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Barry v. Foyles. iP.

due from James D. Barry and Co. The declaration charges him as being originally indebted on a transaction with himself. The court attaches no importance to this variance, because when the attachment was discharged by the appearance of the defendant, and giving bail, and the plaintiff, in consequence thereof, filed a declaration, to which the defendant pleaded, the cause stood in court as if the suit had been brought in the usual manner; and no reference can be had to the proceedings on the attachment.

Considering the case as it is made out in the pleadings, the defendant in the circuit court is charged, on his original liability, for a transaction of his own. Edmond Rice having been manager of the whole concern for the proprietors of the tanyard in Washington, with power to buy hides and sell leather, there can be no doubt of his power to charge them for skins and hides received by him in the course of business. The papers No. 2 and 3 purport on their face to be an ac

count of transactions of this description. The only objection [*316 ] made to them is, that instead of the journal of hides * de

livered on each day, the manager has given, at considerable intervals, the total amount of hides received from the last preceding settlement up to that time. We are not aware of any principle which can make such a general certificate less binding than one detailing the separate transactions of each day. The proprietors themselves, or either of them, might have made the same acknowledgment; and we perceive no reason why the acknowledgment of the manager, so far as respects the form in which it is made, should not be of the same obligation as that of the proprietors.

The paper No. 1 is more questionable. It does not purport to be given for hides received at the tanyard, nor does it express the items which constitute the charge; but it is said to be the balance due from James D. Barry, (in whose name the business was conducted,) “on settlement.” Edmond Rice, the person who gave this certificate, had authority to give it on account of the transactions of the tanyard; and it does not appear that he had authority to give it on any other account. It is an additional circumstance of no inconsiderable weight that the account closes on the 5th of April, 1817, the day on which the subsequent account, which is avowedly for hides, commences. These circumstances combined were, we think, sufficient to justify the submission of this paper also to the jury.

The next objection to the admission of these papers is, that the plaintiff in the circuit court has failed to prove that Robert Barry was one of the proprietors of the tanyard, while the business was conducted in the name of James D. Barry.

The evidence on this point was given by Thomas Rice, and has

Barry v. Foyles. IP. been already fully stated. We think the testimony of a partnership was very strong. It could not, with propriety, have been withheld from the jury.

The question on which the plaintiff in error most relies remains to be considered.

This suit is brought on a partnership transaction against one of the partners. The declaration states a contract with the partner who is sued, and gives no notice that it was made by him with another. Will evidence of a joint assumpsit support such a declaration ?

Although it has been held from the 36 H. 6 Ch. 38, that a suit against one of several joint obligors might be sustained, unless the matter was pleaded in abatement, yet, with respect to joint contracts, either in writing or by parol, a different rule was formerly adopted, upon the ground of a supposed variance between the contract laid, and that which was proved. This distinction was overruled by Lord Mansfield, in the case of Rice v. Shute, 5 Burr, 2611. The same point was * afterwards adjudged in Abbott v. Smith, [ * 317 ] 2 W. Black. 947, and has been ever since invariably maintained. The principle is that a contract made by copartners is several as well as joint, and the assumpsit is made by all and by each. . It is obligatory on all and on each of the partners. If, therefore, the defendant fails to avail himself of the variance in abatement, when the form of his plea obliges him to give the plaintiff a proper action, the policy of the law does not permit him to avail himself of it at the trial.

The course of decisions since the case of Rice v. Shute, has been so uniform, that the principle would have been considered as too well settled for controversy, had it not lately been questioned by a judge from whose opinions we ought not lightly to depart.

That judge supposed that if the defendant had no notice in the previous stage of the proceedings which might inform him of the nature of the action, he was guilty of no negligence in failing to plead in abatement, and ought not to be deprived of his defence at the trial.

But the declaration never gives this notice where the suit is brought against one only of the partners. He is always proceeded against as if he were the sole contracting party; and if the declaration were to show a partnership contract, the judgment against the single partner could not be sustained. The cases cited by Mr. Sergeant Williams, in note 4, on the case of Cabell v. Vaughan, 1 Saund. 291, n. 4, shows conclusively that the want of notice has never been considered since Rice and Shute, as justifying this exception to the evidence at the trial. We think there is no error, and the judgment is affirmed.

12 P. 300; 13 P. 302.

Dox v. The Postmaster-General. 1 P.

Peter Dox, GERRIT LA GRANGE, AND ISAIAH TOWNSEND, impleaded

with GERRIT L. Dox, Plaintiffs in Error, v. THE POSTMASTER-GENERAL OF THE UNITED STATES, Defendant in Error.

1 P. 318. Under the act of April 30, 1810, s. 29, (2 Stats. at Large, 602,) though the postmaster-gen.

eral is made liable for sums due from delinquent postmasters, if he does not cause a suit to be instituted within six months after a default, yet neither the postmaster nor his sureties are discharged by such omission to sue. Laches of the officers of the United States does not of itself discharge sureries on an official

bond. No presumption of payment of such a bond arises from the lapse of a little more than five

years.

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The case is stated in the opinion of the court.

S. A. Foot, for the sureties.

Wirt, (attorney-general,) contrà.

