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John v. Williams

THIS case was brought up by writ of error from the District Court of the United States for the eastern district of Texas.

Mr. Hughes, of counsel for John A. Williams, suggested that the judgment of the said District Court was in fact against his client; and that, after said judgment, the said Williams filed his assignment of errors, and applied for a writ of error; and that by a clerical mistake the said Williams was made defendant in error, and J. W. Hodge, John W. Hunter, Haywood Hunter, Thomas Coleman, and Young Coleman, plaintiffs in error.

Mr. Hughes then moved the court to amend the said writ of error, or that the said writ of error, by reason of said clerical mistake, be dismissed for want of jurisdiction.

Mr. Chief Justice TANEY delivered the opinion of the court.

title: John v. Williams


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1482

 SEVENTIETH C ONGRESS. SESS. I L CHs. 430-432 . 1929 . 1431 the district described in the Act of Congress approved March 29, 1928 (Forty-fifth Statutes at Large, page 380), and in exchange therefor may patent to said State of Montana not to exceed an area of equal value of unr eserve d publ ic lan d withi n the State of Mon tana surveyed and nonmineral in character : Provi ded, That be fore any such exchange is effected notice of the contemplated exchange shall be published once each week for four successive weeks in some news- paper of general circulation in the county or counties in which may be situated the lands to be given in such exchange. Lands conveyed to the United States under this Act shall, upon acceptance of title, become subject to the provisions of said Act of March 29, 1928. Approved, March 1, 1929. CHAP. 431 .-An Act To extend the times for commencing and completing the construction of a bridge across the Missouri River at or near Randolph, Missouri. Be it enacted by the Senate and House of Representatives of the United States o f America in Congress assembled, That the times for commencing and completing the construction of the bridge authorized by the Act of Congress approved May 24, 1928, to be built by The Kansas City Southern Railway Company across the Missouri River at or near a point approximately one mile southeast of Randolph, Missouri, are hereby extended one and three years, respectively, from May 24, 1929. SEC. 2. That the right to alter, amend, or repeal this Act is hereby expressly reserved. Approved, March 1, 1929. Ante, p.380. Proviso. Publication of pro - posed exchange. Leases for grazing, etc., on. Ante, p. 380. M arch 1,19 29 . [II. R. 16026 .1	[Public, No. 882.] Missouri River . Time extended for bridging, at Randolph, Mo. Ante, p. 729. Amendment . CHAP. 432 .- An Act Autho rizing the H awesvi lle an d Canne lton B ridge March 1, 1920. Company, its successors and assigns, to construct, maintain, and operate a [x .R. 16 565 .]	bridge across the Ohio River at or near Cannelton, Indiana. [Public, No. 883 .] Be it enacted by the Senate and House of Representatives of the United States o f America in Congress assembled, That in order to Ohio River. facil itate inters tate c ommerc e, imp rove th e post al ser vice, and pr o- IIawesv ille and Can - vide for military and other Hawesville and Cannelton p an on snags Coat y purposes, Cannelm ton Ind dge, a Bridge Company, its successors and assigns, be and are hereby authorized to construct, maintain, and operate a bridg e and appro aches theret o acro ss the Ohio River, at a p oint s uitabl e to t he interests of navigation, at or near Cannelton, Perry County, Indiana, constructionj in accordance with the provisions of the Act entitled "An Act to Vol.34,p.84. regulate the construction of bridges over navigable waters," approved March 23, 1906, and subject to the conditions and limitations con- tained in this Act. SEC. 2. There is hereby conferred upon Hawesville and Cannelton Right to acquire real Bridge Company, its successors' and assigns, all such rights and estate, c approaches, for locat ion, proac hes, et. power s to e nter u pon la nds an d to a cquire, conde mn, oc cupy, posses s, and use real estate and other property needed for the location, con- struction, operation, and maintenance of such bridge and its ap- proaches as are possessed by railroad corporations for railroad purposes or by bridge corporations for bridge purposes in the State in which such real estate or other property is situated, upon making just compensation therefor, to be ascertained and paid according to the laws of such State, and the proceedings therefor shall be the same Condem nation pro - as in the condemnation or expropriation of property for public ceedings. purposes in such State.

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text: Talk:John v. Williams

title: Talk:John v. Williams


text:
John v. Williams/Opinion of the Court

It appears, from the record in this case, that an action was brought in the Circuit Court of the United States for the eastern district of Texas, by John A. Williams, against Hodge and the other defendants named in the proceedings, and at the trial, the judgment was against the plaintiff.

The writ of error removing the case to this court is in the name of the defendants who succeeded in the court below, and do not desire to disturb the judgment; and the plaintiff in that court, who alleges error in the judgment, and seeks to reverse it, is made the defendant in the writ of error.

It is evident that the writ was intended to be sued out by the plaintiff in the court below, and that the names of the defendants, as plaintiffs in the writ, were used without their authority; for the errors are assigned by the plaintiff, and the bond states that a writ of error has been sued out by him, and the citation issued by the judge is directed to the defendants, and served on their counsel. And it is obvious that the writ in the name of the defendants was an oversight of the clerk by whom it was issued.

But the amendment proposed cannot be made here. An amendment presupposes jurisdiction of the case. And this court have no appellate power over the judgment of the court below, unless the judgment is brought here according to the act of Congress-that is, by writ of error; and that writ, from its nature and character, must be sued out by the party who alleges error in the judgment of the inferior court. This writ is not mere matter of form, but matter of substance, prescribed by law, and essential to the jurisdiction of this court. And if it were amended here, by making the plaintiffs in error defendants, and the defendant in error the plaintiff, it would be a new writ made here, and not the one issued by the officer appointed by law.

Upon this principle, the court have uniformly refused to amend writs of error; and this must now be regarded as the settled practice of the court. It has repeatedly refused to amend, where the partnership name of a firm was used instead of the proper names of the parties; and in like manner it has refused to amend where the name of one or more of the parties were given, and the rest designated as others joined with them, without setting out the names of those intended to be included as others.

But the precise point now before us was decided in the case of Hines v. Papin, at December term, 1857. The same error was committed in that case which had been committed in this; and the error was equally apparent, as in the present instance, from the recital in the bond and the citation and service. The case was, indeed, even stronger for the amendment than this, for counsel appeared in this court for each of the parties, and offered to amend by consent. Yet the court refused to amend, upon the ground that consent of parties would not give jurisdiction, where it was not given by law and legal process. But here there is no appearance for the parties who are named as plaintiffs in the writ of error; and if we order the amendment, we should make them defendants in a suit in which they are not bound to appear in that character. It is the duty of the party who desires to bring a case before this court, to see that proper and legal process is sued out for that purpose; and if he fails to do so, he has no right to treat the defect as a mere clerical error, for which he is not to be held responsible.

The opinion in the case of Hines v. Papin, above referred to, was delivered orally, and not reduced to writing, and consequently, does not appear in the printed reports. The court have therefore deemed it advisable to state now the practice and doctrine of the court in this respect, in order that suitors may be aware of the necessity of paying proper attention to the process they issue, and not subject themselves to costs and delay by errors which a clerk, in the hurry and pressure of other business, will unavoidably sometimes commit.

The writ of error must therefore, upon the motion before the court, be dismissed, at it cannot be amended.

title: John v. Williams/Opinion of the Court


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1483

 1432 SEVENTIETH CONGRESS. SEss. "II. CA. 432. 1929 . Tolls authorized . SEC . 3. The said Hawesville and Cannelton Bridge Company, its successors and assigns, are hereby authorized to fix and charge tolls for transit over such bridge, and the rates of toll so fixed shall be the Vol.34, p.85. legal rates until changed by the Secretary of War under the authority contained in the Act of March 23, 1906 . Acquisition author- SEC . 4 . After the completion of such bridge, as determined by the ized, after completion, by Indiana, Kentucky, Secretary of War, either the State of Indiana, the State of Kentucky, etc ' any public agency or political subdivision of either of such States within or adjoining which any part of such bridge is located, or any two or more of them jointly, may at any time acquire and take over all right, title, and interest in such bridge and its approaches, and any interest in real property necessary therefor, by purchase or by condemnation or expropriation, in accordance with the laws of either of such States governing the acquisition of private property for quedpbycondemna- public purpose s by condemna tion or exprop riation. I f at an y t im e tion. after the expiration of ten years after the completion of such bridge the same is ac quired by con demnation or e xpropriation, the amount of damages or compensation to be allowed shall not include good will, going value, or rospective revenues or profits, but shall be L imita tion s. limited to the sum of (1) the actual cost of constructing such bridge and its appr oach es, less a r easo nabl e de duct ion for actu al d epre cia- tion in value ; (2) the actual cost of acquiring such interests in real property ; (3) actual financing and promotion costs, not to exceed 10 per centum of the sum of the cost of constructing the bridge and its approaches and acquiring such interests in real property ; and (4) actual expenditures for necessary improvements. Tolls under state, SEC. 5 . If such bridge shall be taken over or acquired by the States c or public agencies or political subdivisions thereof, or by either of them as provided in section 4 of this Act, and if tolls are thereafter Rates applied to op- charged for the use thereof, the rates of toll shall be so adjusted as e ration, sinking fund, to provide a fund sufficient to pay for the reasonable cost of main- taining, repairing, and operating the bridge and its approaches under economical management and to provide a sinking fund suffi- cient to amortize the amount paid therefor, including reasonable int erest and fin ancing cost, as soon as pos sible under r easonable charges, but within a period of not to exceed twenty years from the Maintenance as free date of acquiring the same. After a sinking fund sufficient for bridge, etc ., after amor- tizin g costs. such amortization shall have been so provided, such bridge s hall thereafter be maintained and operated free of tolls, or the rates of toll shall thereafter be so adjusted as to provide a fund of not to exceed the amount necessary for the proper maintenance, repair, and operation of the bridge and its approaches under economical manage- Record of expendi- znent. An accurate record of the amount paid for acquiring the tares and receipts, bridge and its approaches, the actual expenditures for maintaining, repairing, and operating the same, and of the daily tolls collected, shall be kept and shall be available for the information of all persons in terest ed. Sworn statement of S E C. 6 . Hawesvi lle and Cannel ton Bridge Co mpany, its su ccessors construction costs, etc ., and assigns, shall, within ninety days s after the completion of such to be filed after com- pletion. bridge, file with the Secretary of War and with the highway depart- ments of the States of Indiana and Kentucky, a sworn itemized statement showing the actual original cost of constructing the bridge and its approaches, the actual cost of acquiring any interest in real property necessary therefor, and the actual financing and promotion Examination by Sec- Costs . The Secretary of War may, and upon request of the highway retary of war. department of either of such States shall, at any time within three years after the completion of such bridge, investigate such costs and determine the accuracy and the reasonableness of the costs alleged in the statement of costs so filed, and shall make a finding of the actual and reasonable costs of constructing, financing, and promoting such

