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Pike v. Evans/Opinion of the Court

Sundry bills of exception were taken in the course of the trial of this action, but as the one quoted in the preceding statement of the case was, in our view, well taken, and is decisive, it is unnecessary to advert to them further.

By a law of Louisiana, passed March 10, 1834, sect. 4, it was enacted,--

'That all informalities connected with or growing out of any sale made by a parish judge, sheriff, auctioneer, or other public officer, shall, after the lapse of five years from the time of making the same, be prescribed against by those claiming under such sales, whether against minors, married women, or persons interdicted.'

This law continued in force until 1870, when it was superseded by a general provision contained in the Revised Statutes of 1870 (sect. 3392, p. 659), and in the Civil Code, as published in that year, art. 3543, the terms of which are as follows:--

'All informalities connected with or growing out of any public sale made by any person authorized to sell at public auction shall be prescribed against by those claiming under such sale, after the lapse of five years from the time of making it, whether against minors, married women, or interdicted persons.'

Other articles of the Civil Code of Louisiana on the subject of prescription require that the person who sets it up in relation to an immovable must have acquired the immovable in good faith and by a just title. Thus, art. 3478 declares that 'he who acquires an immovable in good faith and by a just title prescribes for it in ten years.' Arts. 3484 and 3485 declars that by the term just title, in cases of prescription, is not meant that which has been derived from the true owner, but that which has been received from any person whom the possessor honestly believed to be the real owner, provided it were such as to transfer the ownership of the property; that is, such as by its nature would have been sufficient to transfer the ownership, if it had been derived from the real owners, such as a sale, exchange, legacy, or donation.

The Supreme Court of Louisiana has frequently had occasion to construe the effect of these laws.

In Walden v. Canfield, 2 Rob. (La.) 468, where prescription was set up under a title based on a marshal's sale, the court said: 'The defendants have produced a regular judgment, writ of execution, and a deed of sale from the marshal to their author; and, under the well settled and repeatedly established doctrine of our jurisprudence, that in relation to sales under execution, where a purchaser shows a judgment, writ of execution, and sale, under which he holds, his title will be considered as legal and valid, we think that on this point the defendants have satisfactorily complied with the requisites of the law; and that, as their title being a just one, that is to say, one which of itself was sufficient to transfer the property in dispute, it is such as can legally serve as the basis of the prescription. It is true that the plaintiff has attempted to attack the defendants' original sale on the ground of informality in the other proceedings of the marshal; but this, in our opinion, cannot change, or in any way alter the effect of the defendants' title, if they have really possessed under it, during the time required by law to acquire the property by prescription, before the institution of this suit, or, in other words, before the alleged informalities were set up against the presumed legality and validity of their title,'

In Leduf v. Bailly, 3 La. Ann. 8, the same doctrine was held where the irregularity complained of was that the sheriff's deed did not purport to convey the interest of the party from whom the plaintiffs deduced title. The judgment and execution were against him and others, but the sheriff's deed omitted his name. The defendants holding under this deed pleaded prescription, and the court held it a sufficient title to base prescription upon. 'No evidence has been adduced,' said the court, 'to repel the legal presumption that the defendants' possession commenced in good faith.'

So, in Brien v. Sargent, 13 id. 198, want of due notice of seizure by the sheriff was held to be no obstacle to prescription being set up by one who claimed under the sheriff's sale; there being no evidence to impeach the defendant's good faith, and he having shown a regular judgment, execution, and sheriff's deed.

The subsequent case of Robert v. Brown, 14 id. 605, shows what kind of objections to a judicial sale may render it ineffectual as a basis of prescription. There a commission to sell the property of minors was issued without any order of sale. The court held that there was a total want of authority to sell; and that, in such a case, the prescription of five years could not be claimed under the statute, but that it only cured those informalities which may occur in the execution of a decree or other authority to sell. This case is analogous to that which would be presented if a sale were made under an execution without any judgment to support it.

From these authorities (and others to the same effect could be cited) it is evident that although informalities occurring in a sheriff's proceedings under execution may be good ground for annulling a sale made by him if taken advantage of in time, yet that if the sheriff has authority to sell, and does sell, and execute a deed to the purchaser, the latter, if a purchaser in good faith, may set up the prescription of five years under the statute. Applying this rule to the case before us, we think the court erred in holding that, if the sheriff did not actually seize the property, it was such an informality as could not be cured by possession for five years. The case of Morton v. Reynolds, 4 Rob. (La.) 26, referred to by the defendant in error, which seems to hold that the only informalities cured by five years' possession are those occurring in the advertisement of sale, is overruled by subsequent cases, and is contrary to the general current of decisions made by the Supreme Court of Louisiana. The case of Watson v. Bondurant, 21 Wall. 123, was very different from the present. In that case the question of prescription did not arise. Bondurant, the mortgagee, procured the property to be sold by the sheriff without any actual seizure or notice to Watson, who was in possession, and bought the same himself, and then brought his action to recover possession. Under those circumstances, it was competent to Watson to take advantage of any informality in the sale; and we held that the want of seizure invalidated it. So, in this case, if the defendant in error had proceeded in due time, the informalities relied on, if existing in point of fact, would probably have been sufficient to invalidate the sale. But that is not the question here. The question here is not whether the plaintiff in error had a good title, but whether he had such a just title as the law of Louisiana requires to lay the foundation of prescription; and of this we think, under the statute, and in view of the authorities cited, there is no doubt. He received a deed from a person who had authority to sell; and that is regarded as just title for the purpose of prescription.

This decision renders it unnecessary to examine the preliminary objections raised by the defendant in error on the question of supersedeas. The objection that the bills of exception were signed after the term at which the trial was had is met by the fact that the delay was made by the consent of the parties and the order of the court, and whilst a motion for new trial was pending.

Judgment reversed and record remanded, with directions to award a venire facias de novo.

title: Pike v. Evans/Opinion of the Court


text: Talk:Pike v. Evans/Opinion of the Court

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

title: Talk:Pike v. Evans/Opinion of the Court


text:
Atlantic and Pacific Railroad Company v. Hopkins

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

On the 30th of November, 1872, Hopkins obtained, in the Circuit Court of the United States for the District of Kansas, a judgment against the St. Louis, Lawrence, and Denver Railroad Company for $6,385, with interest anc costs of suit. Upon this judgment two executions were issued, and returned unsatisfied.

The attorney for Hopkins filed in the clerk's office, June 19, 1873, his affidavits, setting forth that he had good reason to and did believe that the Pacific Railroad, and the Atlantic and Pacific Railroad Company, were indebted to the St. Louis, Lawrence, and Denver Railroad Company. Garnishee summons with interrogatories attached were thereupon issued. The companies answered, denying their indebtedness; but the court, on the 4th of December, 1873, having, upon consideration of said answers and the argument of counsel thereon, found that the sum of $7,500 would be due from the garnishees to the defendant on the first day of January then next ensuing, passed the following order:--

'It is, therefore, now by the court here considered, ordered, and adjudged that said garnishees, the Pacific Railroad and the Atlantic and Pacific Railroad Company aforesaid, as garnishees herein, pay into this court, to the clerk thereof, on the first day of January next, so much of said sum of $7,500 as it will require to pay and discharge the judgment heretofore, and on the thirtieth day of November, A.D. 1872, rendered herein in favor of said plaintiff against said defendant, that is, the sum of $6,385, with interest thereon at the rate of seven per cent per annum from the said thirtieth day of November, A.D. 1872, and the costs by said plaintiff in this action expended, and that execution issue therefor if they neglect to make such payment on that first day of January, A.D. 1873; and that on scuh payment being made herein to said clerk by said garnishees, or either of them, the said garnishees are to both stand and be discharged herefrom without costs against them or either of them; but if they fail to make such payment on said first day of January next, then such execution is to be issued and enforced against said garnishees and their and each of their property, as their costs.'

To this order and judgment said garnishees excepted, and sued out this writ of error.

Argued by Mr. C. E. Bretherton for the plaintiff in error.

Submitted on printed arguments by Messrs Clough & Wheat, for the defendant in error.

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


text: Talk:Atlantic and Pacific Railroad Company v. Hopkins


text:
Atlantic and Pacific Railroad Company v. Hopkins/Opinion of the Court

The Supreme Court of Kansas, since the order complained of in this case was made, has decided that an order in a proceeding in aid of execution, under sect. 490 of the Civil Code of that State, directing a garnishee to pay to the judgment creditor money which he owed the judgment debtor, was not a judgment, and did not determine finally the liability of the garnishee. The language of the opinion is as follows:--

'The making of it [such an order] is not an adjudication between the parties. It does not determine thier ultimate rights. It simply gives to the creditor the same right to enforce the payment of the money from the garnishee that the debtor previously had. It is in effect only an assignment of the claim from the debtor to the creditor. The creditor gains no more or greater rights than the debtor had, and the garnishee loses no rights. And the payment of the money can be enforced from the garnishee to the creditor only by an ordinary action.' Board of Education v. Scoville, 13 Kan. 32.

In a previous case, Arthur v. Hale, 6 id. 165, it was held to be error to award execution against a garnishee to collect the money in case he failed to make payment according to the order. As the practice in the courts of the United States must conform as near as may be to that in the courts of the State, Rev. Stat., sect. 914, these decisions construing the practice acts of the State are binding upon the courts of the United States. It follows that the Circuit Court erred in directing that execution might issue in this case against the garnishee if payment should not be made according to the order. To that extent the order of the Circuit Court is reversed, but in all other respects affirmed; the defendant in error to pay the costs in this court.

Cause remanded, with directions to modify the order complained of by striking out all that part thereof which directs that execution may issue.


text: Talk:Atlantic and Pacific Railroad Company v. Hopkins/Opinion of the Court


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Ex parte Cutting

PETITION for a writ of mandamus to the Circuit Court of the United States for the Eastern District of Missouri.

George E. Ketcham, on his own behalf and on behalf of all others holding third mortgage bonds of the Pacific Railroad, filed a bill in the Circuit Court of the United States for the Eastern District of Missouri, Nov. 11, 1875, against the Pacific Railroad and certain other defendants, to foreclose a mortgage given to secure the payment of such bonds.

