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The Lucille

APPEAL from the decree of the Circuit Court for the District of Maryland, in a case of collision; the facts being thus:

A little after midnight of December 20th, 1868, the moon not shining, but the night not being a dark one, the schooner Champion, sailing up Chesapeake Bay for Baltimore and keeping about five miles from the western shore of the bay, was seen at the distance of two miles on the southeast by the steamer Lucille going down the bay and out to sea. The wind was a very light breeze from the southeast; and the course of the schooner north-by-west, her sails well set on the port side. The course of the steamer was south-by-east-half-east, and her rate about seven or eight miles an hour. In a little while, there being no allegation of any natural cause for a catastrophe, nor allegation of want of proper lights, or that they were not seen, the steamer came stem on, upon the schooner, the steamer's port bow striking the schooner's starboard bow; the sails of the schooner still upon the port side, jibing over and injuring the steamer somewhat, but the schooner herself being 'ripped right open, fore and aft,' and going very soon to the bottom with her cargo and three of her crew; the captain claimbing up on the steamer and escaping with his life.

Hereupon the owners of the schooner promptly, January 2d, 1869, libelled the steamer in the District Court for Maryland; alleging that the schooner had kept on her course in order that the steamer might pass to her starboard; that the steamer saw her in abundant time to get out of her way; that the steamer made no attempt in time to change her course; that when the schooner saw that there was danger of a collision it was too later for her to do anything effective to prevent it, and that the catastrophe was chargeable to the negligence and mismanagement of the steamer alone.

The answer of the steamer alleged that going on the courses that the vessels were going, 'they would have passed each other at a considerable distance apart, but that without any danger prompting, and from pure negligence and want of care, the schooner, when she was nearly opposit the steamer, changed her course to the westward and came directly on the said steamer.'

The steamer sought to support this view of the case by the testimony of one of her men, who swore that 'when the schooner struck, she was heading across the bay, her head toward the southwest;' and by testimony of her captain, who swore that after the catastrophe, and after the master of the schooner had got on board of the Lucille, he said, in conversation, that 'he had put his helm hard up,' i. e., had put it to the windward.

The schooner, on the other hand, denied that she had changed her course, except in the moment of imminent peril and to escape certain destruction; and relied on the testimony of witnesses for the steamer who testified that they had noted the change, though they spoke of it as a change then accomplished-'when the steamer was within thirty yards of her'-'two minutes before the collision;' and relied also on the testimony of seamen from their own vessel that 'the schooner could not have changed her course so far round as west, as her sails would have jibed and gone over to starboard,' which it was testified positively they never did till the collision took place.

The schooner, which had been recently purchased by the libellants, was not a new vessel, but she had been lately put into good order by them, and with her cargo, oysters, was shown to have been worth $2800; and on the 12th of March, 1869, the District Court condemned the steamer in that sum. On the 12th of April following, her owners appealed to the Circuit Court, and on the 5th of January, 1871, the decree of the District Court was affirmed; the decree in neither court, however, providing in terms that it should bear interest. On the 14th of January, 1871, they appealed to this court, and the case was argued on the 10th of April, 1873.

Mr. W. S. Waters, for the appellants, owners of the steamer:

The master of the schooner, after coming on the steamer, admitted that he had 'put his helm up.' This put the vessel on a west or southwest course; and that the vessel was actually going on this course is proved by a witness from the steamer, who swears 'that when the schooner struck us she was heading across the bay, her head towards the southwest.' The schooner, therefore, instead of keeping on her course, as she ought to have done, changed her course; and by so doing produced the catastrophe.

Messrs. W. S. Bryan and T. A. Seth, contra:

The case is a plain one, we apprehend, for the schooner. We have had two decrees the same way on facts. We submit the case to this court, asking it to give us such interest by way of additional damages as may compensate us for the delay we have sustained by the numerous and, as we conceive, unjustified appeals of the other side.

Dr. Justice HUNT now, April 28th, 1873, delivered the opinion of the court.

title: The Lucille


text: Talk:The Lucille

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

title: Talk:The Lucille


text:
The Lucille/Opinion of the Court

The principles of law applicable to this case are well settled. They are not disputed by either party. In the case of The Carroll it is thus laid down: 'Nautical rules require that where a steamship and sailing vessel are approaching each other from opposite directions, or on intersecting lines, the steamship, from the moment the sailing vessel is seen, shall watch with the highest diligence her course and movements, so as to be able to adopt such timely means of precaution as will necessarily prevent the two boats from coming in contact. Fault on the part of the sailing vessel at the moment preceding a collision does not absolve a steamer which has suffered herself and a sailing vessel to get in such dangerous proximity as to cause inevitable alarm and confusion, and collision as a consequence. The steamer, as having committed a far greater fault in allowing such proximity to be brought about, is chargeable with all the damages resulting from a collision.'

The rule laid down in the case of The Fannie, is still more applicable to the case before us. It was held that a schooner meeting a steamer approaching her on a parallel line, with the difference of half a point in the course of the two, ought to have kept on her course; that a steamer approaching a sailing vessel is bound to keep out of her way, and to allow her a free and unobstructed passage. Whatever is necessary for this it is her duty to do, and to avoid whatever obstructs or endangers the sailing vessel in her course. If, therefore, the sailing vessel does not change her course so as to embarrass the steamer, and render it difficult for her to avoid a collision, the steamer alone is answerable for the damage of a collision, if there is one.

The schooner was sailing up the bay, on a course of north-by-west, with a very light breeze from the southeast. The steamer was sailing down the bay, with a course south-by-east-half-east, at about seven or eight miles an hour. When the steamer's men first saw the schooner the vessels were about two miles apart. The vessels, it will be observed, were on courses nearly parallel. The half-point of difference tended to a convergence.

Upon this state of facts the duty of the sailing vessel was to continue upon her course, leaving it to the steamer to avoid the collision. It was the plain duty of the steamer to accept this responsibility, and to assume that such would be the action of the schooner. The schooner was considerably to the eastward of the steamer, and it would seem that by simply bearing a half-point to the west, by which the convergence would be destroyed and perfectly parallel lines would result, that the steamer could have accomplished the safety of the passage. If there was any reason why this could not be done, which does not appear, a bearing to the east, by which the convergence would have been increased, would have carried the steamer in safety across the bows of the schooner. Neither course was adopted, but pursuing the middle course, so often the path of safety, but in this case most injudicious, of remaining on the course of south-by-east-half-east, the vessels came together.

The steamer seeks to avoid this difficulty by the allegation that the schooner changed her course, putting up her helm, that is, putting it to starboard, and thus throwing the schooner across the bows of the steamer. This view is sought to be sustained by the evidence that the captain stated that he had put up his helm, and that the schooner was struck on her starboard bow by the port bow of the steamer. It is argued that this situation could have been produced in no other way.

We cannot believe that the schooner, bound northerly to Baltimore, with a breeze from the southeast, would have been sailing on a southwesterly course. This was quite out of her direction, and cannot be admitted, and yet it is the effect of the theory we are considering. Again, if such had been the course of the schooner it would have thrown her sails to the starboard, whereas it is proved that her sails were on the port side, and so remained until the actual collision, when they shifted to the starboard, doing some injury to the steamer. If the schooner put up her helm, it was in the moment of anxiety, and to avoid the danger of collision, which was then imminent. It is quite probable that seeing the steamer coming upon her, she put up her helm and sheered to the west, as the best means of escape. The steamer, at about the same moment, must have put her helm aport, and thus the port bow of the steamer and the starboard bow of the schooner were brought together. This is the natural explanation of the position, and is consistent with the evidence on the subject.

