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

The correctness of the judgment below depends, in part, upon the construction of the tenth section of the act of March 3, 1863, amendatory of the act of Feb. 24, 1855, establishing the Court of Claims. That section declares 'that every claim against the United States, cognizable by the Court of Claims, shall be for ever barred, unless the petition setting forth a statement of the claim be filed in the court, or transmitted to it under the provisions of this [that] act, within six years after the claim first accrues,' &c.

The claims against the government, of which the Court of Claims could, at that date, take cognizance, were those founded upon some law of Congress, or upon some regulation of an executive department, or upon some contract, express or implied, with the government of the United States, which might be suggested to that court by a petition filed therein; and also, all claims which might be referred to the court by either House of Congress. The limitation of six years applied, therefore, to every demand asserted against the government in the Court of Claims, which it had, when the act of 1863 was passed, jurisdiction to hear and determine. Within the meaning of the act all such claims were cognizable by that court.

By a subsequent statute, approved June 25, 1868, authority was given to the head of any executive department, whenever any claim was made upon that department involving disputed facts or controverted questions of law, where the amount in controversy exceeded $3,000, or where the decision would affect a class of cases, or furnish a precedent for the future action of any executive department in the adjustment of a class of cases, without regard to the amount involved in the particular case; or where any authority, right, privilege, or exemption was claimed or denied under the Constitution of the United States, to cause such claim, with all documents pertaining thereto, to be transmitted to the Court of Claims, to be there proceeded in as if originally commenced by the voluntary action of the claimant.

The court was also empowered to try and adjudicate any claim of like character, amount, or class transmitted to it by the Secretary of the Treasury, upon the certificate of an auditor or comptroller of the treasury.

But the act accompanied this enlargement of the jurisdiction of the Court of Claims with the restriction that no case should be referred to it by the head of a department, unless it belonged to one of the several classes of cases to which, by reason of the subject-matter and character, the court could, under the then existing laws, take jurisdiction on the voluntary action of the claimant.

The claim of appellee first accrued in 1864. It was presented to the War Department in the year 1865, and its settlement pressed so the finding declares-until Jan. 9, 1878. On that day, it was transmitted by the Secretary of War to the Court of Claims for its determination. It was transmitted, not, so far as the record shows, at the instance or with the consent of the appellant, but because it involved controverted questions of law, the decision whereof would affect a class of cases.

It is conceded by the government that the claim was presented at the proper department, and, when presented, was not barred by the limitation of six years. But the contention of the Attorney-General is that the Court of Claims is prohibited by the express words of the statute from giving judgment against the government upon any claim which is not asserted by petition filed therein within six years after the claim first accrued, or which is not within that period transmitted to the court from one of the Houses of Congress or by the head of an executive department.

We are unable to concur in this construction of the statute of March 3, 1863. Such a construction would work an injustice which we cannot suppose Congress intended should be done to the citizen having a demand against the government. The claim in question, although cognizable in the first instance by the Court of Claims, was yet properly presented at the department which had authority to pass finally upon it. It should have been there allowed or disallowed long before the expiration of six years from the time it first accrued. The claimant steadily pressed its settlement without, so far as the finding shows, any intimation that it was defectively prepared, or that it would be ultimately rejected. The department held it undisposed of until 1878, and then sent the claimant to the Court of Claims, where he was met at the very threshold of his case by a plea of limitation upon the part of the government. That plea, if sustained, would defeat the only object of the reference. It would prevent the department from obtaining for its future guidance the judgment of the court upon controverted questions of law affecting a large class of cases. It should not be sustained, unless we are required to do so by some absolute, unbending rule of construction.

When this claim was presented at the War Department for settlement, there was no statute allowing the heads of executive departments to refer claims to the Court of Claims for adjudication. But when the act of June 25, 1868, was passed, its provisions necessarily applied to all claims then before the executive departments which belonged to one of the several classes, of which, by reason of their subject-matter and character, the Court of Claims could take cognizance upon the voluntary petition of the claimant. The claim of appellee certainly belonged to one of those classes. It was not, as we have seen, barred by limitation, when that act was passed. It could, then, in 1868, have been referred by the War Department to the Court of Claims for its determination. But, instead of adopting that course, at a time when no question of limitation could be raised, its reference was postponed or delayed for nearly ten years after the passage of the act of 1868. We are satisfied that the delay was accidental, certainly not with any intention to defraud or injure the claimant. If the plea had, upon its face, admitted, or if the fact was established by competent evidence, that the delay in deciding, or in referring the claim to the Court of Claims, was intentional, or with a purpose to defeat the claimant, by limitation, the court would certainly not permit the government to profit by such a course. Why should a different conclusion be reached when the delay is unexplained, and is inconsistent with proper diligence in the transaction of the public business? It seems to the court that, looking at the purpose which Congress had in the establishment of the Court of Claims, and in enlarging its powers, as indicated in the acts of 1863 and 1868, the just and reasonable construction of the tenth section of the first-named act requires us to hold that limitation is not pleadable, in the Court of Claims, against a claim cognizable therein, and which has been referred by the head of an executive department for its judicial determination, provided such claim was presented for settlement at the proper department within six years after it first accrued; that is, within six years after suit could be commenced thereon against the government. Where the claim is of such a character that it may be allowed and settled by an executive department, or may, in the discretion of the head of such department, be referred to the Court of Claims for final determination, the filing of the petition should relate back to the date when it was first presented at the department, for allowance and settlement. In such cases, the statement of the facts, upon which the claim rests, in the form of a petition, is only another mode of asserting the same demand which had previously, and in due time, been presented at the proper department for settlement. These views find support in the fact that the act of 1868 describes claims presented at an executive department for settlement, and which belong to the classes specified in its seventh section, as cases which may be transmitted to the Court of Claims. 'And all the cases mentioned in this section, which shall be transmitted by the head of an executive department, or upon the certificate of any auditor or comptroller, shall be proceeded in as other cases pending in said court, and shall, in all respects, be subject to the same rules and regulations,' with right of appeal. The cases thus transmitted for judicial determination are, in the sense of the act, commenced against the government when the claim is originally presented at the department for examination and settlement. Upon their transfer to the Court of Claims they are to be 'proceeded in as other cases pending in said court.'

Whether if a claim be presented at the proper department when six years has elapsed after it first accrued, the government is at liberty, upon its transfer therefrom to the Court of Claims, to plead the limitation of six years, or whether the court, in such cases, must itself interpose the statute for the protection of the government, are questions not necessary to be decided in this case.

Touching the merits of the case, it appears that the appellee was required, by competent military authority, to leave his regiment, then on duty in the district of Humboldt, California, to the command of which he had been previously assigned, and report in person at the head-quarters of the department of the Pacific, in San Francisco, there to await further orders. He remained in that city, absent from his regiment, from about July 25, 1863, until Aug. 1, 1864, awaiting orders. It is immaterial that he performed no active duty while thus awaiting orders. He was subject to assignment for such duty, while in San Francisco, and, as said by the court below, the responsibility for his non-employment rested with his superior officer. What was said in United States v. Williamson (23 Wall. 411) has some application here. That case arose under the act of March 3, 1863, relating to the government of the army, by which it was enacted that any officer absent from duty with leave, except for sickness or wounds, shall, during his absence, receive half the pay and allowances prescribed by law, and no more. Williamson claimed full pay while absent, upon his own request, from his command. He was, however, required to remain at a particular place, and to await orders. Among other things we there said: 'The obligations of an officer directed to proceed to a place specified, there to await orders, are quite different. It is his duty to go to that place, and to remain at that place. He cannot go elsewhere; he cannot return until ordered. He is as much under orders, and can no more question the duty of obedience, than if ordered to an ambush to lie in wait for the enemy, to march to the front by a particular direction, or to the rear by a specified time.'

Nor is there any thing in United States v. Phisterer (94 U.S. 219) in conflict with the conclusion we have reached. We there held that an army officer at his own home awaiting orders, and having no public duty to perform, was not entitled to commutation for quarters or fuel. No such case is presented by the special finding.

Some stress is laid upon the fact that appellee has failed to show affirmatively that he made a demand on the proper officer at San Francisco for quarters and fuel in kind. There is some force in this suggestion, but, under the circumstances of this case, we do not think it should control our judgment. There is no evidence that quarters and fuel could have been furnished in kind. On the contrary, the records of the War Department show that most, if not all, the officers stationed in San Francisco during this period received commutation of quarters and fuel. In the light of all the facts found by the court below, and since it does not appear that the claim was objected to in the War Department upon any such ground, during the thirteen years it lay there, undisposed of, despite the fact that its settlement was steadily pressed by the claimant, we are disinclined to reverse the judgment because it does not appear affirmatively that appellee, upon his arrival in San Francisco, made a formal requisition for quarters and fuel.

Our conclusion is that, under the law as it stood when appellee's claim accrued, he was entitled to the commuted value of quarters and fuel while in San Francisco awaiting orders.

Judgment affirmed.


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

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
Burns v. Meyer

APPEAL from the Circuit Court of the United States for the Eastern District of Missouri.

The facts are stated in the opinion of the court.

Mr. Samuel S. Boyd for the appellants.

No counsel appeared for the appellees.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Burns v. Meyer


text: Talk:Burns v. Meyer

title: Talk:Burns v. Meyer


text:
Burns v. Meyer/Opinion of the Court

The only question in this case is, whether the defendants infringe certain letters-patent (No. 97,236) granted 23d of November, 1869, to John J. Grimsley and John Shelly, for an improved side-saddle tree alleged to have been invented by Shelly; which letters were afterwards assigned to the complainants.

