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County of Cass v. Johnston/Opinion of the Court

The first question presented for our determination in this case is, whether the 'Township Aid Act' of Missouri is repugnant to art. 11, sect. 14, of the Constitution of that State, inasmuch as it authorizes subscriptions by townships to the capital stock of railroad companies whenever two-thirds of the qualified voters of the township, voting at an election called for that purpose, shall vote in favor of the subscription, while the Constitution prohibits such a subscription, 'unle § two-thirds of the qualified voters of the. . . town, at a regular or special election to be held therein, shall assent thereto.'

In Harshman v. Bates County, 92 U.S. 569, we incidentally decided the act to be unconstitutional; but the point then specially in controversy was as to the applicability of this constitutional prohibition to township organizations. It was impliedly conceded upon the argument that, if the Constitution did apply, the law could not be sustained; and we accepted this concession as truly stating the law of Missouri. Now, however, the question is directly presented, whether the provisions of the Constitution and the statute are not substantially the same. On the one hand, it is contended that the Constitution requires the actual vote of two-thirds of the qualified voters of the township in favor of the subscription; and, on the other, that the requisite assent is obtained if two-thirds of those voting at the prescribed election shall vote to that effect.

The Supreme Court of Missouri has often been called upon to construe and give effect to this statute, and has never in a single instance expressed a doubt as to its validity. The first case was that of The State v. Linn County, 44 Mo. 504, decided in 1869, the year after the law was passed. That was an application for a mandamus to compel the county court to issue bonds upon a subscription made pursuant to a vote under the law; and it was contended that the act was repugnant to art. 11, sect. 14, of the Constitution, because the bonds to be issued were the bonds of the county and not of the township, and the voters of the county had not given their assent; but the court held that they were the bonds of the township, and granted the writ. Following this are the cases of Ranney v. Baeder, 50 Mo. 600; McPike v. Pen, 51 id. 63, decided in 1872; State v. Cunningham, 51 id. 479; Rubey v. Shain, 54 id. 207, decided in 1873; State v. Bates County, 57 id. 70, decided in 1874; State v. Clarkson, 59 id. 149, decided in 1875; State v. Daviess County, 64 id. 31; and State v. Cooper County, id. 170, decided in 1876,-in all of which the act was in some form brought under consideration, and in no one was there a suggestion of its unconstitutionality by either court or counsel.

It is true that the objection now made to the law was in no case presented or considered; but this is sufficiently explained by the fact that in other cases a construction adverse to such a position had been given to language similar to that employed in the constitutional prohibition. In State v. Winkelmeier, 35 id. 103, decided in 1864, just previous to the adoption of the Constitution, under a law which empowered the city authorities of St. Louis to grant permission for the opening of establishments for the sale of refreshments on any day in the week, 'whenever a majority of the legal voters of the city' authorized them to do so, it was held that there must be a majority of the voters participating in the election at which the vote was taken, and not merely a majority of those voting upon that particular question. The judge who delivered the opinion of the court did, indeed, say, 'The act expressly requires a majority of the legal voters; that is, of all the legal voters of the city, and not merely of all those who at a particular time choose to vote upon the question.' But this must be read in connection with what follows, where it is said that 'it appeared that more than thirteen thousand voters participated in that election, and that only five thousand and thirty-five persons voted in favor of giving to the city authority,. . . and two thousand and one persons voted against it. . . . It is evident that the vote of five thousand out of thirteen thousand is not the vote of a majority.' Taking the opinion as a whole, it is apparent that there was no intention of deciding that resort must be had elsewhere than to the records of the election at which the vot was taken to ascertain whether the requisite majority had been obtained. But, however this may be, in 1866 a similar question was presented to the same court in State v. Mayor of St. Joseph, 37 id. 270. There it was provided that the mayor and council of St. Joseph should cause all propositions 'to create a debt by borrowing money,' to be submitted 'to a vote of the qualified voters of the city,' and that in all such cases it should require 'two-thirds of such qualified voters to sanction the same.' A proposition to borrow money for the improvement of streets was submitted to a vote of the voters at an election called for that purpose, and resulted in a majority in favor of the measure. The mayor declined signing the necessary bonds, because 'he was in doubt whether the matter was to be determined by two-thirds of all the votes polled at the special election, or by two-thirds of all the voters resident in the city, absolutely, whether voting or not.' Thereupon a suit was instituted to settle this question, and to compel the mayor, by mandamus, to issue the bonds. In giving its decision, the court said: 'We think it was sufficient that two-thirds of all the qualified voters who voted at the special election, authorized for the express purpose of determining that question, on public notice duly given, voted in favor of the proposition. This was the mode provided by law for ascertaining the sense of the qualified voters of the city upon that question. There would appear to be no other practicable way in which the matter could be determined.' The writ of mandamus was accordingly issued. The same year the question came up again in State v. Binder, 38 id. 450. In that case the point arose under the refreshment act of St. Louis, which was considered in State v. Winkelmeier. It appeared that the authority to grant the permission in question was given at a special election called for that purpose, and that out of a vote of seven thousand and eighty-five, five thousand and fifty-one were in favor of the grant, and two thousand and thirty-four against it. The cases of State v. Winkelmeier and State v. St. Joseph were both referred to; and, after quoting from the opinion in the latter case, it was said: 'We think the case made here comes within the reasoning and the principles of that decision, namely, that an election of this kind, authorized for the very purpose of determining that question, on public notice duly given, was the mode contemplated by the legislature, as well as by the law, for ascertaining the sense of the legal voters upon the question submitted, and that there could not well be any other practicable way in which such a matter could be determined.' These decisions had all been made, and had never been questioned, when the act of 1868, now under consideration, was passed. They were also in force, as evidence of the law of the State, when the bonds in controversy were issued; and, so far as we are advised, there has been no disposition since on the part of the courts of the State to modify them. In State v. Sutterfield, 54 id. 391, the question was as to the construction of another clause in the Constitution; and the decision was placed expressly on the ground of a difference between the two provisions. That court has in the strongest language intimated its unwillingness to interfere with its previous adjudications when property has been acquired or money invested under them. Smith v. Clark County, id. 58; State v. Sutterfield, supra.

In St. Joseph Township v. Rogers, 16 Wall. 644, this court gave the same construction to the phrase, 'a majority of the legal voters of a township,' as used in an Illinois municipal aid statute; and Mr. Justice Clifford, in delivering the opinion, uses this language: 'It is insisted by the plaintiff that the legislature, in adopting the phrase, 'a majority of the legal voters of the township,' intended to require only a majority of the legal voters of the township voting at an election n tified and held to ascertain whether the proposition to subscribe for the stock of the company should be accepted or rejected; and the court is of the opinion that such is the true meaning of the enactment, as the question would necessarily be ascertained by a count of the ballot.' Among other authorities cited in support of this proposition is the case of State v. Mayor of St. Joseph, supra. This we understand to be the established rule as to the effect of elections, in the absence of any statutory regulation to the contrary. All qualified voters who absent themselves from an election duly called are presumed to assent to the expressed will of the majority of those voting, unless the law providing for the election otherwise declares. Any other rule would be productive of the greatest inconvenience, and ought not to be adopted, unless the legislative will to that effect is clearly expressed. Louisville & Nashville Railroad Co. v. The County Court of Davidson et al., 1 Sneed (Tenn.), 638; Taylor v. Taylor, 10 Minn. 107; People v. Warfield, 20 Ill. 159; People v. Garner, 47 id. 246; People v. Wiant, 48 id. 263. We conclude, therefore, that the Supreme Court of Missouri, when it decided the case of The State v. Linn County, and held the law in question to be constitutional, did not overlook the objection which is now made, but considered it settled by previous adjudications. That case is, therefore, to be considered as conclusive upon this question, as well as upon that which was directly considered and decided, and, as a rule of State statutory and constitutional construction, is binding upon us. It follows that our decision in Harshman v. Bates County, in so far as it declares the law to be unconstitutional, must be overruled.

It is further insisted that the bonds sued upon are invalid, because the railroad company to which the subscription was voted was not incorporated until the day of the election; and Rubey v. Shain, 54 Mo. 207, is cited in support of this objection. That case only decides, if it is to be regarded as authority, that a subscription cannot be made by a township until the company is incorporated, or, rather, that township subscriptions cannot be used to bring the company into existence. They are, to use the language of the judge in his opinion, not to be made the 'nucleus around which aid is to be gathered.' Here the company had been incorporated when the subscription was made. The decision relied upon, therefore, does not apply, and we are not inclined to extend its operation. This makes it unnecessary to inquire whether this defence could be maintained as against an innocent holder.

It is finally objected, that, as the bonds are in fact the bonds of the township, no action can be maintained upon them against the county. Without undertaking to decide what would be the appropriate form of proceeding to enforce the obligation in the State courts, it is sufficient to say that in the courts of the United States we are entirely satisfied with the conclusions reached by the court below, and that a judgment may be rendered against the county, to be enforced, if necessary, by mandamus against the county court or the judges thereof, to compel the levy and collection of a tax in accordance with the provisions of the law under which the bonds were issued. The reasoning of the learned circuit judge in Jordan v. Cass County, 3 Dill. 185, is to our minds perfectly conclusive upon this subject, and we content ourselves with a simple reference to that case as authority upon this point.

Judgment affirmed.

MR. JUSTICE BRADLEY, with whom concurred MR. JUSTICE MILLER, dissenting.


text: Talk:County of Cass v. Johnston/Opinion of the Court

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County of Cass v. Johnston/Dissent Bradley

MR. JUSTICE BRADLEY, with whom concurred MR. JUSTICE MILLER, dissenting.

