Ward v. Smith, 74 U.S. (7 Wall.) 447
Case details
Citation
74 U.S. 447
Full caption
Ward v. Smith.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Majority
Field (Justice)
Ward v . Smith .
1. The designation of a bank as the place of payment of a bond, imports a stipulation that its holder will have it at the bank when due to receive payment, and that the obligor will produce there the funds to pay it.
2. If the obligor is at the bank, at the maturity of the bond, with the necessary funds to pay it, he so far satisfies the contract that he cannot be made responsible for any future damages, either as costs of suit or interest, for delay.
3. Where an instrument payable at a bank is lodged with the bank for collection, the bank becomes the agent of the payee to receive payment.
4. Where such instrument is not lodged with the bank, whatever the bank receives from the maker to apply upon the instrument, it receives as his agent, not as the agent of the payee.
5. Without special authority, an agent can only receive payment of the debt due his principal in the legal currency of the country, or in bills which pass as money at their par value by the common consent of the community.
6. The doctrine that bank bills are a good tender, unless objected to at the time, on the ground that they are not money, only applies to current bills, which are redeemed at the counter of the bank on presentation, and pass at par value in business transactions at the place where offered. 7. If the rule that interest is not recoverable on debts between alien enemies during war of their respective countries, is applicable to debts between citizens of States in rebellion and citizens of States adhering to the National government in the late civil war, it can only apply when the money is to be paid to the belligerent directly; it cannot apply when there is a known agent appointed to receive the money, resident within the same jurisdiction with the debtor. In this latter case the debt will draw interest.
Error to the Circuit Court of Maryland.
In August, 1860, William Ward, a resident of Alexandria in Virginia, purchased of one Smith, of the same place, then administrator of the estate of Aaron Leggett, deceased, certain real property situated in the State of Virginia, and gave him for the consideration-money three joint and several bonds of himself and Francis Ward. These bonds, each ot which was for a sum exceeding four thousand dollars, bore date of the 22d of that month, payable, with interest, in six, twelve, and eighteen months after date, “ at the office of discount and deposit of the Farmers’ Bank of Virginia, at Alexandria.”
In February, 1861, the first bond was deposited at the bank designated for collection. At the time there was indorsed upon it a credit of over five hundred dollars; and it was admitted that, subsequently, the further sum of twenty-five hundred dollars was received by Smith, and that the amount of certain taxes on the estate purchased, paid by the Wards, was to be deducted.
In May, 1861, Smith left Alexandria, where he then resided, and went to Prince William County, Virginia, and remained within the Confederate military lines during the continuance of the civil war. He took with him the other two bonds, which were never deposited at the Farmers’ Bank for collection. Whilst he was thus absent from Alexandria, William Ward deposited with the bank to his credit at different times, between June, 1861, and April, 1862, various sums, in notes of different banks of Virginia, the nominal amount of which exceeded by several thousand dollars the balance due on the first bond. These notes were at a discount at the times they were deposited, varying from eleven to twenty-three per cent. The cashier of the bank indorsed the several sums thus received as credits on the first bond; but he testified that he made the indorsement without the knowledge or request of Smith. It was not until June, 1865, that Smith was informed of the deposits to his credit, and he at once refused to sanction the transaction and accept the deposits, and gave notice to the cashier of the bank and to the Wards, obligees in the bond, of his refusal. The cashier thereupon erased the indorsements made by him on the bond.
jSmith now brought the present action upon the three bonds to recover their entire amount, less the sum credited on the first bond when it was deposited, the sum of twenty-five hundred dollars, subsequently received by the plaintiff, and the amount of the taxes paid by the defendants on the estate purchased.
The court below instructed the jury, that if they found that the defendants executed the bonds, the plaintiff was entitled to recover their amounts, less the credit indorsed on the first
Argument for the plaintiffs in error.
one, and the taxes paid by defendants, and the subsequent payment to the plaintiff with interest on the same. The plaintiff recovered, and the defendants brought the case to this court by writ of error.