The infringement alleged consists in making and using sidesaddle trees according to a plan described in another patent granted to Orlando V. Flora, on the 9th of May, 1876, numbered 177,233. According to the complainants' patent, this tree, composed of side-bars, cantle behind, and crook before, is first made, and the seat is constructed separately on a properly shaped rim, and is then fastened to the tree by screws, resting on the crook in front, and on supports attached to the side-bars in the middle and at the rear. This construction is claimed to simplify and cheapen the manufacture, and leave a space for air under the seat. The claim of the patent is as follows:--

'What I claim as my invention, and desire to secure by letters-patent is—

'As a new article of manufacture, a side-saddle tree, having the side-bars and seat made separate and then united, substantially as and for the purpose shown and specified.'

The defendants' side-saddle tree, constructed according to Flora's patent, which is alleged to be an infringement, does not have 'the side-bars and seat made separate and then united.' On the contrary, tough strips of wood, steamed and bent to a proper shape, are attached to the tree, as a part thereof, forming side-rails for the seat; that on the right or off side extending from the cantle to the crook, and that on the left or near side extending from the cantle to a point on the near side-bar some distance back of the crook. The seat is streteched over these strips or side-rails. It is obvious that the seat, in this case, cannot possibly be constructed separately from the side-bars. They must be united in one construction, forming a complete tree. The advantage of separate construction which the plaintiffs claim for their patented tree is not attained by that of Flora. It is true that room is left for the admission of air under the seat; but that by itself is not claimed as the invention of Shelly.

It is well known that the terms of the claim in letters-patent are carefully scrutinized in the Patent Office. Over this part of the specification the chief contest generally arises. It defines what the office, after a full examination of previous inventions and the state of the art, determines the applicant is entitled to. The courts, therefore, should be careful not to enlarge, by construction, the claim which the Patent Office has admitted, and which the patentee has acquiesced in, beyond the fair interpretation of its terms.

We think there was no infringement.

Decree affirmed.

title: Burns v. Meyer/Opinion of the Court


text: Talk:Burns v. Meyer/Opinion of the Court


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Branch v. United States

APPEAL from the Court of Claims.

The facts are stated in the opinion of the court.

Mr. Theodore H. N. McPherson for the appellants.

The Attorney-General, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Branch v. United States


text: Talk:Branch v. United States

title: Talk:Branch v. United States


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

This case presents the following state of facts:--

In June, 1865, the marshal of the United States for the middle district of Alabama seized certain cotton belonging to the appellants, by order of the District Court of that district, upon the information of the district attorney, under the Confiscation Act. Pursuant to an order of the court made in the progress of the suit for condemnation, the property was sold, and the proceeds paid over, under the direction of the court, to the clerk. The clerk, having been notified by the Interior Department that the First National Bank of Selma, Alabama, had been designated by the Secretary of the Treasury as a depositary of public money, deposited in July, 1866, to his own credit as clerk in that bank the money received by him from the marshal. This deposit was made pending the condemnation suit and to await the further orders of the court. In January, 1871, the suit was dismissed and judgment entered in favor of the defendants for costs. In the mean time the Bank of Selma had failed, and in the proceedings for winding up its affairs under the National Banking Act a dividend amounting to $641.32 upon this deposit was paid to the court, and then by order of the court paid over to the claimants, less a small amount allowed by the judge to an auditor appointed by him to ascertain the facts. This suit was brought against the United States to recover the balance of the original deposit, upon the ground that, as the bank was at the time when the deposit was made a designated depositary of public money, it was part of the treasury of the United States, and that consequently the deposit made by the clerk was equivalent to a payment of the money into the treasury, binding the United States to the claimants for its return in case the court should determine, in the condemnation suit, that the cotton when seized was not liable to confiscation.

The position assumed by the appellants is to our minds wholly untenable. The designated depositaries are intended as places for the deposit of the public moneys of the United States; that is to say, moneys belonging to the United States. No officer of the United States can charge the government with liability for moneys in his hands not public moneys by depositing them to his own credit in a bank designated as a depositary. In this case, the money deposited belonged for the time being to the court, and was held as a trust fund pending the litigation. The United States claimed it, but their claim was contested. So long as this contest remained undecided, the officers of the treasury could not control the fund. Although deposited with a bank that was a designated depositary, it was not paid into the treasury. No one could withdraw it except the court or the clerk, and it was held for the benefit of whomsoever in the end it should be found to belong.

The whole subject is elaborately considered in the opinion of the Court of Claims, and we deem it unnecessary to attempt to add to what has there been said.

Judgment affirmed.


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


text:
Nagle v. Rutledge

MOTION to dismiss a writ of error to the Supreme Court of the Territory of Wyoming.

The facts are stated in the opinion of the court.

Mr. Edward P. Johnson for the defendant in error, in support of the motion.

Mr. W. R. Steele, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Nagle v. Rutledge


text: Talk:Nagle v. Rutledge

title: Talk:Nagle v. Rutledge


text:
Nagle v. Rutledge/Opinion of the Court

To give us jurisdiction in cases coming from the Supreme Court of the Territory of Wyoming, the value of the matter in dispute must exceed $1,000. This writ of error was sued out by the defendant below on a judgment against him for only $969.63. It is claimed we have jurisdiction, however, because the defendant in his answer set up a counter claim for $1,340. The only question presented here on that branch of the case is whether the plaintiff below was liable for interest on a note of $210, at the rate of three per cent a month from the twenty-fourth day of June, 1872, until the date of the judgment, July 26, 1876, or for some shorter period. In no event could the amount thus put in controversy reach $1,000; and since if error should be found in the charge of the court on this claim, it would only result in a reduction of the judgment as it now stands, and not in an actual money recovery in favor of the defendant below, it follows that our jurisdiction is not shown by the record, and that the suit must be dismissed.

So ordered.

title: Nagle v. Rutledge/Opinion of the Court


text: Talk:Nagle v. Rutledge/Opinion of the Court


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Machine Company v. Gage

ERROR to the Supreme Court of the State of Tennessee.

The facts are stated in the opinion of the court.

Mr. R. McPhail Smith for the plaintiff in error.

No counsel appeared for the defendant in error.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Machine Company v. Gage


text: Talk:Machine Company v. Gage

title: Talk:Machine Company v. Gage


text:
Machine Company v. Gage/Opinion of the Court

The Howe Machine Company is a corporation of the State of Connecticut. It manufactured sewing-machines at Bridgeport, in that State, and had an agency at Nashville, in the State of Tennessee. From the latter place, an agent was sent into Sumner County to sell machines there. A tax was demanded from him for a pedler's license to make such sales. He denied the validity of the law under which the tax was claimed, but, according to a law of the State, paid the amount demanded by the defendant, as clerk of the county court. The company, who brought this suit to recover it back, was defeated in the lower court, and the judgment was affirmed by the Supreme Court of the State.

The Constitution of Tennessee (art. 11, sect. 30) declares that 'no article manufactured of the produce of this State shall be taxed otherwise than to pay inspection fees.'

'Sales by pedlers of articles manufactured or made up in this State, and scientific or religious books, are exempt from taxation.' Code of Tennessee, sect. 546.

'All articles manufactured of the produce of the State' are exempt from assessment or taxation. Acts of 1875, c. 98, sect. 10.

'All pedlers of sewing-machines and selling by sample' shall pay a tax of ten dollars. Code, sect. 553 a, subsect. 43.

By a subsequent act of the legislature, this tax was increased to fifteen dollars.

The sewing-machines here in question were made in Connecticut. The Supreme Court of the State held, in this case, 'that the law taxing the pedlers of such machines, levied the tax upon all pedlers of sewing-machines, without regard to the place of growth or produce of material or of manufacture.'

We are bound to regard this construction as correct, and to give it the same effect as if it were a part of the statute. Leffingwell v. Warren, 2 Black, 599.

The question presented for our consideration is not difficult of solution. A brief reference, however, to some of the adjudications of this court, bearing with more or less directness upon the subject, may not be without interest.

A State cannot require a license to be taken out to sell foreign goods while remaining in the packages in which they were imported. Such a law is contrary to the provision of the Constitution of the United States touching the laying of imposts by a State, and to the commerce clause of that instrument. Brown v. The State of Maryland, 12 Wheat. 419.

A State cannot give to the master and wardens of a port, in addition to other fees, the sum of five dollars, whether they are called on to perform any service or not, for every vessel arriving in the port. This would be a regulation of commerce and a tonnage duty, both involving the exercise of a power which is withheld from the States. Steamship Company v. The Portwardens, 6 Wall. 31.

A purchaser of goods coming from abroad, the goods to be at his risk until delivered to him, is not an importer, and the goods may be taxed while in the original packages. Waring v. The Mayor, 8 id. 110.

The provision in the Constitution of the United States that 'no State shall levy imposts or duties on imports or exports,' does not refer to articles brought from one State into another, but exclusively to articles imported from foreign countries. Hence, a tax imposed by a State upon all auction sales, whether by citizens of such State or of another State, and whether the articles are the products of such State or of another State, without any discrimination, is valid. Woodruff v. Parham, id. 123.

Where a State imposes the same rate of taxation upon like articles, whether brought from another State or the products of the State imposing the tax, the tax may be enforced. Hinson v. Lott, id. 148.

