appeared, that this bill had been purchased with money belonging to the United States, and under the order, and by an agent of the then secretary of the treasury of the United States, for the purpose of remitting the same to Europe, for the government of the United States, who, in ordering the purchase of this bill acted as one of the commissioners of the sinking fund, and as agent for that board. The bill was afterwards endorsed to Messrs. Wilhem & Jan Willink & N. & J. & R. Van Staphorst, by Thomas Tucker, treasurer of the United States, and appears by an endorsement thereon, to have been registered by the proper officer, at the treasury of the United States, on the 28th of December, 1801, before it was sent to Europe. The bill having been regularly presented for acceptance by the last endorsees to the drawees, was protested for non-acceptance. It was afterwards protested for non-payment, and then returned by them to the secretary of the treasury of the United States, for and on their behalf, who directed this action to be brought. Of these protests due notice was given to the drawer of the bill.

On this state of facts, the circuit court rendered judgment for the United States, to reverse which, this writ of error was brought.

Mr. Justice LIVINGSTON delivered the opinion of the court, and after stating the facts, proceeded as follows:

The first question which will be disposed of, although not the first in the order of argument, will be, whether the endorsement of this bill to Mr. Tucker, under the peculiar circumstances attending the transaction, did not pass such an interest to the United States, as to enable them to sue in their own name. In deciding this point, it will be taken for granted, that no doubt can arise on the special verdict as to the party really interested in this bill. It was purchased with the money of the United States. It was endorsed, to their treasurer; it was registered at their treasury; it was forwarded by their secretary of the treasury, to whom it was returned, after it had been dishonoured, for and on behalf, as the jury expressly find, of the United States. Indeed, without denying the bill to be the property of the United States, it is supposed that the action should have been in the name of Mr. Tucker, their treasurer, and not in the name of the cestui que trust. If it be admitted, as it must be, that a party may in some cases declare according to the legal intendment of an instrument, it is not easy to conceive a case where such intendment can be stronger, than in the case before in court. But it is supposed, that before any such intendment can be made, it must appear that Mr. Tucker acted under some law, and that his conduct throughout comported with his duties as therein prescribed. It is sufficient for the present purpose that he appears to have acted in his official character, and in conjunction with other officers of the treasury.

The court is not bound to presume that he acted otherwise than according to law, or those rules which had been established by the proper departments of government for the transaction of business of this nature. If it be generally true, that when a bill is endorsed to the agent of another for the use of his principal, an action cannot be maintained, in the name of such principal (on which point no opinion is given,) the government should form an exception to such rule, and the United States be permitted to sue in their own name, whenever it appears, not only on the face of the instrument, but from all the evidence, that they alone were interested in the subject matter of the controversy. There is a fitness that the public by its own officers should conduct all actions in which it is interested, and in its own name; and the inconveniences to which individuals may be exposed in this way, if any, are light, when weighed against those which would result from its being always forced to bring an action in the name of an agent. Not only the death or bankruptcy of an agent may create difficulties, but set-offs may be interposed against the individual who is plaintiff, unless the court will take notice of the interest of the United States; and if they can do this to prevent a set-off, which courts of law have done, why not at once permit an action to be instituted in the name of the United States? An intimation was thrown out that the United States had no right to sue in any case, wihout an act of congress for the purpose. On this point the court entertains no doubt. In all cases of contract with the United States, they must have a right to enforce the performance of such contract, or to recover damages for their violation, by actions in their own name, unless a different mode of suit be prescribed by law, which is not pretended to be the case here. It would be strange to deny to them a right which is secured to every citizen of the United States.

It is next said by the plaintiff in error, that if the endorsement to Mr. Tucker as treasurer of the United States, passed such an interest to the latter, as to enable them to sue in their own name, yet such title was divested by Mr. Tucker's indorsing the bill to the Messrs. Willinks and Van Staphorst, which indorsement appeared on the bill at the trial, and is still on it.

The argument on this point is, that the transfer to the last indorsees being in full, a recovery cannot be had in the name of the United States, without producing from them a receipt, or a re-indorsement of the bill, and that this indorsement not being in blank could not be obliterated at the trial, so that the court and jury were bound to believe, that the title to this bill was not in the United States but in the gentleman to whom Mr. Tucker had indorsed it.

