text:
Griffith v. Godey

This is a suit in equity to charge the defendants as trustees of certain property in which the complainant was interested, and which they received and disposed of. The facts out of which the case arises, briefly stated, are as follows:

For some years previous to 1870 the complainant, Ellis Griffith, and his brother, John Griffith, were partners, engaged in the business of cattle raising, and resided in Kern county, California, where they occupied what is called a stock range, a tract of country on which cattle are permitted to roam and graze. It may be termed the feeding ground-the pasture land of the cattle. Although the title to the land constituting the range was in the United States, and the land was not inclosed, the right of the Griffiths to use it for the pasturage of their cattle was recognized and respected by their neighbors and other stock raisers in the county. It had excellent springs, furnishing water to cattle roaming over a large extent of country, and was capable of supporting from one to three thousand head. It had, therefore, a great value, proportionate to the number it could support. In April, 1870, one Pedro Altube, a member of the firm of Peres & Co., large cattle dealers in California, who was familiar with Kern county and with the character of the range, desired to purchase it for his firm, and offered for it, with the stock, $12,000.

John Griffith died on May 21, 1870, intestate, leaving surviving him two brothers, the complainant and Morris Griffith, his only heirs at law. The partnership property of the deceased and the complainant remained in the latter's possession. It consisted, principally, of horned cattle, horses, and the range mentioned. The brother Morris, who would have been a proper party complainant, declined to take part in the suit. Ellis Griffith, the surviving partner, was a man of weak mind, without any knowledge of business, and barely able to read and write. Among his neighbors were the defendants, Godey and Williams. Godey was an old resident of the county, a man of means, and had the entire confidence of the complainant. On the ninth of June, within a month after the death of the intestate, Altube spoke t Godey about purchasing the range, and stated that he would give for it, with the stock, $12,000, the sum he had offered previously in April; but Godey then had no control over the range, and could therefore give no title to it. The complainant and deceased were aliens, and on the fifteenth of July, 1870, upon the advice of Godey, the complainant declared his intention to become a citizen of the United States, and soon afterwards, upon similar advice, filed an affidavit in the office of the clerk of the county to the effect that he had taken up 160 acres of the range where the springs were. This proceeding was had under a statute of California passed in 1852, which gave the claimant a standing in the courts of the state, and enabled him to maintain possession as against any one not having the title of the United States. The bill alleges that the complainant did not know the nature of the affidavit he had filed, but supposed that by the statement he had made in court he had become a citizen. On the day following, July 16th, Godey filed in the probate court of the county a petition for special letters of administration on the estate of the deceased, and on the nineteenth of July he was appointed special administrator.

The complainant, as surviving partner, was entitled to wind up the affairs of the partnership; but he consented that Godey should receive full letters of administration, and, as administrator, settle the estate of the deceased, without prejudice, however, to his rights as surviving partner to an undivided half of the proceeds of the estate, after the payment of its debts and the expenses of administration. Godey thereupon resigned as special administrator, and was appointed full administrator. He seems to have considered the consent of the complainant as authorizing him to settle up the partnership business as administrator, and accordingly he at once took possession of all its personal property. In August following he filed his inventory, accompanied with his affidavit that it was a statement of 'all the estate of the deceased' which had come to his knowledge and possession. He did not include in it the range or any land. The property mentioned was valued by appraisers appointed by the court at $3,283.50, and consisted of 142 horses, valued at $9 each; 127 cattle, valued at $15 each; a wagon and harness, valued at $100; and a branding-iron, valued at 50 cents. On the sixteenth of that month, upon representations of Godey, an order was obtained from the court that the horses and cattle be sold, as perishable property; and on the twenty-seventh of the same month they were accordingly sold, together with 31 horses not mentioned in the inventory, but subsequently found to belong to the partnership, and a few articles of little value also omitted from the inventory, all of which were bid off by the defendant Williams for $2,077.50. No portion of this sum was paid by Williams at the time. Three weeks afterwards he paid $600 on account. The balance was not paid until after the sale to Altube, as hereinafter mentioned. The sale was, however, reported by Godey under oath to the probate court as having been made for cash.

On the seventeenth of September, 1870, the complainant executed a conveyance of his claim of 160 acres to the defendant Godey for the sum of $500. In the bill he alleges that he did not know the contents of the instrument, but signed it at Godey's request, without intending to convey any interest in the range, and that he received no consideration for it. He was not then, nor at any other time, informed of the offer made for the range and stock by Altube, of the firm of Peres & Co. Soon after this conveyance Godey informed Altube that he and Williams would sell him the range and stock for $13,000. Altube accepted the offer on condition that a certain squatter on the land should be removed. They bought off the squatter for $500, and on the seventh of November, 1870, Altube paid the $13,000 for the range and stock, which sum was equally divided between them.

In the accounts filed by the administrator, the sum bid by the defendant Williams, and the amount of $450 obtained from the sale of cattle in another county, were stated as the proceeds of the whole estate, and they were applied to various claims, the largest of which was held by the administrator, and to meet sundry expenditures, until a balance of only $453.05 was left. On the eighth of July, 1872, the probate court made a decree approving of the accounts, and directing that three-fourths-that is, $339.78-be awarded to the complainant, a receipt for which was given by Mr. Brundage, who appears to have been an attorney, acting under an agreement that he should receive as his compensation one-half of what he should collect. No money was actually paid to the complainant, but the amount was indorsed on a note of his held by Godey.

The present bill was filed to charge the defendants as trustees of the partnership property which came into their hands, and compel them to account for the proceeds obtained by them on its sale to Altube. Its prayer is not in form for this specific relief, but for an accounting for the value of the property, or such other relief as may be just. The court below was of opinion that as the two Griffiths, who composed the partnership, were both aliens and had never taken any steps to become citizens of the United States, and as the range was on unsurveyed public lands of the United States, which they had never inclosed, they had in it no such property interest as to require the administrator to include the claim in his inventory of the property of the deceased. The court also held that the proofs did not sustain the allegations as to the misappropriation of the other property, or of its sale at an inadequate price. The bill was accordingly dismissed, and from the decree the case is brought by appeal to this court.

F. W. Hackett, for appellant.

No appearance for appellee.

FIELD, J.

title: Griffith v. Godey


text: Talk:Griffith v. Godey

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

title: Talk:Griffith v. Godey


text:
Griffith v. Godey/Opinion of the Court

It is well established that a settlement of an administrator's account, by the decree of a probate court, does not conclude as to property accidentally or fraudulently withheld from the account. If the property be omitted by mistake, or be subsequently discovered, a court of equity may exercise its jurisdiction in the premises, and take such action as justice to the heirs of the deceased, or to the creditors of the estate, may require, even if the probate court might, in such case, open its decree and administer upon the omitted property. And a fraudulent concealment of property, or a fraudulent disposition of it, is a general and always existing ground for the interposition of equity. Here, all the property of which the defendant Godey, as administrator of the deceased, took possession, belonged to the partnership of which the complainant was the surviving partner. The portion coming to the deceased was merely the one undivided half after payment of the debts of the partnership. Only upon such portion could the court properly authorize administration. The administrator, however, interpreted the consent of the complainant that he might settle the estate of the deceased as authority to take the whole partnership property under his control equally as if it were the separate property of the deceased, though the consent expressly reserves the rights of the complainant as surviving partner. The complainant, it appears, was a man of weak intellect, without any knowledge of business and hardly able to read and write; and it is evident that he was ignorant of the nature and extent of his rights over the partnership property after the death of his brother, who had had the principal management of it. Under such circumstances, the administrator was bound to the utmost good faith in his dealings with the property, and should be held, in its disposition, to the responsibilities of a trustee of the complainant, though we leave the proceedings of the probate court undisturbed.

The cattle range, which constituted the property of greatest value belonging to the partnership, was not taken possession of by the administrator, though by the law of California, then in force, all property of an intestate, real or personal, went into the hands of that officer for purposes of administration. Curtis v. Sutter, 15 Cal. 259, 264. He plainly had a design to secure the range to himself at a trifling cost, knowing that a large price was offered for it, and could at any time be obtained. The whole administration seems to have been conducted by him to carry out this design. He first takes steps to have the cattle and horses of the partnership sold as perishable property, upon the representation that they were likely to decrease in value, become worse by keeping, and were subject to loss and expense, and therefore that their sale would be best for the estate; yet he well knew that a sale of the cattle separate from the range would be much less advantageous than with it; and the falsehood of the alleged necessity appears from the fact that the range was amply sufficient for the support of the cattle, and that they were never removed from it. He next persuades the complainant to declare his intention to become a citizen, and to file a claim to 160 acres of the range, inclosing the springs, and then obtains a deed from him for the trifling consideration of $500. The complainant alleges that he never knew the contents of the instrument he signed and never received the consideration named. But, assuming that he is mistaken in this particular, he was not informed of the value of the range; nothing was said to him of the price offered for it, and which Godey knew was ready to be again offered.

No sooner was this coveyance obtained than Godey opened communication with Altube, offering to sell the range and stock for $13,000. The offer was accepted on a condition which was complied with by an expenditure of $500. A sale was then effected, and the $13,000 paid to the defendants, and, as if to show that the transaction was the result of a conspiracy, the proceeds were equally divided between them. It was a case of deception and fraud practiced upon a man of weak intellect, and the rule which is stated in Allore v. Jewell, 94 U.S. 511, to be settled law is applicable: 'That wherever there is great weakness of mind in a person giving a conveyance of land, arising from age, sickness, or any other cause, though not amounting to absolute disqualification, and the consideration given for the property is grossly inadequate, a court of equity will, upon proper and reasonable application of the injured party, or his representatives or heirs, interfere and set the conveyance aside.' The complainant does not ask to have the conveyance to Godey set aside, but he asks that Godey may be compelled to account to him for the amount received for the property of which he had thus fraudulently obtained a conveyance.