A State cannot impose a higher tax upon pedlers from another State than is imposed upon her own citizens under like circumstances. Any discrimination in favor of the latter is fatal to the statute. Ward v. State of Maryland, 12 id. 163, 418.

A State cannot impose a tonnage tax upon vessels belonging to her own citizens, and engaged exclusively in commerce between places within her own limits. Id. 204.

A State law imposing a tax upon freight brought into, taken from, or carried through the State is a regulation of commerce, and contrary to the provision of the Constitution which declares that 'Congress shall have power to regulate commerce with foreign nations, between the several States, and with the Indian tribes.' Case of the State Freight Tax, 15 id. 232.

A State cannot impose a tonnage tax upon vessels owned in foreign ports, to defray the expenses of administering her quarantine regulations. Peete v. Morgan, 19 id. 581.

A tax for a license to sell goods is in effect a tax on the goods authorized to be sold.

A law which requires a license to be taken out by pedlers who sell articles not produced in the State, and requires no such license with respect to those who sell in the same way articles which are produced in the State, is in conflict with the power of Congress to regulate commerce with foreign nations and among the several States. This power applies to articles taken from one State into another, until they become mingled with and a part of the property of the latter, and thereafter protects such articles from any burden imposed by reason of their foreign origin.

The non-exercise by Congress of the power to regulate interstate commerce is equivalent to a declaration that it shall be free from any restrictions. Welton v. State of Missouri, 91 U.S. 275.

A State may demand from a vessel a list of passengers, with their ages, places of birth, occupations, last place of legal settlement, &c. Such a requirement is a police regulation. City of New York v. Miln, 11 Pet. 102.

But it cannot require a sum to be paid for each passenger landed. Passenger Cases, 7 How. 283.

A statute which imposes a heavily burdensome condition upon a shipmaster as a prerequisite to landing his passengers, and allows him the alternative of paying a small sum for each one landed, is a regulation of commerce, and therefore void.

What may be done by a State to protect itself from the influx of paupers and convicted criminals, in the absence of legislation on the subject by Congress, is left undecided. Henderson v. The Mayor of New York et al., 92 U.S. 260.

A tax by a State on the amount of goods sold at auction is a tax upon the goods so sold. A law which requires every auctioneer to pay into the State treasury a tax on his sales is, when applied to goods imported and sold in the original packages, in conflict with sects. 8 and 10, art. 1, of the Constitution of the United States, and therefore invalid. Cook v. Pennsylvania, 97 id. 566.

A State cannot by law authorize a municipal corporation to exact such wharfage as it may deem reasonable from vessels using certain designated wharves, and laden with articles not the products of the State, while vessels laden with such products of the State are exempted from any charge whatever. Such a statute, and an ordinance enacted by the corporation to carry it out, are void. They are a regulation of commerce. Guy v. Baltimore, supra, p. 434.

In all cases of this class to which the one before us belongs, it is a test question whether there is any discrimination in favor of the State or of the citizens of the State which enacted the law. Wherever there is, such discrimination is fatal. Other considerations may lead to the same result.

In the case before us, the statute in question, as construed by the Supreme Court of the State, makes no such discrimination. It applies alike to sewing-machines manufactured in the State and out of it. The exaction is not an unusual or unreasonable one. The State, putting all such machines upon the same footing with respect to the tax complained of, had an unquestionable right to impose the burden. Woodruff v. Parham, Hinson v. Lott, Ward v. State of Maryland, Welton v. State of Missouri, supra.

Judgment affirmed.


text: Talk:Machine Company v. Gage/Opinion of the Court


text:
Embry v. United States

APPEAL from the Court of Claims.

This was a suit in the court below by Bowling Embry to recover $4,644.75 as the amount of salary claimed to be due him as deputy postmaster of Nashville, Tenn., from May 27, 1869, to July 25, 1870.

The court found the following facts:--

1. On the 20th of April, 1867, the claimant was appointed by the President of the United States, by and with the advice and consent of the Senate, deputy postmaster at Nashville, in the State of Tennessee, for the term of four years from that day, and the commission issued to him was in the following words:--

'ANDREW JOHNSON, President of the United States of America, to all who shall see these presents, greeting:

'Know ye, that, reposing special trust and confidence in the integrity, ability, and punctuality of Bowling Embry, I have nominated, and, by and with the advice and consent of the Senate, do appoint him deputy postmaster at Nashville, in the State of Tennessee, and do authorize and empower him to execute and fulfil the duties of that office according to law; and to have and to hold the said office, with all the powers, privileges, and emoluments to the same of right appertaining, unto him, the said Bowling Embry, for the term of four years from the day of the date hereof, subject to the conditions prescribed by law.

'In testimony whereof, I have caused there letters to be made patent and the seal of the United States to be hereunto affixed.

'Given under my hand, at the city of Washington, the twentieth day of April, in the year of our Lord one though eight hundred and sixty-seven, and of the independence of the United States of America the ninety-first.

[L. S.] 'ANDREW JOHNSON.

'By the President:

'WILLIAM H. SEWARD, Secretary of State.'

2. Under this appointment the claimant entered upon the discharge of the duties of said office, and continued therein until the 27th of May, 1869, when, in consequence of an order made by the President of the United States, under the act of April 5, 1869, suspending him from said office, he delivered over said office to one Enos Hopkins, who had been designated by the President to perform the duties of deputy postmaster at Nashville, and the commission authorizing him to perform said duties was in the following words:--

PCQ! 'ULYSSES S. GRANT, President of the United States of     America, to all who shall see these presents, greeting:

'Know ye, that by virtue of the authority conferred upon the President by the second section of the act of Congress, approved April 5, 1867, entitled 'An Act to amend an act regulating the tenure of certain civil offices,' I do hereby suspend Bowling Embry from the office of deputy postmaster at Nashville, in the State of Tennessee, until the end of the next session of the Senate; and I hereby designate Enos Hopkins to perform the duties of such suspended officer in the mean time, he being a suitable person therefor, subject to all provisions of law applicable thereto.

'In testimony whereof, I have caused these letters to be made patent, and the seal of the United States to be hereunto affixed.

'Given under my hand, at the city of Washington, the fifth day of May, in the year of our Lord one thousand eight hundred and sixty-nine, and of the independence of the United States of America the ninety-third.

[L. S.] 'U.S. GRANT.

'By the President:

'HAMILTON FISH, Secretary of State.'

3. On the 6th of December, 1869, the President nominated the said Hopkins to the Senate for appointment as deputy postmaster at Nashville, and on the 15th of July, 1870, the Senate resolved that it did not advise and consent to that appointment.

4. On the 21st of July, 1870, the following communication was addressed and sent by the First Assistant Postmaster-General to the claimant:--'POST-OFFICE DEPARTMENT, APPOINTMENT OFFICE,

'WASHINGTON, D. C., July 21, 1870.

'SIR,-In the case of Enos Hopkins, rejected by the Senate of the United States, under date of July 15, 1876, he is, under the provision of the act of March 2, 1867, and April 5, 1869, regulating the tenure of certain civil offices, inhibited from holding, exercising, or discharging any of the duties pertaining to the office of postmaster at Nashville, Tenn. You should take charge of said office at once under your unexpired commission, for the time being and until the case can be submitted to the Attorney-General. Upon taking charge of the office you will receipt to Mr. Hopkins (in duplicate) for all the public property in his possession, and report the date of your doing so to this office.

'Very respectfully, &c.,

'J. W. MARSHALL,

'First Assistant Postmaster-General.

'BOWLING EMBRY, Esq., Nashville, Tenn.'

In pursuance of the authority of said communication, the claimant again took possession of said office on the 25th of July, 1870.

5. While the claimant was in possession of said office, prior and up to the 27th of May, 1869, he gave his personal attention to the business thereof to the entire satisfaction of the Post-office Department and of the people of Nashville, and punctually and promptly rendered to the Sixth Auditor of the Treasury his accounts of all moneys collected and disbursed by him during that period, and promptly paid over to the United States all balances due from him to them, and his account was satisfactorily settled and adjusted on the books of the said auditor's office.

6. During the whole period from May 27, 1866, to July 25, 1870, and afterward, the salary of said office was fixed by the Postmaster-General at the rate of $4,000 per annum; and the same amounted for that period to $4,645.47, which was paid to said Hopkins, and refused to the claimant, who applied to the Postmaster-General for payment of the same to him.

Upon the foregoing facts the court found as a conclusion of law that the claimant was not entitled to recover.

Judgment having been rendered for the United States, Embry appealed, and here assigns the following errors:--The Court of Claims erred in holding as matter of law upon the facts found that the claimant was not entitled to the salary of the office during the time he was suspended.

The court erred in holding that the claimant was not entitled to the said salary from the end of the next session of the Senate, after his suspension, even if not entitled to it during the time he was suspended,

''Mr. Matt. H. Carpenter and Mr. J. H. Embry'' for the appellant.

1. An act of Congress which provides that a suspended officer shall not receive the salary and emoluments of the office is unconstitutional.

The appointment gives the officer a legal right to the salary by law attached to the office, until he is removed, resigns, dies, or his term expires. Marbury v. Madison, 1 Cranch, 137.

The Constitution provides that the President shall nominate, and by and with the advice and consent of the Senate appoint, all officers of the United States. The power of removal is an incident to the power to appoint, and must be exercised by the President and Senate together. An act of Congress cannot vest the power of removal elsewhere. From this it follows that the claimant never was removed from the office, and, consequently, that he is entitled to the salary for the whole term.

