der the common count, we should have felt no | defendant within the privileges of the Ohio Act hesitation in sustaining the judgment on that of 1852. count alone, disregarding the special counts and the pleadings thereto. But it has been held that an agreement under seal for the payment of money cannot be received to support the common money counts. It will be necessary, therefore, to examine the case with reference to the defenses set up in the special pleas. In all of them usury and want of authority in the original parties to make the negotiation are the points of defense relied on. It must be conceded, therefore, first, that the transaction in question, if a loan at all, was not an usurious loan by the law of the place which governed the contract; and, secondly, that the defendant had a perfect right to make it. This observation is applicable to all the special pleas, and disposes entirely of the second of them, in which the defendant relies on its own disability to borrow money at a higher rate of interest than seven per cent.; and also disposes of the third of said pleas, in which the Statute of Usury of the State of New York is pleaded. There remains, then, only the first plea, in which the point is taken that the Ohio Life Inprohibited from taking more than seven per cent. interest. This point is fully presented in the last plea on which issue was taken, and the defendant can, therefore, receive no harm, though the demurrer to its first plea was wrongly sus tained. It still had the benefit of that defense under the last plea; and the result is presented to us in the finding of the court. That finding is, that the transaction was not a loan at all, but only a sale of the bonds; and it is not pretended that the Ohio Life and Trust Company might not purchase securities of this sort at any price it might deem expedient. But the defendant contends that this was a conclusion of law on the part of the court, and that it was erroneous. Surely the question whether a negotiation of bonds was a sale or a loan is ordinarily and prima facie, a question of fact. To make it a question of law, some fact must be admitted or proved, which is irreconcilable with one conclusion or the other. What fact in this case is irreconcilable with the conclusion that this negotiation was a sale? The defendant contends that the fact that the bonds were its own obligations is such a fact, and alleges that in law a party cannot sell its own obligations to pay money. But it certainly may do this, if authorized by law to do it; and it is shown that this very thing was authorized by the laws of Ohio, to the benefit of which the defendant was expressly, as well as by comity, entitled. With regard to the question what law is to decide whether a contract is or is not usurious, the general rule is the law of the place where the money is made payable; although it is also held that the parties may stipulate in accord-surance and Trust Company was, by its charter, ance with the law of the place where the contract is made. In this case it is conceded by all the pleas, and shown by the special finding of the court, that the place of payment of the bonds in question was the City of New York. By the law of that State, passed April 6th, 1850, of which the circuit court had a right to take judicial notice (Owings v. Hall, 9 Pet., 625), no corporation is allowed to interpose the defense of usury. None of the special pleas allege that the place of payment mentioned in the bonds was adopted as a shift or device to avoid the Statute of Usury. The device complained of was a pretended sale of the bonds, when the transaction was really a loan. Admitting that it was a loan, it is not denied that it was made bona fide payable in New York. Hence the pleas cannot stand as pleas of usury, properly so-called. They must stand, if at all, on the allegation that one or both of the contract ing parties was prohibited by law from making such a contract. It is certain, however, that no such prohibition exists in the case of the defendant. By the supplement to its charter, passed by the Legis lature of Indiana, January 29th, 1851, it was authorized to borrow money or sell its securities at any rate of interest or price it might deem proper. The courts in Indiana are authorized by the Constitution of that State to take judicial notice of all its laws; and, therefore, the circuit court could take judicial notice of this law. By the law of Ohio, passed December 15, 1852, any railroad company authorized to borrow money, and to execute bonds or promissory notes there for, was authorized to sell such bonds or notes at such times and in such places, either within or without the State, and at such rates, and for such prices, as in the opinion of the directors might best advance the interests of the Company. This is tantamount to a repeal of the usury laws as to such companies. And although this law had primary reference to the railroad companies of Ohio, yet the Supreme Court of that State, in a very sensible and judicious opinion, has decided that it extends by comity to railroad companies of other States borrowing money in Ohio. Indeed, the second special plea sets forth a statute of Ohio, in relation to