I feel obliged to adhere to the opinion given in Harshman v. Bates County, 92 U.S. 569. If the Missouri convention which framed the Constitution of 1865 desired to prevent municipal subscriptions to railroad and other enterprises, except by the consent of a majority of the people qualified to vote in the distri t to be affected, I do not see what language could have been adopted more apt for the purpose than that which is actually used in the fourteenth section of art. 11: 'The General Assembly shall not authorize any county, city or town to become a stockholder in, or to loan its credit to, any company, association, or corporation, unless two-thirds of the qualified voters of such county, city, or town, at a regular or special election to be held therein, shall assent thereto.' The literal meaning of this clause seems to me unmistakably to require two-thirds of the qualified voters, whether they vote or not. The language is just as strong as that of the twenty-fourth section of art. 4, which declares that 'no bill shall be passed unless by the assent of a majority of all the members elected to each branch of the General Assembly.' This clause has always been construed to mean that no law can be passed unless a majority of the members vote for it, whether all are present or not. And the reason of the requirement in the former case is as strong as in the latter. The people who are to pay the taxes for raising a subscription to a railroad ought not to be subjected to that burden, unless the requisite majority of the class named, that is, the qualified voters, can be induced to give their assent to it. In the one case, as in the other, absence and failure to vote is equivalent to a dissent. I concede that if the Supreme Court of Missouri has given a countrary construction to the clause, which has become the settled law of the State, we should be governed by it. But I do not understand that this has been done. In State v. Winkelmeier, 35 Mo. 103, which was decided just before the adoption of the Constitution, the question arose upon the act of 1857, which declared that 'the corporate authorities of the different cities in the county of St. Louis shall have the power, whenever a majority of the legal voters of the respective cities in said county authorize them to do so, to grant permission for the opening of any establishment within the corporate limits of said cities for the sale of refreshments on any day in the week.' At an election in St. Louis, five thousand persons voted in favor of giving to the city authority to grant permission to open establishments for the sale of refreshments on Sunday, and two thousand voted against it. The court held, that, in order to confer the requisite authority under the act, it required 'a majority of the legal voters, that is, of all the legal voters, of the city, and not merely of all those who might, at a particular time, choose to vote upon the question.' This was the express language of the court; and as at that election more than thirteen thousand voters participated in voting for the officers to be elected, it was apparent from the election returns themselves, without looking further, that a majority of the legal voters of the city had not voted for the authority; and hence it was decided that no authority had been given. It is evident that the court would have come to the same conclusion had it been shown in any other way that less than a majority of the legal voters voted for the authority. The mode of ascertaining the whole number of legal voters was not prescribed by the law. In that case, it sufficiently appeared from the election returns themselves. There is no valid reason why the same conclusion should not be deduced from a registry of the legal voters. The objection that some persons not entitled to vote may be registered has no force to my mind. If any one choose to raise that issue, it might be open for him to do so; but the registry would certainly furnish prima facie evidence of the number of legal or qualified voters.

After the Constitution was adopted, a case arose on that clause of the Constitution which declares, art. 4, sect. 30, 'that the General Assembly shall have no power to remove the county seat of any county, unless two-thirds of the qualified voters of the county, at a general election, shall vote in favor of such re oval. This was the case of State v. Sutterfield, 54 id. 391; and the court, in an elaborate argument, again held that these terms require a positive vote in the affirmative of two-thirds of the qualified voters of the county; and the court expressly says, 'There is no difficulty in ascertaining what that number is, since the same Constitution provides for a registration, and points out who the qualified voters are.'

In the cases relied on by the defendant in error, the precise question now under consideration was not presented to the Supreme Court of Missouri. They mostly related to forms of phraseology different from that under consideration, and are distinguishable therefrom in several particulars, which it is unnecessary now to examine. The leading case of The State v. Linn County, 44 id. 504, was cursorily examined in Harshman v. Bates County. But, not desiring to prolong this opinion by entering into a critical examination of those cases, I will simply remark, that, taking them all together, the weight of authority in Missouri is, in my judgment, on the side of the interpretation which I still feel constrained to give to the constitutional clause in question.


text: Talk:County of Cass v. Johnston/Dissent Bradley


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County of Cass v. Jordan

ERROR to the Circuit Court of the United States for the Western District of Missouri.

The coupons sued on by Jordan are from bonds issued by Cass County on behalf of Mount Pleasant Township, which recite that they are issued 'pursuant to an order of the county court of said county, made by authority of an act of the General Assembly of the State of Missouri, entitled 'An Act to facilitate the construction of railroads in the State of Missouri,' approved on the twenty-third day of March, 1868, and authorized by a vote of more than two-thirds of the voters of said township, to aid in the construction of the Pleasant Hill and Lawrence Branch of the Pacific Railroad of Missouri.' The bonds bear date Aug. 24, 1869.

A petition of the requisite number of the tax-payers and residents of the township having been presented May 11, 1869, praying the county court to submit to a vote of the qualified voters of the township, the question of subscribing '$25,000 to the capital stock of the Pacific Railroad Company, which proposes to build a railroad through said township, to be known as the Pleasant Hill and Lawrence Branch of the Pacific Railroad,' the requisite order was made, and the sheriff directed to give notice of the election. It was duly held July 13, 1869, and more than two-thirds of the qualified voters of said township voting thereat voted in favor of the subscription. The court thereupon ordered the subscription to be made to the capital stock of that company, and the bonds to be issued.

The Pacific Railroad Company was incorporated March 12, 1849, by an act of the General Assembly of Missouri, and was, by its charter, authorized to build branch roads. Its board of directors adopted and, June 15, 1869, filed in the office of the secretary of state a resolution declaring said branch to be a branch of the Pacific Railroad, under an act of the General Assembly, entitled 'An Act to aid the building of branch railroads in the State of Missouri,' approved March 21, 1868.

Before the subscription was made, the company, July 24, 1869, submitted a proposition to the county court, that the stock to be issued should be stock in said branch, and none other, as provided by said act of March 21, 1868.

The county court, in compliance with the petition of two-thirds of the voters voting at said election, accepted the proposition, Aug. 14, 1869, and, conformably to its terms, entered into a contract with the company. The bonds were accordingly issued, and the certificates of stock in the branch road delivered. The road was constructed as a branch road under the act of March 21, 1868.

The court below rendered judgment against the county for the amount of the coupons and interest, and the county sued out this writ of error.

Submitted on printed arguments by Mr. Willard P. Hall for the plaintiff in error, and by Mr. John B. Henderson and Mr. T. K. Skinner for the defendant in error.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: County of Cass v. Jordan


text: Talk:County of Cass v. Jordan

title: Talk:County of Cass v. Jordan


text:
County of Cass v. Jordan/Opinion of the Court

The only question presented in this case not disposed of by the judgment in County of Cass v. Johnston, supra, p. 360, is that which relates to the identity of the company to whose stock the subscription was made with that to which the subscription was authorized, the claim being that the vote was for a subscription to the stock of the Pacific Railroad, while the subscription was actually made to that of the Pleasant Hill and Lawrence Branch of the Pacific Railroad. It appears, with reasonable certainty, that the vote of the township was for a subscription to aid in the construction of the branch road, and was intended to authorize the taking of the stock in the Pacific Railroad set apart under the 'Act to aid in the building of branch railroads in the State of Missouri,' approved March 21, 1868, to the Pleasant Hill and Lawrence branch. This renders it unnecessary to consider whether the plaintiff below was an innocent holder of the bonds sued upon, and what her rights would be as such.

The effect of the filing of the certificate for the construction of the branch after the call for the election, but before the vote was taken, has been sufficiently considered in the case above cited.

Judgment affirmed.

MR. JUSTICE MILLER and MR. JUSTICE BRADLEY dissented.


text: Talk:County of Cass v. Jordan/Opinion of the Court


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County of Cass v. Shores

ERROR to the Circuit Court of the United States for the Western District of Missouri.

This was an action brought by Shores against the county of Cass to recover the amount of certain bonds and coupons. A copy of one of the bonds and of a coupon thereunto attached is as follows: -

'No. 38.] THE STATE OF MISSOURI. [$500.

'''Cass County Funding Bond. Ten per cent, semiannually''.

'Issued by the order of the county court, under and by virtue of the power and authority conferred by an act of the General Assembly of the State of Missouri, entitled 'An Act to enable counties, cities, and incorporated towns to fund their respective debts,' passed and approved March 24, 1868.

'Know all men by these presents, that the county of Cass, in the State of Missouri, acknowledges itself indebted to, and hereby promises to pay, the bearer hereof, for value received, at the banking-house of Northrup & Chick, in the city and State of New York, $500, three years after the date hereof, with interest thereon from date at the rate of ten per cent per annum, payable semiannually, on the second days of April and October of each year, on the presentation and delivery at said banking-house of the coupons hereto attached.

'In testimony whereof, the said county of Cass has executed this bond by the presiding justice of the county court of said county, under the order of said court, signing his name hereto, and by the clerk of said court, under the order thereof, attesting the same, and affixing hereto the seal of said court. Done at the court-house in the city of Harrisonville, in said county, on the first day of October, 1871.

[SEAL.] 'JEHIEL C. STEVENSON,

'Presiding Justice of the County Court of Cass County, Mo.

'C. H. DORE,

'Clerk of the County Court of Cass County, Mo.

'By S. J. JONES, D. C.'

'$25.]

HARRISONVILLE, CASS CO., MO.,

'Oct. 1, 1871.

'The County of Cass, State of Missouri, acknowledges itself to owe, and promises to pay to the bearer, $25 on the second day of October, 1874, at the banking-house of Northrup & Chick, in the city and State of New York, being the interest on funding bond No. 38.

C. H. DORE, Clerk,

'By S. J. JONES, D. C.'