2. Conceding the act of Congress in question to be constitutional, and that the claimant was not entitled to the salary during the period of his suspension, still, that period being fixed by the statute to expire on the termination of the next session of the Senate, it follows that from that day he was entitled to the salary. The judgment of the Court of Claims is erroneous to this extent, even should the act be held constitutional.

The Attorney-General, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Embry v. United States


text: Talk:Embry v. United States

title: Talk:Embry v. United States


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

By the tenure-of-office act, passed March 2, 1867 (14 Stat. 430), it was enacted that every person appointed to a civil office by and with the advice and consent of the Senate should hold his office until his successor should be in like manner appointed and duly qualified, excet as therein otherwise provided; but the President was authorized during the recess of the Senate to suspend an officer for misconduct, crime, or incapacity. In case of suspension, the President could designate some suitable person to perform temporarily the duties of the office until the matter should be acted on by the Senate when in session. If the Senate concurred in the suspension, and advised and consented to the removal, the President might remove and by and with the advice and consent of the Senate appoint another person to the office. If, however, the Senate refused to concur, the officer suspended might resume the functions of his office, but his salary and emoluments during the suspension went to the person who performed his duties, and not to him.

On the 20th of April, 1867, while this law was in force, Embry, the appellant, was, by and with the advice and consent of the Senate, appointed and commissioned postmaster at Nashville, Tenn., the salary being at the rate of $4,000 a year. By his commission he was to hold his office for four years, 'subject to the conditions prescribed by law.'

On the 5th of April, 1869, the original tenure-of-office act was amended, so as to authorize the President in the recess of the Senate to suspend an officer at his discretion until the end of the then next session of the Senate, and to designate some person to perform the duties of the office in the mean time, who should be entitled to the salary and emoluments while he served, instead of the officer suspended. 16 Stat. 6.

Under the authority of this act, Embry was suspended from office on the 5th of May, 1869, during a recess of the Senate, and Enos Hopkins designated to perform his duties. Embry, however, remained in the office until May 27. The Senate did not advise or consent to the appointment of any one to fill the place of Embry during its next session, which terminated July 15, 1870, and he was, on the 21st of July, notified to resume the charge of his office, which he did on the 25th of that month. The salary from May 27, 1869, to July 25, 1870, was paid to Hopkins. This suit was brought by Embry to recover for the same time. The Court of Claims decided against him, and he appealed.

We have had no difficulty in reaching the conclusion that the appellant is not entitled to recover. The important constitutional question which has at times occupied the attention of the political department of the government ever since its organization, and which was brought to our attention in the argument, is not, as we think, involved. The question here presented is not one of office, but of salary. Wherever the power of removal from office may rest, all agree that Congress has full control of salaries, except those of the President and the judges of the courts of the United States. The amount fixed at any one time may be added to or taken from at will. No officer except the President or a judge of a court of the United States can claim a contract right to any particular amount of unearned compensation. If an officer is not satisfied with what the law gives him for his services, he may resign.

When Embry was appointed, the President had power to suspend him for cause. The law also provided that if suspended he should draw no salary so long as another person was performing his duties. While he was in office, further power of suspension was given the President, with a like provision as to pay. He was suspended. The Senate did not see fit to advise or consent to the appointment of another person in his place, and consequently, on the 15th of July, 1870, when the next session of the Senate ended, he became entitled to enter again on the performance of the duties which pertained to his office. This he did on the 27th of July, but not before. His present claim rests not on any contract with the government, either express or implied, but upon the acts of Congress which provide for his salary. We so held in United States v. McLean, 95 U.S. 750. To adjudge in his favor would be to make a new law, not to enforce an old one. Although he was lawfully in office, he was not entitled to pay or emolument while not performing its duties because of his suspension.

It is true his lawful suspension ended on the 15th of July, but he did not resume possession until ten days afterwards. In the mean time, the person designated for that purpose performed his duties. Under these circumstances, the law gave the salary to the actual incumbent and not to him. The delay was an incident to the suspension, and does not seem to have been unreasonable. No more time elapsed than was necessary to give the proper notices and transfer the possession.

Judgment affirmed.


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


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Page:Dictionary of National Biography volume 60.djvu/52

 On 6 Sept. 1757 he was created doctor of physic of the university of Halle, and about the same time of Wittemberg; he had already been elected member of the Royal Academy of Madrid. After having been disfranchised from the Society of Apothecaries he began to practise as a physician, and after examination was admitted L.R.C.P. on 22 Dec. 1759. About this time he moved from Aldersgate Street to Lincoln's Inn Fields. In October 1762 he was chosen physician to the Foundling Hospital, and retained this office till his death. On 30 Sept. 1784 he was elected fellow of the Royal College of Physicians. He was censor of the college in 1785 and 1786, and was knighted on 6 Oct. in the latter year, being one of those deputed by the college to congratulate George III on his escape from assassination by Margaret Nicholson. He was also a trustee of the College of Physicians, and for some time vice-president of the Royal Society. He died in Lincoln's Inn Fields on 10 May 1787. ‘Watson,’ says Pulteney, ‘was a most exact œconomist of his time … up usually in summer at six or earlier;’ he was in speech ‘clear, forcible, and energetic,’ ‘a careful observer of men,’ and endowed with an extraordinary memory, being called by his friends ‘the living lexicon of botany;’ he was, as a physician, of particularly humane temper.

Watson had a large foreign correspondence with Jean André Peyssonel, Clairaut, Bose of Wittemberg, the Abbé Nollet, Bernard de Jussieu, and others. In 1748 he showed civility to the naturalist Peter Kalm (1715–1779), a pupil of Linnæus, and in 1761 to Dr. Peter Simon Pallas of St. Petersburg (July 1761 to April 1762).

Watson contributed his first papers on electricity to the Royal Society in the course of 1745 and February 1746 (Phil. Trans. xliii. 481, xliv. 41, 695), and published them separately under the title ‘Experiments … [on] the Nature … of Electricity’ in 1746, a second edition being published in the same year. He notices therein that although ice, as well as water, is an ‘electric’ or non-conductor, moist air conducts, and he explains thereby the failure of electrical experiments in wet weather. On 30 Oct. 1746 (loc. cit. xliv. 704) Watson read his ‘Sequel to the Experiments … [on] Electricity,’ also published separately in the same year; he shows therein by his own experiments and those of his friend John Bevis [q. v.] that the ‘stroke’ of the recently discovered Leyden jar was, cæteris paribus, proportional not to its size, but to the conducting surfaces of its coatings—a point to which he returned later (Phil. Trans. 1748, xlv. 102). He notices that the ‘electrical force always describes a circuit’ (loc. cit. p. 718), and propounds the theory that in an electrical machine the glass globes, &c., have not the electrical power in themselves, but only serve as ‘the first movers and determiners of that power.’ He agrees with the Abbé Nollet in regarding electricity as existing normally everywhere in a state of equilibrium, and regards the electrical machine as comparable to a pump which accumulates electricity on the bodies we term ‘electrified.’ Watson's theory, though less clearly formulated, is hardly distinguishable from that of Benjamin Franklin. In his next paper (read 21 Jan. 1748, loc. cit. xlv. 93) Watson elaborates this theory and defines it more closely, quoting at the same time from Franklin's famous first letter (dated 1 June 1747) on the subject to Peter Collinson [q. v.] During 1747 and 1748 Watson, in conjunction with Martin Folkes [q. v.], then president, and a number of other members of the Royal Society, along with Bevis, carried out a long series of experiments on ‘the velocity of electric matter’ across the Thames at Westminster Bridge, at Highbury, and at Shooter's Hill, Watson planning and directing all the operations. They found that no appreciable interval could be perceived between the completion of the circuit 12,276 feet long, uniting the two coatings of a Leyden jar, and the receipt of the shock by an observer in the middle of the circuit; they conceived that the velocity of electricity was ‘instantaneous.’ In 1751 Watson, then ‘the most interested and active person in the kingdom in everything relating to electricity’, took great trouble to demonstrate the fallacy of certain statements of Georg Matthias Bose (1710–1761) and Johann Heinrich Winkler (1703–1770). In February 1752 he gave an account of the experiments on the electrical discharge in vacuo, on which he had been occupied since 1747, which, together with those of Nollet, are the first on the subject. In experimental details he was helped by John Smeaton [q. v.] and by Lord Charles Cavendish. He gives an accurate account of the phenomena, finds that rarefied air conducts electricity, though not so well as metals, and compares the discharge to the aurora borealis. On 16 Dec. 1762 he read before the Royal Society the substance of a letter to Lord Anson, first lord of the admiralty, advocating the use of the lightning conductors of Franklin for the powder magazine then being constructed at Purfleet. The Royal Society was formally consulted in the matter, and a committee was appointed to consider it, consisting of Watson, Henry Cavendish [q. v.],


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National Bank v. Burkhardt

ERROR to the Circuit Court of the United States for the Southern District of Ohio.

The facts are stated in the opinion of the court.

Mr. Timothy D. Lincoln for the plaintiff in error.

Mr. George A. Sage and Mr. E. W. Kittredge, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: National Bank v. Burkhardt


text: Talk:National Bank v. Burkhardt

title: Talk:National Bank v. Burkhardt


text:
National Bank v. Burkhardt/Opinion of the Court

On the 23d of February, 1875, Burkhardt, the defendant in error, executed, for the benefit of John Cinnamon, an instrument to the bank whereby he stipulated 'to guarantee and make good to said bank any sum or sums which may hereafter be held against the said John Cinnamon, to an amount not exceeding $50,000,' and notice 'from time to time of the amount and extent of such indebtedness' was waived.

