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Hills v. Exchange Bank/Opinion of the Court

This appeal presents very much the same questions that were decided in Supervisors v. Stanley, supra, p. 305. That was a common-law action to recover for taxes unlawfully exacted for years prior to 1879 on shares of the National Albany Exchange Bank. The present suit to enjoin the appellants from collecting a similar tax assessed any yet unpaid for that year, was brought by that bank, suing in right of and as representing all the stockholders. The Circuit Count made a decree perpetually enjoining the collection of all taxes on shares of the bank. Several questions are raised, or rather suggested, which we think have heretofore been decided by this court, such as the right of the bank to maintain a suit on behalf of its shareholders. This was established by the cases of Cummings v. National Bank, 101 U.S. 153; Pelton v. National Bank, id. 143. There is, also, an attempt to show that there was a settled rule or purpose on the part of the assessors to value the shares of the appellee bank higher in proportion to their real value than in the cast of other banks, bankers, and moneyed corporations. We think the proof fails to establish this in a manner to justify the interference of a court of equity. National Bank v. Kimball, 103 id. 732.

The bill, however, in its main feature, asserts the right to an injunction, on the ground that the act of 1866, under which the bank shares were assessed, is absolutely void because it makes no provision for deduction from the assessed value of these shares, of the debts honestly owing by the shareholders. And the court, proceeding upon the idea that both the statute and the assessment made under it are absolutely void, decreed relief accordingly. Under the ruling just made on that subject this decree must of course be reversed, because as to the larger number of the shareholders whose taxes are enjoined there is no evidence that they owed any debts whatever at the time the assessment was made.

The allegations of the bill on this subject are: First, That one shareholder owning five hundred and thirty-two shares of the stock made affidavit that the value of personal estate owned by him, including said bank shares, after deducting his just debts and other investments not taxable, did not exceed one dollar, and presented said affidavit to the board of assessors, with a demand that they should reduce the assessment of his shares accordingly, which was refused. The evidence shows this to have been Chauncey P. Williams. Second, That other shareholders were indebted to an amount equal to or in excess of the personal property owned by them, including their bank shares, but omitted to make affidavit and demand the proper reduction, because they knew such demand would be refused by the board, both from information of their refusal in other cases, and from knowledge of the decisions of the Court of Appeals of New York that they had no authority to make such deduction. This allegation is also supported by the evidence of four or five shareholders who are represented in this action.

While the decree of the court enjoining the collecting officers as to all the tax assessed on the shares of this bank must be reversed, the question arises, what shall be done with the cases in which it appears that there are shareholders taxed who owed just debts entitled to deduction.

With regard to the case of Williams, we have no doubt that there should be an injunction to the amount of his tax. He made the requisite affidavit and the proper demand for deduction, and his affidavit shows that no assessment should be made on his shares. He has not yet paid the money, and is entitled to relief by injunction.

A more difficult question is presented in regard to those who made no affidavit or demand for deduction, but who have shown that they would have been entitled to deduction if the demand had been properly made. That question is, whether the fact clearly established that their demand would have been unavailing, dispensed with the necessity of making the affidavit and demand. It is a general rule that when the tender of performance of an act is necessary to the establishment of any right against another party, this tender or offer to perform is waived or becomes unnecessary, when it is reasonably certain that the offer will be refused,-that payment or performance will not be accepted. Such is the doctrine established by this court in repeated decisions in regard to another branch of the law concerning the collection of taxes. Bennett v. Hunter, 9 Wall. 326; Tacey v. Irwin, 18 id. 549; Atwood v. Weems, 99 U.S. 183.

Without elaborating the matter we are of opinion that, considering the decision of the Court of Appeals of New York, the action of the assessors in the case of Williams, and their own testimony in this case, it is entirely clear that all affidavits and demands for deduction which could or might have been made would have been disregarded and unavailing, and that the assessors had a fixed purpose, generally known to all persons interested, that no deductions for debts would be made in the valuation of bank shares for taxation. It is, therefore, not now essential to show such an offer when it is established that there were debts to be deducted and when the matter is still in fieri, the tax being unpaid. And we are of opinion that it is open to the court below when this case returns to permit such amendment of the pleadings as will enable the complainant to make proper allegations on that subject, or by reference to a master to allow each shareholder to establish the amount of deduction to which he was entitled at the time of the assessment, and to enjoin the collection of a corresponding part of the tax. But as the assessment is not void, but only voidable, it must stand good for all of the assessment in each case which is not shown to be in excess of the just debts of the shareholder that should be deducted.

Decree reversed, and cause remanded for further proceedings in accordance with this opinion.


text: Talk:Hills v. Exchange Bank/Opinion of the Court

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text:
Author:Katharine Sarah MacQuoid

Works

 * Novels and stories
 * A Bad Beginning: A Story of a French Marriage (1862)
 * Hestor Kirton (1864)
 * By the Sea (1864)
 * Elinor Dryden's Probation: A Novel (1867)
 * Wild as a Hawk (1868)
 * Rookstone: A Novel (1871)
 * Patty (1871)
 * Miriam's Marriage (1872)
 * Too Soon: A Study of a Girl's Heart (1874)
 * My Story: A Novel (1875)
 * Diane (1875)
 * Forgotten by the World (1876)
 * Doris Barugh: A Yorkshire Story (1878)
 * In the Sweet Spring-time: A Love Story (1880)
 * Beside the River: A Story of the Ardennes (1881)
 * A Faithful Lover (1882)
 * Her Sailor Love (1883)
 * At the Red Glove (1885)
 * Joan Wentworth: A Novel (1887)
 * At an Old Chateau (1890)
 * The Old Courtyard (1890)
 * The Haunted Fountain: A Novel (1890)
 * The Story of Lois (1898)
 * A Ward of the King: A Romance (1899)
 * A Ward of the King: A Romance (1899)

 * Travels
 * Pictures Across the Channel (1873)
 * Through Normandy (1875)
 * Through Brittany (1877)
 * Pictures and Legends from Normandy and Brittany (1879), with T. R. Macquoid
 * In the Ardennes (1881)
 * About Yorkshire (1883), with T. R. Macquoid
 * In the Volcanic Eifel: A Holiday Ramble (1896)
 * Pictures in Umbria (1905)

title: Author:Katharine Sarah MacQuoid


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Page:Dictionary of National Biography volume 23.djvu/295

minister, the Rev. John Hoppus, had been seriously considered, but no recommendation was made, in face of Grote's urgent contention, adhered to by Mill and Brougham, that in a professedly unsectarian institution no minister of religion could fitly occupy a philosophical chair. The 'university' consequently opened in 1828 with neither of its philosophical chairs filled. Then, in the spring of 1829, if not earlier, Grote put forward for the chair of moral and political philosophy his friend Charles Cameron. Cameron was formally recommended by the education-committee in June, but the council in July, at the instance of Z. Macaulay and others who would have no teaching of morals without a religious basis, passed the recommendation by with a resolution not to elect 'at present.' In the vacation some of the party proceeded to seek out a clerical candidate; and, with the consent of Mill and Brougham, Hoppus was recommended in November for the other professorship of mental philosophy, denied to him in 1827. Grote, though knowing that the appointment to this chair would be considered in committee, was for some reason absent. Mrs. Grote (Personal Life, p. 59) speaks of him as too busy otherwise, in the autumn of this year, to be able to attend meetings, but the minute-books report differently, and she has here overlooked more than one memorandum of peculiar interest which she made at the time. Grote was profoundly chagrined that the master in whom his confidence had till then been absolute should abandon the principle maintained in 1827, for the sake only, as it seemed, of appeasing orthodox sentiment in friends or enemies of the 'university.' At the council-meeting of 5 Dec., specially summoned to decide upon the committee's recommendation, he made a vehement but unavailing protest against the appointment. The incident had the effect of deciding him (Posth. Papers, p. 35) to withdraw, for a considerable term of years, from the educational work to which he had given the first of his public service. At the first opportunity, a few weeks later, he resigned his place on the council, to the regret, expressly recorded (2 Feb. 1830), of the colleagues who knew what his labours had been.

Grote went abroad for the first time in the spring of 1830, with his wife. They were bound for Switzerland, but bad weather and still more the exciting state of politics kept them in Paris. Mrs. Grote (Life of Ary Scheffer) has given a bright account of their visit to the veteran Lafayette at La Grange, to whom, as to other leading men of the opposition, they were introduced by their friend Charles Comte, son-in-law of J. B. Say and a refugee in England for some years past. With him had begun, and now were extended, those close relations with French liberals that remained to the last a special feature in the lives of both husband and wife. Hastily summoned home, to find his father already dead (6 July), Grote was now able to give practical proof of his interest in the cause of political reform. The moment he heard, 29 July, of the uprising in Paris on the previous day, he sent 500l. to Charles Comte for the use of the revolutionary leaders, with an expression of regret that he could not be at their side in the struggle. Nor, though much engrossed in the next months by the duties devolving on him as his father's executor and by the business which fell to him as a full partner in the bank, was he less eager to turn to public use at home his new personal freedom and his now ample means. The character he had acquired as a man of business in the previous years began to give him a leading position among city reformers; and he also established relations with the active spirits (like Joseph Parkes) who were preparing in the provinces the victory of 1832. In the first weeks of 1831, at the request of James Mill, he threw off a considerable pamphlet, 'The Essentials of Parliamentary Reform' (reprinted in Minor Works, pp. 1-55), in which he took up the special argument of his 'Statement' often years before, while he further developed, with an infectious enthusiasm and absolute hopefulness, the most advanced proposals favoured in the Benthamite circle. A little later in the year he refused to stand for parliament at the general election, still hoping to complete his 'History' before entering on political life ; but the passage of the Reform Bill, in the struggle for which he bore no small part as a private citizen, roused a feverish expectation of immediate practical results which proved too much for his scholarly scruples. In June he announced himself as a candidate for the city of London; in October he indicated in a telling and comprehensive address the special reforms for which he desired to work; and in December, after an exciting conflict, he emerged at the head of the poll, followed by three other liberals.