this very defendant, which makes it a corporation of Ohio, as well as Indiana, and authorizes it to perform any act within the State of Ohio the same as if it had originally been incorporated therein. This act, it seems to us, rendered the exercise of comity hardly necessary to bring the Again; the defendant alleges that the exaction of collateral security for the payment of the bonds was a fact wholly irreconcilable with a sale. We do not think so. Once concede that the obligor may sell its own bonds, what difference can it make how fully and strongly they may be secured? The requirement of guaranties can only amount to evidence of intention at most; the weight of which, in connection with all the circumstances of the case, is to be judged of by the tribunal to which the facts are submitted. This has been fairly done in the present case, and the decision is against the defendant. In this view of the case we do not decide whether the demurrer to the first plea was or was not well taken. We are disposed to think that it was, but do not deem it necessary to incumber the case with the discussion of that question. The judgment is affirmed. Cited 40 Ind., 273. UNITED STATES, Appt., v. WILLIAM W. BURNS. (See S. C., 12 Wall., 246-254.) When army regulation does not bind Secretary of War-contract, when not void as to one partowner, from disloyalty of the other part-owner -Court of Claims. but is a civil officer. *1. The Army Regulation number 1002, which declares that "No officer, or agent in the military service shall purchase from any other person in the military service, or make any contract with such person to furnish supplies or services, or make any purchase or contract in which such person shall be admitted to any share or part, or to any benefit to arise therefrom," does not apply to contracts on behalf of the United States, which require for their validity the approval of the Secretary of War. The Secretary, although the head of the War Department,is not in the military service in the sense of the regulation, 2. In February, 1858, a contract was made on behalf of the United States with Sibley, an officer in the army of the United States, for the manufacture and use of what is known as the Sibley tent, of which tent Sibley had secured a patent, by which contract the Government was authorized to make and procure as many of the tents as it might require, by paying the sum of $5 for each tent, the contract to continue until the 1st of January, 1859, and longer unless the United States were notified to the contrary. In April, 1858, Sibley executed to Burns, another officer of the Army of the United States, an assignment of "the one half interest in all the benefits and net profits arising from and belonging to the invention" from and after February 22, 1856. Soon after the commencement of the rebellion, Sibley resigned his commission in the Army of the United States, and joined the Confederates. Burns remained true to his allegiance to the Government of the United States, and served in the Army of the Union. After the resignation and defection of Sibley, one half of the royalty on each tent, made or procured by the Government, was paid to Burns, under the contract with Sibley, until December 26, 1861, when further payments to him were forbidden by order of the Secretary of War, although the Government continued to manufacture and use the tents as previously. Held, 1. That the assignment of Sibley passed to Burns one half interest in the contract of Sibley with the Government, and a right to a moiety of the royalty stipulated. 2. That the order of the Secretary of War in December, 1861, did not terminate the contract. 3. That the War Department, by its previous payments to Burns of one half of the royalty stipulated, severed his claim from that of Sibley, under the contract. 4. That the Act of March 3, 1863, in barring Sibley, by reason of his disloyalty, of any action upon the contract with the Government, in the Court of Claims, does not affect the rights of Burns to his moiety under that contract, or his right of action for the same in the Court of Claims. The Act severs their claim. 3. The Court of Claims, in deciding upon the rights of claimants, is not bound by any special rules of pleading. [No. 158.] patentee; that an assignment of one half interest in said patent was made by the patentee to the petitioner; that the patentee at the time of perfecting said patent was an officer of the United States Army; but that, subsequently, he resigned his commission and joined the Confederates; that the petitioner was also an officer in the United States army and continued loyal; that the United States used a large number of said tents, on which the royalty had not been paid; that QuartermasterGeneral Meigs, by letter called the attention of the Secretary of War, in connection with this royalty, to paragraph 1002 Revised Regulations of the Army, 1861, which is as follows: 1002. No officer or agent in the military service shall purchase from any other person in the military service, or make any contract with any such person to furnish supplies or services, or make any purchase or contract in which such person shall be admitted to any share or part, or to any benefit to arise therefrom.' Upon this communication Secretary Cameron indorsed as follows: No further payments will be made to Major W. W. Burns on account of royalty on the Sibley tent. SIMON CAMERON, Secretary of War.'" And the court found as conclusion of law: 1. That the contract between the United States and Major Sibley, made Feb. 18, 1858, was valid in law, and was not determined by the order of Secretary Cameron of Dec. 26, 1861. 