As originally drawn, the guaranty included Cinnamon's existing as well as his future liabilities. Burkhardt refused to sign it, unless what related to the former was stricken out.

This was done by the vice-president of the bank, and Burkhardt thereupon signed and delivered the instrument. This was in the afternoon of the day above named.

The only controversy between the parties, as the case is presented here, relates to a check for $10,997, drawn by Cinnamon upon the bank, in favor of Evans, Lippincott, & Co.

It appears by the bill of exceptions that the check was presented to the bank by the payees on the day of its date, the 23d of February, 1875, and that the bank 'gave evidence tending to show that when the check was so handed in it was without the pass-book, and was placed aside by the receiving teller for examination after the close of banking hours before it should be credited; that the receiving teller had been instructed by the cashier not to credit Cinnamon's account with checks left until after the close of bank hours, when the account was examined and found good; that when the checks of Cinnamon were left on that day, the depositors were informed that they would not be passed to their credit unless found good after the close of bank hours; that there was at the time, and for a long time had been, a notorious usage in Cincinnati in receiving checks from depositors on them, and that this usage peculiarly applied to large banks, like the First National, by which checks left in the bank in the morning by depositors were held until after close of the bank, subject to be returned in the afternoon if found, upon balancing the accounts, not to be good; that such had been the usage in the First National Bank since its organization in 1861, and that it was a bank of $1,500,000 capital; and that such usage was general and notorious among the customers of the bank.' And that the 'defendant thereupon gave evidence tending to show that no such usage existed, and to contradict all the evidence of plaintiff in relation thereto, and in reference to any notice to the depositors in regard to Cinnamon's check as testified to by the plaintiff, and tending to show that Evans, Lippincott, & Co. had no knowledge or understanding in regard to said check, except that it was received on deposit and as a deposit when it was left with the bank.'If the check were to be considered as received on deposit when it was left with the teller, and Cinnamon was the debtor of the bank and the bank his creditor from that time, then the transaction was not within the guaranty, and Burkhardt was not liable. If, on the other hand, the bank had the right to hold the check until after bank hours, and then to make its election, and to credit the depositor and charge Cinnamon with the amount, as was done, the check was covered by the guaranty, and the bank was entitled to recover.

These alternatives were the hinges of the controversy upon the trial.

The question presented was decisive of the case. Its solution was for the jury under instructions from the court. It is insisted by the plaintiff in error that the court erred in the instructions given.

The general charge embraced topics not brought before us, doubtless for the reason that, with respect to them, both parties acquiesced in the findings of the jury. The charge was full and able. In our judgment, it was correct in every thing it touched upon, and it covered the entire case.

Having given such a charge, the court was not bound to give any further instructions, and it would have been as well if the judge had declined to give those submitted by the plaintiff in error.

It appears that they were seven in number. Only the last four are in the record. They affirm or deny, with only a change of phraseology, what had been said in the charge already given.

The jury was properly cautioned not to be misled or confused by them. There is danger of both in such cases.

The first of these special charges, as we find them in the record, was given as asked for without qualification. Nothing need, therefore, be said in relation to it.

The second one, with the addition made to it by the court, is as follows: 'That if checks of John Cinnamon on the bank were left at the bank on the 23d of February, 1875, but were not passed upon by the receiving teller, or received as a deposit, nor entered in any pass-book or other book of the bank to the credit of the parties leaving them, but were laid aside for examination until after bank hours, when an examination could be made to see whether Cinnamon's account was good, then they did not become a debt of Cinnamon to the bank until they were so passed upon and entered.'

This charge the court gave, adding, 'If it was handed in as a deposit, it became a deposit at the time it was received. Taking the surrounding circumstances into consideration, if it was received by the teller as a deposit, it became a deposit. That I give you, for it has these words in it, 'or received as a deposit."

For most purposes the law regards the entire day as an indivisible unit. But when the priority of one legal right over another, depending upon the order of events occurring on the same day, is involved, this rule is necessarily departed from. Thus, where a mortgage took effect from the time it was deposited for record on a particular day, and a judgment became a lien upon the premises on the same day, proof was received to show that the mortgage was deposited before the court sat, and it was held that the mortgage must be first satisfied. Follett v. Hall, 16 Ohio, 111. A like inquiry is involved in this case.

In Morse's well-considered work on Banking, p. 321, it is said: 'But if at the time the holder hands in the check he demands to have it placed to his credit, and is informed that it shall be done, or if he holds any other species of conversation which practically amounts to demanding and receiving a promise of a transfer of credit, as equivalent to an actual payment, the effect will be the same as if he had received his money in cash, and the bank's indebtedness to him for the amount will be equally fixed and irrevocable.'

We regard this as a sound and accurate exposition of the law upon the subject, and it rests upon a solid basis of reason. The authority referred to sustains the text.

When a check on itself is offered to a bank as a deposit, the bank has the option to accept or reject it, or to receive it upon such conditions as may be agreed upon. If it be rejected, there is no room for any doubt or question between the parties. If, on the other hand, the check is offered as a deposit and received as a deposit, there being no fraud and the check genuine, the parties are no less bound and concluded than in the former case. Neither can disavow or repudiate what has been done. The case is simply one of an executed contract. There are the requisite parties, the requisite consideration, and the requisite concurrence and assent of the minds of those concerned. It was well said by an eminent Chief Justice: 'If there has ever been a doubt on this point, there should be none hereafter.' Oddie v. The National City Bank of New York, 45 N. Y. 735.

We see no objection to the amendment made by the court to the instruction under consideration. It was correct in point of law, and it was proper to prevent any misunderstanding by the jury. It told them tersely and clearly, as the principal charge had done, that if the check was offered and received as a deposit it was a deposit, and it followed as matter of law that the bank was bound accordingly. Whether there had or had not been a consummated deposit was the ultimate fact to be found by the jury. The evidence is not, and should not have been, set forth in the bill of exceptions. All on the subject to be found there is that the parties gave evidence tending to prove what they respectively claimed. What that evidence was we do not know, and it is in no wise necessary that we should be advised upon the subject. The facts and circumstances, whatever they were, and the probative force and weight of each one, were exclusively for the consideration of the jury. The evidence may have been more or less cogent on either side, and more or less characterized in parts or in its entirety by internal conflicts and contradictions, or by other neutralizing qualifications. With all this we have nothing to do. The subject is beyond the sphere of our power and duties. We sit here to correct the errors committed by the court, if there were any, as disclosed in the record. The verdict, as the case is before us is as if it were not. If it was wrong, the remedy was with the court below by a new trial. It cannot be administered here.

The third instruction involves substantially the same point as the second. It was given with a like addition, and an exception was taken. What we have said with respect to the second exception applies here.

The fourth and last instruction was, that if, at the bank, there had been for a long time a usage 'that the receiving teller entered checks in the pass-book, as they came in, subject to a return of the checks to the depositors if in the afternoon of the day, when the accounts were examined, the checks were found not to be good, and to return the same to the party depositing them, and such were then made good by the depositor,. . . such usage would be a valid and legal usage as between the depositors and the bank.'

The court refused to give this charge as asked, but gave it as thus qualified:--

'Nothing in this case shows that Mr. Evans knew any thing about this usage. As to the question of general usage, I have said that it was not competent to change the law in the case, when the deposit was made without any thing said about the deposit by the persons receiving the deposit,-the law made that a debt against the bank in favor of the depositor; but if the depositor knows the usage in cases of that kind, why, as a matter of course, it will change it.'

The plaintiff in error excepted.

The proposition submitted was fatally defective in not including as one of its terms that the depositors knew of the special and particular usage mentioned. Without such knowledge it was entirely ineffectual. The objection of the judge was conclusive. Moore v. Voughton, 1 Stark. 396; 1 Chitty, Contr. 84.

The principal charge was full and clear in regard to the general usage or custom insisted upon by the plaintiff in error. Upon that subject the judge, among other things to the like effect, remarked: 'It is said by the plaintiff by way of proof, that although there was no express agreement between Evans, Lippincott, & Co., the depositors of this check, and the bank, that it should be returned in case it should not be found good at three o'clock, or shortly thereafter, yet that there was a general usage among bankers of the city of Cincinnati of that character, which extended to all their customers, and, therefore, it had become a law. The question of usage, as presented here, is undoubtedly a very important question, and as a general proposition of law every commercial contract is entered into with the understanding that the usage in regard to the particular matter of the contract becomes a part and parcel of the contract itself.'A large part of the able and elaborate argument of the counsel for the plaintiff in error was addressed to this point. In our view, conceding the usage to have been established, it was in no wise material as a factor in the case.

The verdict of the jury, by rejecting the claim of the bank touching the check, established the fact that the deposit became complete by the agreement of the parties when the check was handed in. As a necessary consequence, it was not within the undertaking of Burkhardt. Usage, therefore, could have had no effect upon the rights of the parties, and was immaterial. The result of the case must have been the same as if that subject had not been drawn in question.

A general usage may be proved in proper cases, to remove ambiguities and uncertainties in a contract, or to annex incidents, but it cannot destroy, contradict, or modify what is otherwise manifest. Where the intent and meaning of the parties are clear, evidence of a usage to the contrary is irrelevant and unavailing.

Usage cannot make a contract where there is none, nor prevent the effect of the settled rules of law. Barnard v. Kellogg, 10 Wall. 390; Bliven v. New England Screw Co., 23 How. 433; Collender v. Dinsmore, 55 N. Y. 200; Adams v. Goddard, 48 Me. 212; Thompson v. Riggs, 5 Wall. 674; Dykers v. Allen, 7 Hill (N. Y.), 497.

