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prisoner (Lord) had no rights, vested or contingent, at the time the amendment was passed, which it did or could take away. And Mr. Austin says that, from a legal point of view, there are no rights but those which are the creatures of positive law. The proposition we maintain (and which is founded on principle and supported by authority) is this: That a statute extending the time within which actions may be brought or indictments may be found, and providing that they may be brought or found within a certain time after the cause of action shall accrue, or after the offense shall be committed, is to be construed as applying to rights of action which have accrued, or to offenses which have been committed, before the statute was passed, and which were not then barred by any previous limitation; and that, in such case, the statute does not operate retrospectively, but prospectively, and affects existing rights or offenses only from the time of its passage.
But where a statute reduces the limitation, and provides that certain actions must be brought within a specified time "after the cause thereof shall accrue," or, "shall have accrued," it is not to be construed (though the language may admit of that construction) to apply to rights of action which have previously accrued; for if such a construction were adopted, many rights of action would become absolutely barred the moment the statute took effect, and, as to those, would be unconstitutional, and, therefore, void, as impairing the obligation of contracts, in taking away all remedy to enforce them. Thus, if the original limitation was five years, and a subsequent statute reduced it to three, all rights of action which have accrued more than three years before the statute was passed would be cut off Immediately. So, also, if no limitation was previously prescribed. Construing such a statute to run against existing rights of action from the time the right shall have accrued, would be giving to it a retrospective operation, which would work injurious consequences. A rule of construction which would lead to such consequences will not, therefore, be adopted, when its language will admit of a different construction. This rule protects the party in whom the right is vested, and was adopted and applied in the following cases: Ridgeley v. Steamboat Reindeer, 27 Mo. 442; Hull v. Minor, 2 Root, 223; Thompson v. Alexander, 11 Ill. 54; Watkins v. Haight, 18 Johns. 138; Sayre v. Wisner, 8 Wend. 661; Williamson v. Field, 2 Sandf. Ch. 569; Didier v. Davison, 2 Barb. Ch. 477; Calkins v. Calkins, 2 Barb. 355. (It should be noticed, however, that the N. Y. Rev. Stats. expressly provide that the limitations therein prescribed shall not apply to any cases where the right of action shall have accrued before 1830.) Boyd v. Barrenger, 23 Miss. 269; Garrett v. Beaumont, 24 id. 379; and Murray v. Gibson, 15 How. (U. S.) 421, Daniel, J., saying: general rule for the interpretation of statutes, it may be laid down that they never should be allowed a retroactive operation where this is not required by express command or by necessary and unavoidable implication. Without such command or implication they speak and operate upon the future only. Especially should this rule of interpretation prevail, when the effect and operation of a law are designed, apart from the intrinsic merits of the rights of parties, to restrict the assertion of those rights."
And where a statute provided that certain actions shall be brought within two years from the time the right "has accrued or shall accrue," it was held unconstitutional as to a cause of action which accrude
more than two years before the statute was passed. 10 Cal. 305.
Though this rule of construction is evidently just and sound, yet it may leave existing rights of action unprovided with any limitation whatever. Thus, if the statute supersedes or repeals a former statute on the same subject, or if no limitation had been previously prescribed, causes of which have previously accrued, are left without any limitation. Still we see not how this circumstance affects the soundness of the rule.
But the contrary rule was adopted and applied by the District Court of Philadelphia in Com. v. Hutchinson,2 Pars. 453, where a statute providing "that from and after the passage of this act no indictment shall be found, unless within five years from the time at which the offense shall have been committed," was held to apply to offenses committed more than five years before the statute took effect. "The expressions employed are broad and comprehensive, and would seem to embrace all cases where the offense had been perpetrated before the passage of the act, as well as after. It is simply prohibiting the officers of justice from acting in such cases." If the same rule of construction applicable to statutes of limitation in civil cases is applicable to statutes of limitation in criminal cases (and we perceive no good reason why the same rule should not govern both cases), then this decision cannot be sustained upon that rule, for the rights of the people against criminal offenders became immediately barred. However, if the decision is correct, it is an authority in our favor.
