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Chaffee v. Hayward/Opinion of the Court

In this case, a judgment in favor of the defendant in error was rendered in the Circuit Court of the United States for the district of Rhode Island, at its June term, 1856. The plaintiff sued out a writ of error on the 27th of October, 1856, returnable to the December term of this court then next following; but the citation to the defendant was signed by the clerk of the court, and not by the judge who allowed the writ of error.

In pursuance of this writ of error, the record was filed here and the case docketed on the 24th of November, 1856; and on the 4th of December the defendant appeared by counsel in this court.

A motion has been made at the present term to dismiss the case, because the citation is signed by the clerk and not by the judge.

The citation is undoubtedly irregular in this respect, and the defendant in error was not bound to appear under it. And if a motion had been made at the last term, within a reasonable time, to dismiss the case upon this ground, it would have been dismissed. But the appearance of the party in this court, without making a motion to dismiss during the first term, is a waiver of any irregularity in the citation, and is an admission that he has received notice to appear to the writ of error. This point was decided in the cases of McDonogh v. Millaudon, 3 How., 693; United States v. Yulee, 6 How., 605; and Buckingham et al. v. McLean et al., 13 How., 150. And these cases have been recognised and affirmed in the case of Carroll et al. v. Dorsey et al., decided at the present term.

Indeed, any other rule would be unjust to a plaintiff in error, and is not required for the protection of the defendant. The latter is not bound to appear, unless he is legally cited, except for the purpose of moving to dismiss. He knows, or must be presumed to know, whether the notice which the law requires has been served on him or not. And if the objection is made at the first term, the plaintiff, by a new writ and proper citation, might bring up the case to the succeeding term. But if the defendant does not, by motion at the first term, apprise him of the irregularity of his proceeding in this respect, and of his intention to take advantage of it, the plaintiff is put off his guard by the defendant's appearance; and if the motion is permitted at the second term, he will be delayed an entire year in the prosecution of his suit, whenever it is the interest of a defendant in error to delay and harass his adversary.

An affidavit has been filed by one of the counsel for the defendant in error, stating that he is the junior counsel in the case, and that he did not make the motion at the last term, because the senior counsel was absent in Europe, and the deponent did not wish to decide on the expediency of the motion to dismiss without consulting him; that he expected him to return before the term ended, but the court adjourned sooner than he anticipated, and the senior counsel did not return until the court had finally adjourned to the next term.

The facts stated in this affidavit cannot influence the decision of the motion. The absence of one or of all the counsel employed by one party, in pursuit of other business, furnishes no ground for delaying a case in this court, without the consent of the adverse party.

The motion comes too late, and is therefore overruled.

v.

HAYWARD.

No. 52.

The motion to dismiss in this case stands on the same ground with that of Chaffee, trustee of Day, v. Hayward, just disposed of; and must, for the reasons assigned in that case, be also overruled.

When the case came up for argument, it was submitted on printed argument by Mr. Jenckes for the plaintiff in error, and argued orally by Mr. Bradley and Mr. Pitman for the defendant.

Point I. The Circuit Court for the district of Rhode Island, having jurisdiction of the subject-matter, may issue its process in the same form, and the process itself may be served in the same manner, as process issuing from the Supreme Court of that State for any cause of action within its common-law jurisdiction. (Process Act of May 8th, 1792, sec. 2, Stat. at L., I, 276.)

If the service was good by the laws of that State as they were at the date of the passage of the process act, then it is good under the laws of the United States.

1. The form of the writs in these cases and the modes of proceedings to bring the defendant before the court, were strictly in accordance with the law of Rhode Island. (Public Laws of Rhode Island, Digest of 1844, pp. 110, 113, 115.)

The statute law of Rhode Island regulating attachments on original writ was the same in 1789 as in 1855. (See Digest of 1767, p. 12; Digest of 1798, p. 201.) In all the statutes authorizing attachments of personal property, the same provision is found which is contained in the Digest of 1844, p. 113, sec. 3: 'When any attachment is made in manner aforesaid, the same shall be sufficient to bring the cause to trial.' Neither in the case of attachment of personal property, nor of real estate, (p. 115, sec. 11,) is there any provision made for personal service on the defendant. In the case of personal estate, a copy of the writ must be left at the defendant's usual place of abode, (p. 113, sec. 3,) and, in the case of real estate, with the person in possession of the land, and with the clerk of the town where the land lies, (p. 115, sec. 11.) Such service (sec. 3, p. 113) is expressly declared sufficient to bring the cause to trial. In case of real estate, the execution runs against the property attached, (sec. 11, p. 115.)

2. The above-cited statutes of Rhode Island show that the service of the process in a case in the Supreme Court of that State, made in the same manner as in this case, would have been sufficient to compel the attendance of the defendant, for the purpose of giving that court jurisdiction of the cause, and to form the basis of a judgment by default in case of his non-appearance.

Point II. The eleventh section of the judiciary act of 1789 does not prohibit the taking of jurisdiction over this cause.

The provisions of that section apply to the cases of jurisdiction founded on the citizenship of the parties. There is no reference in that section to suits at common law in which the Circuit Courts have jurisdiction over the parties by reason of their exclusive jurisdiction over the subject-matter. Most of the cases decided under that statute were cases where the jurisdiction depended solely on the citizenship of the parties, and were within the letter of the prohibition. (Picquet v. Swan, 5 Mason, 561; Richmond v. Dreyfous, 1 Sumner, 131; Toland v. Sprague, 12 Peters, 300.)

The case of Day v. The Newark India Rubber Manufacturing Company, 1 Blatchford, 628, was rightly decided, inasmuch as the mode of proceeding adopted in the commencement of that suit had not been adopted by the Circuit Court in New York; and it is submitted that it was not necessary to construe the eleventh section of the judiciary act as extending to a class of cases not referred to in that statute, and in which the jurisdiction does not depend on citizenship.

It is submitted that the Circuit Court in Rhode Island takes jurisdiction of cases under the patent laws, in the same manner that the Supreme Court of that State takes jurisdiction of any transitory action, and may use the same process to compel the appearance of the defendant, that could have been used by the State court at the date of the passage of the process act.

An objection to this view, taken by Mr. Justice Story in Picquet v. Swan, is, that the process act was not intended to enlarge the jurisdiction of the Circuit Courts as defined by the judiciary act. This objection is not tenable in a patent cause, because the jurisdiction of the court is enlarged by the patent laws, and the process acts are to be applied for the purpose of carrying into effect the jurisdiction so conferred, as well as that founded on citizenship.