We are satisfied that no change was made in the course of the steamer until she was almost upon the schooner, as some of the witnesses express it, when she was within two minutes of the collision, as others say, when within thirty yards of the schooner, and that the collision was the result of her negligence.

There is no reason to suppose that the damages are excessive. The vessel had been purchased recently, and had been repaired after the purchase. The value of the vessel and of the cargo were sufficiently established, and the decree was within the amount proven.

The decree should be AFFIRMED WITH INTEREST from its date, March 12th 1869, at the rate of interest allowed by the laws of Maryland.

title: The Lucille/Opinion of the Court


text: Talk:The Lucille/Opinion of the Court

title: Talk:The Lucille/Opinion of the Court


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Burrows v. The Marshal

ON motion to dismiss an appeal from the Circuit Court for the District of North Carolina.

The 22d section of the Judiciary Act of 1789, after enacting that certain final decrees in District Courts may be re-examined, and reversed or affirmed, in Circuit Courts, 'upon writ of error,' enacts further:

'And upon like process may final judgments and decrees in civil actions and suits in equity in a Circuit Court, brought there by original process, &c., be re-examined, reversed or affirmed, in the Supreme Court, &c.'

An amendment to this act, passed in 1803, enacts:

'That from all final judgments or decrees rendered or to be rendered in any Circuit Court in any cases of equity, admiralty, and maritime jurisdiction, and of prize or no prize, an appeal. . . shall be allowed to the Supreme Court of the United States.'

With these acts in force, an execution duly issued from the Circuit Court for the District of North Carolina on a judgment against one Taylor, and under it real estate owned by him was sold by the marshal, and the money paid into the marshal's office. Notwithstanding this the marshal advertised the same land for sale under other executions. Hereupon one Burrows, alleging that he had purchased and paid for the land, and had tendered the marshal a proper draft of a deed to him, obtained a rule on the marshal to show cause why he should not make such a deed, and why another sale under the other executions should not be stayed.

The marshal set up by way of answer that Burrows was not the purchaser, but that one Meacham was; that the and had sold at an enormous sacrifice, the result of a fraudulent combination between Burrows, Meacham, and Taylor, to prevent competition in the bidding.

The court below having heard the case on its merits dismissed Burrows's petition, and ordered him to pay all the costs. From this, its action, he brought the case to this court by an appeal.

Mr. S. F. Phillips, Solicitor-General, in support by the motion, argued, that if the discharge of the rule below was in any true sense a 'final judgment or decree,' and such a judgment or decree as was within the supervisory jurisdiction of this court at all, it could only be so on writ of error. The proceeding in which Burrows made his motion below was at law, and the motion was a motion at law. Under the act of 1803, indeed, appeals were allowed in a special class of cases, but this case did not fall within that class.

Messrs. W. A. Graham and H. W. Guion, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Burrows v. The Marshal


text: Talk:Burrows v. The Marshal

title: Talk:Burrows v. The Marshal


text:
Burrows v. The Marshal/Opinion of the Court

Two judgments, as the appellant represents, were rendered in the Circuit Court, at Raleigh, November Term, 1869, against one Taylor, in favor of the creditors therein named, for certain specified amounts, and that the same were placed in the hands of a deputy marshal for collection; that the marshal having levied the executions upon a certain described parcel of land, advertised the same for sale according to law, and that the petitioner became the purchaser thereof, being the highest bidder at the sale, for the sum of one hundred and ten dollars, which, as he alleges, he paid to the deputy marshal; that at the ensuing term of the court he applied to the marshal to execute to him as the purchaser a deed of the interest so purchased and paid for as aforesaid; that the marshal having refused to comply with the request, he then prepared and tendered to the marshal a proper draft for a deed, and requested him to execute the same, which he refused and still refuses to do, and has given notice that he will sell the premises upon other executions in his hands. Wherefore the petitioner prayed the Circuit Court to lay a rule upon the appellee, as such marshal, to show cause at the next term of the court why he should not make to him as the purchaser a good and sufficient deed in fee simple of the described tract, and he also prayed for an order staying all further proceedings under the said other executions in his hands towards a resale of the premises which he purchased.

Subsequently the appellee appeared and filed an answer, and the record shows that the court, at the succeeding November Term, rendered judgment for the appellee, directing that the rule be discharged and that the petitioner pay all costs. Whereupon the petitioner appealed to this court.

Such a motion as the one first described and the rule granted under it were proceedings at law, and so also were the judgment and the order of the court directing that the petitioner should pay all costs, and the court is of the opinion that the judgment could not be removed into this court in any other way than by a writ of error; that an appeal will not lie to this court in such a case under the twenty-second section of the Judiciary Act, and that the appeal must be

DISMISSED FOR WANT OF JURISDICTION.


text: Talk:Burrows v. The Marshal/Opinion of the Court


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Dair v. United States

ERROR to the Circuit Court for the District of Indiana.

The United States brought an action of debt on a distiller's bond, executed by Jonathan Dair and William Sauks as principals, and by James Dair and William Davison as sureties. There was no dispute as to the right to recover against the principals, but the sureties, who pleaded separately, denied their liability upon the bond, and upon the issue thus raised by them, there was the following special finding by the court:

'That the said James Dair and William Davison signed the said writing obligatory upon the day of its date, as sureties, at the instance of Jonathan Dair, one of the principals, but that it was signed by them upon the condition that said writing obligatory was not to be delivered to the plaintiff until it should be executed by one Joseph Cloud as co-surety; that the said writing obligatory, upon its signing by them upon the condition aforesaid, was placed in the hands of the said principal, Jonathan Dair, who afterwards, without the performance of that condition, and without the consent of the said James Dair and William Davison, delivered the same to the plaintiff. And, that when the bond was so delivered, it was in all respects regular upon its face, and that the plaintiff had no notice of the condition.'

As a conclusion of law upon these facts, judgment was rendered in favor of the United States, against all the parties to the bond, for the amount which it was conceded the principals owed the government. This writ of error was prosecuted by them to reverse that decision.

Messrs. J. E. McDonald and J. M. Butler, for the plaintiffs in error:

This court, in Pawling et al. v. The United States, held that parol evidence might be introduced to establish the fact that a bond which on its face purported to have been delivered, absolutely, had been delivered in violation of the conditions upon which it had been signed, by some of the parties, and that if such defence should be made out, it was sufficient to defeat the suit on this bond as to those who had signed it thus conditionally.

The same doctrine is laid down in a leading case in New York, People v. Bostwick et al., where most of the leading cases on both sides of the question are cited, and the questions are treated upon the legal principles involved, as well as in the light of adjudicated cases, and such conclusions are reached as make it impossible to disregard them without a departure from well-established propositions of law relating to the execution of instruments like the one under consideration.

But Pawling et al. v. The United States binds this court as an authority.

It is an axiom of the law that a bond speaks from the time of its delivery, and it makes no difference how perfect it may be in form, it is, unless it has actually been delivered, no bond. To constitute a delivery it must pass out of the hands of the obligors with their consent, and must be received by the obligee or his agent in that behalf, for the purpose for which it was intended.

Mr. G. H. Williams, Attorney-General, and Mr. C. H. Hill, Assistant Attorney-General, contra, relied on State v. Peck, a case, they said, directly in point for the government; the principle involved being, after all, they argued, only that plainly just one, long ago declared by Lord Holt, when he said in a case somewhat similar in principle:

'Seeing somebody must be a loser by this deceit, it is more reason that he that employs and puts a trust and confidence in the deceiver should be a loser than a stranger.'