Another and different rule of construction of statutes shortening the time within which actions must be brought, is to construe them as running against existing causes of action from the time the statute took effect, notwithstanding the statute provides that suits thereon must be instituted "within two years next after the cause or right of action shall have accrued, and not after." This rule was adopted and applied in Sohn v. Waterson, 17 Wall. 596. With much stronger reason should this rule apply to statutes lengthening the limitation. The importance of this decision, the high authority of the court rendering it, and the fact that the principle enunciated and established is decisive of the present case, require a liberal quotation from the opinion delivered by that distinguished jurist, Judge Bradley. "The plaintiff contends that the statute cannot apply to actions which accrued more than two years before its passage, because it would cut them off and defeat them altogether, and would thus impair the obligation of contracts. A literal interpretation of the statute would have this effect. But it is evident that the legislature could not have had any such intention. * * The court below held that the act was prospective in its operation, and affected existing causes of action only from the time of its passage. This seems to us a reasonable construction and one that prevents the legislative intent from being frustrated. ** It is a rule of construction that all statutes are to be considered prospective, unless the language is express to the contrary, or there is a necessary implication to that effect. The plaintiff contends that the application of this rule to the statute in question would have the effect of restricting its application to actions accruing after the passage of the act. But this is not a necessary conclusion. A statute of limitations may undoubtedly have effect upon actions which have already accrued as well as upon actions
which accrue after its passage. Whether it does so or not will depend upon the language of the act, and the apparent intent of the legislature to be gathered therefrom. When a statute declares generally that no action, or no action of a certain class, shall be brought, except within a certain limited time after it shall have accrued, the language of the statute would make it apply to past actions as well as to those arising in the future. But if an action accrued more than the limited time before the statute was passed, a literal interpretation of the statute would have the effect of ab. solutely barring such action at once. It will be presumed that such was not the intent of the legislature. Such an intent would be unconstitutional. To avoid such a result, and to give the statute a construction that will enable it to stand, courts have given it a prospective operation. In doing this, three different modes have been adopted by different courts. One is to make the statute apply only to causes of action arising after its passage. But as this construction leaves all actions existing at the passage of the act, without any limitation at all (which, it is presumed, could not have been intended), another rule adopted is, to construe the statute as applying to such existing actions only as have already run out a portion of the statutory time, but which still have a reasonable one left for prosecution before the statutory time expireswhich reasonable time is to be estimated by the court -leaving all other actions accruing prior to the statute unaffected by it. (4 Wisc. 18; 15 id. 55; 7 Ind. 91; but see 31 id. 221.) The latter rule does not seem to be founded on any better principle than the former. It still leaves a large class of actions entirely unprovided with any limitation whatever, or, as to them, is unconstitutional, and is a more arbitrary rule than the first. A third construction is that which was adopted by the court below in this case, and which we regard as much more sound than either of the others. It was substantially adopted by this court in Ross v. Duval, 13 Pet. 62; and Lewis v. Lewis, 7 How. 778. In those cases certain statutes of limitation had originally excepted from their operation non-residents of the State, but this exception had been afterward repealed; and this court held that the non-resident parties had the full statutory time to bring their actions after the repealing acts were passed, although such actions may have accrued at an earlier period. • The question is,' says Chief Justice Taney (speaking in the latter case) from what time is this limitation to be calculated? Upon principle, it would seem to be clear, that it must commence when the cause of action is first subjected to the operation of the statute, unless the legislature has otherwise provided.'" Speaking of Murray v. Gibson, 15 How. 421, he says: "But that decision was made in express deference to those of the State court, which were regarded as authoritative. In the present case we are not bound by any decisive construction of the State court on this point." (See, also, Lawrence v. Trustees, 2 Denio, 582 (Vice-Chancellor Hoffman); 7 Ind.468, and dicta in 8 Wend. 661, and 10 Cal. 308, supra.) It may admit of some doubt whether the principle adopted was correctly applied to the statute in that case. We might say (with Vice-Chancellor Sandford in 2 Sandf. Ch. 569) that the statute says nothing of two years from the time it goes into effect; its language is plain and positive, "after the cause of action shall have accrued, and not after." However this may be, it needs no argument to show that the principle of that decision is applicable to the statute in
this case, and is decisive. If the same rule of construction should be adopted in construing statutes of limitation, extending the time within which indictments may be found (and we see no good reason why it should not be) then we have a few additional authorities directly in favor of our proposition.