2. That the assignment of Major Sibley to the petitioner, made Apr. 16,1858, was valid in law, and that by that and the facts above found, the petitioner became entitled to one half of the royalty of $5.00 on 40,497 tents, made and procured by the United States, as above stated; that this sole action of the petitioner for said one half of the royalty is well brought under Act of Mar. 3, 1862, ch. 92. Judgment is to be entered for the petitioner for one half of the royalty or $2.50 on each of 40,497 tents, amounting to the sum of $101,242.50. Whereupon the defendant took an appeal to this court. Messrs. B. H. Bristow, Solicitor Gen., T. H. Talbot, and C. H. Hill, Asst. Atty Gen., for appellant: The court has found as a fact, that the terms proposed in the letter of Jones to Thomas were approved by the Secretary of War, and a contract was made between the United States and Argued Oct. 20, 1871. Decided Nov. 6, 1871. Jones according thereto, and without regard to PPEAL from the Court of Claims. The petition in this case was filed in the court below by the appellee, to recover for the use of a certain patent for making conical tents. The court found the facts to be as follows: "That a patent for making an improved conical tent was issued to H. H. Sibley, in 1856; that in 1858 a proposition was made to Jones, agent for the Sibley tent, by Assistant Quartermaster General Thomas, to pay $5.00 royalty for every such tent made by the United States, as long as this agreement may be confirmed by the War Department, which proposition was accepted, to hold good until Jan. 1, 1859, and longer, unless notice to the contrary should be given by the * Head notes by Mr. Justice FIELD, Thomas' previous letter. But this finding was erroneous in point of law. Jones' letter tendering the contract, must be read in the light of Thomas' letter, to which it was a reply, and the question as to what is the meaning of these two letters together, is a question of law and not of fact. Turner v. Yates, 16 How., 14; Macbeth v. Haldimand, 1 T. R, 172; Hutchison v. Bowker, 5 M. & W.,534; Smith v. Faulkner, 12 Gray, 251. The terms proposed in Thomas' letter, to pay a certain sum for each tent "As long as this agreement may be confirmed by the War Department" was a direct reservation of a power to the War Department, to determine the contract. The natural and proper construction is, that those propositions in Thomas' letter which did not conflict with Jones' reply, and particularly this one now referred to, were adopted by Jones as the basis upon which he founded his proposition. The agreement of Apr. 15, 1858, between Burns and Sibley, was an agreement of partnership. Sibley and Burns were going into the business of introducing and selling this patent, and towards the joint undertaking Sibley gives Burns an interest in the nature of a license jointly with him. No apt words are used from beginning to end; for assigning any interest to Burns in the patent itself, or giving him any right to bring a suit in his own name respecting it. This construction is strengthened by the fact that this instrument was never recorded in the Patent Office, in a manner directed by section 11 of the Patent Law of 1836 (5 Stat. at L., 121) for, although an assignment of a patent is not avoided by the omission to record it, yet in the case of an instrument whose meaning is doubtful, the fact that it is not recorded is strong evidence that the parties did not regard it as, in legal effect, an assignment. If this agreement gave Burns a right to have one half interest in the patent assigned to him, it was a merely equitable right, which could not operate as an assignment as against third par ties, until an actual assignment had been made in pursuance of it. But if he had any interest in this contract, it was purely an equitable one, and not one upon which he could sue the Government. Bonner v. U. S., 9 Wall., 156 (76 U. S., XIX., 666). But the partnership existing between Sibley and Burns, and the rights of Burns thereunder in the contract, previously made between Sibley and the United States, would be terminated by Sibley becoming a public enemy at the breaking out of the war. That a partnership is dissolved by one of the partners becoming a public enemy, admits of no question. Griswold v. Waddington, 15 Johns., 57; S. C., 16 Johns., 438; Story, Part. secs. 315, 316. By Sibley's becoming a public enemy, too, the contract between him and the United States became, to say the least, suspended during the continuance of the war. It is, therefore, difficult to conceive how Burns, whatever his rights may have been before, had any longer any rights against the United States. It may be doubtful whether, by becoming a rebel, Sibley did not forfeit all his rights