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Generes v. Campbell

ERROR to the Circuit Court for the District of Louisiana; the case being thus:

Campbell sued Generes, November, 1868, in the court below, as indorser of a promissory note, given as the price of certain slaves, and executed at New Orleans April 4, 1861, payable in that city two years after date, at the office of Abat, Generes & Co.

The petition averred that when the note became due, April 7th, 1863, there was a civil war existing in Louisiana and other States of the Union; that all intercourse between New Orleans and the place of the then residence of the plaintiff, to wit, the parish of St. Helena, was interrupted and prohibited; that the petitioner was unable to make the presentment and demand of the note at the place of payment by reason of the existing war and the prohibition and interruption of intercourse thereby created; that the petitioner could not come from said parish; that this condition continued until the month of June, 1865; that immediately after its cessation the petitioner came to New Orleans and demanded payment of the note; and that the defendant had due notice of all of the foregoing circumstances.

The defences were, that the defendant was not liable as indorser, from want of protest and notice of protest; that the note was extinguished by prescription; that being given for a purchase of slaves, it could not now give rise to an action. Evidence was taken by both parties. The case was tried by the court under the act of March 3, 1865. This act provides that the finding of the court upon the facts-which finding may be either general or special-shall have the same effect as the verdict of a jury; that the rulings of the court in the progress of the cause may be reviewed by this court, when properly presented by a bill of exceptions, and that where the finding is special this review may extend to the sufficiency of the facts found to support the judgment.

'For reasons orally assigned by the court,' it was adjudged that the defendant's plea of prescription be overruled, and that there be judgment in favor of the plaintiff for the sum of $6300.

The defendant filed a bill of exceptions thus:

Be it known, that on the trial of this cause the counsel for defendant argued as follows, viz.:

The evidence shows that the plaintiff was doing business in New Orleans, and the note sued upon was dated at New Orleans, April 4th, 1861, payable at the counting-house of Abat, Generes & Co., in New Orleans, two years after its date, to the order of and indorsed by the defendant. The suit was brought on the 18th November, 1868, and the petition alleges that at the maturity of the note, to wit, the 7th April, 1863, there was a civil war existing in Louisiana and other States of the Union, and that all intercourse between New Orleans and the place of the then residence of the plaintiff, viz., the parish of St. Helena, in Louisiana, was interrupted, and that the petitioner was wholly unable to make a presentment and demand of said note. But the evidence shows that said plaintiff left New Orleans in the fall of 1861; he was doing business here; was a regular negrotrader in the city of New Orleans; had obtained possession of the note sued on, and in the course of his business; when, in the fall of 1861, the city of New Orleans being then besieged by the Federal fleet, the plaintiff closed his business and went to his summer residence on the line of the New Orleans and Jackson Railroad, in the parish of St. Helena. The said counsel argued, upon this statement of facts, that the impossibility to make a presentment of the note at its maturity was not what was termed by the law vis major, but a matter entirely of plaintiff's own seeking. The plaintiff, being shown to have spontaneously so circumstanced himself as to bring upon him the alleged impossibility to act at the maturity of the note, is not entitled to the favor of the doctrine contra non valentem, &c. Furthermore, the said counsel argued, that long before the maturity of said note New Orleans was in possession of the government, and, in virtue of the President's proclamation inviting all loyal citizens to return, the plaintiff might have been here attending to his business, if he thought proper. It is shown by the evidence that the road from the plaintiff's house, in St. Helena, to the city of Baton Rouge, was only about fifty miles; that there were a great many people who made it a trade, throughout the duration of the war, to travel between Baton Rouge and the plantations on the river coast, to and from the Jackson railroad stations. A witness says, and he is not contradicted, 'I can't say when Baton Rouge was occupied by the Federals, but I believe it was in 1862. The communications between Baton Rouge and the stations on the Jackson railroad were very frequent.' Said counsel urged that, as the plaintiff had gone into the lines of the opposite side, he might have returned, and consequently the alleged vis major had no existence in fact.

But the court overruled the pleas of prescription and of want of protest urged by the defendant.

The said counsel furthermore urged that the plaintiff failed to make a presentment and a protest of the note so soon as freedom of action had been resumed throughout the country. It is in proof that the plaintiff returned to New Orleans in the summer of 1865, to wit, on the 12th of June, 1865, which was about two years and two months after his note had matured. No protest from that time was ever made. The present suit was filed on the 18th of November, 1868. The said counsel argued, that under the circumstances shown, even if there had been hitherto a room for the plea of vis major, there was a clear laches in not protesting in reasonable time.

But this plea was likewise overruled by the court.

The said counsel argued, that under the provisions of the Civil Code of Louisiana, viz., art. 3420, 3487, 2512, 3488, et seq., that the rule contra non valentem will not apply except in cases expressly mentioned, and that these exceptions do not apply to the present cause.

But this plea was likewise overruled by the court.

And lastly, the said counsel argued that the consideration of the note was proved in the evidence to be for slaves sold to the maker, and was therefore illegal. The testimony on this point is as follows: 'The note, the whole of it, was given to Campbell for a purchase of slaves by my brother from him. Campbell, at that time, was a slave-dealer in New Orleans. He was a regular slave-dealer, and had his depot on Baronne Street, in New Orleans, and was engaged in that business for several years.'

The said counsel argued that such actions could not be held upon general principles, and particularly were prohibited by art. 128 of the constitution of Louisiana, as follows: 'Contracts for the sale of persons are null and void, and shall not be enforced by the courts of this State.'

But this plea was also overruled by the court.

To all which rulings the counsel for said defendant respectfully excepts, and presents this his bill of exceptions for the signature of his honor the judge.

Signed, E. H. DURELL, Judge.

The reader will observe that this bill, though signed, was not sealed.

Messrs. J. A. and D. G. Campbell, prior to arguing the matter of merits, objected to the bill of exceptions as not sealed. In Pomeroy's Lessee v. Bank of Indiana, Clifford, J., delivering the opinion of the court, is very learned and emphatic on this point. He says:

title: Generes v. Campbell


text: Talk:Generes v. Campbell

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

title: Talk:Generes v. Campbell


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Generes v. Campbell/Opinion of the Court

'Bills of exception in the Federal courts are required to be drawn as at the common law under the statute of Westminster II; and, of course, they must be sealed by the judge as therein required. Justiciarii apponant sigilla sua, is the express command of the statute; and so is the commentary of Lord Coke.'

Independent of which the frame of the bill, they argued, was defective. There was no statement of facts nor proper presentation of the questions at issue.

Mr. Louis Janin, contra, stated, as respected the matter of a seal, that in his very long professional practice in the State of Louisiana he had rarely if ever seen on a bill of exceptions the signature of the judge accompanied by one of those scratches of the pen that by courtesy are called 'seals;' a meaningless matter in the law of Louisiana, or of the other civil law countries. What was said in Pomeroy's Lessee v. Bank of Indiana was dictum.

He submitted that the record presented a good enough bill of exceptions. It combined a concise and clear statement of the facts with a clear explanation of the points of law which the counsel desired the court to rule. If in a few words it differed from the usual style employed in such documents, that might be attributed to the circumstance that English was probably not the mother tongue of the counsel who drew it up. But its meaning cannot be misunderstood. It had the substantial merit of bringing the whole case, both the facts and the law, before the court. Even the statement of fact in the bill of exceptions commenced with the words, 'It is in evidence, or in proof.'

The counsel on both sides then argued the merits of the case, and especially the question of the right to enforce by suit notes given on the sale of slaves prior to emancipation, Mr. P. Phillips, counsel in another case involving this point, being heard along with the Messrs. Campbell in support of the right.

Mr. Justice SWAYNE delivered the opinion of the court.

This is a writ of error to the Circuit Court of the United States for the District of Louisiana. The plaintiff in error was the defendant in the court below. The action was brought against him as the indorser of a promissory note. The parties, pursuant to the act of Congress of March 3d, 1865, filed a written stipulation waiving a jury, and the cause was tried by the court. A judgment was rendered against the defendant. He took a bill of exceptions. No facts were specially found by the court.

The act referred to provides that the finding of the court upon the facts-which finding may be either general or special shall have the same effect as the verdict of a jury; that the rulings of the court in the progress of the cause may be reviewed by this court, when properly presented by a bill of exceptions, and that where the finding is special this review may extend to the sufficiency of the facts found to support the judgment. This act is general in its terms as to the scope of its operation, and embraces the District of Louisiana.

There being no special finding of the facts, the inquiry as to their sufficiency to support the judgment does not arise.

Our examination of the case must be confined to the bill of exceptions.

It is objected that this instrument was not sealed, as well as signed, by the judge. The statute of Westminster prescribes a seal, but no act of Congress and no rule of this court contains such a requirement. Though usual in the practice of the courts of the United States, it is not necessary. The signature of the judge is sufficient.

It does not appear that the defendant objected to any of the testimony which was admitted. No question relating to the subject is presented for our consideration.

It is shown by the bill of exceptions that sundry legal propositions were argued by the counsel of Generes and were overruled by the court. The entire bill is a series of interlocutions between the counsel and the court, in which the evidence is referred to; but the bill does not purport to give all the evidence upon either of the subjects to which the exceptions relate.

