text:
Davis v. Crouch

ERROR to the Supreme Court of Appeals of the State of Virginia.

Hector Davis died during the late civil war, at Richmond, Va., leaving a will executed March 21, 1859, as follows:--

'RICHMOND, March 21, 1859.

'1, Hector Davis, of city of Richmond, State of Virginia, do hereby make this my last will and testament: Item 1st, I give to my nieces, Jannie, Sally, and Bettie Davis, the sum of $15,000, to be equally divided between them. I give to a servant-woman, Ann, of mine, her freedom, to be removed out of the State, with her four children, Jannie, Audubon, and Victoria, and after their removal the sum of $20,000, she, Ann, to have the interest on one-fifth of the amount, and the interest of the balance to be expended in raising the said children till they become of age; then the principal to be given them. I wish said amount to be invested in State stock by my executors, and applied as aforesaid.

'I give my nephew, R. D. James, of Goochland, the sum of $5,000. Whatever balance I may be worth, I want given to my sister, Ann Crouch, and her children. I appoint R. D. James and Franklin Matthews my executors to t is my last will and testament.

'As witness my hand and seal.

'HECTOR DAVIS.

'Witnesses: B. W. ELMORE.

S. N. DAVIS.'

This will was admitted to probate in the Circuit Court of the city of Richmond, March 13, 1863, when James alone qualified as executor. The servant-woman Ann and her children are the present plaintiffs in error, and are known in the pleadings as Ann Davis, Jannie Davis, Audubon Davis, Victoria Davis, and Matilda Davis. They were removed at some time to Philadelphia, but whether before or after the death of the testator, does not appear, though they seem to have been there during the war

The estate was large, consisting of real property, slaves, bank and other stocks, a small amount of Confederate bonds, debts due the testator, and some furniture. All the parties interested in the settlement of the estate resided in the Confederate States during the war except Ann Davis and her children.

The personal property, exclusive of debts due the estate, was valued at $91,020. Feb. 20, 1864, leave was granted the executor by that court, upon his petition therefor, to invest the cash on hand belonging to the estate in interest-bearing bonds or certificates of the Confederate States, or of the State of Virginia, or any other sufficient bonds or securities in that State. Under this order he invested, during the months of April, July, and November of that year, $33,508.82 of Confederate currency in Confederate bonds. A part of the slaves were sold, but nearly all the remainder of the personal and real property, except the debts, was retained during the war in the condition it was left by the testator at his death.

At the close of the war, proceedings were instituted in the Chancery or Circuit Court of the city of Richmond against the executor by the residuary legatees, looking toward a settlement of the estate; and, Nov. 9, 1865, the executor filed in that court a bill in chancery against all the legatees, including Ann Davis and her children, to have the whole estate settled up and distributed among the parties entitled thereto. In these proceedings the executor was ordered to render an account of his transactions before one of the commissioners of the court, who was directed to take an account of all the assets belonging to the estate, and of all claims due by the same. A report was filed by the commissioner, Feb. 16, 1868, to which exceptions were taken both by the executor and the residuary legatees; and, May 19, 1869, the report was recommitted to the commissioner, with the exceptions, for further examination, and a restatement of the accounts, if necessary. Nov. 16, 1869, Ann Davis and her children appeared, and, by leave of the court, filed an answer to the bill of the executor, in which they claimed their full rights, and particularly objected to the investments in Confederate bonds, as unauthorized and illegal, so far as they were concerned. A second report was filed by the commissioner, May 4, 1870, from which, with that of 1868, it appeared that the debts owing by the estate amounted to about $23,000; that there was in the hands of the executor United States currency to the amount of $14,188.54; that the estimated value of the real estate was $15,435; that the estimated value of Virginia State stock and furniture was $1,524; and that there were also in the hands of the executor debts due the estate, marked 'good' or 'doubtful,' of the nominal amount of $40,000 and more. In stating the account, the executor was allowed a credit for his investments in Confederate bonds. Many exceptions were filed to the report by the residuary legatees, and, among others, because the executor was credited with the amount of these investments, and because he had not been 'charged with every debt reported by him 'good' and every debt reported by him 'doubtful,' unless he had obtained judgments upon them, because it was his duty to have obtained judgments against all who did not pay and were not deemed insolvent.'

At the hearing in the Circuit Court both these exceptions wer overruled, and a decree entered confirming the report, with some modifications. From this decree Ann Davis and the residuary legatees took an appeal to the Supreme Court of Appeals of the State, where the following judgment was entered April 22, 1873:--

'This day came again the parties by their counsel, and the court, having maturely considered the transcript of the record of the decree aforesaid, and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the said Chancery Court erred in overruling the appellant's fifteenth exception to the report of Commissioner Evans; instead of doing which, the said court ought to have recommitted the said report, as to the matter of the exception, to a commissioner of the court, with instructions to make further inquiry, and report as to the debts of the estate of Hector Davis at the time of his death, by persons residing in the State; whether any of said debts, and which of them reported as worthless or doubtful, are now available, or might have been collected or secured by lien upon real estate or otherwise, or by suits instituted since the death of the testator, and as to any other matters connected with said debts which the said commissioner might deem material, or concerning which either of the parties might require him to make inquiry and report; but the court is further of opinion that there is no other error in the said decree than as aforesaid. Therefore, it is decreed and ordered that so much of the said decree as is above declared to be erroneous be reversed and annulled, and the residue thereof affirmed; and that the appellee, R. D. James, pay to the appellants their costs by them expended in the prosecution of their appeal aforesaid here. And it is ordered that this cause be remanded to the said Chancery Court for further proceedings to be had therein, in conformity with the foregoing opinion and decree, which is ordered to be certified to the said Chancery Court of the city of Richmond.'

This judgment has been brought here by Ann Davis and her children upon a writ of error, and the executor now moves to dismiss the writ, because the judgment of the Court of Appeals is not the final judgment or decree in the suit.

Mr. J. Randolph Tucker for the plaintiffs in error.

Mr. Conway Robinson, contra.

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

title: Davis v. Crouch


text: Talk:Davis v. Crouch

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

title: Talk:Davis v. Crouch


text:
Davis v. Crouch/Opinion of the Court

Our jurisdiction upon writs of error to State courts is confined to the final judgment or decree in a suit in the highest court in which a decision in the suit can be had. Rev. Stat. 709. This, we think, is not such a judgment. It decides some of the questions involved in the controversy between the parties, but the suit itself has been sent back to the Circuit Court for further proceedings, in conformity to the opinion filed with the record. In short, the judgment is one of reversal only, which, as we have uniformly held, is not final judgment in the suit. McComb v. Commissioners, 91 U.S. 1; Parcels v. Johnson, 20 Wall. 654; Tracy v. Holcomb, 24 How. 427. After the further proceedings which have been ordered in the Circuit Court, the suit may be again taken to the Court of Appeals, and another judgment rendered there.

The object of the parties is to settle and distribute the estate of the testator under the direction of the court. The plaintiffs in error are only interested in securing the payment of their legacy. A statement of the accounts of the executor, upon the principles settled by the Court of Appeals, may produce a fund sufficient to satisfy them. The only question upon which our jurisdiction can be invoked arises out of the decision as to the liability of the executor to account for his investments in Confederate securities. As to this, the present plaintiffs in error, having been non-residents of the Confederate territory during the war, occupy a different position from the other parties; and, until the suit has been finally disposed of in the State courts, the fund ascertained, and the results of a decree ordering distribution known, we cannot tell whether they will be injuriously affected by the errors now complained of. They cannot bring the case here for the benefit of the other parties interested in the estate, except so far as the relief granted to them may indirectly operate to the advantage of the others. If in the end, upon the distribution of the estate under the principles of accounting as now established, they shall not be able to obtain payment of the amount due them, the case may be again taken to the Court of Appeals upon the future decree of the Circuit Court, and from there here, if necessary. Whether their interest in the convertible value of the Confederate currency invested in Confederate bonds for the purchase of State stock is sufficient to justify them in doing so, will be a matter for them to determine, after the final decree shall have been rendered.

In the present condition of the suit, however, we are compelled to dismiss the writ for want of jurisdiction.

