text:
Penn National Bank v. Furness/Opinion of the Court

This is a suit by the Penn National Bank to charge the firm of Furness, Brinley & Co., of Philadelphia, with moneys obtained from the bank by the firm of Furness, Ash & Co., of that city, in a discount of its paper, and used in payment of the debts of the first firm, and also to charge the defendant Edward L. Brinley with the moneys thus obtained by Furness, Ash & Co. which were used to pay its debt to him.

It appears from the record that for many years preceding January 1, 1878, the firm of Furness, Brinley & Co. was engaged in business as auctioneers in the city of Philadelphia, and was in good standing and credit. It consisted, up to October 1, 1878, of James T. Furness, Edward L. Brinley, Joshua P. Ash, William H. Ash, Henry Day, and Dawes E. Furness. At that time Henry Day and Dawes E. Furness retired from the firm. Soon afterwards Edward L. Brinley expressed a desire also to retire from it. An agreement was accordingly entered into between him and James T. Furness and Joshua P. Ash to the effect that he should retire, his retirement to take place as of the first of July, 1877, but not to be announced until the first of January, 1878 and that he was to withdraw as his capital in the firm, $25,000, to be paid in monthly payments of $5,000, commencing on the first of December, 1877. For the payment of this amount, James T. Furness and Joshua P. Ash made themselves individually liable. On the first of January, 1878, Brinley's retirement was accordingly announced, and a new firm was then formed, under the name of Furness, Ash & Co., consisting of James T. Furness, Joshua P. Ash, and William H. Ash, to continue the same business at the same stand, as successors of Furness, Brinley & Co. This new firm existed only till the fifteenth of March following, when it failed. During its continuance it obtained large discounts of its paper at the Penn National Bank, and from other parties, and the money derived from them was used by it, among other purposes, to pay the installments of $5,000 each month to Edward L. Brinley, the retired partner. Of the amount agreed upon, $20,000 were thus paid. On the retirement of Edward L. Brinley from the old firm and the formation of the new firm, the insolvent condition of the old firm was unknown to its members; but upon an examination of their books after the failure of the new firm, it appeared that the old firm was in fact insolvent on the first of July, 1877, and on the first day of January, 1878. The bill in the present case charges that this agreement for the retirement of Brinley, and the payment to him of $25,000, w § made with knowledge of the insolvency of the old firm and upon a corrupt conspiracy between the parties to enable Brinley to fraudulently withdraw his capital from the firm, and escape liability for its debts. It also charges that the discounts of the paper of the new firm were promoted by false statements, on the part of Edward L. Brinley, to influence parties who discounted the paper, and that they were made to carry out the corrupt scheme mentioned. All the allegations of fraud and conspiracy are explicitly and emphatically denied in the answers of the defendants, and they are wholly unsustained by the proofs. Although the business of the old firm for the last years of its existence was loosely conducted, there is not the slightest evidence that any of its members, except perhaps James G. Furness, had a suspicion of its insolvent condition. He may have suspected its condition, but, if so, he kept his suspicions to himself, in no way intimating them to the other members of the firm. He kept the accounts of the partnership, and it does not appear that any other member knew anything of them. It is clear that they believed the firm was financially sound, and not only capable of paying all its debts, but that there was a large surplus. It also appears that the plaintiff bank at the time it discounted the paper of Furness, Ash & Co. knew who composed that firm and relied entirely upon its solvency to meet its obligations.

The case, then, stands thus: Certain members of the co-partnership agreed to pay another member a fixed amount as his capital on his withdrawal from the concern, all parties believing at the time in the firm's solvent condition. The member accordingly withdraws, and a new partnership is thereupon formed between the remaining members. The new firm on its own responsibility borrows money on its notes from different parties, among others from the plaintiff, who were acquainted with its members, and pays part of the capital as agreed upon to the retiring member, and also some of the debts of the old firm. Soon afterwards the new firm fails, and the plaintiff bank now seeks to charge the old firm with the moneys thus loaned, which were used to pay its debts, and the retiring member for the amount due to him. We are clear that this cannot be done. The discount was a transaction entirely between the new firm and the plaintiff. No credit was given to the old firm or to the retired partner. It was not a matter between the bank and either of them. It is simply a common instance of credit given to an insolvent firm without knowledge by the lender of its insolvency; and in the course of business the loss is to be ascribed to overconfidence in the firm's responsibility, while in ignorance of its true condition. The old firm remains liable for its debts contracted while it was in existence and unpaid, and the retired member as a partner in that firm is liable with the other partners; and it seems from the record, that since the failure of the new firm he has himself discharged outstanding liabilities of the old firm amounting to over $37,000, exceeding by about $17,000 the sums paid to him by the new firm. The new firm is alone liable for the debts of its own contracting. They cannot be transferred to others with whom the plaintiff never dealt.

The case is different from those where a retiring partner draws out a portion of the capital of the concern with an agreement that the other members will pay the debts, and it turns out that the firm was at the time insolvent. There the retiring party will be held to restore the capital, so far as may be necessary to pay the debts of the concern existing at the time, and this, too, whether there was any fraud designed in the transaction or not. He cannot be permitted to remove any portion of the capital of the insolvent concern beyond the reach of its existing creditors, if necessary to satisfy their demands, nor, if there be any scheme of future fraud in the removal, beyond the reach of its future cred tors. Here the defendant Brinley has paid, as already mentioned in the discharge of the debts of the old firm, several thousand dollars more than he received as his capital in that concern from the new firm. There has been no attempt at any time on his part to avoid the liabilities falling upon him as one of the partners in that firm.

The case of Anderson v. Maltby, 2 Ves. Jr. 244, to which counsel of appellant refers as a beacon light for nearly a hundred years in this branch of the law, differs from the one at bar in essential particulars. There, upon the retirement of a partner in the firm of Maltby & Sons, a fictitious account was made up, showing an indebtedness to him of several thousand pounds, which was entered upon the books of the firm. This was done without any examination of the books at the time, or valuation of the property of the firm, or calculation of its debts, and no public notice was given of the retirement of the partner, except by changing the title of the firm in the books of the Bank of England, and other books, from Maltby & Sons to Maltby & Son. The other members continued the partnership and failed. On a bill filed by its assignee, an account was decreed in favor of the new partnership against the retiring partner for the moneys thus received, owing to the circumstances of fraud attending the transaction. In deciding the case the chancellor, after observing that, when partners make up an account of profits which do not exist, it is colorable, said: 'If at the close of the former partnership he (the retiring partner) was bona fide entitled, all the payments were just and reasonable. If he was not bona fide entitled to any demand, but that, to the knowledge and conviction of all three, was mere color, and not a real but a nominal transaction, all the payments were made not merely without consideration, but upon a bad consideration, and such as a court of equity, and, I think, a court of law equally ought to condemn.' This is nothing more than declaring that a suit will lie by the assignee of a bankrupt concern to compel a retired partner to account for moneys paid to him by the firm upon a fraudulent claim.

In the case at bar there was no fraudulent claim advanced. The amount to be paid Brinley was for the capital put by him into the firm of Furness, Brinley & Co., all the partners, except perhaps one of them, supposing at the time of his retirement that the firm was not only solvent, but in possession of a large surplus; and the plaintiff is neither the new company nor its assignee, but the bank, which lent money to that company upon its supposed solvency, and now seeks to charge the parties to whom the company paid it in discharge of its obligations. Equity does not follow money thus lent into the hands of persons to whom it has been paid in discharge of obligations to them, and with whom the lender had no relations.

Decree affirmed.


text: Talk:Penn National Bank v. Furness/Opinion of the Court

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


text:
Aurrecoechea v. Bangs (114 U.S. 381)

E. J. Pringle and H. F. Crane, for plaintiffs in error.

A. Chester and ''Mich. Mullany'', for defendants in error.

MILLER, J.

title: Aurrecoechea v. Bangs (114 U.S. 381)


text: Talk:Aurrecoechea v. Bangs (114 U.S. 381)


text:
Aurrecoechea v. Bangs (114 U.S. 381)/Opinion of the Court

This is a writ of error to the supreme court of California. The case relates to the title to lands in that state, and was decided on a demurrer, which was sustained, to a petition of plaintiff in error. This petition was in the nature of a bill in chancery, seeking to hold the defendant, who had the legal title to the land, by a patent from the United States, to be a trustee for the plaintiff, on the ground that in a contest between the two, before the land department, the officer of that department had, by the decision in favor of the defendant, deprived plaintiff of his superior right by a misconstruction of the law. The land in controversy was within the exterior limits of a claim under a Mexican grant. The validity of this grant was established by proceedings under the act of congress on that subject. But when the survey was made, and finally confirmed, which ascertained the locality of this grant, it was found that the land in suit was not within it. This fact was established on June 6, 1871, by the confirmation of the final survey of that grant. * On July 1, 1871, the map of the congressional survey of the township, which included the land, and which was completed by subdivision into sections and quarter sections, was filed in the local land-office of the district of San Francisco. Bangs, the defendant, who had been residing on the land for some time, made and filed with the register and receiver his declaratory statement, asserting an intention to pre-empt the land June 26, 1871. Under this claim, the defendant, having complied with the requirements of law, received the patent of which plaintiff claims the benefit.