In the entry of the judgment it is stated that it is given 'for reasons orally assigned by the court.' What those reasons were is not set forth. Whether they were that there was other evidence besides that referred to in the bill of exceptions, or that the court drew different conclusions from those deduced by the counsel, or that the court entertained different legal views from those upon which the counsel insisted, is not disclosed. Had the facts been specially found no such doubt could have existed. The case would then have presented clearly all the propositions to which the attention of the court below was called, and in relation to which it is insisted errors were committed.

For any error in relation to the facts a writ of error is not the proper remedy. If all the testimony given were set out in the record we could not examine it with the view of determining whether it is sufficient to support the judgment. #fn-s-s If sufficient, the remedy was a motion for a new trial, or by having the facts specially found. In the latter case a writ of error would lie to correct the wrong, if any were done. According to the statute the finding of the court stands as would the general verdict of a jury, and has the same effect. The plaintiff in error is in the same position as if he were here complaining that the jury erred in overruling the points and propositions which were argued to them in his behalf, and had found for the plaintiff when they should have found for the defendant. The evidence was closed, and the court was sitting in place of a jury when his exceptions were taken.

We are all of opinion that the propositions upon which the plaintiff in error insists are not so presented that we can take cognizance of them.

JUDGMENT AFFIRMED.


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Page:Popular tales from the Norse (1912).djvu/560

 374 couldn't reach up to the table; and so, if the Princess hadn't helped him up on to it, he wouldn't have got a bit to eat.

Now it went good and well so long as he had to eat off a plate, but then there came a great bowl of porridge—that he couldn't reach up to; but Thumbikin soon found out a way to help himself; he climbed up and sat on the lip of the bowl. But then there was a pat of melting butter right in the middle of the bowl, and that he couldn't reach to dip his porridge into it, and so he went on and took his seat at the edge of the melting butter; but just then who should come but the Princess, with a great spoonful of porridge to dip it into the butter; and, alas! she went too near to Thumbikin, and tipped him over; and so he fell over head and ears, and was drowned in the melted butter.

DOLL I' THE GRASS.

on a time there was a King who had twelve sons. When they were grown big he told them they must go out into the world and win themselves wives, but these wives must each be able to spin, and weave, and sew a shirt in one day, else he wouldn't have them for daughters-in-law.

To each he gave a horse and a new suit of mail, and they went out into the world to look after their brides; but when they had gone a bit of the way, they said they wouldn't have Boots, their youngest brother, with them—he wasn't fit for anything.


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Case v. Terrell

APPEAL from the Circuit Court for the District of Louisiana.

Terrell and others, creditors of the First National Bank of New Orleans, which had failed and been put into liquidation, brought this bill in chancery in the court below against one Case, who on the failure of the bank had been appointed receiver of it, Hurlburd, Comptroller of the Currency of the United States, and one May and Beauregard, citizens of Louisiana.

The prayer for relief was that a certain admitted debt due to the United States from the bank be ascertained; that they (the United States) be charged with certain sums, and required to account for them, and that a writ of injunction issue restraining the comptroller from making a dividend of the funds of the bank until this account be adjusted.

Case and Hurlburd, the receiver and comptroller as aforesaid, appeared and answered; the answer of the latter being put in for him by the district attorney, and neither signed by Hurlburd nor sworn to by him. In it,

'He submits, on behalf of the United States, to the decision of the court the claims of the United States to priority of payment over the allowed claims of the creditors of said bank that are not disputed.'

The final decree, besides making a general order on the comptroller to distribute the funds of the bank in his hands ratably among its creditors as the law directs, decreed against the United States in favor of the creditors of the bank for the sum of $206,039.91, and that no claim of the United States shall have any priority in the distribution of the funds of the bank except as to the bonds pledged to secure its circulation.

From this decree, Case, the receiver, and Hurlburd, the comptroller, appealed.

Mr. B. H. Bristow, Solicitor-General, and Mr. C. H. Hill, Assistant Attorney-General, for Hurlburd, Comptroller; Mr. Case, propri a persona, by brief.

Messrs J. A. Campbell and H. B. Kelly, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Case v. Terrell


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Case v. Terrell/Opinion of the Court

It is seen, from the bill and decree, that while the United States was not made a defendant, and while it is well settled that it could not be sued in the court below, the only relief prayed by the bill was relief against the United States, and the only decree rendered which was not merely formal was a decree against the United States for over $200,000, and a further decree barring the right to assert her priority as a creditor of the bank in the distribution of its funds.

It is strange that in any court professing to administer the English system of equitable jurisprudence such a decree could be rendered against any one not made a party to the suit, and who had in no manner appeared in the case; and it is almost incredible that in any Federal court of this Union, except the Court of Claims, a moneyed judgment could be rendered against the United States.

The contrary has been so repeatedly decided that it is a waste of time to reargue the proposition, which will be found fully asserted in the recent cases of De Groot v. United States, United States v. Eckford, The Siren, and The Davis. In the case of United States v. Eckford it was held that, although in a suit in which the United States was plaintiff, a set-off could be pleaded and allowed, yet no judgment could be rendered for a balance found to be due to the defendant by the verdict of the jury, either in the Circuit Court, where the case was tried, or in the Court of Claims, where suit had been brought on the verdict. It is true, that in the two last cases cited above it was held that in a case in admiralty, where the res was rightfully before the court, and was taken into possession by its officer without the necessity of suit or process against the United States, it could be subjected to certain maritime liens, though the ownership was in the government. But in these cases the government came into court of its own volition to assert its claim to the property, and could only do so on condition of recognizing the superior rights of others.

We are quite at a loss to know on what principle the jurisdiction in the present case is asserted, for the briefs for the appellees are devoted wholly to the merits of the controversy. But we must suppose that it is claimed on the ground that the receiver and comptroller, both of whom appeared and answered the bill, represent the United States, and can subject the government to the jurisdiction of the court.

As to the receiver, the claim, if any such be made, is not worth serious consideration. He represents the bank, its stockholders, its creditors, and does not in any sense represent the government.

Nor can such authority be conceded to the Comptroller of the Currency. It may very well admit of doubt whether it is within his competency to submit himself, in the exercise of duties specially confided to him by acts of Congress, to the control of the courts, and especially of those which can assert no such jurisdiction by reason of their territorial limits. We are not called upon here to decide this question. But we have no hesitation in holding that however he may submit himself to the jurisdiction of those courts, and consent to be governed in his official action by their decrees, so far as they affect rights of parties who may come into court and be impleaded in the same suit, he has no authority to subject the United States to such jurisdiction, and to submit the rights of the government to litigation in any court, without some provision of law authorizing him to do so.

There is no analogy in the case before us to suits against officers of the customs or of the internal revenue to recover for illegal assessments or collections of taxes or duties, for they are suits against the officer for a tort or for money had and received, and when a judgment is rendered against him the government protects him by paying it, because the money was received for its use. But this is by virtue of statute, and the mode of proceeding is pointed out and well defined, and the remedy is limited to cases where the mode is strictly pursued.

In the answer filed for the comptroller in this case he says, or is made to say (for it is neither signed nor sworn to by him), that he 'submits, on behalf of the United States, to the decision of the court the claims of the United States to priority of payment over the alleged claims of the creditors of said bank that are not disputed.'

We have already said that the comptroller has no power to subject the United States to such jurisdiction.

But he here seems only to submit the question of the government's claim to priority of payment, while the court not only decides against this priority, but renders a further decree requiring repayment of money had and received from the bank, and the payment of money which the United States is supposed to have assumed to pay in a contract with private parties not before the court. If the government is liable to the bank or its receiver or its creditors, for either of these claims, it would seem that it would be, in the first case, on an implied contract for money had and received, and in the second, on the express contract to pay as alleged. When such liability is denied, or payment is refused, the Court of Claims has jurisdiction, and no other court has. The United States cannot be subjected to litigation growing out of its relations to these banks in all the various courts in which their affairs may be the subject of judicial controversy.

But it is useless to pursue the matter further. The only substantial relief asked by the bill, or granted by the decree, is against the United States. The manifest purpose of the proceeding was to subject the government to a tribunal which could rightfully exercise no jurisdiction in the premises. It was no party to the suit, nor did any party represent its interests who had authority to bind it.

DECREE REVERSED, with directions to the court below to

DISMISS THE BILL.

title: Case v. Terrell/Opinion of the Court


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Insurance Company v. The Treasurer

THIS case was brought before the court upon a writ of error to the Supreme Court of the State of New York, under the 25th section of the Judiciary Act, or rather under the act of February 5, 1867, which has been substituted for that section.

The Phoenix Insurance Company, to plaintiff in error, was a corporation of the State of New York, doing business in Brooklyn, King's County, and was assessed for the taxes of 1863 and 1864 upon its investments in United States 'certificates of indebtedness,' issued pursuant to the acts of Congress, passed March 1st and 17th, 1862. These taxes amounted to over $3000, and were paid into the county treasurer's office of King's County in December, 1863, and November, 1864. They were levied under an act of the legislature of the State of New York, passed April 29, 1863, making all banks and other moneyed corporations liable to taxation on a valuation equal to the amount of their capital stock paid in and their surplus earnings (less 10 per cent. of such surplus). Under this law authority was claimed by the State officers to include in that valuation the investments made by those companies in the public indebtedness of the United States, including the National bonds or stocks, certificates of indebtedness, and all other National securities. This tax, so far as it was laid on a valuation which embraced the government bonds or stocks, was confessedly adjudged illegal by this court in the Bank Tax Case, reported in 2d Wallace, 200, which was decided in the Term of December, 1864. And as the insurance company assumed, it was also adjudged illegal in that same case, so far as it was laid on a valuation which embraced certificates of indebtedness; a position which they attempted to maintain by a reference to the original records of this court, in certain of the numerous cases which came up, and were adjudged under the general title above given of The Bank Tax Cases. But if the cases then brought before the court embraced certificates of indebtedness, as well as government bonds, the attention of the court was not specially directed to that fact, and the opinion does not notice it.

