text:
Kirk v. Hamilton

ERROR to the Supreme Court of the District of Columbia.

This was an action of ejectment, brought Dec. 21, 1872, by George E. Kirk against Charles O. Hamilton and Catherine Hamilton, to recover parts of lots 7 and 9 in square 437 in the city of Washington. The defendants pleaded not guilty. A verdict was returned in their favor, and, a new trial having been refused, judgment was entered on the verdict. Kirk sued out this writ.

Six bills of exceptions were taken by Kirk. The nature and scope of the questions thereby raised will be understood from a statement of the principal facts appearing in the record of a suit in equity, commenced in the year 1859 by D. W. Moore & Co., in the Circuit Court for the District of Columbia, against him, Walter Lenox, Henry Maylor, Naylor, Richard H. Clarke, A. Austin Smith, Hugh B. Sweeney, John Robinson, Major Garnett, John H. Goddard, Jr., Job W. Angus, Charles Stott, and William S. Martin, in order to obtain satisfaction of several unpaid judgments against him, amounting to less than $200, previously rendered in favor of the complainants by justices of the peace.

The bill alleged that the complainants did not know of any property belonging to Kirk upon which execution could be levied; that he was the owner of a large amount of real estate in Washington, which he had conveyed for the purpose of hindering, delaying, and defrauding them in the recovery of their judgment debts, to wit, lot 78 in the subdivision of sequare No. 465, and parts of lots 7, 9, 10, 11, and 12 in square No. 437; that by deed of August, 1853, he conveyed part of lots 7 and 9 to the defendants Lenox and Naylor, in trust to secure the Washington Building Association the sum of money therein mentioned; that by dead of March 24, 1856, he conveyed a portion of the same lots to the defendants Clarke and Smith, in trust to secure the defendant Sweeney in the payment of a promissory note for $1,600; that by deed of April 14, 1854, he had conveyed parts of lots 10 and 12 in square 437 to the defendant Robinson, in trust to secure the defendant Garnett in four promissory notes of $131.25 each; that by deed of Oct. 13, 1854, he had conveyed the west half of lot 11 in square 437 to the defendant Goddard, in trust to secure the defendant Angus in the payment of a promissory note for $500; that it was provided in the deeds that if the several debts respectively mentioned therein were not paid at maturity, then the several parcels of ground thereby conveyed should be sold, and the balance remaining after satisfying the several debts to be paid to Kirk; that Kirk had purchased of one William S. Martin lots 43, 44, 45, and 46 in square 465, and for the purpose of defrauding, hindering, and delaying his trustees had caused the latter, by deed of April 22, 1858, to convey the same to him, as trustee for his wife and children; that the several pieces of property largely exceeded in value the debts secured thereby, and that if the debts were genuine and still unpaid (which was denied), then the interest of Kirk therein was liable in equity for the payment of the judgments, after satisfying any sums due on the debts described in the conveyances.

The bill further alleged that on 22d March, 1856, Kirk, for the pretended consideration of $4,000, conveyed to the defendant Stott, his heirs and assigns, lot 78 in subdivision of square 465, and parts of lots 7, 9, 10, 11, and 12 in square 437; that the deed was purely voluntary and with the intent to defraud and delay the creditors of Kirk; and, in any event, if a consideration passed, it was upon a secret trust to reconvey to Kirk whenever the sum of $4,000 was repaid.

It also alleged that the several deeds were duly recorded, and prayed that the deed from Kirk to Stott be declared null and void as against the complainants, and that the parcels of ground mentioned in the several conveyances be sold for the payment, 'first, of such sums as were shown to be due on account of debts, and next, of the amount or amounts due to complainants on their judgments, and the costs' of suit.

Special interrogatories to the several defendants were embodied in the bill.

On 21st November, 1859, summons was issued, and returned 28th November, 1859, as served on all the defendants except Garnett and Martin.

At the May Term, 1860, a decree was, for want of an appearance and answer at rules, entered pro confesso against all of the defendants, except Garnett and Martin. It ordered that parts of lots 7 and 9 in square 437, and lot 78 in subdivision of square 465, 'be sold, or so much thereof as may be necessary, for the payment of said complainants' claim and others who may come in as creditors of the said George E. Kirk by petition, in the manner and form required by law and the practice of the court, and that Edward C. Carrington be and is hereby appointed trustee to make such sale,' &c.

After advertisement, as required by the decree, the trustee sold lot 78, with improvements, for $1,480. In his report of sale he says: 'Your trustee, having sold sufficient property to pay and satisfy the claims provided for in said bill and decree, discontinued the sale of the other property mentioned in said proceedings.'

On 28th October, 1862, the report of sale, no exception thereto having been filed, was confirmed, and the cause referred to the auditor to state the trustee's account and make distribution of the fund realized. After satisfying the claims of Moore & Co. and costs of suit, there was left a surplus in the trustee's hands of $1,008.52.

In an order entered Nov. 14, 1863, it is recited that certain creditors of Kirk had filed petitions, seeking the payment of numerous judgments and claims against him. Upon the ground that he was a non-resident living beyond the jurisdiction of the court, an order was made that notice of the character and object of the petitions be given him by publication, for six weeks, warning him to appear in person or by solicitor, on or before the second Monday of January, 1864, 'at rules to be held in the clerk's office' of the court, otherwise the petitions and claims would be taken as confessed against him. Due proof of publication of that order was filed Jan. 23, 1864. On 2d February, 1864, this order was entered: 'It appearing to the clerk that the defendants Geo. E. Kirk, Walter Lenox, Henry Naylor, R. H. Clarke, A. A. Smith, H. B. Sweeney, John Robinson, J. H. Goddard, Jr., Job W. Angus, and Charles Stott have failed to appear and answer in this suit, it is, this second day of February, 1864, on motion of A. Lloyd (by Fred. H. Norton), solicitor for complainants, ordered by the clerk that the bill and the matters thereof be taken for confessed against the above defendants.'

By an order of the 12th of February, 1864, the cause, with the said petitions and claims, was referred to the auditor of the court, with instructions to state the trustee's account and make distribution of the balance of the fund in his hands. A report of distribution was made showing that judgments and claims were proven in excess of the funds remaining in the trustee's hands upon the sale of lot 78. His report of distribution was approved April 9, 1864.

Thereupon the trustee, Carrington, without any further order, and by virtue of the original decree of May 30, 1860, advertised, and on the 19th of April, 1864, sold at public auction, the demanded premises, being the parts of lots 7 and 9 described in the bill, to Charles O. Hamilton for $950. The sale was subsequently confirmed, and by an order of Dec. 12, 1864, the cause was referred to the auditor to state the accounts of the trustee and report a distribution. In his report the auditor says: 'Pending this last reference of December, 1864, and before the case was confirmed, Kirk returned from the South, and has appeared by Mr. Laskey, his counsel, upon this reference. The simple-contract debts are not admitted by him, but he states that he has offsets in bar against some if not all of them.' Appended to the auditor's report there is the following paper: 'The defendant Kirk does not admit the simple-contract debts, but contests the same, and requires the said claims before they be allowed by the auditor to be established by competent proof. R. H. Laskey, atty. for deft.' The report was confirmed Feb. 5, 1865, and the purchase-money having been paid, Carrington, the trustee, by his deed of Dec. 14, 1865, conveyed the premises to Hamilton, who thereupon went into possession. The remaining facts are stated in the opinion of the court.

Mr. Albert Pike and Mr. Luther H. Pike for the plaintiff in error.

Mr. Richard T. Merrick and Mr. Martin F. Morris, contra.

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

title: Kirk v. Hamilton


text:
Page:A book of the Cevennes (-1907-).djvu/259

Rh tell of the marvels that took place in the assemblies, and all at once a convulsion shook him; he jumped up in bed, pulled down the canopy of the four-poster and flung it into the middle of the room, uttering incoherent words. This sublime victory of the Spirit over their father filled his children with joy. They ran through the village, entering every house, saying, "Come and see our father who has received the Spirit, and is prophesying!" The old man was in wild excitement when M. de Broglie arrived in the village. Béraut and his eldest daughter Sarah, at the head of all those who had been listening to his prophetic utterances, rushed on de Broglie and his troop, throwing stones. The soldiers retaliated, the new-made prophet and a dozen others were killed, and Sarah was taken prisoner.

Folleville, learning that Gabriel Astier was holding an assembly on the height of Cheilaret, surrounded the mountain. As soon as the dragoons were seen, Astier harangued the faithful: "Children of God, be without fear. I promise you that your bodies will be as adamant against ball and sabre. The angels of the Lord will fight for us."

Before attacking, Folleville sent the provost of his regiment to urge the fanatics to disperse and return to their duty. He was met with shouts of "Tartara! Get thee behind me, Satan!" The cry of Tartara was supposed to have the power to paralyse the enemy. Then one of the Calvinists rushed upon the provost and pelted him with stones, so that he was forced to fly. Folleville, reluctant to proceed to extremities, sent another parliamentary to the crowd; he was received with a volley of stones. The fanatics could be seen breathing on one another to communicate the gift of

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


text: Talk:Kirk v. Hamilton

title: Talk:Kirk v. Hamilton


text:
Kirk v. Hamilton/Opinion of the Court

It appears from the first bill of exceptions that, upon the trial of the cause, the plaintiff, to maintain the issue joined, gave evidence to the jury tending to prove title in himself to the land in dispute, as well as his actual possession of the premises under that title; that he had fully discharged the indebtedness secured by the two deeds of trust executed, one to Lenox and Naylor, and the other to Clarke and Smith; that Charles Stott, on the 14th of May, 1872, reconveyed to him all that portion of the premises which, on the 22d of March, 1856, he had conveyed to Stott; that he had never made nor authorized any other conveyances than those just named. He also introduced a deed from Carrington, as the supposed trustee in the case of Moore & Co. v. Kirk, & c., at the same time, however, denying its validity, and avowing that it was introduced subject to his exceptions reserved, and to be thereafter presented, as to its sufficiency in law to prove title in the defendants or either of them. It was admitted by the court subject to those exceptions. The plaintiff further gave evidence to prove that defendants were in possession of the premises at the commencement of the action, and then rested.

