
    BAILEY’S CASE.
    William Bailey et al. v. The United States.
    
      On the Proofs.
    
    
      ■Congress malee an appropriation for the claimants, subjects of Great Britain, resident abroad. An account therefor is stated at the Treasury, a warrant drawn, and draft issued. The draft is delivered to the claimants? agent, who indorses it in their names as attorney in fact, and receives the money. Sis indorsement is by virtue of a power of attorney from, them previously given. Subsequently the claimants bring an action against him, averring that it was their money paid to him for their use. He becoming ■insolvent, they discontinue the action before judgment and bring this suit.
    
    I. The Act to prevent frauds upon the Treasury, ^Sth February, 1853 (10 Staf. L., 171) does not attach turpitude to the assignment of a claim or the giving' of certain powers of attorney. It simply declares them void. Consequently no distinction can he made between the case of a non-resident alien and that of a citizen.
    II. 'Where a payment is made by the officers of the Treasury upon a power' of attorney properly authenticated, actually given, and sufficiently comprehensive in terms, its validity or invalidity under the statute is no longer in question, and no party to the transaction is at liberty to deny the effectiveness of the payment.
    HI. There are cases where a plaintiff, having two distinct forms of action against the same person, may discontinue one suit before judgment and bring another; and there are cases where a plaintiff, having a right of action against two distinct parties, may discontinue an action against one and sue the other before judgment; bub there are also cases where a plaintiff is put to his election at the first, and where his election as to whom ho will prosecute is final.
    IV. Where the officers of the Treasury paid the claimants’ money to their agent and they ratified the payment by bringing an action against him, it discharged the defendants as completely as if the claimants had stood by and directed the payment or had subsequently received the money, from the agent.
    V. Though fraud is ordinarily an element of estoppel, nevertheless where a payment is made to an agent without due authority of the principal, his gross carelessness in not disavowing the payment,' and long-continued neglect to put the defendants on their guard, and silence which operated to mislead and prevent them from pursuing their remedy against the agent, wilL constitute an estoppel.
    
      The Reporters1 statement of the case
    The following aretbe facts of this case as found by the court:
    I. The Congress of the United States, by an act approved July 7,1870, entitled “An act to carry into effect the decree of the district court of tlic United States for the southern district
    
      New York in tbe case of tbe British steamer Labuan,” ended tliat there be paid, out of any money in tbe Treasury not bherwise appropriated, to William Bailey, William Leetham, id John Leetham, of England, or their legal representatives, vners of the British steamer Labuan, $131,221.30, with inter-di from June 2,1862, to the time of payment, and $5,000 with-it interest, which moneys were declared by said act to be “ due ider a.decree of the district court of the southern district of ew York, pronounced March twenty-fifth, eighteen hundred id sixty-eight, on account of the illegal capture of the Brit-h steamer Labuan and her cargó by a cruiser of the United tates.”
    II. In pursuance of the said act of Congress, on the 11th of ily, 1870, an account between the United States and the perms named in said act ivas examined and adjusted by the First uditor of the Treasury, and admitted and certified by the nnptroller of the Treasury, wherein and whereby it Avas stated id admitted that the United States ivas indebted to William ailey, William Leetham, and John Leetham, owners of said earner, or their legal representatWes, in the sum of $200,070.34. íe account Avas in the Avords and figures following:
    o. 175000.] “ Treasury Department,
    “First Auditor’s Opeice,
    
      “July llth, 1870.
    “ I hereby certify that 1 have examined and adjusted an ae-uint between the United States and the parties hereinafter lined, & find that the sum of two hundred & eight thousand se hundred & twenty-one dollars is due from the United ;ates to them, under a decree of the district court of the U. S. r the southern district of Neiv York, pronounced March 25, ¡08, on account of the illegal capture of the British steamer ibuan and her cargo, by a cruiser of the U. S., which sum is lyable in pursuance of the proAdsions of An act to carry into feet the decree aforesaid,’ approved July 7th, 1870, adz:
    
      ) Wm. Bailey, Wm. Leetham, & John Leetham, of England, oAvners of said steamer, or their legal representatWes. $200, 070 34
    ¿ssrs.De Jersay & Company, part owners of the cargo of said steamer, or their legal representatives..... $5,379 49
    ?ancisco Amendiaz, of Matamoras, Mexico, part owner of said vessel, or his legal representatives. $3, 071 04
    $208, 521 47 as appears from tire statement and vouchers herewith transmitted for the decision of the Comptroller of the Treasury tbereon, $208,521.47.] “T. L. SMITH,
    “ First Auditor.
    
    “To the Comptroller oe the Treasury.”
    
      “ Comptroller's Oeeioe.
    “I admit and certify the above balance this eleventh day oi July, 1870.
    “It. W. TAYLEIi,
    “ Comptroller.
    
    “ Special. — R. W. T.
    “ To the Register oe ti-ie Treasure.”
    III. On the 12th day of July, 1870, a warrant was issued or the account and certificate described in the foregoing proposi tion in the words and figures following:
    Treasury settle,sent warrant. “TREASURY DEPARTMENT.
    No. 818.
    $208,521.17
    Appropriations
    Payment foi the illegal capture of the Biitish steamer Labunn and cargo, per act July 7th, 1870 .$208,521 17
    » 8. \Vm. Bailey, Wm. Leet-luun & John l.eetham. of England, owners, or their legal representatives. . . 200,070 31
    8. HeJersay & Company, part owners of the caigo of said steamer, or their legal representatives. ,370 19
    :8. Francisco Amending, of Matamoras, Mexico, part owner of the cargo of said vessel, or his legal icpre-sentatives. 3,071 Gi
    Hee’d 3,711
    C. F. PKClf,
    
      A Korney.
    
    \V. p. M \V. P. J. H. S.
    
