WOODBURY, Circuit Justice.
The first exception taken to the ruling of the district court, is the instruction to the jury, “that the order of the postmaster-general of May, 1837, by which Todd was directed to retain the money which he collected in his own hands, instead of depositing it in a bank, as had been before required, did not exonerate his sureties from their responsibility— but that they continued liable for his defaults, after that order, to the same extent that they were before.” It is sufficient to remark on this, that the condition of the bond, signed by the plaintiffs in error, is, that “the said Thomas Todd shall well and truly execute the duties of the said office according to law and the instructions of the postmaster-general.” The only exceptions, which can be raised to this instruction, under that' condition, are two. The first one is, that this order was issued after the date of all the bonds, and that the condition does not apply to subsequent orders. But there are no words, limiting its application to past orders; and, in the nature and reason of the case, it should not be limited to past orders any more than to past laws. The object is to preserve obedience, and uniformity, and harmony among that class of officers; and hence, orders given, — whether after or before the bond — are general, and require a strict compliance, till the whole term of office of the postmaster expires. The term of office is the limitation during which the orders may be issued; else both obedience and uniformity, and all improvement in former orders or regulations, by experience or discoveries, are defeated, as to all old postmasters under their existing bonds. It follows, also, that if new laws can be passed, and must be obeyed, and the sureties held, if passed during the continuance of the term of office, new orders may be, when the language in [865] the condition, applicable to both, is the same; and furthermore, that a new law, however great ah improvement, would, in many respects, become inefficient and unequal, and not uniform in its operation, if the postmaster-general could not issue a new order, directing the details of its execution, which his deputies were bound to obey, and their sureties held responsible for. Congress have expressly authorized the postmaster-general to issue such orders, and to make suitable regulations, it being impossible to legislate with sufficient minuteness for every thing in such a department, more than in the army or navy. Act 1825 [4 Stat. 102], c. 64, § 1. In all these, however, the orders issued must, of course, not be in conflict with any law. And hence, the other exception, which can be made in some cases with success, is made here, and is next to be considered. It is, that the new order is one contrary to law.
It is undoubtedly true, that the condition, requiring obedience to orders of the postmaster-general, cannot exact it to orders not justified by the acts of congress. But I can see no illegality in this order to the deputy, to retain the money collected, till drawn for by the postmaster-general, rather than to deposit it in banks. These last at that time had ceased to pay out specie, and had forfeited their situation as public depositories. Under the fiscal system of the United States, all collecting officers and their sureties are responsible, and ever have been, for the money they officially receive, till it is paid over to public creditors on some order from the treasurer, or paid to some other officer having the control over their receipts. And whether that order be to deposit it periodically with some bank or receiver-general, or be to pay it out on particular drafts, where no public depository exists by law, or the sums collected are too small for requiring a deposit of them for safety, is immaterial under the language of the bond and the spirit of the financial system which then prevailed. The sureties agree to be responsible for his fidelity in these and other matters, according to the current and changing laws of congress and the legal orders of the postmaster-general under them, during the whole of the official term, and to the amount of the penalty in the bond. Their security is, they are liable only to that amount, however much the collections in the hands of their principal may accumulate, or his other receipts as agent of the department, exceed the penalty.
The second exception is to the instruction, “That the account between Todd and the general postoffice being an open and running account, all payments made by him from time to time, in the absence of any specific appropriation by him at the time of making them, were by law appropriated to the payment and extinction of the oldest charges on the debit side of the account; that this was the general rule of law with respect to the appropriation of payments upon an open and running account, when no special appropriation was made, either by the debtor or creditor, at the time the payment was made, to any particular item of the account; that the proviso in the 37th section of the act of July, 1836 [5 Stat. 88], c. 270, which directed that payments made subsequent to the execution of a new bond, by a deputy postmaster, shall first be applied to the discharge of any balance which may be due on the old bond, unless when the debtor specially directs it to be applied to his new account, at the time of the payment — is not limited to the cases where a new bond is required at the request of the sureties, in order to be released from their suretyship — but extends to all cases where a new bond is required by the postmaster-general, or he shall deem it necessary, for any cause, to require a new bond.” The correctness of this instruction is not material to the plaintiffs, who were sureties in all the three bonds, given in behalf of Todd, and who are of course liable for all the balances, except in one respect. They might avail themselves of the statute of limitations as to the balances that were due on the first two bonds, if they have not been since legally discharged. Act 1825 [4 Stat. 103], c. 64, § 3. The limitation is two years from and after any default, and this action was brought June 1st, 1840, while the first commission and bond expired, July 2d, 1836, and the second bond, January 9th, 1837, both more than two years before suit. The third commission and bond terminated September 21st, 1839, not two years before suit On a careful comparison of dates, however, the objection to the instruction on this point is not very material as to the balance due, July 2d, 1836, because before the second bond was given, viz., on the 12th of July,. 1830, a payment was made by Todd, which reduced that balance to only $8.34. It is objected that this payment may have been made on the second bond. But this payment could not in any view be regarded as made under or upon the second bond, as that bond was not in existence till four days after, viz., the 16th of July, 1S36. As a further evidence, that this payment must have been made on account of the former balance, under the first bond, the quarter had just ended on the first of July, and he owed nothing to the department, except on that balance, till the 1st of August; after which, any thing due before and from the month of July, probably he paid on the 8th of August, as $350 were then paid; and after August had expired he paid for that month, probably, $400, as that sum was then paid. It would hardly answer to presume, that on the 12th of July he was paying money, not intended to be on account of what was already due, but in advance of what was not due, and of what he afterwards appears to have paid in [866] a different manner, when it became due. Nor is there any evidence that this payment, on the 12th of July was made, from accruing receipts, under the second bond or commission, so as to bring it within the case of Eckford hereafter examined, nor is there any such presumption, but rather the reverse, as the second bond had not been in existence, and the amount being $1.191.00, was much larger than the usual receipts since the second appointment.
