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Davis v. Gray/Opinion of the Court

This is an appeal in equity from the decree of the Circuit Court of the United States for the Western District of Texas. The appellee was the complainant in the court below. The defendants demurred to the bill. The demurrer was overruled. The defendants stood by it. A decree as prayed for was thereupon rendered pro confesso for the complainant. The defendants removed the case to this court by appeal, and it is now before us, as it was before the court below, upon the demurrer to the bill. This brings the whole case as made by the bill under review. The facts averred, so far as they are material, are to be taken as admitted and true. We shall refer to them accordingly. The question presented for our determination is, whether the Circuit Court erred in overruling the demurrer. The appellants, having elected not to answer, the decree for the complainant followed as of course.

At the outset of our examination of the case, we are met by jurisdictional objections as to the parties-both complainant and defendants-which, before proceeding further, must be disposed of. We will consider first, those which relate to the complainant, and then, those with respect to the defendants.

The complainant was appointed to his office of receiver, in the suit in equity of Forbes and others v. The Memphis, El Paso, and Pacific Railroad Company, a corporation created by the State of Texas. The suit was in the same court whenece this appeal was taken. In that case, on the 6th of July, 1870, it was, among other things, ordered and decreed, that the corporation should be enjoined from disposing of any of its effects, and that John A. C. Gray, the complainant in this suit, should be, and he was thereby 'appointed receiver; to take possession of the moneys and assets, real and personal; roadbed, road, and all property whatsoever, of the said Memphis, El Paso, and Pacific Railroad Company, wheresoever the same may be found, with power under the special order of the court, from time to time to be made, to manage, control, and exercise all the franchises, whatsoever, of said company, and, if need be, under the direction of the court, to sell, transfer, and convey the road, roadbed, and other property of said company, as an entire thing,' &c.

On the 20th of January, 1871, it was further ordered by the court 'that the said John A. C. Gray, receiver as aforesaid, be, and he is hereby, authorized and empowered to defend and continue all suits brought by or against the said Memphis, El Paso, and Pacific Railroad Company, whether before or after the appointment of said receiver, and whether in the name of said company or otherwise; defend all suits brought against him as such receiver or affecting his receivership, and to bring such suits in the name of said company, or in the name of said receiver, as he may be advised by counsel to be necessary and proper in the discharge of the duties of his office, and for acquiring, securing, and protecting the assets, franchises, and rights of the said company and of the said receiver, and for securing and protecting the land grant and land reservation of the said company.'

It is to be presumed the receiver filed this bill, as it is framed in accordance with the advice of counsel.

The authority given by the decree is ample. Still he decree is ample. Still the competent for him to proceed in his own name instead of the name of the company whose rights he seeks by this bill to assert. A receiver is appointed upon a principle of justice for the benefit of all concerned. Every kind of property of such a nature that, if legal, it might be taken in execution, may, if equitable, be put into his possession. Hence the appointment has been said to be an equitable execution. He is virtually a representative of the court, and of all the parties in interest in the litigation wherein he is appointed. He is required to take possession of property as directed, because it is deemed more for the interests of justice that he should do so than that the property should be in the possession of either of the parties in the litigation. He is not appointed for the benefit of either of the parties, but of all concerned. Money or property in his hands is in custodi a legis. He has only such power and authority as are given him by the court, and must not exceed the prescribed limits. The court will not allow him to be sued touching the property in his charge, nor for any malfeasance as to the parties, or others, without its consent; nor will it permit his possession to be disturbed by force, nor violence to be offered to his person while in the discharge of his official duties. In such cases the court will vindicate its authority, and, if need be, will punish the offender by fine and imprisonment for contempt. The same rules are applied to the possession of a sequestrator. Where property in the hands of the receiver is claimed by another, the right may be tried by proper issues at law, by a reference to a master, or otherwise, as the court in its discretion may see fit to direct. Where property, in the possession of a third person, is claimed by the receiver, the complainant must make such person a party by amending the bill, or the receiver must proceed against him by suit in the ordinary way. After tenants have attorned to the receiver, he may distrain for rent in arrear in his own name. In a suit between partners he may be required to carry on the business, in order to preserve the good-will of the establishment, until a sale can be effected.

Here the property in question is not in the possession of the defnedants. The possession of the receiver has not been invaded. He has not been in possession, is not seeking possession; and there is no question in the case relating to that subject. But the order of the court expressly requires the receiver to secure and protect 'the assets, franchises, and rights,' and 'the land grant and reservation of said company.' He is seeking to perform that duty by enjoining the appellants from doing illegal acts, which the bill alleges, if done, would render the rights and title of the company to the immense property last mentioned, of greatly diminished value, if not wholly worthless.

We think it is competent for him to perform this function in the mode he has adopted. The decree, in the case wherein he was appointed, expressly authorizes him to sue for that purpose in his own name. The order was made by a court of adequate authority in the regular exercise of its jurisdiction. No appeal has been taken, and the order stands unreversed.

This bill is auxiliary to the original suit. It is analogous to a petition by a receiver to the court to protect his possession from disturbance, or the property in his charge from threatened injury or destruction. No title in the receiver is necessary to warrant such an application, or the administration by the court of the proper remedy. There can be no valid objection to the receiver here, in analogy to that proceeding, maintaining this suit. In the progress and growth of equity jurisdiction it has become usual to clothe such officers with much larger powers than were formerly conferred. In some of the States they are by statutes charged with the duty of settling the affairs of certain corporations when insolvent, and are authorized expressly to sue in their own names. It is not unusual for courts of equity to put them in charge of the railroads of companies which have fallen into financial embarrassment, and to require them to operate such roads, until the difficulties are removed, or such arrangements are made that the roads can be sold with the least sacrifice of the interests of those concerned. In all such cases the receiver is the right arm of the jurisdiction invoked. As regards the statutes, we see no reason why a court of equity, in the exercise of its undoubted authority, may not accomplish all the best results intended to be secured by such legislation, without its aid.

A few remarks will be sufficient to dispose of the jurisdictional objections as to the appellants.

In Osborn v. The Bank of the United States, three things, among others, were decided:

(1.) A Circuit Court of the United States, in a proper case in equity, may enjoin a State officer from executing a State law in conflict with the Constitution or a statute of the United States, when such execution will violate the rights of the complainant.

(2.) Where the State is concerned, the State should be made a party, if it could be done. That it cannot be done is a sufficient reason for the omission to do it, and the court may proceed to decree against the officers of the State in all respects as if the State were a party to the record.

(3.) In deciding who are parties to the suit the court will not look beyond the record. Making a State officer a party does not make the State a party, although her law may have prompted his action, and the State may stand behind him as the real party in interest. A State can be made a party only by shaping the bill expressly with that view, as where individuals or corporations are intended to be put in that relation to the case.

Dodge v. Woolsey, The State Bank of Ohio v. Knoop, The Jefferson Branch Bank v. Skelly, Ohio Life and Trust Co. v. Debolt, 17 proceeded upon the same principles, and were controlled by that authority, with respect to the jurisdictional question arising in each of those cases as to the defendant.

In Woodruff v. Trapnall, a writ of mandamus was issued to the proper representative of the State of Arkansas to compel him to receive the paper of the Bank of the State of Arkansas in payment of a judgment which the State had recovered against the relator. The bank was wholly owned by the State, and the claim was made under a clause in the charter which had been repealed. Judgment was given against the respondent. The question of jurisdiction does not appear to have been raised. In Curran v. The State of Arkansas, The Bank of the State of Arkansas, and others, it appeared that the bank had become insolvent. A creditor's bill was filed to reach its assets. The objection was taken that the State could not be sued. This court answered that the objection involved a question of local law, and that as the State permitted herself to be sued in her own tribunals, that was conclusive upon the subject. According to the jurisprudence of Texas, suits like this can be maintained against the public officers who appropriately represent her touching the interests involved in the controversy. In the application of this principle there is no difference between the governor of a State and officers of a State of lower grades. In this respect they are upon a footing of equality.

A party by going into a National court does not lose any right or appropriate remedy of which he might have availed himself in the State courts of the same locality. The wise policy of the Constitution gives him a choice of tribunals. In the former he may hope to escape the local influences which sometimes disturb the even flow of justice. And in the regular course of procedure, if the amount involved be large enough, he may have access to this tribunal as the final arbiter of his rights. Upon the grounds of the jurisprudence of both the United States and of Texas we hold this bill well brought as regards the defendants.

It is insisted that the corporation, on behalf of which this suit was instituted, has ceased to exist.

The bill avers that 'The Memphis, El Paso, and Pacific Railroad Company'. . . is 'a corporation created by and existing under certain statutes of the State of Texas hereinafter set forth,' and that within the times limited by the charter and extended by other acts the company 'did all acts and things necessary to the full and complete vesting, securing, and preserving of the franchises, rights, and privileges granted thereby.' The demurrer admits the truth of these averments unless they are inconsistent with the statutes which bear upon the subject. The corporation was created by an act of the legislature of Texas, approved February 4th, 1856. By the first section certain parties are named and created a body politic and corporate, and the general powers inherent in all such bodies are formally given. The second gives the right to construct a railway, commencing on the eastern boundary of the State, between Sulphur Fork and Red River, at the western terminus of the Mississippi, Ouachita, and Red River Railroad, or of the Cairo and Fulton Railroad, and running thence westerly to the Rio Grande, opposite to or near the town of El Paso. The twentieth section declares that no rights shall vest under the charter until a certain amount of stock therein named shall have been subscribed, and the percentage prescribed shall have been paid upon it. This requirement is covered by the averment in the bill that the company had done everything necessary to secure the vesting of all the franchises given to it. We do not understand that there is any controversy on this subject. All the other conditions prescribed, involving the existence of the corporation, are clearly subsequent. They are found in the fourteenth section of the charter, in the first section of the act of February 5th, 1856, and in the third section of the act of February 10th, 1858. To any argument drawn from these provisions there are two conclusive answers:

(1.) There has been no judgment of ouster and dissolution. Without this they are inoperative. To make them effectual they must be grasped and wielded by the proper judicial action.