      “ To the Treasurer of the United States greeting:
    “Pay to the following parties, as mentioned in the margin,* or order, t( be charged to the appropriations namec in the margin, two hundred and eigb thousand fire hundred & twenty-on< dollars and forty-seven cents, due oi settlement] pursuant to a certificate o the First Comptroller, No. 175006, da-tec the 11th day of July, 1870, recorded In the Register. For so doing this shal be your warrant.
    “ Given under my hand and the sea of the Treasury Department this 12tl day of July, in the year of our Lord om thousand eight •hundred and seventy and of Independence the ninety-fifth.
    “ J. F. Hartley,
    
      11 Assistant Secretary.
    
    “C. T. C. R. ofE., 12.
    “ Countersigned:
    “T. G.
    “R. W. Tavler,
    
      “First Comptroller.
    
    “Registered:
    “R. P. E.
    “John AllisoN,
    
      uBegister.
    
    12 “Oeeioe oe the Treasurer
    “OE THE UNITED STATES.
    
      “Deceived for this warrant tbe following draft:
    No. 3713, on Treasurer. 200, 070 34
    No. 3714, on New York. 5,379 49
    No. 3715, on “ “ . 3,07164
    208, 521 47
    “Special. — B. W. T.
    “A. B. Godeeeroy.”
    (Form No. 10.)
    IT. On tbe I2tb day of July, 1870, a. draft, No.. 3713, on tbe warrant described in tbe foregoing’ proposition, was issued on tbe- Treasurer of tbe United States, in tbe words and figures following:
    
      “Draft lío. 3713 on Treasury Warrant No. 848.
    $200,070^-0-.] “Treasury op the United States,
    “ Washington, D. C., July 12, 1870.
    “ Treasury proper, pay to Win. Bailey, Win. Leetbam, & John Leetbam, of England, owners, or tbeir legal representatives, or order, two hundred thousand & seventy -^0- dollars.
    “ L. E. Tuttle,
    “ Ass’t Treasurer of the United States.
    
    “Begistered July .12,1870.
    “John Allison,
    
      “Register of the Treasury.
    
    “Treasurer U. S., Washington, D. C.”
    
    V. On tbe same day, July 12,1870, tbe said draft described in tbe fourth proposition was delivered, and tbe proceeds thereof and tbe moneys therein specified were paid to one A. E. God-effroy.
    YL The moneys specified in said draft were paid to the said Godeffroy in accordance with an order indorsed on the back of the said draft by the Comptroller of the Treasury, in the following words:
    “ Pay on the endorsement of A. E. Godeffroy, attfy in fact.
    “B. W. Taylbr,
    “ ComptrollerP
    
    
      And upon the following indorsements made by the said A E. Godefiroy:
    “ Wsl Bailey,
    “By A. E. Godeffroy,
    “ Affiy in Fact.
    
    “JOHN LEETHAM,
    “ By A. E. Godeffroy,
    “ Att’y in Fact,
    “William: Leetham,
    “ By A. E. Godeffroy,
    “ Atty in FactF
    
    VII. The payment of the moneys specified in said account warrant, and draft, described in the foregoing propositions was made upon and in pursuance of the said direction an.c authority made and given in writing by the Comptroller of thr Treasury on the back of the draft described in the foregoing propositions, and of the indorsements made thereon by the said A. E. Godeffroy.
    VIII. The said direction made on the back of the said draft described in the foregoing propositions by the Comptroller oi the Treasury, and the indorsements thereon by the said A. E, Godeffroy, were made by no authority or warrant save that conferred by a warrant of attorney executed by William Bailey, William Leetham, James Leetham, and Elizabeth Leetham, on the 6th day of February, 1869, and which is in the words and figures following:
    “ [One pound ten shillings. Hull, 13, 11, 68.]
    “ Know all men by these presents, that we, William Bailey, of the borough of Kingston upon Hull, ship-owner; William Leetham, of the same borough, ship-owner; James Leetham, also of the same borough, ship-owner; and Elizabeth Leetham, of the city of York, widow, now or late owners of the steamship or vessel called the ‘ Labuan,’ late of Hull, of the burthen of seven hundred and twenty-three tons net register, or thereabouts, have, and each and every of us hath, made, ordained, constituted, and appointed, and by these present's do, and each and every of us doth, make, ordain, constitute, and appoint A. E. Godeffroy, of -New York, in the Hnited States of America, merchant, to be our true and lawful attorney, for us and in our names and on our behalf, and to and for our own use and benefit, to receive from the ’Government of the Hnited States of America, and from all and every person or persons whom it may concern, to pay or satisfy the same, all and every sum and sums of money which now is or are or may become due and payable to ns with reference to the above-named steamship or vessel 1 Labuan,’ together with all charges, damages, interest, and expenses whatsoever due in respect to the same steamship, and upon receipt thereof, or of any part or parts thereof respectively, to sign and give or to sign, seal, execute, and deliver, good and sufficient acquittances, releases, and discharges for the same respectively, and upon non-payment of the moneys, to take, commence, and prosecute for us, and in our or any of our names, or in the name of our said attorney, all necessary and lawful and proper remedies, actions, suits, expedients, or means for the recovery, receiving, and getting in the same, as he, our said attorney, símil think proper: We, the said William Bailey, William Leetham, James Leetham, and Elizabeth Leetham hereby ratify and confirm all and every matter or thing which he or our said attorney shall lawfully do or cause to be done in and concerning the premises by virtue of these presents.
    “ In witness whereof we have hereunto set our hands and seals 1he sixth day of February, in the year of our Lord one thousand eight hundred and sixty-nine.
    SEAL. “William Bailey.
    “WilliaM Leetham. seal.
    •“ James Leetham. SEAL.
    “ Elizabeth Leetham. seal;
    “ Signe 1, sealed, and delivered by the said William Leetham and James Leetham, in the presence of—
    “Will. Henry Moss,
    “ Ifotary Public, Jfall.
    
    “Signed, sealed, and delivered by'the said Elizabeth Lee-tham in the presence of—
    “Wm. Lawton,
    “ Notary Public, Yorlc.
    
    “Signed, sealed, and delivered by the said William Bailey, in the. presence of—
    [SEAL.] “ C. A. MlTNRO,
    No. 19. $2. “ Cornil U. S. A., Lisbon.”
    
    [Fifty cents, 50. 50 entry of goods. Endorsed : Godeffroy.]
    