Plaintiff's superior equity, as he sets out in his petition, arises under the act of congress of March 3, 1853, granting to the state of California every sixteenth and thirty-sixth section of the public lands for school purposes. 10 St. 244. As none of the public lands in California had been surveyed, it could not then be known where these school sections would be located; and, in view of the fact that many settlements would be made on those sections before they could be ascertained by survey, the seventh section of the act, while validating the claims of such settlers, authorized the state to select other lands in lieu of them, and in lieu of such as were reserved for public use or taken for private claims. The history of the attempt of the state to make these surveys for herself, and to exercise the right of selection under this seventh section of the act of 1853, is given in the opinion of this court in the case of Huff v. Doyle, 93 U.S. 558, and reference is here made to that history for an understanding of the present case. Indeed the land in that case, as in this, was a part of the Mexican claim Las Pocitas, and the principles announced in that case are decisive of this. It appears from the history there detailed that the land department of the United States, refusing to recognize the surveys made by state authority, and the selection made by the state and sold and certified to its purchasers, congress, on July 23, 1866, (14 St. 218,) passed an act for the relief of such persons and to remedy the evils of this unauthorized action on the part of the state of California, as far as possible.

The first section of this act is as follows: 'That in all cases where the state of California has heretofore made selections of any portion of the public domain, in part satisfaction of any grant to the state by any act of congress, and has disposed of the same to purchasers, in good faith, under her laws, the lands so selected shall be and hereby are confirmed to said state.' A proviso making several exceptions to this confirmation, excludes from it, among others, 'any land held or claimed under any valid Mexican or Spanish grant.' The second section makes it the duty of the authorities of the state, when the selections named in section 1 have been made upon land which has been surveyed by the authorities of the United States, to notify the register of the land-office of such selection, and if, upon inquiry by the local officers, such selection is found to be in accordance with section 1, the commissioner of the general land-office shall certify the land to the state in the usual manner. This second section of the statute had reference to cases where the selections had been made of lands which had been surveyed at the date of the passage of the act. The third section made provision for selections made of lands which had not been surveyed by the United States at the date of the statute, which is the case before us. This section says that the selection so made shall have, when the lands are afterwards surveyed, the same force and effect as the pre-emption rights of a settler on the unsurveyed, public lands, and the claimant shall be allowed the same time after the surveys have been made to prove up his purchase as is allowed under the pre-emption laws.

The bill alleges that in the year 1863, the state, by its agent, selected this land, and sold to a purchaser for a valuable consideration, from whom plaintiff purchased it. It then alleges that, some time in the year 1866, this selection was made known t the register and receiver of the land-office, and a note of it made on their books. Complainant further says that, within three months after the completion of the surveys by the United States, he appeared before these officers and asserted his claim under that selection, and proved it upon the contest with Bangs before the department.

There would seem to be no objection to the case made by plaintiff, but for the fact that the land in controversy was, at the time of this selection by the state, part of a claim under a Mexican grant. The grant itself was confirmed as valid by judicial proceeding, though, upon final survey, this piece of land did not fall within it. But the exclusion of the proviso of the first section of the act of 1866 is of land held or claimed under a valid Mexican grant. This land was claimed under a Mexican grant, which proved to be valid, though, as located, it did not include all the land claimed. In the case of Huff v. Doyle, already cited, we held that land embraced in this Mexican claim, though not included in the final survey, was within the excepting clause of the proviso of the act of 1866. When this selection was made by the state in 1866, the land was not subject to such selection. The act of making such a selection was a nullity. It conferred no right to the state or its vendee, and when the United States made its remedial and confirmatory statute, it refused to confirm selections within the bounds of Mexican claims, and did not confirm this. But in the case of Huff v. Doyle, we held that after the grant was surveyed and the surplus thus restored to the public domain, and the congressional survey completed, the party might then present his claim under the selection, and if no superior right existed, he would be entitled to the land. We said, referring to this legislation: 'In all this we see the purpose of congress to refer the exercise of the right of the state to select indemnity for school lands to the condition of the lands for which indemnity is claimed, as well as those out of which it is sought at the time the official surveys are made and filed in the proper office, or as soon thereafter as the right is asserted.' In that case the claimant under the state made and proved up his claim as soon as the survey was made, and the land was accordingly certified to the state. His opponent, who had also made his declaration as pre-emptor while the land was still claimed under the Mexican grant, which claim was, for that reason, also void, and before the public survey or the survey of that grant was made, renewed his claim after that of plaintiff, and was rejected. To both parties the condition of the land, as liable to either claim at the time the claim was rightfully asserted, governed the case.

In the case before us, the pre-emptor was the first, after the land ceased to be a part of the Mexican claim and was restored to the public domain, to make application to the land-office and assert his right to appropriate it as public land. The officers of the department recognized his claim, as we think they were bound to do, for the land had only a few days before this become public land, and thus liable to pre-emption, or to the valid selection of the state. The invalid selection made at a time when the land was not subject to selection was not made good by the act of 1866 which expressly excluded it, and while we held that, after the land became public land and liable to selection the former selection might be made good, its validity could only relate to the time of its assertion in the land-office after it became so liable. But, if before this latter proceeding was had, or notice to the land-office of an intention to rely on the old selection was given, other rights had intervened, the state right of selection could not be made to the prejudice of those rights.

On this principle, we think all the benefit which could possibly be derived from the confirmatory act of 1866 in regard to such c ses as this is had, while the just rights of others are preserved. The statute, in express language, gives the holder of the invalid state selection the same right as a pre-emption settler on unsurveyed lands, and no more. Here Bangs had asserted his right as soon as the land was released from the Mexican claim, and a few days before the congressional survey became fixed. The least that can be said of Bangs' claim is that it was of equal force when the maps of these surveys were filed, and, by his superior diligence in a lawful manner, he obtained the patent, and plaintiff has no superior equity which should take it form him.

As to the allegation in the bill that Bangs made a forcible intrusion on the possession of complainant in September, 1870, before the land became public land, that was a question to be considered by land officers in the contest between the parties, and is not a fraud or mistake for which the patent can be held to inure to plaintiff's benefit. Nor does the plaintiff rely on it as sufficient. His claim to the benefit of defendant's title rests upon the selection made under state authority. That is the question of federal law which this court must decide, and, as we have seen, that was well decided against him by the state court. Its decree is accordingly affirmed.


text: Talk:Aurrecoechea v. Bangs (114 U.S. 381)/Opinion of the Court


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Page:Popular tales from the Norse (1912).djvu/619

 Rh me do that? I suppose you think I'm brushing myself, but I am not." And so he went on until he had cut down the tree. But the boy thought he was only pretending to brush himself all the time, and the King was obliged to give him his daughter.

THE LITTLE CHILD AND THE PUMPKIN TREE.

was once a poor widow who had six children. One day when she was going out to look for something to eat, for she was very poor, she met an old man sitting by the river side.

He said to her, "Good morning."

And she answered, "Good morning, father."

He said to her, "Will you wash my head?"

She said she would, so she washed it, and when she was going away, he gave her a "stampee," and told her to go a certain distance, and she would see a large tree full of pumpkins; she was then to dig a hole at the root of the tree and bury the money, and when she had done so, she was to call for as many pumpkins as she liked, and she should have them.

So the woman went, and did as she was told, and she called for six pumpkins, one for each child, and six came down, and she carried them home; and now they always had pumpkins enough to eat, for whenever they wanted any, the woman had only to go to the tree and call, and they had as many as they liked. One morning, when she got up, she found a little baby before the door, so she took it up and carried it in, and took care of it. Every day she went out, but in the morning she boiled enough pumpkins to serve the children all day. One day when she came back she found the food was all gone, so ahe scolded her children, and beat them for eating it all up.


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Amy v. Taxing District of Shelby

''Wm. M. Randolph'', for plaintiffs in error.

Minor Merriwether and S. P. Walker, for defendants in error.

MILLER, J.

title: Amy v. Taxing District of Shelby


text: Talk:Amy v. Taxing District of Shelby

title: Talk:Amy v. Taxing District of Shelby


text:
Amy v. Taxing District of Shelby/Opinion of the Court

This is a writ of error to the supreme court of Tennessee. By an act of the legislature of the state of Tennessee, approved January 29, 1879, the charter of the city of Memphis was repealed; and by another act, approved the same day, the territory which had constituted the city was created a taxing district, and the property of the city, and all debts due to it, and all uncollected taxes were vested in the state.

On March 13th, of the same year, another statute, familiarly called 'Chapter 92,' directed the appointment of an officer for each of the corporations, whose charter was repealed by the earlier statute, to be called the 'Receiver of Back Taxes,' who was to be under the control of a court of chancery in the collection and paying out of the taxes so collected by him. Section 2 of this act directs that 'he shall distinguish in making such payments the respective sources from which the moneys paid in are derived, showing what is collected from taxes for general purposes, and what for taxes for special purposes, designating the particular or special purpose, so that the same may be kept separate in the state treasury, in order that the treasurer may pay the same according to any lien, priority, or equity, if any, which may be declared by the chancery court, touching any of said funds, in favor of any creditor or class of creditors.' Another section authorized the receiver of back taxes to file a bill in chancery, in the name of the state, in behalf of all cr ditors, against all delinquent tax-payers, for the ascertainment and enforcement of the rights of the parties in regard to these back taxes unpaid. Such a bill was filed, and important proceedings have been had under it.

