United States v. Jacob Barker.

and a count on the protest for non-payment was inserted in the declaration; the 20 per cent. damages were held recoverable.

A citizen of the United States may lawfully, during a war with a foreign country, draw a bill on one of its subjects-such an act not leading to any injurious intercourse nor amounting to a trading with the enemy.

Whether the United States are bound by a statute of set-off of the state in which the suit is brought? Quere.

The fourth section of the "act for the more effectual settlement of accounts between the United States and receivers of public money," embraces suits between the United States and any individuals, whatever may be the cause of action. The subjects of the act are not all comprehended in the title. A set-off, therefore, in a suit by the United States on a bill of exchange against a private individual, where the course required by this act had not been pursued, was rejected.

The holder of a bill is entitled to recover at the rate of exchange, at the time of notice of the protest's being given. This is the settled law in New-York. Advantages of the rule of liquidation at the par of exchange.

As the plaintiff in an action on a bill has a right to recover gold or silver, the measure of damages must be the value of the bill, at the time of notice of protest in gold or silver, and not in a depreciated or fluctuating currency.

LIVINGSTON, J. THIS is a writ of error to the District Court of this district, on exceptions taken at the trial of the cause by the counsel for the plaintiff in error.

The first objection to a recovery, by the defendants in error, was an alleged variance between the bill of exchange declared upon, and the one given in evidence.

The bill of exchange declared on, is stated to have been dated the 2d day of July, 1814, and to have been drawn by the plaintiff in error, on Thomas R. Hazard & Co. residing at Liverpool, in the United Kingdom of Great Britain and Ireland; by which bill the said Thomas R. Hazard & Co. were requested to pay, sixty days after sight, to Hallack & Barker, or order, in London, twenty-five hundred pounds sterling. This bill is further stated to have been endorsed by them to Robert Bowne, and by him to Howland and Grinnell, and by the endorsees last named, to the United States.

United States r. Jacob Barker.

The bill produced on the trial, agreed with the one declared on in date, sum, and address, and the variance, if any, was in the manner of its endorsements. By the declaration it would appear, as if the endorsements were regularly filled up with the names of the several endorsees, and that the endorsement to the defendants in error, was immediately to the United States; whereas all the endorsements previous to that, to the defendants in error, were in blank, and the endorsement on which this action is brought, was to Thomas T. Tucker, Treasurer to the United States, and not directly to the United States.

If the United States were at all entitled to bring an action in their own name on this bill, it is contended that this could be done only by declaring according to the truth of the case, that the bill was endorsed to Mr. Tucker, and then averring that he was their agent and Treasurer; and that the endorsement to him was for the use and benefit of the United States. These averments being of matter in pais, it was said, that they were of the proper province of the jury, and could only be dispensed with, where the necessary operation, or implication of law, justified a different course, which

was not the case here.

If it be admitted, as it must be, that where such legal intendment exists, a party may declare according to it, it is not very easy to conceive of a case, where such intendment can be stronger than in the case before the Court. It is found that Mr. Tucker is Treasurer of the United States; the endorsement to him is in that capacity; and when he endorsed it to the Barings, he again makes use of his official style. Nor is this all; but it appears that the bill, by an endorsement on it, before it was sent from the United States, was registered by the proper officer of the Treasury Department, which cannot be supposed to be done in any case in which the instrument does not belong to the government, Mr. Tucker, after such

United States v. Jacob Barker.

an act, could never have claimed any right to this bill. And we cannot, think of any motive, which could induce a prudent. man to have pursued that course with a bill belonging to himself, or any other person, even if the regulation of the department had admitted of it.

