Page images
PDF
EPUB

to say, whether they do or do not and brought in a verdict of GUILTY affect Mr. Salmon. upon each indictment.

With this charge the jury retired,

MARTIN VS. THE BANK OF THE UNITED STATES.

The case was argued at the last October session, of the circuit court of the United States for the second circuit, upon a statement of facts, which set forth, that the plaintiff was the owner of a number of notes of the bank of the United States, amounting, in the whole, to $500, which his agent, after the publication of a notice by the directors that the bank would not pay cut notes unless all the parts were produced, divided into halves at Cincinnati, Ohio, and forwarded in two parcels, by different mails, for Philadelphia, one of which parcels never arrived. The demand of the plaintiff was for the payment of the full amount of the notes.

Mr. Binney argued for the plaintiff, and Mr. Sergeant for the U. S. bank.

The opinion of judge Washington was as follows:

WASHINGTON, J.-I have carefully reviewed the decision of this court in the case of Bullet vs. the bank of Pennsylvania, aided by the light shed upon the question involved in that and the present case, by the able argument of the counsel on each side. My opinion remains unchanged, and is, indeed, confirmed by the two American cases cited at the bar, and particularly the luminous argument of judge Drayton, in the case of Patton vs. the State Bank.

The principles upon which this

court decided the case of Bullet
vs. the bank of Pennsylvania,
were, that a bank or any other pro-
missory note, is the evidence of a
debt due by the maker to the hold-
er of it, and nothing more.
It is,
also, the highest species of evi-
dence, if it be in the power of the
owner of the note to produce it.
But, if it be lost, or destroyed, or
by fraud or accident has gone into
the possession of the maker, the
owner does not thereby lose his
debt, but the same continues to ex-
ist in all its vigor, unaffected by
the accident which has deprived
the owner of the means of proving
The debt
it by the note itself.
still existing, the law, which al-
ways requires of a party that he
should produce the best evidence
of his right of which the nature of
the thing is capable, permits him,
where such better evidence is lost,
or destroyed, or not in his power,
to give inferior evidence; by pro-
ving the contents of the lost pa-
per, and if this be satisfactorily
made out, he is entitled to re-

cover.

If the evidence be not lost, but is merely impaired by accident, or even by design, if such design be not done to injure the maker or to cancel the debt, the principles of law is the same. Cutting a bank note into two parts, does not dis charge the bank from the debt of which the note was but the evidence, nor does it even impair the

evidence itself, if by uniting the parts, the contents of the entire note can be made out. If one of the parts should be lost or destroyed, the debt would be no more ef fected than if the entire note had been lost or destroyed. The evidence is impaired, indeed, not only by the act of cutting the note, but by the same accident which would have effected the entire note had that been lost. In both cases, the owner must resort to secondary evidence, and is bound to prove that the note did once exist, that it is lost or destroyed, and that he is the true and bona fide owner of the debt. If one part only of the note be lost, the difficulty which the real owner of it has to encounter, in proving his right to the debt, is diminished.

For if the entire

note be lost to the owner of it, at the time of the accident, he may not be entitled to the debt of which it was the evidence at the time he demanded payment, because the note, passing from hand to hand, by bare delivery, may have been found, and have got into the possession of a bona fide holder. But against the real owner of one half of the note there cannot possibly be an opposing right. The finder, or robber, of the other half part, cannot assert a right to the debt, because he cannot prove that he came fairly to the possession of the evidence of it. I speak judicially, when I say he cannot prove this fact, because he cannot do it without the aid of perjury, which the law does not presume, and can in no instance guard against.