(2.) The offences and punishment denounced have been condoned and waived by the subsequent action of the legislature. The act of March 20th, 1861; the act for the relief of railroad companies, approved January 11th, 1862; the act for the relief of companies incorporated for purposes of internal improvement, approved February 18th, 1862; and the third section of the 'Act to incorporate the Transcontinental Railroad Company,' of the 27th July, 1870, each and all have that effect. The section last mentioned authorizes the company therein named to 'purchase the rights, franchises, and property of the Memphis, El Paso, and Pacific Railroad Company, heretofore incorporated by this State.' This is a clear affirmation, by implication, of the existence of the corporation, and of the possession of the rights, franchises, and property conferred by its charter. What is implied is as effectual as what is expressed. These considerations are so clearly conclusive, that it is needless to advert more particularly in this connection to the legislation in question, or to pursue the subject further. There is no warrant for the proposition that the corporation had ceased to exist.

The heart of this litigation lies in the immense land grant which is in controversy between the parties. The objections we have considered are only outworks thrown up to prevent the conflict from reaching that point. It is insisted that the rights of the company touching the entire reservation have become forfeited.

The fifteenth section of the charter provides as follows: 'All the vacant lands within eight miles on each side of the extension line of said road, shall be exempt from location or entry, from and after the time when such line shall be designated by survey, recognition, or otherwise. The lands hereby reserved shall be surveyed by said company at their expense, and the alternate or even sections reserved for the use of the State. And it shall be the duty of said company to furnish the district surveyor of each district through which said roadway runs, with a map of the track of said road, together with such field-notes as may be necessary to the proper understanding and designation of the same.'

There are other provisions prescribing various details not necessary to be particularly stated or considered.

A proviso in the seventeenth section declares that no title shall be permanently vested in the company or their assigns for land granted for the grading as contemplated by the act, until twenty-five miles of the road shall have been completed and put in running order. The proviso in the twentieth section of the charter, that no rights shall vest under it until the condition therein prescribed is complied with, has already been considered. Conditions of forfeiture of the lands granted are prescribed in this and subsequent acts. They are found in the fourteenth section of this act; in the first and fourth sections of the supplemental act of the same date; and in the third and fourth sections of the act of February 10th, 1858. These conditions will be considered hereafter.

The act for the relief of internal improvement companies of February 18th, 1862, declared that the time of the continuance of the war between the Confederate States and the United States should not be computed against any internal improvement company in reckoning the period allowed them for the completion of any work they had contracted to do.

The act of January 11th, 1862, for the relief of railroad companies enacted that the failure of any chartered railroad company of the State to complete any part of its road, as required by existing laws, should not operate as a forfeiture of its charter or of the lands to which the company would be entitled, under the provisions of the act entitled 'An act to encourage the construction of railroads in Texas by donations of land,' approved January 30th, 1854, and the several acts supplementary thereto, provided the company should complete such portion of its road was would entitle it to donations of land under existing laws within two years from the close of the war.

The act for the benefit of railroad companies of November 13th, 1866, declared that the grant of sixteen sections of land to the mile to railroad companies theretofore, or there after, constructing railroads in Texas, should be extended under the same restrictions and limitations theretofore provided by law, for ten years after the passage of the act. These several acts are valid.

By an act approved July 27th, 1870, the Southern Transcontinental Railroad Company was incorporated.

It was declared that the object of the company thus created was to construct and establish a railway line and telegraphic communication from the eastern boundary of the State of Texas, 'and thence as near as practicable to the route of the Memphis, El Paso, and Pacific Railroad Company, to, or near, the town of El Paso.' It was enacted that 'the main line of said road shall follow, as near as may be practicable, the old survey of the Memphis and El Paso road.' It was further enacted that 'the said company, hereby incorporated, may purchase the rights, franchises, and property of the Memphis, El Paso, and Pacific Railroad Company, heretofore incorporated by this State,' as before mentioned.

The first section of the ordinance of 1869 declared that all heads of families settled on vacant lands lying within the Memphis and El Paso railroad reserve, should be entitled to receive from the State of Texas eighty acres of land, including the place occupied, upon payment of the expenses of survey and patent.

By the second section it was declared that all the vacant land within the reserve was open to sale to settlers and preemption settlers, and subject to the location of land certificates. The third section declared that the company had forfeited its right to the land, and that certain certificates having been issued to the company and patents issued thereon, it was made the duty of the Attorney-General to institute legal proceedings to have such certificates and patents cancelled.

In November, 1869, the present constitution of Texas was adopted. It was subsequently approved by Congress.

Sections five and seven of this constitution are as follows:

'SECTION 5. All public lands heretofore reserved for the benefit of railroads or railway companies shall hereafter be subject to location and survey by any genuine land certificates.

'SECTION 7. All lands granted to railway companies which have not been alienated by said companies in conformity with the terms of their charter respectively, and the laws of the State under which the grants were made, are hereby declared forfeited to the State for the benefit of the school fund.'

This summary gives a view of the statutory and constitutional provisions necessary to be considered in disposing of the question before us.

On the 20th of June, 1857, the company filed in the land office at Austin surveys showing the line of the road from the eastern boundary of the State to El Paso, which line was officially recognized by the Commissioner of the General Land Office of Texas. By the 1st of March, 1860, the company had surveyed, sectionized, and numbered all the sections and fractional sections of the vacant lands within the reservation, from the eastern boundary of the State to the crossing of the Brazos, of which due returns were made to the commissioner, and by him accepted. By the 10th of May, 1859, the company had marked and designated the central line of the road from the Brazos to the Colorado, and made proper returns to the office of the commissioner, by whom they were accepted. The lands granted to the company thereby became defined and officially recognized as such along the whole extent of their line.

In doing this work the company surveyed, numbered, and mapped each alternate or even section of public lands for two hundred and fifty miles in length, and sixteen miles in width, in behalf of the State of Texas. It was of great benefit to her, and is reported to the receiver to have cost the company more than $100,000.

By consent of parties the bill was amended nune pro tunc in three particulars. The complainant admitted that no land within the reserve had been surveyed, sectionized, or numbered west of the Brazos River, and that no work had been done on the road before or since 1861, except as averred in the bill. He averred that he applied to the General Land Office for the number and names of those who had located certificates other than such as were issued to the company upon lands within the reservation, and that Keuchler, the defendant, answered that the number was very great, amounting to hundreds, and that a list could not be furnished without great time and labor. He averred further that parties were constantly locating certificates and making surveys within the reservation, and that they were allowed a specified time to make their returns, so that it was impossible for him to obtain a full list of such parties.

The company commenced work within one year from the 1st of March, 1856, and before the 1st of March, 1861, had completely graded more than fifty miles of its roadway, beginning at the eastern boundary line of the State and extending west in the direction of El Paso.

We do not understand that up to that time there was a breach of any condition touching the existence of the corporation or its right to the lands within the reservation. Before that time the tracts east of the Brazos covered by the grant were definitely fixed by the surveys which the company had made. The title of the company to those west of the Brazos, though the sections were not designated, was equally valid. The good will of a lease which the landlord is in the habit of renewing is property, and rights growing out of it, whether by contract or otherwise, will be protected and enforced by a court of equity.

The rights of the company west of the Brazos were of a much more substantial character than those which were the subjects of judicial action in the cases cited.

The real estate of a corporation is a distinct thing from its franchises. But the right to acquire and sell real estate is a franchise, and the right to acquire the particular real estate designated in the charter of this company, and here in question, is within that category. It might, therefore, well be donbted whether this right could be taken from the company without an appropriate proceeding instituted for that purpose, and prosecuted to judgment by the State. But the view which we take of the case renders it unnecessary to pursue the subject.

We will recur to the conditions of forfeiture touching the land grant, and consider them irrespective of that point. The provisions to that effect, in the fourteenth section of the charter, are expressly superseded by those in the first section of the supplemental act of February 5th, 1856. The fourth section of that act prescribes a further condition. These provisions again are superseded by the third and fourth sections of the amendatory act of February 10th, 1858. The conditions prescribed by the last-named act are:

(1.) To survey the reserve as far as the Brazos River, within four years from the 1st of March, 1856.

(2.) To run and designate the centre line of the reservation from the Brazos to the Colorado, within fifteen months from the 10th of February, 1858.

(3.) To survey the whole reserve within ten years from February 10th, 1858.

(4.) To have a connection with some road leading to the Mississippi or Gulf of Mexico within ten years from February 10th, 1858.

(5.) That the company shall have finished and in running order at least twenty-five miles of their road within one year after it is connected with certain other roads mentioned in the act, and at least fifty miles every two years thereafter until the road is completed.

(6.) That the right to acquire lands from the State by donation shall cease at the expiration of fifteen years from February 10th, 1858.