      “ To all whom these presents shall come:
    
    “I, William Henry Moss, notary public, duly authorized, admitted, and sworn, residing and practicing at the borough of Kingston upon Hull, in that part of the United Kingdom of Great Britain and Ireland called England, do hereby certify that I was present on the fifth day of February, one thousand eight hundred and sixty-nine, and did see William Leetham sign, seal, and deliver the power of attorney on the other side written, and bearing date the sixth day of February, one thousand eight hundred and sixty-nine, and that I was also present on the sixth day of February, one thousand eight hundred and sixty-nine and did see James Leetham sign, seal, and deliver th( said power of attorney, and that the names 1 William Leetham and 1 James Leetham,’ appearing at the foot thereof, are of tin respective proper hands writing of the said William Leethan and James Leetham. And I further certify that the name ‘ Will Henry Moss,’ also appearing as the person before whom the said power of attorney was signed, sealed, and delivered by the said William Leetham and James Leetham, is of the propei handwriting of me, the said William Henry Moss.
    “ In testimony whereof Ihavehereunto set my hand and affixeci my seal of office this sixth day of February, one thousand eighi hundred and sixty-nine.
    [seal.] “ Will. Henby Moss,
    
      11 Notary Public, Null.
    
    “ In testimony whereof I have hereunto set my hand ant affixed my seal of office this sixth clay of February, one thou sand eight hundred and sixty-nine.
    [seal-1 “Will. Henby Moss,
    
      “Notary Public, Hull?
    
    
      “ To all idiom these presents shall come:
    
    “I, William Lawton, notary public, duly authorized, ad mitted, and sworn, residing and practicing at the city o: York, in that part of the United Kingdom of Great Britain anc Ireland called England, do hereby certify that I was presen' on the eighteenth clay of February, one thousand eight kundrec and sixty-nine, and did see Elizabeth Leetham sign, seal, anc deliver the power of attorney on the other side written, anc bearing date the sixth day of February, one thousand eigh hundred and sixty-nine, and that the name£ Elizabeth Leetham, appearing at the" foot thereof, is of the proper handwriting o: the said Elizabeth Leetham. And I further certify that- the name of1 William Lawton,’ also appearing as the person before whom the said power of attorney was signed, sealed, and de liverecl by the said Elizabeth Leetham, is of the proper hand writing of me, the said William Lawton.
    “ In testimony whereof I have hereunto set my hand anc affixed my seal of office this eighteenth day of February, one thousand eight hundred and sixty-nine.
    [seal.] “Wm. Lawton,
    
      “Notary Public, Yorl;.
    
    “ Hull, 20th February, I860.
    “I hereby certify that the within is the signature of Willian Lawton, a notary public at York.
    [seal.] “ Henby T. Atkinson,
    “ U. 8. Consular Agent.
    
    
      
      “ Hull, 20th February, 1869.
    [oss, a notary public at Hull. “ I also certify that the within is the signature of Will. Henry
    [SEAL.]
    
      a Henea T. Atkinson,
    
      u U. 8. Consular Agent.”
    
    Record, pp. 64 & 66.
    IX. In the month of August, 1870, the attorney in fact for m said William Bailey and William Leetham, James Leetham id Elizabeth Leetham, executors and executrix of the said John eetham, deceased, the owners of the steamer Labuan, named in ád act of Congress, duly authorized thereto by a power of attor-iy, executed in the month of August, 1870, made a demand i the Secretary of the Treasury on behalf of the said owners ' the said steamer Labuan, and their legal representatives, r the moneys appropriated by said act of Congress and special in said account, warrant, and draft described in the fore-)ing propositions, but iiayment thereof to said attorney in ct was refused because payment had already been made to e said A. E. Godeffroy.
    X. The said William Bailey, William Leetham, and John mtham have not, nor has any one of them, nor have their gal representatives, or the legal representatives of either of .em, iior has any person duly authorized on their behalf, re-ived the moneys appropriated by said act of Congress and ecified in said account, warrant, and draft, or any part thereof.
    XI. The said owners of the said steamer Labuan, named in id act of Congress and in said account, warrant, and draft, did 4, nor did any or either of them, nor did their legal represent-ives, or the legal representatives of either or any of them, ike or execute after the passage of said act, or at any time ter the statement of said account and the issue of said war-nt, any power or warrant of attorney whatsoever, or any amsfer or assignment whatsoever to the said A. E. Godeffroy relation to the claim and indebtedness described- in said act Congress, and in said account, warrant, and draft.
    XII.. The said owners of the said steamer Labuan, named in id act of Congress, and in said account, warrant, and draft, ,ve not at any time since the passage of the said act of Con-ess, nor have any or either of them, or theirlegal represent-Lves, or the legal representatives of either of .them, made or ecuted any power or warrant of attorney save and except a 32 c G power or warrant of attorney executed to A. K. Iiollit, esq., tbe month of August, 1870, and a power or warrant of attorn executed to Edwin Gerard on tbe 22d of November, 1873. 3 moneys bave been paid iu respect of tbe said claim and indel edness described in said act of Congress, account, warrant, ai draft, under or by virtue of said powers or warrant of attornc or either of them. ■
    XIII. Tbe said owners of said steamer Labuan, named said act of Congress, and in said account, warrant, and draj have not at any time since tbe passage of said act of Congre. nor bave their or either of their legal representatives made a transfer or assignment of tbe said claim or indebtedness ( scribed in said act of Congress, or iu said account, warrant, draft, save ancT’except an assignment made and executed on t 1st day of March, 1871, whereby tbe said William Leetha James Leetham, and Elizabeth Leetham, executors and exec trix of the will of the said John Leetham, transferred to t said William Bailey and William Leetham all the interest the estate of the said John Leetham, deceased, in the sc judgment entered by the district court of the southern distr of New York, and in the moneys appropriated by the said t of Congress, and constituted the said William Bailey and W iam Leetham, jointly, and each of them severally, the attornc in fact of the estate of the said John Leetham, deceased, wi authority to prosecute for them and in their names, or in il names of the said attorneys, or either of them, all suits necl sary for the recovery of said moneys.
    XIV. The owners of the said steamer Labuan, at the time the passage of said act of Congress, were William Bailey, i owner of ff; William Leetham, the owner of §&; William L tham, James Leetham, and Elizabeth Leetham, executors John Leetham, deceased, thejoint owners of -fc. They were British subjects and residents of York and Hull, England.
    XV. William Bailey, the petitioner, is the identical Willi: Bailey named in the act of Congress referred to in the fi proposition, and was the owner of of said steamer.
    XVI. William Leetham, named in the act of Congress as c of the owners of said steamer, died on the 14th day of Janua 1875. He was the owner of said fjr of said steamer. The pc tioners, Sarah Leetham and Henry Cooper Gleadow, are legal representatives.
    