Mr. Justice DAVIS delivered the opinion of the court.

title: Dair v. United States


text: Talk:Dair v. United States

title: Talk:Dair v. United States


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

It is important that the question involved in this case should be settled, on account of the various interests connected with the administration of governmental affairs, requiring official bonds to be taken, which, as a general thing, are rarely executed in the presence of both parties. It is easy to see, if the obligors are at liberty, when litigation arises and loss is likely to fall upon them, to set up a condition, unknown to the person whose duty it was to take the bond, and which is unjust in its result, that the difficulties of procuring satisfactory indemnity from those who are required by law to give it, will be greatly increased. Especially is that so, since parties to the action are permitted to testify.

In Green v. The United States, the cause of action and defence were the same as in this suit, but as the judgment was reversed on another ground, and the merits of the defence were not discussed, they were not decided. As the case was sent back for a new trial, the court thought proper to call the attention of the court below and of counsel to the subject, and took occasion to say that it had grave doubts whether the facts set up were a valid defence to the action. Subsequent reflection has confirmed the views then entertained, and we are now prepared to say that the position of the defendants cannot be maintained. The ancient rules of the common law in relation to estoppels in pais have been relaxed, and the tendency of modern decisions is to take a broader view of the purpose to be accomplished by them, and they are now applied so as to reach the case of a party, whose conduct is purposely fraudulent or will effect an unjust result.

It must be conceded that courts of justice, if in their power to do so, should not allow a party who, by act or admission, has induced another with whom he was contracting to pursue a line of conduct injurious to his interests, to deny the act or retract the admission in case of apprehended loss. Sound policy requires that the person who proceeds on the faith of an act or admission of this character should be protected by estopping the party who has brought about this state of things from alleging anything in opposition to the natural consequences of his own course of action. It is, accordingly, established doctrine that whenever an act is done or statement made by a party, which cannot be contradicted without fraud on his part and injury to others, whose conduct has been influenced by the act or admission, the character of an estoppel will attach to what otherwise would be mere matter of evidence.

Why should not this principle of estoppel, on every reason of justice and good faith, be applied to the covenant on which this action is founded. The bond was in all respects regular, executed according to prescribed forms, and accepted by the officer whose duty it was to take it, as a completed contract. There was nothing on the face of the paper or in the transaction itself to put the officer on inquiry, or to raise even a suspicon in his mind that a condition was annexed to the delivery of the instrument. The transaction was one of ordinary occurrence in the administration of the revenue laws, and if the officer was satisfied of the sufficiency of the indemnity, there being no circumstances to create distrust that the principal obligors who tendered the bond were not upright men, there was nothing left for him to do but to take it and issue the license. This was done, and the government will be greatly prejudiced if the sureties who were relied on to perform the conditions in case of the failure of the principals, can defeat a recovery on the ground that they did not intend to be bound unless another shared the responsibility, and so told the principal obligors who solicited their signatures. But they did not inform the revenue officer of this condition, and their omission to do so then estops them from setting it up now. The silence which they imposed upon themselves at the time makes their present conduct culpable, for it is not to be doubted that the officer in charge of this business would have acted differently if the information which the principals received had been communicated to him. In the execution of the bond the sureties declared to all persons interested to know that they were parties to the covenant and bound by it, and in the belief that this was so they were accepted and the license granted. They cannot, therefore, contravene the statement thus made and relied on without a fraud on their part and injury to another, and where these things concur the estoppel is imposed by law. As they confided in Dair it is more consonant with reason that they should suffer for his misconduct than the government, who was not placed in a position of trust with regard to him.

The case of Paulding et al. v. The United States, has been cited as an authority against the position taken in this case; but it is not so, because the additional securities to be procured in that case were named on the face of the bond, and this fact is stated in the plea. If the name of Joseph Cloud appeared as a co-surety on the face of this bond, the estoppel would not apply, for the reason that the incompleteness of the instrument would have been brought to the notice of the agent of the government, who would have been put on inquiry to ascertain why Cloud did not execute it, and the pursuit of this inquiry would have disclosed to him the exact condition of things.

In any case, if the bond is so written that it appears that several were expected to sign it, the obligee takes it with notice that the obligors who do sign it can set up in defence the want of execution by the others, if they agreed to become bound, only on condition that the other co-sureties joined in the execution.

We are aware that there is a conflict of opinion in the courts of this country upon the point decided in this case, but we think we are sustained by the weight of authority. At any rate, it is clear on principle that the doctrine of estoppel in pais should be applied to this defence.

It would serve no useful purpose to review the authorities. This work has been performed in several well-considered cases in Maine, Indiana, and Kentucky, and although these courts do not rest their decisions on the same ground, yet they all agree that the facts pleaded in this suit do not constitute a bar to the action.

JUDGMENT AFFIRMED.


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


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Lynde v. County of Winnebago

ERROR to the Circuit Court for the District of Iowa; the case being thus:

The Code of Iowa of 1851, section 98, thus enacts:

'Each county now or hereafter organized is a body corporate for civil and political purposes only; and as such may sue and be sued; shall keep a seal such as provided by law; may acquire and hold property and make all contracts necessary or expedient for the management, control, and improvement of the same, and for the better exercise of its civil and political powers may take any order for the disposition of its property; and may do such other acts, and exercise such other powers, as may be allowed by law.'

By section 106 the county judge is made—

'The accounting officer, and general agent of the county, and as such is authorized and required. . . to take the management of all county business;. . . to audit all claims for money against the county; to draw and seal with the county seal all warrants on the treasurer for money to be paid out of the county treasury;. . . to superintend the fiscal concerns of the county, and secure their management in the best manner.'

By section 129 the county judge as a county court has power—

'To provide for the erection and reparation of court-houses, jails, and other necessary buildings within and for the use of the county.'

By sections 114-116 it is enacted that—

'The county judge may submit to the people of his county at any regular election, or at a special one called for that purpose, the question whether money may be borrowed to aid in the erection of public buildings.

'When the question so submitted involves the borrowing or the expenditure of money, the proposition of the question must be accompanied by a provision to levy a tax for the payment thereof, in addition to the usual taxes. No vote adopting the question proposed, will be of effect unless it adopt the tax also.'

Section 119 proceeds:

'The county judge on being satisfied that the above requirements have been substantially complied with, and that a majority of the votes cast are in favor of the proposition submitted, shall cause the proposition and result of the vote to be entered at large on the minute-book, and a notice of its adoption to be published for the same time and in the same manner as is above provided for publishing the preliminary notice; ''and from the time of entering the result of the vote in relating to borrowing or expending money,. . . the vote and the entry thereof on the county records shall have the force and effect of an act of the General Assembly''.'Section 94 enacts that—

'The county judge of each county having a seal is required to obtain, as soon as practicable, for his county, a new seal of the same size with the present one, and with the same device, but the inscription on which shall be 'seal of the county of _____ Iowa' (naming the county), in capital letters; and each new seal hereafter obtained, shall be of the same description,' &c.

Section 111 enacts that—

'In case of a vacancy in the office of county judge, and in the case of the absence, inability, or interest of that officer, the prosecuting attorney of the county shall supply his place,. . . and when the prosecuting attorney cannot act the county clerk shall fill the place of the judge.'

The office of 'prosecuting attorney of the county' was afterwards abolished.

These provisions of the Code being in force, Robert Clark, the county judge of Winnebago, submitted to the voters of that county, at a special election held on the 6th day of March, 1860, the question of levying a tax of seven mills on the dollars, for the purpose of building a court-house; the said tax to be levied annually, not exceeding ten years, until a sufficient amount was raised for the said purpose. The whole number of votes at the election was twenty-nine, of which twenty-four were in favor of the proposition.

No proposition was ever submitted to the voters to borrow money or to issue bonds for that or any other purpose.