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1484

 SEVENTIETH CONGRESS. SEss. II. Cas. 432, 433 . 1929 . 1433 bridge ; for the purpose of such investigation the said Hawesville and Cannelton Bridge Company, its successors and assigns, shall make available all of its records in connection with the construction, finan cing, and pr om ot io n thereof. The findings of the Secretary of Fin ding s of Secr etary War as to the reasonable costs of the construction, financing, and conclusive. promotion of the bridge shall be conclusive for the purposes men- tioned in section 4 of this Act, subject only to review in a court of equit y for fraud or gro ss mis take. SEC. 7. The right to sell, assign, transfer, and mortgage all the con erhe dto s ell, ate ., rights, powers, and privileges conferred by this Act is hereby granted to Hawesville and Cannelton Bridge Company, its successors and assi gns, and any c orpo ratio n to which or any p erson to whom such rights, powers, and privileges may be sold, assigned, or transferred, or who shall acquire the same by mortgage foreclosure or otherwise, is hereby authorized and empowered to exercise the same as fully as though conferred herein directly upon such corporation or person. conatrnction con- SEC. 8. All contracts made in connection with the construction of tracts to be let to lowest the bridge authorized by this act and which shall involve the expend,- bidder. ture of more than $5,000 shall be let by competitive bidding. Such contracts shall be advertised for a reasonable time in some news- paper of general circulation published in the States in which the bridge is located and in the vicinity thereof ; sealed bids shall be required and the contracts shall be awarded to the lowest responsible bidder. Verified copies or abstracts of all bids received and of the bid or bids accepted shall be promptly furnished to the highway contracts void for departments of the States in which such bridge is located. A failure violations. to comply in good faith with the provisions of this section shall render null and void any contract made in violation thereof, and the Secretary of War may, after hearings, order the suspension of all work upon such bridge until the provisions of this section shall have been fully complied with. SEC. 9 . The right to alter, amend, or repeal this act is hereby expressly reserved. Approved, March 1, 1929. Advertising. etc. Amen dment. March 1, 1929. CHAP. 433 .-An Act To provide for the payment of rental to the Board of	[H. R. 16701 ..] Commissioners of the Port of New Orleans of the property known as the New [Public, No. 884 .] Orleans Army Supply Base, New Orleans, Louisiana. Be it enacted by the Senate and House of Representatives of the United States o f America in Congress assembled, That the Secretary of War be, and he is hereby, authorized and directed to pay to the Board of Commissioners of the Port of New Orleans, rental in the sum of $39,686.54 for the use and occupancy of the property known as the New Orleans Army Supply Base, New Orleans, Louisiana, said rental being for the period from August 1, 1924, on which date the United States ceased to pay rental for the said property, to August 26, 1927, on which date the United States tendered a check in pay- ment for the purchase of the said property to the Board of Commis- sioners of the Port of New Orleans, from which the same was pur- ch ased, said r ental being at the rates provid ed for in co ntract s be- tween the United States of America and the Board of Commissioners of the Port of New Orleans, dated May 29, 1918, and June 19, 1918. SEC. 2. That the sum of $39,686 .54 is hereby authorized to be appropriated for the purposes set forth in section 1 out of any money in the Treasury not otherwise appropriated. Approved, March 1, 1929. Army. Payment to Board of Commissioners of Port of New Orleans, rental for use of Army Supply Bas e, New Orlea ns, La. Sum authorized for.

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1485

 1434 SEVENTIETH CONGRESS. SESS. II. Cns. 434-436. 1929. CHAP. 434 .-An Act To appro ve, ratify, and conf irm an act of the Ph ilip- pine Legislature entitled "An act amending the corporation law, act numbered 1459, as amended, and for o ther purposes," enacted November 8, 1928, ap- proved by the Governor General of the Philippine Islands December 3, 1928. Philippine Islands. Be it enacted by the Senate and House of Representatives of the Act of legislature United States o f Amer-ca in Congress assembled, That the act of the law, ratified, etc. Philippine Legislature entitled "An act amending the corporation law, act numbered 1459, as amended, and for other purposes," enacted November 8, 1928, approved b y the Governor General of the Phil- ippine Islands December 3, 192 8, be, and the same is hereby, approved, ratified, and confirmed. Approved, March 1, 1929. March 1, 1929. [H. R. 16881.] [Public, No. 885 .] March 1, 1929. [H. R. 16954.1 [Public, No. 886 .] Chowan River. Camp Manufactur- ing Company may bridge, in Gates and Hertford Counties, N. C. Constr uction. Vol.34,p.84. Right to sell, etc ., conferred. Amendment. March 1, 1929. _ [H. R. 16958.] [Public, No. 887 .] Post, p. 1707. CHAP. 435 .-An Act Granting the consent of Congress to the Camp Manu- facturing Company to construct, maintain, and operate a railroad bridge across the Chowan River, in Gates and Hertford Counties, North Carolina. Be it enacted by the Senate and House of Representatives of the United States o f America in Congress assembled, That the con sent of Congress is hereby granted to the Camp Manufacturing Company, a corporation of the State of Virginia, its successors and assigns, to construct, maintain, an d operate a r ailroad bridg e and approach es thereto across the Chowan River, at a point suitable to the interests of navigation, at a point distant in a southerly direction along the center of said river about one and three-tenths miles from the Vir- ginia-Nor th Carolina li ne, in Gates and Hertford Counties, in t he State of North Carolina, in accordance with the provisions of an Act entitled "An Act to r egulate the c onstruction of bridges over navigable waters," approved March 23, 1906. SEC. 2. The right to sell assign, transfer, and mortgage all the rights, powers, and privileges conferred by this Act is hereby granted to the Camp Manufacturing Company, a corporation of the State of Virginia, its successors and assigns; and any corporation to which, or any pe rson to whom, such rights, powers, and p rivileges may be sold, assigned, or transferred, or which shall acquire the same by mortgage foreclosure or otherwise, is hereby authorized to exercise the same as fully as though conferred herein directly upon such corporation. SEC. 3. The right to , alter, amend, or repeal this Act is hereby expressly reserved. Approved, March 1, 1929. C H A P. 4 3 6 .-An Act To provide an appropriation for the payment of claim s of persons who suffered damages from deaths, personal injuries, or property loss due to an airplane accident at Langin Field, Moundsville, West Virginia, July 10, 1921 . Be it enacted by the Senate a nd House of Re presentatives of the Army. United States o f America in Congress assembled, That the sum of Payment for proper- ty damages, etc ., at air- $16,778 .57 is appropriated, out of any money in the Treasury not plane accident, Langin Field, AV. Va otherwise appropriated, to enable the Comptroller General of the . United States to make payment of claims for property damage, death, or personal injury due to the Army airplane accident at Langin Field, Moundsville, West Virginia, July 10, 1921, to the persons enti tled thereto and in the am ounts as recom mended by the Comptroller General of the United States and as fully set forth in House Document Numbered 562, Seventieth Congress, second session, pursuant to the Act of March 5, 1928. (Forty-fifth Statutes, part 2, 7.) Approved, March 1, 1929.

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 SEVENTIETH C ONGRESS. SEss. II. CH. 437. 1929 . 1435 C H A P. 4 3 7 .-An Act T o revise the north, northeast, and east boundaries of March 1, 1929. the Yellowstone National Park in the States of Montana and Wyoming and for [s.3001 .] other purposes. [Public, No. 8ss .] Be it enacted by the Senate a nd House of Re presentatives o f t h e Yellowstone Nation- United States of America in Congress assembled, That the boundary al Park. of the Yellowstone National Park is hereby changed so as to read Boundaries changed. as fol lows "Beginning on the present north boundary line of Yellowstone Description . National Park at its intersection with the hydrographic divide immediately no rth of Pebble Creek, appro ximately at pa rk boundary monument 29 east ; thence following said divide around the head of the drainage of Pebble Creek to its intersection with the present east boundary line of Yellowstone National Park, at a point near park boundary monument 54 north ; thence southerly along said boundary line to its intersection with the hydrographic divide between Soda Butte and Cache Creeks, at a point near park boundary monument 51 north ; thence easterly along said, hydrographic divide to its intersection with the crest of the Absaroka Range ; thence southerly along said crest to its intersection with the main hydro- graphic graphic divide between Little Lamar River and the North Fork of Shoshone River, passing over Republic and Hoodoo Peaks ; thence westerly along said divide passing over Notch Mountain to its inter- section with the present east boundary line of Yellowstone National Park, at a point near park boundary monument 26 north ; thence continuing w esterly along said divide, now between t he headwaters of Lamar River and Jones Creek ; headwaters of Sedge, Bear, Cub, and Clear Creeks, and the headwaters of Jones and Crow Creeks, and betwe en Crow Creek and Middle Cr eek, to its i ntersection wi th the present east boundary line of Yellowstone National Park, approximately at park boundary monument 18 north, passing over Pyramid and Cathedral Peaks, Mount Chittenden, and Avalanche Peak, thence southerly along said boundary line to its intersection with the hydrographic divide immediately south of Middle Creek, approximately at park boundary monument 15 north ; thence westerly along said divide, now between a southern tributary of Middle Creek, headwaters of Beaverdam, Trappers, and Mountain Creeks, and the headwaters of Canfield and Eagle Creeks, to its intersection with the present east boundary line of Yellowstone National Park, at a point near park bounda ry mo nument 5 nor th, pa ssing over Reserv ation and Atkins Peaks, Mount Schurz, Mount Humphreys, and Eagle Peak ; and "Beginning on the present west boundary line of Yellowstone National Park at its intersection with the left bank of Gallatin River between park monuments 45 and 46 north ; thence northwesterly along said bank to a point opposite the hydrographic divide between Daly and Tepee Creeks ; thence northeasterly across the Gallatin River a nd along said divide, aroun d the headwat ers of Daly, B lack Butte, Specimen, and Fan Creeks, to the intersection of said divide with the present north boundary line of Yellowstone National Park, at a point near park boundary monument 11 west . "All of those lands lying within the boundary lines above described and the present north, east, and west boundary lines are hereby included in and made a part of the Yellowstone National Exclu ded lands ad ded Park ; and all of those lands of the present Yellowstone National to contiguous national Park excluded from the park are hereby included in and made forests' a par t of the cont iguous nationa l forests sub ject to all l aws and regulations applicable to national forests, and upon acceptance thereof by appropriate action of the State, jurisdiction for all pur- 54835«-29- rT 1-94

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text: 1911 Encyclopædia Britannica/Bloemaert, Abraham


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United States v. Galbraith

This was an appeal from the District Court of the United States for the northern district of California.

