
    STATE NATIONAL BANK OF BOSTON v. THE UNITED STATES.
    [No. 11982.
    Decided November 4, 1889.]
    ' On the Proofs.
    
    This case now comes to the court under a special act (23 Stat. L., p. 685) The facts are identical with those in the primary case between the same parties (10 C. Cls. R., 519; 96 TJ. S/R., 30), wherein the Supreme Court held that where a party presents gold certificates for redemption, and, the Government cashier fraudulently cancels and, applies them upon his own indebtedness and the party brings his action to recover the amount ' thereof, the Government must be deemed to have in its possession gold coin belonging to him. The right of the claimant to the certificates now in suit was then in litigation elsewhere, and therefore they were not included in the former suit.
    I. Where the owner of gold certificates presented them to the proper officer of the Government for redemption, and he canceled and fraudulently misapplied them to his own indebtedness to the Government, an action for the money will lie.
    II. Interest can not he recovered on gold certificates which are payable on ’ demand and do not in terms promise to pay interest, though they he not paid 'when properly presented.
    
      The Exporter’$ statement of the case:
    The following are the facts of the case as found by the court:
    The claimant’s case is connected with and dependent upon many of the facts upon which was founded the action bet ween the same parties in this court No. 6408 (10 C. Cls. R., 519), affirmed on appeal (96 U. S. R., 30). The first twenty-five of the following findings were made by the court in said case, and not being now controverted, are again found in the present case :
    I. From November, 1862, till March 1, 1867, one Julius F. Hartwell was employed as a clerk in the office of the assistant treasurer of the United States, at Boston, Mass.; for three years of that time as currency clerk, and for the remainder of the time as disbursing clerk, or cashier j in which latter capacity it was his duty to receive all moneys paid into the sub-treasury, and pay out the same.
    
      II. In the year 1884 the said Hartwell had transactions in the purchase and sale of stocks on margin with a firm of brokers in Boston styled Mellen, Ward & Mower, which transactions resulted in his becoming indebted to them in the sum of $6,000, on account of losses, which indebtedness he was unable to pay. Between the date of said transactions and the spring of 1866, the style of said firm was changed to Mellen, Ward & Oo., and the firm under this style was composed of Charles Mellen,' Charles H. Ward, and Edward Carter; the last named of whom does not appear to have been a member of the firm of Mellen, Ward & Mower.
    III. In the summer of 1866 the said Edward Carter gave Hartwell a voluntary receipt in full of the claim of Mellen, Ward & Mower against him, with the understanding between said Carter and said Hartwell that said Hartwell, in his position in the sub-treasury, should aid Mellen, Ward & Oo. in their business in such ways as were proper, such as exchanging gold for coupons in advance of the time of payment of the latter; paying coupon and registered interest before due; giving large bills or clearing-house funds for small bills or fractional currency ; the exchange of large gold for small, and the issuing and holding by Hartwell of receipts to the First National Bank of Newton (of which said Carter was a director), until they should be paid by Mellen, Ward & Co.
    IY. In August, 1866, Carter requested of Hartwell a delay of a few days in payment of $60,000 on account of fractional currency7 sent by the Government to the said bank of Newton, and Hartwell consented thereto, taking from Carter United States seven-thirty notes as security7, and holding the receipt issuedfor the amount until itwas paid. .Several times afterward Hartwell favored Carter in the same way.
    Y. About the 1st of December, 1886, Carter represented to Hartwell that he needed a loan of about $60,000 for a few days, for which he would give Hartwell ample security, and Hartwell made the loan to him of money of the Government taken from the sub-treasury. Under various pretexts Carter obtained from Hartwell, in the same month of December, money of the Government to the amount of about $300,000, all of which was returned by Carter on the last day of that month, but with the understanding that he must have it again on the 1st of January. In the month of January, 1867, Hartwell lent to Carter, of the money of the Government, about $500,000, which was returned at the end of that month, but with the understanding that Carter would need about the same amount again for a few days, and he received it from Hartwell in the firstdays of February. About the 1st of February Hartwell obtained knowledge that in loaning the Government money to Carter, he was violating a law of the United States, and was liable to criminal prosecution and punishment, and he gave Carter to understand that that month would be the last that Mellen, Ward & Co. would receive the money of the Government with his consent, and that if the money was not then returned he would deliver himself up to the United States marshal. Before the 7th of thatmonth Hartwell told Carter that that money must be returned by the 22d of the month, and Carter agreed that it should be so returned. Between the 7th and 12th of February Hartwell informed Carter that he had decided to have a special examination of the funds of the sub-treasury on the 1st of March, and that every dollar must be returned ; that he (Hartwell) would not carry the loan on beyond that time, and at that time would inform the chief clerk about the transactions, and if the chief clerk should think it best to continue the loans he could do so ; that he (Hartwell) would not take the responsibility further. Soon after this Hartwell, for the purpose of enabling Carter to raise money to repay the loans which he had made to Carter, gave up to the latter all the collateral securities which lie had received from Carter, upon Carter’s assurance that the money should all be returned.
    VI. On the morning the 28th of February, 1867, Mellen, Ward & Co. had of the moneys of the Government which they had received through Hartwell in the month of February the sum of $940,000. On that day Carter paid to Hartwell*at the sub-treasury the sum of $210,000 in bills or currency, and $150,000 in checks on banks, towards said amount; and Hart-well received on that day $580,000 in gold certificates, in the manner hereinafter set forth; which certificates had been issued by the Treasury of the United States, under the authority of the fifth section of the “Act to provide ways and means for the support of the Government,” approved March 3,1863, the form of which certificates was as follows. * * *
    