The bill of exceptions then shows that defendants, to sustain their defence, and to prove title out of the plaintiff, offered to read in evidence the record of the equity suit of Moore & Co. v. Kirk, & c. Plaintiff insisted that the record of that suit was insufficient in law to maintain the issue on defendants' behalf, or to show title in them, and asked the court to inform the jury that it should not then be admitted in evidence, except subject to his exceptions as to its sufficiency in law, to be thereafter presented to the court pending the further trial of the cause. The record was so admitted. The defendants, further to maintain their defence, and to prove title in themselves, offered to introduce testimony tending to prove that, at the time of the purchase of the premises at the sale made by Carrington, trustee, in the suit of Moore & Co. v. Kirk, & c., the only improvement thereon was a two-story four-room brick house, and that, about the year 1868, the defendants erected an extensive building on the property, at a cost of some $4,000; that when they began such building, and for some time thereafter, the plaintiff Kirk resided on the adjoining premises; that during all that time he well knew of said improvements, made no objection thereto, and asserted no claim to the property, except the west three feet thereof, adjoining his ground, and which he claimed as an alley, and, even as to such portion, he subsequently informed the witness he was mistaken; and, lastly, that the plaintiff, though residing in the city of Washington ever since about the year 1865, never, to defendants' knowledge, until the commencement of this action, asserted any claim to the premises in dispute.

At that stage of the trial the plaintiff interposed and asked the court to inform the jury that the testimony thus offered, in reference to defendants putting improvements on the premises, was inadmissible in law, and that such issue ought to be found for the plaintiff. The court ruled that the testimony was admissible, to which plaintiff excepted. The defendants then gave the said testimony in evidence o the jury, who rendered a verdict against the plaintiff upon to the jury, who rendered first bill of exceptions.

The remaining bills of exceptions present, in different forms, the general question whether the sale by Carrington, as trustee, on the 19th of April, 1864, was or was not, upon the face of the record of Moore & Co. v. Kirk, & c., a mere nullity. Its validity is assailed by the plaintiff on various grounds, the most important of which seem to be: 1. That as Moore & Co. sued in their own behalf only, and not for the benefit of themselves and other creditors, the jurisdiction and power of the court was exhausted by the first sale (of lot No. 78), which raised an amount largely in excess of the claims for which Moore & Co. sued. 2. That the utmost which the court, upon the pleadings, could do, was to distribute such excess among the other creditors of Kirk who should appear, in proper form, and establish their claims. 3. That the court was entirely without jurisdiction to make a second order of sale, and did not assume to exercise any such power. 4. That the second sale by Carrington, having been made without any previous order or direction of the court, its confirmation, and the deed subsequently made to Hamilton, were absolutely null and void.

In the view we take of the case, it is unnecessary to pass upon these several objections. If it be assumed that the record of the suit of Moore & Co. v. Kirk, & c., was, of itself, insufficient in law to divest Kirk of title to the premises in dispute, or to invest Hamilton with title, the question still remains, whether the facts disclosed by the first bill of exceptions do not constitute a defence to the present action.

After the confirmation of the sale of April 19, 1864, before any deed had been made, and while the cause was upon reference for a statement, as well of the trustee's accounts as for distribution of the fund realized by the sales, Kirk, it seems, appeared before the auditor, by an attorney, and made objection to the allowance of the simple-contract debts which had been proven against him in his absence. So far as the record discloses, no other objection to the proceedings was interposed by him. Undoubtedly he then knew, he must be conclusively presumed to have known, after he appeared before the auditor, all that had taken place in that suit during his absence from the District, including the sale of the premises in dispute, which took place only a few months prior to his appearance before the auditor. If that sale was a nullity, the court, upon application by Kirk, after his appearance before the auditor, could have disregarded all that had been done subsequently to the first sale, discharged Hamilton's bond, returned the money he had paid, and, in addition, placed Kirk in the actual possession of the property. No such application was made. No such claim was asserted. No effort was made by him to prevent the execution of a deed to the purchaser at the second sale. So far as the record shows, he seemed to have acquiesced in what had been done in his absence. In 1868, three years after his return to the city, and two years after Hamilton had secured a deed in pursuance of his purchase, he became aware that Hamilton was in actual possession of the premises, claiming and improving them as his property. He personally knew of Hamilton's expenditures of money in their improvement, and remained silent as to any claim of his own. Indeed, his assertion while the improvements were being made, of claim to only three feet of ground next to the adjoining lot upon which he resided, was, in effect, a disclaimer that he had, or would assert, a claim to the remainder of the lots 7 and 9 which Hamilton had purchased at the sale in April, 1864. And his subsequent declaration that he was in error in claiming even that three feet of ground only added force to his former disclaimer of title in the premises. Hamilton was in possession under an apparent title acquired, as we must assume from the record, in entire good faith, by what he supposed to be a valid judicial sale, under the sanction of a court of general jurisdiction.

The only serious question upon this branch of the case is whether, consistently with the authorities, the defence is available to Hamilton in this action of ejectment to recover the possession of the property. We are of opinion that the present case comes within the reasons upon which rest the established exceptions to the general rule that title to land cannot be extinguished or transferred by acts in pais or by oral declarations. 'What I induce my neighbor to regard as true is the truth as between us, if he has been misled by my asseveration,' became a settled rule of property at a very early period in courts of equity. The same principle is thus stated by Chancellor Kent in Wendell v. Van Rensselaer, 1 Johns. (N. Y.) Ch. 344: 'There is no principle better established, in this court, nor one founded on more solid considerations of equity and public utility, than that which declares, that if one man, knowingly, though he does it passively, by looking on, suffers another to purchase and expend money on land, under an erroneous opinion of title, without making known his own claim, shall not afterwards be permitted to exercise his legal right against such person. It would be an act of fraud and injustice, and his conscience is bound by this equitable estoppel.' p.354.

While this doctrine originated in courts of equity, it has been applied in cases arising in courts of law.

In The King v. The Inhabitants of Butterton (6 Durnf. & E. 554), Mr. Justice Lawrence said: 'I remember a case some years ago in which Lord Mansfield would not suffer a man to recover, even in ejectment, where he had stood by and seen the defendant build on his land.'

In 2 Smith, Lead. Cas., pp. 730-740 (7th Am. ed., with notes by Hare and Wallace), the authorities are carefully examined. It is there said that there has been an increasing disposition to apply the doctrine of equitable estoppel in courts of law.

Again (pp. 733, 734): 'The question presented in these and other cases, which involve the operation of equitable estoppels on real estate, is both difficult and important. It is undoubtedly true that the title to land cannot be bound by an oral agreement, or passed by matter in pais, without an apparent violation of those provisions of the Statute of Frauds which require a writing when the realty is involved. But it is equally well settled that equity will not allow the statute to be used as a means of effecting the fraud which it was designed to prevent, and will withdraw every case not within its spirit from the rigor of its letter, if it be possible to do so without violating the general policy of the act, and giving rise to the uncertainty which it was meant to obviate. It is well established that an estate in land may be virtually transferred from one man to another without a writing, by a verbal sale accompanied by actual possession, or by the failure of the owner to give notice of his title to the purchaser under circumstances where the omission operates as a fraud; and although the title does not pass under these circumstances, a conveyance will be decreed by a court of equity. It would, therefore, seem to late to contend that the title to real estate cannot be passed by matter in pais, without disregarding the Statute of Frauds; and the only room for dispute is as to the forum in which relief must be sought. The remedy in such cases lay originally in an application to chancery, and no redress could be had [except] in a merely legal tribunal, except under rare and exceptional circumstances. But the common law has been enlarged and enriched under the principles and maxims of equity, which are constantly applied at the present day in this country, and even in England, for the relief of grantees, the protection of mortgagors, and the benefit of purchasers, by a wise adaptation of ancient forms to the more liberal spirit of modern times. The doctrine of equitable estoppel is, as its name indicates, chiefly, if not wholly, derived from courts of equity, and as these courts apply it to any species of property, there would seem no reason why its application should be restricted in courts of law. Protection against fraud is equally necessary, whatever may be the nature of the interest at stake; and there is nothing in the nature of real estate to exclude those wise and salutary principles, which are now adopted without scruple in both jurisdictions, in the case of personalty. And whatever may be the wisdom of the change, through which the law has encroached on the jurisdiction of chancery, it has now gone too far to be confined within any limits short of the whole field of jurisprudence. This view is maintained by the main current of decisions.'

This question in a different form was examined in Dickerson v. Colgrove, 100 U.S. 578. That was an action of ejectment, and the defence, based upon equitable estoppel, was adjudged to be sufficient. We there held that the action involved both the right of possession and the right of property, and that as the facts developed showed that the plaintiff was not in equity and conscience entitled to disturb the possession of the defendants, there was no reason why the latter might not, under the circumstances disclosed, rely upon the doctrine of equitable estoppel to protect their possession.