The history and nature of the case are stated in the opinion of the court.

It was argued by Mr. Stanton and Mr. Gillet for the United States, and Mr. Hepburn and Mr. Brent for the defendants in error.

The points and arguments which referred to many branches of the case, such as possession, &c., need not be stated. The following are the views which were taken of the alteration of the date of the grant.

Mr. Gillet's second point was this:

Where a party alters a written instrument with the intention of changing its character and effect, he destroys it, so that it can have no legal effect.

In the present case, the date of the original grant is shown to have been changed from the 12th of June to the 12th of February, 1846. The grants made as late as June of that year were the subject of question before the board and court. Those at an earlier date were not the subjects of so much suspicion. The grant itself states it was delivered to Padilla at the time when made. It is not shown to have been in other hands before it was filed in the cause. Either he or the claimants must have had it in their possession all the time. When produced, it had been altered. Padilla, or some one holding under him, must have made the alteration, and the alteration was material. This destroys its effect. The object of the alteration is apparent. Its materiality in Padilla's estimation cannot be questioned. He wished to make his grant date so far back as to be free from suspicion or question.

But, whether material or not, if the alteration was made by Padilla, or any one claiming under the grant, it is void. If altered by a stranger, if material, it vitiates the instrument.

It cannot be doubted that the alteration was made by Padilla, or some one claiming under the grant, as it went into his possession and remained with him and his grantees until filed before the land commissioners.

The effect of alterations of deeds has been settled in the following cases:

In Henman v. Dickinson, (5 Bing., 183,) it was held, 'Where a party sues on an instrument which on the face of it appears to have been altered, it is for him to show that the alteration has not been improperly made.'

This the claimants did not attempt to show in the case at bar.

In Lewis v. Payn, (8 Cowen, 71,) it was held that 'the alteration of a deed by one claiming a benefit under it, avoids it so far as respects any remedy upon it, and semb, this is so, whether the alteration be material, or a part wholly immaterial.'

'The doctrine in Cro., Car., and Nels., Ab., seems to be sound, that where an estate cannot have existence but by deed, and the deed creating it is fraudulently destroyed by the party possessing the estate, the deed is void as to any remedy in favor of the fraudulent party, and the estate which he derived under it is gone.'

In Jackson v. Molin, (15 Johns. R., 293, p. 297,) it was held, 'If the obligee himself alters the deed, although it be in words not material, the deed is void.'

In Prevost v. Gratz, (1 Pet. C. C. R., 364,) it was held, 'An erasure in a deed, not shown to have been made before execution, is sufficient to avoid it upon a plea of non est factum. The presumption in such a case is, that the alteration was made after the execution of the deed.'

In Jackson v. Osborn, (2 Wen., 555, p. 559,) it was held, that where there was an erasure or interlineation in a deed, the presumption was that it was made after execution, and it devolved upon the party claiming under it to explain, by evidence, if he insisted that it was made before execution.

The elementary writers all concur in the principles of the above cases.

It follows, that the grant in this case is void, and cannot lay the foundation of a recovery.

The counsel for the appellees replied to this argument as follows:It is also objected that the date of the grant has been altered from June 12, 1846, to February 12, 1846.

The motive of this is not easy to understand. The Californians are a simple, ignorant people. The Supreme Court of the State told them their titles would not support an action, either for the possession or the property; the squatters, who knew Spanish, kindly interpreted the judgment of the court; it merely took the land from the Californians, and gave it to them, the squatters.

Is it strange, in such perplexity, that these simpletons should misbehave and play the fool? Sometimes they have not presented their titles at all; sometimes, with two titles, they have only presented one; and repeatedly ranches have been finally confirmed to them, on which, in their despair, they themselves had taken up pre-emptions and made oath that the land was public, and uncovered by any private claim. This alteration has no doubt occurred in some such way; but whatever the mode, it is immaterial in law.

The rule on the subject of alterations is this: where an estate which may exist without deed (as a fee simple in land) is conveyed by deed, then the alteration, even although material and fraudulent, destroys the deed, but not the estate. There are many cases to this effect, but a very strong one is the case of Lewis v. Payn, 8 Cowan, 71.

Payn, the defendant, distrained for rent; Lewis, the plaintiff, replevied; the defendant avowed the taking, and justified under a lease, in which he, Payn, who had written the lease, had afterwards fraudulently inserted an additional covenant to his own advantage. A counterpart to this lease was also executed and put in evidence. On this case, the court, Savage, Ch. J., held: 'That where an estate cannot have existence but by deed, and the deed creating the estate is fraudulently destroyed by the party possessing the estate, the deed is void as to any remedy in favor of the fraudulent party, and the estate which he derived under it is gone. But where an estate which may exist without deed (for instance, a fee simple in lands) is conveyed by deed, then the fraudulent alteration or cancelling of the deed destroys the deed, but not the estate. If the deed be a quit-claim, the party loses nothing; if it contain covenants, he loses all right to an action on these; but the title is not divested. A rent charge can be created in no other manner than by deed, and the fraudulent alteration destroys both the deed and the estate.

'In this case, however, there are two leases, one for each party, both alike, and both are properly originals, as they are each executed by both parties; so that there was sufficient evidence to have authorized a recovery by the defendant without the production of the deed in his possession, unless his estate is gone in consequence of the alteration made by him in the copy of the lease, which was in his possession. Had there been but one lease, and had that been altered by Payn, as the copy in his possession was, all the estate which he takes by it would be forfeited and gone. The alteration avoids that deed, so far as he derives a benefit under it. But the estate is not destroyed, as there is still a valid deed in the possession of Lewis, which secures to him the possession of the estate granted.' 75, 76.

Here two original grants were executed at the same time; one was delivered to the grantee, and one was retained by the Government. Both of these were put in evidence; and though one be void, the other is sufficient to show that the estate passed.

To like effect, see Jackson v. Gould, 7 Wend., 364. There the plaintiff offered, first, a record of a deed, under which he claimed in ejectment, and afterwards the deed itself, which appeared to have several erasures of the word junior. The court, citing with approbation the case of Lewis v. Payn, say: 'The destruction of the deed would not have divested the estate, neither did the erasure of part of the lessor's name. The deed was good when executed, and conveyed to the grantee the title.'

See also Hatch v. Hatch, 9 Mass., top pages 293, 297, 298, where a deed altered by the consent of the defendant, who claimed under it, was read in evidence, and made the basis of a successful defence in ejectment. Also, Doe v. Hirst, 3 Starkie's Rep., 60.

Hennick v. Malin, 22 Wend., 391, decides that no subsequent alteration of a deed by the grantee, in a material or immaterial point, will avoid the deed, where the controversy relates to a title to land, and the title once vested under the deed in the grantee. In other words, the title once vested will not revert by the alteration, cancellation, or destruction, of the muniment of title, whatever may be the law of defence against the recovery on a personal contract.

See, also, 3 Preston's Abstracts, 103.

2 H. Black's, 263.

Bul. N. P., 267.

Applying this principle to the facts of this case, it will be seen that the alteration of the month of the grant, from June to February, 1846, must have been made in the original grant after it was recorded by the Mexican authorities, because there is no such alteration in the copy certified from the surveyor general's office.

The original grant, then, has this manifest alteration. If done for a fraudulent purpose, it is clearly immaterial in point of law, and the fraud could easily be detected, by reference to the record of the grant, and the date of the petition and antecedent documents.

There is no evidence to show by whom or when the date was altered.

Mr. Justice NELSON delivered the opinion of the court.

title: United States v. Galbraith


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1487

 1436 Proviso. No new roads, hotels, etc ., permitted on added a reas. Laws made appli- cable. Vol. 17, p. 32. Vol. 26, p. 222. Vol.28,p.73. Vol. 39, p. 535. Proviso. Water power Act not applicable. Vol.41,p.1063. Exchange of lands with private owners, aut hor ize d. Vol.42,p.465. U.S. Code, p. 420. Valid existing claims, etc., not affected. March 1, 1929. [S.3198.] [Public, No. 889 .] Pensions. Double, allowed for disability from avia- tion duty of Army, Navy, or M arine Corps. Vol .38, p. 940, amend- ed. SEVENTIETH CONGRESS. SEss. II. CHs . 437, 438. 1929. poses whatsoever shall be, and is hereby, ceded over the land hereby excluded from the park to the State of Wyoming : Provided, That whereas it is the purpose and intent of Congress to retain the areas hereby added to the park in its original wilderness character, there- fore, no new roads shall be constructed and no hotels or permanent camps shall be authorized or permitted to be maintained on such lands." SEC . 2. That the provisions of the Act of March 1, 1872, reserv- ing lands for park purposes, the Act of July 10, 1890, admitting the State of Wyoming into the Union, the Act of May 7, 1894, entitled "An Act to protect the birds and animals in the Yellowstone National Park and to punish crimes in said park, and for other purposes," the Act of August 2 5, 1 91 6, entitle d "An Act to e stablish a Na tional Park Se rvice, and fo r other purpos es," and all Acts supplemen tary to and amendatory of said Acts are made applicable to and extended over the lands hereby added to the park : Provided, That the pro- visions of the Act of June 10, 1920, entitled "An Act to create a Federal Power Commission, to provide for the improvement of navigat ion, the deve lopment of wat er power, the use of the pu blic lands in relation thereto, and to repeal section 18 of the River and Har bor Ap propri ation Act, approv ed Aug ust 8, 1 91 7, and for other purposes," shall not apply to or extend over such lands . SEC. 3 . That the provisions of the Act of March 20, 1922 (title 16, se ct io n 48 5, United States Code), as ame nded, shall co ntinue to be applicable to the areas included within the Yellowstone National Park by this Act, and any lands within such areas acquired by exchange thereunder shall thereupon become a part of the Yellow- stone National Park . SEC. 4. That nothing herein contained shall affect any valid existing claim, location, or entry under the land laws of the United State s, whether fo r homestead, m ineral right of way, or an y other purposes whatsoever, or shall affect the right of any such claimant, locator, or entryman to the full use and enjoyment of his land . Approved, March 1, 1929 . CHAP. 438 .-An Act To amend the Act of March 3, 1915, granting double pension for disability from aviation duty, Navy or Marine Corps, by inserting the word "Army", so as to read : "Army, Navy, and Marine Corps ." Be it enacted by the Senate and House o f Representatives o f the Unite d States o f America in Con gress assembl ed, That the Act of March 3, 1915, granting double pension for disability from aviation duty, Navy or Marine Corps, be amended by inserting the word "Army," so as to read : " In all cases where an officer or enlisted man of th e Army, Navy, or Marine Cor ps dies, or w here an enlis ted man of the Army, Navy, or Marine Corps is disabled, by reason of any injury received or disease contracted in line of duty, the result of an aviation accident received while employed in actual flying in or in handling aircraft, the amount of pension allowed shall be double that authorized to be paid should death or the disability have occurred by reason of an injury received or disease contracted in line of duty not the result of an aviation accident ." Appr oved, March 1, 19 29.

