Ward v. United States

77 U.S. 593, 19 L. Ed. 1033, 10 Wall. 593, 1870 U.S. LEXIS 1158

• Court: Supreme Court of the United States
• Decided: February 18, 1871
• Status: Published

Opinions

Mr. Justice DAVIS

delivered the opinion of the court.

The United States deny their obligation to pay the certificates in controversy, because they were not countersigned in conformity with the prescribed regulation of Congress, nor used for their benefit. It will be conceded, if they were not executed as required by the legislation on the subject, that they were irregularly issued, and the United States under no obligation to pay them unless they ai’e estopped in some way from interposing this defence.

It .becomes, therefore, of importance, in the first instance, to ascertain whether E. Davis, Jr., who countersigned them, as he says, by order of J. A. Treutliu, governor of Georgia, was commissioner of loans for the State, and whether he negotiated them on account of the United States.

Fortunately, these questions were considered in 1792 by Alexander Hamilton, then Secretary of the Treasury, who was charged by Congress With their investigation. In his report of the 28th of March of that year, he ‘states as the result of diligent inquiry on the subject, that he had been unable to obtain evidence either of the appointment of E. Davis to the ‘ office of commissioner of loans for Geoi’gia, or' that he was ever known or reputed to have acted in that capacity, and that there was no evidence that the paper ■vyhich he put in circulation had been issued for aiiy purpose of the United States. With this report papers were transmitted not only justifying the conclusion reached- by the Secretary, but tending strongly to-show that the certificates were placed in the hands of Davis by the executive council of Georgia to purchase goods for the State. These papers consist of an affidavit'of John Wereat, auditor of Georgia, and a long time resident there, denying that Davis, whom. he well knew,.was at anytime commissioner of loans; of lettei’s from Diehard Wyllzhyr, commissioner of loans of the State in 1791, giving his opinion to the same effect, and a communication from Samuel Steick, of Governor Houston’s staff, that the certificates were issued on State account.

* This report, with the accompanying papers, was published, and, of course, read by the holders of the disputed paper. If in their power to deny it, interested as they were to do sp, it would at least have' been attempted. As no contradictory proof was furnished to the Treasury Department, always ready and willing to receive it, it is fair to infer that none existed. But this considei’ation did not prevent the holders, of this paper from seeking to get it funded in 1795. They were met by the accounting officers of the treasury with the saíne objections taken by Mr. Hamilton, and, as these were not removed,' the same result followed. In this condition of things, if the controversy had been between individuals, and there had been another forum to hear and decide it, it would have been resorted to at once, unless the decision of the first tribunal was accepted as final. But the.holders of these certificates acted differently. Instead of taking an immediate appeal to Congress from the decision of the treasury, they waited until two decades had passed away. Nahum Ward says that these identical certificates were presented to the treasury in 1792, by Mr. Talmadge, and remained there until 1812,- when they were withdrawn and Congress asked to pay, them, on the petition of John Delafield, who professed to possess them in his own right.† Why this delay of twenty years? No reason is even suggested for it, and none can be given which is consistent with the conduct of men 'in the ordinary affairs of life. It is absurd to suppose that any one, informed of the grouuds of. objection to a controverted claim, if there were evidence •to remove them, would delay action on the subject until thirty-four years had passed since the transaction, out of which .the claim had.arisen, occurred.

It is' said the forum was- changed because of newly discovered evidence, and for proof of this we are referred to the reports of Mr. Talmadge, chairman of the committee, on the petition of John Delaiield, made to Congress in 1816 with the accompanying papers. It is hard to reconcile these reports with the ownership of the property as claimed by Nahum Ward. He says the Ohio Company has owned the forty-three certificates since 1791, and yet Delaiield stated in his petition that'he owned them, and wished them funded for his benefit, and we must suppose the Congress of that day,..and especially Mr.'Tallmadge, believed the fact to. be as stated by Delaiield. At any rate the Ohio Company is estopped from denying the change of ownership, as Ward ■says that Mr. Talmadge, who was treasurer of the company . from 1791 until 1825, was ordered to sell the certificates,by the company, and did sell them at public auction to Delaiield. It is true he couples this statement with another, that, notwithstanding Delaiield’s purchase, they were-.-cens-ideied as the company’s property; but this would place. Mr. T-dmadgé in the predicament of aiding, while a member-ef ■ ie National legislature, to procure the payment of a diéputiiddebt for a company of which he was an important'officer.*

And why the necessity of selling at all unless there were an honest purpose of parting with-the title to the property? It surely was as easy to prosecute a just claim before ■Obngress in .the name of a corporation as in the name of,a natural person. If, then, Delaiield purchased the claim, free from any trust, as we are bound to suppose in -order' to relieve the Ohio Company and their treasurer' -from censure-, he did it at his own risk and for a venture, and took it subject to all equities. He cannot plead want of notice of' the defences interposed by the United States,., because the company of whom he bought, and of which he was a member, were well informed on the subject. It does not appear how or when the title got back in the Ohio Company, nor is it of any consequence, as the company occupies the same position in this litigation that Delafield would had he retained the ownership of the certificates.

■ But, apart from this view of the subject, these reports do not change the status of the parties to this controversy. The evidence they furnish comes too late, is chiefly hearsay in its character, and should have, no weight in the deter-: mination of the questions in dispute. It consists mainly of lengthy letters from Major Hugh McCall, of Georgia, addressed to Mr. Talmadge, which seem to be iu the nature of arguments against the position taken by the government. One of them is devoted to a futile effort to prove that Wereat and Steick were uninformed of the passing events during Governor Tréutlin’s administration. It ,is true 'the certificate of Mr. Sheftall tends to show that Davis did act in the capacity of commissioner of loans, but although it is certified that he had an unusually strong memory, we place but little reliance on his recollection in 1816, of what transpired in the commissary department of Georgia in 1777-78. Especially do we distrust his memory of these events when it is in opposition to the recollection of others, equally trustworthy, who testified in 179£¡, twenty-four years nearer.the time when the certificates were put in circulation.

It is. urged that the United States is not in a position to, contest the .validity of these certificates, because of the pay- , ment of interest for a period of four years. The report of Mr. Hamilton takes the ground that the interest was paid by the mistake of the treasurer, and without authority, and therefore not binding on the United States. It is very clear that there was no purpose on the part of the government to ratify the acts of Davis, for the paper-bearing his name was rejected, as soon as the attention of the proper department was called to it. .But it is not-necessary to discuss the general rules of law on the subject of ratification, and to show in what state of case they are applicable, for, in our judgment, under the circumstances of the claim, as they appear in this case, there is no equity raised in favor of the Oh-io Company against the United States.

Without pursuing the subject further, or noticing the various reports in Congress adverse to this claim, we are satisfied it is not a just charge on the treasury of the United States.

Judgment affirmed.

See American State Papers, class ix, vol. Claims, pp. 464, 465.

See Report No. 101, House of Representatives, 19th Congress, 1st session, by Mr. Little, from the Committee on Revolutionary Claims.

See Report, No. 101, House of Representatives, 19th Congress, 1st session.