1.323 * MARSHALL, C. J., delivered the opinion of the court

This suit was instituted against Gerrit L. Dox, a deputy postmaster, and against his sureties, on a bond given for the faithful performance of his duty. It was brought in the district court for the northern district of New York, and was removed, by writ of error, into the circuit court sitting in the southern district of New York, composed of the associate justice of this court and the judge of the southern district. On the hearing, the judges were divided in opinion upon three questions, which have been certified to this court :

1. Whether the district court had jurisdiction of the cause.

2. Whether by the facts appearing on the record, and admitted by the pleadings, or found by the jury, the sureties are exonerated, or discharged from their liability upon the bond so given by them, as set forth in the record.

3. Whether the said bond, from the facts found or admitted by the pleadings, as appearing by the record, can, in judgment of law, be considered as paid and satisfied, or otherwise discharged.

1. The question first to be considered, respects the jurisdiction of the court. The difficulties which were believed to attend it, when this cause was adjourned, have been removed, by the opinion of this court in the case of the Postmaster-General v. Early, 12 W. 136.

In that case, the question was fully considered and deliberately decided. The time which intervened between the default of the officer and the institution of the suit, exceeded the time prescribed by the act of congress, in that case as well as this. Consequently,

pored.

Dox v. The Postmaster-General. IP. the circumstances of the two cases are, in this respect, precisely the sanie. But the counsel for the deputy postmaster says, that this point was not brought into the view of the court, and has not been considered. The opinion of the court, undoubtedly, did not take a view of the question, whether the postmaster-general possessed such an interest in the cause that it ceased to be a suit brought for the United States. This inquiry was not made in terms, but could not have escaped observation. The act of congress for regulating the post-office establishment does not, in terms, discharge the obligors from the direct claim of the United States on them, on the failure of the postmaster-general to commence a suit against the * defaulter, within the time it prescribes. Their liability, [ 324 ] therefore, continues. They remain the debtors of the United States. The responsibility of the postmaster-general himself, is superadded to not substituted for that of the obligors. The object of the act is to stimulate the postmaster-general to a prompt and vigilant performance of his duty, by suspending over him a penalty, to which negligence will expose him; not to annul the obligation of his deputy. Had the object of the act been to favor the sureties its language would have indicated that intention. If this construction be correct, the obligors in this bond remain the debtors of the United States, and the superadded responsibility of the postmastergeneral cannot affect the reasoning on which the jurisdiction of the court was sustained in the case of the Postmaster-General v. Early.

The second question proposed for the consideration of the court is whether, on the facts appearing in the record, the sureties are discharged from their obligations.

The breaches assigned, are: 1. That Gerrit L. Dox failed to render accounts of his receipts and expenditures, as deputy postmaster.

2. That he had failed to pay over the moneys he had received over and above his commissions, &c.

The defendant pleaded. 1. Non est factum. 2. That Gerrit L. Dox did render true accounts, &c.; and 3. That he did pay over the moneys he received. The issues joined on these pleas were found for the plaintiff.

The question arises on other pleas, the issues on which were found for the defendants; and which state, in substance, that Gerrit L. Dox was removed from his office on the 1st day of July, 1816. That the postmaster-general did not open an account against him and make any claim and demand on him for the moneys received by him as postmaster, until the 1st day of July, 1821. That at the time of his removal from office he was solvent and able to pay his debts, and

Dox v. The Postmaster-General. 1 P. continued so until the 1st day of July, 1819, after which he became insolvent, and continues to be so. These pleas also state that the postmaster-general, well knowing that Gerrit L. Dox had neglected and refused to pay over the moneys due from him, as postmaster, at the end of every quarter, &c., did not commence a suit until August, 1821.

These facts placed on the record, without explanation, must be admitted to show a gross neglect of duty on the part of the postmaster-general. Does this neglect discharge the sureties froin their obligations?

The condition of the bond is broken, and the obligation has become absolute.

Is the claim of the United States upon them released by 1 * 325 ] the *laches of the officer to whom the assertion of that

claim was intrusted ? This question, also, has been settled in this court.

The case of the United States v. Kirkpatrick and others, 9 W. 720, was a suit instituted on a bond, given by a collecter of direct taxes and internal duties, under the act of 22 July, 1813, c. 16.' The act required each collector to transmit his accounts to the treasury, monthly, to pay over the moneys collected, quarterly; and to complete his collection, pay over the moneys collected to the treasury, and render his final account within six months from the day on which he shall have received the collection list from the principal assessor. In case of failure, the act authorizes and requires the comptroller of the treasury immediately to issue his warrant of distress against such delinquent collector and his sureties. The comptroller did not issue his warrant of distress according to the mandate of the law; and this suit was instituted four years after such warrant onght to have been issued.

The court left it to the jury to decide whether the government had not, by this omission, waived its resort to the sureties. A verdict was found for the defendants, the judgment on which was brought before this court by writ of error.

The counsel for the defendant urged that laches might be imputed to the government, through the negligence of its officers, but this court reversed the judgment, declaring the opinion that the charge of the court below, which supposes that laches will discharge the bond, cannot be maintained in law : “ The utmost vigilanoe,” it was said, 66 would not save the public from the most serious losses, if the doctrine of laches can be applied to its transactions. It would, in effect, work a repeal of all its securities.” It was further said, that the

1 3 Stats. at Large, 22.

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