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text: Talk:United States v. Galbraith

title: Talk:United States v. Galbraith


text:
United States v. Galbraith/Opinion of the Court

This is an appeal from the District Court of the United States for the northern district of California.

The appellees, who derived their title from Juan N. Padilla, the original grantee, presented their claim before the board of land commissioners in 1852, for five square leagues of land known by the name of Bolsa de Tomales, situate in the county of Sonoma, California. The board, after hearing the proofs, decreed in favor of the claim, which, on appeal to the district judge, was affirmed.

The documentary evidence of the title includes a petition to the Governor for the tract, dated at Monterey, May 14th, 1846, accompanied with a certificate of Manuel Castro, prefect, that the land was vacant and grantable, dated same place, 10th same month; a marginal reference for information by the Governor, Pio Pico, dated Los Angeles, 20th May, 1846; a note of concession, dated same place, 12th June, 1846; and a formal title, dated same time and place, both signed by the Governor, and J. M. Moreno, Secretary ad interim.

Proof was given of the signatures of the Governor and Secretary, and that these papers were found among the Mexican archives, which had been transferred to the custody of the surveyor general of the United States for California.

The original grant of the formal title to the grantee was given in evidence by the claimants, dated Los Angeles, 12th February, 1846; also, a certificate of the Governor and Secretary, of the approval on the 12th June by the Departmental Assembly, dated 14th June, 1846.

Some attempt was made to prove possession and occupation by Padilla before and since the date of the grant, which were denied by the Government. The clear weight of the proof in the case is against any possession or occupation. The two witnesses in support of it, aside from Padilla, clearly confounded the possession of the ranch of Padilla, called the Roblar de la Miseria, with that of the Bolsa de Tomales, both of which are in the same section of country. Padilla states that he had possession of the land in 1844; built on it in that year; that he cultivated the land, and had cattle on it from that time until he sold it to Molena and Berreyesa, in the latter part of the year 1848, or beginning of the year 1849. In this he is expressly contradicted by some half a dozen witnesses, some of whom cannot be mistaken as to the facts. It appears, from the evidence, that Padilla, at the breaking out of the disturbances in the early part of 1846, adhered to the Mexican Government, and was charged with having been concerned in killing some Americans in the fore part of that year; was pursued by an American force, and fled from that part of the country, and did not return until after the war. (See also the testimony of Padilla in the case of the claim of Josefa de Haro and others, No. 101, before the board of commissioners; and see his grant of Roblar de la Miseria, 25th November, 1845.) It is admitted that the original grant of the title in form, which was in the hands of the claimants, has been altered so as to bear date the 12th February, instead of the 12th June, 1846. No explanation was given of the alteration, though it was apparent on the face of the paper.

The genuineness of the signature of the Governor, Pio Pico, to the certificate of the approval of the Departmental Assembly, was doubted by the board of commissioners.

The board say, after alluding to the alteration of the date of the grant, 'there are many things connected with the claim which, under the conclusion at which the commission has arrived, were not altogether satisfactory. The time when the grant was made, only a few days before the Americans took possession of the country, the evident and palpable attempt to alter the date so as to make it appear several months anterior to the time when it was issued, and the manifest want of similarity in the signatures of Pio Pico to the papers of approval, with the usual mode of signing his name, are circumstances which greatly detract from the good faith of the claim. The evidence, however, they say, makes out a prima facie case, which, in the absence of any rebutting testimony, entitles the petitioners to a decree of confirmation.'

The court is of opinion that, in consideration of the doubtful character of the claim, and entire want of any merits upon the testimony, the decree of the court below should be reversed, and the case remitted for further evidence and examination.


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1488

 SEVENTIETH C ONGRESS. SEss. II. CH. 439 . 1929 . 1437 March 1, 1929. CHAP. 439 .-An Act To amend chapter 15 of the Code of Law for the [S.4125.] District of Columbia, and for other purposes. [Public, No. 890 .] Be it enacted by the Senate and House of Representatives of the United States o f America in Congress assembled, That chapter 15 of the Code of Law for the District of Columbia is hereby amended by striking out the provisions of said chapter in entirety down to subc hapter 1 the reof a nd sub stitut ing in lieu t hereof the f ollowi ng : "CHAPTER XV " CONDEMNATION OF LAND FOR PUBLIC USE " SEC. 483 . LAND FOR DISTRICT OF COLUMBIA .-Whenever land in the District is needed by the Commissioners of the District for sites of schoolhouses, fire or police stations, or for a right of way for sewers, or for any other municipal use authorized by Congress, and the same can not be ac quir ed by purc hase from the owner s th ereof at a price satisfactory to the officers of said District authorized to negotiate for the same, application may be made to the Supreme Court of the District by petition in the name of said commissioners for the condemnation of said land or said right of way and the ascertainment of its value . " SEC. 484. PETITION; WHAT TO sHOW .-Such petition shall con- tai n a p arti cular desc ript ion of the pro perty sele cted, wit h the names of the owners thereof and their residences, so far as the same may be ascertained, together with a plan of the land to be taken. " SEC. 484a. The jury commission of the District of Columbia shal l prep are a specia l list of pe rsons h aving the qu alific ations of jurors, as prescribed by section 215 of this code, and being also free- holders of the District of Columbia . The jury commission shall from time to time as may be necessary write the names contained in said special list on separate and similar pieces of paper, which they shall so fold or roll that the names can not be seen, and shall place the same in a special box to be provided for the purpose, and shal l ther eupon seal a nd loc k said specia l box, and a fter t horoug hly shaking the same shall deliver it to the clerk of the Supreme Court of the District of Columbia for safekeeping; but the same shall not be unsealed or opened except by said jury commission . From time to time, as ordered by the Supreme Court of the District of Columbia, or one of the justices thereof holding a special term for the trial for condemnation proceedings, the jury commission shall publicly break the seal of said special box and proceed to draw therefrom by lot and without previous examination the names of such number of persons as the said court may from time to time direct to serve as jurors in condemnation proceedings, and certify the names so drawn to the clerk of said court. At the time of each dr awing of conde mnati on ju rors from said spe cial box t here shal l be in said special box the names of not less than one hundred persons possessing the qualifications hereinbefore prescribed. Except as in this section specially provided, sections 198 to 217, inclusive, of this code, so far as the same may be applicable, shall govern the qualifications of said jurors in condemnation cases and the duties and conduct of said jury commissioners under this section. No person shall be elegible to serve as a condemnation juror who has served as such juror within one year. " SEC. 485. CIT AT ION TO OWNERS . The said court holding a dis- trict court of the United States, shall thereupon cite all the owners and other persons interested to appear in said court, at a time to be fixed by the court, to answer said petition; and if it shall appear to Distric t of Columbi a Code Amendments . Vol . 31, p. 1266, amended. Chapter XV. Condemnation of land for public use . Petitio n to Distric t Supreme Court, for, if sites can not be pur- chased from owners. Contents of petition. Jury commission to prepare list of qualified persons . To be sea led in locked special boa . Drawing of names . Quali fications . Vol . 41, pp. 558-560. Citation to owners . Vol.41, p. 565, amend- ed.

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text: Talk:United States v. Galbraith/Opinion of the Court


