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Whiteside v. Haselton/Opinion of the Court

The suit in this case was brought originally in the chancery court of Marion county, Tennessee, by V. A. Gaskill and his wife, who is now the appellant, H. L. Whiteside. The defendants were J. C. Haselton, the Bartow Iron Company, of which he was president, James P. Boyce, and in his own right and as executor of Ker Boyce, deceased. The principal allegation of the bill with which we have to deal is that plaintiffs, in right of the wife, were the owners of one undivided half of certain mines, known as the Vulcan coal mines; that the half interest of plaintiffs was leased for five years to Badge and Eaton, against whom they had recovered judgments for rent unpaid, and that J. C. Haselton and the Bartow Iron Company had obtained possession of said mine, and were operating the same, and refused to recognize plaintiffs' title to the land or interest in the mine, and were confederating with Badge and Eaton to defraud plaintiffs of their lien on the tools, implements and machinery used in mining, and to keep them out of possession of the property. These mines are situated on section 3, township 2, range 6, and plaintiffs, conceding the title of Haselton, or of the Bartow Iron Company, under him, to the other undivided half of this land, pray for a partition, for an account of the rents, and for general relief, and for a temporary injunction, appointment of a receiver, etc.

The case was removed, on the petition of Haselton and the Bartow Iron Company, into the circuit court of the United States for the Eastern district of Tennessee, where, after a hearing on the merits, the bill of the plaintiffs was dismissed. A motion was made in this court to dismiss the appeal from that decree on the ground that the amount in controversy does not exceed $5,000. There being no distinct statement anywhere in the record of the value of the property in controversy, the parties were permitted to file affidavits here on that subject. Appellant has accordingly produced the affidavit of R. L. Watkins, who swears he knows the property well, and that the undivided half interest in it claimed by appellant is worth over $5,000, and was so when when the suit was brought, aside from the $2,500 for rents claimed by her. The examination of the record makes this very probable, and, as there is no denial on oath of this affidavit, we think the amount in controversy is sufficiently proved to be over $5,000. The Bartow Iron Company answers the bill,-the answer being sworn to by Haselton as its president,-and asserts its ownership of the mine, and of the entire quarter section in which it is found, by purchase from Haselton; and it denies that plaintiffs have any interest whatever in the same. Haselton also answers and alleges that he was the owner of the property when he sold and conveyed the same to the Bartow Company, and that the plaintiffs have no interest in it. He gives a history of the title and previous litigation about it, which, in the view we take of the case, is unimportant.

Upon this issue mainly the case was heard. Much evidence was introduced and is found in the record in the way of depositions, deeds, other suits, decrees, etc. The common source of title was Erasmus Alley, who, in 1859, conveyed the land in dispute, with many other tracts, to J. Holmes Agnew and James C. Haselton. It embraced a thousand acres and many distinct tracts. In the registration of the deed the south-east quarter of section 3 was omitted, as it is supposed, by accident. It is under this deed that appellant has for years claimed to own the undivided half of the land, and was in possession when the lease to Badge and Eaton was made. Other interests, however, intervened, and the question of innocent purchasers, without notice, embarrasses the case in some of its aspects. But on the trial there was introduced, by agreement of the parties, the record of a suit about this same land and the same title in the state chancery court of Hamilton county, or so much of that record as is necessary to this case. That suit was brought by Gaskill and wife, December 5, 1874, against Badge, Eaton, Haselton, and others, prior to the conveyance by Haselton to the Bartow Iron Company, and as there was a decree in favor of plaintiffs, it is relied on as conclusive of their rights in this suit against Haselton and the Bartow Company. We are unable to see why it should not be so. It was, like the present suit, a bill in chancery to enforce the lien of the plaintiffs for rents under the lease of plaintiffs to Badge and Eaton. Haselton was made a defendant there, as he is here, on the ground that he had induced Badge and Eaton to recognize his claim, and was confederating with them to defraud plaintiffs out of their rents. Plaintiffs in that suit asserted title to an undivided half of the mine, and of the quarter section on which it is located. Haselton in his answer denied any interest in plaintiffs in the land. He gave an exhibit of the title, whereby the asserted it to be in himself, or nearly all of it, and admitted that he held Badge and Eaton accountable to himself for rents of the property. After full hearing, and on the exhibits as to title and other evidence, the court rendered a decree in favor of plaintiffs. This decree was rendered on the fifteenth day of December, 1876. It says:

'This cause came on to be heard on the original, amended, and supplemental bills, exhibits thereto attached, and the answers and exhibits thereto attached, and the proofs and other exhibits in the cause, and from all which it appears to the court, and the court adjudges and decrees, that plaintiffs are entitled to the relief prayed in their bill: that the title to the lands embraced by the terms of the lease, (Exhibit A,) to complainants' original bill, and described in the deed from E. Alley to H. L. Whiteside, dated twenty-sixth April, 1870, (Exhibit A,) is and was at that date in complainant Whiteside, and superior to the title of the defendants, and that she was on that day * *  * in actual possession of said land and premises. * *  * And it further appearing to the court that the said lease of June 1, 1870, has expired during the proceedings of this litigation, and that the defendants, Badge and Eaton, decline and refuse to demand or accept a renewal lease, as provided for in said Exhibit A, and it further appearing, pending this litigation, the said defendants Badge and Eaton have combined and confederated with defendant J. C. Haselton to injure and defraud complainants, and to carry into effect such object, delivered over into custody and possession of J. C. Haselton the said leasehold premises, who now, in violation of the rights of complainants, is holding and claiming possession of the same, illegally and wrongfully: The chancellor, therefore, upon this branch of the case, and in view of the whole case, declares that the said complainants recover from the defendants the possession of all said leasehold premises, including said Vulcan mines, and the property thereon mentioned in said Exhibit A, to be returned to complainant H. L. Whiteside at the termination of said lease, to-wit, all the buildings, houses, tramways, tracks, entries, and approaches to said mines and upon said lands, the same having, with the mines and leasehold premises, been agreed and covenanted by defendants Badge and Eaton to be delivered up in good condition to complainant H. L. Whiteside at the expiration of said lease, and a writ of possession will issue, upon demand of complainants, by the clerk and master of this court, to put complainants in the peaceable, and quiet, undisturbed possession of the same, and as to all said property the injunction in this cause is made absolute.'

Here was an issue raised between Mrs. Whiteside and Haselton as to the title to this property,-the same issue and the same title now in question. It was necessary in that case that it should be decided, for if the plaintiff had no title to the land she had no right to recover, and the decree in her favor is that she had such title; that it was paramount or superior to that of defendants, including Haselton; and as by fraudulent confederacy of the lessees with Haselton the latter had possession, a decree for its restoration to plaintiffs was made. That such a decree is, if the court had jurisdiction to render it, which cannot be questioned, conclusive upon the parties before the court, is not doubted. Until reversed, set aside, or annulled by some appropriate judicial proceeding, it concludes Haselton and his privies. To this it is objected that the suit was between Badge and Eaton and Mrs. Whiteside, as landlord and tenant, and could not bind Haselton. The answer is, that Haselton had induced Badge and Eaton to acknowledge his title and deny plaintiff's, and when sued and brought into court he accepted the issue, denied plaintiff's title, and asserted his own, and his right to the allegiance of the tenants. On that issue of tithe the decree was clear and full against him, and he must abide by it. It is argued that he does not bind the Bartow Iron Company, who were innocent purchasers from Haselton. But they bought pendente lite, and, by the well-known rule on that subject, are bound by this decree. The suit was commenced December 5, 1874, Haselton's answer filed April 14, 1875, and the deed, though without date, from Haselton to the company, is acknowledged September 8, 1875. It is apparent, also, that during all the time Haselton was president of the Bartow Iron Company. The fact that the corporation was organized under the laws of another state does not, under these circumstances, relieve it from the rule which governs purchasers of property pending litigation about the title. We are of opinion that, as this case is presented to us, the decree of the chancery court of Hamilton county, Tennessee, is conclusive of the rights of all the parties to this suit.

The decree of the circuit court is therefore reversed, and the case remanded to that court for further proceedings in conformity with this opinion.


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 exactly the same way as the image in a looking-glass is related to that of which it is the reflexion; in both cases there is identity of content, and the image in the looking-glass differs from that in the mind solely in respect of the fact that in the one case the other constituent of the image is ‘glass’ and in the other case it is consciousness. If the image is of blue, it is not conceived that this ‘content’ has any relation to the consciousness but what it has to the glass; it is conceived merely to be its content. And owing to the fact that sensations and ideas are all considered to be wholes of this description—things in the mind—the question: What do we know? is considered to be identical with the question: What reason have we for supposing that there are things outside the mind corresponding to these that are inside it?

What I wish to point out is (1) that we have no reason for supposing that there are such things as mental images at all—for supposing that blue is part of the content of the sensation of blue, and (2) that even if there are mental images, no mental image and no sensation or idea is merely a thing of this kind: that ‘blue,’ even if it is part of the content of the image or sensation or idea of blue, is always also related to it in quite another way, and that this other relation, omitted in the traditional analysis, is the only one which makes the sensation of blue a mental fact at all.

