. & Welsb. 109; Burnett v. Lynch, 5 Barn. & Cres. 589 (12 Eng. C. L. R. 327); Farrant v. Barnes, 11 Com. B. R. N. S. 553 (103 Eng. C. L. R.); Marshall v. York Railway Co., 11 Com. B. R. 655 (73 Eng. C. L. R).

Sawyer contends however that Fleming is not his agent or servant, but the agent or servant of the government, and that as such he is liable for his own default. The leading case relied upon is Lane v. Cotton & al. decided in the year 1701, and reported in 1 Ld. Ray. R. 646, and in several other books. That was an action on the case against Cotton and Frankland, who were together the postmaster general of England, to recover the value of exchequer bills belonging to the plaintiff, which were abstracted from a letter deposited by him in the London post office to be transmitted by post. The letter was delivered at the office to one Breese who was appointed by the defendants to receive letters, who was removable by the'm, but who received his salary from the receiver general out of th'e revenues of the post office. In the opinion of the judges it was assumed that the bills were abstracted by Breese, though it was found by the special verdict that they were abstracted by a person unknown.

Three of the judges held that the defendants were not liable. Without going over all the grounds on which the decision was placed, it will be sufficient for the present purpose, to state thart it was placed, in part, upon the ground, that the post office establishment was an instrument of government, established for public convenience under the management and control of the defendants as officers of the government, and that Breese was himself an officer under the government, and liable as such for his' own acts, and that he was not the agent or servant of the defendants. Lord Holt dissented, but he only differed from the other judges upon the point ^whether Breese was to be regarded as the agent and servant of the defendants or not. See 15 East, 392.

The doctrine of this case was followed by Whitfield v. Le Despencer, Cowp. R. 754, and may be considered as well established in England. The same doctrine has been applied to (the case of a deputy or local postmaster, and his assistants duly appointed and qualified. These, in like manner, are regarded as agents and servants of the government, who are liable for their own acts and defaults, and not as agents and servants of the postmaster, for whose acts and defaults he is to answer. Schroyer v. Lynch, 8 Watts’ R. 453; Wiggins v. Hathaway, 6 Barb. S. C. R. 632; Dunlop v. Munroe, 7 Cranch’s R. 242; Bolan v. Williamson, 1 Brevard’s R. 181.

There has been some diversity of opinion in reference to this class of cases, but it has been rather as to the application of the principle on which they proceed, than as to the soundness of the principle itself. See Franklin v. Low & al., 1 John. R. 396; Maxwell v. McIlvoy, 2 Bibb’s R. 211; Jones on Bailments, 109.

Indeed, the principle which exempts a public officer from liability for the acts and defaults of his official subordinates appears to have been long recognized, and to be one of general application. Doctor & Student, Dialogue 2, chap. 42; Nicholson v. Morrissey, 15 East’s R. 384; Viscount Canterbury v. Attorney General, 1 Phillips’ R. 306.

The doctrine is thus stated in 1 American Leading Cases (3d ed.), 621: “With regard to the responsibility of a public officer for the misconduct or negligence of those employed by or under him, the distinction generally turns upon the question whether the persons employed are his servants, employed voluntarily or privately and paid by him, and responsible to him, or whether they are his official subordinates, nominated perhaps *by him, but officers of the government; in other words, whether the situation of the inferior is a public officer or private service. In the former case the official superior is not liable for the inferior’s acts; in the latter he is.”

The exemption of public officers from responsibility for the acts and defaults of those employed by or under them in the discharge of their public duties, is allowed, in a great measure, from considerations of public policy. From like considerations it has been extended to the case of persons acting in the capacity of public agents, engaged in the service of the public, and acting solely for the public benefit, though not strictly filling the character of officers or agents of the government. Hall v. Smith, 2 Bingh. R. 156 (9 Eng. C. L. R. 357), Holliday v. St. Leonards, Com. B. (N. S.) R. 192 (103 Eng. C. L. R. 192).

