Broome v. United States/Dissent Campbell

Mr. Justice CAMPBELL.

I dissent from the judgment of the court in this case.

The certificate of the Comptroller of the Treasury, of his approval of a bond which it is made his duty to accept on behalf of the government, is the best evidence of the time of its delivery, as a valid and operative obligation. If another date is asserted by the government, the burden of sustaining it by clear proof, devolves upon it.

The instruction to the jury by the District Judge, 'that the time of the approval of the bond, at the Treasury Department, is not to be taken as the time of delivery,' was, in my opinion, too general, and is erroneous.

The District Judge further instructed the jury, that although the bond 'may not have come to the hands of the officers of the government' till after the death of one of the obligors, yet 'if they had parted with it for the purpose of sending it, or having it sent to Washington city, before that time,' that would charge the legal representative of the person who had died.

The delivery of a bond is only complete when it has been accepted by the obligee, or a third person, 'for, and in his behalf, and to his use.'

The terms I have quoted from the Touchstone, imply a cession of the title to the paper in the act of delivery.

The third person, who thus represents the obligee, is not subject to the mandate of the obligor, nor amenable to his control.

The instructions of the District Judge would be satisfied by any surrender of the custody of the paper, if for the purpose of having it sent to Washington city; whether it be to the agent or servant of the obligors, who would be subject to their orders, or by its inclosure in a letter, the delivery of which might be countermanded; in other words, by acts which did not amount to a surrender of the property or legal right to control the paper. This, in my opinion, was erroneous. With respect for the opinion of this court, I enter, therefore, my dissent to the judgment which affirms these instructions.