    VII. At the time the $580,000 of these certificates were delivered to Hartwell the assistant treasurer at Boston was authorized to redeem, in gold, certificates of that description at the sub-treasury in Boston. Those of the denomination of $5,000 were indorsed in blank by the person to whose order they were on their face made payable; and such certificates of all denominations passed current in business transactions by delivery, and were received by the collectors of customs for duties, and were paid by them into the sub-treasury the same as gold.
    YIII. During the year 1866 and the early part of 1867 the Merchants’ National Bank of Boston, by contract with Mellen, Ward & Oo., took from them at sundry times amounts of gold, purchasing the same at $125, currency, for each $100 in gold, with the right in Mellen, Ward & Co. to repurchase the gold at the same rate, upon their paying the bank a premium equal to 6 per cent, interest per annum on the currency so delivered. The transactions of this kind between Mellen, Ward & Co. and the Merchants’ Bank prior to February 22, 1867, were numerous, and aggregated hundreds of thousands of dollars.
    IX. On the 22d of February, 1867, the said Carter represented to John K. Fuller, the cashier of the Merchants’ Bank, that Mellen, Ward & Co. had an order to buy some $400,000 or $500,000, gold, and asked him if the bank would take so large an amount on the same terms as theretofore. Fuller, owing to the largeness of the amount, said he would refer the matter to the president of the bank, Franklin Haven, who, upon ascertaining from the cashier that the bank could take so large an amount without interfering with its regular discounts, authorized the cashier to take the gold. On the 23d of February the cashier notified Carter of the president’s decision, when Carter said he would telegraph to New York and have the gold-sent forward. In this interview Carter said that the parties for whom the gold was to be bought, he believed, kept an account at the State Bank, and that the State Bank would pay for it.
    X. On the 24th of February Carter went to the Merchants’ Bank and informed Fuller that $200,000 of the gold which the Merchants’ Bank had agreed to purchase was at the Second National Bank, Boston, which the Merchants’ Bank could receive from that bank on paying to it $250,000 in currency; and that instead of receiving gold coin from New York it was in gold certificates. Before going to the Second National Bank Fuller made known to Haven, the president, that instead of gold they were to receive gold certificates. Haven stated that he was not familiar with gold certificates, and charged Fuller to be particular that they were all right, and said he had better take them to the sub-treasury for examination,.to satisfy himself that they were so. Fuller went to the Second National Bank, and on paying $250,000 in currency received from that bank forty gold certificates of $5,000 each, which he took to the sub-treasury and presented to the cashier, stating that they had come on from New York, and he wished to know if they were all genuine and correct. The cashier examined them, and pronounced them all right, when Fuller returned to the Merchants’ Bank and gave the certificates to the paying teller, by whom the amount was added to the gold of the bank. On the 25 th of February Garter again went to the Merchants’ Bank and informed Fuller that there was at the Second National Bank another amount of $200,000 of gold certificates, which Fuller could receive on paying $250,000 currency; which amount Fuller paid to that bank and received the certificates, and took them to the sub-treasury cashier as before, who examined them and pronounced them all right; and Fuller then took them to the Merchants’ Bank and handed them to the paying teller, who added the amount to the gold of the bank.
    XI. At the time of these transactions between Mellen, Ward & Go., the Merchants’ Bank and the Second National Bank, gold coin and gold certificates were worth in the Boston market $140 currency i'or every $100 gold; and Mellen, Ward & Co. paid to the Second National Bank the difference between that rate and the rate which the Merchants’ Bank paid, to wit, •$15 currency for every $100 gold, delivered, as aforesaid, by the Second National Bank to the Merchants’ Bank.
    XII. About a week previous to the 28th of February, 1867, the said Carter went to the State National Bank of Boston and said to Charles H. Smith, the cashier of said bank, that he had been employed by the United States assistant treasurer in Boston to make an exchange of gold certificates for gold coin, and that he expected to have the certificates at the Merchants’ National Bank of Boston within a short time; and he asked' said Smith if he would certify the checks of Mellen, Ward & Co. at the rate of $125 in currency for $100 in gold on receiving the gold certificates as security for the same, and said that the checks so certified would not be presented at the State Bank for payment, or pass through the clearing house, but that he (Carter) would take them up at the Merchants’ Bank from the proceeds of the sale of the gold coin, and that he had made arrangements with the Merchants’ Bank to that effect. Smith told Carter that on those conditions he would certify Mellen, Ward & Co.’s checks. At this interview Carter stated that it would be necessary to deposit the gold certificates at the sub-treasury for examination, and that Smith was to have a receipt from the cashier at the sub-treasury for them; and Carter then gave as a reason why the gold certificates were to be exchanged for gold at the sub-treasury that the sub-treasury had a large amount of gold coin, and by exchanging it for certificates it would be more convenient.
    XIII. On the 28th of February, 1867, about a quarter before 2 p. m., Carter went to the State Bank and said to Smith that he was ready to make the arrangement which he had proposed, and requested Smith to go with him into the Merchants’ Bank. Carter and Smith went together to that bank; and on going into the bank they went to the desk of the cashier. Fuller. Carter said, “We have come to take the gold certificates; Mr. Smith will certify the checks on receiving them;” and Smith stated that he would pay for an amount of gold he was to receive, and would certify Mellen, Ward & Co.’s checks as good after receiving and counting the gold certificates. Carter then produced two checks, one for $250,000 and one for $275,000, which Smith certified. Fuller requested Carter and Smith to step to the teller, which he did; when Fuller said to the teller that the cashier of the State Bank had come in to receive and pay for some gold.
    The teller handed Fuller the certificates, and Fuller counted them and said there were eighty-four certificates, four more than were wanted. Smith replied that the checks which he would certify called for eighty-four. Fuller then handed to Smith the eighty-four certificates of $5,000 each, and Smith counted them, and then delivered the certified checks to Fuller; and the certificates were taken away by Smith.
    XIV. The said checks, when certified, were in the words and figures following, to wit:
    ##*##**
    XV. When the eighty-four certificates were delivered by Fuller to Smith, Garter and Smith went together to the assistant treasurer’s office and Smith laid the package of certificates on the ledge at the opening in the cashier’s desk through which money is passed to the cashier. When Smith laid the certificates down on the ledge Carter took them and pushed them through the opening to Hartwell, the cashier, and Carter said to Hart-well, “ We wish to deposit this money on account of the gold-certificates transaction,” and asked Hartwell to give a receipt for the same. Hartwell asked him, “ In what form ?” Carter replied, “ In the usual form.” Hartwell then took the certificates, turned to his desk, and -wrote a receipt, which he passed out to Carter, and Carter handed it to Smith. The receipt was in the following words and figures:
    ‘‘United States Treasury, Boston.
    “Deposited by Mellen, Ward & Co., of Boston, on acct. of deposit of gold ctfs. Amount four hundred and twenty thousand dollars, the same to be exchanged for gold certfs., or its equivalent, upon their order, on demand.
    “J. F. Hartwell, Or.
    