Point III. This is a case of attachment of specific property, real and personal, which, by the Rhode Island statute at the date of the process act, is made a sufficient service to bring the cause to trial, and therein differs from all the cases decided under the eleventh section of the judiciary act, which were cases of foreign attachment. In Picquet v. Swan there was an attempt to attach the real estate of the defendant, but this attempted service was declared, by Judge Story, 'defective and nugatory.' The statute of Rhode Island in effect declares that a defendant is to be found in that State for the purposes of the jurisdiction of its courts, by his visible personal and real property, which can be seized and levied on by the sheriff. The decisions of the courts of the United States, in cases where the jurisdiction rests exclusively on citizenship, declare that a defendant is not found in a district where one of his debtors resides. There is no conflict in maintaining both propositions.

If specific property cannot be attached when the owner resides out of the district, then an assignee under the bankrupt laws would be deprived of his remedy against a debtor of the bankrupt, in the Circuit Court of the district where his property might be found, although that court has jurisdiction of the subject-matter of the suit.

So, also, it would be impossible to commence a suit at law against an American residing abroad, for infringing a patent for a product by sales in this country, although he might have here werehouses full of goods.

Point IV. If the dictum in Toland v. Sprague, 'that even in case of a person being amenable to process in personam, an attachment against his property cannot be issued against him, except as a part of or together with process to be served upon his person,' is to be established as a rule for the service of process from the courts of the United States in all cases, then it is not possible to obtain security for a debt by attachment on original process from the Circuit Court in the district of Rhode Island.

An attachment cannot be made on original writ, if the debtor be within the marshal's precinct. He can attach goods and chattels only when he 'cannot find the body of the defendant within his precinct,' (Dig. of 1844, p. 113, sec. 3;) and real estate can be attached only when 'the defendant's body or personal estate cannot be found within the State,' (p. 115, sec. 11; Dig. of 1857, pp. 438, 439, secs. 4, 5, 15.) No provision is made in either case for personal service on the defendant. A copy of the writ is to be left at his last and usual place of abode, if he has any in the State, and, if not, notice is to be given by advertisement. But the form of the writ is such that if personal service can be made, no attachment can be made, and, when an attachment is made, no personal service is required or expected.

Many judgments have been rendered in the Circuit Court of Rhode Island, in suits commenced by attachment against citizens of Rhode Island who have been absent, in the belief that the process of that court was to be served like the process of the State courts, and with like effect. Property has been sold, and titles to real estate have passed, upon sales made on executions issued on judgments obtained by default. A decision against the validity of such attachments would not only unsettle the titles to property thus acquired, but would deprive suitors in the Circuit Court of the United States for that district of the most valuable portion of their remedial process against their debtors.

The counsel for the defendant in error referred to the following authorities:

No civil suit can be brought in a Circuit Court against the defendant in any district whereof he is not an inhabitant, or is not found at the date of the alleged service of the writ. (Judiciary act of 1789, sec. 11, Stat. at Large, vol. 1, p. 79; Hollingsworth v. Adams, 2 Dallas, 396; Pollard v. Dwight, 4 Cranch, 424; Picquet v. Swan, 5 Mason, 35, 48, 50; Richmond v. Dreyfous, 1 Sumner, 131, 132; Harrison et al. v. Rowan et ux., 1 Pet. C. C. R., 489; Toland v. Sprague, 12 Pet., 300, 328, 330; Com. and R. R. Bank of Vicksburg v. Slocumb et al., 14 Pet., 60; Levy v. Fitzpatrick, 15 Pet., 171; Louisville R. R. Co. v. Letson, 2 How., 556, 557; Herndon v. Ridgway, 17 How., 424; Sadlier v. Fallon, 2 Curtis, 579, 581.)

The law has been equally well settled in relation to service of process in patent suits. (Horace H. Day v. The Newark India Rubber Manufacturing Co., 1 Blatch., 629; Saddler et al. v. Hudson et al., 2 Curtis, 6.)

Mr. Justice CATRON delivered the opinion of the court.

The question of law decided below, and which we are called on to revise, arises on the following facts: On the twenty-second day of October, 1855, the plaintiff in error sued out a writ in the Circuit Court of the United States for the Rhode Island district, against Nathaniel Hayward, styling him as 'of Colchester, in the State of Connecticut, commorant of Providence, in the State of Rhode Island,' for the recovery of damages alleged to have been sustained by the plaintiff in error, by reason of an alleged infringement of a patent right claimed by said plaintiff.

On the same day, the marshal of the Rhode Island district made return on the writ, that 'for want of the body of the within defendant to be by me found within my district, I have attached,' &c., (enumerating certain real estate lying in the city of Providence, in the State of Rhode Island,) and a still further return of having made further service of the writ, by attaching all the personal estate of the defendant in the India rubber factory of Hartshorn & Co., and in the store or warehouse No. 7, Dorrance street stores, &c., and 'have left true and attested copies of this writ, with my doings thereon, with the city clerk of the city of Providence, and with John Sweet and William E. Himes, they being in possession of the premises, the defendant having no known place of abode within my district.'

At the November term of the court, a declaration was filed, containing the allegations of citizenship of the plaintiff and defendant, and that the defendant was commorant of Providence, as in the writ; and at the same term the defendant, in his own proper person, pleaded to the jurisdiction of the court, that he was at the time of the pretended service of the writ, and is, an inhabitant of the district of Connecticut, and not an inhabitant of the district of Rhode Island, nor was he at the time of the pretended service of the writ within the district of Rhode Island; praying the judgment of the court, whether it can or will take cognizance of the action against him.

To this plea the plaintiff, by his attorney, filed a general demurrer, on which the cause was heard, and at the June term the court overruled the demurrer and dismissed the case for want of jurisdiction; upon which, the plaintiff sued out a writ of error.

By the eleventh section of the judiciary act of 1789, it is provided, 'That no civil suit in a Circuit or District Court shall be brought against an inhabitant of the United States by any original process in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ.'

It has been several times held by this court as the true construction of the foregoing section, that jurisdiction of the person of a defendant, (who is an inhabitant of another State,) can only be obtained, in a civil action, by service of process on his person, within the district where the suit is instituted; and that no jurisdiction can be acquired by attaching property of a non-resident defendant, pursuant to a State attachment law. The doctrine announced to this effect, in the case of Toland v. Sprague, in 1838, (12 Peters, 327,) has been uniformly followed since, both by this court and at the circuits. (15 Pet., 171; 17 How., 424.)