Applying these principles to the case in hand, it is clear, upon the facts recited in the first bill of exceptions, and which the jury found to have been established, that the plaintiff is estopped from disturbing the possession of the defendants. He knew, as we have seen, that the defendants claimed the property under a sale made in an equity suit to which he was an original party. The sale may have been a nullity, and it may be that he could have repudiated it as a valid transfer of his right of property. Instead of pursuing that course, he, with a knowledge of all the facts, appeared before the anditor and disputed the right of certain creditors to be paid out of the fund which had been raised by the sale of his property. He forbore to raise any question whatever as to the validity of the sale, and by his conduct indicated his purpose not to make any issue in reference to the proceedings in the equity suit. Knowing that the defendants' claim to the premises rested upon that sale, he remained silent while the latter expended large sums in their improvement, and in effect, disclaimed title in himself. He was silent when good faith required him to put the purchaser on guard. He should not now be heard to say that that is not true which his conduct unmistakably declared was true and upon the faith of which others acted.

The evidence upon this point was properly admitted, and operated to defeat the action independently of the question whether the sale by Carrington, the trustee, and its confirmation by the court, was, itself, a valid, binding transfer of the title to the purchaser.

What has been said renders it unnecessary to consider the questions of law presented in the remaining bills of exceptions.

Judgment affirmed.

title: Kirk v. Hamilton/Opinion of the Court


text: Talk:Kirk v. Hamilton/Opinion of the Court


text:
Gay v. Alter

APPEAL from the Circuit Court of the United States for the District of Louisiana.

The controversy in this case related to the validity of certain judgments, and depended mainly upon the facts disclosed by the evidence. In one case the judgment creditor had agreed to accept $8,000 for a judgment of $11,000, and received $3,000 in cash on this agreement, and informally assigned the judgment to a friend of the judgment debtor for his benefit. The subsequent payments not being made as agreed, the judgment was assigned to Gay, who had notice of the transaction, and he sought to recover the whole amount. Alter, the purchaser of the property affected by the judgment, contended that it could only stand for the reduced amount, subject to the payment of $3,000, which would leave only $5,000 due. Gay claimed that, as the payments agreed to be made were not all made, the agreement was forfeited. The court below decreed in favor of Alter. Gay thereupon appealed here.

Mr. H. J. Leovy for the appellant.

Mr. George L. Bright, contra.

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

title: Gay v. Alter


text: Talk:Gay v. Alter

title: Talk:Gay v. Alter


text:
Gay v. Alter/Opinion of the Court

It is contended by the appellant that the contract whereby Ames agreed to sell his judgment for $8,000, was a synallagmatic contract, which he had a right to rescind if the agreement of the other party as-to the payment of the purchase-money was not performed. This is undoubtedly the law of Louisiana; but that law also requires that, if a party to a contract wishes to rescind it for such a cause, he must return to the other party what he has received, so as to put him in the same situation he was in before. In the present case, it is not to be supposed that it was Ames's duty to return the $3,000 which he received, because it was really received from Aymar, the debtor. But he was at least bound to credit that amount on the judgment, which would have been a substantial return; and in that case he would have a right to maintain his judgment for the whole balance, and Gay, his vendee, would have had the same right. But he did not do this: nor has Gay done it; but, on the contrary, the latter has endeavored to collect the whole judgment without any deduction whatever. This conduct is totally inconsistent with the position taken. It shows, not a rescission of the contract, and a return or credit of the amount paid thereon, but a determination to regard the transaction as altogether void and the whole judgment still due.

We think that this position cannot be maintained.

Decree affirmed.

title: Gay v. Alter/Opinion of the Court


text: Talk:Gay v. Alter/Opinion of the Court

title: Talk:Gay v. Alter/Opinion of the Court


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Page:A book of the Cevennes (-1907-).djvu/260

 the Spirit to all. Then they marched in a solid body against the soldiers, shouting Tartara! Some were armed with guns, most carried large stones. They fought valiantly, but their ranks were broken; three hundred were left dead on the field, fifty who were wounded were taken to Privas, and those who recovered were hung.

The prophetic inspiration was really nothing more than an epidemic malady, such as is found among the North American Indians, the tribes in Siberia, and such as broke out among the early Quakers and Wesleyans. It is a nervous disorder, as natural as chicken-pox, though not so common. Roman Catholic nuns have it, so had the pagan prophetesses of old.

Some Calvinist women professed to have received the gift of shedding tears of blood, and showed the crimson streaks washing their cheeks. This was by no means necessarily a fraud. Roman Catholic ecstatics have had the same, and the stigmata as well.

Fléchier, a contemporary, thus describes the ecstasy of Isabeau Charras, one of the principal prophetesses, and not to be confounded with la belle Isabeau. He gives it from the relation of an ecclesiastic who with some friends entered her cottage to see what really took place.


text: Menasha v. Hazard

title: Menasha v. Hazard


text: Talk:Menasha v. Hazard

title: Talk:Menasha v. Hazard


text:
Menasha v. Hazard/Opinion of the Court

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

This was an action by Rowland G. Hazard against the town of Menasha and the city of Menasha, upon interest coupons detached from bonds of the town of Menasha, payable to the Wisconsin Central Railroad Company or bearer. On the trial of the issues it appeared:

I. That the Portage, Winnebago, and Superior Railroad Company made to said town the following proposition:--

'The Portgage, Winnebago, and Superior Railroad Company of the State of Wisconsin, a corporation of said State authorized to construct and operate a railroad with one or more tracks, from Doty's Island, situated in the towns of Neenah and Menasha, in the county of Winnebago, northwesterly, via the towns of Weyauwega, Waupaca, Amherst, and Stevens Point, to Bayfield, and thence to Superior on Lake Superior, and requiring the aid of the said towns of Menasha and Neenah, each in the sum of $50,000, in the construction of that portion of road which lies between said Doty's Island and the Wolf River, and being thereto authorized by chapter 126 of the General Laws of 1869, entitled 'An Act to authorize certain counties, towns, cities, and villages to aid in the construction of the land-grant railroad from Portage City and from Coty's Island to Lake Superior,' submits to the said town of Menasha the following proposition, to wit:-- 'First, That in consideration of the construction by said company of a single-track railroad from block 3 in Jones's Plat in the said town of Neenah, Doty's Island, to Wolf River, and of five hundred full paid shares of the capital stock of said company of $100 each, the said town of Menasha shall pay to said company or its assigns the sum of $50,000, at the time and in the manner hereinafter provided.

'Second, That said town of Menasha shall secure to this company the payment of the said sum of $50,000 in its corporate bonds to be issued in that amount, to run twenty years from the date of issue, with interest thereon at the rate of seven per cent, payable semi-annually, principal and interest payable in gold at the National Bank of Commerce of the city of New York; that the said bonds, besides the usual conditions, shall provide that the same and the coupons or interest warrants thereon shall, when due, be receivable for taxes to be collected in said town; and that there shall be annually levied upon the property in said town a tax sufficient to pay the interest upon said bonds, and to raise a sinking fund to pay the principal thereof when the same shall become due, and payable in the manner provided by said chapter 126 of the General Laws of 1869; and shall also further provide that said bonds shall be valid only when it is thereon duly certified that the conditions upon which they were voted, issued, and deposited by said town have been performed. The said bonds and coupon or interest warrants attached shall be engraved or printed in the usual form and style, and in such denominations (not less than one nor more than ten hundred dollars) as shall be approved by this company, and the cost thereof shall be paid by the treasurer, on the order of the chairman of said town.

'Third, That the proper officers of said town shall issue said bonds as required by law, and on notice being received by the chairman of the board of supervisors of said town from the said National Bank of Commerce of New York that this company has deposited therein to the credit of said town the said five hundred full paid shares of its capital stock, he shall deposit, or cause to be deposited, in said bank all of the said bonds, with instructions to said bank or its officers to hold the same on deposit in trust for said town, until such time as there shall be filed in said bank a properly authenticated certificate signed by the chief officer of this company and the chairman of the board of supervisors of said town, or the secretary of state of this State, that the iron has been laid upon the track of road, and cars have been run over the same through from the depot on Doty's Island, or in said town, to Wolf River, when the said bonds shall become the absolute property of and be held by said bank, subject to the order of this company or its assigns, and which certificate shall authorize and require the president of said bank to certify upon the back of each of said bonds that the conditions upon which the said bonds were voted, issued, and deposited by said town have been performed; and in case this company fail to comply with the said conditions the said bonds shall be returned to said town on demand of the authorities thereof.

'Fourth, That, in consideration of the acceptance of this proposition and the fulfilment of the terms thereof by the said town, this company will, without unnecessary delay, issue for deposit to the credit of said town in the said National Bank of Commerce of New York five hundred full paid shares (of $100 each) of its capital stock, which is to be delivered to said town at the time of the delivery of said bonds to this company, and that on the acceptance of this proposition, and as soon as the right of way and depot grounds have been secured by this company, this company will commence the construction of the track of said portion of its road, and will have the same completed and the iron laid thereon and cars run over the same within one year from the time the bonds of said town have been issued and deposited in said bank as aforesaid: Provided, however, that the like propositions submitted by this company to the town of Neenah shall be accepted and its conditions fulfilled by said town.

'Fifth, In the event the said town of Neenah fail to accept and fulfil the terms of said proposition so as aforesaid submitted to it, this company further proposes to said town of Menasha that if the required additional sum of $50,000 shall be furnished to this company by individual subscription to stock in like amount, and satisfactorily secured to be paid, the depot of this company shall be located and its road constructed therefrom at such place in said town and on such route as may be agreed upon between this company and the authorities of said town, and under the foregoing proposition as hereby qualified.

