text: Talk:Rice v. Sioux City/Opinion of the Court


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Cheely v. Clayton

This is a writ of error sued out by Sarah A. Clayton and her tenant, Richard Mackey, citizens of Colorado, to reverse a judgment of the circuit court of the United States for the district of Colorado, in an action brought against them by Sarah A. Clayton, describing herself as a citizen and resident of Illinois, and widow and heir at law of James W. Clayton, deceased, to recover at tract of land in the county of Jefferson and state of Colorado, and a lode, mining claim, and quartz mill in Gilpin county in that state, and the rents, issues, and profits thereof. Trial by jury having been duly waived, the case was tried by the court, which found the following facts:

'(1) That the plaintiff and James W. Clayton intermarried at Wheeling, in the state of Virginia, on the third of May, 1855.

'(2) That on the first day of March, 1867, the said James W. Clayton filed his bill for divorce against the said plaintiff in the district court of Gilpin county, Colorado territory, which was a court of competent jurisdiction in that behalf; that the cause alleged in said bill as ground for divorce was that the said James W. Clayton had in 1863 taken the defendant therein, the plaintiff in this suit, to the state of Illinois, and that she had refused to return to Colorado, and had refused to live with said James W. Clayton, although he had often requested her to do so, and had offered to furnish to her a home and sufficient maintenance in Colorado.

'(3) That the plaintiff in this suit was, on the said first day of March, 1867, and thereafter until the present time, a citizen and resident of the state of Illinois.

'(4) That at the time of filing said bill in the district court of Gilpin county, a summons was issued out of said court, directed to the sheriff of said Gilpin county to execute, commanding him to summon the said plaintiff to answer the said bill, which summons was in all respects as required by the law of the territory then in force regulating such matters.

'(5) That the sheriff of Gilpin county, on the same first day of March, 1867, returned the said summons into the said district court of Gilpin county, with his indorsement thereon that the defendant therein, the plaintiff in this suit, was not found in his county.

'(6) That a notice of the pendency of said suit in the said district court of Gilpin county was published in a weekly newspaper printed and published in the said Gilpin county for four weeks, beginning with and next after the first day of March, 1867; and the first publication of said notice was more than thirty days before the return-day of said summons; that the certificate showing such publication was to the effect that the first publication of such notice was on the first of March, 1867, and the last publication was on the twenty-sixth of March, 1867; that said certificate was filed in said cause on the twenty-second of March, 1867.

'(7) That the defendant in the said divorce suit (the plaintiff in this suit) was not notified of the pendency thereof, except as aforesaid.

'(8) That a decree was entered in the said suit, brought in the said district court of Gilpin county, on the twenty-sixth of June, 1868, divorcing the said James W. Clayton from the defendant therein, (the plaintiff in this suit,) which said decree recites at the commencement thereof that it appearing to the court that due service had been had upon said defendant before the fourth of April, 1867, and that such service had been made, according to the laws of the territory of Colorado and the rules and practice of that court, more than ten days previous to the first day of the April term of said court, and that the defendant was called and defaulted.

'(9) That the said James W. Clayton and the defendant in this suit, Sarah A. Clayton, intermarried in the year 1870, at and within the state of Colorado.

'(10) That the said James W. Clayton departed this life about the tenth of October, 1874, leaving the said plaintiff and two children, issue of his marriage with the said plaintiff, him surviving.

'(11) That at and before the time of his death the said James W. Clayton was seized in fee of the premises described in the complaint as situated in Jefferson county.

'(12) That at and before the time of his death the said James W. Clayton was the owner of the premises described in the complaint as situated in the county of Gilpin, and in virtue of such ownership was entitled to hold, occupy, and possess the same.

'(13) That the value of the use and occupation of the said premises since the third of April, 1877, and the rents, issues, and profits thereof, as to the undivided one-half part thereof, is seventeen hundred and twenty-five dollars.'

Upon the facts so found, the court made the following rulings and conclusions in matter of law:

'First. That because the said defendant therein (the plaintiff in this suit) was not properly notified of the pendency of said suit in the district court of Gilpin county, the decree of divorce entered therein was and is void and of no effect.

'Second. That the said plaintiff in this suit, in virtue of her marriage with the said James W. Clayton, was and is, with the surviving children before mentioned, his heir at law, and as such is entitled to one-half part of his estate.

'Third. That the said plaintiff is the owner in fee of the undivided one-half part of the estate described in the complaint as situated in Jefferson county.

'Fourth. That the said plaintiff is the owner, and, under the laws of the state, is entitled to hold, occupy, and possess the undivided one-half part of the estate, described in the complaint as situated in Gilpin county.

'Fifth. That the said plaintiff is entitled to recover of the said defendants, as and for the rents, issues, and profits of said premises, and damages for the detention thereof, the said sum of seventeen hundred and twenty-five dollars.'

Judgment was accordingly rendered for the plaintiff on March 3, 1879, and the defendants tendered a bill of exceptions, and sued out this writ of error. The plaintiff in error, Clayton, having died since the entry of the case in this court, her heirs have been made parties in her stead.

Willard Teller, for plaintiff in error.

L. C. Rockwell, for defendant in error.

GRAY, J.

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title: Cheely v. Clayton


text: Talk:Cheely v. Clayton

title: Talk:Cheely v. Clayton


text:
Cheely v. Clayton/Opinion of the Court

The true question in this case is, which of the two Sarah A. Claytons was the lawful wife of James W. Clayton at the time of his death, and as such entitled by the statutes of Colorado to inherit one-half of his real estate? REV. ST. 1867, C. 23; GEN. lAws 1877, c. 26. in Order to avoid the confusion arising from the identity of name, from their transposition on the docket of this court, and from the death of one of them pending the writ of error, it will be convenient to designate them, as in the record of the court below, the defendant in error as the plaintiff, and the plaintiff in error as the defendant. Mackey, the other plaintiff in error, occupied the land as tenant only, and needs no further mention.

The courts of the state of the domicile of the parties doubtless have jurisdiction to decree a divorce, in accordance with its laws, for any cause allowed by those laws, without regard to the place of the marriage, or to that of the commission of the offense for which the divorce is granted; and a divorce so obtained is valid everywhere. Story, Confl. Laws, § 230a; Cheever v. Wilson, 9 Wall. 108; Harvey v. Farnie, 8 App. Cas. 43. If a wife is living apart from her husband without sufficient cause his domicile is in law her domicile; and, in the absence of any proof of fraud or misconduct on his part, a divorce obtained by him in the state of his domicile, after reasonable notice to her, either by personal service or by publication, in accordance with its laws, is valid, although she never in fact resided in that state. Burlen v. Shannon, 115 Mass. 438; Hunt v. Hunt, 72 N. Y. 218. But in order to make the divorce valid, either in the state in which it is granted or in another state, there must, unless the defendant appeared in the suit, have been such notice to her as the law of the first state requires.

The decree of divorce set up in this case was obtained before the admission of Colorado into the Union, and under the Revised Statutes of 1867 of the territory of Colorado. By chapter 26 of those statutes, relating to divorce and alimony, each district court of the territory, sitting as a court of chancery, had jurisdiction, upon the like process, practice, and proceedings, as in other cases in chancery, to decree a divorce from the bond of matrimony, to either husband or wife, for the other's willful desertion and absence for one year without reasonable cause. Chapter 13 of the same statutes, relating to chancery proceedings, contained the following provisions: By sections 5, 6, upon the filing of the bill the clerk was to issue a summons, returnable at the next term after its date, directed to the sheriff of the county in which the defendant resided, if a resident of the territory, requiring him to appear and answer the bill on the return-day of the summons. By section 7, service of the summons was to be made by reading it to the defendant, or leaving a copy with one of his family at his usual place of abode, ten days before the return-day. By section 8, whenever any complainant filed in the clerk's office an affidavit showing that a defendant resided or had gone out of the territory, the clerk was to cause notice to be published in a newspaper in the territory for four successive weeks, the first publication to be made at least 30 days before the return-day. At the end of that section was this clause: 'But this proceeding shall not dispense with the usual exertion, on the part of the sheriff, to serve the summons.' By section 9, if 30 days intervened between the filing of such affidavit and the return-day, or if service of process was made and the defendant did not appear on the return-day, the bill might be taken for confessed. By section 10, if the case was continued for want of due publication or service, the like proceeding might be had at the next term as might have been had at the first term. By section 11, if the summons was not returned executed on the return-day, the clerk might issue a further summons. By section 12, the complainant might cause personal service to be made on any defendant residing or being out of the territory, not less than 30 days before the commencement of the term at which he was required to appear; and such service, proved by affidavit, was to be as effectual as if made in the usual form within the limits of the territory. By section 15, any defendant not summoned or notified to appear, as above required, and against whom a final decree should be entered, might within one year after notice to him in writing of the decree, or within three years after the decree, if no such notice should be given him, apply to the court and obtain a hearing, as if he had seasonably appeared and no decree had been made; and at the end of three years the decree, if not so set aside, should be deemed and adjudged confirmed against him, and the court might make such further order in the premises as should be requisite and just. Under those statutes, as repeatedly and uniformly construed by the higher courts of Colorado, when the sheriff returns the summons on the day of its date, instead of keeping it in his possession until the return-day for the purpose of making the usual exertions to serve it, a notice by publication only will not sustain a decree.

