
    TYERS’ CASE. Richard R. Tyers v. The United States.
    
      On the Proofs.
    
    
      By a convention between the United States and China, it is agreed that about $700,000 shall be paid by the Chinese government to the United States, in full liquidation of all claims of American citizens against that government. The amount is paid in coin in February, 1859. Congress pass an act authorizing the President to appoint two commissioners to receive and examine all claims under this convention. The claimant presents his claim. The claim is rejected by the commissioners. After the payment of all claims allowed, the remainder of the fund, about $250,000, is transferred to the custody of the State Department. The claimant applies to Congress, and an act is passed, directing the' Attorney General to examine his claim, and, if found just, to order the same 
      
      to be paid out of funds received from the Chinese government. The Attorney General malees his award in favor of the claimant, ordering the amount due him, iviih interest at the rate of 12 per cent, per annum, from the last day of October, 1857, to the 3d day of March, 1869, to be paid in gold. The claimant applies to the Secretary of State for payment of the amount awarded in coin, tohich is refused, and payment is offered in depreciated paper money. This is received and a receipt therefor is given, with notice that the difference between depreciated paper money and gold ivill be claimed.
    
    I. Where money was received in February, 1859, in coin, from the Chinese government, to he applied on claims of citizens of the United States against the Chinese government, and Congress pass an act authorizing the Attorney General to examine a claim and to award the amount found due thereon, and he mahes his award “ payable in gold,” it is a legal award. In connection vuth the facts of the case the word “gold” is used to distinguish between coin and currency, and means “coin,” and the award is payable in gold or silver coin only, of the currency of the United States. Act 22d, February 1869. (15 Stat. L., p. 440.)
    II. Where a creditor, entitled to the payment of his debt in coin, receives currency without objection, it is a payment of so many dollars; but if the creditor declares he will receive the currency only at its value or on account, aud retain his claim for the difference between currency and coin, and the debtor without objection permits the creditor to take the currency, the debtor impliedly assents to the creditor’s proposal.
    III. In a suit wherein the original obligation of the defendants is payable in coin and in nothing else, judgment must be rendered for the amount due, in gold and silver coin of the currency of the United States.
    
      Mr. John T.fWard and Mr. G. F. Poole for the claimant:
    This is an action brought by original petition to recover a balance clue upon an award made in favor of the claimant by the Attorney General under and in pursuance of an act of Congress.
    In the month of November, 1858, a treaty or convention was concluded between the United States and China for the adjustment of claims, by which the government of China paid to the agents of the United States the sum of 500,000 taels, (about $750,000,) to liquidate the claims of American citizens against that government. (Stat! L., vol. 12, p. 1081; Ex. Doc., 1st sess. 30th Congress, vol. 10, pp. 520, 522.)
    By an act approved March 3, 1859, Congress provided a board of commissioners to audit the claims arising under this convention. (Stat. L., vol. 11, p. 408.)
    A portion of this fund was paid out under the award of the commissioners acting under this statute. The balance, amounting to about $300,000, was transmitted to the United States.
    
      The parties represented by this claimant had been deprived of a large amount of coin by’ the unlawful action of the Chinese authorities, and were entitled to relief against that government under the treaty and the acts of Congress passed for its execution.
    For some reason not explained in this record, they did not obtain an award from the board of commissioners sitting in China, and a special act of Congress was passed to meet their case as follows:
    
      uBe it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That the Attorney General be, and he is hereby, directed to examine the claim of Nott and Company, American merchants trading and doing business in China, against the Chinese government, for losses of coin sustained in eighteen hundred and fifty-seven by the capture and robbery of the vessel called the ‘ Neva y and that, if in his opinion the said claim ought to be paid, he is hereby authorized and instructed to order the same to be paid, with the rate of interest allowed on other claims from the time of such loss, out of any funds received from the Chinese government, under the treaty of eighteen hundred and fifty-eight, for the payment of losses sustained by American citizens; and that the said amount be paid to the said Nott and Compauy, or the surviving copartner or copartners, or any person duly authorized to be their agent or attorney, from the fund now held by the Secretary of State.
    