In Ogden v. Blackledge, 2 Cranch, 272, the limitation was seven years, but before that period had run against the plaintiff's demand, the statute was repealed, and suit was commenced fifteen years after the right of action accrued, and it was held that the statute "having been repealed by the act of 1789, at which time seven years had not elapsed," was no defeuse. This case was followed in Winston v. McCormick, Smith's R. (Ind.), 8, where the contract was made while the act of 1838, which limited the bringing of an action to five years, was in force, but that act was repealed by the act of 1843, before five years had elapsed, which extended the time to six years. The defendant relied on a proviso in the repealing act. But that learned and able judge, Blackford, said that "the effect of the proviso is only to save from the consequences of the repeal certain rights actually existing when the repeal took place. It does not appear that at the time of the repeal the defendant had any defense. If the defense did not exist when the act of 1838 was repealed, the defendant had no existing right to be affected by the repeal. Had the five years expired before the repeal of the act of 1838, that might be said to have operated upon the case, and the defendant then would have had a defense, which the subsequent repeal of the act would not have taken away. This point was decided in McKinney v. Springer, 8 Blackf. 506. But this is a different case. * * The defendant, in order to show his construction of the statutes to be right, says that suits on contracts made previous to the act of limitations of 1843, are unlimited unless the old act governs them; the act of 1843 being prospective only. But we do not agree to this. The language of the act of 1843 on the subject is not uniform. In one place it is 'after the cause of action shall accrue;' in another, after the accruing of the cause of action'; in others, after the cause of action shall have accrued.' We suppose the legislature intended to embrace all cases, both before and after the taking effect of the act, except such as are within the decision of McKinney v. Springer. * *This suit having been commenced after the act of 1843 was in force, which prescribes six years as a bar, the plea relying on the lapse of five years next before the suit was commenced, cannot be sustained. Were the statute of limitations a part of the contract, then this plea would be valid; but the law is otherwise. The statute affects the remedy only; and that statute governs cases like this which happens to be in force when the suit is brought." Approved in Pritchard v. Spencer, 2 Ind. 487. S. P. applied, in 3 id. 362, to a statute shortening the limitation, and thereby cutting off an existing right of action. The decisions in that State are not harmonious (see 7 Ind. 91, 468; 31 id. 221); but they do not affect the decision above quoted.
Royce v. Hurd, 24 Vt. 620, holds that a statute affecting non-resident defendants "against whom there is or may be any cause of action" from the operation of the statute of limitations, applied to all subsisting cause of action not barred at the time of its passage.
Couch v. McKee, 1 Eng. (Ark.) 484, merely holds that an amendment to a statute extending the limita
tion from three to five years did not apply to rights of action previously barred.
In Calvert v. Lowell, 5 Eng. 147, the right to sue accrued in 1841, and the limitation was three years; but in 1844, before three years had elapsed, a statute was enacted providing that as to "causes of action which shall accrue," the limitation shall be five years, but did not expressly repeal the former statute. Action brought in 1847. Plaintiff claimed five years from 1844, but the court decided that his case was governed by the former statute, which had not been repealed.
In Stone v. Flower, 47 N. Y. 566, a statute provided that "The time of absence from this State of any such person during his term of service [in the war] and while engaged therein, shall not be taken as part of the period limited," etc. Held, that the time of absence of a person in such service, prior to its passage, is not excluded in calculating the time limited for the commencement of an action previously accrued. In Ex parte Lane, 3 Metc. 213, a statute provided that no certificate of discharge should be granted if a debtor shall, within six months before filing his petition, make an assignment to preferred creditors, and it was held to apply to debtors who had filed their petition before the passing of the statute. "The statute is not to be considered a retrospective act, disturbing vested rights; but as altogether prospective in its operations, although it might depend, in some cases, on acts done before it took effect." And see, also, Moore v. Mansert, 49 N. Y. 332.
