Moore v. Worthington

• Decision Date: 27 February 1865
• Citation: 63 Ky. 307
• Parties: Moore v. Worthington.
• Court: Kentucky Court of Appeals

63 Ky. 307

Moore v. Worthington.

Court of Appeals of Kentucky.

February 27, 1865

1. A statement in a notarial protest of the reasons given by the treasurer of the United States for refusing payment of a treasury note is not evidence in an action to recover the nominal value of the note of one from whom the plaintiff received it. The protest is only evidence of presentation and refusal to pay.

2. Where a treasury note is made payable to a disbursing officer, and, by a regulation of the treasury department, of which the courts will not take judicial notice, it is not obligatory on the government until indorsed by him, one who receives it from a third person can not recover of him the nominal value of such note, as upon an implied warranty.

APPEAL FROM BOYLE CIRCUIT COURT.

M. J DURHAM and J. F. BELL, for appellant, cited 1 B. Mon., 195; Parsons on Contr., 385; Story on Contr., sec. 480; Chitty on Contr., 643; 5 N. H. Rep., 410.

E. L. &amp J. S. VANWINKLE, for appellee, cited U. S. Stat. at Large No. 12, p. 179; 2 Pars. on Bills, p. 639; 1 Rev. Stat., pp 2741-5; 1 B. Mon., 186; 6 Hill N. Y., 341; 11 Ills., 141.

OPINION

WILLIAMS JUDGE.

This is an action by appellant to recover from appellee the consideration paid him for a United States treasury note, which was due in two years from its date, and bearing six per cent. interest, payable semi-annually, the 1st of January and July, and which appellant avers was not genuine and obligatory on the United States.

The note is dated Washington, August 9, 1861, payable to the order of James Bronaugh, A. A. C. S., for one hundred dollars, due two years after date, signed F. E. Spinner, and on its back is this indorsement: " United States of America pay to bearer," without any signature. August 12, 1863, this note was presented by a notary public to F. E. Spinner, treasurer of the United States, at the treasury department, and payment demanded, which he refused.

The reasons for this refusal by the treasurer are set out in the protest; and this is the only evidence relied on. The protest can be received as evidence only as to the presentment for payment and refusal.

If it be asserted that, on the face of the note, it appears to be payable to a disbursing officer, and, therefore, not obligatory on the government until indorsed by him, it may be replied that this was as patent to Moore as to Worthington and as both must be presumed to know the law, that...