Jones . The United States. THIS case was brought up by writ of error from the Circuit Court of the United States for the Eastern District of Virginia. It was a suit brought by the United States upon a postmaster's bond against Walter F. Jones (the postmaster at Norfolk, in Virginia), and Thomas Ap Catesby Jones and Duncan *Robertson, his sureties. Judgment went by [*682 default against the postmaster and Robertson. The act of Congress upon which the defence rested was the following, viz. : The act of the 3d March, 1825, (4 Stat. at L., 102,) is entitled "An act to reduce into one the several acts for establishing and regulating the Post-Office Department," and in its third section enacts, "That it shall be the duty of the Postmaster-General, upon the appointment of any postmaster, to require and take of such postmaster bond, with good and approved security, in such penalty as he may judge sufficient, conditioned for the faithful discharge of all the duties of such postmaster required by law, or which may be required by any instruction or general rule for the government of the Department: Provided, however, That if default shall be made by the postmaster aforesaid, at any time, and the Postmaster-General shall fail to institute suit against such postmaster and said sureties for two years from and after such default shall be made, then and in that case the said sureties shall not be liable to the United States, nor shall suit be instituted against them." Jones was postmaster from 1830 to August, 1839, during which time a running account was kept up with him at the Post-Office Department, with only one rest, namely, in August, 1836, when the account was added up and a balance transferred to a new account. The following is the debit side of the account. April 1 66 Jan. 1" March 31, 1837, April 1" June 30, 66 66 66 March 31, 1838, 31, 2,488 16 2,746 04 2,634 93 2,187 79 2,298 13 2,450 65 66 2,422 47 *683] count: 5,515 89 *The credit side of the account ran on continuously as in the following, which is the conclusion of the ac The substance of the pleadings in the court below, and the prayers of the respective counsel, are given in the opinion of this court, and need not be here repeated. It was argued by Mr. Walter Jones, for the plaintiff in error, and by Mr. Toucey, (Attorney-General), for the United States. Mr. Jones contended, that although no quarterly balances were struck, yet an analysis of the account would show that the postmaster was in default continually. Thus, on the 30th of September, 1836, (the end of the first Jones v. The United States. quarter after the date of the bond,) the balance against him The sureties were therefore discharged under the operation of the act of Congress above recited. *Mr. Justice DANIEL delivered the opinion of the court. [*684 The case in the Circuit Court was an action of debt, instituted to recover the amount of a default claimed by the United States of Walter F. Jones, as postmaster of the Borough of Norfolk, in the State of Virginia. The said Walter F. Jones, having been appointed postmaster of Norfolk, executed, on the 8th day of August, in the year 1836, his bond, with the plaintiff in error and one Duncan Robertson as his sureties, in the penalty of ten thousand dollars, conditioned for the faithful performance of the duties of his office. In the year 1839, Walter F. Jones was removed from office, the United States claiming against him a balance of $5,515.89 as due from him on the 31st of August in the year last mentioned; and to recover this balance, the action on his official bond was instituted in the Circuit Court against him and his sureties. After the institution of the suit, it was abated as to Walter F. Jones by his death; Robertson made default in the case, and as to him a writ of inquiry of damages was executed; the plaintiff in error alone appeared and made defence, upon four several pleas, as to each of which replication and issue were taken. The first plea interposed was that of condition performed generally. The second and third pleas, presenting substantially the same defence, rely upon the act of Congress of the 3d of March, 1825, entitled "An act to reduce into one the several acts establishing and regulating the Post-Office Department," and particularly upon that portion of the act which prescribes that the Postmaster-General shall obtain from the postmasters their accounts and vouchers for their receipts and expenditures once in three months, or Jones v. The United States. oftener, with the balances therein arising in favor of the General Post-Office; and that, if any postmaster, or other person authorized to receive the postage of letters, &c., shall neglect or refuse to render his accounts, and pay over to the Postmaster-General the balance due by him at the end of every three months, it shall be the duty of the PostmasterGeneral to cause a suit to be commenced against the person so neglecting or refusing; and if default be made by the postmaster at any time, and the Postmaster-General shall fail to institute suit against such postmaster and sureties within two years after such default shall be made, then and in that case the said sureties shall not be held liable to the United States, nor shall suit be instituted against them. These pleas further aver, that, subsequently to the execution of the bond of Walter F. Jones on the 8th of August, 1836, and during the year 1837, sundry defaults were made by him in failing to pay over money received by him as postmaster, and that these defaults were permitted to remain unclaimed by suit *685] up to the 12th of March, *1840, the period at which this suit was instituted; a length of time from the occurrence of those defaults comprising an interval of more than two years. The fourth plea of the defendant below is simply a general averment, that the causes of action in the declaration mentioned did not occur within two years next before the institution of the suit. The only evidence adduced in this case, on behalf of the plaintiffs below, was the account certified under the act of Congress from the Treasury Department against the postmaster, brought down to the 31st of August, 1839, exhibiting a balance in favor of the United States, at that date, of $5,515.89; and all the evidence on behalf of the defendant was a letter to him from the Postmaster-General, dated on the 19th of December, 1837, announcing the fact, that a draft had been drawn on the defendant in favor of the Treasury Department, for the sum of $5,000 in specie, and requesting the deposit of that sum with the Bank of Virginia, at Richmond, as the agent for the treasury. Upon the aforegoing pleadings and evidence, the following prayers were made. and instructions given at the trial. The attorney for the United States moved the court to instruct the jury, "that all payments made by the postmaster, Walter F. Jones, to the General Post-Office, after the execution of his official bond, on the 8th of August, 1836, and subsequently to any default at the end of a quarter, without any direction by him or by the Postmaster-General as to the ap Jones . The United States. plication of said payments, should be applied in the first instance to extinguish each successive default in the order in which it fell due; and if, by such application of said payments, the jury shall believe from the evidence that all of the defaults which occurred two years before the institution of this suit were extinguished within two years after the same were respectively committed, that the act of Congress, which limits the institution of suits against the sureties of a postmaster to two years after the default of the principal, has no application to this case, and cannot affect in any degree the plaintiffs' right to recover in this action." And the counsel for the defendant moved this court to instruct the jury,-"1st. That if the jury shall find that the said deputy postmaster, Walter F. Jones, committed any default or defaults in office at any time or times more than two years before the commencement of this suit, and that such default or defaults were then known to the Postmaster-General; and, further, than the said deputy postmaster continued in default to an equal or greater amount thenceforth, until he was discharged from office; that the Postmaster-General failed to institute, or cause to be in- [*686 stituted, a suit against the said deputy postmaster and his sureties for two years from and after such default or defaults were made, then the defendant, Thomas Ap Catesby Jones, one of the sureties of the said deputy postmaster, is not liable to the United States, nor can any suit be maintained against him on the official bond of the said deputy postmaster, wherein the defendant was bound as one of the sureties for any default or defaults committed by the said deputy postmaster. "2d. That as this suit was commenced on the 12th of March, 1840, the jury should inquire whether any default was committed by the said deputy postmaster, Walter F. Jones, in not duly paying over any balance or balances of money which became due from him on account of collections by him officially made before the end of the quarter next preceding the 12th of March, 1838, namely, the quarter ending on the 31st of December, 1837. And if the jury shall find that the said deputy postmaster was so in default in not duly paying over such balances or balance due from him on account of collections by him officially made before the end of the quarter ending the 31st of December, 1837, and that such default was then known to the Postmaster-General, then they should apply, towards the discharge of such balances or balance, all such payments made by the said deputy postmaster during his continuance in office subsequently to the 31st of December, 1837, as they shall find to have been |