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New Orleans v. Clark/Opinion of the Court

This was an action upon several coupons for interest annexed to bonds issued by the late city of Carrollton, in Louisiana, to the Jefferson City Gas-light Company, a corporation created under the laws of that State, for laying gas-pipes through certain streets of the city, and introducing gas for the use of its citizens. The bonds were indorsed by the president of the company, with its guaranty, for the payment of their principal and interest. His authority to make this guaranty, so far as it relates to the interest, was denied by the company; but the Circuit Court held that the admissions and evidence in the case showed a prima facie case of liability.

The bonds were issued pursuant to an ordinance of the city, which provided for the payment of the interest thereon, but made no provision for the payment of the principal; and for this omission, and because they were issued in aid of a private corporation, their validity was questioned by the city of New Orleans, upon which the liabilities of Carrollton were cast upon its annexation to that city; and as it was contended in answer to this position that the legislature had subsequently, in the act of annexation, legalized the issue, the power of the legislature to do this was denied, but the Circuit Court held that the legislature possessed the power; and the city of New Orleans was adjudged bound to pay the bonds.

The record shows that the bonds were issued after the work had been done for which the contract was made and the gas had been introduced into the city, and that they were transferred to the plaintiff for a valuable consideration.

Two questions are presented for our determination:--

1st, Whether the Jefferson City Gas-light Company is liable on the guaranty made by its president for the interest on the bonds; and,

2d, Whether it was competent for the legislature of Louisiana to legalize the issue of the bonds, if for any cause they were originally invalid, or, more properly, to compel their payment by the city of New Orleans.

1. The ordinance which authorized the contract with the company, and the issue of the bonds of the city, in terms provided that the company should 'guarantee the said bonds and assume the payment of the principal thereof at maturity.' Their delivery to the company was made dependent upon this condition; but as the provision mentioned that the company was to assume payment of the principal, after specifying that it was to guarantee the bonds, it is argued that the guaranty of the principal only was intended. This is not, however, a just inference from the language. The guaranty of the bonds embraced both the principal and the interest. The payment of bonds, without other designation, always implies a payment of the principal sum and its incident; and a guaranty in similar terms covers both. The ordinance contemplated two undertakings by the company,-one to the bondholder, and one to the city. The guaranty was to be for the security of the bondholder; it was to be an undertaking to answer for the city's liability, and to be collateral to it. The other undertaking was to be for the security of the city, by placing the company under obligation to provide for the payment of the principal of the bonds at their maturity, an obligation which otherwise would not have existed.

The contract embraced the stipulations contained in the ordinance, and the indorsement of the guaranty of the company by its president on the bonds was a substantial compliance with both. The language used, guaranteeing 'the payment of the principal and interest,' only declared in terms what would have been impli d from a simple guaranty of the bonds. It is not denied that the president was the proper officer to execute whatever guaranty was authorized.

2. The invalidity of the bonds was asserted, as already stated, on two grounds: first, that they were issued in aid of a private corporation; and, second, that the city of Carrollton, in issuing them, created a debt, without providing in the same ordinance the means of paying its principal. The first of these grounds is not one which affects the validity of the bonds. A private corporation, as well as individuals, may be employed by a city in the construction of works needed for the health, comfort, and convenience of its citizens; and, though such works may be used by the corporation for its own gain, yet, as they advance the public good, the corporation may be properly aided in their construction by the city; and for that purpose its obligations may be issued, unless some constitutional or legislative provision stands in the way. The bonds here were not given to the company as a gratuity, but for a valuable consideration; and if the company failed to pay them at maturity, and their payment was made by the city, the gas-works were to become the property of the city.

The second of these grounds is not without force. An act of the legislature of Louisiana, passed in March, 1855, had declared that the constituted authorities of incorporated towns and cities in the State should not thereafter 'have power to contract any debt or pecuniary liability, without fully providing in the ordinance creating the debt the means of paying the principal and interest of the debt or contract.' This enactment imposed a restriction upon the creation of liabilities by municipal bodies, which could not be disregarded. It was intended to keep their expenditures within their means; and its effcacy in that respect would be entirely dissipated, if debts contracted in violation of it were held legally binding upon the municipalities.

