text:
Hinckley v. Morton/Opinion of the Court

Our jurisdiction of this case is clear. The appeal is not from the decree entered on our mandate at the last term in Hinckley v. Railroad Company, 100 U.S. 153. On the contrary, that decree has been satisfied by an actual payment of the amount found due. The case does not, therefore, come within the rule laid down in Stewart v. Salamon (97 id. 361), where we held that an appeal would not be entertained from a decree rendered by the court below in accordance with our mandate on a previous appeal. The record now presented shows that after our decision at the last term, in which, among other things, Hinckley, the appellant, was allowed $10,000 for his services as receiver from the time of his appointment in the Kelly suit, he went into the State court and had that suit reinstated. He then applied to that court to fix his compensation as receiver. That was done, and resulted in an allowance to him of something more than $24,000. As soon as that order in his favor was made, he filed an intervening petition in the Circuit Court, asking that the amount so allowed him might be paid out of the fund in the Circuit Court belonging to the Morton suit. This was refused, and from the order to that effect, which was a final decree on the intervening petition, this appeal was taken. Second appeals have always been allowed to bring up proceedings subsequent to the mandate and not settled by the terms of the mandate itself. Supervisors v. Kennicott, 94 id. 498; Tyler v. Magwire, 17 Wall. 53 . This case comes clearly within that rule, and the motion to dismiss is, therefore, denied.

But we think the motion to affirm should be granted. The question of compensation to the receiver, so far as the fund in the Circuit Court is concerned, was settled on the former appeal. The allowance then made was for the entire services of the receiver from the date of his original appointment in the Kelly suit. The value of the services was made, by the exceptions to the master's report, a matter of special inquiry, and the result is indicated in the judgment which was then given. If the State court has funds in its hands out of which its judgment can be paid, it has full power to order the payment, but the liability of the fund in the Circuit Court to the receiver has already been fully discharged. The court below was right, therefore, in refusing the prayer of the appellant in his intervening petition, and its order to that effect is

Affirmed.

A petition for a rehearing having been filed, MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

Rule 6, par. 4, as amended Nov. 4, 1878, 97 U.S. vii, provides that there may be united with a motion to dismiss a writ of error or appeal, a motion to affirm, on the ground that, although the record may show that this court has jurisdiction, it is manifest the appeal or writ of error was taken for delay only, or that the question on which the jurisdiction depends is so frivolous as not to need further argument. This is a modification of the rule as originally promulgated May 8, 1876, 91 U.S. vii, when it was confined to motions to dismiss writs of error to a State court. In Whitney v. Cook (99 U.S. 607), we held that to justify a motion to affirm under this rule there must be a motion to dismiss and at least some color of right to a dismissal.

In Stewart v. Salamon (97 U.S. 361), we decided that if an appeal was taken from a decree entered on our mandate upon a previous appeal, we would, on the application of the appellee, examine the decree entered, and if it conformed to the mandate, dismiss the case, with costs. The motion to dismiss in this case was apparently based upon that ruling. It seemed to us, when it was up for hearing, to have been made in good faith; and while we did not think it ought to be sustained, we could not say it was without any color of right. For that reason we felt at liberty to look into the motion to affirm.

The record in this case showed that Hinckley was appointed receiver in the Kelly suit Nov. 24, 1879, and that his receivership ended by his turning over the property to the trustees of the mortgage on the 12th of August, 1875. The record of the former appeal, to which we think we may with propriety look, as the order now appealed from was made upon a petition of intervention filed in that cause, shows that in the settlement of accounts then made Hinckley was paid for his services during the whole period of his receivership, that is to say, from the date of his appointment in the Kelly suit until his final discharge.

We are still of the opinion that the case is a proper one for the application of our rule in respect to motions to affirm, and, therefore, the petition for a rehearing is

Denied.

title: Hinckley v. Morton/Opinion of the Court


text: Talk:Hinckley v. Morton/Opinion of the Court

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


text:
Page:Babyhood of Wild Beasts.djvu/20

xii lifted proudly as much as to say, "There! You see I beat you to it!"

I was born and lived on the Frontier during my childhood. Neighbours were scarce, and children were scarcer, so I sought the wild kindred for a playmate.

Wild animals were abundant, and I soon found companions among the wild Rocky Mountain goats and smaller creatures. I can't remember the time when I didn't love them. Wild animals have always seemed intensely human to me. I am in sympathy with their struggles for existence, their fears, their sorrows and their loves. Little baby animals are intensely human and appealing. Helpless little bundles of Love they are to me.

They are so interested in the many things that impress themselves upon their consciousness. The wind moaning through the pines fills them with fear and trembling and they anxiously seek the shelter of their mother's warm comforting presence and mew questioningly while she soothes their fears with kisses and caresses. Her babies are very dear to the wild mother; so

title: Page:Babyhood of Wild Beasts.djvu/20


text:
Clark v. Killian

APPEAL from the Supreme Court of the District of Columbia.

The facts are stated in the opinion of the court.

Mr. Francis Miller for the appellant.

Mr. William J. Miller, contra.

MR. JUSTICE HARLAN delivered the opinion of the court.

title: Clark v. Killian


text: Talk:Clark v. Killian

title: Talk:Clark v. Killian


text:
Clark v. Killian/Opinion of the Court

On the 24th of June, 1873. Clark, the appellant, obtained in the court below a judgment at law against John Killian, administrator of William Schlorb, for the sum of $3,819.25, the balance due from the deceased upon dealings with appellant, commencing on the twenty-second day of November, 1865. An execution upon the judgment having been returned no property found, Clark exhibited there his bill in equity against the administrator de bonis non, th w idow, and infant children of Schlorb, for the purpose of subjecting to the satisfaction of the judgment certain real estate which stood in the name of the wife and an infant son of Schlorb.

The real estate is thus described in the bill: 1. Lots 6 and 9, in square 654, of the city of Washington, conveyed Aug. 18, 1858, by Schlorb to John Killian, since deceased, in trust for the use of his wife, and free from liability for the debts of the grantor. 2. Lots 5 and 8, in the same square, conveyed Oct. 23, 1858, to the same person in trust for the sole and separate use of the wife, and free from liability for the husband's debts. 3. Lot 2, in the same square, purchased by Schlorb from Baker and by the latter, in pursuance of directions from the father, conveyed, Oct. 5, 1865, to his infant son, George L. Schlorb. 4. Lot 3, in the same square, purchased by Schlorb from Brown, and by the latter, in pursuance of directions from the husband, conveyed, Dec. 21, 1865, to Killian, in trust for the sole and separate use of the wife, and free from the control of the husband. 5. The north half of lot 7, in the same square, purchased by Schlorb from Budle, and by the former's direction conveyed, May 3, 1866, to, Killian in like trust for the sole and separate use of the wife, and free from the husband's control. 6. Lot 1, in the same square, conveyed by Schlorb, Dec. 23, 1868, to Killian in trust for the benefit of the wife, and free from the husband's control.

The bill alleges that these several conveyances were by Schlorb made and caused to be made with the intent to hinder, delay, and defraud his creditors.

The answer of the widow was explicit in its denial of the fraud charged, and alleged that the deceased, when the several conveyances were made, was free from debt, in comfortable circumstances, and engaged in a prosperous business; that only one piece of the property was conveyed in trust for her, after the dealings between Clark and him commenced and were in progress. The infant children made a formal answer, by their mother, as guardian ad litem, submitting their rights to the protection of the court. An answer containing full denials was also filed by the administrator de bonis non of Schlorb. Clark filed his joinder of issue on the amswers to his bill, and the cause was submitted on bill and answers and replications. without proof.

On the 17th of February, 1875, the court rendered a decree adjudging that the conveyances for lots 1, 3, and the north half of lot 7 were null and void, and they were sold under the decree for the sum of $1,403.47.

Subsequently, on 18th June, 1875, a similar decree was rendered as to lots 2, 5, 6, 8, and 9. They were also sold, and at the commencement of this suit the title was in Clark, the appellant.

On the 4th of January, 1877, a bill of review was filed by the administrator de bonis non, the widow, and infant children of Schlorb against Clark, for the purpose of setting aside the foregoing decrees for errors of law apparent on the face of the record. The bill set out all of the foregoing gacts, including the pleadings in the original suit, and Clark demurred. The demurrer was sustained and the bill dismissed. Upon appeal to the general term the decree of dismissal was reversed and the demurrer overruled. The cause was then submitted on the bill of review. Judgment was rendered setting aside the former decree as to lots 2, 5, 6, 8, and 9, and affirming the one as to lots 1, 3, and the north half of 7.

From the last decree both sides prayed an appeal to this court.

