Caut hers fund for

P.O. for Parl has approp it all for items, among

fully regulated by St. 12 Car. II, c. 35. There never had been action brought, either upon that ordinance or upon the statute, till the case of Lane v. Cotton; and the same mode of action that is now brought was the mode fixed upon in the case of Lane v. Cotton. But neither from the draught of the declaration by the advisers of that action, nor in the opinion of the judges upon the question, does it appear to have entered into the imagination of either that this was a demand upon the fund, as it has been now argued; for the form of action is not applicable to such a demand. If there could be a demand upon the fund, it must be by a totally different form of action. But this is a demand upon the postmaster personally, upon the ground of a neglect in him by his own act, or constructively so, by the fault of his servant. If the fund were in the nature of a policy of insurance, to insure every man, who sends bills or notes by land or sea carriage, from a loss by robbery or neglect, such contingency would be a de

duction out of the fund; and no doubt in that case, if a loss were to happen, upon an action brought against the proper officers they

would be liable, being bound by the positive constitution of the office to insure every person for the fixed and established rate of postage. This doesn't appear But here the act of Parliament has appropriated the whole revenue. Therefore, if a loss is paid, there must be an item of it; and that item must come under the appropriation. But it is manifest no such idea was ever thought of at the time. If it had been thought of, the ordinance of Cromwell, or the act of Parliament, would in terms have charged the fund for all losses arising from neglect or otherwise.

Actrious PM

of hiss

But neither this action, nor the case of Lane v. Cotton, is founded upon the ground of the fund being liable. What then is the ground? It is that the postmaster in consequence of the hire he receives, is liable for all the damage that may happen, whether owing to the negligence or dishonesty of the persons employed under him to con

Not as insurer his subordmate duct and carry on the business of the office. If that position were 'founded in the extent in which it has been stated, it would go the length of making the defendants liable in all cases whatsoever. But the argument of Lord Chief Justice Holt, who differed from the other judges in the case of Lane v. Cotton, does not extend so far as that; for he takes a difference between the case of a letter lost in the office by a servant employed under the postmaster, and that of a loss upon the road, or by the mail being robbed after the letter has been sent safe out of the office. The ground of Lord Chief Justice Holt's opinion in that case is founded upon comparing the situation of the postmaster to that of a common carrier, or the master of a ship taking goods on board for freight. Now, with all deference to so great an opinion, the comparison between a postmaster and a carrier, or the master of a ship, seems to me to hold in no particular whatsoever. The postmaster has no hire, enters into no contract, carries on no merchandise or commerce. But the post office is a branch of

Moras p. 8.Co

revenue, and a branch of police, created by act of Parliament. As a branch of revenue, there are great receipts; but there is likewise a great surplus of benefit and advantage to the public, arising from the fund.

As a branch of police, it puts the whole correspondence of the as a gout dept kingdom (for the exceptions are very trifling) under government, and is destingh the under this intrusts the management and direction of it to the crown, and officers

appointed by the crown. There is no analogy therefore between the a common car case of the postmaster and a common carrier. The branch of reverer in its constnue and the branch of police are to be governed by different officers. tuin (appt (Comm) The superior has the appointment of the inferior officers; but they its oath, its plugive security to the crown. One requisite is that they shall take the

es of duties.

oaths taken by all public officers. Another strong guard is, that they-alties for breachare made subject to heavy penalties; and this is carried so far that -ds what in the case of a common carrier, or any other person, would be only a breach of trust, is in them declared to be a capital felony. All these advantages the law provides for the security of the subject, in consideration of their being obliged to send their letters by this mode

heable- but

of conveyance. But the statute does not make the postmaster liable stat does ment for any act done, except in one particular case, which is very re- a caiu whRM. markable, because it makes him liable for his own fault only (and not for that of his deputies), in a case where it is hardly possible. for the postmaster himself to be personally in fault. The statute (section 5) creates a monopoly in the postmaster and his deputies or substitutes, of providing post horses. And if any other person pre

for hur own fault )-(popilened her

sumes to let to hire any post horse, for the purpose of carrying is signife

letters, etc., he is liable to a penalty of £5. except where the postmaster or his deputies do not furnish horses within half an hour after an application made; for then the party is at liberty to hire a horse elsewhere. And in that case, "if it be through default or neglect of the postmaster, or his deputy, that such person fail of being furnished with a sufficient horse or horses in time, then the postmaster or his deputies are to forfeit £5."

suster - who ded

the using

As to an action on the case lying against the party really offending, Actron cars there can be no doubt of it; for whoever does an act by which another person receives an injury is liable in an action for the injury sustained. If the man who receives a penny to carry the letters to the post office loses any of them, he is answerable; so is the sorter in the business of his department. So is the postmaster for any fault of his own. Here no personal neglect is imputed to the defendants, , nor is the action brought on that ground; but for a constructive negligence only, by the act of their servants. In order to succeed, therefore, it must be shown that it is a loss to be supported by the postmaster, which it certainly is not.

