Postmaster

general to pros. ecute deputies neglecting to settle, and

SEC. 24. And be it further enacted, That if any deputy postmaster, or other person authorized to receive the postage of letters and packets, shall neglect or refuse to render his accounts, and pay over to the Postmaster General, the balance by him due, at the end of every three months,

scribed by law, although he is thereby rendered personally chargeable by the United States with such balances, is not a discharge of such postmasters or their sureties from liability on their official bonds. Nor is an order from the postmaster general to retain those balances, directed to the postmaster, until they should be drawn for by the general post-office. Locke v. The Postmaster General, 3 Mason's C. C. R. 446.

The provisions of law enjoining on the postmaster general to require from his deputies regular periodical settlements and payments, are directory to him, but they form no condition in the contract between the postmasters and their sureties. Ibid.

The postmaster general cannot sue in the federal courts under that part of the constitution which gives jurisdiction to those courts in consequence of the character of the party, nor is he authorized to sue by the judiciary act. He comes into the courts of the United States under the authority of an act of Congress, the constitutionality of which rests upon the admission that his suit is a case arising under a law of the United States. Osborn et al. v. The Bank of United States, 9 Wheat. 738; 5 Cond. Rep. 741. The act of Congress, for regulating the post-office department, does not, in terms, discharge the obligors, in the official bond of a deputy postmaster, from the direct claim of the United States upon them, on the failure of the postmaster general to commence a suit against the defaulting postmaster, within the time prescribed by law. Their liability, therefore, continues. They remain the debtors of the United States. The responsibility of the postmaster general is superadded to, not substituted for, that of the obligors. Dox et al. v. The Postmaster General, 1 Peters, 323.

The claim of the United States, upon the official bond of a postmaster, and upon all the parties thereto, is not released by the laches of the postmaster general, to whom the assertion of this claim is entrusted by law. Such laches have no effect, whatsoever, on the claims of the United States, as well on the sureties, as upon the principal in the bond. Ibid.

The circuit court of the United States for the District of Columbia, has a right to award a mandamus to the postmaster general of the United States, requiring him to pass to the credit of certain contractors for carrying the United States mail, a sum found to be due to them, by the solicitor of the treasury of the United States, the solicitor acting under the provisions of a special act of Congress. The mandamus does not seek to direct or control the postmaster general in the performance of an official duty, partaking in any respect of an executive character; but to enforce the performance of a mere ministerial act, which neither he, nor the President, has any authority to control. Kendall, Postmaster General v. The United States, on the relation of Stockton and Stokes, 12 Peters, 524.

The distinction between the relation of a postmaster to his sworn assistant acting under him, and between master and servant generally, has long been settled; and though the latter relation might sanction the admission of evidence in an action against the postmaster, to show the neglect of the assistant, if it is intended to charge the postmaster with the neglect of the assistant, the pleading must be made up according to the case; and his liability will then only result from his neglect in not properly superintending the discharge of their duties in his office. Dunlop v. Monroe, 7 Cranch, 242; 2 Cond. Rep. 484.

Where there are items of debit and credit, in a running account between the postmaster general and the deputy postmasters, in the absence of any specific appropriation by either party, the credits are to be applied to the discharge of the debits antecedently due, in the order of the account. Postmaster General v. Furber, 4 Mason's C. C. R. 333.

The official bonds taken by the postmaster general from his deputies are valid; and the omission to bring suits on such bonds, for the defaults of the principal in such a bond, does not discharge the sureties. Postmaster General v. Reeder, 4 Wash. C. C. R, 678.

The mere omission to bring suit on such official bonds, by the postmaster general, against a deputy postmaster, is not, per se, evidence of fraud. Ibid.

The giving a new official bond by a deputy postmaster, does not discharge his sureties under the old bond, for the past or subsequent defaults of the postmaster. Ibid.

The order of the postmaster general, to the deputy postmaster, not to remit the money he may receive, but to retain it to answer his drafts, does not discharge the sureties. Ibid.

The equity rule of limitations applied to bonds where there has been no demand for twenty years, is a mere presumption of payment, not an absolute limitation. Postmaster General v. Rice, Gilpin's D. C. R. 562.

The provisions of the act of March 3, 1825, releasing the sureties of a deputy postmaster where suit is not brought within two years after a default, do not apply to a default which occurred before the passing of the act. Ibid.

The law which limits suits by the postmaster general against sureties, to two years after a default of the principal, does not operate in cases of balances unpaid at the end of a quarter, which are subsequently liquidated by the receipts of a succeeding one. Postmaster General v. Norvel, Gilpin's D. C. R.

131.

A bond given by a postmaster, with sureties, for the performance of official duties, does not constitute a binding contract, until approved and accepted by the postmaster general. Ibid.