After this decision the legislature of New York, on the 6th of April, 1866, passed an act, as follows:

'SECTION 1. The board of supervisors of the County of Kings are authorized and directed to levy and collect by tax. . . the several sums paid in said county, by the several incorporated companies in said county, in the years 1863 and 1864, for taxes assessed on their investments in the public indebtedness of the United States, with interest thereon, and which taxes have been judicially decided to have been illegally imposed and collected.'

A subsequent section directed the treasurer to refund those taxes to said companies out of said moneys, requiring him, in the meantime, to issue county certificates of indebtedness for the respective amounts on receiving a certified copy of the act.

The Phoenix Insurance Company, on the 12th of May, 1866, demanded of the county treasurer (who had received a copy of the act) the county certificate of indebtedness to which, it was supposed, the act entitled it. The treasurer declined to give it. Thereupon the company sued out of the State Supreme Court an alternative mandamus, calling on the treasurer to show cause for such refusal. His answer to the writ was that taxes on 'certificates of indebtedness' had not been judicially decided to have been illegally imposed or collected, and, therefore, that the case was not within the purview of the act, and he had no authority to issue the certificates. He did not attempt to deny that the tax was illegal, but insisted that it had not been judicially declared illegal. This answer was filed December 3, 1866, before the decision of this court in the case of The Banks v. The Mayor, in which the court did without doubt, decide that the 'certificates of indebtedness' of the government were exempt from taxation.

Upon this alternative mandamus and the answer thereto the case went up to the Supreme Court and the Court of Appeals, which concurred in refusing to issue a peremptory mandamus. The opinion of the Supreme Court, of which counsel exhibited a short report, placed the case upon the ground that these 'certificates of indebtedness' were not exempt from taxation. But no opinion of the Court of Appeals appeared in any record of the case.

The purpose of the writ of error was to have a review of the judgment by the Court of Appeals.

Mr. A. C. Bradley, with whom was Mr. E. C. Benedict, argued for the plaintiff in error:

A question of jurisdiction may suggest itself. But the case made in the writ called in question the validity of the authority of the State of New York to tax the United States certificates of the indebtedness owned by the insurance company-whereby those taxes were illegally collected, and therefore the company was entitled to have, and it was the county treasurer's duty to issue the certificates of county debt demanded. The State court, by denying the peremptory writ and giving absolute judgment for the defendant, in effect decided that the authority so questioned was valid and the tax legal, and that the company was not entitled to receive, nor was the treasurer bound to issue to it the certificates demanded. The case is not distinguishable from The Bank Tax Cases, or from The Banks v. The Mayor. The alleged invalidity in those cases was the same as in this, and the decision by the State court is as emphatic in favor of the validity in the present case as in the others.

In truth, the record in the present case presents no question, but whether certificates of indebtedness were or were not illegally taxed in the State of New York in the years 1863 and 1864; the affirmative being maintained by the insurance company, denied by the county treasurer, and the State courts having decided in favor of the latter.

2. As to the merits. That certificates of indebtedness issued by the government of the United States were not taxable, was adjudged by this court, as we apprehend, in both of the cases cited above, certainly in the last. The matter is, therefore, res adjudicata.

3. The case made by the insurance company was within the spirit and letter of the act of April 6, 1866, passed by the State of New York.

The last clause of the first section, 'and which taxes have been judicially decided to have been illegally imposed and collected,' is not a condition or proviso, limiting the extent of the earlier provisions, but is a statement of the reason why the act was passed, and why restitution had become a duty. Such matter is ordinarily either omitted or else inserted in the preamble; but it has here crept on to the end of a section, and appears as an adjectitious thought. It has no effect there which it would not have had if it had been inserted in a preamble or omitted altogether. In either case it would have been the duty of the board of supervisors to raise by tax the sums paid by the incorporated companies for taxes on their investments in the public indebtedness of the United States, and it would have been the county treasurer's duty, out of the moneys so raised, to refund those taxes, and as a voucher for the claim, to issue the certificates. Those taxes would have been equally illegal whether there had or had not been any judicial decision on the subject, or whether such decision, having been in fact made, it was mentioned in the preamble, or in the body of the act, or not mentioned at all. In the statute relative to the city of New York, passed at the same session, no judicial decision was referred to. But this court, in The Banks v. The Mayor, held the taxes, nevertheless, illegal.

4. The return stated no defence to the writ.

Mr. P. H. Crooke, opposing counsel, was stopped by the court.

Mr. Justice BRADLEY, having stated the case, delivered the opinion of the court.

title: Insurance Company v. The Treasurer


text: Talk:Insurance Company v. The Treasurer

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Insurance Company v. The Treasurer/Opinion of the Court

The Supreme Court and the Court of Appeals concurred in refusing to issue a peremptory mandamus. The opinion of the Supreme Court is before us, and places the case upon the ground that these 'certificates of indebtedness' were not exempt from taxation. But no opinion of the Court of Appeals seems to have been written. At least none appears; and we cannot tell on what ground that court placed its decision. And, indeed, it ought to appear from the record, and not from any opinion of the court, that a Federal question was raised in order to give this court jurisdiction of the case. For all that appears from the record, the decision of the Court of Appeals may have been passed simply on its construction of the State statute. It may have been placed on the ground that that statute only applied to cases 'in which the taxes had been judicially decided to have been illegally imposed and collected,' and that up to that time the taxation of certificates of indebtedness had not been judicially decided to be illegal. If it were placed on this ground-and, so far as the record goes, non constat that it was not-that would have been a decision of the case upon a construction of the State act of 1866. Now, we have repeatedly held that the construction of State statutes belongs to the State courts, and is not a Federal question which we can revise in a writ of error to a State court. It is true, if the State court gives such a construction to a State statute as to make it conflict with the Constitution or laws of the United States, and sustains its validity after giving it such construction, and thereby deprives a party of his rights under the said Constitution or laws, then a Federal question is raised, and we can review the decision on the point of the validity of the statute. But in this case it does not appear what construction was given to the State statute. All that can certainly be gathered from the record is, that the State statute, in the opinion of the Court of Appeals, did not oblige the county treasurer to issue county certificates to the plaintiffs in this particular case. For aught that appears, the court may have regarded the statute as only furnishing a remedy for cases expressly adjudicated upon. Such a construction of the statute is not without plausibility, and was insisted upon by the treasurer in his answer to the alternative writ.

Had the State courts decided against the right of the plaintiffs, and had it so appeared by the record, the jurisdiction of this court would have attached to the case. But that does not appear. It only appears that they have decided that the plaintiff has no remedy under this statute. Its right to recover the illegal tax is undisputed, but not to recover it in this way.

We are referred to the case of The Banks v. The Mayor, #fn-s-s-s where it was decided, under another act of the New York legislature, that a mandamus in a somewhat similar case was wrongfully withheld. It appears that a few days after the passage of the act relating to King's County, on which the present case arises, the legislature passed a like act relating to the city of New York, but without the descriptive words, relating to a judicial decision, which are relied on in this case. A mandamus to compel the issue of city bonds for the amount of the illegal taxes was applied for and refused. But that case was placed, both in the State courts and in this court, solely on the ground of the legality of the tax. No question respecting the construction of the State statute was raised, either by the record or the argument. Being satisfied, in that case, that the tax was illegal, and that the mandamus ought to have been granted, we felt bound to reverse the judgment of the State court; and nothing in the present opinion is intended to call that decision in question.

DISMISSED.


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Insurance Company v. Francis

THIS cause came up by writ of error to the District Court of the United States for the Southern District of Mississippi.

It came into the said District Court in this wise:

One Francis had brought suit in the Circuit Court of Monroe County, Mississippi, November Term, 1866, against 'The Germania Fire Insurance Company of the City of New York,' upon a policy of insurance. The company appeared to the suit, and demurred to the declaration. The plaintiff, at August Term, 1867, petitioned for the removal of the cause 'to the Circuit Court of the United States, held in or at Oxford, in the Northern District' of Mississippi, averring that the petitioner, the plaintiff, is a citizen of Illinois, and 'that said defendant is a corporation with agents and officers in said State of Mississippi here residing and transacting the business of insurance for which said company was incorporated.' And thereupon the judge of the Circuit Court of Monroe County ordered 'that the case be removed from that court to the District Court of the United States for the Northern District of Mississippi, as prayed for.'

This removal was made in pursuance of a statute of March 2, 1867, which authorizes a transfer from a State court to a Federal court of Suits in any State court 'in which there is a controversy between a citizen of the State in which the suit is brought and a citizen of another State,' if the plaintiff 'will make and file in such State court an affidavit, stating that he has reason to and does believe that from prejudice or local influence, he will not be able to abtain justice in such State court.'