As to the argument that has been drawn from the salary which Salary is not the defendants enjoy: In a matter of revenue and police under the like carriers pay

authority of an act of Parliament, the salary annexed to the office is

It is merely for duties of x + affice

Precedithas

settles the law vs a recovery

for no other consideration than the trouble of executing it. The
case of the postmaster, therefore, is in no circumstance whatever
similar to that of a common carrier; but he is like all other public
officers, such as the lords commissioners of the treasury, the com-
missioners of the customs and excise, the auditors of the exchequer,
etc., who were never thought liable for any negligence or misconduct
of the inferior officers in their several departments.

Thus then the question stood in the year 1699. In that year a
solemn judgment was given that an action on the case would not lie,
against the Postmaster General, for a loss in the office by the neg-
ligence or fault of his servant. The nation understood it to be a
judgment; and therefore it makes no difference, if what has been
thrown out were true, and the writ of error was stopped in the way
that has been mentioned. For the bar have taken notice of it as a
judgment; the Parliament and the people have taken notice of it;
every man who has sent a letter since has taken notice of it; many
acts of Parliament for the regulation and improvement of the post
office, and other purposes relative to it, have passed since, which by
their silence have recognized it. The mail has been robbed a hundred
times since, and no action whatever has been brought. What have
merchants done since and continue to do at this day, as a caution and
security against a loss? They cut their bills and notes into two or
three parts, and send them at different times; one by this day's post,
the other by the next. This shows the sense of mankind as to their
remedy. If there could have been any doubt therefore before the
determination of Lane v. Cotton, the solemn judgment in that case,
having stood uncontroverted ever since, puts the matter beyond dis-
pute. Therefore, we are all clearly of opinion the action will not lie.
PER CURIAM. Judgment for the defendants.

KEENAN v. SOUTHWORTH.

(Supreme Judicial Court of Massachusetts, 1872. 110 Mass. 474, 14 Am.

Rep. 613.)

Tort against the postmaster of East Randolph, to recover damages for the loss, by the defendant's negligence, of a letter addressed to the plaintiff. At the trial in the superior court, before Pitman, J., the plaintiff introduced evidence, not now necessary to report, that the letter was received at the post office at East Randolph, and was lost. by the negligence or wrongful conduct of one Bird, who was the postmaster's clerk. The plaintiff having disclaimed "any actual participancy or knowledge of the acts of Bird on the part of the defendant," the judge ruled that the defendant was not liable for any careless, negligent or wrongful acts of Bird; and, by consent of the plaintiff, he directed a verdict for the defendant, and reported the

case for the consideration of this court. If the ruling was wrong, the verdict to be set aside, and the case to stand for trial; otherwise, judgment for the defendant on the verdict.

GRAY, J. The law is well settled, in England and America, that the Postmaster General, the deputy postmasters, and their assistants. and clerks, appointed and sworn as required by law, are public officers, each of whom is responsible for his own negligence only, and not for that of any of the others, although selected by him, and subject to his orders. Lane v. Cotton, 1 Ld. Raym. 646, 12 Mod. 472; Whitfield v. Le Despencer, Cowp. 754; Dunlop v. Munroe, 7 Cranch, 242, 3 L. Ed. 329; Schroyer v. Lynch, 8 Watts (Pa.) 453; Bishop v. Williamson, 11 Me. 495; Hutchins v. Brackett, 22 N. H. 252, 53 Am. Dec. 248.

The ruling at the trial was therefore right; and the plaintiff, having consented to a verdict for the defendant, reserving only the question. of the correctness of that ruling, cannot now raise the question whether there was sufficient evidence of the defendant's own negli

gence to be submitted to the jury. by the principal on, his deputy or clerk. to jury.by

Judgment on the verdict.48

Ofc Pol C. 959. Bond of Or cours breaches of duties committed or suffers

48 See Robertson v. Sichel, 127 U. S. 507, 8 Sup. Ct. 1286, 32 L. Ed. 203

(1888), accord.

The liability of certain officers connected with the administration of justice

who were paid by fees (especially sheriffs) for their deputies is established by NB.

common law and frequently recognized by statute. See Rev. Laws Mass. c. 23, § 1; Rev. St. Ill. c. 125, § 13.

St. Westm. II, 13 Edw. I, c. 11: "And if the keeper of the gaol have not wherewith he may be justified, or not able to pay, his superior, that committed the custody of the gaol unto him, shall be answerable (respondeat superior suus) by the same writ."