It is plain, also, that the defendant Williams participated in the fraudulent design. He never paid anything on his bid for the horses and cattle at the probate sale until weeks afterwards, and then less than one-fourth of the amount. It was not until after the cattle and horses were purchased by Altube that he paid the balance, although he knew that the probate sale could be made only for cash, and that the amount bid by him had been reported to the court as cash paid. He knew, also, that the property did not belong to the deceased, but to the partnership between him and the complainant, and that the latter had not relinquished his partnership rights. He therefore took the property with notice of those rights, and of the relation as trustee which the administrator bore to the complainant. The record shows that all the partnership property was sold within six months after the death of the deceased, so as to net over $12,000, and that out of that sum the complainant received only $500. The defendants made a large profit out of the transactions, which they divided between them. They should therefore be required to account to the complainant, as surviving partner of the deceased, for their unjust gains. In such accounting, they should be charged with the amount received by them from the sale to Altube, and be credited with the amount paid by defendant Williams at the probate sale, the sum of $500 paid by defendant Godey for the conveyance of the possessory claim, and the $500 paid to remove the squatter from the land; the balance to draw interest until decree.

The error of the court below arose from treating the possessory right to the cattle range on the public lands-as it was then held by the partnership on the death of John Griffith-as not constituting any property of value which could be recognized as such by the courts, the claimants being both aliens who had never taken any steps to be naturalized. But the constitution of California, then in force, invested foreigners who were bona fide residents of the state with the same rights, in respect to the possession and enjoyment of property, a native-born citizens. Article 1, § 17. And the possessory right to the range, though held by aliens, was respected by their neighbors and all cattle dealers of the country, and had a market value, as shown by the price which others were ready to pay for it. The responsibility of trustees does not depend upon the validity of the title of the grantor of the trust property. If the right or interest transferred to them can be sold for a valuable consideration, it is to be treated as property, and corresponding duties devolve upon the trustees with respect to its sale as upon the sale of property, the title of which is undisputed.

The decree of the court below must be reversed, and the cause remanded, with directions to enter a decree in conformity with this opinion; and it is so ordered.

title: Griffith v. Godey/Opinion of the Court


text: Talk:Griffith v. Godey/Opinion of the Court


text:
Page:Travels with a Donkey In The Cevennes.djvu/94

76 "Ask for the Brother Porter, and all will be well. But try to see me as you go out again through the wood, where I may speak to you. I am charmed to have made your acquaintance." And then suddenly raising his arms, flapping his fingers, and crying out twice, "I must not speak, I must not speak!" he ran away in front of me, and disappeared into the monastery-door.

I own this somewhat ghastly eccentricity went a good way to revive my terrors. But where one was so good and simple, why should not all be alike? I took heart of grace, and went forward to the gate as fast as Modestine, who seemed to have a disaffection for monasteries, would permit. It was the first door, in my acquaintance of her, which she had not shown an indecent haste to enter. I summoned the place in form, though with a quaking heart. Father Michael, the Father Hospitaller, and a pair of brown-robed brothers came to the gate and spoke with me awhile. I think my sack was the great attraction; it had already beguiled the heart of poor Apollinaris, who had charged me on my life to show it to the


text:
Rowell v. Lindsay

James J. Dick, for appellants.

E.E. Wood and E. Boyd, for appellees.

WOODS, J.

title: Rowell v. Lindsay


text: Talk:Rowell v. Lindsay

title: Talk:Rowell v. Lindsay


text:
Rowell v. Lindsay/Opinion of the Court

The appellants, John S. Rowell and Ira Rowell, were the plaintiffs in the circuit court. They brought their bill in equity against Edmund J. Lindsay and William Lindsay, the appellees, to restrain the infringement of reissued letters patent No. 2,909, dated March 31, 1868, granted to the plaintiffs for 'a new and improved cultivator.' The invention was illustrated by the annexed drawings, and was described in the specification as follows:

'Fig. 1 is a side elevation of the tooth, in a beam shown in longitudinal section. Fig. 2 is a top view of the beam, with the tooth in position. This invention consists in applying to the shank of the tooth a curved brace-bar, the upper end of which passes through a slot or mortise in the beam, and is held in position by a clamping-bolt, which passes transversely through the slot or mortise near the brace-bar, and forces the sides of the beam together against the brace-bar, so as to clamp it in any required position, and thereby adjust the tooth in any inclination, at the same time allowing it to yield to immovable obstacles without breaking. In the drawings, A represents one of the beams of a cultivator; B, the shank, pivoted at b; B', the tooth; C, a curved brace-bar extending in the arc of a circle outward and upward from the rear side of the shank, B, and its upper end passing vertically through a longitudinal slot or mortise, a, in the beam, A; and D, a bolt, passing transversely through the slot or mortise, and having a head, d, on one end, and a nut, d', on the other, by which the side walls of the slot or mortise can be clamped against the brace-bar with any required force, thereby holding the latter in position when operating in the field. It is evident that in a device thus constructed and operating, the brace-bar, C, can be so clamped that the tooth will retain its position when working in arable soil, but will yield when coming in contact with an immovable obstacle, and pass over it without breaking, the shank turning back upon its pivot, b, and the brace-bar being forced up through the slot. The same arrangement also allows the shank to be adjusted in any position for deep or shallow cultivating.

'Having thus described our invention, what we claim as new, and desire to secure by letters patent, is the combination of the slotted beam, A, shank, B, brace-bar, C, and bolt, D, when the parts are constructed and arranged to operate as and for the purposes herein specified.'

The answer of the defendants, among other defenses, denied infringement of the letters patent. The plaintiffs contended that infringement of their letters patent was made out by the evidence, which tended to show that the defendants constructed and sold seeding-machines made according to the specification of letters patent granted to John H. Thomas and Joseph W. Thomas, dated June 30, 1874, for 'an improvement in seeding-machines.' This invention related to the drag-bars and shovel standards of broad cast seeders, and consisted mainly in the manner of attaching the standards to the drag-bar. The invention can be readily understood from the annexed drawings, by which the specification was illustrated:

The bar, A, is cut so as to leave a slit in the rear end as at A2, to receive the shank of the shovel, C. This is secured in the slit by the bolt, D. Another threaded bolt is passed through the bar, A, in such place as to sustain the shovel when in proper position. The ends of the bifurcated bar are drawn down by the bolt, E, or by the united action of the bolts, E and D, until clamped against the standard of the shovel with such force that the friction shall maintain the shovel in position while passing through mellow earth, but not so tight but that it will yield to an excessive resistance before force enough is applied to break the shovel. The advantages of the invention are thus stated: 'By the form given to the standard we obtain not only the gripe on the pivoted end, but also a gripe against the sides of the standard, so that from its form it must be moved in the direction of its length. A much less restraining force will then hold the standard with requisite tenacity. Our device has its distinguishing feature in that construction, as shown, by which the shank is itself so bent as to give effect to the double action of the joint at the eye and the compressing bolt, E. By making it in one piece its construction is greatly cheapened, as compared with that class where an arm has to be welded into the shank.' The claim of this patent was as follows: 'In combination with the drag-bar, A, bifurcated at A2, the curved shovel standard, C, bent as shown, and pivoted by bolt at D and clamped by bolt, E, substantially as shown and described.'

Upon final hearing upon the pleadings and proofs the circuit court dismissed the bill, and the plaintiffs appealed.

The evidence shows that the shanks or standards of plows, cultivators, and seeding machines have been used in a great variety of forms. In some, the upper end of the brace entered the beam in the rear, and in others, in front of the shank. In some, the upper end of the shank and the brace were so formed and united as to present an elliptical figure. Many, perhaps the majority, were without braces. In some, the upper end of the shank was made with a head in the form of an elliptical or circular plate, called an enlarged head. This performed the function of a brace. The patent of the plaintiffs, therefore, stands on narrow ground, and to sustain it, it must be so construed as to confine it substantially to the form described in the specification. The patent of the plaintiffs is for a combination only. None of the separate elements of which the combination is composed are claimed as the invention of the patentee; therefore none of them, standing alone, are included in the monopoly of the patent. As was said by Mr. Justice BRADLEY in the case of The Corn-Planter Patent, 23 Wall. 224: 'When a patentee, after describing a machine, claims as his invention a certain combination of elements, or a certain device, or part of the machine, this is an implied declaration-as conclusive, so far as that patent is concerned, as if it were expressed-that the specific combination or thing claimed is the only part which the patentee regards as new. True, he or some other person may have a distinct patent for portions not covered by this, but that will speak for itself. So far as the patent in question is concerned, the remaining parts are old, or common and public.' See, also, Merrill v. Yeomans, 94 U.S. 573; Water-meter Co. v. Desper, 101 U.S. 332-337; Miller v. Brass Co. 104 U.S. 350. These authorities dispose of the contention of the plaintiffs' counsel that their patent covers one of the separate elements which enters into the combination, namely, a slotted wooden beam, because, as they contend, that element is new, and is the original invention of the patentees.

