Page images

McLoon v. Linquist.

1864, $5,561.43, on shipments of goods by them to New Orleans by the bark. The advances were made on the bills of lading and invoices of the goods, which were sent by Thacher, at the request of the respondents, to F. D. Darling of New Orleans, under an arrangement that Darling should sell the goods and remit the whole proceeds to Thacher at New York, and that, out of them, Thacher should reimburse himself and hold the surplus for the respondents. In May, 1864, Husted & Brownson sold to the respondents a quantity of barley malt, some $2,000 worth, on which they paid about $800. This malt was part of the cargo of the bark so consigned to Darling. Being pressed for payment, the respondents told Husted & Brownson they could not pay till they got a return from the consignment, but they would give as security a draft on Darling. Accordingly they gave to Husted & Brownson a draft on Darling, drawn by Linquist, Norton & Co., dated June 14th, 1864, for $1,182.90, payable at sight, to the order of Husted & Brownson, payable “out of pro- . ceeds of consignment per bark Caroline, with current rate of exchange on New York." This draft was sent by Husted & Brownson to New Orleans for collection, and was not paid, but was returned with the message that it could not be paid because the balance due on the consignment was not ascertained. Thacher was advised by Darling, in July, 1864, of the existence and presentation of this draft, and was told at the time by Darling, that he had not paid the draft because he was not authorized by Thacher to do so. The attachment in this suit was served on Thacher, September 6th, 1864. Thacher did not receive from Darling funds enough to reimburse his advances till after the service of the attachment. The draft was not accepted or paid by Darling, nor did Thacher put his name on it. Thacher paid the $1,259.49, in June, 1865, as a payment of the draft, taking a bond of indemnity.

[blocks in formation]

BLATCHFORD, J. It is claimed, on the part of Thacher, that the giving of the draft by the respondents to Husted & Brownson, coupled with the presentation of the draft to Darling and the knowledge of its existence communicated to Thacher by Darling, operated as an equitable assignment to the holder of the draft of an amount of the proceeds of the consignment equal to the amount specified in the draft, and cuts off the claim of the libellants, under their attachment, against such amount.

But there are two objections to this view : (1.) There were no such relations between the respondents and Darling as authorized tbe respondents to draw the draft on Darling Darling was the agent and the consignee of Thacher and not of the respondents. He was responsible to Thacher and not to the respondents. The respondents could look to Thacher alone for the proceeds of the consignment. A request by the respondents to Darling to appropriate a part of the proceeds in a particular way imposed no liability on Darling to do so. The drawing of the draft on Darling and its presentation to him were ineffectual to bind him to respond to the holder of the draft. This being so, the fact that he advised Thacher of the existence of the draft cannot be regarded as binding Thacher to respond to the holder of the draft. There was no draft drawn on Thacher to support any notice to Thacher, and all the notice that Thacher had was in respect to a draft which was drawn on a party who was not liable to respond to the drawers of the draft.

(2.) There was no assent by Darling, much less by Thacher, to the assignment of so much of the proceeds as the draft purported to cover. Whatever may be the

McLoon v. Linquist.

law in some of the States, it is the law of the courts of the United States, that, where an order is drawn, either on a general or a particular fund, for a part only, it does not amount to an assignment of that part, or give a lien as against the drawee, unless he consents to the appropriation by an acceptance of the draft, or an obligation to accept may be fairly implied (Mandeville v. Welch, 5 Wheaton, 277, 286). The reason assigned for this principle is, that a creditor shall not be permitted to split up a single cause of action into many actions, without the assent of his debtor, since it may subject him to many embarrassments and responsibilities not contemplated in his original contract; that he has a right to stand upon the singleness of his original contract, and to decline any legal or equitable assignments by which it may be broken into fragments; and that, when he undertakes to pay an integral sum to his creditor, it is no part of his contract that he shall be obliged to pay in fractions to any other persons (3 Leading Cases in Equity, Hare and Wallace's Notes, 355, 356; 1 Parsons on Notes and Bills, 331, 334).