      XVII. John Leetham, named in said act' of Congress as one f the owners of said steamer, died on the 28th of March, 1862, nd the said William Leetham and James Leetham were executes and Elizabeth Leetham was the executrix of his will.
    XVIII. Tííe petitioner William Bailey is one of the persons amed in said power of attorney and assignment, and the peti-oners Sarah Leetham and Henry Cooper Gleadow are the legal jpresentatives'of the said William Leetham, deceased, assignee nd attorney in fact named in said power of attorney and as-ignment.
    XIX. The petitioners are British subjects, as were all the wners, named in the act of Congress referred to in the first roposition, and none of them voluntarily aided, abetted, or ave encouragement to the late rebellion.
    XX. Citizens of the United States have a remedy against he Government of her Britannic Majesty, in cases like that set orth in the petition in this case, similar to that which the pe-itionérs now seek to enforce in this court.
    XXI. The claimants in May, 1871, instituted a suit against be said A. E. Godeffroy, and filed therein the following com-laint, which was served on the 29th day of May, 1871.
    This suit was not prosecuted to judgement, but was dismissed n the 28th day of February, 1879, by the following order:
    : Court of common pleas for the city and county of New York.
    William; Bailey and William Leetham
    against
    “Adolphus E. Godeeeboy.
    “ Trial to be had in the city and county of New York.
    “The complaint of the above-named plaintiffs respectfully hows:
    “ That heretofore, and in the life time of John Leetham, late f Hull, England, the plaintiffs above named, together with he said John Leetham, were the owners of a certain steam-hip or vessel called the Labuan.
    “ That on or about the first day of February, in the _y ear one housand eight hundred and sixty-two, the said steamer was iezed by an armed vessel of the United States and brought uto the port of New York, and there libelled in the district ourt of the United States for the Southern district of New fork, by the attorney of the United States for the southern istrict of New York, in the name of the United States of America, as liable to be condemned as prize.
    
      “That the plaintiffs intervened in said cause, claiming tl said vessel as owners, and such proceedings were had th, after the rendition of a decree dismissing the said libel and i leasing the said vessel a reference was ordered by the sai court to a special commissioner to ascertain and report tl amount of damages sustained by the claimants by reason of tl seizure and capture of the said vessel.
    “ That subsequently, and on or about the twenty-fifth day March, in the year one thousand eight hundred and sixty-eigb the said special commissioner having made his report, by whi< it, among other things, appeared that the plaintiffs, as owne: of the said steamer Labuan, had sustained damages by reasc of the said siezure and capture to the amount of one hundre and eighty-one thousand eight hundred and twenty dollars an sixty cents, final judgment was rendered in the said cause i favor' of the said William Bailey aud William Leetham again,1 the libellants and captors for the said sum so reported due, c the ground that the said captured property was not lawful pris of war, as by the said judgment still remaining of record in tl office of the clerk of the district court of the United States fi the southern district of New York, at the city of New Yor reference being thereto had, will more fully appear.
    “And the said plaintiffs further show that subsequently, an on or about the seventh day of July, in the year one thousan eight hundred and seventy, by an act of the Congress of tl: United States, entitled ‘ An act to carry into effect the deerc of the district court of the United States for the southern di trict of New York, in the case of the British steamer Labuai which act was duly approved by the President of the Unit( States on the said seventh day of July, one thousand eight hu dred and seventy, it was enacted as follows, that is to say:
    “ ‘ [Private. — No. 18.]
    “ ‘AN ACT to carry into effect the decree of the district court of t. United States for tlie southern district of New York, in the case of tl British steamer Lahuan.
    
