In the eight years have elapsed since nRme of Julian Hartridge was stricken froll). thia rElcord, it is not PQssible to say what rights have intervened, what's,ettl¢$ents have been made, what debts paid, what legacies assented.to by hia executrix, none of which might have transpired had the bill, been revived and not disz;nissed as to his estate. I find that the main question here resulting, was ;decided in Oheetham v. Ward; 1 Bos. & ca;se was that William Ward and James Ward,gave a joint ,and SE!V6l1al bond to Cheatham; the plea was that Cheatham, ,the· testator,,- :hy,Jtis last. will, appointeQ, William 'Ward one of his executQrs,wpp" With the. ,other eiXecutors, duly proved the will and took upon them,the thereof. There,was ag.. ..murrer to the plea,,,and joinder. c9;urt were \lnanimously of opin·ion for the defendant; andi])YRJll"C.iJ., put the. decision onthisaqknowledged principle, that where, a p¢rSQn,aJ: aQtion is once suspended ,by: the voluntary act of to it, it is forever gone and discharged. This, he said', wa$ e.dmHted,to be the, case there \V!j8 but one obligor, but that th0; very: point in had been decided in the Year, Book, 21, Edw,. IV. Blb., He.: l'IQ.id that thereWlls but one duty extending tg both obligors,' and ,it: ,was;. therefore, pointedly: 'pqt, .that. a of one, al' by one, is of botqi 'lDld that, he, said,putatl end. to tbe..3rgument,. for itrwas the effect of iht} suspensioDs ardjo, one,that rele., disch:;trged, andextingushed the ,action as to both. ,:HEATH; was.9f no the release be by, operation of law,:orby dEled demonstrf1,ting the intent of the party. ROOKE, J.· said the ,o,bligee has it .not in his power to elect to discharge one obligor, with0Ut'discharging the 1 Bos. & P. ';632; S. C. note a, Bac. Abr. D,".and the cases there ,:cited. ,It was insisted ,with great forca :by, the counsel for Mrs. Hartridge, that under the act of the legislature: of Georgia, approved Mll-tch 16, 1869, ·the complainants are barred; the'ilauaeofaction having originated prior to the first of June, 1865; and Adam8 v. Davis,. 47 Ga. 339; Gray v. ,Hodge,50 Ga. 262; Macon &'...4.. R. ,R. v. Ba88, 52 Ga. 13; G088, v. Rob54·Ga.494; Reese v. Talleraon, 7:0 Ga. 443, are cited. I prefer, howto place the decision upon the reasons to which I'have adverted. -d. The motion is denied.
(C\"rcuit Oou7't,D.Oolmaflo. ,May 4, 1887.)
" .· A pbstmaster at Lewiston; Idaho"with intent to defraud the Rovernment. " ",a.nd without rece.iVing .. po.st-o.mee orders upon., the postr 'master at Pueblo in of the StocIl:growers' Bank. He mailed the orders ,to the bank wi th a letterpurportirlg to be written by one Wilson, and directed 'be bank to dra.w the mOileY,'a.nd hold itaubject to said order. The
banK, without knowledge of fraud, obtained the money as directed, but in doings9 acted as a.principal without disclosing their agency in the matter. The Lewiston postmaster, .under the name of Wilson, subsequently drew the greater pa. of the money from the bank, and suoit was.,afterwards brought ag-ainst It by the United States to recover the money BO, obtained on the or· ders. Held, that the bank was liable.