A bill was pending, however, in the circuit court of the United States before the bill authorized by this statute was filed, which sought to enforce the collection of taxes by certain parties, to which the receiver of back taxes was afterwards made a defendant, and under that bill a decree was rendered which treated the main provisions of this state legislation as void. On appeal from that decree this court reversed it, and announced certain principles which upheld the validity of the legislation of the state, but maintained the power of courts of the United States to enforce against the receiver and in his hands any decree or judgment by mandamus for levying and collecting taxes which had been made by such court prior to the beginning of this legislation. The case, a report of which contains the history of this legislation and the statutes above referred to, is that of Meriwether v. Garrett, 102 U.S. 472. Section 5 of the act last mentioned provided with some particularity for the receipt by the back tax collector, in payment of these back taxes, of certain classes of outstanding indebtedness of the city of Memphis, and fixed the rate, not always the same, at which they might be received, chiefly at the rate of 50 cents on payment of taxes for each dollar of indebtedness. The collection of these taxes and their distribution continued under the supervision of the court of chancery in the suit already mentioned, and many orders and decrees on the subject were made. The state in the mean time passed statutes which authorized the taxing district to compromise the indebtedness of the city of Memphis, by taking up its old obligations and issuing bonds of the taxing district at the rate of 50 cents of the latter for one dollar of the former. The two statutes on this subject, which are supposed to violate the constitution of the United States, were passed March 23, 1883. One of these acts, (chapter 170 of the acts of that year,) authorizes all municipal corporations and taxing districts to compromise and settle their debts, and to issue the bonds and coupons of taxing districts at the rate of 50 per cent. of the principal and past due interest; and a section of the act is as follows:

'Sec. 16. Be it further enacted that the acceptance and consummation by any creditor of the compromise provided by this act shall of itself operate to assign and transfer to said municipal corporation or taxing district all his rights to and claims against the uncollected taxes or other assets whatever of said municipal corporation, with the right in said municipal corporation or taxing district to enforce the same, either in its own name or in the name of the creditor; the funds that may be realized therefrom to be paid into the designated depository of such municipality or taxing district; and they are hereby devoted and appropriated exclusively to the payment of the bonds and coupons that come under the provisions of this act.'

The other statute passed the same day is an act modifying the provision of chapter 92, March 13, 1879, as to what shall be received in payment of back taxes, and the rate at which the various items of debt should be received. One of these changes, made in evident relation to the act passed the same day for refunding this old indebtedness by bonds of the taxing district is in these words: 'And provided further, that when any indebtedness of such extinct municipality shall be hereafter funded into new bonds at fifty cents on the dollar, such new bonds and matured coupons thereon shall be received in payment of the back taxes due such extinct municipality at the same rate as herein provided for Flippin compromise bonds.' The Flippin compromise bonds were to be received at double their face value. The obvious reason for this was that both the Flippin compromise bonds and the bonds to be issued under the new act just passed represented two dollars of old debt for one dollar on the face of the new bonds; and this new regulation was making all old indebtedness receivable at par. It was necessary, therefore, in order to place the holders of Flippin bonds who had compromised this old debt for 50 cents on the dollar, and those who might do the same under the new statute just passed at the same late, on an equality with those who still held the old debt unchanged, to make this difference in the rate at which they might be received for back taxes. It is the decree of the supreme court of Tennessee holding this legislation valid which is assigned for error, and the principal error in the case.

The plaintiffs in error are parties who held and still hold debts against the city of Memphis, which were not secured by a lien or claim on any tax specially assessed for their payment. Their debts belonged to the unpreferred class. While a large part of the debt of the city during the time between the first and latest enactments we have mentioned was satisfied by using it in payment of back taxes at the rate of two dollars for one, or by exchanging it for the new bonds of the taxing district, the parties now complaining did neither, but still held their old bonds with accumulated interest. It is to be observed, also, that the special taxes assessed under writs of mandamus to pay judgments prior to the repealing law could only be paid in money, and as fast as it was paid it was appropriated to the payment of the debts for which it was specifically assessed. And so also of all taxes assessed for any special purpose. One result of this process was that the back taxes were gradually being paid and satisfied by exchange for this old indebtedness, whereby the holders of it who sold it to tax-payers to be used for that purpose, were getting something for it, and both the indebtedness and the back taxes were being extinguished by a process of set-off. For, when a tax debtor became by purchase an owner of any part of this debt, the extinguishment of the tax and the debt was clearly within the doctrine of set-off of mutual obligations. When, however, the back tax receiver began to receive in payment, under the law of 1883, the new bonds of the taxing district, issued in compromise of the old indebtedness, these plaintiffs in error insisted that this could not be done to their prejudice; and by a petition to the chancery court they prayed its interference to prevent it. As the language of the statute was plain, they insisted that it was void, because forbidden by the constitution of the United States. The supreme court of the state held the law to be valid, and hence this writ of error.

The assignment of errors in plaintiff's brief points out no special provision of the constitution which forbids the legislation of Tennessee complained of, which, it is to be remembered, is only the more recent statutes we have referred to. The language of the brief, as repeated in several forms, is that the court erred because it did not hold that these statutes, as construed by the court, were a violation of the constitution of the United States, and divested the rights of plaintiffs as set out in their petition. This expression, when the argument in its support is examined, resolves itself into the proposition that chapter 92 of the acts of 1879 conferred on them some right, which they insist became a vested right, of which right they have been deprived by the later act. But we do not see what right was vested in them by that statute. It is to be remembered that their debts did not belong to any class which at the time the statute was passed constituted a lien on any part of these back taxes. Such liens as did exist, or such vested rights in any special class of taxes as then existed, were carefully preserved by the statute, and these taxes could only by its terms be collected in money and used to discharge these liens or special claims. It gave no lien of the general debtor on the back taxes, or any part of them. It provided for their collection, and for their use when collected, in payment of the debts of the city. In this respect it did no change any existing law, but provided the means of enforcing the rights of the creditors of the city against its assets.

The legislature having assumed charge of the property of the defunct corporation, and undertaken to administer its assets, passed judicious laws for this purpose, and it is not asserted that the original act which allowed the use of the debt of the city in payment of the taxes was unjust, though it required two dollars of the former in satisfaction of one of the latter. All holders of the general city debt were placed on equality in this respect. Plaintiffs here could have used their debt or disposed of it in that manner as others did. The state did not come under any obligation to pay their debt, except as it could be paid in this manner, and it did not guaranty that the back taxes, whether paid in this manner or in any other, would give it a fund sufficient to pay all back indebtedness. It only undertook to do the best it could with the means it had.

The legal and equitable right in a general way of a debtor to procure the obligations of his creditor and use them as a set-off for his own debt, will hardly be denied when the law of the state authorizes it, and such a law can be liable to no impeachment as divesting vested rights or impairing the obligation of contracts. Blount v. Windley, 95 U.S. 173. Both the original act, (chapter 92,) and the two acts of 1883, did this. The fact that the later acts made a change in the rate at which this set-off should be allowed did no injustice to plaintiffs, but rather favored them, since it permitted their debt with its accumulated interest to be set off dollar for dollar, whereas this could only be done before at two dollars for one. It did them no injustice, and violated no right of theirs, nor any contract of theirs, that the new bonds exchanged for old indebtedness should be receivable for back taxes at the same rate that the old indebtedness would have been received if no exchange had been made.

We see no vested right of plaintiffs which is violated by the decree, no contract of theirs impaired by the legislation complained of, and no injustice done them, and especially none which this court can remedy. The decree of the supreme court of Tennessee is therefore affirmed.


text: Talk:Amy v. Taxing District of Shelby/Opinion of the Court


text:
Huntley v. Huntley

For several years prior to June 27, 1874, the appellee, Charles C. Huntley, was engaged on numerous routes in the west and north-west in the business of transporting the mails of the United States and passengers. On some of those routes S. S. Huntley was interested with him, while on others he was his general manager and agent, with unrestricted authority to conduct the business as in his judgment was best for his principal. Among the companies in which C. C. Huntley had an interest were the Northwest Stage Company-engaged in transporting mails and passengers on routes in the state of Oregon and in the territories of Utah, Idaho, and Washington-and the Oregon & California Stage Company, which was engaged in like business on the route from Oroville, California, to Portland, Oregon. In the former company, Bradley Barlow and James W. Parker each had an undivided interest of one-third, while C. C. Huntley and Adam E. Smith had each an undivided interest of one-sixth; in the latter, Barlow, C. C. Huntley, Harker, and one Sanderson had each an undivided interest of one-fourth. On the twenty-seventh day of June, 1874, Parker, by bill of sale, transferred to C. C. Huntley his interest in the property and assets of both those companies. The consideration paid was $75,000, for which the vendee executed his several promissory notes to Barlow, who indorsed them to Parker. On the twenty-second day of December, 1874, the following instrument of writing was executed by the parties thereto:

'Know all men by these presents that whereas, Bardley Barlow, is the owner of one-half of the stock, property, and effects of what was known as the Northwest Stage Company, and S. S. and C. C. Huntley are the owners of one-third of said property, and Adam E. Smith is the owner of one-sixth of said property, and each of the said parties share respectively in the above proportions in all the mail routes lately operated by said company, and are to share in the future on all those routes in the above proportions in the ownership, profits, losses, and expenses appertaining thereto or incident to the obtaining said mail routes, and it is agreed between us that the said Barlow shall have full power and authority to collect the pay on said routes during the present contract term for the benefit of said parties herein named in the proportions to each party hereinbefore stated, and that full powers of attorney in all cases shall be made and delivered to the said Barlow to collect all mail pay on all routes now owned or hereinafter acquired by the aforesaid parties, or either of them, in the territory embraced by the service of the late Northwest Stage Company.