Writ dismissed.

title: Davis v. Crouch/Opinion of the Court


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


text:
The Edith

APPEAL from the Circuit Court of the United States for the Southern District of New York.

In July, 1870, Buckman & Co., having done work and furnished materials amounting to $3,597.37 in repairing the 'Edith,' while she was lying in navigable waters in her home port of New York, claimed a lien on the ship for materials and repairs, under an act of the State of New York, entitled 'An Act to provide for the collection of demands against ships and vessels,' passed April 24, 1862. Acts of 1862, p. 456. The requisite notice was filed the twenty-seventh day of July, 1870, a few days after the vessel had left that port. Some time after her return, the precise period not appearing, proceedings were instituted by the firm, and an attachment was issued to the sheriff of the city and county of New York, who, after seizing her, discharged her on a satisfactory bond for the claim having been given on behalf of the owner. On the first day of April, 1871, she was libelled in the District Court of the United States, sitting in admiralty, and sold under a decree rendered on the 8th of the following month. After satisfying the decree and subsequent costs, there remained $31,176.82 in the registry of the court. On the 17th of the latter month, the firm filed their petition in that court, praying that so much of the fund as was necessary be applied to the payment of the amount so due them, which they claimed was, at the time it accrued, a lien on the 'Edith,' she being a domestic vessel belonging to the port of New York. At the time of filing the petition, a suit by the firm on the bond, which had been given to release her from the attachment, was pending in the State court.

The petition was resisted by Sedgwick, the assignee in bankruptcy of the owner of the 'Edith,' and by Tyler. To the latter more than the amount of the fund was then due from the owner, who had executed a mortgage therefor on three-fourths of the vessel, Jan. 11, 1870. The instrument was recorded the same day in the New York custom-house, and a copy of it filed in the office of the register of the city and county of New York. There was also a prior mortgage on one-half of the vessel.

The District Court decided that Buckman & Co. had not a lien on the ship, nor any title to such fund as between them and the assignee in bankruptcy and the mortgagees.

The petition of Buckman & Co. was dismissed; and they appealed to the Circuit Court of the United States for that district, whre a decree of affirmance was passed. They then appealed to this court.

Mr. F. A. Wilcox for the appellants.

Mr. E. P. Wheeler, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

title: The Edith


text: Talk:The Edith

title: Talk:The Edith


text:
The Edith/Opinion of the Court

Assuming that, by virtue of the provisions of the statute of New York, of April 24, 1862, 4 Gen. Stat. 632, the appellants had a lien upon the ship for the repairs made and materials furnished by them, it is a vi al question whether that lien remained in existence when the ship was sold on the eighth day of May, 1871. If it had expired, or if it had been discharged before that day, it is useless to examine the other questions raised in the case; for, however they might be determined, the decree made in the court below must necessarily be affirmed.

The repairs having been made upon a domestic vessel in her home port, there was no lien for them by the maritime law, and, therefore, whatever right the appellants had to a lien is that which was given to them by the laws of the State. The statute undoubtedly gives a lien, but not one of unlimited duration. The first section declares that debts contracted for work done or materials furnished in the State, for repairing sea-going or ocean-bound vessels, shall be a lien upon such vessels, and be preferred to all other liens thereon, except mariners' wages. But the second section declares that 'such debt shall cease to be a lien at the expiration of six months after the said debt was contracted, unless at the time when said six months shall expire such ship or vessel shall be absent from the port at which such debt was contracted, in which case the said lien shall continue until the expiration of ten days after such ship or vessel shall next return to said port.

The repairs in this case were made upon the ship in the month of July, 1870, and on or before the 22d, for the ship cleared on that day, and sailed from the port a day or two afterwards. The lien, therefore, expired in January, 1871, unless the ship was then absent from the port of New York. If she was then absent, the lien expired at the end of ten days after her next return. It does not appear in the record exactly at what time she did return; but, in the petition of the appellants for an appeal to this court, it is averred that she was libelled in the southern district of New York, at the suit of another party, on the 1st of April, 1871, was duly attached, and was sold by virtue of a decree obtained in that case. It is the proceeds of that sale, made May 8, 1871, which are now in the registry of the District Court, and the petition of the appellants for payment out of the proceeds was not presented until May 17. How, then, can it be maintained that the statutory lien for the debt had not expired? It is argued the presumption is that the ten days next after the return of the ship had not elapsed when the appellants filed their petition. Were it possible that any such presumption could be accepted, it would be a presumption of fact, and there is quite enough in the case to overcome it. The ship was libelled in admiralty, as we have noticed, on the 1st of April, 1871. She was duly seized, a decree against her was made, and under it she was sold on the 8th of May. It is hardly possible that the seizure, decree, and sale could have been made within ten days. It could not have been, if in accordance with the usual course of admiralty practice. As the seizure was made in the southern district of New York, it would be an inadmissible presumption that the ship had not returned to the port of New York more than ten days prior to the sale, or certainly more than ten days prior to the 17th of May, when the appellants filed their petition. And this is not all. The evidence shows that, after the return of the ship, the appellants caused an attachment to be issued out of the Supreme Court of New York, in virtue of which the sheriff of the city and county seized the ship, and a satisfactory bond was given, as allowed by the statute of the State, and the ship was discharged. This must have been before the marshal had taken the ship into custody under the process of the Admiralty Court. The sheriff could not have attached her after the marshal's seizure. It is reasonably clear, therefore, that she had returned to the port of New York more than ten days before she was sold. This is the result of affirmative proof.

But, were there no such proof, the burden of showing the contrary would rest upon the a pellants. Six months having expired after the repairs were made to the ship, they had no lien, unless the ship was absent from the port at the expiration of that period, and then only during ten days after her next return. The lien during those ten days was a special privilege given to them by statute,-an exceptional right. Hence, it was incumbent upon them to show that such a right existed, and, by proof, to bring themselves within the exception. This is always the rule when a party claims a peculiar right given by a statute,-a right not common to all, and which is given only when a prescribed state of facts shall exist. Such proof the appellants have not adduced, and, therefore, they have failed to show that their statutory lien had not expired before they presented their petition for payment, and even before the ship was sold.

And were this not so, still, on the facts of the case as exhibited by the record, it must be held that the lien was discharged.

It is almost superfluous to remark, that whatever lien the appellants ever had, they held it subject to all the provisions of the statute which gave it to them. They sued out an attachment against the ship, after her return to New York, for the recovery of the claim they now set up. The ship was seized by the sheriff of the city and county, and, a satisfactory bond having been given according to the provisions of the lien law, the ship was discharged from the custody of the sheriff, and from the attachment. Upon that bond a suit has been brought, which is now pending. The effect of such an attachment and bond is plainly declared by the statute. The twelfth section enacts, that, 'upon such bond being executed and delivered to such attaching creditor or his attorney,. . . no further proceedings against the said vessel so seized shall be had under the provisions of this title, founded upon any demand secured by such bond.' The bond is thus made a substitute for the lien, and its purpose and effect are to work a discharge of the vessel. It matters not that the statutory provisions for enforcing the lien have been adjudged invalid, because beyond the power of the State legislature. If they are invalid, it may be doubted whether all the provisions purporting to give a lien are not also invalid, because inseparable from the prescribed means of enforcing it. But without deciding that, we may remark, that clearly the State had power to enact that the lien it created should terminate, if a bond was given in place of the vessel; and the creditor claiming the lien must take it, subject to the conditions imposed.

It need hardly be added, that though a proceeding in rem and a petition for payment of a claim out of proceeds of a sale remaining in the registry are distinct things,-the former proceeding on the ground of a lien,-yet no one except an owner is entitled to payment out of the registry, unless he has a lien upon the fund therein. The court can marshal the fund only between lien-holders and owners.

Decree affirmed.

title: The Edith/Opinion of the Court


text: Talk:The Edith/Opinion of the Court

title: Talk:The Edith/Opinion of the Court


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Hyde v. Woods

ERROR to the Circuit Court of the United States for the District of California.

The facts are stated in the opinion of the court.

Mr. Edward B. Merrill for the plaintiff in error.