The defendant, then in the District Court, moved to strike the case from the docket for want of jurisdiction.

The motion was overruled, with leave to the plaintiff to file a new declaration in the District Court.

At June Term, 1868, of said District Court, the plaintiff filed a declaration against the defendant as 'The Germania Fire Insurance Company, a corporation located in the City of Aberdeen and State of Mississippi, by its agent, H. D. Spratt, summoned, &c.'

The defendant then pleaded to the jurisdiction of the District Court, because at the time the suit was brought, and at the time it was removed, the plaintiff was a citizen of the State of Illinois, and the defendant was a corporation created by the laws of New York, having its domicile and principal place of business in New York.

The plaintiff demurred, whereupon it was 'ordered by the court that the demurrer of said plaintiff be extended to the declaration, and as to said declaration and the averments as to the said citizenship of said defendant that said demurrer be sustained and the plaintiff have leave to amend the declaration.'

Whereupon the plaintiff amended and declared against the defendant as 'The Germania Fire Insurance Company, a corporation created by an act of the legislature of the State of New York, located in the city of Aberdeen and State of Mississippi, by its agent H. D. Spratt, and doing business in said city of Aberdeen and State of Mississippi, in the district aforesaid, under and by virtue of the laws of the State of Mississippi, summoned, &c.'To this the defendant filed four pleas to the jurisdiction, among them one because the plaintiff was a citizen of Illinois, and the defendant a citizen of New York.

The plaintiff demurred. The demurrer to the plea just mentioned was sustained, and the defendant excepted. The demurrer was not sustained as to one of the other pleas, and the defendant filed pleas to the merits, and the case was tried, and the plaintiff got verdict and judgment. The statutes of Mississippi, it appeared, authorized the location of foreign insurance companies in the State, upon certain conditions specified in it, one of which was that they would engage in writing to be suable there.

Messrs. Carlisle and McPherson, for the plaintiff in error:

The question is here raised, whether the Federal court acquired jurisdiction by the transfer ordered and made, as hereinbefore stated.

The act of Congress under which the cause was removed from the State to the Federal court authorizes the transfer only when one party is a citizen of the State in which the suit is brought, and the other party is a citizen of a different State.

In the case at bar neither in the declaration nor elsewhere was it made to appear that either party was a citizen of Mississippi. On the contrary, the declaration filed in the District Court averred in express terms that the plaintiff was a citizen of Illinois, and also averred in legal effect that the defendant was a citizen of New York, by averring it was a corporation created by an act of the legislature of New York.

The averment that the defendant was doing business in Mississippi, under the laws of that State, can have no effect upon the jurisdiction of the Federal courts, which under the Constitution and statutes of the United States depends solely on citizenship.

Mr. T. A. Hendricks, with a brief of Messrs. R. N. Bishop and D. W. Voorhees, contra:

The jurisdictional facts in this case are contained in the averments in the petition and declaration. These averments are substantially the same, and present the question whether a corporation with agents and officers residing, located, and doing business in a State under and by virtue of its laws, and suable there, is a citizen of that State, under the act of March 2d, 1867?

Neither of the cases cited on the other side establish a test or criterion for the locality of the citizenship of a corporation, nor do they describe a similar state of facts to those existing in this case. In this case the insurance company was 'created by the State of New York, and has its principal place of business there.' But, in point of fact, it was so created not to exist in New York alone-not, in the words used in Letson's case, 'to perform its functions under the authority of that State,' but expressly 'to perform its functions' in other States, and under their authority, wherever it could get permission. This latter purpose is quite consistent with the former in the case of an insurance company, and at this day the purpose of most insurance companies is to do business in other States. Three of the very latest insurance cases before this court show this, and the court will judicially notice the fact.

In pursuance of its charter, this company had gone into Mississippi as follows:

(a) In the words of the petition, and not denied by the plea, it was 'a corporation with agents and officers in said State of Mississippi, here residing and transacting the business of insurance, for which said company was incorporated.' This, as disclosed by the record, and as inferable from the nature of an insurance company, was no temporary or incomplete residence. It had there just the same residence for the same length of time and the same character of residence, 'by its officers and agents,' that it had in New York. Lord Coke says:

'Every corporation and body politic residing in any country siding, city, or town, corporate or having lands or tenements in any shire, qua propriis manibus et sumptibus possident et habent, are said to be inhabitants within the purview of the statute.'

This corporation had, therefore, the quality of RESIDENCE in Mississippi.

(b) It had removed and assumed an existence there 'under and by virtue of the laws of Mississippi.' That a corporation can have no legal existence beyond the limits of the State incorporating it has been repeatedly decided, and is true if there is no further action on the part of other States. But when a corporation created by one State for the express purpose of transacting its business in such other States as will admit it, by the express statutory permission and authority of another State, sends its officers and agents into such State, or appoints citizens and residents of that State its officers and agents, accepts the laws and conditions annexed by that State to its admission-one of which is that it shall be suable there, and to which it in writing expressly consents, which is what the statutes of Mississippi exact, and which we may assume is what was done by this company-then it would seem both in fact and in law to exist in that State and to be a citizen there for the purpose of suing and being sued, which is the only quality or attribute of citizenship a corporation has ever been held to possess. It has, therefore, the capacity of being sued in that State.

(c) It had, of course, assented to the conditions in the statutes of Mississippi, and in return it was authorized and empowered by Mississippi to do business there. Its power 'to perform its functions' in the State of Mississippi-to exist there are, therefore, derived from that State, and it has to that extent at least its INCORPORATION (by which is meant its grant of power) from the State of Mississippi and has that quality of citizenship there.

The act of March 2d, 1867, under which the suit was removed is a remedial statute and should be liberally construed. It was not intended as a jurisdictional statute; it merely provides for a change of venue on account of 'prejudice or local influence.' Viewed in this light, the word citizen may be construed as used in the same sense as 'resident,' 'inhabitant,' or 'person,' all of which words have repeatedly been held to include corporations. This view does not violate the constitutional provision which gives jurisdiction 'between citizens of different States;' for, under the argument of the plaintiff in error itself, the plaintiff and defendant are citizens of different States.

But in respect to all the pleas to the jurisdiction no question remains, the defendant having filed the general issue and other pleas to the merits, and having gone to trial upon them. In De Sobry v. Nicholson, this court held that, 'the objection to jurisdiction upon the ground of citizenship, in actions at law can only be made by a plea in abatement. After the general issue it is too late. It cannot be raised at the trial upon the merits,' and that the general issue waives the plea in abatement.

Mr. Justice DAVIS delivered the opinion of the court.

title: Insurance Company v. Francis


text: Talk:Insurance Company v. Francis

title: Talk:Insurance Company v. Francis


text:
Insurance Company v. Francis/Opinion of the Court

The act of Congress of March 2, 1867, which allows a plaintiff, under certain circumstances, to remove his cause from the State to the Federal court, authorizes the transfer only when one party is a citizen of the State in which the suit is brought and the other party is a citizen of a different State. In this case, while it appears on the face of the declaration that the plaintiff is a citizen of Illinois, it does not appear that the defendant is a citizen of Mississippi. This being so, it is not necessary to notice the subsequent pleadings, because if the court can see, on the case made by the plaintiff in his declaration, that the District Court acquired no jurisdiction over it, it is bound to reverse the judgment and direct the District Court to remand the cause to the State court in which it was instituted.

If the declaration had averred the citizenship of the parties to be as the law requires it, the jurisdiction of the District Court would have attached, and we would be required to look further into the record in order to ascertain whether the defendant had raised the question of jurisdiction in season to avail itself of the objection in this court.

The declaration avers that the plaintiff in error (the defendant in the court below) is a corporation created by an act of the legislature of the State of New York, located in Aberdeen, Mississippi, and doing business there under the laws of the State. This, in legal effect, is an averment that the defendant was a citizen of New York, because a corporation can have no legal existence outside of the sovereignty by which it was created. Its place of residence is there, and can be nowhere else. Unlike a natural person, it cannot change its domicile at will, and, although it may be permitted to transact business where its charter does not operate, it cannot on that account acquire a residence there.

As, therefore, the declaration is, on its face, bad in not showing that one of the parties to the suit was a citizen of Mississippi, it follows that the transfer of the cause was not authorized by law, and that the District Court had no jurisdiction to try it.

JUDGMENT OF THE DISTRICT COURT REVERSED, and the cause remanded to that court with instructions to transmit it to the Circuit Court of Monroe County for further proceedings

IN CONFORMITY TO LAW AND JUSTICE.


text: Talk:Insurance Company v. Francis/Opinion of the Court


text:
May v. Le Claire

THIS was an appeal from a decree of the Circuit Court of the United States for Iowa, dismissing a bill filed by one James May against the executors of Antoine Le Claire and others.

The evidence in the case showed apparently the following leading facts, viz.:

1st. That May and Le Claire had, previously to February 4th, 1859, been associated in business, and that they then had mutual claims against each other.

2d. That on that day May made to Le Claire a written offer of compromise, which, about two months afterward (March 8th, 1859), was accepted by Le Claire, in writing, which acceptance was witnessed by his attorney and counsel, John P. Cook, Esquire.

3d. That this compromise consisted in a settlement and cancellation of their mutual claims by an exchange of property of unequal values, whereby May was to be paid his claim against Le Claire by the difference in value between the property which he was to give and the value of the property which he was to receive, that difference being about $27,000.