'In witness whereof, we have hereunto set our hands and seals, this twenty-second day of December, A. D. 1874.

'BRADLEY BARLOW. [Seal.]

'C. C. HUNTLEY. [Seal.]

'S. S. HUNTLEY. [Seal.]

'ADAM E. SMITH. [Seal.]

'In the presence of-

'J. L. SANDERSON.'

Shortly after the execution of that paper, C. C. Huntley, for $30,000, sold to Barlow one-half of the interest in the Northwest Stage Company which the former had purchased from Parker.

The present suit was instituted by S. S. Huntley on the fourteenth day of December, 1878, against C. C. Huntley, Barlow, and Smith. The bill alleges, among other things, that plaintiff and defendants were the owners of the stock, pr perty, and effects of the Northwest Stage Company, and that their respective interests are distinctly set forth and agreed upon in the before-mentioned writing of December 22, 1874; that Barlow had purchased Smith's interest, and, under the authority given him, had collected all the mail pay earned by the company for its contract term ending June 30, 1878, but had not made a final settlement, in respect of such collections, with those interested with him; that he had, also, sold the property of the company for $75,000, but had not fully accounted therefor; that C. C. Huntley denied that plaintiff had any interest in that property or in its proceeds, and, unless restrained, would collect and appropriate to his own use all the proceeds and profits arising from the one-third interest which originally stood in the name of C. C. and S. S. Huntley, one-half of which, that is, one-sixth of the entire property, belonged to plaintiff. The prayer of the bill was for an ascertainment of the amount in Barlow's hands, in respect of the said one-sixth interest, and that plaintiff have a decree for such sums as may be justly due him.

C. C. Huntley, in his answer, denies that plaintiff ever acquired any interest in the purchase from Parker, or that the paper of December 22, 1874, of the signing of which he had no recollection, was intended to be anything more than a declaration or admission of the parties that Barlow was authorized to receive the money that might become due to the company from time to time. He says: 'I did not in said paper writing intend to admit, nor have I ever admitted, nor do I now admit, but, on the contrary, deny, that the said plaintiff was, or is, or was to be, an equal owner with me in the said one-third interest in said Northwest Stage Company, its property, profits, assets, etc., except in the event of the repayment to me of the said sum of $45,000, so expended in the purchase of said shares as aforesaid, with interest thereon; and, although no agreement to that effect was ever entered into, I have always been, and am now, willing that the said plaintiff shall have all the profit that has been made or derived in respect of one-sixth interest in said Northwest Stage Company, and said one-fourth interest in said Oregon & California Stage Company, since the first day of July, 1874, provided there be first repaid to me the said cost price of said purchase, to-wit, the said sum of $45,000, with interest from June 27, 1874.'

By the decree of the court below, in special term, it was adjudged that plaintiff recover of the defendant Barlow one-sixth of the property and money in his hands of the Northwest Stage Company, and the latter was enjoined from paying to C. C. Huntley any part thereof. The cause was referred to an auditor to ascertain the amount of plaintiff's interest, and to state all proper and necessary accounts. Upon appeal to the general term that decree was reversed, with costs.

''Wm. F. Mattingly and Enoch Totten'', for appellant.

''J. H. Ashton, Nathl. Wilson, and W. D. Davidge'', for appellees.

Mr. Justice HARLAN, after stating the the foregoing language, delivered the opinion of the court:

title: Huntley v. Huntley


text: Talk:Huntley v. Huntley

title: Talk:Huntley v. Huntley


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Huntley v. Huntley/Opinion of the Court

While there is some conflict in the testimony as to the circumstances attending the purchase, by C. C. Huntley, of Parker's interest in these companies, we are of opinion, upon a careful examination of the evidence, (1) that the purchase by C. C. Huntley was pursuant to an understanding between him and Barlow that the latter should have one-half of the Parker interest in the Northwest Stage Company, and with the purpose, on the part of C. C. Huntley, that S. S. Huntley should have the other half. (2) That before such purchase, S. S. Huntley was informed by C. C. Huntley of the latter's intention to let him have one-half of that interest. (3) That, at the time of such purchase, there was an unsettled account between C. C. Huntley and S. S. Huntley, in respect as well of services endered by the latter as agent and general manager for the former, as of mail contracts and business in which they were jointly interested, other than those relating to routes not occupied by the Northwest Stage Company, or other companies with which Barlow was connected. (4) That C. C. Huntley, in execution of his avowed purposes with reference to S. S. Huntley, verbally agreed with the latter, while they were together in the west in the summer or fall of 1874, after the purchase from Parker, that he should have one-half of the original Parker interest in the two compaines-that is the remaining one-sixth interest in the in the two companies-that is, the interest in the other company-at Northwest Stage Company, and one-eighth them; the amount, if any, due to S. S. Huntley, on account of the before-mentioned services and contracts, to be applied in payment, as far as it would go, for the interests so transferred to him. (5) That the ownership of those interests by S. S. Huntley was not to be deferred until a settlement of accounts between him and C. C. Huntley was had, but was to take effect as of July 1, 1874, when the new contract term of those companies commenced. (6) That the writing of December 22, 1874, was executed because of the then contemplated absence of C. C. Huntley in Europe, for the benefit of his health, and to show the interest which S. S. Huntley had previously acquired, and then, under the agreement with C. C. Huntley, actually had in the property and business of the Northwest Stage Company. (7) That, thereafter, all parties concerned in the affairs of that company, including C. C. Huntley, recognized and treated S. S. Huntley as the owner of one-sixth interest in its property and assets; subject, however, so far as C. C. Huntley was concerned, to the liability of S. S. Huntley to reimburse him for the amount which that interest had cost.

In behalf of the appellee Huntley, it is contended that the verbal agreement, upon which appellant relies as the foundation for his claim, is void under the seventeenth section of the statute of 29 Car. II. c. 3, which is in force in the District of Columbia, and which provides that 'no contract for the sale of any goods, wares, and merchandise, for the price of ten pounds sterling, or upward, shall be allowed to be good, except the buyer shall accept part of the goods sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum, in writing, of said bargain be made and signed by the parties, to be charged by such contract, or their agents, thereunto lawfully authorized.' Kelty, Eng. St. 242, (Thomp. Dig. 221.) The argument in support of this proposition is that the Northwest Stage Company was a species of partnership with joint stock divided into transferable shares, which could be disposed of by the owner without the consent of his partners; that such shares were substantially like stock in corporations or regular joint-stock companies; and that the alleged verbal sale of an interest in that company was void under the foregoing statute, because, as is claimed, the words 'goods, wares, and merchandise,' as therein used, properly embrace, not merely palpable personal property having an intrinsic value, but also stocks in chartered corporations, shares or interests in joint stock companies, or private partnerships having the incidents of such companies, notes, checks, bonds, and other evidences of value.

Without determining whether this statute governs the rights of the parties, or whether this interpretation of its provisions is sustained by the weight of authority, or whether the writing of December 22, 1874, is not itself a sufficient memorandum in writing of the sale in question, it is enough to say that the contract between C. C. Huntley and S. S. Huntley was so far executed that the rights and obligations of the parties cannot be affected by the statute. To the extent that it was possible or necessary in respec of property of this character, the vendee was placed in possession of that which he purchased. This is shown by the evidence of several witnesses, and is established by the paper of December 22, 1874, which declares that S. S. and C. C. Huntley are the owners of one-third of the stock, property, and effects of the Northwest Stage Company, and, as such and to that extent, are to share in all the mail routes then lately operated by that company, and to share, in the future, in the profits, losses, and expenses appertaining thereto. There is some evidence tending to show that when this paper was executed, C. C. Huntley was in poor health, but it falls short of proving that he was incapable, in law, of becoming a party to such an instrument. Nor does his answer assert any such incapacity as a ground of defense. Besides, that writing is in accordance with the understanding reached between him and S. S. Huntley prior to its execution.

The decrees, in general and in special term, are, in our judgment, erroneous; the former because it denied all relief to the plaintiff; and the latter because it proceeded upon the ground that the evidence showed that S. S. Huntley had fully paid for the interest sold and transferred to him by C. C. Huntley. The case should go to an auditor, to ascertain the amount, if any, fairly and justly due S. S. Huntley from C. C. Huntley at the time of his purchase from C. C. Huntley; such amount to be applied in payment of S. S. Huntley's indebtedness to C. C. Huntley, on account of the purchase from the latter of one-half of the Parker interest in the Northwest Stage Company. And if C. C. Huntley was not indebted to S. S. Huntley at that date, then the former will be entitled to be reimbursed out of the funds in the hands of Barlow, for all that he paid for the one-sixth part sold to S. S. Huntley, with interest thereon from the time of the purchase from Parker; the balance, if any, to go to S. S. Huntley. Such further decree should be rendered after the report of the auditor as the facts thus disclosed will justify or require.