      “ ‘Be it enacted by the Senate and Souse of Representatives of t United States of America in Congress assembled, That there 1 paid out of any money in the Treasury, not otherwise appr printed, to William Bailey, William Leetham, and Jno. Leethai of England, or their legal representatives, owners of the Britis steamer Labuan, one hundred and thirty-one thousand two hu: dred and twenty-one dollars and thirty cents, with intere from June second, eighteen hundred and sixty-two, to the tin of payment, and five thousand dollars without interest. Ah to Messrs. De Jersey and Company, of England, or their leg representatives, part owners of the cargo of the same steame three thousand six hundred and thirteen dollars and ninety-tv cents, with interest from May twenty-first, eighteen hundrt d sixty-two, to tbe time of payment; and to Francisco Amen-az, of Matamoras, Mexico, or bis legal representatives, part mer- of tbe cargo of tbe same. steamer, two thousand and ity-seven dollars and seventeen cents, with interest from June ctb, -eighteen hundred and sixty-two, to tbe time of payment, cb sums being due under a decree of tbe district court of tbe aited States for tbe southern district of New York, pronounced arch twenty-fifth, eighteen hundred and sixty-eight, on ae-unt of the illegal capture of tbe British steamer Labuan and r cargo by a cruizer of tbe United States. “ ‘Approved July 7th, 1870.7
    “And tbe said plaintiffs further show that on or about tbe •elfth day of July, .one thousand eight hundred and seventy, ider and in pursuance of the said act of Congress, a draft or eck was issued by the Treasury Department of the United ates, bearing that date, addressed to the Treasurer of the aited States, directing the payment to these plaintiffs, William liley, William Leetham, and to the said John Leetham, who is then deceased,’ or to their legal representatives or order, o hundred thousand and seventy dollars and thirty-four cents, lich draft or check was on or about the said twelfth day of ily, one thousand eight hundred and seventy, delivered to the id defendant as the attorney in fact of the said plaintiffs, and in eir own right, and of Elizabeth Leetham, James Leetham, and e said William Leetham, as executrix and executors of the last 11 and testament of the said Jno. Leetham, deceased. That said fendant thereupon endorsed the said check in the names of ese plaintiffs and of the said Jno. Leetham, then deceased, as torney in fact of the said plaintiffs, and of the said John ntliam, and as such attorney in fact received from the Treas-y Department of the United States the said sum of two hun-ed thousand and seventy dollars and thirty-four cents, men->ned in the said draft or check, for the use of the said plaints, and of the said executrix and executors of the said last 11 and testament of the said John Leetham, deceased.
    “ That the said money was so had and received by the said fendant undfer and by virtue of a power of attorney in writing ecuted by the said plaintiffs in conjunction with the said ex-atrix and executors of the said Jno. Leetham, deceased, bear-I' date the sixth day of February, in the year one thousand >ht hundred and sixty-nine.
    “And the said plaintiffs further show that the said John setham departed this life on or about the twenty-eighth day of arch, one thousand eight hundred and sixty-two, having pre-nxsly duly made and published his last will and testament in e form of law, bearing date the third day of September, one ousand eight hundred and fifty-seven, by which will the said stator appointed his wife, Elizabeth Leetham, executrix, and illiam Leetham and James Leetham, executors thereof, and that said will was duly proved by the said executrix aud exeei tors in the York district of Her Majesty’s court of probate, in thi part of the United Kingdom of Great Britain and Ireland calk England, being the court havingjurisdiction thereof, on the nini day of May, in the year one thousand eight hundred and sixt; two; and that the said executrix and executors duly qualifk as such in accordance with the laws of the said United Kin; dom in that behalf.
    “And the said plaintiffs further show that heretofore, to wi on or about the first day of March, in the year one thousan eight hundred and seventy-one, the said executrix and exec tors of the last will and testament of the said Jno. Leethar deceased, by an instrument in writing, by them duly execute under their respective hands and seals, and delivered to tl plaintiffs, bargained, sold, assigned, transferred, and set ov< unto the said plaintiffs all their interest as such executrix an executors in the said claim of damages against the Governmei of the United States, and the said judgment recovered there® and in the moneys appropriated by the Congress of the Unite States by the aforesaid act to tbe payment thereof, and the sa moneys so collected and received as aforesaid from the Gover ment of the United States by the said defendant as the attorm in fact of the said plaintiffs, and of the said executrix and e: ecutors of the said John Leetham, deceased, as by the sai instrument now in the possession of the said plaintiffs, read to be produced and proved as the court may direct, referem being thereto had, will more fully appear.
    “ Aud the said iilaintiffs further show that payment of tb amount so collected by the defendant as aforesaid has bee duly demanded by the plaintiffs of tbe said defendant befoi the commencement of this action, but that he has hithert wholly neglected to pay over the same or any part thereof.
    “The plaintiffs therefore demand judgment in this actio against the said defendant for the said sum of two hundre thousand and seventy dollars and thirty-four cents, with intere thereon from the twelfth day of July, in the year one thousai eight hundred and seventy, besides the costs of this action.
    “Barlow, Larocque & McFarland,
    
      UA ttorneys fo’ Plaintiffs.”
    “At a trial term of the court of common pleas for the city ai county of New York, held at the court-house in the city of Ne York, on the 28th day of February, A. D. 1879.
    “Present, Hon. Charles P. Daly, one of the judges.
    “William;Bailey and William ] Leetham, plaintiffs, | against “Adolphus E. Godeeeroy, de- | fendant. j
    “On motion of Barlow, Larocque & MacFarland, attorneys i the plaintiffs, and on reading and filing the consent of the t 
      nneys for the respective parties thereto, which is hereto ap-endéd: It is ordered that this action be, and the same is ereby, discontinued without costs to either party as against le other.”
    