The decree of the court below, so far as it relates to lots 2, 5, 6, 8, and 9, is in all respects right. Upon the face of the bill, answers, and other pleadings in the original suit, there was no ground whatever to assail the conveyances of those lots. They were made before Clark had any dealings with Schlorb, and when, so far as the pleadings in that case disclose, there were no creditors who could complain of any such disposition by Schlorb of his property. Clark, therefoe, could not have given credit to Schlorb upon the faith of his ownership of the property. The answers denied the allegations of fraud, and there was no evidence to overcome the denials. The pleadings in that case did not authorize the conclusion, as matter of law, that Schlorb had conveyed or caused to be conveyed the property with the fraudulent intention of thereafter engaging in business, or having business transaction, and, in the event of financial embarrassment arising therefrom, to withhold it from his creditors. Taking all the circumstances to be as they are set out in the pleadings, it is perfectly clear that the court, in adjudging the conveyances of the lots above named to be null and void, and ordering them to be sold in satisfaction of Clark's judgment, erred in point of law. Consequently a bill of review was the proper mode of remedying that error. The present bill was filed in time. Thomas v. Harvie, 10 Wheat. 146.

The appeal prayed by appellees in the court below from so much of the decree as confirmed the original decree as to lots 1, 3, and north half of 7, has never been perfected. We cannot, therefore, notice the errors assigned in the brief of counsel for appellees.

The decree below, so far as appealed from by Clark, is, without prejudice to any right which the appellees may have to an appeal,

Affirmed.

title: Clark v. Killian/Opinion of the Court


text: Talk:Clark v. Killian/Opinion of the Court


text:
County of Wilson v. National Bank

ERROR to the Circuit Court of the United States for the Middle District of Tennessee.

The facts are stated in the opinion of the court.

Mr. Joseph S. Fowler for the plaintiff in error.

Mr. R. McPhail Smith, contra.

MR. JUSTICE WOODS delivered the opinion of the court.

title: County of Wilson v. National Bank


text: Talk:County of Wilson v. National Bank

title: Talk:County of Wilson v. National Bank


text:
County of Wilson v. National Bank/Opinion of the Court

On Dec. 16, 1867, the legislature of the State of Tennessee passed 'An Act to incorporate the Lebanon and Gallatin Railway, and for other purposes.'

Sect. 3 of the act provided that the twenty-six persons named in sect. 1 should select by ballot five of their number to open books for subscription to the stock of the Lebanon and Gallatin Railway Company, and to apply to counties and municipalities for subscriptions thereto. Sect. 4 declared that such subscriptions might be payable in county and municipal bonds.

Sect. 19 declared as follows:--

'The five commissioner provided for in the third section may     apply to the county courts of Sumner and Wilson Counties, and      to the corporate authorities of the towns of Lebanon and      Gallatin for subscription to the capital stock of the      company, payable in the bonds of said counties and towns,      running not less than ten nor more than thirty years, bearing      six per cent interest payable semiannually, and upon said      application being made in writing the county courts and      corporate authorities shall cause an election to be held      under the laws now in force regulating elections for county      and corporate officers, first causing thirty days' notice of      the day of such election, the amount of stock to be      subscribed, for what purpose and how and wen  payable, to be      given as required in county and corporate elections.'

Sect. 35 declared 'that the provisions of chapter 3, article 3, of the code [of Tennessee] shall be in force, and said company shall have the benefit of the same except so far as modified or changed by this act.' These provisions were by sect. 40 extended to the Tennessee and Pacific Railroad Company.

Chap. 3, art. 3, of the Code of Tennessee provides as follows:--

'SECT. 1142. Any county. . . may subscribe to stock to an     amount not exceeding in the aggregate one-fifteenth of its      taxable property nor more than one million dollars in      railroads running to or contiguous, thereto, upon the      following terms and conditions.

'SECT. 1143. The approbation of the legal voters of the     county. . . to the proposed subscription must be first     obtained by election held by the sheriff in the usual way in      which popular elections are held.

'SECT. 1144. The election may be ordered by the county court     upon the application in writing of the commissioners      appointed to open subscription books for the stock of such      road, or of the board of directors if the company is      organized.

'SECT. 1145. Before such application can be made, the entire     line of the road in which the stock is proposed to be taken,      shall be surveyed by a competent engineer, and substantially      located by designating the termini and approximating the      general direction of the road, and an estimate of the      grading, embankment, and masonry made by the engineer under      oath, and filed with the application.'

'SECT. 1149. The money raised under the provisions of this     article shall be expended within the county in which such      stock is taken, or as near thereto as practicable.

'SECT. 1150. As soon as the stock is subscribed it is the     duty of the county court to levy a tax upon the taxable      property, privileges, and persons liable by law to taxation      within the county, sufficient to meet the instalments of      subscription as made and the cost and expenses of cllection,      which tax shall be levied and collected like other taxes.

'SECT. 1151. The revenue-collector or any other person may be     appointed by the county authorities to collect the railroad      tax, who shall first give bond with good security in double      the amount of the instalment proposed to be received, payable      to the State and conditioned to discharge the duties of the      office and faithfully collect and pay over to the railroad      company such railroad tax.'

The suit was brought by the Third National Bank of Nashville, Tennessee, upon two hundred and ninety-four bonds for $50 each, issued, as the plaintiff claimed, by the county of Wilson under authority of the laws above cited. The bonds were all of the same tenor and effect. The following is a copy of one of them:--

'UNITED STATES OF AMERICA.

'State of Tennessee. County of Wilson.

'Six-per-cent Bond.

'Subscription to the Tennessee and Pacific Railroad Company.

'Know all men by these presents, that the county of Wilson,     in the State of Tennessee, is indebted to the Tennessee and      Pacific Railroad Company, or the holder hereof, if this bond      is transferred by the signature of the president of said      company, at the office of the treasurer of said county, in      the city of Lebanon, on the first day of January, 1879, with      interest thereon at the rate of six per cent per annum, on      the first day of January and July ensuing the date hereof,      until the principal sum is paid, upon the presentation and      surrender of the interest-warrants hereto attached at the      said office of the treasurer of Wilson County, State of      Tennessee,-this being one of a series of bonds in all      amounting to $300,000 issued for stock in the Tennessee and      Pacific Railroad Company.

'In testimony whereof, the county judge of said county     hereunto sets his name and causes the seal of the said county      of Wilson to be affixed, with the attestation of the clerk of      said county, this first day of January, 1869.

'W. H. GOODWIN, Judge County Court.

'J. S. MCCLAIN, Clerk.'

The bonds were all indorsed as folo ws:--

'For value received, this bond is transferred to bearer.

'GEO. MAURY, President Tenn. & Pacific R. R. Co.'

The defendant demurred to the declaration. The grounds of demurrer were, first, because the court had no jurisdiction of the case; and, second, because no right of action on said bonds was shown by the declaration to have accrued to the plaintiff.

The demurrer was overruled.

The defendant thereupon filed twelve pleas. Demurrers were filed to all of them, and were sustained as to the fourth, fifth, sixth, seventh, eighth, ninth, and tenth, and overruled as to the others.

The ninth plea, upon which the defendant specially relied, and which contains the substance of all the other pleas to which the demurrer was sustained, reads as follows:--

'And for a further plea to said first count in plaintiff's declaration, defendant says that before application was made by any authorized commissioners or by the president and directors of the Tennessee and Pacific Railroad Company to the county court of said county of Wilson, to order an election to obtain the approbation of the legal voters of said Wilson County to any proposed subscripton of stock in said company, no survey of the entire line of said road had been made by a competent engineer, and the said road had not been substatially located by designating the termini thereof and approximating the general direction thereof, and no estimate of the grading, embankment, and masonry by a competent engineer of the entire road had been made, and of all said facts the plaintiff had actual notice when it obtained the said bonds; and it does not appear upon the face of said bonds or any of them upon what authority they were executed and delivered to the said company other than that of the ministerial officers whose signatures appear thereto; and this defendant is ready to verify.'

The ground of demurrer to this plea was that it was virtually the plea of non est factum and was not sworn to.

Upon the trial of the case the plaintiff offered in evidence the bonds on which the suit was brought, and proved their execution by the officer whose official signature was appended to them, and by the impression on them of the county seal, and proved the indorsement of them by George Maury, the president of the Tennessee and Pacific Railroad Company. The plaintiff also read the acts of the legislature of Tennessee above mentioned, and rested.

Thereupon the defendant introduced one Falconett, who testified that he was engineer of the Tennessee and Pacific Railroad Company; that as such he had made an experimental survey of the entire line of the road from Nashville to Knoxville, before any application was made to the county to order an election, as provided by the statute, to determine whether it should subscribe to the capital stock of the company, and, if so, on what terms the subscription should be made; that the survey of one hundred and eighty-one miles was not final, but that by it the line was substantially, and the main points of said road definitely, located, and an approximate estimate of the cost of the road made; that he afterwards had located finally and definitely about one-half of the entire line, and made a report thereof to the directors of the company.