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1489

 1438 SEVENTIETH CONGRESS. SEss. II. Cx. 439. 1929 . the court that there are any owners or other persons interested who are under disability, the court shall give public notice of the time Guardian ad iit em at which it will proceed with the matter of condemnation ; and at for persons under dis- such time, if it shall appear that there are any persons under dis- abi lity. ability who have appeared or who have not appeared, the court shall appoint a guardian ad litem for each such person, and shall there- upon order the jury commission to draw from the special box the names of as many p erson's as the court may di rect, and fro m among Drawing of jury. the persons so drawn the court shall thereupon appoint a jury of five capable and disinterested persons, to which jury the court shall administer an oath or affirmation that they are not interested in any manner in the land to be condemned, and are not related to the parties interested therein, and that they will, without favor or par- tiality, and to the best of their judgment, appraise the value of the respective interests of all persons concerned in such lands. ertyaami a tarinfsr p- "SEC . 486. The court, before accepting the jury, shall hear any and jury . objec tions that ma y be made to a ny member the reof, and sha ll have full power and authority to pass upon any such objection, and to amended .1, p. 1266, excuse any juror or cause any vacancy in the jury, when empaneled, to be filled ; and after the jury shall have been organized and shall have viewed and examined the land and premises affected by the condemnation proceeding, they shall proceed, in the presence of the court, to hear and receive such evidence as may be offered or sub- mitted on behalf of the District o f Columbia an d by any perso n or Appraisement. persons having any interest in the proceeding . When the hearing is concluded, the jury, or a majority of them, shall return to the court, in writing, their appraisement of the value of the interests of all persons, respectively, in such land, where said appraisement shall be r ec or de d. In making th eir decision, the jury shal l take into c on- sideration, whenever a part only is taken, the benefit to the remainder of the tract, and shall give their appraisement accordingly. Se tti ng as ide ap- a Sue. 487 . The said court shall hear and determine any objections praiseme nt, and new jury ordered. or exceptions that may be filed to any appraisement of the jury and shall h ave the power to vacate and set any appr aisement aside, in edvol .41,p.566,amend- whole or in part, when satisfied that it is unjust or unreasonable, in which event the court shall order the jury commission to draw from the special box the names of as many persons as the court may direct, and from among the persons so drawn the court shall there- upon appoint a new jury of five capable and disinterested persons, ncceptaa«e in part. who shall proceed as in the case of the first jury : Provided, That if vacated in part the residue of the appraisement as to the land con- tionsTime limit for obj ec- demned shall not be affected thereby : And provided further, That . the objections or exceptions to the appraisement shall be filed within twenty days after the return of the appraisement to the court : And cour t. by provided further, That the appraisement of the new jury shall be Payment of con- final when confirmed by the court. firmed appraisement. SEC. 488 . If the appraisement of the jury should not be objected 1' p. 1266, amended. to by the parties interested, it shall be confirmed by the court, or, if the appraisement of the new jury is confirmed by the court, the Com- missioners of said District shall pay the amount awarded by the jury out of the appropriation made therefor or deposit the same in Vol .34,p.154. the same manner as directed in section 491n of said Code of Law, and the reupon the la nd condemned s hall become a nd be the prop erty of the District. Time for return of "SEC . 489 . In every case involving the condemnation of land in verdict . y amended 31, p. 1266, the District of Columbia, at the close of the hearing thereof, the court shall fix a time in which the jury shall return its verdict or to report to the court the reasons why said verdict or appraisement can

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1490

 SEVENTIETH CONGRESS. Snss. II. Gas. 439-441 . 1929 . not be returned by the time fixed : Provided, That the court shall have the power, within its discretion, to extend the time for the return of the verdict or appraisement. "SEc . 490. It shall be optional with the commissioners to abide by the verdict of the jury and occupy the land appraised by them, or, within a reasonable time to be fixed by the court in its order con- firming the verdict, to abandon the same, without being liable to damage therefor . "SEc. 491 . Nothing herein contained shall affect any suit or pro- ceeding heret ofore begun, now p ending, or he reafte r to b e inst ituted by or on behalf of the United States for the condemnation of land for any purpose ; but all such suits and proceedings shall be con- ducted in accordance with existing law or such laws as hereafter may be enacted." Approved, March 1, 1929 . CHAP. 440 .-An Act Authorizing the appropriation of tribal funds of Indians residing on the Klamath Reservation, Oregon, to pay expenses of the general council and business committee, and for other purposes . Be it enacted by the Senate and House o f Representatives o f the United States of America in Congress assembled, That the sum of $10,000, or so much thereof as may be necessary, of the tribal funds of the Indians residing on the Klamath Reservation in the State of Oregon, namely the Klamath and Modoc Tribes and the Yahooskin Band of Snake Indians, is hereby appropriated to pay the expenses of the General Council and Business Committee (or so-called tribal council) of the said Indians, in organizing and holding councils, conducting tribal elections, maintaining their tribal organization, and generally looking after the affairs of the said tribes, including, among other things, the actual and n ecessar y expe nses o f its delega - tion, or legislative committee, in visiting Washington during the second session of the Seventieth Congress or any succeeding Congress ; also the expenses incurred, and to be incurred, by the tribal delega- tion of said Indians in procuring evidence and taking testimony to be used in connection with the three suits instituted by the said Indians against the United States and now pending in the Court of Claims ; said sum to be immediately available, and said expenses to be approved by the said business committee and the Commissioner of Indian Affairs and certified to the Secretary of the Interior, and, if so ap proved an d certifi ed, to be paid. Approved, March 1, 1929. Proviso. Extension. 1439 Optional acc epta nce of verdict, etc. Vol. 31, p. 1266. Suits for condemning land by United States not affected. Ante, p. 1415. March 1, 1929. (S .4517 .1 [Public, No . 891 .1 Klamath Indian Res- ervation, Oreg. Suni authorized from tribal f unds, to pay expenses of General Council, etc ., in main- taining tribal organiza- tion, etc . Visit of delegation to Was hingt on, etc . Procuring evidence in pending suits, etc. March 1, 1929 . CHAP . 44 1 .-A n Act Aut horizing the Mound sville Br idge Comp any to con-	[S .4778 .1 struct a bridge across the Ohio River at or near the city of Moundsville, West Virginia . Be it enacted by the Senate and House of Representatives of the United States o f America in Congress assembled, That in order to facili tate i nterst ate co mmerce, impr ove the posta l serv ice, a nd pro - vide for military and other purposes, the Moundsville Bridge Com- pany, its successors and assigns, be, and is hereby, authorized to cons truct , mai ntain , an d ope rate a br idge and a ppro aches ther eto across the Ohio River, at a point suitable to the interests of naviga- tion, at or near the city of Moundsville, West Virginia, in accordance Construction . with the provisions of the Act entitled "An Act to regulate the construction of bridges over navigable waters," approved March 23, 1906, and subject to the conditions and limitations contained in this Act. [P ubli c, No . 892.] Ohio River. Mou ndsvi lle Brid ge Company may bridge, at Moundsville, W. Va. Vol. 34, p .84 . a

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1491

 1440 SEVENTIETH CONGRESS. SEss. II. Cg. 441. 1929 . Right to acquire real estate, etc., for location, approaches, etc. Condemnation p ro- ceedings. Tolls authorized. Vol.34, p. 85. Acquisition author- i zed, afte r com pleti on, by west Virginia, Ohio, etc. Compensation if ac- quired by condemna- tion. Limitations. Tolls under State, etc., operation. Rates applied to op- eration, sinking fund, etc. Maintenance as free bridge, etc ., after amor- tizing costs. Record of expendi- tures and receipts. Sworn statement of construction costs, etc ., to be filed after comple- tion. SEC. 2. There is hereby conferred upon the Moundsville Bridge Company, its successors and assigns, all such rights and powers to enter upon lands and to acquire, condemn, occupy, possess, and use real estate and other property needed for the location, construction, operation, and maintenance of such bridge and its approaches as are possessed by railroad corporations for railroad purposes or by bridge corporations for bridge purposes in the State in which such real estate or other property is situated, upon making just compensation there- for, to be ascertained and paid according to the laws of such State, and the proceedings therefor shall be the same as in the condemna- tion or expropriation of property for public purposes in such State. SEC. 3 . The s aid Moundsvil le Bridge Comp any, its succ essors and assigns, is hereby authorized to fix and charge tolls for transit over such bridge, and the rates of toll so fixed shall be the legal rates until changed by the Secretary of War under the authority contained in the Act of March 23, 1906. SEC. 4. After the completion of such bridge, as determined by the Secretary of War, either the State of West Virginia, the State of Ohio, any public agency or political subdivision of either of such States, within or adjoining which any part of such bridge is located, or any two or more of them jointly, may at any time acquire and take over all right, title, and interest in such bridge and its approaches, and any interest in real property necessary therefor, by purchase or by condemnation or expropriation, in accordance with the laws of either of such States governing the acquisition of private property for public purposes by condemnation or expropriation. If at any time after the expiration of ten years after the completion of such bridge the same is acquired by condemnation or expropriation, the amount of damages or compensation to be allowed shall not include good will, going value, or prospective revenues or profits but shall be limited to the sum of (1) the actual cost of constructing such bridge and its approaches, less a reason able deduction for actual depreciation in value ; (2) the actual cost of acquiring such interests ~n real property ; (3) actual financing and promotion costs, not to exceed 10 per centum of the sum of the cost of constructing the bridge and its approaches and acquiring such interests in real prop- er t y ; and (4) actual expend itures for ne cessary impro vements. SEC. 5 . If such bridge shall at any time be taken over or acquired by the States or public agencies or political subdivisions thereof, or by either of them, as provided in section 4 of this Act, and if tolls are thereafter charged for the use thereof, the rates of toll shall be so adjusted as to provide a fund sufficient to pay for the reasonable cost of maintaining, repairing, and operating the bridge and its approaches under economical management, and to provide a sinking fund sufficient to amortize the amount paid therefor, including reason- able interest and financing cost, as soon as possible under reasonable charges, but within a period of not to exceed twenty years from the date of acquiring the same. After a sinking fund sufficient for such amortization shall have been so provided, such bridge shall thereafter be maintained and operated free of tolls, or the rates of toll shall thereafter be so adjusted as to provide a fund of not to exceed the amount necessary for the proper maintenance, repair, and operation of the bridge and its approaches under economical management. An accurate record of the amount paid for acquiring the bridge and its approaches, the actual expenditures for maintaining, repairing, and operating the same, and of the daily tolls collected, shall be kept and shall b e avail able fo r the informa tion of all p ersons interes ted. SEC. 6 . The sai d Moundsville Bridge Compan y, its succes sors and assigns, shall within ninety days after the completion of such bridge file with the Secretary of War, and with the highway departments

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text:
Bank of Pittsburgh v. Neal

THIS case was brought up by writ of error from the Circuit Court of the United States for the district of Indiana.

It was an action brought by the bank upon two bills of exchange, one dated on the 18th of August, 1857, at Pittsburgh, drawn by L. O. Reynolds & Son upon J. S. & R. E. Neal, at Madison, Indiana, requesting them to pay, four months after date of this second of exchange, (first unpaid,) to the order of L. O. Reynolds, at the Ohio Life Insurance and Trust Company, at Cincinnati, in the State of Ohio, two thousand one hundred and sixty-eight dollars. Reynolds endorsed this bill to L. Wilmarth & Co., who endorsed it to the bank. The bill was accepted by J. S. & R. E. Neal.

The other bill sued upon was similar in all its circumstances, except that it was dated on the 1st of August, 1857, payable four months after the date of this second of exchange, (first unpaid,) for thirteen hundred and fifty dollars. It was endorsed and accepted like the other.