The act of the General Assembly mentioned in the bond is in these words:--

'SECTION 1. That the various counties of this State be, and they are hereby, authorized to fund any and a l debts they may owe, and for that purpose may issue bonds, bearing interest at not more than ten per cent per annum, payable semiannually, with interest coupons attached; and all counties, cities, or towns in this State which have or shall hereafter subscribe for the capital stock of any railroad company, may, in payments of such subscriptions, issue bonds bearing interest at not more than ten per cent per annum, payable semiannually, with interest coupons attached. The bonds authorized by this act shall be payable not more than twenty years from date thereof.'

This act to take effect from and after its passage.

Pursuant to an act of the General Assembly, approved March 23, 1868, which will be found supra, p. 361, the county court of said county issued bonds, with interest coupons attached, in the name of the county, on behalf of the township of Camp Branch, to aid in the construction of a railroad through said township. Certain of said coupons remaining unpaid Oct. 20, 1871, said court, having, under the laws of the State, the management of the business and property of the county, entered at that date upon its records the following order: -

'Ordered by the court, that whereas coupons for interest upon certain bonds of Cass County, issued for the benefit of the townships of Camp Branch and Grand River, to aid in the construction of the St. Louis, Holden, and Santa F e Railroad, have matured and remain unpaid; and whereas the court has been prevented from making any provisions therefor until since the last annual levy of taxes; and whereas the credit of the county has suffered, and is likely to suffer, on account thereof; and whereas, in the opinion of the court, good faith and honor require that counties, as well as individuals, should meet their obligations in good faith: Therefore, for the purpose of paying said coupons, keeping the faith of the county, protecting and preserving her credit, and also that the next levy of taxes upon said townships may not prove burdensome, it is ordered by the court that, for the benefit of Camp Branch Township, in the county of Cass, there be issued ocunty funding-bonds of the denomination of $500 each, to the amount of $8,000, with coupons for the payment of interest semiannually, at the rate of ten per cent, thereto attached; said bonds to bear date Oct. 1, 1871; said coupons for interest to be payable on the second day of April and October of each year, at the banking-house of Northrup & Chick, in the city and State of New York, at which place said bonds shall be payable three years after the date thereof; said bonds to be signed by the presiding justice of this court, and attested by the clerk under the seal thereof, and numbered from 1 to 16 inclusive; said coupons to be signed by the clerk. It is also ordered that, for the benefit of the township of Grand River, in said county, there be issued funding bonds of the county of Cass, of the denomination of $500 each, to the amount of $15,000, with coupons for the payment of interest semiannually, at the rate of ten per cent per annum, thereto attached; said bonds to bear date Oct. 1, 1871; said coupons for interest to be payable on the second day of April and October of each year, at the banking-house of Northrup & Chick, in the city and State of New York, at which place said bonds shall be payable three years after the date thereof; said bonds to be signed by the presiding justice of this court, and attested by the clerk under the seal thereof, and numbered from 17 to 44 inclusive; said coupons to be signed by the clerk. It is further ordered, that, inasmuch as C. H. Dore, the clerk of this court, is in person absent from the county and State, said bonds be attested and signed by S. J. Jones, his duly appointed and authorized deputy. It is further ordered, that said bonds, when issued, be delivered to William H. Allen, who is hereby appointed financial agent of the county, for the purpose of disposing of a sufficient number of said bonds, and paying the coupons of interest which have mat red on the bonds of Cass County, issued for the benefit of said townships to aid in the construction of the St. Louis, Holden, and Santa F e Railroad; and that said agent hold the balance of said bonds subject to the order of this court.'

The bonds with the interest coupons attached for the recovery of which the suit was brought were, it was claimed, issued by virtue of that order.

The county set up by way of defence that the debt so funded was a township debt, for the payment of which the court could not bind the county; and, furthermore, that the persons who executed the bonds and coupons were special agents of the county, with limited power, derived solely from an order which did not confer upon them the requisite authority. The plaintiff replied that the county did execute them, and cause them to be sold in open market, where he purchased them for value, in good faith and without knowledge of any fact or circumstances which would impair their validity.

The court below, to which the trial of the issue was by a stipulation of the parties submitted, found that the foregoing order was made by the county court, and that by virtue thereof the bonds and coupons in suit were executed, and that Allen, the agent appointed for the purpose, sold them to Shores, who paid full value for them, in good faith and with no knowledge of any circumstance connected with their issue other than what appears upon the face of them, and what the law would, upon the foregoing facts, impute to him; and that the moneys arising from the sale were applied to the payment of said overdue and unpaid coupons.

The court further found that said bonds and coupons were, in the hands of Shores, the valid obligations of said county, and that he was, as an innocent holder of them for value, entitled to recover against it the amount of them and interest thereon. Judgment was rendered accordingly. The county sued out this writ of error.

The case was argued for the plaintiff in error by Mr. Willard P. Hall and Mr. John C. Gage, and for the defendant in error by Mr. John D. Stevenson.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: County of Cass v. Shores


text: Talk:County of Cass v. Shores

title: Talk:County of Cass v. Shores


text:
County of Cass v. Shores/Opinion of the Court

It was conceded upon the argument, that, under the decisions of this court, the county was estopped from denying its liability upon the bonds in question, being, as they are, in the hands of an innocent holder, if the presiding justice of the county court and the clerk were, by the terms of the order of Oct. 20, 1871, authorized to execute bonds which would bind the county for their payment. The question of the power of the county court under the law to bind the county for the payment of a debt of a township, or to issue bonds on behalf of a township to fund township debts, is not involved. The only inquiry is as to the authority conferred upon the presiding justice and the clerk by the terms of the order. On the one hand, it is contended that they were only empowered to issue the bonds of the county in behalf of the township, and thus bind the township alone for payment under the township aid act; and, on the other, that they were authorized to charge the county with the indebtedness to be incurred.

The latter, we think, is the true construction of the order. It recited that coupons for interest upon the bonds of the county issued for the benefit of the township had matured and remained unpaid; that the court had been prevented from making provision therefor until after the last annual levy of taxes; that the credit of the county had suffered, and was likely to suffer, on account thereof; and that honor required counties as well as individuals to meet their obligations in good faith. It then directed that, for the benefit of the township, county funding-bonds be issued 'for the purpose of paying said coupons, keeping the faith of the county, protecting and preserving her credit, and also that the next levy of taxes upon said township may not prove burdensome.' For the purposes of construction, language is to be given, if possible, its ordinary and natural meaning. Applying this elementary rule in the present case, there seems hardly room for doubt as to what was intended. 'County funding-bonds' were to be issued to protect the faith and preserve the credit of the county. The law under which the action was taken was one authorizing counties 'to fund any and all debts they may owe.' The county court may have been mistaken in supposing that the interest in arrears was a county debt; but, however that may be, they clearly assumed that it was, and acted accordingly.

Judgment affirmed.


text: Talk:County of Cass v. Shores/Opinion of the Court


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Mutual Benefit Life Insurance Company v. Higginbotham

ERROR to the Supreme Court of the District of Columbia.

The facts in the case are fully set forth in the opinion of the court.

Mr. Frederick T. Frelinghuysen and Mr. J. Hubley Ashton for the plaintiff in error.

Mr. A. G. Riddle and Mr. Francis Miller, contra.

MR. JUSTICE HUNT delivered the opinion of the court.


text: Talk:Mutual Benefit Life Insurance Company v. Higginbotham


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Mutual Benefit Life Insurance Company v. Higginbotham/Opinion of the Court

This was an action by Mrs. Martha J. Day against the Mutual Benefit Life Insurance Company, incorporated by the State of New Jersey, to recover the amount of a policy of insurance issued to her upon the life of her husband, the late Dr. Richard H. B. Day, of Washington, in which judgment was rendered against the company for the amount insured, $5,000 and interest. Mrs. Day having died pendente lite, her administrator was substituted here in her stead.

The policy, dated the 16th of July, 1869, was for life, and stipulated for the payment of the annual premium of $137.50 on or before twelve o'clock on the sixteenth day of July in every year; and provided that, 'in case the said premium shall not be paid on or before the several days hereinbefore mentioned for the payment thereof, at the office of the company, in the city of Newark, or to agents, when they produce receipts signed by the president or the treasurer, then, and in every such case, the said company shall not be liable to the payment of the sum insured, or any part thereof, and this policy shall cease and determine.'

The first premium was duly paid; but when the next premium became due, on the 16th of July, 1870, it was not paid.

In the following October, Dr. Day made application to the company for the reinstatement of the policy; and the company consented to reinstate it, upon the conditions and in the manner following:--

On the 1st of October, 1870, Dr. Day paid the premium to the agent of the company at Washington, and received a receipt for the same. At the same time, he gave to the agent his certificate of health, and the physician of the company signed his certificate of examination, which were forwarded to the company at Newark, N. J.

The policy was renewed, and the renewal receipt was sent by the company to its agent, Oct. 12, 1870. This receipt was dated July 16, 1870, and was given to Day on the 14th of October.

On the twenty-second day of January following, Dr. Day died.

Eleven special pleas are interposed, to which it is not necessary particularly to refer, as the questions to be decided arise upon the rulings of the judge at the trial, made upon points not connected with the pleadings.

The chief subject of contention arises upon the refusal of the judge to charge as requested by the defendant in the following prayers:--

1. If the jury find from the evidence that the certificate of health in evidence was made by Dr. Day, the insured, on or about the 1st of October, 1870, and by him delivered to the agent of the defendant, at Washington City, and by such agent sent to the principal office of the defendant, at Newark, N. J., and that the receipt in evidence, dated July 16, 1870, was thereupon forwarded from the main office of the defendant to its agent at Washington City, and by him delivered to the insured on or about the fourteenth day of October, 1870, and that between the time when said certificate was made and the time of the delivery of said receipt to the insured, Dr. Day had had any derangement of health, and did not disclose that fact to the agent of the defendant when the receipt was handed to him by the agent, or before, they will render a verdict for the defendant upon the sixth plea.