The two first conditions were performed within the time prescribed. These points are covered by the averments of the bill. The time limited for the performance of the third and fourth is extended from February 10th, 1868, to June 10th, 1873, by adding the time of the continuance of the war, according to the act of February 18th, 1862, before referred to. When the bill was filed there were no such roads as those mentioned in the fifth condition with which a connection could be formed. The fifteen years limited by the sixth condition expired February 10th, 1873. The period that elapsed during the war is to be added. That extends the time so much further.

The title of the company is therefore unaffected by the breach of any condition annexed to the grant.

But suppose there had been such breaches, as is insisted by the counsel for the appellants, the result must still be the same.

Except as to a small portion of the land in question the legal title is yet in the State. Whatever may be the right of the company it is wholly equitable in its character. With a few exceptions, which have no applicability in this case, the same rules apply in equity to equitable estates as are applied at law to legal estates. They are alike descendible, devisable, alienable, and barrable.

There is wide distinction between a condition precedent, where no title has vested and none is to vest until the condition is performed, and a condition subsequent, operating by way of defeasance. In the former case equity can give no relief. The failure to perform is an inevitable bar. No right can ever vest. The result is very different where the condition is subsequent. There equity will interpose and relieve against the forfeiture upon the principle of compensation, where that principle can be applied, giving damages, if damages should be given, and the proper amount can be ascertained. By the common law a freehold estate could not be created without livery of seizin, and it could not be determined without some act in pais of equal notoriety. Conditions subsequent are not favored in the law, and when they are sought to be enforced in an action, at law, there must have been a re-entry, or something equivalent to it, or the suit must fail. The right to sue at law for the breach is not alienable. The action must be brought by the grantor or some one in privity of blood with him. In Dumpor's Case, it was decided that a condition not to alien without license is finally determined by the first license given.

Here the controlling consideration is, that the performance of all the conditions not performed was prevented by the State herself. By punging into the war, and prosecuting, it, she confessedly rendered it impossible for the company to fulfil during its continuance. This is alleged in the bill, and admitted by the demurrer.

The rule at law is, that if a condition subsequent be possible at the time of making it, and becomes afterwards impossible to be complied with, by the act of God, or the law, or the grantor, the estate having once vested, is not thereby divested, but becomes absolute. The analogy of that rule applied here would blot out these conditions. But this would be harsh and work injustice. Equity will, therefore, not apply the principle to that extent. It will regard the conditions as if no particular time for performance were specified. In such cases the rule is that the performance must be within a reasonable time. We are clear in our conviction that, under the circumstances, a reasonable time for performance had not elapsed when this bill was filed. As the State, by the act of July 27th, 1870, created the Southern Transcontinental Railroad Company, and authorized that company to 'purchase the rights, franchises, and property of the Memphis, El Paso, and Pacific Railroad Company,' it will be but right to allow a reasonable time for that purchase to be made, if such an arrangement can be effected, and for the vendee thereafter to perform all that was incumbent upon the Memphis, El Paso, and Pacific Railroad Company by its charter and the supplementary and amendatory acts. If that arrangement cannot be made, the latter company will have the right to provide otherwise for the fulfilment of its obligations to the State within such time, and thus consummate its inchoate title to the lands within the reservation. Either will be in accordance with the principles of reason and justice, and within the spirit of well-considered adjudications.

Both parties will thus be put in the same situation, as near as may be, as if the breaches had not occurred. Neither will be subjected to any serious hardship. The State, by her own acts, has lost the benefits of an earlier completion of the work. The company has lost the income which it might have enjoyed, and has doubtless been thrown into embarrassments it would have escaped. The circumstances do not all for a severe application of the rules of law upon either side.

Breaches of such conditions may be waived by the grantor expressly or in pais. Such waiver is expressed in the statutes relating to the subject, to which we have referred, except the act creating the Transcontinental Company, and there it exists by the clearest implication.

That the act of incorporation and the land grant here in question, were contracts, is too well settled in this court to require discussion. As such, they were within the protection of that clause of the Constitution of the United States which declares that no State shall pass any law impairing the obligation of contracts. The ordinance of 1869, and the constitution adopted in that year, in so far as they concern the question under consider consideration, are nullities, and may be laid out of view. When a State becomes a party to a contract, as in the case before us, the same rules of law are applied to her as to private persons under like circumstances. When she or her representatives are properly brought into the forum of litigation, neither she nor they can assert any right or immunity as incident to her political sovereignty.

A case more imperatively demanding the exercise of jurisdiction in equity could hardly by imagined than that presented in this bill. Should the interposition invoked be refused, doubtless the reservation would speedily be thatched over with adverse claims. A cloud would not only be thrown upon the title of the company, but the time, litigation, labor, and expense involved in the vindication of its rights, would very greatly lessen the value of the grant and materially delay the progress of the work it was intended to aid. The injury would be irreparable. It is the peculiar function of a court of equity in a case like this to avert such results.

It has been insisted that those holding adverse claims should have been brought into the case as parties. They are too numerous for that to be done. An application was made to one of the defendants for a list of their names, and it was not given. The important questions which have arisen between the appellants and the company can all be properly determined without the presence of other parties than those before us.

The parties referred to are sufficiently represented for the purposes of this litigation by the Governor and the Commissioner of the General Land Office. We feel no difficulty in disposing of the case as it is presented in the record.

There are other points, ably maintained by the learned counsel for the appellants, to which we have not adverted. They are sufficiently answered by what has been said. It would extend this opinion unnecessarily, and could serve no useful purpose, specifically to consider them.

The Circuit Court decided correctly. The decree appealed from is

AFFIRMED.

Mr. Justice HUNT did not hear the argument in this case and did not participate in its decision.

Mr. Justice DAVIS, with whom concurred the CHIEF JUSTICE, dissenting, said:

title: Davis v. Gray/Opinion of the Court


text: Talk:Davis v. Gray/Opinion of the Court

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title: Talk:Davis v. Gray/Opinion of the Court


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Davis v. Gray/Dissent Davis

Mr. Justice DAVIS, with whom concurred the CHIEF JUSTICE, dissenting, said:

I am constrained to enter my dissent to the opinion and judgment of the court in this case, for the reason that this suit, although in form otherwise, is in effect against the State of Texas. The object which it seeks to obtain shows this to be so, which is to deprive the State of the power to dispose, in its own way, of its public lands, and this object, by the decision just rendered, is accomplished. In my judgment the bill should have been dismissed, because the State is exempt from suit at the instance of private persons, and on the face of the bill it is apparent that the State is arraigned as a defendant.

title: Davis v. Gray/Dissent Davis


text: Talk:Davis v. Gray/Dissent Davis

title: Talk:Davis v. Gray/Dissent Davis


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Pierce v. Carskadon

ERROR to the Supreme Court of Appeals of West Virginia; the case being thus:

In August, 1864, one Carskadon brought an action of trespass de bonis asportatis against Pierce, Williams, and others, in one of the State courts of West Virginia, and at the same time sued out an attachment against their real estate; and on the 20th of December, 1864, recovered a judgment against Pierce and Williams for $690.

The attachment which gave the court jurisdiction, was sued out under an act of West Virginia, passed 25th September, 1863, which provided in its first section as follows, viz.:

'When any suit is instituted for any debt, or for damages for breach of any contract, on affidavit stating the amount and justice of the claim, that there is present cause of action therefor; or where it is to recover damages for any wrong, stating a certain sum which, at the least, the affiant believes the plaintiff is entitled to or ought to recover; that the defendant or one of the defendants is not a resident of this State, and that the affiant believes he has estate or debts due him within the county in which the suit is, or that he is sued with a defendant residing therein, the plaintiff may forthwith sue out of the clerk's office an attachment against the estate of the non-resident defendant for the amount so stated.'

The act also provided that when an attachment was returned executed, an order of publication should be made against the defendant unless he had been served with a copy of the attachment, or with a process in the suit; that the right to sue out the attachment might be contested, and that when the court was of opinion that it was issued on false suggestions, or without sufficient cause, it should be abated. That when the attachment was properly sued out and the case was heard upon the merits, if the court was of opinion that the claim of the plaintiff was not established, final judgment should be given for the defendant; but if established, such judgment should be given for the plaintiff, and the court should proceed to dispose of the property attached as provided in the act. The act also provided that if the defendant, against whom the claim was, had not appeared, or been served with a copy of the attachment sixty days before the judgment or decree, the plaintiff should not have the benefit thereof, unless he should give bond with sufficient security, in such penalty as the court should approve, with condition to perform such future order, as might be made upon the appearance of the defendant, and his making a defence.

The attachment sued out in the case was levied on the lands of the defendants, Pierce and Williams; but neither any copy of the attachment nor any process in the suit was served on either of them, nor did either of them appear in the case.

Pursuant to the order of the court made in October, 1864, publication was made for four weeks of the suit, with notice requiring the defendants to appear therein within one month after publication. No appearance being had, and proof of publication being made, the case was, on the 20th of December, 1864, tried before a jury, who assessed against the defendants, Pierce and Williams, the plaintiff's damages at $690. The other defendants were found not guilty of the trespasses alleged. Upon this verdict, judgment was on the same day rendered by the court for the amount of the damages allowed, with interest until paid, and for a sale of the attached real property, subject however to the proviso that before the sale should take place, the plaintiff, or some one for him, should give bond, with sufficient security, in the penalty of $1500, conditioned to perform such future order as might be made upon the appearance of the said defendants and their making defence.