It is insisted, however, for the plaintiff, that these rulings were had in cases arising where the jurisdiction depended on citizenship; whereas, here the suit is founded on an act of Congress conferring jurisdiction on the Circuit Courts of the United States in suits by inventors against those who infringe their letters patent, including all cases, both at law and in equity, arising under the patent laws, without regard to citizenship of the parties or the amount in controversy, and therefore the eleventh section of the judiciary act does not apply, but the process acts of the State where the suit is brought must govern; and that the act of Congress of May 8th, 1792, so declares.

The second section of that act provides, that the forms and modes of proceeding in suits at common law shall be the same as are now used in the Federal courts, respectively, pursuant to the act of 1789, ch. 21, known as the process act of that year.

This act (sec. 2) declares, that until further provision shall be made, and except where by this act 'or other statutes of the United States is otherwise provided,' the forms of writs and executions, and modes of process in suits at common law, shall be the same in each State, respectively, as are now used or allowed in the Supreme Court of the same. This was to be the mode of process, unless provision had been made by Congress; and, to the extent that Congress had provided, the State laws should not operate.

Now, the only statute of the United States then existing, regulating practice, was the judiciary act of 1789, (ch. 20,) which is above recited. The eleventh section is excepted out of and stands unaffected by the subsequent process acts, and is as applicable in this case as it was to those where jurisdiction depended on citizenship. It applies in its terms to all civil suits; it makes no exception, nor can the courts of justice make any.

The judicial power extends to all cases in law and equity arising under the Constitution and laws of the United States, and it is pursuant to this clause of the Constitution that the United States courts are vested with power to execute the laws respecting inventors and patented inventions; but where suits are to be brought is left to the general law: to wit, to the eleventh section of the judiciary act, which requires personal service of process, within the district where the suit is brought, if the defendant be an inhabitant of another State.

This case, and that of Day against Hayward, depend on the same grounds of jurisdiction, and were both correctly decided in the Circuit Court; and the judgment in each is affirmed.

title: Chaffee v. Hayward/Opinion of the Court


text: Talk:Chaffee v. Hayward/Opinion of the Court

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


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Day v. Union India Rubber Company

THIS was an appeal from the Circuit Court of the United States for the southern district of New York.

The case is stated in the opinion of the court.

It was argued by Mr. Clarence A. Seward and Mr. Jenckes for the appellant, and by Mr. Noyes for the appellees, upon which side there was also a brief by Mr. Staples.

Mr. Justice NELSON delivered the opinion of the court.

title: Day v. Union India Rubber Company


text: Talk:Day v. Union India Rubber Company

title: Talk:Day v. Union India Rubber Company


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Day v. Union India Rubber Company/Opinion of the Court

This is an appeal from a decree of the Circuit Court of the United States for the southern district of New York.

The bill was filed in the court below by Day, as assignee of the patent of Edwin M. Chaffee, for a new improvement in preparing and applying India rubber to cloth, &c., dated the 31st August, 1836, and renewed for seven years from the 31st August, 1850, against the defendants, for an alleged infringement during the running of the renewed term.

The questions involved in the case are, substantially, the same as those presented and decided in the case of Hartshorn et al. v. Day, at the last term, and reported in 19 How., p. 211. That was an action at law, brought by the same plaintiff, upon this patent, against the defendants, who were licensees under Charles Goodyear, for the manufacture of India rubber boots and shoes. The defendants in the present case are licensees under Goodyear, for the manufacture of India rubber cloth for various purposes. In both cases, the right to manufacture the article rested upon the authority of Goodyear to grant the license, as derived from Chaffee, the patentee.

The court held, in the case of Hartshorn et al. v. Day, that under the agreement of the 5th September, 1850, between Chaffee, the patentee, and William Judson, the entire ownership in the patent, legal and equitable, passed to Judson, for the benefit of Goodyear and those holding rights under him, and on that ground decided in favor of the licensees.

Now, in this case the licenses under Goodyear to manufacture cloth of the description claimed are as broad and ample as were those to the defendants in the case just mentioned. Goodyear became the sole owner of the patent of Chaffee as early as 28th June, 1844, and on the 18th July following gave a license to the Naugatuck India Rubber Company, to manufacture cloths, with certain exceptions, under all his patents-those in which he was then interested or in which he might thereafter be interested, issued or to be issued-and, also, in all renewals of patents. He also gave a like extensive license, on the 28th of March, 1847, to W. E. & John Rider, for manufacturing of ships' letter and mail bags; and in February of the same year, a similar license to manufacture wearing apparel, &c., to Jonathan Trotter; and on the 1st July, 1848, one to Trotter and W. Rider & Brother, for the manufacture of army and navy equipments, sheet rubber, &c. All these various licenses afterwards became consolidated in the Union India Rubber Company, the defendants in this suit, and present therefore a complete defence to the suit, if Goodyear was the true owner of the Chaffee renewed patent. And this, as we have seen, has already been held in the case of Hartshorn v. Day.

Besides, in the agreement of the 5th September, 1850, between Chaffee and Judson, it is expressly stated that the patent was conveyed to the latter, to secure it for the benefit of Goodyear and those holding rights to use it under and in connection with his licenses; and Judson was also directed to hold it for their benefit.

The license of the defendants therefore, in this case, stands upon two grounds, either of which would seem to constitute a sufficient defence to the suit for infringement: First, authority from Goodyear, the owner of the renewed term of the patent; and second, the express recognition of Chaffee, the patentee, of the right of these parties as licensees of Goodyear to use the improvement. And we may add to these grounds of defence, that upon the interpretation of the court in the case of Hartshorn v. Day, of the several agreements relating to this patent, and especially that of 5th September, 1850, Day took no interest in it under the assignment of Chaffee of 1st July, 1853, he having previous to that time parted with all his interest for the benefit of Goodyear and his licensees.

Some evidence has been given in the case for the purpose of showing that the agreement of 5th September was not sealed at the time of its execution, and that the seal must have been annexed afterwards without any authority. But it is too slight and uncertain to be entitled to any weight.

It has also been insisted that this instrument was procured by fraud from Chaffee, through the contrivance of Judson. But the evidence relied on is very general and unsatisfactory; and, besides, it is too late to set up any such ground of defence after Chaffee himself has carried the agreement into execution, and acted under it, receiving its benefits for some three years. And what is remarkable on this point, he is the chief witness to make out the alleged fraud.

It has also been urged that the licensees have not contributed to the fund for paying the expenses of the renewal of the patent. But this is a matter in which Chaffee had no interest. He has taken the indemnity of Judson against these expenses. The licensees were never liable to him for them.