Grote sat through three parliaments till 1841, when he refused to be again nominated. At his second and third elections (January 1835, July 1837) he lost ground greatly at the poll, falling first to the third place among four liberals, then to the fourth, with the first tory only six votes behind him. The general reaction had soon set in, while the strenuousness and independence of his own


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Evansville Bank v. Britton Britton

APPEALS from the Circuit Court of the United States, for the District of Indiana.

The facts are stated in the opinion of the court.

The case was argued by Mr. Asa Iglehart and Mr. Thomas A. Hendricks for the bank, and by Mr. Jacob S. Buchanan and Mr. Benjamin Harrison for Britton.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Evansville Bank v. Britton Britton


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title: Talk:Evansville Bank v. Britton Britton


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Evansville Bank v. Britton Britton/Opinion of the Court

These are cross-appeals from a decree rendered in a suit in chancery, in which the Evansville National Bank was complainant, and Britton, as treasurer of Vanderburgh County, Indiana, was defendant.

The case is in all essential points analogous to that of Hills v. Exchange Bank, supra, p. 319, just decided.

The principal question of law is the same as that discussed and decided in Supervisors v. Stanley, supra, p. 305. In fact, the three cases were advanced out of their order, and heard consecutively, because they involved important questions concerning taxation by State statutes of the shares of national banks; and the argument, able and exhaustive throughout, has been almost wholly directed, on the part of the banks, to establish the proposition that, where the law of the State either makes or permits a discrimination operating only against a particular class of holders of national bank shares, in the manner of assessing those shares as regards other moneyed capital in the State, all the laws for such assessments are void, and all such assessments are absolutely void, and no tax on national bank shares can be collected in the State.

The brief of counsel in this case in various forms repeats the idea that the bill was brought, not so much to assert the rights of stockholders who may have been injured by the enforcement of the statute, as to obtain a judicial declaration of this court that the act is void, and the attempt to tax the shares of the bank equally so.

Having, in Supervisors v. Stanley, rejected this proposition, and given our reasons for it, we shall not repeat them here.

The objection made to the Indiana statute is the same as that made against the New York statute; namely, that it permits the taxpayer to deduct from the sum of his credits, money at interest, or other demands, the amount of his bona fide indebtedness, leaving the remainder as the sum to be taxed, while it denies the same right of deduction from the cash value of bank shares.

A distinction is attempted to be drawn between the Indiana statute and the New York statute, because the former permitted the deduction of the taxpayer's indebtedness to be made from the valuation of his personal property, while in Indiana he can only deduct it from his credits. And undoubtedly there is such a difference in the laws of the two States. But if one of them is more directly in conflict with the act of Congress than the other, it is the Indiana statute. In its schedule the subject of taxation from which the taxpayer may deduct his bona fide indebtedness is placed under two heads, as follows:-- '1. Credits or money at interest, either within or without the State, at par value.

'2. All other demands against persons or bodies corporate, either within or without this State.

'Total amount of all credits.'

The act of Congress does not make the tax on personal property the measure of the tax on bank shares in the State, but the tax on moneyed capital in the hands of the individual citizens. Credits, money loaned at interest, and demands against persons or corporations are more purely representative of moneyed capital than personal property, so far as they can be said to differ. Undoubtedly there may be much personal property exempt from taxation without giving bank shares a right to similar exemption, because personal property is not necessarily moneyed capital. But the rights, credits, demands, and money at interest mentioned in the Indiana statute, from which bona fide debts may be deducted, all mean moneyed capital invested in that way.

It is unnecessary to repeat the argument in People v. Weaver (100 U.S. 539) on this point. We are of opinion that the taxation of bank shares by the Indiana statute, without permitting the shareholder to deduct from their assessed value the amount of his bona fide indebtedness, as in the case of other investments of moneyed capital, is a discrimination forbidden by the act of Congress.

There is in the bill of complaint in this case the usual allegation, apart from the special matters we have just considered, that the assessing officers habitually and intentionally assess the shares of the national banks higher in proportion to their actual value than other property generally, and especially shares in other corporations. It is denied in the answer, and unsupported by proof.

It is also alleged that the bank is taxed a considerable sum for its real estate, and that in assessing the value of the shares no deduction is made on that account. The positive testimony of the assessor shows that such deduction was made.

It is alleged that the capital of the bank is almost entirely invested in the bonds and treasury notes of the United States, and the shares only represent this untaxable investment. Van Allen v. The Assessors (3 Wall. 573) settles the principle that under certain limitations the shares of the national banks are taxable with exclusive reference to their value and without regard to the nature of the property held by the bank as a corporation. The very point here made was expressly overruled in that case.

Acting upon these principles the Circuit Court decreed a perpetual injunction as to those shareholders who had proved in the case that at the time of the assessment they owed debts which should rightfully have been deducted. These were four in number, and the appeal of the collector, Britton, is from this injunction. The decree in that respect was right, and must be

Affirmed.

The bank appeals from that part of the decree which dismissed the bill as to all the other shares. This was because no evidence was given that any other shareholders except the four above referred to owed any debts which could have been deducted from the value of the shares. In the case of Hills v. Exchange Bank we authorized the court on return of the case to permit the bank to show what shareholders had such indebtedness in some appropriate form. It is not necessary to consider whether this case ought to be reversed at the instance of the bank to enable that to be done now, for it is stated by the counsel of the bank in their printed brief that the offer was made to them to have a reference to a master to take testimony on this point before final decree, and they declined to accept the privilege. That branch of the decree is, on the appeal of the bank,

Affirmed.

MR. CHIEF JUSTICE WAITE, MR. JUSTICE BRADLEY, and MR. JUSTICE GRAY dissented.


text: Talk:Evansville Bank v. Britton Britton/Opinion of the Court


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Insurance Company v. Bruce

ERROR to the Circuit Court of the United States for the Northern District of Illinois.

The facts are stated in the opinion of the court.

The case was argued by Mr. Henry Hazlehurst for the plaintiff in error, and by Mr. Philip Phillips for the defendant in error.

MR. JUSTICE HARLAN delivered the opinion of the court.

title: Insurance Company v. Bruce


text: Talk:Insurance Company v. Bruce

title: Talk:Insurance Company v. Bruce


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Insurance Company v. Bruce/Opinion of the Court

This action involves the liability of the town of Bruce, in the State of Illinois, upon sundry interest coupons, attached to bonds, in the ordinary form of negotiable municipal bonds. On the first day of December, 1870, they were delivered by the constituted authorities of the town to the Plymouth, Kankakee, and Pacific Railroad Company in payment of a subscription to the capital stock of the Kankakee and Illinois River Railroad Company. The latter company, after organization, became consolidated with the former, and hence the delivery to the consolidated company. The bonds upon their face recite that they are 'issued by virtue of the law of the State of Illinois, entitled 'An Act to incorporate the Kankakee and Illinois River Railroad Company,' approved April 15, 1869, and 'An Act to fund and provide for paying railroad debts of counties, townships, cities, and towns, in force April 16, 1869;' and we, the supervisor and town clerk of the township of Bruce, do hereby certify that a special election was held in said township on the seventh day of September, 1869, at which special election a majority of the legal voters, participating at the same, voted 'for subscription' to the capital stock of the Kankakee and Illinois River Railroad Company in the sum of $25,000, and to issue bonds of said township therefor; and said special election was by the proper authorities then and there duly declared carried 'for subscription,' and that all the other requirements of the law in relation to said special election were duly complied with.'

The act of April 15, 1869, is the charter of the railroad company. By the sixteenth section thereof it is made the duty of the supervisor or clerk of any town or township, declaring by a majority of its voters in favor of subscription to the capital stock of the railroad company, to make the subscription, receive the proper certificates, and execute bonds therefor, which shall be delivered to the president or secretary of said railroad company for the use of said company, and shall be a pledge upon the revenue of said territories respectively. Sess. Laws Ill., 1869, vol. iii. p. 1.

The coupons in suit, before their maturity, to wit, on the 19th June, 1871, together with the bonds to which they are severally attached, were purchased by the American Life Insurance Company, the plaintiff in error, from one Alexander Whillden, the lawful and bona fide holder thereof, for the sum of $9,500 cash in hand paid. Neither Whillden nor the insurance company had any notice, at the time, of any irregularity, invalidity, or informality in the making, issuing, or delivery of the bonds.