The decree below is reversed, with direction for such proceedings as will be consistent with this opinion.

title: Huntley v. Huntley/Opinion of the Court


text: Talk:Huntley v. Huntley/Opinion of the Court


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State National Bank of Boston v. United States

The appellant brought this action in the court of claims to recover from the United States the sum of $125,000, with interest from March 1, 1867. The petition having been dismissed, the question upon this appeal is as to the liability of the United States to any judgment in behalf of the appellant. The facts found by the court of claims, and upon which the correctness of the judgment below must depend, are as follows:

The appellant, in February and March, 1867, was a national banking association, having its place of business in the city of Boston, Massachusetts; and there was in that city a firm of brokers under the style of 'Mellen, Ward & Co.,' the junior member of which was Edward Carter. At the same time, George D. Whittle was the chief clerk in the office of the assistant treasurer of the United States, in Boston, having its general management, and Julius F. Hartwell was disbursing clerk or paying teller. Prior to the twenty-eight day of February, 1867, Mellen, Ward & Co., acting through Carter, succeeded in inducing Hartwell to take out of the sub-treasury, at various times, and to place in Carter's hands, large amounts of money belonging to the United States, until, first and last, the sum so abstracted aggregated a million to a million and a quarter dollars. This money was used by Mellen, Ward & Co. in stock speculations. About the middle of February, 1867, the amount so obtained by Carter being then very lare, Hartwell informed him that in the use of the public money the were guilty of a crime. This, it is found by the court below, was the first information Carter had of the criminal character of these transactions.

Between the middle of February and the first of March, 1867, several conversations were held between Carter and Hartwell, in which in former expressed his purpose to make the latter's money right for the examination of the sub-treasury, which was expected to take place on the first of March, upon Hartwell's solemn assurance that he would let him have the money out of the sub-treasury again on the second of March, after the examination should be over, when Carter would repay the parties the moneys he had obtained, and, selling all the stocks and securities his firm held, replace as much as possible of the money in the sub-treasury, so as to reduce the loss to the smallest possible amount. Carter promised Hartwell that he would return all the money before the first of April, not again to come out of the sub-treasury. During the period within which those conversations between Carter and Hartwell occurred, the latter knew in a general way the extent of the resources of Mellen, Ward & Co., and how they were using the money he had let Carter have.

On the twenty-eighth of February, Carter returned to Hartwell all the money the latter had let him have, except the sum of $157,000, which the former promised to return to him the next morning. Among the funds so returned were United States gold certificates to the amount of $580,000. On the afternoon of the same day, Hartwell made known to Whittle that he had been loaning to Carter the funds of the government, and that all had been returned except about $150,000. He told Whittle that the money had been paid out to Carter, from time to time, to assist in stock speculations; that it was paid back again to tide over the monthly examination; that he had promised Carter that the money should be repaid to him the following day; and had told him that he would ask Whittle's consent that the money go back to him again. Whittle told Hartwell that it was an impossibility to let the money go back to Carter, and that any deficiency must be paid in before 10 o'clock the next morning.

About 9 o'clock A. M., of the first of March, Hartwell called on Carter at Mellen, Ward & Co.'s office and asked him if he had that money. Carter told him he did not then have it, but could give it to him before 10 o'clock, and asked Hartwell if he could not take a draft on New York, stating to him that Mellen, Ward & Co. would have a very large amount of New York funds to dispose of as soon as Hartwell returned to them the gold certificates aforesaid. Hartwell said he would take the New York funds, and the interview then ended. It does not appear that up to this time Carter had any knowledge or intimation of Hartwell's disclosures to Whittle; nor does it appear that Carter informed Hartwell as to how he intended or expected to get the draft on New York. At the close of this interview, Hartwell returned from Mellen, Ward & Co.'s office to the sub-treasury. About half past 9 o'clock of the same morning, Carter went to the banking house of plaintiff and obtained from Charles H. Smith, its cashier, his draft, as cashier, on the Manhattan Company, New York, in favor of Mellen, Ward & Co., for $125,000, which draft was in the words and figures following, to-wit: 'THE STATE NATIONAL BANK OF BOSTON,

BOSTON, March 1, 1867.

'Pay to the order of Mellen, Ward & Co., one hundred and     twenty-five thousand dollars.

'No. 215.

C. H. SMITH, Cashier.

'To the cashier of the Manhattan Company, New York.'

The facts and circumstances connected with his obtaining that draft were as follows: Carter asked Smith for the bank's draft on New York for $125,000, promising to give him immediately, in return, Mellen, Ward & Co.'s draft on New York for the same amount, with $100,000 in United States gold certificates attached, or else the Adams Express Company's receipt for that amount in gold. Upon the faith of this promise, Smith drew and delivered to Carter the draft aforesaid. In this interview between Smith and Carter nothing was said by the latter about there being any deficiency in the sub-treasury for which he was responsible; nor that he desired to use the draft to help make good a deficiency there; nor what his purpose was in obtaining it; nor does it appear that Smith had, at any time before or during this interview, any knowledge or intimation of the transactions between Carter and Hartwell. Within 15 or 20 minutes after Carter received from Smith the draft for $125,000, the former, at the office of Mellen, Ward & Co., delivered it, together with $32,000 in currency, to Hartwell. The latter paid Carter nothing for the draft; it was passed to him by Carter to make good that deficiency; and Carter supposed it would not be wanted for that purpose over an hour. Neither before nor at the time Hartwell received from Carter the draft for $125,000 did the former know anything of the means by which the latter obtained it from Smith.

Immediately after Hartwell received that draft and the $32,000 in currency from Carter, he took both to the sub-treasury and delivered them to Whittle, who objected to receiving the draft, because the rules of the government required the sub-treasury to receive nothing but gold, silver, legal-tender notes, or national bank notes; and, besides, he had an impression that, in some form or other, the plaintiff's cashier was involved in the stock speculation, which Hartwell had, the day before, told him of Mellen, Ward & Co.'s being engaged in; for Hartwell had then, after Whittle's refusal to let the money go out again, mentioned, among others, the name of Smith as one who was going to be hurt. Whittle then directed Hartwell to go out and collect the currency. Hartwell tried at several banks to raise the currency on the draft for $125,000, but could not find sufficient amount in any one bank. He then went to the Eagle National Bank of Boston, and obtained from it, in exchange for that draft, three of its drafts on New York, one for $75,000, and two for $25,000 each, with the idea that currency might be obtained in smaller amounts at different banks; but the hour was so late then-it being about 10 o'clock-that he took the three drafts directly to Whittle, at the sub-treasury saying to him that he had obtained them from the cashier of the Eagle national Bank, in exchange for the draft for $125,000, and that was the best he could do. The government examiners were at that time at work in the sub-treasury upon their monthly examination of the funds therein. Whittle then went out from the sub-treasury with the three drafts of the Eagle National Bank, and sold them to the Second National Bank of Boston, and returned to the sub-treasury with the proceeds of the sale, $125,000 in currency, which he turned over, along with the $32,000 aforesaid, to the examiners. These sums made up Hartwell's deficiency, and balanced the cash account of the office. No part of the $157,000 which those two sums made up, was ever returned to Hartwell, or Carter, or Mellen, Ward & Co., or the plaintiff. Neither when the draft for $125,000 was taken by Hartwell to Whittle, nor when it was exchanged by the former for the drafts of the Eagle National Bank, did Whittle have any knowledge or notice of the consideration or means by which that draft had been obtained from the cashier of the appellant; but he had an impression that Carter had procured it.

About 15 or 20 minutes after Smith delivered the draft for $125,000 to Carter, as heretofore stated, Smith went to Mellen, Ward & Co.'s office to inquire the reason why Carter had not brought to him the gold certificates as he had agreed to do. Carter was then absent from the office, and his partner Mellen told Smith that Carter was out about the matter at that time, and, as soon as he brought the certificates, Mellen would take them to Smith. Immediately after this, Mellen, Ward & Co. sent to Smith thei draft on New York for $125,000, but did not send with it any gold certificates, nor a receipt of the Adams Express Company. After waiting, perhaps 15 minutes, Smith went again to know why the certificates or the receipt had not been brought to him, and then, for the first time, learned that Carter was at the sub-treasury, and in trouble.

After all the foregoing transactions occurred, the plaintiff voluntarily paid to the Eagle National Bank the draft for $125,000 which Carter obtained from Smith; and the three drafts of that bank were duly paid on presentation in New York. The aforesaid draft of Mellen, Ward & Co. for $125,000 was never paid, nor was it presented to the drawee for payment. At the time Smith let Carter have the draft for $125,000, Smith was, as cashier, under bond to the plaintiff, with sureties, in the sum of $30,000, and after the plaintiff paid the draft it made demand upon him and his sureties; and the sureties, without being sued, paid to the plaintiff, within 90 days after the first of March, 1867, the full amount of their bond, and took a receipt therefor in terms such as the following:

'State National Bank, Boston, reveived of _____ the amount due from them as sureties on the bond of Charles H. Smith, late cashier of said bank, by reason of the defalcation of said Smith, resulting from an unauthorized draft made by the said Smith upon the Manhattan Company, New York, for the sum of one hundred and twenty-five thousand dollars, ($125,000,) which was applied to his own use. If the said Smith shall hereafter pay to the State National Bank the said sum of one hundred and twenty-five thousand dollars, the bank will return to the sureties the amounts by them severally paid, or if he shall pay so much thereof that the bank shall be in the receipt, including the payments made by the sureties, of a surplus beyond one hundred and twenty-five thousand dollars, the bank will return and distribute such surplus to the sureties in proportion to the sums by them severally paid. But this receipt is not to be construed or understood as an admission or recognition of any obligation on the part of the bank to take any measures to make up said defalcation, nor as the assertion of any claim by the said bank upon any funds, property, or means whereby the said defalcation, or any part thereof, can be made good, nor as any admission by the said bank that any such funds, property, or means are in existence.'