Messrs. Brown and F. W. Brune, for the plaintiffs in error:
1. When securities are left with a bank for collection, the bank is, ipso facto, made the qgent of the payee, to receive payment thereof. It is the agent of the payee, not of the payer.*
2. The bank may release the payer by receiving payment in gold, silver, copper, drafts, or checks on other banks or private bankers, bank notes of its own or other banks, circulating at par or below par.
It matters not what may be the particular kind or forms of money accepted by the bank, its relation of agent towards its principal and the debtor ceases the moment the funds so received are mingled with its own.funds, and credit is given on its books for the amount so collected as cash.
The relationship of debtor and creditor, from that moment, subsists between the bank and its former principal, and the bank is liable for the full amount so credited.!
3. It was stipulated in the bonds that they should be payable at the Farmers* Bank; and it was thus made part of the contract that all the bonds should be deposited in that bank by the payee, Smith, at maturity, or before; so that the obligors might be able to make payment of them at the bank, according to the law and usage of banks, in making collections and receiving payments.^
It is not pretended that the payee, Smith, gave any instructions to the bank, or made any communication to the p. 450obligors, attempting to modify or qualify the general law and practice of banks in reference to such matters.
*
Marine Bank v. Fulton Bank, 2 Wallace, 252. t Wallace v. McConnell, 13 Peters, 136, 150; Bank of the United States ”• Bank of Georgia, 10 Wheaton, 333, 341, 344, 346, 347; Levy v. Bank of the United States, 4 Dallas, 234; Marine Bank v. Birney, 28 Illinois, 90; Same v. Rushmore, Id. 463; Tinkhatn v. Heyworth, 31 Illinois,. 522. t Fitler v. Beckley, 2 Watts and Sergeant, 458, 462;. Brabston v. Gibson,
9
Howard, 263, 279. vol . vii . 29
4. The defendants were entitled to have credited to them the notes they deposited at the bank for the plaintiff, either at their par or actual value; and the court erred in allowing them only the three previous credits mentioned in its instruction; and in allowing plaintiff interest on the entire balance during the war.*
Messrs. JR. J. and J. L. Brent, contra.
Mr. Justice FIELD, after stating the case, delivered the opinion qf. the court, as follows :
The defendants claim that they are entitled to have the amounts they deposited, at the Farmers’ Bank in Alexandria, credited to them on the bonds in suit, and allowed as a set-off to the demand of the plaintiff. They make this claim upon these grounds: that by the provision in the bonds, making them payable at the Farmers’ Bank, the parties contracted that the bonds should be deposited there for collection either before or at maturity; that the bank was thereby constituted, whether the instruments were or were not deposited with it, the agent of the plaintiff for their collection; and that as such agent it could receive in payment, equally with gold and silver, the notes of any banks, whether circulating at par or below par, and discharge the obligors.
We do not state these grounds in the precise language of counsel, but we state them substantially.
It is undoubtedly true that the designation of the place of payment in the bonds imported a stipulation that their holder should have them at the bank, when due, to receive payment, and that the obligors would produce there the p. 451funds to pay them. It was inserted for the mutual convenience of the parties. And it is the general usage in such cases for the holder of the instrument to lodge it with the bank for collection, and the party bound for its payment can call there and take it up. If the instrument be not there lodged, and the obligor is there at its maturity with the necessary funds to pay it, he so far satisfies the contract that he cannot be made responsible for any future damages, either as costs of suit or interest, for delay. When the instrument is lodged with the bank for collection, the bank becomes the agent of the payee or obligee to receive payment. The agency extends no further, and without special authority an agent can only receive payment of the debt due his principal in the legal currency of the country, or in bills which pass as money at their par value by the common consent of the community. In the case at bar only one bond was deposited with the Farmers’ Bank. That institution, therefore, was only agent of the payee for its collection. It had no authority to receive payment of the other bonds for him or on his account. Whatever it may have received from the obligors to be applied on the other bonds, it received as their agent, not as the agent of the obligee. If the notes have depreciated since in its possession, the loss must be adjusted between the bank and the depositors; it cannot fall upon the holder of the bonds.
