Where a bill of exchange was endorsed to T.T.T., Treasurer of
the United States, who received it in that capacity and for account
of the United States, and the bill had been purchased by the
Secretary of the Treasury (as one of the commissioners of the
sinking fund and as agent of that board) with the money of the
United States, and was afterwards endorsed by T.T.T., Treasurer of
the United States, to W. & S. and by them presented to the
drawees for acceptance and protested for nonacceptance and
nonpayment, and sent back by W. & S. to the Secretary of the
Treasury,
held that the endorsement to T.T.T. passed such
an interest to the United States as enabled them to maintain an
action on the bill against the first endorser.
Quaere whether, when a bill is endorsed to an agent,
for the use of his principal, an action on the bill can be
maintained by the principal in his own name?
However this may be between private parties, the United States
ought to be permitted to sue in its own name whenever it appears,
not only on the face of the instrument, but from all the evidence,
that it alone is interested in the subject matter of the
controversy.
Held that the United States might recover in the
present action without producing from W. & S. a receipt or a
reendorsement of the bill; that W. & S. were to be presumed to
have acted as the agents or bankers of the United States; and that
all the interest which W. & S. ever had in the bill was
divested by the act of returning it to the party from whom it was
received.
If a person who endorses a bill to another, whether for value or
for the purpose of collection, comes again to the possession
thereof, he is to be regarded, unless the contrary appears in
evidence, as the
bona fide holder and proprietor of such
bill, and is entitled to recover thereon notwithstanding there may
be on it one or more endorsements in full, subsequent to the
endorsement to him, without producing any receipt or endorsement
back to him from either of such endorsees, whose names he may
strike from the bill or not as he thinks proper.
Page 16 U. S. 173
By the special verdict in this cause it appeared, that on 22
December, 1801, Aquila Brown, at Baltimore, drew a bill of exchange
on Messrs. Van Staphorst & Co. at Amsterdam, for 60,000
guilders, payable at 60 days' sight, to the order of James Clarke,
the defendants' testator. James Clarke endorsed the bill to
Page 16 U. S. 174
Messrs. Brown & Hackman, who afterwards endorsed it to Beale
Owings, who endorsed the same to Thomas T. Tucker, Esq., Treasurer
of the United States, or order, and delivered it to him as
Treasurer as aforesaid, who received it in that capacity and on
account of the United States. It further appeared that this bill
had been purchased with money belonging to the United States and
under the order and by an agent of the then Secretary of the
Treasury of the United States for the purpose of remitting the same
to Europe for the government of the United States, who, in ordering
the purchase of this bill, acted as one of the commissioners of the
sinking fund and as agent for that board. The bill was afterwards
endorsed to Messrs. Wilhem & Jan Willink & N. & J.
& R. Van Staphorst by Thomas Tucker, Treasurer of the United
States, and appears by an endorsement thereon to have been
registered by the proper officer at the Treasury of the United
States on 28 December, 1801, before it was sent to Europe. The bill
having been regularly presented for acceptance by the last
endorsees to the drawees, who protested for nonacceptance. It was
afterwards protested for nonpayment and then returned by them to
the Secretary of the Treasury of the United States for and on their
behalf, who directed this action to be brought. Of these protests
due notice was given to the drawer of the bill.
On this state of facts, the circuit court rendered judgment for
the United States, to reverse which, this writ of error was
brought.
Page 16 U. S. 179
MR. JUSTICE LIVINGSTON delivered the opinion of the Court, and
after stating the facts, proceeded as follows:
The first question which will be disposed of, although not the
first in the order of argument, will be whether the endorsement of
this bill to Mr. Tucker, under the peculiar circumstances attending
the transaction, did not pass such an interest to the United States
as to enable it to sue in its own name. In deciding this point it
will be taken for granted that no doubt can arise on the special
verdict as to the party really interested in this bill. It was
purchased with the money of the United States. It was endorsed to
its treasurer; it was registered at its Treasury; it was forwarded
by its Secretary of the Treasury, to whom it was returned, after it
had been dishonored, for and on behalf, as the jury expressly
found, of the United States. Indeed, without denying the bill to be
the property of the United
Page 16 U. S. 180
States, it is supposed that the action should have been in the
name of Mr. Tucker, its treasurer, and not in the name of the
cestuy que trust. If it be admitted, as it must be, that a
party may in some cases declare according to the legal intendment
of an instrument, it is not easy to conceive a case where such an
intendment can be stronger, than in the case before the Court, but
it is supposed that before any such intendment can be made, it must
appear that Mr. Tucker acted under some law and that his conduct
throughout comported with his duties as therein prescribed. It is
sufficient for the present purpose that he appears to have acted in
his official character, and in conjunction with other officers of
the Treasury.