It was after this report that application was made to the defendant as per statute in that case made and provided, to order an election and subscribe stock, &c., for the payment of which the bonds sued on were issued.

The plaintiff proved in rebuttal the payment of interest on the bonds by the county for several years. This was all the evidence in the case.

The court charged the jury as follows:--

'1. That the defendant county had legislative authority to issue the bonds declared on, upon the conditions prescribed in the acts having reference to the matter, and that if the jury find from the evidence adduced in the case that said bonds had been issued by the county judge and clerk as alleged and verified by the county seal, and that plaintiff was a bona fide ol der for value without notice, that the same was issued by virtue of an election ordered and held before a final and definite survey and location of the line of said road had been made, the same would be valid in the plaintiff's hands, and the jury ought to find a verdict against defendant.

'2. That if the evidence of Falconett were true, the condition contained in the acts aforesaid, requiring a survey and location of the line of said road, and an estimate of the cost thereof made before an election to determine whether the county should subscribe stock in said railroad, &c., could be lawfully ordered and held, had been substantially complied with, and there was nothing in Falconett's testimony militating against plaintiff's right to recover.'

The jury found a verdict for the plaintiff, on which judgment was rendered. To reverse this judgment this writ of error is brought.

The plaintiff in error claims that it is apparent on the face of the declaration that the Circuit Court was without jurisdiction, because both the parties were citizens of the State of Tennessee.

Sect. 629 of the Revised Statutes of the United States declares that the circuit courts shall have original jurisdiction as follows:. . . 'Tenth. Of all suits by or against any banking association established in the district in which the court is held, under any law providing for national banking associations.'

This section gives the circuit courts jurisdiction of suits brought by or against a national bank, without regard to the citizenship of the parties, and it has been so held by this court. Kennedy v. Gibson, 8 Wall. 498.

The jurisdiction of the Circuit Court was, therefore, clear.

It is next claimed that the bonds sued on were not negotiable paper, and that, therefore, the plaintiff below showed no right of action in itself.

In order to make a promissory note or other obligation, for the absolute payment of a sum certain, on a certain day, negotiable, it is not essential that it should in terms be payable to bearer or order. Any other equivalent expressions demonstrating the intention to make it negotiable will be of equal force and validity. Com. Dig., Merchant, F. 5; 3 Kent, Com., lect. 44, p. 77; Chitty, Bills, c. 5, p. 180 (8th ed.); Bayley, Bills, 120 (5th ed.); Story, Prom. Notes, sect. 44.

The purpose of the plaintiff in error that the bonds on which the suit is brought should be negotiable is perfectly clear. They are payable to the railroad company or holder if the bond is transferred by the signature of the president of the company.

This is equivalent to making the bonds payable to the company or order, provided the 'order' or indorsement is made by the president of the company. They bear his indorsement transferring them to bearer. On what ground their negotiability can be denied it is difficult to imagine. They are in precisely the same plight as a promissory note payable to order and indorsed in blank, or to bearer, the title to which passes by mere delivery. Chitty, Bills, 252, 253 (8th ed.); Bayley, Bills, c. 1, sect. 10, p. 31 (5th ed.).

It is next objected that the court erred in sustaining the demurrer of the plaintiff to the fourth, fifth, sixth, seventh, eighth, ninth, and tenth pleas.

It is quite evident, however, from the record that all the defences set up in these pleas were allowed to be made under the other pleas, to which the demurrers were overruled. Whether the court was right or wrong in its judgment on the demurrers is, therefore, entirely immaterial. 'There must be some injury to the party to make the matter generally assignable as error.' Greenleaf's Lessee v. Birth, 5 Pet. 132; Randon v. Toby, 11 How. 493.

It is next alleged as error that the court instructed the jury that the county of Wilson had legislative authority to issue the bonds sued on, upon compliance with the conditions prescribed by the law.

There is certainly no express provision in chap. 3, art. 3, of the code which authorizes the issue of bonds. It has beenso held by the Supreme Court of Tennessee. Justices of Campbell Co. v. Knoxville & Kentucky Railroad Co., 6 Cold. (Tenn.) 598. The implication against the power to issue bonds is very persuasive. The act contemplates the payment of the stock subscribed for in instalments, and provides the means of payment, as they fall due, by a special tax. The bond of the officer who collects this tax requires him to pay it over to the railroad company. If the purpose of the act had been to authorize the payment of the stock in bonds, the county, after paying in bonds, would not have been required to pay over to the railroad company the railroad tax collected to satisfy the bonds. In other words, the county would not have been required to pay twice for its stock,-once in bonds and once in money. See Wells v. Supervisors, 102 U.S. 625.

But the act of Dec. 16, 1867, to incorporate the Lebanon and Gallatin Railway Company, some of the provisions of which have been stated, clearly implies the power in the county authorities to subscribe stock in the Tennessee and Pacific Railroad Company, and to issue bonds in payment therefor.

Sect. 4 declares that subscriptions to the capital stock of the railroad company may be taken in county bonds, and sect. 19 authorizes the commissioners provided for in sect. 3 to apply for a subscription to the capital stock of the railroad company, payable in the bonds of the county, whereupon the county authorities are required to cause an election to be held, first causing thirty days' notice of such election, the amount of stock to be subscribed, for what purpose, and how and when payable, to be given, as required in county elections.

There can scarcely be a stronger implication of the power to issue bonds.

What is implied in a statute is as much a part of it as what is expressed. United States v. Babbit, 1 Black, 55; Gelpcke v. City of Dubuque, 1 Wall. 175.

We think, therefore, that the power of the county, under the act ofDec. 16, 1867, to issue bonds in payment of stock taken by it in the Tennessee and Pacific Railroad Company is beyond question, and that the Circuit Court did not err in saying to the jury that such power existed.

Plaintiff in error claims next that there was evidence tending to show that the bonds in suit were issued by virtue of an election ordered and held before a final and definite survey and location of the railroad had been made, and that the court erred in instructing the jury that, if plaintiff was a bona fide holder without notice of that fact, the bonds would be valid in his hands, and there should be a verdict against defendant.

The charge was not erroneous, because the law does not require that there shall be a final and definite survey and location of the road before an election is held to decide whether or not the county shall subscribe stock. Its requirement is that the entire line of the road shall be surveyed by a competent engineer, and substantially located by designating the termini and approximating the general direction of the road. The evidence of Falconett, the engineer, showed that this had been done.

The law even contemplated that this survey might be made before the railroad company was organized, for it declared that the application to the county authorities to order an election might be made by the commissioners appointed to open subscription books for the stock of such road, or by the board of directors if the company was organized. It would be a strange enactment, indeed, which should require a final and definite survey and location of the line of a railroad before any company had been organized to construct it.

The next complaint of the plaintiff in error has reference to the charge of the court to the effect that, if the evidence of Falconett, the engineer, were true, the election to decide whether the county would subscribe to the stock of the railroad company was lawfully held.

The contention seems to be that before an application could be made to the county auho rities to order an election to decide whether or not the county should subscribe to the stock of the railroad company, an estimate in linear and cubic feet and yards of the embankment, grading, and masonry should be made, on oath, and filed with the application. It is asserted that no such estimate of quantity was made, but merely an estimate of the cost, and that this was not a compliance with the law.

We think the Circuit Court gave a correct construction of the law in instructing the jury substantially that it was an estimate of the cost and not of the quantity of the grading, embankment, and masonry that was required to be made by the engineer. The point upon which information was necessary to enable the people of the county to vote intelligently on the question whether or not they should subscribe to the stock of the railroad company was what would the road cost, and not how mamy yards of embankment or excavation or what quantity of masonry would be required to construct it.

If we are right in these views, then all the conditions precedent upon authority of which the power to issue bonds depended were performed, and there being legislative authority for the issue of the bonds upon such performance, no valid objection can be raised to their enforcement.

Judgment affirmed.


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


text: Life Insurance Company v. Bangs

title: Life Insurance Company v. Bangs


text: Talk:Life Insurance Company v. Bangs

title: Talk:Life Insurance Company v. Bangs


text:
Life Insurance Company v. Bangs/Opinion of the Court

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

The facts are stated in the opinion of the court.

Mr. Herbert L. Baker and Mr. William A. Maury for the appellant.

Mr. Mark S. Brewer for the appellee.

MR. JUSTICES FIELD delivered the opinion of the court.

In the case of Insurance Company v. Bangs, supra, p. 435, we had occasion to mention and comment upon a suit in equity, commenced in March, 1876, by the same company against these defendants, in the Circuit Court of the United States for the District of Michigan, to obtain the cancellation of two policies of insurance, issued in November, 1875, upon the life of James H. Bangs. That case was an action at law upon the policies, to which the company pleaded the decree obtained in the equity suit. This decree was held to be void as against the infant defendant, because rendered by the court without having obtained jurisdiction over him. As all other defences except such as arose upon this decree were withdrawn, judgment was rendered in favor of the plaintiff for the amount claimed.