No counsel appeared for the defendant in error.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Hyde v. Woods


text: Talk:Hyde v. Woods

title: Talk:Hyde v. Woods


text:
Hyde v. Woods/Opinion of the Court

The San Francisco Stock and Exchange Board is a voluntary association of business purposes, organized in 1862, in that city. The membership is elective, with certain provisions for a right to sell and assign the seat, subject to an election of the purchasing member by the board. This is generally done, unless special reasons appear to the contrary; and the result is, that, as the number of members is limited, the right to a seat at the board has a moneyed value. When a member fails to perform his contracts, or becomes insolvent, he can no longer be a member of the board, until he resumes payment; but his seat may be held for his benefit, or for that of his creditors, among the other members of the board.

Art. 15 of the constitution of the board provides that, 'in sales of seats for account of delinquent members, the proceeds shall be applied to the benefit of the members of this board exclusive of outside creditors, unless there shall be a balance after payment of the claims of members in full.'

Thomas W. Fenn, who became a member of this board Oct. 21, 1871, was declared a bankrupt Oct. 1, 1872, and plaintiff in error was appointed his assignee. On the twenty-fourth day of August preceding, Fenn became a delinquent, by failing to fulfil his contracts with members of the board, and thereupon made and delivered to defendants in error an assignment of his seat in said board, with authority to sell the same to the best advantage, and apply the proceeds of sale to the payment of all debts due from him to the members of said board. They did sell it for $10,000; the purchaser was duly elected and installed, and the money paid to creditors, who were members of the board, including $2,973.30 to defendants.

Upon these facts, found by the Circuit Court, sitting without a jury, the counsel for plaintiff asks a reversal of the judgment of that court in favor of defendants, on the ground that the assignment by Fenn to the defendants, and their receipt and disbursement of the $10,000, were preferences within the meaning of the bankrupt law, and that they are, therefore, liable to him as assignee for the amount received.

There can be no doubt that the incorporeal right which Fenn had to this seat when he became bankrupt was property, and the sum realized by the assignees from its sale proves that it was valuable property. Nor do we think there can be any reason to doubt that, if he had made no such assignment, it would have passed, subject to the rules of the stock board, to his assignee in bankruptcy, and that if there had been left in the hands of the defendants any balance after paying the debts due to the members of the board, that balance might have been recovered by the assignee.

It is very ingeniously argued by counsel for the assignee, that, being property of the bankrupt, he had no right to make the disposition of it which he did, by preferring his creditors who were members of the board to those who were not. The answer to this, so far as Fenn's assignment to defendants is concerned, is, that the part of it which gives this direction to the proceeds of the sale was wholly unnecessary and nugatory; for if the article of the association which we have cited in full was effective, it controlled the disposition of those proceeds; if it is void, or for any other reason ineffectual, then it must be conceded that the assignment of Fenn was an unlawful preference, within the meaning of the bankrupt law. The question turns solely upon the validity of that article of the association.

There is no reason why the stock board should not make membership subject to the rule in question, unless it be that it is a violation of some statute, or of some principle of public policy. It does not violate the provision of the bankrupt law against preference of creditors, for such a preference is only void when made within four months previous to the commencement of the bankrupt proceedings. Neither the bankrupt law nor any principle of morals is violated by this provision, so far as we can see. A seat in this board is not a matter of absolute purchase. Though we have said it is property, it is incumbered with conditions when purchased, without which it could not be obtained. It never was free from the conditions of article 15, neither when Fenn bought, nor at any time before or since. That rule entered into and became an incident of the property when it was created, and remains a part of it into whose hands soever it may come. As the creators of this right-this property-took nothing from any man's creditors when they created it, no wrong was done to any creditor by the imposition of this credition.

The fundamental vice of plain iffs' argument is to treat the case as though Fenn, owning this property absolutely as his own without restriction, had then fettered it, of his own accord, with the condition that it must always stand incumbered by a preferred lien to his fellow-members.

It is said that it is against the policy of the bankrupt law, against public policy, to permit a man to make in this or any other manner a standing or perpetual appropriation of his property to the prejudice of his general creditors; and it is to this point that the numerous authorities of counsel are cited. They all, however, relate to cases where a man has done this with property which was his own,-property on which he himself imposed the direction, or the incumbrance, which impeded creditors.

It is quite different where a man takes property by purchase or otherwise, which is subject to that direction or disposition when he receives it. It is no act of his which imposes the burden. It was imposed by those who had a right to do it, and to make it an accompaniment of any title which they gave to it.

The principle here contended for by counsel was well considered in the recent case of Nicholls, Assignee, v. Eaton, 91 U.S. 716. In that case, the mother of the bankrupt, Eaton, had bequeathed to him by will the income of a fund, with a condition in the trust that on his bankruptcy or insolvency the legacy should cease and go to his wife or children, if he had any, and if not, it should lapse into the general fund of the testator's estate, and be subject to other dispositions. The assignee of the bankrupt sued to recover the interest bequeathed to the bankrupt, on the ground that this condition was void as against public policy.

But this court, on a full examination of the authorities, both in England and this country, held that the objection was not well taken; that the owner of property might make such a condition in the transfer of that which was his own, and in doing so violated no creditor's rights and no principle of public policy.

The case of Nicholson, Assignee, v. Gouch, 5 El. & Bl. 999, was in many respects very much like the present, the action having been brought to recover certain property which, under the rules of the exchange, of which the bankrupt was a member, had been received and paid to his fellow-members. This was asserted to be a preference void by the bankrupt law; and the rules of the exchange, under which it was done, were assailed on the same ground taken here. It is true that, in the decision of the Queen's Bench in bank, Lord Compbell, the Chief Justice, ruled against the plaintiff, on the ground that the money in question arose out of wagering contracts, which, as they could not have been enforced by the bankrupt, were, therefore, not subject to the claim of the assignee. But Crompton, J., held, also, that the money being received and distributed under the rules of the stock exchange, by reason of the bankrupt having become a member subject to said rules, this was a sufficient defence to the party who so received and distributed it.

Judgment affirmed.

title: Hyde v. Woods/Opinion of the Court


text: Talk:Hyde v. Woods/Opinion of the Court

title: Talk:Hyde v. Woods/Opinion of the Court


text:
Waite v. Dowley

ERROR to the Supreme Court of the State of Vermont.

On the 9th of November, 1865, the legislature of Vermont passed the following act. Acts of 1865, p. 17.

'An Act providing for taxing stock in the several banking associations in this State, formed under the act of Congress approved June 3, 1864, entitled, 'An Act to provide a national currency.'

'SECT. 1. It shall be the duty of the cashiers of the several banking associations in this State, formed under the act of Congress approved June 3, 1864, entitled, 'An Act to provide a national currency,' and the cashiers of all other banks in this State, to transmit to the clerks of the several towns in this State in which any stock or share holders of such banking association shall reside, a true list of the names of such stock or share holders on the books of such banking associat on, together with the amount of money actually paid in on each share on the first day of April in each year hereafter, on or before the fifteenth day of April in each year.

'SECT. 2. The stock and shares of all such banking associations shall be set in the list, and taxed in the same manner that the stock in the several banks in this State, which are chartered under the authority of this State, are liable to be taxed by the existing laws thereof.

'SECT. 3. If any of the stock of such banking associations is owned by, or stands in the name of, any person residing out of this State, it shall be the duty of the cashier of such banking association to transmit to the clerk of the town in which such banking association is situated, the names of all such non-resident stock or share holders, with the number of shares standing against the name of each of such stock or share holders on the books of such banking association, together with the amount of money actually paid in on each share on or before the fifteenth day of April in each year.

'SECT. 4. Whenever the collector in any town in which any such banking association is situated shall have a tax against any stock or share holder in such banking association who is not a resident of this State, it shall be the duty of the cashier of such banking association, upon presentation of such tax to him by such collector, to pay the same, and charge the same to such stock or share holder on the books of such banking association, and all dividends due and becoming due upon the same shall be holden to such banking association for the payment of such tax.

'SECT. 5. If any cashier shall neglect or refuse to make returns to any town in this State, as provided in this act, he shall forfeit and pay to the treasurer of such town, for the benefit of such town, the sum of $500, to be recovered by an action on the case, in the name of such treasurer, founded on this statute.'