If the lost half note gets fairly into the hand of a third person, he takes it with notice that there may be a better title in the possessor of the other half, and, consequently,

he looks for indemnity to the person from whom he received the half part, if it should turn out that he was not the real owner of the entire note. It is impossible, therefore, that the bank can be legally called upon to pay the note twice; and if the officers of the institution suffer themselves to be imposed upon, by insufficient or false evidence, by which means the bank is brought into this predicament, she must abide the loss, as being occasioned by an error of judgment in the officers of the bank, or their want of due caution. The law cannot adapt its provisions to every possible case that may occur, and it therefore proceeds from necessity upon general principles, applicable to all cases. If upon any other ground than fraud and perjury, the maker of the lost note may, by possibility, be twice charged; the law will not expose him to that risk, by relieving the asserted owner of it, not because there may be imposition in the case, or because the debt ought not to be paid, but because the proof that the claimant is the real owner of the debt is defective; for it by no means follows, that because the lost note did belong to him, that it may not be the property of some other person. A court of law, therefore, will, in such a case, dismiss the party from a form which has no means of securing the maker of the note against a double charge, and leave him one, where those who ask of it equity, will be compelled to do equity.

The case, then, resolves itself very much into a question of jurisdiction. For it is quite clear, that the real owner of a debt, the evidence of which is lost, is entitled

to supply the want of the better evidence, by that which is secondary; and this rule of evidence is the same in equity, as at law. But whether the application for relief shall be in the one court or the other, must depend upon the particular case, and its fitness for the one jurisdiction or the other.

Many difficulties were stated by the defendant's counsel, to which the practice of cutting the notes and transmitting them by mail, exposes banking institutions, in identifying the part of a note when produced for payment. That these difficulties do, in a measure, exist, must be admitted; but the bank knows there can be but one owner of the note, and who that one is, must be satisfactorily proved, to entitle him to the payment of it. The bank has a just right to call for such proof; and if it be truly and faithfully given, there can be no risk in paying it.

The pos

sessor of the other part of the note, as already observed, by whatever means acquired, can never oblige the bank to pay the money over again to him. But after all, the rule of law does not rest upon these circumstances. The maker of the note is bound to pay to the person who proves himself to be the legal owner of it, and the difficulties complained of are not greater than those which attend most litigated questions. It may not be improper here to observe, that the decision in the case of Bullet vs. the bank of Pennsylvania, did not proceed upon any usage applicable to the case, none such was stated in the case agreed, or alluded to by the court. The next question is new; no case like it was cited at the bar, nor is there any within the recollection of the

[ocr errors]

court. It is, nevertheless, withina the range of some general principles of law, by the light of which, I think, it may be decided.

The question is, whether it was competent to the bank to notify the holders of her notes, that in case they should be voluntarily cut into parts, she would not pay them, unless all the parts should be brought together.

I mean to treat the question as if the notice were brought home to the plaintiffs. It is unnecessary in this case to decide how far parties to a contract may, by positive stipulations, change the rules of evidence applicable to that particular contract. If they may do so, it must be upon the basis of an agreement assented to by both parties.

But upon what principle is it, that one party to a contract can prescribe terms to absolve himself from the obligation, without the assent of the other. I know of none. If the banks could dictate to the holders of her notes the condition stated in this notice, upon the performance of which, and not otherwise, she would pay them, she might with equal authority prescribe any other condition, and declare in what case she would pay, and in what case she would not. The note is the evidence of an engagement by the bank to pay a certain sum of money to the bearer of it, and the general law of the land declares, that if such note or a part of it should be lost or destroyed, the debt shall nevertheless be paid upon satisfactory proof being made of the ownership or loss. Thus sanctioned these notes pass from hand to hand; and if the bank can nevertheless discharge herself from the obli

gation to pay them, unless both parts of the note be produced, or unless the note be produced entire, (and there is no difference between the two cases,) then the arbitrary declaration of the bank must be stronger than the law. This observation applies with equal force to every other species of contract, where one of the parties to it at tempts to prescribe to the other the rules of evidence by which alone he will be governed.