    “Date Feb. 28th, 1867.”
    On examining this receipt, when Carter handed it to him, and finding it made payable to Mellen, Ward & Co., or order, Smith asked Carter why it was made payable so, instead of to him, Smith. Carter replied, because he, Carter, was the party engaged to make the transaction ; but that he would indorse the receipt over to Smith, which he did on the spot by writing on the back of it: “ Pay only upon the order of O. H. Smith, cash. Mellen, Ward & Co., Boston, Feb. 28,1867.” When this indorsement was made, Carter and Smith left the sub-treasury, and Smith went to the State Bank.
    XVI. About a quarter past 2 o’clock p. m., of the same day, Carter went again to the State Bank and stated to Smith that a further amount of gold was at the Merchants’ Bank, which he wished to arrange in the same way; and thereupon Smith went with him the second time to the Merchants’ Bank, and certified as good a check of Mellen, Ward & Co. on the State National Bank for $75,000, and gave it to the teller of the bank and received from the teller $10,000 in gold certificates and $50,000 in gold coin, which coin was immediately afterward exchanged elsewhere by Carter, or one of his partners, for gold certificates, which were delivered to Smith, making in all $60,000 of gold certificates received by Smith, through the said check of Mellen, Ward & Co. for $75,000 certified by him.
    ' XVII. Immediately after this second visit of Carter and Smith to the Merchants’ Bank, Smith went with Carter to the Second National Bank, where he certified as good a check of Mellen, Ward & Co. on the State National Bank for $125,000, and received from the Second National Bank gold certificates to the amount of $100,000.
    XVIII. Having in his possession $160,000 in gold certificates, which he had received, as stated, after the deposit in the sub-treasury of the $420,000, Smith again went with Carter to the sub-treasury to make a deposit as before. They found the doors closed for the day. Carter said that he could make the deposit, and Smith handed him the certificates, and Carter went into the treasury, leaving Smith outside, and in a few moments returned to Smith with a receipt signed by Hartwell, but not as cashier. Smith objected to it on that account, and Carter returned with it into the treasury and brought it back to Smith signed as Smith requested, and Carter immediately there indorsed the same over to Smith as cashier. This receipt and the indorsement thereon were in the words and figures following:
    “United States Treasury, Boston.
    “Deposited by Mellen, Ward & Co., of Boston, on sect, of gold ctfs. deposited. Amount, one hundred and sixty thousand dollars, to be exchanged for gold ctfs'. or its equivalent, on demand.
    “ Date, Feb. 28th, 1867,
    “J. F. Hartwell, Or.
    