The county judge then made a contract with one Martin Bumgardner to build a court-house for the county, and on account of the contract, made and delivered to him, on the 9th day of March, 1860, bonds in the name of the county for $20,000, the amount for which the court-house was to be built.

Afterwards he went to New York with Bumgardner, and profession to act as county judge of the county, made and issued to Bumgardner new bonds for $20,000, which new bonds differed in the amount of each, in time of payment, and in the amount of coupons, and in other particulars; and he had a seal made at New York, which he called the seal of the county. He then and there signed the said bonds and affixed the said seal to them, and delivered them to Bumgardner.

The bonds thus issued, and which by their terms were payable to Martin Bumgardner or bearer, contained this recitation on their face:

'All of said bonds are issued in accordance with a vote of the people of said county, and in pursuance of an order of the county court of Winnebago County, legally entered of record in the office of the county judge, on the 9th day of March, A.D. 1860, in fulfilment of a contract entered into with said Martin Bumgardner, for the erection of a court-house for said county of Winnebago. And the people of said county have voted the levying of sufficient taxes, from year to year, to pay the principal and interest of each and all of said bonds as the same mature and become payable.'

And they ended with a teste thus:

'In witness whereof I, Robert Clark, county judge of said county, have hereto set my hand and affixed seal of the said county, the 9th day of March, A.D. 1860.

'ROBERT CLARK,

[SEAL.] County Judge.'

The old bonds were now, in accordance with a proposition made by Clark when the new ones were spoken of, delivered up to Clark at New York, and were afterwards cancelled.

While Clark was in New York, making and delivering the new bonds, the clerk of the District Court of Winnebago was acting as county judge in said county, and held a term of a county court, and issued county warrants, and did other business in discharge of his duties as acting county judge.

The new bonds coming into the possession of one Lynde, who purchased them for value, without notice of any defence to them, he dying left them by his last will to his son; and neither principal nor interest of the bonds being paid, the son sued the county on them in the court below.

The facts being found by the court essentially as above stated, the court gave judgment on them for the county. To this judgment the plaintiff excepted.

Mr. H. D. Bean, for the plaintiff in error; Mr. T. F. Witherow, contra.

Mr. Justice SWAYNE delivered the opinion of the court.

title: Lynde v. County of Winnebago


text: Talk:Lynde v. County of Winnebago

title: Talk:Lynde v. County of Winnebago


text:
Lynde v. County of Winnebago/Opinion of the Court

The case involves the validity of certain bonds issued by the judge of the county of Winnebago. Such cases have been numerous in this court. The one before us, though new in some of its aspects, presents no point which has not been substantially determined in preceding cases. The parties waived a jury, and the court, according to the provisions of the statute upon the subject, found the facts. The findings are set forth in the record. The proposition for us to decide is, whether the facts found warrant the judgment given.

The Code of Iowa of 1851 authorizes the county judge, sitting as the County Court, 'to provide for the erection and reparation of court-houses, jails, and other necessary buildings within and for the use of the county.'

In Clapp v. The County of Cedar it was said by the Supreme Court of the State that the office of county judge being created and his powers and duties defined by statute, the principles of the law of agency, where those powers and duties are drawn in question, have no application; that 'he is the living representative and embodiment of the county,' and that 'his acts are the acts of the corporation.' In Hull & Argalls v. The County of Marshall it was held that, by virtue of his general authority, he might contract for the building of a court-house, to be paid for out of the revenue of the county, but that when a debt was to be incurred for that purpose special authority must be conferred by a popular vote in the manner provided by the statute. It was further held that where a loan was thus authorized, the form of the securities not being prescribed, negotiable bonds might be issued.

The statute provides that the judge may submit to the people, at a regular or special election, 'the question whether money may be borrowed to aid in the erection of public buildings,' and other questions not necessary to be mentioned; and that 'when the question so submitted involves the borrowing or expenditure of money' it 'must be accompanied by a provision to lay a tax for the payment thereof,' and that 'no vote adopting the question proposed will be of effect unless it adopt the tax also.'

Upon looking into the record in this case we find that the question submitted to the voters was, 'whether the county judge, at the time of levying the taxes for the year 1860, should levy a special tax of seven mills on a dollar of valuation, for the purpose of constructing a court-house in said county, and said tax to be levied from year to year until a sufficient amount is raised for said purpose, not, however, to exceed ten years.' There was the requisite majority in favor of the proposition. It was expressed in this formula that a court-house was to be built, and we think it was implied that money was to be borrowed to accomplish that object. Otherwise the vote gave no authority which did not already exist, and was an idle ceremony. The statute authorized an appeal to the voters only that they might give or refuse authority to incur a debt. It could not have been intended that the erection should be delayed until a sum sufficient to pay for the structure had been realized from the tax authorized to be imposed, or that the work should proceed only pari passu with the progress of its collection from year to year. What is implied is as effectual as what is expressed. Viewing the subject in the light of the statutory provisions and of the action of the people, we cannot say that the bonds were issued without due authorization.

But, if the authority were doubtful, there are other facts bearing upon this point which, in our judgment, are conclusive. The county judge is the officer designated by the statute to decide whether the voters have given the required sanction. He executed and issued the bonds, and the requisite popular sanction is set forth upon their face. It is a settled rule of law that, where a particular functionary is clothed with the duty of deciding such a question, his decision, in the absence of fraud or collusion, is final. It is not open for examination, and neither party can go behind it. Here the bonds are in the hands of a bon a fide purchaser, and under the circumstances he was not bound to look beyond the averment on their face.

It is not a valid objection that the bonds were made payable and were sold beyond the limits of the county of Winnebago and of the State of Iowa. The power to issue them carried with it authority to the county judge as to both these things-to do what he deemed best for the interests of the county for which he was acting.

These points have been so frequently ruled in this way that it is needless to cite authorities to support them.

It was competent for the county judge to visit New York for purposes connected with the proper disposal of the bonds. A statute of the State authorized him to procure a seal, and prescribed certain regulations to which all such seals should conform. While there, he might well take up bonds which had been previously issued, but not put on the market, and give others in their place, affixing to them a seal there procured for that purpose. There is nothing in the statutes of Iowa forbidding either, and we are aware of no principle of general jurisprudence which was violated by such a proceeding. Certainly the county could sustain no injury by the change, and it has therefore no right to complain. At most there was only an irregular execution of a power of the existence of which we entertain no doubt. Admitting an irregularity to have occurred it certainly cannot affect the rights of a holder for value without notice.

It is insisted that the county judge was functus officio at the time he issued the bonds in question, and that they are for this reason void.

The statute of the State provides that, in case of the absence of that officer, the county clerk shall fill his place. The absence spoken of is doubtless absence from the county seat. In that event unlimited authority is given to the clerk to act as his substitute. But it is not declared that the judge shall be regarded as out of office while absent, or that he shall do no official act during that period. Judicial power is necessarily local in its nature, and its exercise to be valid must be local also. But it is otherwise as to many ministerial acts, and different considerations apply where they are drawn in question. It does not appear that there was any conflict between what the judge did abroad and what the clerk did at home. All the judge did was purely ministerial in its character, and we see no sufficient reason for holding that to this extent he did not bring with him his official character and exercise his official authority. He did not for the time being wholly abdicate his office. Certain powers with which it was clothed fell into abeyance, and continued in that state until his absence ceased. The authority to do all that he did in New York touching the bonds, we hold not to have been in this category.