''Geo. O. Shattuck'', for appellant.

[Argument of Counsel from pages 407-409 intentionally omitted]

''Sol. Gen. Phillips'', for appellee.

HARLAN, J.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court:


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State National Bank of Boston v. United States/Opinion of the Court

The present case differs materially from U.S. v. State Bank, 96 U. s. 33. Our judgment there proceeded upon the ground that the gold certificates deposited in the sub-treasury by Smith, the cashier of the State National Bank of Boston, were known by Hartwell at the time he received them to be the property of that bank, and not of Mellen, Ward & Co. The deposit was made by Smith in the presence of Carter; and, although the receipt for the certificates was made out to Mellen, Ward &, Co. or order, it was immediately indorsed by Carter, in the name of his firm, to Smith, as cashier. The cancellation of the certificates, and their transmission to the treasurer of the United States at Washington, was, therefore, in derogation of the rights of the bank. It was adjudged that money or property of an innocent person, which had gotten into the coffers of the nation by means of fraud, to which its agent was a party, could not be held by the government against the claim of the wronged and injured party.

There is no room in the present case for the application of that principle. Apart from his responsibility for the crime committed in using the money of the United States, Carter, representing Mellen, Ward & Co., was under a legal obligation to replace the amount abstracted from the sub-treasury. Of his purpose to do so, Hartwell was informed. But he had no reason to believe that Carter would bring him money or securities which belonged to some one else, and which he could not rightfully deliver in discharge of his indebtedness to the government. When the draft of $125,000 was delivered by Carter to Hartwell, the latter was unaware of the means by which the former had obtained it from Smith, the cashier of appellant. It was, on its face, the property of Mellen, Ward & Co. Upon its receipt by Hartwell for the United States, the government acquired the same rights, in reference to it, that any private citizen, receiving it in the course of business, would have acquired. That the bank, by its cashier, made and delivered the draft to Carter upon the faith of his promise to give immediately, in return, Mellen, Ward & Co.'s draft on New York for the same amount, with $100,000 in United States gold certificates attached, or else the receipt of the Adams Express Company for that amount in gold, is a circumstance that does not affect the legal rights of the United States, to whom the draft was passed without knowledge, by its agent, of the condition upon which Mellen, Ward & Co. had received it from the bank's cashier. Nor do we deem of any significance the fact that Hartwell promised to return to Carter the money which the latter should place in the sub-treasury for the purpose of concealing from the officer supervising the examination of its books the criminal transactions in question. Carter knew that that promise could not be kept without subjecting both himself and Hartwell to criminal prosecution, and it was no violation of his legal rights for the agents of the government, after receiving from him the draft for $125,000, without any knowledge of the circumstances under which he had obtained it, to dispose of it, and place the proceeds in the sub-treasury. After these proceeds reached the sub-treasury, they could not be used or withdrawn except in the mode prescribed by law. The essential difference, therefore, between U.S. v. State Bank, ubi supra, and this case is that in the former the agents of the government appropriated to its use the property of an innocent person, knowing at the time that it belonged to that person, and not to the government, while in the present case they received, in the discharge of a debt due the government, a draft belonging to the debtor, without any knowledge or notice that the debtor had obtained it upon conditions which had not been complied with, or by means of fraudulent representations.

We perceive no ground to question the correctness of the judgment below, and it is affirmed.


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The Laura Pollock v. Bridgeport Steam-Boat Company

H. G. Atwater, for appellant.

Dennis McMahon, for appellee.

HARLAN, J.


text: Talk:The Laura Pollock v. Bridgeport Steam-Boat Company


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The Laura Pollock v. Bridgeport Steam-Boat Company/Opinion of the Court

The statutes regulating the transportation of passengers by steam-vessels on such of the waters of the United States as are common highways of commerce, or are open to general or competitive navigation,-other than public vessels of this county, vessels of other countries, and canal-boats, propelled in whole or in part by steam,-provide that every certificate of inspection granted to steamers carrying passengers, other than ferry-boats, shall show the number of passengers of each class for whom the steamer has accommodations, and whom it can carry with prudence and safety; that it shall not be lawful to take on board a greater num er of passengers than is stated in the certificate of inspection; and that 'for every violation of this provision the master or owner shall be liable, to any person suing for the same, to forfeit the amount of passage money and ten dollars for each passenger beyond the number allowed.' Rev. St. §§ 4399, 4400, 4464, 4465; Act Feb. 28, 1871, (16 St. 440, 454.) These penalties are declared to be a lien upon the offending vessel. Section 4469. Another section in the same title provides: 'If any vessel propelled in whole or in part by steam be navigated without complying with the terms of this title, the owner shall be liable to the United States in a penalty of $500 for each offense, one-half for the use of the informer; for which sum the vessel so navigated shall be liable, and may be seized and proceeded against, by way of libel, in any district court of the United States having jurisdiction of the offense.'

The libel in this case was filed by the appellant to enforce a lien, in his favor, upon a steam-vessel the class to which the above regulations apply, for penalties amounting to the sum of $5,661; which, it is claimed, accrued to the appellant, as the person suing for them, by reason of the transportation, on that vessel, at certain specified times, of a larger number of passengers than its certificate of inspection permitted. Before the trial in the district court, the owner of the vessel, a corporation which had intervened, filed an amended answer, setting up, in bar of the further prosecution of the suit, a warrant in due form, by the secretary of the treasury, remitting to the appellee 'all the right, claim, and demand of the United States, and of all others whatsoever, to said forfeiture of passage money and penalties, on payment of costs, if any there be.' The provision of the statute under which this warrant of remission was issued is in these words: 'The secretary of the treasury may, upon application therefor, remit or mitigate any fine or penalty provided for in laws relating to steam-vessels, or discontinue any prosecution to recover penalties denounced in such laws, excepting the penalty of imprisonment, or of removal from office, upon such terms as he, in his discretion, shall think proper; and all rights granted to informers by such laws shall be held subject to the secretary's power of remission, except in cases where the claims of any informer to the share of any penalty shall have been determined by a court of competent jurisdiction, prior to the application for the remission of the penalty; and the secretary shall have authority to ascertain the facts upon all such applications, in such manner and under such regulations as he may deem proper.' Rev. St. § 5294. The costs having been taxed and paid into court, the libel was, by order of the court, dismissed. Pollock v. The Laura, 5 Fed. Rep. 133. Upon appeal to the circuit court, the decree was affirmed; that court concurring with the district court in holding that the remission by the secretary of the treasury discharged all liability for the penalties. The Laura, 19 Blatchf. 562; S.C.. 8 Fed. Rep. 612.

The warrant of remission, it is contended by the libelant, is without legal effect, and should have been disregarded, because the statute upon which it rests is in conflict with the clause of the constitution investing the president with power 'to grant reprieves and pardons for all offenses against the United States, except in cases of impeachment.' The argument advanced in support of this position, briefly stated, is that the power of the president to grant pardons includes the power to remit fines, penalties, and forfeitures imposed for the commission of offenses against, or for the violation of the laws of, the United States; that such power is in its nature exclusive; and that its exercise, in whatever form, by any subordinate officer of the government, is an encroachment upon the constitutional prerogative of the president.

It is not necessary to question the soundness of some of hese propositions. It may be conceded that, except in cases of impeachment, and where fines are imposed by a co-ordinate department of the government for contempt of its authority, the president, under the general, unqualified grant of power to pardon offenses against the United States, may remit fines, penalties, and forfeitures of every description arising under the laws of congress; and, equally, that his constitutional power in these respects cannot be interrupted, abridged, or limited by any legislative enactment. But is that power exclusive, in the sense that no other officer can remit forfeitures or penalties incurred for the violation of the laws of the United States? This question cannot be answered in the affirmative without adjudging that the practice in reference to remissions by the secretary of the treasury and other officers, which has been observed and acquiesced in for nearly a century, is forbidden by the constitution. That practice commenced very shortly after the adoption of that instrument, and was, perhaps, suggested by legislation in England, which, without interfering with, abridging, or restricting the power of pardon belonging to the crown, invested certain subordinate officers with authority to remit penalties and forfeitures arising from violations of the revenue and custom laws of that country. St. 27 Geo. III. c. 32. See, also, St. 51 Geo. III. c. 96, and 54 Geo. III. c. 171.

By an act passed March 3, 1797, (1 St. 506,) the secretary of the treasury was authorized to mitigate or remit any fine, penalty, forfeiture, or disability arising from any law providing for the laying, levying, or collecting duties or taxes, or any law concerning the registering and recording of ships or vessels, or the enrolling or licensing ships or vessels, employed in the coasting trade or fisheries, or regulating the same, if, in his opinion, the same was incurred without willful negligence or fraudulent intention by the person or persons subject to the same. He was also authorized to direct a prosecution, instituted for the recovery thereof, to cease and be discontinued upon such terms and conditions as he deemed reasonable and just. This act expired by limitation at a designated time. But by an act passed February 11, 1800, it was revived, to continue in force without limitation as to time. 2 St. 7, c. 6. From the adoption of the constitution to the present moment, congress has asserted its right, by statute, to invest the secretary of the treasury and other officers of the executive branch of the government with power to remit fines, penalties, and forfeitures imposed for the violation of the laws of the United States.1 And in none of the cases in this court or in the circuit and district courts of the United States, involving the operation or effect of such warrants of remission, was it ever suggested or intimated that the legislation was an encroachment upon the president's power of pardon,-so far, at least, as it invested the secretary of the treasury or other officers with authority to remit pecuniary penalties and forfeitures. Indeed, the case of U.S. v. Morris, 10 Wheat. 246, may be regarded as a direct adjudication in favor of the validity of that part of the act of 1797, brought forward in all of the subsequent statutes upon the same subject, which confers upon the secretary the power to remit fines, penalties, and forfeitures.