It is not seriously disputed, either in the pleadings or in argument, that the acts of assembly referred to in the bonds gave ample authority for subscription by the town to the capital stock of the Kankakee and Illinois River Railroad Company, to be paid for in bonds of the town, provided a majority of legal voters, at an election previously called and held for that purpose, expressed their approval of such subscription and its payment in that mode. But the contention of the town is: 1st, That by the seventh section of the act of April 16, 1869, it is provided that 'any county, township, city, or town shall have the right, when making any subscription or donation to any railroad company, to prescribe the conditions upon which such bonds and subscriptions or donations shall be made, and such bonds, subscriptions, or donations shall not be valid and binding until such conditions precedent shall have been complied with:' 2d, That, in pursuance of the authority thus given, the town voted to make a subscription of $25,000, to be paid for in bonds, subject to the following conditions, distinctly set forth in the notice under which the election was held, and assented to by the railroad company, viz.: that the road be so constructed as to pass through the town, making Streater a point in a northwesterly direction towards Bureau Junction; that a depot be located and maintained in the town of Bruce; that the bonds be delivered in sums of $1,000 for every mile of road graded, as the work progresses, and $1,000 for every mile of ties laid, and the balance when the road-bed is ready for the iron; and that no further calls or assessments shall be made upon the town or upon the subscription to stock over the amount aforesaid; provided, nevertheless, that the subscription be void and of no effect unless an agreement by the railroad company for said iron and rolling-stock with responsible parties shall be made on or before one year from the day of the election, and the railroad company shall have formed satisfactory arrangements to connect said railroad with some eastern terminus: 3d, That the conditions thus prescribed have never been complied with in these respects; more that one year elapsed after the election and yet no agreement had been made on or before Sept. 7, 1870, by the original or consolidated company, with any party for the iron or the rolling-stock of the railroad; the road was never so constructed as to pass through the town of Bruce; it was not constructed when the bonds were issued, and has never been constructed at any time since; no depot has ever been located or maintained in the town; the ties were never laid for any one mile of the railroad within the town; and no part of the railroad for the line of railroad of the Kankakee and Illinois River Railroad Company, or of the original line of the original Plymouth, Kankakee, and Pacific Railroad, has ever been constructed.

These facts are set out in detail in the special plea of the town. Do they constitute a defence against a bona fide holder, for value, of the bonds and their coupons? Or to state the question more distinctly, can the town, after the bonds have been signed, sealed, and delivered by its constituted authorities to the railroad company, and have passed into the hands of bona fide holders for value, escape liability by showing that the conditions or some of them imposed by popular vote have not been complied with upon the part of the railroad company?

The statute did not make it obligatory on the town to impose conditions upon the performance of which its liability should depend. It conferred simply the right to do so, leaving the town at liberty to prescribe conditions or to make an unconditional subscription. Consistently with the statute the town could issue and deliver bonds for the subscription in advance of the construction of any part of the road. But when conditions were prescribed, good faith, and the obligations which everywhere arise out of negotiable securities, required-if the town intended to rely upon them-that the public, who were expected to buy the bonds or to advance money upon them, should be informed by their recitals that the town had exercised its statutory right to impose conditions upon its liability. The officers both of the town and the railroad company knew, however, that bonds could not have been negotiated in the market had their recitals disclosed the fact that payment depended upon conditions thereafter to be fulfilled by the railroad corporation. To the end, therefore, that money might be raised for the construction of the proposed road, or in reliance upon the performance by the railroad company of the conditions imposed, the constituted authorities of the town, and the officers or agents of the company, co-operated in putting out bonds negotiable in form and with recitals that gave no intimation even that the subscription was conditional. The fact that conditions had been prescribed was omitted in recitals, full of everything necessary to induce the public to buy the bonds. The statement, on the face of the bonds, that they were issued by virtue of the statutes of April 15, 1869, and April 16, 1869,-the first of which contains an absolute requirement that the bonds be issued and delivered upon the subscription being voted, while the second gives the right, but does not make it imperative, to impose conditions,-and the further statement that the people had voted for subscription and to issue township bonds therefor, fairly imported that nothing remained to be done in order to make the bonds binding obligations upon the town in the hands of bona fide purchasers. Under these circumstances, the town, by every principle of justice, is estopped, as against a bona fide holder, to plead conditions, the existence of which was withheld from the public, either to facilitate the negotiation of the bonds in the markets of the country, or because it had full confidence that the railroad company would meet the prescribed conditions. It should not now be heard to make a defence inconsistent with the representations contained in the recitals upon its bonds, or upon the ground that the conditions imposed, of which purchasers had no notice, have not been performed.

But this conclusion, it is contended, is in the face of the express declaration in the act of April 16, 1869, that subscriptions or donations made and bonds issued, upon conditions, 'shall not be valid and binding until such conditions precedent shall have been complied with.' And in support of that contention counsel cite Town of Eagle v. Kohn (84 Ill. 292), in which case one of the justices dissented and another did not sit. That case involved the liability of the town of Eagle upon certain coupons of bonds issued to the same railroad company. The defence was there, as here, non-compliance with certain conditions which had been attached by popular vote to the subscription. The court, construing that act, held that there was no want of power to make the subscription and issue bonds; that, if the town so willed, the subscription could be made and bonds issued in advance of the compliance with any condition imposed by the popular vote; that, saide from the statute, innocent purchasers for value would enjoy the protection accorded to bond fide holders of negotiable paper, and would not be affected by non-compliance with such conditions; that such holders could not be required to take notice of the conditions or of any resolution relating to them upon the records of the railroad company; but that, in view of the express provision of the statute that the bonds should not be 'valid and binding until such conditions precedent shall have been complied with,' non-compliance therewith is a good defence, even against purchasers in good faith for value. The decision in that case was made several years after the bonds had been put on the market, but geing a construction of a local statute, it is insisted that the Federal court is bound to accept it as controlling in the present case. We waive discussion as to the soundness of the conclusion reached by the State court, or any extended examination of the authorities bearing upon the general question whether the Federal court is concluded by the construction given by the State court to a local statute, under which rights have accrued to citizens of other States before that construction was given. We do this because the present case is distinguishable from Town of Eagle v. Kohn in this, that it does not appear, from the report of the latter case, that the town had, by the recitals in its bonds, estopped itself from asserting, as against a bona fide holder, the non-performance of conditions imposed by popular vote. Had the town of Eagle represented, in express words, upon the face of the bonds, that no conditions whatever were prescribed by the people, or that the subscription was unconditional, the State court would not, we suppose, adjudge that the town, as against a bona fide holder, could take shelter behind the statutory provision in question. In the present case, the town of Bruce did not make, in express terms, a representation of that character. But, in effect, by the recitals in its bonds, it did represent to the public that the bonds were issued in all respects in conformity to law, and that nothing remained to be done which was essential to its liability thereon. The town having power, under the statute, to make an unconditional subscription, and to issue and deliver its bonds in advance of the construction of the road, what was said in Brooklyn v. Insurance Company (99 U.S. 362) may be repeated here: 'It is now too late for the town to claim exemption, as against bona fide purchasers, upon the ground that the railroad company disregarded its promise to construct the road, or upon the ground that its own officers delivered the bonds in violation of special conditions, of which the purchasers had no knowledge or notice, either from the statute or otherwise.'

Judgment reversed, with directions for further proceedings in conformity with this opinion.

MR. JUSTICE MATTHEWS and MR. JUSTICE GRAY did not sit in this case, nor take any part in deciding it.


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political course did hardly more to exasperate opponents than to alienate the feeble-hearted of his own party. From the first he assumed a leadership among advanced liberals, but when it appeared that not all his concern for immediate practical reforms of a drastic kind could overbear his regard for general principles, he was followed by only a limited band of 'philosophical radicals.' Molesworth, C. Buller and (till 1837, when he lost a seat) Roebuck were the ablest of his direct adherents. As a speaker he was always impressive, and with practice and some training of the voice he ended by acquiring an effective parliamentary manner. A speech delivered in 1841, shortly before he retired, on the Syrian policy of the government in its relation to France, was noted at the time as a particularly successful effort; but he had all through made his mark, both in public debate on the most varied topics and as a working member of select committees. The question of voting by ballot was entrusted to him, in succession to his friend, H. Warburton, who had busied himself with it before the Reform Bill. Grote, who had advocated the ballot in his first political essay of 1821 with the ardour of a Benthamite, quickened by the student's enthusiasm for Athenian models, brought all his powers to bear upon the parliamentary struggle. He presented his plea, with the most cogent and varied reasonings, four times by way of motion (1833, 1835, 1838, 1839), twice by bill (1836, 1837); and in the two latest years was supported by the largest minorities (200 and 216 respectively) that he ever secured. Still the majorities were always decisive against him, and at last he abandoned the contest as hopeless in face of the growing political apathy. The cause was gained when he lay dying, by one who declared that Grote had left nothing to be argued on the subject. In the introduction to his 'Minor Works' Professor Bain has given a careful analysis of his speeches on the ballot, as well as on the other questions that specially drew him forth during his eight years of parliamentary service. Though he had considerable influence on the shaping of practical legislation in directions that he had at heart, yet with the general political result of those years it was impossible for a reformer of his temperament to be other than dissatisfied. He could not but ask himself whether the sacrifice he was making in a vain effort to keep the liberals now in office up to their old professions was not too great. Business had left him time for continuous and fruitful study; but the addition of parliamentary labours had turned the student into a mere desultory reader, who yet could not forget the high satisfaction of his former estate. Already in 1838 he had begun to 'look wistfully back' to his unfinished Greek 'History,' and the feeling grew stronger as the Melbourne ministry tottered on to its fall in 1841. By that time Grote's mind was made up to return to his books. Aristotle had laid hold of him in the winter of 1840-1 ; and, seeking no place in the new parliament of next midsummer, he got freedom (from the bank) in October to carry out a long-cherished plan of travel in Italy till the spring of 1842. On his return home, attendance at the bank alone stood between him and the devotion of his whole time to the 'History,' which he now recommenced on new lines. Then in the middle of 1843 he terminated his business-partnership, and became the scholar for good.