The reception and detention of an official bond, by the postmaster general for a considerable time, without objection, is sufficient proof of its acceptance. Ibid.

The return of a bond to the principal obligor, by the postmaster general, for the purpose of obtaining additional security, affords no proof that it was not accepted; nor does it amount either to a surrender or cancelling of it. Ibid.

The postmaster general has a right to require a bond from a deputy postmaster, for the faithful performance of his duties, although such bond is not expressly required by law. Postmaster General v. Rice, Gilpin's D. C. R. 554.

it shall be the duty of the Postmaster General to cause a suit to be commenced against the person or persons so neglecting or refusing: and if the Postmaster General shall not cause such suit to be commenced Penalty on his neglect within six months from the end of every such three months, the balances thereof. due from every such delinquent, shall be charged to, and recoverable from, the Postmaster General.

SEC. 25. And be it further enacted, That all pecuniary penalties and forfeitures incurred under this act, shall be, one half for the use of the person or persons informing and prosecuting for the same, and the other half to the use of the United States.

SEC. 26. And be it further enacted, That it shall be lawful for the Postmaster General, to make provision, where it may be necessary, for the receipt of all letters and packets intended to be conveyed by any ship or vessel, beyond sea, or from any port of the United States to another port therein; and the letters so received shall be formed into a mail, sealed up, and directed to the postmaster of the port, to which

Appropriation of penalties, &c.

Postmaster

General to make conveyance of provision for the letters by sea.

The provisions of the act of March 3, 1825, substitute a certified statement of the settled account as evidence in suits against deputy postmasters, in lieu of the certified account current required by the act of April 30, 1810. Ibid.

A mail carrier is within the 18th section of the " act regulating the post-office establishment," subjecting to a penalty in certain cases, persons employed in any departments of the general post-office. United States v. Belew, 2 Brockenb. C. C. R. 280.

The United States instituted a suit against the Bank of the Metropolis, claiming twenty-seven thousand eight hundred and eighty-one dollars and fifty-seven cents, the balance, according to the statements of the Treasury, due to the United States. The defendant claimed credits amounting to twenty-three thousand dollars, exclusive of interest, which had been presented to the proper accounting officers, for acceptances of the post-office department of the drafts of mail contractors, and an item of six hundred and eleven dollars and fifty-two cents, overdraft of an officer of the post-office department, on the Bank of the Metropolis. The drafts of the contractors, accepted by the post-office department, were discounted by the Bank, in the way of business; one draft was accepted unconditionally, the other drafts were accepted, "on condition, that the contracts be complied with." Held: That the Bank became the holder of the draft unconditionally accepted, for valuable consideration; and its right to charge the United States with the amount cannot be defeated by any equities between the drawers, and the postoffice. The United States v. The Bank of the Metropolis, 15 Peters, 377.

It was no matter, how the account of the drawer of the draft unconditionally accepted stood with the post-office department; whether he was a debtor or a creditor; whether the Bank knew one or the other. An unconditional acceptance was tendered to the Bank for discount. It was not the duty of the Bank to inquire how the account stood, or for what purpose the acceptance was made. All it had to look to was the genuineness of the acceptance, and the authority of the officer to give it. Ibid.

The rule is, that the want of consideration between the drawer and the acceptor is no defence against the rights of a third party, who has given a consideration for the bill: and this, even though the acceptor has been defrauded by the drawee, if that be not known to such third party. Ibid.

If one purpose making a conditional acceptance only, and commit that acceptance to writing, he should be careful to express the condition therein. He cannot use general terms, and then exempt himself from liability, by relying upon particular facts which have already happened, though they are connected with the conditional acceptance. By express terms the acceptor might have guarded against any construction, other than that which was intended by, or was the apparent meaning of the words of the acceptance. It matters not what the acceptor meant by a cautious and precise phraseology, if it be not expressed as a condition. Ibid.

Nothing out of the condition expressed in the words of the acceptance can be inferred; unless it be in a case where the words used are so ambiguous as to make it necessary that parol evidence should be resorted to, to explain them. Ibid.

If two persons deal in relation to the executory contracts of a third, and one of them, being the obligee, induces the other to advance money, upon condition that his contracts be complied with," and he knows that forfeitures have been already incurred by the obligor, for breaches of his contract, and does not say so, he shall not be permitted afterwards to get rid of his liability, by saying, "I cannot pay you, for when I accepted there was already due to me from the drawer of the bills more than I accepted for; you did not choose to make inquiry." Ibid.

The terms "accepted, when the contracts of the drawer of the bill are complied with," are not retroactive; they do not refer to past transactions, to the subsequent performance of the contractors. Ibid.