JUDGMENT REVERSED, and the cause remanded with directions to enter a

JUDGMENT FOR THE PLAINTIFF IN ERROR.


text: Talk:Lynde v. County of Winnebago/Opinion of the Court


text: Voorhees v. Bonesteel and Wife

title: Voorhees v. Bonesteel and Wife


text: Talk:Voorhees v. Bonesteel and Wife

title: Talk:Voorhees v. Bonesteel and Wife


text:
Voorhees v. Bonesteel and Wife/Opinion of the Court

APPEAL from the decree of the Circuit Court for the Southern District of New York, dismissing a bill filed by one Voorhees, assignee in bankruptcy of John Bonesteel, against the said Bonesteel and Sophia his wife, to get possession of 1145 shares of the stock of the Nicolson Pavement Company, of Brooklyn, which, though standing in the name of the wife, he, the assignee, asserted were held in fact and truth for the husband, but which the husband and wife asserted were not so held, but belonged, on the contrary, to the wife alone, and were her separate property.

John Bonesteel, above named, at first resident in Chicago and afterwards in New York, a man of active and scheming turn of mind, but always embarrassed, and Mr. S. B. Chittenden, also first of Chicago but afterwards of Brooklyn, a man of property and standing in that place, the second largest taxpayer in the place and editing or controlling the editorship of the Brooklyn Union, an influential paper there, had married in 1848, or thereabouts, each of them, a daughter of one Hartwell, a person of property in Bridgeport. At the date mentioned, Bonesteel was engaged in business in Chicago, and dealing not unfrequently with his brother-in-law, Chittenden, who was also in business there, but who appears to have always rather distrusted Bonesteel's capacity for the practical management of affairs. In 1853, or 1854, said Mr. Chittenden, in giving testimony in the matter, 'It became apparent to me that he was insolvent, and I told his wife's father that I thought so. In 1855, perhaps, I told him he had better do no business with me. From that time to 1859 Mr. Hartwell very frequently advanced money to him; as often as twice a year. When he came to New York to pay his debts he would advance money to him to help him through the season. In 1859 he failed and made an assignment. A year or two later, I think in 1863, he came to New York to reside, Mr. Hartwell furnishing him money to pay his board. He had no occupation. After he had been there boarding, Mr. Hartwell furnishing his daughter money for the support of the family, a year or longer, he began to do a brokerage dry goods business. He came and bought goods of me. I knew that he was bankrupt, and we never delivered goods until he paid for them. He was my brother-in-law, but I refused to allow my firm to sell him goods on any other condition, because I thought somebody might attach them. I think, within the last year, while pursuing this business, his father-in-law wrote me a letter stating that he had concluded, 'at the request of John's wife, to advance him another $3000,' and he ordered me to pay the money over to him. I paid him the $3000, but I wrote to Mr. Hartwell that he would lose it; that I didn't think Mr. Bonesteel would ever be able to return it. He said, 'I do it for my daughter."

In this condition of things, about the year 1865, one Taylor, who had also been a resident of Chicago, but had now come to reside in New York-had purchased from Samuel Nicolson, the patentee of that sort of pavement called by his name, a license to furnish it to certain places, including New York and Brooklyn, in the East, and was now seeking to get the pavement into general public use. He gave this account of things:

'When I first came to New York, I was an entire stranger in the city. Being intimately acquainted with Mr. Bonesteel, and Mrs. Bonesteel, too, and desiring to get the influence of her and her husband, and other influential parties, I made up my mind to give Mrs. Bonesteel one-third interest of Brooklyn, at that time; being satisfied that it was for my interest to give it to her. I had a conversation with her, in the end of June or beginning of July, 1866. The substance of the conversation was: Mr. Bonesteel had been exerting himself with me, going round and seeing parties for a month or more, in reference to introducing the pavement. She felt uneasy about his neglecting his own business, and running round for me about 'the Nicolson,' which, she was afraid, would amount to nothing. I impressed upon her that it would be a good thing, provided I could get certain influences-the influence of Mr. Chittenden, the only person whose influence was wanted-to help me along. She stated that she had let her husband have some money to engage in business, and that by his neglecting that he would lose what he had, and not make anything out of the pavement. I told her I was satisfied that she would make four times as much out of the pavement as Bonesteel would in trafficking in goods.'

Bonesteel, the bankrupt, gave an account of things not dissimilar, as follows:

'Mr. Taylor was a stranger in the city, and was anxious to introduce the pavement here, and, at the same time, had a large contract at Elmira, New York; and, knowing that I had many acquaintances and friends here who could be of assistance to me in the obtaining of contracts for introducing the pavement, wished me to secure them; showing me, at the same time, that there was a good profit in the work; that if I would devote and give my time to it, I should have all the profit, over $1000, realized therefrom. . . . He was constantly coming to me, at my place of business, and taking up my time in calling upon influential parties and property owners. I said to him that my wife had furnished to me several thousand dollars in money to use in the purchase and selling of merchandise, to assist in the making of money to maintain the family, and that I did not feel it was right or proper, under the circumstances, to give up so much of my time. I called his attention frequently to his taking so much of my time. He said she should not be made the sufferer by the misappropriation of my time.'

The account given by Mr. Chittenden, as appearing in interrogatories put to him and answers received, was thus:

Question. When did you first hear of the Nicolson pavement in connection with Brooklyn?

Answer. Some time in the year 1866, standing in the subtreasury building, I saw Mr. Bonesteel. I asked him what he was about. He spoke of a new pavement. I asked him where the pavement came from, and what the merits of it were. He told me about it, and I asked him to come to my office and talk to me about it. After hearing his story, I said, 'John, you were always wild. I don't believe in it, but I will investigate it.' I sent to Chicago and Milwaukee, wrote to gentlemen to whom he referred me, and made inquiries.

Q. Did you have any interview with Mrs. Bonesteel on the subject?

A. I was in the habit of visiting her constantly, and talked with her about it frequently.

Q. What did she propose to you about it, if anything?

A. I don't know that she proposed absolutely anything to me in the early part of it.

Q. At any time, about introducing it?

A. According to my recollection, I said, if I can ascertain that this is a good pavement for Brooklyn, I will do all I can for it; and I also said, if I do it, Mr. Taylor ought to give you at least a half interest in it.

Q. Had she then expressed a desire to have you aid her in the matter?

A. She at first expressed a strong disinclination to have her husband have anything to do with it, because she had no faith in it.

Q. Later, was her opinion changed?

A. When I became satisfied it was a good pavement, she was very glad to have my assistance.

Q. You did finally assist in introducing the pavement into this city?

A. I laid it in front of my own property, and in front of my neighbor's property, both sides of the street, at my own expense.

Q. Why?

A. Because I believed that it was the best pavement that could be possibly devised for Brooklyn.

Q. How, in your mind, was that to benefit Mrs. Bonesteel?

A. I told her husband and told her that, in consideration of the advocacy which I could give it, and which the newspaper which I had the management of could give-as it was a good pavement-the least he could do, if he was a reasonable man, was to give her half. I urged and insisted on this. But I did not make this a condition of my advocating the pavement. I had a double object: I knew it was a good pavement and I desired to benefit Mrs. Bonesteel.

Q. You knew she was embarrassed somewhat by her husband's difficulties?

A. I knew perfectly well that her family were living at the expense of her father.

Q. You knew that they were living at her father's house?

A. In her father's house, and I had reason to suppose that he had never returned any of the money that he had received from him many years, which I think he once said to me had amounted to $30,000.

Q. Did Mrs. Bonesteel confer all along with you as her adviser in reference to the management of the business?

A. My impression is that nothing important was done in the matter without consulting me. When she required money she came to me.

Q. So that she took an active part in the matter herself?

A. She took an active part in it; as much as any lady would who trusted in her husband and confided in his good intentions.

CROSS-EXAMINED.