Throughout the parliamentary period (1832-41) Grote appears to have written nothing but a short and pregnant notice, for the 'Spectator,' 1839 (Minor Works, pp. 59-72), of a collected edition of Hobbes's works begun in that year by his friend Molesworth; the edition was dedicated to himself as having first directed Molesworth's attention to a thinker who, under the accidental guise of a political absolutist, was so much of a 'radical' at heart. Now, in his fiftieth year, began his time of continuous and fruitful literary activity. The first two volumes of the 'History' were not worked off till 1845 ; but he had meanwhile contributed an article, instinct with mature philosophical thought, on 'Grecian Legends and Early History' to the 'Westminster Review' of May 1843 (ib. pp. 75-134), and a careful criticism of Boeckh's views 'On Ancient Weights, Coins, and Measures' to the 'Classical Museum,' 1844 (ib. pp. 137-4). His life was now spent between London and a country house at Burnham Beeches in Buckinghamshire, not without social recreation carefully provided by Mrs. Grote. But he never slackened in his work. One short flight to Paris was taken in the spring of 1844, upon which he renewed acquaintance with Auguste Comte begun at the time of an earlier visit, January 1840; and he was thus induced (by J. S. Mill) to join with Molesworth and Raikes Currie in affording pecuniary help to the philosopher when deprived of an official income in 1845—help which he partially continued in the next year but no longer, since it began to be claimed as a right. Vols. i. and ii. of the 'History' were published in March 1846. The work was completed in the spring of 1856 by vol. xii.; vols. iii. iv. coming out in 1847, v. vi. in 1848, vii. viii. in 1850, ix. x. in 1852, xi. in 1853. If the work proceeded more slowly towards the end, there was reason for this, not only in the widening


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Sullivan v. Burnett

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

This action, under the local law equivalent to an action of ejectment, involves the title to certain real estate in the city of St. Louis, of which Edward Sullivan, a naturalized citizen of the United States, who died intestate in the year 1866, was seized in fee at the time of his death.

Both parties claimed under him. The court below specially found that Emily Sullivan, one of the plaintiffs, was his sister, and that Jeremiah Sullivan, the other plaintiff, was a son of his deceased brother.

It was admitted on the trial that the plaintiffs were then, and always had been, non-resident aliens, and that neither had made a declaration of intention to become a citizen of the United States.

The court below held that under the laws of Missouri in force at the death of Edward Sullivan, the plaintiffs were incapable of acquiring the real estate in dispute, especially as there were several aliens resident in this country who had declared their intention to become citizens, and also a resident alien in Missouri, to whom the real estate would descend subject to the limitations mentioned in those laws.

Under the foregoing view of the case, the court found it unnecessary to pass upon the other facts and questions of law presented by the defendants.

Judgment was rendered for the defendants, and the plaintiffs sued out this writ.

The remaining facts are stated in the opinion of the court, and the statutes therein mentioned are as follows:--

'GENERAL STATUTES OF MISSOURI, 1865. TITLE XXVIII. CHAPTER 110.

'SECT. 1. All aliens residing in the United States, who shall have made a declaration of their intention to become citizens of the United States, by taking the oath required by law, and all aliens, residents of this State, shall be capable of acquiring real estate in this State, by descent or purchase, and of holding and alienating the same, and shall incur the like duties and liabilities in relation thereto, as if they were citizens of the United States.

'SECT. 2. It shall be lawful for every alien, who, except for his alienage, would be capable of acquiring real estate by devise or descent from any person thereafter dying, capable of holding, at the time of his death, real estate in this State, to sell and convey, in the manner provided by law for the conveyance of real estate, any real estate which he may acquire by virtue of this section, to any other person capable of holding real estate by virtue of the laws of this State; and such sale and conveyance, when executed and delivered in the manner provided, shall have the effect to pass all the title to any real estate which such aline may have acquired to the same, by descent or devise.

'SECT. 3. All such sales and conveyances shall be unll and void, unless made in good faith within three years next after the final settlement of the estate of the ancestor or devisor: Provided, that if such real estate be in litigation between such alien and any other person, then such real estate, or so much thereof as shall have been in litigation, shall be sold and conveyed within three years after the termination of such litigation.

'CHAPTER 129, id.

'OF DESCENTS AND DISTRIBUTIONS.

'SECT. 1. When any person having title to any real estate of inheritance, or personal estate undisposed of, or otherwise limited by marriage settlement, shall die intestate as to such estate, it shall descend and be distributed in parcenary, to his kindred, male and female, subject to the payment of his debts and the widow's dower, in the following course: First, to his children or their descendants in equal parts; second, if there be no children or their descendants, then to his father, mother, brothers, and sisters and their descendants in equal parts; third, if there be no children or their descendants, father, mother, brother, or sister, not their descendants, then to the husband or wife; if there be no husband or wife, then to the grandfather, grandmother, uncles and aunts and their descendants, in equal parts; fourth, if there be no children or their descendants, father, mother, brother, sister, or their descendants, husband or wife, grandfather, grandmother, uncles, aunts, nor their descendants, then to the great-grandfathers, great-grandmothers and their descendants in equal parts; and so on in other cases without end, passing to the nearest lineal ancestors and their children and their descendants in equal parts.'

'SECT. 8. In making title by descent it shall be no bar to a demandant that any ancestor through whom he derives his descent from the intestate is, or has been, an alien.

ACT OF MARCH 30, 1872.

'SECT. 1. Aliens shall be capable of acquiring, by purchase, devise, or descent, real estate in this State, and of holding, devising, or alienating the same, and shall incur the like duties and liabilities in relation thereto as if they were citizens of the United States, and rcsidents of this State.

'SECT. 2. Any female born in the United States, owning real estate or any interest therein in this State, who shall marry an alien and reside in a foreign country, may, at any time, notwithstanding such marriage or residence, convey such real estate, or any interest therein, by deed, or may at any time devise the same by last will: Provided, the same be done in either case in conformity with the general laws of this State concerning the conveyance of real estate by deed and the making of wills.

'SECT. 3. Chapter one hundred and ten of title twenty-eight of the General Statutes of Missouri, being chapter five of Wagner's Missouri Statutes, and an act entitled 'An Act to amend chapter one hundred and ten of title twenty-eight of the General Statutes concerning real property and its alienation,' approved March 13, 1867, are hereby repealed.

'SECT. 4. This act shall take effect on the fourth day of March, in the year eighteen hundred and seventy-two.' Mr. Leroy B. Valliant and Mr. Willoughby N. Smith for the plaintiffs in error.

Mr. Gustavus A. Finkelnburg for the defendants in error.

MR. JUSTICE HARLAN delivered the opinion of the court.

title: Sullivan v. Burnett


text: Talk:Sullivan v. Burnett

title: Talk:Sullivan v. Burnett


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Sullivan v. Burnett/Opinion of the Court

At the death of the intestate, as well as at the commencement of this action, the plaintiffs-his sister and the son of his deceased brother-were residents of Ireland and subjects of the United Kingdom of Great Britain and Ireland. The defendants, it is sufficient to say, hold whatever title passed to a female lunatic, foreign born and a first cousin of the intestate, residing, at his death, in Maryland, but who, so far as the record discloses, never made a declaration of her intention to become a citizen of the United States; also whatever title passed to the children of Annie Murta and Mary Murta, foreign-born first cousins, who, like the plaintiffs, resided, at his death, in Ireland, and were subjects of the United Kingdom of Great Britain and Ireland. But their children, also foreign born, were, at his death, naturalized citizens of the United States, one of them a resident of the State of Missouri.

The controlling question related to the claim of the plaintiffs to an interest in the property in controversy.

The statute to which, as bearing upon the case, our attention has been called, are chapter 110 of the Revised Statutes of Missouri, 1865, sections 1 and 8 of chapter 129 of the same revision, and an act of the General Assembly of that State, approved March 30, 1872. The first section of chapter 110 is a reproduction of statutory provisions which had been in force from a very early period after the admission of Missouri into the Union. Rev. Stat. Mo., 1825, p. 126; id. 1835, p. 66; Rev. Code of Mo., 1845, p. 113. It conferred upon two classes of aliens the same capacity of acquiring by descent or purchase real estate in Missouri, and of holding and alienating it, as is enjoyed by citizens of the United States,-those residing in this country who had made a declaration of intention to become citizens of the United States, by taking the required oath, and those, whether they had made such declaration or not, who resided in that State. Aliens not belonging to one or the other of those classes were left subject to the operation of the common-law rule-recognized as in force in Missouri-that an alien, for the want of inheritable blood, could not take land by descent. Wacker v. Wacker, 26 Mo. 426; 2 Bl. Com., 249; Orr v. Hodgson, 4 Wheat. 453. The second and third sections, as to their substantial provisions, are brought forward from an act approved Feb. 22, 1855, which declares it to be 'lawful for every alien who, except for his alienage, would be entitled to any real estate by devise or inheritance from any person hereafter dying, capable at the time of his death of holding real estate situate in this State, to legally sell, for his own use, and convey the title thereof to any person capable of holding real estate situate within this State: Provided, he make such sale and conveyance within three years next after the death of him from whom he shall claim such devise or inheritance.' When the minor is an alien, his guardian is authorized to make such sale and conveyance. Sess. Laws Mo., 1855, p. 4.