The present suit is similar in its character and object to the one brought in the Michigan district. It seeks a cancellation of the two policies of insurance obtained by the deceased and an injunction against the enforcement of the judgment recovered in the action at law. The bill avers that the policies were obtained upon representations that the insured was a person of good health and not subject or predisposed to any bodily infirmity; that at the time he applied for the policies he had conceived the design to commit suicide, but first to obtain an insurance upon his life in favor of his son in order to leave a large amount to him and to his wife; that in pursuance of this design the policies were obtained, and soon afterwards he committed suicide by taking poison; and that the wife and son were cognizant of the design of the deceased and conspired with him for its execution.

The bill charges a fraudulent purpose on the part of the insured to rob the insurance company, and then that he committed suicide to carry the purpose into execution. It charges a conspiracy between him and his wife and son to effect this robbery and death,-a conspiracy on the part of the wife to aid in the death of her husband, and on the part of the son to aid in the death of his father. These charges are of such dreadful crimes as to call for the clearest proof before a decree cancelling the policies could be based upon them. Instead of such proofs there is nothing of importance established which is not consistent with the integrity o a ll the parties,-insured, wife, and son. The main and essential fact averred in the company's case is the contemplated suicide of the insured. The evidence to establish this-and it is stronger than the evidence produced upon any other material averment-is that he had inquired for insurance companies whose policies did not except death by suicide; that his death occurred not long after the policies were obtained, and was accompanied by convulsions stated to be similar to those attending death by strychnine. There is no evidence that he ever had any strychnine. The only evidence produced was that he was once seen in a druggist's store looking at jars containing various medicines, and among others, one that contained this poison. There was no poison found in his body when submitted to a post-mortem examination. And as to the convulsions at his death, the wife attributed them to injuries which he had received in his back a few days before. That is all. Everything else consisted of mere suspicions growing out of the action of the wife in refusing to consent to a post-mortem examination of the deceased, and her departure from the State, both of which might have been, and, according to her answers to the interrogatories of the bill, were prompted by worthy considerations. The transactions with which she is charged as proof of guilty complicity, viewed in the light of her explanations and the evidence produced, merely evince a very natural sensitiveness to the imputations cast upon the character of her husband by suspicions thrown out by agents of the insurance company, and a great repugnance to having his remains, after interment, disturbed and subjected to the knife of the surgeon and the analysis of the chemist. It is sufficient to say that no case is presented which would justify any court in holding that a conspiracy existed to defraud the insurance company, the execution of which involved the suicide of the insured, and the assent of wife and son to the death of husband and father.

Aside from this, the judgment in the action at law was a bar to this suit. Its recovery concluded all matters which might have been urged as a defence to the policies. A fraudulent purpose in procuring them, subsequently carried into execution, would have been a good defence. It was in fact originally pleaded and afterwards withdrawn. Its withdrawal did not authorize a suit in another forum for its establishment against the demand of the plaintiff. When an action at law is brought upon a contract, the defendant denying its obligation, either from fraud, payment, or release, or any other matter affecting its original validity or subsequent discharge, must present his defence for consideration. A recovery is an answer to all future assertions of the invalidity of the contract by reason of any admissible matter which might have been offered to defeat the action. The contract is merged in the judgment. Cromwell v. County of Sac, 94 U.S. 351.

A suit in equity will not lie to give effect to defences against a claim when they might have been fully set up in an action at law. There must have been some fraud practised upon the court or some unconscientions advantage taken of the defendant without any fault or negligence on his part; or there must be some newly discovered evidence which could not have been obtained at the trial, and which, if produced, would have changed the result, before a court of equity will interfere with the judgment rendered or the contract upon which it was recovered. There is no pretence here that any such fraud was committed or unconscientious advantage taken, or that there is any newly discovered matter not known when the trial took place. Home Insurance Co. v. Stanchfield, 1 Dill. 424; Marine Insurance Co. v. Hodgson, 7 Cranch, 332; Phoenix Insurance Co. v. Bailey, 13 Wall. 616.

Decree affirmed.


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


text:
National Bank v. Insurance Company (103 U.S. 783)

ERROR to the Circuit Court of the United Staes for the Southern District of New York.

The facts are stated in the opinion of the court.

Mr. George Bliss for the plaintiff in error.

Mr. Joseph Larocque, contra.

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


text: Talk:National Bank v. Insurance Company (103 U.S. 783)


text:
National Bank v. Insurance Company (103 U.S. 783)/Opinion of the Court

The assignment of errors in this case presents the single question, whether on the undisputed facts the court below was right in directing a verdict in favor of the insurance company. The facts were as follows:--

John James Jackson was the agent at Baltimore of the Royal Insurance Company, a British corporation. His appointment was in writing and filed in the office of the insurance commissioner of Maryland, in compliance with the laws of the State. His powers were ample for the issuing of policies, the collection of premiums, and the adjustment and payment of losses. No authority was given him, however, to borrow money on the credit of the company, and he had never in a single instance done so, except by the negotiation of bills drawn by him as agent on the company to pay losses. He was at the same time the agent of other insurance companies and of a number of private persons. He was introduced to the Central National Bank of Baltimore, in 1870 or 1871, as the agent of the Royal Insurance Company, and opened an account in the name of J. J. Jackson, agent. The name of the insurance company did not appear. All his deposits were made to the credit of this account and all his checks were drawn against it. The account was a large one and included moneys which came into his hands from all sources. As he wanted money he checked on this account, signing the checks in the name of J. J. Jackson, agent. His remittances to the company were made by bills on London purchased from Alexander Brown & Sons, dealers in foreign exchange at Baltimore, with checks on the bank payable to that firm. This was known to and understood by the bank. His checks showed that very large sums of money credited to his account as agent were used in other ways than for the benefit of the company.

In the summer of 1873 he was behind in his accounts with the company, and a special agent was sent to Baltimore to get a settlement. For the convenience of adjustment the accounts were divided into three classes, and each class examined separately. On the 9th of July, upon a statement of one part of the account as classified, a balance of $12,572.52 was found due from him to the company. He had at the time not more than five or six thousand dollars to his credit in bank, and to meet this payment asked permission of the president of the bank to overdraw his account, saying that his agents were behind in their remittances, but he would hurry them up and soon make the deficit good. Getting the consent of the bank, he made his check in favor of Alexander Brown & Sons for the amount due from him, and bought a bill on London, which was remitted the company, and afterwards paid by the drawees in the ordinary course of business.

On the 19th of July, upon the completion of the adjustment of another part of the account, a further amount was found due from Jackson to the company of $5,520.48. He then drew another check in favor of Alexander Brown & Sons for this amount, and asked again for permission to overdraw, at the same time showing the check. After a repetition of substantially the same statements he had made on the former occasion, this check was certified by the direction of the president and handed back to him. He took it to Brown & Sons and bought another bill, which was sent forward to the company and paid in London. Before the remainder of his accounts were adjusted he left Baltimore, and his agency was revoked on the 24th or the 25th of July. The bank then called on the company to repay the overdraft, claiming that the money advanced was in fact a loan to the company. The company declined to recognize any liability, and this suit was brought to recover the balance that was due as for money loaned.

These facts are undisputed, and we think it clear, if the jury had been permitted topa §§ on the evidence, and had found against the company, their verdict should have been promptly set aside by the court. In point of fact the money was borrowed by Jackson to pay what he owed the company. His application was not made in the name of the company, and although his account was kept in his name as agent, it was, in reality, his individual account and not that of the company. That the money was borrowed to remit to the company must have been understood by the bank. The checks were in the form that had been used for a long time in making such remittances, and when money had been borrowed before to pay losses, it had always been done on the bills of Jackson drawn on the company in London. The form, then, which the transaction assumed, as claimed by the bank, is that of an application by a large foreign insurance company, through one of its agents in this country, for the privilege of overdrawing its bank account at the agency, so that funds might be remitted to the home office abroad a few days in advance of anticipated receipts from current business. So unusual and improbable a thing as this can hardly be presumed from the single fact that the agent of the company, who was also agent of other parties, saw fit to keep his bank account in his name as agent without indicating for whom. The natural inference, from the facts presented to the bank, certainly is, as the truth was, that the agent wanted the accommodation to enable him to meet his own obligations to the company in anticipation of the remittances of his subagents. Such a borrowing does not charge the company as a borrower. True, the company has saved what the bank has lost, but not in a way to make itself liable to testore what it has got. The bank trusted the agent, not the company. No other reasonable construction can be put on the acts of the parties at the time. A borrowing by an insurance agent to enable him to remit to his company the proceeds of his business is prima facie the borrowing of the agent himself rather than the company, and will be so treated unless the contrary is shown. Any other rule would be dangerous in the extreme. There is here no question of ratification. This can only arise where the borrowing is by the agent for the company without authority, and the company adopts by its acts what was done by the agent. Here the borrowing was by the agent for himself and not the company. It was clearly right, therefore, for the court to tell the jury, in advance of the verdict, that upon the evidence they must find for the company. Pleasants v. Fant, 22 Wall. 116.

