The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1861-03-04
The Late Pest ONCE Defalcation.
UNITED STATES DISTRICT COURT.
paSOro Uou rud1o Data

NARcA 1.-The law argument In the Fowler Post Oficc
has been brought 10 close true idea OF the posi-
ton Of the government in relation TO the verdict of the
jury may be gathered from the following closing points or
Judge Roosevct:-
trary 10 law and contrary 10 evidence, and trial
ordered an action at law on tho bond TO be instituted
by the United States against Fowler law and Uonovcr In
tho Circuit Court Of this circuit, that the government
may be enabled oy writ Of il advised TO tako
the Of the Supreme Court on tho grave questions in
voived In the controversy.
q Fowler, tho principal and joint obligator on the
bond, not heins named as party TO the suit, either
plaintiff defendant, the bill should DO either dismissed
that ground the hearing shoud DO ordered 10 stand
TO allow the proper amendment.
If there be any equitable ground for relieving Law
and Ccnovcr from the payment Of any part OF tho bond
only extend 70 the onehrd from which Charlick's
name might have unidentified thom had he become .
Joint obligor with them party seeking equity this is
a bill in equity must do equity
No decree, any, shouldb be made against the United
action on the bond to deprive them Of any remedy
except the extraordinary by distress warrant pro-
vidcd In the special statute of 1890.
Tho complaint should be dismissed on its face.
l. il admits that the bond executed by the com
plainants Law and Conover, in blank that Il was
ccutod at tho request not Of the government but Of Fow
Ter; that IL delivered by tom In that condition
third person. but TO Fowler they requiring their
names that q tho alleged osurcty, Garck to
be first inserted in the body OF tho instrument that they
ontrusted" II to Fowler upon the understand
Ing and agreement with him. and not with the govern
mont ard not pretended to have been In writing to
have been communicated to the goyornmcnt, that "bo
fore should complete be delivered tho govern
ment" il should also be executed by Oliver Char
lick.
The compainsnts therefore, In their bill admit that
thoy Fowler the and the osensibe authority
OF filing in tho lame OF ChaTiick, Of emitting il no
t and Of delivering tho bond To the government In
either form 1T s option. They consequently stopped
by their undsputed negligence from alleging that
he violated their private Instructions Their omission
for moro than eighteen months 10 make any inquiries OF
Fowler Chariick the government, or 20 give the
government any ntton OF tho alleged understanding
strengths this stopre and with II u antamount to
wrivcr.
g. verbal understanding between Joint obligors
not be admitted 10 vary the contents OF the written In
strunentespccially against Al obigee having notice
suspicion OF tho alleged understandings and without
eny effort made by either OF the 0bgors 70 give such
tlce.
A. No precedent Of binding authority can be produced
which has been held that the Joint maker OF obga
ton, whether note bond, executed voluntarily In
blank may aDege arainst bona Ode holder advancing
money tho faith Of the security that the blank in
had been filed up by the obigcr promser TO whom
he had entrusted II for that purpose, with rgor sum
IN eunt or q 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
cisey tho insertion Of lesser number OF srrctes 70
divide sncng-s defence in favor OF n connding
careless surety against bona fdo holder Of the instru
nent having notice OF the secret understanding and
to suspect it5 existence Van Duzer Stowe,
"a, Now FORK Rep ISL This decision does not turn
distinction betweoa nots and bood.
Zee reserved.