That the particulars of the compromise were these:

May was to release all claims against Le Claire and convey to him, free from incumbrance, a farm called Rosebank, within twelve months; Le Claire was to release all claims against May and convey to him his interest as mortgagee in certain lands which he had sold to one Adrian H. Davenport; that is to say, to assign to May five notes of $5000 each, with the mortgage given by Devenport, and also to convey certain island and river-shore lands owned by Le Claire, below the town of Le Claire, in Iowa.

That at the date of the agreement the Rosebank farm, which May agreed to convey to Le Claire freed from its incumbrances, was incumbered--(a) By a mortgage to one Kettell, for $3125, payable November 1st, 1867.

(b) By a trust-deed to one Powers, to secure $6550, payable May 1st, 1858; overdue, therefore, like the mortgage, at the time of the compromise; this deed containing a clause authorizing Powers, the trustee, to sell the land if the amount was not paid at maturity.

4th. That in part performance of the contract on his part, May gave to Le Claire immediate possession of Rosebank, through his nephew and business agent (one Joseph A. Le Claire), and also executed and deposited with Cook & Sargent, bankers at Davenport, a deed, conveying the farm to Le Claire.

5th. That in part performance of the contract on his part, Antoine Le Claire also assigned to May the notes, mortgage, and collaterals of Davenport, and deposited them with Cook & Sargent. That this assignment was declared to be 'in consideration of an amicable and full settlement between said May and myself of all matters of difference heretofore existing between us;' and was witnessed by Cook, already named, the attorney and counsel of Le Claire.

6th. That Le Claire, at the time and for a short time afterwards, was satisfied with the compromise, but afterwards became dissatisfied.

7th. That in the meantime, to wit, April 12th, 1859, Davenport offered in writing to make a settlement with May by paying him part of the liabilities of him, the said Davenport, which had already been assigned by Le Claire to May. That this offer was not accepted.

8th. That in the spring of 1859, May, in further execution of the contract on his part, entered into negotiations at Pittsburg, where he had once lived and was known, by which he was to obtain the means to enable him to remove the incumbrances now overdue upon the Rosebank farm; that the means thus provided were approved bankers' drafts. That while he was absent at Pittsburg Rosebank was advertised by Powers, the trustee, for sale, on the 20th of July, under the deed of trust, Cook urging this on and stating to Powers that the 'compromise' was very unjust to Le Claire, who, he said, on the facts, truly understood, had owed May nothing on a settlement; that he, Cook, wished to break it up; feeling himself bound as the friend and attorney of Le Claire to protect him as far as possible against so gross an imposition. That on the day, and near the hour advertised for the sale of the farm, May and a Pittsburg friend called on Powers to make arrangements to pay the said incumbrances, and were informed by Powers that the drafts would be satisfactory and that the sale should not take place. That while May was thus in conversation with Powers, a note written by Cook was handed to Powers, who then stated that he was called out on other business, excused himself and went away; that on Powers thus withdrawing from the company of May, he joined Cook, and the two went to the court-house (without May's knowledge) and there sold the farm under the trust-deed at auction, subject to the mortgage, striking it off for $5000 to one Dessaint; a deed having been already prepared by Cook with a blank for the purchaser's name; now filled in with Dessaint's.

That previous to this sale, Cook had told Powers that he need not have bidders there; that it was unnecessary to bid against him (Cook) or Dessaint, who Cook said desired to purchase, and that if the property was struck off to either for less than the amount due both on the trust-deed (now $7400) and mortgage, he, Cook, would see both the debts paid in full. That the balance due on the trust-deed was thus afterwards paid, and that on the 28th of July, 1859, Powers sold to Cook the mortgage of May to Kettle, taking in payment Cook's own note for $3255.87, indorsed by Le Claire and one Ebenezer Cook, and that Cook sued May on the note in the Circuit Court of the United States for the Northern District of Illinois and obtained a judgment. That May complained to Powers, and to others, of the mode in which Rosebank had been sold, and that Powers promised to annul the sale on payment of the debt, and did in fact apparently make some efforts to induce Dessaint to give up his bargain; which, however, Dessaint refused to do, saying that he had bought the farm to keep.

9th. That the said farm was now held by one Joseph A. Le Claire, Junior, by an apparently free and unincumbered title, as the assignee of Antoine Le Claire.

10th. That this had been accomplished by what the complainant called 'a circle of conveyances,' as 1st, a quit claim deed from Dessaint to Ebenezer Cook, dated July 27th, 1859; 2d, from Ebenezer Cook to one George L. Davenport, by deed dated December 16th, 1859; 3d, from George Davenport to Joseph A. Le Claire, Junior, by deed with special warranty only, dated January 23d, 1862, made in pursuance of a written contract of Antoine Le Claire with his nephew, Joseph A. Le Claire, Senior, dated November 21st, 1860, and in consideration of the payment, by the estate of Antoine, of two notes of E. Cook for $10,000, the payment of which was assumed, or alleged to have been assumed, by the said George Davenport.

This, in the complainant's language, 'completed one circle of operations.'

11th. That, on the other hand, Antoine Le Claire, on the 9th of March, 1860,-one day after the expiration of the twelve months within which May, by the terms of the compromise with Le Claire had bound himself to convey Rosebank unincumbered to him, Le Claire, offering to convey what he, on his part, was bound to convey, made a curt written demand on May for 'a good and sufficient deed for Rosebank, and that all the incumbrances, judgments, and liens of every character be removed from said Rosebank, so that I get a clear, perfect, and unincumbered title therefor.' [Rosebank, as the reader will remember, having at this time been sold some months before under the deed of trust.] That shortly, to wit, seventeen days afterwards, to wit, on the 27th of March, 1860, Le Claire entered into a written contract with Adrian Davenport, by which it was agreed that he, Le Claire, should resume title and possession of the property sold and conveyed by him to the said Davenport; that the notes given by Davenport should be cancelled and he discharged from liability, and that, as a means to this end, Le Claire should proceed to foreclose his mortgage and buy in the property at the sale under the mortgage; it being agreed that if at the foreclosure sale the property should sell for more than the amount of the notes and interest, Davenport was to have the overplus; if for less, the notes were to be given up; that if Le Claire should acquire the title as proposed, he agreed to confirm the sales of certain parts of the property which Davenport had made; a map being referred to as showing the premises so sold. That Davenport assigned to Le Claire and placed in his hands notes of his vendees for part of the purchase-money, amounting, with interest, to about $16,000; Davenport stipulating that there were no offsets against any of the notes, except two of trifling amount, which were mentioned, and that if it should prove there were any valid offsets, he would pay the amount to Le Claire, and Le Claire agreeing that, upon the payment to him of the balance of the purchasemoney by Davenport's vendees, he would convey to those holding title bonds from Davenport.

That, accordingly, in April, 1860, proceedings to foreclose the mortgage were instituted by the said John P. Cook; that to facilitate the proceedings, Davenport admitted the allegations of the bill, and a decree pro confesso was entered against him and subsequently liquidated at the sum of $41,708.32. That all this was done without notice to May; and that, under this decree, the mortgaged property was subsequently sold and conveyed by the sheriff to Le Claire for $20,000.

This completed what the counsel styled 'the other circle of operations.'

Thus by what the complainant styled 'the joint effect of two parallel series of operations,' Le Claire became possessed of both of the equivalents agreed to be exchanged between him and May, by the compromise of March 8, 1859, in payment of the admitted debt of about $27,000 from him to May; that is to say: Le Claire had paid his debt to May in full; he, or his relative, Le Claire, Junior, held Rosebank by a free and unincumbered title; he still held the island and river-shore property below the town of Le Claire; and had got back all the Davenport property, which he agreed to convey, and did convey, to May.

May, on the contrary, had nothing as the result of the whole operations except a suit in chancery.

Still the great question of the case remained, whether what had occurred was the result, on the one hand, of Le Claire's superior attention and vigilance, within proper limits, and of an unembarrassed condition as to money; and on the other, of May's supineness, bad arrangements, and embarrassed condition; whether the combination of persons was purely accidental, or whether there was contrivance and design; in other words, whether each part was so connected with the whole, that, taken together, they furnished clear evidence that the result was contemplated from an early date, and that after the compromise had been made in good faith, and partially executed by both parties, the plan to break it up was conceived as an afterthought by J. P. Cook, a lawyer, and executed under his direction by Powers, Dessaint, Ebenezer Cook, the two Davenports, and the two J. A. De Claires, Senior and Junior?

Especially arose the question, how far had Antoine Le Claire, who the case rather showed was an old and perhaps illiterate half-breed Frenchman-part Indian-an interpreter in early times, who had grown rich by the growth of a large town, on land granted to him many years since by the bounty of the United States-how far had he originated the scheme, if it was one; or, if not originating it at all, how far was he to be affected by what was done by J. P. Cook and the others, assuming that what they did was a fraudulent scheme successfully carried out?

This was a matter depending largely on the relations subsisting between J. P. Cook, old Le Claire, and the various parties already named.

As to that matter, it appeared,

1. That Powers, the trustee who sold Rosebank, was a banker; that the firm of J. Cook & Sargent, which was composed of the lawyer J. P. Cook, his brother, Ebenezer Cook, and one Sargent, were also bankers; that Powers was in the habit of borrowing money from Cook & Sargent, and so under obligations to them pecuniarily.