'In witness whereof, the Portage, Winnebago, and Superior Railroad Company has caused these presents to be signed by its president and sealed with its seal this tenth day of May, A.D. 1870.

'GEO. REED,

President P., W., & S. R. R. Co. II. That on the 4th of June, 1870, an election was held in said town as provided in said act, and a majority of the votes cast in favor of the railroad proposition.

III. That said proposition was published and voted upon as required by said act, except the third paragraph, which was published in the words following:--

'Third, That the proper officers of said town shall issue said bonds as required by law, and, on notice being received by the chairman of the board of supervisors of said town from the said National Bank of Commerce of New York that this company has deposited therein to the credit of said town the said five hundred full paid shares of its capital stock, he shall deposit, or cause to be deposited, in said band all of the said bonds, with instructions to said bank or its officers to hold the same on deposit in trust for said town until such time as there shall be filed in said bank a properly authenticated certificate signed by the chief officers of this company and the board of supervisors of said town, or the secretary of state of this State, that the iron has been laid upon the track of road and cars have been run over the same through from the depot, on Doty's Island, or in said town; to the Wolf River, when the said bonds shall become the absolute property of and be held by said bank, subject to the order of this company or its assigns, and which certificate shall authorize and require the president of said bank to certify upon the back of each of said bonds that the conditions upon which the said bonds were voted, issued, and deposited by said town have been performed; and in case this company fail to comply with the said conditions, the said bonds shall be returned to said town on demand of the authorities thereof.'

IV. That the Wisconsin Central Railroad Company deposited with said bank for said town five hundred shares of its common capital stock.

V. That on or about the 1st of June, 1871, the chairman of the board of supervisors of said town, with the town clerk, made fifty coupon bonds of said town; that thereupon a suit was instituted in the Circuit Court of the county of Winnebago by one Lawson, a tax-payer in said town, on behalf of himself and all other tax-payers, to enjoin the issue of said bonds. An injunction was allowed, and served upon the officers of said town, restraining the issue of said particular fifty bonds, but no others under said act; which injunction is still in force. Upon service of such injunction, such issue of bonds was burned.

VI. That on the twenty-fifth day of October, 1871, said chairman and said clerk executed and delivered to the National Bank of Commerce a series of fifty coupon bonds of said town, of which the following is a copy:--

'$1,000.] TOWN OF MENASHA. [$1,000.

'No. 16.] STATE OF WISCONSIN. [No. 16.

'The town of Menasha, in the county of Winnebago and State of Wisconsin, acknowledges itself indebted in the sum of $1,000 lawful coin of the United States of America, which sum the said town of Menasha promises to pay to the Wisconsin Central Railroad Company, or to the bearer hereof, at the National Bank of Commerce in the city of New York, in twenty years from the first day of June, 1871, with interest at the rate of seven per centum, payable semi-annually at said bank, upon the presentation and delivery of the several coupons hereto annexed as they respectively become due, the principal and interest payable in gold, and to the payment of which, in the manner aforesaid, the faith and revenues of said town are hereby irrevocably pledged.

'This bond and the coupons or interest warrants thereon shall, when due, be receivable for taxes to be collected in said town, and there shall be annually levied upon the property in said town a tax sufficient to pay the interest upon this bond and to raise a sinking fund to pay the principal when the same shall become due and payable in the manner provided by chapter 126 of the General Laws of 1869 of said State, and this bond shall be valid only when it is thereon duly certified that it has been duly certified that the conditions upon which it was voted, issued, and deposited by said town have been performed.

'This bond is one of a series amounting in the aggregate to $50,000, and is issued in pursuance of a vote of the legal voters of said town on the fourth day of June, 1870, under and by virtue of an act of the legislature of the State of Wisconsin, entitled 'An Act to authorize certain counties, towns, cities, and villages to aid in the construction of the land-grant railroad from Portage City and from Doty's Island to Lake Superior,' approved March 9, 1869, and in pursuance of an act of the legislature of said State, approved Feb. 4, A.D. 1871, entitled 'An Act to change the name of the Portage, Winnebago, and Superior Railroad Company,' and of an act of the same legislature, approved March 1, A.D. 1871, amendatory of said chapter 126 of the General Laws of 1869 of Wisconsin.

'In witness whereof, the chairman of the board of supervisors and town clerk of said town have hereunto set their hands, this first day of June, 1871.

'F. SCHNELLEN,

'Chairman of the Board of Supervisors.

'Attest:

{TOWN OF MENASHA, WISCONSIN, WINNEBAGO COUNTY, SEAL.}

'D. J. RYAN, Clerk.'

To which bonds interest coupons in form like those sued on were annexed.

VII. That afterwards the chairman of the board of supervisors of said town and the president of the Wisconsin Central Railroad Company signed and delivered to said bank a joint certificate, which was afterwards authenticated by notarial certificates, of which the following is a copy:--

'To the President of the National Bank of Commerce of New York:

'The undersigned, Gardner Colby, president of the Wisconsin Central Railroad Company, formerly the Portage, Winnebago, and Superior Railroad, and Fr. Schnellen, chairman of the board of supervisors of the town of Menasha, Winnebago County, Wisconsin, do hereby certify that the iron has been laid on the track of road of said company from block No. 3 in Jones's plat, in the town of Neenah, Doty Island, to Wolf River, and that the cars have been run over the same daily for more than two weeks past from the depot on Doty's Island to said Wolf River, and that therefore, according to the terms of the proposition (a copy of which is hereto annexed), the said company are entitled to the transfer of the bonds of said town deposited with you.

'Dated at Menasha, Oct. 25, 1871.

'WISCONSIN CENTRAL R. R. CO.,

'By GARDNER COLBY, President.

[SEAL.]

'FREDERICK SCHNEILLEN,

'Chairman of the Town of Menasha.

'STATE OF WISCONSIN,

'County of Waupaca, Town of Weyauwega, ss:

'I, Albert V. Balch, a commissioner of deeds for the State of New York, residing in the town of Weyauwega aforesaid, do hereby certify that Frederick Schnellen is the chairman of the board of supervisors of the town of Menasha, in the State of Wisconsin, and that his signature to the foregoing certificate is in his own hand and is genuine, as he has this day before me acknowledged.

'In testimony whereof, In have signed my name and affixed my official seal this twenty-fourth day of February, A.D. 1872.

[SEAL.]

'ALBERT V. BALCH,

'Commissioner of Deeds for the State of New York.

'COMMONWEALTH OF MASSACHUSETTS,

'County of Suffolk, City of Boston, ss:

'On this twenty-ninth day of February, A.D. 1872, the above-named Gardner Colby, who is personally known to me to be the president of the said railroad company, made oath that the above-written certificate by him signed is true, and that the seal affixed thereto is the seal of said company and was so affixed by its authority.

'Witness my hand and official seal, at the city of Boston, the day and year aforesaid.

[SEAL.]

'SAM'L S.C.URTIS, Notary Public.'

VIII. That on the fifteenth day of March, 1872, the said bank sent said certificate of stock to the chairman of the board of supervisors of said town, and on the same day delivered said bonds to said Wisconsin Central Railroad Company.

IX. That on the seventeenth day of April, 1872, the president of the said bank affixed to said bonds his certificate, in the words following:--

'To the President of the National Bank of Commerce of New York:

'The undersigned, Gardner Colby, president of the Wisconsin Central Railroad Company, formerly the Portage, Winnebago, and Superior Railroad, and Fr. Schnellen, chairman of the board of supervisors of the town of Menasha, Winnebago County, Wisconsin, do hereby certify that the iron has been laid on the track of road of said company from block No. 3, in Jones's plat, in the town of Neenah, Doty's Island, to Wolf River, and that the cars have been run over the same daily for more than two weeks past from the depot on Doty's Island to said Wolf River. And that therefore, according to the terms of the proposition (a copy of which is hereto annexed), the said company are entitled to the transfer of the bonds of said town deposited with you.

'Dated at Menasha, Oct. 25, 1871.

[SEAL.]

'WISCONSIN CENTRAL R. R. CO.,

'By GARDNER COLBY, President.

(Signed) 'FREDERICK SCHNELLEN,

'Chairman of the Town of Menasha.

'STATE OF WISCONSIN,

'County of Waupaca, Town of Weyauwega, ss:

'I, Albert V. Balch, a commissioner of deeds for the State of New York, residing in the town of Weyauwega aforesaid, do hereby certify that Frederick Schnellen is the chairman of the board of supervisors of the town of Menasha, in the State of Wisconsin, and that his signature to the foregoing certificate is in his own hand and is genuine, as he has this day before me acknowledged.

'In testimony whereof, I have signed my name and affixed my official seal this twenty-fourth day of February, A.D. 1872.

[SEAL.]

'ALBERT V. BALCH,

'Commissioner of Deeds for the State of New York.

'COMMONWEALTH OF MASSACHUSETTS,

'County of Suffolk, City of Boston, ss:

'On this twenty-ninth day of February, A.D. 1872, the above-named Gardner Colby, who is personally known to me, and known to me to be the president of the said railroad company, made oath that the above-written certificate by him signed is true, and that the seal affixed thereto is the seal of said company, and was so affixed by its authority.

'Witness my hand and official seal, at the city of Boston, the day and year aforesaid.

[SEAL.]

'SAM'L S.C.URTIS, Notary Public.

'I hereby certify that I have received certificates of which the above are copies, which certificates are on file in this bank.

'April 17, 1872.

'ROBERT LENNOX KENNEDY,

'President of the National Bank of Commerce in New York.'