It is quite clear that, upon the death of Edward Sullivan, neither of the plaintiffs took by descent any interest in his real estate, for the reason suggested by the very words of the statute, and fortified by the policy which dictated its enactment, that they were and are alien non-residents of the United States. This construction must be adopted, unless the object of the act of 1855 was, for purposes of descent, to obliterate all distinction between aliens residing in, and those residing out of, the United States. But no such interpretation is admissible, especially in view of the fact that the statute of 1855, upon this general subject, as well as that enacted previously thereto, was embodied in the same chapter of the general revision of 1865. The section declaring it lawful for an alien to sell and convey, within a prescribed time, to one capable of holding, real estate which, except for his alienage, he would have been capable of acquiring by devise or descent, has reference to cases not embraced by the first section of chapter 110; that is, to cases in which the property would vest at once in the State for the want of some person who could, at common law or under the statute, inherit. Aliens of the class described in the first section of chapter 110 could not inherit at common law, but by statute they were permitted to take by descent or purchase, holding, or selling and conveying, as it suited their convenience to do the one or the other. In all those respects, aliens embraced by that section were placed upon the same footing of equality with citizens of the United States. But to an alien who did not have capacity to inherit by virtue of residence in Missouri, or of residence in the United States accompanied by a formal declaration, under oath, of intention to become a citizen, the right was given by the act of 1855, continued and enlarged in section 2 of chapter 110 (not to inherit and hold, as a native or naturalized citizen could, but), to take and sell and convey to one who could hold. Until the law of 1855 was enacted, the right of the State to take the real estate of one who left no person in existence capable of acquiring it, by descent, accrued immediately upon the death of the owner. Impelled by a sense of justice, or to meet the hardships of cases likely to arise in a new State receiving large accessions to its population from Europe, Missouri, as a partial waiver or suspension of its rights, and for no other purpose, declared by the act of 1855 that an alien who did not reside in Missouri, or in this country with an intention to become a citizen of the United States, and who could not, therefore, inherit, might, within a limited period, sell and convey to one who could take and hold.

That statute, plainly, had no reference to those aliens upon whom had already been conferred, by statute, the capacity to inherit and hold, or to sell and convey, in the same manner as citizens of the United States.

But the contention of counsel for the plaintiffs is, that the children of Annie and Mary Murta could not take this property, nor any interest in it, because their alien non-resident mothers, through whom they traced relationship to the deceased, were alive at his death; and since the parents were incapable of taking, for the reasons we have given, their children could not take. Upon the basis of that conclusion, counsel advance to the further proposition, that, if neither the plaintiffs nor the Murta children could take by descent, the property upon the death of the intestate escheated to the State, and the right of the plaintiffs to take as the nearest of kin was subsequently recognized and established by the first section of the act of March 30, 1872.

Although that statute was enacted within three years after the final settlement of Edward Sullivan's estate, and although its object was, undoubtedly, to remove the disabilities of aliens or every class, whether resident or non-resident, to acquire real estate in Missouri by purchase, descent, or devise, we are of opinion that neither of the propositions just stated can be successfully maintained. The Murta children, we have seen, were naturalized citizens of the United States, one of them being also a resident of Missouri. At the time descent was cast they were the nearest of kin of the class of aliens who, by the first section of chapter 110, were capable of acquiring real estate in Missouri by descent or purchase. Their right to take by descent was not, as we think, affected by the fact that their respective mothers were, when the intestate died, alive, and alien non-residents of this country, incapable themselves of inheriting the estate. The eight section of the chapter (129) on descents and distributions declares that 'in making title by descent it shall be no bar to a demandant that any ancestor through whom he derives his descent from the estate is or has been an alien.' This language would seem to embrace as well the case of one whose alien progenitor, through whom is traced relationship to the intestate, was living when descent was cast, as the case where such progenitor was then dead. This view is controverted by the plaintiffs, on the authority of McCreery's Lessee v. Somerville (9 Wheat. 354), where this court had occasion to determine the meaning of the statute of 11 & 12 William III. c. 6, which, it is claimed, is, upon the present point, identical with the foregoing section in the Missouri statute of descents and distribution. It was there ruled that the English statute (in force in Maryland, from which State the case came) removed the common-law disability to claim title through an alien ancestor, but did not apply to a living alien ancestor, so as to create a title by heirship, where none would exist by the common law if the ancestor were a naturalborn subject. We remark, in reference to that case, that the English statute is not accurately quoted in the opinion of the court, as an examination of 10 British Stat. at Large, 319 (PICKERING'S Ed.), will show. but without deciDing that the words omitted ought to have produced a judgment different from that rendered, we are of opinion that the present case is not governed by McCreery's Lessee v. Somerville. The statute of Missouri which permits the demandant to inherit from an intestate, notwithstanding his ancestor, through whom he derives his descent, is or has been an alien, must be interpreted with reference as well to other provisions conferring upon aliens the capacity to inherit real estate, as to the public policy which manifestly induced such legislation. These provisions, in terms, make an alien resident in Missouri, or an alien resident elsewhere in this country, intending to become a citizen, capable of inheriting real estate by descent or purchase. In making title by descent it may be that his ancestor is or was an alien, without inheritable blood, either at common law or by statute. That fact would ordinarily constitute an insuperable difficulty in the way of his taking or holding the estate. But the statute elsewhere interposes in his behalf, and says that he shall not be barred in tracing his descent from the intestate, by reason of the fact that any ancestor either is or has been an alier,-language broad enough, as we have suggested, to include a living as well as a dead progenitor.

Unless the statute be so construed, it would result that, while an alien residing in Missouri, having no purpose to become a citizen of the United States, could, under the then existing law, if the nearest of kin, inherit and hold as fully as if he were a citizen of the United States, a naturalized citizen, actually residing in Missouri, would be barred from taking and holding by the fact-wholly unimportant in view of the policy of the State that his parent or ancestor, through whom he must trace relationship to the intestate, was, when descent was cast, alive and an alien non-resident of the country, or a resident of the United States, outside of Missouri, with no intention to become a citizen. We are not satisfied that such an interpretation of the statute would be consistent with the intention of the legislature, and we therefore reject it as unsound.

But should we be in error in this construction, there is another ground upon which the claim of the plaintiffs must be denied.

We have ruled that, when descent was cast, neither of the plaintiffs had capacity to inherit, and if, as contended, the Murta children were also barred by the fact that their respective alien mothers were then living, it would result, as counsel concede, that the property escheated to the State immediately upon the death of Edward Sullivan. This upon the ground that the legal title could not be in abeyance. 2 Fearne, 20. In that contingency, neither the plaintiffs nor the defendants could claim any interest in the property, by virtue of the act of 1872. The Constitution of Missouri forbids the General Assembly from passing any law retrospective in its operation. Art. 1, sect. 28. And if that inhibition does not prevent the State from releasing, under the authority of a statute and for the benefit of individuals, any right of property it may have acquired by escheat, it is sufficient to say that the act of 1872 contains no language clearly indicating an intention to make it retrospective. It is, consequently, applicable alone to future acquisitions by aliens of real estate in Missouri.

Judgment affirmed.


text: Talk:Sullivan v. Burnett/Opinion of the Court


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Ottawa v. National Bank

ERROR to the Circuit Court of the United States for the Northern District of Illinois.

The facts are state in the opinion of the court.

Mr. C. B. Lawrence for the plaintiff in error.

Mr. G. S. Eldredge for the defendant in error.

MR. JUSTICE HARLAN delivered the opinion of the court.

title: Ottawa v. National Bank


text: Talk:Ottawa v. National Bank

title: Talk:Ottawa v. National Bank


text:
Ottawa v. National Bank/Opinion of the Court

The bonds in suit constitute a portion of the issue of $60,000 referred to in Hackett v. Ottawa, 99 U.S. 86. Like those held by Hackett, they were purchased before maturity, and without notice of any circumstances or facts impeaching their validity.

As in that case, so here, the bonds recite that they are issued in virtue of the power conferred by the charter of the city, upon its council,-the majority of voters, attending at an election for that purpose, assenting,-to borrow money on its credit and to issue bonds, pledging its revenue for the payment thereof; and also, in pursuance of two ordinances of the city council, one, passed June 15, 1869, entitled 'An Ordinance to provide for a loan for municipal purposes,' duly ratified by popular vote, and the other, entitled 'An Ordinance to carry into effect the ordinance of June 15, 1869, entitled, 'An Ordinance to provide for a loan for municipal purposes." The defence in the Hackett case was, that the bonds were not issued to effect a loan for municipal purposes, but were issued and delivered as a donation to one Cushman or to the Ottawa Manufacturing Company, a private corporation, to be used in aid of a merely private enterprise, and not for legitimate municipal purposes. Upon that ground, it was contended that they were void for the want of authority to issue them. Waiving any direct decision of the question, much elaborated by counsel, as to what, under the Constitution of the State, as interpreted by the Supreme Court of Illinois in numerous cases, is to be regarded as a municipal or corporate purpose, for which the city can lawfully exercise the power of borrowing money and issuing bonds, we there adjudged the defence to be insufficient, for these reason: The city council had power, the voters consenting, to issue negotiable securities for certain municipal purposes; if the purchaser, under some circumstances, would have been bound to take notice of the provisions of the ordinances whose titles were recited in the bonds, he was relieved from any responsibility or duty in that regard by reason of the representation, upon the face of the bonds, that the ordinances provided for a loan for municipal purposes; such a representation, by the constituted authorities of the city, would naturally avert suspicion of bad faith upon their part, and induce purchasers to omit an examination of the ordinances themselves; and, consequently, the city was estopped, as against a bona fide holder for value, to say that the bonds were not issued for legitimate or proper municipal or corporate purposes. Upon these grounds, the main defence in this suit must, also, be adjudged insufficient.

There is, however, one question raised in this case which was not made or determined in Hackett v. Ottawa. The bonds in suit are made payable at the St. Nicholas National Bank in the city of New York to W. H. W. Cushman or bearer, and, without his written assignment or indorsement, were taken by the First National Bank of Portsmouth, New Hampshire, the defendant in error. The city paid the interest maturing on the second days of August, 1870 and 1871.