The true analysis of a sensation or idea is as follows. The element that is common to them all, and which I have called ‘consciousness,’ really is consciousness. A sensation is, in reality, a case of ‘knowing’ or ‘being aware of’ or ‘experiencing’ something. When we know that the sensation of blue exists, the fact we know is that there exists an awareness of blue. And this awareness is not merely, as we have hitherto seen it must be, itself something distinct and unique, utterly different from blue: it also has a perfectly distinct and unique relation to blue, a relation which is not that of thing or substance to content, nor of one part of content to another part of content. This relation is just that which we mean in every case by ‘knowing’. To have in your mind ‘knowledge’ of blue, is not to have in your mind a ‘thing’ or ‘image’ of which blue is the content. To be aware of the sensation of blue is not to be aware of a mental image—of a ‘thing,’ of which ‘blue’ and some other element are constituent parts in the same sense in which blue and glass are constituents of a blue bead. It is to be aware of an awareness of blue; awareness being used, in both cases, in exactly the same sense. This element, we have seen, is certainly neglected by the ‘content’ theory: that theory

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text: Talk:Whiteside v. Haselton/Opinion of the Court


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 entirely fails to express the fact that there is, in the sensation of blue, this unique relation between blue and the other constituent. And what I contend is that this omission is not mere negligence of expression, but is due to the fact that though philosophers have recognised that something distinct is meant by consciousness, they have never yet had a clear conception of what that something is. They have not been able to hold it and blue before their minds and to compare them, in the same way in which they can compare blue and green. And this for the reason I gave above: namely that the moment we try to fix our attention upon consciousness and to see what, distinctly, it is, it seems to vanish: it seems as if we had before us a mere emptiness. When we try to introspect the sensation of blue, all we can see is the blue: the other element is as if it were diaphanous. Yet it can be distinguished if we look attentively enough, and if we know that there is something to look for. My main object in this paragraph has been to try to make the reader see it: but I fear I shall have succeeded very ill.

It being the case, then, that the sensation of blue includes in its analysis, beside blue, both a unique element ‘awareness’ and a unique relation of this element to blue, I can make plain what I meant by asserting, as two distinct propositions, (1) that blue is probably not part of the content of the sensation at all, and (2) that, even if it were, the sensation would nevertheless not be the sensation of blue, if blue had only this relation to it. The first hypothesis may now be expressed by saying that, if it were true, then, when the sensation of blue exists, there exists a blue awareness: offence may be taken at the expression, but yet it expresses just what should be and is meant by saying that blue is, in this case, a content of consciousness or experience. Whether or not, when I have the sensation of blue, my consciousness or awareness is thus blue, my introspection does not enable me to decide with certainty: I only see no reason for thinking that it is. But whether it is or not, the point is unimportant, for introspection does enable me to decide that something else is also true: namely that I am aware of blue, and by this I mean, that my awareness has to blue a quite different and distinct relation. It is possible, I admit, that my awareness is blue as well as being of blue: but what I am quite sure of is that it is of blue; that it has to blue the simple and unique relation the existence of which alone justifies us in distinguishing knowledge of a thing from the thing known, and indeed in distinguishing mind from matter. And this result I may express by saying that what is called the content of a


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 sensation is in very truth what I originally called it—the sensation’s object.

But, if all this be true, what follows?

Idealists admit that some things really exist of which they are not aware: there are some things, they hold, which are not inseparable aspects of their experience, even if they be inseparable aspects of some experience. They further hold that some of the things of which they are sometimes aware do really exist, even when they are not aware of them: they hold for instance that they are sometimes aware of other minds, which continue to exist even when they are not aware of them. They are, therefore, sometimes aware of something which is not an inseparable aspect of their own experience. They do know some things which are not a mere part or content of their experience. And what my analysis of sensation has been designed to show is, that whenever I have a mere sensation or idea, the fact is that I am then aware of something which is equally and in the same sense not an inseparable aspect of my experience. The awareness which I have maintained to be included in sensation is the very same unique fact which constitutes every kind of knowledge: ‘blue’ is as much an object, and as little a mere content, of my experience, when I experience it, as the most exalted and independent real thing of which I am ever aware. There is, therefore, no question of how we are to ‘get outside the circle of our own ideas and sensations’. Merely to have a sensation is already to be outside that circle. It is to know something which is as truly and really not a part of my experience, as anything which I can ever know.

Now I think I am not mistaken in asserting that the reason why Idealists suppose that everything which is must be an inseparable aspect of some experience, is that they suppose some things, at least, to be inseparable aspects of their experience. And there is certainly nothing which they are so firmly convinced to be an inseparable aspect of their experience as what they call the content of their ideas and sensations. If, therefore, this turns out in every case, whether it be also the content or not, to be at least not an inseparable aspect of the experience of it, it will be readily admitted that nothing else which we experience ever is such an inseparable aspect. But if we never experience anything but what is not an inseparable aspect of that experience, how can we infer that anything whatever, let alone everything, is an inseparable aspect of any experience? How utterly unfounded is the assumption that ‘esse is percipi’ appears in the clearest light.


text:
Illinois Centural Company v. Turrill

''Geo. Payson'', for railroad companies.

Chauncey Smith and L. L. Bond, for administratrix.

WAITE, C. J.

title: Illinois Centural Company v. Turrill


text: Talk:Illinois Centural Company v. Turrill


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 But further I think it may be seen that if the object of an Idealist’s sensation were, as he supposes, not the object but merely the content of that sensation, if, that is to say, it really were an inseparable aspect of his experience, each Idealist could never be aware either of himself or of any other real thing. For the relation of a sensation to its object is certainly the same as that of any other instance of experience to its object; and this, I think, is generally admitted even by Idealists: they state as readily that what is judged or thought or perceived is the content of that judgment or thought or perception, as that blue is the content of the sensation of blue. But, if so, then, when any Idealist thinks he is aware of himself or of any one else, this cannot really be the case. The fact is, on his own theory, that himself and that other person are in reality mere contents of an awareness, which is aware of nothing whatever. All that can be said is that there is an awareness in him, with a certain content: it can never be true that there is in him a consciousness of anything. And similarly he is never aware either of the fact that he exists or that reality is spiritual. The real fact, which he describes in those terms, is that his existence and the spirituality of reality are contents of an awareness, which is aware of nothing—certainly not, then, of its own content.

And further if everything, of which he thinks he is aware, is in reality merely a content of his own experience he has certainly no reason for holding that anything does exist except himself: it will, of course, be possible that other persons do exist; solipsism will not be necessarily true; but he cannot possibly infer from anything he holds that it is not true. That he himself exists will of course follow from his premiss that many things are contents of his experience. But since everything, of which he thinks himself aware, is in reality merely an inseparable aspect of that awareness; this premiss allows no inference that any of these contents, far less any other consciousness, exists at all except as an inseparable aspect of his awareness, that is, as part of himself.

Such, and not those which he takes to follow from it, are the consequences which do follow from the Idealist’s supposition that the object of an experience is in reality merely a content or inseparable aspect of that experience. If, on the other hand, we clearly recognise the nature of that peculiar relation which I have called ‘awareness of anything’; if we see that this is involved equally in the analysis of every experience—from the merest sensation to the most developed perception or reflexion, and that this is in fact the only


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Illinois Centural Company v. Turrill/Opinion of the Court

The effect of the judgments in these cases, when here on the former appeals, as reported under the name of The Cawood Patent, 94 U.S. 695, was to affirm the decrees then appealed from, so far as they charged these appellants respectively with the profits made from the use of the infringing machines known as the 'Illinois Central,' the 'Etheridge,' and the 'Whitcomb,' and to reverse as to the profits made by the use of the 'Bayonet Vise,' the 'Michigan Southern,' and the 'Beebee & Smith,' which were adjudged to be non-infringing machines. The total amount of profits arising from the use of all the machines, infringing and non-infringing, was settled, and the judgment of the courts was that the profits had properly been estimated by comparing the cost of mending on the machines with the cost of mending on a common anvil. This was found to be about 36 cents per foot mended in favor of the machines. Page 709. Nothing was left open for further inquiry but the amounts of the former recoveries for the use of the non-infringing machines. It was quite right, therefore, for the circuit court, when the cases went back, to direct the master to ascertain from the old evidence, if possible, and, if not, from new, how much should be deducted from the old decrees on account of the erroneous recoveries. The true way of determining this clearly was to find out what part of the profits for which the original decrees were rendered had been made by the use of the non-infringing machines. This the master attempted to do, and in the case of the Illinois Central company there is no doubt in our minds that the conclusion he reached was entirely correct. In fact, we do not understand that this is disputed. It is argued that a sufficient allowance was not made in the accounting for cut rails, but that question was settled by the original decree, and could not be re-examined on this reference. The inquiry now is limited to the amount of mending done by the use of the non-infringing machines and its comparative cost.

In the case of the Michigan Southern & Northern Indiana Company, the evidence is not as satisfactory as in that of the Illinois Central. The shop books in which the accounts for repairing rails were kept, if kept at all, were not produced, and had probably been destroyed as of no value before the accounting took place. In their absence it is difficult to determine with accuracy what the facts were, but upon full consideration we are satisfied the circuit court did not in its decree underestimate the amount of deduction to be made in favor of this company. In making up the decree interest was added from the date of the master's report on the balances found due after the ascertained deductions had been made, and this is assigned for error. As a general rule a patentee is not entitled to interest on profits made by an infringer. The reason is that profits are regarded in the light of unliquidated damages, (Parks v. Booth, 102 U.S. 106,) but in many of the cases it is said that circumstances may arise in which it would be proper to add interest. Mowry v. Whitney, 14 Wall. 653; Littlefield v. Perry, 21 Wall. 230. Here, as has been seen, in effect, the original decrees rendered in July, 1874, were affirmed in 1876, to the extent of the present recoveries. The cases were only sent back to ascertain how much should be deducted from those decrees for errors in the accounts as then stated. If the decrees had been entered originally for the present amounts, the patentee would have been entitled to interest from 1874. That was settled in Railroad Co. v. Turrill, 101 U.S. 836, which was one of the cases affirmed in whole at the former hearing in this court. Under these circumstances, it seems to us not at all inequitable to allow interest on the corrected amounts from the date of the master's report in 1879. The cases are entirely different in this particular from what they would have been if the original decrees had been reversed for error in the principles of the accounting. Those decrees may very properly be considered as affirmed in part and reversed in part, the new reference being had only to find out the exact extent of the reversals.