In order to present a distinet view of the transactions which led to this suit and the nature of the defence, it seems necessary to state particularly all the bills mentioned in the proceedings, designating each bill by a letter, which is the reporter's mark, and used for easy reference.

In June, 1857, J. S. & R. E. Neal, residents of Madison, Indiana, for the purpose of raising money, delivered to L. O. Reynolds, of Pittsburgh, the four following bills, viz:

title: Bank of Pittsburgh v. Neal


text: Talk:Bank of Pittsburgh v. Neal

title: Talk:Bank of Pittsburgh v. Neal


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1492

 SEVENTIETH CONGRESS. SESS. II. CHs. 441, 442 . 1929 . 1441 of the States of West Virginia and Ohio, a sworn itemized statement showing the actual original cost of constructing the bridge and its approaches, the actual cost of acquiring any interest in real property necessary therefor, and the actual financing and promotion costs. Examination by S ee The Sece tary of War may, and upo n re ques t of the hig hway dep art- retar yof w ar. ment of either of such States shall, at any time within three years after the completion of such bridge, investigate such costs and determine the accuracy and the reasonableness of the costs alleged in the statement of costs so filed, and shall make a finding of the actual and reasonable costs of constructing, financing, and promoting such bridge. For the purpose of such investigation the said Moundsville Bridge Company, its successors and assigns, shall make available all of its records in connection with the construction, financing, and promotion thereof. The findings of the Secretary of War as to the con clu siv e sofSecretary reasonable co sts of the construction, financing, and promotion of the bridge shall be conclusive for the purposes mentioned in section 4 of this Act, subject only to review in a court of equity for fraud or gross mistake. SEC. 7. The right to sell, assign, transfer, and mortgage all the rights, powers, and privileges conferred by this Act is hereby granted to the Moundsville Bridge Company, its successors and assi gns, and any cor pora tion to whic h or any per son to w hom such rights, powers, and privileges may be sold, assigned, or transferred, or who shall acquire the same by mortgage foreclosure or otherwise, is hereby authorized and empowered to exercise the same as fully as though conferred herein directly upon such corporation or person. SEC. 8 . All contracts made in connection with the construction of the bridge authorized by this Act and which shall involve the expenditure of more than $5,000, shall be let by competitive bidding. Such contracts shall be advertised for a reasonable time in some newspaper of general circulation published in the States in which the bridge is located and in the vicinity thereof ; sealed bids shall be required, and the contracts shall be awarded to the lowest responsible bidder. Verified copies or abstracts of all bids received and of the bid or bids accepted shall be promptly furnished to the highway departments of the States in which such bridge is located. A failure to comply in good faith with the provisions of this section shall render null and void any contract made in violation thereof, and the Secretary of War may, after hearings, order the suspension of all work upon such bridge until the provisions of this ,section shall have been fully complied with. SEC. 9. The right to alter, amend, or repeal this Act is hereby expressly reserved. Approved, March 1, 1929. CHAP. 442 .-An Act For the relief of present and former postmasters and acting postmasters, and for other purposes. Be it enacted by the Senate and House o f Representatives o f the United States of America in Congress assembled, That postmasters and acting postmasters are authorized, when in the judgment of the Postmaster General the needs and interests of the Postal Service require, to employ mail messengers and other postal employees in a dual capacity, or to assign extra duties to such mail messengers and other employees ; and, notwithstanding the provisions of sections 1763, 1764, and 1765 of the Revised Statutes, as amended (United States Code, title 5, sections 58, 69, and 70 ), compensation shall be paid to such mail messengers and other employees for such services Right to con fer red. Contracts violations. sell, etc., Construction con. tracts to be let to lowest bidder. Advertising, etc. void for Amendment. March 1, 1929. [S.5255.1 [Public, No. 893 .1 Postal Service. Postmasters author- ized to employ mail messengers, etc ., in a dual capacity, or extra duty. Double pay restrio- tion w aived. R. S ., sees. 1763-1765, p.314. U.S. Code, pp.31,32.

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Bank of Pittsburgh v. Neal/Opinion of the Court

Exchange for $_____.

_____ after _____ of this first of exchange, (second unpaid,) pay to the order of L. O. Reynolds _____ dollars, value received, without any relief from valuation or appraisement laws.

To _____.

Accepted: J. S. & R. E. NEAL.

(This bill we will call A.)

Exchange for $_____.

_____ after _____ of this first of exchange, (second unpaid,) pay to the order of L. O. Reynolds _____ dollars, value received, without any relief from valuation or appraisement laws.

To _____.

Accepted: J. S. & R. E. NEAL.

(This bill we will call B.)

Exchange for $_____.

_____ after _____ of this second of exchange, (first unpaid,) pay to the order of L. O. Reynolds _____ dollars, value received, without any relief from valuation or appraisement laws.

To _____.

Accepted: J. S. & R. E. NEAL.

(This bill we will call C.)

Exchange for $_____.

_____ after _____ of this second of exchange, (first unpaid,) pay to the order of L. O. Reynolds _____ dollars, value received, without any relief from valuation or appraisement laws.

To _____.

Accepted: J. S. & R. E. NEAL.

(This bill we will call D.)

With these bills, instructions were sent to Reynolds to have them filled up for sums not less than $1,500, nor more than $3,000 each, to have them discounted at Pittsburgh, and remit the proceeds to J. S. & R. E. Neal, at Madison, Indiana.

In July, 1857, four other bills like the preceding were sent to Reynolds. These last bills were sent to Reynolds at his request, and intended for his use, as accommodation acceptances of the Neals.

These bills we will call E, F, G, H.

A was filled up by Reynolds as follows: Date, July 1st; amount, $1,965; time, four months; drawers, L. O. Reynolds & Son; drawees, J. S. & R. E. Neal. Thus filled up, it was negotiated by Reynolds to the Mechanics' Bank of Pittsburgh. Reynolds failed to remit the proceeds according to instructions. When the paper matured, the defendants, as acceptors, paid it.

B was filled up as follows: Date, July 10th; time, four months; amount, $2,035; drawers, L. O. Reynolds & Son; drawees, J. S. & R. E. Neal. Thus filled up, it was negotiated by Reynolds to the Merchants and Manufacturers' Bank of Pittsburgh. The proceeds of this bill were remitted by Reynolds to the defendants. Before the commencement of this suit, the Merchants and Manufacturers' Bank, as holder and owner of the bill, recovered judgment on it against the acceptor in the Jefferson Circuit Court of the State of Indiana. C and D were for the present retained by Reynolds in his own possession.

E, being similar to A, was filled up as follows: Date, July 30th; time, four months; amount, $2,450; drawers, L. O. Reynolds & Son; drawees, J. S. & R. E. Neal. Thus filled up, it was negotiated by Reynolds to the Merchants and Manufacturers' Bank of Pittsburgh, Reynolds retaining the proceeds. The holders of this bill brought suit against the defendants, as acceptors, in the Jefferson Circuit Court, Indiana, which action was still pending when the pleas in this case were filed.

F, being similar to B, was filled up by Reynolds as follows: Date, July 24th; time, four months; amount, $2,750; drawers, L. O. Reynolds & Son; drawees, J. S. & R. E. Neal. Thus filled up, it was negotiated by Reynolds to the Citizens' Bank of Pittsburgh, Reynolds retaining the proceeds. John Black & Co. became the holders, and after its maturity, and before the commencement of this suit, they recovered judgment against the acceptors of the bill for its full amount in the Jefferson Circuit Court of Indiana.

Thus the bills A, B, E, F, being the first of exchange, (second unpaid,) are accounted for. What became of G and H, the record did not show. Let us now account for C and D.

C was filled up as follows: Date, August 1st; time, four months; amount, $1,350; drawers and drawees, as above.

D was filled up as follows: Date, August 18th; time, four months; amount, $2,168; same drawers and drawees. These bills were both negotiated to the Bank of Pittsburgh, and were the ones sued on in this case. It will be observed that they were both second of exchange, (first unpaid,) and that the sums of money did not correspond in amount with any of those for which the first of exchange had been filled up, nor in date, time, or place of payment.

There were four counts in the declaration, and eight pleas, which were all demurred to except the plea of the general issue. It is not necessary to state these pleadings, because they were only intended to raise the questions of law which arise from the statement of facts given above. The court overruled the plaintiffs' demurrers, so that judgment went for the defendant; and upon this ruling upon the demurrers, the case was brought up by the plaintiff to this court.

It was argued by Mr. Stanton, upon a brief filed by himself and Mr. Walker, for the plaintiff in error, and by Mr. Thompson, upon a brief filed by himself and Mr. Dunn, for the defendants.

1. That the acceptance of the bills held by the bank for value, binds the acceptors. Whether the bills held by the bank were seconds, or any other number, in any real or imaginary series of bills, they were accepted, and the acceptors bound themselves thereby to pay the holder the sum therein specified. If the acceptor meant to be bound only on one of the set, he should have accepted that one. The holder was not bound to make any inquiry or take any notice of the others.

16 Peters, 205.

Chitty on Bills, 155.

Holdsworth v. Hunter, 10 B. and C., 444.

Story on Bills, sec. 226.

Byles on Bills, 293, 294.

2. The words 'second of exchange, first unpaid,' were directions given by the drawer to the acceptors, to notify them of the series, and put the acceptors on their guard as to the extent of acceptance. But their own acceptance constitutes the contract of the acceptors, and by it they bound themselves to pay the holder of that identical paper the sum specified therein.

Wells v. Whitehead, 15 Wend., 527.

Downes v. Church, 13 Peters, 205.

'The bona fide holder of any one of the set, if accepted, might recover the amount of the acceptor.'

Story on Bills, sec. 226.

Byles on Bills, 310.

Chitty on Bills, 155.

Holdsworth v. Hunter, 10 B. and C., 444.

3. There were no firsts of the bills held by the Bank of Pittsburgh. The agent to whom they were delivered in blank made a distinct bill of each blank; and each being accepted, the acceptors are chargeable to any bona fide holder in whose possession they might come.

The counsel for the defendant in error contended, in the first place, that this bill ought to be denominated a forgery, or at least a fraud, on defendants, falling short of the crime of forgery; and that the plaintiff could not claim the benefit of the rule which estopped the defendant from denying the bill for this reason: that the act of the party giving the credit must be such as is reasonably calculated to deceive-that the party claiming the protection of this principle must, himself, have acted with reasonable circumspection, and must have been subjected to the loss, notwithstanding the use of such reasonable circumspection.