Judgment affirmed.


text: Talk:National Bank v. Insurance Company (103 U.S. 783)/Opinion of the Court


text:
Manufacturing Company v. Corbin

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

The facts are stated in the opinion of the court.

Mr. Edmund Wetmore for the appellant.

Mr. Charles E. Mitchell and Mr. O. H. Platt, contra.

MR. JUSTICE WOODS delivered the opinion of the court.

title: Manufacturing Company v. Corbin


text: Talk:Manufacturing Company v. Corbin

title: Talk:Manufacturing Company v. Corbin


text:
Manufacturing Company v. Corbin/Opinion of the Court

This is a suit in equity, brought for the infringement of certain reissued letters-patent, dated Oct. 11, 1875, for an improvement in sash locks. The original letters were issued to George Voll and George McGregor as joint inventors, and the reissue was granted to their assignee, the Hopkins & Dickinson Manufacturing Company, the appellant.

In the years 1868 and 1869 George Voll was the foreman of George McGregor, a locksmith of Cincinnati, who kept a shop where he sold sash locks. Prior to February, 1868, McGregor had been selling a self-locking sash lock made by Robert Lee, of Cincinnati, under letters granted to him dated May 30, 1865.

Sash locks are a contrivance which, by fastening the top rail of the lower sash to the bottom rail of the upper sash, prevent the opening of windows from the outside, either by lowering the upper or raising the lower sash. Their general construction and operation is as follows: A lever is pivoted upon the top rail of the lower sash. When the lock is open the directin of this lever is the same as the rail of the sash. To fasten the sashes it is necessary to turn this lever on its pivot to a position across and at right angles to the division line between the impinging rails of the two sashes, when it engages with a catch on the bottom rail of the upper sash. This catch, if, as has generally been the case, it consists of a simple hook, under the projection of which one end of the lever remains when in the locking position, is sufficient to prevent the opening of the window by any direct pressure on the sashes exerted in the ordinary way to open a window, but there would be nothing to prevent the pushing aside of the locking lever by inserting from the outside, between the impinging rails of the sashes, a knife-blade, paper-cutter, or other similar instrument, and thus opening the lock. To prevent this, various devices have been used to hold the locking lever fast when in the locking position, so that it could not be moved sideways from the outside, but only from the inside, by disengaging it from the catch in the ordinary process of unlocking.

This object was accomplished in the sash lock of Lee, by giving the lever a certain amount of play on its pivot, so that when it was turned to the locking position its end not only passed under the catch, but also behind a lip in the catch, thereby forming, with the latter, a latch which prevented any lateral movement of the lever. This was, therefore, called a self-locking sash lock. As in most sash locks, the pivoted locking lever was secured to a bed plate fastened upon the top of the upper rail of the lower and inner sash. This plate was designated the base plate. The catch was attached to a similar plate on the bottom rail of the upper sash, which was called the striking plate.

McGregor was unable to furnish the Lee sash lock to fill a large order which he had received, and mentioned the fact to Voll, who in a short time produced the model of a self-locking sash lock. In this lock the locking lever was pivoted on a cylindrical stump upon the base plate, the base plate being fastened upon the upper rail of the lower sash. There was a round hole in that part of the cylindrical stump nearest the inner edge of the sash rail, fitted to receive a small cylindrical pin or bolt. That part of the locking lever, which, when it was in the locking position, was over the rail of the inner sash, had a longitudinal hole extending through it to the pivotal stump. Through this hole a cylindrical pin extended from the outer end of the lever to the stump, and was pressed by a spiral spring against the stump. When the locking lever was turned around into the locking position, the end of the pin, by the action of the spring, entered the hole by a horizontal motion, and thus the lever was prevented from turning sidewise. When it was desired to unlock the lock, the pin, which projected beyond the end of the locking lever and ended in a knob, was pulled back out of the hole, and the lever was turned sideways into its unlocked position.

This sash lock was made about February, 1868, and on the 24th of that month Voll applied for letters for his invention, describing it as an improvement in sash locks, the object of which was to prevent the lock from being unfastened from the outside by inserting a knife or other thin instrument between the sashes, and pushing aside the locking lever. The claim was thus set forth in his specification: 'Having thus fully described and set forth the nature of my invention, what I desire to secure by letters is: The pin F, operating in hole in stump A, preventing the fastener from being turned, as described and set forth.'

This application was refused because the invention had been anticipated by letters-patent issued to Brockseller & Sargent, May 11, 1858. Reference was also made by the examiner in his refusal to the letters of Robert Lee, dated May 30, 1865. This application was reheard and again rejected. The rejection was acquiesced in by Voll, who long after his application, and before its final rejection m ade a small lot of silver-plated sash locks according to his plan, which were sent in full working order to McGregor's shop for sale.

After this rejection Voll made another sash lock, omitting the hole and pin features, and using a pivoted piece at the outer end of the lever which worked vertically by a flat spring, locking the lever as before by an engagement on the base plate. With the view of having letters applied for, he sent a working model of this contrivance to Munn & Co., of New York, who informed him that it was not patentable.

Thereupon Voll and McGregor made the improvement in sash locks for which letters were issued to them dated March 30, 1869.

The original specification described by letter references the separate parts of the sash bolt, and their operation, and the claim was stated as follows: 'In a sash bolt the arrangement and combination of the base plate C with the segment c thereon, cam D, spring-bolt F, arm G, and catch H, as shown and described for the purpose specified.'

On July 1, 1870, Voll and McGregor sold these letters and the invention thereby secured to the appellant, who, Aug. 6, 1875, applied for a reissue of them. It was granted, Oct. 11, 1875, as prayed for.

In the application for a reissue the claim was thus stated: 'A vibrating lever provided with a bolt, in combination with a striking plate or hook, and with a catch-segment behind which the bolt can pass, formed upon the plate upon which the lever is pivoted, the whole constituting a sash fastener, and the parts enumerated in the claim being and operating substantially as specified.'

The essential distinction between the original invention of Voll, for which letters were refused, and that covered by the reissue to the appellant, is this: In the contrivance first named the locking lever when in locked position was held fast in its place by a bolt which was driven by a spiral spring into a hole in the stump on which the lever was pivoted. In the contrivance covered by the letters to Voll and McGregor the bolt which holds the locking lever in its place, instead of entering a hole in the post, is forced by the spiral spring past the end of a segment raised upon a base plate, which prevents a sidewise movement of the locking lever until the bolt is retracted.

The sash lock manufactured by appellees, which appellant alleged was an infringement of its reissued letters, had placed on the end of the locking lever a pivoted latch provided with a downward projection, which, when the locking lever was placed in a locking position, entered a hole or socket in the base plate.

The court below dismissed the bill. Its decree is brought here for review.

The defence insisted on is that if the claim of the appellant's reissued letters be construed to cover the appellees' sash locks, it is void, because it embraces the previous invention made by Voll alone, which had been abandoned to the public after it had been rejected by the Patent Office, and which was not the invention of Voll and McGregor jointly, and that if the reissue is so construed as to cover the sash locks made by the appellees, it is for a different invention from that which the original letters to Voll and McGregor covered.

We think this defence is sustained by the evidence.

It is perfectly clear that the sash lock manufactured by the appellees was as much an infringement of the device invented by Voll for which a patent was refused as it was of the reissued letters of the appellant. In both Voll's contrivance and the patented device of Voll and McGregor which the appellant claims, the catch to prevent the sidewise motion of the locking lever was on the base plate and not on the striking plate, and in Voll's invention the catch consisted of a bolt driven by a spiral spring into a hole, and in Voll and McGregor's invention the bolt was driven by a similar spring past the end of a segment raised on the base plate.

A pivoted latch on the end of the locking lever with a downward projection entering a socket in the base plate to prevent a lateral movementof the locking lever does not appear to us to be the equivalent of either the contrivance of Voll or of Voll and McGregor. The difference between them is as clear and distinct as the difference between a door latch and a door bolt.

But if the sash lock of the appellees is held to infringe the Voll and McGregor patent, it beyond question or controversy includes the separate device of Voll for which he made application for letters-patent. The only ground upon which the appellees' sash lock can be held to embody any part of the device of either, is that the catch to prevent the sidewise motion of the locking lever is on the base plate and not on the striking plate. But this was the important part of Voll's separate invention, and he was refused letters for it, and abandoned his application therefor. He made locks according to his device, and put them on sale.