This action was brought in March, 1870, in the County Court of Windham County, Vermont, by Dowley, as treasurer of the town of Brattleboro', against Waite, the cashier of the First National Bank of Brattleboro', to recover the penalty prescribed by the fifth section of the foregoing act, for refusing, in 1866 and 1867, to make to that town the returns provided for in the first section.

The only defence set up at the trial was, that, as the bank was organized under the law of Congress, Waite, as such cashier, was amenable to no law but that, and that the State had not power to prescribe or define his duties as such cashier.

Waite also offered evidence tending to show, that, at all times during the years in question, the bank kept such lists of its stockholders as the act of Congress requires, which were open to the inspection of the trustees of said town, who were permitted at all times to transcribe therefrom, and set in the grand list of the town all such stock of said bank as they deemed taxable.

Dowley waived all objection to the admission of the evidence, but claimed that, if admitted, it constituted no legal defence to the action.

The court thereupon directed a verdict for Dowley, which was taken.

To this decision Waite duly excepted; his exceptions were allowed, and the cause passed to the Supreme Court for review.

That court rendered a decision affirming the judgment of the county court, and giving judgment for Dowley against Waite for the amount of the verdict with subsequent interest.

Waite thereupon brought this writ here, assigning for error that the Supreme Court of Vermont erred,--

First, In holding that the statute of the State was valid under the Constitution of the United States, as not repugnant to nor in conflict with the acts of Congress providing for the organization and management of national banks, being the acts of March 25, 1863, and June 3, 1864.

Second, In rendering judgment against him for the penalties provided by a statute which is invalid, as repugnant to and in conflict with said acts of Congress.

Mr. E J. Phelps for the plaintiff in error.

A long and uniform course of decision in this court has established the proposition, that, in all cases where the State governments have a concurrent power of legislation with the national government, if Congress exercises its power upon the subject, that of the States is excluded. They cannot enter upon the same ground nor legislate for the same object.

Nor is it the question in such cases, whether the two statutes are, in their operation, necessarily repugnant or contradictory to each other. The State cannot legislate at all upon the subject, except so far as Congress may permit. When once Congress has acted upon it, that action becomes supreme, and all interfering legislation of the States, whether in aid of or in opposition to it, is suspended and prohibited.

It is, therefore, as much beyond the power of a State to impose a penalty for a non-compliance as for a compliance with the requirements of an act of Congress. Houston v. Moore, 5 Wheat. 1; McCulloch v. Maryland, 4 id. 316; Osborn v. Bank of United States, 9 id. 738; Brown v. Maryland, 12 id. 419; Weston v. Charleston, 2 Pet. 466; Dobbins v. Erie County, 16 id. 435; Gilman v. Philadelphia, 3 Wall. 713; Ex parte McNeil, 13 id. 240; Bank of Commerce v. New York City, 2 Black, 620; Farmers' & Mechanics' National Bank v. Dearing, 91 U.S. 29.

Congress has not only provided how, where, and to what extent shares in national banks may be taxed, but has likewise prescribed the means by which the State authorities shall obtain the requisite information, and imposed upon the bank officers the duty of furnishing it. The whole ground is therefore covered by congressional legislation, the validity of which is not open to question.

The State then interferes; and, in order to tax the shares at a place and in a way not authorized by Congress, imposes upon the bank a new and entirely different duty, under a penalty not provided by Congress, but to be recovered in the State courts, at the suit of the local authorities.

The effect of the Vermont statute is, therefore, not only to alter and extend, in material respects, the provisions of the act of Congress, but to impose a penalty upon the officers of the bank, for not discharging a duty which the act does not require.

The act of Congress of 1864 provides that the shares of stock in the national banks shall be assessed 'at the place where such bank is located, and not elsewhere.' The act of 1868 was not in force at the dates when Waite refused to furnish the lists.

The second section of the statute provides that the stock and shares of national banks shall be listed and taxed in the same manner as the stock of the banks which are chartered under the authority of Vermont are liable to be taxed under the State law. That law (Stat. Vt. c. 83) makes all personal property, including stocks, taxable in the town where the owners reside, and not elsewhere.

It is for the purpose of carrying out this method of taxation that the statute requires the cashiers to transmit to the town-clerks of all towns where any stockholders may reside, lists of such stockholders, and of the number of their shares; and, for a neglect or refusal so to do, prescribes the penalty which this suit was brought to recover.

The statute is, therefore, in direct and palpable conflict with the provisions of the act of Congress of 1864 in respect to the place where the shares shall be taxed. Both cannot stand: one or the other must give way.

The validity of a State law, providing for such a mode of taxation prior to the act of 1868, has been twice before this court,-in Austin v. The Alderman, 7 Wall. 694, and Tappan v. Merchants' National Bank, 19 id. 490.

It was left undecided, the decision becoming unnecessary. But the language of the court in the latter case clearly indicates their opinion that the State law could not be supported. The imperative and explicit terms of the act of Congress leave no room for the discussion of the question.

In the City of Utica v. Churchill, 33 N. Y. 161, the Court of Appeals held that the assessment of a shareholder out of the ward in the city where the national bank was located, made in accordance with the laws of New York, was void, because it conflicted with the forty-first section of the act of Congress.

The validity of the statute, in this particular, directly affects the plaintiff in error. It is for a refusal to aid in giving effect to a mode of taxation expressly prohibited by Congress that the penalty has been inflicted, by the rendition of the judgment of which he complains. He is, therefore, entitled to insist upon the invalidity of the statute in respect of the mode of taxation it provides, as well as in respect of the personal duty and penalty it imposes upon him.

Mr. Charles N. Davenport, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Waite v. Dowley


text: Talk:Waite v. Dowley

title: Talk:Waite v. Dowley


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Waite v. Dowley/Opinion of the Court

This is a writ of error to the Supreme Court of the State of Vermont, and, as is frequent in writs to the State courts, it is objected that there is no jurisdiction. The plaintiff in error was cashier of a national bank in that State; and the judgment which this writ brings here for review was rendered against him for penalties imposed by a statute of that State, for his refusal to transmit to the clerk of the town of Brattleboro' a true list of the shareholders of the bank who resided in that town, with the number of shares held, and the amount paid on said shares. The record shows that 'the defendant's counsel claimed in defence, that, as said bank was organized under the law of Congress referred to in plaintiff's declaration, the defendant, as such cashier, was amenable to no law but said law of Congress, and that the State legislature had not power to prescribe or define his duties as such cashier.' That this proposition raises what is called a Federal question, within the meaning of the act of 1867, admits of no doubt. We are also of opinion that no judgment could have been rendered against the defendant in the State courts, without holding, and in effect deciding, that this plea was bad; for, if the State could not impose the duty of making such a list on the cashier by reason of the act of Congress or the Constitution of the United States, then the defendant was guilty of no offence, and the judgment is for that reason erroneous. This plain proposition cannot be evaded by any opinion delivered by the Supreme Court of that State. This court, therefore, has jurisdiction.

And the single question raised by the record is whether the statute of the State is void which requires the cashier of each national bank within the State, and the cashiers of all other banks, to transmit to the clerks of the several towns in the State in which any stock or share holder of such banking association shall reside, a true list of the names of such stock or share holders, with the number of shares standing against the name of such share or stock holder on the books of such banking association, together with the amount of money actually paid in on such share on the first day of April.

The proposition on which this statute is asserted to be void is that Congress has legislated upon the same subject, and that, where there exists a concurrent right of legislation in the States and in Congress, and the latter has exercised its power, there remains in the States no authority to legislate on the same matter. It is not necessary to dispute that proposition, nor, when stated in this general language, can it be controverted. It is none the less true, however, that the line which divides what is occupied exclusively by any legislation of Congress from what is left open to the action of the States is not always well defined, and is often distinguished by such nice shades of difference on each side as to require the closest scrutiny when the principle is invoked, as it is in this case.