The contention of counsel is that an assignment or indorsement of the bonds by the payee named therein, although they are also made payable to bearer, is, by the laws of Illinois, where the original contract was made, a prerequisite to pass the legal title, and to authorize a suit by the holder in his own name. This precise question arose in Roberts v. Bolles (101 U.S. 119), involving the validity of certain municipal bonds, payable to a railroad company or bearer, and on which there appeared no assignment or indorsement by the company. Upon examination of the decisions of the Supreme Court of Illinois, we there reached the conclusion that, by the repeated adjudications of the learned tribunal, municipal bonds payable to bearer, or to some named person or bearer, were excepted from the rule announced in Hilborn v. Artus (4 Ill. 344) and Roosa v. Crist (17 id. 450), in which it was, in effect, held that notes payable to a person or bearer could not be transferred or assigned by delivery only, so as to authorize the holder to sue in his own name.

Counsel in the present case insist that our ruling in Roberts v. Bolles resulted from a misapprehension of the settled course of decisions in the State court; and we are asked to reconsider the question in connection with some cases in that court to which our attention was not then called. Those specially relied on to establish the error of our conclusion in that case are Garvin v. Wiswell, 83 Ill. 215, and Turner v. Peoria & Springfield Railroad Co., 95 id. 134.

The first of those cases related to a county order executed by a board of supervisors, directing the treasurer of the county, on a day named, to 'pay to John Murphy or bearer' a certain sum'out of the funds appropriated for bounties to volunteers, with interest at the rate of eight per cent per annum from this date, upon the presentation of the annexed coupons,'-an instrument of writing not negotiable, in the sense of the law merchant, so as to exclude defences or evidence of invalidity, even when held by a bona fide purchaser. Wall v. County of Monroe, 103 U.S. 74.

The case in 95 Ill. relates to a certificate of indebtedness issued by a receiver appointed in a suit against a railroad company, and which certificate, the State court expressly held, did not possess the qualities of negotiable or commercial paper. It also appears, in that case, that the certificate was made payable to a named person 'of bearer,' when the order of court, printed thereon, directed it to be made payable to such person 'or order.'

The language of those two cases must be construed in connection with the particular kind of instrument to which the court referred. While in each may be found general statements which seem to justify the position of counsel, we do not understand those cases to determine anything necessarily inconsistent with the conclusion reached in Roberts v. Bolles, viz. that by the law of Illinois municipal bonds, whether payable to bearer, or to some person or bearer, are negotiable by delivery, so that the holder, even in the courts of Illinois, can sue thereon in his own name, although they have not been previously assigned or indorsed by the named payee.

Notwithstanding the criticism by counsel of the opinion in Johnson v. County of Stark (24 Ill. 75), we are not satisfied that the Supreme Court of Illinois has intended, in any subsequent case, to qualify what was there said by Walker, J., in reference to municipal bonds and coupons issued to railroad companies: 'It seems to be the well-settled doctrine that State, county, city, and other bonds and public securities of this character are negotiable by delivery only, without indorsement, in the same manner as bank-bills, especially when they are payable to bearer.' In that case, the coupon was not payable either to order or to bearer, but the promise was to pay the amount named 'on this coupon.' The court ruled that the holder of the coupon could sue and recover in his own name.

The bonds in suit, to will be observed, are payable at a bank in New York. According to the general rules of commercial law, as recognized in that State, the holder of negotiable securities, payable to a named person or bearer, whether they are indorsed or not by such payee, acquires, by delivery merely, the legal title, and the consequent right to sue thereon in his own name. 3 Kent, Com. 78; Brush v. Administrators of Reeves, 3 Johns. (N. Y.) 439; Dean v. Hall, 17 Wend. (N. Y.) 214. Whether the nature and extent of the rights acquired by the bank are determinable by the law of New York, the place of performance, or whether the general rule that a contract is to be expounded by the law of the place where it is to be executed (6 Pet. 200; 13 id. 77; 1 How. 169), can be applied to an Illinois municipal corporation whose bonds, without express legislative authority, have been made payable elsewhere than at its own treasury (19 Ill. 406; 22 id. 151; 24 id. 91; 31 id. 531; 68 id. 535), are questions which need not be now determined. It is sufficient in this case to say that the ground first alluded to, upon which the plaintiff denies the right of the bank, the holder for value of its bonds, to sue in its own name, cannot be maintained.

Judgment affirmed.


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


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Manchester v. Ericsson

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

The facts are stated in the opinion of the court.

Mr. Christopher C. McRae and Mr. William A. Maury for the plaintiff in error.

Mr. Charles V. Meredith and Mr. George K. Macon for the defendant in error.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Manchester v. Ericsson


text: Talk:Manchester v. Ericsson

title: Talk:Manchester v. Ericsson


text:
Manchester v. Ericsson/Opinion of the Court

Ericsson recovered a judgment against the city of Manchester, Virginia, for injuries received by a fall from a public way, of which the city had been negligent, in regard to protecting the sides of a high embankment. The laws of the State authorize a recovery in such a case.

The chief controversy on the trial was whether the city or a bridge company was responsible for the condition of the street in such a manner as to incur liability for negligence in the care of it. That part of it where the accident occurred constituted also the approach to a bridge across the James River, between Manchester and Richmond, and both the bridge and this approach to it had been built, at least nominally, by an incorporated company called the James River Bridge Company, and the contention of the defendant below was that this corporation, and not the city, was the responsible party.

That point was much pressed in argument before us, and it seemed to be assumed that if the company was liable, the city was not. We do not think that this necessarily follows, for the company may be liable for negligence in regard to the locus in quo as an approach to and part of their bridge, while the city may also be liable for like negligence regarding it as a street for the care of which it is responsible. The question in this case is whether the city is liable.

This depends, in our opinion, not so much on the question whether the place where the injury occurred was, by law, placed under the exclusive control of the city, as whether the city authorities had so far assumed the care of it as one of the streets of the town as to incur an obligation to be diligent and watchful in the performance of that duty.

The judge, in his charge to the jury, attached much importance to the fact that the bridge was built by money advanced by Richmond and Manchester, and assumed that the company was a mere matter of form, and though chartered by the legislature, was only an agency of the two municipal corporations to connect them by a bridge spanning the river which runs between them.

We are not satisfied of the soundness of this view, though it appears that the two cities owned all the stock and advanced the money. It still remains that the company was the legal entity which owned the bridge; that if it had borrowed money, or created debts, the cities would not have been liable for them without an express agreement to that effect. And if the negligence by which plaintiff suffered was solely the negligence of the bridge company and its officers, the city of Manchester would not have been liable because of the stock held by it in the company or the money advanced to it.

But testimony was submitted to the jury tending to show that after the bridge and this approach to it had been built, or commenced, the limits of the city of Manchester had been extended so as to include this part of the bridge or approach, and that the city did work on it as a street, or extension of the street into which it ran, and in many ways assumed such control of it as it did of other streets.

This testimony is in the record, and was proper evidence to sustain the proposition that the city authorities had so acted in regard to this part of the highways of the city as to make it responsible for a more careful attention to the dangerous condition of it than was given by them.

The counsel of defendant prayed several instructions in regard to the sufficiency of this evidence, which was refused by the court, and instead of those asked it gave the following:--

'There are three questions for the jury, namely:--

'1st, Whether a proper guard or protection had been provided at the point where the accident to the plaintiff occurred; if there was not—

'2d, Whether the accident was in consequence of the absence of such proper guard or protection; and,

'3d, If so, whether damage ensued to the plaintiff, and what amount of money shall be allowed as the measure of damage to him.

'If the jury believe from the evidence that a proper guard or protection to the highway was not provided, that the accident occurred in consequence, and that damage ensued to the plaintiff from the accident, then the court instructs the jury that the city of Manchester is liable for the damage, unless it proves that the plaintiff sustained his injury through his own negligence or want of care.'

It will be seen that the court here takes from the jury entirely the question whether the city was responsible for the want of the guard or protection which was absent, and instructs them peremptorily that if such protection was wanting, and the accident was caused by its absence, the city was liable.

We think it was for the jury to decide whether the city had made itself responsible.

The evidence on this subject had been properly submitted to the jury. Whether the city had assumed such control of the locus in quo as to make it responsible was an inference of fact to be drawn from all the testimony by the jury, and not a question of law for the court.

This evidence consisted of various things done by order of the authorities of the city of Manchester, such as paying the money on condemnation of the land for the use of the bridge, regulating the grade of the approach to the bridge and of the neighboring streets, continuing the pavement of the street into and upon this approach, depositing cinders on it, building a fence on the side of it, and otherwise expending money on it.

In our opinion, though strongly persuasive of the proposition that the city had assumed charge of the place, the evidence was not necessarily conclusive. The inference was one of fact and not of law, and was to be made, if at all, by the jury, under such proper instructions on the matter as the court should give, and not by the court alone. It was a mixed question of law and fact, proper for the jury, aided by the court.

For this error the judgment of the Circuit Court will be reversed, and the case remanded with instructions to set aside the verdict and grant a new trial; and it is

So ordered.


text: Talk:Manchester v. Ericsson/Opinion of the Court


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Insurance Company v. Foley

ERROR to the Circuit Court of the United States for the District of South Carolina.

In January, 1872, Foley obtained from the Knickerbocker Life Insurance Company of the city of New York a policy of insurance for $5,000, on the life of one Badenhop, his debtor to that amount. The premium required at the time and the stipulated annual premiums were paid. The profits arising upon them entitled the assured, in May, 1873, to a further insurance on the life of his debtor, to the amount of $36.03; and in June, 1874, to the amount of $39.36; and policies for these sums were issued to him.

