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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 V8. THE BANK OF THE UNITED STATES. The case was argued at the last court decided the case of Bullet October session, of the circuit vs. the bank of Pennsylvania, court of the United States for the were, that a bank or any other prosecond circuit, upon a statement missory note, is the evidence of a of facts, which set forth, that the debt due by the maker to the holdplaintiff was the owner of a num- er of it, and nothing more. It is, ber of notes of the bank of the also, the highest species of eviUnited States, amounting, in the dence, if it be in the power of the whole, to $500, which his agent, owner of the note to produce it. after the publication of a notice by But, if it be lost, or destroyed, or the directors that the bank would by fraud or accident has gone into not pay cut notes unless all the the possession of the maker, the parts were produced, divided into owner does not thereby lose his halves at Cincinnati, Ohio, and debt, but the same continues to exforwarded in two parcels, by differ ist in all its vigor, unaffected by ent mails, for Philadelphia, one of the accident which has deprived which parcels never arrived. The the owner of the means of proving demand of the plaintiff was for it by the note itself. The debt the payment of the full amount of still existing, the law, which althe notes.
ways requires of a party that be Mr. Binney argued for the plain- should produce the best evidence tiff, and Mr. Sergeant for the U.S. of his right of which the nature of bank.
the thing is capable, permits him, The opinion of judge Washing- where such better evidence is lost, ton was as follows:
or destroyed, or not in his power, WASHINGTON, J.--I have care- to give inferior evidence ; by profully reviewed the decision of this ving the contents of the lost pacourt in the case of Bullet vs. the per, and if this be satisfactorily bank of Pennsylvania, aided by the made out, he is entitled to relight shed upon the question in- cover. volved in that and the present case, If the evidence be not lost, bat by the able argument of the coun- is merely impaired by accident, or sel on each side. My opinion re- even by design, if such design be mains unchanged, and is, indeed, not done to injure the maker or to confirmed by the two American cancel the debt, the principles of cases cited at the bar, and par- law is the same. Cutting a bank ticularly the luminous argument of note into two parts, does not dis judge Drayton, in the case of Pat- charge the bank from the debt of ton vs. the State Bank
which the note was but the evi The principles upon which this dence, nor does it even impair the
-- evidence itself, if by uniting the he looks for indemnity to the perparts, the contents of the entire son from whom he received the note can be made out. If one of half part, if it should turn out the parts should be lost or destroy that he was not the real owner of ed, the debt would be no more ef- the entire note. It is impossible, fected than if the entire note had therefore, that the bank can be lebeen lost or destroyed. The evi- gally called upon to pay the note dence is impaired, indeed, not only twice ; and if the officers of the by the act of cutting the note, but institution suffer themselves to be by the same accident which would imposed upon, by insufficient or have effected the entire note had false evidence, by which means the that been lost. In both cases, the bank is brought into this predicaowner must resort to secondary ment, she must abide the loss, as evidence, and is bound to prove being occasioned by an error of that the note did once exist, that it judgment in the officers of the is lost or destroyed, and that he is bank, or their want of due cauthe true and bona fide owner of tion. The law cannot adapt its the debt. If one part only of the provisions to every possible case note be lost, the difficulty which the that may occur, and it therefore real owner of it has to encounter, proceeds from necessity upon gein proving his right to the debt, is neral principles, applicable to all diminished. For if the entire cases. If upon any other ground note be lost to the owner of it, at than fraud and perjury, the maker the time of the accident, he may of the lost note may, by possibility, not be entitled to the debt of which be twice charged; the law will it was the evidence at the time he not expose him to that risk, by redemanded payment, because the lieving the asserted owner of it, note, passing from hand to hand, not because there may be imposiby bare delivery, may have been tion in the case, or because the found, and have got into the pos- debt ought not to be paid, but besession of a bona fide holder. But cause the proof that the claimant against the real owner of one half is the real owner of the debt is of the note there cannot possibly defective ; for it by no means folbe an opposing right. The finder, lows, that because the lost note did or robber, of the other half part, belong to him, that it may not be cannot assert a right to the debt, the property of some other person. because he cannot prove that he court of law, therefore, will, in came fairly to the possession of the such a case, dismiss the party from evidence of it. I speak judicially, a form which has no means of sewhen I say he cannot prove this curing the maker of the note fact, because he cannot do it with- against a double charge, and leave out the aid of perjury, which the him one, where those who ask of it law does not presume, and can in equity, will be compelled to do no instance guard against.