On Jan. 8, 1876, Thomas P. Akers, a stockholder of the Pacific Railroad, filed a motion for leave to come and defend in the action, on the ground that the officers and directors of the company, being themselves interested in the mortgage, did not intend to resist the foreclosure, when, as he alleged, there was a good and valid defence. Feb. 7, by leave of the court, he filed an answer and cross-bill in the cause. At the same time the company filed an answer, substantially admitting the allegations in the bill, but concluding as follows:--

'But, it says, that it is informed that a portion of said stockholders claim that they [the third mortgage bonds] are fraudulent and void, and that the directors of this defendant are guilty of fraud in issuing the same. Therefore, this defendant asks this honorable court to permit any of the stockholders aforesaid to become a party defendant to this suit, upon a proper showing, and make such defence in the premises as they may see proper.'

March 10, Ketcham, the complainant, moved the court for an order that the answer and cross-bill of Akers be withdrawn from the files. March 25, Peter Marie, Frank A. Otis, Robert L. Cutting, Jr., James D. W. Cutting, and George R. Fearing, representing themselves to be stockholders of the company, on leave filed a petition in the cause, stating 'that Thomas P. Akers, a stockholder of said company, has filed his answer and cross-bill to the bill of complaint, filed by complainant in this cause, and in said answer and cross-bill avers that he files the same, not only for his own benefit as such stockholder, but for the benefit of all other holders or owners of the shares of said capital stock who may come in and contribute to the cost and expense necessary to the prosecution of the same,' and praying 'that they may be allowed to come in and defend the said suit and be made co-defendants herein with said Thomas P. Akers, and be joined with him as parties defendant herein, with such other stockholders as may desire to join them as defendants,' and 'that they may be allowed to adopt the said answer and cross-bill as their answer and cross-bill in this cause, and to join with him in his prayer for relief in the premises.'

The record does not show that any action whatever was taken by the court upon this petition after it was filed, or that the parties made any motion in that behalf. It was ordered, April 3, 'that the cross-bill of Thomas P. Akers. . . be taken from the files of the court, as the same is found to be defective in form;' 'that leave be given to Thomas P. Akers as a stockholder, and the county of St. Louis, claiming to be a stockholder, or trustee for stockholders, to file an amended cross-bill herein within thirty days, upon giving security for costs in the sum of $5,000;' and 'that leave be granted to the county of St. Louis to make answer to the bill of foreclosure in this cause, and defend against the same.'

April 25, Akers and St. Louis County filed their amended answer and cross-bill pursuant to this leave; but, June 6, they appeared, and by further leave of the court dismissed their cross-bill and withdrew their answer. This being done, the court, on the same day, 'being fully advised in the premises, and by consent of the parties to this suit, through their solicitors of record,' entered a decree of foreclosure and sale in accordance with the prayer of the bill. Neither Cowdrey nor any one of the present petitioners objected or in any manner interposed against the decree.

Immediately after the decree was entered the court adjourned for the term. On the first day of the next term, Sept. 18, a motion was made to confirm a sale which had been made under the decree, Sept. 6, and which was reported Sept. 15. On the next day, Sept. 19, N. A. Cowdrey, Robert L. Cutting, Jr., Peter Marie, Frank A. Otis, Jacob Cromwell, George L. Kingsland, and George R. Fearing, acting 'not only for their own benefit, but for the benefit of all other holders or owners of the capital stock of said Pacific Railroad, who come in and contribute to the cost and expenses necessary for the prosecution of this suit,' filed a motion and petition 'for liberty to intervene to set aside the decree of June 6, 1876, and sale, and for leberty to demur, answer, plead, or appeal, as advised.' In this petition they set forth, among other things, that they, as owners in their own right, and as a committee or agents of others, represented $3,500,000 out of the $7,000,000 or thereabouts of the capital stock of the company; that the decree of June 6 had been improvidently entered; 'that at the time or just previous to said order of sale [decree of June 6] being made, the county of St. Louis withdrew its answer to the complaint, and also a cross-bill filed by them, which was pending in this case, without any notice to your orators or to the stockholders of the Pacific Railroad; that also Thomas P. Akers, Esq., had filed an answer and a cross-bill on his own behalf and on behalf of all the other stockholders, which was then pending in this court, and which, upon said sixth day of June, he withdrew, without any notice to the stockholders represented by him;' 'that on or about the second day of February, 1876, they authorized N. A. Cowdrey, one of the present petitioners for leave to intervene in this cause, to commence a suit by bill in equity in this court against the Pacific Railroad, the Atlantic and Pacific Railroad Company, Andrew Pierce,. . . C. K. Garrison,. . . and Henry F. Vail and James D. Fisk, to whom the mortgage sought to be foreclosed was made in trust to secure the payment of the bonds, and others, directors in said Pacific Railroad, and directors in said Atlantic and Pacific Railroad Company;' 'that said suit is now pending in this court;' and that the bill prays, among other things, 'for a cancellation of the outstanding. . . third mortgage bonds, alleging the same to have been issued in fraud of the rights of the stockholders of the Pacific Railroad.'

This petition concludes with a prayer, as follows:--

'Your orators humbly pray the honorable court to take their case into consideration, and, upon finding their allegations and averments to be true, to make an order of this court that your orators may be allowed to intervene as parties defendants in this cause, and they be authorized to make answer, plead, demur, or to appeal, as they by their counsel shall be advised; and that the decree of June 6, 1876, and sale thereunder, be set aside, and for nothing had, or that you will grant such other relief as to equity appertains.'

Oct. 3, the following order was made:--

'The motion of said Cowdrey and others, for liberty to intervene to set aside the decree and sale herein, was argued by counsel and submitted to the court; on consideration whereof, and being fully advised in the premises, it is ordered by the court that said motion be denied.'

The same parties then made a motion for leave to file a petition to intervene in the cause, and that the decree and sale thereunder by set aside and the cause dismissed for want of jurisdiction; and this motion was denied.

Oct. 7, they again appeared, and made 'application for an arder allowing an appeal to the Supreme Court of the United States from the order of this court in the matter of N. A. Cowdrey and others;' which was also denied.

The suit of Cowdrey, referred to in the petition filed Sept. 19, was commenced Nov. 13, 1875. The appearance of the defendants was entered Dec. 3. The suit was prosecuted by Cowdrey and others, whose names are not disclosed; but, Dec. 6, the complainants moved for leave to strike out the names of Thomas P. Akers and John S. Vogel, as complainants, and to discontinue the suit as to them. This motion was granted Dec. 11. Jan. 7, an amended bill was filed by leave of the court, to which answers were filed by some of the defendants, Feb. 5. A second amended bill was filed Feb. 7; to which answers were filed by some of the defendants, and demurrers by others, Feb. 7, March 11, March 20, and, by leave, Sept. 13. No motions or other proceedings were ever had in the case, nor any matters therein set down for hearing or testimony taken.

Upon this state of facts the petitioners now ask that a writ of mandamus may issue from this court to the judges of the Circuit Court, 'commanding them, or one of them, to grant your petitioners an appeal to this court from the decrees of that court in said cause, and to accept bond to act as a supersedeas, and that such appeal be allowed as of the date when said application was made originally in said court, or when it was rejected, as this court shall order.'

Mr. Henry Crawford for the petitioners.

Cutting, Marie, and other stockholders, having, by leave of the court, upon March 25, 1876, made themselves co-defendants with Akers, and joined with him in his answer and cross-bill, became real and substantial parties to the suit. Bronson v. La Crosse Railroad Co., 2 Wall. 283; Railroad Company v. Bradleys, 7 id. 575; Peck v. N. Y. & L. Steam Co., 3 Bosw. 622; Thayer v. Tool Co., 4 Gray, 75.

Under such circumstances they are treated as parties to the suit to the extent to which their respective interests are involved. Story, Eq. Pl., sects. 99, 116; 2 Daniell, Ch. Pr. 1213; 2 Smith, Ch. Pr. 111.

Persons of the class interested may by petition be made parties and let into the cause, if their rights and those of existing parties are so interwoven that they will be simultaneously disposed of. 1 Daniell, Ch. Pr. 406; Story, Eq. Pl. 116; Wood v. Dummer, 3 Mason, 315; Gorman v. Russell, 14 Cal. 531.

It is not required, according to any authority on the subject, that there shall be any formal order making them parties. The original leave to file their petition is considered to embrace each succeeding application. It ipso facto constitutes them parties.

Such persons coming in by petition, although they are not, by formal amendment or otherwise, made parties, are considered as such in the subsequent proceedings. Mitford, Eq. Pl. 178; Waite v. Simple, 1 S. & S. 219; Binney's Case, 2 Bland, 99; Warfield v. Banks, 11 G. & J. 97; 1 Daniell, Ch. Pr. 429; Myers v. Fenn, 5 Wall. 205.

In Harrison v. Nixon, 9 Pet. 491, divers parties not named as defendants intervened by mere petition in the Circuit Court, in a suit brought by a plaintiff, alleging he was the next of kin, against an executor. No order was asked for or granted making them parties. Their petitions were dismissed, and, upon the appeal prayed exclusively by such petitioners, the decree was reversed.

In Ogilvie v. ''Knox Ins. Co.'', 2 Black, 539, the same rule was followed, and mere petitioners, being of the same class as the original complainant, were considered to be actual parties to the suit.

Other cases exhibit the practical application of this rule. Blossom v. Railroad Company, 1 Wall. 655; Wittenburg v. United States, 5 id. 820; Crawshay v. Soutter, 6 id. 739; In re Cook & Younghall Railway Co., 4 Ch. App. 748; Galveston Railroad v. Cowdrey, 11 Wall. 459.

The withdrawal of their co-defendants, Akers and St. Louis County, did not eject them from the record, or in any manner deprive them of the full benefit of the pleading which they had made their own. Kellogg v. Forsyth, 24 How. 186; Johnson v. Hammersly, 24 Beav. 498; Armstrong v. Stover, 9 id. 277; Todd v. Daniel, 16 Pet. 523.