Dash v. Van Kleeck, 7 Johns. 477, merely holds that, where a defense to an action of tort existing by the common law is taken away by statute, and the statute is repealed, the defense is not available against an action pending at the time of the repeal.
The following named cases were cited by defendant's counsel, but none of them arose under the statute of limitation: Wood v. Oakley, 11 Pai. 400; People v. Carnal, 6 N. Y. 463; Ely v. Horton, 15 id. 595; Sanford v. Bennett, 24 id. 20; Prince v. U. S., 2 Gall. 204; Carroll v. Carroll, 16 How. (U. S.) 275; Couch v. Jeffries, 4 Burr. 2460; Gilmore v. Sleuter, 2 Mod. 310. Now let us present the views of Judge Mullin. He bases his decision on the following extract from Whart. Crim. Law, VI, § 444 a. "A mistake is sometimes made in applying to statutes of limitations in criminal suits the construction that has been given to statutes of limitation in civil suits. The two classes of statutes, however, are essentially different. In civil suits the statute is interposed by the legislature as an impartial arbiter between two contending parties. In the construction of the statute, therefore, there is no intendment to be made in favor of either party. Neither grants the right to the other; there is, therefore, no grantor against whom arise the ordinary presumptions. But it is otherwise when a statute of limitation is granted by the State. Here the State is the grantor, surrendering by act of grace its right to prosecute, and declaring the offense to be no longer the subject of prosecution. The statute is not a statute of process, to be scantily and grudgingly applied, but, on the contrary, declaring that after a certain time oblivion shall be cast over the offense; that the offender shall be at liberty to return to his country, and resume his immunities as a citizen, and that from henceforth he may cease to preserve the proofs of his innocence, for the proofs of his guilt are blotted out. Hence it is that statutes of limitation are to be liberally construed in favor of the defendant, not only because such liberality
of construction belongs to all acts of amnesty and grace, but because the very existence of the statute is a recognition and ratification by the legislature of the fact that time, while it gradually wears out proofs of innocence, has assigned to it fixed and positive periods in which it destroys proofs of guilt." But the learned judge misapprehends Mr. Wharton, for it is evident, not only from the language of the text, but also from note b, to "legislative attempts to institute prosecutions for offenses which prior statutes have canceled." The proposition that the legislature, by passing a statute of limitation, surrenders its right to alter that statute is (to use a mild expression) absurd.
That portion of the original statute prescribing a limitation of three years was so far abrogated by the amendment of 1873. Consequently, if the statute as amended is not applicable to offenses previously committed, they are left without any limitation whatever! Thus, the arguments used by defendant's counsel operate like a boomerang.
The statute does not read "after the offense shall be committed," but "after the commission of the offense."
The conclusions we reach are:
1. That a statute extending the time within which actions may be brought, and providing that they may be brought within a specified time after the cause of action shall accrue or shall have accrued, is to be construed as applying to causes of action which have accrued before the statute went into effect, and which were not then barred by any previous limitation; and that, in such case, the statute does not operate retrospectively, but prospectively, and affects existing rights of action only from the time of its passage. Especially is this so, when the statute is an amendment of a former statute.
2. That upon principle the same rule of construction is applicable to statutes of limitation in criminal cases. 3. That if the statute as amended in 1873 is not applicable to offenses committed before its passage, those are left unprovided with any limitation, the original statute being so far abrogated.
4. That at the time the amendment was passed the defendant had no rights, vested or contingent, which it did or could take away.
These propositions are founded on principle and fortified by authority. "What rights are taken away? Is the defendant deprived of his defense upon the merits? The pretense of the defendant does not merit the name of right. It relates to the remedy."
F. P. M.
PROXIMATE AND REMOTE CAUSE-SETTING
FIRE TO BUILDINGS.
SUPREME COURT OF PENNSYLVANIA-NOVEMBER 19, 1877.