2. That Antoine Le Claire had no lineal descendants; and that Joseph Le Claire was his nephew and business agent, occupied the same office with him, and, under the permission of Antoine Le Claire, was in the actual occupation of Rosebank, after the agreement of May and Le Claire, receiving the rents.

3. That George Davenport and Antoine Le Claire were intimate in their business relations, indorsers for each other, and both of them indorsers for Cook & Sargent to a considerable amount, and also indorsers for Ebenezer Cook.

4. That Dessaint was a Frenchman and an intimate friend of Le Claire, and in the habit of lending him money.

5. That Ebenezer Cook, Antoine Le Claire, George Davenport, and Dessaint, were associated in business as stockholders and directors of the State Bank.

6. That Cook & Sargent having failed, George Davenport was one of their assignees, and that Antoine Le Claire had appointed him by will one of his executors.

7. That John P. Cook was the agent and attorney of Le Claire; selected by him as the custodian of the papers relating to the matter in controversy; the subscribing witness, as already said, to the compromise agreement of March 8, 1859, and to the assignment to May, dated March 10, 1859; drew and dated the agreement, March 27, 1860, between Le Claire and Adrian Davenport, in regard to the Davenport mortgage; was one of the attorneys who, on the 24th day of April, 1860, commenced the action for Le Claire to foreclose the Davenport mortgage, and procured the decree; as attorney, held the collaterals until after Le Claire's death, and delivered them to the executor; as attorney of Le Claire, attended the sale of the mortgaged property under the decree in favor of Le Claire v. Davenport, and after Le Claire, the nephew, bid off the property, that he directed the deed to be made to Antoine Le Claire.

8. That at the time, 16th of December, 1860, when Ebenzer Cook (as already mentioned on p. 221), conveyed Rosebank to George Davenport, the judgment in favor of John P. Cook against May (mentioned on p. 220), was assigned to Davenport; the consideration, according to the statement of Davenport, having been that he agreed to pay a bill and note of Ebenezer Cook, on which he and Le Claire were liable as accommodation indorsers, both bill and note dated 20th October, 1859; maturing, respectively, three and four months from date, and both renewed by Davenport and Le Claire, Davenport admitting that Le Claire had paid at that time $1000 upon one of them.

9. That, in these money operations, the relations between some of the parties named, if not all, were quite confidential. For example: before their failure, Cook & Sargent, on the 21st of August, 1858, 'in consideration of $70,000, executed to Antoine Le Claire a mortgage upon a large quantity of real estate.' The mortgage recites that Le Claire had accepted various sums for their accommodation, and proposed to indorse and accept other and further sums for them, with the view of enabling them to borrow money on such acceptances. The condition was that they should pay these liabilities, and save Le Claire harmless. On the 22d of December, 1859, after their failure, they sold and assigned to Le Claire the banking-house of Cook, Sargent, Downey & Co., in Iowa City, and all the assets of that firm. The deed recites that Le Claire 'had made and executed certain notes, drafts, and acceptances for the accommodation of Cook & Sargent, and was now liable to pay the same.' No condition or trust was expressed. On the 12th of December, 1860, in consideration of $15,000, they assigned to George Davenport their interest in the assets of the firm of Cook, Sargent & Parker, of Florence, in the Territory of Nebraska, and covenanted that the interest thus transferred was worth $15,000. On the 2d of July, 1861, by a deed, absolute on its face, Le Claire conveyed to Dessaint a large number of tracts of land. An article of agreement, dated the 15th of the same month, recited, however, that the prior conveyance had been made in trust to enable Dessaint to sell and pay a debt of Le Claire to the Merchants' Branch of the State Bank of Iowa, and Dessaint stipulated that, after accomplishing this object and paying the expenses of the trust, he would reconvey to Le Claire.

Le Claire himself being dead, leaving a life interest in his estate to his wife, Marguerite (who with the George Davenport already named were found to be executors), and the remainder to collaterals, residents some abroad, May now filed this bill against both the executors, the two Cooks, Dessaint, Sargent, and such collateral devisees of Le Claire as he could reach (these being about half of those inheriting under the will), praying for specific performance, or alternatively for compensation in money, by way of substitution; and for such other relief as the court might see fit.

The case came here on a printed transcript of 612 pages; a confused mass of papers and record entries thrown together without regard to order or method. It appeared to have been originally made up by the clerk of the court below, or his deputy, for transmission to this court in twelve separate parcels, not inappropriately described in the clerk's certificate as a 'bundle of papers.' Many of the exhibits, together with certain accounts produced or identified by the witnesses, appeared in the transcript entirely separated from the depositions of which they formed a part, and without anything to connect them therewith.

Notwithstanding the character of the transcript the case was presented with clearness, and was elaborately argued by Mr. J. A. Wills, for the appellant, and by Messrs. M. H. Carpenter and J. N. Rogers, contra: Mr. Wills contending that it was not necessary to go into minute particular facts to infer fraud; that the case was one which it was impossible to view, even in outline, as a whole, without seeing a fraudulent contrivance-argued that the fraud being unkennelled, equity would certainly, in some form, grant relief; that if specific performance could not, in the complications which, with time, deaths, transfers of property, absence of parties defendant, &c., be decreed, and if the fraudulent proceedings should thus of necessity have to stand, then that taking things, though fraudulent, on the base where the parties had put them, Le Claire's estate could be followed for the fruits of them in the hands of his executors, and so made to respond.

The counsel of the other side, asserting that the proof of fraud consisted only in an artful collocation of facts, and denying that fraud was proved, and especially that there was anything to show that, in this matter, Cook had acted as agent of Le Claire-so as to charge Le Claire's estate with a fraud committed by attorney-contended that the bill was defective in not bringing in all Le Claire's devisees; that specific performance was almost confessedly impracticable, and that if compensation in money was asked, the case became a claim for damages, and a case therefore for law, not for equity; that even if a case for equity, May had lost his rights by supineness in not paying off the overdue trust-deed incumbrance, time being of the essence of his contract to Powers under the trust-deed; but that if this was not so, and if he still asserted rights in Rosebank, he should file a bill to redeem.

Mr. Justice SWAYNE delivered the opinion of the court.

title: May v. Le Claire


text: Talk:May v. Le Claire

title: Talk:May v. Le Claire


text:
May v. Le Claire/Opinion of the Court

This is an appeal in equity from the decree of the Circuit Court of the United States for the District of Iowa. The record is in a singularly defective and confused condition. But the case has been fully argued upon the merits by the counsel upon both sides, and finding enough in the record, upon looking carefully through it, to enable us to dispose of the controversy between the parties satisfactorily to ourselves without further delay, we do not deem it necessary to reverse and remand the cause, as we might otherwise do, in order that the record may be corrected and by a further appeal be brought up in the proper condition.

The case involves no legal question of any doubt or difficulty. Its determination depends wholly upon the facts. The testimony and exhibits are very voluminous. It could serve no useful purpose elaborately to analyze them and set forth the results in this opinion. We shall content ourselves with doing little more than to announce our conclusions. We shall not deem it necessary to give in detail the evidence upon which they are founded or the processes of argument by which they are supported.

The proposition submitted by May, of the 4th of February, 1859, its acceptance on the 8th of March following by Le Claire, since deceased, and the assent of May on the same day, constituted a valid contract. There was a large difference in value between what Le Claire was to give and what he was to receive. But we have found in the record nothing which raises a doubt that the arrangement was fair and just to both parties. Le Claire was a man of property and of experience in business. The date of the proposition and of its acceptance show that he took ample time to consider the subject. The acceptance was witnessed by John P. Cook, his counsel, and one of the defendants in this case. According to the face of the proposition it involved the settlement of unadjusted demands on both sides. It was made in a spirit of peace and compromise, and was accepted in a corresponding spirit. It is the duty of a court of equity to uphold such an agreement, to protect and enforce the rights of both parties under it, and to carry it out as far as the facts, which subsequently occurred, and the settled principles of our jurisprudence, will permit.

On the 10th of March Le Claire, in pursuance of the contract, indorsed to May the notes and mortgage of Adrian H. Davenport, and placed them, with certain collaterals which he had received from Davenport to secure the payment of the notes, in the hands of Cook & Sargent. At the same time May, also, in pursuance of the contract, executed to Le Claire a deed conveying the Rosebank farm, and placed it in the hands of the same depositaries. Cook & Sargent were to deliver to each party what the other had deposited for him as soon as May should have removed all incumbrances from the farm, which he was bound by the contract to do within a year from its date. When Le Claire made his deposit he took from Cook & Sargent a receipt stating its object and terms.