The stockholders were therefore properly before the court, and had the clear legal right to a rehearing on the decree of June 6, or to an appeal therefrom. 2 Daniell, Ch. Pr. 1460; Ellison v. Thomas, 1 DeG., J. & S. 18; Kidd v. Cheyne, 18 Jur. 348; Barker v. Barker, 39 N. H. 408; Kellogg v. Forsyth, supra; Gifford v. Hart, 1 Sch. & Lef. 409; Osborne v. Uster, 2 Bro. P. C. 314; Westcott v. Bradford, 4 W. C. C. 492; Blossom v. Railroad Company, supra; Wittenberg v. United States, 5 id. 820; Stratton v. Jarvis, 8 Pet. 4; Crawshay v. Soutter, 6 Wall. 739; Bronson v. La Crosse Railroad Co., supra; In re Cook & Younghall Railway Co., supra; McVeigh v. United States, 11 Wall. 259; N. O. Railroad v. Morgan, 10 id. 256.

Mr. William M. Evarts and Mr. J. O. Broadhead, contra.

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

title: Ex parte Cutting


text: Talk:Ex parte Cutting

title: Talk:Ex parte Cutting


text:
Ex parte Cutting/Opinion of the Court

To entitle the petitioners to the writ asked for in this case, they must show that they have a clear right to an appeal which has been refused by the Circuit Court. The office of a mandamus is to compel the performance of a plain and positive duty. It is issued upon the application of one who has a clear right to demand such a performance, and who has no other adequate remedy. It is never granted in anticipation of an omission of duty, but only after actual default.

This application is for a writ commanding the judges of the Circuit Court, or one of them, to allow the petitioners an appeal from the decrees in the cause, and a supersedeas. This is the only specific relief asked; and, in support of the application, it is insisted that Marie, Otis, Cutting, Jr., Cutting, and Fearing were admitted as parties to the suit March 25, when they filed their petition therefor, and that consequently they were in a position to demand an appeal as parties. It would, perhaps, be a sufficient answer to this position to say that no one of these petitioners has ever made application to the Circuit Court or either of the judges for the allowance of an appeal in his favor as a party to the suit. They have only asked to be permitted to intervene and become parties, in order that they might appeal.

But, if this were otherwise, the result would not be different; for the persons presenting the petition of March 25 never did in fact become parties, and it is apparent from the record that their present claim in that regard is an afterthought. They filed their petition to be made defendants in the suit, but it was never granted. Not only was no express order made to that effect, but there is nothing to show that they were ever in any manner recognized as parties, or that they ever supposed they were parties. Formal orders were made and conditions imposed upon the admission of Akers and St. Louis County as defendants. But they afterwards withdrew, and neither Cutting nor any of his associates attempted to act in their stead. Subsequently he and some of his co-petitioners united with other persons in another petition for leave to intervene, without in any manner claiming advantage from their former action, or even alluding to it.

We are aware that there are cases in which persons have been treated as parties to a suit after having filed a petition for leave to come in, when no formal order admitting them appears in the record, but in all such cases it will be found that they have acted or have been recognized as parties in the subsequent proceedings in the case. Thus, in Myers v. Fenn, 5 Wall. 205, 'the petitions were filed without any order of the court, but no objection was made, and the hearing went on as if an order had been granted;' and in Harrison v. Nixon, 9 Pet. 491, 'inquiries were made as to the respective claims,' as asked for, and 'as to all parties who were claimants before the court by bill, petition, or otherwise, their complaint, petition, and proceedings were dismissed.' So, in Ogilvie v. ''Knox Ins. Co., 2 Black, 539, petitions were filed by certain creditors praying to be made parties, and that a receiver might be appointed, which was done; and in Bronson v. La Crosse Railroad Co.'', 2 Wall. 304, certain stockholders in a corporation were permitted to appear in a cause to which the corporation was a party, and present their several claims by answer in the name of the corporation; but this having been afterwards found to be irregular, the answers were considered 'rather by indulgence than a matter of strict right as the answer of the individual stockholders.' Upon the same principle, it was held in Railroad Company v. Bradleys, 7 Wall. 575, that where an appeal had been prayed for, and subsequently an appeal bond, approved by one of the judges, had been filed in the court, it would be inferred that an appeal had been allowed, although there was no express order to that effect in the record.

From this it is apparent that if one wishes to intervene and become a party to a suit in which he is interested, he must not only petition the court to that effect, but his petition must be granted; and while it is not necessary for him to show that he has actually been admitted by an express order entered upon the record, he must at least make it appear that he has acted or has been treated as a party. That, as we have seen, is not the case here. These petitioners seem to have been content to leave their interests in the hands of Akers; and, when he went out, they went with him. That the court understood this to be so is apparent from the following statement made by the judges in their return to the rule to show cause: 'On June 6, 1876,. . . said Akers and said St. Louis County withdrew their answers and dismissed their cross-bills, both said Akers and said St. Louis County purporting to act for themselves as stockholders, and for all other stockholders who might join them.'

Upon this state of facts it is impossible to say that the petitioners, or any of them, have established their right to appeal as actual parties to the suit before the decree.

No appeal lies from the order of Oct. 3, refusing them leave to intervene and become parties; for that was only a motion in the cause, and not an independent suit in equity appealable here.

Neither can these petitioners appeal as stockholders. Only parties, or those who represent them, can appeal. The stockholders do not represent the corporation, but for some purposes the corporation represents them. They are sometimes admitted as parties to a suit, for the purpose of protecting their own interests in the corporation against unfounded and illegal claims against it, but this 'remedy is an extreme one, and should be admitted by the court with hesitation and caution.' Bronson v. La Crosse Railroad Co., 2 Wall. 302. It is always addressed to the sound judicial discretion of the court. That we cannot control by mandamus.

We need not consider what rights these petitioners would have if Akers had not withdrawn his intervention before the decree. After his withdrawal, they had no representative stockholder party to the suit, and their position is the same it would have been if no parties had ever intervened in their interest.

Mandamus denied.

title: Ex parte Cutting/Opinion of the Court


text: Talk:Ex parte Cutting/Opinion of the Court


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Humes v. Scruggs

APPEAL from the District Court of the United States for the Northern District of Alabama.

This is a suit by the assignee in bankruptcy of John W. Scruggs to set aside a conveyance of certain real estate made by the latter to his wife, as being in fraud of the rights of creditors. The court below dismissed the bill; whereupon the assignee appealed here.

The facts upon which the decision of the court is based are set forth in its opinion.

Mr. Thomas C. Fullerton and Mr. F. P. Ward for the appellant.

No counsel appeared for the appellee.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Humes v. Scruggs


text: Talk:Humes v. Scruggs

title: Talk:Humes v. Scruggs


text:
Humes v. Scruggs/Opinion of the Court

It is not entirely certain what the court is called upon to review in the present case. By the decree of the court below it is recited that upon the hearing of the cause upon the pleadings it is adjudged that the bill be dismissed. The record, however, comes to us with voluminous evidence upon the merits, and we have not the advantage either of an opinion of the court or of a brief by the party obtaining the decree. It will be necessary, therefore, to give attention to the case in both of its aspects.

The bill was filed by the assignee in bankruptcy of John W. Scruggs against the bankrupt's wife, alleging the adjudication of bankruptcy made upon a voluntary petition filed in June, 1868, and the fraudulent conveyance, in January, 1866, of property of the value of $50,000; that this covered all the property of the bankrupt, and that he was then insolvent. The defendant answered, admitting the conveyance, denying the fraud, alleging that the property conveyed to her was purchased and paid for with her money and for her, and that she believed for several years that the title was taken in her name; that it was improved by her husband at an expense not exceeding $18,000, of which $4,400 belonged to her separate estate, and $2,400 was realized from the sale of a portion of the land. She denied that the deed to her conveyed all the property that her husband possessed, but did not state how much remained, or what it was, and she denied knowledge of his insolvency, if it existed.

As a distinct defence in bar of the recovery sought, she further alleges that on the eleventh day of November, 1867, by her next friend, she filed a bill in the State court against her husband, to which he answered on the same day, in which proofs were taken; and that in December of that same year a decree was rendered, in which the said deed of Jan. 14, 1866, was in all things ratified and confirmed. A copy of the decree is annexed to her answer. To this answer the plaintiff, the assignee, filed a general replication. It is supposed that this suit and this decree, forming a part of the answer of Mrs. Scruggs, furnished the support to the decree dismissing the bill in the present suit on the pleadings.

To this result there are two valid objections:--

1. By the interposition of a general replication, every allegation in the answer of Mrs. Scruggs not responsive to the bill was denied. No such allegation could be taken as true, but must be proved before it could be used by the party making it. The allegation of a former suit and of the decree therein came under this rule. It was denied that there was such a former suit, and that a decree was rendered therein affirming the transaction of May 14, 1866. How, then, can it be said with accuracy, upon the pleadings, when the answer was not responsive, and when a replication was filed, that there was a former suit and decree, and that by reason thereof the present bill must be dismissed? Jacks v. Nichols, 5 N. Y. 178.

2. Let it be assumed that the former suit and the decree therein are proved in a legal manner, still we cannot assent to the theory of its conclusiveness here. There would be little difficulty in making and sustaining fraudulent transfers of property, if the parties thereto could by a subsequent suit between themselves so fortify the deed that no others could attack it. Mrs. Scruggs files her bill on the 11th November against her husband, to obtain a confirmation of the former proceeding. Her husband, nothing loth, files his answer on the same day. Twenty-one days thereafter, viz., Dec. 2, the term of the court opens. The papers are presented, proofs are filed, the counsel appear, and a decree of confirmation is adjudged. Certainly no one can complain in this instance of the delays of justice.

But without reference to these indications of collusion, we are of the opinion that a decree between these parties alone, cannot bind the assignee in bankruptcy. The principle is well settled that a judgment binds only the parties to it and their privies. Bank v. Hodges, 12 Ala. 118, was a decision upon a case very similar to the one before us.