HOAG V. LAKE SHORE AND MICHIGAN SOUTHERN RAILWAY COMPANY.
A land-slide took place on defendant's railroad, after which a train of cars loaded with oil came along. The engineer did not see the slide and ran into it, whereby the train was wrecked and the oil set on fire. The burning oil ran into a creek alongside the railroad, floated down the current several hundred feet, and set fire to and destroyed plaintiff's property. Held, that the negligence of the engineer in not seeing the slide was the remote and not the proximate cause of the injury to plaintiff's property, and defendant was not liable.
ion. The court below directed a verdict for defendant, and plaintiffs took a writ of error to this court. Charles W. Mackay, for plaintiffs.
McCalmont & Osborn, for defendant.
PAXSON, J. This was an action on the case to recover compensation for certain property destroyed by fire, caused as was alleged by the negligence of the defendants. The facts, as far as they are essential to elucidate the point in controversy, are as follows: The plaintiffs were the occupiers of a piece of land situate within the limits of Oil City, on the western bank of Oil Creek. The railroad of defendants is constructed along said creek over the land of the plaintiffs, and at the base of a high hill. On the afternoon of April 5, 1873, during a rain storm, there was a small slide of earth and rock from the hill-side, down to and upon the railroad. About ten minutes prior to the accident one of the defendant's engines had passed over the road in safety; at that time no slide had occurred. This engine was followed in a few minutes by another engine, drawing a train of cars loaded with crude oil in bulk. The latter engine ran into the slide, was thrown off the track, ran on about 100 to 150 feet, when the tender, which was in front of the engine, was overturned into Oil Creek; the engine itself was partly overturned; two or three oil cars became piled up on the track and burst. The oil took fire, was carried down the creek, then swollen by the rain, for several hundred feet, set fire to the property of the plaintiffs, and partly consumed it. The question of negligence in defendants' engineer in not see. ing the obstruction and stopping his train before reaching it is not raised upon this record, and need not be discussed. The only question for our consideration is whether the negligence of the defendants' servants was the proximate cause of the injury to the plaintiffs' property. The answer to the plaintiffs' third point, embraced in the second specification of error, raises this question distinctly. The court was asked to say: "That, if the jury believe from the evidence that the accident complained of was the result of negligence on the part of the defendants, and that, by reason of such negligence, the oil, ignited by the engine attached to the train, ran immediately down to Oil Creek, where it was carried by the current in the space of a few minutes to the property of the plaintiffs, when it set fire to and destroyed said property, the plaintiffs are entitled to recover, provided they did not in any manner contribute to said accident." The court answered this point in the negative, and then instructed the jury that as a matter of law upon the facts in the case the plaintiffs were not entitled to recover, which instruction is assigned here for error.
It was strongly urged that the court erred in withdrawing the case from the jury, and the recent cases of Pennsylvania Railroad Company v. Hope, 30 P. F. S. 373, and Raydure v. Knight, 2 Weekly Notes, 713, were cited as supporting this view. In the case first cited it was said by the Chief Justice in delivering the opinion of the court: "We agree with the court below that the question of proximity was one of fact particularly for the jury. How near or remote each fact is to its next succeeding fact in the concatenation of circumstances from the prime cause to the end of the succession of facts which is immediately linked to the injury, necessarily must be determined by the jury. These facts or circumstances constitute the case and depend upon the evidence. The jury must determine, therefore, whether the facts
constitute a succession of events so linked together that they become a natural whole, or whether the chain of events is so broken that they become independent, and the final result cannot be said to be the natural and probable consequence of the primary cause, the negligence of the defendants." The case of Raydure v. Knight was meagerly presented; the charge of the court was not sent up, and a majority of the court were of opinion that no sufficient cause for reversing the judgment had been shown.