under the letters patent, but certainly the continued use of his patent by the Government during the war (as appears by the Quartermaster General's letter) was not under the contract; and as Burns was no party to the contract, and had no rights under it, except through Sibley, his rights could be no greater than those of Sibley himself. Oct. 26,1861, the Quartermaster General called the attention of the Secretary of War to the matter of the royalty allowed Burns, and the Secretary, Dec. 26, directed that no further payment should be made to him. If the counsel for the United States are right in their construction of the contract originally made between the United States and Sibley, the Secretary of War had a right to determine it at any time, and it is insisted that this direction did so terminate it. It is said that no notice of this direction was given to Burns. But the Government ceased to pay any royalty to him, which would seem to be a very effective form of notice. If no particular form of terminating the contract had been agreed upon, any action of the Secretary of War which was totally irreconcilable with the continuance of the contract would operate as a termination of it; and forbidding the Quartermaster-General to pay the royalty which the Government had agreed to pay under the contract, was certainly totally irreconcilable with an assumed continued existence of it. Messrs. James Hughes, Denver & Peck and M. H. Carpenter, for appelle es: 1. General Burns was a joint owner of the invention (Sibley Tent) with Sibley, and his interest antedated the letters patent and the contract with the United States. 2. Burns occupied toward Sibley the relation both of a joint owner and a partner in the invention and in all its benefits, including the letters patent and the contract with the United States for a royalty. 3. The contract of the United States, to pay a royalty for the use of the tent, was made with W. E. Jones, as the agent for the Sibley Tent" and as it stood originally, was a joint contract with Sibley and Burns. 4. On this contract, upon the facts found, a separate action by Burns in the Court of Claims was well brought. 5. The acts of the parties, after discontinuing the payment of Sibley's moiety of the stipulated royalty, constitute a new contract with Burns separately, upon which his suit was well brought. 6. Sibley can maintain no suit against the United States, nor enforce any claim against them, without the express assent of Congress. 7. In the United States, the treason of one partner does not forfeit the rights or property of another. Story, Part., secs. 9, 240, 315, 316, and n.; also sec. 304, and n. 4. Mr. Justice Field delivered the opinion of the court. Upon the facts found by the Court of Claims, we are of opinion that the contract entered into on behalf of the United States with Major Sibley, by which the Government was authorized to make and procure as many of the Sibley tents as it might require, by paying the sum of $5 for each tent, was a valid contract, and not within the prohibitions of the Army Regulation, number 1002. That Regulation does not apply to contracts on behalf of the United States, which require for their validity the approval of the Secretary of War. Though contracts of that character are usually negotiated by subordinate officers or agents of the Government, they are in fact and in law the acts of the Secretary, whose sanction is essential to bind the United States. The Secretary, though the head of the War Department, is not in the military service in the sense of the Regulation, but, on the contary, is a civil officer with civil duties to perform, as much so as the head of any other of the Executive Departments. It would be carrying the Regulation to an absurd extent to hold it was intended to preclude the War Department from availing itself, by purchase or any other contract, of any property which an officer in the military service might acquire, if its possession or use were deemed important to the Government. If an officer in the military service, not specially employed to make experiments with a view to suggest improvements, devises a new and valuable improvement in arms, tents, or any other kind of war material, he is entitled to the benefit of it and to letters patent for the improvement, from the United States, equally with any other citi zen not engaged in such service; and the Gov ernment cannot, after the patent is issued, make use of the improvement any more than a private individual, without license of the inventor or making compensation to him. In the present case there is no question of the right of Sibley to the improved conical tent. He received a patent for the improvement in April, 1856, and, by the contract with him, the United States recognized his right to it, and to compensation for its use. self is not, in our judgment, important. It passed a half interest in the contract of Sibley with the Government, and the right to a moiety of the royalty stipulated by that contract. The War Department recognized this half interest of Burns and, until the order of the Secretary in December, 1861, paid a moiety of the royalty to him. It thus severed his claim under the contract