The firm of Cook & Sargent consisted of John P. Cook, Ebenezer Cook, his brother, and George B. Sargent. They were bankers. On the 21st of August, 1858, they executed to Le Claire a mortgage upon a large quantity of real estate. The consideration stated is $70,000. The mortgage recites that Le Claire had 'accepted various sums for the accommodation of Cook & Sargent, and proposes to indorse and accept other and further sums for them, with the view of enabling them to borrow money on such acceptances.' The condition was that they should pay these liabilities and save Le Claire harmless. Cook & Sargent subsequently failed. On the 22d of December, 1859, they sold and assigned to Le Claire the banking-house of Cook, Sargent, Downey & Co., in Iowa City, and all the assets, real, personal, and mixed, of that firm. The consideration stated is, that Le Claire 'has made and executed certain notes, drafts, and acceptances for the accommodation of Cook & Sargent, and is now liable to pay the same.' No condition or trust is expressed. On the 12th of December, 1860, Cook & Sargent assigned to the defendant, George L. Davenport, their interest in the assets of the firm of Cook, Sargent & Parker, of Florence, in the Territory of Nebraska, and covenanted that the interest thus transferred was worth the sum of $15,000. On the 2d of July, 1861, by a deed, absolute on its face, Le Claire conveyed to the defendant, Louis C. Dessaint, a large number of tracts of land. On the 15th of the same month an article of agreement was entered into between them, wherein it was recited that the prior conveyance had been made in trust to enable Dessaint to sell and pay a debt of Le Claire to the Merchants' Branch of the State Bank of Iowa, and Dessaint stipulated that, after accomplishing this object and paying the expenses of the trust, he would reconvey the residue of the lands to Le Claire. These transactions show the relations of the parties at the dates of their occurrence, and in that view are not without importance in this case.

The incumbrances on the Rosebank farm consisted of a deed of trust, executed by May to Charles Powers, since deceased, to secure a note of May to W. H. & A. T. Strippel, for $6550, payable, with interest, on the 1st of May, 1858; a mortgage to George F. Kettle to secure a note of May to him of $3125, with interest after due, payable on the 10th of November, 1857; and the liens of several judgments not necessary to be particularly specified. At the time the contract between May and Le Claire was entered into, Le Claire was well satisfied with the arrangement. Subsequently he became dissatisfied. John P. Cook afterwards denounced it, and declared that, as the friend and attorney of Le Claire, he considered it his duty 'to protect Le Claire as far as possible against so gross an imposition.' The most obvious and effectual way to accomplish that object was to sell the Rosebank farm under the deed of trust, and thus put it out of the power of May to fulfil his part of the contract, and this purpose those concerned in the scheme proceeded to carry out.

In this connection we lay out of view the important declarations of Powers, the trustee, as incompetent against the other parties.

On the 12th of April, 1859, Adrian H. Davenport, regarding May as the owner of his notes and mortgage, which Le Claire had assigned and deposited, as before stated, submitted to May a written offer for a settlement and compromise, which May declined.

On the 28th of July, 1859, John P. Cook bought from Powers the note and mortgage of May to Kettle, and gave in payment his note for $3255.87, indorsed by Le Claire and Ebenezer Cook. Cook, the assignee, sued May on the note in the Circuit Court of the United States for the Northern District of Illinois and recovered a judgment.

The day after May executed his deed to Le Claire he delivered possession of the Rosebank farm to Le Claire, and has not since had possession or any control over the premises, or any benefit from them.

On the 20th of July, 1859, Powers, the trustee, sold this property under the deed of trust. The evidence leaves no doubt in our minds that his conduct in making the sale was grossly fraudulent. He knew that May had arranged for funds more than sufficient to discharge the debt due to his cestui que trusts, which were ready to be paid over as soon as May could deliver to the lender, as security, two of the notes of Davenport. We are satisfied that, with ordinary condor and fair dealing on the part of Powers and the other parties implicated, the debt secured by the deed of trust could have been speedily discharged, and all the other incumbrances removed.

But such was not the object of Le Claire and his associates, of whom Powers was clearly one. In the midst of the negotiation between May and Powers at the banking-house of Powers, with funds present, and ready to be paid over by May on the condition stated, Powers, upon the receipt of a note from John P. Cook, left abruptly, under a false pretence, and made a surreptitious sale of the property to Dessaint for $5000. A deed was ready, with a blank for the name of the purchaser, and the blank was at once filled with the name of Dessaint. The consideration mentioned in the deed is the amount of his bid. The promises of Powers to annul the sale upon the payment of the debt were obviously false, and intended only to deceive and quiet May for the time being. Measures were taken to keep away competing bidders. The amount of the debt was $7400. Dessaint testifies that he bought under an agreement with Powers that he should pay the full amount of the debt; that Powers should procure to be assigned to him May's liability for the difference between the amount of the debt and the amount at which the property should be struck off to him; and that he paid the full amount of the debt to Powers. This feature of the transaction requires no comment. Whther Dessaint was privy to the other frauds of Powers or not, a subject upon which we can hardly entertain a doubt, he took the title in trust for May, and subject to all May's rights, as they were before the sale and conveyance were made by Powers.

On the 27th of July, 1859, Dessaint conveyed by a deed of quit-claim to Ebenezer Cook. The evidence satisfies us that Cook had full notice of the frauds of Powers and of the infirmities of Dessaint's title. Whether this were so or not, having acquired his title by a quit-claim deed, he cannot be regarded as a bon a fide purchaser without notice. In such cases the conveyance passes the title as the grantor held it, and the grantee takes only what the grantor could lawfully convey. Cook occupied the same relations to the property as Dessaint, his grantor.

Cook, on the 16th of December, 1860, conveyed to George L. Davenport. At the same time the judgment in favor of John P. Cook against May was assigned to the grantee. The conveyance and assignment were one transaction. The consideration, according to the testimony of Davenport, was that he agreed to pay a bill and note of Ebenezer Cook, on which he and Le Claire were liable as accommodation parties. The bill and note were dated on the 20th of October, 1859. They matured, respectively, three and four months from date. Both were renewed by Davenport and Le Claire. Davenport admits in his testimony that Le Claire paid at that time $1000 upon one of them.

On the 21st of November, 1860, Antoine Le Claire bound himself by a written contract to convey the property to his nephew, Joseph Le Claire. In this condition of things Antoine Le Claire died. He left no lineal heirs. By his will he gave the usufruct of his entire estate to his wife, the defendant, Maguerite Le Claire, during her life. The residue he gave, in undivided shares, to a large number of devisees. Only a few of them are parties to this litigation. Davenport testifies that Antoine Le Claire made a parol contract with him for the Rosebank farm, and, as the consideration of the purchase, agreed to pay the liabilities of Ebenezer Cook, which Davenport had assumed, and that his estate has since paid them.

On the 23d of January, 1862, Davenport conveyed the premises to Joseph A. Le Claire, Jr., pursuant to directions from Joseph A. Le Claire, the vendee of Antoine Le Claire. The deed contains a covenant against all persons claiming under the grantor, and none other.

John P. Cook was the counsel of Le Claire in all his transactions touching this property. He knew everything that was done, and his knowledge was notice to his client. But we are well satisfied, by the facts and circumstances developed in the evidence, that both he and George L. Davenport had full actual knowledge. After a careful consideration of the subject, we have found ourselves unable to come to any other conclusion. The testimony of Davenport is guarded and peculiar. Twice during his examination he declined to answer a question until time was allowed him to advise with his counsel. The proofs establish the frauds alleged in the bill.

If Le Claire did not actively participate in the frauds perpetrated upon May, he coolly looked on, and deliberately gathered what others had sown for him. The result was that he acquired the Rosebank farm unincumbered, and put it out of the power of May to comply with his contract.

The year within which May was to convey the farm to Le Claire, unincumbered, expired on the 8th of March, 1860. On the next day Le Claire gave a formal written notice to May whereby he tendered performance on his part, and demanded performance by May. May was unable to fulfil, and Le Claire knew it. The notice was an idle ceremony.

The liabilities of Adrian H. Davenport, which Le Claire had assigned to May and deposited with Cook & Sargent, consisted of five notes of $7000 each, making an aggregate of $35,000, with interest. Le Claire withdrew them from the depositaries and cancelled the assignment. On the 27th of March he entered into a new contract with Davenport, whereby it was stipulated as follows: Le Claire was to resume the title and possession of the property for which the notes and the mortgage securing them were given, provided the property could be relieved from the liens upon it, of judgments against Davenport. To this end Le Claire was to foreclose the mortgage, and if at the foreclosure sale the property should sell for more than the amount of the notes and interest, Davenport was to have the overplus. If it should bring less the notes were to be released. If Le Claire should acquire the title as proposed, he agreed to confirm the sales, which Davenport represented he had made, of certain portions of the property. A map was referred to as showing the premises so sold. Davenport assigned to Le Claire, and placed in his hands notes of the vendees for part of the purchase-money, amounting, with interest, to about $16,000. Davenport stipulated that there were no offsets against any of the notes, except two of trifling amount, which were mentioned, and that if it should prove there were any valid offsets, he would pay the amount to Le Claire. Le Claire agreed that, upon the payment to him of the balance of the purchase-money by Davenport's vendees, he would convey to those holding title-bonds from Davenport.

This agreement was carried out. A suit of foreclosure was instituted by Le Claire, and the property was sold to him for less than the amount due on the notes of Davenport. The property was thus divested of all incumbrances, and his original title was restored to him. John P. Cook, as the counsel of Le Claire, conducted the legal proceedings. May was not consulted about the agreement between Le Claire and Davenport, and was not a party to the foreclosure suit.