Without pursuing the examination further, we are entirely satisfied, for the reasons above stated, that the decree below is right, and should be affirmed.


text: Talk:Day v. Union India Rubber Company/Opinion of the Court


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Payne v. Niles

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the eastern district of Louisiana.

As originally brought, the suit was Niles & Co. v. Knox, and the circumstances which led to the change of title are stated in the opinion of the court.

On the 8th of February, 1856, the Circuit Court dismissed the intervention, with costs, when the intervenors sued out a writ of error, and brought the case up to this court.

It was argued by Mr. Chilton for the plaintiffs in error, and by Mr. Benjamin for the defendant. There were also briefs of Mr. Chilton and Mr. Davidge for the plaintiffs in error, and Mr. Pike for the defendant.

Mr. Benjamin thus noticed the point upon which the decision of the court turned:

1st. The writ of error must be dismissed. There is no such record as is required by the eleventh and thirty-first rules of the court. There is nothing but a petition of intervention, and an agreed statement of facts without any date, but which seems to have been made up after the new trial was refused; no answer, no pleadings, no bill of exceptions. (Keene v. Whitaker, 13 Pet., 459; Curtis v. Petitpain, 18 How., 110.)

2d. The judgment appealed from is one of which this court has no jurisdiction; the writ ought to be dismissed. (Bayard v. Lombard, 9 How., 550; Curtis v. Petitpain, 18 How., 110.)

Mr. Chief Justice TANEY delivered the opinion of the court.

title: Payne v. Niles


text: Talk:Payne v. Niles

title: Talk:Payne v. Niles


text:
Payne v. Niles/Opinion of the Court

This case is brought here by a writ of error directed to the Circuit Court for the eastern district of Louisiana.

It appears by the transcript, that Niles & Co., citizens of Ohio, brought suit in the Circuit Court against Andrew Knox, of Louisiana, for the price of certain machinery furnished to the latter for the use of his plantation. They claimed the vendor's privilege on the articles sold, which were still in possession of the vendee. The suit was instituted on the 21st of February, 1855, and on the 17th of April, 1855, a decree was rendered in favor of the plaintiff for two thousand six hundred and eighty-six dollars and sixty-nine cents, with interest, and with the vendor's privilege on the machinery.

On the 19th of March, 1855, Payne & Harrison, the plaintiffs in error, citizens of Louisiana, filed in the Circuit Court a petition of intervention in the above-mentioned suit, alleging that Knox was indebted to them in a large sum of money, for which they held a mortgage on the plantation on which the machinery in question was erected; and claiming that their right by virtue of this mortgage was superior to the vendor's lien of Niles & Co., and prayed a citation for Niles & Co.; but did not pray for any process against Knox. Nor does the record show that he ever voluntarily appeared to or answered this petition. And on the 8th of February, 1856, it was by the judgment of the Circuit Court finally dismissed, with costs.

A statement of facts was afterwards agreed on between the counsel for Niles & Co. and the counsel for Payne & Harrison, which is set forth in the transcript, but it does not appear that Knox assented to it, or indeed had any knowledge of it.

Afterwards, on the 18th of February, 1856, the counsel for Payne & Harrison represented to the court that Knox had died after the suit on their intervention was instituted, and that no one had qualified as his executor or administrator, and that there was no representative of his estate, except William A. Broadwell, of New Orleans, who was the duly-appointed and qualified syndic of said Knox; and thereupon moved the court that the said Broadwell be made a party to the cause, which was accordingly ordered by the court, and a copy of the order served on him by the marshal on the succeeding day; and on the day of the service, this writ of error was sued out by the intervenors, Payne & Harrison.

The writ recites that a judgment was rendered in a case between Niles & Co., plaintiffs, and Broadwell, syndic of Knox, defendant, and Payne & Harrison, intervenors in said suit, who were plaintiffs, both as against Niles & Co. and Broadwell, syndic of Knox; and citations were issued and served on Niles & Co. and Broadwell, to appear in this court upon the return of the writ of error.

It will be seen, from this statement, that Payne & Harrison were not parties to the judgment in the suit of Niles & Co. v. Knox. The only judgment in the Circuit Court to which they were parties, was the judgment dismissing their petition of intervention; and Knox was not made a party defendant in that proceeding, nor was he a party to that judgment. The order of the court to make Broadwell, his syndic, a party, was passed after this judgment was rendered.

Writs of error to remove the judgment of an inferior tribunal to this court are, under the acts of Congress, governed by the principles and usages of the common law. And it is very well settled in all common-law courts, that no one can bring up, as plaintiff in a writ of error, the judgment of an inferior court to a superior one, unless he was a party to the judgment in the court below; nor can any one be made a defendant in the writ of error, who was not a party to the judgment in the inferior court. Payne & Harrison, therefore, have no right to sue out a writ of error upon the judgment in the suit between Niles & Co. and Knox, to which they were not a party, nor can they make Knox or his representative a defendant in a writ of error brought upon the judgment on the petition of intervention, to which neither Knox nor Broadwell, his syndic, was a party.

This writ of error attempts to do both, and is therefore not warranted by law. It cannot bring the judgments referred to, or either of them, before this court, and must therefore be dismissed, with costs.

title: Payne v. Niles/Opinion of the Court


text: Talk:Payne v. Niles/Opinion of the Court


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McGavock v. Woodlief

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the eastern district of Louisiana.

The case is stated in the opinion of the court.

It was argued by Mr. Benjamin for the plaintiff in error. and Mr. Taylor for the defendant.

Mr. Benjamin for plaintiff in error:

It is difficult to institute an argument on a proposition which appears so plain as that the plaintiff's case was not made out on the facts stated to be proven; but as the judge below, even after argument for new trial, persisted in the opinion that plaintiff has proven his case, we will analyze the allegata and probata.

The plaintiff's petition was clearly demurrable; but as he was allowed to make all the proof he could, the case will be argued on the merits alone. It was necessary for plaintiff to prove—

1st. That he was employed as a broker by McGavock, to effect a sale of his plantation.

2d. That he did find a purchaser willing and able to buy the plantation at the price and terms fixed by McGavock, to wit, for $130,000, payable $20,000 in cash, and the remainder in five equal annual instalments, without interest.

3d. That the sale was actually made and the price received; or, at all events,

4th. That it was his employer's own fault that the sale was not effected; and that the employer's refusal to carry out the sale agreed on resulted from (to use the language of the judge) whim, or caprice, or insufficient reasons.

