sanctity appertaining to it. Besides, if it belongs to courts of justice to meddle with these matters, and, looking beyond the acts and conduct of the president, to decide a person recognized by him to be a minister, to be no minister; surely that branch of the government ought to possess all the lights to guide their judgment which are possessed by the president, and should, consequently, be empowered to call for, and expose to public view, the archives of state, and the correspondence of the executive of this nation with foreign nations, in relation to the subject on which the decision is to be made. Yet who would be wild enough to maintain a proposition so extravagant and absurd?

The principles which have been stated, are those which governed this court in Liddle's case, decided in 1807, in which it was stated, that the certificate of the secretary of state, that the person claiming to be a charge d'affaires, was received and recognized as such by the executive of this government, was the best evidence which could be given of that fact. The only proper inquiry, in short, in cases of this nature, is, has the person claiming to be a foreign minister, been received and recognized as such by the executive of this government? If he has, the evidence of those facts is not only sufficient, but, in our opinion, conclusive, upon the subject of his privileges as a minis

ter.

Such has been the nature of the evidence given in this case. It now remains only to notice two or three arguments of the counsel, upon which some reliance was placed. It seemed to be sup

posed by the district attorney, that even if the first assault had been made by Mr. Salmon on the defendant, the blow which was returned would have been an offence under the act of congress. But this is not the opinion of the court. A foreign minister, by committing the first assault so far loses his privilege, that he cannot complain of an infraction of the law of nations, if, in his turn, he should be assaulted by the party aggrieved. This was decided by this court in Liddle's case. It was insisted by the defendant's counsel, that it was incumbent on the prosecutor to prove that the public character of Mr. Salmon was known to the defendant at the time this transaction took place. If this position could be maintained, still, as it is shown by the defendant's letters to Mr. Salmon, in May, 1824, that he then knew that gentlemen to be the Spanish charge d'affaires; if he had afterwards ceased to be so, it lay on the defendant to prove it. Knowing him once to have been entitled to this character, he acted at his peril if it should turn out that that character still continued, or if, indeed, the reverse should not be proved.

But, in point of law, it is immaterial whether the defendant knew that the person assaulted, was the charge d'affaires or not. And this point, also, was decided in the case before referred to, of United States vs. Liddle.

As to the Spanish decrees, alluded to by the counsel for the defendant, there is no evidence given of them and, consequently, they are not to be noticed by the jury. It is impossible for the court or jury

With this charge the jury retired,

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 promissory note, is the evidence of a debt due by the maker to the holder of it, and nothing more. It is, also, the highest species of evidence, 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 exist in all its vigor, unaffected by the accident which has deprived the owner of the means of proving it by the note itself. The debt still existing, the law, which always 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 proving the contents of the lost paper, and if this be satisfactorily made out, he is entitled to re

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 effected 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 re-, lieving 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 possessor 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

court. It is, nevertheless, within 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 par ties to a contract may, by positive stipulations, change the rules of evidence applicable to that particu lar 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 attempts 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.

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