*
Jackson Ins. Co. v. Stewart, 15 American Law Reg. (6 New Series), 782, and note, 735; Tucker ©.Watson, Id. 220; Brewer v. Hastie, 8 Call, 22, Hoare v. Allen, 2 Dallas, 102; Foxcraft v. Nagle, Id. 132; Letter of Mr. Jefferson, 1 American State Papers, pp. 257, 304-312.
But even as agent of the payee of the first bond, the bank was not authorized to receive in its payment depreciated notes of the banks of Virginia. The fact that those notes constituted the principal currency in which the ordinary transactions of business were conducted in Alexandria, cannot alter the law. The notes were not a legal tender for the debt, nor could they have been sold for the amount due in legal currency. The doctrine that bank bills are a good tender, unless objected to at the time, on the ground that they are not money, only applies to current bills, which are redeemed at the counter of the bank on presentation, and pass at par value in business transactions at the place where offered. Notes not thus current at their par value, nor p. 452redeemable on presentation, are not a good tender to principal or agent, whether they are objected to at the time or not.
In Ontario Bank v. Lightbody * it was held that the payment of a check in the bill of a bank which had previously suspended was not a satisfaction of the debt, though the suspension was unknown by either of the parties, and the bill was current at the time, the court observing that the bills of banks could only be considered and treated as money so long as they are redeemed by the bank in specie.
That the power of a collecting agent by the general law is limited to receiving for the debt of his principal that which the law declares to be a legal tender, or which is by common consent considered and treated as money, and passes as such at par, is established by all the authorities. The only condition they impose upon the principal, if anything else is received by his agent, is, that he shall inform the debtor that he refuses to sanction the unauthorized transaction within a reasonable period after it is brought to his knowledge.!
The objection that the bonds did not draw interest pending the civil war is not tenable. The defendant Ward, who purchased the land, was the principal debtor, and he resided within the lines of the Union forces, and the bonds were there payable. It is not necessary to consider here whether the rule that interest is not recoverable on debts between alien enemies, during war of their respective countries, is applicable to debts between citizens of States in rebellion and citizens of States adhering to the National government in the late civil war. That rule can only apply when the money is to be paid to the belligerent directly. When an agent appointed to receive the money resides within the same jurisdiction with the debtor, the latter cannot justify his refusal to pay the demand, and, of course, the interest which it bears. It does not follow that the agent, if he re-
* 13 Wendell, 105. f Story on Promissory Notes, § 115, 389; Graydon v. Patterson, 13 Iowa, 256; Ward v. Evans, 2 Lord Haymond, 930; Howard®. Chapman, 4 Carrington & Payne, 508.
ceive the money, will violate the law by remitting it to his alien principal. “ The rule,” says Mr. Justice Washington, in Conn v. Penn,11 can never apply in cases where the creditor, although a subject of the enemy, remains in the country of the debtor, or has a known agent there authorized to receive the debt, because the payment to such creditor or his agent could in no respect be construed into a violation of the duties imposed by a state of war upon the debtor. The payment in such cases is not made to an enemy, and it is no objection that the agent may possibly remit the money to his principal. If he should do so, the offence is imputable to him, and not to the person paying him the money.”* Nor can the rule apply when one of several joint debtors resides within the same country with the creditor, or with the known agent of the creditor. It was so held in Paul v. Christie.^
Here the principal debtor resided, and the agent of the creditor for the collection of the. first bond was situated within the Federal lines and jurisdiction. No rule respecting intercourse with the enemy could apply as between Marbury, the cashier of the bank at Alexandria, and Ward, the principal debtor residing at the same place*.
The principal debtor being within the Union lines could have protected himself against the running of interest on the other two bonds, by attending on their maturity at the bank, where they were made payable, with the funds necessary to pay them. If the creditor within the Confederate lines had not in that event an agent present to receive payment and surrender the bonds, he would have lost the right to claim subsequent interest.
Judg ment affi rmed .
* 1 Peters’s Circuit Court, 496; Denniston v. Imbrie, 3 Washington do. 896.
t 4 Harris and McHenry, 161.