1st. The statement of facts finds the first fact essential to plaintiff's recovery.

2d. On the second point, the evidence directly contradicts the plaintiff's case.

According to the statement of facts, the purchaser to whom McGavock agreed to sell was one George M. Long; the price was to be $120,000 for the plantation, and $13,500 for the growing crop, to be paid as the crop was sold. This price was to be paid, says the statement, mainly in the notes of a Dr. Bard, which notes belonged to Mrs. Long.

Was Long a purchaser able and willing to make the purchase?

The statement says 'that he owned no property; or, if he did, that it stood in the name of his wife, and that he had little credit. His credit was not good.'

The statement also says of the notes, which were the main portion of the price, 'that they were the property of Mrs. Long, the wife of George M. Long; that although she at first refused to permit the notes to be used in the purchase of the plantation and slaves from McGavock, she afterwards consented that they should be so used, on condition that the sale of the plantation and slaves should be made to her.'

Can anything be clearer, then, than the fact that the purchaser procured by the broker was unable to buy, because he could not pay the price agreed on?

The petition contains no allegation of a sale to Mrs. Long. The statement of facts shows no consent of McGavock to sell to her. It shows not even a proposition to McGavock to sell to Mrs. Long; nothing but a power of attorney from her to the broker, to buy the property for her, with her husband's consent. It does not appear that her husband ever agreed to this, nor that her offer was ever communicated to McGavock.

The only purchaser procured by the broker being shown to be unable to comply with his bargain, on what conceivable ground could McGavock be compelled to pay a brokerage commission?

But the statement shows that Mrs. Long herself was unable to comply with the terms agreed on. It says, 'that it was in the contemplation of purchaser and seller that the notes of Dr. Bard should be substituted in the place of those which had been given by McGavock to Thibodaux, when McGavock purchased it from Thibodaux.'

Here, then, McGavock stipulated that his own notes should be taken up and returned to him, by substituting Bard's notes. But some of McGavock's notes, amounting to at least $20,000, were in the hands of Cammack, Squires, & West, and the statement says 'that application was made by the plaintiff, and by Long, to the said firm, to substitute the notes, &c., but that no satisfactory answer was received.'

How is this difficulty to be obviated? Here is a positive condition of the sale, an important condition, which the purchaser finds it impossible to comply with. Was McGavock bound to sell, and leave his own notes for $20,000 outstanding? It is true, that in the statement of facts the judge says that he 'sees no reason to doubt that Long and wife would have been prepared to comply with the terms of the contract, * * * even if they were required to pay cash the amount for which Cammack, Squires, & West, were endorsers, by having discounted a portion of Dr. Bard's obligations.'

It is obvious that this last quotation contains no statement of any fact, but a mere inference of the judge from the other facts proven; in other words, it is a reason given for his judgment.

But this passage is curious, as exhibiting how far the court had travelled away from the true issue, which was simply this: 'Was George M. Long, who made the purchase, able to comply with the condition of substituting Bard's notes for McGavock's?' The statement admits that he did not own Bard's notes, and could not get them for his own purchase; and that if he did, the holder of McGavock's notes would not make the exchange.

Thereupon the court decides that McGavock was bound to sell to Mrs. Long, or to Long and wife, and infers, in opposition to the direct fact that the substitution of notes was impracticable, that 'Long and wife would have been prepared to pay cash by discounting Bard's notes.'

Surely this is making a bargain for McGavock, not executing one made by him.

3d. It is admitted that no sale was actually made, and no brokerage due therefor for actually effecting a sale.

4th. If it were admitted that brokerage could ever be recovered without an actual sale effected, (a point which it is unnecessary to discuss under a state of facts like that above disclosed,) it is perfectly clear that the recovery could only be had in a case where the party employing the broker had, through his own fault and caprice, prevented the accomplishment of the condition on which the broker's right to commission depends, to wit, the effecting of a sale. As nothing of this kind appears in this case, it is our confident conclusion that the plaintiff in error has been erroneously condemned in the lower court. (Broad v. Thomas, 7 Bingh., 99; Read v. Rann, 10 Barn. and Cress.)

Mr. Taylor's points were the following:

1st. There is nothing in the record which can enable the court to revise the judgment of the court below. (Lathrop v. Judson, 19 How., 69.)

2d. The plaintiff in error employed the defendant in error, in his capacity of broker, to find a purchaser and to negotiate a sale of his (the plaintiff in error's) plantation, &c., for him. The defendant in error found a purchaser, brought the parties together, and they came to a distinct understanding and agreement to make and complete a sale of the property, and the sale was not completed only through the fault of the plaintiff in error.

3d. The right of the defendant in error to the usual commission of brokers in such cases became perfect when the minds of the parties to the negotiation were brought to a concurrence, and thus the consideration and terms of the contract of sale with respect to the property to be sold were agreed upon. (C. C. of La., Art. 1797, 1765; Story on Agency, sec. 329; Hammond v. Holliday, 1 Cur. and Payne, 387.)

Mr. Justice NELSON delivered the opinion of the court.

title: McGavock v. Woodlief


text: Talk:McGavock v. Woodlief

title: Talk:McGavock v. Woodlief


text:
McGavock v. Woodlief/Opinion of the Court

This is a writ of error to the Circuit Court of the United States, held by the district judge for the eastern district of Louisiana.

The suit was brought by Woodlief, a broker in the city of New Orleans, against the defendant, to recover the sum of two thousand six hundred dollars, as a commission for negotiating the sale of a plantation and slaves.

The petition sets out that on the 16th November, 1855, the defendant employed the plaintiff to procure a purchaser for his sugar plantation, situate on the Bayou La Fourche, in the State of Louisiana, and seventy slaves, for the price of $130,000, of which $20,000 was to be paid in cash, and the remainder in five equal annual instalments, with interest. That the plaintiff soon thereafter found a purchaser, namely, George M. Long, of the parish of Carroll, State of Louisiana; and on the 20th November, said Long, with the plaintiff, went to the residence of the defendant, examined the property, and concluded an agreement of purchase according to the terms stated.

The facts set forth in the petition were denied by the defendant, and the cause went down for trial before the court, a jury having been waived, when a judgment was rendered for the plaintiff, for the amount claimed.

The case comes up on a writ of error to this court upon a statement of facts by the judge. The issue was tried in the court below, and the judgment rendered on the 24th June, 1856. A motion for a new trial was heard, and denied on the 9th of October following. The writ of error was then prayed for and allowed, and the statement of facts drawn up and ordered to be filed, nunc pro tunc, as of the 24th June, 1856, the day the cause was first tried before the court.