The effort has been made, both in England and the United States, to extend the application of this principle of exemption so as to embrace every case of a municipal corporation, clothed' with authority or charged with a duty for the accomplishment of objects of a public nature and for the public, benefit. But it has been held that where the authority, though for the accomplishment of objects of a public nature and for the benefit of the public, is one from the exercise of which the corpqration derives a profit, or where the. duty, though of a public nature and for the public benefit, may fairly be presumed to have been enjoined upon the corporation in consideration of privileges granted to and accepted by it, the exemption does not apply. And the reason is that, in such cases, the corporation is not acting merely as an agent of the public and with a view solely to the public benefit, but that in the former it is pursuing its own interest and profit, and in the latter is executing a contract *for which it has received a consideration. Scott v. Mayor, &c., of Manchester, 2 Hurl. & Nor. R. 204; Weightman v. Corporation of Washington, 1 Black’s R. 39.

The books which have been cited show the grounds upon which this sort of exemption has been allowed, and the extent to which it has been generally carried. It ought not to be extended to other cases that do not fall clearly within the same reasons. I have seen no case in England, and none in this country, except two hereafter mentioned, in which such exemption has been allowed to a person undertaking by contract to perform work, or render service for the government, for a compensation to be paid to him, and with a view to his own profit, and where his subordinates are employed and paid by him, and liable to be dismissed at his pleasure. Such a contractor is in no just and proper sense, an officer of the government. And though he may be said to be, in a certain sense, an agent of the government, because he is engaged in working for the government, yet the laborers and others whom he employs under him, in the execution of his contract, cannot be said to be agents of the government, which does not know them, does not appoint them, does not control them, does not pa3r them, and has nothing to do with them. The cases above cited from 2 Hurl. & Nor. and 1 Black, show that he is not such a public agent as comes within the principle of Hall v. Smith, because he is working for his own profit, by fulfilling a contract which he has bound himself to perform, and for which he is to receive compensation.

In Collett v. London, &c., Railway Company, 16 Q. B. R. 984 (71 Eng. C. L. R.), the company had been required by the postmaster general to carry the mail under an act making it the duty of all railway companies to *'carry the mail when required to do so by the postmaster general. The plaintiff was an officer of the post office department accompanying the mail, whom it was the duty of the company to carry along with the mail. It was held that the plaintiff was entitled to recover against the company for an injury received by him through the negligence of the servants of the company in charge of the train.

Now this was a stronger case than that of a voluntary contractor, because the company could not refuse to undertake the service. Net it was not even contended at the bar that the company could be regarded as a public agent, exempt as such from liability to answer for the acts of their servants. If not such a public agent in respect to the officer in charge of the mail, how was the case different in respect to the mail, where both the mail and the officer were carried by virtue of the same duty, and for one and the same compensation?

The mail carriers, like all others in the service of the mail contractor, are selected and employed by him; are paid by him; are under his direction and control; enter into contract with him alone; work for his benefit and profit, and may be discharged by him at pleasure. What more is necessary to constitute the relation of master and servant? The case comes fully within the doctrine laid down by Chief Justice Best in Hall v. Smith, where he says: “The maxim of respondeat superior is bottomed on the principle that he who expects to derive advantage from an act which is done by another for him, must answer for any injury which a third person may sustain from it.” The fact that the law requires the carrier to be sworn before he enters on the discharge of his duties does not make him the agent or servant of the government, or affect, in any degree, his relation to the contractor. The safety of the mail and the regularity of *the service being dependent, in a great degree, upon the fidelit3r of the carrier, the law requires that he shall he sworn, as a guaranty to that extent, of his fidelity, just as it required, for like reasons, that he shall he a white person, and of not less than a certain age. But if he is an agent of the government, for whose acts the contractor is not responsible, why does the law trust him without security, while it exacts security from the contractor, and that too when the contractor is, of necessity, a man of substance, which the carrier seldom or never is?