These considerations apply to the posture of the case as it was found to be by the verdict of the jury, under instructions, properly given, by the court. According to those tests, the contract was clear, complete, and irrevocable when the check was delivered by one party and received by the other. After that there was nothing left for usage to do. Its aid, when the controversy arose, was invoked too late. If the bank proposed to hold the check on conditions, it was but fair and just to the other party to have said so when it was received, and thus have given him the option, after such notice, to do with it as he might think proper. The saving or loss of the amount to the payees might have depended on the promptitude and energy of their conduct. Delay until after bank hours might have determined the result inevitably against them. It would be contrary to plainest principles of reason and justice to permit a bank, under such circumstances, to shift the burden of the loss from itself to the shoulders of an innocent depositor.

It does not appear by the record that any evidence offered by the bank, touching the general usage, was excluded, and we think that was said by the court in that connection, as well as with respect to the special usage of the institution, was unexceptionable, and was quite as favorable to the bank as it had a right to claim.

If either side had ground for complaint, it was not the plaintiff in error.

Judgment affirmed.


text: Talk:National Bank v. Burkhardt/Opinion of the Court


text:
Manning v. Insurance Company

ERROR to the Circuit Court of the United States for the Southern District of New York.

The facts are stated in the opinion of the court.

Mr. William Henry Arnoux for the plaintiff in error.

Mr. James C. Carter, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Manning v. Insurance Company


text: Talk:Manning v. Insurance Company

title: Talk:Manning v. Insurance Company


text:
Manning v. Insurance Company/Opinion of the Court

The John Hancock Mutual Life Insurance Company, on the second day of December, 1868, employed Manning and one Hall as its general agents for New York and other States, to secure applications for life insurance, and to collect and pay over premiums on insurances effected. It was stipulated that the agreement should continue in force three years from Sept. 1, 1867, and that it might thereafter be terminated by either party on giving six months' notice. By the contract, the compensation allowed to Hall and Manning was twenty per cent on the ordinary premiums upon all policies (excepting those paid for by single payments) for the first year, and seven and one half per cent for the second and subsequent years of assurance. An additional allowance was also made for travelling and incidental expenses. It was further stipulated that these allowances should continue to be paid for twenty-five years from the date of each policy, should any continue so long in force; and, further, that the agents should remit monthly all moneys collected by them, and return all uncollected policies and receipts sent to them for collection by the company. The contract declared that commissions should accrue only as the premiums were paid to the company.

On the 13th of May, 1870, Hall assigned his interest in the contract to Manning, with the approval of the company.

On the seventeenth day of September, 1870, a new arrangement in lieu of the former was made between the parties, by which it was agreed that Manning should thenceforward receive for his compensation $5,000 per annum, the commission to sub-agents to be twenty-five and seven and one-half per cent; that Manning should collect the renewals of the old business of Hall, and Hall and Manning, and receive the renewal commissions which said renewals were entitled to under the former contract. This contract was terminable at the option of the company at any time within three years.

About the 1st of June, 1871, the company discharged Manning from its service, for reasons which the verdict in the case establishes to have been lawful and sufficient, and brought this suit to recover its money in his hands.

Among other defences set up against the claim of the plaintiff, the defendant offered to show that a set-off existed in his favor for commissions collected and received by the plaintiff from May 1, 1871, to Dec. 23, 1871, and interest thereon to the time of the trial. To sustain this (after having made proof of notice to the plaintiff to produce the books and papers necessary to show the amount of renewal premiums received by it from policies obtained through his agency during the period mentioned, and the books and papers not being produced), he gave evidence to prove that on the 2d of June, 1871, there were policies in force upon which the annual premiums would be $87,000, as it appeared in his accounts with his sub-agencies; that his annual commissions upon the premiums would amount to $8,391.14; and that, computing the amount which would be due to him, accruing between June 2, 1871, when he was discharged, and Dec. 23, 1871, when the suit was commenced, they amounted to about $4,754.97.

But no direct proof whatever was given that any of the policies in force on the 1st of May, 1871, or on the 2d of June, 1871, had been renewed or extended, or that any of the annual premiums becoming payable after those dates had been paid to or received by the plaintiff.

Upon this evidence the Circuit Court instructed the jury, in effect, that if the defendant had been removed from his agency without justifiable cause, they might find from it what amount the plaintiff should have received of renewal premiums; but if they found he was justifiably removed, there was no proof for their consideration of the amount of renewal premiums received or collected in the hands of the company upon which he was entitled to commissions.

In another part of the charge the same instruction was given, though in different order. It was, that if by his own conduct the defendant rendered his removal necessary, before he could recover from the plaintiff his portion of the renewals, it would be incumbent upon hism to show, not only how many policies had been taken by his agency, and the premiums due upon them, but also that the premiums had been paid to the plaintiff. On the other hand, if by its wrongful act of removing him the plaintiff deprived him of the means of collecting the premiums, then when he had shown that renewal premiums to a certain amount were due and payable upon life policies at the time when he was removed, which because of its own act the plaintiff was bound to collect, if collectible, he was entitled to the presumption that they were collected as they became due, and, therefore, the burden would rest upon the company to show that policies had lapsed, or that without its fault it had been unable to collect the renewal premiums. To so much of these instructions as ruled in effect that if the defendant was rightfully dismissed from the employment of the plaintiff there was no evidence for the consideration of the jury as to the amount of the renewals, and, of course, of the amount of commissions thereon, exception was taken, and it is now assigned for error.

We think, however, the defendant has no reason to complain. The charge was, at least, quite as favorable to him as he had any right to ask. By his contract wit the plaintiff it was expressly stipulated that the 'commissions should accrue only as the premiums are paid to the company.' It was incumbent upon him, therefore, to prove, not merely that they were due, which might possibly have been paid, but that they had been actually paid, and paid not merely to his sub-agents, but paid to the plaintiff. If they had been thus paid, the plaintiff held the money, to the extent of the commissions, for his use. If they had not been paid to the plaintiff, it had nothing in hand which belonged to him. His set-off was in the nature of an action for money had and received to his use. The plaintiff owed him nothing until it received the money. Now, it is very plain that proof of the existence of outstanding premiums which became payable before his set-off was pleaded fell short of any proof that those premiums had been actually paid, or that they were in the hands of the plaintiff.

It is argued, however, that because the plaintiff failed to produce its books and papers necessary to prove the amount of renewal premiums received by it, the defendant was at liberty to prove the amount by what he calls 'secondary evidence;' or, in other words, 'by the best evidence the case afforded.' This may be admitted; but the receipt of the renewal premiums by the plaintiff was still a fact to be proved, either by direct or circumstantial evidence.

No direct proof of such receipt was offered, as we have said. None was attempted. The defendant might have resorted to a subpoena duces tecum, or to an order of the court to produce papers and books, or, perhaps, to a bill of discovery. He did neither. He simply proved, as a fact, that there were life policies in existence, secured through his agency, renewal premiums upon which fell due before the suit was brought. His evidence stopped there, and he now complains that the jury was not allowed to presume from that fact that the renewal premiums had been paid to the plaintiff, and to presume it against a party who was not in the wrong, a party who had rightfully dismissed him from his agency, and who was under no obligation to collect the premiums at all. But was that a conclusion which the jury should have been permitted to draw from the fact proved? It is error to submit to a jury to find a fact of which there is no competent evidence. From the fact that a debt existed, it does not follow as a necessary or even reasonable sequence that it had been paid. Nor is there any presumption of its payment upon which a jury can act. Certainly none until after the lapse of twenty years. Much less can such a presumption arise in regard to the payment of renewal premiums upon policies of insurance such premiums not being debts due to the insurers, and not being collectible as debts. We do not question that a jury may be allowed to presume the existence of a fact in some cases from the existence of other facts which have been proved. But the presumed fact must have an immediate connection with or relation to the established fact from which it is inferred. If it has not, it is regarded as too remote. The only presumptions of fact which the law recognizes are immediate inferences from facts proved. Remarking upon this subject in United States v. Ross (92 U.S. 281, 284), we said: 'Whenever circumstantial evidence is relied upon to prove a fact, the circumstances must be proved, and not themselves be presumed.' Referring to the rule laid down in Starkie on Evidence, page 80, we added: 'It is upon this principle that courts are daily called upon to exclude evidence as too remote for the consideration of the jury. The law requires an open and visible connection between the principal or evidentiary facts and the deductions from them, and does not permit a decision to be made on remote inferences. Best on Evid. 95. A presumption which a jury may make is not a circumstance in proof, and it is not, therefore, a legitimate foundation for a presumption. There is no open and visible connection between the fact out of which the first presumption arises and the fact sought to be established by the dependent presumption. Douglass v. Mitchell, 35 Pa. St. 440.'

If these principles be applied to the present case, the inadmissibility of the presumption which the defendant contends the court should have permitted the jury to draw becomes apparent. That renewal premiums to a certain amount, upon which he was entitled to commission, had been paid to the company, was the ultimate fact which was necessary to be proved. What the evidence did prove was, that there were policies in force on the 2d of June, 1871, the annual premiums upon which were $87,000; that he would be entitled to commissions upon renewals of the policies, if they should be thereafter renewed, and if the renewal premiums should be paid to the company, and that these premiums were to be collected by his sub-agents and paid over by them. These were the primary facts. Every thing more was left to presumption. The jury, therefore, were to presume that the policies did not lapse, and that they were renewed. Built on this presumption was another, namely, that the renewal premiums were paid to the agents; and upon this a further presumption, that the premiums had been paid over by the agents to the company, or had been immediately collected by it. This appears to us to have been quite inadmissible. A verdict of a jury found upon such evidence would have been a mere guess. The evidences of fact did not go far enough. We think, therefore, the court was not in error in withdrawing it from the consideration of the jury.