      “ Sec. 2. And be it further enacted, That the decision of the said Attorney General as to the right of said claimants to be' paid, as to the amount to be paid, and as to the parties entitled to receive the same, shall be final and conclusive.
    “ Approved February 22, 1809.”
    The claimant presented the demand to the Attorney General, and he made a formal award in favor of the claimant of the sum of $16,197 60 in gold, with interest thereon at the rate of twelve per centum per annum, from the last day of October, in the year 1857, to the third day of March, in the year 1869, to be paid to the said Richard R. Tyers or his duly authorized attorney, out of any funds received from -the Chinese government by the government of the United States under the treaty of 1858, for the payment of losses sustained by American citizens.”
    
      The whole amount of principal and interest thus awarded, was $38,242 53.
    Mr. George M. Miller, as agent of the claimant, holding his power of attorney, repeatedly called at the State Department between the 4th and 13th of March, to urge the payment of this award in coin. . While the question of paying the award in coin or currency was pending, the decision was announced to him that payment would be made in currency. He objected to this, because he had no authority to receive currency, and because it was not in accordance with the terms of the award.
    Mr. Chew, the chief clerk, and Mr. Baker, the disbursing agent, both informed him that he should not be barred of any further claim he might have by accepting the greenbacks, and with that distinct understanding and reservation, he received the sum in Treasury notes. Gold was then at a premium of 31-¿-per cent.
    1. The fiind in question is a fund deposited by the Chinese government to pay the claims of American citizens against that government.
    2. The United States hold this fund as a trustee to pay claims which may be established against it. The defendant has no interest in the fund excepting to administer it according to the principles of equity and justice, for the purposes for which it was created.
    3. The claim of Nott & Co. was a debt against the Chinese government and one for which the fund was provided.
    4. It was a coin debt, i. e., a debt which arose from the seizure of coin, and therefore could only be equitably adjusted by payment in coin or an equivalent value in currency.
    5. The laws of the United States, as expounded by the Supreme Court, recognize this distinction between debts which are payable in'coin and mere money demands. (Bronson v. Bodes, 7 Wallace, 229; Butler v. Eorwitz, Ibid., 258.)
    6. The Attorney General was authorized under the terms of the act of Congress to recognize this difference and direct payment in coin, or he could himself have awarded an equivalent in currency, by increasing the nominal amount.
    7. The award of the Attorney General is conclusive upon the defendants. Where there are two kinds of currency in common use and both are legal tender, but'of different values, it is important that the kind of money should be determined. “The amount to be paid” covers the whole ground; it goes to the substance and not to the form only.
    8. The act provides that it should be paid out of the funds received by the Chinese government.
    9. The legal-tender acts have no application to a debt due from, a foreign government to an American citizen ; neither the language nor the intent of the acts meets such a case.
    10. If the Chinese government had transmitted this fund to the First National Bank, with authority to the bank to ascertain who were the proper claimants; and the bank had referred this demand to its own attorney and he had made such an award as this, and the bank, acting for the Chinese government, had tendered greenbacks in satisfaction of the award, the judgment of the courts and the verdict of the community would be that it was against law, reason, and justice.
    11. The United States, in consenting to act as trustee for this fund, is supposed to be acting for the protection of its citizens to enable them to enforce valid claims against the fund.
    Mr. Miller explained to the disbursing agent his want of authority to take currency in satisfaction of the award. The action of the officers of the State Department shows that they rested their case entirely upon the assumption that the award was by law payable in currency.
    
      The Assistant Attorney General for the defendants:
    
