Cooke v. The United States. may be asked, therefore, with great pertinency and force-Was it intended that every one who took such notes should first inquire, not alone whether they were made by printing from the Government plates and stamps, and sealed with the Treasury seal, and bear on their face all the genuine marks and evidence of lawful issue which the Acts of Congress prescribed, but, also, and further, whether the Secretary, or some one authorized by him, issued them, as a "physical act?" Is such a requirement, according to legal principles, just and reasonable, to constitute the holder a bona fide holder; and, if not so issued, is there no legal obligation binding the Government to their payment? It would, nevertheless, be difficult to hold, that the circumstance that the Government had procured the requisite machinery, plates and stamps, was enough to bind the Government to the payment of all notes which by any means were printed thereon or therewith. If such instruments, though provided for the making of valid notes, should be stolen or be fraudulently used to make such notes, it would not be true that they were negotiable paper made by Government authority. Providing the means of making such paper, and so carelessly guarding it that innocent persons were deceived, by one or some who, without authority, used those means, might lay the foundation for a strong appeal to a sense of justice and equity, but the holders of paper so made would find some difficulty in sustaining the averment, at law, that the Government made the notes. Be this as it may, when the Government has not only prepared the instruments, but has authorized the making of the paper, and it is actually made, (printed, numbered, stamped and sealed,) bearing all the marks of genuineness prescribed by law, and is thus in existence in the keeping of the Secretary of the Treasury or his subordinate agents, the question may, perhaps, present a different aspect. If fraudulently or feloniously abstracted and negotiated, do the notes constitute valid legal obligations in the hands of innocent persons receiving them for value without notice? Such completed paper, in the actual possession of the Secretary of the Treasury, may be likened to notes Cooke v. The United States. complete in form and signed by an individual and locked in his desk. In the latter case, is it doubtful that, if the notes be fraudulently or feloniously abstracted from the desk, and be negotiated, so that they come to the hands of an innocent person, who gives value therefor, before maturity, without notice, the signer is bound, by the settled rules of commercial law, to pay them? It has been said, with what I deem just accuracy, that, when the Government engages in the making and negotiation of commercial paper, it submits itself to the settled rules of commercial law, and, in that respect, stands before the Courts of law (whenever jurisdiction is properly obtained, as is the case when the Government is plaintiff) to receive the application of those rules precisely as they would be applied to an individual.* If a bank issuing bills for circulation should resort to the like mode of making bills which was adopted by the Government, and the names of its officers purporting to be signed to the bills actually issued by the bank were, in fact, fac similes, in lithograph, it would not be doubted that the bank was bound to redeem such bills. such bills were fraudulently obtained from the bank vaults and put into circulation, the obligation of the bank to pay them would be no less clear. In this respect, is there any difference in the question of liability, when the paper is a negotiable note payable in the future, intended not for circulation as money, but for negotiation, in the course of business, for loans or otherwise? + If *The Floyd Acceptances, 7 Wallace, 666, 675; U. S. v. Bank of the Metropolis, 15 Peters, 392; U. S. v. Barker, 12 Wheat., 559; Delafield v. State of Illinois, 26 Wend., 192; Davis v. Gray, 16 Wallace, 203, 232; Curran v. State of Arkansas, 15 How., 309, and cases there cited. + Liability of individuals-Peacock v. Rhodes, 2 Doug., 633; Miller v. Race, 1 Burr., 452; Vallett v. Parker, 6 Wend., 615; Michigan Bk. v. Eldred, 9 Wallace, 544; Ingham v. Primrose, 1 Com. Bench, N. S., 82; Van Duzer v. Howe, 21 N. Y., 531; Young v. Grote, 4 Bing., 253; Bank of Pittsburg v. Neal, 22 How., 96. Liability of corporations for acts of their agents-Farmers & Mechs. Bank v. Butchers & Drovers' Bank, 14 N. Y., 623, and 16 N. Y., 125; N. Y. & N. H. Cooke v. The United States. This question, whether, under the circumstances, on this point, above embraced in the fourth question, the notes would constitute Government obligations, enforcible as such whereever jurisdiction was obtained for the purpose, was largely discussed on the argument, and its interest and importance led me into a very extended examination of the subject, and of the authorities, in England and this country, which bear upon it. But, it would not be profitable to pursue the discussion here, since the case was not made to turn, in the District Court, upon this question. The final proposition upon which the case went to the jury, and upon which their verdict must 'be taken to have been founded, does not require the determination of the question whether, upon the facts here assumed, the Government would, at the maturity of the notes, be legally bound to pay them, although not in fact issued physically by the Secretary of the Treasury, or by any lawful authority. The charge to the jury was, in effect, that, if not so issued, then the