Badenhop died in January, 1875; but the assured, being ignorant of the fact, paid the next annual premium. The present action, to recover the amount of the policies and of the premium overpaid, with interest, was commenced in a court of the State, and, upon application of the company, removed to the Circuit Court of the United States. The complaint alleges the issue of the policies, the interest in them of the plaintiff, the death of Badenhop, the proof thereof furnished to the company, the fulfilment by the plaintiff and the deceased of 'all the conditions' of the policies, the amount due, and its non-payment. It also alleges the payment of the annual premium after the death of the insured. A copy of the policies is annexed to the complaint. The first policy declares that it is issued upon the express condition that the application on file in the office of the company is an express warranty of the truth of the answers and statements contained in it, and that, if they are in any respect untrue, the policy is to be void and of no effect to any one. The additional policies declare that they are subject to the same conditions as the first.

In its answer the company sets up, among other things, as a defence, that the plaintiff and the insured did not make true and correct answers and statements to certain questions contained in the application for the first policy, in this, that to the questions, 'Is the party of temperate habits? Has he always been so?' the answers given were 'Yes,'-when, in fact, he was a man of intemperate habits, thus conceraling by the answer his true habits, and making a false statement concerning thmem; whereby the policy became void.

On the point thus raised, whether the answers given as to the habits of the insured were true or false, the testimony offered was conflicting. On the part of the company, one witness testified that in 1871 and in the early part of 1872 he was the family physician of Badenhop; that at that time Badenhop was drinking hard; that during that year he had attended him for delirium tremens, and once or twice for indisposition, produced, 'as he thought,' from the excessive use of intoxicating drink; and that he 'regarded' him as a man of intemperate habits. But, on his cross-examination, he admitted that he did not know Badenhop intimately, had no relations with him other than professional, and saw him only when he attended him professionally, or met him occasionally in the street. Two other witnesses testified for the company,-one, that he was intimate with Badenhop; the other, that he had known him for several years, and that he was a very intemperate man; that they had frequently seen him under the influence of liquor; but neither of them stated when his acquaintance commenced, whether before or after the policy was issued.

On the part of the plaintiff several witnesses were called, who had known Badenhop intimately for many years, their acquaintance with him commencing before the policy was issued and continuing afterwards, and one of whom had been his partner in 1869 and 1870; and they all testified unqualifiedly to his being a man of temperate habits.

The defendant requested the court, among other things, to instruct the jury, 'That where, in a question whether the party assured is one of temperate habits at the time when he seeks to be insured, and has always been so, witnesses testify, from their own knowledge of the party and his habits, that he was not of temperate habits, their testimony is entitled to greater consideration by a jury than witnesses who testify otherwise, because they have not seen or known of such habits as are testified to by those who declare that he was not a person of temperate habits.'

This instruction the court refused to give, and an exception was taken. The court, among other things, instructed the jury that all the representations in the application for the policy of insurance are warranties that such representations are true, and that if they find from the evidence that the habits of the insured, at the time of, or at any time prior to the application, were not temperate, then the answers made by him to the questions, 'Are you a man of temperate habits?' 'Have you always been so?' were untrue, and the policy is void; but that if they find that his habits in the usual, ordinary, and every-day routine of his life were temperate, then such representations were not untrue within the meaning of the policy, although they may find that he had an attack of delirium tremens resulting from an exceptional indulgence in drink prior to the issue of the policy; and that the burden of proof is upon the defendant to show the breach of any warranty in the policy. To the charge the defendant excepted. The jury found for the plaintiff, and, upon the verdict, judgment was entered; to review which the case is brought to this court on a writ of error.

Mr. A. G. Magrath for the plaintiff in error.

Mr. J. P. K. Bryan for the defendant in error.

MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court.

title: Insurance Company v. Foley


text: Talk:Insurance Company v. Foley

title: Talk:Insurance Company v. Foley


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Page:The Works of J. W. von Goethe, Volume 10.djvu/7

 POEMS OF GOETHE

REYNARD THE FOX


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Insurance Company v. Foley/Opinion of the Court

The instruction requested by the defendant, treating it as applicable to the case at bar, and not as containing a mere abstract proposition of law, is open to several objections.

In the first place, it assumes that there was a difference in the sources of knowledge of the witnesses in the case; which was not the fact. All of them testified from their observation of the conduct of the deceased; and the jury would properly give weight to the testimony, not according to the positiveness of the averments of the witnesses as to their knowledge, but, other considerations being equal, according to their opportunities of observation of the deceased's conduct, and the manner in which those opportunities had been improved. No witness testified, from his own knowledge, that the deceased was of intemperate habits at the time he applied for the insurance, and that he had always been so. No instruction should be given which thus assumes, as a matter of fact, that which is not conceded or established by uncontradicted proof. New Jersey Mutual Life Insurance Co. v. Baker, 94 U.S. 610.

In the second place, the instruction requested does not present the law with entire accuracy. Whether the testimony of the persons alleging knowledge is entitled to greater consideration than that of persons asserting opinions, mainly depends upon the subjects with respect to which the testimony is given. If the subject be, as in this case, the habits of a party, affirmations of knowledge will be weighed with reference to the opportunities of the witnesses to obtain the knowledge they assert. If they are not intimate with him, and see him only occasionally, the assertion of knowledge of his habits, however strong, will amount to no more than the assertion of an opinion, and will not be entitled to equal weight with less positive testimony of other witnesses founded upon a more extended acquaintance.

In the third place, the instruction requested omits the consideration of the character of the witnesses, as an element in determining the weight to be given to their testimony. The force of testimony often depends as much upon the intelligence and judgment of the witnesses, disclosed by their manner of testifying, as upon confidence in their general veracity.

The charge given by the court, as stated above, correctly presented the law of the case. The question was as to the habits of the insured. His occasional use of intoxicating liquors did not render him a man of intemperate habits, nor would an exceptional case of excess justify the application of this character to hom. An attack of delirium tremens may sometimes follow a single excessive indulgence. Ray, in his treatise on Medical Jurisprudence, says, that, though it most commonly occurs in habitual drinkers, after a few days of total abstinence from spirituous liquors, it may be the immediate effect of an excess or series of excesses in those who are not habitually intemperate as well as in those who are. Sect. 545. In the American Encyclopaedia, under the head of 'Delirium Tremens,' it is stated that it 'sometimes makes its appearance in consequence of a single debauch;' though commonly it is the result of protracted or long-continued intemperance. Vol. v. p. 782.

When we speak of the habits of a person, we refer to his customary conduct, to pursue which he has acquired a tendency, from frequent repetition of the same acts. It would be incorrect to say that a man has a habit of anything from a single act. A habit of early rising, for example, could not be affirmed of one because he was once seen on the streets in the morning before the sun had risen; nor could intemperate habits be imputed to him because his appearance and actions on that occasion might indicate a night of excessive indulgence. The court did not, therefore, err in instructing the jury that if the habits of the insured, 'in the usual, ordinary, and everyday routine of his life, were temperate,' the representations made are not untrue, within the meaning of the policy, although he may have had an attack of delirium tremens from an exceptional over-indulgence. It could not have been contemplated from the language used in the policy that it should become void for an occasional excess by the insured, but only when such excess had by frequent repetitions become a habit. And the testimony of the witnesses, who had been intimate with him for years, and knew his general habits, may well have satisfied the jury that, whatever excesses he may at times have committed, he was not habitually intemperate.

Judgment affirmed.


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Bennecke v. Insurance Company

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

This was an action of assumpsit brought by Amelia Bennecke to recover of the Connecticut Mutual Life Insurance Company the sum of $2,000 upon a policy of life insurance.

The parties having waived a jury, the issues, both of fact and law, were submitted to the court, which made a special finding, from which the following facts appear:--

On Jan. 29, 1878, Adolph Bennecke procured from the Connecticut Mutual Life Insurance Company, through John Ansley, its agent at Bloomington, Ill., a policy of insurance on his life, for $2,000, for the benefit of Amelia Bennecke, his wife. It was an ordinary life policy, and contained, among other conditions, the following:--

'3d, That the said insured is under this policy freely permitted to reside in any civilized abode in the western hemisphere, lying north of the thirty-second parallel of north latitude in the United States, and lying south of said thirty-second parallel, excepting from the first day of July to the first day of November, and in the eastern hemisphere lying north of the forty-second parallel of north latitude and west of the fortieth meridian of longitude east from Greenwich, and he may also pass as a passenger by usual routes and means of public conveyance to and from any port or place within the foregoing limits; but if he shall, at any time during the continuance of this policy, pass beyond or be without the foregoing limits without the consent of this company previously given in writing in each or either of the foregoing cases, then this policy shall become and be null and void.

'4th, That in every case in which this policy shall cease and determine, or shall be or become null and void, all premiums paid in respect to the same shall be forfeited to the company.'

After the signatures of the secretary and vice-president of the company and on the margin at the bottom of the policy appears the following:--

' Agents of the company have no authority to make, alter, or change any condition of the policy, nor to waive forfeiture thereof.'

The annual premium of $46.24 required by the terms of the policy was duly and fully paid.

Bennecke left his home at Bloomington, Ill., on Sept. 26, 1878, and went to New Orleans, La., where he remained until his death, which occurred Oct. 15, 1878. He died of yellow fever.