      Mrst. The award of the Attorney General, so far as lawful, has been fully performed.
    I. This petition seeks to obtain from this court a judgment such as it never yet has rendered; namely, a judgment with debt or damage expressed in a particular description of money. Thus to express debt or damage is not only not practiced by courts, but also is unauthorized by law, and even forbidden by statute. (Act of April 2,1792, section 20, 1 Stat. at L., p. 250.)
    That provision of ancient law in the United States requires all accounts and all judgments to be expressed in simply “the money of account of the United States,” that is, “in dollars or units” and parts of a dollar, without additional words of description. It has no reference to actual coin- or coinage, for it mentions “mills,” that never were coined; and it fails to mention any coin above dollars, and thus, if it were a provision relating to actual coin, it would exclude our gold coins from being legal tender. (See Wood v. Bullens, 6 Allen, p. 516; Hastings v. Johnson, 2 Nevada, 197; Henderson v. McPilce, 35 Missouri, 259; Bodes v. Bronson, 34 New York, 652; 38 Missouri, 200; Higgens y. Bear River, &c., 27 California, 153.)
    -Against the correctness of this position, the.most authoritative decision is that of the Supreme Court of the United States, in the case of Cheang-Keev. The United States, (3 Wallace, 320,) a decision which has for its seeming support a special provision of statute prescribing the material in which judgments like that shall be jjaid; and yet, notwithstanding that support, the decision itself is not correct. The judgment in that case should not have exx>ressed the material of x>ayment; it should simx>ly have expressed the specific character of the debt, as “for duties on imports;” and left to the officer collecting the execution the responsibility of accepting what would discharge such a debt. A judgment thus exxmessed would be correct, though between its rendering and its satisfaction Congress should (as without question it might) make duties payable in other currency than eqin.
    II. The award of the Attorney General in this caie should have conformed to the act of 1792 in this resx>ect, and have been exjiressed “ in the money of account of the United States;” in simply‘“dollars,” and nothing more. So far as it attempted to qualify the word “dollars,” or to use any expression save of the long-established “ money of account of the United States,” so far it was unauthorized by the sxmeial act which alone conferred x>ower upon the Attorney General in the premises, and forbidden by the act of 1792; it was therefore void.
    III. Whether the words “in gold” were or were not properly inserted, the award is still an award for the payment of money, lawful money of the United States, and was thus payable in whatever was lawful money at the time of payment. (The case of Mixed Money, Davis’s (Irish) Reports, p. 48; Paw v. Mars-teller, 2 Cranch, 10; Bacon’s Abr., Tender, &c., b. 2, 317; Wood v. Bullens, 6 Allen, 516; Hastings v. Johnson, 2 Nevada, 190; Buehegger v. Schultz, 13 Michigan, 420; Henderson v. McPilce, 35 Missouri, 259; Bodes v. Bronson, 34 New York; Schollenherger v. Brinton, and other cases, 52 Pennsylvania, 41, 83, 105; 16 Iowa, 243; 38 Missouri, 458, 138; Higgens v. Bear Biver, &o., 27 California, 153.)
    
      Accordingly the. award was fulfilled by the payment thereof in United States Treasury notes, the same being in March 13, 1869, lawful money, receivable in payment of all claims and demands against the United States, and a legal tender in payment of all debts, public and private, (with exceptions not here important.)
    
      Secondly. The claimant is estopped by his own action.
    IY. The State Department tendered to the claimant under the award United States Treasury notes in payment thereof, and as thus tendered the claimant accepted the same. This constitutes full payment and satisfaction of the claim under the award.
    Y. The agent of the United States in this transaction was instructed by his principal (in the provisions of the act of February 25, 1862) to pay these notes as lawful money, at their value as fixed by law, in full payment of the sum due the claimant, and not otherwise; and of these instructions the claimant had notice. With this notice he received payment in such notes, and must be held to have received them as they were offered.
    YI. The books show no case where the creditor, objecting to the kind of money offered, yet receiving it, is thereafterward allowed to prove its depreciated value somewhere in compm'ison zoith some other hind, even of money, in maintenance of an action for the sum which such a calculation would show unpaid.
    
      Thirdly. The claimant is not in proper manner seeking his remedy.
    YII. In the view most favorable to this claim, the case is that of a creditor receiving for and on account of his credit the negotiable promissory notes of his debtor and thereafter bringing action for the original debt as still unpaid. To maintain his action, he must show the debtor safe from all liability to pay the notes. (Kearslahe v. Morgan, 5 Tennessee Deports, 513; Griffith v. Owen, 13 M. & W., 58; Price v. Priee, 16 ib., 232; Mercer y. Cheese, 5 Man. & Grang., 804; Champion et al. v. Terry, 3 Brod. & Bing., 295; Davis v. Dodd, 4 Taunt., 602; Dangerfield v. Wilby, 4 Esp., 159; Sawden v. Mendizabel, 10 Moore, 477; Keene et al. v. Dufresne, 3 S. & B., 233; Miller y: Dumsden, 16 Illinois, 161; Holmes v. DeCamp, 1 Johns., 34; Pint-ará v. Tackington, 10 Johns., 104.)
    This claim, however, far from fulfilling these requirements of the common law in like cases between private persons, falls within, the rule laid down in Alexander y. Byers, (19 Indiana, p. 301,) where the defendant was allowed to plead that the plaintiff to whom money, unauthorized, though actually current, was paid, passed the same at par to other persons, who returned the same to the defendant, and that the latter redeemed the same.
    In connection with this part of the argument it is respectfully submitted that the Court of Claims cannot, either directly or indirectly, entertain jurisdiction of an action of assumpsit brought on any of these Treasury notes against the United States as promissor. ■ Such jurisdiction would give them power to compel the United States to resume specie payments forthwith.
    
