Cashier de facto. (Bank U. S. vs. Dandridge, 12 Wheat., 64; Minor vs. Merch. Bank, 1 Pet., 46.)

The powers of a cashier may, of course, be limited in all cases by law, or, in any case, by the board of directors of a bank, (Rev Stats., 5136,) or by general usage known to and not disapproved by the directors in a particular place; but the public at large will not be chargeable with notice of such limitation when acting in good faith under circumstances where it may be reasonably inferred that the limitations were unknown. (U. S. vs. City Bank, 21 How., 356; Com. Bank vs. Kortright, 22 Wend., 348; 11 Ohio St., 153; Com. Bank vs. Norton, 1 Hill, 501; Bank Vergennes vs. Warren, 7 Hill, 91; Beers vs. P. Glass Co., 14 Barb., 358; Wild vs. Bank, 3 Mason, 505; Thompson's National Bank cases, 62, &c.; Farmers' Bank vs. Butchers' Bank, 16 N. Y., 125; Schuyler's case, 34 N. Y. 30.)

It seems to be supposed that it is a "new rule" to require evidence of the authority of a bank president to indorse checks.

The "regulations" prescribed in circular No. 25 of October 22, 1878, provide:

"7. Evidence of authority to endorse for incorporated or unincorporated companies must accompany drafts drawn or endorsed to the order of such companies or associations. Such evidence should be in the form of an extract from the by-laws or records of the company or association, showing the authority of the officer to endorse, receive moneys, &c., for the company, and giving his name and the date of his election or appointment, which extract should be certified to by the secretary or president of the company, and its seal be affixed, and the certificate should state that such authority remains unrevoked and unchanged. If the company has no seal, the extract should be certified as correct by a notary public or other competent officer, under his seal.”

But even this, which is yet in force, is no new rule.

There is a book, published in 1859, before national banks were in existence, entitled "The Banks of New York, their Dealers, the Clearing-House, and the Panic of 1857, by J. S. Gibbons"-who was evidently not a lawyer-in which I find the following:

"The president is the chief executive officer of the bank. He presides at the meetings of the board of directors, and to a great extent exerts the authority of the board in its recess. In some of the larger banks, there is a stated vice-president to aid him in his duties, and to assume them entire during his absence; but generally a president pro tem. is chosen in the latter case. In all legal relations, the president is the bank, though still subject to the board of directors. The title of any real estate that it may own is vested in him, and his official signature gives title by conveyance. He is plaintiff or defendant in suits at law. He is made the assignee of property as security for debts due to the bank."

As applied to the national-banks of the country generally, now, this extract has scarcely a single correct statement.

TREASURY DEPARTMENT,

First Comptroller's Office, September 9, 1880.

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The following circular relates, among other matters, to the payment of interest by checks:

"TREASURY DEPARTMENT, "Washington, D. C., January 16, 1878.

"The Secretary of the Treasury hereby gives notice that, from the 26th instant, and until further notice, he will receive subscriptions for the four-per-cent. funded loan of the United States, in denominations as stated below, at par and accrued interest, in coin.

"The bonds are redeemable July 1, 1907, and bear interest, payable quarterly, on the 1st day of January, April, July, and October of each year, and are exempt from the payment of taxes or duties to the United States, as well as from taxation in any form by or under State, municipal, or local authority.

"The subscriptions may be made for coupon bonds of $50, $100, $500, and $1,000, and for registered bonds of $50, $100, $500, $1,000, $5,000, and $10,000.

"Two per cent. of the purchase-money must accompany the subscription; the remainder may be paid at the pleasure of the purchaser, either at time of subscription or within thirty days thereafter, with interest on the amount of the subscription, at the rate of four per cent. per annum, to date of payment.

"Upon the receipt of full payment, the bonds will be transmitted, free of charge to the subscribers, and a commission of one-fourth of one per cent. will be allowed upon the amount of subscriptions, but no commission will be paid upon any single subscription less than $1,000.