In relation to the second balance, it is to be sure much larger, being $1,567, and deserves more consideration. It would be barred by the limitation of two years, from the 9th of January, 1S37, the date of the thud bond, if it had not been extinguished by the subsequent payments, which were applicable to it. They are so applicable by the express words of the 37th section of the act of 1836 [5 Stat. 8S], c. 270, even under its limited construction, as reaching only cases of new bonds given within the official term — this bond being a new one given within that term. The case of U. S. v. Eckford’s Ex’rs, 1 How. [42 U. S.] 250, is not like this; because in that case no express provision of law existed, requiring, as here, subsequent payments to be applied under a preceding bond, where no direction to the contrary was given by the debtor. And if the $8.34 should also be held to be extinguished by force of subsequent payments on the general and equitable principle at common law, that the payments of a debtor, where no specific direction is given by him at the time, shall be applied to the oldest debts, it would not conflict with the Case of Eckford, unless it appeared that this sum and all these subsequent payments were made from subsequent and accruing receipts, about which there is no evidence in the cause. Other cases hold, that the creditor has his election, and may apply the payment before suit to any debt he pleases, where a special statute or the debtor gives no direction how to apply it. 1 Mer. 606; 2 Strange, 1194; 14 East, 239; 5 Taunt. 596; Postmaster General v. Norvell [Case No. 11,310]; 1 McLean, 497 [Myers v. U. S., Case No. 9,996]; U. S. v. Kirkpatrick, 9 Wheat. [22 U. S.] 720.
The general principle in favor of an application of the payment to the oldest debt, where nothing has been done or directed, seems too well settled to be overturned by straining the case of Eckford beyond the facts proved here, and for only the sum of $8.34. 1 Ld. Raym. 287; Peake, 64; Mayor of Alexandria v. Patten, 4 Cranch [8 U. S.] 317; Field v. Holland, 6 Cranch [10 U. S.) 8, 27; Postmaster General v. Furber [Case No. 11,308]; [U. S. v. Eckford’s Ex’rs] 1 How. [42 U. S.] 250; Gratiot v. U. S., 15 Pet. [40 U. S.] 336; Devaynes v. Noble, 1 Mer. 606. A rule in accordance with this principle existed under the civil law. Dig. B. 46, tit. 3, § -5. For if neither the creditor nor the debtor applies the payment, nor a special statute, the law ought to do it, and, as a general rule, to the oldest debt. Myers v. U. S. [Case No. 9,996]. Either- of the above rules would decide this point in favor of the United States. It is true, that some exceptions exist to these principles; but I do not think that any of them include the present case. See some in [U. S. v. Eckford’s Ex’rs] 1 How. [42 U. S.] 250, and 5 Mason, 85 [U. S. v. Wardwell, Case No. 16,640]; U. S. v. January, 7 Cranch [11 U. S.] 572; Gilp. 126 [Postmaster General v. Norvell, Case No. 11,310]; [Farrar v. U. S.] 5 Pet. [30 U. S.] 373.
