Conceding that the evidence was sufficient to authorize the jury to find that the letter actually arrived at the post office in Rome, yet it was, in our opinion, utterly insufficient to sustain the action of the plaintiff.
First. The defendant is clearly not liable for the malfeasance or embezzlement of his clerks or deputies ; and it seems to be the better opinion, also, that a postmaster is not liable even for their negligence. He is a public officer or agent of the government, and as such the rule of respondeat superior does not apply to him. He is allowed and required to appoint sub-agents, who become, by such appointment, also agents of the government : and in this respect the liability of the superior does not vary essentially from the case where private agents employ sub-agents at the request of their principal. [Story on Agency, §§ 319, 320, 321, 313. Dunlop v. Monroe, 2 U. S. Cond. Rep. 461, 2, 3. 2 Kents Com. 610. 3 Wilson, 443. 5 Burr. 2709. 4 Mass. Rep. 378. Cowper, 754, 765.)
The rule that makes the principal liable for the acts of his agent is based upon principles of public policy and convenience, but it is far from being a doctrine of universal application. [See Coon v. The Syracuse and Utica Railroad Co., ante, p. 231. Law v Cotton, 1 Ld Raym. 646.) In order therefore to charge the defendant, the loss must have been occasioned by his own act. If it resulted from the malfeasance or negligence of his sub-deputies he is not liable: at least unless it can be proved that such deputies are notoriously unfit for the station, and thus charge the defendant with negligence in making the appoint*636ment. (Story on Agency, 319. Story on Bailm. 463, 463. 2 Kents Com. 610.) No such proof was offered in this case; nor was there any proof of negligence on the part of the defendant himself, in the general conduct of the office, unless it be negligent in him to keep his office in a room some parts of which were devoted to other kinds of business. That fact alone could scarcely be considered as sufficient to subject him to the charge of negligence.
Secondly. Even if the postmaster should be deemed responsible for losses occasioned by the negligence of his sub-deputies, the evidence was not sufficient to sustain the plaintiff’s case. The postmaster is only held to ordinary diligence in the discharge of the duties of his office ; (Story on Bailm 463. 2 Kents Com. 610;) and can only be made liable for losses occasioned by a want of such diligence. And the burden of proof is upon him who alledges negligence, to establish the fact. (Story on Bailm. 410, 411. 21 Pick. 254. 1 Esp. Rep. 314. 1 Cowen, 109. 9 Wend. 268. 2 Kent, 587.) He must also show that the loss was the direct consequence of the particular negligence proved. It matters not that there may have been official misconduct on the part of the defendant. Unless it be shown that the plaintiff’s loss was the result of such misconduct, he cannot recover. In this case it does not appear by the proof how, or when, or where, the letter was lost. Whether stolen by a stranger, embezzled by a clerk, or delivered by mistake to the wrong person, there is no proof to show. If lost by either method, the defendant is not liable, unless he has been negligent, and the loss was the consequence of his negligence.
If we were satisfied that the defendant had at times been negligent in the discharge of his official duties, it would still be impossible to decide that the loss in this case was the result of such negligence, until it be proved how the loss occurred. There was therefore an entire failure of the necessary proof to sustain the action; and the plaintiff was rightfully nonsuited. (3 Hill, 531. 25 Wend. 440.)
It was insisted by the counsel for the plaintiff that the defendant was liable upon a count in trover. If the facts do not show *637that the letter was lost through negligence, they show still less a conversion. No demand or refusal was proved, and hence the defendant was not called upon to show what had been done with the letter.
A new trial must be denied.