2. On refusing to instruct the jury as prayed by defendant, as follows: If the jury find from the evidence that when the certificate in evidence, dated Oct. 1, 1870, was given to the agent of the defendant at Washington City, the latter was not authorized to and did not assume to reinstate the policy in suit, but accepted the premium and forwarded the certificate to his principal, and that the receipt in evidence, dated July 16, 1870, was then in the home office of the defendant, in New Jersey, and that said receipt was forwarded to the agent of the defendant on or about the twelfth day of October, 1870, and by him delivered to the insured on or about the fourteenth day of the same month; and if the jury further find, that, after the date of said certificate, and before the delivery of said receipt to the insured, the insured had had any derangement of health, or that at the time of the delivery of said receipt to him he was not in sound health,-they would render a verdict for the defendant.

The state of Dr. Day's health during the summer and autumn of 1870 was the subject of contradictory testimony. The defendant gave evidence tending to prove that he was compelled by ill-health to give up his business as a teacher on the eighteenth day of October, 1870; that for several weeks prior to that time he was much debilitated, and was conscious of that fact; that in November he had the consumption, of which he died in January following; and that he was in feeble and disordered health from the spring of 1869 until his death. The plaintiff, on the other hand, gave evidence tending to show that he was in sound health till the latter part of October, 1870, and that he did not have the consumption until the month of November, 1870.

The exceptions we are to consider assume that on the first day of October, 1870, when he presented his certificate of health to the agent at Washington, Dr. Day was in a condition of health that made him a satisfactory subject for the reinstatement or continuance of his policy of insurance.

It is contended that between the time of thus making and presenting his certificate to the agent and the date (fourteen days later) on which the agent delivered to him the receipt by which his insurance policy was continued in force until July 16, 1871, there had been a change in his health which would have caused the rejection of his application to continue the policy had such change been made known to the company, and that the failure to make known such change was a fraud, which invalidated the policy thus renewed or continued.

It is not contended that there were any false representations made on the 14th of October, or any devices or contrivances to deceive the company. No affirmative action on that occasion is complained of. The contention is that the representation made on the 14th of October was a continuing one, from the time it was made till the delivery of the renewal receipt on the 14th, and that, if not true at the latter date, the contract was avoided.

In reaching a conclusion on this point, we may notice, 1st, that no inquiry was made of Day or demand for information as to his condition between the 1st and the 14th of October. The company was particular and specific in its inquiries as to his condition on the 1st of the month, and required prescribed forms of evidence as to that condition. There it stopped, and neither by expression nor by implication intimated a desire for later information.

It is to be observed, secondly, that the issuance made to him on the 14th of October relates back to the 16th of July in the same year. The certificate reads: 'Policy No. 59,687, on the life of Richard H. B. Day, is hereby continued in force for one year from date, July 16, 1870, settlement of the premium having been made as per margin.' The settlement in the margin showed the payment of $137.50, being the amount of the premium of insurance for one year on the sum of $5,000, as stated in the original policy of insurance.

It will be observed, thirdly, that the distance between Washington and Newark is about two hundred miles only, and that the certificates of Dr. Day's health and the application which were forwarded by the agent to the company at Newark would, in the ordinary course of the mails, reach the office at Newark on the morning or during the day of the 2d; that all the forms of the company to authorize a renewal were complied with, and that the risk was such as the company would accept as a desirable one, and that the receipt for the renewal was received in Washington on or about the 14th of October, and was on that day delivered to Dr. Day.

The prayer of the insurance company did not include a request that the jury should determine as a matter of fact whether, upon the evidence submitted, the representation was or was not a continuous one, whether the contract was consummated on the 14th of October, or by relation on the 1st of October; but the judge was requested to charge, as a matter of law, that the representation was a continuing one.

The facts referred to, we think, show that, although actually completed on the 14th of October, the jury would have been warranted in finding that the contract was understood and intended by the parties to take effect by relation as of the 1st of that month. The money was paid to the agent at Washington on that day. The insurance was post-dated so as to include that day. The full amount of the premium for one year was paid by the applicant, viz., $137.50. The company cut off the insured from two and a half months of his policy when they issued it on the 1st of October, and dated it as of July 16, although taking payment of the premium for a year. We think that they did not necessarily intend to cut off an additional fourteen days, but may have meant it to be as of the date when the insured paid his money and presented a risk that they were willing to take, and of the time that it would have taken effect if they had responded without a delay of two weeks. Had it been otherwise, we cannot conceive how the sagacious business men who control this company would have assented to the delivery of the policy without inquiry as to the intermediate time. More than three months elapsed before Day's death, monthly returns being made by the agent; and the company must have known and assented to the delivery of the renewal receipt not only, but to the fact that there had been no inquiry or information as to Day's health after Oct. 1. The jury might account for it on the theory that the whole contract was intended to be and was as of Oct. 1, and that it spoke from that date.

There is every indication that Day thus relied upon that contract, nor is there any reason to believe that he intended to deceive or to conceal. The company made inquiries to its own satisfaction, so far, in such direction, upon such points, and within such periods, as it thought proper. It was not for him to advise the company of what it should do, or to volunteer information which it did not seek. He paid his money, delivered his certificate, received the renewal when the company chose to give it, found upon examination that it covered the whole period from the July preceding. He lived in the same town with the agent, and received no suggestion from him that any thing further was expected, and was warranted in assuming that his contract was intended to take effect from an earlier period than its actual delivery. He probably died in the honest belief that he had thus provided for his widow. It would be far from good faith to his representatives should it now be held otherwise.

In Colt v. Phoenix Fire Insurance Co., 54 N. Y. 595, it is said: 'The defendant must not be made liable, where by the terms of the contract it is fairly exempted, however harsh the result may appear; nor can it be excused where t e exemption is claimed upon a strict and rigid interpretation of words, without regard to the circumstances surrounding the transaction, and the apparent intent of the parties.' See also Tipton v. Feitner, 20 id. 423.

In May on Ins., sect. 190, it is laid down: 'Where renewals are made upon the statements in the original application, whether the truth of the statements is to be tried by the circumstances existing at the time of the renewal or at the time when the original application was made, is a question upon which the authorities do not agree; some taking the view that a renewal makes a new contract, and others that it merely continues the old one. Special circumstances, however, seem to control the decision, according as these circumstances indicate the intent of the parties.'

If we assume it to be true, as a general proposition, that the policy speaks from the date of its issue, and that the obligation of the applicant to make a full disclosure continues down to the completion of the contract, and that the occurrence of a material change before the contract is consummated must be communicated to the company, we do not advance essentially in the case before us. The question recurs, When was the contract of Dr. Day consummated? If on the 14th of October, when the renewal receipt was delivered, as the company contends, then the rule mentioned bars the plaintiff's right to recover. If, as the plaintiff contends, the contract, by the intention and understanding of the parties, relates to the 1st of October, when the premium was paid by the applicant and the certificates of health presented and transmitted, or to a point of time within a few days thereafter, within which the company ought to have examined and to have accepted a risk in all respects suitable to be accepted within its own rules, then the general rule quoted is not applicable. The case is governed by different principles. It is not necessary, therefore, to question the principle assumed in the authority quoted, or to examine the cases cited to sustain it.

We are of the opinion that the exceptions to the charge of the judge, upon the theory that the representations by Dr. Day were made on the fourteenth day of October, or that concealment was then practised by him, on the ground that the previous representations, necessarily and as a matter of law, were continuous, and that the contract was consummated on that day, cannot be sustained. It was a question proper under all the circumstances for the consideration of the jury. If they had found for the plaintiff, we are of the opinion that the verdict would not have been vacated as being without or against the evidence.

In many English companies a formal acceptance of the pro posal for insurance is issued. In some companies this acceptance is unconditional, so that the premium be paid within the month, the letter of acceptance running to the effect that the proposal has been accepted, and that a receipt is ready at the office for the premium, upon the payment of which the assurance will commence; but that, if the same be not paid within thirty days, a reappearance and fresh certificate will be required. In other companies the acceptance is qualified by the condition, not only that the insurance shall not commence till the payment of the premium, but that no material change shall have occurred prior thereto. Bunyon, 58, cited Bliss, sect. 99.

The practice is not uniform, and there is nothing remarkable in allowing a certificate of health to stand good for thirty days, no reappearance or examination for that interval being required.

Among the cases relating to this subject, the following may be referred to as showing the effect of the contract by relation, and that the consummation of the contract does not necessarily depend upon the delivery of the policy.

In Lightbody v. The North American Insurance Co., 23 Wend. (N. Y.) 18, it was held that a policy bearing date on the day the premium is paid takes effect by relation from that day, although the policy be not elivered for serveral days afterwards. In this case, the buildings were burned on the day after the premium was paid and before the policy was delivered.

In Perkins v. Washington Insurance Co., 4 Cow. (N. Y.) 645, the rule was applied in a case where the agent was authorized to make insurances, 'provided the office shall recognize the rate of premium, and be otherwise satisfied with the risk.' It was held that the company was bound to issue a policy where the insurance was a proper one and the premium was paid or tendered, although before the premium was received at the home office the property was consumed by fire.

In Chase v. The Hamilton Insurance Co., 22 Barb. (N. Y.) 527, the agent forwarded a proposition for insurance, which was altered by the company, and alteration communicated to and accepted by the applicant, and the premium paid to the agent. Held, that the company was bound to issue its policy, and was liable for the loss.

In Insurance Company v. Webster, 6 Wall. 129, the party having received his policy, it was held that he was not affected by afterwards signing a memorandum that the insurance was to 'take effect when approved by E. D. P., general agent.' See also Cooper v. The Pacific Mutual Life Insurance Co., 3 Big. Ins. 656; 7 Nev. 116; Carpenter v. Mutual Safety Insurance Co., 4 Sandf. (N. Y.) Ch. 408; American Horse Insurance Co. v. Patterson, 28 Ind. 17; Bliss, sect. 172; The City of Davenport v. Peoria Marine and Fire Insurance Co., 17 Iowa, 276; Lefavour v. Insurance Company, 2 Big. Ins. 158.