At this time, December 20th, 1864, the act under which the attachment was issued and the above proceedings were had, provided in its twenty-seventh section, as follows:

'If a defendant against whom, on publication, judgment or decree is rendered under any such attachment, or his personal representative shall return to or appear openly in this State, he may, within one year, after a copy of such judgment or decree shall be served on him at the instance of the plaintiff, or within five years from the date of the decree or judgment, if he be not so served, petition to have the proceedings reheard. On giving security for costs, he shall be admitted to make defence against such judgment or decree as if he had appeared in the case before the same was rendered, except that the title of any bon a fide purchaser to any property, real or personal, sold under such attachment, shall not be brought in question or impeached. But this section shall not apply to any case in which the petitioner or his decedent was served with a copy of the attachment, or with process in the suit wherein it issued more than sixty days before the date of the judgment or decree, or to any case in which he appeared and made defence.'

Within one year from the date of the judgment, the defendants did petition the court to allow them a rehearing of the cause, but the court refused to allow their petition to be filed, because the affidavit to the petition did not conform to the provisions of an act of the legislature of West Virginia, passed on the 11th day of February, 1865, amending the twenty-seventh section, above cited, so as to read as follows:

'If a defendant, against whom, on publication, a judgment or decree has been or shall hereafter be rendered in an action or suit it which an attachment has been or may be sued out, and levied, as provided in this chapter, or his personal representatives, shall return to or openly appear in this State, he may, within one year, after a copy of such judgment or decree shall be served on him, at the instance of the plaintiff, or within five years from the date of such judgment or decree, if he be not so served, petition to have the proceedings reheard. Such petition shall be presented to the Circuit Court of the county in which the judgment or decree was rendered, and, unless it be presented on behalf of a corporation, shall state the residence of the defendant at the commencement of the present rebellion, and at the time such judgment or decree was rendered, the State of which he claims to be a citizen, and also his ground of defence against such judgment or decree, and shall be verified by the affidavit of the party presenting the same. The said petition, when not presented on behalf of a corporation, shall be accompanied by the affidavit of such defendant or his personal representative, stating the following facts: First. That such defendant never voluntarily bore arms against the United States, the reorganized government of Virginia, or the State of West Virginia. Second. That such defendant never voluntarily gave aid or comfort to persons engaged in armed hostility against the United States, the reorganized government of Virginia, or the State of West Virginia, by countenancing, counselling, or encouraging them therein. Third. That such defendant never sought, accepted, nor attempted to exercise any office or appointment whatever, civil or military, under any authority or pretended authority hostile to the United States, the reorganized government of Virginia, or the State of West Virginia. Fourth. That such defendant never yielded any voluntary support to any government, or pretended government, power, or constitution, within the United States, hostile or inimical thereto, or hostile or inimical to the reorganized government of Virginia, or the State of West Virginia; provided, nevertheless, that if the judgment or decree to against several defendants, upon a demand founded on contract, the court may order a rehearing and permit defence to be made on behalf of all the said defendants, if the petition be accompanied by the affidavit of any one of them stating the facts above mentioned. If the petitioner claims to be a citizen of this State, he shall also make and file an affidavit that he will support the Constitution of the United States and the constitution of West Virginia, and that he takes such obligation freely and of choice, without any mental reservation or purpose of evasion. Upon the filing of such petition and affidavit, a summons shall be awarded by the said court against the plaintiff or his personal representatives, commanding him to show cause, if any he can, at the next term of such court, why the defendant, or his personal representative, shall not be permitted to make defence to such decree, which summons shall be issued by the clerk of such court, and served upon the plaintiff, or his personal representative, at least thirty days before the return day thereof. Upon the return of such summons, executed, the plaintiff, or his personal representative, may file his own affidavit, or that of any other person, denying any one or more of the facts stated in the affidavit of the defendant, or his personal representative, filed with his petition as aforesaid, and showing wherein such defendant may have done or committed any of the acts mentioned in his said affidavit, and thereupon an issue shall be made by said court and tried by a jury, as to whether the said defendant has been guilty of the acts charged against him in said affidavit filed by the plaintiff, or his personal representative, upon which issue the plaintiff shall have the affirmative. If the jury find that the defendant has been guilty of any of the acts so charged against him, such defendant, his personal representative, and all others, in any way claiming under, by, or through him, shall forever be precluded from appearing in or making defence against such judgment or decree or in any manner questioning the validity thereof; but the court may grant new trials as in other cases.'

To the judgment of the court refusing a rehearing the defendants excepted, and the case was removed to the Supreme Court of Appeals of West Virginia, by a writ of error, upon the question of the invalidity of the said act of February 11th, 1865, because it was repugnant to the Constitution of the United States; the ground of the alleged repugnance being that the act, in depriving the defendants for past misconduct, and without judicial trial, of an existing right, partook of the nature of a bill of pains and penalties, and was subject to the constitutional inhibition against the passage of bills of attainder, under which general designation bills of pains and penalties are included; and, also, that the statute in question, in depriving the defendants of the right they possessed, for acts to which such deprivation was not previously affixed by law as a punishment, came within the inhibition of the Constitution against the passage of an ex post facto law. The Court of Appeals, the highest one in the State in which a decision in the suit could be had, decided in favor of the validity of the act; and the judgment was now brought here for review.

Mr. Caleb Bogess, for the plaintiff in error; Mr. B. Stanton, contra.

Mr. Justice FIELD delivered the opinion of the court.

title: Pierce v. Carskadon


text: Talk:Pierce v. Carskadon

title: Talk:Pierce v. Carskadon


text:
Pierce v. Carskadon/Opinion of the Court

This case is covered in every particular by the decisions of this court in Cummings v. The State of Missouri, and in Ex parte Garland, reported in 4th Wallace. Upon the authority of those decisions the judgment of the Supreme Court of West Virginia must be REVERSED, and the cause remanded for further proceedings; and it is

SO ORDERED.

BRADLEY, J., dissented from the judgment, on the ground that the test oath in question was one which it was competent for the State to exact as a war measure in time of civil war.


text: Talk:Pierce v. Carskadon/Opinion of the Court


text:
Peabody v. Stark

ERROR to the Circuit Court for the Middle District of Tennessee.

Stark brought an action in the court just named against Peabody. collector of internal revenue, to recover back as illegal a tax. The tax complained of as illegal was a reassessment upon the plaintiff as a distiller, in which he was assessed to the amount of 80 per cent. of the producing capacity of his distillery (in pursuance of section 20 of the Internal Revenue Act of July 20th, 1868), though he had not actually made that amount of spirits, and notwithstanding the fact that no copy of the survey of his distillery fixing its producing capacity had been filed with him, or delivered to him, as required by section 10 of that same act.

The section of the internal revenue law thus last referred to requires assessors to make, or cause to be made, surveys of all distilleries registered or intended to be registered, and to estimate and determine their true producing capacity, a written report whereof shall be made in triplicate, signed by the assessor, one copy of which shall be furnished to the distiller, one retained by the assessor, and the other immediately transmitted to the Commissioner of Internal Revenue. It also provides that the commissioner may at any time order a resurvey, the report of which shall be executed in triplicate and deposited as before provided.

On the trial the plaintiffs introduced evidence to show that 400 gallons of spirits not reported by them were lost by leakage, and by being burnt, &c.

The district attorney introduced evidence tending to show that, although the distillers were not furnished with the certified copy of either survey, yet they had actual notice of both.

The judge instructed the jury—

'That if a copy of the survey of the distillery was not delivered to the distillers according to the requirements of section 10 of said act, that they would not be bound by the survey, notwithstanding they might in fact know what the results of it were, and that in this event the government could only exact the tax upon the actual amount of spirits produced, including the 400 gallons destroyed, as aforesaid; to which ruling the United States district attorney then and there excepted.'

Mr. G. H. Williams, Attorney-General, and Mr. C. H. Hill, Assistant Attorney-General, in behalf of the Commissioner of Internal Revenue, who on an affirmance of the judgment would under existing statutes have to pay the amount of it:

The object in providing that the distiller shall have a copy of the report sent to him is in order that if it is erroneous in any respect he may call the attention of the assessor to it, and, if need be, have the distillery resurveyed and the error corrected. But it was never meant to be made a condition essential in order to fix the rights of the government to the 80 per cent. duties given by section 20 of the act; or otherwise than as a matter directory. If the distiller have actual notice, in any way, of the number of gallons at which the capacity of his distillery has been fixed by a survey, this is enough. The giving him a copy of the report of the survey is but one mode of giving him notice at what rate he has been rated. The proof in this case tended to show that he had actual notice of the result of both surveys, though no copies of either were delivered to him.

Messrs. Blair, Dick, Shackelford, and Helm, contra, contended that when a statute commands an act to be done in a certain way, or upon certain terms, or gives a new proceeding, or prescribes the manner and form of this proceeding, the manner and form so prescribed by the statute are not merely directory, but are an essential condition of a right of recovery; and that nothing can dispense with the mandate of the statute.

They also produced a letter from Mr. Josiah Given, deputy commissioner in the office of Internal Revenue, in the Treasury Department, dated July 31st, 1870, in reply to a request of one of the above-named counsel for a copy of the rulings of that office as to the date at which surveys of distilleries take effect. This letter stated—

'That under the 10th section of the act of July 20th, 1868, it has been uniformly held that the distiller is not bound by the survey until a copy of the report thereof, executed as required by said section, is delivered to him, and that assessments must, therefore, be made upon the basis of the survey last delivered to the distiller prior to the period for which the assessment is being made.'