But if a carrier who has taken the oath required by the act of congress can be justly regarded as an agent and servant of the government, and no longer the mere agent and servant of the contractor, a carrier who has not taken the oath cannot be so regarded, because the act requires that he shall take the oath before he enters upon his duties. As Fleming had not taken the oath to perform his duties under Sawyer, therefore it is not competent for Sawyer to shield himself by alleging that Fleming was the agent and servant of the government ; and especially as it was a breach of duty in him to allow a person who had not been sworn to carrv the mail. Act March 3, 1825.

The ter ms of the contract between Sawyer and the department indicate clearly the understanding and intention of the parties to it, that the carriers whom Sawyer might employ would be his agents and servants, for whose acts he would be answerable. Saw'yer stipulates to take ■ the mail, and every part of it from, and deliver it, and every part of it, into the several post offices, and to deliver it into the post office at the place where the carrier stops at night, if one is there kept; and if no office is there kept, to lock it up in some secure place, ‘ ‘at the risk of the contractor. ’ ’ These were duties *which, from their nature, were to be performed .by the carrier. The provision that the mail when locked up at night shall be at the risk of the contractor, implies that the mail, while in the hands of the carrier, is at the risk of the contractor. The meaning is, that this risk shall continue, notwithstanding the mail has been locked up in a secure place, while the contractor will be relieved of the risk if the mail is deposited in . a post office where it will be in the care of the postmaster. The stipulation that Sawyer shall be responsible to the United States for any damage sustained through the unfaithfulness or -want of care of his carriers ; and the other, which precedes it, that he shall be “answerable” for them, in general terms, indicated as clearly as anything could, short of express words, that his carriers would be his agents and servants, for whose acts and defaults he would be responsible.

Two cases have been cited as expressly sustaining the proposition that a mail contractor is not responsible for the loss of mail through the misfeasance or negligence of a carrier. The first of them is Conwell v. Vorhees, 13 Ohio R. 523. The court stated the question to be whether the contractor was a common carrier or a public agent, although the declaration, in all the counts, set forth misfeasance and negligence, and not the liability of a common carrier, as the ground of action. The court held that he was a public agent, on the ground that he was engaged in the performance of a public service, under a contract with the government, and was therefore not responsible for the misfeasance or negligence of those employed b.y and under him. For the reasons already given, I do not think that this decision can be supported. The editor of American Reading Cases, vol. 1, p. 621, intimates the opinion that the case cannot be sustained on the ground upon which it was placed by the court, *and that if it can be sustained at all, which he evidently doubts, it must be on the ground that the carrier holds an official situation, and is really in the emplojement of the post office department.

The other case relied upon is Hutchins v. Brackett, 2 Foster’s R. 252. That case, though put upon the authority of Conwell v. Vorhees, was really decided upon a ground not relied upon, or even mentioned by the court in that case, to wit: that the carrier was a public agent, engaged in the performance of a public duty, and not the mere servant of the contractor. It will be observed that in Conwell v. Vorhees the judge uses “mail carrier” in the sense of “mail contractor” (p. 542, line 15), and that the judge in Hutchins v. Brackett misquotes the opinion in Conwell v. Vorhees by substituting “mail carrier” for “mail contractor,” where it occurs in the 24th line of p. 542. Thus the court in Conwell v. Vorhees is represented as holding that a mail carrier is a public agent, when, in point of fact, they held only that a mail contractor is such.

It thus appears that Hutchins v. Brackett affords no support to Conwell v. Vorhees, and I think it clear that Hutchins v. Brackett cannot be sustained on the ground upon which it was put. But however that may be, that ground, as I have shown, is not applicable to this case, in consequence of the fact that the carrier had not been duly sworn, and in consequence of the special stipulations of the contract between the contractor and the department.