    “(Indorsed:) Pay only to the order of O. H. Smith, cash.
    “Boston, Feb. 28,1867.
    “Mellen, Ward & Co.”
    , XIX. The currency and checks which Carter paid to Hart-well on said 28th day of February, as aforesaid, were paid at various times during the business hours of the day previous to 2 o’clock p. m., and of the gold certificates $420,000 were delivered at 2 p. m. and $160,000 about 2.30 p. m. All the currency, checks, and gold certificates received by Hartwell that day were placed by him, at or soon after receiving them, in the vault of the sub-treasury, and the two parcels of gold certificates, to wit, $420,000 and $160,000, were by him put together, making a gross sum of $580,000 in gold certificates.
    XX. It was customary at the close of every month for the assistant treasurer at Boston to “forward gold certificates to Washington, and the amount forwarded on each occasion was charged over on the books, and the certificates were canceled before being sent there by express. The amount sent at the close of any month was at Hartwell’s discretion, large amounts being often retained at the sub-treasury, and the $580,000 sent on the 28th of February, 1867, as hereinafter set forth, were not all the gold certificates then in the sub-treasury. A few moments after Hartwell received the last of the $580,000 in gold certificates as aforesaid, and after the sub-treasury had been closed for the day, he directed the book-keeper to charge them over for the purpose of forwarding them to Washington; and about half an hour after doing so, in response to an inquiry by the chief clerk of the sub-treasury, Hartwell informed him that the amount of gold certificates going that night to Washington was $580,000.
    XXL When Smith certified the checks of Mellen, Ward & Co., on the State National Bank, as above stated, Mellen, Ward & Co. had no funds in that bank to meet the same; and Smith was led to certify said checks in the belief, based on Carter’s assurances, that the gold certificates would come into his possession, and that whenhe delivered them at the sub-treasury and obtained receipts for the amount of them, he could the next day get the gold in return on presenting the receipts at the sub-treasury, and that the gold in the meantime would be as safe in the vaults of the sub-treasury as in those of the State Bank. It does not appear that said Smith had any knowledge or suspicion of any improper use of the moneys of the Government by Hartwell or Carter, or of any fraudulent means resorted to by Carter to replace the money in, the sub-treasury.
    XXII. When, about the middle of February, Hartwell informed Carter that he expected a detailed examination of his accounts on the 1st of March, and that all the money must be back for that examination, Carter promised that it should, provided it should be returned to him the day following the examination. At the time of this conversation, Carter had not formed any definite plan for returning the money. A day or two afterward he submitted his plan to Hartwell, which was as follows: He proposed to buy gold certificates in New York, bring them to Boston, and borrow money upon them of tbe Merchants’ Bank; and he then proposed to get Smith, the cashier of the State Bank to pay for these certificates and leave them with Hartwell during the examination. Hartwell made no objection to the plan, but he thought Smith would not do it. The plan was carried into effect by Carter, as hereinbefore set forth; but Hartwell had no agency in carrying it out, except to receive the moneys and gold certificates paid to him on the 28th of February, as aforesaid; and he had no actual knowledge of the proceedings taken by Carter on that day to obtain said gold certificates. When Carter and Smith deposited the $420,000 of gold certificates in the sub-treasury as aforesaid, Smith did not know Hartwell, nor did Hartwell know Smith, or know that Smith was connected with any bank or money institution.
    XXIII. On the 28th of February, Hartwell told Carter that if he should return all the money, and Hartwell could get the consent of George D. Whittle, the chief clerk, Carter should have the money after the examination.