What we have said renders it unnecessary to notice at length the several assignments of error. If there was no evidence of the receipt of renewal premiums by the company, what would have been the interest upon them had they been received was quite immaterial. So, also, was it immaterial to show what would have been the probable duration of the policies.

Judgment affirmed.


text: Talk:Manning v. Insurance Company/Opinion of the Court


text:
National Bank v. Graham

ERROR to the Supreme Court of the State of Pennsylvania.

The facts are stated in the opinion of the court.

Mr. George H. Williams for the plaintiff in error.

Mr. John Hays, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: National Bank v. Graham


text: Talk:National Bank v. Graham

title: Talk:National Bank v. Graham


text:
National Bank v. Graham/Opinion of the Court

The capital stock of the First National Bank of Carlisle, Pennsylvania, was $500,000, divided into five hundred shares of $1,000 each. From Nov. 9, 1869, Samuel Hepburn, the president, owned four hundred and sixty shares. His son, C. H. Hepburn, was the cashier, and he and Hopewell Hepburn, another son and a director, owned ten shares each. From Oct. 19, 1871, H. M. Hepburn, also a son and director, owned ten shares. John G. Orr, the teller and a director, owned the remaining ten shares. With one exception, these persons were directors from the year 1870. In 1867, Fannie L. Graham, the defendant in error, had $4,000 of 7.30 bonds of the United States deposited in the bank for safe-keeping. They were called in by the government, and at her request the cashier had them converted into the same amount of 5.20 bonds. These also were left in the bank for safe-keeping. The cashier gave her a receipt, dated Oct. 22, 1868, setting forth this fact and that the bonds were to be returned on the return of the receipt. The cashier cut off the coupons and collected them and placed the proceeds to her credit on the books of the bank, and paid her the amount as it was demanded. She kept an account with the bank. Before and after the times mentioned, the officers of the bank were accustomed to receive such deposits from others in the same way and for the same purpose. They were entered in a book kept by the bank. The fact of there being such deposits was frequently spoken of by the directors at meetings of the board. Some of the directors and quite a number of other persons had such deposits in the bank. No compensation was expected or received by the institution. It was a bailee without reward. The bank alleged that on the 5th of August, 1871, the bonds of the defendant in error were stolen from its vault. She did not learn the fact until some two or three weeks afterwards. She heard that some other securities belonging to her and so deposited had been stolen, and upon inquiry at the bank was told that those securities had been found upon a neighboring highway and had been returned, but that her government bonds had been stolen also and had not been recovered. She was requested to say nothing about their loss, and was assured that the interest should be regularly paid to her, and that the value of the bonds should also be made good, so that she should not be a loser. The interest was accordingly paid up to the 1st of July, 1873, inclusive. This suit was brought to recover the value of the bonds.

The defendant in the court below asked the court to instruct the jury that the bank, being a corporation chartered under the national banking laws, 'was not authorized to receive bonds and valuables for safe-keeping;' that 'the act of the cashier in taking the bonds of the plaintiff was not within the scope of his powers and duties as cashier, and, therefore, did not bind the bank; and that the plaintiff could not recover.' This instruction the court refused to give, and the defendant excepted.

The jury was instructed that, 'to justify a recovery against the defendant in this case, they must be satisfied from the evidence that the plaintiff's bonds were received for safe-keeping with the knowledge and acquiescence of the officers and directors of the bank, and that if the bonds were lost by the gross negligence of the bank or its officers, the bank was liable.' The defendant again excepted. A verdict was rendered for the plaintiff. The jury thus found and affirmed the facts of knowledge and gross negligence by the bank. These points are, therefore, conclusively established, and are not open to inquiry.

Conceding for the moment that the contract was illegal and void for the reason alleged in behalf of the bank, the consequence insisted upon would by no means follow. There was no moral turpitude on either side,-certainly none on the part of the depositor. She was entitled at any time to reclaim the securities. The bank was bound in good faith and in law to return them, or to keep them, without gross negligence until they were called for. If, when applied for, they were refused, it cannot be doubted that they, or their value, according to the form of action adopted, might have been recovered. White v. The Franklin Bank, 22 Pick. (Mass.) 181. If the bank had destroyed them or had thrown them into the street, whereby they were lost to the plaintiff, the liability of the bank would have been the same. To have kept them with gross negligence, whereby the same consequence to the plaintiff was incurred, involved necessarily the same result to the depositary. The only way of escape from liability open to the latter would have been to return the property to the owner, or to get rid of its possession otherwise in some lawful way. Gross negligence on the part of a gratuitous bailee, though not a fraud, is in legal effect the same thing. Foster v. Essex Bank, 17 Mass. 479. It is a tort, and an action on the case is the appropriate remedy for such a wrong. In many cases where there is a valid contract it may be regarded only as inducement and as raising a duty, for the breach of which an action may be brought ex contractu or ex delicto, at the option of the injured party. 1 Chitty, Pl. 151.

Corporations are liable for every wrong they commit, and in such cases the doctrine of ultra vires has no application.

They are also liable for the acts of their servants while such servants are engaged in the business of their principal, in the same manner and to the same extent that individuals are liable under like circumstances. Merchants' Bank v. State Bank, 10 Wall. 604. An action may be maintained against a corporation for its malicious or negligent torts, however foreign they may be to the object of its creation or beyond its granted powers. It may be sued for assault and battery, for fraud and deceit, for false imprisonment, for malicious prosecution, for nuisance, and for libel. In certain cases it may be indicted for misfeasance or nonfeasance touching duties imposed upon it in which the public are interested. Its offences may be such as will forfeit its existence. Philadelphia, Wilmington, & Baltimore Railroad Co. v. Quigley, 21 How. 209; 2 Wait, Actions and Defences, pp. 337-339; Angell & Ames, Corporations, sects. 186, 385; Cooley, Torts, pp. 119, 120.

Recurring to the case in hand, it is now well settled that if a bank be accustomed to take such deposits as the one here in question, and this is known and acquiesced in by the directors, and the property deposited is lost by the gross carelessness of the bailee, a liability ensues in like manner as if the deposit had been authorized by the terms of the charter. Foster v. Essex Bank, supra; Lancaster County National Bank v. Smith, 62 Pa. St. 47; Scott v. The National Bank of Chester Valley, 72 id. 471; The First National Bank of Carlisle v. Graham, 79 Pa. 106; Turner v. The First National Bank of Keokuk, 26 Iowa, 562; Smith v. The First National Bank in Westfield, 69 Mass. 605; Chattahooche National Bank v. Schley, 58 Ga. 369. The only authorities in direct conflict with these adjudications, to which our attention has been called, are Willey v. The First National Bank of Brattleboro, 47 Vt. 546, and Whitney v. The First National Bank of Brattleboro, 50 id. 389.

The case first cited (Foster v. Essex Bank) was argued exhaustively by the most eminent counsel of the time, and decided by a court of great judicial learning and ability. Their opinion is marked by careful elaboration.

The special deposit there was a cask containing gold coin. While it was maintained that the bank would have been liable for its loss by gross negligence, it was held that such negligence in that case had not been shown.

Here, gross negligence is conclusively established. The depositor kept an account in the bank. The cashier cut off and collected the coupons, and placed the proceeds to her credit. The bonds, therefore, entered into the legitimate and proper business of the institution. But it is unnecessary to pursue this view of the subject further, because we think there is another ground free from doubt upon which our judgment may be rested.

The forty-sixth section of the Banking Act of 1864, re-enacted in the Revised Statutes of the United States, sect. 5228, declares that, after the failure of a national bank to pay its circulating notes, &c., 'it shall not be lawful for the association suffering the same to pay out any of its notes, discount any notes or bills, or otherwise prosecute the business of banking, except to receive and safely keep moneys belonging to it, and to deliver special deposits.' This implies clearly that a national bank, as a part of its legitimate business, may receive such 'special deposits;' and this implication is as effectual as an express declaration of the same thing would have been. United States v. Babbit, 1 Black, 55.

The phrase 'special deposits,' thus used, embraces deposits such as that here in question. Patterson v. The Syracuse National Bank, Court of Appeals of New York (recently decided and not yet reported). In that case it was said 'a reference to the history of banking discloses that the chief, and in some cases the only, deposits received by the early banks were special deposits of money, bullion, plate, &c., for safe-keeping, and to be specifically returned to the depositor; and such was the character of the business done by the Bank of Venice (the earliest bank) and the old Bank of Amsterdam, and the same business was done by the Goldsmiths of London and the Bank of England, and we know of none of the earlier banks where it was not done.'

It would, undoubtedly, be competent for a national bank to receive a special deposit of such securities as those here in question, either on a contract of hiring or without reward, and it would be liable for a greater or less degree of negligence accordingly.

We do not mean that it could convert itself into a pawnbroker's shop. That subject involves topics alien to the case before us, and which in this opinion it is unnecessary to consider.

Judgment affirmed.


text: Talk:National Bank v. Graham/Opinion of the Court


text:
Cox v. National Bank Clardy

ERROR to the Circuit Court of the United States for the District of Kentucky.