The supreme court of the territory, at February term, 1873, in Palmer v. Cowdrey, 2 Colo. 1, and Wise v. Brocker, Id. note, reversed decrees in ordinary proceedings in chancery for such a defect, and assigned its reasons as follows: 'The law intends that service of the summons shall be made on the defendant if he can be found within the jurisdiction during the life of the writ. If the defendant is not in the county at the time the summons is placed in the hands of the officer, he may come into the county before the returnday, and if notice by publication has been given, it is nevertheless the duty of the officer to serve the summons if he can find the defendant in his bailiwick. To the performance of this duty it is necessary that the officer should retain the summons in his hands until the return-day; for after the return of non inventus of course the officer cannot obey the command of the writ. In the present case the sheriff returned the summons more than one month before the return-day, and thereafter he could not comply with the statute by making the usual exertion to serve it. Whether the defendant came into the county after the return and during the life of the writ, we do not know, nor can we be informed except by the return of the proper officer. By the return, as it stands in the record, it does not appear that service could not have been made during the life of the writ, and the court had no authority to proceed upon notice by publication without such evidence.' 2 Colo. 6.

Since the admission of Colorado into the Union, the supreme court of the state, at December term, 1877, made a like decision for the same reasons, and said: 'Without holding the writ until the return-day, and a proper return accordingly, the publication of notice will not avail to confer jurisdiction upon the court to render final decree upon the petition.' Vance's Heirs v. Maroney, 4 Colo. 47, 49.

Upon the strength, and as the necessary, result, of those decisions, the supreme court of the state has twice held that decrees of divorce, obtained under such circumstances, were wholly void, for want of jurisdiction in the court that granted them; that the provision of the statute, allowing a defendant, on whom constructive service only had been made, to apply within three years to set aside the decree, did not make the decree valid when the constructive service was so defective; and that such a decree of divorce was no bar to an action by the wife to recover, as the husband's widow, a share of his real estate. One of the cases in which it was so held, decided at December term, 1878, before the judgment of the circuit court in the case at bar, was an action by this plaintiff against this defendant and the administrator of James W. Clayton, in which the defendants set up the decree of divorce now in question. Clayton v. Clayton, 4 Colo. 410. The other is a very recent decision, not yet officially published. Israel v. Arthur, 7 Colo. --; S.C.. 1 Pac. Rep. 442, 448.

The fact that the statutes of the territory, relating to chancery proceedings, having been repealed by the Code of Civil Procedure of the state of Colorado, were no longer in force at the time of the last two decisions, does not lessen the weight of those decisions of the highest court of Colorado as evidence of the law of Colorado upon the construction of its statutes affecting the status of citizens of the state, and the title in, or right of possession of, land within its limits. That James W. Clayton was a citizen of Colorado is necessarily implied in the record, and especially in the finding of the court below that the territorial court had jurisdiction to entertain his application for divorce, and it is the very foundation of the argument in support of this writ of error. But the service in the proceedings for divorce was exactly the same as was held insufficient to support the jurisdiction of the court to make a decree in each of the cases in the Colorado reports above cited. The notice and return, appearing of record in the proceedings for divorce, control the general recital in the decree that due service had been made upon the defendant therein. Galpin v. Page, 18 Wall. 350; Settlemier v. Sullivan, 97 U.S. 444. The decree of divorce being void for the insufficiency of the service, and the status of Clayton and this plaintiff, therefore, that of husband and wife, according to the law of Colorado, as declared by its highest court, she was entitled, as his widow, to the share which the law of that state gives to a widow in the husband's land within the state.

We do not rest our judgment merely upon the ground that the land of which possession is demanded is in Colorado; for if the parties had been domiciled and divorced elsewhere, the question whether they were husband and wife at the time of his death might, even as affecting her right in his land in Colorado, have been governed by the law of their domicile, although the share which a widow should take in her husband's land would of course be determined by the law of the state in which the land was. See Meister v. Moore, 96 U.S. 76; Ross v. Ross, 129 Mass. 243, 247, 248, and cases cited. Nor do we give any weight to the finding of the court below that the wife, at the time of the proceedings for divorce, was a citizen and resident of the state of Illinois; for it is hard to see how, if she unjustifiably refused to live with her husband in Colorado, she could lawfully acquire in his life-time a separate domicile in another state; or how, if the territorial court had jurisdiction to render the decree of divorce, and did render it upon the ground of her unlawful absence from him, the finding of the court below could consist with the fact so adjudged in the decree of divorce. However that may be, the wife, since the husband's death, had the right to elect her own domicile, and at the time of bringing the present action was a citizen of Illinois, and as such entitled to sue in the circuit court of the United States. And the ground upon which we affirm the judgment of that court is that, by the law of Colorado, as declared by the supreme court of the state, the decree of divorce was void, for want of the notice to her required by the local statutes.

There could hardly be a better illustration of the fitness and justice of this conclusion than is afforded by the facts of this case. To reverse the judgment of the circuit court would be to leave the status of the plaintiff, as widow and heir of James W. Clayton, established by the state court as to one parcel of land, and denied by this court as to other lands within the same state. It was said in argument, indeed, that part of the land sought to be recovered was the same in both actions; but this does not appear upon the record before us.

Judgment affirmed.

title: Cheely v. Clayton/Opinion of the Court


text: Talk:Cheely v. Clayton/Opinion of the Court


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Commissioners Freedman's Savings Trust Company v. Earle

The appellee recovered a judgment against Robert P. Dodge in the supreme court of the District of Columbia on January 4, 1878, for $7,700, with interest and costs, which was revived April 2, 1879, and on which a ''fi. fa. was issued April 9, 1879, and returned nulla bona''. On June 1, 1877, Dodge, the judgment debtor, being then seized in fee-simple of certain real estate in the city of Georgetown, in this district, conveyed the same by deed duly recorded to Charles H. Cragin, Jr., in trust, to secure to Nannie B. Blackford payment of the sum of $2,000, with interest, according to certain promissory notes given therefor, and which were indorsed to Charles H. Cragin. On April 10, 1879, the appellee filed his bill in equity, to which Dodge, Charles H. Cragin, Jr., Charles H. Cragin, and Nannie B. Blackford were made defendants, the object and prayer of which were to take an account of the debt secured by the trust deed, and, subject thereto, to have the premises sold and the proceeds of the sale applied to the satisfaction of the appellee's judgment. The defendants having appeared and answered, a decree according to the prayer of the bill was rendered June 11, 1879. On December 27, 1879, leave therefor having been obtained, the appellants filed a petition in the cause, setting forth the recovery of a judgment in their favor against the defendant Dodge, in the sum of $7,386.47, with interest and costs, on February 11, 1879, in the supreme court of the District of Columbia, and that on December 2d a ''fi. fa. had been issued thereon, and returned nulla bona'' December 19, 1879; and praying that they may be made parties complainant in the cause; that the equitable interest of Dodge in the real estate described be subjected to the satisfaction of their judgment; that the same be sold, and the proceeds of sale be brought into court and distributed according to law. To this petition Dodge answered, admitting the recovery of the judgment as alleged. On May 25, 1880, the trustee appointed for that purpose under the decree of June 11, 1879, reported a sale of the premises for $5,525, and the same, on June 25, 1880, was confirmed. The cause was then referred to an auditor to state the account of the trustee to sell, whose report showed an appropriation of the proceeds of the sale, after payment of costs, in payment to that extent of the appellee's judgment. On exceptions to this report, a final decree confirming the same was made September 14, 1880, which decree, on appeal to the general term, was affirmed December 10, 1880.'

Enoch Totten, for appellant.

J. D. McPherson and C. Carlisle, for appellee.

From that decree this appeal is prosecuted, and  MATTHEWS, J.


text: Talk:Commissioners Freedman's Savings Trust Company v. Earle


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Commissioners Freedman's Savings Trust Company v. Earle/Opinion of the Court

as ground of reversal, it is assigned by the appellant that the proceeds of the sale of the equitable interest of Dodge, the judgment debtor, should have been distributed pro rata between the appellees and the appellants, instead of having been awarded exclusively to the appellee. It is contended on behalf of the appellants that the interest of the judgment debtor in the land being an equity merely, is not subject to execution at law; and as it can be reached by judgment creditors only through the intervention and by the aid of a court of equity, it becomes of the nature of equitable assets, and when sold the proceeds will be applied, according to the maxim that equality is equity, ratably among the creditors. In the case of Morsell v. ''First Nat. Bank'', 91 U.S. 357, it was decided that under the laws of Maryland in force in this district, judgments at law were not liens upon the interest of judgment debtors who had previously conveyed lands to a trustee in trust for the payment of a debt secured thereby. Mr. Justice SWAYNE said, (p. 361:) 'The judgment in nowise affected the trust premises until the bill was filed. That created a lien in favor of the judgment creditors. There was none before.' And it was accordingly held that in the distribution of the proceeds of sale the judgments must be postponed to debts secured by other deeds of trust made before the filing of the bill, but subsequent quent to the rendition of the judgments. But the decision leaves open the question arising here between judgment creditors seeking satisfaction in equity out of the debtor's equitable estate. It becomes necessary, therefore, to determine the nature of the right and the principle of distribution which arises from it.