X. That in November, 1872, the said town levied a tax to pay the interest upon said bonds, and collected about two-thirds of it, and paid it over to the company, when the further collection of said tax was enjoined in the suit of said Lawson.

XI. That Lake Butte des Morts, a narrow lake about two thousand feet wide, lies between said block 3 in Jones's plat and the Wolf River, across which the route of said Wisconsin Central Railroad runs; that said company, instead of constructing a bridge of its own for its road across said lake, made an agreement with the Chicage and Northwestern Railway Company to cross said lake upon that company's bridge, of which agreement the following is a copy:--

'This agreement, made and entered into this first day of May, A.D. 1871, by and between the Chicago and Northwestern Railway Company, party of the first part, and the Wisconsin Central Railroad Company, party of the second part, witnesseth:

'The party of the first part, for and in consideration of the covenants and agreements herein contained on the part of the party of the second part, doth hereby covenant and agree to and with the said party of the second part, that the said party of the second part, its successors and assigns, shall and may have the use of and right to operate for railroad purposes, in common with the said party of the first part, the bridge across Lake Butte des Morts, near Doty's Island, in Wisconsin, and the right of way and use of ties across its land on the north side of said lake for a sufficient distance to enable said second party to make its connections therewith; also, the right of way and use of its ties from the south end of the bridge, including the bridge across the river to its depot grounds at Neenah Station, in Wisconsin, subject, however, to the regulations and stipulations hereinafter contained.

'The said party of the second part, in consideration of the premises, hereby covenants and agrees to lay down and maintain a track, with the necessary switches and frogs, at its own expense and for its own use, from the point of intersection of its own right of way with that of the party of the first part through the whole line which it may use in common with the said party of the first part, and to pay to the said party of the first part monthly, at the end of each and every month during the continuance of this agreement, one-half of the expense of maintaining and keeping in repair the line so used in common as aforesaid (including the bridges, roadbed, and ties, as well as the expense of the necessary signal-men, except, however, the iron, which each of said parties shall furnish and maintain for its own use), a statement of which expenses of maintaining said line, other than maintenance of the rails, shall be furnished to said second party by said party of the first part monthly, at the end of each and every month during the continuance hereof.

'It is further mutually covenanted and agreed by and between the parties hereto that the payment of said one-half of the aforesaid expenses by said party of the second part shall be taken and accepted by the said first party in lien of and as rental for the use of the line aforesaid and in full satisfaction thereof, and that said line, for the distance aforesaid, shall be used in common by the said parties, and that a signal shall be erected and maintained at joint expense, and no train of either company shall come upon the said common track until a signal for that purpose has been given; and that working trains of either company shall give way to all other trains, and freight trains to passenger trains; but if trains of both companies of the same class shall come at the same time, the train of the party of the first part shall have preference, and the management, repairs, and maintenance of said common track and line shall be and remain in charge of said first party.

'It is further mutually agreed that this agreement shall continue and remain in force for the period of twenty years hereafter next ensuing, but either party shall have the right to terminate the same upon giving to the party one year's notice in writing of its intention to terminate the same, but such notice shall not be given earlier than the first day of July, 1876.

'In witness whereof, the said party of the first part has caused these presents to be subscribed by its president or vice-president, attested by its secretary or assistant secretary, and the said party of the second part has caused these presents to be subscribed by its president and secretary, the day and year first above written.

{C. & N. W. R'Y CO. SEAL.}

'CHICAGO AND NORTHWESTERN RAILWAY CO.,

'By M. L. SYKES, Jr., Vice-President.

'Attest:

'A. L. PRITCHARD, Secretary.

{WIS.C.ENT. R. R. CO. SEAL.}

'WISCONSIN CENTRAL RAILROAD CO.,

'By GEO. REED, President.

'Attest:

'CURTIS REED, Secretary.'

XII. That said Wisconsin Central Railroad Company, in running across said bridge and coming to said block 3, runs on the line of the Chicage and Northwestern Railway Company about one mile; that except that distance the said Wisconsin block 3 to the Wolf. River. Central Railroad Company has constructed its road from said block 3 to the Wolf. River.

XIII. That on Nov. 23, 1870, the said Portage, Winnebago, and Superior Railroad Company voluntarily consolidated its franchise and capital stock with the Portage, Stevens Point, and Superior Railroad Company, a corporation incorporated by and under chapter 369 of the Laws of Wisconsin, 1870, under an agreement of consolidation filed in the office of the secretary of state of the State of Wisconsin, Dec. 5, 1870.

XIV. That on Feb. 4, 1871, the name of the Portage, Winnebago, and Superior Railroad Company, was changed to the Wisconsin Central Railroad Company, under the provisions of chapter 27 of Private and Local Laws of Wisconsin, 1871. That by chapter 31, General Laws of Wisconsin, 1871, approved March 1, 1871, the said chapter 126 of the General Laws of 1869 was amended as follows:--

'SECT. 2. All bonds and other securities which have heretofore been voted by any county, town, incorporated city, or village under the provisions of said chapter 126 of the General Laws of 1869 to said railroad, under its name of Portage, Winnebago, and Superior Railroad Company, shall be issued and delivered to said company by and under its said name of Wisconsin Central Railroad Company; and such bonds or other securities so issued and delivered shall have in all courts and places and with all parties the same force and effect as though the name of said company had not been changed and the same had been issued and delivered to it under its name of Portage, Winnebago, and Superior Railroad Company.'

XV. That on July 1, 1871, the said company voluntarily consolidated its franchises and capital stock with the Manitowoc and Minnesota Railroad Company, a corporation incorporated and extended under and by virtue of chapter 342 of the Private and Local Laws of Wisconsin for 1868, chapters 255 and 302 of the Private and Local Laws for 1869, and chapter 476 of the Private and Local Laws for the year 1871, by an agreement thereto filed in the office of the secretary of state of the State of Wisconsin, July 10, 1871.

XVI. That by chapter 127 of the General Laws of Wisconsin for 1874 the city of Menasha was incorporated and made capable of being sued for the indebtedness of said town of Menasha, and liable to pay three-fourths of any recovery.

XVII. That the plaintiff bought the bonds of which the coupons are in suit from Gardner Colby, president of the Wisconsin Central Railroad Company, for a valuable consideration, without notice, other than appears on the face of the bonds and certificates printed on them, as follows: Bond No. 16, on Dec. 11, 1873; bonds Nos. 12, 13, 14, 15, 18, 19, 37, 38, and 39, on Sept. 12, 1874.

The judges were divided in opinion upon the following questions:--

First, Whether the coupons executed and delivered, and there being upon the bonds to which they were annexed such certificates as hereinbefore set forth and produced upon the trial by the plaintiff, created a liability against said town in favor of the plaintiff under the pleadings and proofs.

Second, Whether the court should have instructed the jury that the construction of such railroad by the Wisconsin Central Railroad Company without constructing the same across Lake Butte des Morts, but securing the right to cross said lake on the bridge of the Chicago and Northwestern Railway Company under the contract above set forth, was not a performance of the conditions of the proposition to construct a railroad from block 3, in Jones's plat, on Doty's Island, to Wolf River.

The court submitted to the jury these two questions:--

First, As to the fact, bearing upon the certificate which the text of the bond required, whether, under all the facts presented, there has been a substantial compliance with the terms of the proposition in the terms of the bond.

Second, Whether there has been a substantial compliance on the part of the railroad company as to the conditions of the construction of the road between Doty's Island and Wolf Creek.

And as to the latter question instructed the jury as follows:

Now, if there is nothing on the bond to render it invalid, the only other question that can arise in the case is, whether the consideration for which this bond was given has failed so as to render it inoperative in the hands of the plaintiff. That leads to the other part of the consideration; viz., was the road constructed from block 3 of Jones's plat, in the town of Neenah, on Doty's Island, to the Wolf River. That had to be done, undoubtedly, before these bonds were to be valid,-before there was a sufficient consideration to render them avaiable to the plaintiff in the view that we have taken of the other part of the case.

Third, Whether a delivery of the stock of the Wisconsin Central Railroad Company, after consolidation with the Portage, Winnebago, and Superior Railroad Company and with the Manitowoc and Minnesota Railroad Company, as hereinbefore set forth, was a compliance with the terms of such proposition.

Fourth, Whether said town was authorized to issue its bonds to the Wisconsin Central Railroad Company after the several consolidations hereinbefore set forth.

Judgment was rendered in favor of the plaintiff against the town for the amount of the coupons sued on, and interest and costs. The town then removed the case to this court.

Mr. E. Mariner for the plaintiff in error.

Mr. Edwin H. Abbot, contra.

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

The first question certified in this case is answered in the affirmative.