Ansley had been the agent of the Connecticut Mutual Life Insurance Company, at Bloomington, Ill., from 1863, up to and including October, 1878. On Oct. 16, 1878, he first heard that Bennecke had gone to New Orleans. On October 17, he called on Haker, the assured's brother-in-law, to whom he stated that he had heard that Bennecke was then in New Orleans, and that on account of this violation of the condition of the policy the insurance was forfeited. He advised Haker to pay, on behalf of Bennecke, twenty dollars, the price of a Southern permit. Haker at first said he knew nothing about in, and refused to pay the money. He then said he would look into the matter. The same day, after a consultation with Mrs. Bennecke, he went to Ansley's office, paid him twenty dollars, and took from him a receipt, as follows:--

'$20. AGENCY AT BLOOMINGTON, ILL., Oct. 17, 1878.

'Received from Christ. Haker, twenty dollars, being the amount required for a southern permit on policy of Adolph Bennecke in the Connecticut Mutual Life Insurance Company, of Hartford, Conn., No. 52,242.

'Amount of policy $2,000.

'JOHN ANSLEY, Agent.'

At the time of taking this receipt, neither Haker, Ansley, nor Bennecke's wife or friends knew that Bennecke was dead.

Ten dollars per thousand was the customary price fixed by the company as the extra premium for a permit to go south of the thirty-second parallel between the 1st of July and the 1st of November. Ansley recollected having received money for three or four such permits, possibly more, at that rate. In such cases he simply received the money for the permits, forwarded it to the State agents of the insurance company at Chicago, and requested them to get permits from the insurance company at Hartford, Conn., and send them to him for delivery. He enclosed the twenty dollars received from Haker to the State agents of the insurance company at Chicago, in the following letter, the receipt of which they acknowledged:--

'AGENCY AT BLOOMINGTON, Oct. 17, 1878.

'Messrs. STEARNS, DICKINSON, & CO.

'GENTS,-Herein please find draft for $20, less ex., for which please get and send me a southern permit for A. Bennecke, insured by policy 52,242; amount $2,000. He went to New Orleans about ten days ago, and will probably remain there during the balance of the month. Please give this immediate attention, and get permit here as soon as possible. This twenty dollars paid this day.

'Yours truly,

JOHN ANSLEY.' Ansley never received a permit from the insurance company for Bennecke. On the 6th of November, 1878, he having become satisfied that Bennecke was dead at the time the money was paid for the permit, of his own motion took twenty dollars of other money belonging to the company and tendered it to Haker, stating as a reason therefor that Bennecke was dead at the time the money was paid. Haker refused to receive it. Ansley had no authority to issue policies of insurance, but after they were issued he turned them over to the parties on payment of the premium. He received no word from the company or the State agents about Bennecke's death up to the time he tendered the money to Haker. On the 26th of October he addressed a letter to those agents, in which he informed them that Bennecke had died on October 17, in New Orleans, of yellow fever. From all that appears this was the first information received by them of Bennecke's death.

Ansley knew what was the price required for a permit, and had never applied for one without getting it. But he never applied for one when yellow fever was prevailing in the forbidden region. Proofs of loss, dated the 6th of December, 1878, were furnished the insurance company, and on the trial it offered to return the money received by Ansley for the permit.

Suit on the policy was begun in the Circuit Court of McLean County, Illinois, on the eighteenth day of April, 1878, by a declaration on the policy. The general issue only was pleaded, and on the petition of the defendant the case was transferred to the Circuit Court of the United States. It was admitted by the company that there was no other defence in the case than what arose from the forfeiture of the policy by reason of the fact that Bennecke had gone south of the thirty-second parallel of latitude between the first of July and the first of November, without the consent of the company previously given in writing; and on the foregoing facts it occurred as a question whether the forfeiture had been waived by the company, on which question the judges were opposed, and the presiding judge being of opinion that the forfeiture had not been waived, judgment was entered for the defendant.

Whereupon, and on motion of the defendant, by its counsel, it was ordered that the state of the pleadings, and the facts found, and the question on which the judges differed, be certified according to the request of the defendant, and the law in that case made and provided, to this court to be finally decided.

The cause has accordingly been brought to this court by writ of error.

Mr. William A. McKenney for the plaintiff in error.

Mr. Edward S. Isham for the defendant in error.

MR. JUSTICE WOODS, after stating the case, delivered the opinion of the court.

title: Bennecke v. Insurance Company


text: Talk:Bennecke v. Insurance Company

title: Talk:Bennecke v. Insurance Company


text: Page:The Works of J. W. von Goethe, Volume 10.djvu/10


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Bennecke v. Insurance Company/Opinion of the Court

It is not disputed by the plaintiff, that, upon the facts found, the policy of insurance had been forfeited. It is not insisted that the company by its agent formally waived the forfeiture, or issued any permit to Bennecke, from which such waiver could be inferred.

But the plaintiff contends that, after the forfeiture of the policy, Ansley, the agent of the company at Bloomington, having on October 17 received the sum usually charged for a permit to reside south of the thirty-second parallel, between the 1st of July and the 1st of November, and sent it on the same day to the agents of the company at Chicago, its receipt by them, and the fact that they never returned it to the person by whom it was paid, are sufficient to establish the company's waiver of the forfeiture.

It does not appear from the findings that either the agent at Bloomington, or those at Chicago, had any direct authority to waive a forfeiture. But even if it were shown that they had such authority, and had waived the forfeiture, or that the company itself had waived it, the waiver would not, under the circumstances of this case, be binding on the company.

A waiver of a stipulation in an agreement must, to be effectual, not only be made intentionally, but with knowledge of the circumstances. This is the rule when there is a direct and precise agreement to waive the stipulation. A fortiori is this the rule when there is no agreement either verbal or in writing to waive the stipulation, but where it is sought to deduce a waiver from the conduct of the party. Thus, where a written agreement exists and one of the parties sets up an arrangement of a different nature, alleging conduct on the other side amounting to a substitution of this arrangement for a written agreement, he must clearly show not merely his own understanding, but that the other party had the same understanding. Darnley (Earl) v. London, Chatham, & Dover Railway Co., Law Rep. 2 H. L. 43.

The same rule applies to the ratification by the principal of the unauthorized acts of his agent.

'It is perfectly well settled that a ratification of the unauthorized acts of an agent, in order to be effectual and binding on the principal, must have been made with a full knowledge of all material facts, and that ignorance, mistake, or misapprehension of any of the essential circumstances relating to the particular transaction alleged to have been ratified will absolve the principal from all liability by reason of any supposed adoption of or assent to the previously unauthorized acts of the agent.' Combs v. Scott, 12 Allen (Mass.), 493.

And it has been declared by this court that 'no doctrine is better settled, both upon principle and authority, than this: that the ratification of an act of an agent previously unauthorized must, in order to bind the principal, be with a full knowledge of all the material facts. If the material facts be either suppressed or unknown, the ratification is treated as invalid, because founded on mistake or fraud.' Owings v. Hull, 9 Pet. 607. See also Diehl v. Adams County Mutual Insurance Co., 58 Pa. St. 443; Bevin v. Conn. Mutual Life Insurance Co., 23 Conn. 244; Viall v. Genessee Mutual Insurance Co., 19 Barb. (N. Y.) 440.

There is no pretence in this case that the company was advised of the material facts, when its supposed waiver of the forfeiture of the policy and its ratification of the acts of its agent took place. The contention of the plaintiff is that a forfeiture was waived when the company was totally ignorant that it existed. And the waiver is inferred from a permit, which is itself deduced from the fact that an agent, himself ignorant of the material facts, agreed to apply to the company for it, and received and forwarded the money to pay therefor.

The very purpose for which a permit was asked shows that both parties were ignorant of the facts which should have been communicated to the company and its agents before any effect could be given to tis alleged waiver of the forfeiture. Permission was asked that Bennecke might reside and travel south of a certain parallel. This implied that he was living and able to travel. But the findings show he was dead when the permit was applied for. If the company had given him a formal permit in writing to reside and travel south of the thirty-second parallel, he being dead at the time, and the company ignorant of the fact, it would be a complete non sequitur to hold that this amounted to a waiver of a forfeiture of the policy unknown to the company, and consequent upon his doing the act for which a permit was asked, and which was in violation of a condition of the policy.

The case may be thus stated: The right of the plaintiff to a recovery rests on a waiver by the insurance company of the forfeiture of the policy. But there has been no direct waiver. The waiver is deduced from the permit. But there has been no formal permit. The permit is inferred from the fact that Ansley, a local agent, who had no knowledge of the death of Bennecke, applied for a permit to other agents also ignorant of the death of Bennecke, and remitted to them the money therefor which they retained, but which Ansley tendered back, using for the tender other moneys of the company; the company itself, the principal of these agents, being all the time ignorant that Bennecke had forfeited his policy by a violation of its conditions, or that he had died in consequence of such violation, or that after his death a permit to allow him to reside and travel in the forbidden region had been applied for, or that any money had been handed to its agent to be paid over as the consideration for such permit.

The case of the plaintiff is not aided by the facts found by the court in relation to the retention by the agents of the company of the money paid for the permit. It is unnecessary to decide what inference might be drawn if the company or its agents, with full knowledge of the death of Bennecke, had retained the money and never tendered it back. It does not appear that Ansley was informed of the death of Bennecke until October 26. On November 6, eleven days thereafter, he tendered back to Haker the money advanced by him to pay for the permit. Under the circumstances of this case we do not think this lapse of time sufficient to show that Ansley intended to waive the forfeiture of the policy, even if he had been clothed with authority to do so.

If the company was bound by the act of Ansley in receiving the money for the permit, it was entitled to the benefit of his act in tendering it back. One tender was sufficient. That made by Ansley was never disavowed by the company. On the contrary, the company renewed it upon the trial of the cause in the Circuit Court.

Under the circumstances of this case, the contention that the insurance company waived the forfeiture of the policy is without support.

Judgment affirmed.


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