In ''Mutual Benefit Life Ins. Co. v. Tisdale'', 91 U.S. 244, the principle is thus laid down: 'The books abound in cases which show that a judgment upon the precise point in controversy cannot be given in evidence in another suit against one not a party or privy to the record. This rule is applied not only to civil cases, but to criminal cases, and to public judicial proceedings which are of the nature of judgments in rem.' Many cases are cited in illustration of the principle.

This decree no doubt concluded Mr. Scruggs on the question of fraud. But he was already concluded by his deed, and we do not see that the estoppel by the decree is any more conclusive than that by the deed. Neither of them affect the assignee in bankruptcy, who is expressly authorized by the Bankrupt Act to attack any transfer made by the bankrupt in fraud of his creditors. Sect. 14.

If we look at the case upon the merits, we also find the result to be in favor of the assignee.

On the 14th of May, 1866, the husband conveys to his wife certain real estate in Huntsville, Ala., called the race-course property. The value of this property is estimated by the witnesses on the one side as high as $25,000, and by one of those on the other as low as $10,000. Others put it at $15,000 and $20,000. He conveyed to her at the same time the interest of one-third of the profits of a hotel in Corinth for five years, and afterwards conveyed to her the fee of the premises, the consideration for which is recited to be the sum of $25,000. What the actual value of this property was does not destinctly appear. At this time he was hopelessly insolvent. Large debts are proved against him, and in his answer he admits his indebtedness then to have amounted to $300,000. In a deed of the same date, executed by the husband and wife to Francis Sanders, it is recited as follows, viz.:--

'Whereas the undersigned, John W. Scruggs, of the county and State aforesaid, is largely indebted to different persons residing in different localities and States; and whereas this indebtedness is individual and partnership indebtedness, being the partnership indebtedness of Scruggs, Donegan, & Co.; and whereas he is also largely involved as indorser for others, and likewise as surety, and as a member of the firm of Scruggs, Donegan, & Co., as acceptors of bills of exchange; and whereas, owing to the loss or displacement, resulting from the present civil war, of explanatory memoranda, schedules, &c., it is impossible for him at this time to state with accuracy the extent of his liabilities or their character, or to ascertain how much thereof has been remitted by the laches of creditors; and whereas he is anxious to adjust, settle, and discharge, to the extent of his ability, all just claims against him, but is unable at this time, for the reasons above stated, to nominate with accuracy his creditors.'

This deed conveyed to Sanders certain lands in Huntsville, and certain lands in Arkansas, among others the plantation called 'the Island Place,' in trust, to convey the same to such creditors as Scruggs himself should, within twelve months, nominate and appoint.

We may safely assume the total insolvency of the husband at the time of the execution of the deed in question, and, if that is important, that the wife was aware of it.

It is sought to sustain the deed to the wife upon the theory that the land in question was purchased by her husband for her and with her money, and that she believed for years that the title had been taken in her name. Such is the allegation of her answer. The proof is to the contrary. It is true, according to some of the testimony, that she was entitled to certain sums from her relations, which were received by her husband, viz., $3,100 in 1852, or thereabouts; $2,300 at about the same time; $1,200 for a carriage in 1853; and $400 from Mr. Coxe. These are the sums as stated by herself in her testimony, amounting to $7,000. In the deed of May, 1866, when we may suppose that both the husband and wife would place the sum at the highest amount that truth would permit, it is given at $4,500. We take it, therefore, at that sum. These sums so received he held and used in his business until the year 1866, when his failure occurred. Neither the husband nor the wife testifies that there was any agreement that the husband should hold these sums as and for the estate of his wife, or that when the property in question was purchased it was agreed to be held as her estate. On the contrary, the moneys were held and used by the husband for nearly fifteen years as his own property, and mingled with his personal and partnership affairs. The explanation given by his brother, if true, which is very doubtful, is essentially vicious. He states that it was at his suggestion that the deed was taken to Scruggs instead of his wife. He adds: 'At the time referred to, John W. Scruggs was about to open a commission house in Charleston, and was without means or credit, and my reason for giving him this advice was, that the conveyance to himself would give him a credit, whereas then he had none.'

But it is probably untrue in fact that this land was bought for her, as she alleges in the answer, or that she believed at any time that the title was taken in her name. As already suggested, the best possible case for the parties would be set forth in the deed which is the subject of the controversy. No such pretence is there set up. The consideration is based upon alleged indebtedness to the wife of a sum of $3,100 received on her account, of another like sum of $2,300, and of her release of dower in certain lands. The pretence that these sums had been agreed to be invested in these lands, and that she supposed it was done, is not suggested. We cannot but suppose this to be an afterthought.

If the money which a married woman might have had secured to her own use is allowed to go into the business of her husband, and be mixed with his property, and is applied to the purchase of real estate for his advantage, or for the purpose of giving him credit in his business, and is thus used for a series of years, there being no specific agreement when the same is purchased that such real estate shall be the property of the wife, the same becomes the property of the husband for the purpose of paying his debts. He cannot retain it until bankruptcy occurs, and then convey it to his wife. Such conveyance is in fraud of the just claims of the creditors of the husband. Fox v. Meyer, 54 N. Y. 125, 131; Savage v. Murphy, 34 id. 308; Babcock v. Gokler, 24 id. 623; Robinson v. Stewart, 10 id. 190; Carpenter v. Roe, id. 227; Hard's Lessees v. Longworth, 11 Wheat. 199.

Fraud or no fraud is generally a question of fact to be determined by all the circumstances of the case. If the husband in a state of absolute bankruptcy conveys to his wife property fairly worth $15,000 to $20,000, with no present consideration passing, but with a recital of past indebtedness to her to less than a fifth of its value, the transaction is fraudulent and void as to creditors. Authorities supra.

We attach no importance to the recited releases of dower as adding a value to the consideration. The lands sold to Derrich, in which it is recited that the wife was dowable, had been conveyed to him in 1860, and the wife had joined in the conveyance and acknowledged the same. Derrich also denies that, in May, 1866, any release of dower was made or was delivered to him.

The lands sold to Peters do not appear ever to have been paid for by him, nor does it appear that they were ever conveyed to him. He had a bond for a title only.

The lands conveyed to Sanders were so conveyed in trust, to be conveyed to such persons as Scruggs should, within twelve months, nominate and appoint.

The pretended releases were mere devices to give color to a fraudulent deed. No benefit was given to the estate by means of them, nor did Mrs. Scruggs part with any thing of value.

Decree reversed and cause remanded, with directions to enter a decree for the complainant in accordance with this opinion.

title: Humes v. Scruggs/Opinion of the Court


text: Talk:Humes v. Scruggs/Opinion of the Court


text: Utley v. Donaldson

title: Utley v. Donaldson


text: Talk:Utley v. Donaldson

title: Talk:Utley v. Donaldson


text:
Utley v. Donaldson/Opinion of the Court

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

This is an action to recover from Donaldson & Fraley the sum of $15,375, paid to them by the plaintiffs, for fifteen bonds, purporting to be first mortgage bonds of the Central Pacific Railroad Company, and which subsequently proved to be counterfeit.

The court below found the following facts:--

1. On the twenty-fourth day of May, 1871, Newman & Havens, bankers, of Leavenworth, Kansas, telgraphed to St. Louis from Leavenworth to W. Nichols, cashier of the Commercial Bank of St. Louis, as follows:-

'Get rate for $15,000, California Central Pacific R. R. bonds, delivered to-morrow.'

This despatch was, on said day, shown by Nichols to defendants, and defendants made a bid for said bonds, i.e., (100 1/2) one hundred and one-half. This offer was reported by telegraph to Newman & Havens by Nichols, and was by them accepted by telegraph.

2. On the following day, May 25, Nichols received from Newman & Havens a letter, as follows:--

'LEAVENWORTH, KANSAS, 24th May, 1871.

'W. NICHOLS, Esq., Cash., St. Louis, Mo.:

'DEAR SIR,-Your favor of the inst., with inclosure as stated, is received. We, this A.M., telegraphed you as follows, viz.: 'Get rate for $15,000, California Central Pacific R. R. bonds, delivered to-morrow.' Same is hereby confirmed. We herewith hand you bonds. Please close the transaction and telegraph us immediately. The party selling these bonds is waiting here to get the money for them. This same gentleman is an entire stranger to us, therefore, will you be kind enough to satisfy yourself that the bonds are all right. We desire them sold without any recourse on us. Your early attention will much oblige, respectfully, yours,

'NEWMAN & HAVENS.'

This letter accompanied fifteen papers, purporting to be so many bonds in said letter described.

Nichols handed this letter to defendants May 25, with the bonds, and proposed that the defendants should take said bonds without recourse. Defendants refused to take the bonds without recourse, but said they would do this; viz., would give to the Commercial Bank their (defendants') check for the agreed amount, $15,075, with the understanding that this check was not to be charged up by the Commercial Bank, where defendants kept their accounts, until defendants had sent the bonds to New York and learned that the bonds were ('O. K.') correct. If the bonds were found to be correct, the check was to be charged up against defendants, and Newman & Havens to be advised; if not, the bonds were to be returned to the Commercial Bank, and the check returned to defendants.

3. On the 24th of May, defendants having received invitation to make a bid from Nichols, as requested by Newman & Havens in their despatch, telegraphed to plaintiffs by night despatch as follows:--

'ST. LOUIS, May 24, 1871.

'TO UTLEY, DOUGHERTY, & SCOTT:

'Make best bid fifteen Central Pacifics, quick.

'DONALDSON & FRALEY.'

After sending this despatch, and before receiving reply thereto, to wit, on the morning of May 25, defendants were shown by Nichols the letter of May 24, from Newman & Havens above recited, and the bonds.

Plaintiffs received this despatch, and on the twenty-fifth day of May replied by despatch, as follows:--

'NEW YORK, May 25, 1871.

'TO DONALDSON & FRALEY:

'We will buy Central Pacifics at a hundred and two and a half (102 1/2).

