his goods upon paying duties upon the specie, or intrinsic value of the Austrian florin or currency.

The Act of March 2, 1799 is regarded the fundamental law in relation to imports and duties, and each of its enactments to be independent, forming a rule upon the particular subject, which is not changed by subsequent legislation varying other provisions of the act.

The like doctrine applies to the succession of Statutes which have followed the parent Act, and accordingly the law or imports and duties is enforced as a system composed of distinct enactments passed at successive periods of time, and each distinct provision is executed as part of the system, notwithstanding the change or repeal of other provisions in those acts, in relation to the denomination of imports, the rates of duties, or the methods of computing them.

This is sometimes by virtue of a saving clause appended to the same act, (4 Stats. at Large, 583, § 1,) and sometimes by declaring all provisions of any former law inconsistent with the Act last passed, repealed (5 Stats. at Large, 566 § 26,) and Act of 1846. (Sess. Laws 21, ch. 23,) the Act now in question; and by the decisions of the Courts on posterior enactments, anterior to the passage of the Act of 1846, the Treasury Department had treated the proviso to § 61 of the Act of March 2, 1799, as continuing in force, and duties were levied in conformity to its provisions. (Treasury Instructions to Collectors, Aug. 20, 1845; ibid. May 14, 1831; ibid. Oct. 16, 1832; ibid. Aug. 4, 1840.)

The last instructions from the Secretary of the Treasury, dated Oct. 12, 1849, directs that bonds taken for the production of consular certificates of the value of depreciated currencies must be strictly enforced, which imports the continuing operation of that proviso, because the consular certificates come into existence and have validity solely under the powers given by that proviso.

The Act of 1799, § 61, fixed the value of certain foreign coins, or currencies; so subsequently did the Act of March 3, 1801 ; and similar provisions were reenacted in 1832, 1843, 1845, and 1846-the three last Acts being framed in like terms and declaring the values of foreign coins, anything in any former Act to the contrary notwithstanding.

It is plain upon this summary statement of the course of legislation and praetice on the subject, that the proviso to 61 of the Act of 1799 is to be regarded as repealed only in the contingency that it stands opposed to subsequent Acts of Congress, and especially that of May 22, 1846.

The reason for its preservation and enforcement, as a relief secured to importers against the payment of ad valorem duties on amounts beyond the fair value of the merchandise imported, is the same at the present time as when it was enacted.

What then does the proviso require? Clearly not a disregard for the valuation of foreign currency designated by Statute, but only a method of determining whether that value remains unchanged, and the actual value corresponds with the nominal rate. The invoice must be expressed in the currency of the country from which the goods are exported, or in which they are produced. The nominal currency will necessarily very often give the cost or market value very wide from the truth. In the case before the Court it is proved beyond question that the goods imported are rated nearly 20 per cent above their actual value in Austria, and beyond the real cost to the importer.

This discrepancy is forced on him by the imperative direction of the revenue laws. He must invoice the goods at the cost or value expressed in the currency of Austria, although they are obtained at one-fifth less that amount in specie, and without the aid of the proviso he will be precluded showing the actual cost or value.

It seems to us the proviso acts no way in contradiction of the Statute of 1846. It supplies the Custom House a means of laying duties on invoices in conformity with the general provisions and scope of the revenue laws, and helps to carry out the intention of Congress by keeping the fluctuations of nominal value to the standard of specie value, in transactions in foreign currencies.

Congress do not make the foreign currencies named in the Statute receivable

in the United States at the values applied to them. Had that been so, the merchant might be considered protected by the opportunity of paying duties in the currency of his invoices. The proviso looks to a remedy for the injury that might without its aid be sustained by importers under the peremptory regulation of foreign coins and currencies as a measure of the foreign value of merchandise.

We think there is no incompatibility or inconsistency between the Acts subsequent to 1799, upon this subject, and the proviso, and that accordingly, neither by the terms of the Act of 1846, or those antecedent to it, nor by legal implication is the proviso repealed, or its legal operation suspended.

The business of the country was conducted on that understanding of the law antecedent to 1846, and collectors and the Treasury Department unitedly admitted importations and charged duties in conformity with regulations adopted by authority of the proviso.