At the close of his charge, the judge instructed the jury as follows: 'That the plaintiff is not responsible for or in any way affected by any of the statements in Dr. White's affidavit, unless the jury find that before and at the time of filing it with the agent of the company she had actual knowledge of its contents, and adopted and used them as her own declarations. That affidavit is her declaration or no, as she knew and was advised of it and procured and approved it.' To which instruction the counsel for the insurance company then and there excepted.

In establishing her case at the trial, the plaintiff was bound to prove that notice of the death of her husband, Dr. Day, had been given to the company, and that a demand of payment of the amount claimed had been made. For that purpose only she offered in evidence the proofs of loss which had been furnished to the company, except the affidavit of Dr. White, forming a part of the same, which she did not offer in evidence. Those proofs contained the sworn statement of Mrs. Day herself, the sworn statement of Dr. Isaac White, certificates of the clergyman and undertaker, and proof of identity by J.F. Patterson.

These affidavits were all on one paper, and the court required that the proofs of loss should be put in as an entirety; that is, that all the papers containing the preliminary proofs should be put in evidence; and the same were thereupon put in evidence by the plaintiff, including the affidavit of Dr. White. In Dr. White's affidavit thus introduced occurred the following questions and answers: "How long have you known the deceased?'-'I have known Dr. R. H. B. Day seventeen years.'-'How long was deceased sick?'-'About five months.'-'Date of your first visit?' 'Nov. 28, 1870.'-'Date of your last?'-'Jan. 22, 1871.'-'Of what disease did he die?'-'Pulmonary consumption." It appeared further that Dr. White was not a resident of Washington, but left that city immediately after making the affidavit mentioned, on the 28th of January, 1871.

Mrs. Day testified that Dr. White had not seen her husband at any time between September, 1869, and the latter part of November, 1870.

The struggle as to Dr. White's affidavit and the ruling upon it are quite immaterial. He stated in answer to one of the questions that Dr. Day had been ill about five months, and, as he died on the 22d of January, 1871, this would carry his illness back to the 22d of August, 18 0, of course, including all the month of October of that year. The insurance company apparently sought the benefit of this evidence on the contest in regard to Day's health.

It is, however, manifest that White's statement was not one of personal knowledge, but was upon rumor, or made without sufficient reflection. This is evident from the testimony of Mrs. Day, which is entirely unimpeached and uncontradicted, that Dr. White did not see her husband during all of the year 1870 until the latter part of November. Upon this subject she could not well be in error. It was equally evident, from the statement of White himself, that his first visit to Day was on the 28th of November, 1870.

Day's bodily health on the first day of October, 1870, was satisfactory of the company, and the attempt was to show an unfavorable alteration between that date and the 14th of the same month. But White had not seen him during those fourteen days, nor for months before, nor for more than six weeks afterwards.

Whether the presentation of the affidavit of White by Mrs. Day made its contents evidence, whether she knew its contents or not, whether she did or did not adopt or procure it, was not of the slightest consequence. The paper contained nothing that was legal evidence upon the point in issue, and a verdict founded upon it could not have been sustained. The disposition of the subject by the judge was one that could not possibly work legal injury to the insurance company. There was, therefore, no error. Starbird v. Barrons, 43 N. Y. 200; Pepin v. Lachenmeyer, 45 id. 27; The People v. Brandreth, 36 id. 191; Porter v. Ruckman, 38 id. 210; Corning v. Troy Iron and Nail Factory, 44 id. 577.

The effect of facts set forth in preliminary proof as admissions is discussed in Insurance Company v. Newton, 22 Wall. 32. Where an agent of the insurance company stated that the proofs were sufficient to show the death of the insured, but that they showed that he committed suicide, it was held that the whole admission must be taken together. Where the party or her agent stated in the preliminary proofs that the deceased had committed suicide, furnishing the verdict of a coroner's jury to that effect, and where the narration of the manner of the death of the deceased was so interwoven with the death of the deceased that the two things were inseparable, it was held that the whole was competent to go before the jury.

We see no occasion to question the positions of that case.

Upon the whole case, we are all of the opinion that the judgment must be affirmed; and it is

So ordered.


text: Talk:Mutual Benefit Life Insurance Company v. Higginbotham/Opinion of the Court


text:
Thompson v. Maxwell

APPEAL from the Supreme Court of the Territory of New Mexico.

The facts are stated in the opinion of the court.

''Mr. Matt. H. Carpenter and Mr. Joseph B. Stewart'' for the appellants.

Mr. W. W. MacFarland, contra.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Thompson v. Maxwell


text: Talk:Thompson v. Maxwell

title: Talk:Thompson v. Maxwell


text:
Thompson v. Maxwell/Opinion of the Court

In 1859, Alfred Bent and his two sisters, Estefana and Teresina, with their husbands, filed a bill in chancery in the District Court of the Territory of New Mexico for the County of Taos, against Charles Beaubien, Guadalupe Miranda, Lucien B. Maxwell, and Jos e Pley, claiming and alleging that Charles Bent, deceased, the father of Alfred and his sisters, at the time of his death, was jointly interested with said Beaubien and Miranda, to the extent of one-third part, in a certain specified tract of land in said territory, amounting to two millions of acres, which had been granted to said Beaubien and Miranda by the New Mexican government in 1841, and stood in their names; and that as to said third part they were trustees for said Charles up to the time of his death, and from thenceforward trustees for the said Alfred and his sisters as heirs-at-law of said Charles. The bill further stated that Maxwell and Pley pretended to have become interested in said land; and prayed as against all the defen ants that the title of said Charles Bent to the third part thereof might be established, and for a partition. Such proceedings were had in that suit, that, on the 29th of May, 1865, a decree was made, establishing Bent's title to one undivided fourth part of the land, the right of succession of the complainants, and adjudging that a partition be made according to the prayer of the bill. Commissioners for making partition were appointed by the decree, and ordered to report at the next term, the court reserving its decree as to the partition and the costs of the cause.

After this decree was made, certain negotiations took place between Maxwell (who had acquired the principal interest in the property) and the complainants, looking to a settlement of the controversy, and a purchase by Maxwell of the complainants' interest. Whether these negotiations were concluded in Alfred Bent's lifetime, or not until after his death, subsequently became a matter of controversy between the parties. He was accidentally killed on the 15th of December, 1865, leaving a widow, Guadalupe Bent (who afterwards married George W. Thompson), and three infant children, Charles, Julian, and Alberto, his heirs-at-law.

The commissioners for making partition never reported; and the next proceeding in the cause, so far as appears by the record, was an order made in April, 1866, making the infant children and heirs of Alfred parties complainant, and continuing the cause. A few days afterwards, in the same term, the following order was entered in the cause:--

'By agreement of the parties, the continuance of this cause, made on a former day of this term of this court, is set aside; and, on motion of solicitors for the complainants, Guadalupe Bent is hereby appointed guardian ad litem and commissioner in chancery for the minors of Alfred Bent in this cause, with full power to execute deeds or carry into execution all sales or transfers made of her [their?] interests in and to the real estate therein described to Lucien B. Maxwell, one of the defendants in said cause, and that this cause stand continued until the next term of this court.'

On the third day of May, 1866, Guadalupe Bent, as guar dian ad litem of Charles, Julian, and Alberto, and commissioner under the foregoing order, executed a deed of conveyance in fee to the said Maxwell for the one undivided twelfth part of the property in question, belonging to the said Charles, Julian, and Alberto, as heirs of their father. The sisters of Alfred, with their husbands, executed deeds for their interest in the lands about the same time.

In September Term, 1866, another decree (probably intended as a substitute for the order made in April) was made in the said cause, in the words following, to wit:--

'Whereas an interlocutory decree was rendered at a former term of this court in the above cause, decreeing one-fourth of the land mentioned in the petition herein to the complainants in this cause, and appointing commissioners to divide and set apart the portion so decreed; and whereas said interlocutory decree was never carried into effect; and whereas, since the time of the rendition of said decree, a mutual agreement has been made between the parties to this cause, settling and determining all the equities in the same:

'It is, therefore, hereby ordered, adjudged, and decreed, by the mutual consent and agreement of the said complainants as well as of the said defendants in this cause, that the interlocutory decree above mentioned, together with all orders made under and by virtue of the same, be set aside; and, by the mutual consent and agreement of the said parties, it is hereby further ordered, adjudged, and decreed that the said Lucien B. Maxwell, one of the defendants in this cause, pay to the said complainants the sum of $18,000, to be divided among them per stirpes; that is, to the said Aloys Scheurick and Teresina Bent, his wife, one-third part, and to Alexander Hicklin and Estefana Bent, his wife, another third part, and to Charles Bent, Julian Bent, and Al erto Silas Bent, the children and heirs of Alfred Bent, deceased, the remaining third part, to be equally divided among the said last named, and to be paid into the hands of Guadalupe Bent, widow of the [said] Alfred Bent, deceased, and guardian ad litem for said children, for the purposes of the said division.

'And, upon the further consent and agreement of the said parties, it is hereby further ordered, adjudged, and decreed that the said Alexander Hicklin and Estefana Bent, his wife, the said Aloys Scheurick and Teresina Bent, his wife, and the said Guadalupe Bent, guardian ad litem for Charles Bent, Julian Bent, and Alberto Silas Bent, children and minor heirs of the said Alfred Bent, deceased, within ten days from the date of this decree, make, execute, and deliver to the said Lucien B. Maxwell good and sufficient deeds of conveyance of all their right, title, interest, estate, claim, and demand of, in, and to the lands in controversy in this cause, the said Guadalupe Bent, guardian ad litem as aforesaid, in the name of Charles Bent, Julian Bent, and Alberto Silas Bent, minor heirs as aforesaid, and the said Alexander Hicklin and Estefana Bent, his wife, and the said Aloys Scheurick and Teresina Bent, his wife, in their own names. And, by further consent and agreement between the said parties, it is hereby further ordered, adjudged, and decreed that the costs of this suit shall be paid, each of the said parties to pay the separate costs in the same made by themselves.'