The postmaster general had the same power, and no more, over the credits allowed by his predecessor, if allowed within the scope of his official authority, as given by law to the head of the department. This right in an incumbent of reviewing a predecessor's decisions, extends to mistakes in matters of fact, arising from errors in calculation, and to cases of rejected claims in which material testimony is afterwards discovered and produced. But, if a credit has been given, or an allowance made by the head of a department, and it is alleged to be an illegal allowance, the judicial tribunals must be resorted to, to construe the law under which the allowance was made; and to settle the right between the United States and the party to whom the credit was given. It is no longer a case between one officer's judgment, and that of his successor. No statute is necessary to authorize the United States to sue in such a case. The right to sue is independent of statute, and it may be done by the direction of the incumbent of the department. The United States v. The Bank of the Metropolis, 15 Peters, 377.

Postmasters

&c. exempt from militia duty.

Letter carriers

cents for each

letter.

such ship or vessel shall be bound. And for every letter or packet, so received, there shall be paid, at the time of its reception, a postage of one cent, which shall be for the use of the postmasters, respectively, receiving the same. And the Postmaster General may make arrangements with the postmasters in any foreign country, for the reciprocal receipt and delivery of letters and packets, through the post-offices.

SEC. 27. And be it further enacted, That the deputy postmasters, and the persons employed in the transportation of the mail, shall be exempt from militia duties, or any fine or penalty for neglect thereof.

SEC. 28. And be it further enacted, That letter carriers shall be employed at such post-offices as the Postmaster General shall direct, for the delivery of letters in the places, respectively, where such post-offices are may receive two established; and for the delivery of each such letter, the letter carrier may receive of the person to whom the delivery is made, two cents: Provided, That no letter shall be delivered to such letter carrier for distribution, addressed to any person who shall have lodged at the postoffice a written request, that his letters shall be detained in the office. And for every letter lodged at any post-office, not to be carried by post, but to be delivered at the place where it is so lodged, the deputy postmaster shall receive one cent of the person to whom it shall be delivered. SEC. 29. And be it further enacted, That this act shall be in force, shall be in force. from the first day of June next. APPROVED, May 8, 1794.

When this act

CHAP. XXIV.—An Act providing for raising and organizing a Corps of Artillerists and Engineers.

SECTION 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the number of seven hundred and sixty-four non-commissioned officers, privates and artificers, to serve as privates and musicians, shall be engaged for the term of three years, by voluntary enlistments; and that the proper proportion of commissioned officers shall be appointed to command the

same.

SEC. 2. And be it further enacted, That the aforesaid commissioned and non-commissioned officers, privates, artificers and musicians, shall be incorporated with the corps of artillery now in the service of the United States, and denominated the corps of artillerists and engineers, and that the entire number of the said corps, exclusively of the commissioned officers, shall be nine hundred and ninety-two.

SEC. 3. And be it further enacted, That the organization of the said corps be as herein mentioned, to wit: One lieutenant-colonel commandant, one adjutant, one surgeon; four battalions, each to consist of one major, one adjutant and paymaster, and one surgeon's mate; and four companies, each to consist of one captain, two lieutenants, two cadets with the pay, clothing and rations of a sergeant, four sergeants, four corporals, forty-two privates, sappers and miners, and ten artificers to serve as privates, and two musicians.

SEC. 4. And be it further enacted, That the additional commissioned officers, non-commissioned officers, privates, artificers and musicians, by this act directed to be raised, shall receive the same pay and allowances in all respects, as the troops already in the service of the United States; and they shall also be governed by the same rules and articles of war, which have been, or may be by law established.

SEC. 5. And be it further enacted, That it shall be the duty of the Secretary of War to provide, at the public expense, under such regulations as shall be directed by the President of the United States, the necessary books, instruments and apparatus, for the use and benefit of the said corps.

President how

corps.

SEC. 6. And be it further enacted, That the President of the United States shall cause such proportions of the said corps to serve in the to employ said field, on the frontiers, or in the fortifications of the sea-coast, as he shall deem consistent with the public service. APPROVED, May 9, 1794.

CHAP. XXV.—An Act supplementary to "An act to provide for the Defence of certain Ports and Harbors in the United States."

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the port and harbor of the city of Annapolis be fortified, in such manner, and at such time or times, as the President of the United States may direct: and that it shall be lawful for the President of the United States to employ a garrison in the said fortification, provide cannon and equipments, and receive from the state of Maryland, a cession of the lands on which the said fortification, and its necessary buildings, may be erected, agreeably to the second and third sections of the act to which this is a supplement.

APPROVED, May 9, 1794.

STATUTE I.

May 9, 1794.

Act of March

20, 1794, ch. 9. napolis to be fortified and garrisoned.

Harbor of An

On what condition.

STATUTE I.

CHAP. XXVII.-An Act directing a Detachment from the Militia of the United May 9, 1794.