The proviso was repugnant to the enacting clause of section 66 of the Act of 1799, precisely as it is to a like designation of the value of foreign currencies by the Act of 1846. That section in nearly identical language declared the value of various denominations of foreign moneys, but the proviso referring to the depreciation of foreign currencies in which the original cost of goods was exhibited, would necessarily include those specified in the enacting clause, equally with those not named.

There was no less necessity for the interposition of the President in relief of the merchant, when his invoices were made up in a currency which had depreciated after its valuation once determined by Congress, than where no rate of valuation had been established by law.

The proviso is accordingly framed to apply to all importations when the invoice is exhibited in a depreciated currency issued and circulated under the authority of a foreign government, and necessarily embraces equally those whose value has been once fixed by Congress, and those which have never been recognized by our laws.

The Treasury Circular of August 20, 1845, regards the proviso as in the alternative. Its directions relate to invoices made out in a foreign depreciated currency, or a currency the value of which is not fixed by the laws of the United States.

This, we think, the correct reading and exposition of the proviso to the 61st section of the Act of 1799.

Congress has since, from time to time ascertained the existing value of various foreign coins and currencies, and declared them by Statute. This relieved the Treasury Department from keeping on foot a train of investigations at every importation, respecting the value of the currencies in which the invoices were exhibited. The Statute value was adopted as the real one for the time being. But it was manifest such valuations must be liable to changes from the adulteration of coins or the emission of paper or base currencies abroad, and it was consonant with the general course of legislation in relation to the revenue, that a means should be supplied the Executive Department to maintain uniformity in imports and duties, without delaying the business of the country, or enforcing hardships or inequalities upon importers, until special legislation could be interposed to remove the difficulty.

The proviso supplied such means, and as its operation was so appropriate as well as effectual and just, we must conclude it to have been the purpose of Congress to retain it in force, when they have not in express terms rescinded it, or passed any enactment necessarily repugnant to it. On the contrary, it seems to us, that the proviso being essentially prospective, contemplating and arranging for a state of things which may come into existence at future periods, the Act of May 22, 1846, instead of being construed as repealing it, ought to be understood as upholding and sanctioning the powers conferred by it on the President.

Judgment must therefore be entered on the verdict for the plaintiff, and the amount be adjusted according to the stipulations or reservation of the case.

ACTION ON A BILL OF EXCHANGE-BANK CHECKS.

In the Superior Court, New York City, 1851. Before SANFORD DUER and CAMPBELL, Justices. G. W. Thatcher vs. The Bank of the State of New York and D. Thatcher.

On the 5th July, 1850, G. W. Thatcher, at St. Louis, Missouri, drew a bill of exchange on D. Thatcher, of Bridgeport, Conn., for $2,500, payable at the Bank of the State of New York, in this city, on the 5th Oct., 1850. The bill was accepted, and after being twice endorsed was sent to the American Exchange Bank for collection. On the day it became due, at or soon after 3 P. M., the notary of that bank presented it at the Bank of the State to a person at the paying teller's desk, (not the paying teller,) who said there were no funds to pay it. The bill was thereupon protested for non-payment, the usual notice thereof given, and it was returned to the holder at St. Louis, who claimed and received of the drawer, G. T. Thatcher, ten per cent damages, that being the rate allowed by the Statute of Missouri. It appeared that on the 5th Oct., 1850, the bank clerk of E. D. Morgan and Co., before 10 A. M., handed to the paying teller of the Bank of the State of New York, their certified check for $2,500, (the same as cash,) and asked him to pay the bill in question when presented that day. The teller took the check, but made no answer to the request. The check was subsequently received from him. This clerk had before left funds with the paying teller to take up paper accepted by D. Thatcher, and he testified he had been in the habit of leaving funds with other paying tellers to take up paper, and no teller ever refused to take the same. The paying teller of the American Exchange Bank testified that it was customary to leave funds with the paying teller, when the note is payable at a bank, and the party keeps no account there.

Neither of the Thatchers kept an account in the Bank of the State of New York, or ever had any funds deposited there to their credit. Some other facts appearing at the trial are mentioned in the opinion of the Court. At the close of the evidence, the counsel for the bank moved for a non-suit. The judge reserving the question, denied the motion, and gave a pro forma judgment for the plaintiff, from which the Bank appealed to the general term.