Mr. Justice MILLER delivered the opinion of the court.

title: Peabody v. Stark


text: Talk:Peabody v. Stark

title: Talk:Peabody v. Stark


text:
Peabody v. Stark/Opinion of the Court

The question whether a duty imposed by statute upon a ministerial or executive officer, the performance or non-performance of which affects the rights of others, is merely directory to the officer and only confers on parties injured a right of action against the officer, or on the other hand, is a condition essential to fix the rights of other parties as between themselves, is a very common, but often a very difficult one to decide.

Its decision depends mainly upon a consideration of the nature of the duty thus imposed in its relation to the rights of parties to be affected, but often also upon the proper construction of the language employed in the statute as being chiefly directed to the officer, or as declaratory of a principle governing the rights of parties.

Looking to the statute before us in the former aspect, the duty of depositing the copy of the survey with the distiller, is not in terms imposed upon the assessor, or the Commissioner of Internal Revenue; though the direction that this shall be done is made emphatic by being repeated as to the additional survey, if one shall be made. And while it is a fair inference that it was the duty of the assessor to deposit the copy with the distiller, it was so far an act which could be legally performed by another, that we do not doubt it would have been valid if performed by the commissioner or an agent of his, the survey being duly certified. It can hardly be said, then, that the statute is exclusively directed to the assessor.

The purpose of the requirement of delivering a copy to the distiller, which is manifestly to make certain to him that he will be held liable for a definite number of gallons, at all events, whether his distillery makes it or not, affords an argument of weight, that until he has this official information, a rule so harsh was not to be applied to him.

On the other hand, it is said that this special provision was only intended to secure one mode by which the assessed capacity of his distillery should come to the knowledge of the distiller, and if he is correctly informed from any other source of the number of gallons per day at which that capacity has been fixed by a legal survey, it is all that is necessary to govern his action.

In the absence of a clear conviction on the part of the members of the court on either side of the proposition in which all can freely unite, we incline to adopt the uniform ruling of the office of the internal revenue commissioner, holding that the distiller is not liable under the eighty per cent. clause, until a copy of the survey in which the tax is assessed has been delivered to him as provided in section ten. It is made to appear to us in a very satisfactory manner that such has been the unvarying rule of that office since the act went into effect, and while we do not hold such ruling as in general obligatory upon us, we are content to adopt it in this case for the reason already mentioned, as well as for its obvious fairness to the government and to the distiller.

JUDGMENT AFFIRMED.

title: Peabody v. Stark/Opinion of the Court


text: Talk:Peabody v. Stark/Opinion of the Court


text:
Humphrey v. Pegues

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

On the 16th of December, 1851, the legislature of South Carolina, by 'an act to incorporate the Northeastern Railroad Company,' chartered the corporation now known by that name. This act contained no exemption of the company's property from taxation, and by its terms was to continue in force for fifty years from the ratification thereof.

On the 19th of December, 1855, the same legislature passed another act, entitled 'An act to amend the charter of the Northeastern Railroad Company, and for other purposes.' This act enacted:

'SECTION 1. That the stock of the Northeastern Railroad Company and the real estate that it now owns, or may hereafter acquire, which is connected with or subservient to the works, authorized in the charter of the said company, shall be, and the same is hereby, exempted from all taxation during the continuance of the present charter of the said company.'

Prior to the date of either of these acts, that is to say, on the 19th of December, 1849, the same legislature had, by an act entitled 'An act to charter the Cheraw and Darlington Railroad Company,' incorporated the company of that name. This act, after authorizing the formation of the company and the raising of the stock, provided thus:

'SECTION 5. That for the purpose of organizing and forming this company. . . all the powers, rights, and privileges granted by the charter of the Wilmington and Manchester Railroad Company to that company shall be and are hereby granted to the Cheraw and Darlington Railroad Company,' &c.

The powers, rights, and privileges here referred to as granted by the charter of the Wilmington and Manchester Railroad Company, whose name is above italicized, to that company, did not include any exemption of its property from taxation.

The Cheraw and Darlington Railroad Company thus, as above mentioned, incorporated in 1849, had not up to the 17th of December, 1863, built its road; and on the day and year last mentioned the same legislature amended its charter by the passage of the act which thus enacted:

'SECTION 1. That section 5 of an act entitled 'An act to charter the Cheraw and Darlington Railroad Company,' ratified the 19th day of December, A.D. 1849, be amended so as to read as follows, to wit:

'That all the powers, rights, and privileges granted by the charter of the Northeastern Railroad Company are hereby granted to the Cheraw and Darlington Railroad Company, and subject to the conditions therein contained.'

Soon after this amendatory act of 1863 was passed, the Cheraw and Darlington Railroad, which had been lying dormant since 1849, was built and put in operation.

These different enactments above mentioned being in force, the State officers of counties in South Carolina where the Cheraw and Darlington Railroad was situate, acting under the authority of the legislature of the State, imposed certain taxes on the stock and property of that company, and were proceeding to enforce payment of them, when one Pegues, a stockholder in Mississippi, filed a bill in the court below praying an injunction to restrain the collection. The court granted the injunction, and from this, its action, the county officers appealed. The question was whether (as Pegues, the complainant, contended) the act of December 19th, 1855, 'to amend the charter of the Northeastern Railroad Company,' &c., and exempting its property from taxation, formed a part of its charter when, on the 17th of December, 1863, the privileges granted to that company were conferred on the Cheraw and Darlington company; or whether (as the State of South Carolina contended) the privileges thus conferred were limited to those granted to the Northeastern company by its original charter or act of incorporation, passed in 1851, by which no exemption from taxation was conferred.

Mr. D. H. Chamberlain, for the State officers, appellants, contended that an exemption from taxation was never to be implied; that nothing less than a clear intention on the part of the legislature-an intention expressed in terms which admit no other reasonable construction-would suffice to sustain a privilege so valuable and so far-reaching; that as was shown by the words-'an act to amend the charter of the Northeastern Company'-in the amendatory act of 1855, it was the act of 1851 incorporating the company which constituted its charter; and that when the act of 1863 gave to the Cheraw and Darlington Railroad all the powers, rights, and privileges granted by the charter of the Northeastern Railroad Company, it gave it only the powers, rights, and privileges granted by that act of 1851.

In addition to this, that the original grant of powers, rights, and privileges made to the Cheraw and Darlington road by the section 5 of the act of December 19th, 1849, to charter that road, was 'for the purpose of organizing and forming that company,' and that when this act was amended by substituting the new words contained in the amendatory act of the 17th of December, 1863, granting other privileges-the road not yet being so much as undertaken-the original purpose 'of organizing and forming the company' still remained; and that it was a construction such as, in regard to a law exempting property from taxation, was not to be made, that would extend the interpretation so much further, as the complainant sought to do.

The learned counsel also contended that if this view were not sound, and if the property of the Cheraw and Darlington Railroad were by the act of 1863 exempted, yet the right to repeal or amend any previously existing exemption from taxation was inherent and inextinguishable in the State; that the power of taxation was one of the highest and most vitally necessary powers of sovereignty, and that if one legislature could take it from all subsequent legislatures, government could not go on.

Mr. T. G. Barker, contra.

Mr. Justice HUNT (having quoted the several statutes above given) delivered the opinion of the court.

title: Humphrey v. Pegues


text:
Page:Dictionary of National Biography volume 59.djvu/40

 which he made serious reflections on Cook and his officers. Wales's pamphlet satisfactorily refuted these aspersions, and drew from Forster in the same year a ‘Reply to Mr. Wales's Remarks’ (London, 4to).

In 1776 Wales sailed with Cook in the Resolution on his last voyage. They cleared the Channel on 14 July 1776. Cook was slain at Hawaii in 1779, and the expedition returned in 1780. On the death of Daniel Harris, Wales was appointed mathematical master at Christ's Hospital, a post which he retained till his death. At the commencement of his mastership he found discipline in a very bad state, but by a judicious severity he soon brought affairs to a better pass. He was a man of a kindly disposition, and his pupils became much attached to him.

Wales took great interest in questions of population, and instituted a series of inquiries both in person and by letter into the condition of the country. He found, however, that many people had a strong dislike to any ‘numbering of the people’ from the belief that it was contrary to the injunctions of scripture, and he encountered so much opposition that he became convinced of the impossibility of carrying his researches very far. He published the result of his labours in 1781, under the title ‘An Inquiry into the Present State of the Population in England and Wales’ (London, 8vo), in which he combated the belief then prevalent that population was decreasing. Wales died in London on 29 Dec. 1798. His daughter married Arthur William Trollope [q. v.], who became headmaster of Christ's Hospital in 1799.

Besides the works mentioned, he was author of an ‘Ode to William Pitt,’ London, 1762, fol.; edited ‘Astronomical Observations made during the Voyages of Byron, Wallis, Carteret, and Cook,’ London, 1788, 4to; aided John Douglas (1721–1807) [q. v.] in editing Cook's ‘Journals’ (Egerton MS. 2180, passim); wrote a dissertation on the ‘Achronical Rising of the Pleiades,’ appended to William Vincent's ‘Voyage of Nearchus;’ and assisted Constantine John Phipps, second baron Mulgrave [q. v.], in preparing his account of ‘A Voyage towards the North Pole,’ London, 1774, 4to.

[Gent. Mag. 1798, ii. 1155; Trollope's Hist. of Christ's Hospital, 1834, pp. 95–6; Hutton's Philosophical and Mathematical Dict. 1815; English Cyclopædia, 1857; Notes and Queries, 2nd ser. iv. 242; Allibone's Dict. of Engl. Lit.; Thomson's Hist. of the Royal Soc. App. p. lvi; Nichols's Lit. Anecd. iii. 90; Vincent's Periplus of the Erythræan Sea, 1800, i. 83; Watt's Bibliotheca Brit.]