This last decree seems to have been the termination of proceedings in the cause. No further conveyances were executed, and nothing else was done to carry the decree into effect.

On the first day of August, 1870, nearly four years after the entry of the last decree, the proceedings were instituted which are now brought here on this appeal. On that day, the present appellees, The Maxwell Land-Grant and Railway Company (to whom by mesne conveyances a large portion of the land had, in the mean time, been assigned), together with Lucien B. Maxwell and his wife, filed in the same court a bill against Guadalupe Thompson, administratrix of Alfred Bent's estate, her husband, George Thompson, and the said infant children and heirs of Alfred Bent, in which bill, after setting forth the grant to Beaubien and Miranda, and the derivative title of the complainants in the land, and the substance of the proceedings which had taken place in the previous suit, the complainants proceeded to state at large the terms of the compromise agreement which had been made, and which had resulted in the final decree made in that suit. They alleged that his compromise was agreed upon in the lifetime of Alfred Bent, though not carried out until after his death, and that its terms were that Lucien B. Maxwell should pay to the complainants in the original suit $18,000, or $6,000 apiece; and that, in consideration thereof, Alfred Bent and his two sisters should release and discharge the premises and every part thereof; and the said Maxwell and wife, from the said trust or equitable claim, and, in confirmation thereof, should convey to Maxwell all their right, title, and interest in and to the premises. The bill further alleged that the said $18,000 was duly paid (the sum of $6,000 due to Alfred being paid to his wife as administratrix of her husband's estate, and not as guardian of his children); and that the sisters of Alfred, with their husbands, executed conveyances in accordance with the compromise agreement, in May, 1866, and that Guadalupe Bent, by a deed of conveyance executed by her as guardian aforesaid, undertook to convey the interest of the children as before stated; and that by said compromise and conveyances the said trust became extinguished, and the title of Maxwell became freed and discharged therefrom. The bill then set forth certain errors, which it was alleged had been committed in the original proceedings, and which cast a cloud upon the title of the complainants, namely: First, that it did not appear therein as the fact was) that an agreement for the sale of the equitable interest of Alfred Bent was made by him, in his lifetime, with said Maxwell; secondly, that the interlocutory decree (of May, 1865) should not have been set aside, but should have been modified; thirdly, that the money paid by Maxwell for the interest of Alfred Bent should have been directed to be paid to his personal representative, and not to the guardian ad litem of his children; and, fourthly, that, upon such payment being made, the court should have decreed and adjudged the said trust and equitable claim or interest to be extinguished, and that the premises should be held free and discharged of said trust. The bill then prayed for a decree that the trust be terminated and extinguished; that the defendants have no interest or title in the premises, equitable or otherwise; that the plaintiffs hold them free and discharged of all trusts in favor of the defendants and all claiming under them; and for other and further relief. This bill being demurred to, the complainants were allowed to amend it by adding a prayer in the following words: 'That for the aforesaid errors of law, apparent on the face of the said decree of 10th September, 1866, the same may be reviewed and reversed in the points herein complained of.'

It is manifest that the object of this bill, especially after being amended, was to set aside the decree made in the original cause, and to substitute therefor a new decree supposed to be more advantageous to the complainants, upon the same matters which were before the court and under its consideration in the said cause. Under the guise of a bill for quieting title it was in reality a bill of review.

The defendants, after the appointment of a guardian ad litem for the infants, answered the bill. Guadalupe Thompson and her husband denied that an agreement for a compromise was ever made by Alfred Bent in his lifetime; but they substantially admitted the other facts stated in the bill; alleging, however, that Guadalupe, although she executed the deed of May, 1866, in good faith, was wholly ignorant of the rights of her children. The guardian ad litem for the infants simply referred their rights to the court.

Upon these pleadings the parties took proofs; and, without going into the details thereof, it is sufficient to say, that, in our judgment, the complainants entirely failed to substantiate the main fact relied upon by them, namely; that the agreement for a compromise was concluded with Alfred Bent in his lifetime. The effect of the evidence appears to be, that, although negotiations were commenced before his death, no agreement was concluded until after that event, when it was concluded by his brother-in-law, Scheurick, and was acquiesced in by the other parties, including the widow of Alfred, acting in behalf of her children.

Upon the case as thus made, the court, in September Term, 1873, made a decree to the following effect; namely,--

First, That the decree of Sept. 10, 1866, was erroneous, and should be reversed, in so far as it set aside the provisions of the interlocutory decree of May 29, 1865, determining Charles Bent's interest in the land, and the right of his children to succeed thereto, and directing Guadalupe Bent, the widow of Alfred, as guardian ad litem for his minor children, to make a deed of conveyance of all their right, title, and interest in the said land.

Secondly, The court found and declared, that, after the death of Alfred Bent, and pending the original suit, an agreement by way of compromise was made by the adult parties thereto, for settlement of the same, and that the terms thereof were considered advantageous to the infants, and were accepted by the court on their behalf, as evinced by the decree attempting to carry it out; also, that Maxwell had paid the money stipulated for in the compromise, and that the infants' share had been received by their mother for their benefit, whereby their right to the land became extinguished, and the land bec me discharged from the trust: therefore, it was decreed that the Maxwell Land-Grant and Railway Company held the land free and discharged of said trust.

The defendants appealed from this decree to the Supreme Court of the Territory, where it was affirmed; and from thence it was appealed to this court, and the question before us is as to the validity of these proceedings in the last suit.

If the bill is to be regarded as a bill of review (and in its ultimate aspect, at least, it seems impossible to regard it otherwise), the proceedings are clearly objectionable, on the following grounds:--

First, The decree sought to be set aside and reversed was a consent decree. It is a general rule that against such a decree a bill of review will not lie. Webb v. Webb, 3 Swanst. 658; 2 Smith Ch. Pr. 50; 2 Dan. Ch. Pr. 1629 (3d Am. ed.).

Secondly, The bill is filed by and on behalf of an assignee of the original defendant, namely, The Maxwell Land-Grant and Railway Company; whilst another rule, relating to bills of review, is, that none but parties and privies can have a bill of review. It does not lie for assignees. Gilbert, For. Rom. 186, 2 Smith Ch. Pr. 49; 2 Dan. Ch. Pr. 1627. The fact that Lucien B. Maxwell and his wife are joined as complainants does not obviate the difficulty.

Thirdly, The bill seeks a reversal and modification of the decree upon an alleged matter of fact not appearing upon the record; namely, that the compromise agreement was made with Alfred Bent in his lifetime, without alleging any newly discovered evidence unknown to the parties before the decree. We decided, in the case of Buffington v. Harvey, supra, p. 99 (what was well settled before), that the only questions open in a bill of review (except when filed on the ground of newly discovered evidence) are such as arise upon the face of the record, without reference to the evidence in the cause. Whiting v. Bank of the United States, 13 Pet. 6; Putnam v. Day, 22 Wall. 60.

The case, it is true, is somewhat anomalous. The decree sought to be set aside by the bill of review was not made in pursuance of the relief sought by the bill in the original cause, and was not based upon the pleadings and evidence therein. It was a decree for confirming and carrying out a settlement of the controversy, which had produced a change of interest. The original suit was instituted by the heirs of Charles Bent, to establish an equitable interest in an undivided share of the lands, and for a partition thereof. A decree was made establishing the right, ordering the partition, and appointing commissioners to make it. This was as far as the suit progressed. It was then settled, and the decree in question was entered by consent, setting aside the decree for partition, and carrying out the settlement. The bill of review alleges the fact to have been that the settlement was made by Alfred Bent in his lifetime, and that the decree ought not to have set aside the former decree establishing his rights, and ought not to have directed the guardian of his infant heirs to execute a conveyance; but ought to have declared the land discharged from the trust, upon payment by Maxwell of the agreed consideration to Alfred's personal representatives. In other words, the bill of review insists that the decree was misconceived and erroneous, in view of the state of facts out of which it grew, and which did not appear in the record of the cause.

We do not think that the peculiarity of the case, however, takes it out of the ordinary rules that apply to a bill of review. A decree for carrying out a settlement and compromise of a suit is certainly not, of itself, erroneous. When made by consent, it is presumed to be made in view of the existing facts, and that these were in the knowledge of the parties. In the absence of fraud in obtaining it, such a decree cannot be impeached.

We have looked into the laws of New Mexico, to see whether there is any thing peculiar in the modes of proceeding there which would sustain the bill in its present form; but we have failed to find any thing of the kind. In civil cases, those laws adopt the civil-law mode of practice, subject to the regulation of the Supreme Court of the Territory. Compiled Laws, pp. 195, 196. That court has made separate regulations for common-law and equity practice. The rules in relation to the latter are not materially different from those adopted by this court for equity cases in the circuit courts. The civil procedure as pursued in the Spanish courts has no proceeding analogous to a bill of review, except the allegation of nullity, which must be made within sixty days from the time of pronouncing the decree; after which period, if no appeal be taken, the sentence or decree becomes res adjudicata, and cannot be revoked unless obtained by means of false or forged proofs. 1 White's Recopilacion, 305, 306, from Aso & Manuel's Institutes, lib. 3, tit. 8, c. 1; Escriche's Diccion, tit. Sentencia Nula.