Q. You say that you said to Mrs. Bonesteel that she ought to have half; who did you suppose at that time was to have this right for Brooklyn? Who was to have the other half?

A. I was asked to buy an interest in it, and refused to give $100 for the whole of it. I had a doubt whether it was worth $100. I was well aware of the difficulties of introducing matters of this kind into a city like Brooklyn.

Q. You say that you said that Mrs. Bonesteel, you thought, ought to have half. Who was to have the other half?

A. Mr. Taylor owned the whole. My argument was this to Mr. Bonesteel: 'Mr. Taylor owns the whole; by your industry you may possibly work up something; if you do it is fair that be should give your wife a half interest.'

Q. Then you expected that Mr. Taylor and Mrs. Bonesteel would go on together?

A. I presumed that Mr. Taylor would sell out if he could, and as quick as he could.

Q. How many conversations did you have with Mr. Taylor, and to what effect?

A. Two conversations perhaps. We talked on various subjects. I told him I believed it was a good pavement, but I doubted whether there was any money to be made in it. I told him I was willing to advocate it, and I did advocate it. I gave instructions to the editor of the Brooklyn Union to get all the information he could on the subject, and to advocate it as strongly as the facts would admit of.

Q. Was there anything ever said by you, or in your presence, relative to this interest being transferred to Mr. Bonesteel?A. Not a word?

Q. Or to Mrs. Bonesteel, in preference to being transferred to him?

A. It was distinctly understood that Mr. Bonesteel was a bankrupt, and it would be of no use to put it in his name, and if it was transferred at all, I understood that Mr. Taylor gave it to Mrs. Bonesteel as he would a silver cup to her child.

After Mr. Chittenden had laid the pavement in front of his own house, as described, and after it was advocated in the Brooklyn Union, one-half the license for Brooklyn was sold largely through the efforts of Mr. Bonesteel (acting, as his wife testified, as her agent), to Messrs. Page, Kidder & Co., for $10,000; and by the same instrument of conveyance by which this was done the other half was transferred to Mrs. Bonesteel herself.

Bonesteel, the husband, testified that he considered that the transfer was thus made to her, in consequence of what he had told Taylor about taking up his time away from business that he was carrying on as his wife's agent, and with her money; more especially since by his not attending to her business, he let the right reason for selling pass, and so caused a loss to his wife of several thousand dollars.

How a half came now to be transferred to Mrs. Bonesteel instead of a third, which Taylor by that part of his testimony already quoted, stated that he meant originally to give her, was thus explained or sought to be by himself.

When so good a sale as the one to Page, Kidder & Co. for $10,000 had been made, Bonesteel, it seemed, had urged upon Taylor that he ought to be content with such a good sum of money, and give the remaining half to him or his wife. Taylor knew that Bonesteel had failed; and in regard to the whole matter stated thus:

'I said to Mr. Bonesteel when he insisted upon my giving the interest between the third and the half, that I wanted to keep it myself, and should not let his wife have it, but upon his urging matters I told him that I would not give it to him, but to his wife, as I did the other, for he was in debt, and if I did, his creditors would get it, and that I had nothing to give them. I had not previously conveyed the one-half to his wife, but had made up my mind to give it to her as promised, and therefore considered it as given. He claimed that it was through Chittenden's influence that I sold the half of Brooklyn for what I got, and I thought it was, and I conveyed it. . . . I would not have conveyed the half if I had not thought thus of Mr. Chittenden's influence. I thought his influence of great importance, as he was rich and a prominent man in Brooklyn.'

Page, Kidder & Co., being thus owners of one-half the licenses, and Mrs. Bonesteel holding the other half, they two Bonesteel, the husband, acting for her, and as she testified as her agent-organized under the general law of New York, the Nicolson Pavement Company of Brooklyn; and transferring each their half of the license to the company received in return stock in its capital; this capital being fixed in the charter at $500,000.

As the result proved, Bonesteel was not always wild. This particular project, at least, proved a good one. Mrs. Bonesteel soon sold to a certain W. Smith & Co. one-half of her stock (a quarter of the capital) for $10,000, receiving the purchase-money and using it as her own; she left 356 shares in the company as working capital; sold 44 other shares for $2000, and used the money; gave her husband 5 shares, enough to enable him to become a trustee and president of the company, which he now was, at a salary of $4000, and had 1145 shares, charged to be worth $30,000, and impliedly admitted to be worth about $10,000, remaining in her own name.

It was these 1145 shares which her husband's assignee in bankruptcy, by the bill filed against him and her, now sought to recover for his creditors.

The bill set forth debts to the amount of $30,000, and assets, one worthless note; charged that the one-half interest vested in Mrs. Bonesteel was in truth conveyed to her in consideration of her husband's services, in negotiating and selling the other half; that the stock was, therefore, in fact the property of her husband, the now bankrupt. It charged further, that since the organization of the company, Bonesteel had participated in its management, and had no other business; that many very profitable contracts had been since made with the city Brooklyn for paving, &c. The bill prayed an account and transfer of the stock to the complainant, the assignee.

Both husband and wife answered, each denying every material allegation in the bill; her answer specially averring, that when the Nicolson pavement was brought forward, her husband was acting with her knowledge and approval as her agent, with money owned by her, advanced to her by her father, and with other sums used in support of the family and advanced by her, to be charged on any distribution of his property at his death as advances; that her husband continued to act as her agent in the matter of the pavement; that she had laid out large sums of her own money in advancing and protecting her interests in the company; and setting up generally a history such as the reader can readily infer from the case as already stated.

The reader will thus perceive that the question was really one of evidence on the facts; and one where the evidence was pretty much one way.

The court below dismissed the bill; and from that decree it was that the present appeal was taken.

Mr. J. P. C. Cottrill, for the appellants; Messrs. J. Winslow and J. M. Van Cott, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.

Assignees of the estate of the debtor, in a proceeding in bankruptcy, may be chosen by the creditors, or if they make no choice, at their first meeting, the judge, or, in case there is no opposing interest, the register, may make the appointment, subject to the approval of the judge. Section fourteen also provides that as soon as an assignee is appointed and qualified, the judge, or where there is no opposing interest, the register, shall, by an instrument under his hand, assign and convey to the assignee all the estate, real and personal, of the bankrupt, and that the title to all such estate, with the deeds, books, and papers of the bankrupt relating thereto, shall, by operation of law, vest in such assignee. Such assignments, it was foreseen, might give rise to controversies, and the second section of the act, in view of that contingency, provides that Circuit Courts shall have concurrent jurisdiction with the District Courts, of the same district, of all suits at law or in equity which may or shall be brought, by the assignee in bankruptcy, against any person claiming an adverse interest, or by such person against such assignee, touching any property or rights of property of said bankrupt, transferable to or vested in such assignee.

Voorhees, the complainant, is the assignee in bankruptcy of the first-named respondent, and he alleges in the bill of complaint that the schedule of debts, filed by the bankrupt, shows that he owed debts to an amount exceeding thirty thousand dollars; that the schedule exhibits no assets except a certain note believed to be worthless; that the other respondent is the wife of the bankrupt; that she has standing in her name, upon the books of the Nicolson Pavement Company, a corporation organized under the general laws of the State of New York, eleven hundred and forty-five shares of the capital stock of said company, of the par value of one hundred and fourteen thousand five hundred dollars, and that she holds stock certificates of the said company for the said shares, which are believed to be of a value exceeding thirty thousand dollars. Apart from those matters the complainant also alleges that he, as such assignee, has received the required instrument, duly executed, assigning and conveying to him all the estate, real and personal, of the bankrupt, and that the said stock, as he believes, is in fact and truth the property of the bankrupt, and as such that it should have been included in the inventory of his property, and that it should be applied to the payment of the debts due to his creditors. All of said shares, it is admitted, are standing in the name of the wife of the bankrupt, but the complainant alleges that the facts and circumstances under which the title was acquired, as confirmed by the conduct of the respondents since that time, affords satisfactory evidence that the property of the shares is in the bankrupt, and he states what the facts and circumstances attending the acquisition were, as he is informed and believes, with great fulness and particularity. Appended to that statement are eleven interrogatories to the respondents, designed to elicit evidence to establish the truth of the alleged circumstances.