States.

[Expired.] President of the U. States to

require of the states 80,000 effective militia.

SECTION 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the President of the United States be, and he is hereby authorized to require of the executives of the several states, to take effectual measures, as soon as may be, to organize, arm and equip, according to law, and hold in readiness to march at a moment's warning, the following proportions, respectively, of eighty thousand effective militia, officers included, to wit: From the state of Georgia, one thousand three hundred and Apportionment. thirty-three; from the state of South Carolina, three thousand five hundred and fifty; from the state of North Carolina, seven thousand three hundred and thirty-one; from the State of Kentucky, one thousand five hundred and thirty-two; from the state of Virginia, eleven thousand three hundred and seventy-seven; from the state of Maryland, five thousand four hundred and eighteen; from the state of Delaware, one thousand two hundred and fifty-six; from the State of Pennsylvania, ten thousand seven hundred and sixty-eight; from the State of New Jersey, four thousand three hundred and eighteen; from the state of New York, seven thousand nine hundred and seventy-one; from the state of Vermont, two thousand one hundred and thirty-nine; from the state of Connecticut, five thousand eight hundred and eighty-one; from the state of Rhode Island, one thousand six hundred and ninety-seven; from the state of Massachusetts, eleven thousand eight hundred and eighty-five; from the state of New Hampshire, three thousand five hundred and forty-four.

SEC. 2. And be it further enacted, That the detachments of militia How officered. aforesaid shall be officered out of the present militia officers, or others, at the option and discretion of the constitutional authority in each state respectively.

SEC. 3. And be it further enacted, That the President may, if he judges expedient, authorize the executives of the several states to accept any independent corps of cavalry, artillery or infantry, as part of the detachments aforesaid, provided they shall voluntarily engage as corps in the service.

President may

accept certain corps as volun

teers.

Time of ser.

SEC. 4. And be it further enacted, That the said militia shall not be compelled to serve a longer time, in any one tour, than three months vice.

ance.

Pay and allow. after their arrival at the place of rendezvous: And that, during the time of their service, besides their pay and other allowances, which shall be the same as the troops on the military establishment of the United States, they shall receive at the rate of one dollar and sixty-six cents, for clothing, per month.

SEC. 5. And be it further enacted, That the President of the United States be requested to call on the executives of the several states, to take the most effectual means, that the whole of the militia, not comprised within the foregoing requisition, be armed and equipped according to law.

SEC. 6. And be it further enacted, That this act shall continue and be in force, for the space of one year from the passing thereof, and from thence to the end of the next session of Congress, and no longer. APPROVED, May 9, 1794.

CHAP. XXVIII.-An Act to erect a Lighthouse on the headland of Cape Hatteras; and a lighted Beacon on Shell Castle Island in the harbor of Occacock in the state of North Carolina.

SECTION 1. Be it enacted by the Senate and House of Representa tives of the United States of America in Congress assembled, That as soon as the jurisdiction of so much of the head-land of Cape Hatteras in the state of North Carolina, as the President of the United States shall deem sufficient and most proper for the convenience and accommodation of a lighthouse shall have been ceded to the United States, it shall be the duty of the Secretary of the Treasury to provide by contract which shall be approved by the President of the United States, for building a lighthouse thereon of the first rate, and furnishing the same with all necessary supplies, and also to agree for the salaries or wages of the person or persons who may be appointed by the President for the superintendence and care of building said lighthouse: And the President is hereby authorized to make said appointments. That the number and disposition of the lights in the said lighthouse shall be such, as may tend to distinguish it from others, and as far as practicable, to prevent mistakes in navigators.

SEC. 2. And be it further enacted, That the Secretary of the Treabe authorized to provide by contract, which shall be approved by sury the President of the United States, for building on an island in the har bor of Occacock, called Shell Castle, a lighted beacon of a wooden frame fifty-five feet high, to be twenty-two feet at the base, and to be reduced gradually to twelve feet at the top exclusively of the lantern, which shall be made to contain one large lamp with four wicks, and for furnishing the same with all necessary supplies. Provided, That no such lighted beacon shall be erected, until a cession of a sufficient quantity of land on the said island shall be made to the United States by the consent of the legislature of the state of North Carolina.

SEC. 3. And be it further enacted, That sufficient monies be appropriated for the erecting and completing the buildings aforesaid out of any monies heretofore appropriated which may remain unexpended, after satisfying the purposes for which they were appropriated, or out of any monies which may be in the treasury not subject to any prior appropriation.

APPROVED, May 13, 1794.

CHAP. XXXI.-An Act for erecting a Lighthouse on the Island of Seguin in the district of Maine, and for erecting a beacon and placing three buoys at the entrance of Saint Mary's river, in the state of Georgia.

SECTION 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That it