It has been suggested by the counsel for the appellees that if May still has the rights which he claims in respect to the Rosebank farm, he should file a bill to redeem, and having succeeded, should tender a conveyance of the property in performance of his contract with Le Claire instead of prosecuting this suit. That course is unnecessary. Le Claire has already had the ownership, control, and full benefit of the property, and disposed of it as he thought proper. A court of equity can do no more than he did for himself. It is not pretended that there was any incumbrance upon the property when it was conveyed by George L. Davenport to Joseph A. Le Claire, Jr.

Upon the execution of the contract between May and Le Claire, Le Claire became in equity the owner of the farm. The effect of the element of fraud in his subsequent conduct is, that he must be regarded as constructively the trustee and agent of May in removing the incumbrances and acquiring the ownership and beneficial control of the property. Hence his estate is entitled to be credited with his advances and interest instead of the aggregate of the debts extinguished, and interest on that amount. Under the circumstances, time was not of the essence of the contract on the part of May, and when this liability has been accounted for to Le Claire's estate, the contract on May's part must be held to have been fully performed. May has had no benefit from this property since the date of his contract, and none from what he was to receive from Le Claire. On the contrary, he has been engaged in a long and expensive conflict for the assertion of his rights, and that contest is not yet terminated. Viewing the subject in the light of these facts, we think he is entitled to be credited with annual rent and interest from the time he parted with the possession of the farm to Le Claire.

At law, in many cases, if property be tortiously taken or converted, the tortfeasor may be sued in trespass or trover, or the injured party may waive the tort and sue in assumpsit. In the latter case the same results follow as if there had been an implied contract. The plaintiff is not permitted to set up his tort to defeat the action, and the recovery of a judgment will bar a further action ex delicto by the plaintiff. In the same class of cases where the converted property has assumed altered forms by successive investments, the owner may follow it as far as he can trace it and sue at law for the substituted property, or he may hold the wrong-doer liable for appropriate damages.

There are kindred principles in equity jurisprudence, whence, indeed, these rules of the common law seem to have been derived. Where a trustee has abused his trust in the same manner, the cestui que trust has the option to take the original or the substituted property; and if either has passed into the hands of a bon a fide purchaser without notice, then its value in money. If the trust property comes back into the hands of the trustee, that fact does not affect the rights of the cestui que trust. The cardinal principle is that the wrong-doer shall derive no benefit from his wrong. The entire profits belong to the cestui que trust, and equity will so mould and apply the remedy as to give them to him.

In cases of specific performance, to which category the one before us belongs, parties are sometimes remitted to a court of law. But this is never done where the remedy is not as effectual and complete there as the chancellor can make it. Equity sometimes takes jurisdiction on account of the parties, and sometimes on account of the relief proper to be administered.

The same considerations which invoke the jurisdiction may control the remedy.

In this case more than half the residuary devisees of Antoine Le Claire are not before us. We cannot, therefore, decree the conveyance of real estate, but his legal representatives are before us, and we can give a money decree against them, embracing the value of the land, which we might otherwise adjudge to be conveyed. It is not necessary that the devisees should be parties to warrant such a judgment. The presence of the executors is sufficient for that purpose.

Adrian H. Davenport, as well as Le Claire, had full notice of the rights of May in respect to the securities embraced in their compromise. All those securities, including the collaterals, belonged in equity to May from the time they were deposited with Cook & Sargent. Le Claire had no right to change their form or to dispose of them, as was done in carrying out the compromise agreement. It is within the power of this court, in the exercise of its equitable jurisdiction, to annul that arrangement, and hold Davenport and Le Claire's estate liable in all respects as if the compromise had not been made. But it is also in our power to confirm the transaction, and upon the principles of constructive trusts to give May its fruits instead of pursuing the effects themselves. This, as the case is presented in the record, we deem the proper course. Le Claire's estate must account for the proceeds of the $16,000 of notes, with interest from the time he received them. As we cannot require the land which he bought at the foreclosure sale to be conveyed, his estate must account for its present value. As he violated his agreement with May, and put it out of his power to give May in specie so large a portion of the consideration May was entitled to receive, May is not bound to take the other parcels of real estate mentioned in the contract and which Le Claire bound himself to convey, and it is within the scope of our jurisdiction to give May, in money, the present value of that property also instead of the property itself. We deem it proper, under the circumstances, to do so, and Le Claire's estate must account accordingly. The collection of the judgment against May upon his note to Kettle, recovered by Cook, must be perpetually enjoined.

An account must be taken by a master, wherein Le Claire's estate must be debited with the rent of the Rosebank farm annually and interest down to the time when the account is taken.

With the amount realized from the $16,000 of notes and interest to the same period.

With the value, at the same time, of the land bought in at the foreclosure sale by Le Claire, other than that previously sold by Davenport, the title to which Le Claire took in trust for Davenport's vendees.

With the value, at the same time, of the other parcels of land mentioned in the agreement between Cook and Le Claire and which Le Claire bound himself to convey to May.

Le Claire's estate must be credited with the amount paid on account of the bill and note of Ebenezer Cook, with interest to the same time.

The balance in favor of May, with interest from that time, Le Claire's executors must be required to pay to May.

These conclusions will do justice to May without disturbing the interests of any third person outside of the sphere of Le Claire's estate.

DECREE REVERSED, and the cause remanded with directions to enter a decree and proceed IN CONFORMITY TO THIS OPINION.

Mr. Justice MILLER took no part in this judgment, having in the early stages of the case been counsel of May, below.

title: May v. Le Claire/Opinion of the Court


text: Talk:May v. Le Claire/Opinion of the Court


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Page:A short history of social life in England.djvu/57

Rh fun and laughter, the wandering gleeman sang his song of heroic deeds performed by noble ancestors, or the harp was taken from the wall and handed round from hand to hand, for it was an accomplishment in those days that none could afford to neglect.

From this period, too, dates the wassail or loving cup, which is passed round to-day at large City feasts. When Hengist, the Saxon, brought his beautiful daughter Rowena to these shores she was introduced to the British King Vortigern at a royal banquet. Modestly advancing towards the King, according to the custom in her own country, she held out a golden cup of ale. "Waes hael hlaford Conny" ("Health to my lord"), she said in her own tongue. The words were interpreted to the British King, and the memory of the event has been preserved in England by the wassail cup at banquets and festivals. The sequel of the story is well known to readers of English history, and their marriage is one of our earliest romances.

Marriage in these early days was a simple business. Each woman had her value, and the man who selected her to be his wife had not only to pay her father a given sum of money,


text:
The Fannie

APPEAL from the Circuit Court for the District of Maryland.

This was a case of collision, in Chesapeake Bay, between the schooner Ellen Forrester and the steamship Fannie. The owners of the schooner libelled the steamer in the District Court for Maryland. That court decreed in their favor. The Circuit Court on appeal did the same. The owners of the steamer now brought the case here. No question of law was involved; the case resting chiefly on a conflict of evidence, as to what had or had not existed or been done, on the respective vessels at the time of the accident.

Messrs. Reverdy Johnson and Andrew Sterrett Ridgley, for the appellant; Mr. H. Stockbridge, contra.

Mr. Justice STRONG stated the admitted facts, the evidence on the disputed ones, and delivered the opinion of the court.

title: The Fannie


text: Talk:The Fannie

title: Talk:The Fannie


text:
Page:The Celtic Review volume 4.djvu/353

 340 th changed to ch.

The change of th into ch seems to be universal in dachaidh, home, from do-thigh, and in gu bràth, for ever, written ‘gu brach’ in the 1408 charter. The latter is pronounced gu brách in Irish and is dy bragh in Manx. Bothan, hut; lothag, filly; triath, a chief, etc., and féith, vein, are respectively bochan, lochag, triach, and féach in Arran. Bochan, lochag, triach, and feich are all met with in Shaw’s Dictionary. Triach occurs in Kintyre, and MacAlpine pronounces triath and its adjective triathail with ch. At the end of monosyllables th is often represented by gh in MacAlpine’s pronunciation, for example, in guth, voice, dlùth, wrap, mùth, change, maoth, soft. Compare the Manx daghy, dye, our dath, and myghin, clemency, our maothainn.

In Arran a Thighearna as an exclamation may be heard as a Chiarn, and Shaw gives ‘ogchiern, a young lord’; the Manx is Hiarn, pronounced, according to Professor Rhys, Chiarn. Medially and finally th is pronounced ch in laitheil, daily, snàithean, thread, maith, good, ràith, quarter of year, ruith, run. Súith, soot, Irish súithche, Middle Irish súithe, Old Irish suidi, is here sùiche. Shaw has laichol, daily.

In Kintyre snàithean, ràith, here ‘ràiche,’ ruith, and sùith, here ‘sùich,’ have ch. In other instances in this district and also in Islay ch for th is associated with an intrusive slender vowel after long, broad vowels. Thus càth, husks of corn, is here càich; gaoth, wind, is gaoich, which occurs also at Shiskine in Arran; luath, ashes, is luaich, and sàth, repletion, is sàich.

MacAlpine usually writes such words with the slender vowel and th and pronounces ch, as in àith ‘àich’ for àth, kiln; càith ‘càich,’ husks; luaith ‘luaich,’ ashes; sàith ‘sàich,’ repletion. In some instances he gives also the usual form. Of gaoith, ‘gaoich,’ he says, ‘sometimes the nominative, and always the genitive of gaoth, wind.’ He gives this ch, with alternative pronunciations in some instances in snàithean, maith, ràith, ruith, and sùith.