We have more than once held in this court that the national banks organized under the acts of Congress are subject to State legislation, except where such legislation is in conflict with some act of Congress, or where it tends to impair or destroy the utility of such banks, as agents or instrumentalities of the United States, or interferes with the purposes of their creation.

This doctrine was clearly and distinctly announced in National Bank v. Commonwealth, 9 Wall. 353; and that case has been often referred to since, with approval, in this court.

The statute of Kentucky required 'the cashier of a bank whose stock is taxed to pay into the treasury the amount of the tax due. If not, he was to be liable for the same, with twenty per cent upon the amount.' The stock thus to be taxed was, as in the present case, the stock of the shareholders, as authorized by the act of Congress; and that statute went a step further than to require a list of the names of these shareholders and the amount of their stock, and obliged the cashier to collect the tax out of the dividends, and pay it over to the State.

The precise point raised here was taken there, and overruled by this court; namely, that the laws of the State could impose no such duty on the banks organized under the laws of the United States. The case is directly and conclusively in point.

It seems to have been supposed that, because Congress has required of each national bank that a list of its stockholders shall be kept posted up in some place in their business office, this covers the same ground as that covered by the Vermont statute.

The act of Congress, however, was merely designed to furnish to the public dealing with the bank a knowledge of the names of its corporators, and to what extent they might be relied on as giving safety to dealing with the bank. It had no such purpose as the Vermont statute, and was wholly deficient in the information needed for the purposes of taxation by the State, as conceded to it by the act of Congress itself.

Some legislation of Vermont was, therefore, necessary to the proper exercise of the rightful powers of the State, and, so far as it required this list, was not in conflict with any provision of the act of Congress.

This leads to the second objection to the validity of the State statute; namely, that its purpose was to tax bank shares at other places than those where the bank was located.

This case does not raise that question.

1. Because the bank whose cashier is the plaintiff in error was located in the town of Brattleboro', and the judgment against him is for refusing to deliver the list of shareholders to the clerk of that town, and not for his refusal to deliver such a list to any other town. The delivery to this clerk of a list of the shareholders in that town would have been in aid of the taxation of the shares at the place where the bank was organized and did business, and such taxation is legal within the narrowest definition of the act of Congress.

2. But if it be true that so much of this statute as is supposed to authorize other towns in which shareholders reside to tax such shares is unconstitutional, that does not invalidate the part of it we have been considering. It will be time enough to decide the provision of the State law authorizing such taxation unconstitutional, when an attempt is made to collect such a tax, and the party resisting it shall bring the question here. His rights are not affected by the acts demanded of the cashier; and the latter has no right to make a case for him in advance. This court does not sit here to try moot cases to solve a question which may never be raised by any party entitled to raise it.

Judgment affirmed.

title: Waite v. Dowley/Opinion of the Court


text: Talk:Waite v. Dowley/Opinion of the Court


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Doyle v. Continental Insurance Company

APPEAL from the Circuit Court of the United States for the Western District of Wisconsin.

The bill of complaint alleges that the complainant, the Continental Insurance Company of the city of New York, is a corporation organized and existing under the laws of the State of Connecticut, and a citizen of that State.

That prior to the passage of the act of the legislature of the State of Wisconsin, entitled 'An Act to provide for the incorporation and government of fire and inland navigation insurance companies,' approved March 4, 1870, the complainant had established agencies, opened offices, and made considerable expenditures of money in advertising the business of insurance against loss by fire in the State of Wisconsin. That soon after the passage of said act complainant complied with the provisions of sect. 22 thereof, and procured from the State treasurer and secretary of State the certificates and license to do business in said State as therein provided, and did subsequently fully comply with said act; but that, upon filing appointment of an agent upon whom process of law could be served, complainant was compelled to add an agreement, on its part, not to remove into the Federal courts suits brought against it in the State courts, which agreement to that effect was made. That after the decision of this court in Insurance Company v. Paige, 20 Wall. 445, the complainant removed a suit brought on one of its policies against it in the State court, into the Federal court. That because of such removal a demand was made upon the defendant, Peter Doyle, as secretary of State, to revoke the certificate or license authorizing the complainant to do business in said State of Wisconsin.

That complainant had a large number of agencies in the State engaged in the conduct of its business, and a revocation of its license would work great and irreparable injury to the complainant in its business in said State, and the complainant feared that said defendant would revoke said license, unless restrained by injunction. A temporary injunction was issued restraining the defendant from revoking the license of the complainant, because of the removal of said suit from the State to the Federal court.

A demurrer to the bill was overruled, and a decree entered making the injunction perpetual. From this decree the defendant appealed.

Sect. 22, c. 56, Laws of Wisconsin, 1870, provides as follows:--

'That any fire insurance company, association, or partnership, incorporated by or organized under the laws of any other State of the United States, desiring to transact any such business as aforesaid, by any agent or agents, in this State, shall first appoint an attorney in this State, on whom process of law can be served, containing an agreement that such company will not remove the suit for trial in the United States Circuit or Federal Courts, and file in the office of the Secretary of State a written instrument, duly signed and sealed, certifying such appointment, which shall continue until another attorney be substituted.'

Sects. 1 and 3, c. 64, are in the following words:--

'SECTION 1. If any insurance company or association shall make application to change the venue, or remove any suit or action heretofore commenced, or which shall be hereafter commenced, in any court of the State of Wisconsin, to the United States Circuit or District Court, or to the Federal court, contrary to the provisions of any law of the State of Wisconsin, or contrary to any agreement it has made and filed, or may make and file, as provided and required by section number twenty-two of chapter fifty-six of the General Laws of Wisconsin for the year A.D. 1870, or any provision of law now in force in said State, or may hereafter be enacted therein, it shall be the imperative duty of the secretary of State, or other proper State officer, to revoke and recall any authority or license to such company to do and transact any business in the State of Wisconsin, and no renewal or new license or certificate shall be granted to such company for three years after such revocation, and such company shall thereafter be prohibited from transacting any business in the State of Wisconsin until again duly licensed.'

'SECT. 3. If any insurance company or association shall make application to remove any case from the State court into the United States Circuit or District Court or Federal court, contrary to the provisions of chapter fifty-six of the General Laws of Wisconsin for the year A.D. 1870, or any other State law, or contrary to any agreement which such company may have filed in pursuance of said chapter fifty-six of the General Laws of Wisconsin for the year A.D. 1870, or any other law of the State of Wisconsin, it shall be liable, in addition, to a penalty of not less than $100 or more than $500 for each application so made, or for each offence so committed for making such application, the same to be recovered by suit in the name of the State of Wisconsin; and it shall be the imperative duty of the attorney-general of the State of Wisconsin to see and attend that all of the provisions of said chapter fifty-six of the General Laws of 1870, and the provisions of this act, are duly enforced.'

Mr. George B. Smith for the appellant.

Mr. William Allen Butler, Mr. B. J. Stevens, and Mr. I. C. Sloan, for the appellee.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Doyle v. Continental Insurance Company


text: Talk:Doyle v. Continental Insurance Company


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Doyle v. Continental Insurance Company/Opinion of the Court

The case of Insurance Company v. Morse, 20 Wall. 445, is the basis of the bill of complaint in the present suit. We have carefully reviewed our decision in that case, and are satisfied with it. In that case, an agreement not to remove any suit brought against it in the State courts of Wisconsin into the Federal courts had been made by the company, in compliance with the Wisconsin statute of 1870. The company, nevertheless, did take all the steps required by the United States statute of 1789 to remove its suit with Morse from the State court into the Federal courts. Disregarding that action, the Supreme Court of Wisconsin allowed the action in the State court to proceed to judgment against the company, as if no transfer had been made. When the judgment thus obtained was brought into this court, we held it to be illegally obtained, and reversed it. It was held, first, upon the general principles of law, that although an individual may lawfully omit to exercise his right to transfer a particular case from the State courts to the Federal courts, and may do this as often as he thinks fit in each recurring case, he cannot bind himself in advance by an agreement which may be specifically enforced thus to forfeit his rights. This was upon the principle that every man is entitled to resort to all the courts of the country, to invoke the protection which all the laws and all the courts may afford him, and that he cannot barter away his life, his freedom, or his constitutional rights.