The principle in question is, we think, accurately expressed in a recent case in the English Exchequer, Baker v. Sterne, 25 E. L. and E., 502. Pollock, C. B., citing and illustrating this same case of Young v. Grote, says: 'I should myself prefer to put it thus: that where a man issues a document of that sort, (a bill of exchange or check,) which may be so filled up, the authority is to be judged of, as far as the bulk of mankind is concerned, by that paper itself, and not by some other private instruction. It may, however, be ranged with a class of cases perfectly familiar, which we all know to be applicable to a great many other subjects as well as bills of exchange, namely: that where one man by his negligence has enabled another to practice a fraud on a third party, which the third party has no means of defeating whatever, the consequence of that must be visited upon the individual who enables the other to practice the fraud.'

The same principle, designated as estoppel eo nomine, is defined as follows, by Lord Denman, in Pickard v. Sears, 6 Ad. and Ell., 469; S.C.., 33; E. C. L., 115: 'The rule of law is clear, that where one by his words or conduct wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.' This language was not used with any special reference to commercial paper. It is merely quoted as comprising the elements of an estoppel in pais, as that doctrine has grown up, in modern jurisprudence, under the influence of equity.

In 2 Smith's Leading Cases, 4 Am. ed., Hare v. Wallace, 571, the editors, in speaking of the fact that an acceptor is estopped to deny the genuineness of the bill as originally drawn, say that this estoppel 'is marked by much of the naked severity of circumstance and application which marked estoppels at commom law.' We cannot, however, see any peculiarity that distinguishes this, in principle, from other cases of estoppel in pais, or why it should be said to be marked with 'naked severity.' The drawee is reasonably presumed to know the handwriting of the drawer, who is his immediate correspondent. He should not pay the bill without being satisfied that it is genuine. It he does pay, and the draft proves a forgery, he is guilty of negligence, and for that reason the law will not grant him recovery.

He should not accept, without being satisfied that the drawer is competent to draw, and that his signature is genuine. By the act of accepting, he admits these things. Between a casual purchaser, in market, of the bill, and the drawer, there is no privity. They are probably strangers to each other, and in case of a foreign bill, residents of different States. Such purchaser, then, may reasonably act upon the faith of the admission implied in the acceptance; and as against him, the acceptor should not be allowed to say that the draft was forged. But this reason would cease in cases where the holder is privy to the fraud, or affected with notice of it, and in such case there is no estoppel.

Bank of Commerce v. Union Bank, 3 Coms., 230.

Such estoppel, then, falls plainly within the ordinary principle of estoppels in pais, without resorting to any supposed peculiarity of the commercial law.

We submit, then, as a clear deduction from the authorities, that if the officers of the Bank of Pittsburgh, in purchasing this paper, failed to use ordinary and reasonable prudence, and if the paper, as intrusted by the defendants to Reynolds, was not in such condition or of such kind as to enable Reynolds to practice the fraud, notwithstanding the exercise of ordinary and reasonable prudence by the plaintiff, then the defendants are not concluded by their acceptance.

Let us then examine the facts of this case in the light of these principles.

(This part of the argument is necessarily omitted.)

It is urged, however, that the drawee should accept but one part of a bill drawn in a set, and that that part, when so accepted, becomes the bill; that any third person seeing it has a right to presume it to be the only accepted part, and is justified in purchasing it without inquiring after the other parts; that by accepting all the parts, the drawee becomes liable as upon so many different bills.

The following authorities are cited as tending to establish this position:

Chitty on Bills, 11 Am., from 9 London ed., 155,

Byles on Bills, side pages 310, 311.

Story on Bills, sec. 226.

Holdsworth v. Hunter, supra.

Wells v. Whitehead, 15 Wend., 527.

Downes v. Church, 13 Pet., 205.

Each of the above text books contains a dictum seeming to favor the proposition, but neither of the three cases cited has any tendency to sustain it. If these dicta in the text books are to be understood as anything stronger than mere recommendation, we submit that they are unsustained by authority; that they are inconsistent with the theory of this species of commercial paper, and at variance with general commercial usage.

The counsel then examined these authorities, and concluded with the following summary:

Chitty deduces it as an inference from an untenable legal proposition; Story, rejecting the proposition, perpetuates the inference; Byles repeats it on the authority of Holdsworth v. Hunter, an authority that condemns it; and all of them put it as matter of recommendation and caution, rather than peremptory law.

The remaining part of the argument of the counsel for the defendant is omitted for want of room.

Mr. Justice CLIFFORD delivered the opinion of the court.

This is a writ of error to the Circuit Court of the United States for the district of Indiana. All of the questions presented in this case arise upon the pleadings and the facts therein disclosed. It was an action of assumpsit, brought by the plaintiff in error as the holder of two certain bills of exchange, against the defendants as the acceptors. An amendment to the declaration was filed after the suit was commenced. As now exhibited in the transcript, it contains four counts. Two of the counts were drawn up on the respective bills of exchange, and are in the usual form of declaring in suits, by the holder of a bill of exchange against the acceptor. Those contained in the amendment are special in form, setting forth the circumstances under which the respective bills of exchange were drawn, accepted, and negotiated, and averring that these acts were subsequently ratified by the defendants. To the merits of the controversy the defendants pleaded the general issue, and filed seven special pleas in bar of the action. Demurrers were filed by the plaintiff to each of the special pleas, which were duly joined by the defendants, and after the hearing, the court overruled all of the demurrers. Those filed to the pleas responsive to the first and second counts were overruled upon the ground that the pleas were sufficient, and constituted a good bar to the action; but those filed to the fifth, sixth, seventh, and eighth pleas were overruled, upon the ground that the third and fourth counts, to which those pleas exclusively applied, were each insufficient in law to maintain the action. Whereupon, the plaintiff abiding his demurrers, the court directed that judgment be entered for the defendants, and the plaintiff sued out a writ of error, and removed the cause into this court. It being very properly admitted, by the counsel of the defendants, that the first and second counts of the declaration are in the usual form, it is not necessary to determine the question as to the sufficiency of the third and fourth, and we are the less inclined to do so, from the fact that the counsel on both sides expressed the wish, at the argument, that the decision of the cause might turn upon the question, whether the plaintiff, on the facts disclosed in the pleadings, was entitled to recover against the defendants. That question is the main one presented by the pleadings; and inasmuch as it might well have been tried under the general issue, we think it quite unnecessary to consider any of the incidental questions which do not touch the merits of the controversy. Special pleading in suits on bills of exchange and promissory notes ought not to be encouraged, except in cases where by law the defence would otherwise be excluded or rendered unavailing. Full and clear statements of the facts as disclosed in the pleadings, were presented to the court, at the argument, by the counsel on both sides. They are substantially as follows: In June, 1857, the defendants, residents of Madison, in the State of Indiana, being desirous of procuring a loan of money, made their certain acceptances in writing of two blank bills of exchange, in sets of two parts to each bill, and transmitted the four blanks, thus accepted, to their correspondent, Lot. O. Reynolds, then and still residing at Pittsburgh, in the State of Pennsylvania. Both sets of blanks were in the form of printed blanks usually kept by merchants for bills of exchange in double sets, except that each of the four was made payable to the order of the correspondent to whom they were sent, and was duly accepted on its face by the defendants, in the name of their firm. They were in blank as to the names of the drawers and the address of the drawees, and as to date, and amount, and time, and place of payment. When the defendants forwarded the acceptances, they instructed their correspondent to perfect them as bills of exchange, by procuring the signatures of the requisite parties, as accommodation drawers and endorsers, and to fill up each with the appropriate date, and with sums not less than fifteen hundred nor more than three thousand dollars, payable at the longest period practicable, and to sell and negotiate the bills as perfected, for money, and remit the proceeds to the defendants. Afterwards, in the month of July, of the same year, the defendants, at the request of the person to whom those acceptances were sent, made four other similar acceptances, and delivered them to him, to be sold and negotiated as bills of exchange, in double sets, for his own use, and with power to retain and use the proceeds thereof for his own benefit. They were in all respects the same, in point of form, as the four acceptances first named, and, like those, each of the four parts was made payable to the order of the person at whose request they were given, and was duly accepted by the defendants in the name of their firm. When they delivered the sets last named, they authorized the payee to perfect them as bills of exchange, in two parts, in reasonable amounts, and with reasonable dates. Eight acceptances were thus delivered by the defendants to the same person, corresponding in point of form to four bills of exchange, but with blanks for the names of the drawers and the address of the drawees, and for the respective amounts, dates, and times and places of payment. Four contained, in the printed form of the blanks, the words, 'first of exchange, second unpaid;' and the other four contained in the corresponding form the words, 'second of exchange, first unpaid;' but in all other respects they were alike. All of the first class were perfected by the correspondent as bills of exchange of the first part, and were sold and negotiated by him at certain other banks in the city of Pittsburgh. He perfected them by procuring L. O. Reynolds & Son to become the drawers, addressed them to the defendants, endorsed them himself in blank, and procured another individual or firm to become the second endorser. They were filled up by him for sums varying from about two thousand to three thousand dollars, with dates corresponding to the times when they were negotiated, and were respectively made payable in four months from date. Contrary to his instructions, he retained the proceeds of the one first negotiated, which he had been directed to remit; and he also retained in his possession, but without inquiry or complaint on the part of the defendants, the other four acceptances, constituting the second class. On the first day of August, 1857, he perfected and filled up as a separate bill of exchange one of the last-named acceptances, and sold and negotiated it to the plaintiff for his own use and benefit. He also perfected and filled up, on the eighteenth day of the same month, another of the same class, in the same manner, and for the same purpose, and on the same day sold and negotiated it to the plaintiff. Both of these last-mentioned bills of exchange vary from those of the first class, not only in dates and amounts, but also as to time and place of payment, and are in all respects single bills of exchange. They were each received and discounted by the plaintiff, without any knowledge whatever that either had been perfected and filled up by the payee without authority, or of the circumstances under which they had been intrusted to his care, unless the words, 'second of exchange, first unpaid,' can be held to have that import.