'UTLEY, DOUGHERTY, & SCOTT.'Defendants received this despatch on the same day about ten A.M.; and on the same day replied by telegraphic despatch, as follows:--

'ST. LOUIS, May 25, 1871.

'TO UTLEY, DOUGHERTY, & SCOTT, New York:

'We accept your offer, fifteen Centrals, one hundred two and a half.

'DONALDSON & FRALEY.'

4. On the same day plaintiffs wrote and mailed a letter to defendants, as follows:--

'NEW YORK, May 25, 1871.

'DEAR SIRS,-Your telegram of to-day received. You have sold us fifteen thousand Central Pacific 6's at 102 1/2 flat. . . ..

'Respectfully yours,

'UTLEY, DOUGHERTY, & SCOTT.'

The fifteen bonds were delivered to defendants by Nichols, cashier of Commercial Bank, May 25, and were by defendants forwarded by express on the same day to the Bank of North America, New York, with a draft on plaintiffs for $15,375, the bonds to be delivered by the bank to plaintiffs on payment of the draft. By mail-mailed by defendants. On the morning of the 25th of May defendants sent to plaintiffs a letter, as follows:--

'ST. LOUIS, May 25, 1871.

'Messrs. UTLEY, DOUGHERTY, & SCOTT:

'GENTLEMEN,-In accordance with your offer for 15 Central Pac. 1st mort. bonds, 102 1/2, we replied, We accept your offer, and have forwarded them by ex. to Bank North America, with draft attached for $15,375. We would further add, that we have purchased the bonds from a party strange to us; and, not having ever handled any of the Pacific Central, we would sell the bonds without recourse as to their being genuine; consequently, please examine them, and, upon being found correct, telegraph immediately (Central all O. K.). We do not doubt the bonds, but, coming to us through strange parties, we use this as a precaution, and not willing to take any risk.

'Respectfully yours,

'DONALDSON & FRALEY.'

This letter was received by plaintiffs at New York on Monday, the 29th of May, a short time before the bonds were presented by the messenger of the Bank of North America for delivery to plaintiffs, and prior to defendants' draft for $15,375, which was presented at the same time as the bonds, as hereinafter stated.

5. On the 29th of May, Monday, the messenger of the Bank of North America, with the bonds, fifteen in number, and the draft of defendants for $15,375, appeared at the office of plaintiffs in New York, to deliver said bonds and collect said draft.

Plaintiffs had, on the said twenty-fifth day of May, sold the bonds 'to arrive' to Rasmus & Lissignola, bankers and stock-dealers in New York, engaging to deliver them four days thereafter.

When the messenger of the Bank of North America arrived at the office of plaintiffs, with the bonds and draft, it lacked but five or ten minutes of the hour after which, by the rules of the New York stock board, deliveries of bonds and stocks sold could not be made for that day.

Utley, therefore, without examining the bonds, went hurriedly with the bank-messenger to the office of Rasmus & Lissignola, to be in time for delivery that day. Arriving there with the messenger of the bank, he asked Rasmus to examine the bonds, saying he had not had time to do so. Rasmus opened and briefly examined the bonds; said they seem to be correct; and, at the request of Utley, gave the messenger of the Bank of North America Rasmus & Lissignola's check for the amount agreed between them and plaintiffs, $15,403.12, which check was paid.

On the same day, and after the delivery of the bonds as above stated, plaintiffs wrote and mailed letter to defendants as follows:--

'NEW YORK, May 29, 1871.

'MESSRS. DONALDSON & FRALEY, St. Louis:

'DEAR SIRS,-Yours of 25th, and 15 thousand Centrals, with draft, received. The Centrals all correct, and we telegraphed you to that effect.

'Respectfully yours,

'UTLEY, DOUGHERTY, & SCOTT.'

7. On the same day plaintiffs sent telegraphic despatch to defendants, as follows:--'NEW YORK, May 29, 1871.

'TO DONALDSON & FRALEY:

'Centrals all right.

'UTLEY, DOUGHERTY, & SCOTT.'

8. On receipt of this despatch by Donaldson & Fraley, on the 29th or 30th of May, they informed Mr. Nichols, cashier of the Commercial Bank, that the bonds were all correct; whereupon Donaldson & Fraley's check for $15,075 was charged up, and Newman & Havens were advised by the Commercial Bank, and remittance made to Newman & Havens.

9. On the 12th of June, 1871, information was for the first time received in New York, or elsewhere, that there were counterfeits of these bonds in existence.

On that day plaintiffs wrote and mailed a letter to defendants, as follows:--

'JUNE 12, 1871.

'Messrs. DONALDSON & FRALEY, St. Louis, Mo.:

'DEAR SIRS,-Yours of 8th and 9th and 3d, Leavenworth, from Bank North America, 5th from U. & C. received.

'Look out for counterfeit Central Pacific 6's. Some appeared on market to-day. . ..

'Respectfully yours,

'UTLEY, DOUGHERTY, & SCOTT.'

10. On the next day, June 13, 1871, plaintiffs sent telegraphic despatch to defendants, as follows:--

'NEW YORK, June 13, 1871.

'TO DONALDSON & FRALEY:

'Central Pacifics you sold us probably counterfeit. Trace your party. Bonds shipped to Europe; can't hear from them for several days.

'UTLEY, DOUGHERTY, & SCOTT.'

11. On the same day, June 13, 1871, plaintiffs wrote to defendants, and mailed letter, as follows, viz.:--

'JUNE 13, 1871.

'MESSRS. DONALDSON & FRALEY, St. Louis, Mo.:

'DEAR SIRS,-Yours of the 10th, &c. . . . We feel uneasy with regard to the genuineness of the Central Pacific 6's you sold us. The bonds have been shipped to Europe, and cannot be heard from for several days. In case your parties are doubtful, it would be well to act at once as if the bonds are not genuine. There has been no suspicion that there were counterfeits out until yesterday.

'Respectfully yours,

'UTLEY, DOUGHERTY, & SCOTT.'

12. On June 13, defendants sent a telegraphic despatch to plaintiffs, as follows:--

'ST. LOUIS, June 13, 1871.

'TO UTLEY, DOUGHERTY, & SCOTT:

'We refer you to our letter, May 25, in which we sold without risk. Have purchased same day from Commercial Bank, and they from Newman & Havens, Leavenworth, without risk. Will aid you all we can, if counterfeit.

'DONALDSON & FRALEY.'

The bonds in question were sold by Rasmus & Lissignola, immediately after they purchased them, to parties who sent them to Europe, whence they were returned declared to be counterfeit, and returned to Rasmus & Lissignola, who immediately demanded repayment from Utley, Dougherty, & Scott, plaintiffs; whereupon, on July 12, plaintiffs sent a telegraphic despatch to defendants, as as follows:--

'NEW YORK, July 12, 1871.

'TO DONALDSON & FRALEY, St. Louis:

'The Central Pacifics bought of you in May are declared counterfeit. We shall look to you for indemnity.

'UTLEY, DOUGHERTY, & SCOTT.'

13. On the same day, July 12, 1871, plaintiffs wrote and mailed to defendants a letter, as follows:--

'NEW YORK, July 12, 1871.

'MESSRS. DONALDSON & FRALEY, St. Louis:

'GENTLEMEN,-We beg to inform you that the Central Pacific bonds we bought from you on 25th May last have been returned from Europe, and are declared counterfeit. On behalf of the parties for whom we purchased the bonds we shall look to you for indemnity. We do not consider that the terms of your letter of 25th May in any way precludes us from our recourse upon you, especially not, in view of the facts disclosed by your telegram to us of June 13, 1871. We therefore telegraphed you to-day as follows: 'The Central Pacifics we bought of you in May are declared counterfeit. We shall look to you for indemnity.'

'Yours truly,

'UTLEY, DOUGHERTY, & SCOTT.'14. On the 12th of July defendants wrote and mailed to plaintiffs a letter, as follows:--

'ST. LOUIS, July 12, 1871.

'Messrs. UTLEY, DOUGHERTY, & SCOTT,

'New York City:

'GENTLEMEN,-Your telegram received, in which you state that the Central Pacifics are counterfeit, and that you look to us for indemnity. In my former letter on this subject we referred you to our letter of May 25, and again call your attention to it. Will you have the kindness to write to us in detail on what grounds you propose holding or looking to us for indemnity?

'An early answer will oblige, very respectfully,

'DONALDSON & FRALEY.'

On the 3d of August, 1871, defendants wrote and mailed to plaintiffs a letter, as follows:--

'ST. LOUIS, Aug. 3, 1871.

'Messrs. U., D., & S.:

'GENTLEMEN,-Mr. Fraley just returned from Madison to-day, hence the delay in answering yours of 25th. We are acting under legal advice, and must refuse to make any assignment of claim, as we are not aware yet that we have any.

'Respectfully yours,

'DONALDSON & FRALEY.'

15. On the 8th of August, 1871, plaintiffs wrote and mailed to defendants a letter, as follows:--

'NEW YORK, Aug. 8, 1871.

'Messrs. DONALDSON & FRALEY, St. Louis, Mo.:

'GENTLEMEN,-We have yours of 3d inst., and regret that you do not give us any more satisfactory information. You will allow us to remind you that we paid your draft for $15,375, and received therefor nothing but counterfeit bonds. In answer to our despatch to you that counterfeit Central Pacifics had appeared in the markets, you sent us a telegram, referring us to your note of 25th May, and saying, at the same time, 'Will aid you all we can, if counterfeit.' Setting aside all questions of legal liability, we submit to your sense of fair dealing, whether you are fulfilling this pledge. You now refuse to make an assignment of any claim you may have against the parties from whom you received the bonds, and assign as the reason for such refusal that you are under legal advice, and do not know whether you have any claim. But we do not ask you to guarantee that you had any claim, and it seems to us that the fact of your being under legal advice is no reason why you should not do every thing in your power to help us in recovering the money you have had from us for worthless bonds, but rather a reason why you should help us the more readily. We beg to ask from you a full statement of the precise position you occupied in relation to these bonds; and, if this will aid us in our efforts to make good our loss, you ought to be thankful, and also willing, to give us any rights you have against these parties.