Since the present appeals were taken the patentee has died, and the appellants now suggest that the causes of action do not survive, and the suits cannot be further prosecuted in the name of the legal representatives of the decedent. As to this, it is sufficient to say that what was called by Chief Justice MARSHALL, in Gordon v. Ogden, 3 Pet. 35, 'the silent practice of the court,' has always been the other way. It is every-day practice to revive such suits, and the books are full of cases in which this has been silently done, no one apparently entertaining a doubt of its propriety.

The decree in each of the cases is affirmed.

Mr. Justice BLATCHFORD did not sit in these cases, and took no part in their decision.


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 essential element in an experience—the only thing that is both common and peculiar to all experiences—the only thing which gives us reason to call any fact mental; if, further, we recognise that this awareness is and must be in all cases of such a nature that its object, when we are aware of it, is precisely what it would be, if we were not aware: then it becomes plain that the existence of a table in space is related to my experience of it in precisely the same way as the existence of my own experience is related to my experience of that. Of both we are merely aware: if we are aware that the one exists, we are aware in precisely the same sense that the other exists; and if it is true that my experience can exist, even when I do not happen to be aware of its existence, we have exactly the same reason for supposing that the table can do so also. When, therefore, Berkeley, supposed that the only thing of which I am directly aware is my own sensations and ideas, he supposed what was false; and when Kant supposed that the objectivity of things in space consisted in the fact that they were ‘Vorstellungen’ having to one another different relations from those which the same ‘Vorstellungen’ have to one another in subjective experience, he supposed what was equally false. I am as directly aware of the existence of material things in space as of my own sensations; and what I am aware of with regard to each is exactly the same—namely that in one case the material thing, and in the other case my sensation does really exist. The question requiring to be asked about material things is thus not: What reason have we for supposing that anything exists corresponding to our sensations? but: What reason have we for supposing that material things do not exist, since their existence has precisely the same evidence as that of our sensations? That either exist may be false; but if it is a reason for doubting the existence of matter, that it is an inseparable aspect of our experience, the same reasoning will prove conclusively that our experience does not exist either, since that must also be an inseparable aspect of our experience of it. The only reasonable alternative to the admission that matter exists as well as spirit, is absolute Scepticism—that, as likely as not nothing exists at all. All other suppositions—the Agnostic’s, that something, at all events, does exist, as much as the Idealist’s, that spirit does—are, if we have no reason for believing in matter, as baseless as the grossest superstitions.


text:
Wabash St. Railway Company v. Knox

Vespasian Warner, for motion.

''H. S. Greene, Wm. Brown, and Edw. P. Kisby'', in opposition.

WAITE, C. J.

title: Wabash St. Railway Company v. Knox


text: Talk:Wabash St. Railway Company v. Knox

title: Talk:Wabash St. Railway Company v. Knox


text:
Wabash St. Railway Company v. Knox/Opinion of the Court

The judgment in this case was for $5,237.15, but the record shows in many ways that of this amount $727.42 was admitted to be due. A formal tender of that sum was made on the twenty-sixth of February, 1883, and the money deposited in court for Knox, the plaintiff, where it remained until the fourteenth of March, nine days after the judgment was rendered, when it was withdrawn by the railroad company, without prejudice, on the order of the court, and with the consent and agreement of Knox. The bill of exceptions also shows an admitted liability of the company for the amount of the tender. The case is, therefore, in all material respects, like that of Tintsman v. ''Nat. Bank'', 100 U.S. 6, where the writ was dismissed, althought the judgment was for $8,233.59, because, by an agreed statement of facts in the record, it appeared that the defendant admitted he owed $5,009.59 of the amount recovered. To the same effect is Jennes v. ''Citizens' Nat. Bank of Romeo, ante'', 425. The amount in dispute here is no more than was in dispute below, and that was less than $5,000.

The motion to dismiss is granted.


text: Talk:Wabash St. Railway Company v. Knox/Opinion of the Court


text:
Jeffries v. Mutual Life Insurance Company of New York

P. W. B. Crews, for plaintiff in error.

S. T. Glover and ''Jno. R. Shepley'', for defendant in error.

BLATCHFORD, J.


text: Talk:Jeffries v. Mutual Life Insurance Company of New York


text:
Jeffries v. Mutual Life Insurance Company of New York/Opinion of the Court

On the nineteenth of August, 1871, one Allan A. Kennedy died in Franklin county, Missouri, having two policies of insurance on his life, one in the Economical Life Insurance Company, of Providence, Rhode Island, for $5,000, and the other in the Mutual Life Insurance Company of New York, the defendant in error, for $10,000. Charles W. Jeffries was appointed administrator of Kennedy, by the probate court of Franklin county. At that time Joseph S. Laurie and Thomas W. B. Crews were attorneys at law, and copartners as such, in St. Louis, Missouri. The policies were put into their hands for suit, and they brought a suit on each in the name of Jeffries, as plaintiff, in the state court of Missouri. The suits were both of them removed into the circuit court of the United States for the Eastern district of Missouri. In each suit an answer was put in setting up a breach of a warranty by the assured, in that, in the application for the insurance, he stated that he was a single man when he was a married man. In the suit against the Economical company there was a demurrer to the answer, on the ground that the answer failed to allege that the misstatement was material to the risk. The demurrer was overruled by the circuit court and a judgment was entered for the defendant. On a writ of error, this court affirmed the judgment, at October term, 1874. 22 Wall. 47. In the suit against the defendant in error, which is the suit now before us, there was a reply to the answer, alleging that, under the policy, the misstatement was not a breach of a warranty, and that the statement was the representation of the agent of the company, and not that of the assured. In January, 1873, Charles W. Jeffries died, and the plaintiff in error, Cuthbert S. Jeffries, was appointed in his place administrator of Kennedy, and was substituted as plaintiff in this suit in March, 1873. In November, 1873, while the suit against the Economical company was pending in this court, this suit was tried in the circuit court before the court without a jury. That court rendered a judgment for the plaintiff. The defendant brought the case to this court by a writ of error, and at October term, 1875, the judgment was reversed, on the authority of the case in 22 Wall. and a new trial was awarded. In April, 1877, the case was again tried, and before a jury, which found a verdict for the plaintiff, but the circuit court set it aside. The case was tried again before a jury, in October, 1877, and a verdict was rendered for the plaintiff, on which a judgment in his favor was entered October 9, 1877, for $13,495. On the twenty-seventh of October, 1877, the defendant sued out a writ of error returnable to this court at October term, 1878. The case was docketed here, and the appearance of Joseph S. Laurie was entered for the defendant in error, the present plaintiff in error, and that of O. H. Palmer for the plaintiff in error, the present defendant in error. In February, 1879, Mr. Laurie compromised the judgment with the Mutual company. Interest at 6 per cent. was computed on the judgment from its entry to November 22, 1878, and added, and an abatement of $5,000 was then made, and the remainder, $9,401.42, was paid by the company to Mr. Laurie. He surrendered the policy to the company, a stipulation signed by Mr. Laurie and by Mr. Palmer, agreeing that the suit might be dismissed from the docket of this court without costs to either party as against the other, was presented to this court and filed, and, on the eleventh of March, 1879, an order was made by this court dismissing the writ of error, each party to pay his own costs. On the fifteenth of December, 1879, Mr. Laurie, as attorney for the plaintiff, entered satisfaction of the judgment on the margin of the record of the judgment, in the law record book in the office of the clerk of the circuit court, in the presence of the deputy clerk, who signed the entry as a witness, the entry being as follows: 'I hereby enter satisfaction of this judgment in full, this fifteenth day of December, 1879. C. S. JEFFRIES, administrator, etc., by Joseph S. Laurie, his attorney.' The plaintiff immediately filed a motion in the circuit court to vacate the entry of satisfaction, alleging, as grounds therefor, that the entry was made by Laurie without authority from the plaintiff, and in fraud of his rights, and without consulting him, and after Laurie had been notified that the plaintiff would not ratify the said compromise; that the plaintiff had learned only a few days previously of the dismissal of the writ of error in March, 1879, and of the compromise made by Laurie, and had at once notified Laurie and the defendant that the compromise was made without authority from him and he would not ratify it; and that he could not authorize a compromise without the order of the probate court of Franklin county, which order had not been made. The motion was supported and opposed by affidavits, the defendant appearing by counsel. The court, as appears from its opinion, which is set forth in the record, found, as a fact, from the evidence before it, which evidence is before us, that Charles W. Jeffries, while administrator, entered into a contract with Mr. Laurie and Mr. Crews, whereby they agreed to prosecute the claim for a portion of the proceeds, with full power to compromise it as they should please, and that the claim was a doubtful one. On the ground of such express authority and of the doubtfulness of the claim, the court held that the compromise was rightly made, notwithstanding the judgment. It also held that the plaintiff was bound by the contract made by his predecessor. An order was made overruling the motion, and afterwards a motion for a rehearing, founded on further affidavits, was denied. A bill of exceptions setting forth all the papers used on both motions, and containing proper exceptions, was signed. Thereupon the plaintiff has brought the case to this court, on a writ of error.