As to the effect of the statutory requirement of the agreement, the opinion, at page 458 of the case as reported, is in these words:--

'On this branch of the case the conclusion is this:--

'1st, The Constitution of the United States secures to citizens of another State than that in which suit is brought an absolute right to remove their cases into the Federal court, upon compliance with the terms of the act of 1789.

'2d, The statute of Wisconsin is an obstruction to this right, is repugnant to the Constitution of the United States and the laws in pursuance thereof, and is illegal and void.

'3d, The agreement of the insurance company derives no support from an unconstitutional statute, and is void, as it would be had no such statute been passed.'

The opinion of a court must always be read in connection with the facts upon which it is based. Thus, the second conclusion above recited, that the statute of Wisconsin is repugnant to the Constitution of the United States and is illegal and void, must be understood as spoken of the provision of the statute under review; to wit, that portion thereof requiring a stipulation not to transfer causes to the courts of the United States. The decision was upon that portion of the statute only, and other portions thereof, when they are presented, must be judged of upon their merits.

We have not decided that the State of Wisconsin ha not the power to impose terms and conditions as preliminary to the right of an insurance company to appoint agents, keep offices, and issue policies in that State. On the contrary, the case of Paul v. Virginia, 8 Wall. 168, where it is held that such conditions may be imposed, was cited with approval in Insurance Company v. Morse. That case arose upon a statute of Virginia, providing that no foreign insurance company should transact business within that State until it had taken out a license, and had made a deposit with the State treasurer of bonds varying in amount from $30,000 to $50,000, according to the amount of its capital. This court sustained the power of the legislature to impose such conditions, and sustained the judgment of the State court, convicting Paul upon an indictment for violating the State law, in issuing policies without having first complied with the conditions required.

Ducat v. Chicago, 10 Wall. 410, decided that the statute of the State of Illinois, requiring a license to be taken out by foreign insurance companies, for which six dollars each should be paid, and the filing of an appointment of an attorney, with power to accept service of process, was a legal condition; and a requirement, that, when such company was located in the city of Chicago, it should also pay to the treasurer of that city two dollars upon the one hundred dollars upon the amount of all premiums received, was held to be legal.

In Lafayette Insurance Co. v. French, 18 How. 404, the court say:--

'A corporation created by Indiana can transact business in Ohio only with the consent, express or implied, of the latter State. 13 Pet. 519. This consent may be accompanied by such conditions as Ohio may think fit to impose; and these conditions must be deemed valid and effectual by other States and by this court, provided they are not repugnant to the Constitution or laws of the United States, or inconsistent with those rules of public law which secure the jurisdiction and authority of each State from encroachment by all others, or that principle of natural justice which forbids condemnation without opportunity for defence.' Neither did Insurance Company v. Morse, supra, undertake to decide what are the powers of the State of Wisconsin, in revoking a license previously granted to an insurance company, for what causes or upon what grounds its action in that respect may be based. No such question arose upon the facts, or was argued by counsel or referred to in the opinion of the court.

The case now before us does present that point, and with distinctness.

The complainant alleges that a license had been granted to the Continental Insurance Company, upon its executing an agreement that it would not remove any suit against it from the tribunal of the State to the Federal courts; that in the case of Drake it did, on the tenth day of March, 1875, transfer his suit from the Winnebago circuit of the State to the Circuit Court of the United States; that Drake thereupon demanded that the defendant, who is secretary of State of Wisconsin, should revoke and annul its license, in accordance with the provisions of the act of 1872; that it is insisted that he has power to do so summarily, without notice or trial; that the complainant is fearful that he will do so, and that it will be done simply and only for the reason that the complainant transferred to the Federal court the case of Drake, as above set forth.

The cases of Bank of Augusta v. Earle, Ducat v. Chicago, Paul v. Virginia, and Lafayette Insurance Co. v. French, establish the principle that a State may impose upon a foreign corporation, as a condition of coming into or doing business within its territory, any terms, conditions, and restrictions it may think proper, that are not repugnant to the Constitution or laws of the United States. The point is elaborated at great length by Chief Justice Taney in the case first named, any by Mr. Justice Field in the case last named.

The corre ative power to revoke or recall a permission is a necessary consequence of the main power. A mere license by a State is always revocable. Rector v. Philadelphia, 24 How. 300; People v. Roper, 55 N. Y. 629; People v. Commissioners, 47 N. Y. 50. The power to revoke can only be restrained, if at all, by an explicit contract upon good consideration to that effect. Humphrey v. Pegues, 16 Wall. 244; Tomlinson v. Jessup, 15 id. 454.

A license to a foreign corporation to enter a State does not involve a permanent right to remain, subject to the laws and Constitution of the United States. Full power and control over its territories, its citizens, and its business, belong to the State.

If the State has the power to do an act, its intention or the reason by which it is influenced in doing it cannot be inquired into. Thus, the pleading before us alleges that the permission of the Continental Insurance Company, to transact its business in Wisconsin, is about to be revoked, for the reason that it removed the case of Drake from the State to the Federal courts.

If the act of an individual is within the terms of the law, whatever may be the reason which governs him, or whatever may be the result, it cannot be impeached. The acts of a State are subject to still less inquiry, either as to the act itself or as to the reason for it. The State ow Wisconsin, except so far as its connection with the Constitution and laws of the United States alters its position, is a sovereign State, possessing all the powers of the most absolute government in the world.

The argument that the revocation in question is made for an unconstitutional reason cannot be sustained. The suggestion confounds an act with an emotion or a mental proceeding, which is not the subject of inquiry in determining the validity of a statute. An unconstitutional reason or intention is an impracticable suggestion, which cannot be applied to the affairs of life. If the act done by the State is legal, is not in violation of the Constitution or laws of the United States, it is quite out of the power of any court to inquire what was the intention of those who enacted the law.

In all the cases where the litigation of a State has been declared void, such legislation has been based upon an act or a fact which was itself illegal. Thus, in Crandall v. Nevada, 6 Wall. 35, a tax was imposed and collected upon passengers in railroad and stage companies.

In Almy v. State of California, 24 How. 169, a stamp duty was imposed by the legislature upon bills of lading, for gold or silver transported from that State to any port or place out of the State.

In Brown v. The State of Maryland, 12 Wheat. 419, a license, at an expense of $50, was required before an importer of goods could sell the same by the bale, package, or barrel.

In Henderson v. Mayor of New York, 92 U.S. 265, the statute required the master to give a bond of $300 for each passenger, conditioned that he should not become a public charge within four years, or to pay the sum of $1.50.

In the Passengers' Case, 7 How. 572, the requirement was of a like character.

In all these cases, it was the act or fact complained of that was the subject of judicial injury, and upon the act was the judgment pronounced.

The statute of Wisconsin declares that if a foreign insurance company shall remove any case from its State court into the Federal courts, contrary to the provisions of the act of 1870, it shall be the duty of the secretary of State immediately to cancel its license to do business within the State. If the State has the power to cancel the license, it has the power to judge of the cases in which the cancellation shall be made. It has the power to determine for what causes and in what manner the revocation shall be made.

It is said that we thus indirectly sanction what we condemn when presented directly; to wit, that we enable the State of Wisconsin to enforce an agreement to abstain from the Federal courts. This is an 'inexact statement.' The effect of our decision in this respect is that the State may compel the foreign company to abstain from the Federal courts, or to cease to do business in the State. It gives the company the option. This is justifiable, because the complainant has no constitutional right to do business in that State; that State has authority at any time to declare that it shall not transact business there. This is the whole point of the case, and, without reference to the injustice, the prejudice, or the wrong that is alleged to exist, must determine the question. No right of the complainant under the laws of Constitution of the United States, by its exclusion from the State, is infringed; and this is what the State now accomplishes. There is nothing, therefore, that will justify the interference of this court.

Decree reversed, and cause remanded with instructions to dismiss the bill.

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


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


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Doyle v. Continental Insurance Company/Dissent Bradley

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

I feel obliged to dissent from the judgment of the court in this case.