    XXIV. Between 4 and 5 o’clock ¡of that day Hartwell took Whittle into the vault of the sub-treasury, and for the first time made known to him that he had loaned the money of the Government to Mellen, Ward & Co., and said that every dollar of it had been returned. Soon afterward Hartwell gave to Whittle, in the assistant treasurer’s room, a fuller account of the transaction and of the return of the money. He told Whittle that Carter expected the money would be paid back to him (Carter) the following morning; but he (Hartwell) had informed Carter that if it went out again it must be with Whittle’s consent. Hartwell then asked Whittle if he would allow the money to go out again, to which the latter replied in a decided negative. While this conversation was passing, Carter sent for Hartwell from the messenger’s room in the custom-house, and on Hartwell’s seeing him there, Carter asked if Whittle had given his consent that. the money should go out again. Hartwell informed him that Whittle could give no answer until the cashier’s checks were paid; conveying to Carter the impression that if those checks were made good the answer would be favorable. Carter’s reply was that they should be' made good the next morning. The checks referred.to were those for $150,000 which Garter had that day paid in, as above stated. On the morning of the 1st of March, about 9 o’clock, they were made good. About 10.30 o’clock that morning Hartwell informed Garter that he had resigned his place in the sub-treasury, and had deceived him in order that the money should be returned. On the same day Smith presented at the sub-treasury the receipts which Hartwell had given Mellen, Ward & Co. the previous day, and demanded payment thereof, which was refused.
    XXY. On the evening of the 28th of February, after Hart-well had made confession to Whittle, as aforesaid, he and Whittle left the sub-treasury together for their homes. When they had gone a short distance from the sub-treasury Whittle said to Hartwell, “I wish we had sent those certificates to Washington to-night.” Hartwell produced from the side pocket of his coat a package of gold certificates, and said, “I have got them with me.” Whittle made some exclamation of surprise, and told Hartwell to go back to the office with him, which Hartwell did. Whittle asked Hartwell what he had taken them for, and Hartwell answered, “I don’t know.” Whittle took the certificates from Hartwell and canceled them, and did them up, and took them to the express office, and sent them to the Treasurer of the United States at Washington, without any letter or schedule of any kind accompanying them. The certificates so sent were one hundred and sixteen in number, of $5,000 each.
    ADDITIONAL FINDING.
    XXYI. The gold certificates specified in the above seventeenth, eighteenth, and subsequent findings, to the amount of $100,000, are the same gold certificates the value of which the claimant is seeking to recover in this action.
    At the time of the bringing of said former action the claimant had not paid the check of $125,000 mentioned in said finding 17, as given by Mellen, Ward & Co. to the Second National Bank, drawn on the claimant and certified by its cashier to be “good,” nor had Mellen, Ward & Go. then, nor at anytime after the same was drawn, any funds in the said bank from which it could be paid.
    The claimant denied its responsibility for the transactions between its cashier and the Second National Bank in certifying said check of Mellen, Ward & Co. for $125,000, and receiving said gold certificates of $100,000, and contested its liability upon said check. The petition in the former suit against the United States, in which judgment was recovered for the claimant for $480,000, did not include a claim for the proceeds of said gold certificates of $100,000.
    Subsequently a suit at law was brought a rainst the present claimant upon said certified check of $125,000 by an indorsee thereof. Upon trial judgment was recovered against the present claimant-for the full amount and interest (Ooolce v. State National Bank of Boston, 52 New York B., 96). That judgment was paid before this action was commenced. ■
    The claimant has never been paid the amounts of said check nor of the judgment thereon, nor the value of said $100,000 gold certificates.
    