Con fiscat ion Case s .
1. An informer, in prosecutions under the act of August 6th, 1861,. which subjects to confiscation, upon libel filed, property whose owner used or consented to its use in aiding the rebellion, has no vested interest in the subject-matter of the suits; and this, notwithstanding that the act declares that where any person files an information with the Attorney of the United States (as the act allows any person to do), the proceedings shall be “ for the use of such informer and the United States in equal parts.” 2. Hence, the Attorney-General may properly, and against the interest and objection of the informer, ask a dismissal of an appeal to this court in eases where the decree below, having been against it, the government has appealed; and in the same way ask, upon agreement to that effect with the counsel of the claimants, for a reversal of a decree, where, on decree against them, the appeal has been by the other side, and for a remand of the cause to the court below, with directions to it to dismiss the libel.
The question in this case arose upon a motion of Mr. Evarts, Attorney-General, in fifteen appeals from the Eastern District of Louisiana, in which judgments had been given on libels for condemnation and forfeiture—as having been employed in aid of the rebellion, with the consent of the owners—Against the Trent and five other vessels, from which judgments the owners of the vessels appealed; and given in favor of the Eleanor and eight other vessels, from which the United States appealed.
Mr. Justice CLIFFORD stated the case more particularly, prior to delivering, as hereinafter, the opinion of the court.
Property owned by any person who knowingly uses or employs the same, or who consents to the use or employment of the same in aiding, abetting, ©r promoting insurrection against the government of the United States, under the conditions specified in the first section of the act of the 6th of August, 1861, is declared by that act “ to be lawful subject of prize and capture,” and all property purchased, acquired, sold, or otherwise transferred, with intent that the same may be so used or employed, is also declared to be p. 455subject to the same proceedings, and the provision is, that it shall be the duty of the President to cause the same to be seized, confiscated, and condemned.*
Proceedings for the condemnation of such property may be instituted by the Attorney-General, or by any district attorney for the district in which the property is situated at the time the proceedings are commenced, and the third section provides, that in such cases “ the proceedings are wholly for the benefit of the United States;” but the same section also provides, that “ any person may file an information with such attorney, in which case the proceedings shall be for the use of such informer and the United States in equal parts.”
Pursuant to those provisions libels of information were filed in these cases by the district attorney of the United States for the Eastern District of Louisiana, in the Circuit Court of the United States for that district, in which it was alleged that the steamer Eleanor was seized on the 15th of June, 1865, and that the steamer Trent was seized on the 30th of June in the same year.
Apart from the names of the vessels, and the time when the respective seizures were made, the allegations of the libels are similar in every respect material to this investigation. They were addressed to the judges of the Circuit Court for that district, and the introductory allegation in each states that the district attorney prosecutes for the United States, and in the name and behalf of the United States and Charles Black, informant, against the respective steamers, their tackle, apparel, and furniture, and the prayer of the respective libels is for process of monition, order of publication, and for a decree of condemnation to the use and ownership of the United States and of the informant.
Both steamers were seized, and process was served in each case; but the steamers were afterwards released by the order of the court, made at the request of the claimants, who respectively gave bonds for their appraised value. Subsequent proceedings in the two cases were in all respects
* 12 Stat, at Large, 319.
the same, except that the decree in the first case was for the claimants, and in the second for the United States, and the losing party in each case appealed to this court. Other appeals in like cases were entered in this court at the same term, and they have remained on the calendar to the present time.
Early in the present term some of the cases were heard upon.the merits; but these cases now come before the court on certain motions made in behalf of the United States by the Attorney-General. His motion in the first case is for leave to dismiss the libel of information; and in the second case, his proposition is to the effect that the decree of the Circuit Court, which was in favor of the United States, shall be reversed, and the cause remanded, with a view that the same may be dismissed in the court where the suit was instituted. When the motions were made they were taken under advisement; but the court subsequently decided that the motions ought to be granted, unless the informer desired to be heard in opposition to the discontinuance of the prosecutions. Since that time the informer has been heard,* and the court has come to the conclusion that the respective motions must be granted.