'Yours truly,

'UTLEY, DOUGHERTY, & SCOTT.'

16. On the 12th of August, 1871, defendants wrote and mailed to plaintiffs a letter, as follows:--

'ST. LOUIS, Aug. 12, 1871.

'Messrs. U., D., & S.:

'GENTLEMEN,-In reply to your letter regarding the position we have taken, we can only say, that, when you consider the circumstances connected with same, we think that you or anybody would act likewise; viz., Some time in May the Commercial Bank called on us and offered the bonds, and we made a bid. The cashier then informed us that the inquiry came from Newman & Havens, Leavenworth, and they would telegraph to them the bid we made to the Commercial Bank. In short time answer to Commercial Bank from Newman & Havens, that they would accept the bid, and had forwarded bonds to Commercial Bank. Upon arrival of bonds at the Commercial Bank, they received a letter from Newman & Havens, stating that they had never dealt in like bonds, and they were selling them for strange parties, consequently sell them without recourse. The Commercial Bank tendered us the bonds under same condition; and we refused to purchase bonds in the manner presented, but gave the Commercial Bank a check under the following conditions,-not to charge the check against us until we had been informed by you that the bonds were O. K. We then forwarded the bonds, and wrote you precise, that we had not ever handled any of the bonds, and we sell them without recourse, and particularly asked you to examine them, and more distinctly said, we sell without recourse as to genuineness, as they come from strange parties, and use this precaution, not willing to take any risk whatever. Upon receipt of the bonds, you telegraphed us, 'Centrals all right,' and also wrote by mail, confirming your despatch, by saying, received bonds and draft, and found them all correct. When we received this information, we then informed the Commercial Bank to charge up check, which they did, and at the same time credited Newman & Havens; and we are furthermore informed, the parties of whom Newman & Havens purchased did not call for the money within ten days after this information of bonds being correct. Now, you see plainly that you are all to blame. Had you used the necessary precaution in examining the bonds, specially when your attention was called by us selling without risk, not only would none of us have any trouble or unpleasantness, but would have caught the thieves and brought them to justice. Now, please inform us what else could we have done. It shows that we acted prudently and with care. It is true, you may say, you received the bonds before the letter; but even and more so should you have examined them, and informed us. You are aware that New York is the market to detect all irregularities in the bonds spoken of, and you could easily have discovered, had you not been careless. Now, you plainly see our position. The Commercial Bank will not take them back from us, unless they are compelled to do so; and why should Donaldson & Fraley suffer for negligence of yours, when they used all precautions and measures at the time? It is true, it is hard for you to part with your money, but not more so than us, whilst we are in no manner to blame. Upon your information, confirming the genuineness of the bonds, we parted with the money received for the bonds. Should the Commercial Bank, or Newman & Havens, at any time come forward and offer to redeem the bonds, we certainly would be most happy, and be much better satisfied than the way it is now.

'Regarding our writing, that we would aid you all we could, did not infer that if you made a demand upon us for the money that we would pay same, but meant, that if it was in our power to make parties originally selling them replace them, we would do so; and we are more so willing now than ever; but we cannot concede nor agree to give you any claim against the Commercial Bank, whether we have legal right or not. It would certainly be admitting, on our part, that if we assign claim against Commercial Bank, that you certainly have likewise claim against Donaldson & Fraley, and also right to assign, which we really cannot admit, as we positively do not believe so. We are ready at any time to testify to the facts as they are, and were; and, should the law declare us wrong, we feel confident that Newman & Havens and Commercial Bank will abide by same; but under no circumstances will they refund without action, as they firmly believe, as we do, that your claim is not just, under the circumstances.

'If you were right in your demands, tell us, in the name of the law, justice, or common custom, would we, or any dealer, receive from any stranger or honest party known to us, but not responsible, any securities to be sold on arrival in New York, and the funds to be credited upon sale and delivery in New York, and especially if sold under the conditions we sold bonds to you? How would you have proceeded in this or any case? The sum total is, you have made a mistake, and we are ready to assist you all we can to defend your claim, if you have any. We now refer you to our last letter, in which we informed you that we would rather you would begin action immediately, in order to have things settled and the suspense removed. What we have written we will enter as evidence, and has been written with consent of Commercial Bank, as they are fair and honorable.

'Trusting you now plainly see our position, and we feel sanguine, that, were you placed in our position, you certainly would not have acted differently,

'Yours, friendly,

'DONALDSON & FRALEY.'

17. Utley (plaintiff) subsequently, in September, 1871, stated to defendants, when asked, in view of defendants' letter of May 25, 1871, which he admitted having received, why he did not examine the bonds with care before paying for them, that he received similar letters from the country every day, and that he supposed defendants were cautious only because they had not handled any of these bonds before.

18. The money paid by Donaldson & Fraley by their check to the Commercial Bank, and by it to Newman & Havens, was not, according to the statement of Newman & Havens to Nichols, cashier, called for, nor paid by Newman & Havens at Leavenworth, Kansas, to the party who sold the bonds to Newman & Havens, for two or three weeks after it was received by Newman & Havens from the Commercial Bank.

19. Before writing the letter of May 25, 1871, hereinbefore set out, and transmitting the bonds to New York, the defendants, who had never seen any Central Pacific bonds, took said bonds, or some of them, to two banking establishments in the city of St. Louis, and asked one of the officials of each of said banks whether they knew about them, but was informed that they did not, as those bonds were not known or dealt in in this market.

20. Both the plaintiffs and defendants were brokers and stock-dealers, the former in New York and the latter in St. Louis, and were business correspondents of each other.

21. That the bonds sold by defendants to plaintiffs were spurious.

22. That the identical bonds sold by defendants to plaintiffs have been produced upon the trial by the plaintiffs, to be surrendered if they shall recover.

23. That the defendants, when they sold and delivered the bonds to plaintiffs, did not know or believe that the bonds were forged or spurious, and they did not know this until informed thereof by the plaintiffs on June 12, 1871, as hereinbefore stated; and their only knowledge of the bonds prior to the sale and delivery thereof appears from the facts hereinbefore set forth.

Upon the foregoing facts the court found as a conclusion of law that the defendants were entitled to judgment; to which finding and conclusion of law the plaintiffs then and there excepted.

Judgment having been rendered for the defendants, the plaintiffs sued out this writ of error.

Mr. Charles M. Da Costa for the plaintiffs in error.

The judgment below is not warranted by the facts contained in the special finding, and must be reversed. Prentiss v. Zane, 8 How. 470; Graham v. Bayne, 18 id. 60.

The contract between the parties was effected and concluded by their telegraphic correspondence of May 25, 1871. By that contract the defendants impliedly warranted the genuineness of the bonds sold and to be delivered thereunder.

The letter of May 25, 1871, written by the defendants to the plaintiffs, after the making of the contract, and received by them on the 29th May, and the acts and doings of the plaintiffs on its receipt, neither released the defendants from such warranty, nor amounted to a modification in that respect of the contract as originally entered intoMr. William Patrick, contra.

The contract between the parties was not completed by the telegrams. The letter of the defendants to the plaintiffs, dated May 25, 1871, was written contemporaneously with the telegrams of that date, and was intended to be, and in law should be, read as a part of the acceptance of plaintiffs' offer. It is clear from that letter, that, at the time of sending their telegram, the defendants had no intention of selling the bonds, except without recourse as to genuineness.

Should the court rule against this point, then it is insisted that the letter of May 25, and the delivery tendered under the terms thereof, together constituted a proposition to modify the terms of the contract entered into by telegraph; that plaintiffs had the right in law either to stand by the original contract and reject the proposed modification, or to accept it without new or additional consideration; that, having accepted the delivery tendered under the terms of that letter, they are in law to be regarded as having waived any other or different performance from that tendered, and to be now estopped from claiming that they did assent to the modification of the contract, or the performance tendered and received.

Assuming that the telegram of plaintiffs' offering 102 1/2, and the telegram of defendants accepting that offer, constituted the contract, there can be no question but that the delivery tendered under the letter of May 25 was in effect a refusal by defendants to fulfil that contract, unless plaintiffs would agree to modify it.

After an agreement has been reduced to writing, it is competent for the parties at any time before breach of it, by a new contract not in writing, either to altogether waive, dissolve, or annul the former agreement, or in any manner to add to or subtract from, or vary, or qualify, the terms of it, and thus to make a new contract. Gross v. Lord Nugent, 5 Barn. & Ad. 65; Lawrence v. Dole, 11 Vt. 549; Medemak Bank v. Curtis, 24 Me. 36.

And when before breach a new contract is substituted for a previous one, no consideration is necessary if the substituted contract has become executed. Lawrence v. Dole, supra; Young v. Hunter, 2 Seld. 207.

Plaintiffs having acted on the letter of May 25, and accepted the delivery tendered, thereby waived a different performance. Shields v. Pettee, 2 Sandf. 262; Reed v. Randall, 29 N. Y. 358.

Acceptance is a question for the jury, Corning v. Colt, 5 Wend. 256; and, having been found as a fact by the court below, its finding is conclusive.

Plaintiffs, by accepting the performance tendered, put it out of the power of defendants to make other performance.

A party whose acts prevent the performance of a condition cannot avail himself of such non-performance as a ground of action. His acts estop him. Young v. Hunter, supra; Richardson v. Cooper, 25 Me. 450.

Where a loss must fall on one of two innocent persons, it must be borne by him whose conduct occasioned it.

In the case at bar, defendants notified plaintiffs that the bonds came to them from strange hands, that they had never before handled any of them, that they were unwilling to take any risk, and would only sell without recourse as to genuineness; consequently, they requested the plaintiffs to 'please examine them,' and, upon upon being found correct, telegraph immediately (Centrals all O.K.). Plaintiffs received this notification before the bonds, failed to make an examination, but telegraphed defendants, and also wrote them, 'Centrals O. K.' They cannot now contravene the statement thus made and relied on, without fraud on their part and injury to another. Dair v. United States, 16 Wall. 1.