In all other respects, the bills must be viewed precisely as they would be if they had been perfected and filled up by the defendants, and for two reasons, deducible from the decisions of this court:

First. Because, where a party to a negotiable instrument intrusts it to the custody of another with blanks not filled up, whether it be for the purpose to accommodate the person to whom it was intrusted, or to be used for his own benefit, such negotiable instrument carries on its face an implied authority to fill up the blanks and perfect the instrument; and as between such party and innocent third parties, the person to whom it was so intrusted must be deemed the agent of the party who committed such instrument to his custody-or, in other words, it is the act of the principal, and he is bound by it. Goodman v. Simonds, 20 How., 361; Violet v. Patton, 5 Cran., 142.

Secondly. Because a bona fide holder of a negotiable instrument, for a valuable consideration, without notice of the facts which impeach its validity between the antecedent parties, if he takes it under an endorsement made before the same becomes due, holds the title unaffected by these facts, and may recover thereon, although, as between the antecedent parties, the transaction may be without any legal validity. Swift v. Tyson, 16 Peters, 15; Goodman v. Simonds, 20 Howard, 363.

Applying these principles, it is obvious that the only question that arises on this branch of the case is as to the effect of the words, 'second of exchange, first unpaid,' which appear on the face of the bills. That question, under the circumstances of this case, is a question of law, and not of fact for the jury. Three decisions of this court sustain that proposition; and in view of that fact, we think it unnecessary to do more than refer to those decisions, without further comment in its support. Andrews v. Pond and al., 13 Pet., 5; Fowler v. Brantly, 14 Pet., 318; Goodman v. Simonds, 20 How., 366.

Another principle, firmly established by this court, and closely allied to the question under consideration, will serve very much to clucidate the present inquiry. In Downes and al. v. Church, 13 Pet., p. 207, this court held, that either of the set of bills of exchange may be presented for acceptance, and if not accepted, that a right of action presently arises, upon due notice, against all the antecedent parties to the bill, without any others of the set being presented; for, say the court, it is by no means necessary that all the parts should be presented for acceptance before a right of action accrues to the holder.

Now, if either of the set may be presented, and when not accepted a right of action immediately ensues, it is difficult to see any reason why, if upon presentation the bill is accepted, it is not competent for the endorsee to negotiate it in the market; and clearly, if the endorsee may properly negotiate the bill, a bona fide holder for value, without notice, may acquire a good title. In this connection, Mr. Chitty says, that 'unless the drawee has accepted another part of a bill, he may safely pay any part that is presented to him, and that a payment of that part will annul the effect of the others; but if one of the parts has been accepted, the payment of another unaccepted part will not liberate the acceptor from liability to pay the holder of the accepted part, and such acceptor may therefore refuse to pay the bearer of the unaccepted part;' from which he deduces the rule, that a drawee of a bill drawn in sets should only accept one of the set. Chitty on Bills, (10 Am. ed., by Barb.,) 155.

Mr. Byles says: 'The drawee should accept only one part, for if two accepted parts should come into the hands of different holders, and the acceptor should pay one, it is possible that he may be obliged to pay the other part also;' which could not be, unless it was competent for the holder of a second part to negotiate it in the market. Byles on Bills, p. 310.

Where the drawee accepted and endorsed one part to a creditor, as a security, and afterwards accepted and endorsed another part for value to a third person, but subsequently substituted another security for the part first accepted, it was held, in Holdsworth v. Hunter, 10 Barn. and Cress., 449, that, under these circumstances, the holder of the part secondly accepted was entitled to recover on the bill; and Lord Tenterden and Baron Parke held that the acceptor would have been liable on the part secondly accepted, even if the first part had been endorsed and circulated unconditionally.

Judge Story says, in his work on bills of exchange, that the bona fide holder of any one of the set, if accepted, may recover the amount from the acceptor, who would not be bound to pay any other of the set which was held by another person, although he might be the first holder. Story on Bills, sec. 226.

No authority is cited, for the defendant, to impair the force of those already referred to; but it is not necessary to express any decided opinion upon the point at the present time. Suffice it to say, that in the absence of any authority to the contrary, we are strongly inclined to think that the correct rule is stated by Mr. Chitty, and that such is the general understanding among mercantile men.

But another answer may be given to the argument for the defendant, which is entirely conclusive against it; and that is, that the bills described in the first and second counts were not parts of sets of bills of exchange. They were perfected, filled up, and negotiated, by the correspondent of the defendants, to whom the blank acceptances had been intrusted as single bills of exchange; and for the acts of their correspondent, in that behalf, the defendants are responsible to a bona fide holder for value, without notice that the acts were performed without authority.

When the transaction is thus viewed, as it must be in contemplation of law, it is clearly brought within the operation of the same rule as it would be if the defendant himself had improvidently accepted two bills for the same debt. In such cases, it is held, that the acceptor is liable to pay both, in the hands of innocent holders for value. Davidson v. Robertson, 3 Dow. P. C., 228.

Lord Eldon said, in that case: 'Here were two bills for the same account, and supposed to be for the same sums; they who were to pay them had a right to complain that there were two, and yet they were bound to pay both, in the hands of bona fide holders, if accepted by them or by others for them, having authority to accept.'

To suppose, in this case, that the words 'second of exchange, first unpaid,' import knowledge to the plaintiff that the bills were drawn in sets, would be to give them an effect contrary to the averments of the defendants' pleas, as well as contrary to the admitted fact that they were not so drawn; and for those reasons the theory cannot be sustained.

In view of all the facts as disclosed in the pleadings, we think the case clearly falls within the operation of the rule generally applicable in cases of agency, that where one of two innocent parties must suffer, through the fraud or negligence of a third party, the loss shall fall upon him who gave the credit. Fitzherbert v. Mathen, 1 Term., 16, per Buller; Androscoggin Bank v. Kimball, 10 Cush., 373; Montague v. Perkins, 22 Eng. L. and Eq., 516.

Business men who place their signatures to blanks, suitable for negotiable bills of exchange or promissory notes, and intrust them to their correspondents, to raise money at their discretion, ought to understand the operation and effect of this rule, and not to expect that courts of justice will fail in such cases to give it due application.

According to the views of this court, the demurrers to the several pleas filed to the first and second counts of the declaration should have been sustained. Having come to that conclusion, it is unnecessary to examine the other propositions submitted on behalf of the defendants.

The judgment of the Circuit Court is therefore reversed, with costs, and the cause remanded, with directions to enter judgment for the plaintiff, as upon demurrer, on the first and second counts of the declaration.


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1493

 1442 Credits allowed post- masters for payments made to mail messen- gers, etc., contrary to double pay restrictions, etc. R. S ., sets. 1763-1765, 3850, pp. 314, 752 . U.S. Code, pp.31,32, 1258 . Vol. 35, p. 1164. U.S. Code, p.490. Sums paid by postal employees to be re- funded. Sums authorized to be appropriated. March 1, 1929. (S .5270 .1 [Public, No . 894.] SEVENTIETH CONGRESS . SESS . II. CHs, 442-444 . 1929. if the total compensation actually paid for all services does not exceed $2,000 for any one fiscal year . SEC. 2 . T he Com ptroll er Gen eral o f the United States is au thoriz ed and directed to (1) allow credit in the accounts of present and former postmasters and acting postmasters for payments made by them, prior to the date of the enactment of this Act, to mail messengers, postal employees, and other employees of the United States employed in post offices contrary to the provisions of sections 1763, 1764, and 1765 of the Revised Statutes, as amended (United States Code ; title 5, sections 58, 69, and 70), section 3850 of the Revised Statutes (United States Code, title 39, section 52), and section 226 of the Act entitled "An Act to codify, revise, and amend the penal laws of the United States," approved March 4, 1909, as amended (United States Code, title 18, section 356) ; and (2) pay to such mail messengers, postal employees, and such other employees an amount equal to the sums refunded by them or deducted from balances due them prior to the date of the enactment of this Act, under the laws referred to in subdivision (1) of this section . SEC. 3. There are authorized to be appropriated such sums as may be necessary to carry out the provisions of this Act . Approved, March 1, 1929 . CHAP. 443 .-An Act To authorize the Secretary of War to donate a bronze cannon to the city of Phoenix, Arizona . Be it enacted by the Senate and House of Representatives of the Phoenix, Ariz . Bronze cannon at Unite d Stat es o f Ameri ca in Congre ss asse mbled, That the Secretary Fo rt ay, N. Y ., of war is authorized and directed to donate, without expense to the United States, to the city of Phoenix, Arizona, a bronze cannon marked as follows : L'Obstinee ultima ratio regum no 4. Pluribus nec impar a Strassburg par Berenger 1756, now located at Fort Jay, New York. Approved, March 1, 1929. March 1, 1929. [S. 5684.] [Public, No. 895 .] CHAP. 444.-An Act To amend the War Finance Corporation Act approved April 5, 1918, as amended, to provide for the liquidation of the assets and the winding up of the affairs of the War Finance Corpo ration after April 4, 19 29, and for other purposes. Be it enacted by the Senate and House of Representatives of the War Finance Corpo- Unite rationƒ d States of America in Congress assembled, That the War Liquidation of affairs Finance Corporation Act of April 5, 1918, as amended, be, and the of, after April 4, 1929, by Secretary of th e same is hereby, further amended so that at the close of April 4, 1929, Treasury. Vol. the liquidation of the assets remaining at that time and the winding 41, pp. 1084,1360 ; Vol. up of the affairs of the corporation thereafter shall be transferred to 42 Ante, p .40634, 5 . 1481 . the Secretary of the Treasury, who for such purpose shall have all the powers and duties of the board of directors of the corporation under said Act, as amended. For carrying out the provisions of this' Act the Secretary of the Treasury may assign to any officer or officers of the United States in the Treasury Deartment the exercise and performance, under his general supervision- and direction, of any such Money p aid int o powers and duties. He shall from time to time pay into the Treasury miscella- neous as miseellaƒ neous r eceipts. a s misc ellan eous recei pts any m oneys bel ongin g to the corpo ratio n which, in his opinion, are not required for carrying on and complet- ing the liquidation of its remaining assets and the winding up of its affairs, including reasonable provision for the further expenses there- No rights, penalties, of. Nothing in the said Act, as amended, or this Act, shall be con- strued to affect any right or privilege accrued, any penalty or liability

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text: Talk:Bank of Pittsburgh v. Neal/Opinion of the Court