The patent being for a combination, there can be no infringement unless the combination is infringed. In Prouty v. Ruggles, 16 Pet. 336, it was said: 'This combination, composed of all the parts mentioned in the specification, and arranged with reference to each other and to other parts of the plow in the manner therein described, is stated to be the improvement, and is the thing patented. The use of any two of these parts only, or of two combined with a third which is substantially different in form or in the manner of its arrangement and connection with the others, is, therefore, not the thing patented. It is not the same combination if it substantially differs from it in any of its parts. The jogging of the standard into the beam, and its extension backward from the bolt, are both treated by the plaintiffs as essential parts of their combination for the purpose of brace and draft. Consequently, the use of either alone would not be the same improvement nor infringe the patent of the plaintiffs.' To the same effect, see, also, Stimpson v. Baltimore & S. R. Co. 10 How. 329; Eames v. Godfrey, 1 Wall. 78; Seymour v. Osborne, 11 Wall. 516; Dunbar v. Myers, 94 U.S. 187; Fuller v. Yentzer, Id. 288. But this rule is subject to the qualification that a combination may be infringed when some of the elements are employed, and for the others mechanical equivalents are used, which were known to be such at the time when the patent was granted. Seymour v. Osborne, ubi supra; Gould v. Ress, 15 Wall. 187; Imhaeuser v. Buerk, 101 U.S. 647.

In the light of these principles, we are to inquire whether the defendants use the combination described in the patent of the plaintiffs. The contention of the defendants is that the brace-bar, which is one of the elements of the combination covered by the patent of the plaintiffs, is not, nor is its equivalent, found in the machines made and sold by them. It is plain, upon an inspection of the drawings, that the defendants do not use a brace-bar similar in shape or position to that described in the plaintiffs' patent. But the plaintiffs insist that the top of the shank, curved as shown in the Thom § patent, is the equivalent of the brace-bar forming one of the elements of their invention; and as the contrivance of the defendants embodies this equivalent device in combination with all the other elements covered by the plaintiffs' patent, that the infringement is established. Whether the first-mentioned device is the equivalent of the latter is the question for solution. We think the contention of the defendants that it is not, is well grounded. The specification and drawings of the plaintiffs' patent, and the testimony of the plaintiffs' witnesses, show that one purpose of the brace-bar, used in the plaintiffs' combination, was to strengthen and support the shank between the tooth and the beam. The use of the brace-bar enabled the plaintiffs to make the shank with less material, and, at the same time, to increase its strength. This function is not performed by the curved portion of the shank used by the defendants, which has not the slightest tendency to support and strengthen the shank between the tooth and the beam, where the greatest strain comes. On the contrary, the defendants, by reason of the absence of the brace-bar, are forced to make their shank of larger diameter than that used by the plaintiffs in order to give it the requisite strength to prevent bending. Instead of stiffening the shank between the tooth and the beam, it rather brings an increased strain upon that part of the shank. We find, therefore, that the curved upper part of the shank used by defendants does not perform one of the material functions of the brace-bar of the plaintiffs' combination. It cannot, therefore, be the equivalent of the latter. For where one patented combinais asserted to be an infringement of another, a device in one, to be the equivalent of a device in the other, must perform the same functions. As, therefore, there is one element of the plaintiffs' patented combination which the defendants do not use, and for which they do not employ an equivalent, it follows that they do not infringe the plaintiffs' patent. The decree of the circuit court, which dismissed the plaintiffs' bill, must therefore be affirmed; and it is so ordered.

title: Rowell v. Lindsay/Opinion of the Court


text: Talk:Rowell v. Lindsay/Opinion of the Court


text:
Page:Travels with a Donkey In The Cevennes.djvu/95

Rh Father Prior. But whether it was my address, or the sack, or the idea speedily published among that part of the brotherhood who attend on strangers that I was not a pedlar after all, I found no difficulty as to my reception. Modestine was led away by a layman to the stables, and I and my pack were received into our Lady of the Snows.