The court below finds that both plaintiffs and defendants were innocent parties, and that in view of these facts the loss arising from the bonds turning out to be spurious should fall upon the plaintiffs, as the conduct of defendants had been fair and admonitory, and that of plaintiffs grossly negligent.

Defendants parted with their money under the same circumstances as plaintiffs, but on the faith of the acceptance of the bonds by plaintiffs under the letter of May 25, 1871, and plaintiffs' letter and telegram that the Centrals were 'O. K.' The rule of law under this head clearly upholds the finding of the court below. Dair v. United States, supra; Butler v. United States, 21 Wall. 272.

MR. JUSTICE SWAYNE delivered the opinion of the court.

This is an action at law, brought by the plaintiffs in error. The case was submitted to the court without the intervention of a jury, pursuant to the act of Congress of March 3, 1865, 13 Stat. 501.

The court found specially.

The question presented for our determination is whether the facts found are sufficient to support the judgment. Those facts are neither voluminous nor complicated.

On the 24th of May, 1871, Newman & Havens, bankers, of Leavenworth, telegraphed to Nichols, the cashier of the Commercial Bank of St. Louis, to 'get rate for $15,000 California Central Pacific Railroad bonds, delivered to-morrow.' The defendants offered '100 1/2.' Newman & Havens accepted by a telegraphic despatch. On the 25th of May Cashier Nichols received from Newman & Havens the bonds, and also a letter, in which they said, 'The party selling these bonds is waiting here to get the money for them. He is an entire stranger to us.' 'We desire them sold without any recourse on us.' On the same day Cashier Nichols showed this letter to the defendants, and proposed to deliver the bonds without recourse. They refused to receive them on such terms, but offered to take them, and pay for them when ascertained to be good; otherwise, to return them. The cashier acceded to this proposition. On the 24th of May the defendants telegraphed to the plaintiffs, who were brokers in the city of New York, 'Make best bid for fifteen Central Pacifics, quick.' The plaintiffs answered, on the 25th of May, that they would buy at 102 1/2. Their despatch to this effect reached the defendants about ten A.M. the same day. The defendants answered by despatch on that day, 'We accept your offer.' The bonds were delivered by the cashier to the defendants on the 25th of May, and were by them forwarded by express on that day to a bank in New York, with a draft on the plaintiffs for $15,375, the bonds to be handed over on the payment of the draft. On the morning of that day the defendants addressed a letter to the plaintiffs, which is the hinge of this controversy. It is as follows:--

'In accordance with your offer for 15 Central Pac. 1st mort. bonds, 102 1/2, we replied, We accept your offer, and have forwarded them by ex. to Bank North America, with draft attached for $15,375. We would further add, that we have purchased the bonds from a party strange to us; and, not having ever handled any of the Pacific Central, we would sell the bonds without recourse as to their being genuine; consequently, please examine them, and, upon being found correct, telegraph immediately (Central all O. K.). We do not doubt the bonds, but, coming to us through strange parties, we use this as a precaution, and not willing to take any risk.'

This letter reached the plaintiffs on the 29th of May, a short time before the draft and bonds were presented. The plaintiffs had sold the bonds 'to arrive' to Rasmus & Lissignola. They could not be delivered after two o'clock. It was within a few minutes of that time when the messenger of the bank presented himself. One of the plaintiffs went with the messenger to the office of their vendees, and requested Rasmus to examine the bonds. He did so, said they seemed to be correct, and thereupon gave a check for the amount his firm had agreed to pay for them. This check was duly paid. On the same day the plaintiffs wrote to the defendants, 'The Centrals all correct, and we telegraphed you to that effect.' Such a despatch had been sent. Upon receiving it, the defendants paid the bank for the bonds, and the money was remitted by the bank to Newman & Havens. On the 12th of June information was received for the first time in New York, or elsewhere, that there were in existence counterfeits of such bonds. On that day the plaintiffs wrote to the defendants, 'Look out for counterfeit Central Pacifics; some appeared on market to-day.' On the next day the plaintiffs telegraphed to the defendants, 'Central Pacifics sold us probably counterfeit. Bonds shipped to Europe. Can't hear from them for several days.' On the same day the plaintiffs wrote to the defendants to the same effect, and said further: 'In case your parties are doubtful, it would be well to act at once as if the bonds were not genuine. There has been no suspicion of counterfeits until yesterday.' On the same day, June 13, the defendants replied by despatch: 'We sold without risk. Have purchased same day from Commercial Bank, and they from Newman & Havens, of Leavenworth, without risk.' The bonds were counterfeit, and the plaintiffs refunded to Rasmus & Lissignola the amount they had paid. On the 12th of July the plaintiffs telegraphed to the defendants, 'The Central Pacifics bought of you in May are declared counterfeit. We shall look to you for indemnity.' On the same day the defendants replied by telegraph, and asked upon what ground it was proposed to hold them liable. Some subsequent correspondence took place between the parties, which it is unnecessary to refer to in detail. The plaintiffs asked a transfer of the claim of the defendants, whatever it might be, but without guarantee, against the bank. This the defendants refused to give. The money paid to Newman & Havens by the bank was not called for by the party from whom they received the bonds for two or three weeks after the money was paid to them.

Before examining the case in its strictly legal aspects, it is proper to make several remarks suggested by the facts as found.

1. The defendants sold the bonds absolutely by their despatch of the 25th of May. The qualification insisted upon was, by their letter of that date, received by the plaintiffs on the 29th. If the defendants intended to qualify, it should have been done in the despatch. This would have given the plaintiffs notice in time for reflection before the presentation of the draft, might have prevented their selling the bonds before the letter was received, and would have enabled them to avoid the hurry and confusion incident to the payment of the draft and the delivery of the bonds to their vendees. If the draft had not been paid at sight, it would doubtless have been protested.

2. The circumstances attending the purchase of the bonds by the defendants are shown in our analysis of the facts of the case. The statement in the letter upon the subject is not accurate.

3. They refused upon any terms to put the plaintiffs in their place with respect to any claims they might have against the Commercial Bank.

4. They were notified on the 12th of June that the bonds were counterfeit. If they had thereupon at once caused Newman & Havens to be advised also, it is not improbable that the latter would have retained the funds, and thus have saved from loss all the honest parties through whose hands the bonds had passed. The defendants failed to take any step whatever in this direction.

It cannot be questioned that the despatches between the parties on the 25th of May constituted a complete contract of sale, upon the condition or with an implied warranty, which it is not material here to consider, that the bonds were genuine. Nor can it be doubted that, if the bonds had been delivered without any thing further occurring, the defendants, upon the bonds proving to be counterfeit, would have been liable in this action. Taylor v. ''Merchants' F. Ins. Co.'', 9 How. 390; Benjamin on Sales, 56; Flyn v. Allen, 57 Penn. St. 482; Webb v. Odell et al., 49 N. Y. 583.

Was this contract changed so that this condition or warranty was waived by the plaintiffs? In other words, did the letter of the defendants propose the modification insisted upon, of the pre-existing contract, and if so, did the plaintiffs agree to it, and accept the delivery of the bonds accordingly?

We pass by without remark the plaintiffs' propositions that the alleged modification was within the Statute of Frauds, and could not, therefore, be effectually accepted otherwise than in writing; that there was no consideration for such an agreement; and that, if made, it was contrary to public policy, and therefore void. The view which we take of the case renders it unnecessary to consider either of these points.

The first sentence of the letter relied upon by the defendants recognizes distinctly the contract as made by the despatches. The defendants say: 'In accordance with your offer for 15 Central Pac. first mort. bonds, 102 1/2 we replied, We accept your offer, and have forwarded them by ex. to Bk. North America, with draft attached for $15,375.'

This, standing alone, would have been a mere darrying out of the contract as made, and as it must have been understood by both parties. The stress of the case is upon what follows. The letter proceeds: 'We would further add, that we have purchased the bonds from a party strange to us.' They had in fact bought them from the Commercial Bank, but were not to take them unless genuine, and were not to pay for them until found to be so. Next: 'And not having ever handled any of the Pacific Central, we would sell the bonds without recourse as to their being genuine; consequently, please examine them, and, upon being found correct, telegraph immediately (Central O. K.).' The phrase, 'we would sell without recourse,' considered in the light of the context and the circumstances, may well be interpreted to mean that the writers would prefer or like so to sell, if it could be done. This view derives support from the succeeding member of the sentence, 'please examine,' &c. Examine for whom? It is not said, examine for yourselves. The language employed is usual where the thing asked is for the benefit of the asker, but not where it is for the benefit of the party addressed. Lastly, it is said: 'We do not doubt the bonds, but, coming through strange hands, we use this precaution, and are not willing to take risk.' This is consistent with the construction we have given to the preceding clause. If the examination the plaintiffs were requested to make showed clearly that the bonds were not counterfeit, then there could be no risk, whether the sale was with or without warranty of genuineness. In connection with these views, it is to be observed that while the bonds and draft were sent on pursuant to the original contract, which is distinctly recognized, it is not said in the letter in plain terms, such as would naturally have been used if such had been the intent of the writers. We will sell only at your risk as to genuineness. We will not guarantee it: examine for yourselves. If the bonds are counterfeit, and you take them, the loss will fall upon you, and not upon us. If this language, or terms equally clear and explicit, had been used, the case would have presented a very different aspect. 'Every intendment is to be made against the construction of a contract under which it would operate as a snare.' Hoffman v. ''AEtna Ins. Co.'', 32 N. Y. 405.

Upon the whole letter, considering what it does and what it does not contain, we are unable to come to the conclusion that the defendants intended to require that the modification since insisted upon should be made, and to make such modification the condition upon which the plaintiffs should take the bonds, if they took them at all. This result leaves the rights of the parties as they were under the original contract, and entitles the plaintiffs to recover.

But conceding for the purposes of this opinion that the letter did contain such a proposition or annunciation as is insisted upon, then the inquiry arises whether it was so understood and agreed to by the plaintiffs.