An objection was made on the argument, that this statement of facts could not be noticed, it having been made up after the term in which the cause was tried, and as it did not appear that the court was requested to draw it up at the time of the trial. We are of opinion that, as the judge has drawn up and filed the statement as of the day of the trial, it is but reasonable to presume that he had been so requested at the trial by the counsel for the defendant. We agree that the request must be made at this time, in order to enable the court to notice it in error; but the statement may be drawn up afterwards, as shall be convenient for the judge. This is the settled practice in courts where the proceedings are according to the common law. The bill of exceptions may be settled after, though the exceptions must be taken at the trial.

As to the merits, we are of opinion that there was error in the decision of the court below.

The terms of the sale, as given by the vendor to the plaintiff, the broker, were simple and specific-the price $130,000, $20,000 in cash, and the remainder in five equal annual payments. Long, the purchaser, agreed to these terms, as averred in the petition, and not questioned in the case; and if he had offered and was in a condition to consummate the agreement according to its terms, no doubt the commission would have been earned, and the recovery below right. But when the parties proceeded to the execution of the contract of sale, a change was proposed by Long, the vendee, which, for aught that appears upon the facts or in the finding of the judge, was never assented to by the defendant. The change was substantial, and called for a new and distinct agreement before the vendor could be bound. The wife of Long was interposed as the purchaser, the husband being a person of no means or credit. Her means, it appears, consisted of notes given to her by Dr. Bard, for a plantation which she had sold to him; and the greater part of the statement of facts is made up of various negotiations with third parties, by the plaintiff and Long, with a view to turn these notes for the benefit of the defendant, so as to apply them towards payment of the $130,000, the purchase-money. This was to be brought about by substituting them in the place of notes which the defendant had given to one Thibodaux, from whom he had purchased his plantation. Thibodaux was willing to receive the notes of Dr. Bard, in lieu of the defendant's, if the substitution could be legally made, and he could retain a first mortgage on the plantation and slaves as a security. Whether this security could be given, or was agreed to be given, nowhere appears. Twenty thousand dollars of these notes of the defendant were, in some way, under the control of a commercial firm, who were endorsers upon them. A difficulty existed in making a substitution for these. No satisfactory arrangement was made in respect to them, and none at all as concerned the sum of $20,000, which was to be paid to the defendant in cash.

The evidence in the case therefore neither shows that the defendant agreed to this change of the conditions of sale, nor, if he had, that they could or would have been carried into effect by the third persons concerned, nor any evidence of the condition to pay the $20,000 down.

The terms of sale, as we have stated, were very distinct and easily understood; but the terms and conditions of the proposed fulfilment are complicated, confused, involved in doubt and uncertainty, and the fulfilment itself, even upon these conditions, rather conjectural than otherwise.

The learned judge observes, in his statement, 'that the court see no reason to doubt that Long and wife would have been prepared to comply with the terms of the contract, by meeting the wishes of McGavock, the defendant, in regard to the notes given by him when he purchased the plantation from Thibodaux, even if they were required to pay cash for the amount for which the commercial firm were endorsers, by having discounted a portion of Dr. Bard's obligations.' This is an opinion of what might have been effected towards the consummation of the contract of sale, rather than what had been done preparatory, and with a view to the fulfilment, which would have been much more pertinent to the issue in the case. As the terms of sale were explicit, the proposal to fulfil should have been equally so. Nothing should have been left to conjecture or speculation. There should have been as much certainty on the one side of the contract as upon the other. Certainty in the offer to fulfil is as important to the vendor as in the terms of the sale to the vendee, and equally necessary before the vendor can be put in fault. The broker must complete the sale; that is, he must find a purchaser in a situation and ready and willing to complete the purchase on the terms agreed on, before he is entitled to his commissions. Then he will be entitled to them, though the vendor refuse to go on and perfect the sale.

Judgment of the court below reversed.


text: Talk:McGavock v. Woodlief/Opinion of the Court


text:
Covington Drawbridge Company v. Shepherd (61 U.S. 227)

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the district of Indiana.

Shepherd and the other defendants in error, styling themselves citizens of Ohio, brought an action of trespass on the case against the Covington Drawbridge, Company, citizens of the State of Indiana, for injuries sustained by a steamboat belonging to the plaintiffs, in consequence of negligence in attending to the draw. The defendants pleaded not guilty, and the case was tried by a jury, who found a verdict for the plaintiffs, awarding $6,084.93. There were no prayers to the court or bills of exceptions. But the defendants sued out a writ of error, and brought the case up to this court, upon the ground that 'the Circuit Court had no jurisdiction of the cause. The averment of the citizenship of the defendants below, as stated in the declaration, is not sufficient to give jurisdiction to the court.'

It was argued by Mr. O. H. Smith for the plaintiffs in error, and submitted on printed argument by Mr. R. W. Thompson for defendants.

Mr. Smith contended that the declaration did not give jurisdiction to the court. The only part of the declaration that refers to the citizenship of the parties is in these words: 'Alexander O. Shepherd, James Davidson, Elijah F. Gillan, Samuel McClure, Samuel Peters, and George Willard, citizens of the State of Ohio, complain of the Covington Drawbridge Company, citizens of the State of Indiana, defendants in this suit, in a plea of trespass on the case.'

I refer to the following authorities, showing that the question is res adjudicata, in this court: Bingham v. Cabot, 1 Curtis, 267; Emory v. Greenough, ib., 265; Turner v. Enville, ib., 311; Abercombie v. Dupins, ib., 422; Wood v. Wagnon, ib., 427; Marshall v. Baltimore and Ohio Railroad Company, 16 How., 314; Lafayette Insurance Company v. Maynard French et al., November term, 1855, Supreme Court of the United States; this latter case decides the very question. Mr. Justice Curtis, in the opinion of the court, says: 'In the declaration, the plaintiffs are averred to be citizens of Ohio, and they complain of the Lafayette Insurance Company, a citizen of the State of Indiana.' 'This averment is not sufficient to show jurisdiction. It does not appear from it that the Lafayette Insurance Company is a corporation, or, if it be such, by the law of what State it was created. The averment that the Company is a citizen of the State of Indiana can have no sensible meaning attached to it. ''This court does not hold that either a voluntary association of persons, or an association into a body politic, created by law, is a citizen of a State within the meaning of the Constitution. And therefore, if the defective averment in the declaration had not been otherwise supplied, the suit must have been dismissed''. But the plaintiff's replication alleges that the defendants are a corporation, created under the laws of the State of Indiana, having its principal place of business in that state. These allegations are confessed by the demurrer, and they bring the case within the decision of this court in Marshall v. The Baltimore and Ohio Railroad Company, 16 How., 314, and the previous decisions.' The italics are my own.