In this case, there was no assent by Darling, so that, even if the consignment had been made by the respondents to Darling, so as to authorize the drawing of the draft on Darling, the presentation of it to Darling would have created no liability on his part to respond to its holder. Nor did Thacher in any way make himself liable to Husted & Brownson, or to the holder of the draft, or to any other person, by any assent or promise, so that he could be held to account to any other person than the respondents for the amount of money covered by the draft. That amount came into his hands, on being sent to him by Darling, unincumbered by any appropriation or assignment which could bind it, or could bind him in respect to it, and the moment it came into his hands it became subject to the attachment in this suit, his advances being reimbursed otherwise. The attachment

One Hundred Barrels of Whiskey.

was served on him before he received the amount which he afterwards paid on the draft.

It follows, that the libellants have a right to have the $1,259.49 as well as the $88.67 applied towards the payment of the amount due to them by the respondents, and a decree will be entered to that effect, and confirming the report of the commissioner finding the amount due to the libellants. Thacher must also pay so much of the costs of this suit as have been caused by his defence thereto.





Where C., being advised that whiskey was being taken from a distillery without

payment of tax, went to the District Attorney of the United States, and stated the facts in general, without naming any place, and afterwards procured and gave to the District Attorney an affidavit, made by T., setting forth certain specific violations of law, and T. afterwards made an affidavit contradicting his first one, and alleging that he was drunk when he made it, and made it from purposes of revenge, and the property was afterwards seized, and a libel filed to condemn it, and R., a special revenue agent, being directed to examine into the case, found conclusive evidence of entirely different frauds, whereupon the property was

condemned: Held, that, under $ 179 of the Internal Revenue Act of June 30th, 1864, as

amended by the Act of July 13th, 1866, § 179, C. was not entitled to the inform

er's share, and R. was entitled to it; That, as between C. and T., the latter would be entitled to the informer's share. It is not the one who gives information which leads to the seizure of property,

but the person who gives information of the cause which leads to its condemna. tion, who is entitled to the informer's share,

This was a libel of information, filed November 26th,

* This decision was affirmed by the Circuit Court, on appeal.

One Hundred Barrels of Whiskey.

1866, on behalf of the United States, against “100 barrels of whiskey, and all the tools, implements, instruments and personal property whatever, found in the distillery, 48 Broadway.” It averred, that the property proceeded against had been seized on the 23d of November, 1866, as forfeited. On the 7th of January, 1867, on the consent of the claimant of the property, a decree was entered, the purport of which was to condemn all of the property except the whiskey, and release it to the claimant, in consideration of the payment by him, into the registry of the court, of $2,000, which had been fixed by appraisement as its value, and to condemn the whiskey and release it to the claimant, if he should pay the Internal Revenue tax upon it in thirty days. The $2,000 was paid into court. On the 2d of July, 1867, an order was made by the court, referring it to John A. Osborn, a commissioner of this court, to ascertain and report to the court the facts and his opinion thereon as to who was the informer entitled to the moiety of the moneys paid into court. The commissioner reported that A. B. Clarke was entitled to be adjudged the informer, and to receive the share of the proceeds provided by law for the informer. There were three persons, each of whom claimed to be entitled to the whole of the informer's share in the case, A. B. Clarke, Henry J. Trumble, and William Richards. Richards excepted to the commissioner's report, on the ground that the commissioner erred in reporting in favor of Clarke as the informer, and ought to have reported in favor of Richards. Clarke and Richards were examined, each on his own behalf. It appeared that Clarke, being advised that whiskey was taken from the distillery, No. 48 Broadway, without the payment of the tax upon it, went to the District Attorney, and stated the facts in general, without naming any place. The District Attorney directed him to procure affidavits. He drew an affidavit, which was sworn to by Trumble on the 9th of November,


« PreviousContinue »