Sylvester v. Girard

The opinion of the court was delivered by Huston, J. By the second section of the act of 1817, this note of Stephen Girard, admitting him to be within the prohibitory clause, which I do not admit, would have been illegal, and no süit for the recovery on it could have been supported ; and if so, this suit would be a useless contest about the right to that which was worthless. Admit, however, that generally no suit can be supported on a note or writing, which the law forbids any person to make or issue under a penalty, yet it was competent to the legislature to enact otherwise, and expressly to declare, that although it was forbidden to make, issue, or receive any such note, and a penalty was inflicted on those who violated its provisions, yet the note, when issued and received, should be available to enable the person w'ho had received it, to sue for and recover the amount due on the face of the note, from the individual or bank who made it, and by the 7th section this was done ; and this section made the note valuable, the subject of a suit, and of larceny, as if the act declaring such notes not the subject of a suit, or of larceny was repealed. The fallacy consists in arguing this case as if the seventh section were not in existence ; as if the law of this case depended on the general law, or the thirteenth section of the act of 1814 which are repealed, and was not to be decided by the provisions expressly made to govern it. These notes are then property, subjects of larceny, and being so, are, when stolen, subject to all the incidents of other stolen property ; that is, they can be recovered from the thief, or receiver of the theft, with knowledge of the theft, and of course, payment may be stopped when demanded by the thief, or any person acting as his agent, or who received it with notice that the note was stolen. As to not having given notice to prove ownership, this objection is taken without due reflection. The form of action adopted by the plaintiff made it necessary for him to prove his right to the note; to have given him notice to prove his right would be not only idle but absurd, and the more so, in this case, because Mr. Girard, when the note was presented to him, told the plaintiff “ this note belongs to the Bank of the United States, it was stolen from them, they have given me notice to stop the payment of it; I will not pay nor return it to you because you are not the owner.” On this the plaintiff might still have sued for the amount of the note, or might sue to recover the possession of the note, and he chose the latter. The suit then was brought, and the form of action selected to try who was the owner of the note. On this ground no usage, no precedent, is produced of any such notice to a plaintiff in trover. Besides, the defendant does not ask the plaintiff to prove any thing. Under his plea he can by [190] law defeat the plaintiff by shewing title in himself, or a third person, and either will equally defeat the plaintiff’s recovery. 3 Starkie, 1504. 14 Johns. 128. 11 Johns. 529. When the holder of a note sues for the amount due on it, and the defendant pleads that he did not assume to pay it, the plaintiff has no notice that his right to. the note will be disputed ; but when he presents a note to the maker who retains it, and says, ‘ I will retain it, because it is not your property, but that of another person from whom it was stolen,’ and on this the holder selects to try the very question whether he has a good right to the note or not, he cannot be surprised on the above ground, for he must be nonsuited unless he shows a right to the possession of the note. The third exception is on a point which did not arise in the cause. If the plaintiff had delivered to Clew his note' of nine hundred and twenty-eight dollars and sixty-four cents on receiving this one thousand dollar note, or if the plaintiff on receiving the note in question, had, according to his statement of what was intended, entered a credit otKthat note before he was informed of the theft, a question might have arisen on which it seems different opinions have existed. But nothing like this occurred. The plaintiff neither gave any present consideration for the note, nor credit on any past debt; before either had occurred, he was told it was a stolen note. It would then be a waste of time for this court to enter into the discussion of whether a note was void in whole or in part, when that note or its validity or invalidity can have no effect in this cause, and could not have had any effect unless there was some colour of proof that the nine hundred and twenty-eight dollar note of Clew had been given up in consideration of the note in question. If Clew had proposed to buy a horse, and the owner went to get change for this one thousand dollar note, and had been told it was stolen, and returned and kept his horse, how could he say he had given a valuable consideration for the note, or any consideration at all l It occurs too often in this state, that matters having but little connection with the cause, and therefore not much attended to by the judge, are made the subject of assignment of error and reversal of the judgment, and this has often been found a great evil. If, however, the matter has a bearing on the point trying, it must be considered on error brought; but it would be too much to reverse for what, on all that appears before us, has no more connection with this case than any other case in court. Judgment affirmed.