      Mr. J. Radley Ashton and Mr. Nathaniel Wilson for the claini-nts:
    The court has jurisdiction of the claim. The act of 1870 xpressly declares that the moueys appropriated to the claim-nts are “due” under the decree of the district court of the inited States, in the case of the British steamer “Labuan.” Vhen the act was passed, the amount decreed to the claimants y that court became “due” under a law of Congress, and the laim for the money thus “due” is, therefore, within the very rords of the Revised Statutes (§ 1069), a claim founded upon i law of Congress. But the act of 1870 also raises, as shown a the opening brief for the claimants, an implied promise on he part of the United States to pay the claimants the amount Leereed by the district court, and appropriated by that act or the satisfaction of the decree. The United States, upon the >assage of the act, became obligated to pay that amount to the laim'ants, as much so as if a bond, under the seal of the United States, had been issued and delivered to the claimants for the [.mount appropriated. {Kaufman’s Case, 96 U. S., 569; United states v. Sherman, 98 U. S., 567.)
    No money has ever been paid to the claimants, the cred-tors, or to any person legally authorized to receive payment >f the debt for them; and, therefore, whatever payment was nade was no payment, so far as the claimants and their debt ire concerned. And this is enough to entitle them to a re-lovery of the amount in this court.
    The claimants cannot be affected with any responsibility for ¡he illegal payment of this money at the Treasury to G-odeffroy, md are not chargeable with any wrong or fault in connection vith that transaction, and the United States are, and should be, held solely and exclusively responsible in law for the payment of the money to that person and its consequent loss to the claimants.
    The fallacy of the argument on the other side consists in sedulously ignoring the character and relations of the claimants, i > were British subjects, resident in their own country, and who knew nothing, and were not bound to know anything, o the acts of Congress of July 29,1846, and February 26,1853 The defense proceeds upon the idea that the claimants partici pated in the violation of law committed in the payment of thif money to Godeffroy, and that the maxim in pari delicto potioi est conditio defendentis furnishes the rule of decision in the case
    If there was no delictum on the part of the claimants, there was no par delictum on their part, and the rule expressly re quires equal wrong in order that the law should leave the parties where it finds them. “ The maxim does not apply unless botl the litigating parties are in delicto; it cannot be insisted upoi as a"defense, either by or against an innocent party.” (Br. L M., 724.)
    No delictmn, fault, or blame could be imputable to the claim ants, under any circumstances, in this transaction, unless thej had actual knowledge of the acts of Congress which discredited and invalidated the power of attorney given to Godeffroy. and such knowledge on their part has not been shown by the government. The principle is settled in our jurisprudence that no one is presumed to know the law of a foreign country. The maxim ignorantia legis neminem excusat applies only to citizens: it has no application to foreigners. The law is presumed to be known only by the persons subject to it. Hence it is that a mistake in regard:to the law of a foreign country or state is treated in courts of equity, like any other mistake of fact, as proper ground of equitable relief. (1 Story Eq. Juris., § 140; Haven v. Foster, 9 Pick., 112; Leslie v. Bailie, (2 Y. & 0. 0. C., 91.)
    The common law of a foreign country may be proved by intelligent and respectable witnesses, but foreign statutes cannot be proved by parol. {Kenny v. Clarkson, 1 Johns., 385; Frith v. Sprague, 14 Mass., 455; McCormick v. Qarnett, 5 De Gex., M. & G., 278.)
    In excusing foreigners for ignorance of the law to which they are not subject, our law places them upon the same general footing on which the civil law placed minors, soldiers, women, and rustics.
    In Davis v. Bagley (40 G. 181) it was held that where an administrator paid out money belonging to a mother and children to the mother alone, on a mutual mistake as to the law, the administrator was liable to account to ber, although, she stood by and, in her own ignorance, permitted him to go wrong.
    It was the duty of the government to obey the act of 1853, and to protect these foreign claimants against the consequences if their own ignorance; and there can be no reason for excusing it from the performance of its duty to them, because the ilaimants without knowledge of its statutes gave a power of attorney, which those statutes declared void, to the man who ■eceived the money.
    Under the law of the country, the power held by G-odeffroy vas absolutely worthless for the purpose for which he presented' t at the Treasury. The government knew that fact. The ilaimants were in ignorance of it, and could not be presumed to mow it. And when the government concluded to depart from he law, it deliberately, in the light of knowledge, undertook he risk of what actually occurred, and cannot justly complain >f being made to bear the loss.
    The view thus presented takes this case entirely out of the icope and reach of the decision in the case of MoKmghtv. United States (98 U. S., 186.) The parties there were citizens of the Jnited States, who knew, and were bound to know, the law of he country.
    It would seem too blear for argument that if the original .uthority given to Godeifroy by the power of attorney pre-ented by him at the Treasury was “ null and void,” a subse-[uent assent, by parol or otherwise, to his act in collecting the aoney, could not cure the defect of the original authority. The raximis “ omnis ratihabitio retrotirahitur, et mandato prior cegui-arattcr.” But here there was a i>rior, but invalid and void, uthority; and a subsequent so-called- ratification could not, u this respect, stand upon a higher ground than the original .uthority.
    The argument on the other side ignores the well-settled dis-inction between the ratification of acts which are void, or which re illegal, or against public policy, and the ratification of acts, duck are voidable. In the former case the ratification is inop-rative for any purpose whatsoever, since “ the same noxious ualities adhere to the ratification as existed in the original ?ansaetion, and, therefore, the maxim may well be applied: hiod ab initio non valet, traotu temporis non convaleseii.” (Story n Agency, §§ 240, 241; Brook v. Kook,, L. B., 6 Ex., 89.)
    
      It is a settled rule, on tbe ground that a ratification operates as equivalent to a previous authority, that where the adoption of any particular form or mode is necessary to confer the authority, in the first instance, there can be no valid ratification except in the same manner; and thus, as an authority to execute deeds must be under seal, there cannot be a parol ratification of a deed executed without authority under seal; and where the vote of a corporation is necessary to authorize an agent to convey by deed, a ratification of such a conveyance must be' by vote. This rule is applicable to express ratifications, and also to ratification by such acts of recognition and acquiescence as operate as evidences'of assent. (Story on Agency, § 242; Wharton on Agency, § 83; Blood v. Goodrich, 9 Wend., 68; Dispatch Line v. Bellamy Manuf. (Jo., 12 N. EL, 23L. Grove v. Hodges, 55 Penn. St., 504.)
    Here the act of 1853 required a particular form and mode to confer the authority on the agent to collect the money. It is impossible, therefore, to see how a subsequent parol acknowledgment and ratification can affect the rights and liabilities of the parties to the transaction. (Brown v. Denman, 2 Exc., 167.)
    It is equally manifest that the institution of the suit against Godeffroy cannot raise an estoppel, precluding the claimants from denying that the money was rightfully collected, for it is abundantly clear that claimants derived no benefit or advantage whatever from that suit, nor was the government in any way injured or prejudiced by its'institution.
    Nor is it to be inferred, from anything in the case, that the claimants intended to acquiesce in the validity of the payment of this money to Godeffroy, by suing him for the money; and it is equally impossible to say, as already observed, that tin government relied in any manner upon that suit to its prejudice. Acts of ratification, to be sufficient, must be something by which the party, by relying on them, has been prejudiced. (Harris v Miner, 28 Ill., 135.)
    ■ In the great case of Taylor v. Plumer (3 M. & S., 562,] the doctrine is established that fhe owner is entitled to pursue his property, in whosesoever hands he may find it, and into what ever other form it may have been converted.
    And in Hunter v. Prinsep (10 East, 378, 394) the questioi distinctly arose whether an action of assumpsit by the owner o a carg'o against the owner of the ship for the proceeds remittee to the latter by the master, upon an illegal sale of the cargo, so affirmed the masters act in selling the goods as to entitle the defendant to retain for the freight pro rata itineris. Lord Ellen-borough held that it did not, and that the only effect of this form of action was to waive any complaint, with a view to damages, of the tortious act by which the goods were converted into money, and to confine the plaintiffs right to a recovery of the net proceeds of the sale.
    The principle of that decision is entirely applicable here. The money which ought to have been paid to the claimants had wrongfully got into the hands of Godeffroy, and the' claimants could sue to recover it without affirming’ that it had been rightfully paid to him, or that the debt, as between them and the United States, had been discharged by that payment.
    We respectfully submit' that the principles of law as to the election of actions do not support the view on the other side, that the debt, as between the United States and- these claimants, is to be deemed discharged and extinguished by this action against Godeffroy, or that they are estopped from denying that their claim against the United States is not satisfied, by the bare fact that they sued Godeffroy for the money which came into his hands in July, 1870.
    The subject of election is commonly treated as a branch or department of the law of estoppel, and the cases usually refer to the doctrines of equitable estoppel as furnishing the criteria for determining whether there has been such an election of one course of. proceeding as concludes the party, and precludes him from adopting and pursuing another course inconsistent with the first. Indeed, if the institution of the suit against Godef-froy is not a bar to the present suit, as we have shown it is not, on the ground that it was a legal and effectual ratification of his act in collecting this money, it could be held to be a bar only on one other ground, viz, that it operated as an estoppel, by deceiving the United States, or inducing them to alter their position, which it cannot be pretended was the case. (Story Eq. Juris., § 1543; Senshaw v. Bissell, 18 Wall., 271.)
    There must be a fraudulent purpose and a fraudulent result; there must be deception and change of conduct in consequence, in order to estop the party from showing the truththere must be some degree of turpitude which has misled others to their injury. And, as we have said, nothing of the kind can be pretended here, in regard to the institution of the suit against God-effroy. Peters v. Ballestier, 3 Pick., 495; Morris y. Robinson, 3 Barn. & Cress., 196.)
    The case of Priestley v. Pernie (3 .EL & C., 977) is further authority for the position we take here, that the claimants had the right, after discontinuing the suit against Godeffroy, to proceed against the government.
    Judge Story, in his work on Agency, had said that “our law, while it gives an election to the creditor to sue either the master or the owner, in a distinct and separate action, does not preclude the creditor by such an election from maintaining another action against the party not sued, unless in the first action he has obtained a complete satisfaction of the claim.” (Story on Agency, § 295.)
    Mr. Wharton is of opinion that the mere taking judgment against the agent should not, when the judgment is unsatisfied, extinguish the debt. But he admits that Priestley v. Pernie holds that suing to judgment, and that only, is a binding election, under the technical rules of the common law, to deal with the agent as alone liable. (Wharton on Agency, § 473.) In view of these principles and authorities, we submit that if the technical doctrine of election were applicable at all to such a case as this, there could be no election by merely bringing suit against Godeffroy; that nothing short of suing him to judgment could be deemed, under any circumstances, an election to hold him, and discharge the United States, which would be final and conclusive on the claimants; and that the fact of the institution of that suit cannot consequently be pleaded by the United States as a bar to the prosecution of the present suit in this court.
    