It is contended for the plaintiff in error that the evidence was insufficient to warrant the finding that there was any contract between the first administrator and Mr. Laurie and Mr. Crews, authorizing a compromise; that the first administrator had no authority to make such a contract, or, to make a compromise, without the sanction of the probate court; that the plaintiff was not bound by the contract made by the first administrator; and that Laurie had no authority to compromise without the co-operation of Crews. As to the finding of fact, that there was a contract by the first administrator, giving to the attorneys an interest in the proceeds of the claim, with authority to compromise it, this court is prohibited, by section 1011 of the Revised Statutes, from reversing a case on a writ of error for any error in fact. In this case there was a dispute as to the fact, and evidence on both sides, and it was a fair exercise of the judgment of the court, on the evidence before it, to make the finding of fact it did. Under such circumstances, an erroneous finding of the fact cannot be held to be an error of law. Hyde v. Booraem, 16 Pet. 169, 176; Parks v. Turner, 12 How. 39, 43.

There is nothing to show that the circuit court was not correct in its conclusion that the right of recovery in the suit was very doubtful, notwithstanding the judgment. This being so, as the writ of error was pending, the compromise would seem to have been a proper one for the interests of the estate. It was said by this court, in Holker v. Parker, 7 Cranch, 436, 452, speaking by Chief Justice MARSHALL: 'Although an attorney at law, merely as such, has, strictly speaking, no right to make a compromise, yet a court would be disinclined to disturb one which was not so unreasonable in itself as to be exclaimed against by all, and to create an impression that the judgment of the attorney has been imposed on or not fairly exercised in the case.'

We do not perceive that there was any want of authority in the first administrator to make the contract he did. The contract was not champertous under the laws of Missouri. Duke v. Harper, 66 Mo. 51. The attorneys did not agree to pay any part of the costs or expenses of the litigation. Nor do we find in the statutes of Missouri which are cited, nor in any of its judicial decisions, anything which forbids the making of such a contract as the circuit court found to have been made in this case. The administrator had the usual power of a trustee over the estate, under his responsibility for a breach of his trust. Perry, Trusts, § 482; Overfield v. Bullitt, 1 Mo. 537. The authority given to him by statute (1 Wag. St. p. 87, § 26,) to commence and prosecute actions fairly includes the power to make such reasonable contracts in regard to compensation and the compromising of actions on doubtful claims as the circumstances of particular cases may justify. The fact of the enactment in Missouri of a statute, which went into effect November 1. 1879, (1 Rev. St. Mo. 1879, p. 37, § 242,) giving power to an administrator to compound with a debtor, with the approbation of the judge of probate, does not imply that the power did not exist before without such approbation. This transaction occurred before such enactment. An administrator has general power to dispose of the personal effects of his intestate, (2 Williams, Ex'rs, 6th Amer. Ed. 998,) and to compound a debt, if it is for the benefit of the trust-estate. 3 Williams, Ex'rs, 1900, and note g2. And, even when statutes exist providing for compromises with debtors with the approval of a probate court, it is held that the right to compromise which before existed is not taken away, but may be exercised subject to the burden of showing that the compromise was beneficial to the estate. Wyman's Appeal, 13 N. H. 18; Chouteau v. Suydam, 21 N. Y. 179; Chadbourn v. Chadbourn, 9 Allen, 173.

The contract made by the first administrator having given to the attorneys a power coupled with an interest, the authority to compromise was not impaired by the death of the first administrator, and his successor was bound by the contract. Story, Ag. §§ 476, 477.

It is apparent, from the record, that Mr. Laurie continued to be a co-partner with Mr. Crews so far as this case was concerned. That being so, he had authority to make the compromise in question without the co-operation or consent of Mr. Crews.

No error of law is found in the proceedings in the circuit court, and its orders, made January 26, 1880, and March 10, 1880, are affirmed.


text: Talk:Jeffries v. Mutual Life Insurance Company of New York/Opinion of the Court


text:
Vogel v. Gruaz

J. K. Edsall and ''Jno. B. Hawley'', for plaintiff in error.

H. S. Greene and ''Jno. M. Palmer'', for defendant in error.

BLATCHFORD, J.

title: Vogel v. Gruaz


text: Talk:Vogel v. Gruaz

title: Talk:Vogel v. Gruaz


text:
Vogel v. Gruaz/Opinion of the Court

This is an action on the case, brought by Timothy Gruaz, against Rudolph Bircher, to recover damages for the speaking and publishing of false, malicious, scandalous, and defamatory words, charging the plaintiff with being a thief, and with having stolen the money of the defendant, meaning the crime of larceny. The suit was commenced in a state court of Illinois, and was removed by the defendant into the circuit court of the United States for the Southern district of Illinois. At the trial before a jury a verdict was rendered for the plaintiff, June 6, 1879, for $6,000 damages. On the next day the defendant filed a motion for a new trial. On the fourteenth of June the defendant died, on the twelfth of July an order abating the case was moved for, on behalf of the defendant, and on the sixteenth of August the court overruled the motion for a new trial and the motion for an order of abatement, and entered a judgment for the plaintiff, against Bircher, for $6,000 and costs, as of June 7, 1879. The order for judgment recited that the hearing by the court of the motion for a new trial was, when it was filed, postponed to a then future and convenient day of the same term, and that the defendant died pending the hearing of the motion. Leave was given to the executor of the defendant to prepare a bill of exceptions and to take a writ of error. The bill of exceptions being signed, it was filed by the executor, and the writ of error was issued. Various errors are assigned, and among them that the circuit court did not grant the motion to abate the suit, and that it rendered a judgment against Bircher after his death. But it is unnecessary to pass on those questions, because we are of opinion that the judgment must be reversed for another error committed at the trial.

Three witnesses for the plaintiff gave evidence tending to prove the speaking to them by the defendant of more or less of the words set forth in the declaration; and afterwards C. L. Cook was sworn as a witness for the plaintiff, and testified that he was state's attorney for Madison county, Illinois; he had a slight acquaintance with Bircher; and that he knew Gruaz. The following proceedings then occurred: 'Question. I will ask you if you had any conversation with Dr. Bircher with regard to Gruaz, and, if so, when was it? Counsel for defense asked witness if at that time he was occupying the same position he now holds. Answer. Yes, sir. Q. It was communicated to you while you held that position and were acting in that capacity, whatever was communicated to you by Bircher? A. Yes, sir. (Defendant's counsel object to witness testifying to matters disclosed to him by the defendant under the circumstances stated, on the ground that such communications are to be treated as privileged.) The Court. I will ask the witness if he regarded it professionally as a privileged communication? A. I had never met defendant before; he was introduced to me by a citizen of our place, and he informed me that he wanted to talk with me with regard to a matter he wanted to bring before the grand jury. (Objected to.) The Court. I will allow the witness to state what the doctor said on that occasion. Of course, if he made the communication to the witness in good faith, there would be no malice about it, and I shall instruct the jury to * disregard it. The objection is overruled. To which ruling of the court the defendant at the time excepted. A. As I stated, I had at that time no acquaintance with defendant whatever. He inquired for the state's attorney, and was introduced to me, and he spoke of his affairs. He said he wanted to bring a matter before the grand jury in regard to Mr. Gruaz. I talked with him in regard to the nature of the matter, and he talked pretty freely in regard to it, and I directed him to the grand jury room. He said a good many things. He was evidently in earnest at the time, expressed himself very freely in regard to him. I would not like to swear to the exact words used, or that anybody used at the time. I can give the substance of what he said, I suppose. He wanted to prosecute Gruaz for stealing, was the amount of it. I recollect this: he charged him with having stolen his money, and I asked him how, and he told me how it had been done. Gruaz was his agent and handled his funds, rented his farms, and had failed to account for a large amount of money, he told me, and he charged him in this conversation with having stolen his money, and he said he wanted to know if there was any law in this state to prosecute a man for that. I have no objection to state any words. I remember his making the charge that he had stolen his money, but I can't swear that the word 'thief' was used at that time; that it was in substance, undoubtedly. My impression is that this was the March term, 1878, of the circuit court of Madison county, either that or October term, 1877; my recollection and decided impression is that it was the spring term, 1878. Dr. Bircher went into the grand jury room and gave his statement to the grand jury. He was anxious, of course, to have the indictment found, and he evidently believed or so expressed himself. (Counsel for defendant objected to witness stating his opinion about what defendant evidently believed.) The Court. He said he went before the grand jury, and said he seemed to be in earnest in his movements, but he didn't say what took place before the grand jury. Don't know, I suppose. Witness. No, I don't know. Cross-examination. Maj. Prickett introduced Bircher to me; never saw him before in my life. I was certain he came to see me as prosecuting attorney, in good faith. That was his business, as he stated it to me. After he made his statement to me I advised him to go before the grand jury; directed him to their room. He went there by my advice. Hold on-I don't say that; I advised him that he had a good case. He came to me and I showed him where the grand jury room was. He stated his case to me as state's attorney. I then directed him where to go, and said I should prosecute it as vigorously as possible, if the indictment was found. In regard to the advice I gave him, I rather encouraged him to drop the thing; I told him he better sue Mr. Gruaz first, and see if he couldn't get judgment against him, and so put it in a better shape to prosecute him. He stated his case, and I thought from his statement that he would have few, if any, witnesses besides himself, and that it would be doubtful, however honestly he might believe, that he had cause; it would be doubtful whether the jury would bring a bill; so I advised him to bring a civil suit; but, said I, you are here, and you mustn't think hardly of me if the grand jury don't find a bill; and I directed him to the grand jury room.'

The bill of exceptions also contains the following: 'In reference to the testimony of state's attorney C. L. Cook, the court instructed the jury as folfows: 'I admitted that evidence with an explanation, and with the explanation made in the admission of it I think I am content, and I think the jury may take it into consideration; but if they think the defendant was actuated by honest motives in making the declaration he did, they will disregard it.' To the giving of which last instruction the defendant excepted, for the reason that the instruction ignores the element of want of probable cause, and for the reason also that the jury should have been instructed to disregard Cook's testimony entirely.'

