Roger B. Taney

“ Men write their names upon blank leaves in their books to identify their rights of property in those books. As there are different men having the same names,-as, for example, several men named John Rogers, or John Scott, or John Smith, or John Anderson, or John Baldwin,-the name of the original proprietor, written by his own hand, may be of use in questions of property and identity of the owners between persons of the same name, or their representatives, because men are distinguished by their handwriting as well as by their faces ”

“ That the assignee of a paper not negotiable according to the law merchant, nor made by statute negotiable in like manner as bills of exchange, cannot claim the privileges, remedies, and protection accorded to indorsees by the law merchant, but takes such paper at his peril, subject to all equities and infirmities of title, will appear by these decisions in the courts of law and equity. ”

“ The indorsement of his name upon these certificates issued to John Baldwin did not include a lawful right, a legal authority, to any finder or purloiner to write over that name whatsoever he pleased, and to transfer the property of John Baldwin thereby. An authority to transfer can be derived only from the assent of John Baldwin, signified lawfully and in some better manner than the simple production of his name indorsed in blank, without proof of any thing or circumstance, other than his name. ”

“ If the answer of a defendant, as to matter alleged by way of avoidance, and after a general replication, were to be taken as true without proof, then a suit in equity would be but little better than a mockery. Any hardened defendant, if not required to prove what he alleged in avoidance, could swear himself clear. ”

“ The appellee has no assignment to himself; he does not pretend to any thing more than that Perry G. Gardiner deposited the certificates as collateral security for money lent. Take away the deposition of the interested witness, Gardiner, and every matter set up by the defendant's answer in avoidance of the plaintiff's title to the certificates, issued to him, apparent on their face, and confessed by the answer, rests wholly in the allegation of the answer, without proof. The defendant is without proof that he lent Gardiner any sum, even a cent, upon these certificates. ”

“ It is, then, clear that the defendant became the holder of the certificates indorsed by complainant bon a fide, without notice, on a just consideration, as the property of Gardiner. The complainant himself has proved that Elisha Riggs bought them from Perkins Nicholls, a broker in the city of New York, and sent them to the house of Corcoran & Riggs; and further, in his bill he sets up that they will be paid at the Treasury Department on the 5th of February, unless restrained by the injunction of the court. ”

“ They are therefore certificates, under the seal of the government, payable out of the particular fund when provided by the Mexican government, subject to conditions and reservations, having no peculiar privileges in the hands of an assignee beyond bonds at common law, payable to the obligee, his heirs, executors, administrators, and assigns, which are not made assignable by statute, but, like all bonds and other choses in action, are assignable in equity. ”

“ For it has been a common article of traffic, and much of it has passed through a variety of hands, with no other evidence of an assignment to the holder but the indorsement in blank of the original payee. We do not mean to say that these certificates are to be regarded as commercial instruments, to be regulated by the commercial law, and that the holder is entitled to all the rights which belong to a bon a fide indorsee of a promissory note. He certainly is not. ”

“ Putting aside, therefore, the testimony of Gardiner, it appears from the bill and answer that the appellee is in possession of these certificates, claiming title to them as assignee. The act of Congress directs that such certificates shall be made payable to the person entitled under the award of the commissioners, his legal representatives or assigns, and the certificates in question were issued in conformity to the law, and made payable to the party, his legal representatives or assigns, upon the surrender of the certificates at the Department. ”

“ And further, that he is informed, and believes, and charges, that they were indorsed with the express intention of passing by such indorsement a perfect title to Gardiner, and handed by the appellant to him, that he might go into the market and negotiate them, and apply the proceeds in payment of a debt due from Baldwin to him. ”

“ He has therefore clearly shown, not only that they passed by delivery among brokers and others, but that the holder with this indorsement upon them was recognized at the Treasury Department as owner. Mr. Ely, then, acted but as other prudent men would have acted, in giving credit to this indorsement. Here the complainant himself has recognized its force by stopping the payment. It follows that, by his voluntary indorsement and his negligence, the defendant has been induced to part with his money. But for those indorsements, Gardiner could not have obtained the money ”

“ In his bill, he says (p. 3) , 'Immediately on discovering the said abstraction, he notified the Treasury Department, by letter dated 12th February, 1843,' and in his affidavit he says (p. 57) , that 'some time in the year 1842 there was lost, mislaid, or purloined from my possession, three certificates of the Treasury of the United States for Mexican indemnity, numbered as follows, viz. 989, 990, 991, which were advertised in the Madisonian for six consecutive weeks during the months of May and June, 1843,' &c. These are all the facts stated and relied on as evidence of notice. ”

“ If the cases already cited are authority, it is evident that any person taking bon a fide for a valuable consideration, and without notice, the papers thus indorsed, would thereby acquire a title to them. ”

“ Ely any of the advances made by him on these certificates, and I am still indebted to him for them.' Suppressing the deposition of this interested witness, as this court must do upon the exception taken to it in the court below, there is no delivery to Gardiner proved; no bargain, no contract, no consideration, between the appellant, Baldwin, and the witness, Gardiner. The complainant has never assigned them, never received any consideration for them, but charges (upon his oath to his bill of injunction) that these certificates, Nos. ”