In that case-which involoved the right to a share in a forfeiture declared by statute-the question related to the power of the secretary under that act, after final sentence of condemnation and judgment for the forfeiture accruing under the revenue laws, to remit the forfeiture. The court held that the power could be exercised, under that act, at any time before the money was actually paid over to the collector for distribution. It was said: 'The authority of the secretary to remit, at any time before condemnation of the property seized, is not denied on the part of the plaintiff, [the officer claiming the forfeiture;] and it cannot be maintained that congress has not the power to vest in this officer authority to remit after condemnation; and the only inquiry would seem to be whether this has been done by the act referred to.' Evidently the court, and the eminent counsel who appeared in that case, accepted it as a proposition not open to discussion, that the power of the president to pardon for offenses did not preclude congress from giving the secretary of the treasury authority to remit penalties and forfeitures. Touching the objection now raised as to the constitutionality of the legislation in question, it is sufficient to say, as was said in an early case, that the practice and acquiescence under it, 'commencing with the organization of the judicial system, affords an irresistible answer, and has, indeed, fixed the construction. It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled. Of course, the question is at rest, and ought not now to be disturbed.' Stuart v. Laird, 1 Cranch, 308. The same principle was announced in the recent case of Lithographic Co. v. Sarony, 111 U.S. 57; S.C.. 4 SUP. CT. REP. 279, where a question arose as to the constitutionality of certain statutory provisions reproduced from some of the earliest statutes enacted by congress. The court said: 'The construction placed upon the constitution by the first act of 1790, and the act of 1802, by the men who were contemporary with its formation, many of whom were members of the convention which framed it, is of itself entitled to very great weight; and when it is remembered that the rights thus established have not been disputed during a period of nearly a century, it is conclusive.' See, also, Cooley v. Board of Wardens, 12 How. 315; Martin v. Hunter's Lessee, 1 Wheat. 304: Cohens v. Virginia, 6 Wheat. 264.

It is, however, insisted that if the statute in question is constitutional, it cannot be construed as giving the secretary of the treasury the power to remit a penalty after a suit for its recovery has been instituted by a private person. In support of this position we are referred to numerous authorities, which, it is claimed, hold that the test of what may be done under the power of pardon granted by our constitution is what the king of England could do, by virtue of his pardoning power, at the time of the separation from that country; and that he could not grant a pardon to the injury of a subject, and therefore could not remit a penalty after suit by a private person to recover it. It is quite true, as declared in U.S. v. Wilson, 7 Pet. 160, that, since the power to pardon 'had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ourshave a close resemblance, we adopt their principles respecting the operation and effect of a pardon.' But that principle has no possible application to the present case; for the statute under which the libelant proceeds, and without which he would have no standing in court, declares, in terms, that 'all rights granted to informers'-and the libelant is plainly of the class intended to be described-shall be held 'subject to the secretary's power of remission, except in case where the claims of any informer to the share of any penalty shall have been determined by a court of competent jurisdiction prior to the application for the remission of the penalty.' If the libelant had, by virtue of his suit, an inchoate interest in such penalties, that interest was acquired subject to the power of the secretary to destroy it by a remission applied for before the right is ascertained and established by the judgment of the proper court.

The decree below is affirmed.


text: Talk:The Laura Pollock v. Bridgeport Steam-Boat Company/Opinion of the Court


text:
United States v. Petit

WAITE, C. J.

title: United States v. Petit


text: Talk:United States v. Petit

title: Talk:United States v. Petit


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Page:Popular tales from the Norse (1912).djvu/620

 434 They told her they had not taken any—that it was the baby—but she would not believe them, and said, "How could a little baby get up and help itself;" but the children still persisted it was the baby. So one day, when she was going out, she put some pumpkin in a calabash, and set a trap over it. When she was gone, the baby got up as usual to eat the food, and got its head fastened in the trap, so that it could not get out, and began knocking its head about, and crying out, "Oh! do loose me, for that woman will kill me when she comes back." When the woman came in, she found the baby fastened in the trap, so she jat it well, and turned it out of doors, and begged her children's pardon for having wronged them.

Then after she turned the baby out, he changed into a great big man, and went to the river, where he saw the old man sitting by the river side, who asked him to wash his head, as he had asked the poor woman, but the man said,—

"No, he would not wash his dirty head," and so he wished the old man " good-bye."

Then the old man asked him if he would like to have a pumpkin, to which he said "yes," and the old man told him to go on till he saw a large tree with plenty of pumpkins on it, and then he must ask for one. So he went on till he got to the tree, and the pumpkins looked so nice he could not be satisfied with one, so he called out, "Ten pumpkins come down," and the ten pumpkins fell and crushed him.

THE BROTHER AND HIS SISTERS.

were once upon a time three sisters and a brother. The sisters were all proud, and one was very beautiful, and she did not like her little brother, "because," she said, "he was dirty." Now, this beautiful sister was to be married, and the brother


text:
United States v. Petit/Opinion of the Court

The first question certified in this case is answered in the negative, and the second in the affirmative, on the authority of Ex parte Wilson, ante, 935, decided at the present term.


text: Talk:United States v. Petit/Opinion of the Court


text:
Dodge v. Knowles

J. H. Gordon, for appellants.

No appearance for appellee.

GRAY, J.

title: Dodge v. Knowles


text: Talk:Dodge v. Knowles

title: Talk:Dodge v. Knowles


text:
Dodge v. Knowles/Opinion of the Court

This is an appeal by the children and heirs at law of Frances I. Dodge, a married woman, deceased, from a decree ordering her real estate to be sold for the payment of debts alleged to have been due from her to the appellee, upon a bill filed by him, in behalf of himself and other creditors who might come in, against the husband in his own right and as trustee and executor of the wife, and against her children and various other persons interested in the real estate.

By an antenuptial settlement, executed on January 22, 1852, Mrs. Dodge (then Frances I. Chapman) conveyed all her real estate to Mr. Dodge, in trust, to hold the same for her sole and separate use and benefit during her life, and so that the same, and the rents and profits thereof, should not be liable for his debts, 'or in any way subject to his control or contracts, except so far as is consistent with the provisions of this contract;' and to permit her, by herself or her attorney appointed by writing under her hand, to collect and receive the rents and profits from time to time accruing, and to dispose of the same as she might see fit, for her own separate use and benefit; and if she should, by writing under her own hand and seal, and attested by two witnesses, direct the leasing or the absolute sale of the real estate or any part thereof, then the trustee should lease or sell and convey the same accordingly, and collect the proceeds of any sale, and invest them in his name as her trustee, in such a manner as she might approve and require, 'and hold the said investments, when made, for the same uses, trusts, and purposes, and with the like power and authority, and subject to the like limitations, as are hereinbefore declared of and concerning the original trust subject;' and it was provided that the wife, notwithstanding her coverture, might by will devise and dispose of the estate, or any part thereof, as she might see fit, and the trustee should hold and dispose of the same accordingly; and further provisions were made for the disposition of the estate in case she should make no will.

On January 25, 1876, the wife died, leaving three children, and a will, by which, by virtue of the power of appointment reserved to her in the marriage settlement, she devised all her real estate to her husband in trust for the use and benefit of two of her children, and appointed him executor, and made no provision for the payment of debts.

The plaintiff was a retail grocer, and at different times from 1870 to 1875 delivered groceries at the dwelling-house where the husband and wife and their children resided together, and received from the husband, in payment therefor, or in renewal of other similar notes, promissory notes signed by him in this form, 'F. DODGE, Trustee for Fannie I. Dodge,' payable to the plaintiff or order. At the time of the wife's death, the plaintiff held four such notes, payable at various periods not more than four months after date, for sums amounting in all to $2,171.61, and interest, and had delivered groceries to the amount of $120.10, for which no note had been given. The personal property left by Mrs. Douge was exhausted by a distribution made by her executor among her creditors, under a decree of the probate court, by which the plaintiff received a dividend o $117 upon his claim.

It was further alleged in the bill, and denied in the answer of the children, that at the time of the giving of the four notes, and for several years before, Mrs. Dodge was indebted to the plaintiff in a large sum of money for groceries furnished to her, on the credit of her sole and separate estate, for the maintenance of herself and her children and her husband, he being insolvent and entirely without property; and that she caused him for her to make and deliver the notes to the plaintiff; 'all which said indebtedness said Frances I. Dodge declared was chargeable to her sole and separate estate, upon the faith of which it was incurred, it having been represented to the plaintiff that her intention to fully secure the same by a proper conveyance in trust had been from time to time before her death prevented by her physical condition;' and that at the time of her death there was also due to plaintiff the sum of $120.10 on open account for groceries furnished as aforesaid.