We are of opinion that what was said by Bircher to Mr. Cook was an absolutely privileged communication. It was said to Mr. Cook while he was state's attorney or prosecutor of crimes for the county, and while he was acting in that capacity. Bircher inquired for the state's attorney and was introduced to him, and stated to him that he wanted to talk with him about a matter he wanted to bring before the grand jury in regard to Gruaz. He laid the matter before Mr. Cook, and charged Gruaz with having stolen his money, and was asked how, and stated how and inquired of Mr. Cook if there was any law in Illinois by which a man could be prosecuted for that. The grand jury was then in session, and Mr. Cook advised Bircher that he had a good case and directed him to the grand jury-room, and Bircher went before the grand jury. If all this had taken place between Bircher and an attorney consulted by him who did not hold the public position which Mr. Cook did, clearly, the communication would have been privileged and not to be disclosed against the objection of Bircher. Under the circumstances shown, Mr. Cook was the professional adviser of Bircher, consulted by him on a statement of his case, to learn his opinion as to whether there was ground in fact and in law for making an attempt to procure an indictment against Gruaz. The fact that Mr. Cook held the position of public prosecutor, and was not to be paid by Bircher for information or advice, did not destroy the relation which the law established between them. It made that relation more sacred on the ground of public policy. The avenue to the grand jury should always be free and unobstructed. Bircher might have gone directly before it without consulting with Mr. Cook, but if he chose to consult him instead of a private counsel, there was great propriety in his doing so. Any person who desires to pursue the same course should not be deterred by the fear of having what he may say in the confidence of a consultation with a professional adviser, supposed to be the best qualified for the purpose, disclosed afterwards in a civil suit against his objection. Oliver v. Pate, 43 Ind. 132. By the statute of Illinois in force at the time of this occurrence, it was made the duty of each state's attorney to 'commence and prosecute' all criminal actions, suits, indictments, and prosecutions in any court of record in his county, in which the people of the state or county might be concerned. (Rev. St. 1874, c. 14, § 5, subd. 1.) Under this provision it was the province and the privilege of any person who knew of facts tending to show the commission of a crime, to lay those facts before the public officer whose duty it was to commence a prosecution for the crime. Public policy will protect all such communications absolutely, and without reference to the motive or intent of the informer or the question of probable cause; the ground being that greater mischief will probably result from requiring or permitting them to be disclosed than from wholly rejecting them. Mr. Cook learned from Bircher the things to which he testified, because he occupied the position of public prosecuting officer, and because he was acting at the time as the legal adviser of Bircher in respect to the matter and question which Bircher was laying before him. The free and unembarrassed administration of justice in respect to the criminal law in which the public is concerned, is involved in a case like the present, in addition to the considerations which ordinarily apply in communications from client to counsel in matters of purely private concern. Bircher made his communication to Mr. Cook for the purpose of obtaining professional advice as to his right, and that of the public through him, to have a criminal prosecution commenced by Mr. Cook by the intervention of the grand jury against Gruaz.

But there is another view of the subject. The matter concerned the administration of penal justice, and the principle of public safety justifies and demands the rule of exclusion. In Worthington v. Scribner, 109 Mass. 487, an action for maliciously and falsely representing to the treasury department of the United States that the plaintiff was intending to defraud the revenue, it was held that the defendant could not be compelled to answer whether he did not give to the department information of supposed or alleged frauds on the revenue contemplated by the plaintiff. The principle laid down in that case was, that it is the duty of every citizen to communicate to his government any information which he has of the commission of an offense against its laws; and that a court of justice will not compel or allow such information to be disclosed, either by the subordinate officer to whom it is given, by the informer himself, or by any other person, without the permission of the government, the evidence being excluded not for the protection of the witness or of the party in the particular case, but upon general grounds of public policy, because of the confidential nature of such communications. The authorities are collected and reviewed in that case. The case of Dawkins v. Rokeby, L. R. 8 Q. B. 255, there cited, was affirmed by the house of lords, L. R. 7 H. L. 744. See, also, 1 Greenl. Ev. § 250; Black v. Holmes, 1 Fox & Sm. 28.

It makes no difference that there was evidence of the speaking of the same words to persons other than Mr. Cook, and that the speaking of them to Mr. Cook was not the sole ground of action or of recovery. The evidence was incompetent, and it must be inferred that it affected the minds of the jury both on the main issue and on the question of damages.

It results from these views that the judgment below cannot be upheld, and that it must be reversed, and the case be remanded to the circuit court, with direction to set aside the verdict and vacate the judgment and take such further proceedings as may be according to law and not inconsistent with this opinion.

title: Vogel v. Gruaz/Opinion of the Court


text: Talk:Vogel v. Gruaz/Opinion of the Court


text:
Corker v. Jones

Henry B. Tompkins, for appellant.

Randall Hagner, for appellees.

MATTHEWS, J.

title: Corker v. Jones


text: Talk:Corker v. Jones

title: Talk:Corker v. Jones


text:
Corker v. Jones/Opinion of the Court

Malcolm D. Jones, of whom Francis A. Jones, the appellee, is executor, in his life-time was executor of the last will of Drury Corker, deceased, and testamentary guardian of the person and estate of the testator's son, Ernest D. Corker, the appellant, one of the devisees, then a minor, who arrived at age since filing the present bill. While acting as such, on July 24, 1863, Malcolm D. Jones, as guardian, purchased a tract of land known as the Gilstrop and Watson place, part of the estate of Drury Corker, from the trustees of Mrs. S. Hart, a daughter of the testator, to whom he had devised it, with power to sell. The consideration paid was $15,600 in confederate money, which was advanced by Malcolm D. Jones from his own funds. The conveyance was to him as guardian of the appellant, the latter being charged in account by the guardian with the amount of the advance. In 1867, while the appellant was still an infant about 11 years of age, and living with his mother, a bill in equity was filed in the superior court of Burke county, where they resided, a court of general jurisdiction at law and in equity, in the name of the appellant, suing by his mother and next friend, to which Malcohn D. Jones was made defendant, praying for a rescission of the transaction as between the guardian and ward, so that the former should take the land, and the latter be relieved from the payment of the consideration. The pleadings in that case are not exhibited in the present record, as it is stated, because they have been lost or destroyed; but the matter was submitted to a jury, who found that 'it is to the interest of Ernest D. Corker, the minor, under his circumstances, that said purchase be rescinded, and deed be cancelled and set aside as to said Ernest D., leaving it to stand as against the makers and in favor of said Malcolm D. individually; and that, if necessary, said Ernest D. make, and dcliver a proper conveyance of said land to said Malcolm D.' And upon this verdict, on January 1, 1868, it was by the court ordered and decreed 'that said deed be, and is hereby, set aside and cancelled as to said Ernest D. only, and that it stand good against the makers thereof, and for the use and benefit of said Malcolm D. individually, and said Ernest D. make any, all necessary, and proper conveyances of the land referred to to said Malcolm D.; that said Malcolm D. also pay one-half of the costs of this proceeding, and said Ernest D. the other half thereof.' Thereafter Malcom D. Jones went into possession of the land, claiming title thereto in his own right, and since his death his executor, Francis A. Jones, one of the appellees, has sold the same in parcels under judicial proceedings in the superior court of Burke county, as the property of Malcolm D. Jones, deceased, to the several other appellees. These purchasers claim to be protected as such against any equities of the appellant, but the latter insists that they had not acquired the legal title, nor fully paid the purchase money at the time he filed his bill, and consequently are not innocent purchasers.

Without reference to that question, however, the appellant claims that he has the legal estate in the land in controversy by virtue of the deed of his guardian from the trustees of his sister, and that it was not divested by the decree of the superior court of Burke county of January 1, 1868, for the reason that that court had no jurisdiction in the case, and the proceedings and decree therein were coram non judice and void. This is urged on the ground that the court of ordinary in Georgia has jurisdiction, exclusive of the superior court, to deal with the property of minors, and various provisions of the Code of that state are cited in support of that proposition. Among others, section 1837 provides that 'the guardian cannot borrow money and bind his ward therefor, nor can he, by any contract other than those specially allowed by law, bind his ward's property or create any lien thereon.' It would be difficult under this section, or any others to be found relating to the subject, to discover any authority for the purchase by Jones, the guardian, of the real estate in controversy for his ward, on credit, advancing the money as a loan for that purpose; and the question whether it was a transaction that should stand or be canceled, as between guardian and ward, was not one arising in the ordinary course of administration for settlement as a mere matter of account in the court of ordinary, but, as we think, was one more appropriately dealt with in the more formal procedure of a court of general jurisdiction with equity powers. The question is not one relating to the sale or disposition of any part of the ward's estate which had come under the control of the guardian, but was whether, under the circumstances, the purchase made by the guardian should be treated as made for the benefit of his ward, or whether its burdens and risk should be borne by him individually. It was peculiarly a case for cognizance in equity, and the superior court of Burke county, we think, had jurisdiction to make the decree directing the title to remain in Malcolm D. Jones for his own use.

It is further urged, however, that the decree is voidable, because it was taken against an infant, without the protection of a guardian ad litem. If the infant had been defendant the objection could only be taken on appeal, or by bill of review, and not collaterally; but the infant was plaintiff and sued by his next friend, which was proper, and there is no more ground for saying that the decree was against the infant than in his favor. He was relieved from the burden of the purchase, which was the object of the suit.