* I am unable to see any special bearing this case has upon the question before us. The doctrine laid down in The Railroad Company v. Hope, and to be gathered incidentally perhaps from Raydure v. Knight, is, that the question of proximate cause is to be decided by the jury upon all the facts in the case; that they are to ascertain the relation of one fact to another and how far there is a continuation of the causation by which the result is linked to the cause by an unbroken chain of events, each one of which is the natural, foreseen and necessary result of such cause. But it has never been held that when the facts of a case have been ascertained, the court may not apply the law to the facts. This is done daily upon special verdicts and reserved points. Thus in The Railroad Company v. Kerr, 12 P. F. S. 353, a case bearing a striking analogy to this, the court submitted the question of negligence to the jury, but reserved the question of proximate cause upon the undisputed facts of the case. Of course, this could not have been done if the facts were in dispute. A reserved point must be based upon facts admitted in the cause or found by the jury. In questions of negligence it has been repeatedly held that certain facts when established amount to negligence per se. Railroad Company v. Stinger, 28 P. F. S. 219; McCully v. Clarke, 4 Wright, 399; Penna. Railroad Company v. Bennett, 9 P. F. S. 259, while in Raydure v. Knight, supra, the court below in answer to the defendant's second point instructed the jury that if certain facts were believed by them, the negligence complained of was the proximate cause of the injury to plaintiff's property. This ruling was affirmed by this court. I do not understand the decision in The Railroad Company v. Hope to be in conflict with this view. It remains to apply this principle to the case before us. There is not a particle of conflict in the evidence so far as it affects the question of proximate cause. This was doubtless the reason why the plaintiffs assumed the facts in their third point. They would not have been justified in doing so had not the facts been admitted, nor is it likely the learned judge would have answered it. We may, therefore, regard the plaintiffs' third point as a prayer for instructions upon the undisputed facts of the case. Can it be doubted that the court had the right to give a binding instruction? We think not.
But one question remains; was the negligence of the defendants' servants, in not seeing the landslide and stopping the train before reaching it, the proximate cause of the destruction of the plaintiffs' property? We need not enter into an extended discussion of the delicate questions suggested by this inquiry. That has been done so fully in two of the cases cited as to render it unnecessary. A man's responsibility for his negligence and that of his servants must end somewhere. There is a possibility of carrying an admittedly correct principle too far. It may be extended so as to reach the reductio ad absurdum so far as it applies to the practical business of life. We think this
difficulty may be avoided by adhering to the principle substantially recognized in The Railroad Company v. Kerr, and The Railroad Company v. Hope, supra, that in determining what is proximate cause, the true rule is, that the injury must be the natural and probable consequence of the negligence, such a consequence as, under the surrounding circumstances of the case, might and ought to have been foreseen by the wrong-doer as likely to flow from his act. This is not a limitation of the maxim causa proxima non remota spectatur; it only affects its application. There may be cases to which such a rule would not apply, but this certainly is not one. It would be unreasonable to hold that the engineer of the train could have anticipated the burning of the plaintiffs' property as a consequence likely to flow from his negligence in not looking out and seeing the landslide. The obstruction itself was unexpected. An engine had passed along within ten minutes with a clear track. But the obstruction was there, and the tender struck it. The probable consequences of the collision, such as the engineer would have a right to expect, would be the throwing the engine and a portion of the train off the track. Was he to anticipate the bursting of the oil tanks, the oil taking fire, the burning oil running into and being carried down the stream, and the sudden rising of the waters of the stream, by means of which, in part at least, the burning oil set fire to the plaintiffs' buildings? This would be a severe rule to apply, and might have made the defendants responsible for the destruction of property for miles down Oil Creek. water was an intervening agent, that carried the fire, just as the air carried the sparks in the case of The Railroad Company v. Kerr. It is manifest that the negligence was the remote and not the proximate cause of the injury to the plaintiffs' building. The learned judge ruled the case upon sound principles, and his judgment is affirmed.
WHEN THE GOVERNMENT IS BOUND BY THE FRAUDULENT ACTS OF ITS AGENT.
SUPREME COURT OF THE UNITED STATES, OCTOBER TERM, 1877.
UNITED STATES V. STATE NATIONAL BANK OF BOSTON. When the money or property of an innocent person has gone into the coffers of the nation by means of a fraud to which its agent was a party, such money or property cannot be held by the United States against the claim of the wronged or injured party.