BY THE COURT-SANDFORD, J.-The action is founded wholly upon the neglect of the bank to pay the bill of exchange drawn by the plaintiff, and it was incumbent on him to establish that the bank had assumed or become liable to perform such a duty in his behalf.

The complaint alleges that the plaintiff or his agents left funds with the paying teller for the purpose of paying the bill; but there is no proof of that statement. It does not appear who furnished the funds, and inasmuch as it was presumptively the acceptor's duty to provide them, we certainly are not at liberty, in the absence of proof, to infer that they were furnished by the drawer. As the case stands, the money was delivered to the teller in behalf of the acceptor, and if the bank assumed any duty in the premises, it was to him, and he alone was entitled to an action for its neglect. There was no privity whatever between the bank and the drawer, the bank owed no duty to him, and if he can maintain this suit for damages, so can each of the endorsers to the extent of their damages and disbursements growing out of the protest of the bill. The proper course, on the plaintiff's case as proved, was for the acceptor to pay the protested bill, and then bring his action against the bank.

Assuming, however, that the drawer left the money, and can maintain a suit, how does the case stand? Was the paying teller the agent of the bank or of the drawer of the bill, in receiving the money in question? It appears that in this bank there were a cashier, a paying teller, and a receiving teller. Now we know and may assume (as was done 7 Hill 94) that the cashier is the principal executive officer of the bank. A bank is not bound to receive on deposit, or to keep, the funds of every man who offers money for that purpose. It may select its dealers, and refuse such as it pleases. For the purposes of this selection, the cashier appears to be the proper officer. The bank pays for its dealers, who

have funds to their credit, such bills and notes, accepted or drawn by them, as are payable at the bank. The latter circumstance is deemed an order of the depositor for the payment of the bill or note out of his funds deposited. But it is only in respect of its dealers, persons keeping an account with the bank, that this course of business exists or can exist.

A person may, no doubt, become a dealer, by a deposit made on the day his note or draft falls due, though never before in the bank; but his deposit must be made with the proper officer of the institution, and with the requisite assent to his becoming such dealer.

In this instance, there is, in the first place, no pretense that the cashier, or any officer of the bank except the paying teller, ever assented in any manner to the plaintiff's making a deposit or becoming a dealer with the bank. The first step toward establishing a duty of the bank toward the plaintiff is therefore wanting. Let us suppose this difficulty obviated, the next step is to show a deposit properly made, that is, that the money was left with an agent of the bank authorized to receive it. The person who left the money knew that the agent who received it was the paying teller, and not the receiving teller of the bank, and it cannot be said he was ignorant of the fact that there were two such officers. Indeed, there was no such idea advanced at the trial. Now the very names of these two agents indicate to every one the proper and widely different functions of each. The one is to pay the money of the bank; the other is to receive moneys for the bank. Dealers always pay their money to the receiving teller. When they draw money from the bank, or their notes or bills are presented made payable at the bank, the paying teller pays the amount to them, or to the holders of such notes or bills.

But we are not left to the inference derived from the names of these agents. The answer states that the proper receiving officer of the bank is the receiving teller, and that it was not within the duties of the paying teller to receive the money left in this instance, or to assume to pay the plaintiff's bill with it, and that it is not in the usual course of business to deposit moneys with the paying teller. The reply does not traverse the allegation as to the receiving teller being the proper receiving officer of the bank, but it alleges that the receiving of money by the paying teller, in the bank, during bank hours, is within the ordinary scope of the business of the paying teller and of the bank, and that his receipt and promise in the instance before us, were within his duties, and bound the bank.

The proof entirely failed to make out these allegations. It was shown that, in several instances, these same parties had left funds with the paying teller in the same way that these were left, but there was no proof that it was his proper function to receive them, or that it was in the usual course of business for him to receive funds in behalf of the bank. On the contrary, both the cashier and paying teller clearly prove that it is no part of his duty or business to receive moneys for the bank; and the teller testifies that when he does receive money for parties who do not keep an account in the bank, in order to pay notes they have drawn payable there, it is as a favor to such parties; he sometimes refuses --sometimes, when pressed very hard, he takes it for them, and keeps it separate from the money of the bank.