    
      Fourthly. Measure of damages.
    Till. The obligation of the claimant to return the promissory notes to the promissor in order to maintain his action is an essential part of the law of this case, and is to be regarded in the assessment of damages, if any. The award was of a sum of money — even if of a particular description, still of money— and for the non-payment of money the only remedy known to the law is a judgment that the same now be paid; consequently if, in this case, the claimant was entitled to payment of money of a particular description and non-payment be proved, the judgment of this court must be that he now recover the sum named and described in the award. Thus upon a return of the notes he might, in his view of the law, be entitled to a judgment for the amount awarded in gold. If now the actual return of the notes and their tender here in court can be dispensed with as a formality, still their value as of the time they should be returned is to be accounted for, and the judgment is to be for the difference between gold and such notes as of the date of judgment.
    IX. The above is on the assumption that this court can estimate thesemotes at a value different from that imparted to them by an act of Congress, which assumption this defence wholly denies.
    X. The award of the Attorney General, whether considered as partaking of the nature of a judgment at law, or as by reference forming a part of the private act of Congress of February 22,1869, in either case imposed, in any view, upon the Secretary of State a mere ministerial duty, the performance of which should be enforced by the process of mandamus, and the non-performance of which furnishes no ground of action against the United States in the Court of Claims.
    XI. So far as necessary in support of the foregoing points, the constitutionality of the act of Congress, February 25, 1862, authorizing the issue of these Treasury notes, has been assumed. The Assistant Attorney General here merely reminds this court that its previous decision in favor of that constitutionality still stands as a valid judgment of the law of the land.
   Losing-, J.,

delivered the opinion of the court:

The petitioner claims $11,902 97, on an award made by the Attorney General of the United States, between him as surviving partner as aforesaid and the United States.

And the court finds the facts to be—

That, in 1857, several American vessels were captured and plundered by the Chinese, then at war with England. To redress these wrongs, a convention was concluded between our government and that of China, under which China paid in the manner provided, (12 U. S. Stat., 1081,) 500,000 taels in full liquidation of all claims of American citizens. The amount specified was paid in February, 1859, in debentures equivalent to coin, and from the use of which from time to time till 1864, the United States realized in coin $735,238 97.

By the act of March 3, 1859, (12 U. S. L., 408,) Congress authorized the President to appoint two commissioners to examine and adjust the claims presented under the convention. The commissioners were appointed and acted in China, and the claims allowed by them were paid, and the balance, amounting to $267,159 56, was remitted in sterling exchange equivalent to coin to the United States, and by them invested in their bonds known as the ten-forties.

Among the claims presented to the commissioners in China was that of William Nott & Co. for the loss of $16,197 60 in Mexican dollars, belonging to that firm and taken by the Chinese from the ship Neva. The claim was disallowed by the commissioners.

Under the act of Congress of 22d February, 1869, c. 44, entitled u An act for the relief of Nott & Co., ” the petitioner presented the claim of Nott & Co. to the Attorney General, who made the award thereon.

On the 8th day of March, 1869, the said Bichard B. Tyers, as surviving partner as aforesaid, constituted George M. Miller, his attorney.

On the 13th day of March, 1869, Mr. Miller, as attorney of the petitioner, called at the State Department, and claimed the payment of the award according to its tenor, and sought to see the Secretary of State,, and did not succeed in doing so. He was informed by Mr. Baker, the disbursing agent of the Department, at his office therein, that it was decided that the award should be paid in legal tenders, and not in coin, and Mr. Baker tendered to Mr. Miller the sum of $38,242 53 in legal tenders, and receipt therefor to be signed by Mr. Miller, as attorney for the claimant, which was as follows:

‘ ‘ Deceived of George E. Baker, agent for Department of State, $38,242 53 ‘legal tender,’ in payment of claim of Nott & Go., under the act of Congress (passed February 22, 1869) referred to in award of the Attorney General, of which the foregoing is a copy.

