Francisco. The collector there was the agent of the government for the management of this business. There being no public vessel at the time at San Francisco to carry the goods, the claimants' agent proposed to the collector the chartering of the "Oriole," the claimants' vessel. That proposition was accepted by the collector, and the aforesaid charter-party was accordingly executed. There was surely no want of ordinary diligence on the part of the government in that transaction. The claimants thereby agreed to convey in the "Oriole" the said materials for certain light-houses to, among other places, the mouth of the Columbia river. The claimants also agreed, by the charter-party, that the vessel should be kept tight, staunch, &c. ; that they would convey and provision such agents, &c., as might be necessary to be transported with the materials, &c.; that they would receive on board all such materials as might be shipped by the United States, &c.; that they would land and deliver the materials, &c., at the sites for the light-houses, &c. For which service, the United States agreed to pay the claimants $3,000 a month.

It is difficult to conceive how a more favorable arrangement for the claimants as to the carrying of their goods (which the United States had agreed to carry in a revenue cutter or other vessel) could have been made. No want of ordinary diligence in the matter can possibly be imputed to the United States. They placed the claimants themselves, by the charter-party, under the same liabilities that the United States were, for the carrying of the goods, namely, the liabilities of private carriers for hire.

was,

In August, 1853, the "Oriole" sailed, under said charter-party, with the materials for some of the light-houses on board; but when she arrived near Cape Disappointment, one of the light-house sites, she and all the materials on board were lost by the perils of the sea, without the fault of any person whatever. The consequence of this shipwreck that the claimants lost their goods, and the United States lost their lien, if they had any, on them, for the advance payment of $35,000. That being the case, the claimants have no ground for the charge against the United States for the $10,558, the value of the materials lost by the shipwreck. Neither have the claimants any ground for the charge for the materials, if any, furnished by them after the shipwreck, to supply the place of those which were lost; because they were bound to furnish all the materials for the light-houses, and, of course, when any of the materials were lost, without the fault of the government, the claimants were bound to supply the loss.

I dissent, also, from that part of the judgment of the court which allows the claimants the sum of $5,811 54 for the failure of the United States to deliver the materials at Cape Disappointment. This sum is allowed by the court as damages which arose to the claimants in consequence of the aforesaid loss of the materials over and above their value. But if, as I have endeavored to show, those materials belonged to the claimants, and they were bound to bear the loss, it follows, of course, that any subsequent damage suffered by the claimants in consequence of that loss must also be borne by them. The government, not being liable for the non-delivery of the materials lost, cannot be liable for any damage which may have ensued to the claimants in consequence of the non-delivery.

. COM

IN THE SENATE OF THE UNITED STATES.

JULY 25, 1856.-Ordered to be printed.

Mr. BRODHEAD made the following

REPORT.

[To accompany Bill S. 408 ]

The Committee of Claims, to whom was referred the report of the Court of Claims in the case of Joseph D. Beers, report:

That they have examined the opinion and evidence submitted to the court in this case, and agree with the court, that the United States ought to afford the relief provided in the bill submitted by the court. The opinion of the court is hereto annexed.

JOSEPH D. BEERS vs. THE UNITED STATES.

The opinion of the court was delivered by SCARBURGH, J

On the 21st day of January, A. D. 1850, Thomas B. Nalle, a purser in the navy of the United States, in pursuance of instructions from the Navy Department, and by the command of Thomas Ap C. Jones, commander-in-chief of the Pacific squadron, drew a bill of exchange on William Ballard Preston, Secretary of the Navy, for twenty thousand dollars, payable to the order of Thomas Ap C. Jones, commander-in-chief of the Pacific squadron, three days after sight. This bill was endorsed by Thomas Ap C. Jones to Moffatt & Co., or order, who endorsed it to the order of the petitioner.

On the 5th day of April, A. D. 1850, the petitioner presented the bill to William Ballard Preston, Secretary of the Navy, at the Navy Department, for acceptance. On the 9th day of April, A. D. 1850, a clerk in the department wrote on the face of the bill, in red ink, "paid by requisition No. ." On the 10th day of April, A. D. 1850, the bill was returned to him, with the remark, that "the department declines to honor it."

On the 9th day of May, A. D. 1850, in answer to a letter of the preceding day, the department informed the petitioner "that no advice had been received from California relative to the draft of Purser Nalle." On the 14th day of June, A. D. 1850, similar information was given him by the department. On the 9th day of August, A. D. 1850, the petitioner was informed that the department had decided to pay the draft of Purser Nalle, and it was accordingly paid on that day, and the bill was taken up by the Navy Department.

See the letter of Hon. J. J. Crittenden, Attorney General, to Hon. William A. Graham, Secretary of the Navy, dated November 14, A. D. 1851, a copy of which is on file among the papers of this case.

The petitioner now claims fifteen per centum on the amount of the bill for re-exchange and interest. The rate of commercial damages upon protested bills of exchange in California in the year 1850 was, on inland bills fifteen per centum, and on foreign bills twenty per centum. The bill was drawn in California. (See depositions of Wm. M. Burgoyne and Samuel Ward, and the letter of the attorney general already referred to.)

