US SUPREME COURT DECISIONS

1. The eighth section of the Act of Congress of 1863, 12 Stat. at Large 764, to reorganize the courts of the District of Columbia, and which says "that if, upon the trial of the cause, an exception be taken, the bill containing it need not be sealed or signed," does not dispense with a regular bill of exceptions in the way usual in circuit courts of the United States when the rulings of the court, in admitting or rejecting evidence, or in giving or refusing instructions, are meant to be brought from the Supreme Court of the District to this Court for review. The provision has reference to carrying such rulings from the special to the general term of the Supreme Court of the District itself. Pomeroy's Lessee v. Bank of Indiana, 1 Wall. 602, approved.

2. A customer of certain bankers at Washington, D.C., in times when specie payments having been lately suspended, coin was acquiring one value and currency (paper money) another and less, deposited with them both coin and paper money, the different deposits being entered in his pass book, the one as "coin" the other as "currency," &c. Debts being at this time payable by law only in coin, the bankers requested their customer to make his full balance coin, which he did. Congress passed, about eight months afterwards, an act making certain Treasury notes lawful money for the payment of debts. The depositor went on depositing "coin" and "Treasury notes" then regarded as currency, and both were entered accordingly. He afterwards drew for "coin," for a part of his deposit, exceeding the coin deposited after the legal tender act, and his check was paid in coin. He afterwards drew for "coin" the bulk of his coin balance deposited before the legal tender act. Coin was refused and tender made of the notes declared by Congress a legal tender. On suit brought to recover the market value of the coin drawn for, the bank teller having testified among other things that

"after the suspension, and particularly after the act making Treasury notes a legal tender, his employers uniformly made with customer depositing with them a difference, in receiving and paying their

Page 72 U. S. 664

deposits, between coin or specie and paper money, and in all cases when the deposit was in coin they paid the checks of their customers in coin when they called for coin, otherwise they paid currency, Treasury or bank notes"

-- the plaintiff offered evidence to show

"that the usage and mode of dealing between the said parties as set out in the testimony of the teller was uniformly used and practiced by all the banks and bankers of the District of Columbia with their customers,"

Held that the evidence was rightly excluded.

Riggs & Co. were bankers in the District of Columbia. Thompson was a businessman there, keeping a bank account with them, depositing specie, Treasury notes, bank notes, bills for collection, in the ordinary way of bank customers. Prior to April, 1861, no distinction apparently had been made in the mode of entering in his pass book credits of coin and credits of current bank notes, then payable throughout the country in coin on demand. All kinds of money deposited had been entered in the pass books alike. In April, 1861, the banks generally suspended specie payments, and a difference between the value of coin and of bank notes, or "current funds," as these were called, began to show itself, becoming by degrees, for some time, greater. Riggs & Co., at that date, began to make a difference in receiving and paying deposits, paying in coin when the deposit was made in coin and in currency when made in currency. On the 18th June, 1861, Thompson had made deposits:

Coin . . . . . . . . $2,920.09

Currency . . . . . . 2,463.50

---------

$5,383.59

On that day, Riggs & Co. required him to make his full balance specie, which was done by his drawing a check, payable in currency, and depositing the check of another customer of the bank, payable in coin for a like sum, and which was received and credited by the bank as specie. On the 3d of September, 1861, Thompson drew another check on the bank for $1,000, payable in currency, and at the same time deposited a check, drawn by the same customer, in like chanrobles.com-red

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manner, payable in specie, for $1,000, which was credited as cash.

Afterwards, in like manner, Thompson, from time to time deposited with Riggs & Co. other checks, drawn on them by the same customer, payable in specie, some of which were credited as coin and others as cash, to an amount exceeding $1,600.

An extract from the bank book shows the exact form of entries between June 18, 1861, and the 25th of February, 1862.

image:a

On the 25th February, 1862, above mentioned, Congress passed an act authorizing the issue of notes of the United States, which notes, the act declared, should be "lawful chanrobles.com-red

Page 72 U. S. 666

money and a legal tender in payment of all debts, public and private" except duties, and interest on the national debt.

The entries of credits in the pass book, after the said 25th, were thus:

1862

Feb. 25. To balance . . . . . . $7,724.96

M'ch 1. To T. notes . . . . . 158.51

M'ch 8. Do. . . . . . . . . . 41.00

M'ch 15. To coin. . . . . . . . 71.94

M'ch 22. To coin. . . . . . . . 65.34

On the 8th May, 1863, Thompson drew for $750 coin, more than the amount deposited after the passage of the legal tender law. This was paid in coin.