It is objected that upon grounds of' public policy a contractor ought not to be held responsible for the misfeasance or negligence of a carrier, because to hold him so would operate as a discouragement to the taking of contracts for the transportation of the mail. Such considerations are of little weight when the rights and obligations *of the parties are clear on legal principles. But I do not perceive that there is any real ground for such an apprehension. A stage owner is liable for injury to a passenger, or for the loss of his baggage, occasioned by the fault of the driver. What greater hardship is there, if the stage owner is a contractor for carrying the mail, in holding him liable for the loss of a letter in the mail, occasioned, likewise, by the fault of the driver. Indeed, a just regard for the interest of the public requires that the contractor should be held responsible; “for,” to adopt the language of Judge Ivivingston in reference to postmasters, mutatis mutandis, 11 such liability will greatly increase the security of the public, not only by preventing collusion between contractors and their carriers, but by rendering the former more circumspect in their choice, more watchful over their agents, and more attentive to taking bonds for their faithful conduct. It may, it is true, now and then fall hard on a contractor, but it is better it should be so than that individuals should be without remedy for injuries committed by their agents.” 1 John. R. 404.

It has been contended by the counsel for Corse that Sawyer is liable, under the first count of the declaration, on the ground that he was guilty of misfeasance and negligence of his duty in entrusting the mail to a carrier who had not taken the oath required by law, and Bishop v. Williamson, 2 Fairf. R. 495, is relied upon. In that case it was held that where a clerk in the post office had not taken the oath, the postmaster was guilty of a neglect of duty, which made him liable for a theft committed by the clerk, while in the absence of such neglect of duty he would not have been liable, on the principle of Bane v. Cotton & al. But the court did not hold t(iat the postmaster was liable, because of this neglect of duty, to answer, like an insurer, for all losses *that might have happened. If a loss had happened without any fault on the part of the clerk, The case does not hold that the postmaster would have been held liable. And so in this case, the fact that Sawyer allowed, Fleming, who had not been sworn, to carry the mail, did not render him liable at all events as an insurer. Judged according to what I have said heretofore, it had no effect upon his liability, for he was liable for a loss occasioned by Fleming’s- negligence, whether sworn or not. The decision in the. case, therefore, at last depends on the question whether the loss was occasioned by negligence and want of care on the part of Fleming.

The case agreed does not state whether the loss was or was not occasioned by negligence and want of care on the part of Fleming. Facts are stated, which have a bearing on that question, and the parties probably understood that the court would determine it by inference from the facts agreed, as was in fact done by the Circuit court. But a cáse agreed, called in the English practice a “special case,” is a substitute for a special verdict, and is subject to like rules. It must state facts, and not merely the evidence of facts ( 2 Tidd. 899), 'and it is not competent for the court to infer other facts from those stated, unless they result as a legal conclusion. If the parties intend that the court shall have authority upon a case agreed to make such inference, they must make an agreement to that effect, as is frequently, if not usually, done in England in making up a “special case.” 8 Ad. & El. 799; 7 M. & Gr. 295. This cannot be regarded as a case submitted to the court under the provision of the Code, ch. 162, § 9, because the record states that a “case was agreed” by the parties, “to be argued in lieu of a special verdict.” There is no alternative, therefore, but to reverse the judgment, set aside the case agreed, and award a venire de novo. 1 Rob. (old) Prac. *373-4. If upon the new trial it shall be found by the jury that the loss, for which the action is brought, was occasioned by the negligence and want of due care on the part of Fleming, in the carriage and preservation of the mail, the defendant in error will be entitled to recover. The degree of care which Fleming was bound to exercise was such as a man of ordinary prudence would ■have exercised about his own affairs, under like circumstances.

I am of opinion to reverse the judgment, with costs to the plaintiff in error, set aside the case agreed, and award a venire de novo.

The pther judges concurred in the opinion of Joynes, J.

Judgment reversed, and venire de novo awarded.  