Provision was made by the thirty-fifth section of the Judiciary Act for the appointment of an attorney of the United States in each district, and the same section makes it his duty to prosecute in such district all delinquents for crimes and offences cognizable under the authority of the United States, and all civil actions in which the. United States shall be concerned, except before the Supreme Court, in the district in which that court shall be holden.f
In the prosecution of suits in the name and for the benefit of the United States, the seventh section of the act of the 15th of May, 1820, provided that the district attorneys should conform to such directions and instructions as they p. 457should receive from the agent of the treasury; but the first section of the act of the 2d of August, 1861, devolves the general superintendence and direction of district attorneys, as to the manner of discharging their respective duties, upon the Attorney-General of the United States.*
*
He was represented here by Messrs. C. Cushing and B. Butler. Re ?- f 1 Stat, at Large, 92.
Public prosecutions, until they come before the court to which they are returnable, are within the exclusive direction of the district attorney, and even after they are entered in court, they are so far under his control that he may enter a nolle prosequi at any time before the jury is empanelled for the trial of the case, except in cases where it is otherwise provided in some act of Congress.
Civil suits, in the name and for the benefit of the United States, are also instituted by the district attorney, and, in the absence of any directions from the Attorney-General, he controls the prosecution of the same in the district and circuit courts, and may, if he sees fit, allow the plaintiffs to become nonsuit, or consent to a discontinuance.
Settled rule is that those courts will not recognize any suit, civil or criminal, as regularly before them, if prosecuted in the name and for the benefit of the United States, unless the same is represented by the district attorney, or some one designated by him to attend to such business, in his absence, as may appertain to the duties of his office, f
Under the rules of the common law it must be conceded that the prosecuting party may relinquish his suit at any stage of it, and withdraw from court at his option, and without other liability to his adversary than the payment of taxable costs which have accrued up to the time when he withdraws his suit.J
Precisely the same rule prevails in the admiralty courts, and consequently the libellant has the right at any stage of
* 3 Id. 596; 12 Id. 285. t U Stat, at Large, 51; Levy Court v. Ringgold, 5 Peters, 454; United States v. Corrie, 23 Law Rep. 145; United States v. Stowell, 2 Curtis, 153 ; United States v. McAvoy, 4 Blatchford, 418; The Peterhoff, Blatch. Prize Cases, 463; The Anna, lb. 337.
t 1 Tidd’s Practice, 628.
the cause voluntarily to discontinue the same, and the only penalty to which he can legally be subjected, in the absence of any statutory regulation, except, perhaps, in prize cases, is the payment of the costs of the proceedings.*
Although the name of the informer in these cases is mentioned in the libel of information, still it is nevertheless true that the suit was instituted by the district attorney in the name and for the benefit of the United States. Control of these suits, therefore, while they were pending in the Circuit Court, belonged to the district attorney under the general superintendence and direction of the Attorney-General, and he might, if he had seen fit, have discontinued them at any stage of the proceedings prior to the appeals. Such control on the part of the district attorney ceases whenever such a suit, civil or criminal, is transferred to this court by writ of error, appeal, or certificate of division of opinion, as the thirty-fifth section of the Judiciary Act also provides, that it shall be the duty of the Attorney-General to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and such has been the unbroken practice of this court in such suits from the organization of the judicial system to the present time. Appointed, as the Attorney-General is, in pursuance of an act of Congress, to prosecute and conduct such suits, argument would seem to be unnecessary to prove his authority to dispose of these cases in the manner proposed in the respective motions under consideration, but if more be needed, it will be found in the case of The (Tray Jacket^ in which this court decided that in such suits no counsel will be heard for the United States in opposition to the views of the Attorney-General, not even when employed in behalf of another of the executive departments of the government.
Whether tested, therefore, by the requirements of the Judiciary Act, or by the usage of the government, or by the decisions of this court, it is clear that all such suits, so far as the interests of the United States are concerned, are
f 5 Wallace, 370. p. 459subject to the direction, and within the control of, the Attorney-General.