The test of the exception, in the case of different bonds and commissions, is, that money actually collected and accruing under one, cannot be applied to the other without the consent of all concerned. Myers v. U. S. [Case No. 9,996]. But here there is no evidence whatever, that the small balance due after the 12th of July, or the payment then made, was from money accruing under the second appointment. Indeed, as before shown, the presumption is evident that it could not be, as it was so much larger than the ordinary receipts during only twelve days. Nor do I mean by this conclusion to impugn the case of U. S. v. Giles, 9 Cranch [13 U. S.] 212, any more than the case of U. S. v. Eckford’s Ex’rs [1 How. (42 U. S.) 250], because the former decision holds merely that the sureties in each official bond are liable only for defaults happening within the term each covers. And the whole inquiry, as to the correctness of this second instruction, is founded entirely on the idea, that such a principle is applicable here, though the sureties in all the bonds are the same. U. S. v. Kirpatrick, 9 Wheat. [22 U. S.] 720. And I give the sureties the benefit of it, in order that they may avoid the balance due under each bond by the statute of limitations, if it has not been paid or discharged since, in conformity to sound legal principles and the provision of the act of congress specially referring to a part of it. This is treating sureties liberally, as the cases require (Miller v. Stewart, 9 Wheat. [22 U. S.] 680), though I think that the law in many cases has been construed quite beyond any reasonable intention of its makers or of parties to contracts, from a natural sympathy in their behalf.
The third and last exception is to the instruction — “That the sum of $1,165.61, which was received by Todd from other postmasters, under orders from the postmaster-general directing the same to be deposited in his hands, was covered by that clause in his bond, which required him to account for all moneys, bills, bonds, notes, receipts, and other vouchers, which he, as agent of the general postoffice, should receive for the use and benefit of the general postoffice; that the order of the postmaster-general, directing him to receive and hold these moneys for the [867] United States, was authorized by the 3d section of the act of March 3, 1836 [5 Stat 80], c. 270; and that his sureties were responsible for his default in not paying over and accounting for the same, as they are for his not accounting for the money received in the ordinary discharge of his duties as postmaster.” It is to be remembered, that the postmasters in different cities or towns are in fact and in law deputies, or agents of the postmaster-general. It was once contended, that he on that account was liable for their default. But their agency being public, and the liabilities of each regulated by law without imposing such a responsibility over on han, i.e has not in such cases been made chargeable for their misfeasances. Thus it was held in the following cases,' after much deliberation, that the postmaster-general is not liable personally or officially for the neglect or wrong of a deputy or of a letter or mail carrier. Whitfield v. Lord Le Despencer, Cowp. 754; Lane v. Cotton, 1 Ld. Raym. 646, 12 Mod. 472; 3 P. Wms. 394, note; Story, Ballm. § 461 et seq. They are still, however, his agents, and are liable to be called on as such to transact business for him, connected with his official duties. One of his duties is to collect and disburse the money received for postage, and to keep it safely till expended. Hence he can make his deputies agents for this purpose, within convenient limits; and the sureties, as in respect to the collections of each deputy at his own office, do not act in the dark or at random, as to their.responsibilities, because they cannot be held liable beyond the amount of the penalty In their bond, and they knowingly and deliberately stipulate to be liable to the extent of that. Besides this, in the bond itself, the acting of postmasters as agents is thus recognized:— Said Todd “shall also faithfully do and perform, as agent for the general postoffiee all such acts and things as may be required of him by the postmaster-general, and moreover shall faithfully account with the United States for all moneys, bills, bonds, notes, receipts, and other vouchers, which he as agent aforesaid shall receive for the use and benefit of said general postoffice.” The act of 1836 [5 Stat. 79], c. 270, § 1, which requires the revenues and debts due to the postoffice department, to be paid into the treasury of the United States, and the money disbursed, to be drawn therefrom, does not refer to each individual collection or payment, but the aggregate quarterly and yearly collections and expenditures. This is, in order to make them appear on the exhibit of the annual receipts and expenditures of the country, and also in the annual appropriations, which was not the case formerly. This is effected by large “covering warrants,” quarterly or otherwise, and not by a deposit and warrant in each individual case over the Union; else the labor and details would-be insuperable, without a great additional force in the department. The collections, then, till disbursed, are kept as formerly by the postmaster-general with his deputies, or, when safe deposit banks exist, with them. The responsibility of depositing is usually small on this account, as the current demands of the deposit, being greater, or as great as the receipts, quickly and constantly absorb most of the receipts.
There are several other points, stated in argument, and at the trial. But as these alone were made at the time of the charge to the jury, and as the rulings or opinions concerning others, such as the accounts of Todd being all open and running, or the bond being joint, instead of joint and several, even if incorrect, do not reach and alter the merits of .the case, as decided on other grounds, it is unnecessary to enlarge upon them. For the reasons I have given, let the judgment below be affirmed.