      Mr John 8. Blair (with whom was the Assistant Attorney-General) for the defendants:
    The remedy for the alleged wrong is by mandamus to the Secretary of the Treasury, instead of petition to this court. The remedy in England, as the record shows, would be by mandamus, and the only difference here is that this court has jurisdiction of claims founded on an act of Congress. The refusal to pay is in the nature of a tort. And it is questionable if the grant of jurisdiction extends to any form of controversy that might arise from an act of Congress which would not ordinarily be enforced by an ordinary action on contract.
    
      When private parties enter into a convention or engage in a transaction which is prohibited by law, the rale is that the courts will not intervene to aid or protect a party thereto claiming to have been injured thereby. (Br. M., L. 7th ed., 718; Sedg. on St. and Const. Law, 69; Crowder v. Long. 8 B. & 0., 598.)
    The paper in question may be void, so that the court will not admit it as evidence of authority, but the acts done under and in connection with it are not to be ignored. (McKnight’s Case, 13 C. Cls. R., 313; 98 U. S., 186. See also Miltenberger v. Cooke, 18 Wall., 421.) s
    The primal fact of this case, and one not to be lost sight of, is that the United States paid this money to G-odeffroy for claimants, and Godeffroy received it for them. At this point, as Swayne, J., says in the casfe of McKnight, “There was no indirection, concealment, or improper purpose on either side ”; “ there was nothing contrary to good morals or conscience in the payment or receipt of the money.”
    The course adopted by claimants after payment to Godeffroy was a ratification of his act, and was equivalent to a power of attorney duly executed between the 5th and 12th July, 1870.
    The acts and omissions of claimants amounted to such ratification and adoption within the McKnight decision.
    Claimants fail to disavow and repudiate Godeffroy’s act immediately on receiving information of payment to him.
    If the institution of this action (May 13, 1876) was not an act of disaffirmance, then to the present day there has been no repudiation.
    Between August, 1870, and May, 1876, Godeffroy had become insolvent. The United States by this acquiescence lost a legal remedy, to wit, its right of priority under section 15, Act 3d March, 1797 (1 Stat. L., 515).
    After demanding the money from Godeffroy, claimants brought an action against him to recover the money, which suit remained pending until 1879. There they expressly declared that Godef-froy as attorney in fact had received the sum in controversy for their use.
    Where an action is brought against, a third person, and defendant sets up that the person with whom he dealt assumed whithout authority to act as plaintiff’s agent, the bringing of the action is of itself a ratification of the unauthorized acts. 
      (Finney v. Fairhaven Insuremee Company, 5 Met., 192; Bich-areis v. Folsom, 2 Fairf., 70; Bryant v. Sheely, 5 Dana, 530.)
    A suit against the agent biinself works similar ratification. (Neiohall v. Dunlop, 14 Me., 180.)
    This ratification bad the same effect as an original authority to bind the principal, not only in regard to the agent himself, but in regard to third persons (Story on Agency, § 244); and a ratification once deliberately made, upon full knowledge of all the material circumstances, becomes, eo instanti, obligatory, and cannot afterward be revoked or recalled. (Ib., 250.)
    WJken demand was made by claimants on Godeffroy and suit brought, whatever right of action the United States had against Godeffroy ceased and ' determined. (Herman on Estoppel, §472.)
    This ratification made the power'd' attorney of February 6, 1869, as much an estoppel of Bailey’s claim against the government as was the receipt of Hart, followed by acquiescence in'the payment to McKnight & Bi chardson, an estoppel against his “setting up any claim against the government”. (98 U. S., 186.)
    Conceding, for the sake of the argument, that payment to Godeffroy ivas unauthorized, claimants had their option to pursue Godeffroy or the United States, and having made their election between two utterly inconsistent courses of action, they must be confined to that which they first adopted. (Stuyvesant v Davis, 9 Paige, 427; I)oe v. Williams, 7 Oar. & Payne, 322: Jones v. Carter, 15 M. & W., 718; Doe v. Birch, 1 M .& W.. 402; Dendy v. Nichols, 4 Common Bench, 386.)
    This doctrine of election is equally applicable to cases oJ agency. (Farmers’ Locm and, Trust Company v. Walworth, 1 Comstock, 433; Brewer v. Sparrow, 7 B., & C., 312; Kellei v. Munson, 7 Mass., 323; Merriclc’s Fstate, 5 W. & S., 9).
    The recital in the assignment of March 1,1871, that Godeffros received and retains this money as attorney in fact of claim ants, is of itself a ratification. (Green’s Case, Oro. Eliz., 3.)
    The act of July 7,1870, did not mean that if claimants shoulc ■wait nearly six years before enforcing their demand interesi should be paid.for the period covered by their dilatoriness and it did not mean that if claimants, after bringing suit should delay three years in closing their evidence, they should be rewarded by interest. (United States v. Sherman, 98 U. ¡8. 565.)
   Nott, J.,