text:
United States Code/Title 42/Chapter 85/Section 7506

§ 7506. Limitations on certain Federal assistance CAA § 176

(c) Activities not conforming to approved or promulgated plans

 * (1) No department, agency, or instrumentality of the Federal Government shall engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity which does not conform to an implementation plan after it has been approved or promulgated under section 7410 of this title. No metropolitan planning organization designated under section 134 of title 23, shall give its approval to any project, program, or plan which does not conform to an implementation plan approved or promulgated under section 7410 of this title. The assurance of conformity to such an implementation plan shall be an affirmative responsibility of the head of such department, agency, or instrumentality. Conformity to an implementation plan means—
 * (A) conformity to an implementation plan’s purpose of eliminating or reducing the severity and number of violations of the national ambient air quality standards and achieving expeditious attainment of such standards; and
 * (B) that such activities will not—
 * (i) cause or contribute to any new violation of any standard in any area;
 * (ii) increase the frequency or severity of any existing violation of any standard in any area; or
 * (iii) delay timely attainment of any standard or any required interim emission reductions or other milestones in any area.
 * The determination of conformity shall be based on the most recent estimates of emissions, and such estimates shall be determined from the most recent population, employment, travel and congestion estimates as determined by the metropolitan planning organization or other agency authorized to make such estimates.
 * (2) Any transportation plan or program developed pursuant to title 23 or chapter 53 of title 49 shall implement the transportation provisions of any applicable implementation plan approved under this chapter applicable to all or part of the area covered by such transportation plan or program. No Federal agency may approve, accept or fund any transportation plan, program or project unless such plan, program or project has been found to conform to any applicable implementation plan in effect under this chapter. In particular—
 * (A) no transportation plan or transportation improvement program may be adopted by a metropolitan planning organization designated under title 23 or chapter 53 of title 49, or be found to be in conformity by a metropolitan planning organization until a final determination has been made that emissions expected from implementation of such plans and programs are consistent with estimates of emissions from motor vehicles and necessary emissions reductions contained in the applicable implementation plan, and that the plan or program will conform to the requirements of paragraph (1)(B);
 * (B) no metropolitan planning organization or other recipient of funds under title 23 or chapter 53 of title 49 shall adopt or approve a transportation improvement program of projects until it determines that such program provides for timely implementation of transportation control measures consistent with schedules included in the applicable implementation plan;
 * (C) a transportation project may be adopted or approved by a metropolitan planning organization or any recipient of funds designated under title 23 or chapter 53 of title 49, or found in conformity by a metropolitan planning organization or approved, accepted, or funded by the Department of Transportation only if it meets either the requirements of subparagraph (D) or the following requirements—
 * (i) such a project comes from a conforming plan and program;
 * (ii) the design concept and scope of such project have not changed significantly since the conformity finding regarding the plan and program from which the project derived; and
 * (iii) the design concept and scope of such project at the time of the conformity determination for the program was adequate to determine emissions.
 * (D) Any project not referred to in subparagraph (C) shall be treated as conforming to the applicable implementation plan only if it is demonstrated that the projected emissions from such project, when considered together with emissions projected for the conforming transportation plans and programs within the nonattainment area, do not cause such plans and programs to exceed the emission reduction projections and schedules assigned to such plans and programs in the applicable implementation plan.
 * (E) The appropriate metropolitan planning organization shall redetermine conformity of existing transportation plans and programs not later than 2 years after the date on which the Administrator—
 * (i) finds a motor vehicle emissions budget to be adequate in accordance with section 93.118(e)(4) of title 40, Code of Federal Regulations (as in effect on October 1, 2004);
 * (ii) approves an implementation plan that establishes a motor vehicle emissions budget if that budget has not yet been determined to be adequate in accordance with clause (i); or
 * (iii) promulgates an implementation plan that establishes or revises a motor vehicle emissions budget.
 * (3) Until such time as the implementation plan revision referred to in paragraph (4)(C) [1] is approved, conformity of such plans, programs, and projects will be demonstrated if—
 * (A) the transportation plans and programs—
 * (i) are consistent with the most recent estimates of mobile source emissions;
 * (ii) provide for the expeditious implementation of transportation control measures in the applicable implementation plan; and
 * (iii) with respect to ozone and carbon monoxide nonattainment areas, contribute to annual emissions reductions consistent with sections 7511a (b)(1) and 7512a (a)(7) of this title; and
 * (B) the transportation projects—
 * (i) come from a conforming transportation plan and program as defined in subparagraph (A) or for 12 months after November 15, 1990, from a transportation program found to conform within 3 years prior to November 15, 1990; and
 * (ii) in carbon monoxide nonattainment areas, eliminate or reduce the severity and number of violations of the carbon monoxide standards in the area substantially affected by the project.
 * With regard to subparagraph (B)(ii), such determination may be made as part of either the conformity determination for the transportation program or for the individual project taken as a whole during the environmental review phase of project development.
 * (4) Criteria and procedures for determining conformity.—
 * (A) In general.— The Administrator shall promulgate, and periodically update, criteria and procedures for determining conformity (except in the case of transportation plans, programs, and projects) of, and for keeping the Administrator informed about, the activities referred to in paragraph (1).
 * (B) Transportation plans, programs, and projects.— The Administrator, with the concurrence of the Secretary of Transportation, shall promulgate, and periodically update, criteria and procedures for demonstrating and assuring conformity in the case of transportation plans, programs, and projects.
 * (C) Civil action to compel promulgation.— A civil action may be brought against the Administrator and the Secretary of Transportation under section 7604 of this title to compel promulgation of such criteria and procedures and the Federal district court shall have jurisdiction to order such promulgation.
 * (D) The procedures and criteria shall, at a minimum—
 * (i) address the consultation procedures to be undertaken by metropolitan planning organizations and the Secretary of Transportation with State and local air quality agencies and State departments of transportation before such organizations and the Secretary make conformity determinations;
 * (ii) address the appropriate frequency for making conformity determinations, but the frequency for making conformity determinations on updated transportation plans and programs shall be every 4 years, except in a case in which—
 * (I) the metropolitan planning organization elects to update a transportation plan or program more frequently; or
 * (II) the metropolitan planning organization is required to determine conformity in accordance with paragraph (2)(E); ::::and
 * (iii) address how conformity determinations will be made with respect to maintenance plans.
 * (E) Inclusion of criteria and procedures in sip.— Not later than 2 years after August 10, 2005, the procedures under subparagraph (A) shall include a requirement that each State include in the State implementation plan criteria and procedures for consultation required by subparagraph (D)(i), and enforcement and enforceability (pursuant to sections 93.125(c) and 93.122(a)(4)(ii) of title 40, Code of Federal Regulations) in accordance with the Administrator’s criteria and procedures for consultation, enforcement and enforceability.
 * (F) Compliance with the rules of the Administrator for determining the conformity of transportation plans, programs, and projects funded or approved under title 23 or chapter 53 of title 49 to State or Federal implementation plans shall not be required for traffic signal synchronization projects prior to the funding, approval or implementation of such projects. The supporting regional emissions analysis for any conformity determination made with respect to a transportation plan, program, or project shall consider the effect on emissions of any such project funded, approved, or implemented prior to the conformity determination.
 * (5) Applicability.— This subsection shall apply only with respect to—
 * (A) a nonattainment area and each pollutant for which the area is designated as a nonattainment area; and
 * (B) an area that was designated as a nonattainment area but that was later redesignated by the Administrator as an attainment area and that is required to develop a maintenance plan under section 7505a of this title with respect to the specific pollutant for which the area was designated nonattainment.
 * (6) Notwithstanding paragraph 5, this subsection shall not apply with respect to an area designated nonattainment under section 7407 (d)(1) of this title until 1 year after that area is first designated nonattainment for a specific national ambient air quality standard. This paragraph only applies with respect to the national ambient air quality standard for which an area is newly designated nonattainment and does not affect the area’s requirements with respect to all other national ambient air quality standards for which the area is designated nonattainment or has been redesignated from nonattainment to attainment with a maintenance plan pursuant to section 7505a [1] of this title (including any pre-existing national ambient air quality standard for a pollutant for which a new or revised standard has been issued).
 * (7) Conformity horizon for transportation plans.—
 * (A) In general.— Each conformity determination required under this section for a transportation plan under section 134 (i) of title 23 or section 5303 (i) of title 49 shall require a demonstration of conformity for the period ending on either the final year of the transportation plan, or at the election of the metropolitan planning organization, after consultation with the air pollution control agency and solicitation of public comments and consideration of such comments, the longest of the following periods:
 * (i) The first 10-year period of any such transportation plan.
 * (ii) The latest year in the implementation plan applicable to the area that contains a motor vehicle emission budget.
 * (iii) The year after the completion date of a regionally significant project if the project is included in the transportation improvement program or the project requires approval before the subsequent conformity determination.
 * (B) Regional emissions analysis.— The conformity determination shall be accompanied by a regional emissions analysis for the last year of the transportation plan and for any year shown to exceed emission budgets by a prior analysis, if such year extends beyond the applicable period as determined under subparagraph (A).
 * (C) Exception.— In any case in which an area has a revision to an implementation plan under section 7505a (b) of this title and the Administrator has found the motor vehicles emissions budgets from that revision to be adequate in accordance with section 93.118(e)(4) of title 40, Code of Federal Regulations (as in effect on October 1, 2004), or has approved the revision, the demonstration of conformity at the election of the metropolitan planning organization, after consultation with the air pollution control agency and solicitation of public comments and consideration of such comments, shall be required to extend only through the last year of the implementation plan required under section 7505a (b) of this title.
 * (D) Effect of election.— Any election by a metropolitan planning organization under this paragraph shall continue in effect until the metropolitan planning organization elects otherwise.
 * (E) Air pollution control agency defined.— In this paragraph, the term “air pollution control agency” means an air pollution control agency (as defined in section 7602 (b) of this title) that is responsible for developing plans or controlling air pollution within the area covered by a transportation plan.
 * (8) Substitution of transportation control measures.—
 * (A) In general.— Transportation control measures that are specified in an implementation plan may be replaced or added to the implementation plan with alternate or additional transportation control measures—
 * (i) if the substitute measures achieve equivalent or greater emissions reductions than the control measure to be replaced, as demonstrated with an emissions impact analysis that is consistent with the current methodology used for evaluating the replaced control measure in the implementation plan;
 * (ii) if the substitute control measures are implemented—
 * (I) in accordance with a schedule that is consistent with the schedule provided for control measures in the implementation plan; or
 * (II) if the implementation plan date for implementation of the control measure to be replaced has passed, as soon as practicable after the implementation plan date but not later than the date on which emission reductions are necessary to achieve the purpose of the implementation plan;
 * (iii) if the substitute and additional control measures are accompanied with evidence of adequate personnel and funding and authority under State or local law to implement, monitor, and enforce the control measures;
 * (iv) if the substitute and additional control measures were developed through a collaborative process that included—
 * (I) participation by representatives of all affected jurisdictions (including local air pollution control agencies, the State air pollution control agency, and State and local transportation agencies);
 * (II) consultation with the Administrator; and
 * (III) reasonable public notice and opportunity for comment; and
 * (v) if the metropolitan planning organization, State air pollution control agency, and the Administrator concur with the equivalency of the substitute or additional control measures.
 * (B) Adoption.—
 * (i) Concurrence by the metropolitan planning organization, State air pollution control agency and the Administrator as required by subparagraph (A)(v) shall constitute adoption of the substitute or additional control measures so long as the requirements of subparagraphs (A)(i), (A)(ii), (A)(iii) and (A)(iv) are met.
 * (ii) Once adopted, the substitute or additional control measures become, by operation of law, part of the State implementation plan and become federally enforceable.
 * (iii) Within 90 days of its concurrence under subparagraph (A)(v), the State air pollution control agency shall submit the substitute or additional control measure to the Administrator for incorporation in the codification of the applicable implementation plan. Nothwithstanding [3] any other provision of this chapter, no additional State process shall be necessary to support such revision to the applicable plan.
 * (C) No requirement for express permission.— The substitution or addition of a transportation control measure in accordance with this paragraph and the funding or approval of such a control measure shall not be contingent on the existence of any provision in the applicable implementation plan that expressly permits such a substitution or addition.
 * (D) No requirement for new conformity determination.— The substitution or addition of a transportation control measure in accordance with this paragraph shall not require—
 * (i) a new conformity determination for the transportation plan; or
 * (ii) a revision of the implementation plan.
 * (E) Continuation of control measure being replaced.— A control measure that is being replaced by a substitute control measure under this paragraph shall remain in effect until the substitute control measure is adopted by the State pursuant to subparagraph (B).
 * (F) Effect of adoption.— Adoption of a substitute control measure shall constitute rescission of the previously applicable control measure.
 * (9) Lapse of conformity.— If a conformity determination required under this subsection for a transportation plan under section 134 (i) of title 23 or section 5303 (i) of title 49 or a transportation improvement program under section 134(j) of such title 23 or under section 5303(j) of such title 49 is not made by the applicable deadline and such failure is not corrected by additional measures to either reduce motor vehicle emissions sufficient to demonstrate compliance with the requirements of this subsection within 12 months after such deadline or other measures sufficient to correct such failures, the transportation plan shall lapse.
 * (10) Lapse.— In this subsection, the term “lapse” means that the conformity determination for a transportation plan or transportation improvement program has expired, and thus there is no currently conforming transportation plan or transportation improvement program.

(d) Priority of achieving and maintaining national primary ambient air quality standards
Each department, agency, or instrumentality of the Federal Government having authority to conduct or support any program with air-quality related transportation consequences shall give priority in the exercise of such authority, consistent with statutory requirements for allocation among States or other jurisdictions, to the implementation of those portions of plans prepared under this section to achieve and maintain the national primary ambient air-quality standard. This paragraph extends to, but is not limited to, authority exercised under chapter 53 of title 49, title 23, and the Housing and Urban Development Act.


text:
Findlay v. McAllister

The plaintiff in error was the plaintiff in the circuit court. He brought his suit against Thomas McAllister and 14 other defendants, to recover damages upon a cause of action, which was stated in his petition substantially as follows: The plaintiff, being the holder and owner of certain bonds issued by the county of Scotland, in the state of Missouri, and of certain interest coupons detached therefrom, recovered on September 25, 1877, in the same circuit court in which the present action was brought, a judgment on his coupons against the county for the sum of $4,008.86. The county failing to pay the judgment, the circuit court issued a peremptory writ of mandamus, commanding the county court of Scotland county to levy and cause to be collected a special tax upon all the taxable property within the county, sufficient to pay the judgment, with the interest thereon, and costs. At the same time writs of mandamus were issued by the same circuit court, directing the same county court to levy similar special taxes to pay various other judgments rendered against the county, upon like demands, in favor of several other plaintiffs. In obedience to these writs the county court levied a special tax, denominated 'judgment tax,' sufficient to pay off all the judgments, and caused the same to be placed on the tax-books of the county, and the tax-books to be delivered to the collector of the county for the collection of the tax. A part of this tax, so levied, was levied in obedience to the writ of mandamus in the case of this plaintiff against the county, and for the purpose of raising money to pay off his judgment. 'Wherefore the plaintiff,' the petition averred, 'had a vested right and interest in said special tax to the amount of his judgment, interest, and costs.'