In this case, there was no replication to supply the defect in the declaration, and therefore I maintain that the judgment must be reversed, and the suit dismissed.

The first branch of Mr. Thompson's argument was to show that it was not necessary to aver that the defendants below were a corporation. The second branch was as follows:

It being then settled that the defendants in this case are to be taken to be a corporation, it remains to be considered whether it appears from the declaration that the corporators are citizens of the State of Indiana, or that the corporation is engaged in its legal and proper vocation in said State. We maintain that both propositions are true. No one will deny that the averment of the citizenship of the plaintiffs is well stated, and the allegation is the same with reference to the defendants. In the case of the Bank of the United States v. Deveraux et al., 5 Cranch, 61, the averment of the citizenship of the corporation plaintiffs was, 'and your petitioners aver that they are citizens of the State of Pennsylvania;' and Chief Justice Marshall, in delivering the opinion of the court upon the authority of a case in 12th Mod., said, 'the court was authorized to look to the character of the individuals who composed the corporation on a question of jurisdiction.'

'Being authorized to sue in their corporate name, they could make the averment, and it must apply to the plaintiffs as individuals, because it could not be true as applied to the corporation.'

Surely, the averment in that case was no stronger than this. The averment in the declaration in this case is equivalent to a statement that the Covington Drawbridge Company was a corporation, (for the name implies it,) and that all the members of that corporation are citizens of the State of Indiana; this last averment is the essential element of jurisdiction. This court held in the case of Louisville Railroad Company v. Letson, 2 How., that jurisdiction might be maintained against a corporation defendant in a State where it was incorporated and had its principal office of business, though all of the corporators did not reside in the State of the corporation; and the decision proceeds on the ground, that where the corporation is created and exercises its powers, that is its place of residence, and that, on the assumption that the individual corporators are said to be inhabitants there, within the purview of the statute.

The cases in this court, since the case of the Commercial Bank of Vicksburg v. Slocum, 14 Peters, in which the question of jurisdiction has been decided, have proceeded upon the ground that jurisdiction might attach, though all the corporators, defendants, did not reside in the State where the suit was brought, but certainly the court has not said that averments which were held sufficient in the cases of Strawbridge, Deveraux, & Slocum, when the utmost strictness was required, would be insufficient now. The modern cases proceed upon the assumption that the residence of the corporators is presumed to be where the company is incorporated and does business, and that the jurisdiction is founded, in fact, upon the citizenship of those corporators, and not upon the citizenship of the corporation itself. It is the citizenship of some living, tangible being, that gives the court jurisdiction. Could a negro or set of negroes, though incorporated, (which they undeniably may be,) sue in the Federal courts? And yet, if it is the corporation that is the person, the citizen, they could. It is evident that the jurisdiction must rest upon the citizenship of the corporators, and be made expressly to apply by positive averment, or to be implied from the place of transacting business and the granting the charter, in which last case the corporators are estopped 'from averring a different domicil.' (See Justice Grier's opinion in Marshall v. B. and O. R. R., 16 How.)


text: Talk:Covington Drawbridge Company v. Shepherd (61 U.S. 227)


text:
Covington Drawbridge Company v. Shepherd (61 U.S. 227)/Opinion of the Court

But these corporation defendants are well described in the declaration as inhabitants of the State of Indiana, and exercising the functions of the corporation within the State. It is averred that they built a bridge with a draw across the Wabash river, in that State, that they had charge of said draw, that it was their duty to have raised it upon the approach of boats for their safe passage; that though notice was given, 'yet the defendants unjustly and wrongfully kept said draw down, and did not raise the same to permit the passage of plaintiff's boat, and compelled the said boat to run backward up the river from said bridge and draw, and await the action of said defendants in raising said draw.' The declaration had before alleged the construction of the bridge by the defendants. These allegations sufficiently show that the corporation was exercising its corporate powers in Indiana, and the power delegated to the corporation emanated from the State of Indiana; for no other State or power could authorize the erection of a bridge over a public highway situated in that State. By the rules of pleading applied to the declaration in this case, the Covington Drawbridge Company is to be regarded as a corporation, which had built and maintained a drawbridge upon the Wabash river, at Covington, Indiana, as their name would indicate they should, and that all the corporators or members of that company were and are citizens of Indiana.

If the court shall renounce the jurisdiction of the Circuit Court in this case, then every decision of this court upon the question of jurisdiction anterior to the case of Letson v. Louisville R. R. Co., 2 How., 497, will be completely overthrown, and not a vestige remain. The corporation will, in effect, be held to be the citizen, though Mr. Justice Curtis says, in the case of French, that this court does not hold a corporation to be a citizen of a State, within the meaning of the Constitution. It was understood, by the decision in Letson's case, to be the relaxing of a rigid rule theretofore existing, and allowing a larger class of cases to be brought within the jurisdiction of the court, founded upon the presumption that the corporators must of necessity be and reside at the place of business and property of the company.

It certainly never was intended to declare that the court had no jurisdiction where all the corporators were citizens of the State in which they were sued, and carried on their corporate business.

In the case of the Bank of Augusta v. Earle, 13 Pet., 512, it is said that a corporation can have no legal existence out of the bounds of the sovereignty by which it is created. It must dwell in the place of its creation.

This corporation, the Covington Drawbridge Company, dwelt at the bridge upon the Wabash river, at Covington, which they built and maintained, and upon which the plaintiff's boat was ruined. The corporation, dwelling at that bridge, in the State of Indiana, must necessarily have been created by the Legislature of the State of Indiana.

Again, Mr. Justice Grier, in delivering the opinion of the court in the case of Marshall v. The B. and O. R. R. Co., 16 How., 328, 329, reiterates the law for which we contend, that in deciding the question of jurisdiction, the court will look behind the corporate collective name given to the party, to find the persons who are the stockholders-the real parties to the controversy; and the question being whether an allegation that the 'defendants are a body corporate by the act of the General Assembly of Maryland,' was sufficient to make it appear that the 'real defendants,' the stockholders, were citizens of that State, held that it was.