equity. If the lost half note gets fairly The case, then, resolves itself into the hand of a third person, he very much into a question of juristakes it with notice that there may diction. For it is quite clear, that be a better title in the possessor of the real owner of a debt, the evithe other half, and, consequently, dence of which is lost, is entitled
to supply the want of the better court. It is, nevertheless, with 12 evidence, by that which is seconda- the range of some general princiry; and this rule of evidence is the ples of law, by the light of which, game in equity, as at law. But I think, it may be decided. whether the application for relief The question is, whether it was shall be in the one court or the competent to the bank to notify other, must depend upon the par- the holders of her notes, that in ticular case, and its fitness for the case they should be voluntarily cut one jurisdiction or the other. into parts, she would not pay them,
Many difficulties were stated by unless all the parts should be the defendant's counsel, to which brought together. the practice of cutting the notes I mean to treat the question as and transmitting them by mail, ex. if the notice were brought home poses banking institutions, in iden- to the plaintiffs. It is unnecessary tifying the part of a note when in this case to decide how far par. produced for payment. That these ties to a contract may, by positive difficulties do, in a measure, exist, stipulations, change the rules of must be admitted ; but the bank evidence applicable to that particuknows there can be but one owner lar contract. If they may do so, of the note, and who that one is, it must be upon the basis of an must be satisfactorily proved, to agreement assented to by both entitle him to the payment of it. parties. The bank has a just right to call But upon what principle is it, for such proof; and if it be truly that one party to a contract can and faithfully given, there can be prescribe terms to absolve himself no risk in paying it. The pos- from the obligation, without the sessor of the other part of the note, assent of the other. I know of as already observed, by whatever none. If the banks could dictate means acquired, can never oblige to the holders of her notes the conthe bank to pay the money over dition stated in this notice, upon again to him. But after all, the the performance of which, and not rule of law does not rest upon otherwise, she would pay them, these circumstances. The maker she might with equal authority of the note is bound to pay to the prescribe any other condition, and person who proves himself to be declare in what case she would the legal owner of it, and the dif- pay, and in what case she would ficulties complained of are not not. The note is the evidence of greater than those which attend an engagement by the bank to pay most litigated questions. It may a certain sum of money to the not be improper here to observe, bearer of it, and the general law that the decision in the case of of the land declares, that if such Bullet vs. the bank of Pennsylva- note or a part of it should be lost nia, did not proceed upon any usage or destroyed, the debt shall neverapplicable to the case, none such theless be paid upon satisfactory was stated in the case agreed, or proof being made of the ownership alluded to by the court. The next or loss. Thus sanctioned these question is new ; no case like it notes pass from hand to hand; was cited at the bar, nor is there and if the bank can nevertheless any within the recollection of the discharge herself from the obli
gation to pay them, unless both were torn by accident; but the parts of the note be produced, or owner of the debt being also the unless the note be produced entire, owner of the paper which is the (and there is no difference between evidence of it, he had a legal right the two cases,) then the arbitrary to cut it; and by doing so, he declaration of the bank must be could not impair its obligation, unstronger than the law. This ob- less he intended to do so. In all servation applies with equal force these cases, the note is cut with a to every other species of contract, view to the security, not the dewhere one of the parties to it at- struction of the debt, by dividing tempts to prescribe to the other the chances of preserving part of the rules of evidence by which the evidence of it, in case the other alone he will be governed.