Construed in the light of the fact that the application of Voll for letters-patent for his device was refused, the invention of Voll and McGregor is reduced to very narrow limits. Their improvement would consist solely in the fact that the bolt in the locking lever, instead of being driven by the spiral spring into a hole in the post upon which the lever is pivoted, is driven past the end of a segment raised on the base plate. So construed, it is perfectly plain that there is no infringement.

Conclusive evidence to establish the defence is found in the amendments made by the appellant in its application for reissue. If the reissue had been granted as applied for, it might with some plausibility have been claimed that the reissued letters were infringed by the sash locks made by the appellees. But the application in its original form was not granted. The specification for the reissue was amended by striking out, wherever they occurred, the words 'socket or depression in the base plate,' and substituting the words 'catch segment or segment.'

This shows beyond controversy that in asking for a reissue the appellant sought to make its letters cover sash locks like those made by the appellees, but was not able to do so, and the reissue was restricted to a sash lock in which the locking lever was made fast by a bolt driven past the end of a segment raised on the base plate.

These conclusions warrant the inference that if the reissued letters are to be construed as the appellant insists they should be, and as they must be, to include the sash locks of the appellees, they are broader than the original letters, and therefore void. The Wood Paper Patent, 23 Wall. 566; Russell v. Dodge, 93 U.S. 460; Powder Company v. Powder Works, 98 id. 126; Ball v. Langles, 102 id. 128; Manufacturing Company v. Ladd, id. 408; Wicks v. Stevens, 2 Woods, 312.

We are of opinion that the decree of the Circuit Court dismissing the appellants' bill was right. It is, therefore,

Affirmed.


text: Talk:Manufacturing Company v. Corbin/Opinion of the Court


text:
Cook v. Lillo

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

The facts are stated in the opinion of the court.

Mr. Charles B. Singleton, Mr. Richard H. Browne, and Mr. John A. Campbell for the appellant.

Mr. C. E. Schmidt and Mr. Thomas J. Semmes, contra.

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

title: Cook v. Lillo


text: Talk:Cook v. Lillo

title: Talk:Cook v. Lillo


text:
Cook v. Lillo/Opinion of the Court

It has long been settled in this court that transactions in Confederate money during the late civil war between the inhabitants of the Confederate States within the Confederate lines, not intended to promote the ends of the Confederate government, could be enforced in the courts of the United States, after the restoration of peace, to the extent of their just obligation. It is equally well settled that if a contract entered into under such circumstances, payable in dollars, was, according to the understanding of the parties, to be paid in Confederate dollars, upon proof of that fact the party entitled to the payment can only recover the value of Confederatedo llars in the lawful money of the United States. Thorington v. Smith, 8 Wall. 1.

The loan for which the notes sued on in this case were given was made by a check on one of the New Orleans banks. The business of the banks was at that time done in Confederate currency. That kind of money was received and paid out in ordinary transactions, but the evidence fails entirely to satisfy us that the dollars called for in the notes were, by the agreement or understanding of the parties, Confederate dollars. Cook owed a debt of $10,000, payable in lawful money of the United States, and bearing interest at the rate of ten per cent per annum. He borrowed of the Sonlies $10,000 at a reduced rate of interest to pay that debt. It is fair to presume from the evidence that the dollars he borrowed paid the dollars he owed. He says himself his only object in the transaction was to carry his debt at less interest. It is nowhere intimated that the dollars he expected to pay on his loan were other of different from those he owed on his old debt. Not long after the notes were given, New Orleans was taken possession of by the military forces of the United States, and was never afterwards within the Confederate lines. Payments to a large amount both of principal and interest have been made, and always in lawful money or its equivalent. So far as we can discover from the evidence, no claim was ever made that the notes called for Confederate dollars until about the time of the commencement of this suit, which was fifteen years after the notes were given, and after thousands of dollars had been paid any many extensions of time secured. The court below was clearly right, therefore, in rendering a decree without any deduction for the depreciated value of Confederate dollars.

It is not denied that Lillo, the complainant below, was an alien when the suit was begun. He could, therefore, sue in the courts of the United States. He is the holder of the notes sued on, and there is nothing in the evidence to show that he has not the right to maintain this action. The notes in his hands are subject to the same defences they would be in the hands of the Sonlies, because, confessedly, they were transferred to him long after they had become due.

By a statute of Louisiana, if a person pays on a contract a higher rate of interest than eight per cent, it may be sued for and recovered back within twelve months from the time of the payment. Rev. Stat. 1870, sect. 1855. Before this statute, which was first enacted in 1844, it had been decided by the highest court of the State in several cases that money paid for usurious interest could not be reclaimed or imputed to the capital. Perillat v. Puech, 2 Mart. (La.) N. S. 672; Millaudon v. Arnous, 3 id. 596; Poydras v. Turgeau, 14 id. 37; Merchants' Bank v. Gove, 15 id. 378; Cox v. Rowley, 12 Rob. (La.) 273. Since the statute it has been held that a reclamation cannot be made, or the usurious interest imputed to the principal, unless the suit for the recovery is begun, or plea of usury set up to the claim within twelve months after the payment is made. Cox v. McIntyre, 6 La. Ann. 470; Weaver v. Maillot, 15 id. 395. In view of these decisions the appellant was not entitled to any credit on the principal of his debt by reason of usurious interest paid, because his last payment of interest was made in March, 1875, and this suit was not begun until Jan. 11, 1877, more than twelve months afterwards.

This disposes of all the errors assigned.

Decree affirmed.

title: Cook v. Lillo/Opinion of the Court


text: Talk:Cook v. Lillo/Opinion of the Court

title: Talk:Cook v. Lillo/Opinion of the Court


text:
Ex Parte Railway Company (103 U.S. 794)

ORIGINAL.

Mr. Fillmore Beall presented the petition of the Des Moines and Minneapolis Railroad Company, duly verified by affidavit, and moved for a rule on the Circuit Court of the United States for the District of Iowa, Northern Division, to show cause why a writ of mandamus should not issue. The petition sets forth that the company, a corporation existing under the las of Iowa, brought suit in that court Sept. 3, 1880, against John B. Alley, a citizen of Massachusetts, to recover the sum of $99,616.05, and in the complaint asked, in conformity with the practice and pleading existing in the courts of Iowa, for an attachment against his property on the ground that he was a non-resident of the State of Iowa; that upon filing the complaint duly sworn to, and the requisite bond with security, as required by the code of Iowa, the clerk of the court issued in the suit, in usual form, the ordinary summons in a civil action, and also a writ of attachment against the property of said Alley, directed to the marshal of the district, commanding him to attach the lands and tenements, goods and chattels, rights and credits, of said Alley (except such as is exempt from execution) wherever the same might be found in said district, or so much thereof as might be necessary to satisfy said sum; that said writs were delivered to the marshal for service, who thereupon made return upon said writ of attachment that the same came into his hands on the third day of September, 1880, and that he served the same on the fourth day of September, 1880, at 8 o'clock A. M., by levying upon certain shares of stock in certain named railroad corporations and in a corporation owning certain lands, the property of said Alley within said district; and he returned the said summons 'not served, the within-named John B. Alley not being found in my district.'

The petition further sets forth that the company thereupon filed an affidavit in the suit showing that personal service could not be made on said Alley within the said district (State) of Iowa; that the action was brought against a non-resident of the (State) district of Iowa, and that he had property in the State sought to be taken by attachment, and asking an order of service by publication, or an order for personal service upon the defendant, either within or without the (State) district; that afterwards said motion for such order coming on for hearing, said Alley entering a special plea to the jurisdiction, the gravamen thereof being that he was not an inhabitant of said district, and had not been found therein, moved a dismissal of the suit, and for an order dissolving the attachment; that the court sustained the plea, and adjudged that the suit be dismissed, and the attachment dissolved; to which action of the court the company duly excepted, and gave notice of this proceeding to review the same.

The motion was for a rule to show cause why a peremptory mandamus should not issue to the Circuit Court commanding it to set aside its orders dismissing the suit and dissolving the attachment, to restore the cause to its place on the docket, to grant the order of service asked for, and to proceed to hear the cause further, and upon such issues as may be framed therein.

