Page:Federal Reporter, 1st Series, Volume 7.djvu/529

 UNION TRUST 00. OF N. T. V. 0. & L. H. B. 00. 517 �Personal liability if heused due care in the selection of his agent. If be had the power to authorize Mr. Bowes to eell the certificate for $2,500, I see no reason why he had not the same power to put the whole issue of $50,000 in his hands, and entrust him with the negotiation and sale. Suppose this had been done, and he had embezzled the money, would it he claimed that the receiver would not be liable? It isincredi- ble that a conrt would permit an agent to be appointed for the negotiation of these certificates, and relieve the receiver to that extent, without at least requiring from such agent a bond for the faithful performance of his duties. This was apparently the view taken by the supreme court of Illinois in Turner \. P. e S. R. Co. 95 111. 804, though the question is not discuBsed in the opinion of the court. It seems to me, then, that Bowes must be considered what he purports to be, viz., the payee of the certificate, and that the party buying of him dealt with him as the owner, and that the certificate in the hands of the petitioner is open to any defence which might exist if it were still in the hands of Bowes. I am not pre- pared to -say, even if the receiver had authority to make Bowes his agent to negotiate this certificate, that the mere indorsement of Bowes creates a presumption that he received its par value; and it is conceded that the receiver had no right to negotiate it for less than par. Indeed, I am inclined to think that the mere fact that the petitioner was able to purchase it at so large a discount so soon after it was issued, and with knowledge of the order under which it was issued, was itself sufficient to put him under inquiry. Bowes is dead, and his affidavit made before death cannot be received in evi- dence. Lane is the most material witness in this case, and it is exceedingly unfortunate that we have not the benefit of his testimony. No reason is given why it bas not been pro- duced. �Upon the whole, it seems to me quite clear that the peti- tioner does not stand in a position to charge the receiver fund with the payment of the certificate, and his petition must therefore be dismissed. ��� �