We think that the certificate on the back of the bonds is a substantial compliance with the condition on their face, and the proposition of the railroad company accepted by the town. The condition as expressed in the bonds is in the exact language of the second article of the proposition, and implies that they shall be considered as fully executed, and that they may be put on the market as valid commercial paper, 'when it is thereon duly certified that the conditions upon which they were voted, issued, and deposited by said town have been performed.' To ascertain what 'duly' means in this connection it is necessary to look to the other parts of the proposition, and there we find in article 3 that the bonds, when issued by the proper officers of the town, were to be deposited with the National Bank of Commerce in New York, 'in trust for said town, until such time as there shall be filed in said bank a properly authenticated certificate, signed by the chief officer of this company and the chairman of the board of supervisors of said town, or the secretary of state of this State, that the iron has been laid upon the track of road and cars run over the same, through from the depot on Doty's Island, or in said town to Wolf River, when the said bonds shall become the absolute property of and be held by said bank, subject to the order of this company, or its assigns, and which certificate shall authorize and require the president of said bank to certify upon the back of each of said bonds that the conditions upon which the said bonds were voted, issued, and deposited by said town have been performed.' Taken as a whole, the proposition and the condition on the face of the bond mean that the bonds should become the valid and subsisting obligations of the town when the president of the National Bank of Commerce had certified thereon that the president of the railroad company and the chairman of the board of supervisors of the town had certified to him that the iron had been laid on the track of the road and the cars run over the same from the depot on Doty's Island, or in said town, to Wolf River. This certificate was on the bonds when they were bought by the defendant in error on the market. In legal effect it was the same as if it contained the words, 'that the conditions upon which they [the bonds] were voted, issued, and deposited by said town had been performed;' because by the very terms of the proposition the certificate of the proper officers was to be conclusive evidence to the president of the bank of that fact, and not only authorize, but require, him to make the indorsement contemplated. When, therefore, he certified that he had received, and put on file in his bank, certificates from the proper parties, such as were required as the basis of his action, he did certify to the facts which the proposition said they should conclusively prove. His statement of what they proved was unimportant. The proposition settled that.

The fact that the certificate furnished the bank is signed in the name of the railroad company by the president is not a valid objection. It was signed by the president, and that is all the proposition required.

The third and fourth questions are also answered in the affirmative.

Before the subscription and bonds were voted, the Portage, Winnebago, and Superior Company was authorized to consolidate with other companies 'which by law may be authorized to construct connecting lines of road or make such consolidation.' Act approved March 10, and published April 6, 1870. The Portage, Stevens Point, and Superior Railroad was incorporated March 16, 1870, with express authority to consolidate with the Portage, Winnebago, and Superior Company. The Wisconsin Central Railroad Company is, in fact, the name of Portage, Winnebago, and Superior Company as changed by statute, Feb. 4, 1871. The organization of the company was the same after as before this change. The Manitowoc and Minnesota Railroad Company was authorized to enter into consolidation agreements by the act of March 24, 1871, being chapter 476 of Private and Local Laws, Wis., 1871, and the consolidation with the company was actually effected July 1, 1871. The vote for the bonds was taken June 4, 1870, and the bonds were issued and delivered to the bank Oct. 25, 1871. Upon this state of facts we think this case is brought directly within the principles settled in County of Scotland v. Thomas (94 U.S. 682) and Wilson v. Salamanca, 99 id. 499. The authority of the Wisconsin Central Company was to consolidate with any other company that might at any time have the power to enter into such an arrangement. It was not confined to such companies as then had the power.

These answers dispose of the case, and make it unnecessary to consider the second question certified. When the bonds were 'duly certified' and delivered to the railroad company by the bank, they became, under the agreement of the parties, valid instruments, completely executed in form, and in a condition to be put on the market as commercial paper. Having on them the necessary certificate, the purchaser need not inquire whether the facts were as certified. Anthony v. County of Jasper, 101 U.S. 693. With the certificate indorsed, the bonds were in legal effect the same as if they had been issued by the proper officers under full authority without the condition which appeared on their face. Under these circumstances, the condition did not destroy their negotiability.

Judgment affirmed.

title: Menasha v. Hazard/Opinion of the Court


text: Talk:Menasha v. Hazard/Opinion of the Court


text:
Parks v. Booth

APPEAL from the Circuit Court of the United States for the Northern District of Ohio.

This was a suit by Jonathan L. Booth, against George Parks, Grant B. Turner, William A. Taylor, and James Vaughan, partners, under the name and style of Turner, Parks, & Co., for an alleged infringement of the complainant's reissued letters-patent, for an improvement in grain-separators.

The letters were a second reissue. The original letters, No. 25,484, were granted to Booth Sept. 20, 1859; reissued Sept. 25, 1860, N0. 1043; and again reissued Nov. 29, 1864, No. 1826.

The court rendered a decree May 9, 1874, adjudging that the letters were valid, that the defendants had infringed them, and that the complainant recover the profits, gains, and advantages which the defendants received, or which accrued to them since Nov. 29, 1864, by the manufacture, use, and sale of the improvements described and secured by the reissued letters, and also such damages, if any, in addition to profits as he sustained by reason of said infringement. The case was referred to a Master to ascertain the damages and profits, who filed his report Nov. 24, 1875, awarding to the complainant, on account of profits, $9,944.09; and as damages, being expenses of conducting the suit, $627.20; and compensation for the complainant's time, $420; making in all, $10,991.29.

To this report the complainant and defendants filed exceptions, which were overruled, saving that made to the allowance for his time. The Master's report, as thus amended, was confirmed Dec. 15, 1876, and a final decree rendered against the defendants for the sum of $11,184.42, being the amount found due by the amended report, with interest thereon.

From that decree the defendants appealed.

The remaining facts are stated in the opinion of the court.

Mr. William Bakewell and Mr. T. B. Kerr for the appellants.

Mr. W. F. Cogswell, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Parks v. Booth


text: Talk:Parks v. Booth

title: Talk:Parks v. Booth


text:
Parks v. Booth/Opinion of the Court

Power to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries is expressly vested in Congress by the Constitution. Pursuant to the power there conferred, the enactment of Congress provides that the original jurisdiction of patent cases shall be exclusive in the circuit courts or the district courts exercising circuit court powers. Rev. Stat., sects. 629-711.

Provision is also made that a party, whose rights, secured by valid patent are invaded by infringement, may seek his remedy in an action at law or by a suit in equity, at his election. 5 Stat. 124; 16 id. 206; Rev. Stat., sect. 4920.

Federal courts vested with jurisdiction in such cases have power, in their discretion, to grant injunctions to prevent the violation of any right secured by a patent, as in other cases of equity cognizance.

Sufficient appears to show that a patent in due form was issued to the complainant, on the 20th of September, 1859, for a new and useful improvement in grain-separators, which consisted in the employment and use of a series of inclined screens and boxes, having a proper shake-motion communicated to them, in connection with a fan air-blast spout, the whole being arranged in a manner set forth in the specification.

Without entering much into details, it will suffice to say in this connection that the object of the improvement was to subject grain to a thorough screening operation. Machines were constructed under the patent and were put in operation at various places, but on the 25th of September of the next year it was surrendered and reissued, and on the 29th of November, four years later, it was surrendered a second time, when the patent in suit was issued to the complainant, which is a second reissue. Having removed the defects in the prior patents, the complainant alleges that he immediately put the machines on sale; that he has ever since been in possession of the right secured by the patent; and that he would have made large profits from the manufacture and sale of the same had he not been prevented from so doing by the respondents.

Two claims are made by the complainant. He charges that the respondents have largely infringed his exclusive right, and are still engaged in making and selling machines which are constructed in the same manner as the patented improvement, and accomplish the same object by the same mode of operation.

Service was made, and the respondents appeared and filed an answer. Their principal defences are as follows: 1. That the complainant is not the original and first inventor of the patented improvement. 2. That the alleged invention had been in public use and on sale for more than two years prior to the application by the complainant for a patent. 3. That the reissued patent described in the bill of complaint is not for the same invention as the original.

Proofs were taken, hearing had, and the Circuit Court entered a decree in favor of the complainant, and sent the cause to a master to compute the profits, gains, and advantages which the respondents have received, or which have arisen or accrued to them from the infringements of the said patent. Due report was made by the Master, to whose report certain exceptions were filed by the respondents. Exceptions were also filed by the complainant, but, inasmuch as he did not appeal, they will not be re-examined. Those filed by the respondents, which are still the subject of complaint, will receive due consideration.

Both parties appeared, and were heard in support of their respective exceptions, all of which were overruled by the Circuit Court except the fourth exception filed by the respondents. Matters of the kind being settled, the Circuit Court entered a final decree in favor of the complainant in the sum of $11,184.42, with costs of suit. Prompt appeal was taken by the respondents to this court, and since the cause was entered here they have filed the assignment of errors set forth in their brief.

All such matters as are deemed material to the several defences pleaded in the answers will be carefully considered, without entering into the details of the argumentative portion of the errors assigned. When reduced to specific propositions, the errors assigned may be stated as follows: 1. That the complainant is not the original and first inventor of the patented improvement. 2. That the supposed improvement was not the proper subject of a patent, because it did not involve any invention. 3. That the Circuit Court erred in finding that the respondents had infringed the reissued patent of the complainant. 4. That the Circuit Court erred in overruling the exceptions of the respondents to the Master's report. 5. That the Circuit Court erred in allowing damages to the complainant in addition to profits.

Redress for the infringement of a patent may be sought by a suit in equity as well as by an action at law, and the required allegations and proofs are substantially the same in one form of remedy as in the other. Neither damages nor profits can be recovered unless the complaining party alleges and proves that he or the person under whom he claims was the original and first inventor of the patented improvement, and that the same has been infringed by the party against whom the suit is brought. Both of those allegations must be proved to maintain the suit; but the patent, if introduced in evidence by the complaining party, affords him prima facie evidence that the patentee was the original and first inventor. That presumption, in the absence of any satisfactory proof to the contrary, is sufficient to entitle him to recover if he proves the alleged infringement.

Evidence to overcome that presumption may be introduced by the defending party in case due notice of such an intention is given to the party that instituted the suit, as required by the act of Congress. Rev. Stat., sect. 4920. Notices of the kind were given by the respondents in their answers, and the assignment of errors calls in question the decision of the Circuit Court in that regard, which is the first question presented for re-examination in the record.