Service was made and the respondents appeared and filed separate answers. Among other things the last-named respondent admits that she is the wife of the bankrupt, that the shares mentioned in the bill are standing in her name upon the books of the pavement company, and that she holds the stock certificates therefor, but she alleges that the value of the stock is less than one-third of the sum alleged in the bill. On the other hand she denies that the stock is or ever was the property of the bankrupt, or that he ever had any interest therein, or that the shares should have been included in his inventory, or be applied to the payment of the debts due to his creditors, and she denies that the circumstances under which she became possessed of the stock are correctly set forth in the bill, and each and every allegation in that behalf, so far as the same are different from, or inconsistent with, the statement as set forth in her answer. What she alleges is, that prior to that time she was engaged in the dry goods business, her husband acting as her agent and attorney in fact in carrying on the business; that the business was conducted in her name and for her account, upon capital furnished to her by her father; that he made advances to her exceeding twenty thousand dollars, which she employed in carrying on that business or expended in paying the expenses of their family; that the assignee of the patent described in the bill desired to secure her services and influence, and through her the influence of her friends, in the interest of that improvement, and proposed if she would render such services and procure the aid and influence of her friends for the same purpose that he would give her a one-half interest and right in his assignment or license to lay such pavement in that city, and would also give her husband employment in promoting the enterprise and accomplishing the undertaking; that she accepted the proposition and rendered the promised service in all proper ways in her power, and that the other contracting party, in consideration thereof, conveyed a one-half interest in the enterprise to her as he had proposed, and that such conveyance was made and received in good faith and without any intent of defrauding the creditors of the bankrupt; that none of the money, assets, or property of the bankrupt was used to procure such conveyance, nor is the same in any way represented in the shares of the capital stock of the pavement company now held and owned by the respondent. Suffice it to say, without reproducing the further details of her answer, that she claims and avers that she is legally and equitably entitled to hold, and that she does hold the shares in question as her separate and individual estate.

Substantially the same defences are set up in the answer of the other respondent. He admits that the first-named respondent is his wife, that the stock stands in her name, and that she holds the stock certificates; but he denies that the stock is or ever was his property; that he has or ever had any interest in the same, or that it should have been included in his inventory, or that it should be applied to the payment of his debts as alleged in the bill. Concurring with the other respondent he also denies that the circumstances under which she acquired the shares are such as are alleged in the bill, and avers that the shares mentioned are the individual and separate property of his wife, as alleged in her answer.

Proofs were taken on both sides, and the court having heard the parties, entered a decree for the respondents, dismissing the bill of complaint, and the complainant appealed to this court.

Before proceeding to examine the errors assigned it becomes necessary to make some further reference to the circumstances of the transaction, in order that the questions presented for decision may be fully understood. Both parties agree that the title to the shares in question came from the owner of the license, granted by the patentee of the pavement invention, to lay that pavement in the city of Brooklyn, and the pleadings and proofs show that the bankrupt, acting as the agent of his wife, negotiated a sale to the firm therein mentioned of one-half of the right for the sum of ten thousand dollars, and that the owner of that license, in consideration of those services and the services in the same behalf rendered by the wife, agreed to assign the other half of the license to the wife, who is the present holder of the shares. Pursuant to that agreement the owner of the license, on the seventh of December, 1866, made an assignment of the whole license, conveying one-half to the last-named respondent, and the other half to the firm by whom it had previously been purchased; and it appears that the sale and transfer were ratified by the patentee on the tenth of May following. By this arrangement the last-named respondent became the owner of one-half of the license interest, but she subsequently sold to William Smith & Co. one-half of her interest so acquired for the sum of ten thousand dollars, and received the consideration to her own use, and expended the money for the support of herself and family.

All the parties interested came together on the fifth of November, subsequent to the execution of the confirmatory license by the patentee, and organized the pavement company, and in consideration of the transfer of that license to the company, the several parties received certificates in due form for their respective proportions of the same, the last-named respondent receiving eleven hundred and fifty shares of the stock, being one-fourth, less four hundred shares reserved for the working capital of the corporation. Forty-four of the reserved shares were subsequently transferred to the same respondent, and the proofs show that she sold the same as her own property and appropriated the avails to pay her family expenses. Five of the shares allotted to her she gave to her husband that he might be qualified to act as a trustee in the company, leaving the eleven hundred and forty-five shares standing in her name.

It is claimed by the assignee that the half-interest in the license right was transferred to the wife of the bankrupt at a time when he was insolvent, in consideration of the services rendered by the bankrupt, and that the avails belonged to his creditors, and that the ownership vested in the wife is simply a cover and a fraud. Accusations of fraud may well be dismissed, as nothing of the kind is alleged in the bill of complaint, and it is well-settled law that affirmative relief will not be granted in equity upon the ground of fraud unless it be made a distinct allegation in the bill, so that it may be put in issue by the pleadings.

Suppose, however, the rule was otherwise, and that the complainant may prove fraud, and be entitled to relief upon that ground, even if he has not alleged anything of the kind, still the result must be the same, as he has not introduced any sufficient proof to establish the charge or to warrant the court in adopting that theory, even if the charge was made in the bill. Instead of that, the theory of the bill is that the half-interest in the pavement license was conveyed to the wife in trust for her husband, and that the shares in question are now held by her to his use, as representing to that extent the one-half interest of the pavement license, which, as the complainant alleges, was purchased for the benefit of the bankrupt.

Confessedly the claim in that view is distinctly alleged in the bill, but the difficulty which the complainant has to encounter in attempting to support that theory is that every material allegation of the bill in that behalf is distinctly denied in each of the answers, and that the proofs, instead of being sufficient to overcome the answers, afford satisfactory grounds for holding that the theory of the respondents is correct.

Courts of equity cannot decree against such denials in the answer of the respondent, on the testimony of a single witness. Where the denial is distinct the rule is universal that the complainant under such circumstances must have two witnesses, or one witness and corroborative circumstances, or he is not entitled to relief, as he cannot prevail if the balance of proof be not in his favor, and he must have circumstances in his favor in addition to his single witness in order to turn the balance.

Evidence is entirely wanting to show that the holder of the shares in dispute, or her grantor, or her husband, ever intended or supposed that the conveyance of the one-half interest in the license was made to the wife in trust for her husband. Taken as a whole, the proofs, instead of supporting that theory, show very satisfactorily that the property was conveyed to the holder of the shares, in pursuance of a prior agreement between her and her grantor that she should have such an interest as her own, and that it was received by her without any suggestion from any source that the title was in any manner qualified, or that it was not to be her own separate property. Confirmation of that view is derived from the conduct and declarations of all the parties, during the negotiations and at the time of the transfer. Throughout she always treated the property as her own, and the husband constantly acquiesced in that claim. She sold a part of the interest and received the purchase-money, and disposed of it as her own, and when the pavement company was organized, she joined with the others interested in the enterprise, and transferred her remaining interest to the company and became a stockholder, accepting the eleven hundred and fifty shares as her proportion of the stock of be divided at that time among the shareholders. All agreed in treating her as the owner of a quarter interest in the license, and they assigned the shares to her as her separate property, and the evidence shows that she has always dealt with the interest in the license and in the stock as her own.