At common law executions upon judgments could not be levied upon estates merely equitable, because courts of law did not recognize any such titles and could not deal with them. They could not be levied upon the estate of the trustee when the judgment was against the cestui que trust for the same reason; and when the judgment was against the trustee, if his legal estate should be levied on, the execution creditor could acquire no beneficial interest, and if the levy tended injuriously to affect the interest of the cestui que trust, the latter would be entitled to relief, by injunction or otherwise, in equity. Lewin, Trusts, 171, 186; 2 Spence, Eq. Jur. 39. But as courts of equity regarded the cestui que trust as the true and beneficial owner of the estate, to whose uses, according to the terms of the trust, the legal title was made subservient, so in its eyes the estate of the cestui que trust came to be invested with the same incidents and qualities which in a court of law belonged to a legal estate, so far as consistent with the preservation and administration of the trust. This was by virtue of a principle of analogy, adopted because courts of equity were unwilling to interfere with the strict course of the law, except so far as was necessary to execute the just intentions of parties, and to prevent the forms of the law from being made the means and instruments of wrong, injustice, and oppression. Thus equitable estates were held to be assignable and could be conveyed or devised; were subject to the rules of descent applicable to legal estates; to the tenancy by the courtesy, though not to dower, by an anomolous exception afterwards corrected by statute, (3 & 4 Wm. IV. c. 105;) and were ordinarily governed by the rules of law which measure the duration of the enjoyment or regulate the devolution or transmission of estates; so that, in general, whatever would be the rule of law, if it were a legal estate, was applied by the court of chancery by analogy to a trust estate. 1 Spence, Eq. Jur. 502.

As judgment creditors, after the statute of Westminister, (13th Ed.) p. 1, c. 18, were entitled, by the writ of elegit, to be put in possession of a moiety of the lands of the debtor, until satisfaction of the judgment; and as it would be contrary to equity to permit a debtor to withdraw his lands from liability to his judgment creditors, this analogy was at an early date extended, so as to give to judgment creditors similar benefits in respect to the equitable estate of their debtors; and as the remedies in favor of judgment creditors by way of execution upon the legal estate of their debtors have been enlarged, they have been imitated by a corresponding analogy as to equitable estates by courts of equity. This is in pursuance of the principle stated in a pregnant sentence by Lord NORTHINGTON, in Burgess v. Wheate, 1 Eden, 224-250, where he said: 'For my own part, I know no instance where this court has permitted the creation of a trust to affect the right of a third person.' It is embodied in the maxim, aequitas sequitur legen.

It was accordingly held by Lord NOTTINGHAM, in the anonymous case cited in Balch v. Wastall, 1 P. Wm. 445, 'that one who had a judgment, and had lodged a fleri facias in the sheriff's hands, to which nulla bona was returned, might afterwards bring a bill against the defendant, or any other, to discover any of the goods or personal estate of the defendant, and by that means to effect the same;' and although Lord Keeper BRIDGMAN, in Pratt v. Colt, Freem. Cas. Ch., by Hovenden, 139, refused to permit a trust estate, which had descended to the heir, to be extended upon an elegit on a judgment against his ancestor, the reporter adds: 'But note that this hath not been taken to be a good demurrer by the old and best practicers, as little according with good reason, for the heir at law is as much chargeable with the ancestor's judgment as the executor with the testator's debts, and so equity ought to follow the law.' Three years subsequently to this decision the statute of frauds, (29 Car. II. c. 3,) was enacted, the tenth section of which made trust estates in fee-simple assets for the payment of debts, and subject to an elegit upon judgment against the cestui que trust. But this statute did not extend to chattels real, to trusts under which the debtor had not the whole interest, to equities of redemption, or to any equitable interest which had been parted with before execution sued out. Forth v. Duke of Norfolk, 4 Madd. 503. The statute of 5 Geo. II. c. 7, which made lands within the English colonies chargeable with debts, and subject to the like process of execution as personal estate, was in force in Maryland; but as it did not interfere with the established distinction between law and equity, it did not permit an equitable interest to be seized under a fieri facias. Lessee of Smith v. McCann, 24 How. 398. But as the effect of these statutes was to enlarge the operation of executions upon legal estates, so the corresponding equitable remedy as to equitable estates was also enlarged, and as to them equitable executions were enforced to the same extent to which executions at law were enforceable upon estates subject to seizure under them. This mere equity, consisting in the right to obtain the aid of the court in subjecting the equitable interest of the debtor, not being a lien at law or a specific charge in equity, nevertheless constitutes such an interest, and creates such a privity, as entitles the judgment creditors to redeem a prior mortgage, and succeeding thus to the rights of the mortgagee in England, where the doctrine of tacking prevailed, he was per mitted to hold the whole estate as security for his judgment also, even when by virtue of an elegit at law, he would be entitled only to a moiety of the debtor's land; and he could file his bill to redeem without previously issuing an execution. Neate v. Duke of Marlborough, 3 Mylne & C. 407. The reason for this, assigned by Lord COTTENHAM in the case just cited, is that, inasmuch as the court finds the creditor in a condition to acquire a power over the estate by suing out the writ, it does what it does in all similar cases-it gives to the party the right to come in and redeem other incumbrances upon the property.

But in other cases, when the object of the bill is to obtain satisfaction of the judgment, by a sale of the equitable estate, it must be alleged that execution has been issued. This is not supposed to be necessary wholly on the ground of showing that the judgment creditor has exhausted his remedy at law; for, if so, it would be necessary to show a return of the execution unsatisfied, which, however, is not essential. Lewin, Trusts, 513. But the execution must be sued out; for, if the estate sought to be subjected is a legal estate, and subject to be taken in execution, the ground of the jurisdiction in equity is merely to aid the legal right by removing obstacies in the way of its enforcement at law, (Jones v. Green, 1 Wall. 330;) and if the estate is equitable merely, and therefore not subject to be levied on by an execution at law, the judgment creditor is bound, nevertheless, to put himself in the same position as if the estate were legal, because the action of the court converts the estate, so as to make it subject to an execution, as if it were legal. The ground of the jurisdiction, therefore, is not that of a lien or charge arising by virtue of the judgment itself, but of an equity to enforce satisfaction of the judgment by means of an equitable execution. And this it effects by a sale of the debtor's interest subject to prior incumbrances, or according to circumstances, of the whole estate, for distribution of the proceeds of sale among all the incumbrancers, according to the order in which they may be entitled to participate. Sharpe v. Earl of Scarborough, 4 Ves. 538.

It is to be noted, therefore, that the proceeding is one instituted by the judgment creditor for his own interest alone, unless he elects to file the bill also for others in a like situation, with whom he chooses to make common cause; and as no specific lien arises by virtue of the judgment and execution alone, the right to obtain satisfaction out of the specific property sought to be subjected to sale for that purpose dates from the filing of the bill. 'The creditor,' says Chancellor WALWORTH, in Edmeston v. Lyde, 1 Paige, Ch. 637-640, 'whose legal diligence has pursued the property into this court, is entitled to a preference as the reward of his vigilance;' and it would 'seem unjust that the creditor who has sustained all the risk and expense of bringing his suit to a successful termination should in the end be obliged to divide the avails thereof with those who have slept upon their rights, or who have intentionally kept back that they might profit by his exertions when there could no longer be any risk in becoming parties to the suit.' As his lien begins with the filing of the bill, it is subject to all existing incumbrances, but is superior to all of subsequent date. As was said by this court in Day v. Washburn, 24 How. 352: 'It is only when he has obtained a judgment and execution in seeking to subject the property of his debtor in the hands of third persons, or to reach property not accessible to an execution, that a legal preference is acquired which a court of chancery will enforce.' This is in strict accordance with the analogy of the law, as it was recognized that the judgment creditor who first extends the land by elegit is thereby entitled to be first satisfied out of it. It is the execution first begun to be executed, unless otherwise regulated by statute, which is entitled to priority. Rockhill v. Hanna, 15 How. 189-195; Payne v. Drewe, 4 East, 523. The filing of the bill, in cases of equitable execution, is the beginning of executing it.

