UNITED STATES V. THE CENTRAL NA1:IONAL BANK OF PHILADELPHIA....
(District Oourt, E. D. Pennsylvania. February 7, 1881.)
BY UNITED STATES ON FORGED INDORSEMENT-
DUTY OF GOVERNMENT TO GIvE NOTICE IN REASONABLE FORFEITURE OF lli:GlITS BY DELAY.
The failure of the United States to give notice of the forgery of an indorsement of a check on the treasury within a reasonable time after the payment of the check will bar its l'ecovery of the money from the person to whom the check was paid.
SA..'o1E-GoVERNMENT BOUND BY HULES AS INDIVIDUALS.
The government, when dealing with commercial paper, is bound to observe the same rules respecting vigilance that are enforced against individuals.
Assnmpsit by the United States against the Central National Bank, to recover the amonnt of the following check paid by plaintiff to defendant upon a forged indorsement:
"No. 6640. WASHINGTON, March 24, 1868. "Assistant treaRurer of the United States pay to the order of J os. Barr one hundred dollars. "$100. C. HOLMES, "Paymaster U. S. A. [Indorsed]-UJosEPH BARR, "JAS. BARR, ..JAMES M. SELLERS." The check had· been presented and paid in due course. Sometime between May 27, 1879, and July 26, 1879, the United States received notice that the indorsement of the name of James Barr was a forgery, and on July 31, 1879, brought this suit to recover the amount of the check. No notice of the forgery had been given to the defendant prior to the bringing of suit. The court directed a verdict for plaintiff, subject to the decision of the court upon the following point of law reserved,
*Heported hy Frank P. Prichard, Esq., of the Philadelphia bar.
UNITED STATES V. CENT. NAT.
viz. : that "the United States was bound to give notice to the defendant of the forged indorsement within a reasonable time after the check cam.e into its hands and was paid by it, and its failure to give such notice and make claim on the defendant amounts to such negligence as will bar a ery." Defendant moved foz:judgment non obstante veredicto on the point reserved. McKennan, C. J., was present at the argument of the rule. JohnK. Valentine, U. S. Dist. Att'y, for plaintiff. Edward L. Perkins, for defendant. BUTLER, D. J. Judgment must be entered for the defendant on the reserved points. The case is ruled by the U. 8. v. Oooke, decided in this court in 1872: 9 Philo.. Reps. 468.I do not find any ea.se inconsistent with this, unless it be the U. S. v. The Second Nat. Bank of Jersey Oity" decided in the New Jersey district in 1872. That case involved the point. The question does not appear to' have been pressed, however, by counsel, or considered by the court. No good reason can. be assigned for relieving the government, when dealing with commercial paper, from observance of the rules respecting which are enforced against individuals; that this view is entertained by the supreme court, is plainly indicated by the case of Oooke v. U. S. 91 U. S. 397·
· This case was argued before the late Judge Cadwallider, and the opinion delivered by him, but it was understood that McKenna"., O. J., con· curred therein.
(Circuit Court, S. D. Ohio. March 7,1881.)
FEDERAL Junms-TALEBMEN-AcT OF -CONSTRUCTION.
.JUNE 30, 1879-REV. ST. f 804
The act of congress of June 30, 1879, prescribing the mode in which juries shall be drawn in the United States courts, did not, either expressly or impliedly, repeal section 804 of the RcvisedStatutes; and therefore when, from challpuges or otherwise, there is Dot a petit jury to determine any cause, the court may direct the marshal to fill the panel from the bystimders.
, Motion for New Trial. The defendant was indicted for violation of the internal re:venue law. When the case was called for trial, and a jury was being empanelled, the defendant, in the exercise of his right of challenge, chaJlenged from the jury some of the jurors who had been regularly drawn and summoned as jurors for the term. To fill the vacancies occasioned by these chal. lenges the court directed the marshal to fill the panel by calling persons from the bystanders. The defendant objected to this, and demanded that the panel should be filled by persons whose names should be drawn by the clerk and jury commissioner, as provided in the second section of the act of June 30, 1879, (21 St. at Large, 43.) But the court ruled this objection,' and the panel was filled by persons called by the marshal from the bystanders, and the trial progressed and the jury returned a verdict of guilty against the defendant. Thereupon the defendant moved the court for a new trial, assigning as a reason therefor the error of the court in causing the panel to be filled from the bystanders. T. C. Campbell and H. B. Banning, for motion. Channing Richards, Dist. Att'y, contra. SWING, D. J. The language of section 2 of the act of June 30, 1879, in regard to the manner in which juries shall be selected, is: "And that all such jurors, grand and petit, including those summoned during the session of the court, shall be
"" Reported by JHessrs. Florien Giauque and J. C. Harper, of the Cincinuati bar.