delivered the opinion of the court:

Notwithstanding- the magnitude of this case and the ability with which it has been pressed upon the court by the claimants’ counsel, and the learning- which they have brought into the argument to sustain the claimants’ pmsition, we are constrained to say that the law appears to us to be so clearly against the case as to render it needless to state inore than our briefly-expressed conclusions.

1. The statute in this case (Act 26th February, 1853, 10 Stat. L., 171) does not attach any turpitude to the-assignment of a claim or the giving of a power of attorney such as was given by the claimants. It does not prohibit the giving of such assignments and powers, nor prohibit the officers of the government from acting upon them; it merely declares them to be void. Consequently no distinction, such as was contended for on the argument between the case of a foreigner resident abroad and that of a citizen having knowledge of our laws, can be maintained. The government was not in delicto in recognizing through its officers the authority which the claimants had given to their agent to receive the moiiej". The question is simply whether such a payment can be recovered over again by the principal, be he foreigner or be he citizen, because the statute declares such powers to be void.

2. Some distinction may be drawn between this case and McKnights (98 U. S., 179), inasmuch as there a receipt was given by the assignor which discharged the defendants’ debt to .him up»on its piayment to his assignees; but, without passing upon that distinction, we are of the opinion that where a payment is made upon a power of attorney properly authenticated, actually given and sufficiently comprehensive in terms, its validity or invalidity under the statute is no longer in question, and no jiarty to the transaction is at liberty to deny the effectiveness of the payment. Such powers of attorney belong to that class of obligations which may be void while they remain execu-tory, but which are to be treated as valid when they have become executed. Courts cannot enforce them; but if the parties voluntarily give effect to them, sound morality forbids that they should be allowed to question the effectiveness of what they have themselves accomplished.

3. The conduct of the claimants since the payment to their agent as effectually releases the government from all liability as if the money had actually been paid over to them by their agent. Their learned counsel have endeavored to maintain that the action which they brought against the agent in the courts of New York to recover this money would not preclude them from pursuing their present remedy against the government unless that suit had been prosecuted to judgment. But the cases cited on the argument to maintain the proposition, that the claimants could discontinue the former action against their agent and bring the present action against the government, belong, we appreliend, to a different class, and depend upon a different principle. There are cases where a plaintiff having two distinct forms of action against the same person may discontinue one suit before judgment and bring his second action in another form. In such the defendant loses no right, and gets his costs for the needless vexation of the first suit. He clearly is not in a position to say that the mere bringing of the first action constitutes a defense to the second. There are also cases where,.a plaintiff has a right of action against two distinct parties like those cited on the argument (Morris v. Robinson, 3 Barn. & Cress., 196; Priestly v. Fernie, 3 Hurl. & Coltman, 977) as to which it is said he may discontinue a suit against the one , and sue the other before judgment. But such cases really stand not on the ground of election, but on the ground of satisfaction — that it is only a satisfaction of the demand which operates to extinguish the cause of action and thereby preclude a second suit against another defendant. In England the doctrine is that a judgment recovered against one party is a thing of value) a constructive satisfaction, or that if the debt be not actually 'satisfied, it is at least merged and lost in the judgment. In this country the courts, following the reasoning of Story, have inclined generally to the doctrine that there' must be an actual and not a theoretical satisfaction of the debt. But whatever the doctrine, all courts have agreed in such cases that it was not the election to bring an action against this or that defendant, but the satisfaction or mpger of the debt which constitutes the defense.

4. But the present case belongs to- a class where the plaintiff owes something to the party who has paid money to his agent; where he has a good action against his own agent, provided he ratifies his act, but where he has no action whatever against dm unless be does ratify it. In such eases two things gener-blly, if not invariably, have been held: first, that the bringing if an action against the agent is a ratification of the payment o him; second, that a ratification once given is equivalent to n antecedent authority, and cannot be recalled. Though it be nnceded that the power of attorney was utterly void; though t be assumed that no power of attorney was in existence, that mne had ever been given; nevertheless, if the officers of the heasury paid the claimants’ money to their agent, and they atified the act by bringing their action against him, it discharged the defendants as completely as if the claimants had tood by and directed the payment, or had subsequently re-eived the money from him.

5. It is also manifest that the claimants’ election to pursue he money in the hands of their agent, averring as they did hat it was money paid to him for their use under and by virtue f their power of attorney, precluded the party who made the layment from suing the agent to recover it back; and it is íanifest that their neglect to disavow the transaction, or to ring the present action until after the agent had become insolent, operated to mislead the present defendants, and to pre-ent them from suing to recover back the money while it re-iained in the agent’s hands. It was one of those cases where party was bound to speak or forever hold his peace. It is rue that there was no fraud on the part of the claimants, and bat fraud is ordinarily an element of estoppel; but their gross arelessness in not disavowing the payment, and their long-con-inued neglect to put the defendants on their guard, and their ilence,'which operated to mislead the defendants and to pre-ent them from pursuing their remedy against the agent, con-fcitute an estoppel which precludes the claimants from now sserting that the payment was made without due authority.

' The judgment of the court is that the claimants’ petition be ismissed.  