The mere returning of this bill, with the protest for non-acceptance and non-payment by the Messrs. Willinks and Van Staphorst to the Secretary of the Treasury of the United States, for their account,

is presumptive evidence of the former having acted only as agents or as bankers of the United States. When that is not the case, it is not usual to send a bill back to the last indorser, but to some third person, who may give notice of its being dishonoured and apply for payment to such indorser, as well as to every other party to the bill. In the case of an agency, then so fully established, it would be vain to expect either a receipt or a re-indorsement of the bill. The first could not be given consistent with the truth of the fact, and the latter might well be refused by a cautious person who had no interest whatever in the transaction. In such case, therefore, a court may well say that all the title which the last indorsees ever had in the bill, which was a mere right to collect it for the United States, was divested by the single act of returning it to the party of whom it was received. But if this agency in the Messrs. Willinks and Van Staphorst were not established, the opinion of the court would be the same. After an examination of the cases on this subject, (which cannot, all of them, be reconciled,) the court is of opinion, that if any person who indorses a bill of exchange to another, whether for value, or for the purpose of collection, shall come to the possession thereof again, he shall be regarded, unless the contrary appear in evidence, as the bona fide holder and proprietor of such bill, and shall be entitled to recover, notwithstanding there may be on it one or more indorsements in full, subsequent to the one to him, without producing any receipt or indorsement back from either of such indorsees, whose names he may strike from the bill, or not, as he may think proper.

Judgment affirmed.

Section 2. THE AUTHORITY OF AGENTS TO BIND THE

UNITED STATES

THE FLOYD ACCEPTANCES

74 U.S. (7 Wall.) 666 (1868)

APPEALS from the Court of Claims.

The facts, as found by that court, were thus:

Russell, Majors & Waddell had contracts for supplies and transportation, to be furnished to the army in Utah. By these contracts, they were to be paid either by the quartermaster at St. Louis, or by his drafts on the assistant treasurer of the United States in New York. In all the contracts, except one, these payments were to be made on the final delivery of the supplies in Utah; but in one contract there was an agreement that partial payments should be made when the trains were started. In all cases, such payments were to be made upon certificates of the proper quartermaster.

The performance of these contracts required a very large outlay of money, and Russel & Co., finding it difficult to advance this and wait for its return until they were entitled to receive payment under their contracts, made an arrangement with the Secretary of War, under which they should draw time-drafts on him, payable to their own order, at the Bank of the Republic in New York, which should be accepted by the secretary. On these drafts they were then to raise the money necessary to enable them to perform their contracts, and as the money for the transportation and supplies became due, they were to receive it, and take up the acceptances of the secretary before or at maturity. Under this arrangement the secretary accepted drafts to the amount of $5,000,000, most of which were taken up by Russell, Majors & Waddell, as agreed; but over a million of dollars in amount remain unpaid.

The drafts passed into the hands of different holders; among them T. W. Pierce, the Dover Five Cent Saving Bank, E. D. Morgan, and the Boatmen's Saving Institution; and Mr. Floyd having retired from the War Department, and the department refusing to pay the acceptances, Pierce, by his separate bill, and the other parties in a proceeding treated by the Court of Claims as one in substance, brought suit in that court. The petition of Pierce averred:

"That the said Floyd, as Secretary of War, and in behalf of the United States, and as the principal officer of an executive department, had authority to accept the drafts, and that, in accepting them, he acted in his offical capacity, and in behalf of the United States. And that he, in behalf of the United States, as such Secretary of War, was authorized to accept drafts of such and the like tenor and effect as the drafts aforesaid; and that the said Pierce, relying upon the apparent, as well as upon the actual authority of the said Secretary of War to make such acceptances, and upon the fact of his acceptance of the bills, became the holder and owner of them, in a regular course of business, before they severally matured and for valuable consideration."

To present the case more completely, it must be stated that by statute of 31st January, 1823 [3 Stat. at Large, 723], it is enacted:

"That from and after the passage of this act no advance of public money shall be made in any case whatever; but in all cases of contracts for the performance of any service or the delivery of articles of any description, for the use of the United States, payment shall not exceed the value of the service rendered, or of the articles delivered previously to such payment." The Court of Claims *** dismissed all the cases, holding, in the case of Pierce, that the secretary had no power to bind the United States by the acceptances; that the acceptances were to be regarded as within the act of 31st January, 1823, and as an attempt to avoid it, and were, therefore, void; that no decision of the Supreme Court authorized such acceptances; that the evidence failed to establish any usage, in the different departments, by which the Secretary of War was authorized to accept, in behalf of the United States, the bills in suit, and that if such usage or practice were established, it could not avail the claimant, because forbidden by law.

The record did not show that anything remained due to the contractors, or was due when the bills matured; no evidence on the state of the accounts being given on either side.

Mr. Justice MILLER delivered the opinion of the court.

The cases before us are demands against the United States, founded upon instruments claimed to be bills of exchange, drawn by Russell, Majors & Waddell, on John B. Floyd, Secretary of War, and accepted by him in that capacity; purchased by plaintiffs before maturity, for a valuable consideration, and, as they allege, without notice of any defence to them.

Mr. Pierce, in his petition, relies on the facts that the signature of John B. Floyd, to these acceptances, is genuine, and that he was at the time of the acceptance Secretary of War, as sufficient to establish his claim. He avers that Floyd, as Secretary of War, had authority to accept the drafts, and that by his acceptance the United States became bound. It is evident that he means by this merely to assert, as a principle of law, that, by virtue of his office, the secretary had such au

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