After the special tax had been levied, and the tax-book placed in the hands of the collector for collection, the defendants, with about 2,000 other evildisposed persons, residents of Scotland county, for the purpose of depreciating the value of the bonds held by the plaintiff, and thereby inducing and compelling him to compromise his judgment and bonds at much less than their value, did, unlawfully and maliciously, and in contempt of the orders and mandates of the circuit court, combine and conspire to hinder and prevent the county court and the collector from performing the things required by the mandate of the circuit court, to-wit, the collection and payment of the special tax. To this end, the defendants and their confederates organized themselves into an association called 'The Tax-payers' Association of Scotland County,' with branch organizations in various school-districts of the county, for the purpose, among other things, of resisting the collection of the special tax, and the defendants and their confederates did pledge themselves to contribute of their means and influence, and to protect each other in all efforts made, to resist the payment thereof. In furtherance of their design, the defendants and their confederates, members of said association, made and published threats of violence against the attorneys of the plaintiff, who were employed to represent him in the collection of his judgment, and gave out and circulated the threat that no person would be allowed to bid upon or purchase any property that might be offered for sale by the collector to enforce the payment of the special tax, intending thereby to intimidate any person from bidding upon or purchasing any property offered for sale by the collector for the payment thereof. To induce the tax-payers of the county to join the association and aid in carrying out their unlawful conspiracy, the defendants and their confederates falsely and fraudulently gave out and published that such bonds and special tax were illegal, null, and void, and that they were under no obligation, legal or moral, to pay the same, well knowing that such declarations were false.

During the month of February, 1878, the collector of the county, for the purpose of collecting the special tax, levied upon a large number of horses and mules, and advertised them to be sold on February 28, 1878, at Memphis, in said county of Scotland; whereupon the defendants and their confederates, in order to prevent the sale of the property so levied on, and prevent the payment of the plaintiff's judgment, and so to harass and wrong him as to induce him to compromise his judgment and bonds at much less than their value, assembled in vast numbers at the time and place advertised for the sale, and, by their combined influence, threats, and hostile demonstrations, did so overawe and intimidate the persons who had gone to the place of sale, for the purpose of and with intent to bid on the property, as to prevent them from bidding when the same was offered for sale; and, by reason of such combined influence, threats, and menaces, the defendants and their confederates, members of said association, acting under its orders, did prevent any person from bidding on the property when so offered for sale, and did prevent it from being sold.

The unlawful combination and conspiracy of the defendants, to injure and defraud the plaintiff, and prevent the collection of his judgment, still exists; and, by reason of the combined influence, threats, menaces, and hostile demonstrations of the defendants, the tax-payers of Scotland county are overawed and intimidated, and so influenced that they do not pay the special tax, nor has the collector, by reason of said combination and association, been able to collect the same. The plaintiff, by reason of the premises, has been damaged to the amount of his judgment, to-wit, $4,008.86, with interest thereon from September 25, 1877, and costs; for which, with $3,000 exemplary damages, he demands judgment against the defendants.

The defendants demurred to the petition. In support of their demurrer they assigned and argued, both in the circuit court and this court, the following grounds: (1) That the plaintiff had no such legal property interest in the taxes in question as to entitle him to maintain actions for conspiracy; (2) that he had sustained no legal damages by the alleged acts of the defendants. The court sustained the demurrer, and rendered a judgment for the defendants, to reverse which the plaintiff brings this writ of error.

MILLER and FIELD, JJ., dissented.

A. J. Baker and F. T. Hughes, for plaintiff in error.

No. appearance for defendants in error.

[Argument of Counsel from pages 107-108 intentionally omitted]

WOODS, J.

title: Findlay v. McAllister


text: Talk:Findlay v. McAllister

title: Talk:Findlay v. McAllister


text:
Findlay v. McAllister/Opinion of the Court

The facts stated in the petition are admitted by the demurrer, and, for the present consideration of the case, must be taken as true. The statutes of Missouri, which were in force when the bonds mentioned in the petition were issued, and which still remain in force, provide as follows: There shall be a collector of revenue for every county, who shall give bond conditioned that he will faithfully and punctually collect and pay over all state, county, and other revenue, for the two years next ensuing the first day of March thereafter. After the tax-book for the year has been corrected, and the amount of the county tax stated therein, the county court shall cause the same to be delivered to the collector, and he shall be charged with the whole amount of the tax-book so delivered to him. The collector shall diligently endeavor, and use all lawful means, to collect the taxes which he is required to collect in his county. After the first day of October he shall have power to seize and sell the goods and chattels of any person liable for taxes in the same manner as goods and chattels are or may be required to be seized and sold under executions issued in judgments at law; and no property shall be exempt from seizure and sale for taxes due on lands and personal property. The collector, having made settlement according to law, of the revenue collected by him, shall pay the amount found due into the county treasury. When a demand against a county is presented to the county court, the court shall ascertain the amount due, and order it to be paid out of the particular fund (designating it) applicable to the payment of such demand, and order their clerk to issue a warrant therefor on the treasurer of the county, which shall designate the particular fund out of which the same is to be paid. The treasurer of the county is required to make an entry in a book, to be kept by him, of all warrants for money lawfully drawn by the county court presented to him for payment; and all warrants so presented shall be paid out of the funds mentioned in such warrants, and in the order in which they shall be presented for payment. See sections 5370, 5394, 6733, 6754, 6774, 6821, 6822, Rev. St. Mo. 1879.

The question presented by the demurrer to the petition is not one of the measure of damages. If the plaintiff has sustained any substantial injury by reason of the wrongful acts of the defendants set out in the petition, for which he is entitled to his action against them, the demurrer to the petition should have been overruled. It is evident from the provisions of the statutes of Missouri, whose substance has been given, that the money received by the collector of Scotland county in payment of the special tax ordered by the county court to be collected for the payment of the judgment of the plaintiff and other judgment creditors, would, when collected, constitute a separate fund in the county treasury applicable to this purpose. If the special tax had been collected, the plaintiff would have had such an interest therein that a court of equity would, at his instance, enjoin its diversion to any purpose save that for which it had been levied and collected, and compel its payment to the satisfaction of the judgment of the plaintiff. Meriwether v. Garrett, 102 U.S. 472, 514, 515; Attorney General v. Dublin, 1 Bligh, (N. S.) 312. And see Davies v. Corbin, 112 U.S. 36; S.C.. ante, 4. The use of the money by the county, except for the payment of the judgments, which the writ of mandamus had been issued to enforce, would have been a clear contempt of the orders and process of the circuit court, as well a violation of the law of the state.

The writ of mandamus under which the collector, according to the averments of the petition, was proceeding to collect the money to pay the judgment of the plaintiff, was a substitute for the writ of fieri facias, and was the only remedy by which the plaintiff could enforce satisfaction. He had, therefore, as clear an interest in the money to be raised by the special tax for the payment of his judgment as he would have had in the money to be collected by the sheriff on execution if his judgment had been against an individual. It would seem fairly to follow that he had the same rights in the one case as in the other, against those who, to prevent the satisfaction of his judgment, unlawfully interfered with the officer in the discharge of his duties.

It is plain that the injury of which the plaintiff complains is not one common to himself and the public at large, as it would have been had the defendants interfered to prevent the collection of the general taxes of the county The alleged unlawful acts of the defendants could injure only the plaintiff, and the other judgment creditors of Scotland county, for whose benefit the special tax was levied. If there is any cause of action against the defendants, it belongs to the plaintiff and other judgment creditors individually, and the public has no share in it. The objection that the plaintiff is only injured in common with all the other members of the body politic, and has no separate and individual cause of action, cannot be successfully urged. The right of a judgment creditor to proceed by action against those who rescue the person of his debtor arrested on mesne or final process, or interfere with the goods of his debtor so as to prevent a levy or sale by the sheriff to satisfy his judgment, is well recognized at common law. Thus, in Smith v. Tonstall, Carth. 3, 4, adjudged on demurrer in the king's bench and affirmed in the house of lords, A., a judgment creditor, sued B. for procuring J. S., the judgment debtor, to confess a judgment in favor of one J. N., to whom he did not owe anything, and J. N. sued out execution on this feigned judgment, by virtue of which he seized all the goods and chattels of J. S., which he esloined to places unknown and converted to his own use, by reason whereof the plaintiff lost his debt. Held, that the action lay.

In Comyns' Digest, under the head of 'Action on the Case for Malfeasance,' A 5, it is stated that an action will lie for rescue of a person arrested upon mesne or judicial process, citing May v. Proby, 2 Cro. 419; Hodges v. Marks, Id. 486; Mynn v. Coughton, Cro. Car. 109; or of goods taken in execution, citing Fitzherbert's Natura Brevium, 101, 102, Reg. 117. And the action lies by the party to the suit in which the arrest was, citing Hodges v. Marks, 2 Cro. 486; Mynn v. Coughton, Cro. Car. 109; 2 Rolle, Abr. 556, pl. 14, 15. Under the head of 'Rescous,' D 2, the same author says: 'So, if a person arrested upon mesne process be rescued, an action upon the case lies against the rescuers by the plaintiff in the suit, for he has the loss and no remedy against the sheriff,' referring to cases above cited, and also to Kent v. Elwis, 2 Cro. 242; May v. Proby, 3 Bulst. 200; Congham's Case, Hut. 98.