Act of April 12th, 1866, did not authorize the Secretary of the Treasury to retire them, and the payment by the assistant treasurer in New York, to the defendants, of moneys of the United States, was wholly unwarranted by any legal authority, and such payment was properly repudiated. (5.) If this instruction was correct, it disposes of the case; and this is the subject of the question above fifthly statedHad the Assistant Treasurer at New York any authority to pay the money of the United States to the defendants in the purchase, for retiring, of the notes, if they were not, in fact, R. R. Co. v. Schuyler, 34 N. Y., 30; Merchants' Bank v. State Bank, 10 Wallace, 604, 645. Liability of the agents of the Government-U. S. v. Macdaniel, 7 Peters, 1. Liability of municipal bodies on negotiable paper-Coms. of Knox Co. v. Aspinwall, 21 How., 539; Same v. Wallace, 21 How., 546; Bissell v. City of Jeffersonville, 24 How., 287; Mercer Co. v. Hacket, 1 Wallace, 83; Gelpcke v. City of Dubuque, 1 Wallace, 175; Thomson v. Lee County, 3 Id., 327; Supervisors v. Schenck, 5 Id., 772; Lexington v. Butler, 14 Id., 282; Lynde v. The County, 16 Id., 6; St. Joseph v. Rogers, 16 Id., 644. See The Floyd Acceptances, 7 Wallace, 666. Cooke v. The United States. issued by the authority of Acts of Congress, even though they were printed by the agents of the Government from the Government plates, were duly stamped and sealed, and came to the hands of the defendants in such manner as, upon the principles of commercial law, to create an obligation on the part of the United States to pay them when they should become due? The answer to this question was made, and properly made, to depend upon the construction of the Act of April 12th, 1866, authorizing the Secretary of the Treasury to retire treasury notes which were not then due. In words, that Act directs the proceeds of the bonds therein mentioned "to be used only for retiring treasury notes or other obligations issued under any Act of Congress." The charge hereupon was: "The authority it conferred upon the Secretary of the Treasury and the subordinate officers of the Treasury Department, was solely to retire treasury notes issued under some Act of Congress. If they were not issued under some Act of Congress, they were not within the lawful powers delegated to the Secretary of the Treasury by the Act of 1866. The entire matter is regulated by statute; and, if these notes were, in fact, not issued under an Act of Congress, there was no authority on the part of the Secretary of the Treasury, or of any other officer, high or low, not even of the President of the United States himself, to retire or redeem them." To make more plain what was meant by "issued," it was subsequently charged: "The act of issuing the notes was, under the statute, a physical act. The notes may be printed in the Department from the genuine plates, and may be all ready to issue, and yet, if they are not, in fact, issued, they do not come within the statute. It is for the purpose of showing the physical act of issuing the notes, that the Government has given the testimony to which I have referred. The United States are not bound to redeem any notes which were not in fact issued. There is no authority to retire the notes unless they were issued, as a physical fact." There are some remarks in the charge which may be deemed to hold that, if not so issued, the Government was under no obligation to pay Cooke v. The United States. * * * them when due, however printed and gotten into course of negotiation. But, the authority to retire them under the Act of 1866, before maturity, was really the point in issue, and it was that which was made the test of the plaintiffs' right of recovery, as still further indicated thus: "If you find that, in point of fact, these C notes were not issued by the United States, then the plaintiffs are entitled to recover, provided," &c. * * * "The ultimate question is not whether the C notes are spurious or genuine; that is a collateral question, * * * gone into as bearing on the question whether the C notes were ever issued by the United States." These instructions made the question of ultimate duty to pay the notes when due, immaterial, if the Act of 1866 did not authorize the Secretary of the Treasury to retire them; and, as they were not due at the time this action was commenced, the ownership thereof by the defendants constituted no defence in the nature of a set-off, if such ultimate duty to pay them were conceded. We are, therefore, brought distinctly to the construction of the Act of 1866. Did it authorize the Secretary of Treasury to pay out the money of the United States to retire any treasury notes not actually, (" as a physical fact,") issued by the Secretary of the Treasury or by his authority? There is room for grave doubt of the correctness of the ruling at the trial on this point; and, not only in reference to this case, but to several others now pending, it is important that the opinion of the Court of last resort should be had at as early a day as is practicable. Large amounts may depend upon the question. Time is of great importance, where witnesses are numerous and are liable to be removed by death or otherwise. I ought not to reverse and send the case back for another trial, with the necessarily incidental delays in the progress to a final determination, unless a very clear and decided conviction makes it my duty to do so. The notes which the Secretary was authorized to retire were "treasury notes, or other obligations, issued under any Act of Congress." It may be plausibly, at least, suggested, |