But it is also claimed that the relation of the parties was such that the guardian could not acquire an interest adverse to his ward, and that the attempt to do so will convert him into a trustee by construction. But the transaction was judicial, the parties standing at arm's length as avowed litigants: the plaintiff being represented by his mother, appearing on the record with him as his next friend, and the court deciding between them. That judgment must be conclusive, unless it can be impeached for unfairness and fraud. This charge is in fact made, it being alleged, that the suit was collusive. The only proof of this is, that the mother of the infant agreed with the guardian that it was best to submit the question of the purchase to the decision of the court. Their co-operation in this is not sufficient, in our opinion, to raise the suspicion of fraud. Outside of this circumstance there is no proof.

It is finally alleged that, upon a settlement of accounts between the guardian and ward, a larger amount should have been found due to the latter than was awarded by the court below. But the decree on that point is in conformity with the evidence.

We find no error in the record and the decree is affirmed.

title: Corker v. Jones/Opinion of the Court


text: Talk:Corker v. Jones/Opinion of the Court


text:
City of East St Louis v. United States

J. W. Freels and B. H. Canby, for plaintiffs in error.

T. C. Mather, for defendants in error.

MATTHEWS, J.

title: City of East St Louis v. United States


text: Talk:City of East St Louis v. United States


text:
City of East St Louis v. United States/Opinion of the Court

The relator having recovered judgments in the circuit court of the United States for the Southern district of Illinois upon bonds issued by the city of East St. Louis, a municipal corporation of that state, was awarded in this proceeding a peremptory mandamus. The directions of the judgment are as follows:

'That said defendant, the city of East St. Louis, do, through its proper corporate authorities, levy and collect full one per cent. per annum taxes upon the assessed and equalized valuation of all the real and personal taxable property of said city for the year A. D. 1883, and subsequent years, until the full payment and discharge of all balance due upon said judgments in said petition mentioned, with lawful interest thereon, and the costs of said suits wherein said judgments were obtained, as also the costs of this suit.

'It is hereby further ordered and adjudged that said city do, through its proper corporate authorities, annually, commencing with the year A. D. 1883, appropriate and set apart three thousand dollars out of three-tenths of said one per cent. levy, and the sum of ten thousand dollars out of the remaining seven-tenths of said one per cent. levy, as a special fund for the payment of said judgments, interests, and costs, until the same are fully paid and discharged.

'It is further ordered and adjudged that said city annually, through its proper corporate authorities, pay over said sums, so soon as collected, to petitioner's attorney of record, to be applied to wards the payment of said judgments, interest, and costs.

'It is further ordered and adjudged that said city do annually, for the year A. D. 1883, and subsequent years, until said judgments, interest, and costs are fully paid, exercise, through its proper corporate authorities, to the full extent of its charter provisions, all its powers and resources of taxation and revenue derivable from all sources whatever; and that it do, through its corporate authorities, appropriate, use, and expend its said revenues in the most rigid and economical administration of its municipal affairs, to the end that said judgments, interest, and costs may be paid as speedily as possible. And it is ordered and adjudged that whatever funds remain at the end of each fiscal year, if any, after such economical administration of its affairs, as above ordered, that it apply the same in further liquidation of said judgments.'

The cause having been duly submitted to the court without the intervention of a jury, the court made the following special findings: '(1) That said city of East St. Louis is organized and existing under a special act of the legislature of illinois, approved March 26, 1869, entitled 'An act to reduce the charter of East St. Louis, and the several acts amendatory thereto, into one act, and to revise the same,' and that the bonds upon which the judgments of relator were rendered were issued under and in pursuance of said act; (2) that said city, by its said charter, is limited in its power to tax for all purposes to an 'annual tax not exceeding one per centum per annum' upon the assessed value of all the taxable property in said city; (3) that said charter requires that a registry shall be kept of all bonds issued, and that the city council shall levy and collect a tax not exceeding three mills on the dollar upon each annual assessment made for general purposes, for the purpose of paying the interest on such bonds, and to provide a sinking fund to liquidate the same; (4) that said city has no power of taxation other than said annual tax of one per cent. above mentioned, and no other source of revenue except that derived from licenses, which amount annually to the sum of $35,000, of which sum $16,000 is derived from the licensing of dram-shops, and one-half of this sum is required by said charter to be paid over to the treasurer of school township No. 2 north, range 10 west, in St. Clair county, Illinois, for the use and benefit of the public school fund; (5) that the assessed valuation of all the taxable property in said city is $3,500,000; (6) that the bonded debt of said city is $300,000; (7) that petitioner's judgments aggregate the sum of $55,000; (8) that said city has no money or surplus funds in its treasury with which to pay petitioner's judgments, or any part thereof, and no means of paying them except that derived from taxation and licenses; (9) that said city has heretofore expended the sum of, to-wit, $75,000 per annum to defray the current expenses of the city government and the different departments thereof, but the court finds that such sum is not necessary for the present and future years; (10) and, finally, the court finds from the evidence that the $10,000 ordered to be appropriated from the seven-tenths of one per cent. of the tax levy of 1883 and subsequent years, and applied to the payment of said judgments, is not required to defray the necessary current expenses of said city, and further find that the three thousand dollars ordered to be appropriated from the three-tenths of one per cent. and applied to the payment of said judgments is petitioner's pro rata share of said three-tenths of said one per cent.'

The plaintiff in error has no reason to complain of so much of the command of this judgment as requires it to levy and collect an annual tax to the full amount of one per cent. upon the assessed value of the taxable property subject thereto, and to apply $3,000 out of three-tenths thereof to the payment of the interest and principal of the relator's judgments. That levy is authorized by its charger, and that proportion of it is expressly pledged to the payment of the interest on, and redemption of its bonded debt, and the particular sum mentioned and appropriated to the relator's judgments is only the proper proportion to which they are entitled. The further award of the annual sum of $10,000 to the relator, payable out of the remaining seventenths of the one per cent. levy cannot be justified. That fund, by the terms of the charter of the city, under which the bonds were issued, is authorized for the purpose of paying the necessary current expenses of administration, not including payments on account of the bonds of the municipal corporation. And admitting that any surplus of such fund, in any year, remaining after payment of such expenses, ought to be applied to payment of the interest and principal of the bonds, that could only be required when such surplus should have been ascertained to exist. In the present judgment the court has undertaken to forsee it, and by mandamus to compel the city, by limiting its expenditures for its general purposes, to create the surplus, which it appropriates. But the question, what expenditures are proper and necessary for the municipal administration, is not judicial; it is confided by law to the discretion of the municipal authorities. No court has the right to control that discretion, much less to usurp and supersede it. To do so, in a single year, would require a revision of the details of every estimate and expenditure, based upon an inquiry into all branches of the municipal service; to do it, for a series of years, and in advance is to attempt to forsee every exigency and to provide against every contingency that may arise to affect the public necessities.

Because the judgment orders the payment to the relator of the sum of $10,000, annually, out of the seven-tenths of the levy of 1 per cent., it is reversed, with costs in this court; and the cause is remanded, with direction to enter a judgment in conformity with this opinion.


text: Talk:City of East St Louis v. United States/Opinion of the Court


text:
United States v. Alexander (110 U.S. 325)

This was an action at law brought on a distillery warehouse bond against William S. Alexander and James H. Reynolds, principals, and Edward S. Allen and Mahlon C. Atkinson, their sureties. The defendants pleaded that the taxes, to recover which the suit was brought, had been abated by the secretary of the treasury, pursuant to law, by an order of which the following is a copy:

'TREASURY DEPARTMENT,

'WASHINGTON, D. C., Aug. 5, 1875.

'Under authority conferred by act of congress approved May 27, 1872, I hereby abate the taxes accruing on 8,252 gallons of spirits, amounting to $5,776.46, which were destroyed by fire on the sixth or seventh day of March, 1875, while in the bonded warehouse of Messrs. Alexander & Reynolds, distillers in the Fourth collection district of Tennessee.

'C. F. BURNAM, Acting Secretary.

'To the Commissioner of Internal Revenue.'

And that the same was delivered to the defendants by the commissioner of internal revenue, and the secretary of the treasury did thereby release and free the defendants from their liability in the premises. To this plea the plaintiffs replied that on October 13, 1875, the secretary of the treasury did withdraw the said order of abatement and remission dated August 5, 1875, as pleaded. Upon this issue the case was tried. It appears from the bill of exceptions that the defendants, to sustain their defense, introduced proof tending to show the abatement of the taxes for which the warehouse bond sued on was given, as set out in their plea; that notice of the abatement was given to the commissioner of internal revenue, who gave notice thereof to one Bryant, the collector of internal revenue, with directions to take credit therefor on his bonded account as such collector, which he did; and that he gave notice of the remission of the taxes to Alexander & Reynolds, the principals on the bond; and that they had accepted the abatement and release, and had sent to their sureties on the bond copies of the order of abatement. Thereupon the plaintiffs introduced evidence tending to show that on October 13, 1875, the secretary of the treasury withdrew the abatement of the taxes by the following order:

'TREASURY DEPARTMENT,

'WASHINGTON, D. C., October 23, 1875.

'SIR: In the matter of Alexander & Reynolds, for abatement of taxes accruing on 8,252 gallons of spirits, amounting to $5,776.46, which were destroyed by fire on the sixth or seventh of March, 1875, while in the bonded warehouse of said firm, in the Fourth collection district of Tennessee, in view of the papers now on file in the case, the order for abatement of said taxes, dated August 5, claim can be had.

'Very respectfully,

B. H. BRISTOW, Secretary.

'Hon. D. D. PRATT, Commissioner of Internal Revenue.'