In 2 Rolle, Abr. 556, pl. 14, 15, it is said: 'If a sergeant of London or bailiff of the counter take a man on a capias in process at my suit, and J. S. rescues him out of his possession, I may have a general writ of trespass against him, because the sergeant is, for this purpose, my servant as well as the king's, and because the taking out of the sergeant's possession, he being my servant, is a taking out of mine. Trin. 15, Jac. I., Wheatley v. Stone, adjudged on a writ of error at Sergeant's Inn. But I may have action in the case as well. Trin. Jac. I., Speere v. Stone, affirmed same time; S.C.. Hobart, 180, ''sub nom. Wheatley v. Stone''.'

So in Mynn v. Coughton, Cro. Car. 109, cited in Bac. Abr. 'Execution,' O, it was held that, if a defendant be rescued after being taken on a capias ad satisfaciendum, the plaintiff may have an action for the misfeasance against the rescuers; for he is the party who hath the loss, and to whom the injury is done, and he ought not to be compelled to sue the sheriff, who may be dead, and if he recover, the rescuers may plead it if sued by the sheriff, so that there is no danger of being double charged. 3 to 7. S.C.. Hut. 98, ''sub nom. Congham's Case''.

In May v. Sheriff of Middlesex, Cro. Jac. 419, which was an action on the case for escape on mesne process, it was held that rescue may be pleaded in bar, but not for escape on final process. On mesne process, the sheriff was not bound to take posse comitatus, and on rescues returned by sheriff on mesne process, process may be awarded against the rescuers, and an action on the case lies against them. S.C.. 3 Bulst. 198-201, where a full argument by Coke and Doddridge is reported. The latter refers to Fitz. N. B. 102, to show that the party may sue rescuers.

Hodges v. Marks, Cro. Jac. 485, was an action on the case for rescuing plaintiff's debtor out of sheriff's possession after arrest on mesne process, whereby the debtor escaped and went to places unknown. Held good, for the loss is the plaintiff's, as he cannot sue the sheriff; and therefore it is reason that he should have action against those who did the injury to him whereby he lost his process and his means to recover his debt. Kent v. Elwis, Cro. Jac. 241. See, also, May v. Proby, 3 Bulst. 200; Bonham Strangewaie's Case, 5 Mod. 217; Boothman v. Earl of Surry, 2 Term R. 5; Bonafous v. Walker, Id. 126.

In Bentley v. Donnelly, 8 Term R. 127, which was an action by plaintiff in primer action against rescuers of defendant after arrest on mesne process, the action was sustained.

These principles have been recognized by courts of high authority in this country. In Yates v. Joyce, 11 Johns. 136, Yates, the assignee of a judgment against John Joyce, which was a lien on the property of the latter, was about to take out execution and seize a certain lot of land, and the defendant, G. Joyce, knowing this, pulled down and carried away certain buildings from off the land, whereby Yates was deprived of the benefit of his judgment. It was held that Yates might maintain an action on the case against G. Joyce for fraudulently removing the property of John Joyce and converting it to his own use, with intent to defeat the Judgment of Yates. In giving judgment on a demurrer to the declaration, the court said: 'It is obvious, from the statement of the plaintiff's case in the declaration, the truth of which is admitted by the demurrer, that he has sustained damage by the act of the defendant which, he alleges, was done fraudulently and with intent to injure him. It is the pride of the common law that, whenever it recognizes or creates a private right, it gives a remedy for the willful violation of it. * *  * It is a sound principle, that where the fraudulent misconduct of a party occasions injury to the private rights of another, he shall be responsible in damages for the same, and such is the case presented by the pleadings in this cause.' Penrod v. Mitchell, 8 Serg. & R. 522, was an action on the case in the nature of a writ of conspiracy for fraudulently withdrawing the goods of the defendant, in an execution, from the reach of the plaintiff. It was not questioned that the action would lie. The court held that the measure of damages was the value of the goods thus withdrawn, and not the amount of the judgment on which the execution was issued. In Mott v. Danforth, 6 Watts, 304, it was held that a creditor, without judgment or execution, and even before his debt was due, might sue parties at law who conspire to defeat his right of collection by fraudulently concealing and converting the debtor's goods. See, also, to the same effect, Kelsey v. Murphy, 26 Pa. St. 78. And see Meredith v. Johns, 1 Hen. & M. 584. The three cases last cited extend the rule further than the exigency of the present case requires, and further than this court has been disposed to go. These authorities establish the right of a judgment creditor to his action against rescuers of the person or goods of the debtor, seized by the sheriff to satisfy the judgment, or against one who prevents the seizure of the debtor's goods on execution; and the principle on which they rest is directly in the face of the contention of the defendants in error, that the plaintiff has no legal interest in the taxes to be collected to pay his judgment, and has sustained no legal damages by the alleged acts of the defendants. We think they support the action in the present case.

Of the authorities cited by the counsel for the defendant in error in support of the demurrer, the principal case is Adler v. Fenton, 24 How. 408, where it was held that an action would not lie by a creditor, whose debt was not yet due, against his debtors and two others for a conspiracy carried into effect to enable the debtors fraudulently to dispose of their property, so as to hinder and defeat the creditor in the collection of his debt. Mr. Justice CAMPBELL, who delivered the opinion, put the decision of the court on the ground that to sustain the action it must be shown not only that there was a conspiracy, but that there were tortious acts in furtherance of it and consequent damage; that Adler & Schiff, the judgment debtors, were the lawful owners of the property, and had the legal right to use and enjoy or sell it at their pleasure, and the plaintiffs, being general creditors, had no interest in or lien upon it. There was, therefore, no wrong of which the plaintiffs could complain.

In the other cases cited by the defendants, the plaintiff was merely a general creditor, and had no judgment, attachment, or lien, the enforcement of which was obstructed by the defendant, or the cases were otherwise inapplicable to the question in hand. In the present case there was a conspiracy, tortious acts in furtherance of it, and consequent damage to the plaintiff. The property seized by the collector was in the custody of the law. The taxpayers, for whose unpaid taxes it had been seized, had no longer any right to its possession or use, and could not sell or otherwise dispose of it. It was devoted by the law to be sold to raise a fund to pay the plaintiff's judgment. The plaintiff had, therefore, an interest, which the law gave him, in the property and its sale, and suffered a direct damage from the alleged acts of the defendants by which a sale was prevented. The plaintiff, according to the averments of his petition, had recovered his judgment against the county; and he had obtained his mandamus to the county court directing it to levy and cause to be collected a special tax to pay the judgment. The collector of the county, in obedience to the orders of the county court, which were themselves in obedience to the mandamus of the circuit court, was proceeding to collect the tax, and had levied on property to that end, and was about to sell it when the threats and hostile demonstrations of the defendants defeated the sale, and the petition averred the defendants continued to overawe and intimidate the tax-payers of the county, so that they did not pay the tax, and the collector had not been able, by reason thereof, to collect the tax.

The plaintiff cannot sue the collector; for he has done his duty, and no suit lies against him. Unless the plaintiff has a cause of action against the defendants, he is without remedy. To hold that the facts of this case do not give a cause of action against them would be to decide that a citizen might be subjected to a willful and malicious injury at the hands of private persons without redress; that an organized band of conspirators could, without subjecting themselves to any liability, fraudulently and maliciously obstruct and defeat the process of the courts, issued for the satisfaction of the judgment of a private suitor, and thus render the judgment nugatory and worthless. Such a conclusion would be contrary to the principles of the common law and of right and justice.

It is no answer to the case made by the petition to say, as the defendant, by his counsel, does, that the judgment of the plaintiff is still in force and bearing interest, and the liability of the county still remains undisturbed. What is a judgment worth that cannot be enforced? The gravamen of the plaintiff's complaint is that the defendants have obstructed, and continue to obstruct, the collection of his judgment, and he avers that he has been damaged thereby to the amount of his judgment and interest; in other words, that by reason of the unlawful and malicious conduct of the defendants, his judgment has been rendered worthless. To reply to this that the judgment still remains in force on the records of the court is an inadequate answer to the plaintiff's cause of action.

It follows from the views we have expressed that the circuit court erred in sustaining the demurrer to the petition. Its judgment must therefore be reversed, and the cause remanded for further proceedings in conformity with this opinion; and it is so ordered.

MILLER and FIELD, JJ., dissented.


text: Talk:Findlay v. McAllister/Opinion of the Court


text:
Central Railroad Banking Company of Georgia v. Pettus

This is an appeal from a decree of the circuit court of the United States for the Middle district of Alabama in favor of the appellees, Pettus & Dawson and Watts & Sons, adjudging them entitled to the sum of $35,161.21, and interest thereon at 8 per cent. per annum from March 7, 1881, with lien, to secure its payment, upon the road-bed, depots, side tracks, turnouts, trestles, and bridges owned and used by the appellants, corporations of the state of Georgia, in operating the railroad formerly belonging to the Montgomery & West Point Railroad Company, an Alabama corporation, and which extends from Montgomery to West Point, with a branch from Opelika to Columbus. This property was directed to be exposed to sale, unless, within a given time, the said amount was paid. This suit is the outgrowth of certain litigation in the courts of Alabama, relating to the before-mentioned and other railroad property, in which the appellants are interested. A statement of its history is necessary to a clear understanding of the questions now presented for determination.