Attempt is made in argument to show that the conveyance of the one-half interest in the pavement license was made, in part at least, in consideration of the services of the bankrupt, and it must be conceded that some of the proofs tend strongly to support that theory, but the answer to the suggestion made by the respondents, deduced from the same proofs, is satisfactory and conclusive. Those same proofs also show that in rendering those services the bankrupt was acting as the agent and attorney in fact of his wife, that for some time previously he had been engaged in transacting her business, using the money furnished to her by her father, and that the respondent in rendering the services which it is urged constituted a part of the consideration for the sale of the half interest in the pavement license, he was acting in her behalf and to promote her interest.

Under the laws of New York a married woman may manage her separate property, through the agency of her husband, without subjecting it to the claims of his creditors, and it is held that she is entitled to the profits of a mercantile business, conducted by the husband in her name, if the capital is furnished by her and he has no interest but that of a mere agent. Where the husband has no interest in the business it is also held that the application of a portion of the income to the support of the husband will not impair the title of the wife to the property. Married women, at common law, could take title to real or personal property by conveyance from any person except the husband, but where no trust was created her personal property vested absolutely in her husband when reduced to his possession, and he became possessed of her chattels real in her right with power to alien them it his pleasure during her life, and if he survived her, they became his absolute property. Statutes, such as those above referred to, are intended to divest the title of the husband, as such, during coverture, and to enable the wife to take the absolute title as though she were unmarried. Laws of the kind have the effect to modify so far the antecedent disabilities incident to the conjugal relation, as to secure the wife in the beneficial enjoyment of the new interests she is permitted by law to acquire, and it is expressly held that she is at liberty to avail herself of the agency of her husband as if they had not been united in marriage. Those laws vest in the wife the legal title to the rents, issues, and profits of her real estate as against the husband and his creditors, and it is held that the husband cannot, as formerly, acquire title to such property in virtue of his marital rights. Consequently it is held that where the legal title to property is in the wife, as against her husband, it cannot be seized to satisfy his debts without proof that in the given case her title is merely colorable and fraudulent as against his creditors, which is decisive of this case, as nothing of the kind was either alleged in the bill or established by any sufficient evidence.

Apply that rule to the case and it is clear that the decision of the Circuit Court is correct, and the decree is accordingly.

AFFIRMED.


text: Talk:Voorhees v. Bonesteel and Wife/Opinion of the Court


text:
Author:William Harrison Dunbar

Works

 * The Anarchists’ Case Before the Supreme Court of the United States, 1 Harvard Law Review 307 (1888).

title: Author:William Harrison Dunbar


text:
The Commerce

APPEAL from the Circuit Court for the District of Maryland.

The steamer Commerce was proceeding down the Chesapeake Bay, in a southeast course, on an evening of January, 1870; the schooner Seamen trying to sail up in a course about north-northwest. The night was perfectly calm, and the moon was shining. When nearly opposite Annapolis, the vessels first saw each other, at a distance of about two miles, and not a great while afterwards collided; the steamer cutting the schooner in two, and sending her with her cargo forthwith to the bottom in the deepest part of the bay. Her owners hereupon libelled the steamer in the District Court at Baltimore. The master of the steamer answered, stating that she was proceeding down the bay at a rate of six or seven miles an hour, holding a course south by west; that he discovered a sailing vessel approaching from the opposite direction, holding a course, as near as he could judge, north by east; that a light wind was prevailing from the southeast, of about two knots an hour; that when the schooner was about a mile distant, he altered the course of the steamer to south by east; that he continued this last-mentioned course, and the schooner continued her original course until the vessels were within about four hundred yards of each other, when the schooner changed her course so as to cross the bow of the steamer; that he then caused the engines of the steamer to be stopped and reversed; that if the schooner had not altered her course the collision would not have taken place, &c.

The captain of the schooner testified that the schooner was becalmed, 'her sails amidship and swinging inboard,' and could not change her course nor get out of the way; and that the steamer was warned when yet half a mile off that unless she changed hers, she would certainly 'be into the schooner.'

The pilot of the schooner confirmed this account of things, stating that the schooner was actually going back rather than forwards, drifting with an ebb tide; that the bay was so claim that the schooner would not answer her helm at all, and had to be kept straight with an oar.

A more credible witness than either of these persons-who it will have been observed were both from the schooner, and who were to some extent contradicted by the master of the steamer, who testified that 'a light wind was prevailing from the southeast of about two knots an hour'-was one Thurlow, who happened to be on a sloop lying off Annapolis, and between the two vessels and the shore when the collision took place, and had been watching both the probabilities and the fact of the disaster. 'I was,' said this witness, 'two or three hundred yards westward of these vessels when the collision took place. I saw the two boats about five minutes before the collision and up to the time of the collision. I heard the captain of the schooner holloa to the steamer to keep away from him. I think that the steamer did not slacken her speed, nor change her course. The schooner did not change hers. She was keeping her proper course up the bay. There was not a particle of wind at the time that I could judge; not a ripple upon the water. You could see a vessel about a mile off, and her lights about a mile and a half.'

The District Court condemned the steamer, and put the value of the schooner at $2500. She had cost the libellants $2000 some years before, but they had laid out some money in repairing her, and witnesses swore that she was now well worth $2500, and even more. The Circuit Court on appeal affirmed the decree of the District Court.

Mr. William Shepard Bryan, for the appellant, argued:

1st. That no reliance was to be given to the testimony of the master and pilot of the schooner, who would, of course, whatever they had done or omitted to do, exculpate themselves; and,

2d. That if the steamer was properly condemned, the award of damages in favor of the schooner for more than her whole cost several years before, was plainly erroneous.

Mr. W. S. Waters, contra.

Mr. Justice STRONG delivered the opinion of the court.

title: The Commerce


text: Talk:The Commerce

title: Talk:The Commerce


text:
The Commerce/Opinion of the Court

If the schooner was guilty of any fault which caused the collision, or contributed to it in any degree, it was in a change of her course, which the respondents allege she made when the vessels were about four hundred yards from each other. No other fault was averred in the answer to the libel, and no other has been suggested in the argument here. But the evidence utterly fails to establish the allegation of any change of the course of the schooner after the steamer hove in sight, or after she was seen from the steamer. Not only is there the direct evidence to the contrary of the master and pilot of the schooner, as well as of a disinterested witness who saw the collision from a yacht two or three hundred yards westward from the place where it happened, but it is made abundantly manifest that a change of course was then impossible. There was a dead calm, with not a ripple upon the water, and the sails of the schooner were amidships, swinging inboard. She was drifting with an ebb tide, and could be kept straight only by an oar. Such is the overwhelming testimony. And nothing appears on the other side except the statement of the master of the steamer, who has testified that 'the wind was about southeast, and, as near as he could judge, about a two-knot breeze.' As the steamer was on a southeast course, and making six or seven knots, this testimony is very light evidence in the scale against the proofs that the schooner was becalmed, and consequently that the averment of a change of her course is without foundation. The case exhibits nothing, then, to justify the steamer's failure to keep out of the way, and she was properly condemned.

It is said, however, she has been mulcted in excessive damages. The District Court and the Circuit Court concurred in the assessment made, and we do not perceive that more was allowed to the libellants than the evidence warranted. When both the lower courts have agreed in their estimate of the damages, we ought not to set aside their conclusions without satisfactory evidence that they were mistaken. We have no such evidence before us.

DECREE AFFIRMED.

title: The Commerce/Opinion of the Court


text: Talk:The Commerce/Opinion of the Court

title: Talk:The Commerce/Opinion of the Court