The court is not bound to presume that he acted otherwise than
according to law or those rules which had been established by the
proper departments of government for the transaction of business of
this nature. If it be generally true that when a bill is endorsed
to the agent of another for the use of his principal, an action
cannot be maintained in the name of such principal (on which point
no opinion is given), the government should form an exception to
such rule, and the United States be permitted to sue in its own
name whenever it appears not only on the face of the instrument,
but from all the evidence, that it alone was interested in the
subject matter of the controversy. There is a fitness that the
public, by its own officers, should conduct all actions in which it
is interested, and in its own name, and the inconveniences to which
individuals may be exposed in this way, if any, are light when
weighed against
Page 16 U. S. 181
those which would result from its being always forced to bring
an action in the name of an agent. Not only the death or bankruptcy
of an agent may create difficulties, but setoffs may be interposed
against the individual who is plaintiff, unless the court will take
notice of the interest of the United States, and if it can do this
to prevent a setoff, which courts of law have done, why not at once
permit an action to be instituted in the name of the United States?
An intimation was thrown out that the United States had no right to
sue in any case without an act of Congress for the purpose. On this
point the Court entertains no doubt. In all cases of contract with
the United States, it must have a right to enforce the performance
of such contract or to recover damages for their violation by
actions in their own name, unless a different mode of suit be
prescribed by law, which is not pretended to be the case here. It
would be strange to deny to it a right which is secured to every
citizen of the United States.
It is next said by the plaintiff in error that if the
endorsement to Mr. Tucker, as Treasurer of the United States,
passed such an interest to the latter as to enable it to sue in its
own name, yet such title was divested by Mr. Tucker's endorsing the
bill to the Messrs. Willinks & Van Staphorst, which endorsement
appeared on the bill at the trial and is still on it.
The argument on this point is that the transfer to the last
endorsees being in full, a recovery cannot be had in the name of
the United States without producing from it a receipt, or a
reendorsement of
Page 16 U. S. 182
the bill, and that this endorsement not being in blank could not
be obliterated at the trial, so that the court and jury were bound
to believe that the title to this bill was not in the United
States, but in the gentleman to whom Mr. Tucker had endorsed
it.
The mere returning of this bill with the protest for
nonacceptance and nonpayment by the Messrs. Willinks & Van
Staphorst to the Secretary of the Treasury of the United States for
its account is presumptive evidence of the former's having acted
only as agents or as bankers of the United States. When that is not
the case, it is not usual to send a bill back to the last endorser,
but to some third person, who may give notice of its being
dishonored and apply for payment to such endorser as well as to
every other party to the bill. In the case of an agency then so
fully established, it would be vain to expect either a receipt or a
reendorsement of the bill. The first could not be given consistent
with the truth of the fact, and the latter might well be refused by
a cautious person who had no interest whatever in the transaction.
In such case, therefore, a court may well say that all the title
which the last endorsees ever had in the bill, which was a mere
right to collect it for the United States, was divested by the
single act of returning it to the party of whom it was received.
But if this agency in the Messrs. Willinks & Van Staphorst were
not established, the opinion of the Court would be the same. After
an examination of
Page 16 U. S. 183
the cases on this subject (which cannot all of them be
reconciled), the Court is of opinion that if any person who
endorses a bill of exchange to another, whether for value or for
the purpose of collection, shall come to the possession thereof
again, he shall be regarded, unless the contrary appear in
evidence, as the
bona fide holder and proprietor of such
bill, and shall be entitled to recover, notwithstanding there may
be on it one or more endorsements in full subsequent to the one to
him, without producing any receipt or endorsement back from either
of such endorsees, whose names he may strike from the bill or not
as he may think proper.
Judgment affirmed.