The passage cited from the opinion in Day v. Washburn, supra, speaks of the preference thus acquired by the execution creditor as a legal preference. It was distinctly held so to be by Chancellor KENT in McDermutt v. Strong, 4 Johns. Ch. 687. He there said: 'But this case stands on stronger ground than if it rested merely on the general jurisdiction of this court, upon residuary trust interests in chattels, for the plaintiffs come in the character of execution creditors, and have thereby acquired, by means of their executions at law, what this court regards as a legal preference, or lien on the property so placed in trust;' and 'admitting that the plaintiffs had acquired by their executions at law, a legal preference to the assistance of this court, (and none but execution creditors at law are entitled to that assistance,) that preference ought not, in justice, to be taken away. Though it be the favorite policy of this court to distribute assets equally among creditors, pari passu, yet, whenever a judicial preference has been established by the superior legal diligence of any creditor, that preference is always preserved in the distribution of assets by this court.' The decision in that case was made, giving the priority to the execution creditors who filed the bill, when, otherwise, by virtue of an assignment by the debtor who was insolvent, the proceeds of the equitable interest sought to be subjected would have been distributed ratably among all creditors. This case, often cited and never questioned, shows that the doctrine of equitable assets, to which we are referred by the appellant as the ground of his claim, has no application to the case. Ordinarily and strictly, the term 'equitable assets' applies only to property and funds belonging to the estate of a decedent, which by law are not subject to the payment of debts, in the course of administration by the personal representatives, but which the testator has voluntarily charged with the payment of debts generally, or which, being non-existent at law, have been created in equity, under circumstances which fasten upon them such a trust. Ad. Eq. 254. But, as was said by Chancellor KENT in Williams v. Brown, 4 Johns. Ch. 682, the doctrine 'does not apply to the case of a debtor in full life, for there is no equitable trust created and attached to the distribution of the effects in the latter case.' Property held by a trustee for the testator is legal assets, for, although the benefit of the trust, if resisted, cannot be enforeed without equitable aid, yet the analogy of the law will regulate the application of the fund. To constitute equitable assets, the trust imposed by the party, or by the court, must be for the benefit of creditors generally.

It is true that in Moses v. Murgatroyd, 1 Johns. Ch. 119, (7 Amer. Dec. 478,) Chancellor KENT held surplus money arising from the sale of mortgaged premises to be equitable assets, but that was in a case where a mortgagor was deceased and the fund was in a court of equity for distribution, and when the judgment to which priority was refused was confessed by the administrator.

In Purdy v. Doyle, 1 Paige, 558 the rule was stated by Chancellor WALWORTH, in these words: 'If it is such property as the judgment creditors could obtain a specific or general lien on at law, they are entitled to the fruits of their superior vigilance, so far as they have succeeded in getting such lien. But if the property was in such a situation that it could not be reached by a judgment at law, and the fund is raised by a decree of this court, and the creditors are obliged to come here to avail themselves of it, they will be paid on the footing of equity only.'

But a specific lien, whether legal or equitable, on property liable as equitable assets, was always respected by courts of equity. Freemoult v. Dedire, 1 P. Wms. 429; Finch v. Earl of Winchelsea, Id. 277; Ram, Assets, 318. And Lord Chancellor PARKER, in Wilson v. Fielding, 2 Vern. 763; 10 Mod. 426, drew the distinction between property which is assets in a court of equity only and certain property which a creditor cannot come at without the aid of a court of equity. In that case the mortgage debt had been paid out of the personal estate by the executor, thus exonerating the mortgaged premises which had descended to the heir. The unsatisfied creditors filed a bill to require the heir at law to refund, which was 'a matter purely in equity and a raising of assets where there were none at law.' And see Atlas Bank v. Nahant Bank, 3 Metc. (Mass.) 581; Codwise v. Gelston, 10 Johns. 522; Tennant v. Stoney, 1 Rich. Eq. 227; 1 Story, Eq. Jur. § 553; 2 White & T. Lead. Cas. Eq. pt. 1, p. 390.

We have already seen that the filing of a bill by an execution creditor to subject the equity of the debtor in his life-time, created a lien and gave him a legal preference. And in the English chancery, although equities of redemption after the death of the mortgagor are classed as equitable assets, the rule of distribution, pari passu, is modified in its application to them in respect to judgment creditors by permitting them to retain their priority over other claims, because, if such priority were not allowed, the judgment creditor might acquire it by redeeming the mortgage. Ad. Eq. 256. Legal assets, according to the definition of Mr. Justice STORY, (Eq. Jur. § 551,) 'are such as come into the hands and power of an executor or administrator, or such as he is intrusted with by law virtute officii to dispose of in the course of his administration. In other words, whatever an executor or administrator takes qua executor or administrator, or in respect to his office, is to be considered legal assets.' And this is the modern doctrine in England. In Lovegrove v. Cooper, 2 Smale & G. 271, it was held, for that reason, that the proceeds of real estate directed to be sold for the payment of debts, and paid by the purchaser into court, were legal and not equitable assets. It follows from this, that in this country generally, where the real estate of a decedent is chargeable with the payment of debts, and, in case of a deficiency of personal property for that purpose, may be subjected to sale and distribution as assets by the personal representative in the ordinary course of administration, the distinction between legal and equitable assets has ceased to be important. In every such case the equity of redemption could only be applied after sale by the executor or administrator in the ordinary course of administration, subject to whatever liens may have been imposed upon it in the life-time of the mortgagor, and among them, as we have seen, is that of an execution creditor who has filed his bill to subject it to the payment of his judgment. So, in other cases where the rule of equality in distribution, as to equitable assets, applies, as in cases of assignments by the debtor himself for the payment of debts generally, and in cases of bankruptcy and insolvency, except as otherwise expressly provided by statute, the estate passes, subject to existing liens, including that of an execution creditor who had previously filed a bill to subject the equitable interest of the debtor, and his priority is respected and preserved. The lien is given by the court in the exercise of its jurisdiction to entertain the bill and to grant the relief prayed for; and to distribute the proceeds of the sale for the benefit of others, equally with the execution creditor first filing the bill, would be to contradict the very principle of the jurisdiction itself, and defeat the very remedy it promised; for the fruits of the litigation, according to the rule of equality, would have to be divided, not only with other judgment and execution creditors, but, as well, with all creditors, whether their claims had been reduced to judgment or not.

For these reasons the decree appealed from is affirmed.


text: Talk:Commissioners Freedman's Savings Trust Company v. Earle/Opinion of the Court


text:
Cutler v. Kouns

The congress of the United States, by section 3 of an act passed July 13, 1861, (12 St. 255,) enacted that it should be lawful for the president, by proclamation, to declare that the inhabitants of any state or part of a state in rebellion against the United States were in a state of insurrection, and that 'thereupon all commercial intercourse by and between the same and citizens thereof and the citizens of the rest of the United States should cease and be unlawful so long as such condition of hostilities should continue.' By his proclamation dated August 16, 1861, (12 St. 1262,) the president declared, among others, the states of Louisiana and Texas to be in a state of insurrection against the United States, (excepting such parts thereof as might, from time to time, be occupied by the forces of the United States,) and forbid all commercial intercourse between the same and the inhabitants thereof, with the exceptions aforesaid, and the citizens of other states and other parts of the United States. On April 26, 1862, the city of New Orleans was occupied by the forces of the United States, and remained in their possession until the close of the civil war. From the date named New Orleans was therefore exexcepted from the operation of the non-intercourse act. In this state of affairs, on July 2, 1864, an act of congress was passed, entitled 'An act in addition to the several acts concerning commercial intercourse between loyal and insurrectionary states, and to provide for the collection of captured and abandoned property, and the prevention of fraud in states declared in insurrection.' 13 St. 375. Section 8 of the act provided as follows:

'That it shall be lawful for the secretary of the treasury, with the approval of the president, to authorize agents to purchase for the United States any products of states declared in insurrection, at such places therein as shall be designated by him, at such prices as shall be agreed on with the seller, not exceeding the market value thereof at the place of delivery, nor exceeding three-fourths of the market value thereof in the city of New York, at the latest quotations knowm to the agent purchasing.'

In pursuance of the authority thus conferred, the secretary of the treasury designated certain cities, among them the city of New Orleans, as places of purchase, the appointed purchasing agents. By regulations dated May 9, 1865, he directed that, to meet the requirements of the eighth section of the act of July 2, 1864, the agents should receive all cotton brought to the places designated as places of purchase, and forthwith return to the seller three-fourths thereof, or retain out of the price thereof the difference between three-fourths the market price and the full price thereof in the city of New York.

While the statute and these regulations were in force, to-wit, on June 6, 1865, the defendants in error, George L. Kouns and John Kouns, brought to the city of New Orleans about 900 bales of cotton, which they had caused to be transported, a part from near Shreveport, in the state of Louisiana, and the residue from Jefferson, in the state of Texas. At the time last mentioned, Cutler, the plaintiff in error, was the purchasing agent in New Orleans, appointed by the secretary of the treasury. As such agent he took possession of the cotton, and before releasing it to the plaintiffs in error exacted from them the one-fourth of its market value in New York, which they paid under protest. They paid the money in three installments-$13,695.92 on June 12, $7,200 on June 15, and $8,588.41 on June 20. The money so paid was covered into the treasury by Cutler.