WALEY, JACOB (1818–1873), legal writer, born in 1818, was elder son of Solomon Jacob Waley (d. 1864) of Stockwell, and afterwards of 22 Devonshire Place, London, by his wife, Rachel Hort. Simon Waley Waley [q. v.] was his younger brother. He was educated at Mr. Neumegen's school at Highgate, and University College, London, and he graduated B.A. at London University in 1839, taking the first place in both mathematics and classics. He was entered as a student at Lincoln's Inn on 3 Nov. 1837, and was called to the bar on 21 Nov. 1842. Only three Jews had been called to the bar previously, (Sir) Francis Henry Goldsmid [q. v.] being the first. Waley practised as an equity draughtsman, and in time became recognised as one of the most learned conveyancers in the profession. Although conveyancers rarely appear before court, Waley was several times summoned in cases of particular difficulty relating to real property. He acted as conveyancing counsel for the Bedford estates, and, in conjunction with Thomas Cooke Wright and C. D. Wright, edited ‘Davidson's Precedents and Forms in Conveyancing’ (London, 1855–65, 5 vols. 8vo). In 1870 he was appointed one of the conveyancing counsel of the court of chancery. In 1867 he was nominated a member of the royal commission to consider the law on the transfer of real property, and he had a large share in framing the report on which was based the lord chancellor's bill passed in 1874.

Notwithstanding his mastery of his own subject, Waley had numerous other interests. He was known as a political economist, acting as examiner for the university of London, and in 1853–4 he was appointed professor of that subject at University College. He held the post until 1865–6, when the press of other work compelled his resignation, and he received the title of emeritus professor. He was also, until his death, joint secretary of the Political Economy Club.

Waley was a prominent member of the Jewish community. In conjunction with Lionel Louis Cohen he organised the London synagogues into a corporate congregational alliance, known as the ‘United Synagogue.’ On the formation of the Anglo-Jewish Association he was chosen the first president, a post which lack of time compelled him later to resign. He was also president of the Jews' orphan asylum and a member of the council of the Jews' college, where he occasionally lectured. He promoted the Hebrew Literary Society, and assisted to organise the Jewish board of


text: Talk:Humphrey v. Pegues

title: Talk:Humphrey v. Pegues


text:
Humphrey v. Pegues/Opinion of the Court

The stockholders of the Cheraw and Darlington Company contend that the act of the 19th of December, 1855, entitled 'An act to amend the charter of the Northeastern Railroad Company,' &c., formed a part of the charter of the Northeastern Company in 1863, when the privileges conferred upon that company were granted to the Cheraw and Darlington Company.

The State contends that the privileges thus granted were limited to those conferred upon the Northeastern by its original charter or act of incorporation, passed in 1851.

All the 'privileges,' as well as powers and rights of the prior company, were granted to the latter. A more important or more comprehensive privilege than a perpetual immunity from taxation can scarcely be imagined. It contains the essential idea of a peculiar benefit or advantage, of a special exemption from a burden falling upon others.

There is nothing in the terms of the statute of 1863 to indicate that the legislature intended to limit the privileges conferred upon the Cheraw Company to those granted to the Northeastern Company by its original act of incorporation, and to exclude the important privileges contained in the amending act. The charter of the Northeastern Company, as it existed in 1863, was based upon the two acts of the legislature, passed in 1851 and 1855, respectively. The first act was entitled an 'act to incorporate' the Northeastern Company. The latter act was entitled 'an act to amend the charter of the Northeastern Company.' A charter, in the sense here used, is an instrument or authority from the sovereign power, bestowing rights or privileges; as it is briefly expressed, it is an act of incorporation. Such was the obvious understanding of the word by the legislature of South Carolina. The first act was expressed as creating the incorporation of the company; the second, using a synonymous expression, purported to amend its charter. The words charter and act of incorporation were used convertibly. Whether it be said that the rights and privileges conferred upon the Northeastern, as they stood in 1863, existed in its charter or were derived from its incorporation amounts to the same thing. We have no doubt that all of them were intended to be granted to the Cheraw Company by the act of that year. The charter or incorporation of 1851 had been amended in 1855, and by an act which purported in its title not to create an original authority, but by amending the original charter to bestow additional powers upon the company. After the passage of the amended act, the Northeastern was, in law, as if it had originally been chartered, with all the rights, powers, and privileges conferred upon it by the act of 1855. Such was the legal effect of the amendment; and such, no doubt, was the understanding of its effect by the legislature of South Carolina, when, in 1863, they conferred all its powers and privileges upon the Cheraw Company. The case shows that from 1849 to 1863 no sufficient inducements had been found to procure the building of the Cheraw road. We are not advised what other powers and privileges were then and there conferred upon it in addition to the exemption we are considering. But this exemption was conferred; an exemption that must have been understood by the least reflecting person as being of immense value to all concerned in the road. The road was soon afterwards built, and has since then been and now is in operation. These facts serve to show-first, that there was, in this instance, the consideration that at any time exists for the granting by the legislature of such privilege to aid the acceptance of the same and the building of the road; and, secondly, the intention of the legislature, by omitting a reference to the original act of incorporation, to grant all the powers and privileges that had been at any time conferred upon the Northeastern Company.

Another question is raised, to wit: That a legislature does not possess the power to grant to a corporation a perpetual immunity from taxation. It is said that the power of taxation is among the highest powers of a sovereign State; that its exercise is a political necessity, without which the State must cease to exist, and that it is not competent for one legislature, by binding its successors, to compass the death of the State. It is too late to raise this question in this court. It has been held that the legislature has the power to bind the State in relinquishing its power to tax a corporation. It has been held that such a provision in the charter of an incorporation constitutes a contract which the State may not subsequently impair. These doctrines have been reiterated and reaffirmed so recently as the year 1871, in an opinion delivered by Mr. Justice Davis in the case of The Wilmington Railroad v. Reid. They must be considered as settled in this court.

JUDGMENT AFFIRMED.

title: Humphrey v. Pegues/Opinion of the Court


text: Talk:Humphrey v. Pegues/Opinion of the Court


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Dickinson v. The Planters' Bank

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

One William Dickinson, a manufacturer of salt at Kanawha, in that part of Virginia now called West Virginia, had an agent selling the salt in Tennessee and thereabouts. By direction of Dickinson, this agent took the proceeds, and with them bought a draft of the Planters' Bank of Tennessee, at Nashville, on the Bank of Virginia, at Richmond; the former bank crediting the latter with the amount. The draft was in this form:

$5224.25.

PLANTERS' BANK OF TENNESSEE, NASHVILLE, NOV. 14, 1861.

Pay to the order of William Dickinson, fifty-two hundred and twenty-four 25/100 dollars.

D. WEAVER, Cashier.

To Cashier of Bank of Virginia, Richmond.

On his way from Nashville to Kanawha, the agent learned that on the 15th of November, that is to say, one day after the date of the draft, Dickinson had died. Accordingly, on arriving, December 6th, at Kanawha, he handed the draft and other papers connected with his agency to Dickinson's son, also named William Dickinson, who, by a will that the father had left in a bank at Lynchburg, Virginia, was appointed executor of the father's estate. These were times of the rebellion, and Lynchburg, Nashville, and Richmond were all within the Confederate lines, having at the time and for some time afterwards communication with each other, while Kanawha, being in West Virginia, was within the lines of the Federal government, and had no intercourse with any of them. Dickinson, the son and executor, was quite desirous to get the money on his draft, but being reputed to be a 'Union man,' could not with safety go to Lynchburg, to get his father's will, or to Richmond, between which and Kanawha, from 1862 till the surrender of the rebel army in 1865, there was no lawful intercourse. He, however, indorsed the check with his own name, identical with that of his father, and by that means sought to negotiate it through a Virginia bank. It being known, however, at the bank to which he applied, that the 'William Dickinson' named as payee, was the father and not the son, and the will not having been yet proved, no negotiation of the draft could be made. Dickinson, the son, then, March, 1864, applied to the Federal headquarters for a pass to get through the Union lines, but was refused; nor could he get any pass till February, 1865, when getting papers from the headquarters of both armies, and having got the will and had it proved, he went to Richmond in the latter part of May, 1865, which the evidence went to show was as soon as he could get there, and indorsing his draft properly, presented it for payment. Payment was refused, the bank having recently become insolvent. He then had the draft protested by a notary, and directed the notary to give notice of the dishonor to the Planters' Bank of Tennessee at Nashville, and that the holder would look to that bank for payment. A notice to the Planters' Bank of Tennessee was accordingly deposited by the notary in in the post-office; but that it was directed to the Planters' Bank of Tennessee at Nashville, Tennessee, was not so clearly shown. The cashier of that bank testified that he received no notice. It was not denied that the Bank of Virginia, at Richmond, had funds during all this time of the Planters' Bank.

Dickinson, as executor of his father's estate, now brought assumpsit in the court below, against the Planters' Bank of Tennessee. The narr contained two counts; the first special on the draft; and the second for money had and received. The bank pleaded the general issue, and on the trial relied apparently in part on the non-intercourse act of July 13th, 1861 (chapter 3), and the President's proclamation of August 16th of the same year. The parties having taken depositions on both sides, 'filed,' as appeared by a recital in the judgment in the case, 'a stipulation in writing with the clerk of that court, waiving a jury, and the cause came on to be tried and determined by the court.'