The material parts of the testimony introduced by the plaintiff were as follows:

The plaintiff testified: 'The groceries were furnished to Mrs. Fannie I. Dodge. They were furnished to the credit of Mrs. Dodge. The four notes were received in part renewal of other notes and a running grocery account. Mrs. Dodge is also indebted to me in the sum of $120.10 for groceries furnished upon her faith and credit. These groceries were delivered at her dwelling-house. They were ordered by Mr. Dodge and the servants from time to time. Occasionally Mrs. Dodge was in the store and ordered some. These articles were furnished upon the credit of Mrs. Dodge, because I expected Mrs. Dodge to pay me for them. I did not expect Mr. Dodge to pay for them, because Mrs. Dodge was looked upon as being worth means, and Mr. Dodge not. Mr. Dodge never offered to pay me this account, or any portion of it, or to give his own note for any portion of it. He has handed me money which has been placed to the credit of the account. He has repeatedly told me that Mrs. Dodge had plenty of property to pay her debts, and would. He promised me security from Mrs. Dodge upon her real estate for this indebtedness. I did not get it, owning to Mrs. Dodge's death. I did not get a promise from anybody else that I should have real estate security. Mrs. Dodge never personally promised to give me real estate security. I did not see her during the latter part of the transaction.' The plaintiff put in evidence a letter written to him on January 10, 1876, by Mr. Dodge, saying: 'My wife is dangerously ill, and has been ever since I saw you. Of course I can do nothing yet as to the security promised you. As long as Mrs. Dodge lives, it requires her signature; if the dies, I am still trustee for her heirs, and can then execute a deed to you as such trustee.'

The husband testified that he was a clerk in an insurance office, and further, testified: 'The notes were signed, 'F. DODGE, Trustee for Fannie I. Dodge,' because I had no property. I had no property to give a note upon; I was bankrupt. They were to be chargeable to her. They would not have been signed by me as trustee, unless it was for her and upon her responsibility. I never accompanied the delivery of those notes with the declaration that they were intended to bind her real estate-not that I can remember. These notes were given with the knowledge of my wife, under her general tuthority The amounts do not represent any indebtedness contracted by me. The articles furnished by Mr. Knowles were to eat. The family consumed them-my wife's family. Her children and servants comprised that family. These articles were purchased by her and on her credit. She made the exclusive arrangements for their purchase through me, as trustee. I was an inmate of the family during this time; my salary furnished the marketing, and I gave everything I had to the family. I could not support the whole family. She furnished medicines, wood, and coal. I told Mr. Knowles verbally that Mrs. Dodge was ill with paralysis; that she could not be spoken to on business; that when she got well I would get her to give him real estate security if I could. I afterwards wrote him the letter of January 10, 1876. The promise given by me was in connection with the notes held by Mr. Knowles. By signing a note I could not make it binding on real estate. These notes were not intended by me to be binding upon her real estate any more than suit at law would make them so. I only meant that she had real estate enough to secure any debt she was making.'

At the hearing upon bill, answers, a general replication, and evidence, the supreme court of the District of Columbia, at special term, entered a decree dismissing the bill. Upon appeal to the general term that decree was reversed, and it was adjudged that the plaintiff's claim, as stated in the bill, be a lien upon the real estate included in the marriage settlement. 1 Mackey, 66. The children appealed to this court.

This being an appeal in equity, the facts as well as the law are to be determined by this court. The opinion of the court below and the brief of the appellant deal principally with questions of the manner in which the wife could charge her separate estate, and of the effect of her exercise of the power of appointment as making that estate assets for the payment of her debts. But it is unnecessary to consider either of those questions, because we do not find in the record any satisfactory evidence that the debts sought to be enforced were the wife's debts, or that she intended to charge them upon her separate estate.

The plaintiff's claims are for groceries supplied to a household in which the husband and wife and their children were living together; and upon promissory notes given by the husband, describing himself as trustee for the wife, in payment for groceries so supplied. The obligation to pay for the supplies of the family is ordinarily a debt of the husband. Promissory notes given by the husband, though describing himself as trustee for the wife, bind him personally, and do not bind her estate, unless he is clearly proved to have had authority to give them in her behalf. The terms of the marriage settlement did not authorize the husband to contract any debts on the wife's account. The evidence introduced by the plaintiff consisted of the testimony of himself and of the husband. The plaintiff's testimony was rather to his own motives and reasons for charging the goods to the wife, than to any contract by her; and the husband's testimony was more to legal conclusions than to specific facts.

While the plaintiff testified in general terms that the goods were furnished to the wife, and upon her faith and credit, and gave, as his reason for furnishing them upon her credit, that he expected her to pay for them, and did not expect the husband to do so, because she was looked upon as worth means, and he was not; and stated that the husband promised him security from the wife upon her real estate; yet the only specific facts to which he testified, bearing upon the question who was his debtor, were that the groceries were delivered at the dwelling-house; that they were ordered by the husband and the servants, and occasionally by the wife; and that the husband had handed him money which had been placed to the credit of the account. He did not testify to any express contract by the wife, and he admitted that she never promised to give him security on her real estate.

The testimony of the husband was hardly more direct. He testified, indeed, that the goods were purchased by the wife and on her credit, and that she made the exclusive arrangements for their purchase through him as trustee; that the notes were to be chargeable to her, and would not have been signed by him as trustee unless it was for her and upon her responsibility; and that they 'were given with her knowledge, under her general authority.' But he did not define or indicate the nature or extent of the general autho ity to which he referred; he did not testify that she ever promised to pay for the goods, or expressly authorized him to promise that she would pay for them; and he did testify that he never, so far as he could remember, accompanied the delivery of the notes with a declaration that they were intended to bind her real estate. Such testimony is wholly insufficient to warrant a court of equity in decreeing that debts, which are prima facie the debts of the husband, should be considered as debts of the wife, and made a lien upon her separate estate.

Decree reversed, and case remanded, with directions to dismiss the bill.

title: Dodge v. Knowles/Opinion of the Court


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Page:Popular tales from the Norse (1912).djvu/621

 Rh begged their mother not to let her marry, as he was sure the man would kill her, for he knew his house was full of bones. So the mother told her daughter, but she would not believe it, and said, "she wouldn't listen to anything that such a dirty little scrub said," and so she was married.

Now, it was agreed that one sister was to remain with her mother, and the other was to go with the bride, and so they set out on their way. When they got to the beach, the husband picked up a beautiful tortoise-shell comb, which he gave to his bride. Then they got into his boat and rowed away over the sea, and when they reached their home, they were so surprised to see their little brother, for the comb had turned into their brother. They were not at all glad to see him, and the husband thought to himself he would kill him without telling his wife. When night came the boy told the husband that at home his mother always put him to sleep in the blacksmith's shop, and so the husband said he should sleep in the smithy.

In the middle of the night the man got up, intending to kill them all, and went to his shop to get his irons ready, but the boy jumped up as soon as he went in, and he said, "Boy, what is the matter with you?" So the boy said, when he was at home his mother always gave him two bags of gold to put his head on. Then the man said, he should have them, and went and fetched him two bags of gold, and told him to go to sleep.

But the boy said, "Now, mind, when you hear me snore I 'm not asleep, but when I am not snoring, then I'm asleep." Then the boy went to sleep and began to snore, and as long as the man heard the snoring, he blew his bellows; but as soon as the snoring stopped, the man took his irons out of the fire, and the boy jumped up.

Then the man said, "Why, what's the matter? why can't you sleep?"

The boy said, "No; for at home my mother always gave my lour bags of money to He upon."

Well, the man said he should have them, and brought him


text:
Dobson v. Hartford Carpet Company Same

H. T. Fenton and R. P. White, for appellants.

A. v. Briesen, for appellees.

BLATCHFORD, J.

title: Dobson v. Hartford Carpet Company Same


text: Talk:Dobson v. Hartford Carpet Company Same


text:
Page:Popular tales from the Norse (1912).djvu/622

 436 four bags of money. Then the boy told him again the same thing about his snoring, and the man bade him go to sleep, and he began to snore, and the man to blow his bellows until the snoring stopped. Then the man took out his irons again, and the boy jumped up, and the man dropped the irons, saying, "Why, what's the matter now that you can't sleep?"

The boy said, "At home my mother always gave me two bushels of corn."

So the man said he should have the corn, and went and brought it, and told him to go to sleep. Then the boy snored, and the man blew his bellows till the snoring stopped, when he again took out his irons, and the boy jumped up, and the man said, "Why, what's it now?"

The boy said, "At home my mother always goes to the river with a sieve to bring me some water."

So the man said, "Very well, I will go, but I have a cock here, and before I go I must speak to it."

Then the man told the cock if he saw any one moving in the house he must crow; that the cock promised to do, and the man set off.

Now when the boy thought the man was gone far away, he got up, and gave the cock some of the corn; then he woke up his sisters and showed them all the bones the man had in the house, and they were very frightened. Then he took the two bags of gold on his shoulders, and told his sisters to follow him. He took them to the bay, and put them into the boat with the bags of gold, and left them whilst he went back for the four bags of money. When he was leaving the house he emptied the bags of corn to the cock, who was so busy eating, he forgot to crow, until they had got quite away.

When the man returned home and could not find them in the house, he went to the river, where he found his boat gone, and so he had no way of going after them. When they landed at their own place the boy turned the boat over and stove it in, so that it was of no use any more; and he took his sisters home,