On July 1, 1871, the defendants in error brought this suit against Cutler to recover back the money so paid. Cutler set up several defenses, only two of which it is necessary to notice. These were,-First, that the seizure of the cotton and the exaction of the money paid to him were authorized by section 8 of the act of July 2, 1864, and the regulations of the secretary of the treasury made in pursuance thereof; and, second, that the suit was barred by the limitation enacted by section 7 of the act of March 3, 1863, entitled 'An act relating to habeas corpus, and regulating judicial proceedings in certain cases.' 12 St. 755. Upon the trial of the case in the circuit court the defendant, Cutler, moved the court to direct the jury to return a verdict for him on the ground that the exaction of the money sued for was lawful. The court refused to give this instruction. The defendant also moved the court to direct the jury to return a verdict for him on the ground that the action was barred by section 7 of the act of March 3, 1863, because the suit had not been commenced within two years after the wrong done to redress which the suit was brought. This motion was also denied, and the court instructed the jury that the plaintiffs were entitled to recover the sum of $7,200 paid by them to the defendant on June 15th and the sum of $8,588.41 paid on June 20th, with interest. In pursuance of this instruction the jury returned a verdict for the plaintiffs for $29,679.55, for which the court rendered judgment in their favor against the defendant. This writ of error is prosecuted by the defendant, now the plaintiff in error, to reverse that judgment.

''Sol. Gen. Phillips'', for plaintiff in error.

Henry C. Bliss and Henry S. Neal, for defendants in error.

WOODS, J.

title: Cutler v. Kouns


text: Talk:Cutler v. Kouns

title: Talk:Cutler v. Kouns


text:
Cutler v. Kouns/Opinion of the Court

The errors assigned are-First, the refusal of the circuit court to direct a verdict for the defendant on the ground that the money sued for was lawfully exacted from the defendants in error; and, second, its refusal to give a similar direction on the ground that the action was barred. We think boh these assignments are well founded.

It is not disputed that on June 6, 1865, when the cotton was brought to New Orleans, the exaction by Cutler, the purchasing agent, of one-fourth its market value in the city of New York, was lawful, and that under the statutes and the treasury regulations it was his duty to make it. The contention of the defendants in errors is that by the proclamation of the president, dated June 13, 1865, the right of the purchasing agent to buy the cotton in question at three-fourths its market price in New York, or, what is in substance the same thing, to take possession of the cotton and hold it until one-fourth of its market value in New York was paid to him by the owner, was taken away, and that after that date the exaction of one-fourth the market price of the cotton was unlawful. The material part of the proclamation of June 13, 1865, was as follows: 'Now, therefore, be it known that I, Andrew Johnson, president of the United States, do hereby declare that all restrictions upon the internal, domestic, and coastwise intercourse and trade, and upon the removal of products of states heretofore declared in insurrection, reserving and excepting only those relating to contraband of war, as hereinafter recited, and also those which relate to the reservation of the rights of the United States to property purchased in the territory of an enemy, heretofore imposed in the territory of the United States east of the Mississippi river, are annulled, and I do hereby direct that they be forthwith removed.' 13 St. 763.

As throwing light upon the question in hand, it should be stated that upon June 24, 1865, the president issued another proclamation, which, after reciting that 'whereas it now seems expedient and proper to remove restrictions upon internal, domestic, and coastwise trade and commercial intercourse between and within the states and territories west of the Mississippi river,' proceeded as follows: 'Now, therefore, be it known that I, Andrew Johnson, president of the United States, do hereby declare that all restrictions upon internal, domestic, and coastwise intercourse and trade, and upon the purchase and removal of products of states and parts of states and territories heretofore declared in insurrection, lying west of the Mississippi, (except only, etc., are annulled, and I do hereby direct that they be forthwith rerremoved.' 13 St. 769.

The cotton in this case was the product of a country west of the Mississippi river. It was brought to New Orleans under authority of the act of July 2, 1864. When it arrived on June 6, it was subject to the exaction enforced by the plaintiff in error. When the proclamation of June 13th was issued a part of the money due the United States had been paid. If the defendants in error were relieved from the payment of the residue it was by virtue of that proclamation. Leaving out the parts not applicable to this case, it declared 'that all restrictions * *  * upon the removal of products of states *  *  * declared in insurrection, *  *  * heretofore imposed in the territory of the United States east of the Mississippi river, are annulled.' Its clearly-expressed purpose was to annul the restrictions imposed upon the removal from the territory east of the Mississippi river of the products of that territory. If we adopt the view of the defendants in error it would follow that all cotton produced west of the Mississippi, which could only be transported to New Orleans by virtue of the act of July 2, 1864, and on the condition that it was there to be sold to a purchasing agent, and to be subject to an exaction of one-fourth its value, would, the moment it arrived, be relieved of all the conditions imposed on it by the statute under authority of which it was removed. In other words, the law imposing restrictions upon the removal of cotton west of the Mississippi would have been nullified by a proclamation of the president which applied in terms only to the territory east of the Mississippi. The policy of the president was not to remove, and he did not remove, the restrictions upon products of the country west of the Mississipi until his proclamation of June 24th. But the defendants in error contend, in effect, that by transporting their cotton to a place east of the Mississippi, where they were under the implied obligation to pay the United States one-fourth its value, they can escape that exaction and get the benefit of the repeal of the restrictions upon cotton grown east of the Mississippi river. But until the restrictions upon the removal of cotton produced west of the Mississippi had been repealed, such cotton, if removed from the place where it was grown, would, while the restrictions were in force, remain subject thereto, no matter what might be the regulations concerning the products of the place to which it was removed. The proclamation of June 13th refers to places declared to be in insurrection, and annuls restrictions placed upon the removal from such places of the products thereof. The construction contended for by the defendants in error would apply it to a city not in insurrection but in the possession of the federal forces, and to a place where the product was not grown, and where no restrictions upon the removal of articles there produced were in force. Such, in our opinion, was not the effect of the proclamation of June 13th.

There is another view of the question which also appears to us to be conclusive. The money exacted by the plaintiff in error from the defendants in error was covered into the treasury by him. If he should be compelled to return it to the defendants in error, the United States would, in justice and honor, be bound to make him whole. The suit is therefore, in substance and effect, an action brought by the defendants in error against the government to recover the money collected by its officers and paid into its treasury, and is to be considered in that light. We think the money sued for is the money of the United States. When the cotton reached New Orleans on June 6th it was subject to an exaction of one-fourth its market value in New York. The owners had been allowed to bring in their cotton upon the implied promise and understanding that they would sell it to the government for three-fourths the market price. Upon its arrival in New Orleans the rights of the government in the cotton became fixed. One-fourth its value was as much the property of the government as the other three-fourths were the property of the defendants in error. No proclamation of the president could transfer the property of the government to them. The purchasing agent, for the accommodation of defendants in error, had allowed them to pay the amount due the government in three installments. The fact that the proclamation intervened between the payment of the first and the second installment could not relieve the defendants in error from the payment of money actually due to the United States. The president had no more power to exonerate them from the payment of the sum due than he has to relieve an importer from the payment of duties on his imported merchandise. It follows, from these views, that the plaintiff in error had authority, under the law and regulations of the treasury department, to exact the money which the defendants in error brought this suit to recover. But even if the defendants in error had a good cause of action, we are of opinion that the circuit court erred in refusing to instruct the jury that it was barred by the limitation prescribed by section 7 of the act of March 3, 1863, (12 St. 757.) That section provides 'that no suit or prosecution, civil or criminal, shall be maintained for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or act omitted to be done, at any time during the present rebellion, by virtue or under color of any authority derived from or exercised by or under the president of the United States, or by or under any act of congress, unless the same shall have been commenced within two years next after such arrest, imprisonment, trespass, or wrong may have been done or committed, or act may have been omitted to be done: provided, that in no case shall the limitation herein provided commence to run until the passage of this act,' etc.

The act of the plaintiff in error, which is charged in the complaint to be a wrong inflicted by him upon the defendants in error, was, as appears by the bill of exceptions, an act done during the rebellion, under color of authority derived from the president of the United States and an act of congress. The bill of exceptions shows that the last of the two sums of money for which the judgment was rendered was exacted on June 20, 1865. The suit was not brought until July 1, 1871. If, therefore, the limitation relied on is applicable to this case, the action was barred. The defendants in error insist, however, that the limitation does not apply to the present action. Their contention is that the suits barred are for arrests, imprisonments, and other crimes, ejusdam generis, and that the limitation only applies to trespasses upon and wrongs done the person, and not the property, of the plaintiff. In support of this view they rely upon the rule, as their counsel state it, that when general words follow particular words, the former must be construed as applicable to the things or persons particularly mentioned. We think the construction insisted on is too narrow. The rule of interpretation correctly stated is that where particular words of a statute are followed by general, the general words are restricted in meaning to objects of like kind with those specified. Dwarris, (2d Ed. ) 621. But this rule, even if applicable to the statute under consideration, is subject to the qualification that general words will be construed more broadly than specific, where such construction is clearly necessary to give effect to the meaning of the legislature. Foster v. Blount, 18 Ala. 687; U.S. v. Briggs, 9 How. 351. The fifth section of the statute of which the section under consideration forms a part throws light upon the general purpose of congress in its enactment. That section provides that 'any order of the president made at any time during the existence of the present rebellion shall be a defense in all courts to any action or prosecution. civil or criminal, pending or to be commenced, for any search, seizure, arrest, or imprisonment made, done, or committed, or acts omitted to be done under and by virtue of such order, or under color of any law of congress.' It would be a strained construction to hold that, while section 5 expressly protected the party who made a search, seizure, or arrest, or subjected another to imprisonment under the order of the president, section 7 applied the two-years limitation to an action brought to recover damages for the arrest or imprisonment, but not to action brought to recover damages for a search or seizure. The general purpose of congress in the passage of that act appears plainly to have been to give a degree of protection to all persons acting during the rebellion under authority of the president or congress of the United States. A construction which gives the benefit of one of its provisions to parties charged with offenses against the person, and not to those charged with wrongs and trespasses to the property of the citizen, robs the act of a great part of its intended effect, and is clearly unsound and untenable.