“ Washington, March 13,1869.

“$38,242 53.

“ GEOBGE M’OULLOCH MILLED,

“For NOTT & CO.”

Mi'. Miller objected to such payment, and informed Mr. Baker that he'(Mr. Miller) was not authorized to receive the legal tenders offered him in satisfaction of the award ,• to which Mr. Baker replied that although Mr. Miller took the amount in currency, he (Mr. Baker) supposed an appeal to the new Secretary on the decision, and for payment of the balance, would be open to the petitioner. Mr. Miller then signed the receipt, at the same time telling Mr. Baker he did so reserving the right of the claimant to appeal from the decision of the Secretary; then Mr. Miller gave the receipt to Mr. Baker, and from him received $38,242 53 in legal tenders.

The counsel for the defendants objected to the statements and conversation of Mr. Miller and Mr. Baker.

The petitioner at all times, and his former partners during their lives, bore true allegiance to the United States, and neither he nor they at any timein any way voluntarily aided, abetted, or gave encouragement to rebellion against said Government.

And we find as conclusions of law—

1. That said award was valid and bound the United States to pay the sum awarded thereby in gold or silver coin of the currency of the United States.

2. That the United States paid said sum of $38,242 50 in currency after due notice that the same would be received only at its market value, and on account of and not in full satisfaction of said award.

3. That said award was'not satisfied by the payment of said $38,242 50 in currency.

4. That the claim of the petitioner is not barred by his receiving the $38,242 50 in currency, as above stated, nor by the receipt given therefor.

The first question is on the validity of the award, i. e., whether its requirement that the amount awarded should be paid in gold was of legal obligation on the United States.

The money was received in coin, or its equivalent, from the Chinese government by the United States, to be paid by'them to Nott & Co., in or before February, 1859. It was then money had and received to the use of Nott & Co., and as such it was then a legal debt solvable in coin, for then no debts were solvable otherwise; and it would have been recoverable here on a claim for money, had and received, had no other tribunal been appointed first. It was then a debt due before the passage of the legal-tender acts, and by the decision of the Supreme Court in Hepburn v. Griswold it is not affected by those acts, and it could not be by any disposition or investment the United States might make of the coin they received during the pendency of the claim.

It was therefore a debt legally payable in coin, and the Attorney General had no right or power to order it to be paid in anything else, and the utmost that can be alleged is that his right and power were to order the amount to be paid in gold or silver coin, and he confined his award to gold. But we think this is not enough to vitiate the award; either gold or silver coin were lawful money, and his discretioh reached to any lawful money. Besides, the word “ gold” in the award is meant to distinguish between coin and currency, and in the contract means coin; it was so understood, and has been so treated in argument; and we so construe it, and think the award, as rendered, was solvable by the United States in gold or silver coin of the currency of the United States.

The next question is, whether the award has been performed.

Undoubtedly, where a creditor takes currency in payment of a debt, without objection, that is a payment of so many dollars; but if the creditor declares he will receive the currency only at its value, or on account, and retain his claim for the difference, and the debtor, without objection, lets the creditor have the money, that impliedly is the debtor’s assent to the creditor’s proposal.

And here the fact is found that it was distinctly notified and understood between Mr. Miller and Mr. Baker that the former received the money only at its market value, or on account, and would hold his claim on the United States for the balance, or the difference between the currency and coin.

It may be said that Mr. Baker, the disbursing agent of the Secretary’s office, was not the agent of the United St tes to receive such notice, and had no right to pay anything but currency. We think neither proposition is true. Mr. Baker was the secretary, in his absence, for the ordinary routine of the office, such matters as paying money and taking receipts, and the circumstances and occurrences connected with them; for they are details in official business ,that otherwise could not be done at all. And these matters, done at the Secretary’s office, and under his authority, are to be taken as transacted with the Secretary.