*
The Oriole, Olcott, 67.
Objection is made to the granting of the motions, in these cases, upon the ground that it would impair the vested rights of the informer, mentioned in the respective libels of information. Argument for the informer is, that the allegations of the libels afford presumptive evidence that he filed the informations with the district attorney, and that the third section of the act provides that, in that state of the case, the proceedings shall be for the use of such informer, and the United States, in equal parts. Perhaps the better opinion is, that the allegations of the libels, in case of condemnation, would afibrd primâ facie evidence that the person therein named, as the informer, is entitled to be regarded in that character; but the more important inquiry in this case is, whether he possesses any such interest in the property seized, before final condemnation, as will prevent the Attorney-General from dismissing the suits, as proposed in the motions? Much aid will be derived, in the solution of that question, by a comparison of the third section of the act, invoked as supporting the views of the informer, with similar provisions in other acts of Congress, upon analogous subjects. Regulations were prescribed for the distribution of fines, penalties, and forfeitures, in the first act passed by Congress for the collection of maritime duties, including forfeitures arising from seizures on navigable waters, as well as on land, and the same provisions, in substance and effect, were incorporated into the act of the 2d of March, 1799, which for many purposes, remains in force to the present time.*
Those regulations direct that one moiety of the fines, penalties, and forfeitures recovered by those acts, after deducting all proper costs and charges, shall be paid into the treasury, and that the other shall, in certain cases, be divided, in equal proportions, between the collector, naval officer, and surveyor of the port ; and, in other cases, that one-half of that moiety shall be given to the informer, and
* 1 Statutes at Large, 48, 697.
the'remainder only to the officers of the customs. Such fines, penalties, and forfeitures were required by those acts, to be sued for and recovered in the name of the United States, in any court competent to try and determine the controversy.
Questions of various kinds arose in the construction of those regulations, especially in cases where the claims of informers came in conflict with the assumed rights of subsequent purchasers, and with the action of the Secretary of the Treasury, in remitting such forfeitures under the act of Congress conferring that power upon the head of that department.*
Differences of opinion existed among the justices of this court, whether a forfeiture under those provisions, or others of like character, gave such a title to the United States as to overreach a bond fide sale to an innocent purchaser, when made before seizure and suit for condemnation, but the majority of the court adopted the affirmative of that proposition.!
No one, however, contended that any such rule could be applied, in any way, except by relation back to the criminal offence, in cases where the title had been consummated by seizure, suit, and judgment, or decree of condemnation. Next controversy arose between the collector and the heirsat-law of his predecessor, in a case where the seizure had been made by the latter, in his lifetime, and while he was in office, but the decree of condemnation was not entered till after his decease, and the appointment of his successor. Payment of the amount, as ordered in the decree of distribution, was made to the collector in office at the date of the decree, but the court held that the money belonged to his predecessor, in consequence of the inchoate right which he acquired, by virtue of the seizure, and the incipient steps taken by him to cause the suit to be instituted.^
* 1 Statutes at Large, 506, 626. f United States ®. Bags of Coffee, 8 Cranch, 404; The Mars, Id< 417. J Jones v. Shore’s Exrs., 1 Wheaton, 468.
Express ruling of the court in that case was, that the right of the collector to forfeitures in rem, attached on the seizure, but that the right must be defined and consummated by the judgment or decree. Authority to remit such fines, penalties, and forfeitures, was conferred upon the Secretary of the Treasury, by the act of the 3d of March, 1797, and the next important controversy which arose upon the subject, was as to the extent of that authority, and whether the secretary could remit the share of the informer, or that of the officers of the customs, subsequent to the judgment or final decree.