That the United States, by their authorized officers, were parties to the bill in question, both as drawers and drawees, is indisputable. It is stated by the Attorney General, that it was drawn by the purser, under instructions from the Navy Department, and by the command of the commander-in-chief of the Pacific squadron, on the Secretary of the Navy. The doctrine appears to be well settled, that when the United States, by their authorized officer, become a party to negotiable paper, they have all the rights and incur all the responsibility of individuals who are parties to such instruments. There is no difference, except that the United States cannot be sued. (United States vs. The Bank of the Metropolis, 15 Peters R., 377.) In that case the court say: "It [the Supreme Court] said in the case of The United States vs. Dunn, 6 Pet., 51, the liability of parties to a bill of exchange, or promissory note, has been fixed on certain principles, which are essential to the credit and circulation of such paper. These principles originated in the convenience of commercial transactions, and cannot now be departed from.' From the daily and unavoidable use of commercial paper by the United States, they are as much interested as the community at large can be in maintaining these principles."-(Ibid, 392.) It seems to be considered, too, that the United States are liable to damages, on a protested bill of exchange drawn by them, in the same manner and to the same extent as an individual.—(Bank of the United States vs. The United States, 2 How. R., 711.)

This bill, then, being drawn by the United States, their contract was, that the drawee should, on the bill being presented to him in a reasonable time from its date, accept the same, and, having so accepted it, should pay it when duly presented for payment according to its tenor.(Whitehead vs. Walker, 9 Mees. & W., 506, 515.) On the refusal of the drawee to accept the bill, if it had been a case between individuals, a complete right of action on the bill against the drawer would have accrued in favor of the holder. But this right of action would, in general, be forfeited in such a case, by the failure to cause the bill to be protested for non-acceptance, and the notice of the non-acceptance and protest to be given to the drawer.-(Ibid.) This is the general rule; but there are exceptions to it. A protest is not required in the case of an inland bill, unless it is prescribed by the local municipal law. This, however, is the case of a foreign bill, and the protest cannot be excused on that ground. A protest affords satisfactory evidence of dishonor to the drawer, who, residing abroad, might experience a difficulty in making proper inquiries on the subject, and be compelled to rely on the representation of the holder. It also furnishes an endorsee with

the best evidence to charge an antecedent party abroad; for the protest is evidence in all courts of the dishonor of the bill. (Byles on Bills, 189; Story on Bills, § 277.) It seems to be necessary, therefore, only where the object is to charge the drawer, and he might be prejudiced by the failure to make it. Hence, if the bill be drawn by the drawer without funds and without having any right to draw, the want of a protest will not prejudice the holder; but he will be entitled to recover against the drawer, upon the ground that he has not, and could not, sustain any loss or injury thereby. (Story on Bills, § 280.) And so, a promise to pay the bill, after a full knowledge of the fact that no protest has been made, will, it is said, be a waiver of the objection by the party, and he will be held bound in the same way and to the same extent, as if there had been a regular protest. (Ibid.)

The same doctrine is applicable to the subject of notice. It seems to be necessary only where the object is to charge the drawer, and he might be prejudiced by the failure to give it. If, therefore, the drawer has no right to draw the bill, or no reasonable ground to expect the bill to be accepted, he is not deemed entitled to notice of the dishonor thereof, for it was his own fault to draw it; and he cannot be said to have suffered any loss by the want of notice. Hence, if the drawer draws the bill without having funds in the hands of the drawee, or expectation of funds, or any arrangement or agreement on the part of the drawee to accept the bill, he will not be entitled to notice, and not be discharged by the want thereof. (Story on Bills, sec. 311.)

It seems to be a principle fairly deducible from the authorities upon this subject, that, as between the holder and drawer, protest and notice may be dispensed with, where they must be unnecessary or immaterial to the drawer; where the drawer could sustain no injury by the neglect of the holder to make a protest, or give him notice of the dishonor of the bill; where the want of them could not possibly affect the drawer. (French vs. The Bank of Columbia, 4 Cranch R., 141; Dickens vs. Beall, 10 Peters R., 572.) The rule, therefore, which requires a protest and notice, in order to charge the drawer, is not one of positive law, but it is founded in reason and the necessities of commerce. It requires notice and protest, not merely as an indemnity against actual injury, but as a security against a possible injury which may result from the laches of the holder of the bill. (Ibid.) Hence, it is a general rule, but cases which do not come within the reason of the rule form exceptions to it. In this case the United States were both drawers and drawees, and their interests could in no conceivable way be affected by the want either of a protest or of notice. There was no party to the bill in any way responsible to them, and their interest could not by possibility have been prejudiced by the failure to make a protest or give notice of the dishonor. It seems to us, therefore, that a protest and notice would have been wholly superfluous. There was no conceivable object to be accomplished by them.

Upon the dishonor of the bill, then, the United States, as drawers of the bill, became liable to the holder for the principal sum, and interest, and damages, and expenses incurred by the dishonor, and this liability was not lost to the holder by his failure to have the bill protested, and to give notice of its dishonor. (Story on Bills, sec. 399.) The

principal sum has been paid, but the liability of the United States for the interest and damages was absolute and complete at the time of its payment, and the mere surrender of the bill is insufficient to discharge that liability. It is neither a release nor a payment, nor in any sense a satisfaction. The liability, therefore, still exists. The damages in lieu of re-exchange are to be ascertained by the law of the place where the bill was drawn, and the interest by the law of the place where the money was payable.

Interest thereon from the 11th day of April, A. D. 1850, to the 9th day of August, A. D. 1850; 3 months 29 days, at 6 per centum

Add damages at 15 per centum

Deduct payment of principal

$20,000 00

396 66

20,396 66

3,000 00

23,396 66

20,000 00

3,396 66

We shall, therefore, report to Congress a bill in favor of the petitioner for the sum of three thousand three hundred and ninety-six dollars and sixty-six cents, with interest thereon from the 9th day of August, A. D. 1850, till paid.