      Mr. Edward Avery and Mr. O. D. Barrett for the claimant.
    
      Mr. Assistant Attorney-General Howard for the defendants.
   Richardson, Ch. J.,

delivered the opinion of the court:

This is the fourth action brought to tr-ial here growing out of what was called, in an opinion in a former case, “ that most extraordinary scheme of conspiracy and fraud which was acted out in the city of Boston, on the 28th of February and the 1st of March, 1863, between Edward Carter, a broker, the chief party of the firm of Mellen, Ward & Co., and Julius F. Hart-well, the cashier in the office of the United States assistant treasurer in that city.” The cases are The State Bank Case (10 C. Cls. R., 519), The First National Bank of Newton Case (16 C. Cls. R., 54), and The State National Bank Case (17 C. Cls. R., 329).

In the first case, which was instituted by the present claimant, the findings by the court set out with great minuteness the facts upon which this action is founded, and other transactions with which they were closely connected up to the date of the petition in that case. The record therein was admitted in evidence in this case by stipulation of counsel on both sides. We have adopted the findings in that case, no objections to them having been offered by the defendants. One finding (the 26th), specially relating to the present claim, independently of the general transaction, has been’added.

The ultimate facts, in brief, are these: Carter, one of the firm of Mellen, Ward & Go., brokers, in Boston, had fraudulently obtained from the sub-treasury in that city, through Hartwell, the cashier, loans of gold in different sums at different times, until in February, 1867, the firm was indebted to the Government to the extent oí $940,000, for funds thus fraudulently loaned to them. Early in February, Hartwell, who had become alarmed at the situation, informed Carter that he had decided to have a special examination of the funds in the sub-treasury on the 1st of March, and that all the money must be returned by the22d of the month, and this Carter promised should be done.