But it is supposed, that before any such intendment can be made, it must appear that Mr. Tucker must have acted under some law, and that his conduct throughout comported with his duties, as prescribed by such law, and by the rules of the Treasury. It is sufficient for the purpose, that he is Treasurer, and appeared to have acted in that capacity, and in conjunction with another officer of that department. The Court, therefore, will presume, as a jury must have done, until the contrary were shown, that in relation to this transaction he transgressed no law, and that every thing by him was regularly and correctly performed, upon the evidence apparent upon the bill itself; and no other was offered to the jury, although nothing prevented the plaintiff from introducing other testimony to this point. It was more a question of law than of fact, whether the bill belonged to the United States; and the District Judge did no more than his duty, in telling the jury that the evidence was sufficient to establish that fact.

But supposing the bill to be the property of the United States; still it is insisted, that the action should have been in the name of Mr. Tucker, their trustee, and not in the name of the cestuy que trust; and much was said to show the hardship of unnecessarily exposing a party to a suit in the name of the United States, who paid no costs, and sued under several other advantages which were not common to other plaintiffs. No case has been cited to show that where a bill is cndorsed to the known agent of another, for the use of the principal, as is the necessary intendment here, that an action may not be maintained in the name of such principal; but

United States v. Jacob Barker.

were that the case, I should say that the government ought to form an exception to the rule, and that an action might be brought in every case in the name of the United States, where it appeared on the face of the instrument, that they alone were interested in the subject matter of the controversy. This certainly is not carrying prerogative (if it deserve that name,) too far. There is a fitness, that the public by its own officers, should conduct all actions in which they are interested; and the inconveniences to which individuals may be exposed in this way are but light, when weighed with those which would result from their agents always bringing actions in their own names. They might employ whom they pleased, and by negligence or otherwise, the rights of the public be jeopardized. Set-offs too might be interposed against the individual who was plaintiff, unless the Court, to prevent them, would take notice of the beneficial interest of the public; and if they could do this to prevent a set-off, which Courts of law have done, why not do it at once, by permitting an action to be instituted in the name of the United States?

Some doubt was hinted, as to the right of the United States to sue in any case without an act of Congress for the purpose. The technical difficulties which exist in England, against a civil action in the name of the King, (if it be a fact that he cannot sue in his own Courts,) are not in the way of an action on the part of the United States in their Courts. Judicial proceedings are not before the people of the United States, nor does the process run in their name. The Court therefore, has no doubt, that in all cases of contract with the United States, an action may be brought in their name, unless a different mode of bringing it be prescribed by law, which is not pretended to be the case here.

If any further evidence were required, than what appears on the bill itself, of its being the property of the United

United States v. Jacob Barker.

States, it may be found in the notice accompanying the plea of the plaintiff; for it is there stated, that it was agreed between him and the Secretary of the Treasury of the United States, that the said bill should be paid in London in the month of December following its date.

The Court does not rely on any usage in disposing of this part of the case, because none was proved at the trial; but the course which has been adopted in this case of endorsing the bill to the Treasurer is so convenient, that it may fairly be presumed to have been coeval with the establishment of the government. If endorsed immediately to the United States, it will at once be seen, how difficult its negotiation will afterwards become; for although, in that case, they might sue in their own name, it would not be very easy to endorse it to any other person, by which its negotiability would be altogether interrupted.

It is next said by the counsel of the plaintiff in error, that admitting that an endorsement to Mr. Tucker, the Treasurer of the United States, might have passed such an interest to the United States, as to have enabled them to sue in their own name; yet, as all the endorsements prior to the one to him were in blank, neither the United States nor their Treasurer showed any title to the bill; and it was also said, that, in as much as it appeared that Mr. Tucker has endorsed the bill to the order of Messrs. Baring, Brothers & Co., the title, if ever in him, had passed away by this last endorsement, and was at the time of trial in the gentlemen last named-they not having endorsed it back to the United States. The Court will dispose of these two objections together, as nearly the same answer will serve for both of them.

The mere returning of this bill, with the protests for nonacceptance and non-payment by the Messrs. Barings, to the Treasurer of the United States, is strong presumptive proof that the former acted merely as agents of the latter, or as