On Demurrer to ,Answer. H. ,W." Hobson, for plaintiff. J., Q.Richmond, for The caseo! P1e United States against! the Stockgrowel's' NationahBank is a case where the court has to traverse a field in whioh itfinds:littlelight from authority, and no case, in point. The facts 'are these: The .postmaster: at Lewiston, Idaho, seeking to defraud the government, issued certain ipost-office orders. upon the post-office,at Pueblo: in !avoroftheStockgrowers'Bank, the·, defendant here. As·a mattel':o!fact he received nO money, and it wasa cunningly devised and ;fraudulent.scheme to. rob the government.. The post-office orders" he mailed iaa letter purporting to :be written by one J. G. Wilson to the defendant bank, directing :itto present the orders, draw the money:, hold: it subject to his order. The amount which ,was thus drawn frOUl thel,post-office' was $600, which was received, deposited, and held by it to, the credit of J. G. Wilson. Shortly thereafter the Lewiston postm.asdrew $500 ohhat amount from the bank. The other hundred dollars remained there at the time this suit:was commenced. The government" in the course' of time, finding these post-office orders were fraudulently issued by its postmaster at· Lewiston, caused him, to be arrested and prosecuted, and instituted this suit. to recover from the bank the $600 which it had received. The bank makes no claim to the hundred dollars which it has not paid over, but defends as to the.$500 which it had paid over before this suit and before notice·. Section 4057 of the Federal statutes provides that in all cases where money has ·been paid out of the funds of the post-office department under the pretense that service has been performed therefor, etc., Hand in all other cases where money Qfthe department has been paid to any person in consequence of fraudulentrepresentations,or by the mistake, eol]usion, or misconduct of any officer, or other employe in the postalservice, the postmaster general shall cause suit to be brought to recover such wrong or fraudulent payment,.or excess, with interest thereon." THat this money was obtained wrongfully from the government is undoubted. If it is regarded as a transaction between the postmaster at Pueblo and the defendant bank, both that officer and that bank were innocent of intentiOljlal wrong. Both acted under the mistaken belief that those postoffice orders were rightfully issued, and were valid obligations of the government. If it be regarded in the lightofa transaction between the government on the one hand, .as represented by its, two postmasters,. that Itt Lewiston and that at Pueblo, and the Stockgoowers'Bank on the other hand, tben' it ;was money wrongfully obtained from the government v.30F.no.13-58
thrdugh the misconduct of one or its .officers. In eitller case, the strict ""ords of that been wrongf'ully obtained fro!? the government by this defendant, bank. But that only. brings up the realdiffictilty in the case; ·An ordinary principal is guilty of wrong, but who acts within the scope of his apparent authority, is bound by such acts so far as affects innocent third parties. In other words, under these cases, the principal assumes the burden of his agent's conduct: if it is wrongful, ,the principal only suffers, and innocent third parties are safe. That, with perhaps certain lin'iitations, is the universal rule applying to the doctrine of principal and agency so far as private .individuals are concerned. Itis an open question under the authorities as yet whether the converse of tliatrule does riot apply to the government .and its agents. Many courts have ina general way affirmed that whatever: of hal'dship there maybe in particular instances, the general weal of the (public requires that the indiiVidual and not the government should bear the burden of the, conduot: of the government's agent. It is undoubtedlytrue, as settJed, 'by tbe<caseof Cooke v. U. S.; 91 U. S. 389, descends from its position as sovereign and that'when the deals iq'negotiablepaper;it subjects itself to the mdinary<rules controling negotiable' paper the same 'as! any individual. But these post-office ordersa1'e not negotiable paper;,' they are orders drawn by one postlnasterupGn 'another, payable to a: person not named in the order itself; 'unknown' save as to the particular parties to, the' transaction-the two and the partyMI.O obtains them';';';'so that the protection which the rules applicable tonegonable paper wduldlay around many .in this' case.. The strength· of transactlonsdC)· not avail the defense 1ies in the faot thatdtcillims to, have been acting as an !agen't simply; it was not ssekingfu getimoney the post-office at Pueblo;itprasented these' orders the agent, fdrthisunknown patty, this J. G. Wilson, and forhim,ohtained thismoneyfromthepost-offieej and, in obedieuce to the directions of its principal, transferred to hiirithe $500 of the fuoney thuR r e c e i v e d , ; The caseofi,U.S. v. Pinover,. 3 Fed. Rep. 305, contains quite n. diseussian of theci!;cu'rnstances under Which an :agent is relieved' from responsibility. ThatI!lrrd the cases ,cited therein lay down 'what I think is the OO:JIreet rule, that who deals with the; government asanagen,t,or rep,resenting himself or:known to bean agent, receiveSllioney as suchagEmt, 'and pays it OVer, .to his principal before liotice of any wrong, is protected. 'He has in his dealings with the government come; to it as the agentofa .third' ,party,andthegovernment:hasassumedto:delll with him as the agent ofthis:third,party, and if it afterwards turns out that there is any wrong in the !transaction---Inieana wrong not ;perstinal to the agent-'tbegovernment. must look to thisuudisclosed 01" 'disClosed principal,. be,cause it has Rssumedto tteat with:this party IlSltn:tJgent for some principal; buVwhere the partydtlals i with the government as a principal, although he may' be in fact an agent; the government has a right to treat him as a principal, and say: We'dealwith you as a principal; we know not the fact of your agency, aDd we may hold you aspriricipal.
UNITED STATES'I1.8'.!1Qo;KGROWEltJi' NAT. BANK.