An act of March 3d, 1865, thus enacts:

'SECTION 4. That issues of fact in civil cases in any Circuit Court of the United States, may be tried and determined by the court without the intervention of a jury, whenever the parties or their attorneys of record file a stipulation in writing with the clerk of the court waiving a jury. 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. The rulings of the court in the cause in the progress of the trial, when excepted to at the time, may be reviewed by the Supreme Court of the United States upon a writ of error or upon appeal, provided the rulings be duly presented by a bill of exceptions. When the finding is special, the review may also extend to the determination of the sufficiency of the facts found to support the judgment.'

The court gave an 'opinion' and subsequently a judgment. They were in these words.

OPINION.

The court, after hearing the testimony and argument of counsel on both sides, is of opinion, and doth declare that the bank check drawn by the Planters' Bank of Tennessee on the Bank of Virginia, at Richmond, on the 14th of November, 1861, was so drawn by the request of the agent of William Dickinson, the plaintiff's testator, and in pursuance of the instructions of said William in his lifetime; that the said contract was not an illegal transaction according to the provisions of the non-intercourse act of July 13th, 1861 (chapter 3), and the proclamation of the President of the 16th of August, 1861, as it was drawn at Nashville on Richmond, both of which were in the lines of the Confederate or rebel government, and no agreement existing that it was to be sent beyond those lines, where intercourse was prohibited; that at the time when said check was drawn, and for several weeks afterwards, there was regular communication by mail and railroad between Richmond and Nashville, and the Planters' Bank drew checks from time to time, until the latter part of February, 1862, for considerable sums of money, which were paid by said bank at Richmond, and that at the time of drawing the check of the 14th November, 1861, and during the whole period of the civil war, and afterwards, the Planters' Bank had funds in the said Bank of Virginia, at Richmond, and that said bank is now indebted to the Planters' Bank of Tennessee in a large sum of money, and that said Bank of Virginia is insolvent. It further appeared to the court that, on the day of the drawing of the check by the Planters' Bank specified in the declaration, a credit was given on their books to the said Bank of Virginia for the amount of said check so drawn.

This court is of opinion, and doth declare that this check, when executed and delivered to the agent of William Dickinson, was an absolute appropriation of so much money in the Bank of Virginia to the holder of the check, to remain there until called for, and could not, therefore, be afterwards withdrawn by the drawers. If the holder of the check chose to transmit the same to the country with which intercourse was prohibited, and by the casualties of war or other accidents, it was rendered difficult or impossible to present the check for payment, and the bank on which it was drawn became insolvent, the drawer of the check having the funds in the Virginia bank would not be responsible for the loss by such insolvency.

This court is also of opinion that there is not sufficient evidence of a notice to the defendant of the demand and protest of the check, which protest was made on the 30th of May, 1865. The cashier of the bank received no notice, as he states in his testimony, and it is not proved that the notice was directed to Nashville, the place of business of the defendant, but only to the Planters' Bank of Tennessee.

The plaintiff's counsel excepted to the opinion and rulings of the court, discharging the defendant from responsibility upon the draft sued on.

The plaintiff further requested the court to find and so decide, that William Dickinson, the owner of this draft, having died in Virginia, on the 15th day of November, 1861, the day after the draft was made and delivered to his agent Creasey, that it made no difference and could not change the responsibility of the party by its being on the 6th of December, afterwards carried to Kanawha, the late residence of William Dickinson. Because if it had been retained in Tennessee and sent directly to Richmond, it could not have been presented and paid only to the legal representative of William Dickinson, deceased. That William Dickinson, the executor, was residing at Kanawha, and the will was in the Lynchburg Bank of Virginia. That he could not prove the will and qualify as executor before he did, and was unable to go to Richmond and have the draft presented and protested before he did, and consequently the plaintiff had a right to recover.

The plaintiff requested the court to decide from the facts and circumstances proved, due notice of the protest was given the defendant. The plaintiff requested the court to decide that the plaintiff under the second count had a right to recover, for so much money had and received by defendant to his use; all of which requests made by the plaintiff the court refused to comply with, but rendered judgment against the plaintiff for costs of suit.

To which action of the court the plaintiff excepts, and tenders this his bill of exceptions, which is signed and sealed by the court, and made a part of the record.

CONNALLY F. TRIGG. [SEAL.]

Final judgment entered May 12th, 1868.

JUDGMENT.

The parties again appeared, by their attorneys, and the said parties, by their attorneys of record, having filed a stipulation in writing with the clerk of this court, waiving a jury, and the cause coming on to be tried and determined by the court, and having heard the evidence and argument of counsel on both sides, the court is of opinion that the issues are in favor of the defendant, and that the defendant did not assume and promise as the plaintiff in declaring has alleged. It is therefore considered by the court that the defendant recover of the plaintiff the costs by it about its suit in this behalf expended; and that ''fi. fa.'' issue for the same.

This judgment was brought here for review.

The record reported what purported to be all the evidence in the case; a large number of depositions, from which the facts as given, supra, pp. 250-252, were derived by the reporter.

Mr. Reverdy Johnson (with whom was Mr. H. B. Cooper), for the plaintiff in error, assuming that the facts stated as above by the reporter, or others like them, and those stated also by the court in its opinion, was the case now before this court, argued that the rulings of the court below were erroneous, and that the judgment should be reversed.

I. Because, under the circumstances, appearing in the record, in the depositions of the witnesses, if the jury believed the evidence-and it was for them to pass upon it-it was impossible for the plaintiff to have presented the check for payment sooner than he did. Now the rule of law in such cases is, that demand is to be made within a reasonable time, and that what is a reasonable time is for the jury, to be decided upon a consideration of all the circumstances.

II. That the judge erred in deciding that if the demand was in time, notice of non-payment was not properly given to the defendant, because the notary's letter containing the protest, was not directed to Nashville, but only to the Planters' Bank of Tennessee. Because—

1st. If the evidence proved only that the notary's letter was directed to the bank generally, and not to Nashville, under the circumstances the jury might have inferred that it reached Nashville in due course.

2d. Because in fact there was evidence in the testimony of the plaintiff and of Johnson, that the notary's letter was directed to the defendant at Nashville.

Mr. Conway Robinson, contra:

The trial must be taken to have been under the act of the 3d of March, 1865, and the finding of the court upon the facts being general, its finding has the same effect as the verdict of a jury. When there are no rulings in the progress of the trial, which can be reviewed, the finding of the court stands like a verdict; and the judgment on the finding stands like the judgment on a verdict. There being in the progress of the trial,' no rulings of the court-none excepted to at the time,'-none shown to be erroneous, the judgment on a general finding, like the judgment on a general verdict, must be affirmed. Such is the case here. 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 defendant when they should have found for the plaintiff. Clearly, it is so as to all that follows these words on p. 254:

'The plaintiff further requested the court to find and so decide.'

And as to all that follows these words on the same page:

'The plaintiff requested the court to decide from the facts and circumstances proven.'

Mr. Justice STRONG delivered the opinion of the court.

title: Dickinson v. The Planters' Bank


text: Talk:Dickinson v. The Planters' Bank

title: Talk:Dickinson v. The Planters' Bank


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Dickinson v. The Planters' Bank/Opinion of the Court

It is very clear that in this case there was no special finding of facts upon which any judgment for the plaintiff could have been rendered. The suit was an action to recover the amount of a check dated November 14th, 1861, drawn by the defandants in error upon the Bank of Virginia, at Richmond, and payable to the order of the plaintiff's testator. To the declaration the defendants pleaded the general issue, and the parties, by written stipulation filed with the clerk of the court, waived a jury. It is true that no such stipulation has been sent up with the record, but in the judgment it is recited that such a one was made and filed. We must, therefore, hold that the issue was tried by the court under the act of March 3d, 1865, which gives to the finding of the court upon the facts (which finding may be either general or special), the same effect as the verdict of a jury. It is, however, only when the finding is special, that the review of this court can extend to the determination of the sufficiency of the facts found to support the judgment.

Here the record as returned contains what is stated to have been all the evidence in the cause, but the court has not found what the evidence proves, nor any ultimate facts except that stated in the judgment, 'that the defendant did not assume and promise as the plaintiff in declaring has alleged.' Some facts indeed are stated in the opinion of the court, that seem to have accompanied the judgment, but they are not stated as a special finding. They are rather advanced as reasons why the judge came to the conclusion that the alleged promise of the defendants had not been proved. It is impossible to regard anything that appears in this case as equivalent to a special verdict. Plainly to a recovery by the plaintiff it was indispensable that the check drawn in favor of his testator had been presented for payment in a reasonable time, or that there had been a sufficient excuse for non-presentation, and that notice of its dishonor had been given duly to the drawers. These were questions of fact submitted for determination to the court. But it nowhere appears in the finding, when, if ever, the check was presented, or if presentation was delayed what circumstances caused the delay, or whether the delay was reasonable or unreasonable. Nor is it found what notice, if any, was given to the defendants of the dishonor of the check. So far as anything appears, it is in the opinion of the court, which was that 'there was no sufficient notice of the demand and protest of the check, which protest was made on the 30th of May, 1865.'

We cannot, therefore, inquire whether the evidence as detailed by the witnesses was sufficient, under the circumstances, to justify a finding that the presentation and demand were made in a reasonable time, or whether it might have been inferred that notice of non-payment was duly given.