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

title: Ex Parte Railway Company (103 U.S. 794)


text: Talk:Ex Parte Railway Company (103 U.S. 794)


text:
Ex Parte Railway Company (103 U.S. 794)/Opinion of the Court

This motion is denied, 1, because it is an attempt to use the writ of mandamus as a writ of error to bring here for review the judgment of the Circuit Court upon a plea to the jurisdiction filed in the suit; and, 2, because if a writ of mandamus could be used for such a purpose the judgment below was clearly right. Under sect. 739 of the Revised Statutes, no civil suit, not local in its nature, can be brought in the Circuit Court of the United States, against an inhabitant of the United States, by original process, in any other State than that of which he is an inhabitant, or in which he is found at the time of serving the writ. It is conceded that the person against whom this suit was brought in the Circuit Court was an inhabitant of the State of Massachusetts, and was not found in or served with process in Iowa. Clearly, then, he was not suable in the Circuit Court of the District of Iowa, and unless he could be sued no attachment could issue from that court against his property. An attachment is but an incident to a suit, and unless the suit can be maintained the attachment must fall. The act of June 4, 1880, c. 120, pr oviding the times and places of holding the Circuit Court of the United States in the District of Iowa and for other purposes' (21 Stat. 155), divides that district into four divisions, and requires suits against an inhabitant of the district to be brought in the division in which he resides. The provision of the second section, that, 'where the defendant is not a resident of the district, suit may be brought in any division where property or the defendant is found,' applies only to suits which may be properly brought in the district against a non-resident. Such a suit, if not local, must be in the division where the defendant is found when served with process; if local, in the division where the property, which is the subject-matter or the action, is situated. There is not manifested anywhere in this act an intention of repealing sect. 739, so far as it affects the Iowa district.

Motion denied.


text: Talk:Ex Parte Railway Company (103 U.S. 794)/Opinion of the Court


text:
Crouch v. Roemer

APPEAL from the Circuit Court of the United States for the District of New Jersey.

This is a suit in equity by George Crouch against William Roemer to prevent the infringement by the latter of reissued letters-patent No. 4289, granted March 7, 1871, to the complainant for an improvement in straps for shawls.

Among the defences set up by the respondent was the want of novelty and the prior public use of the invention described in the letters. The remaining facts are stated in the opinion of the court.

The court below sustained the defence and dismissed the bill. Crouch thereupon appealed.

Mr. E. B. Barnum for the appellant.

Mr. Arthur v. Briesen, contra.

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

title: Crouch v. Roemer


text: Talk:Crouch v. Roemer

title: Talk:Crouch v. Roemer


text:
Crouch v. Roemer/Opinion of the Court

The appellant in this case, complainant below, in describing his invention, when he applied for his patent, said that before his invention 'straps had been used to confine a shawl, or similar article, in a bundle, and a leather cross-piece, with loops at the ends, had extended from one strap to the other; and above. and attached to this leather cross-piece, was a handle.' He then said: 'My invention consists of a rigid cross-bar beneath the handle, combined with straps that are passed around the shawl or bundle, such straps passing through loops at the ends of the handle.' This was because the 'leather cross-piece or connecting stap' was 'liable to bend and allow the straps to be drawn toward each other by the handle in sustaining the weight;. . . hence the handle is inconvenient to grasp.' From this, as it seems to us, the rigid cross-bar was, from the beginning, the controlling idea of the inventor. His object clearly was, not to bind and hold the bundle, but to keep the handle which the holder was to grasp from pressing the sides of the hand. Hence he says: 'I claim as my invention-1. The rigid cross-bar, connecting the ends of the handle, and provided with loops for the straps, substantially as and for the purposes set forth;' that is to say, to bind and hold a bundle to be carried. The drawings which accompany this application show that the inventor had in his mind straps which were to pass over the rigid bar crosswise, but there is nothing to indicate that they might not pass over the ends or through openings in the bar itself. Next he claims, 'loops made of the leather of the handle, and secured to the rigid cross-bar,' and then, 'the rigid cross-bar for a shawl-strap made of sheet metal, corrugated and covered with leather.'

Clearly the defendant could not have infringed any other than the first claim. He did have a rigid cross-bar connecting the ends of a handle provided with openings, which were undoubtedly the equivalent of loops through which the straps to hold the bundle could pass; but he had no loops made of the leather of the handles, and no cross-bar made of sheet-metal corrugated and covered with leather. Our inquiries are, therefore, confined to the validity of the first claim in the complainant's patent.

It is conceded in the patet itself that shawl-straps with handles attached to a leather cross-piece having loops at the ends were old. Eustace, one of the witnesses for the complainant, says he made his goods with a cross-piece of the firmest leather he could get, doubled and stitched, so as to render it firmer still. His object clearly was to keep the weight of the bundle from drawing the ends of the handle together so as to press against the sides of the hand.

The testimony leaves no doubt on our minds that handles fastened on rigid cross-bars and used to carry bundles were known long before the complainant's invention. Possibly in adjusting them to use, though this is by no means certain, the straps to bind the bundle were not passed through loops across the bar, yet it is clear, beyond all question, that the handle, rigid cross-bar, loops, or their equivalent, and straps, or equivalents, were used in combination to keep together and carry one or more articles in a package made by piling or rolling the articles together. Under these circumstances it was no invention to stiffen by artificial means the leather cross-piece which had before been made as rigid as it could be by thickness, doubling, and stitching. All that was done by this inventor was to add to the degree of rigidity which had been used before. The addition of metal or other substance as a stiffener of the known cross-piece, which had already been made rigid in a degree, was not invention. The substantial elements of a wellknown structure were thus, in no patentable way, changed.

This view of the case makes it unnecessary to follow counsel in their efforts to break down or sustain the testimony of individual witnesses. The thing which the complainant claims to have patented was substantially made and used long before his invention. All he did was, by the use of known equivalents for some of the elements of former structures, to make it somewhat better than it was ever made before. This is not patentable.

Decree affirmed.

title: Crouch v. Roemer/Opinion of the Court


text: Talk:Crouch v. Roemer/Opinion of the Court


text:
Johnston v. Laflin

APPEAL from the Circuit Court of the United States for the Eastern District of Missouri.

The facts are stated in the opinion of the court.

Mr. John B. Henderson and Mr. George H. Shields for the appellant.

Mr. A. W. Slayback, contra.

MR JUSTICE FIELD delivered the opinion of the court.

title: Johnston v. Laflin


text: Talk:Johnston v. Laflin

title: Talk:Johnston v. Laflin


text:
Johnston v. Laflin/Opinion of the Court

The questions raised in this case are important to owners of shares in the national banks, but they are not difficult of solution. The delay in their decision has been caused by the great pressure of business upon the court, and not from any doubt as to their proper disposition. The appellant, the complainant below, is the receiver of the National Bank of the State of Missouri, appointed by the comptroller of the currency on the 27th of June, 1877. The bank failed on the 20th of that month. The defendant, James H. Britton, was its president, and had been so for some years. On the 16th of May, 1877, and for some time previously, the defendant Laflin was a stockholder of the bank, owning eighty-five shares of full-paid stock. He was not a director of the bank, nor had he any personal knowledge of its actual financial condition. It is to be presumed that he regarded that condition as sound, for up to the time of the failure he continued to deposit funds with it for a company of which he was a resident director at St. Louis. On the day mentioned, May 16, 1877, he sold his eighty-five shares to a broker, to whom he delivered his certificate of the stock, with a blank power of attorney indorsed thereon, authorizing the attorney, whose name might be subsequently inserted by the broker, or any other party becoming the owner of the certificate, to transfer it on the books of the bank in such form and manner as might be necessary or required by its regulations. Laflin did not at the time know for whom the stock was bought; information on the subject was withheld from him. He received for the price agreed the broker's check on a an king-house in St. Louis, which was paid the same day on presentation. The broker was, however, in fact acting for Britton, the president of the bank, who represented that he was purchasing for himself or for a party whose name he did not disclose. There was no intimation that he was making the purchase for the bank or in its interest. He gave the broker his individual check on the bank for the price of the stock, which was paid on presentation. Subsequently, but on the same day, he received the certificate, and thereupon directed a book-keeper in the bank, named Geralt, to fill up the power of attorney with his, the book-keeper's, name, and to transfer the certificate to his, Britton's, name, as trustee on the transfer book or stock register of the bank, which was accordingly done. He had at the time, to his individual credit at the bank, several hundred dollars more than sufficient to meet his check. He had for years dealt largely on his own account in its stock, and there was nothing in the transaction between the broker and himself to awaken suspicion as to its legality or propriety. Some days afterwards, on the 29th of the same month, at an election of directors, he represented and voted on the stock purchased.

It appears, however, that whilst the shares stood on the official stock register in the name of Britton as trustee, without stating for whom he was trustee, the transaction was entered on the stock ledger in an account with him as 'trustee of the bank.' And by his directions the book-keeper credited his individual account with the amount of the check given for the shares, and charged the same amount to the 'sundry stock account.' In other words, the entries on the books-other than the official stock register-showed that the stock was purchased by Britton for the benefit of the bank and paid for with its funds. But neither Laflin nor the broker had any notice of the manner in which the transfer was made, or of the entries on the books of the bank, or that the purchase had been made with its funds. The book-keeper, Geralt, who made the transfer and the entries, had, however, actual knowledge of the facts.

The present suit is brought by the receiver of the bank to set aside the purchase of the eighty-five shares, to compel Laflin to repay the money received and Britton to retransfer to him the shares on the books of the bank, and to have him declared to be still a stockholder in respect of those shares.