"Forms of application will be furnished by the Treasurer at Washington, the assistant treasurers at Baltimore, Boston, Chicago, Cincinnati, New Orleans, New York, Philadelphia, St. Louis, and San Francisco, and by the national banks and bankers generally. The applications must specify the amount and denominations required, and, for registered bonds, the full name and post-office address of the person to whom the bonds shall be made payable.

"The interest on the registered bonds will be paid by check, issued by the Treasurer of the United States, to the order of the holder, and mailed to his address. The check is payable on presentation, properly endorsed, at the offices of the Treasurer and assistant treasurers of the United States.

"Payments for the bonds may be made in coin to the Treasurer of the United States at Washington, or assistant treasurers at Baltimore, Boston, Chicago, Cincinnati, New Orleans, New York, Philadelphia, St. Louis, and San Francisco.

"To promote the convenience of subscribers, the Department will also receive, in lieu of coin, called bonds of the United States, coupons past due or maturing within thirty days, or gold certificates issued under the act of March 3, 1863, and national banks will be designated as depositaries under the provisions of section 5153, Revised Statutes

H. Ex. Doc. 81-9

of the United States, to receive deposits on account of this loan, under regulations to be hereafter prescribed.

"JOHN SHERMAN,

"Secretary of the Treasury."

In a circular issued "under authority of a contract with the Secretary of the Treasury," June 14, 1877, by August Belmont & Co., New York; Drexel, Morgan & Co., New York; J. & W. Seligman & Co., New York; Morton, Bliss & Co., New York; First National Bank of the city of New York; Drexel & Co., Philadelphia, concerning the receipt of subscriptions for the four-per-cent. funded loan of the United States, it is stated that

"The interest on the registered stock will be paid by check, issued by the Treasurer of the United States to the order of the holder, and mailed to his address. The check is payable on presentation, properly endorsed, at the offices of the Treasurer and assistant treasurers of the United States."

IN THE MATTER OF INDORSEMENT OF TREASURY DRAFTS. MOYER'S CASE.

1. It may sometimes be advisable to require Treasury drafts to be indorsed in such form as would transfer similar negotiable instruments by the law of the State where the claimant resides.

2. But the rights of creditors of the Government are to be determined by the laws of the United States; and "regulations" made by the head of a Department in pursuance of an act of Congress are law.

3. The regulations of the Treasury Department of October 22, 1878, as to the indorsement of drafts, adopt the common-law rules applicable to (1) executors and administrators, (2) guardians, and (3) partners. They (1) modify common law usages in some cases; they (2) do not provide for all cases which may arise; and (3) cases will arise in which it may require construction to determine if they are applicable.

4. Joint owners of a draft who are not partners are within the regulations which authorize the payment of such draft on the indorsement of one of the payees. 5. When a draft is issued to a partnership-firm by name, and all the partners subsequently and successively die intestate, the administrator of the last surviving partner has the legal title in and is authorized to indorse the draft.

6. He will in such case be required to show by proper evidence (1) who were all the members of the firm, (2) their death, (3) that the last survivor died intestate, and (4) who the administrator is.

7. If the last surviver die testate, his executor can indorse.

8. The proper fiscal officer of municipal corporations, quasi corporations, and similar political bodies, will be required to produce evidence of his authority, unless he be such officer as that he may be recognized from public notoriety. But executive officers will sometimes require record evidence of authority when local courts would take judicial notice of the official character of many of such officers. 9. The indorsements by joint assignees in bankruptcy and insolvency considered. 10. The "regulations" authorize one of several ordinary trustees to indorse drafts.

A letter, in part, as follows, has been referred to the First Comptroller: "MEMPHIS, TENN., September 3, 1880.

"I have Treasury draft, in favor of Davis & Norton, for $398 77 Norton died several years since, leaving Davis surviving partner Davis has since died. Now I want to know if the administrator of Davis, surviving partner, can endorse the draft, and if it will be paid on such endorsement."-Gilbert Moyer's Attorney.