If that indirect averment by intendment and estoppel is held to be a sufficient allegation of the citizenship of 'the real defendants,' how much better is the more full and comprehensive allegation used in the case in hand, the 'Covington Drawbridge Company, CITIZENS of the State of Indiana, defendants?'

Mr. Chief Justice TANEY delivered the opinion of the court.

The writ of error in this case is brought upon a judgment recovered by Shepherd and others, against the Covington Drawbridge Company, in the Circuit Court of the United States for the district of Indiana.

The only error assigned here is, that upon the declaration and pleadings in the case, the Circuit Court had no jurisdiction.

This objection is founded upon the description of the parties in the declaration, which is in the following words:

'Alexander O. Shepherd, Elijah F. Gillan, James Davidson, Samuel McClure, Samuel Peters, and George Willard, citizens of the State of Ohio, plaintiffs in this suit, complain of the Covington Drawbridge Company, citizens of the State of Indiana, defendants in this suit, in a plea of trespass on the case.'

The plaintiff in error, who was defendant in the court below, contends that it does not appear by this averment that the Drawbridge Company was a corporation chartered by Indiana, and had its principal place of business in that State; and that, unless this appears in the pleadings, the averment that they were citizens of that State was not sufficient to give jurisdiction to the Circuit Court.

It is very true, that where individuals voluntarily associate together, and adopt a name or description intended to embrace all of its members, and under which its contracts and engagements are made, and its business carried on, such a company can neither sue nor be sued by the name they have adopted, and under which they act, in any court of common law, whether it be the court of a State or of the United States. They must sue and be sued in their individual names as partners in the company.

But the answer to the objection taken by the plaintiff in error is, that the twenty-seventh section of the fourth article of the Constitution of Indiana provides that 'every statute shall be a public law, unless otherwise declared in the statute itself.' The statute of the Legislature of Indiana, incorporating the Covington Drawbridge Company, is therefore a public law, of which the Circuit Court and this court are bound to take judicial notice, without its being pleaded or offered in evidence. For wherever a law of a State is held to be a public one, to be judicially taken notice of by the State courts, it must be regarded in like manner by a court of the United States, when it is required to administer the laws of the State.

This being the case in this instance, the averment that the Covington Drawbridge Company are citizens of the State of Indiana is sufficient, according to the decision of this court in the case of the Louisville, Cincinnati, and Charleston Railroad Company v. Letson, 2 How., 497, which has ever since been adhered to, and must now be regarded as the settled law of the court.

The question as to the jurisdiction of the courts of the United States in cases where a corporation is a party, was argued and considered in this court, for the first time, in the cases of the Hope Insurance Company v. Boardman, and of the Bank of the United States v. Deveaux, 5 Cr., 57 and 61. These two cases were argued at the same term, and were, as appears by the report, decided at the same time. And in the last-mentioned case, the court held that in a suit by or against a corporation, in its corporate name, this court might look beyond the mere legal being which the charter created, and regard it as a suit by or against the individual persons who composed the corporation; and an averment that they were citizens of a particular State (if such was the fact) would be sufficient to give jurisdiction to a court of the United States, although the suit was in the corporate name, and the individual corporators not named in the suit or the averment.

But in the case of the Louisville, Cincinnati, and Charleston Railroad Company v. Letson, the court overruled so much of this opinion as authorized a corporation to plead in abatement, that one or more of the corporators, plaintiffs or defendants, were citizens of a different State from the one described, and held that the members of the corporate body must be presumed to be citizens of the State in which the corporation was domiciled, and that both parties were estopped from denying it. And that, inasmuch as the corporators were not parties to the suit in their individual characters, but merely as members and component parts of the body or legal entity which the charter created, the members who composed it ought to be presumed, so far as its contracts and liabilities are concerned, to reside where the domicil of the body was fixed by law, and where alone they could act as one person; and to the same extent, and for the same purposes, be also regarded as citizens of the State from which this legal being derived its existence, and its faculties and powers. And in the case of the Bank of Augusta v. Earle, 13 Pet., 519, the court said that a corporation can have no legal existence outside of the dominion of the State by which it is created. Consequently, the Covington Drawbridge Company being chartered by the State of Indiana, it necessarily has its home and place of business in that State; and the only averment in the declaration necessary to show a case for jurisdiction, was that of the citizenship of the parties who composed the company.

In the case of the Lafayette Insurance Company v. French, the declaration stated that the corporation itself was a citizen of Indiana. Now, no one, we presume, ever supposed that the artificial being created by an act of incorporation could be a citizen of a State in the sense in which that word is used in the Constitution of the United States, and the averment was rejected because the matter averred was simply impossible. But it appeared from other parts of the pleadings that the corporation was chartered by Indiana, and had its principal place of business in that State. And the court, therefore, applied the principle decided in the case of the Louisville, Cincinnati, and Charleston Railroad Company v. Letson, and held that the members of the corporate body must be presumed to be citizens of the same State. The citizenship of the corporators was regarded as the necessary and legal consequence of the facts stated in the pleadings without any positive and direct averment to that effect. The case of Marshall against the Baltimore and Ohio Railroad Company was decided upon the same ground. But in the case before us, the citizenship of the corporators is not left to be inferred by the court from other facts stated in the pleadings, but is directly and positively averred, and consequently freed from all objection on that head. Indeed, it is the same form of pleading in this respect that was used in the case of the Bank of the United States v. Deveaux, and which this court ruled to be good.

If the act of incorporation had not been a public law, which the court is bound to notice, then, undoubtedly, the proper description of the defendants would have been 'The Covington Drawbridge Company, citizens of the State of Indiana, incorporated by that name, by the said State, and having their principal place of business therein.' But in the case before us, the averment of the citizenship of the members of the corporation is all that is required, because the existence and domicil of the corporate body is judicially known to the court.

The judgment of the court below is therefore affirmed.

Mr. Justice CAMPBELL concurs in the result of the opinion of the court.

Mr. Justice DANIEL.

In dissenting from the decision of the court in this cause, it is not designed to reiterate objections which in several previous instances have been expressed. I will merely remark, with reference to the present decision, and to others in this court, numerous as they are said to have been, that they have wholly failed to bring conviction to my mind, that a corporation can be a citizen, or that the term citizen can be correctly understood in any other sense than that in which it was understood in common acceptation when the Constitution was adopted, and as it is universally by writers on government explained, without a single exception.


text: Talk:Covington Drawbridge Company v. Shepherd (61 U.S. 227)/Opinion of the Court


text: White v. Burnley

title: White v. Burnley


text: Talk:White v. Burnley

title: Talk:White v. Burnley