. Now, these post-office orders were drawn payable to the order of the defendant bank; it presented them as its owh;, it obtained the money. So far· as these pleadings show,neither the postmaster at Pueblo nor any government official except the wrongdoer knew otherwise than that this Stockgro,wers' Bank was tbeprincipal owning or claiming this money; the party intending to appropriate this money to its own benefit. The government dealt with it as a principal, paid the money to it as a principal, and under those circumstances, within the rule thus lain down, the government has a right to say: Although you were in fact only an agent, we did not know you as.such; we dealt with you as a principal; you made no representations to us of the position which you were occupying or the agency which you now claim, and we hold you, therefore, as a principal. .It is further said that .apany who accepts and pays what purports to be his cannot thereafter recover the money thus paid. It is his duty when the paperis presented to him, Hit is a forgery, to detect it and refgBe payment; aQ,d that the government, through its officer at Pueblo, accepted this,which purported to be the paper of the government, it and paid it to a party who was innocent ofwtong, . is estopped from It;I'the Osse of Cooke v.'U. S., BUpra, certain treasury notes were rebyJhe York and paid, and when they were thereafter sent to Washington, it was discovered that they were forgeries, and the right of the government to maintain the action was sustained; the supreme court hoMing that this subordinate officer, the subtreasurer in New York City, was not the one who finally represented the governmimt so as to determine upon the genuineness and validity of this paper .which waS presented and paid by him. .The statutes in respect to the post-office department are meager. It says,thaUhe postmaster general may provide for post-office orders. It does not specifically, or in terms cbmmit the final determination of the validity of these orders to any local postmaster. So, within the reasoning of the supreme court in that Cooke Case, it seems to me that it must be held, and there are some equitable reasons for so holding, that until this matter has come to the knowledge of the department at Washington, so that there has been time for the action of the principal representative of the government in this business, there is no such estoppel as ordiruns from the acceptance and payment of forged paper. There is nothing in this record, as it is now presented, from which I can say whether there was any negligence on the part of the government after the postmaster general at Washington .had obtained cognizance of flle.ta. Indeed, I may say that, while counsel discussed this case upon the general facts as I have stated, yet the question is technically raised upon a demurrer to the answer, and I have had some doubts as to whethltr the pleadings such that the questions were fullyrepresented pythat demurrer,'or the pleadings as they.stand. Certainly upon this last question I see nothing to show the time at which knowledge of facts was brought home to thedeparhnent at Washington, or no-
Hoe given to the defendant; the only dates being the-presentation of the pos1rofficeorders, etc. ,andthe commencement of this suit.
I feel 'l'Jonstrained, therefore, to sustain the demurrer to these answers. Whatever question there may corrte hereafter of negligence on the part of the government I think must be presented in some further pleading.
UNITED, STATm'l1.:ELEVEN HORSES.
D.lna,iana., Jup.e2, 1887.)
CUSTOMS DUTIES-EXEMl'TIONS-ANIMALS FIT FOR BREEDING.
In a proceeding to forfeit 11 stallions and a jack; the information charged that certain Canadians were.engaged in importing animals from Canada for sale; tbatthey were uj>tllPgaged .iu breeding orrajsing,.ap.imals; and that theY certain citizens of Indilina to make their affidavit to the collector of cristomsthatthey w'tlre'the owners of the animals; and had imported them expressly for breeding purposes, 'when in fact the animals were the property " of ti\e for sale woPt., tha.t the fact that the ammals were fit 'for breeding purposes dId Mt entItle the Importers to exemption from customs duties. under the act of congress ,of' March S, 1888. (22 St. at Large, oOl.!.)lexemming from duty. animalsspeciallyhp.pqrted for breeding purposes, if the, animals were,in fact for sale"and that the lnformation sUfficiently charp;ed 'an offense agai)lst: the customs laws.
: ,':'," :,' I, '
Emory P. Sellers, U. S. Dist. Atty., and Graham H. Harris,. Asst. Dist. Atty., for appellants. ' Harrison, Miller & Elam, for appellee.
GRESHAM, J. This is a proceeding to forfeit to the United States eleven stallions and onejack, for violation of the customs laws. The information is inexcusably long, but it charges, in substance, that Albert and Wesley Fansom, of Toronto; Wl)re engaged in importing animals into the United States from Canada land other foreign countries for sale; that they were not engaged in bteeding or raising animals; that in February, 1887"they caused Henry and Scott Galloway, citizens of Indiana, to make and present to the collector of customs at Port Huron their affidavit, stating that they were the owners of the animals, and had imported them into the United States expressly for breeding purposes, when, in truth and in fact, theaffiants did not own the animals, but they were the property of the Fansoms, who did not import them for breeding purpOses, but for sale 'and' profit; and that the Fansoms thus succeeded in ha\7ing the animals ,entered at Port Huron free, although they were subject to duty, thereby defraUding the United States of the : revenue dUEl thereon. The Fansoms;as claimants,. extepted to the information, on the ,grollnd· that the facts charged did not· amount to a violatiohof the cus. toms laws, and did not, therefore/ientitle the United States to a forfeit, ure of the property. The district court sustained the exceptions, and , dismissed the libel, from which decr the United States appealed. e