It is true the cashier appears to have known in a few instances, that the paying teller thus received money to pay notes and bills, and did not forbid it; but we cannot infer from this an assent of the bank that he should, in their behalf, receive money for that purpose. His duties as their agent were clearly defined, and the cashier's knowledge that he occasionally, while at the bank, acted for others, does not show that the bank adopted those acts.

So far from the proof showing that in this transaction the paying teller was the agent of the bank, it clearly shows that he was the agent of the party who left the money. The bank had nothing to do with the affair, nor was it intended that it should have. The drawer, it seems, was in the habit of drawing bills payable at this bank, but he kept no account or money there, and his sole objeet in this operation appears to have been to give a sort of currency to his bills because payable at a New York bank. If he had offered an account with the

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defendants' bank and kept funds there, the bank would have had the usual benefit of its dealings with depositors, and his bills would have been paid of course on presentment. The paying teller, and his substitute in his temporary absence, know as to those who keep accounts in the bank, and pay accordingly. But the drawer and acceptor chose to run the risk of meeting the bill at the proper moment, at the counter of this bank; and their transactions were simply for their agent to come to the bank on the day the bill fell due, and wait there in front of the paying teller's desk until the holder of the bill came in and presented it. The money would then be handed by their agent to the holder, and the latter would take it away. The bank derived and could derive no possible benefit from such a transaction; it was never intended that it should; and the bank was as ignorant of its occurrence as if it had been done outside of its building, instead of in its office. To avoid the trouble of waiting with the money at the bank counter for the bill to be brought in for payment, these parties resorted to the expedient of asking the paying teller to take the money they had brought, and when the bill came in, to hand it to the holder. He sometimes assented as a favor to them. There was no intention or expectation that the money should go into the hands of the bank, or be mingled with its funds. It was handed to the paying teller, because from his position in the bank, the bill would necessarily be presented to him for payment, and if he would take the money and retain it till the bill came in, it would save the time and attendance of the agent of the drawer, and acceptor. The same expedient has been adopted in reference to bills payable at another bank, as shown by the evidence, and it may be general in this city but it cannot alter the relation of the parties in the transaction. The paying teller, in such cases, becomes the agent of the parties who leave the money with him, and the bank is not responsible for his conduct in regard to it.

The case of the Manhattan Company vs. Lydig, 4 John. R. 377, was like this in principle. There the party, instead of delivering his money to the receiving teller of the bank, handed it, from time to time, to the bank's book-keeper to deposit it for him. The book-keeper kept part of the money; but, by false entries in the dealer's pass-book and in the books of the bank, concealed the abstraction from both. Sometimes in a pressure of business, this book-keeper assisted the receiving teller, and sometimes supplied his place in his absence, but none of the money in controversy was delivered to him on those occasions. The Supreme Court decided that the book-keeper in receiving these moneys was the agent of the party and not of the bank, and that the bank was not liable for that portion which did not come to the hands of the receiving teller or the person temporarily supplying his place in the bank, or which did not otherwise come into the coffers of the bank.

On the case made at the trial, the plaintiff was not entitled to recover. The formal judgment entered in his favor must be reversed, and a judgment rendered for the defendants.

COMMERCIAL CASES IN THE SUPREME COURT OF LOUISIANA.

The subjoined abstract of points in cases, decided in the Supreme Court of Louisiana, (Term 1851-52,) are derived from the carefully prepared reports of the Commercial Bulletin. They embrace points of great interest to mercantile and business men:

SPARKS ET AL. VS. STEAMER SALADIN AND OWNERS.-Slidell, J. Where a flatboat was tied to the bank at a place appropriated to that sort of craft, at a considerable distance from the landing assigned to steamboats, and a steamboat moving in a dense fog at night came in collision with and sunk the flatboat, and it appeared from the evidence that it was not usual at the place for flatboats thus moored to display a light and keep a man on the look-out, held, that there had been no want of conformity to custom, on the part of the flatboat, whereby a false confidence could have been given to an approaching vessel, and that the