Also, 2 Henry VI, c. 10, § 1423: "All the officers made by the King's letters patents royal within the said courts [of our lord the King] which have power and authority by virtue of their offices of old times accustomed to appoint clerks and ministers within the same courts shall be charged and sworn to appoint such clerks and ministers, for whom they will answer at their peril. which be sufficient, faithful, and attending to that which pertaineth to them in performance of the business, as well of the King, as of his people." See Hazard v. Israel, 1 Bin. (Pa.) 240, 2 Am. Dec. 438 (1808); Campbell v. Phelps, 1 Pick. (Mass.) 62, 66, 11 Am. Dec. 139 (1822); Wood v. Farnell, 50 Ala. 546 (1874); McNutt v. Livingston, 7 Smedes & M. (Miss.) 641 (1846).

The following additional cases in this collection are suits against officers:
Grindley v. Barker, 1 Bos. & P. 229 (1798); McCoy v. Curtice, 9 Wend. (N.
Y.) 17, 24 Am. Dec. 113, (1832); Meeker v. Van Rensselaer, '15 Wend. (N. Y.) FN. 520
397 (1836); Johnson". Stedman, 3 Ohio, 94 (1827); Eldred v. Sexton, 5
Ohio, 216 (1831); Patterson v. Miller, 2 Metc. (Ky.) 493 (1859): Neff v.
Paddock, 26 Wis. 546 (1870); Hubbell v. Goodrich, 37 Wis. 84 (1875); Wil-
cox v. Hemming, 58 Wis. 144, 15 N. W. 435, 46 Am. Rep. 625 (1883); King
v. Davenport, 98 Ill. 305, 38 Am. Rep. 89 (1881); Baldwin v. Smith, 82 Ill.
162 (1876); Lawton v. Steele, 152 U. S. 133, 14 Sup. Ct. 499, 38 L. Ed. 385 FN. 527
(1894); Potts v. Breen, 167 Ill. 67, 47 N. E. 81, 39 L. R. A. 152, 59 Am. St.
Rep. 262 (1897); Warne v. Varley. 6 T. R. 443 (1795); Thompson v. Farrer,

9 Q. B. D. 372 (1882); Miller v. Horton,' 152 Mass. 540, 26 N. E. 100, 10 L. Fr. 521
R. A. 116, 23 Am. St. Rep. 850 (1891): De Lima v. Bidwell, 182 U. S. 1, 21
Sup. Ct. 743, 45 L. Ed. 1041 (1901); Gonzales v. Williams, 192 U. S. 1, 24
Sup. Ct. 171, 48 L. Ed. 317 (1904); Martin v. Mott, 12 Wheat. 19, 6 L. Ed.
537 (1827); Amy v. Supervisors, 11 Wall. 136, 20 L. Ed. 101 (1870).

SECTION 39.-ACTIONS AGAINST MUNICIPAL CORPORATIONS-IN TORT 49

LEVY v. MAYOR, ALDERMEN AND COMMONALTY OF CITY OF NEW YORK.

(Superior Court of City of New York, 1848. 1 Sandf. 465.)

Trespass on the case.

The city of New York, having the requisite power, enacted an ordinance prohibiting swine from running at large in the streets, with a suitable penalty, and a provision for impounding the delinquent animals. The plaintiff's infant son was attacked by a swine straying in the street and was mortally injured.

Demurrer to declaration. * * * 50

SANDFORD, J. The plaintiff's counsel well observed that there was no precedent for such an action as this, and we are compelled to add that there is no principle upon which it can be sustained.

The corporation is undoubtedly vested with certain legislative powers, among which is the authority to restrain swine from running at large in the streets; and they have exercised it by enacting an ordinance to that effect. The idea, that because they may prohibit a nuisance, that therefore they must not only pass a prohibitory law, but must also enforce it, at the hazard of being subjected to all damages which may ensue from such nuisance, is certainly novel. The corporation of the city in this respect stands upon the same footing within its own jurisdiction as the state government does in respect of the state at large.

It is the duty of the government to protect and preserve the rights of the citizens of the state, both in person and property, and it should provide and enforce wholesome laws for that object. But injuries to both person and property will occur, which no legislation can prevent, and which no system of laws can adequately redress. The government does not guaranty its citizens against all the casualties incident to humanity or to civil society; and we believe it has never been called upon to make good, by way of damages, its inability to protect against such misfortunes.

There would be no end to the claims against this city and state, if such an action as this is well founded. If a man were to be run over, and his leg broken, by an omnibus racing in the street, he would forthwith sue the city for damages, because the corporate authorities.

49 The question of liability for neglect of ministerial duties is not considered. See full review of authorities in Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332 (1877).

50 The statement is abridged.