The statute declares that the capital stock of every national banking association shall be divided into shares of one hundred dollars each, and be transferable on its books in such manner as may be prescribed by its by-laws or articles, and that every person becoming a stockholder, by such transfer, shall, in proportion to his shares, succeed to all the rights and liabilities of the prior holder. There was no by-law of the association here regulating transfers of its shares, but each certificate of stock contained this provision: 'Transferable only on the books of the said bank, in person or by attorney, on the return of this certificate, and in conformity with the the provisions of the laws of Congress and the by-laws which may be in force at the time of such transfer.'

The statute also declares that no association shall be the purchaser of any shares of its own capital stock, unless the purchase be necessary to prevent a loss upon a debt previously contracted. The purchase by the bank, through its president, in the present case was not made to prevent such a loss. Laflin was not indebted to the bank at the time he sold his shares. The receiver, therefore, starting with the conceded fact that the purchase by the bank was prohibited, and therefore illegal on its part, seeks to charge Laflin with the consequences of such illegality, as though he had dealt directly with the bank, or had known at the time that the purchase was made for it. He assumes such knowledge by Laflin because the party with whose name the blank power of attorney was filled, to make the transfer of the ceti ficate of stock, was cognizant of the facts. His argument is substantially this: The transfer of the stock is not complete until made on the books of the bank, and the attorney who made it knew that the purchase was by the bank and with its funds, and his knowledge was the knowledge of Laflin.

The general doctrine that the principal in a transaction is chargeable with notice of matters affecting its validity, coming to the knowledge of his agent pending the proceeding, is not questioned. Had Geralt, the book-keeper, been appointed by Laflin to make the sale, and had he in negotiating it learned the facts as to the purchase and use of the funds of the bank, there would be ground to invoke the application of the doctrine. Bur such was not the position of Geralt to Laflin. The sale was consummated, so far as Laflin was concerned, when he delivered the certificate, with the power to transfer it, to the broker. The latter did not mention the name of the principal for whom he was acting. He declined to give it. Laflin had a right, therefore, to treat him as the principal, and if he was competent to make the purchase the sale was valid. Shares in the capital stock of associations, under the national banking law, are salable and transferable at the will of the owner. They are, in that respect, like other personal property. The statute recognizes this transferability, although it authorizes every association to prescribe the manner of their transfer. Its power in that respect, however, can only go to the extent of prescribing conditions essential to the protection of the association against fraudulent transfers, or such as may be designed to evade the just responsibility of the stockholder. It is to be exercised reasonably. Under the pretence of prescribing the manner of the transfer, the association cannot clog the transfer with useless restrictions, or make it dependent upon the consent of the directors or other stockholders. It is not necessary, however, to consider what restrictions would be within its power, for it had imposed none. As between Laflin and the broker, the transaction was consummated when the certificate was delivered to the latter, with the blank power of attorney indorsed, and the money was received from him. As between them, the title to the shares then passed; whether that be deemed a legal or equitable one matters not; the right to the shares then vested in the purchaser. The entry of the transaction on the books of the bank, where stock is sold, is required, not for the translation of the title, but for the protection of the parties and others dealing with the bank, and to enable it to know who are its stockholders, entitled to vote at their meetings and receive dividends when declared. It is necessary to protect the seller against subsequent liability as a stockholder, and perhaps also to protect the purchaser against proceedings of the seller's creditors. Purchasers and creditors, in the absence of other knowledge, are only bound to look to the books of registry of the bank. But as between the parties to a sale, it is enough that the certificate is delivered with authority to the purchaser, or any one he may name, to transfer it on the books of the company, and the price is paid. If a subsequent transfer of the certificate be refused by the bank, it can be compelled at the instance of either of them. Bank v. Lanier, 11 Wall. 369; Webster v. Upton, 91 U.S. 65; Bank of Utica v. Smalley, 2 Cow. (N. Y.) 770; Gilbert v. Manchester Iron Co., 11 Wend. (N. Y.) 627; Commercial Bank of Buffalo v. Kortright, 22 id. 348; Sargeant v. Franklin Insurance Co., 8 Pick. (Mass.) 90.

The transferability of shares in the national banks is not governed by different rules from those which are ordinarily applied to the transfer of shares in other corporate bodies. The power of attorney indorsed on the certificate is usually written or printed, with a space in blank for the name of the attorney to be inserted, for the accommodation of the purchaser. The subsqu ent filling up of the blank by him with another name, instead of his own, as it may suit his convenience, does not so connect the vendor with the party named as to charge him with the latter's knowledge and thus affect the previous transaction. A different doctrine would put a speedy end to the signing of powers of attorney in blank. And instruments of that kind are of great convenience in the sale of shares of incorporated companies, and are in constant use. The name with which the blank may be subsequently filled up by the purchaser is not, in practice, regarded as affecting the previous sale in any respect, but as a matter which concerns only the purchaser. It would be a source of disturbance in business if any other result were attached by the law to the proceeding.

The further position of the receiver, that the assets of the bank constituted a trust fund for the benefit of its creditors, and, where wrongfully diverted, can be followed in whosesoever hands they can be traced, may, as the statement of a general doctrine, be admitted. But it has no application to the case at bar. Here no assets of the bank were received by Laflin. What he received came from the broker, the only person with whom he dealt or whom he know as principal in the negotiation. The circumstance that the purchase was actually in the interest of the bank-though of that fact the broker was ignorant-cannot affect the latter's character as principal, so far as Laflin was concerned, which he bore in the negotiation.

The whole transaction, on the part of Laflin, was free from any imputation of fraud. He sold his shares to a person competent to purchase and hold them, and received the stipulated price. It would be a perversion of justice and of the ordinary rules governing men in commercial transactions to hold the sale, under such circumstances, vitiated by the relations of the purchaser to others, of which the seller had no knowledge, or any prounds to entertain a suspicion. The validity of the sale of stock cannot be made to depend upon the accident of the immediate purchaser, or of the party to whom he may transfer the certificate, in filling up the blank in the power of attorney with the name of a person, to make the formal transfer, who is acquainted with the secret interests of others in the shares purchased. The validity of a sale and its completeness must be determined by the relation which the contracting parties at the time openly bear to each other.

Of course the whole case here would be changed if the sale by Laflin had not been made in good faith, but was made merely to evade his just responsibility as a stockholder, or to work a fraud upon other stockholders or creditors of the bank.

Decree affirmed.

title: Johnston v. Laflin/Opinion of the Court


text: Talk:Johnston v. Laflin/Opinion of the Court


text:
Thompson v. Perrine

ERROR to the Circuit Court of the United States for the Southern District of New York:

This action was commenced on the first day of May, 1876, by Perrine, against the town of Thompson, a municipal corporation in Sullivan County, New York, for the amount of coupons attached to certain bonds, signed by G. M. Benedict, N. S. Hamilton, and W. H. Cady, county commissioners, and issued by them in the name of the town under date of May 1, 1869. They were purchased by him of Gulick & Van Kleeck, July 20, 1875, he paying cash therefor. Each bond is payable to bearer on the 1st of March, 1899. It recites that it 'is a valid security, being issued by virtue of an act entitled 'An Act to authorize certain towns in the counties of Sullivan and Orange to issue bonds and take stock in any company now organized, or that may hereafter be organized within three years after the passage of this act, for the purpose of building a railroad from the village of Monticello in the county of Sullivan through the towns of Thompson and Forestburgh in said county, and the town of Deerpark in the county of Orange, to Port Jervis, Orange County,' passed May 4, 1868, and of the act amendatory thereof, passed April 1, 1869.' And that the pom ise to pay that sum is 'by virtue and in pursuance of the acts above entitled and referred to, and for value received in the stock of the Monticello and Port Jervis Railway Company.'

Those acts authorized the commissioners who might be appointed, in the mode therein prescribed, on behalf of any town along the route of the proposed road from Monticello to Port Jervis, to borrow, on its credit, such sums of money, not exceeding thirty-three per cent of the valuation of the town, to be ascertained by its assessment rolls for 1867, for a term not exceeding thirty years, at not exceeding seven per cent interest per annum, and 'to execute bonds therefor under their hands and seals,'-such debt not, however, to be contracted, and such bonds not to be issued, until there was obtained the written consent of the majority of the taxpayers, appearing upon the last assessment roll, as shall represent a majority of the taxable property, not including lands owned by non-residents; nor until a certain amount of the capital stock of the company had been subscribed in good faith, and paid, by individuals or corporations. The statute required the fact that the persons so consenting represented the proper number of taxpayers, should be supported by the affidavit of one of the town assessors or the town clerk,-the consent and the affidavit to be filed in the offices of the county and town clerks respectively, a certified copy whereof 'shall be evidence of the facts therein contained and certified in any court of this [that] State, and before any judge or justice thereof.'

title: Thompson v. Perrine


text: Talk:Thompson v. Perrine

title: Talk:Thompson v. Perrine