I thought the defendant's counsel seemed unwilling to contend that the bank could go the length of declaring that they would not pay a lost note, or one which had been torn or defaced by accident; but if the court is correct in their opinion upon the first point, it follows, that the law as much as compels the bank to pay the owner of half a note, where the other half is lost, as to pay in the two cases supposed; and if so, the right of the bank to prescribe terms in the one case, if admitted, would be equally valid in the others. There can be no difference, unless it be, that in the one, the notes were voluntarily cut, in the other, they

were torn by accident; but the owner of the debt being also the owner of the paper which is the evidence of it, he had a legal right to cut it; and by doing so, he could not impair its obligation, unless he intended to do so. In all these cases, the note is cut with a view to the security, not the destruction of the debt, by dividing the chances of preserving part of the evidence of it, in case the other part should be lost. The defendants do not condemn the practice, even if it could for a moment be admitted that they had a right to do either. That is not the gravamen stated in the notice-it is the production of one of the parts for payment unaccompanied by the other part. That is the case in which the bank declares she will not pay, and in which the law pronounces she shall pay.

I am of opinion, that judgment should be entered for the plaintiff.

PETERS, Justice, delivered his opinion, entirely concurring with that of judge Washington.

Judgment for plaintiff for the full amount of the notes.

Six hundred and fifty-one Chests Hyson Skin Tea. LIPPINCOTT & Co. claimants, ad. THE UNITED STATES.

This case comes up on a writ of error to the district court of the southern district of New York. The seizure of the teas having been made upon land, the information was filed in that court, as a court of common law, and the cause tried by a jury, and a special verdict found, which ascertains and settles all matters of fact in the

cause.

The information sets out, that the teas were imported into the United States in July, 1825, from Canton, in the ship Benjamin Rush, and were subject to the payment of duties, and then alleges the following grounds upon which the forfeiture is claimed:

1st. That the teas were unladen and delivered from the ship or vessel in which they had been import

ed at Philadelphia, without having been entered at any custom house, or in the office of any collector of the customs in the United States, and without any permit from any collector or naval officer; and that the duties imposed by law on the said teas had not been paid or secured to be paid to the United States.

2d. That the teas so imported ought, according to the provisions of the act in such case made and provided, to have been marked, and accompanied with the certificates required by the act; and were found concealed in a store in Pearl street, in the city of New York, in the possession of some person unknown to the district attorney, unaccompanied by the marks and certificates prescribed by law, and that the duties had not been paid or secured to be paid.

3d. That the said teas, so imported, &c. ought to have been marked, and accompanied with certificates, as required by the act in such case made and provided; and were found in a store in Pearl street, in the city of New York, in the possession of Smith and Nicoll, unaccompanied by such marks and certificates as are prescribed by law, on which said teas the duties have not been paid or secured to be paid.

To this information Lippincott & Co. interpose their claim and answer, setting out particularly and circumstantially the importation of the teas by Edward Thompsonthat they were duly entered at the custom house in Philadelphia, and unladen and landed in the presence of a custom house officer, under a permit from the collector, and each chest duly inspected, weighed, marked and numbered, and a cer

tificate issued accompanying each chest, as by law required. That Thompson, the importer, gave his bond for the duties. That the teas were deposited in store according to the provisions of the 62d section of the collection law of 2d March, 1799, (3 vol. L. U. S. 193,) and then setting out the purchase and transfer of the teas to the claimants, and denying all knowledge of the teas having been illegally or in any improper manner taken from the stores where they were deposited. And traversing the allegations in the information, that the teas were unladen, and delivered without having been duly entered or without a permit, or without the duties having been paid or secured to be paid, or that the teas were concealed, unaccompanied with the marks and certificates prescribed by law.

The special verdict finds, that the teas were imported, entered, landed and inspected according to law, and as set forth in the claim and answer.

That the duties imposed by law on the teas, had not been paid, nor secured to be paid in any other manner, than by said Thompson's general bond, and by storing said teas as provided by law, and in the manner set forth in the claim and

answer.

That when the teas were found in New York, the certificates provided by law to accompany each chest, did not accompany them, but were in Philadelphia, in the hands of the claimants, but that each chest bore all the marks required by law, and as set forth in the claim.

That the teas were not concealed as set forth in the information. That the claimants, until after

« ՆախորդըՇարունակել »