Just prior to the decision, in the case of Jones v. Shore’s JExrs.', Judge Story ruled, in the Circuit Court, that the right of the collector, antecedent to the judgment or decree, was merely inchoate, but he added, what was not necessary to the decision of the case, that his right to the forfeiture vested absolutely with the final sentence of condemnation, and that, after judgment, it could not be remitted by the Secretary of the Treasury.*
Unguarded expressions, supposed to support the same conclusion, are also employed in some of the prior, as well as subsequent, decisions of this court, f
Doubts arose whether the secretary could remit a forfeiture or penalty, accruing under the several acts, subsequent to the final decree or judgment, but those doubts were soon removed by a unanimous decision of this court, and one which is characterized by accurate analysis, clear statement, and sound conclusions.^
Merchandise was imported into the United States in violation of the non-intercourse act then in force, and the vessel and cargo were seized on that account, and were afterwards condemned as forfeited. Subsequent to the decree of condemnation, the Secretary of the Treasury remitted the whole forfeiture, and this court held that he did not exceed his p. 462authority; that neither the rights of the informer, nor the rights of the collector, or other officers of the customs, were violated in the case; that their rights were conditional, and subordinate to the power of remission; and that the secretary had authority, under that act, to remit a forfeiture, at any time before or after a final decree or judgment, until the money was actually paid over to the collector for distribution, and that the power to remit extends not only to the interest of the United States, in the forfeiture, but also to the share of the informer, and that of the officers of the customs.
Informations, to recover municipal forfeitures, whether the seizure was made on navigable waters or on land, must be instituted in the name of the United States, and they must be prosecuted, in the subordinate courts, by the district attorney, and in this court, when brought here by appeal, or by writ of error, by the Attorney-General. Where the seizure was made on navigable waters, the case belongs to the instance side of the subordinate court; but where the seizure was made on land, the suit is one at common law, and the claimants are entitled to a trial by jury.*
Mention of the name of the informer, in the inforjnation, in such cases, is not necessary, as he is not a party to the suit, nor is he entitled to be heard, as such, in any stage of the proceedings. He cannot institute the suit, nor move for process, nor join in the pleadings, nor take testimony, nor except to the ruling of the court, nor sue out a writ of error, or take an appeal. Judgment is for the claimants, or for the United States, and if for the latter, and the claimants do not remove the cause into this court for revision, it then becomes the duty of the court to render the decree for distribution. Prior to such a decree, the interest of the informer is conditional, and under the decisions of this court it continues to be so until the money is paid over, as required by law.f
* 3 Greenleaf on Evidence, § 396; 1 Kent’s Com. (11th ed.), 337; The Sarah, 8 Wheaton, 394; Armstrong’s Foundry, 6 Wallace, 769.
Viewed in any light, it is quite clear that the informer, in these cases, has no vested interest in the subject-matter of these suits, and that both motions ought to be
Gran te d .
The order in the first case is, that it be dismissed, and that order also disposes of Nos. 26, 27, 28, 29, 30, and 33, 34, and 35.
’Order in the second case is, that the decree be reversed, as stipulated by the parties, and that the cause be rémanded, with directions to dismiss the libel of information ; and this order also disposes of Nos. 44, 46, 48, 63, and 64, on the calendar.
Uni te d Stat es v . Ada ms .
1. It is the duty of the Secretary of War, as head of the War Department, to see that contracts which belong to his office are properly and faithfully executed, whether he have made the contracts himself or have conferred authority on others to make them; and if he becomes satisfied that contracts which he has made himself are being fraudulently executed, or that those made by others were made in disregard of the rights of the government, or with the intent to defraud it, or are being unfaithfully executed, it is his duty to interpose, arrest the execution, and adopt effectual measures to protect the government against the dishonesty of subordinates.
2. If there exist well-grounded suspicions, or facts unexplained, tending strongly to the conclusion that contracts have been entered into, and debts incurred, within a particular military district, in disregard of the rights of the government, the secretary has a right and is bound to issue an order to suspend the payment of all claims against it.
8. In such a case (especially where the military district in which the contracts were made and are to be carried into execution is one distant from Washington, where Congress and the Court of Claims sit, and a resort to these tribunals would occasion delay and expense), the appointment of a board of commissioners, to meet at once at the place where all the transactions out of which the claims and demands of which payment is now suspended originated — the appointment being for the simple purpose of affording to such claimants as might desire a tribunal to speedily