On the first of September, 1870, the Western Railroad Company, an Alabama corporation, purchased and took possession of the railroad (main line and branch) and all other property of the Montgomery & West Point Railroad Company; one of the terms and conditions of such purchase being, as was claimed, that the former company assumed the payment of all outstanding debts and obligations of the latter, and agreed to issue its capital stock, dollar for dollar, in exchange for stock of the Montgomery & West Point Railroad Company outstanding. It was a part of that arrangement that the lastnamed company should, as it subsequently did, surrender its charter to the state. When this purchase was made, there were, upon the franchises and property of the latter company, two mortgages to secure bonds proposed to be issued: one, June 1866, for $750,000, bonds for the whole of which were issued; the other, May 1, 1868, for $400,000, bonds for $45,000 of which were issued. It had, also, outstanding bonds issued in 1866 and 1867, not secured by mortgage, or otherwise. The Western Railroad Company had, at the time of its purchase, a mortgage, of date September 15, 1868, upon its own property and franchises, to secure $600,000 of bonds then, or at some subsequent period, guarantied by the present appellants.

On the fifteenth of September, 1870, that company executed to Morris and Lowery, trustees, a mortgage upon its property and franchises, (including the property transferred to it by the Montgomery & West Point Railroad Company,) to secure the payment of $1,200,000 of bonds, thereafter to be issued, and of which a large amount was issued; and their payment was also guarantied by the appellants. Subsequently, on March 31, 1874, those trustees commenced a suit in the chancery court of Montgomery county, Alabama, against the Western Railroad Company; the present appellants; the surviving trustees in the mortgages executed by the Montgomery & West Point Railroad Company; and others. Its object was to procure a sale of the property of the former company, including that purchased from the latter company. A final decree was passed December 18, 1874, ordering a sale, subject, however, to a lien, in respect of the property formerly owned by the lastnamed company, in favor of the holders of its mortgage bonds, according to their respective priorities; and, in respect of the property of the Western Railroad Company, to a lien in favor of the holders of bonds secured by its mortgage of September 15, 1868. The sale was had, the present appellants becoming the purchasers.

On the eighth of May, 1875, Branch, Sons & Co., H. P. Hoadely, and C. S. Plank, holding bonds of the (old) Montgomery& West Point Railroad Company not secured by mortgage, through Pettus & Dawson and Watts & Sons, their solicitors, exhibited a bill in equity in the same court against the present appellants, the Western Railroad Company, the Montgomery & West Point Railroad Company, and others. They sued for themselves as well as for all other creditors of the last-named company who should come in and make themselves complainants and contribute to the expenses of the suit. Such proceedings were had-the Georgia corporations appearing and making defense-that on the first day of May, 1877, a final decree was entered, by which it was, among other things, adjudged that 'the unsecured creditors of the Montgomery & West Point Railroad Company, to which class complainants belong, have a lien' upon the property transferred by it to the Western Railroad Company; that such lien was subordinate to those for the bonds issued under the several mortgages executed by the Montgomery & West Point Railroad Company that were outstanding and unpaid, but superior to that of the mortgage executed by the Western Railroad Company after its said purchase, so far as the property of the Montgomery & West Point Railroad Company was covered by that mortgage; and that the property of all kinds, belonging to the latter company, be sold to satisfy its debts according to priority.

The cause was referred to a register to ascertain and report the amounts due to the complainants and to such other unsecured creditors of the Montgomery & West Point Railroad Company as should prove their claims pursuant to the decree; also the amounts due to holders of bonds issued under its several mortgages. Upon appeal by the two Georgia corporations to the supreme court of Alabama, that decree was affirmed. The register thereafter proceeded with its execution. Numerous parties, including the complainants, appeared before him and had their claims registered, the creditors in each instance retaining in their own custody the evidence of their respective demands. The aggregate amount of such claims was very large.

On the fifteenth of April, 1879, the register not having made his report upon these claims, Pettus & Dawson and Watts & Sons, by leave of the court, filed in the cause their joint petition, alleging in substance that as solicitors specially employed by the complainants, Branch, Sons & Co., Hoadley, and Plank, they prepared and filed the original bill, as well in behalf of themselves as of all other unsecured creditors of the Montgomery & West Point Railroad Company who should come in and contribute to the expenses of the suit; conducted the proceedings to a final decree; represented the same interests in the supreme court of Alabama; that their relations to the suit were well known to the Georgia corporations during the whole period of the litigation; that pending the reference before the register, after the rights of complainants and all creditors of the same class had been established by the final decree, those corporations made a secret arrangement with their immediate clients, whereby the claims of the latter were paid in full, principal and interest, and whereby, also, Branch, Sons & Co., and their co-complainants, agreed to withhold from their solicitors the fact of such settlement until the Georgia corporations could buy or settle all other claims of the unsecured creditors of the Montgomery & West Point Railroad Company; that 'afterwards said two Georgia companies, defendants to this suit, did buy up or settle the other claims, which had been filed in the cause, under said decree,' and, 'either jointly or separately, thereby acquired possession and control of said claims so filed;' that they also purchased and settled a large amount of claims, which might have been, but were not, filed with the register; that, at the time of such purchase, said Georgia corporations had actual notice that petitioners, as solicitors in that suit, claimed reasonable compensation for such services as they rendered in behalf of the unsecured creditors of the Montgomery & West Point Railroad Company (other than complainants) who should come in and take the benefit of the final decree, and also the benefit of any lien upon said property that should be declared in favor of those creditors; and that in equity they 'were the assignees of a part of each claim as filed to the amount of the reasonable value of the services rendered in said cause by petitioners for the benefit of each holder and owner of such claims respectively.' The prayer of the petition was that an account be taken of the sums thus due to them as solicitors representing the unsecured creditors of the Montgomery & West Point Railroad Company (except the complainants and other named creditors with whom they had special contracts for fees) who received the benefit of their services; that they be declared to have a lien for the value of such services on all the property of that company which had come into the possession of the Georgia corporations; and that so much of it as may be necessary for that purpose be sold to meet the amounts due them.

The register reported, on the twenty-second of April, 1879, that there were then no bonds or claims in the registry, except one claim, filed in court, as to which he did not report because no one had appeared and requested that it be audited. Subsequently, April 24, 1879, the Georgia corporations presented their joint petition for the removal of the suit commenced against them by Pettus & Dawson and Watts & Sons (they being the only defendants to the petition filed by the latter) to the circuit court of the United States, in which court it was docketed, and, after answer by the defendants and proof taken, proceeded to final decree. When the cause was removed from the state court, nothing practically remained for determination between the parties to the record, except the claim of appellees, citizens of Alabama, to a lien upon the property in question, owned by the two Georgia corporations.

H. C. Semple and A. R. Lawton, for appellants.

W. L. Bragg, for appellees.

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


text: Talk:Central Railroad Banking Company of Georgia v. Pettus


text:
Central Railroad Banking Company of Georgia v. Pettus/Opinion of the Court

In Trustees v. Greenough, 105 U.S. 527, we had occasion to consider the general question as to what costs, expenses, and allowances could be properly charged upon a trust fund brought under the control of court by suits instituted by one or more persons suing in behalf of themselves and of all others having a like interest touching the subject-matter of the litigation. That suit was instituted by the holder of the bonds of a railroad company, on behalf of himself and other bondholders, to save from waste and spoliation certain property in which he and they had a common interest. It resulted in bringing into court or under its control a large amount of money and property for the benefit of all entitled to come in and take the benefit of the final decree. His claim to be compensated, out of the fund or property recovered, for his personal services and private expenses was rejected as unsupported by reason or authority. 'It would present,' said Mr. Justice BRADLEY, speaking for the court, 'too great a temptation to parties to intermeddle in the management of valuable property or funds in which they have only the interests of creditors, and that, perhaps, only to a small amount, if they could calculate upon the allowance of a salary for their time and having all their private expenses paid.' In respect, however, of the expenses incurred in carrying on the suit and reclaiming the property subject to the trust, the rule, upon a careful review of the authorities, was held to be different. After stating it to be a general principle that a trust estate must bear the expenses of its administration, and that where one or more of many parties having a common interest in a trust fund takes, at his own expense, proper proceedings to save it from destruction and to restore it to the purposes of the trust, he is entitled to reimbursement either out of the fund itself or by a proportional contribution from those who accept the benefit of his efforts, the court said that 'the same rule is applicable to a creditor's suit where a fund has been realized by the diligence of the plaintiff.' It was consequently held that the complainant in that case was properly allowed his reasonable costs, counsel fees, charges, and expenses incurred in the fair prosecution of the suit, and in reclaiming and rescuing the trust fund and causing it to be subjected to the purposes of the trust. Are the principles announced in that case applicable to the one now before us?