from that of Sibley. But independent of this fact, the rights of Burns in the contract and the compensation stipu lated could not be forfeited nor impaired by the disloyalty of his associate. He was true in his allegiance to the Government and served in the army of the Union. His claim could, there fore, be presented and considered in the Court of Claims by the Act of March 3d, 1863. His associate, Sibley, is at thes ame time barred by that Act of any action there, either joint or several, by reason of his disloyalty. The Act does thus, in fact, sever their claims, allowing the claim of one to be prosecuted, and barring that of the other. The technical rule of pleading in an action in a common law court, by which a contract with two must be prosecuted in their joint names, if both are living, has no application to a case thus situated." And the Court of Claims, in deciding upon the rights of claimants, is not bound by any special rules of pleading. We see no error in the ruling of that court, and therefore its judgment is affirmed. Cited 94 U. S., 235; 4 Cliff., 411, 416; 17 Blatchf., The contract was nothing more, in fact, than a license from him to the Government to manufacture or procure the tent, and use it, upon payment of a stipulated sum. By its terms the license extended until the 1st of January 1859, and longer unless the United States were notified to the contrary. The power of determining this license thus remained with the patentee after that period, but the United States could also at any time have determined their liability by ceasing to make the tents. It does not appear that either party 54, 311. ever desired the termination of the license. Neither Sibley nor Burns, who had become, as hereafter stated, equally interested with Sibley in the contract, ever expressed any intention to withdraw the license; and the United States continued to make and use the tents until the whole number were obtained, for which the present claim is asserted. The order of the Secretary in December, 1861, declaring that no further payment should be made to Burns on account of the royalty on the tent, was not intended, in our judgment, either as a repudiation of the liability of the United States to him for the tents previously procured, amounting to over 38,000, or of their liability to him for any tents that might be subsequent ly made, but only to leave the rights of Burns, connected as they were with a patent issued to one who had resigned his commission in the national army and entered the Confederate service, to be determined by the proper judicial tribunals. If the Secretary had intended to term inate the contract, something more would have been required on his part, whilst the United States continued to manufacture and use the tents, than a mere direction to withhold the payments stipulated for such manufacture and use. Burns, as we have said, had become equally interested with Sibley in the contract with the United States. In April, 1858, Sibley had executed to him an assignment of "the one half interest in all the benefits and net profits arising from and belonging to the invention,' from and after the 22d of February, 1856, a period anterior to the issue of the patent. Whether this assignment be held to have transferred a legal title to one half of the patent it BEN HOLLADAY, Piff. in Err., v. THOMAS W. KENNARD. (See S. C., 12 Wall., 254-259.) Charge of judge construed to require only ordinary care-ordinary negligence, what is-carrier, liable for due diligence, when required. *1. During the late civil war, the defendant was proprietor of a stage and express line upon the 3. When goods in the hands of a common carrier are threatened to be destroyed or seized by a public enemy, he is bound to use due diligence to prevent such destruction or seizure. 4. It is not necessary that he should be guilty of fraud or collusion with the enemy, or willful negligence, to make him liable; ordinary negligence is sufficient. [No. 166.] Argued Oct. 23, 1871. Decided Nov. 6, 1871. *Head notes by Mr. Justice BRADLEY. IN to rn District of New agent to who we we ERROR to the Circuit Court of the Unit- | Indians who were then in sight, and told the York. Suit was brought in the court below, by the defendant in error, to recover for the loss of a certain package by the defendant, as a common carrier. Judgment having been given for the plaintiff, the defendant sued out this writ of error. The case is fully stated in the opinion of the court. Mr. H. M. Ruggles, for plaintiff in error. Messrs. W. W. McFarland and Jos. Larocque, for defendant in error. Mr. Justice Bradley delivered the opinion of the court: This was an action of trespass on the case against the defendant as a common carrier, for the loss of a package of money delivered to his agent at Atchison, Kansas, on the 2d of January, 1865, to be carried to Central City in Col orado Territory. The defendant was the proprietor of the overland stage line, which was then engaged in the transportation of passengers and goods from Atchison to Placerville in California, as a part of the great through mail across the continent. The package in question was delivered to the United States Express Company in New