But though the finding was general, any rulings of the court in the progress of the trial, if excepted to at the time and duly presented by bills of exceptions, may be reviewed by us. This is provided by the act of 1865. Manifestly, however, the rulings thus subject to review are decisions of law, not findings of fact. Some requests appear to have been submitted to the court to find certain facts, which were refused. They are no more the subject of exception and review than would be a request to a jury to find in a particular manner, and a refusal by the jury so to find. One request also was that the court should decide that the plaintiff had a right to recover under the second count of the declaration, for money had and received. This also was refused, and so far as we can see, very properly. The record presents nothing which would have justified such a decision. There is nothing else in the case that requires notice.

JUDGMENT AFFIRMED.


text: Talk:Dickinson v. The Planters' Bank/Opinion of the Court


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Knickerbocker Insurance Company v. Comstock

On motion to dismiss a writ of error to the Circuit Court for the Northern District of Illinois; the case being thus:

The Bankrupt Act of 1867, which by its terms applies to all moneyed, business, or commercial corporations as well as to individuals, gives to the District Courts of the United States original jurisdiction in all matters and proceedings in bankruptcy. It enacts by its—

'SECTION 2. That the several Circuit Courts of the United States within and for the districts where the proceedings in bankruptcy shall be pending, shall have a general superintendence and jurisdiction of all cases and questions arising under this act; and, except when special provision is otherwise made, may upon bill, petition, or other proper process, of any party aggrieved, hear and determine the case as in a court of equity.

'Said Circuit Courts shall also have concurrent jurisdiction with the District Courts of the same district, of all suits at law or in equity which may or shall be brought by the assignee in bankruptcy against any person claiming an adverse interest, or by such person against such assignee, touching any property or rights of property of said bankrupt transferable to or vested in such assignee.'

A subsequent section, the 41st, after referring to the return day of the summons to the alleged bankrupt, enacts:

'That on such return day or adjourned day. . . the court shall proceed summarily to hear the allegations of the petitioner and debtor, and may adjourn the proceedings from time to time on good cause shown; and shall, if the debtor on the same day so demand in writing, order a trial by jury at the first term of the court at which a jury shall be in attendance, to ascertain the facts of such alleged bankruptcy; and if upon such hearing or trial the debtor proves to the satisfaction of the court, or the jury (as the case may be), that the facts set forth in the petition are not true, or that the debtor has paid and satisfied all liens upon his property (in case the existence of such liens were the sole ground of the proceeding), the proceeding shall be dismissed and the respondent shall recover his costs.'

The act further provides, by sections 8 and 9, as follows:

'SECTION 8. That appeals may be taken from the District to the Circuit Courts in all cases in equity, and writs of error may be allowed to said Circuit Courts from said District Courts in cases at law under the jurisdiction created by this act, when the debt or damages claimed amount to more than $500; and any supposed creditor whose claim is wholly or in part rejected, or an assignee who is dissatisfied with the allowance of a claim may appeal from the decision of the District Court to the Circuit Court from the same district; but no appeal shall be allowed in any case from the District to the Circuit Court unless it is claimed and notice given thereof to the clerk of the District Court to be entered with the record of the proceedings, and also to the assignee or creditor, as the case may be, or to the defeated party in equity within ten days after the entry of the decree or decision appealed from.

'The appeal shall be entered at the term of the Circuit Court which shall be first held within and for the district next after the expiration of ten days from the time of claiming the same. But if the appellant in writing waives his appeal before any decision thereon, proceedings may be had in the District Court as if no appeal had been taken, and no appeal shall be allowed unless the appellant at the time of claiming the same shall give bond in the manner now required by law in cases of such appeals.

'No writ of error shall be allowed unless the party claiming it shall comply with the statutes regulating the granting of such writs.

'SECTION 9. In cases arising under this act no appeal or writ of error shall be allowed in any case from the Circuit Courts to the Supreme Court of the United States, unless the matter in dispute in such case shall exceed $2000.'

These enactments being in force, certain persons presented a petition in the District Court for the Northern District of Illinois, setting forth, in conformity with formal requirements of the act, that the Knickerbocker Insurance Company of Chicago owed debts to an amount exceeding $300, and that their espective demands exceeded $250, and had made fraudulent preferences. Among these persons were Allen & Mackey, who set forth that the company was indebted to them in the sum of $2500 under a policy of insurance and had made fraudulent preferences. They prayed, along with other creditors, that the company might be decreed bankrupt.

The company denied the allegations both of debt and acts of bankruptcy, and demanded in writing a trial by jury. On the trial, which was had in regular common-law way of a trial by jury, the company excepted to the admission of several items of evidence which the court, against its objection, had received, and also to the charge of the court. Verdict and judgment having been given against the company, the cause was removed by writ of error to the Circuit Court for the district. The company assigned errors there in a formal way, but when the case came on to be heard, the Circuit Court, without any consideration or examination of the exceptions taken or errors assigned, dismissed it for want of jurisdiction. Thereupon the company took a writ of error to this court.

Mr. Thomas Dent, in support of the motion to dismiss the writ of error:

The only jurisdiction which the Circuit Court could have had in the case arose under the 2d section of the Bankrupt Act. That section provides abundantly for the case under consideration, not by allowing a writ of error, but by giving the Circuit Court a final superintendence. The insurance company should have sought relief under that section. The proceeding by writ of error was improper, and was rightly dismissed by the court below for want of jurisdiction. But if it were not so, no appeal or writ of error lies to this court from the action of the Circuit Court.

1. The adjudication by the District Court did not determine that a debt of $2500, or, in other words, a debt of more than $500 was due the creditor. A proceeding in bankruptcy is not a proceeding to determine the amount of any particular debt or claim, but is a proceeding taken by some one who has a demand provable under the act to the amount of $250; and the three inquiries presented to the court under such a petition are:

1st. Whether the petitioner has a claim to the amount of $250, provable under the act.

2d. Whether the debtor owes debts provable under the act exceeding $300; and, finally,

3d. Whether the alleged act or acts of bankruptcy have been committed by the debtor.

The chief one of these inquiries is almost always that last named. The adjudication finally made does not determine that there is a debt to the amount of $500. The amount of $500 cannot be said to be directly involved. The claim of Allen & Mackey was not fixed by the decree of the District Court. It was thus not a final judgment. All know that claims against a bankrupt's estate are (under the 22d section of the act) proved before the register and are then forwarded to the assignee, who then compares the proofs with what the bankrupt's books disclose. The court may, however, reexamine them. Hence it would be a misnomer to characterize the petition for involuntary bankruptcy as 'a case at law. . . wherein the debt or damages claimed amount to more than $500.' It bears no resemblance at all, in form, to such a proceeding; and not much to one in equity. The words, then, of the 8th section do not sanction a writ of error in this case.

The cases in which provision is made by the 8th section of the Bankrupt Act for writs of error, are the cases at law referred to in what is given above as the second clause of the 2d section.

Messrs. Story and Roby, contra:

Section 9 of the Bankrupt Act provides:

'That in cases arising under this act, no appeal or writ of error shall be allowed in any case from the Circuit Courts to the Supreme Court of the United States, unless the matter in dispute in such case shall exceed $2000.'Though negatively stated in the act, this is a solemn legislative affirmation, that an appeal or writ of error shall be allowed in all cases where the amount in controversy exceeds the sum named.

The supervisory jurisdiction of the circuit judge, under the second section, only exists 'in cases where special provision is not otherwise made,' in the Bankrupt Act. Now, this court has said that special provision is otherwise made, within the meaning of that exception, when the case is tried by a jury at a stated term of the District Court, under the provisions of the 41st section. And Miller, J., of this court, sitting as presiding judge of the Circuit Court, entertained jurisdiction of a case removed from the District Court by writ of error sued out by the petitioning creditors, and reversed the judgment of the District Court, dismissing the petition with costs.

It is proper to observe that there are only two cases provided for in the Bankrupt Act, where a jury trial may be had:

1st. Under the 41st section, where a party resists the proceeding to have him adjudged a bankrupt, and demands a jury trial, in writing, when the court is required 'to order a trial by jury at the first term of the court at which a jury shall be in attendance.'

2d. Under section 31st, when creditors oppose the discharge, in which case the court may 'order any question of fact so presented to be tried at a stated session of the District Court.'

Congress has thus carefully provided, in every case where a jury trial is allowed, that it shall be had at a stated term of the court, where it must be conducted according to the due course of the common law. All such decisions are reviewable by writ of error.

The judgment of the District Court was a judgment for $2500, and it was a final judgment.

It is averred in the petition of Allen & Mackey, under which the trial was had in the District Court, that the company was indebted to them in the sum of $2500 upon a policy of insurance for that sum. The existence and validity of this claim, was specially denied by plaintiff in error, was one of the principal questions at issue on the trial, and the verdict of the jury found this issue against the company.

On this trial the petitioners could have proved no other debt, no other act of bankruptcy, than the one alleged; nor could the jury have found any verdict except it was responsive to both these issues. When both found for petitioners, they establish the existence and validity of this debt of $2500, as well as the acts of bankruptcy alleged.

This judgment when rendered is final and conclusive upon all parties until reversed.

It was held by this court at an early day, that the finding and judgment declaring a defendant bankrupt is final and conclusive as to the petitioner's claim, and cannot be collaterally attacked, even by other creditors. All parties are bound by it as by a decree in rem.

The judgment in question is, therefore, as much a judgment against the company for $2500 as if rendered in an ordinary action upon the policy, and is clearly reviewable under the general appellate jurisdiction vested in this court, independent of the provisions of the Bankrupt Act.

Mr. Justice CLIFFORD delivered the opinion of the court.


text: Talk:Knickerbocker Insurance Company v. Comstock