Tested, therefore, by any law of procedure which may be invoked in its support, the bill in this case, considered as a bill of review, seeking to reverse, modify, and reconstruct the decree of September, 1866, cannot be sustained. Nevertheless, the general purpose which it evidently had in view-the quieting of the title to the land in question-is one towards which a court of equity is always liberally disposed, as tending to promote the peace of society and the security of property. And if, instead of seeking to reverse the decree of September, 1866 (which, for like reasons of public policy, as applicable to the security of judgments that have passed into rem adjudicatam, is not allowable), the bill had sought to carry that decree more effectually into execution, it would have been free from legal objections, and equally conducive to the object in view. Bills for the purpose named are well known in equity proceedings. Lord Redesdale says:--

'Sometimes, from the neglect of parties, or some other cause, it becomes impossible to carry a decree into execution without the further decree of the court. This happens, generally, in cases where parties having neglected to proceed upon the decree, their rights under it become so embarrased by a variety of subsequent events that it is necessary to have the decree of the court to settle and ascertain them. Sometimes such a bill is exhibited by a person who was not a party to the original decree, but claims a similar interest, or is unable to obtain the determination of his own right till the decree is carried into execution. Or it may be brought by or against a person claiming as assignee of a party to the decree. The court in these cases in general only enforces, and does not vary, the decree; but on circumstances it has sometimes considered the directions, and varied them in case of mistake; and it has even on circumstances refused to enforce the decree; though in other cases the court, and the House of Lords upon an appeal, seem to have considered that the law of the decree ought not to be examined on a bill to carry it into execution.' Redesdale's Treatise, 95, 96.

It seems to us that the remedy here described by such high authority is applicable to the case at bar. The decree of September, 1866, has never been carried into effect by any act done since it was made. It directed that Maxwell should pay the money stipulated for by the compromise, and that the defendant should execute deeds of conveyance. But the parties seem to have assumed that their previous acts performed in May, 1866, were a sufficient compliance with the directions of the decree. Yet the decree does not take notice of this fact.

Now, in order to execute this decree, or to determine whether it has or has not been substantially executed, and to determine and declare the effect of such execution upon the rights of all concerned, and thus remove any cloud from the title arising from the imperfection of the proceedings, it was perfectly competent for the parties to file a bill conceived and constructed to that end. The bill i this case, as originally filed, before it was converted by amendment into a bill of review, and abating the allegations of error in the original decree, approximated to the character of such a bill as might have been sustained. The proofs show a case which, in our judgment, supports the conclusions of the decree, to the effect that the terms of compromise made by the adult parties to the suit (including the mother and guardian of the infant heirs of Alfred Bent) were advantageous to the said infants, and were so considered and accepted by the court in their behalf. But, so far as the present decree undertook to reverse and modify the decree of September, 1866, we think it is clearly erroneous. Still, although we feel obliged to reverse the present decree, we do not think that the bill should be absolutely dismissed. And, as the whole question between the parties has been fully litigated on the proofs, it would be unreasonable to require that these should be taken over again.

Our conclusion is, that the present decree must be reversed with costs, and that the cause be remanded to the court below, with directions to allow the complainants to amend their bill as they shall be advised, and with liberty to the defendants to answer any new matter introduced therein; and that all the proofs in the cause shall stand as proofs upon any future hearing thereof, with liberty to either party to take additional proofs upon any new matter that may be put in issue by the amended pleadings; and it is

So ordered.


text: Talk:Thompson v. Maxwell/Opinion of the Court


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Briges v. Sperry

APPEAL from the Circuit Court of the United States for the District of California.

This action was commenced by the complainant, who is a citizen of California, in the District Court of the Fifth Judicial District for the county of San Joaquin in that State; but, upon the petition of the defendants, who are citizens of France, the cause was removed to the Circuit Court of the United States for the District of California. After such removal, the complainant filed an amended bill, wherein he charged that, about July, 1874, he and the defendants entered into a copartnership for carrying on a hotel business on the land known as the Calaveras Big Trees, which consisted of two tracts, one containing about eight hundred, and the other about seven hundred and twenty acres; that the hotel was on one of the tracts; that at the time of the formation of the partnership, and during its continuance, he and the defendants owned the land as tenants in common, he having one undivided half, one of the defendants three-eighths, and the other one-eighth thereof; that it was agreed to use, as capital stock in said business, said land, hotel, &c.; that he was to have the sole and exclusive management of the business; that he performed his agreement, but that the defendants so conducted themselves in and about the management of the business as to cause great loss to him, and lessen the value of said land and hotel. He further alleged that the situation of the land and its connection with the hotel were such that it could not be divided without great prejudice to the owners.

The bill did not allege that the partnership was for any specified time, or that there were debts, profits, or claims to adjust or accounts to settle. It prayed for the appointment of a receiver, the dissolution of the partnership, the winding-up of its affairs, and a sale of the property.

The answer admitted the partnership, and the ownership of the land as charged, but denied that the complainant was to have exclusive management of the business; and that he performed his agreement. It also denied that they in any way misconducted themselves, and that the land could not be divided without prejudice.

The land in question is that upon which grow the mammoth trees of California. It consists of two different tracts, about six miles apart. One, called the 'Calaveras Big Tree Grove,' is also known as the 'Mammoth Grove,' and the other as the 'South Park Grove.' The hotel is on the former tract; and the neighborhood is resorted to for the purpose of seeing the trees, and enjoying the climate and the hunting and fishing.

The evidence chiefly related to the situation and character of the property and the purposes for which it could be used, and to the question as to whether the place would support two hotels.

Upon the hearing, the court decreed the dissolution of the partnership, the sale of the property, and the division of the proceeds between the parties, in proportion to their respective interests.

The defendants thereupon appealed to this court, and assign for error,--

1. That the bill shows no equity, and should be dismissed.

2. That the sale of the real property should not have been ordered, because it was not partnership property, and, as there were no debts to pay or claims to adjust, no useful purpose could be subserved by a sale.

3. That the amended bill filed in the Circuit Court did not show jurisdiction in that court.

Mr. Edward J. Pringle and Mr. Edmond L. Goold for the appellants.

Mr. Milton Andros, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Briges v. Sperry


text: Talk:Briges v. Sperry

title: Talk:Briges v. Sperry


text:
Briges v. Sperry/Opinion of the Court

The appellee, Sperry, brought suit in the State court for the county of San Joaquin against the appellants, who duly appeared and caused the suit to be removed into the Circuit Court of the United States for the District of California. In that court Sperry filed an amended or new complaint.

One of the errors alleged as grounds for reversing the decree in favor of Sperry is, that this amended bill shows no jurisdiction in the Circuit Court. If nothing else be looked at but the bill, there is no jurisdiction shown. But the proceedings in the State court, which are properly here as part of the record of the case, show that it was removed from the State court to the Federal court, on account of the citizenship of the parties; and this of itself must have given jurisdiction to the United States Court before the amended bill was filed. That jurisdiction is not lost, because the facts on which it arose are not set out in the old or the new complaint. Railway Company v. Ramsey, 22 Wall. 322.

The appellants treat the bill as one for a dissolution of a partnership, a settlement of the partnership affairs, a sale of the partnership property, and a distribution of its proceeds. They, therefore, insist that the decree of the court ordering a sale of real estate of the estimated value of $40,000, which the parties held as tenants in common, and which, they insist, was not partnership property, was erroneous, and should be reversed. On the other side, it is said that the real estate was partnership property, and by the rules of chancery practice ought to be sold on a decree for the dissolution of the partnership, and the proceeds divided, as in case of personalty; and it is argued further, that, if they are mistaken in this view of the matter, the complaint may be treated as a bill for partition; and that as a partition in specie could not be made without loss or injury to the value of the property, it was rightfully decreed to be sold and the money divided.

As we are clearly of opinion that the decree of the Circuit Court can be sustained on this latter view, we need not inquire whether, under all the circumstances, the real estate was subject to the rules which in equity govern that kind of property when it is bought and used for partnership purposes.

Supposing a bill to wind up a partnership and a bill to partition real estate to be so distinct in character that a court must hold it to be one or the other, we think the complaint before us has all the necessary elements of the latter, and is as much entitled to be called a suit for partition as for the dissolution and winding up of a partnership.

It begins by describing the real estate, and declaring that plaintiff and defendants are now, and have been, tenants in common of the lands since the month of July, 1874. It then alleges the laintiff to be the owner of an undivided half, the defendant, the Marquis de Briges, of three-eighths, and the Marquise de Briges, the other defendant, who, it seems, is his mother, of one-eighth. It shows that the land consists of two separate parcels, which, by the congressional subdivisions of which they consist, must be five or six miles apart, and that one of them is a large tract, used as a summer resort for visitors, and that the whole property is of the value of about $40,000. It is also alleged, that, by reason of the connection of the hotel with the lands,-the latter constituting the Big Tree Groves of Calaveras,-a partition cannot be had without seriously impairing the value of the property. Amongst other relief prayed for is a sale of this property, and a distribution of the proceeds amongst the owners. Here seems to be every thing requisite for a suit in partition.

There is, however, in addition to this, an allegation that the parties had been engaged in keeping this hotel in partnership, and that a difference had arisen by the fault of the defendants, which made a dissolution of that partnership necessary, and this dissolution is prayed for, and a settlement of the accounts; and another prayer of the bill is for a sale of the partnership property, and proper distribution.

The bill is inartificially drawn as a bill in chancery, but is after the model of the Code of Procedure of California, which justifies such a complaint in the courts of that State.

The stating part of it is accordingly divided into seven paragraphs, and they are so numbered. If we are at liberty to disregard the fifth and sixth paragraphs, which alone set out the partnership and the grounds of dissolution, we have no difficulty in finding a bill for partition, with prayer for a sale as a mode of partition, because it would be an injury to the interest of the owners to divide it up.

As there was no demurrer to the bill, as the answer sets up no objection to the jurisdiction, but denies that there is any thing in the condition of the land to forbid actual partition, we see no reason why the bill may not be treated as sufficient for a partition suit. If there is any thing in the allegations which concern the partnership, which introduces another matter, the objection should have been taken by demurrer for multifariousness. It is not fatal to the bill on appeal.