Questions of the kind cannot well be decided without first ascertaining what the patented improvement is that is described in the first pleading of the complaining party; and that becomes necessary in this case, both in determining the issue of prior invention and the issue of infringement. Attempt having failed to show that the reissued patent is not for the same invention as the original, the question as to the nature of the improvement may be determined by the examination of the specification and drawings of the patent in suit.

Two claims are annexed to the specification. The first is the combination of the zigzag screens and boxes, as exhibited in the model and drawings, when the same have a lateral shake-motion, or one at right angles to the passage of the grain, in such a manner as to cause the grain to pass consecutively over and through them, and when arranged relatively to each other, to operate as set forth in the specification; the second is the series of zigzag screens and boxes with or without the troughs and having the lateral shake-motion in connection with the fan and spout, as set forth in the specification and exhibited in the drawings.

Plain as these claims are, it would not be difficult to define their meaning, even without resort to the details of what precedes in the specification. Speaking directly to the point, the patentee states that his invention consists in the employment or use of zigzag screens and boxes or passages having a proper lateral shake-motion communicated to them, and so arranged that the grain may pass consecutively over and through them and be subjected to a thorough screening operation. Also using in connection with the zigzag screens and boxes a revolving fan and spout, so arranged that the grain will be subjected to a sufficient blast for the separation from it of all light impurities. Reference is then made to the drawings, which show the frame of the machine and the manner in which the series of devices called inclined screens are secured by elastic pendants, as more fully explained in another part of the specification. Explanations follow which show that the screens may be formed of perforated zinc or other sheet-metal, placed alternately in reversed inclined positions, as is clearly seen in figure 2 of the drawings, each screen being placed at the top of what is termed a shallow box which forms the passage of the grain, the boxes extending the whole length of the screens in order to receive the grain and discharge the same on to the elevated end of the screen next below, through openings constructed for the purpose, in order that the screening operation may be continued through the whole series of screens.

Instructive and minute explanations are given in the specification of the entire construction and mode of operation of the apparatus and the several devices of which it is composed. Beyond all doubt, the explanations constitute a full compliance with requirements of the Patent Act in all respects, and are amply sufficient to show that the invention consists of the combination of elements or ingredients, the substance of which is embodied in the claims of the patent annexed to the specification. None of the elements or ingredients are claimed to be new, from which it follows that the invention consists entirely in the combination, and not a doubt is entertained that it is both new and useful.

Inventors of machines are required, before they secure a patent, to deliver a written description of the improvement, and of the manner and process of making, constructing, and using the same, in such full, clear, and exact terms as to enable one skilled in the art or science to make, construct, and use the invention. Drawings are also required in certain cases, and if the invention is such that it may be represented by a model, the applicant for a patent is required to furnish a model of the improvement. Requirements of the kind, in cases where they apply, may be regarded as conditions precedent to the right of the commissioner to grant such an application; but cases often arise where they or some of them do not apply.

An applicant for a patent, 'in case of a machine,' is required to explain the principle thereof, the best mode of applying the same, and to point out and distinctly claim the part, improvement, or combination which he claims as his invention; and the respondents contend that the patent of the complainant is invalid because the specification does not comply with that requirement. Rev. Stat., sect. 4888.

Inventions sometimes embrace an entire machine, and in such cases it is sufficient if it appears that the claim is coextensive with the patented improvement. Other inventions embrace only one or more parts of a machine, and in such cases the part or parts claimed must be specified and pointed out, so that constructors, other inventors, and the public may know what the invention is and what is withdrawn from general use.

Patented inventions are also made which embrace both a new device or element and a new combination of old devices embodied in the same apparatus or machine. Particular description of the improvement is required in such a case, as the property of the patentee consists not only in the new device, but also in the new combination.

Modern inventions very often consist merely of a new combination of old elements or devices, where nothing is or can be claimed except the new combination. Such a combination is sufficiently described, to constitute a compliance with the letter and spirit of the act of Congress, if the devices of which it is composed are specifically named, their mode of operation given, and the new and useful result to be accomplished is pointed out, so that those skilled in the art and the public may know the extent and nature of the claim and what the parts are which co-operate to do the work claimed for the invention.

Apply those rules to the specification in question, and it is clear that the proposition that it does not point out what is claimed as new is wholly unsupported and founded in mistake as to what is required by the Patent Act.

Suppose that is so, still it is insisted by the respondents that the patentee is not the original and first inventor of the improvement. Such a defence may be supported by proof that the invention was made by another before the patented improvement was made for the infringement of which the suit is brought. Authority is also given to the respondent in such a suit to show if he can that the improvement had been patented or described in some printed publication prior to the supposed invention set forth in the specification. Rev. Stat., sect. 4920. Defences of the kind are authorized by the act of Congress, and it may be remarked that it is not necessary to allege or prove, in order to sustain such a defence, that the prior patent or description was issued or given two years earlier, as the only requirement is that the patent or requirement is that the patent or supposed invention of the complainant.

Enough appears in this explanation to show that the two defences may be considered together, as it is settled law that if the patentee is not the original and first inventor of the improvement, or if it had been patented or described in any printed publication prior to the supposed invention, then the complainant cannot recover.

Notice in due form is given by the respondents in their answer and amended answer of twelve patents or specifications prior in date to the patent of the complainant, and which, as the respondents allege, supersede the invention described in the complainant's patent. Attempt will not be made to describe the invention set forth in each of these publications. Suffice it to say in that regard that all of them have been carefully examined to the extent of the means furnished by the transcript, and the court is of the opinion that no one of the documents is of a character to sustain the issue that the complainant is not the original and first inventor of the improvement.

Most or all of the inventions described in those publications bear more or less resemblance to that claimed by the complainant, and it may be that if it were allowable to test the validity of the invention in question by comparing the same with the whole as if embodied in a single exhibit, the evidence might be sufficient to support the views of the respondents in respect to the defence under consideration. Were that allowable it might well be suggested that the screen is found in one, the box in another, and the means to produce the lateral shake in a third, and so on to the end; but it would still be true that neither the same combination in its entirety nor the same mode of operation is described in any one of the patents or printed publications given in evidence.

Attempt is scarcely made in argument to show that any one of these exhibits embodies the entire invention of the complainant, but it is insisted that every feature of the patented improvement is found in some one or more of those publications. Suppose that is so, still it is clear that such a concession, if made, could not benefit the respondents, unless they can be allowed to extend the same comparison to two or more exhibits, as they do not contend that the entire invention is superseded by any one of their exhibits.

Where the thing patented is an entirety, consisting of a separate device or of a single combination of old elements incapable of division or separate use, the respondent cannot make good the defence in question by proving that a part of the entire invention is found in one prior patent, printed publication, or machine, and another part in another, and so on indefinitely, and from the whole or any given number expect the court to determine the issue of novelty adversely to the complainant. Bates v. Coe, 98 U.S. 31.

Common justice forbids such a defence, as it would work a virtual repeal of so much of the Patent Act as gives to inventors the right to a patent consisting of old elements, where the combination itself is new and produces a new and useful result. New elements in such a patent are not required, and if such a defence were allowed, not one patent of the kind in a thousand of modern date could be held valid. Nor is such a defence consistent with the regulations enacted by Congress in respect to the procedure in litigations in respect to patent-rights.

Infringers or persons sued as such may plead the general issue, and having given the required notice may prove that the patentee is not the original and first inventor of the improvement, or that it had been patented or described in some printed publication prior to the supposed invention, or that it had been in public use or on sale in this country for more than two years before the patentee applied for his patent. Corresponding proceedings may be had in equity, the denial of infringement and notice being alleged and given in the answer.

Defences of the kind, if the thing patented is an entirety, incapable of division or of separate use, must be addressed to the invention and not a part of it or to one or more claims of the patent, if less than the entire invention. More than one patent may be included in one suit, and more than one invention may be secured in the same patent, in which cases the several defences may be made to each patent in the suit and to each invention to which the charge of infringement relates.

Remarks already made, without more, are sufficient to show that the evidence introduced by the respondents to sustain the proposition that the complainant is not the original and first inventor of the improvement fails to establish that assignment of error, and that the defence must be overruled.

Much discussion of the next defence is not required, beyond what is necessary to state the true construction and meaning of the provision of the Patent Act which allows that defence.

Evidence of the want of novelty arises from the acts of others, the defence being that the invention was constructed by another before the patentee made his invention, the rule being that priority for right depends in the first place upon priority of construction. Inventors may, if they can, keep their inventions secret; but if they do not, and suffer the same to go into public use for a period exceeding what is allowed by the Patent Act, they forfeit their right to a patent. Hence the Patent Act allows the infringer to plead and prove that the invention of the patentee had been in public use or on sale in this country for more than two years before the inventor applied for a patent. No question of priority is open under that defence, nor will evidence sustain it that another had made or patented the invention two years before the application, without the knowledge of the patentee whose invention is in question.

Evidence of priority is admissible under the preceding defence. Unless inventors keep their inventions secret they are required to be vigilant in securing patents for their protection; and if they do not, and suffer the same to be in public use or on sale in this country for more than two years before they apply for a patent, they forfeit their right, and if an infringer alleges and proves that defence he cannot be held liable in a suit for infringement.

Subject to this explanation, it is clear that there is no proof in this case that the complainant was guilty of any laches in applying for a patent, or that his improvement ever went into public use or was on sale in this county before he applied for his patent.

Machines called grain-separators, it is admitted in argument, are manufactured and sold by the respondents, but they denied in their original answer that their separators were in all respects constructed in the same manner as the apparatus of the complainant, nor have they since entirely abandoned that proposition. Instead of that, they still insist that the reissued patent of the complainant differs from the original, but they substantially admit that the machines which they construct and sell do infringe the invention of the complainant, as described in the reissued patent, which is sufficient for the complainant, as the respondents have failed to make good their defence that the reissued patent is not for the same invention as the original. Irrespective on any admission, however, the court is satisfied, from a comparison of the two exhibits, that the charge of infringement is fully sustained.