R. M. Capps, for Moyer: (Cites 3 Kent's Com., 63; Parsons on Part., 440; Williams on Ex'rs, 652.)

The administrator of the first deceased has no authority over the partnership assets; he can only call the surviving partner to account and demand from him the interest of his decedent in such assets, after settlement of all partnership debts. If, then, Norton was vested with the legal title to such assets, upon his death such legal title vested in his administrator, and he, in accepting the trust, became responsible, both personally and upon his bond, for the faithful performance of duties in that respect. "The whole personal estate of the deceased vests in the executor or administrator." (So says Williams on Executors, page 650; also see note d2, American notes, to page 717, 6th American ed.)

The same authority says, (page 788 :)

"With respect to such personal actions as are founded upon any obligation, contract, or other duty, the general rule has been established from the earliest times, that the right of action on which the executor or administrator might have sued in his lifetime survives his death, and is transmitted to his executor or administrator."

Therefore, it is clear that an executor or administrator shall have action to recover debts of every description due to the deceased.

This case is analogous to that cited in the same work, (page 654,) where it is held that when the assignee of an insolvent, appointed under the insolvent act, dies, all interest in the personal property so held vests in his administrator until a new assignee be appointed.

DECISION BY WILLIAM LAWRENCE, First Comptroller:

Among the regulations prescribed by the Treasury Department are the following:

"Treasury or post-office drafts must not be paid until the endorsements conform to the following regulations:

*

"8. Drafts will be paid to any one of several joint holders or co-trustees, executors, administrators, or guardians; but in the execution of a power to a third party to collect, all must join. In case of the death of either, the survivors will be recognized as having full authority, upon due proof of such death and survivorship."

Several questions naturally arise as to this:

1. The common-law rules and statutes differ to some extent in different States as to the proper parties to indorse drafts. For the purpose of protecting the Treasury and the right of parties interested, it may be well, so far as possible, to exact every precaution required by the rules of law in the different States when they require more than the general common-law rules or more than the regulations of the Treasury Department.

II.-But the rights of creditors of the Government are to be determined by the laws of the United States, and "regulations" made in pursuance of an act of Congress are law. (Ante, this vol., 11.)

These regulations are in some sense directory, or like a rule of court; the power that makes can, in particular cases, dispense with them when the public safety does not require their strict enforcement.

Parties entitled to Treasury drafts take them subject to these laws, and payment in accordance with "regulations" must be deemed a discharge of the liability of the Government.

The subject of drafts is daily becoming more and more important. There may be drafts on the Government. Thus, consuls abroad are authorized by regulations to draw bills of exchange on the Treasury, and Congress has for many years recognized this mode of payment by providing for the payment of exchange and other expenses. These bills, if payment be improperly refused, bear interest against the Government. (U. S. vs. Bank Metropolis, 15 Pet., 377; 1 Op., 188; 2 Op., 504; 4 Op., 90, 299; 8 Op., 1; 7 Wall., 66; 5 How., 382.)

As to incidental powers in reference to drafts, see Floyd Acceptancy, 7 Wall. R., 666.

III.-The "regulation" above referred to follows the general commonlaw rule of survivorship as to (1) executors and administrators, (2) guardians, and (3) partners.

1. As to executors and administrators: Morse, 291-296; 2 Williams on Executors, 1013, [946,] and notes citing many authorities, 6 Am. ed.; 2 Pars. Cont., 6th ed., 616, [768;] Ex parte Rigby, 19 Ves., jr., 463; Can vs. Read, 3 Atk., 695; Allen vs. Dundas, 3 T. R., 125; Edmonds vs. Crenshaw, 14 Pet., 166; Pond vs. Underwood, 2 Ld. Raym., 1210; Paff vs. Kinney, 1 Bradf. Sur., 1; Prosser vs. Wagner, 1 C. B., N. S., 289. Contra: DeHaven vs. Williams, 80 Pa. St., 480. See Other vs. Iveson, 24 L. J., ch. 654; 3 Drew, 177.)

The character of agency should be sufficiently disclosed. (Carpenter vs. Farnsworth, 106 Mass., 561; Bickford vs. First Nat. Bank, 42 Ill., 238.)