Postmaster General v. Ustick

■WASHINGTON, Circuit Justice. Whether the mere negligence of the postmaster general to comply with the duties so explicitly imposed upon him, of calling his deputies to account, and commencing suits against them, at the periods required by that law, or at other reasonable periods, is sufficient to discharge the sureties for such deputies, is a question of great difficulty and of vast magnitude, as well to the United States, as to the individual sureties for those deputies. It is one which I think need not be decided in this case; and I feel no disposition to give an opinion upon it until it does become necessary. The above plea, however, goes farther than alleging negligence and breach of official duty by the postmaster general. It not only avers his neglect to commence suits against Ustick for his alleged defaults, and to give notice of such defaults to the sureties, but that these omissions were prac-tised fraudulently. This allegation being admitted by the demurrer, we are brought to the question, whether the omissions of the postmaster general stated in this plea, having proceeded from fraudulent motives, tending to the injury of the sureties, they are not discharged ? I am of opinion they are. The plea in this case places the defence upon the broad ground of actual as well as of constructive fraud, and if issue had been taken on the plea, and the defendant had proved actual fraud, as for instance, declarations by the postmaster general to the sureties, tending to mislead them respecting the defaults of the principal, or an industrious concealment from the sureties, of the delinquencies of their principal, by reason of which they were prevented from averting the evil, or of saving themselves, there can be no doubt, I think, that the plaintiff could not have claimed a judgment in his favour against them, but would be estopped by his own fraudulent conduct. But the demurrer admits the fraud as broadly as the plea avers it, and I am therefore of opinion that the judgment must be given for the defendant upon this plea.