The first of these cases is an action by the National Bank of the State of New York against Merritt Cox, the drawer, J. C. Whitlock, the payee, and W. F. Cox and William Cowan, the two last doing business as partners under the firm name of Cox & Cowan, the acceptors of the following bill:--

'$5,000. HOPKINSVILLE, KY., Aug. 3, 1875.

'Eighty days after date pay to the order of J. C. Whitlock five thousand dollars, value received, and charge to account, renewing a bill for same amount and names, due Aug. 3, 1875.

'MERRITT COX.

'To Messrs. COX & COWAN, New York, N. Y.'

Written across the face of the bill were the words, 'Accepted: Cox & Cowan.'

Whitlock indorsed said bill to E. M. Wright & Co., of New York, who in turn indorsed it to the bank.

The petition of the plaintiff alleges the presentation of the bill in the city of New York for payment, the refusal thereof, and protest and notice to the drawer and indorser.

Cox & Cowan made no defence.

Merritt Cox and Whitlock, however, answered, denying notice of protest, the due and proper presentation of the bill, or the demand of payment.

At the trial, the plaintiff, having read the bill and the protest thereof to the jury, offered evidence tending to show that the notary intrusted with said bill made reasonable and diligent inquiry for the acceptors and their place of business in New York City at the place or places frequented by them when there, and could not, after such inquiry, find them or any place of business of them or either of them; that he then demanded payment on the day of maturity in business hours at the place so frequented by them when in said city, and that payment of said bill was then and there refused; that they caused inquiry to be made by the said notary in New York on the twenty-fifth or twenty-sixth day of October, 1875, of E. M. Wright, a resident of New York City, and one of the firm of E. M. Wright & Co., who indorsed said bill to the bank, as to the post-office address respectively of said Merritt Cox and J. C. Whitlock; that said notary was then informed by said Wright that the post-office address of each of said defendants was Hopkinsville, Ky.; that said notary, on the twenty-sixth day of October, 1875, mailed notices of said protest to each of said defendants at Hopkinsville, Ky. There was no evidence to show that the bank, or any one for it, at any time made any other inquiries for the post-office address of either or both of said defendants.

Cox and Whitlock introduced evidence tending to show that the bill was drawn by Merritt Cox, accepted by Cox & Cowan, and indorsed by Whitlock, all in Hopkinsville, Ky.; and it was there delivered to G. V. Thompson, to whom the bill, of which the one in suit was a renewal, had been sent by E. M. Wright & Co., who had indorsed the same to the bank as collateral security, and had received it after maturity from the bank (the holder) for the purpose of having it renewed; that Thompson sent the bill in suit to said Wright & Co., who immediately delivered it to the bank, and informed it that the bill had been executed and accepted in Kentucky; that at the time of the execution and acceptance of said bill, and at the time of its maturity, the acceptors thereof, W. F. Cox and William Cowan, composing the firm of Cox & Cowan, each resided in Hopkinsville, Christian County, Ky., and had their place of business there, and not elsewhere; that the bank, when it took said bill, and when it was executed and when it matured, was informed and had knowledge that the residence and place of business of Cox & Cowan were at Hopkinsville, Ky., at all the times aforesaid; that there was no presentment for payment of said bill or demand of payment of the same to or upon said acceptors, or either of them, in person or at their residence or place of business in Kentucky on the day of its maturity, or at any time; that there was no agreement to pay said bill in New York except as shown upon its face; that the post-office address of both Merritt Cox and J. C. Whitlock was then, and at all previous times for fifteen years had been, Newstead, Ky., and never at Hopkinsville, and that at all times when the bill in suit or the previous one existed G. V. Thompson, to whom the bill had been sent, resided in Hopkinsville, Ky., and well knew the post-office address of both Cox & Whitlock to be Newstead, Ky., and not Hopkinsville, that mail facilities between Hopkinsville and New York were ample and daily, and that a letter reached one place from the other in three days; that there was telegraphic communication between the two places; that E. M. Wright & Co. were factors and commission merchants in New York, and in that capacity did business for Cox & Cowan, and in the course thereof the bill was received; that each of the firm of Cox & Cowan during the course of said business, and up to June, 1875, on different occasions visited New York on business, and while there wrote and received letters at the office of said Wright & Co., and looked after business intrusted with said factors, and did the like with other factors in their employment in said city.

The plaintiff then introduced evidence tending to show that the original bill was sent to G. V. Thompson by said E. M. Wright & Co., who corresponded with said Thompson in their own names, disclosing no sort of agency for the bank; that he procured the renewal of said bill at their instance and by their instruction, and sent it to them when obtained; that he had no communication with the bank, and was never at any time in any respect its agent, and did not inform it or Wright & Co. of the post-office address of Merritt Cox or Whitlock, and was not inquired of as to either, and afterward had no further connection with the bill.

The court instructed the jury that the bills of exchange were in law payable in the city of New York, notwithstanding the plaintiffs may have known, before making acceptance and indorsement thereof, that the acceptors, Cox & Cowan, actually resided at Hopkinsville; that if the jury believed that the notary made reasonable and diligent inquiry for the acceptors at their place of business in New York, at the place or places frequented by them in that city, and could not after such inquiry find them or their place of business, then the demand of payment during business hours on the day of the maturity of the bill at the place so frequented by them in the city of New York was sufficient; that if the bank did not know the post-office address of the drawer, Merritt Cox, and the indorser, J. C. Whitlock, and if the notary made inquiry as to their several post-office addresses of Wright & Co., who had assigned the bills to the plaintiff, and who were the correspondents of the acceptors, and in the judgment of the notary were likely to be informed as to such post-office addresses, and who professed to know them, and was informed that their post-office office address was Hopkinsville, Ky.; and if the notary transmitted notices on the day after the protest by mail, postpaid. to the drawer and indorsers at the post-office address so ascer tained by the notary, such notice of protest was good to bind the drawer and indorsers respectively.

The defendants excepted to these several instructions, and also made several requests for instructions, each of which was refused.

There was a verdict and judgment for the plaintiff. The defendants, Merritt Cox and Whitlock, then sued out this writ of error.

In the second case the facts are in substance identical with those in the first case, except that J. D. Clardy was the payee and indorser of the bill.

Mr. Walter Evans for the plaintiffs in error.

The fact that the bill of exchange was addressed to Cox & Cowan, New York, N. Y., does not render it at all events payable there, and it was error for the court to so instruct the jury. Rowe v. Young, 2 B. & B. 276; Fenton v. Goundry, 13 East, 468; Chitty, Bills, 151; Lighter v. Will, 2 Watts & S. (Pa.) 140; Fisher v. Evans, 5 Binn. (Pa.) 541.

The acceptors never had a residence or place of business in New York. On the contrary, they lived and did business in Hopkinsville, Ky., where the bill was executed and delivered. Their residence or place of business was not subsequently changed. These facts were known to the bank when it took the bill, and before its date, and when it matured. Hence, in the exercise of the diligence necessary to bind the drawer and indorser, it was absolutely essential that presentment for payment should have been made in Kentucky at the maturity of the bills. Taylor v. Snyder, 3 Denio (N. Y.), 145; Spies v. Gilmore, 1 N. Y. 321; Bank of Orleans v. Whittemore, 12 Gray (Mass.), 469; 1 Parsons, Bills and Notes, 421-425, 441, 453; In re Glyn, 15 Nat. Bank. Reg. 502, 503; Fisher v. Evans, supra; Musson v. Lake, 4 How. 274; Whitesides v. Northern Bank, 10 Bush (Ky.), 502; Barnes v. Vaughan, 6 R. I. 259; Story, Bills, last clause, sect. 325.

While a protest was unnecessary, demand of payment and notice were quite as essential as in case of a foreign bill. Hager v. Boswell, 4 J. J. Marsh. (Ky.) 62.

The address of the drawee on a bill of exchange is nothing more than an intimation of where he is, or of where he resides or does business. It is perhaps prima facie his residence. Rowe v. Young, supra; Fenton v. Goundry, 13 East, 468; Chitty, Bills, 151; Lowry v. Scott, 24 Wend. (N. Y.) 358.

Mr. William D. Shipman and Mr. W. W. Macfarland, contra.

The bills were addressed to the drawees at the city of New York, and were accepted generally. They were therefore payable at that city.

No matter in what part of the world the acceptors may, in fact, have dwelt, they, by accepting a bill addressed to them at New York, elected to reside there for the purpose of its presentation and payment. Smith v. Little, 10 N. H. 526; 1 Am. Lead. Cas. (5th ed.), p. 454; Story, Bills, sect. 353; Chitty, Bills, 172-175, 322, 323, 397.

The duty of the holder is performed when he has made diligent effort to find the acceptor at the place where he has undertaken to pay the bill.

It follows that the charge on this point was right. Story, Bills, sect. 351 and note; 3 Kent, Com. (12th ed.), p. 96 and notes; 1 Parsons, Notes and Bills, p. 440 and note.

The charge of the court below upon the question of notice to the drawer and the indorsers of the bills was clearly within the rule laid down in Lambert v. Ghiselin, 9 How. 256. See also Hunt v. Maybee, 7 N. Y. 266; Story, Bills of Exchange, sects. 299, 308, 351, 387; Carter v. Smith, 9 Cush. (Mass.) 321.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Cox v. National Bank Clardy


text: Talk:Cox v. National Bank Clardy

title: Talk:Cox v. National Bank Clardy