The only question contested in the case on the evidence was, whether the land could be partitioned in kind without serious detriment to the owners.

We are of opinion that the Circuit Court held properly that it could not.

It consisted of about two thousand acres in two distinct parcels, of unequal value, five or six miles apart. These two parcels included all the now well-known big trees of Calaveras, except a few of that species too small to excite admiration or attract attention.

These trees are ranked among the curiosities of the world, and justly so. One of them, as the evidence shows, was twenty-five feet in diameter when it was cut down, and took five men twenty-two days to cut it down. Others still standing are thirty feet in diameter. The place is visited by people from all parts of the world to see these trees, and the hotel did a profitable business for this reason. It is apparent that the joint ownership of this property must make it far more valuable than it would be if split up into small pieces held by persons who would become rivals for the profits arising from visitors. Such, also, is the weight of the testimony on that subject. It is argued that the two groves, being five miles apart, a division with owelty to make it equal might have been made into two parts. But these would still have been rival and conflicting interests, each injuring the other.

Again, the inequality of the shares into which the property must have been divided was a serious difficulty in the way of actual partition. The three shares must have been an eighth, three-eighths, and a half. And though this might have been overcome by an off r of the mother and son to take their two shares as one, no such offer was made, and the court had no power to compel them to do so.

The owner of the one-eighth, if it had a pleasant site for a hotel, would have been as well off, in regard to the most valuable use of the property, as the owner of the one-half, unless the latter had adopted means for excluding the guests of the former, which is, at least, of doubtful practicability, unless at enormous expense.

Sect. 763 of the Code of Civil Procedure of California, c. 4, tit. 10, concerning partition of real property, enacts: 'If it be alleged in the complaint and established by evidence, or if it appear by the evidence without such allegation in the complaint, to the satisfaction of the court, that partition cannot be made without great prejudice to the owners, the court may order a sale thereof.' Sect. 752 embodies the same principle.

The complainant in this case makes the necessary allegation, and we think it is sustained by the proof.

Decree affirmed.

title: Briges v. Sperry/Opinion of the Court


text: Talk:Briges v. Sperry/Opinion of the Court


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United States v. Gillis

APPEAL from the Court of Claims.

This suit was brought June 11, 1867, in the court below, by Thomas H. Gillis, in his own name, to recover the proceeds of one hundred and eight bales of cotton seized under the Abandoned and Captured Property Act of March 12, 1863, as the property of John H. Ryan, at Charleston, S.C.., in March, 1865, by the military forces of the United States.

The Court of Claims found the following facts:--

1. In March, 1865, one John H. Ryan, of Charleston, S.C.., was the owner of one hundred and three bales of upland cotton and five bales of sea-island cotton, which were during that month seized at said Charleston by military officers of the United States, turned over to the agents of the Treasury Department, transported to New York, and there sold, and the net proceeds thereof covered into the United States treasury, amounting to the sum of $130.33 per bale for the upland cotton, and $231.61 per bale for the sea-island cotton.

2. Some time in October or November, 1866, said Ryan transferred the legal title to his claim against the United States for the proceeds of said cotton so covered into the treasury to Thomas H. Gillis, of New York, and assented to the bringing this action thereon in the name of said Gillis.

3. After the institution of this action, said Thomas H. died; and Catherine I. Gillis was duly appointed administratrix of his estate by the surrogate Court of the county and State of New York, on the sixteenth day of July, 1868, and has since been admitted by the court to prosecute this suit as such administratrix.

4. The transfer of the claim, as set forth in the second finding, was made through one Van Ness, at New York, under a power of attorney from said Ryan, and contract, the full terms of which have not been proved. But it appears that said Ryan (since deceased) assented to and affirmed said transfer. Subsequently a controversy arose between the present claimant and the administrator of said Ryan as to an equitable interest set up by said administrator in some portion of the money which might be recovered. Since this action was instituted, a compromise has been made between said claimant and said Ryan's administrator, by which it is agreed that a certain part (but how much it does not appear) of the amount recovered shall be paid over to said administrator by the claimant's attorneys of record.

The court thereupon found as a conclusion of law that the claimant was entitled to recover $13,423.99, as the proceeds of one hundred and three bales of upland cotton, and $1,158.05, as the proceeds of five bales of sea-island cotton, in all, the sum of $14,582.04, and rendered judgment accordingly. The United States brought the case here.

Mr. Assistant Attorney-General Smith for the appellant.

The Court of Claims possesses no equity powers, and cannot pass upon equitable claims. Alire's Case, 6 Ct. of Cl. 575; Ha vey's Case, 8 id. 512. If it could, an assignee of an unliquidated claim against the United States would have no standing in that court, as the act of Feb. 26, 1853, 10 Stat. 170, renders void the assignment of such a claim. Sine's Case, 1 Ct. of Cl. 12; Cooper's Case, id. 87; Pierce's Case, id. 288; Cote's Case, 3 id. 65; Adam's Case, id. 332; Stowe's Case, 5 id. 371 Atocha's Case, 6 id. 69; Becker v. Sweetzer, 15 Minn. 427.

Such a claim was not assignable at common law; and this court, in United States v. Robeson, 9 Pet. 319, held that there was no act of Congress establishing a different rule.

A claim to personal property, or to its proceeds, in the adverse possession of another, cannot be sold as as to invest the purchaser with a right of action in his own name. Gardner v. Adams, 12 Wend. (N. Y.) 297; Stogdell v. Fugate, 2 A. K. Mar. (Ky.) 61; Young v. Ferguson, 1 Litt. (Ky.) 298; Com. v. Fuqua, 3 id. 41; Brown v. Lipscomb, 9 Port. (Ala.) 472; Goodwyn v. Lloyd, 8 id. 237; McGoon v. Aukeny, 11 Ill. 558; Davis v. Herdon, 39 Miss. 484.

Nor has an assignment of a part of a claim ever been recognized as operative to give such a right. Mandeville v. Welch, 5 Wheat. 277; Robbins v. Bacon, 3 Me. 346; Gibson v. Cooke, 20 Pick. (Mass.) 5; Fairgrieves v. Lehigh Navigation Co., 2 Phil. (Pa.) 182; Boyd v. Rumsey, 2 Mar. J. J. (Ky.) 42; White v. Buck, 7 B. Mon. (Ky.) 547; Raines v. United States, 11 Ct. of Cl. 648.

The prohibition in the act of 1853 against the assignment of claims was not repealed, so far as the Court of Claims is concerned, by the act of Feb. 24, 1855, 10 Stat. 612, nor by that of March 3, 1863, 12 id. 820, giving it jurisdiction over such a claim as this case involves.

Congress expressly re-enacted the act of 1853 by sect. 3477 Rev. Stat. The Revised Statutes are entitled 'An Act to revise and consolidate the statutes of the United States in force on the first day of December, A.D. 1873,' and do not purport to embrace any new legislation. The act having been thus regarded as in force at that date, this court will not declare that it was repealed by implication. Dwarris on Stat. 154; Wood v. United States, 16 Pet. 362; McCoal v. Smith, 1 Black, 470; Beals v. Hale, 4 How. 53; Pratt v. Atlantic & St. Lawrence Railroad Co., 42 Me. 587; Ingalls v. Cole, 47 id. 540; Bowen v. Lease, 5 Hill (N. Y.), 225; Wallace v. Bassett, 41 Barb. (N. Y.) 96; Bank v. Commonwealth, 10 Pa. St. 448; Attorney-General v. Brown, 1 Wis. 525; Lee v. Forman, 3 Metc. (Ky.) 116.

But even if the act of 1853 is not in force, the judgment must be reversed. The act of March 3, 1863, supra, limits a recovery to the owner of the property, at the time of its abandonment or capture. The privilege of invoking the jurisdiction of the court below, in cases for which that act provides, is a personal one, and attaches upon the concurrence of the loyalty of the claimant, his former ownership of the property, and his present right to the proceeds. Carroll v. United States, 13 Wall. 151; Haycraft v. United States, 22 id. 81.

Mr. Halbert E. Paine and Mr. Benjamin F. Grafton, contra.

The rule of construction applicable to this case was laid down in United States v. Palmer, 3 Wheat. 610. The act of 1853 was designed only to meet the necessities of the Treasury Department. If its first section could have been construed to apply to cases in the Court of Claims, when it was subsequently organized, the acts establishing and regulating that court are so repugnant to that section, that they would have worked its repeal as to such cases. They entirely satisfy the rule in Wood v. United States, 16 Pet. 342, that there must be a positive repugnancy between the provisions of the new and those of the old statute and even then the latter is repealed only pro tanto, to the extent of the repugnancy; and they unmistakably recognize that claims of which that court has jurisdiction may be assigned. 10 Stat. 612, sect. 1; 12 id. 767, sect. 12; 15 id. 75, 78, sects. 4, 8.

The cases are in harmony with this view. Lawrence v. United States, 8 Ct. of Cl. 254; Cavender v. United States, id. 285; The Floyd Acceptances, 7 Wall. 666; United States v. Anderson, 9 id. 67; United States v. Burns, 12 id. 253.

The question whether an assignee of a chose in action can sue in his own name does not, however, arise. The legal effect of the transfer was to pass the title to the property, or its proceeds held by the United States as trustees.

The United States insists that Congress used the word 'owner' in the act of 1863 as designating the original owner, but not his assignee. The scope, intent, and reason of the act justify the construction that executors, administrators, or assignees, as well as owners, are embraced by its provisions.

The entire legal title to the whole of the property having been transferred (and it only can be set up in the Court of Claims), we submit that the findings of fact conclusively establish the right of the defendant in error to recover.

MR. JUSTICE STRONG delivered the opinion of the court.

title: United States v. Gillis


text: Talk:United States v. Gillis

title: Talk:United States v. Gillis