There can be no contract without the mutual assent of the parties. This is vital to its existence. There can be none where it is wanting. It is as indispensable to the modification of a contract already made as it was to making it originally. Where there is a misunderstanding as to any thing material, the requisite mutuality of assent as to such thing is wanting; consequently the supposed contract does not exist, and neither party is bound. In the view of the law in such case, there has been only a negotiation, resulting in a failure to agree. What has occurred is as if it were not, and the rights of the parties are to be determined accordingly.

In Phillips v. Bistotti, 2 B. & C. 511, the defendant was a foreigner, and understood the English language imperfectly. Certain jewelry was struck off to him at auction for eighty-eight guineas. He was sued for that amount, and set up as a defence that he thought he had bid forty-eight guineas. Abbot, C. J., left it to the jury to find whether the mistake had actually occurred, 'as a test of the existence of the contract.' Benj. on Sales, 43.

In Baldwin et al. v. Middleburger, 2 Hall, 176, the defendant bought merchandise of the plaintiff, and it was agreed that it should be paid for by the note of a third person payable to the defendant, to be by him indorsed to the plaintiff. After the goods were delivered the note was tendered, indorsed without recourse. The plaintiff refused to receive it, insisting that the agreement was that the note should be indorsed without this qualification, and thereupon brought the suit. The court left it to the jury to find whether there was a misunderstanding between the parties as to the manner of the indorsement. The jury so found; and it was held that the plaintiff was entitled to recover as if there had been nothing said about the note, there being no such assent of the two minds as was necessary to make a contract in relation to it.

In Coles v. Browne, 10 Paige, 526, a block of lots was struck off at auction to the defendant. The plaintiff insisted and proved that the sale was of the lots separately. The defendant insisted that his bid was for the entire block as one parcel, and that he so understood the premises to be offered and sold. The vendor instituted the suit for specific performance. The evidence rendered it doubtful whether the defendant's allegations as to his understanding and bid were not true, and upon that ground the Chancellor dismissed the bill. If there was a misunderstanding on the subject between the parties, there was clearly no contract. See also Calverly v. Williams, 1 Ves. Jr. 210; Saltus v. Pryn, 18 How. (N. Y.) Pr. 512; Bruce v. Pearson, 3 Johns. (N. Y.) 34; Crane v. Portland, 9 Mich. 493; 2 Pars. Contr. (4th ed.) 475 et seq.

It is essential to the validity of a contract that the parties should have consented to the same subject-matter in the same sense. They must have contracted ''ad idem. Hazzard v. N. E. M. Ins. Co.'', 1 Sumn. 218.

'Where a written agreement exists, and one of the parties sets up an arrangement of a different nature, alleging conduct on the other side amounting to a substitution of this arrangement for the written agreement, he must clearly show, not merely his own understanding as to the new terms of arrangement, but that the other party had the same understanding.' Darnley v. The Proprietors, &c., 2 Law Rep. H. L. 43, 60.

The plaintiffs were not asked to assent expressly with respect to the waiver of the warranty, if it were demanded, and made no such answer. They were asked to 'please examine,' &c., and to telegraph the result. This they did. The despatch was wholly silent as to any thing else. That they understood the waiver was demanded as a sine qua non in no way appears. On the other hand, the contrary is clearly manifest. The moment they had reason to apprehend that the bonds might be counterfeit, they notified the defendants; and, as soon as it became certain they were so, the defendants were advised of the fact, and that they would be looked to for indemnity. The defendants denied their liability by reason of their letter. In due time this suit was brought. Conceding that both parties have acted in good faith, it is clear that there was a misunderstanding between them as to the meaning and effect of the letter, and that the plaintiffs never understood and agreed to it as it is now interpreted and insisted upon by the defendants. The aggregatio mentium requisite to give that interpretation effect was, therefore, wanting.

To constitute the abandonment of a contract, the act must be mutual. Robinson v. Page, 3 Russ. 122.

It has been held that, to make a negotiation for the modification of a contract effectual, it must appear that it was the intention of the party proposing it wholly to abandon the original contract, if the modification proposed were not assented to. Murray v. Harway, 56 N. Y. 347; Robinson v. Page, supra.

'A waiver of a stipulation in an agreement, to be effectual, must be made intentionally, and with knowledge of the circumstances.' Darnley v. The Proprietors, &c., supra; Howard et al. v. Carpenter, 2 Md. 259.

When one party assents to a contract, relying upon the representations of the other, his assent is given upon the condition that the representations are true. Duncan v. Hoge, 24 Miss. 671.

Judgment reversed, with directions to the court below to render a judgment for the plaintiff in error.

MR. JUSTICE STRONG, with whom concurred MR. JUSTICE CLIFFORD and MR. JUSTICE HUNT, dissenting.

title: Utley v. Donaldson/Opinion of the Court


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Utley v. Donaldson/Dissent Strong

MR. JUSTICE STRONG, with whom concurred MR. JUSTICE CLIFFORD and MR. JUSTICE HUNT, dissenting.

I dissent from the judgment given in this case. Before the plaintiffs received the bonds, and before they accepted or paid the draft drawn upon them by the defendants, they were notified that the defendants would sell without recourse, and that they were unwilling to run any risk. They were requested to examine, and telegraph to the defendants whether the bonds were genuine, and this as a precaution of the defendants against risk. The letter of the defendants clearly manifested an intention not to deliver the bonds unless they were genuine, or unless the plaintiffs would take them at their own risk. On any other terms the plaintiffs had a right to take them. Inquiry and notice to defendants afterwards would have been idle, and would have been no precaution. Consequently the receipt of the bonds by the plaintiffs, after the notice given to them, can have no other meaning than that they took them at their own risk.

MR. JUSTICE DAVIS did not sit in this case.

title: Utley v. Donaldson/Dissent Strong


text: Talk:Utley v. Donaldson/Dissent Strong

title: Talk:Utley v. Donaldson/Dissent Strong


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Doyle v. Wisconsin

On motion to set aside proceedings in execution of a judgment of the Supreme Court of the State of Wisconsin.

On the fifteenth day of August, 1876, the Supreme Court of Wisconsin rendered a judgment ordering that 'a peremptory writ of mandamus do forthwith issue out of and under the seal of the court, to be directed to the respondent [plaintiff in error], commanding him, and in his absence the assistant secretary of State, forthwith, within twenty-four hours after the service of the writ,' to recall the license given by him to the Continental Insurance Company of the city of New York to do business in that State. The writ was issued and served on the same day, and on the next, Aug. 16, its command was obeyed. On the 10th October, 1876, this writ of error was sued out in due form, and bond given to operate as a supersedeas.

The plaintiff in error now moves that all the proceedings in execution of the judgment within ten days after its rendition may be vacated and set aside, and that all further process be stayed.

Argued, for the plaintiff in error, by Mr. William Allen Butler and Mr. I. C. Sloan, who cited Slaughter-House Cases, 10 Wall. 273; Telegraph Co. v. Eyser, 19 id. 419; Board of Commissioners v. Gorman, id. 661; Kitchen v. Randolph, 93 U.S. 86.

Mr. Charles W. Felker, contra.

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

title: Doyle v. Wisconsin


text: Talk:Doyle v. Wisconsin

title: Talk:Doyle v. Wisconsin


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Doyle v. Wisconsin/Opinion of the Court

The claim on the part of the plaintiff in error is, that as a writ of error to operate as a supersedeas might issue from this court to re-examine the judgment of the court below, a writ to carry the judgment into effect could not issue from the State court until the expiration of ten days after the rendition of the judgment. Whether this is so or not depends upon the effect to be given to that clause in sect. 1007, Revised Statutes, which, as amended by the act of Feb. 18, 1875, 18 Stat. part 3, p. 316, reads as follows: 'And in such cases, when a writ of error may be a supersedeas, executions shall not issue until the expiration of ten days;' that is to say, until the expiration of ten days after the rendition of the judgment.

The writ of error issued in this case under sect. 709 of the Revised Statutes, which is a reproduction of sect. 25 of the Judiciary Act of 1789, 1 Stat. 85, as amended before the revision. The part of sect. 1007 referred to is the reproduction of a similar provision in sect. 23 of the same act. The Revised Statutes are a revision and consolidation of the old statutes, rather than an enactment of new. 16 Stat. 96; 14 id. 75, sect. 2. Sect. 5600 provides that 'the arrangement and classification of the several sections of the revision have been made for the purpose of a more convenient and orderly arrangement of the same, and, therefore, no inference or presumption of a legislative construction is to be drawn by reason of the title under which any particular section is placed.' This makes it proper that we should look to the original act to ascertain the legislative intent in cases of doubt.

Going, then, to the old law, we find that sect. 22 relates entirely to writs of error for the review of judgments and decrees in the courts of the United States. Then follows sect. 23, which provides 'that a writ of error as aforesaid,' clearly referring to the writ provided for in the preceding section, 'shall be a supersedeas, and stay execution in cases only where the writ of error is served. . . within ten days, Sundays exclusive, after rendering the judgment or passing the decree complained of. Until the expiration of the term of ten days, execution shall not issue in any case where a writ of error may be a supersedeas.' Read in this connection, it is clear that the provision for delay of execution refers only to judgments and decrees in the courts of the United States. Sect. 25 then provides for writs of error to a State court, and adopts the regulations of sect. 22, as to the writ and proceedings under it, but omits entirely any direction as to delay of execution upon the judgment.

From this we think it manifest that it was not the intention of Congress, under the act of 1789, to interfere at all with the practice of the State courts as to executions upon their judgments, until a supersedeas was actually perfected, and that the same effect must be given to to the corresponding sections of the revision. In Board of Commissioners v. Gorman, 19 Wall. 664, we held that if an execution was issued upon a judgment in the courts of the United States after the expiration of ten days, a supersedeas afterwards obtained would prevent further proceedings under the execution, but would not interfere with what had already been done.

Applying this principle to the case in hand, it follows that, as the writ of mandamus was rightfully issued and served before the supersedeas was obtained, this motion must be denied.

Motion denied.

title: Doyle v. Wisconsin/Opinion of the Court


text: Talk:Doyle v. Wisconsin/Opinion of the Court