On the morning of the 28th day. of February Carter, having paid in, with money apparently of the firm, $360,000, proceeded to consummate a scheme which he had worked out in his own mind alone, so far as it appears, for supplying the balance.

The successive steps of his scheme seem to be these, relying upon making a dupe of Smith, cashier of the State National Bank, through whom'to carry them out: First, to arrange with Smith to purchase in the name of the bank a sufficient number of gold certificates of deposit issued by the Government, with the view of holding them for a few days until Carter could pay for them or for the proceeds. /Second, while these certificates were in the possession of the bank, to induce Smith to exchange them for gold at the sub-treasury, taking them there February 28, leaving them one day for verification, and the next day, March 1, to draw the gold. Third, to have an understanding with Hartwell that the certificates should be passed to the credit of Mellen, Ward & Co., without the knowledge of Smith, and so make their account good until after the official examination on the latter day. Fourth, after the official examination that Hartwell should renew his fraudulent loan to Mellen, Ward & Co., by which the State National Bank would be paid, and the fraud would remain undiscovered for the time being at least..

The scheme was successful up to the point of putting the gold certificates into the sub-treasury, when it came to an end through disclosure by Hartwell. The assistant treasurer retained the certificates and the State National Bank was not permitted to withdraw the gold.

We will briefly review how the scheme was worked.

By means which are minutely set oat in the findings, but which it is not necessary to recite here for a general understanding of the case, Carter induced Smith, cashier of the State Bank, to pay for and hold certain gold certificates which he had bargained for with banks — first, eighty-four certificates, of $5,000 each, amounting to $420,000. Then, on the 28th day of February, about 2 o’clock p. m., as stated in the findings—

“ XV. Carter and Smith went together to the assistant treasurer’s office, and Smith laid the package of certificates on the ledge, at the opening of the cashier’s desk, through which money is passed to the cashier.
“ When Smith laid the certificates down on the ledge Carter took them and pushed them.through the opening to Hartwell, the cashier, and Carter said to Hartwell, “ We wish to deposit this money on account of the gold certificates transaction,” and asked Hartwell to give a receipt for the same. Hartwell asked him, “In what form1?” Carter replied, “In'the usual form.” Hartwell then took the certificates,turned to his desk and wrote a receipt, which he passed out to Carter, and Garter handed it to Smith.
“ On examining this receipt, when Carter handed it to him, and finding it made payable to Mellen, Ward & Co., or order. Smith asked Carter why it was made payable so, instead of to him, Smith. Carter replied, because he, Carter, was the party engaged to make the transaction; but that he would indorse the receipt over to Smith, which he did on the spot, by writing on the back of it; “ Pay only upon the order of O. H. Smith, cash._ Mellen, Ward & Go. Boston, Feb. 28, 1867.”
“ When this indorsement was made, Carter and Smith left the sub-treasury, and Smith went to the State Bank.”

Smith, at about 2.15 o’clock on the same, day, next obtained by purchases made through Carter more gold certificates to amount of $160,000. Then followed what is thus stated in the findings:

“XVII. Immediately after this second visit of Carter and Smith to the Merchants’ Bank, Smith went with Carter to the Second National Bank, where he certified as good a check of Mellen, Ward & Go. on the State National Bank for $125,000, and received from the Second National Bank gold certificates to the amount of $100,000.
“XVIII. Having in bis possession $160,000 in gold certificates, which he had received, as stated, after the deposit in the sub-treasury of the $420,000, Smith again went with Carter to the sub-treasury to make a deposit as before. They found the doors closed for the day. Carter said that he could make the deposit, and Smith handed him the certificates, and Carter went into the treasury, leaving Smith outside, and in a few moments returned to Smith with a receipt, signed by Hartwell, but not as cashier. Smith objected to it on that account, and Carter returned with it into the treasury and brought it back to Smith signed as Smith requested, and Carter immediately there indorsed the same over to Smith.”