But it is unnecessary to discuss further this assignment of error. The point has been expressly decided against the contention of the defendants in error by this court at the present term in the case of Mitchell v. Clark, 4 SUP. CT. REP. 170, where it was held that the limitation of the statute applied to wrongs to the estate as well as to the arrest and imprisonment of the person of the plaintiff.

For the errors indicated, the judgment of the circuit court must be reversed, and the case remanded to that court, with directions to order a new trial.

Mr. Justice FIELD did not sit in this case or take any part in its decision.

title: Cutler v. Kouns/Opinion of the Court


text: Talk:Cutler v. Kouns/Opinion of the Court


text:
United States v. Ryder

The bill was filed at the suit of the United States to obtain payment of a recognizance for $10,000 from the property of one Edward P. Williams, or the proceeds thereof, in the hands of Seth B. Ryder, one of the defendants. The recognizance was entered into on the eighth day of November, 1876, by Williams and three other persons, conditioned that Williams 'should appear in person at Trenton, before the United States district court there, and submit to such sentence as the said court should order and direct.'

Williams did not appear according to the condition of the recognizance, but absconded, and, as the bill alleges, 'became a fraudulent, absconding, concealed, and absent debtor, and at the same time was a convicted criminal, and a fugitive from justice,' and never has since appeared nor been found. The bill further alleges that a scire facias was issued, and a judgment entered upon the recognizance, and an execution issued to the marshal of the district against the goods and lands of the cognizors; and that certain real estate of the sureties was levied upon, insufficient (as alleged) to satisfy the execution; but that no levy was made upon the goods and lands of Williams, for the reason that they were in the possession of said Ryder, who claimed the right to hold the same partly as assignee under a general assignment made by Williams for the benefit of his creditors, in July, 1876, and partly as auditor in attachment, appointed by the circuit court for the county of Union, in the state of New Jersey, under an attachment issued against Williams on the fifteenth of November, 1876, and levied on the twenty-third of same month. The bill alleges that Ryder has since sold the property in his possession by order of the Circuit Court of Union county, and has in his hands the proceeds, amounting to several thousand dollars.

J. H. Ashton, for appellant.

John R. Emery, for appellees.

BRADLEY, J.

title: United States v. Ryder


text: Talk:United States v. Ryder

title: Talk:United States v. Ryder


text:
United States v. Ryder/Opinion of the Court

This is an appeal from a decree dismissing a bill in equity on demurrer.

The grounds on which relief seems to be claimed by the bill, as far as can be gathered from the statements and the argument of counsel, are,-First, that the United States is a judgment and execution creditor, whose remedy at law is exhausted, and that the funds in the bands of Ryder are equitable assets, which ought to be applied in satisfaction of the judgment; second, that the recognizance operated as a lien on the real estate of Williams, from the time of its acknowledgment and recordation; third, that under the act of congress, in that behalf, the United States is entitled to priority over all other creditors of Williams, he being insolvent, and having made a general assignment of his property for the benefit of his creditors, and his property being attached as that of an absconding debtor; fourth, that the sureties of Williams have, by way of subrogation, a right to the enforcement of all the remedies which the United States is entitled to against Williams' property, before resort can be had against them and their property, or to indemnify them in case of their satisfying the claim of the United States, it being conceded on the argument that the bill was filed, and that the suit is prosecuted in the interest and for the benefit of the sureties. The allegation on this subject in the bill is as follows: 'And your orator further shows that the said sureties, being aware that the said Seth B. Ryder has in his hands a large amount of money belonging to their principal, and subject to the statutory claim of your orator to priority, as aforesaid, have claimed, as a right belonging to them as sureties, that your orator, before selling their lands under said execution, should seek relief in this court to compel the said Seth B. Ryder to apply the said fund to the satisfaction of said execution, as he is bound to do by the statute, giving your orator a priority upon said fund, in order that the said moneys of their principal, in the hands of said Ryder, may be applied to your orator's claim in exoneration of the said sureties, so far as the same will extend.'

At the coming on of the argument on this appeal, the solicitor general of the United States stated, in open court, that the government has no interest in the suit, the amount of recognizance having been paid by the sureties, and that the suit is prosecuted for the benefit of the sureties only; and this statement was admitted by the counsel for the sureties, who alone argued the cause for the appellants. The questions for us to decide are,-First, whether, since the recognizance has been paid by the sureties, they are subrogated to the rights of the United States; secondly, whether, if thus subrogated, they are entitled to prosecute in the name of the United States; thirdly, if the first two questions are to be answered in the affirmative, whether a case is made by the bill to entitle the complainants to relief.

First. Are the sureties subrogated to the rights of the United States? The general right of sureties, when paying the debt of their principal, to be subrogated to the rights of the creditor, whether as a mortgagee, pledgee, or holder of a judgment or execution, or any other security, has been so often and so fully discussed that nothing further need be added on that subject. The recent treatise of Mr. Sheldon on the Law of Subrogation, and the notes to Dering v. Earl of Winchelsea, in 1 White & T. Lead. Cas. Eq. 100, refer to the authorities, and exhibit the general results deducible therefrom; and in Mr. Burge's Treatise on Suretyship the rules of the civil law on the same subject are fully set forth. The doctrine is, that a surety paying the debt for which he is bound, is not only entitled to all the rights and remedies of the creditor against the principal for the whole amount, but against the other sureties for their proportional part. This is clearly the rule where the principal obligation is the payment of money or the performance of a civil duty. And in England the sureties of a debtor to the king (as for duties, taxes, excise, etc.) have always, since Magna Charta at least, had the right, upon paying the debt, to have the benefit of prerogative process, such as extent, or other crown process adapted to the case, to aid them in coercing payment from the principal, and compelling contribution from co-sureties. Thus, where upon a scire facias issued against the heir and executor of one surety, the defendant paid the debt, it was ordered that he should stand in the place of the crown, and have the aid of the court to recover either the whole against the principal or a moiety against a co-surety. Man. Exch. Pr. 563. And where a collector of a township [or parish] was a defaulter, and the township was retaxed for the deficit, the same relief was given. MACDONALD, C. B., said: 'The parish stands very much in the nature of sureties; and it is a reasonable practice that the party who has made good to the crown the default of the defendant should have the same remedy that the crown itself would have; it is, besides, unanswerable that this is a debt upon record and still subsisting; nor can it be satisfied by the reassessment of the parish.' Rex v. Bennett, Wightwick, 1, and cases in note. See also Regina v. Salter, 1 Hurl. & N. 274. The last observation of the chief baron (that the debt of the collector was still subsisting) was made in view of the opinion, which long prevailed in England, that payment of the debt by the surety extinguished it, and took away the remedies for enforcing it, even a judgment recovered, and thereby deprived the surety himself of all advantages of such remedies, and left him to his action for money paid,-a result not recognized or admitted by most of the courts of this country, and remedied in England by the mercantile law amendment act, (19 & 20 Vict. c. 97,) by virtue of which a payment of the debt by the surety has virtually the effect of an assignment thereof to him. Sheld. Subrog. §§ 135-138.

The rule of subrogation in favor of sureties to prerogative rights and remedies of the crown seems to be confined to cases of crown debtors, such as collectors, receivers, accountants, and other fiscal officers, and persons bound for customs duties, excise taxes, and other civil duties. We have not been able to find any English case in which it has been applied, or allowed, in favor of bail in a criminal proceeding. It has even held that the law raises no liability on the part of the person bailed to indemnify his bail for what they have been compelled to pay on their recognizance by reason of his default. It is said in Highm. Bail. 204, 'if a principal do not appear, and the recognizance be forfeited, and paid by the bail, yet the principal shall remain open and liable to the law whenever he can be taken, for the penalty in the recognizance is no other than as a bond to compel the bail to a due observance thereof, and has no connection with the principal; they could not sue him thereon for money paid to his use, or on his account, for it was paid on their own account, and for their own neglect.' In a subsequent edition, it is true, it is said to have been settled that where a person is bail for another he is entitled to recover all the expenses he has incurred incidental to that situation; and the same statement is made in Petersd. Bail, 517; but the only authority cited for the position is the case of Fisher v. Fallows, 5 Esp. 171, which was a case of bail in a civil proceeding, and consequently was no authority for the proposition as applied to criminal cases.

In Jones v. Orchard, 16 C. B. 614, an action on an implied promise to indemnify bail in a criminal case was sustained in regard to the costs which he was obliged to pay on default of the principal under an act of parliament, but it was virtually conceded that no such promise of indemnity would be implied for the non-appearance of the principal, because it would be against public policy. In the course of the argument, JERVIS, C. J., said: 'As to the non-appearance of the defendant, there can, I apprehend, be little doubt; but a very different question may arise as to the costs; and here the recognizance was estreated only because Orchard failed to pay the costs.' And in the final opinion he said: 'The rule [to set aside for the plaintiff] was moved on the ground that a contract, in a criminal case, to indemnify the bail against the consequences of a default of the principal's appearance on the trial of the indictment, is contrary to public policy, and therefore that the law will not presume any such contract. It is unnecessary to decide that point on the present occasion, although we are inclined to think the objection well founded, and that such a contract would be contrary to public policy, inasmuch as it would be in effect giving the public the security of one person only, instead of two.'