The following is a brief statement of the reasons for my opinion:--

Though a State may have the power, if it sees fit to subject its citizens to the inconvenience, of prohibiting all foreign corporations from transacting business within its jurisdiction, it has no power to impose unconstitutional conditions upon their doing so. Total prohibition may produce suffering, and may manifest a spirit of unfriendliness towards sister States; but prohibition, except upon conditions derogatory to the jurisdiction and sovereignty of the United States, is mischievous, and productive of hostility and disloyalty to the general government. If a State is unwise enough to legislate the one, it has no constitutional power to legislate the other. The citizens of the United States, whether as individuals or associations, corporate or incorporate, have a constitutional right, in proper cases, to resort to the courts of the United States. Any agreement, stipulation, or State law precluding them from this right is absolutely void,-just as void as would be an agreement not to resort to the State courts for redress of wrongs, or defence of unjust actions; or as would be a city ordinance prohibiting an appeal to the State courts from municipal prosecutions.

The questions arising upon these Wisconsin laws have already been considered by this court in the case of Insurance Company v. Morse, and we held and adjudged that the agreement which the company was compelled to make, not to remove a suit into the Federal courts, was absolutely void. In principle, this case does not differ a particle from that. The State legislation of 1872, under which, and in obedience to which, the license of the appellees is threatened to be revoked, is just as unconstitutional and just as void as the agreement was in the former case.

The argument used, that the greater always includes the less, and, therefore, if the State may exclude the appellees without any cause, it may exclude them for a bad cause, is not sound. It is just as unsound as it would be for me to say, that, because I may without cause refuse to receive a man as my tenant, therefore I may make it a condition of his tenancy that he shall take the life of my enemy, or rob my neighbor of his property.

The conditions of society and the modes of doing business in this country are such that a large part of its transactions is conducted through the agency of corporations. This is especially true with regard to the business of banking, insurance, and transportation. Individuals cannot safely engage in enterprises of this sort, requiring large capital. They can only be successfully carried out by corporations, in which individuals may safely join their small contributions without endangering their entire fortunes. The shut these institutions out of neighboring States would not only cripple their energies, but would deprive the people of these States of the benefits of heir enterprise. The business of insurance, particularly, can only be carried on with entire safety by scattering the risks over large areas of territory, so as to secure the benefits of the most extended average. The needs of the country require that corporations-at least those of a commercial or financial character-should be able to transact business in different States. If these States can, at will, deprive them of the right to resort to the courts of the United States, then, in large portions of the country, the government and laws of the United States may be nullified and rendered inoperative with regard to a large class of transactions constitutionally belonging to their jurisdiction.

The whole thing, however free from intentional disloyalty, is derogatory to that mutual comity and respect which ought to prevail between the State and general governments, and ought to meet the condemnation of the courts whenever brought within their proper cognizance.

In my judgment, the decree for injunction ought to be affirmed.


text: Talk:Doyle v. Continental Insurance Company/Dissent Bradley


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Davis v. Alvord

APPEAL from the Supreme Court of the Territory of Montana.

Mr. R. T. Merrick and Mr. M. F. Morris for the appellant.

Mr. J. Hubley Ashton and Mr. Nathaniel Wilson, contra.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Davis v. Alvord


text: Talk:Davis v. Alvord

title: Talk:Davis v. Alvord


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Davis v. Alvord/Opinion of the Court

This is a suit to recover a judgment against the defendant, Charles Hendrie, for labor performed by Alvord upon a quartz-mine and a quartz-mill in Montana Territory, of which that defendant is alleged to be part owner, and to enforce a mechanic's and laborer's lien upon his interest in the premises for its payment. It is essentially a suit in equity, requiring specific directions for the sale of the property, such as are usually given upon the foreclosure of mortgages and sale of mortgaged premises. The fact that, according to the modes of procedure adopted in the Territory, a personal judgment for the amount found due is usually rendered in such cases, with directions that, if the same be not satisfied out of other property of the debtor, the property upon which the lien is adjudged to exist shall be sold, and the proceeds be applied to its payment, does not change the character of the suit from one of equitable cognizance and convert it into an action at law. It is not an uncommon practice in many of the States for the courts to direct, in suits for the foreclosure of mortgages, a formal rendition of judgment for the amount due upon the obligations secured, instead of directing a reference to a master to ascertain and report the amount. Rollins v. Forbes, 10 Cal. 299. The complaint is not open to objection for misjoinder of causes of action, because the personal judgment and the enforcement of the lien are both prayed for at the same time. The rendition of the judgment is only a mode of judicially declaring the amount due, and in no respect affects the equitable jurisdiction of the court. The case is, therefore, properly brought here by appeal.

It appears from the record, that, on the 1st of August, 1869, the plaintiff entered into a contract with the defendant Hendrie to work for him in erecting and repairing a quartz-mill and in opening and developing a quartz-mine, in Montana Territory, for the sum of $2,500 a year. The mill was distant about a quarter of a mile from the mine, and it was part of the contract that one-half of the time of the plaintiff should be devoted to each.

The erection of the mill was commenced in August, 1869, and occupied about forty days. It was substantially completed in the fall of that year. Some iron guides only were put in during the summer of 1870. After that, nothing was done on the mill, except to make occasional repairs as they were needed.

It does not appear when the work was commenced on the mine. The plaintiff states that, in 1870, he put up steam hoisting-works, laid tracks, and made cars, and did every thing necessary to keep the mine in repair; but as to the commencement of the work in that year he is silent. The notices claiming a lien, and that affidavits attached, are not evidence on this point against the defendants.

The statute was designed to give security to those who, by their labor, skill, and materials, add value to property, by a pledge of the interest of their employer for their payment; and for that purpose it subordinates all other interests acquired subsequent to the commencement of their work, although no notice that a lien may even be claimed is required, except within sixty days after the work is completed. Mortgagees and others acquiring interests in property against which such a lien is sought to be enforced have a right, therefore, to call for strict proof of all that is essential to the creation of the lien; and that includes proof of the commencement of the work, of its character, and of its completion. The commencement of the work must be shown, for from that date the lien attaches, if at all. The character of the work must be shown, for it is not for all kinds of work that a lien is allowed. The completion of the work must be shown, for notice of claiming a lien must be filed in the recorder's office within sixty days from that time. This proof must be furnished by the party who asserts the existence of the lien.

From this statement the question as to the priority of the lien claimed by Alvord over the mortgages of the defendant Davis may be readily answered. The work being done on different parcels of property, the lien claimed on one is to be considered separately from that claimed on the other. The parties, the plaintiff and Hendrie, had an accounting on the 25th of June, 1871, when over $3,700 were found due to the plaintiff. It was then agreed between them that this amount should be a lien upon the mill and mine in equal proportions. Notices claiming a lien upon each for the amount thus apportioned were accordingly filed in the recorder's office on the following day. A lien did not, however, arise from this contract of apportionment, or from the special contract under which the work was done: it arose from the work which was performed upon the property. It is the work of mechanics and laborers, or the material furnished by them or others, by which value is added, or supposed to be added, to property, which creates the lien under the statute, upon notice claiming it being seasonably filed in the proper recorder's office.

So far as the mill was concerned, the notice was filed too late. That building, as already stated, was completed in 1869, or at least in the summer of 1870, when the iron guides were put in. Occasional repairs, if subsequently made (of which, however, the record furnishes no evidence), could not be added to the work performed in the erection of the building months before, so as to render the whole work one continued performance, for which a single lien could be claimed within sixty days after the last repairs.

So far as the mine is concerned, there is no evidence of the time in 1870 when the work upon it commenced. The hoisting-works were put up, the track was laid, and the cars were made some time during that year; but beyond this we are not informed. All this might have been done after the last mortgage held by the defendant Davis was executed and recorded in September of that year. We cannot presume, in the absence of proof to that effect, that the work was commenced before that time, and thus give to the lien for the work priority over the mortgage. The failure of the plaintiff to show the commencement of the work, when the proof of that fact was within his power, leads to the conclusion that the truth would not have subserved his interests. At any rate, as the case stands, there is nothing in the record which warrants a subordination of the interests of the mortgagee to the claim of the plaintiff. The finding of the District Court, that one-half of the amount due to the plaintiff was a valid lien on the mine from Aug. 1, 1869, and the other half a lien on the mill from that date, does not elp the case; for that finding is only a conclusion of law. No facts are stated upon which the conclusion can be sustained.