There is no proof in the record that this order withdrawing the abatement of the taxes ever came to the knowledge of the obligors upon the bond until it was produced on the trial. Upon this evidence the court charged the jury as follows: 'If you believe from the evidence that on the fifth day of August, 1875, the secretary of the treasury abated said taxes, and notified the Commissioner of Internal Revenue thereof, and he notified the collector, and he notified the defendants, the action of the acting secretary of the treasury so taken was final, and any attempted suspension or withdrawal thereof would be invalid, and it would be your duty to find for the defendants.' To this charge the plaintiffs excepted. The jury returned a verdict for defendants, and a writ of error sued out by the plaintiffs has brought the case to this court for review.

Asst. Atty. Gen. Maury, for plaintiff in error.

No brief filed for defendants in error.

WOODS, J.


text: Talk:United States v. Alexander (110 U.S. 325)


text:
United States v. Alexander (110 U.S. 325)/Opinion of the Court

The act of May 27, 1872, (17 St. 162,) under authority of which the abatement of taxes pleaded by defendants was made, provides as follows: 'That the secretary of the treasury be, and he is hereby, authorized, upon the production of satisfactory proof to him of the actual destruction by accidental fire or other casualty, and without any fraud, collusion, or negligence of the owner thereof, of any distilled spirits on which the tax, at the time of the destruction of said spirits, had not been paid, and while the same remained in the custody of any officer of internal revenue, in any distillery, warehouse, or bonded warehouse of the United States, to abate the amount of internal revenue taxes accruing thereon, and to cancel any warehouse bond, or enter satisfaction thereon in whole or in part, as the case may be.'

We are of opinion that the action of the secretary of the treasury shown by the bill of exceptions was a virtual cancellation of the bond sued on in this case. It is clear that after the secretary had abated the taxes, and had given notice thereof to the collector of internal revenue, with directions to take credit therefor in his accounts, which he had done, and official notice of the abatement had been given to the principals upon the warehouse distillers' bond, and they had given notice to their sureties, no suit could be maintained upon the bond. Its obligation was gone, and both the principals and sureties were discharged. The question is, therefore, whether the obligation of the bond could be restored by an order of the secretary of the treasury, not communicated to the makers, revoking the abatement. It may be conceded and we think that the secretary of the treasury might, on new evidence or further consideration, reimpose the taxes. But his reassessment would only subject the spirits and the distiller to a liability for their payment, it could not restore the obligation of the distiller's bond. If we yield to the contention of the appellants in this case, we must hold that the secretary of the treasury may, at his discretion and at any time, subject the obligors, both principals and sureties, upon a bond which had once been discharged, to a new liability, by an order of which they had no notice. It may be fairly presumed that sureties take indemnity from their principals. We cannot hold that after they have had notice of the discharge of the bond on which they were sureties, and when their relations to their principals may have entirely changed, and their indemnity been surrendered, it is within the power of the secretary of the treasury, without notice to them, to revive the bond and reimpose impose its obligation upon them. We do not think that the statute which authorizes the abatement of taxes and the cancellation of the bond gives authority to the secretary of the treasury to retry the question of abatement so as to keep alive the liability of the obligors upon the bond after the taxes have once been abated and they have received notice thereof. The only ground upon which the liability of the defendants in error can be maintained is that the abatement of the taxes and the cancellation of the bond were conditional, and subject to the power of the secretary to retry the question whether the spirits had been destroyed without the fraud, collusion, or negligence of the owner. We find no warrant in its language for such a construction of the statute. If the power had been given, some terms or limit of time would have been imposed on its exercise. If it exists, no restraint is imposed upon it. It may be exercised at any time, no matter how remote, without notice to the makers of the bond, and at the discretion or caprice of the secretary for the time being. We do not think that any such unlimited power is conferred by the statute. The secretary having once decided the question of abatement, his authority was exhausted, so far as it concerned the tax secured by the bond.

In the case of The Floyd Acceptances, 7 Wall. 667, it was held by this court that, under our system of government, the powers and duties of all its officers are limited and defined either by statutory or constitutional law. Applying this rule to the present case, we are unable to find in the statute any authority for the action of the secretary of the treasury in revoking the abatement of taxes once made by him, and must conclude that the authority does not exist. He might reassess the tax, but the bond given for the tax which had been abated would not be security for the reassessed tax. As this view was substantially embodied in the charge to the jury of the circuit court, which is assigned for error, we are of opinion that the charge was right, and that the judgment must be affirmed.


text: Talk:United States v. Alexander (110 U.S. 325)/Opinion of the Court


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Taylor v. Mayo

'Whereas Charles Davis, late one of the trustees of the Cairo city property, has agreed to transfer to the present trustees of said property, S. Staats Taylor and Edwin Parsons, at their request, all of said property remaining in his hands, without requiring previous payment of his demands against said property: Now, in consideration of the premises, and of one dollar to us in hand paid, we, S. Staats Taylor and Edwin Parsons, trustees of the Cairo city property, hereby promise and agree to and with the said Charles Davis, his executors, administrators, or assigns, that we will apply, from time to time, to the payment of all the just claims and demands of said Charles Davis against said Cairo city property, including the sum of $7,382.60, audited October 1, 1860, until the same shall be fully paid, all the moneys which shall come and remain in our hands as trustees as aforesaid, after first paying therefrom all taxes and current expenses of said property and trust actually imposed or incurred. But said claims and demands of said Davis, his executors or administrators, shall not be preferred to like claims of his co-trustee, John H. Wright.

'October 4, 1861.

S. STAATS TAYLOR,

'EDWIN PARSONS,

'Trustees of the Cairo City Property.'

The declaration further alleged that at the date of the execution and delivery of the contract there was due to Davis on just claims and demands against the Cairo city property, which had been audited and allowed, the sum of $7,382.60; that on March 1, 1867, Davis departed this life, leaving a last will and testament, which was afterwards duly proven, whereby he devised and bequeathed all his estate to the plaintiff; that afterwards, on September 30, 1867, the defendants, in consideration of the premises, executed and delivered to the plaintiff another contract, whereby they renewed and confirmed the contract of October 4, 1861, between them and Davis, and agreed to pay the plaintiff, as his administratrix, the amounts due his estate in the same manner and form as in the instrument of October 4, 1861, is particularly set forth, and that although large sums of money had come into the hands of the defendants as such trustees, over and above the amounts necessary to pay all the taxes and current expenses of the property and trust actually imposed or incurred, they had neglected and refused to pay said sum of money or any part of it. The defendants pleaded non-assumpsit. The parties waived a trial by jury, and submitted the issues of fact, as well as of law, to the court, which mode a special finding of facts, upon which it rendered judgment against the defendants in the sum of $12,957.67, that being the principal sum due Davis from the Cairo city property on October 4, 1861, with interest from that date. To reverse that judgment the present writ of error is prosecuted.

Wager Swayne, for plaintiffs in error.

J. Hubley Ashton, for defendant in error.

 * WOODS, J.

title: Taylor v. Mayo


text: Talk:Taylor v. Mayo

title: Talk:Taylor v. Mayo


text:
Taylor v. Mayo/Opinion of the Court

The findings of the circuit court show the following facts: The contracts of October 4, 1861, and of September 30, 1867, were executed and delivered by the plaintiffs in error, as averred in the declaration; that said Charles Davis and one Thomas S. Taylor had, previous to the execution of the first-mentioned instrument, been trustees of the Cairo city property under and by virtue of a declaration of trust dated September 29, 1846. That instrument, after reciting the conveyance to Taylor and Davis of about 9,000 acres of land situate in the state of Illinois at and near the confluence of the Mississippi and Ohio rivers, declared that the property was held in trust by them to, for, and upon the terms, conditions, uses, interests, and purposes therein pointed out. The fourth section of the instrument defined the powers of the trustees as follows: 'The said Taylor and Davis and their successors shall have the general management and control of all the property aforesaid, and of the proceeds thereof, pay the taxes thereon when in funds, and all the expenses incident to the creation and execution of the trust hereby declared. They may make such contracts, execute such instruments and obligations, employ such agents and laborers, make such erections and improvements on said lands, and such purchases and sales of real and personal estate, leases, donations, and investments as may be necessary and expedient to promote the interests of the shareholders,' etc. The principal object of the co-owners of the land described in the declaration of trust was to build a city thereon. In the exercise of their powers the trustees caused 'the erection of levees of sufficient size and height to protect the city to be commenced; the old hotel was repaired; river bank protected from abrasion; roads were cut through the timber; part of the land cleared; a new hotel built at an expense to the trust of about twenty thousand dollars, and grounds were laid out for a cemetery; a steam-boat was bought and run on the business of this trust; a quarry operated, also a ferry; newspapers were established; the city and additions were platted; lots were donated as compensation to persons who assisted in protecting the property from adverse legislation; wharves were constructed and improved; all these expenses were paid out of the trust fund.' About September, 1, 1860, the plaintiffs in error were, by regular conveyances, made the successors of Taylor and Davis as trustees. By virtue of the powers expressed in the fourth clause of the declaration of trust they executed the agreement of October 4, 1861, in order to obtain from Davis a transfer of the trust estate. On order to carry out the purposes of the trust, the plaintiffs in error, on October 1, 1863, borrowed $75,000, and on October 1, 1867, $50,000, to secure which they executed mortgages on all the real estate of the trust, which were afterwards foreclosed and the property sold, and the proceeds of the sale were insufficient to pay the amount due on the mortgage by $47,572.27. During the trusteeship of the plaintiffs in error they faithfully applied all the moneys received by them to the purposes of the trust, and in discharging what, in their opinion, were the current expenses of the trust and in the exercise of a fair and reasonable judgment therein. Between September 1, 1860, and the year 1874, the plaintiffs in error expended in improvements on the trust property, including the fire-proof office mentioned in the eighth finding, the sum of $298,226.91, and during the same period the additional sum of $343,226.94 in building levees on the Ohio and Mississippi rivers and in protecting the Mississippi river bank, and, as appears from the accounts made part of the findings, much the greater part of these sums were expended after October 4, 1881. On September 30, 1867, the time of the execution of the obligation to the defendant in error, and at the commencement of this suit, they had no money of the trust fund in their hands, but the fund was indebted to them in a sum exceeding $8,000.