A firm had borrowed money, belonging to the government, from the cashier of its sub-treasury. In order to ena
ble the cashier to cover up his violation of duty, and in pursuance of an agreement, one of the firm procured a bank officer to purchase gold certificates, which were to be deposited in the sub-treasury, to remain until the subsequent day. The bank officer did so, and a receipt for the certificates was given by the cashier to C, who indorsed it to the bank officer. The receipt entitled its owner to receive gold certificates for those deposited. or their equivalent, on demand. The bank officer had no knowledge of the plan of the firm and the cashier, and the transaction he entered into was a usual one. Held, that the government obtained no title to the certificates, but was liable to return their value to the bank.
APPEAL from the Court of Claims. The facts ap
pear in the opinion.
Mr. Justice SWAYNE delivered the opinion of the Court.
Upon analyzing this case, as it is presented in the record, the facts are found to be few and simple.
Hartwell was cashier of the sub-treasury in Boston.
He embezzled a large amount of money belonging to the United States by lending it to Mellen, Ward & Co. As the time for the examination of the funds in the sub-treasury approached, Mellen, Ward & Co. endeavored to tide Hartwell over the crisis and to conceal his guilt and their own by the devices out of which this controversy has arisen. They had sold to the Merchants' National Bank of Boston a large amount of gold certificates with the understanding that they might buy back the like amount by paying what the bank had paid, and interest at the rate of six per cent per annum. Carter, one of the firm, arranged with Smith, the cashier of the plaintiff, to buy from the Merchants' Bank gold certificates to the amount of $420,000, and to pay for them with the checks of Mellen, Ward & Co., certified to be good by Smith as such cashier, and then to deposit the certificates in the subtreasury, where they were to remain until the ensuing day. A receipt was to be taken from the proper subtreasury officer. The certificates were bought, paid for, and deposited accordingly. Hartwell received them from Smith in the presence of Carter and made out the receipt to Mellen, Ward & Co. or order. Smith inquired why the receipt was to them. Carter thereupon indorsed it by the firm name to Smith as cashier, and Smith took it without further remark.
Subsequently, pursuant to a like arrangement between the same parties, Smith, as such cashier, made a further purchase of gold and gold certificates from the Merchants' Bank, and converted the gold into gold certificates. The aggregate of the certificates thus procured was $60,000. Thereafter Smith, as such cashier, at the instance of Carter, made a further purchase of gold certificates from another bank to the amount of $100,000. All these certificates, amounting to $160,000, were also deposited by Smith in the sub-treasury in the presence of Carter, and a receipt taken and indorsed as before to Smith as cashier. The receipts specified that the certificates deposited were "to be exchanged for gold certificates or its equivalent on demand." Only $60,000 of the last deposit is claimed by the appellee. The residue is not involved in this controversy. The total claimed is $480,000. All these things occurred on the 28th of February, 1867. On the following day Smith presented the receipts at the sub-treasury, and payment was refused. The certificates were all canceled and sent to the proper officer at Washington. The gold which they represented has since remained in the treasury of the United States. Carter gave Smith plausible reasons, not necessary to be repeated, for desiring to make the deposits. The Court of Claims found these facts: ** * * "He (Carter) submitted his plan to Hartwell, which was as follows: He proposed to buy gold certificates in New York, bring them to Boston, and borrow money upon them of the Merchants' Bank, and he then proposed to get Smith, the cashier of the State Bank, to pay for these certificates and leave them with Hartwell during the examination. Hartwell made no objection to this plan, but he thought Smith would not do it. The plan was carried into effect by Carter, as herein before set forth, but Hartwell had no agency in carrying it out, except to receive the moneys and gold certificates paid to him on the 28th of February as aforesaid, and he had no actual knowledge of the proceedings taken by Carter on that day to obtain said gold certificates. When Carter and Smith deposited the $420,000 of gold certificates in the sub-treasury as aforesaid, Smith did not know Hartwell, nor did Hartwell know Smith, or