Cooke v. The United States.

use of the plaintiffs. To the declaration the defendants pleaded non assumpsit only.

The proofs on the trial were mainly addressed to the inquiries, whether the notes in question were a part of the regular series of notes printed at the treasury of the United States under the said Act of 1865, and issued by the Secretary of the Treasury; and whether the said notes were wholly spurious and counterfeit, not made nor printed upon any plates made or engraved at the treasury; and further, whether the said notes were surreptitously and fraudulently printed from the plates and dies in the Treasury Department, or, being in fact lawfully printed, were fraudulently, by some means not disclosed, put in circulation as treasury notes. On these last named questions, there was no evidence whatever of such fraudulent or surreptitious printing, or of such fraudulent putting in circulation of notes lawfully printed, except so far as the evidence introduced on the part of the defendants to show that these notes might have been printed from the lawfully made plates at the treasury, in connection with the evidence that the said notes were not part of the series of treasury notes lawfully issued by the Secretary of the Treasury, might create a suspicion that the Government plates were used by some one and by some means to make the notes in question. The evidence that the notes were not printed from the Government plates, but were wholly counterfeit and spurious, was very strong, and the conflict of evidence was so slight, that, had the case gone to the jury upon that sole question, it seems hardly possible that the jury could have hesitated to find them wholly false, forged, and counterfeit. Indeed, I think a finding that they were printed from the Government plates, and were sealed with the genuine seal of the treasury, would have been so against the weight of the evidence, that it must have been set aside, if the jury had rendered such a verdict. But, as will be hereinafter more fully stated, the case did not go to the jury on that sole question, as the test of the right to recover, but on the question whether the notes in controversy were in fact issued by the

Cooke v. The United States.

Secretary of the Treasury, the question whether or not they were printed from the Government plates and actually sealed with the Treasury seal being regarded by the Court as material only from its incidental bearing on the question whether they were in fact issued by the Secretary of the Treasury.

A distinction is, therefore, raised between notes which, being printed from the Government plates and sealed with the seal of the Treasury, as evidence of lawful issue, were never in fact issued by the Secretary of the Treasury, but by some surreptitious and unlawful means may have been thrown into negotiation or circulation, and, on the other hand, notes which the Secretary of the Treasury actually issued from his Department of the Government. Notwithstanding the dearth of evidence tending to show any surreptitious or clandestine use of the Government plates, or of any fraudulent abstraction of notes printed therefrom, the theory which governed the trial requires that such a possibility be contemplated in reviewing the rulings of the Judge and his charge to the jury.

The case is one of great importance, not only from the amount directly involved in the recovery, but because there are believed to be a very large amount of notes which are claimed to be counterfeit, a considerable amount of like notes, retired at or about the same time, which have been pronounced counterfeit, and many suits are pending to recover back money paid by the assistant treasurer for such notes, and because, also, the questions of law involved may, in the future, affect the Government and parties who hold other apparent securities purporting to be negotiable obligations of the Government. The case will, as I understand, by reason of that importance, be taken to the Court of last resort, and it is not, therefore, very material how the questions shall be decided in this Court, through which the parties must pass on their way to the Supreme Court, save only that the decision here made may determine who shall be plaintiffs in error before that tribunal.

To the full understanding of the case, it may be material to bring again into distinct view the statute under which

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Cooke v. The United States.

treasury notes called seven-thirties were issued, the manner in which such notes were prepared to be issued, and the precise terms of the statute which authorized the Secretary to retire such notes before they had become payable, and to pay a premium therefor, in order to withdraw them from the market. The authority to issue such notes, given by the Act of March 3d, 1865, to an amount not exceeding six hundred millions, is above firstly stated, (13 U. S. Stat. at Large, 468.) It authorized the Secretary of the Treasury to borrow, on the credit of the United States, from time to time, in addition to the amounts theretofore authorized, any sums not exceeding in the aggregate six hundred millions of dollars, and to issue therefor bonds or treasury notes, in such form as he might prescribe. It fixed the rate of interest. It specified various purposes for which (instead of an actual loan of money) the Secretary of the Treasury might, as he might think advisable, dispose of such bonds or other obligations issued under the Act, and gave him a discretion as to the manner, rates, and conditions of such disposition. It further applied to the bonds and other obligations issued under it, all the provisions of the Act of June 30th, 1864, in relation to forms, inscriptions, devices and the printing, attestation, sealing, signing and counterfeiting thereof. But it also expressly provided that the Act should not be construed as authorizing the issue of legal tender notes in any form.