In the subsequent case of Cripps v. Hartnoll, 4 Best & S. 414, it was held by the court of exchequer chamber, upon much consideration, that an express contract to indemnify the bail in a criminal case might be sustained, but that no such contract is implied by law. In that case the plaintiff had become bail for defendant's daughter upon his promise to hold the plaintiff harmless. The daughter making default, and the plaintiff being obliged to pay his recognizance, sued the defendant on his promise. The latter set up the statute of frauds, and the question was whether the promise was or was not a collateral one; if the person for whose appearance bail was given (the daughter of the defendant) was in law liable to indemnify her bail, then the promise of the father was a collateral one, and void by the statute of fraud for not being in writing; if she was not thus liable, then the father's promise was an original promise of indemnity, and the statute of frauds did not apply. The case was fully argued, first in the king's bench (2 Best & S. 697) and afterwards in the exchequer chamber on error. The king's bench held, in deference to a former case of Green v. Cresswell, 10 Adol. & E. 453, that the daughter was primarily liable, and that the promise of the father was collateral. But in the exchequer chamber it was pointed out that Green v. Cresswell was a case of bail in a civil, and not in a criminal, proceeding, and therefore not an authority in the case under consideration; and the court held that the daughter was not legally liable, and that the promise was not a collateral one; and reversed the judgment of the court of king's bench. Chief Baron POLLOCK, after pointing out the distinction, said: 'Here the bail was given in a criminal proceeding; and, where the bail is given in such a proceding, there is no contract on the part of the person bailed to indemnify the person who became bail for him. There is no debt, and with respect to the person who bails there is hardly a duty; and it may very well be that the promise to indemnify the bail in a criminal matter should be considered purely as an indemnity, which it has been decided to be.'

This decision (made in 1863) has not, so far as we are aware, been shaken by any subsequent case in England or in this country; and we think it is based on very satisfactory grounds. This may be more apparent when we consider the peculiar character and objects of bail in criminal cases as compared with the object and purpose of bail in civil cases. The object of bail in civil cases is, either directly or indirectly, to secure the payment of a debt or other civil duty; while the object of bail in criminal cases is to secure the appearance of the principal before the court for the purposes of public justice. Payment by the bail in a civil case discharges the obligation of the principal to his creditor, and is only required to the extent of that obligation, whatever may be the penalty of the bond or recognizance; while payment by the bail of their recognizance in oriminal cases, though it discharges the bail, does not discharge the obligation of the principal to appeal in court; that obligation still remains, and the principal may at any time be retaken and brought into court. To enable the bail, however, to escape the payment of their recognizance by performing that which the recognizance bound them to do, the government will lend them its aid in every proper way, by process and without process, to seize the person of the principal and compel his appearance. This is the kind of subrogation which exists in criminal cases, namely, subrogation to the means of enforcing the performance of the thing which the recognizance of bail is intended to secure the performance of, and not subrogation to the peculiar remedies which the government may have for collecting the penalty; for this would be to aid the bail to get rid of their obligation, and to relieve them from the motives to exert themselves in securing the appearance of the principal. Subrogation to the latter remedies would clearly be against public policy by subverting, as far as it might prove effectual, the very object and purpose of the recognizance. It would be as though the government should say to the bail, 'We will aid you to get the amount of your recognizance from the principal, so that you may be relieved from your obligation to surrender him to justice.' If payment of the recognizance operated as a satisfaction or composition of the crime, then the subrogation contended for might be free from this objection; for then the government would be satisfied in regard to the principal matter intended to be secured.

We have been referred by the appellant's counsel to two cases in this country which are supposed to maintain a contrary doctrine to that of the English cases above cited. These are Reynolds v. Harral, 2 Strob. (S.C..) 87, and Simpson v. Roberts, 35 Ga. 183. In Reynolds v. Harral (which was decided in 1847) it was indeed held that bail in a criminal case may maintain an action against their principal for money paid, to indemnify them for what they have been obliged to pay on their recognizance. But the case stands alone, and the point was very little discussed; and the court relied for authority upon the observation in Petersd. Bail, already referred to, which, as we have seen, was based on a decision at nisi prius in a civil proceeding, and was expressly overruled as applied to criminal cases in Cripps v. Hartnoll. The other case (Simpson v. Roberts) was one in which the principal executed a mortgage to the bail to induce him to enter into the recognizance, and the mortgage was sustained by the court. This decision entirely accords with that of Cripps v. Hartnoll. Neither of the cases cited, therefore, can be regarded as affecting the authority of that case.

As to the act of congress, which declares that sureties on bonds given to the United States shall have the same right of priority which the United States have by law, we do not think that it contains anything to modify the result to which we have come. The act referred to is now to be found in section 3468 of the Revised Statutes, and is as follows: 'Whenever the principal in any bond given to the United States is insolvent, or whenever such principal being deceased, his estate and effects which come to the hands of his ececutor, administrator, or assignee are insufficient for the payment of his debts, in either of such cases any surety on the bond, or the executor, administrator, or assignee of such surety, pays to the United States the money due upon such bond, such surety, his executor, administrator, or assignee shall have the like priority for the recovery and receipt of the moneys out of the estate and effects of such insolvent or deceased principal as is reserved to the United States, and may bring and maintain suit upon the bond in law or equity, in his own name, for the recovery of all moneys paid thereon.'

We do not understand that this section was intended to embrace recognizances in criminal cases. The section is taken from, and is substantially a reproduction of, the proviso of the sixty-fifth section of the act to regulate the collection of duties, approved March 2, 1799. 1 St. 676. That section related to bonds given for the payment of duties, and declared that, if not satisfied when due, they should be prosecuted without delay; and in all cases of insolvency, or where an estate in the hands of executors, administrators, or assignees should be insufficient to pay all the debts due from the deceased, the debt or debts due to the United States, on any such bond or bonds, should be first satisfied; and any executor, administrator, or assignee who should pay other debts before paying the United States, should be personally liable; and the proviso then declared that if the principal in any bond given for duties on goods, wares, or merchandise imported, or other penalty, should be insolvent, or if, being deceased, his estate should be insufficient to pay all his debts, and if, in either of such cases, any surety on the said bond or bonds, or the executors, administrators or assignees of such surety, should pay to the United States the money due upon such bond or bonds, such surety, etc., should have the like advantage, priority, or preference for the recovery of the said moneys out of the estate of such insolvent, or deceased principal, as were reserved or secured to the United States, and should and might bring and maintain a suit or suits upon said bond or bonds in law or equity in his, her, or their own name or names for the recovery of all moneys paid thereon.

The only difference between section 3468 of the Revised Statutes and this proviso is that the latter in terms relates to bonds given for duties, while the former uses the more general terms, 'whenever the principal in any bond given to the United States is insolvent,' etc. If it was intended by congress to enlarge the scope of the section so as to include other bonds than those given for duties, (as seems to be the necessary inference from the language,) still, it is restricted to bonds: the words are 'whenever the principal in any bond given to the United States is insolvent,' etc., and any 'surety on the bond pays the money due upon 'such bond,' such surety shall have the like priority, etc., and may bring and maintain a suit upon 'the bond in his own name, etc. This cautious phraseology, so carefully avoiding any general words of enlargement beyond the article of 'bonds' alone, seems to imply that, in extending the peculiar privileges given to sureties, it was only intended to do so in reference to obligations of the same general character with those referred to in the original act; that is to say, bonds conditioned for the payment of money, or, at most, to embrace, besides those conditioned for the performance of some civil duty, such as the faithful discharge of the duties of an office, etc. Had it been intended to include sureties for appearance in criminal cases, the word 'recognizance,' or some other appropriate term, or some general word adapted to the purpose, would naturally have been used. The revisers would not have proposed, nor would congress have made, such a fundamental change in the law as the extension of this provision to criminal cases, without employing more appropriate terms for that purpose than those which the section contains. It will not be inferred that the legislature, in revising and consolidating the laws, intended to change their policy, unless such intention be clearly expressed. McDonald v. Hovey, ante, 142. Our opinion is that the right of subrogation does not exist in this case.

But if the sureties were entitled under the act to the same priority which the United States have, they are not entitled to use the name of the United States in prosecuting their claim. The statute expressly declares that they must sue in their own names. The reason is obvious. The government has many advantages in proceeding which are not possessed by individuals, and is not liable to costs; and individuals prosecuting claims against other individuals ought not to have the advantage of the name and prestige of the United States. In the case of U.S. v. Preston, 4 Wash. C. C. 446, the surety in a duty-bond, having paid the judgment recovered on it, brought an action in the name of the United States, for his own use, against the assignees of the principals, and contended that he was entitled to every advantage which the United States are entitled to in such a suit, as to sue in the federal court, to require special bail, to demand a trial at the return of the writ, to exclude equitable defenses, etc. The court, by Mr. Justice WASHINGTON, held that the action could not be brought in the name of the United States, but only in the name of the surety himself, and that the only advantage which the law gave to the surety was that of priority over other creditors, and not in the form and modes of proceeding.