Hartwell having thus secured, as he supposed, full payment of Carter’s loans and made his own accounts good as cashier, disclosed the whole matter to the chief clerk, George D. Whittle, who gave a decided negative to the suggestion of allowing Mellen, Ward & Co. to continue their fraudulent loan, and who closed the sub-treasury against the conspirators as well *as against Smith, their dupe. The findings show what was done immediately thereafter. It is ouly necessary to say that the receipts given to Smith were never paid by the United States, and the gold was never delivered, as Smith had exnected it would be.

On January 11,1872, the State National Bank brought its first action in this court to recover $480,000 as the proceeds of certificates to that amount claimed to have been thus fraudulently converted by the cashier to the use of the United States. Judgment was rendered in favor of the claimant for that amount, and on appeal the same was affirmed by the Supreme Court (10 Ct. Cls. R., 519, and 96 U. S. R., 30). The judgment was paid under an appropriation 'therefor by Congress (20 Stat. L., 116).

It will be seen that while the gold certificates of the State National Bank, which were thus converted, amounted to $580,000, the first action was brought to recover for but $480,-000. The certificates omitted to the amount of $100,000 were those obtained by Smith of the Second National Bank upon a check drawn by Mellen, Ward &• Co. on the State National Bank, and certified by Smith to be “good,” as set out in Finding XVII, just above quoted, and the same for which this action is brought.

At the time of bringing the first action the State National Bank had not paid that check, and was resisting its enforcement. The bank undertook to repudiate the transaction of Smith, denying his authority to bind it by his certification of the check, and so did not claim to own the $100,000 certificates for which it was given. -An action was brought upon the check by an indorsee in New York, and after a vigorous defense judgment at as recovered thereon for the full amount, with interest, and that judgment was paid (Cook v. State National Bank, 52 New York R., p. 96).

That case and the payment-of the judgment having settled the title to those certificates to have been in the State’National Bank, the latter commenced the present action July 22, 1879. Finding itself confronted by the statute of limitations, the claimant did not press the case for trial until Congress had passed the following act (1885, March 3, ch. 437, 23 Stat. L., 685):

“AN ACT for the relief of tlie State National Bank of Boston, Massachusetts.
uBe it enacted, etc., That the claim of the State National Bank of Boston for the sum of one .hundred thousand dollars in gold, deposited by said bank in the sub-treasury of the United States at Boston, Massachusetts, February twenty-eighth, eighteen hundred and sixty-seven, be and hereby is referred to the Court of Claims for its decision and adjudication upon the merits thereof as a court of equity and justice, without regard to the statute of limitations, according to the practice pf said court.
u Sec. 2. That said claim may be heard and determined by said Court of Claims on the petition of said bank now pending therein.
u Sec. 3. That there shall be the right of appeal from the finding and judgment of said Court of Claims to the Supreme Court of the United States, as in other cases.
“March 3, 1885.”

The title to the certificates deposited having been settled and the bar of limitation having been removed, there seems to be no defense to the principal claim. Every material point has been decided in favor of the claimant by this court and the Supreme Court in the former action between the same parties. These $100,000 certificates formed part of the $160,000 which were passed to HartAvell to exchange for gold, as set out in Finding XVIII, of which $60,000 were included in the former case, and the value thereof was recovered upon the judgment therein. In every particular between the present parties these $100,000 certificates and the $60,000 certificates were-passed into the sub-treasury under the same state of facts. This court and the Supreme Court having decided in favor of the claimant upon the $60,000 certificates, we must now do the same upon the $100,000 certificates.

The claim for interest can not be allowed. Revised Statutes, section 1091, provides that—

“ No interest shall be allowed on any claini up to the time of rendering judgment thereon by the Court of Claims, unless upon a contract expressly stipulating for the payment of interest.”

The gold certificates were payable on demand, without express stipulation for the payment of interest. There is nothing in the present case to take it out of the prohibition of the statute.

Judgment will be entered in favor of claimant for $100,000 in gold coin.  