The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1861-03-04
The Late Pest ONCE Defhlc alton.
UNITED STATES DISTRICT COURT.
Eeforc Hon IudUe Hefta

MARH 1.-The law argument In the Fowler Post Oficc
cac has been brought TO Close true idea OF the posi-
ton OF the relation TO tho verdict of tho
jury may be gathered from the following closing points or
The verdict on the issues should DO set aside as con
trary 10 law and contrary 70 evidence and new trial
ordered action at law on tho bond TO be instituted
By the United States against Fowler law and Conovor In
tho Circuit Court Of this circuit 30 that the government
may be enabled ny writ Of error Il 30 advised to take
the sense Of the Supreme Court on tho grave questions in
volved In tho controversy
2. Fowler, tho principal and joint obligator tho
bond not beng named - party 70 inc suit either
that ground the hearing should DO ordered 10 stand
to allow the proper amendment.
B. If there bc any equitable ground for relieving Law
and ConOvcr from tho payment Of any part OF tho bond
only extend TO the onethird from which Charlics
name might have ndemniiod thom had he become
Joint obgor with them PARTY seeking equity this s
a bill in equity must do equity.
L. No decree, any, sholldbc mado aganst the United
Statcs 70 prevent thom from prosecuting common law
action the bond or 70 deprive them VI any remedy
except the extraordinary one by distress warrant pro-
vided In the special statute Of 1890
The complaint should be dismissed on It's face.
i. IL admits that tho bond executed by the
planants Law and Cosover blank that was 20 exc
ccutcd at tho request Of the government Of
Ter; that delivered by tom In that condition
to third person, but to Fowler they not requiring their
names or that a tho alleged surety, Carck, to
be first inserted IL the body OF tho instruent that they
s'entrusted II to Fowler upon the "understand
Ing and agreement with him, and not with the govern
mont, ard pretended TO have been in writing
have been communicated TO the goyornmeut that be-
should complete be delivered TO tho
mentn IL should also be executed by Oliver Char
lick.
Tho complalnsnts therefore, In their bill admit that
hcy Fowler the and the ostensble authority
OF filing In the lame OF Chariick, n emitting il no
t and OF delivering tho bond 70 the government In
either form At his option They consequently stopped
by their own undsputed negligence from alleging that
no violated their private Instructions Their omission
for than eighteen months 10 make any pquir Of
Fowler or CLarlicS the government or 20 give the
any inInxtion OF tho alleged understanding
Strengthens this estcppel, and With II ID tantamount to
waiver.
3. verbal understanding between Joint obgors
not be admitted to vary tho contents OF the written In
styumentespcciay sgsinst obigee having notice
suspicion OF tho alleged understanding, and without
any effort made by either OF the 0blgors 70 give such
tlcc.
A. No precedent Of binding authority can be produced In
which II has been held that the oiD maker OF obga
ton, whether note or bond, executed voluntarily In
blank aegc agairst bona Ode holder advancing
money tho faith Of the security that the blank in
bad been filed UP by tho coobgcr promiser TO whom
he had entrusted IL for that purpose with largor sum
IN amount, less number OF names sureties, than
had been privately agreed upon understood between
him and the principal debtor.
On the contrary has been expressly decided by the
highest court OF the State that the insertion OF larger
sum than hal been agreed uIopthe Bane In effect pro-
cisely tho insertion Of lesser number Of surctes TO
surety against bona hde holder Of the instru
no to suspect ia cxstcnco Van Duzer w. stowc
"a, Now York Rep 531 This dec'aon does not turn
any distinction bet.cea n nots and bond.
aalc wed