As it is conceded that the United States have received full satisfaction of the recognizance on which the present suit is based, and that this suit is not prosecuted for the benefit of the United States, but solely for the benefit of the sureties, we are of opinion that it cannot be sustained; but that the bill ought to be dismissed, as well on the ground that the sureties are not subrogated to the rights of the United States as on the ground that they cannot sue in the name of the United States. This conclusion does not touch the merits of the case as set up in the bill, considered as a bill filed by the United States on their own behalf and for their own use; but the bill itself shows that it was filed for the benefit of the sureties, although they may not have paid their recognizance when it was filed. Without deciding, therefore, whether, on demurrer, the bill might or might not have been sustained, considered purely as a bill filed by the United States on their own behalf, we are satisfied that its dismissal by the court below was right, considered as a bill filed on behalf, and for the benefit of, the sureties. And as it is now admitted that the United States have been satisfied and paid, and as, for this reason, if for no other, the bill should be dismissed, our conclusion is that the decree of the court below should be affirmed; and it is affirmed accordingly, but without costs-each party to pay their own costs on this appeal.


text: Talk:United States v. Ryder/Opinion of the Court


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Leggett v. Allen

A. J. Falls, for motion.

Thorndike Saunders, in opposition.

WAITE, C. J.

title: Leggett v. Allen


text: Talk:Leggett v. Allen

title: Talk:Leggett v. Allen


text:
Leggett v. Allen/Opinion of the Court

This motion is granted on the authority of Wiswall v. Campbell, 93 U.S. 347, in which it was decided that this court has no jurisdiction to review a judgment of the circuit court, rendered in a proceeding upon an appeal from an order of the district court rejecting the claim of a supposed creditor against the estate of the bankrupt, and for the reason that a proceeding to prove a debt is part of the suit in bankruptcy, and not an independent suit at law or in equity. Such being the nature of the proceeding, it is a matter of no consequence whether the appeal from the district court to the circuit court was taken by the creditor or the assignee, for it has always been held that this court has no control over judgments or orders made by the circuit courts in mere bankruptcy proceedings. It is unnecessary to repeat here what was said in Wiswall v. Campbell. This case and that are in all material respects alike. Dismissed.

title: Leggett v. Allen/Opinion of the Court


text: Talk:Leggett v. Allen/Opinion of the Court


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Parcher v. Cuddy

A. B. Maynard, H. H. Swan, and''Geo. F. Edmunds'', for motion.

No brief filed in opposition.

WAITE, C. J.

title: Parcher v. Cuddy


text: Talk:Parcher v. Cuddy

title: Talk:Parcher v. Cuddy


text:
Parcher v. Cuddy/Opinion of the Court

Without deciding whether an injunction may be granted under any circumstances by this court to stay proceedings in the state courts during the pendency of an appeal in a suit brought by the owners of a vessel to obtain the benefit of the limitation of liability, provided for by sections 4283, 4284, 4285, and 4286 of the Revised Statutes, we are all of the opinion that this motion should be denied. Both of the courts below have decided that the vessel owned by the appellants did not come within the purview of the statute, and consequently that the relief asked for should not be granted. If the suits in the state courts go on, and judgments are rendered against the appellants, there is a way in which decisions overruling defenses set up under the statute may be brought here for review, and the errors, if any, corrected. In view of these facts we are not inclined to use the extraordinary writ of injunction to stay proceedings in suits begun in the state courts before the appellants filed their libel in the district court, simply because of the expense that will be consequent upon trials pending the appeal. If we have the power it should not be used in a doubtful case, and after two judgments below denying the relief, unless the reasons are imperative.

title: Parcher v. Cuddy/Opinion of the Court


text: Talk:Parcher v. Cuddy/Opinion of the Court


text:
Page:An account of the action off Cape Lookout.djvu/18

 SECRET

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The U.S.S. PC815 wes manned by S.C.T.C. trained officers and petty officers, experienced in handling ASN vessels or at least closely instructed.

The sound equipment of the U.S.S. PC815 is QCS and was easily the best, probably the only, efficient sound gear on the scene, well cared for and well-manned.

All attack conning was done by the Commanding Officer as well as all usual conning during the period of attacks, search and patrol. With due allowance for lack of rest, all attacks were conducted and operated on standard procedure on the doctrine of Fleet Sound School, Key West, Florida.

This vessel appreciates the favor of Comnowestseafron for allowing it to remain on the scene and later, for the interview.

It is specifically claimed that one submarine presumably Japanese, possibly a mine-layer, was damaged beyond ability to leave the scene and that one submarine, presumably Japanese, possibly a mine layer, was damaged beyond ability to return to its base.

This vessel has requested permission to search for possible wrecks on the bottom to bouy them to be swept for or dived for. It is the opinoin of this vessel that at least attacks/or in the vicinity of attacks VII, VIII, and IX, in 92 fathoms of water. Due to stress of attack or later attempts to get away, these positions may not mark, exactly, the locality of any wreck.

This vessel wishes no credit for itself. It was built to hunt submarines. Its people were trained to hunt submarines. Although exceeding its orders originally by attacking the first contact, this vessel feels only that it has done the job for which it was intended and stands ready to do that job again.

L. Ron Hubbard Lieutenant, D-V(S), USSR Commanding U.S.S. PC815


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Page:Federalist, Dawson edition, 1863.djvu/121

Rh


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Page:The Dictionary of Australasian Biography.djvu/271

Katene, Wiremu, a northern chief, for a considerable time represented one of the Maori constituencies in the House of Representatives, New Zealand. When the Waterhouse Ministry decided to give the Maoris some voice in the Councils of the colony, Wiremu Katene and his colleague, Wiremu Parata, were made members of the Executive Council or ministers without portfolio. Katene held this office from Nov. 4th, 1872, till Feb. 15th, 1876.

Kavel, Rev. August, was pastor of the Evangelical Lutheran Church at Klemzig in Prussia from 1826 to 1835, when he resigned in consequence of his conscientious objections to the liturgy by which the Prussian Government sought to unite the Reformed and Lutheran Churches, and which they forced on the unwilling congregations of both creeds. Mr. Kavel's flock desiring to follow their pastor to some new sphere, where freedom of worship would be insured, he made preliminary arrangements with the South Australian Company for their emigration to that colony. The Prussian Government, however, refused passports, and owing to the delay, the negotiations fell through. Mr. Kavel first saw Mr. Angas, the chairman of the company, on the subject in April 1836, and after waiting patiently for over a year the members of his congregation presented a petition to the King, with the result that he instructed Dr. Strauss, a councillor of the Consistory in Berlin, to proceed to Klemzig, and use his best endeavours to bring the people back to the Established Church. His mission totally failed, the people remaining stedfast and immovable. Many of the ministers and philanthropists of London joined together to expedite matters, and proposed to call a meeting to ventilate the whole question. But Mr. Kavel declined to be present, or to accept the well-meant intervention, on the ground that claiming the political interference of a foreign power was contrary to the Lutheran belief in the teaching of Scripture, although it was not inconsistent for them to leave a country where their religious freedom was endangered. The proposed meeting was therefore abandoned. Not so the scheme of emigration, which Mr. Angas ultimately agreed to provide for at his personal expense, chartering the Prince George for the purpose. The passports being at last forthcoming, two hundred of Mr. Kavel's people embarked at Hamburg on the Prince George, which finally left Plymouth in July 1838, arriving at Adelaide in November. The people were settled on Mr. Angas' land, on the north bank of the Torrens, where they founded a settlement called after their old home, Klemzig. The expatriated Lutherans were eager to make their settlements models of prosperity; but in doing so they omitted to make corresponding efforts to discharge their pecuniary obligations to Mr. Angas, who was placed in a most difficult position in consequence. Pastor Kavel grieved at the scandal of having under his care a congregation who had emigrated for conscience' sake, showing so little regard to their conscientious duty, adopted the stringent measure of refusing to administer the Lord's Supper to any who were failing to make faithful efforts to pay their debts. For a time he was a pastor almost without a flock, but the lesson he taught his people resulted in their honourably fulfilling their engagements and expressing their gratitude to Mr. Angas for his generous and timely aid. Mr. Kavel, who took his parents to the colony with him, died in 1859. He published a pamphlet setting forth the advantages of South Australia as a field for settlement, which had a wide circulation in Germany.

Kawepo, Renata, a well-known Maori chief, of Hawke's Bay, N.Z., took a prominent part on the side of the English during the disturbances on the East Coast, and distinguished himself on several occasions by his personal prowess. In the same spirit in which he afterwards refused to stand for the House of Representatives, and declined a seat in the Legislative Council when it was offered to him by Sir Donald McLean, this chief took the field as a volunteer with his people. The proffered rank of major in the colonial forces had no charms for him, as he was conscious that no mere creation of the kind could add to his 271