The Act of June 30th, 1864, (13 U. S. Stat. at Large, 218,) pro hac vice adopted by the above named Act of 1865, provided, in the 6th section thereof, for the making, engraving, sealing, &c., of bonds therein referred to, and then that the treasury notes and United States notes authorized thereby "shall be in such form as the Secretary of the Treasury shall direct, and shall bear the written or engraved signatures of the treasurer of the United States, and the register of the Treasury, and shall have printed upon them such statements, showing the amount of accrued or accruing interest, and the character of the notes, as the Secretary of the Treasury may prescribe, and shall bear, as a further evidence of lawful issue,

Cooke v. The United States.

the imprint of the seal of the Treasury Department, to be made under the direction of the Secretary of the Treasury, as · before directed."

The material words in the Act of April 12th, 1866, (14 U. S. Stat. at Large, 31,) under which the transactions between the defendants and the assistant treasurer at the city of New York were had, and which is above in part recited, are those which, after authorizing certain exchanges of bonds for treasury notes or other obligations issued under any Act of Congress, also authorized him to dispose of any of the bonds mentioned, for lawful money of the United States, "the proceeds thereof to be used only for retiring treasury notes. or other obligations issued under any Act of Congress; but nothing herein contained shall be construed to authorize any increase of the public debt."

By virtue of the above named two Acts, of 1864 and 1865, all the notes issued by the Secretary of the Treasury, of the description, in form and date, corresponding with those now in question, (called, for convenience, seven-thirty treasury notes,) were printed from engraved plates, with the engraved signatures of the treasurer of the United States and the register of the Treasury, were lettered and numbered by a machine, and were stamped with the seal of the Treasury Department. No writing whatever appeared thereon, either of names, numbers or words of any kind. They were made and issued in series, each series being designated, and the notes in each series distinguished, by the numbers or letters printed thereon. Those which were produced by the plaintiffs as genuine notes which had been issued by the Secretary of the Treasury, and put in evidence in this case, like those sold by the defendants and subject to this controversy, were dated June 15th, 1865, payable three years after date, i. e., on the 15th of June, 1868, and were, therefore, not due at the time when the notes in question were sold by the defendants, nor when this action was brought to recover back the money paid for the said last named notes.

I. Numerous questions touching the admissibility of

Cooke v. The United States.

evidence were raised in progress of the trial. Most of them related to the question, whether the notes in question were printed from Government plates in the Treasury Department. This inquiry was deemed proper, because, if they were so printed, then some presumption would arise that they were issued by the Government. Some of them related to the proof of the notes which were in fact issued in due course, and the books and papers of the Department showing to whom issued, and when, and what were their numbers, &c., as tending to show what notes, and what only, were issued by the Government. Some related to other particulars. It must suffice, without taking up and discussing each exception in detail, that I am of opinion that, if the principle of liability governing the trial was correct, then no error was committed in those rulings. A large range of speculative inquiry was urged by the defendants into possible and conjectural modes of accounting for the differences between the alleged counterfeit notes and those which were testified to be genuine, and I think the defendants were allowed quite as much latitude as they were entitled to.

II. It is manifest, that, upon the merits of the controversy, the statutes and the facts above detailed suggest several interesting questions, which were raised on the trial, and were discussed in this Court, on the writ of error.

(1.) The notes in question having been, in fact, purchased from the defendants by the assistant treasurer at New York, is the Government concluded, or are the questions whether the notes so purchased are forged and counterfeit, and whether they were, in fact, ever issued under the Acts of Congress, open to inquiry and proof?

(2.) The question of fact-Are the notes in question forged and counterfeit ?

(3.) If not forged 'and counterfeit, then the question of fact-Were they issued under any Act of Congress?

(4.) If not so issued in fact, are they obligations of the Government which, in law, the Government is bound to pay, if they were either printed from the Government plates