We have seen that the purchase, by the Western Railroad Company, of the property of the Montgomery & West Point Railroad Company, and the surrender by the latter of its charter, left the unsecured creditors of the vendor company unprovided for, except as the vendee company assumed and agreed to meet the outstanding debts and obligations of the other company. But when the present appellants became purchasers at the sale in the suit instituted by Morris and Lowery, trustees, they asserted their right to hold the property originally belonging to the Montgomery & West Point Railroad Company, freed from any claim against it by the unsecured creditors of that company. Those creditors resided in several states, and their claims aggregated a large amount. Co-operation among them was impracticable. If some did not move, the interests of all would have suffered. Hence Branch, Sons & Co. and their co-complainants instituted suit for the benefit of themselves and other creditors of the same class. They and their solicitors bore the entire burden of the litigation until the lien was finally declared, and the property ordered to be sold to pay all claims filed pursuant to the decree. The supreme court of Alabama held conclusively as between the parties before it-that the Montgomery & West Point Railroad Company, like any other private corporation chartered to transact business, was a trustee of its capital, property, and effects, first, for the payment of its creditors, and afterwards for the benefit of its stockholders; that while it was in operation, according to the design of its charter, its general creditors would have no specific lien entitling them to sue in equity; yet, having left its debts unpaid, and having distributed its capital, property, and effects among its stockholders, or transferred thm to third persons, who were not bona fide purchasers, without notice, and having become disorganized, so that it could not be efficiently sued at law, 'a court of equity will pursue and lay hold of such property and effects, and apply them to the payment of what it owes to its creditors;' and, consequently, that its creditors had a lien, for the payment of their debts, on its road, appurtenances, and other property, superior to that created by the trust deed or mortgage of September 15, 1870, executed by the Western Railroad Company. Montgomery & W. P. R. Co. v. Branch, 59 Ala. 139.

It thus appears that by the suit instituted by Branch, Sons & Co. and others, the property was brought under the direct control of the court, to be administered for all entitled to share the fruits of the litigation. Indeed, the suit itself was an equitable levy upon the property, and the lien arising therefrom remained until discharged by order of the court. It is true that the bill states that it was brought for the benefit of all creditors who should become complainants therein; but it was intended to be, and throughout was, conducted as a suit for the benefit, not exclusively of the complainants, but of the class to which they belonged. It was so regarded by all connected with the litigation.

It is clear that, within the principles announced in Trustees v. Greenough, Branch, Sons & Co. and their co-complainants are entitled to be allowed, out of the property thus brought under the control of the court, for all expenses properly incurred in the preparation and conduct of the suit, including such reasonable attorneys' fees as were fairly earned in effecting the result indicated by the final decree. And when an allowance to the complainant is proper on account of solicitors' fees, it may be made directly to the solicitors themselves, without any application by their immediate client. But on behalf of appellants, it is insisted that the utmost which the court may do is to charge upon the property such reasonable expenses as complainants themselves incurred, and became directly and personally bound to meet; and, since appellees have received from the creditors, specially engaging their services, all that those creditors agreed to pay, it cannot be said that the compensation demanded in respect of such as were not parties, otherwise than by filing their claims with the register, constitute a part of the expenses incurred by the complainants. This is an aspect of the general question not presented in Trustees v. Greenough.

It is true that the complainants are not shown to have incurred any personal responsibility for solicitors' fees, beyond those stipulated, by special contract, to be paid to the appellees; and it is equally true that there was no express contract on their part to pay appellees such additional compensation as the court might allow and charge upon the property. Yet, it is proven that when the appellees engaged their professional services to Branch, Sons & Co., and other complainants named in the bill, it was understood by the latter that their solicitors entered upon the preparations of the suit in the belief that they had the right to demand, and would demand, such additional compensation as was reasonable, in respect of unsecured creditors who accepted the fruits of their labors by filing claims; that, but for this understanding, appellees would have stipulated for larger compensation than was agreed to be paid by their particular clients; and that, in this belief, and upon that understanding, they conducted the suit. Mr. Watts, in his deposition, says that on the occasion of his contract for a fee with Branch, he 'stated to him that the bill which we should file, although it should be in the name of his firm, would be for the benefit of all the creditors of the Montgomery & West Point Railroad Company not secured by mortgage, and that in such cases the lawyer who filed the bill would be entitled to a fee from all the creditors who participated in the benefit of their labors; and that we should charge him so small a fee, with the expectation that we should be paid a large fee out of the fund brought into court or condemned by our labors; and that such fee would be allowed by order of the chancery court, and a lien declared on the fund for the payment of such compensation, and with such understanding the paper [special contract for fee] was signed.' Mr. Pettus says: 'The bonds and other claims on which the bill was filed were less than a sixth of the unsecured debts of the Montgomery & West Point Railroad Company of the same class, and at the time that Pettus & Dawson were employed to bring the suit, that fact was known and discussed between the parties making the contract, and it was also discussed between said parties that the suit, if successful, would inure to the benefit of all the unsecured creditors who might claim the benefit of the decree, and that everbody who claimed the benefit of the services rendered by the complainants' solicitors would be bound to allow complainants' solicitors compensation out of that part of the fund distributable to them.'

There is no evidence in contradiction of these statements. Had Branch, Sons & Co., and their co-complainants, expressly stipulated to make such reasonable compensation, in addition to the fees they agreed to pay their solicitors, as the court might allow, in respect of other creditors filing claims, the dase, it could not well be doubted, would come within the very letter of the decision in Trustees v. Greenough. Without at all conceding that an express contract of that character would have added to the power of the court in the premises, it seems to us that the present case is embraced by the reason of the rule announced in Trustees v. Greenough. When the litigation was commenced, the unsecured bonds of the Montgomery & West Point Railroad Company was without any value in the financial market. That litigation resulted in their becoming worth all, or nearly all, that they called for. The creditors who are entitled to the benefit of the decree had only to await its execution in order to receive the full amount of their claims; and that result was due to the skill and vigilance of the appellees, so far as the result of litigation may, in any case, be referred to the labors of counsel. When creditors filed their claims they had notice, by the bill, that the suit was brought, not exclusively for the benefit of the complainants therein, but equally for those of the same class who should come in and contribute to the expenses of the litigation. Those expenses necessaruily included reasonable counsel fees, which, upon every ground of justice, should be estimated with reference as well to the claims of the complainants who undertook to protect the rights of all the unsecured creditors, as of the claims of those who accepted the fruits of the labors of complainants and their solicitors. We are of opinion that the appellees are entitled to reasonable compensation for their professional services in establishing a lien in behalf of the unsecured creditors of the Montgomery & West Point Railroad Company, upon the property described in the suit instituted by Branch, Sons & Co. and others, and that such compensation should be made with reference to the amount of all claims filed in the cause, although the evidence thereof may have been retained in the custody of the respective creditors; excepting from such estimate or calculation not only the claims of the complainants named in the bill, and of other unsecured creditors who may have had special contracts with appellees, or settled with them, but also such claims purchased by appellants as were not filed for allowance under the decree. The decree below proceeded upon this basis.

The court below did not err in declaring a lien upon the property in question to securesuch compensation as appellees were entitled to receive; for, according to the law of Alabama, by one of whose courts the original decree was rendered, and by which law this question must be determined, an attorney at law or solicitor in chancery has a lien upon a judgment or decree obtained for a client to the extent the latter has agreed to pay him, or, if there has been no specific agreement for compensation, to the extent to which he is entitled to recover, viz., reasonable compensation for the services rendered. Ex parte Lehman, 59 Ala. 632; Warfield v. Campbell, 38 Ala. 527. That lien could not be defeated by the corporations which owned the property purchasing the claims that were filed by creditors under the decree. The lien of the solicitor rests, by the law of that state, upon the basis that he is to be regarded as an assignee of the judgment or decree, to the extent of his fees, from the date of its rendition. This right of the solicitors is superior to any which the defendant corporations acquired subsequent to the decree by the purchase of the claims of unsecured creditors.

It remains only to consider whether the sum allowed appellees was too great. We think it was. The decree gave them an amount equal to 10 per cent. upon the aggregate principla and interest of the bonds and coupons filed in the cause, excluding those in respect of which there was, between appellees and complainants and others, special contracts for compensation. It is shown that appellees had with the complainants contracts for small retainers and 5 per cent. upon the sums realized by the suit. We perceive no reason for this discrimination against creditors who were not parties, except by filing their claims after decree. One-half the sum allowed was, under all the circumstances, sufficient. For the error last mentioned the decree is reversed, and the cause remanded, with directions to modify the decree so as to award to appellees only the sum of $17,580, with interest from March 7, 1881, with the benefit of the lien upon the property as established by the decree. Each party will pay his costs in this court, and one-half the cost of printing the record.


text: Talk:Central Railroad Banking Company of Georgia v. Pettus/Opinion of the Court


text:
Steele v. United States (113 U.S. 128)

R. B. Washington and W. D. Davidge, for appellants.

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

WOODS, J.

title: Steele v. United States (113 U.S. 128)


text:
Page:Travels with a Donkey In The Cevennes.djvu/96

ATHER MICHAEL, a pleasant, fresh-faced, smiling man, perhaps of thirty-five, took me to the pantry, and gave me a glass of liqueur to stay me until dinner. We had some talk, or rather I should say he listened to my prattle indulgently enough, but with an abstracted air, like a spirit with a thing of clay. And truly when I remember that I descanted principally on my appetite, and that it must have been by that time more than eighteen hours since Father Michael had so much as broken bread, I can well understand that he would find an earthly savour in my conversation. But his manner, though superior, was exquisitely gracious; and I find I have a lurking curiosity as to Father Michael's past. The whet administered, I was left alone for a little in the monastery garden. This is no more


text: Talk:Steele v. United States (113 U.S. 128)


text: Dictionary of National Biography, 1885-1900/Bovill, William