York, which forwarded it to Atchison and there delivered it to the defendant's agent. It was placed in a safe made of leather and iron and carried in the stage, in charge of an express agent in the defendant's employ. At the time of the loss, there were no persons in the stage but this express agent and the driver. The loss occurred by the stage being robbed by hostile Indians at Julesburg, on the morning of the 7th of January. The civil war at this period was still pending, and the Sioux, Cheyennes and Arapahoes were hostile to the United States, and were constantly committing outrages against person and prop erty, while crossing the plains between Missouri and California. It required much courage, coolness and vigilance to carry on the business of transportation by the overland route. Julesburg, at that time, was a station of the express line, consisting of a log house and stable, a telegraph office and warehouse, occupied by three or four persons in charge. About a mile east of Julesburg was a mud house called Bulins Ranch. About a mile west of Jules burg was a military post occupied by about forty United States troops, under command of Captain O'Brien, and consisting of an adobe building about fifty feet long, with several outbuildings, and provided with two or three pieces of light ordnance. About two o'clock in the morning, when three or four miles east of Julesburg, the stage was fired into by the Indians. Making what speed they could, the express agent and driver reached Bulins Ranch with the stage, stayed there until daylight and then went on to Julesburg, where they changed horses. They then proceeded to the military post, and informed Captain O'Brien that they had been attacked by Indians, and the express agent requested him to give them an escort, to protect the stage on its further progress. The captain said he could not give them an escort, as he had but forty men on duty, and was then mounting them to go and fight the the be safe for him to go up the road. He then left with his command to engage the Indians, who, he said, were about fifteen hundred in number. After the troops had left the fort, the express agent changed the mail there, and then returned to Julesburg and had the horses put into the stable. They had not been put out more than fifteen minutes, when the Indians were observed coming towards the station, following the troops, fourteen of whom had been killed. There being no time to hitch the horses to the stage, the driver and express agent each mounted a horse and followed the soldiers back to the military post. The Indians stopped at the station, robbed the stage, broke open the safe and rifled it of its contents. The troops soon brought their howitzers to bear on the Indians, and compelled them to retire to the hills. Upon this evidence, the court instructed the jury that the attack of the Indians was that of a public enemy, and that defendant was exonerated from the ordinary responsibilty of a common carrier, and was not liable for the loss of the money unless his agents were guilty of some carelessness, negligence or want of vigilance or attention, which contributed to the loss. The plaintiff below claimed that they were guilty of carelessness and negligence: first, in leaving the military post after being charged by Captain O'Brien to remain there; second, in unhitching and putting out the horses after going back to Julesburg. These points were very properly left to the jury, as questions of fact. But in giving the jury instructions on this subject, the presiding judge told them: "In determining what was the duty of the express agent at that time, I can lay down no better rule for your guidance than this: what in your judgment would a cool, self-possessed, prudent, careful man have done with his own property, under the same circumstances? * * Such a man, it was the duty of Mr. Holladay to provide for this very hazardous business. It was his duty to provide a cool, self possessed man; a cautious, prudent man; a man of good judg ment and forethought." The defendant's counsel, complain that this instruction was contrary to law, and exacted too much of the defendant; and at the trial they requested the judge to charge: first, that the capture of the package by the Indians threw on the plaintiff the burden of proving fraud or collusion of the carrier with the captors. Second, that if the jury believed that the express agent exercised his best judgment at Julesburg, the defendant could not be charged with negligence. Third, that willful negligence is required to charge a carrier who has lost property by the act of the public enemy. The judge declined to charge the jury on these points, other than he had done in the course of his address to the jury. * The effect of the charge, as delivered, was, that although a common carrier is not responsible for the destruction or loss of goods by the act of a public enemy, he is, nevertheless, bound to use due diligence to prevent such destruction or loss. If his negligence or want of proper attention contributed thereto, he would be liable therefor. It was not necessary, in this case, that there should have been fraud or collusion with the Indians, or willful negligence on the |