part should be lost. The defendI thought the defendant's coun- ants do not condemn the practice, sel seemed unwilling to contend even if it could for a moment be that the bank could go the length admitted that they had a right to do of declaring that they would not either. That is not the gravamen pay a lost note, or one which had stated in the notice it is the probeen torn or defaced by accident; duction of one of the parts for but if the court is correct in their payment unaccompanied by the opinion upon the first point, it fol- other part. That is the case in lows, that the law as much as com- which the bank declares she will pels the bank to pay the owner of not pay, and in which the law prohalf a note, where the other half is nounces she shall pay. lost, as to pay in the two cases I am of opinion, that judgment supposed; and if so, the right of should be entered for the plaintiff. the bank to prescribe terms in the PETERS, Justice, delivered his one case, if admitted, would be opinion, entirely concurring with equally valid in the others. There that of judge Washington. can be no difference, unless it be, Judgment for plaintiff for the that in the one, the notes were vo- full amount of the notes. luntarily cut, in the other, they
Six hundred and fifty-one Chests Hyson Skin Tea.
LIPPINCOTT & Co. claimants, ad. The UNITED STATES. This case comes up on a writ The information sets out, that of error to the district court of the the teas were imported into the southern district of New York. United States in July, 1825, from The seizure of the teas having Canton, in the ship Benjamin been made upon land, the informa. Rush, and were subject to the tion was filed in that court, as payment of duties, and then alleges a court of common law, and the the following grounds upon which cause tried by a jury, and a special the forfeiture is claimed: verdict found, which ascertains and 1st. That the teas were unladen settles all matters of fact in the and delivered from the ship or vescause.
sel in which they had been import
ed at Philadelphia, without having tificate issued accompanying each been entered at any custom house, chest, as by law required. That or in the office of any collector of Thompson, the importer, gave his the customs in the United States, bond for the duties. That the teas and without any permit from any were deposited in store according collector or naval officer; and that to the provisions of the 62d section the duties imposed by law on the of the collection law of 2d March, said teas had not been paid or se- 1799, (3 vol. L. U. S. 193,) and cured to be paid to the United then setting out the purchase and States.
transfer of the teas to the claim2d. That the teas so imported ants, and denying all knowledge of ought, according to the provisions the teas having been illegally or in of the act in such case made and any improper manner taken from provided, to have been marked, the stores where they were depoand accompanied with the certific sited. And traversing the allegacates required by the act; and were tions in the information, that the found concealed in a store in Pearl teas were unladen, and delivered street, in the city of New York, in without having been duly entered the possession of some person un or without a permit, or without the known to the district attorney, un- duties having been paid or secured accompanied by the marks and cer- to be paid, or that the teas were tificates prescribed by law, and that concealed, unaccompanied with the the duties had not been paid or marks and certificates prescribed by secured to be paid.
law. 3d. That the said teas, so im- The special verdict finds, that ported, &c. ought to have been the teas were imported, entered, marked, and accompanied with landed and inspected according to certificates, as required by the act law, and as set forth in the claim in such case made and provided; and answer. and were found in a store in Pearl That the duties imposed by law street, in the city of New York, in on the teas, had not been paid, nor the possession of Smith and Nicoll, secured to be paid in any other unaccompanied by such marks and manner, than by said Thompson's certificates as are prescribed by general bond, and by storing said law, on which said teas the duties teas as provided by law, and in the have not been paid or secured to manner set forth in the claim and be paid.
answer. To this information Lippincott That when the teas were found & Co. interpose their claim and in New York, the certificates proanswer, setting out particularly and vided by law to accompany each circumstantially the importation of chest, did not accompany them, the teas by Edward Thompson— but were in Philadelphia, in the that they were duly entered at the hands of the claimants, but that custom house in Philadelphia, and each chest bore all the marks reunladen and landed in the presence quired by law, and as set forth in of a custom house officer, under the claim. a permit from the collector, and That the teas were not concealeach chest duly inspected, weighed, ed as set forth in the information. marked and numbered, and a cer- That the claimants, until after