The eighth finding established the following fact: About the winter of 1863 and spring of 1864 the plaintiffs in error, as trustees, erected, at a cost of about $35,000, a fire-proof office, which they deemed to be absolutely necessary for the safe keeping of the valuable papers and the transaction of the business of the trust. But the court was of the opinion that said expenditure was not the current expenses of the trust. The court further found that the plaintiffs in error 'at divers days and dates in the years 1863, 1864, 1865, 1866, 1873, and 1874 had in their hands moneys belonging to said trust fund sufficient to pay the amount due the plaintiff, after paying therefrom all taxes on said trust property and the ordinary expenses of said trust, as appears from the accounts herein contained; and that the plaintiff on divers occasions prior to the bringing of this suit, and prior to January 1, 1868, demanded of the defendants payment of the amount due on said contract, which was not paid.'

Upon these facts the plaintiffs in error contend that the instruments sued on, construed in connection with the declaration of trust and the administration of the trust estate by them, create between the parties the relation of trustees and cestui que trust, and that a court of law could not entertain jurisdiction of the suit against a trustee in his trust capacity, and that the circuit court erred in rendering judgment against the plaintiffs in error in their individual capacity. In our opinion the relation of trustees and cestui que trust did not arise between the plaintiffs in error and Davis, upon the contract of October 4, 1861. It is true the plaintiffs in error are trustees of the Cairo city property, but they are not trustees for Davis, or the administratrix of his estate. This is, in substance, the case of trustees promising to repay money which they had borrowed of a stranger for the benefit of the trust estate. Their undertaking was subsequent to the time when they assumed the duties of the trust. The declaration of trust expressed fully the powers and duties of the trustees, and the contract sued on did not and could not modify it. The defendant in error did not sue as a cestui que trust, or base her claim on any trust, express or implied, undertaken by the plaintiffs in error, for her benefit. A trustee is not an agent. An agent represents and acts for his principal, who may be either a natural or artificial person. A trustee may be defined generally as a person in whom some estate interest or power in or affecting property is vested for the benefit of another. When an agent contracts in the name of his principal, the principal contracts, and is bound, but the agent is not. When a trustee contracts as such, unless he is bound, no one is bound, for he has no principal. The trust estate cannot promise; the contract is therefore the personal undertaking of the trustee. As a trustee holds the estate, although only with the power and for the purpose of managing it, he is personally bound by the contracts he makes as trustee, even when designation himself as such. The mere use by the promisor of the name of trustee or any other name of office or employment will not discharge him. Of course, when a trustee acts in good faith for the benefit of the trust, he is entitled to indemnify himself for his engagements out of the estate in his hands, and for this purpose a credit for his expenditures will be allowed in his accounts by the court having jurisdiction thereof. If a trustee contracting for the benefit of a trust wants to protect himself from individual liability on the contract he must stipulate that he is not to be personally responsible, but that the other party is to look solely to the trust estate. There are, no doubt, cases where persons occupy the position of quasi trustees, under the appointment of a court, such as receivers charged with the performance of active duties, in which it would involve much hardship to make them personally liable. But in such cases, as the parties have the right to prove their claims against the common fund, and have them allowed by the court, the officer may have the protection of the court by which he is appointed, restraining parties from bringing suits against him, except where leave is given for the purpose of fixing the amount due. Barton v. Barbour, 104 U.S. 126.

In this case the contract is the personal contract of the plaintiffs in error. Before it was made the trust estate and the plaintiffs in error, in their capacity of trustees, were already bound for the debt due to Davis, and he had the right to keep possession of the trust estate until he was paid. It is clear, the contract and the circumstances under which it was made, that Davis consented to yield possession of the trust property on condition that he received some security for his payment other than the mere liability of the trust estate. He therefore took the contract in suit, and yielded the possession of the trust estate without exacting payment of his demands. The designation of the plaintiffs in error as trustees in the contract and in the pleadings was merely descriptive of their persons. The contract was their personal undertaking. It is true it was their promise to pay the claim of Davis out of the trust funds. But this was simply a limitation upon the contract; it was none the less their personal obligation. They personally undertook to pay a conceded balance due to Davis, whenever there should be a certain surplus of trust funds in their hands sufficient for that purpose, and they are personally liable for the breach of their undertaking.

The case of Duvall v. Craig, 2 Wheat. 45, supports these views. The suit was an action at law upon the covenants of warranty in a deed. The deed was executed by John Craig and by Robert Johnson and Elijah Craig as his trustees. The trustees described themselves as trustees of John Craig in the granting clause of the deed and in the covenants of warranty, and subscribed their names as such. The circuit court sustained a demurrer to the declaration. In this court it was contended for the defendant in error that, Johnson and Elijah Craig having convenanted as trustees, a court of equity was the only forum in which they could be sued, and that no individual judgment could be rendered against them. But the court, speaking by Mr. Justice STORY, said: 'If a trustee chooses to bind himself by a personal covenant, he is liable at law for a breach thereof in the same manner as any other person, although he describes himself as covenanting as trustee; for in such case the covenant binds him personally, and the addition of the words 'as trustee' is but matter of description to show the character in which he acts for his own protection, and in no degree affects the rights or remedies of the other party.' The court added: 'The reasoning upon this point disposes also of the second, that the covenant being made by Johnson and Elijah Craig, as trustees, no individual judgment can be rendered against them. It is plain * *  * there could have been no other judgment rendered against them, for at law a judgment against a trustee in such special capacity is utterly unknown.' The same learned judge, in his work on Promissory Notes, declares: 'As to trustees, guardians, executors, and administrators, and other persons acting en autre droit, they are by our law generally held personally liable on promissory notes, because they have no authority to bind ex directo the person for whom, or for whose benefit, or for whose estate, they act, and hence, to give any validity to the note, they must be deemed personally bound as makers.' Section 63. See, also, Thatcher v. Dinsmore, 5 Mass. 299; Forster v. Fuller, 6 Mass. 58; Hills v. Bannister, 8 COW. 31; Eaton v. Bell, 5 Barn. & Ald. 34.

The cases cited show that whether the obligation of a trustee is under seal or not is an immaterial fact, so far as it concerns his personal liability thereon. We are of opinion, therefore, that the plaintiffs in error, having assumed a personal liability, the suit was well brought against them in a court of law, and that the court did not err in rendering judgment against them in their individual capacity.

The next assignment of error is that the facts found by the court do not sustain the judgment. The contention is that the findings do not show that there was any surplus fund remaining in the hands of the trustees 'after paying therefrom all taxes and current expenses.' The findings of the court expressly state that in the years 1863, 1864, 1865, 1866, 1873, and 1874 the plaintiffs in error had in their hands moneys belonging to the trust fund sufficient to pay the amount due the defendant in error, after paying therefrom all taxes on the trust property and the ordinary expenses of the trust. These findings are fully sustained by the accounts therein referred to, unless there should be included in the current expenses of the trust the large sums expended by the trustees in the erection of the fire-proof office and other improvements, and in building and protecting the levees. We are of opinion that these and like expenditures are not current expenses of the trust, within the meaning of the contract of October 4, 1861. By that contract even the payment of taxes is not classed as among current expenses. If the expenditures referred to can be called expenses at all, they are extraordinary expenses. In our view they are investments of the capital of the Cairo city property, as much so as the purchase of land or the construction of water-works, ags-works, or a system of sewerage. It could scarcely have been the purpose of Davis, when he exacted from the plaintiffs in error the contract of October 4, 1861, in consideration of his yielding possession of the trust property, on which he had a lien, and from which he could have enforced immediate satisfaction of his debt, to postpone its payment for an indefinite period, and until the large sums which the plaintiffs in error expended in substantial and permanent improvements on the trust property had been paid. We think the correct interpretation of the phrase 'current expenses' was that given it by the circuit court, namely, ordinary expenses. The contract of the plaintiffs in error being thus construed, their liability to the defendant in error upon the facts found is clear. We are of opinion that there is no error in the record.

The judgment of the circuit court is therefore affirmed.

title: Taylor v. Mayo/Opinion of the Court


text: Talk:Taylor v. Mayo/Opinion of the Court


text:
United States v. Behan

''Sol. Gen. Phillips and John. S. Blair'', for appellant.

J. W. Douglass, for appellee.

BRADLEY, J.

title: United States v. Behan


text: Talk:United States v. Behan

title: Talk:United States v. Behan


text:
Page:Babyhood of Wild Beasts.djvu/41

F all our wonderful animal kingdom none attracts so much attention as the great apes. They so nearly approach man in habits, manners, appetites and mimicry that they really seem very human.

The Orang-Utans stand at the head of the animal class for intelligence and are equalled only by the chimpanzees.

A baby Orang is a very close approximation of a human baby. The Orang mother carries her baby in her arms. She coddles, pets and loves him in every conceivable way. She is very particular that he does not get injured nor eat any food that may disagree with him. I saw a small boy pass a baby Orang a peanut. The little fellow took it in his human looking hand and was about to eat it when his mother snatched it from him and destroyed it. She chattered and

title: Page:Babyhood of Wild Beasts.djvu/41