On the 23d of February, 1864, he drew for $6,600 "coin." Riggs & Co. made a tender of notes created by the act of Congress. These were declined, and assumpsit brought in the Supreme Court of the District of Columbia to recover a sum of money equal to the just commercial value of $6,600 in gold coin, a value, on the day of the draft of $157 for every $100 of the notes tendered, and on the day of the suit of about $200 for each such $100.

The declaration had four counts:

Two on an alleged custom of bankers in Washington to receive gold and silver coin, bank and other notes on deposit, keeping separate entries of the character of the deposit, and to respond to the checks drawn upon them in kind; to pay coin for deposits in coin, and notes for deposits in notes, and that the plaintiffs so dealt with the defendants, and having a large balance to their credit, in February, 1864, in gold coin, they drew two checks for coin, payment of which was refused:

And two on a special agreement in substance the same as the usage above stated, arising in like manner.

Pleas: 1st. That the defendants did not promise as alleged. 2d. Tender of Treasury notes made by Congress a legal tender in payment of debts.

On the trial, at special term, before Mr. Justice Wylie, the teller of Riggs & Co. testified thus: chanrobles.com-red

Page 72 U. S. 667

"Prior to the suspension, the defendants paid all checks drawn upon them by their customers in gold or its equivalent, except when the deposit had been in Virginia or other depreciated paper, and then they paid in like kind. After the suspension, and particularly after the Act of February 25, 1862, making Treasury notes a legal tender, they uniformly made, with their customers depositing with them, a difference, in receiving and paying their deposits, between coin or specie and paper money, and in all cases when the deposit was in coin they paid the checks of their customers in coin when they called for coin; otherwise they paid currency, Treasury or bank notes."

On cross-examination, he said:

"After the suspension, the defendants would no longer receive currency, then depreciated, as the equivalent of specie, as before; it continued to be received and credited to the customer, as appears by the books, and went into the general funds of the bank; the same money was never returned to the customer, and was not received on special deposit; he plaintiffs never had made any special deposit with the defendants; the books of the bank and the pass books were kept as before the suspension, except that the different deposits were designated by being marked, respectively, coin and currency."

"Thereupon the plaintiff offered to give evidence to show that the usage and mode of dealing between the said parties, as set out in the testimony of the teller, was uniformly used and practiced by all the banks and bankers of the District of Columbia with their customers."

The record proceeded:

"Which last offered evidence, being objected to by defendants, is excluded by the court, and to said ruling of the court the plaintiff excepts in law, and prays the court to sign and seal this their first bill of exceptions, which is done accordingly, this eleventh day of June, 1864."

"[SEAL] ANDREW WYLIE"

The Supreme Court of the District, in which the action was brought, was created in 1863 by "An act to reorganize chanrobles.com-red

Page 72 U. S. 668

the Courts of the District of Columbia." It is composed of four judges. A single justice holds what is called a "special term" (the Nisi Prius). Three justices hold the "general term," or ancient Court in Banc.

Any party aggrieved by a judgment of the court at special term, may appeal to the court at general term. The eighth section of the statute enacts:

"That if, upon the trial of a cause an exception be taken, it may be reduced to writing at the time or it may be entered on the minutes of the justice and afterwards settled in such manner as may be provided by the rules of the court, and then stated in writing in a case or bill of exceptions with so much of the evidence as may be material to the questions to be raised; but such case or bill of exceptions need not be sealed or signed."

And the eleventh section says:

"Any final judgment &c., may be reexamined in the Supreme Court of the United States in the same cases and in like manner as is now provided by law in reference to final judgments &c., of the Circuit Court of the United States for the District of Columbia."

In this last-named court, bills of exceptions had been in the old and usual form -- that is to say had been signed and sealed by the judge.

On the trial, both parties resting, the plaintiffs prayed the court to give certain instructions set out in the record -- as "that, by the Constitution of the United States, no tender of the payment of a debt is good unless made in gold and silver coin &c.," which the court refused to give, giving other instructions. And the record proceeded, no judge's seal or signature appearing:

"And to the said ruling of the court, as well as to refusing to give as to giving said instructions, the plaintiff excepts in law, and said exception and the evidence aforesaid are hereby made record."

Verdict having gone for the defendant, the case was taken to the court at general term and judgment entered finally for the defendant. chanrobles.com-red

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The case being now here on error, two questions arose:

1st. Whether in order to bring exceptions to this Court from the court just named, it was necessary that they should be signed and sealed by the judge -- a question upon whose resolution, as it might be the affirmative or negative, depended the fact whether the instructions asked and given at the special term as to the constitutionality of the legal tender law had, or had not, got here for review.

2d. Whether the court had rightly refused the offer of proof that the usage and mode of dealing between the parties in this cause was uniformly used and practiced by all banks and bankers in the District with their customers.

The first question was suggested here by this Court. chanrobles.com-red

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