And the Secretary had a right to pay this award in coin, and he had no right to pay it in anything else. But he could, if he pleased, proffer payment in currency, and this he elected to do. And now the United States seek the advantage of this, and adopt such unauthorized act of the Secretary as their own, and thus make him their agent in doing it. But they thus make him their agent for the whole transaction between him and the petitioner. For they cannot make him their agent only for such part as they please, and disclaim his agency as to the rest of it. And if he was their agent in proffering the currency, he was their agent for receiving the reply it induced and the notice as to how the currency was taken; for the proffer and reply to it were parts of the same transaction. And the result is this, that the United States proffered the currency; that the claimant agreed to accept it at its real value, and retain his claim for the balance; and the United States, with notice of this, and without objecting to it, gave him the currency, and this was their assent to the claimant’s proposal. In this way the parties abided by their legal rights, as they should be judicially decided. This was the propriety of the circumstances, and what their respective agents intended.

The United States had no right, and the Secretary had from them no authority, to pay the award in currency; for the law, and the terms of the award, made it payable in coin only; and the acceptance of currency was optional with the petitioner. And when the United States seek to avail themselves of that acceptance, they can use it only with the conditions and on the terms which accompanied and qualified it.

The United States certainly had a right to say that the currency should be taken in full payment, or not at all; but they did not say this, and it cannot be inferred from the action of their agent which they now adopt.

The argument of the Attorney General referred to the form in which judgment should be rendered. This is directed by the decision of the Supreme Court in the case of Butler v. Horwitz, (7 Wallace, 258.) In that case the action was for rent, payable in English guineas, or other gold and silver. On appeal the Supreme Court said:

“The judgment was rendered on the result of two legal propositions : 1st, that the covenant in the lease required the delivery of a certain amount of gold and silver in payment of rent; 2d, that damages for non-performance must be assessed in the legal-tender currency. The first of these propositions is, in our judgment, correct; the second is, we think, erroneous.”

And in conclusion the Supreme Court say: “When, therefore, it appears to be the clear intent of a contract that payment or satisfaction shall be made in gold and silver, damages should be assessed and judgment rendered accordingly. It follows that in the case before us the judgment was erroneously entered. The damages should have been assessed at the sum agreed to be due, with interest in gold and silver coin, and judgment should have been entered in coin for that amount.”

In this case before us to-day, we hold that the original obligation of the United States and the award were payable in coin and solvable in nothing else; and, therefore, our judgment is for the amount due in gold and silver coin of the currency of the United States.

On the facts stated we find that the claimant is entitled to receive from the United States, in gold or silver coin of the currency of tbe United States, the difference between $38,242 53 in currency and iu gold on the 13th of March, 1869, amounting-to the sum of $11,902 97. And judgment is rendered and is to be entered for the claimant accordingly.

Nott, J.,

dissenting:

1. Congress, which made the law of this case, enacted and specially provided that whatever damages should be awarded by the arbitrator to the claimant, should be paid and payable only out of a certain trust fund, contributed by the Chinese government, for the liabilities of the Chinese government. This court cannot, I think, make the award payable in part out of the general appropriations contributed by the tax-payers of the United States for the debts of the United States.

2. When the private act of 22d February, 1869, was passed, the trust fund had been turned from gold into another currency. The arbitrator should have done what this court, under precisely similar conditions, in the abandoned or captured property cases did; he should have ascertained at what rate the gold sold, and then have made his award at that rate equivalent in currency. The claimant has no right to recover currency at any other rate of exchange, nor could the Secretary of State, nor can this court, help out and extend the terms of the award. The claimant should have gone back and had it corrected, when he found that it could not be executed in its defective form.

3. The agent of the defendants in this matter was the Secretary of State, and he paid the amount of the award in funds passing current among men, with the express avowal that it was payment in full. There is nothing in the objection that the agent of the claimant was authorized to receive payment only in gold. The objection had been good had the principal repudiated the transaction, but he received the money and ratified the act. I know of no case where a man has been allowed to accept a tender in full of a debt in what passed current as money and then sue for a part of the debt, as though it had not all been paid. And I am still of the belief, that where a tender is made in any representative of money, the creditor may take it as such, or may let it alone, and sue for the debt, but that he cannot do both.

4. The claimant asks this court to do what the Supreme Court bas decided no court can do, viz, transmute a debt payable in gold into another amount payable in currency. (Butler v. Horwitz, 7 Wall. R., p. 258.)

5. As to the power of this court to render a.judgment payable in gold, the relief has not been aslied, and the point has not been made, and I prefer not to pass upon the question till it has been presented.

The petition should be dismissed.

Pecic, J., did not sit in this case, and took no part in the decision.  