Eighteen exceptions were filed by the respondents to the report of the Master, but it is not deemed necessary, in view of the state of the record, to give them a separate examination in this case. Infringement being proved, the complainant was entitled to an account of the profits made by the respondents in the unlawful use of the patented improvement, which consisted of the new combination described in the specification. Obviously it was a proper case for reference to a master, and it is not perceived that the general basis of his report exhibits any error to the prejudice of either party. Two special errors are discovered in addition to the one very properly corrected by the Circuit Court.

Costs were properly allowed, but the court is of the opinion that the complainant was not entitled to an allowance for any expenses beyond the taxable costs. Interest on the profits decreed to the complainant should not have been allowed, as was decided by this court many years ago, the better opinion being that profits in such a case are to be regarded in the light of unliquidated damages, which usually do not draw interest without the special order of the court. Silsby v. Foote, 20 How. 378, 386.

Expenses to the amount of $627.20, including counsel fees, were allowed to the complainant beyond the taxable costs, which, together with the entire interest allowed, must be deducted from the decree. From which it follows that the decree in favor of the complainant, instead of being $11,184.42, should be $9,992.09, without interest, but with costs of suit, as allowed in the decree of the Circuit Court; and the decree in modified so as to conform to that computation, but without any injunction, as the term of the patent has expired.

The decree, as modified, will be affirmed, without interest or costs, the costs of this court to be paid by the appellee; and it is

So ordered.

title: Parks v. Booth/Opinion of the Court


text: Talk:Parks v. Booth/Opinion of the Court


text:
Page:Dictionary of National Biography volume 60.djvu/114

 Bench, the Office-books of the Secretaries of State, of Warrants issued by Secretaries of State,’ 1763. He also printed ‘Some Observations on the late determination for Discharging Mr. Wilkes from the Tower. By a Member of the House of Commons,’ 1763. In the action brought against Wood, Lord Egremont's secretary, for seizing Wilkes's papers, Webb, as a witness, swore that while in the house ‘he had no key in his hand.’ For this he was tried before Lord Mansfield, with a special jury, for perjury, on 22 May 1764. The trial lasted seven hours, and the jury, after an absence of nearly an hour, returned a verdict of not guilty (Gent. Mag. 1764, p. 248). A motion by Sir Joseph Mawbey [q. v.] in November 1768 for a return of all moneys paid to Webb for prosecutions was refused. On the charge made in the House of Commons on 31 Jan. 1769 that Webb had bribed, with the public money, Michael Curry to betray Wilkes and give evidence against him, counsel pleaded on behalf of Webb that he was now blind and of impaired intellect, and the motion against him was defeated.

Webb died at his seat of Busbridge Hall on 22 June 1770. He married, on 2 Nov. 1730, Susanna, daughter of Benjamin Lodington, many years consul at Tripoli. She died at Bath on 12 March 1756, aged 45, leaving one son, also called Philip Carteret Webb (d. 10 Oct. 1793; Corresp. of Jekyll, p. 31). Two other children died in infancy, and, at her own desire, Mrs. Webb was buried with them in a cave in the grounds at Busbridge, ‘it being excavated by a company of soldiers quartered at Guildford’ (Notes and Queries, 1st ser. viii. 43). They were afterwards disinterred and placed in a vault under Godalming church, with a monument to her and her husband. In August 1758 Webb married Rhoda, daughter of John or James Cotes of Dodington in Cheshire, and by her had no issue. He bequeathed to her everything that he could. She married, on 5 Sept. 1771, Edward Bever of Farnham, Surrey, and in 1775 sold the estate of Busbridge.

The other works of Webb comprised: 1. ‘A Letter to Rev. William Warburton on some Passages in the “Divine Legation of Moses.” By a Gentleman of Lincoln's Inn,’ 1742. 2. ‘Observations on the course of Proceedings in the Admiralty Courts,’ 1747. 3. ‘Excerpta ex Instrumentis Publicis de Judæis,’ 1753. 4. ‘Short but True State of Facts relative to the Jew Bill,’ 1753. 5. ‘The Question whether a Jew born within the British Dominions could before the late Act purchase and hold Lands. By a Gentleman of Lincoln's Inn,’ 1753; a reply to the question was written by Joseph Grove [q. v.] 6. ‘A Short Account of Danegeld. By a Member of the Society of Antiquaries. Read at a meeting 1 April 1756.’ 7. ‘A Short Account of Domesday Book, with a view to its Publication. By a Member of the Society of Antiquaries. Read 18 Dec. 1755,’ 1756. His interleaved copy, with additional papers, is in the Gough collection at the Bodleian Library (, Western MSS. iv. 177–8). 8. ‘State of Facts on his Majesty's Right to certain Fee-farm Rents in Norfolk,’ 1758; hundred copies only. 9. ‘Account of a Copper Table with two inscriptions, Greek and Latin, discovered in 1732 near Heraclea. Read before Antiquaries, 13 Dec. 1759,’ 1760. On 12 March 1760 he presented this table to the king of Spain, through the Neapolitan minister, for the royal collection at Naples, and he received in return a diamond ring worth 300l. (, Lit. Anecd. v. 326–7). Webb wrote in the ‘Moderator’ and contributed to the ‘Philosophical Transactions.’ John Topham [q. v.] served under him.

The manuscripts of Sir Julius Cæsar were dispersed by auction in 1757, and nearly one-third of the collection was purchased by Webb. These, with his other manuscripts on paper, were bought from the widow by Lord Shelburne, and are now among the Lansdowne manuscripts at the British Museum (Pref. to Cat. p. ix). Webb sold to the House of Lords thirty manuscript volumes of the rolls of parliament, and the rest of his library, including his manuscripts on vellum, was sold on 25 Feb. 1771 and sixteen following days. His most valuable coins and medals were acquired by Matthew Duane [q. v.]; the remainder and his ancient marble busts and bronzes were sold in 1771. On the death of his widow his other collections were sold by Langford.

A letter from E. M. da Costa to Webb is in Nichols's ‘Illustrations of Literature’ (iv. 788–9). In July 1758 he obtained from the Society of Arts a silver medal for having planted a large quantity of acorns for timber.

[Nichols's Lit. Anecd. ii. 279–82, 305; Manning and Bray's Surrey, i. 620–1, ii. 43, 589, iii. App. p. cxliv; Lincoln's Inn Adm. Reg. i. 422; Churchill's Works (1804 ed.), i. 166, ii. 288; Walpole's George III, ed. Barker, passim; Walpole's Letters, iv. 183–7, viii. 260; Cavendish's Debates, i. 77, 82, 120; Halkett and Laing's Pseud. Lit. pp. 511, 2542; information from Captain W. W. Webb, M.D., F.S.A.]  WEBB, THOMAS WILLIAM (1806–1885), astronomer, born at Ross in Herefordshire, on 14 Dec. 1806, was the only son


text:
Brooks v. Railroad Company

MOTION for leave to file a petition for rehearing.

This case was, on appeal from the Circuit Court of the United States for the District of Iowa, determined at the last term. It is reported in 101 U.S. 443.

Mr. Joseph E. McDonald and Mr. John M. Butler in support of the motion.

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

title: Brooks v. Railroad Company


text: Talk:Brooks v. Railroad Company

title: Talk:Brooks v. Railroad Company


text:
Brooks v. Railroad Company/Opinion of the Court

A petition for rehearing after judgment, under the rule promulgated in Public Schools v. Walker (9 Wall. 603), cannot be filed except at the term in which the judgment was rendered. In Hudson & Smith v. Guestier (7 Cranch, 1), a motion was made at the February Term, 1812, for a rehearing in a case decided two years before; but the court said 'the case could not be reheard after the term in which it was decided.' At the end of the term, the parties are discharged from further attendance on all causes decided, and we have no power to bring them back. After that, we can do no more than correct any clerical errors that may be found in the record of what we have done.

In Brown v. Aspden (14 How. 25), where the practice in respect to orders for rearguments was first formally announced, the rule in this particular was not extended, for Mr. Chief Justice Taney was careful to say that the order for reargument might be made after judgment, provided it was entered at the same term; and the same limitation is maintained in United States v. Knight's Administrator, 1 Black, 488. Down to that time such an order could be made only on the application of some member of the court who concurred in the judgment, and this continued until Public Schools v. Walker (supra), when leave was given counsel to submit a petition to the same effect. In all other respects the rule is now substantially the same as it was before this relaxation.

Motion denied.


text: The New Student's Reference Work/Guyot, Arnold


text: Talk:Brooks v. Railroad Company/Opinion of the Court


text:
Giddings v. Insurance Company

APPEAL from the Circuit Court of the United States for the Northern District of Illinois.

This is a suit in equity by Loren Giddings and Leander Giddings, administrators of Silas Giddings, deceased, to compel the specific performance, by the Northwestern Mutual Life Insurance Company, of its alleged contract, made with him some months prior to his death, to insure his life in the sum of $6,000. The court below dismissed the bill, whereupon the complainants appealed here.

The remaining facts are stated in the opinion of the court.

Mr. Henry G. Miller and Mr. Thomas G. Frost for the appellants.

Mr. Thomas Hoyne, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Giddings v. Insurance Company


text: Talk:Giddings v. Insurance Company

title: Talk:Giddings v. Insurance Company