Whilst the statute giving liens to mechanics and laborers for their work and labor is to be liberally construed, so as to afford the security intended, it cannot be too strongly impressed upon them, that they must not only bring themselves by their notices, as was done in this case, clearly within the provisions of the statute, but they must be prepared, if the priority of their lien be disputed, to show a compliance with those provisions, and to fix with certainty the commencement and completion of their work; in which particulars the proof here is wanting.

The decree of the District Court of the Territory must, therefore, be modified so as to give the mortgages held by the defendant Davis a priority over the lien of Alvord in the distribution of the proceeds arising upon the sale of the interest of the defendant Hendrie; and the cause will be remanded to the Supreme Court of the Territory, with directions to modify the decree in that respect; and it is.

So ordered.

title: Davis v. Alvord/Opinion of the Court


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


text:
Southern Express Company v. Dickson

ERROR to the Circuit Court of the United States for the Southern District of Alabama.

The facts are stated in the opinion of the court.

Mr. Clarence A. Seward, for the plaintiff in error.

Mr. Conway Robinson and Mr. Leigh Robinson, contra.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Southern Express Company v. Dickson


text: Talk:Southern Express Company v. Dickson


text:
Southern Express Company v. Dickson/Opinion of the Court

The case, in brief, is this: The agent of the plaintiff Dickson delivered to the express company at Greensboro', N. C., fifty-two boxes of tobacco, to be shipped to Columbia, S.C.. The boxes were consigned to Trent & Rea at that place, and the delivery to the company for shipment was made by Trent, one of that firm, who at the time informed the company that the tobacco was the property of the plaintiff. A written receipt was given by the company in the usual form. The boxes never left Greensboro', but were, without authority of the owner, sold by Trent to one Mendenhall, to whom, by the order of Trent, they were delivered by the company at Greensboro'.

The court charged the jury, that, if they believed from the evidence that the tobacco was, at the time of its delivery to the defendant, the property of the plaintiff, and that fact was known to the defendant or its agent, though by the receipt given for it Trent & Rea were the consignees thereof, and the defendant might lawfully deliver the said tobacco to the consignees at Columbia, S.C.., the defendant was not authorized to deliver the same to the consignees, or either of them, or to any other person by the order of either of them, at Greensboro', N. C., the place of shipment; and such delivery at Greensboro', N. C., without the knowledge or consent of the plaintiff, would not discharge the defendant from liability therefore to the plaintiff. To which charge of the court the defendant then and there excepted.

There was a verdict for the plaintiff, on which judgment was rendered, and the defendant sued out this writ of error.

By various requests to charge, the defendant presented the point in different forms, but the question of law is clearly indicated by the charge given. The express company is not liable in this action, if, upon the order of Trent, it was justified in delivering the property at the place of its intended shipment. If it was not so justified, but was bound to transport and deliver as agreed in its receipt, or to deliver to the owner, then it is liable, and the judgment should be affirmed.

We are not called upon to question the proposition that a consignee of goods is for many purposes deemed to be the owner of them, and may maintain an action for their non-delivery. 1 Pars. Ship. 269. In the case before us, the proof was given; and the jury found that the goods did not belong to the consignees, but were the property of the shipper, and that this was known to the carrier. The qu stion is, rather, where it is known that the goods are the property of the shipper, and have been shipped by him for delivery to the consignees as his agents at a distant place, can the carrier deliver the goods to such consignees or to their order at another place, or without starting them on their journey? We think the rule is, that, where the consignor is known to the carrier to be the owner, the carrier must be understood to contract with him only, for his interest, upon such terms as he dictates in regard to the delivery, and that the consignees are to be regarded simply as agents selected by him to receive the goods at a place indicated. Where he is an agent merely, the rule is different. This is illustrated by the case of Thompson v. Fargo, 49 N. Y. 185. Thompson had, as the agent of White, collected certain moneys belonging to White, and, inclosing them in a package directed to White at Terre Haute, Ind., sent the package from Decatur, in the same State, by the express company. Various attempts were made to deliver the package to White, but he could not be found; and Thompson, the shipper, at length demanded the return to him of the package, and, on refusal, brought an action to recover its value. The Court of Appeals of New York held, that, if the case had been one of a sale by the consignor, with no directions from the consignee how to ship the goods, the former, as the title would remain in him, might maintain an action, but not when he was the mere agent, having no interest in the property, but acting pursuant to the orders of the owner in shipping it; that a delivery to him would be no defence to an action by the owner. The case of Duff v. Budd, 3 Brod. & B. 177, holds the same rule.

The numerous cases cited by the plaintiff in error, to the effect that any delivery to the consignee which is good as between him and the carrier is good against the consignor, are cases where the carrier has no notice of the ownership of the property other than that implied from the relation of the parties to each other as consignor and consignee. This gives to the consignee the implied ownership of the property, and hence justifies the carrier in taking his direction as to the manner of delivery. In addition to those authorities, reference may be had to Sweet v. Barney, 23 N. Y. 325, where a bank in the interior of New York sent by express a package of money directed to 'The People's Bank, 173 Canal Street, New York.' The package was delivered to an agent of the People's Bank at the office of the express company, and was stolen from such agent. The bank in the interior brought its action against the express company, and the question was, whether the express company was authorized to deliver the package at any other place than 173 Canal Street. The court held, that as there was no notice to the express company that the money was not the property of the People's Bank, in the city of New York, nor any circumstances to weaken the presumption that the money belonged to that bank, any delivery that was good as to that bank discharged the carrier.

Of the character mentioned is the case of London & Northwestern Railway Co. v. Bartlett, 7 N. & H. 400, which is much relied on by the plaintiff in error. The consignee in that case was the purchaser of the wheat in question, and consequently any delivery to him, or his order, wherever it might be, would be a discharge to the carrier.

The same fact existed in Mitchell v. Ede and Others, 11 A. & E. 888. The plaintiff recovered the value of the sugars shipped from Jamaica, for the reason that, under the circumstances stated, he was held to be the owner of them. Upon the same principle is Foster v. Frampton, 6 B. & C. 107, where the goods were received from the carrier by the actual vendee, and it was held that the transitus was at an end.

We do not perceive any thing adverse to the principles we have stated in the learned opinion delivered by Chief Justice Shaw in Blanchard v. Paige, 8 Gray (Mass.), 285, nor in Lee v. Kimball, 45 Me. 172, which holds that, where a vendee of goods sells the same before reaching their destination, that right of stoppage in transitu is ended.

We base our judgment upon the bill of lading and its legal results, adopting the fifth point of the plaintiff in error, that any antecedent agreement or understanding was merged therein and extinguished thereby. The circumstances of the shipment, how and by whom made, and the knowledge of the ownership, were proved without objection. These circumstances, and the bill of lading adopted and claimed by the plaintiff, and the point raised by the exception to the charge of the judge, present the question we have discussed, and no other.

The plaintiff in error now contends in his eleventh point that Dickson was not the owner of the tobacco. This point cannot be raised here. No request or exception was made which involves the question. The ownership was assumed throughout the trial, in the charge of the judge, not disputed in the requests to charge, and if a subject of doubt in any form, must be considered as settled by the verdict. The only suggestion of a denial of ownership is in the request to charge, that, if the tobacco was in the possession of Trent, as agent of Dickson, or otherwise, then the delivery to him or his order was lawful. To hold this to be a denial of the ownership of Dickson, or a claim of ownership by Trent, would go far beyond any reasonable construction.

We see no error in the rulings at the trial, and are of the opinion that the judgment should be affirmed.

It is so ordered.


text: Talk:Southern Express Company v. Dickson/Opinion of the Court


text:
Dutcher v. Wright

APPEAL from the Circuit Court of the United States for the Eastern District of Wisconsin.

The facts are stated in the opinion of the court.

Mr. W. P. Lynde for the appellant.

Mr. E. Mariner, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Dutcher v. Wright


text: Talk:Dutcher v. Wright

title: Talk:Dutcher v. Wright