Assuming, then, that the bonds were invalid for the omission stated, they still represented an equitable claim against the city. They were issued for work done in its interest, of a nature which the city required for the convenience of its citizens, and which its charter authorized. It was, therefore, competent for the legislature to interfere and impose the payment of the claim upon the city. The books are full of cases where claims, just in themselves, but which, from some irregularity or omission in the proceedings by which they were creased, could not be enforced in the courts of law, have been thus recognized and their payment secured. The power of the legislature to require the payment of a claim for which an equivalent has been received, and from the payment of which the city can only escape on technical grounds, would seem to be clear. Instances will readily occur to every one, where great wrong and injustice would be done if provision could not be made for claims of this character. For example, services of the highest importance and benefit to a city may be rendered in defending it, perhaps, against illegal and extortionate demands; or moneys may be advanced in unexpected emergencies to meet, possibly, the interest on its securities when its means have been suddenly cut off, without the previous legislative or municipal sanction required to give the parties rendering the services or advancing the moneys a legal claim against the city. There would be a great defect in the power of the legislature if it could not in such cases require payment for the services, or a reimbursement of the moneys, and the raising of the necessary means by taxation for that purpose. A very different question would be presented, if the attempt were made to apply the means raised to the payment of claims for which no consideration had been received by the city.

The act of 1874, which annexed Carrollton to New Orleans, provided that all property, rights, and interests of every kind of the former city should be vested in the latter, and that the debts and liabilities o Carrollton, 'including the funding and improvement bonds, and the bonds issued to the Jefferson City Gas-light Company, and known as gas bonds,' should be assumed and paid by the city of New Orleans; and that city was in terms declared liable therefor. Independently of this legislation, the liabilities of Carrollton would have devolved with its property upon New Orleans on the annexation to that city, so far, at least, that they could be enforced against the inhabitants and property brought by the annexation within its jurisdiction. Broughton v. Pensacola, 93 U.S. 266. Equitable claims which had existed against the dissolved city would continue as before, and be equally subject to legislative recognition and enforcement, or their payment might be required, as in this case, by the act of annexation. The power of taxation which the legislature of a State possesses may be exercised to any extent upon property within its jurisdiction, except as specially restrained by its own or the Federal Constitution; and its power of appropriation of the moneys raised is equally unlimited. It may appropriate them for any purpose which it may regard as calculated to promote the public good. Of the expediency of the taxation or the wisdom of the appropriation it is the sole judge. The power which it may thus exercise over the revenues of the State it may exercise over the revenues of a city, for any purpose connected with its present or past condition, except as such revenues may, by the law creating them, be devoted to special uses; and, in imposing a tax, it may prescribe the municipal purpose to which the moneys raised shall be applied. A city is only a political subdivision of the State, made for the convenient administration of the government. It is an instrumentality, with powers more or less enlarged, according to the requirements of the public, and which may be increased or repealed at the will of the legislature. In directing, therefore, a particular tax by such corporation, and the appropriation of the proceeds to some special municipal purpose, the legislature only exercises a power through its subordinate agent which it could exercise directly; and it does this only in another way when it directs such corporation to assume and pay a particular claim not legally binding for want of some formality in its creation, but for which the corporation has received an equivalent. ''The People ex rel. Blanding v. Burr, 13 Cal. 343; Town of Guilford v. Supervisors of Chenango County'', 18 Barb. (N. Y.) 615; S.C.. 13 N. Y. 143.

The Constitution of Louisiana of 1868, which provides that no retroactive law shall be passed, does not forbid such legislation. A law requiring a municipal corporation to pay a demand which is without legal obligation, but which is equitable and just in itself, being founded upon a valuable consideration received by the corporation, is not a retroactive law,-no more so than an appropriation act providing for the payment of a pre-existing claim. The constitutional inhibition does not apply to legislation recognizing or affirming the binding obligation of the State, or of any of its subordinate agencies, with respect to past transactions. It is designed to prevent retrospective legislation injuriously affecting individuals, and thus protect vested rights from invasion.

Judgment affirmed.


text: Talk:New Orleans v. Clark/Opinion of the Court

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Railway Company v. Stevens

ERROR to the Circuit Court of the United States for the District of Maine.

This was an action on the case for negligence, brought against the Grand Trunk Railway of Canada, to recover damages for injuries received by Stevens whilst a passenger in its cars. The plaintiff, being owner of a patented car-coupling, was negotiating with the defendant, at Portland, Me., for its adoption and use by the latter, and was requested by the defendant to go to Montreal to see the superintendent of its car department in relation to the matter, the defendant offering to pay his expenses. The pla ntiff consented to do this; and, in pursuance of the arrangement, he was furnished with a pass to carry him in the defendant's cars. This pass was in the usual form of free passes, thus, 'Pass Mr. Stevens from Portland to Montreal,' and signed by the proper officer. On its back was the following printed indorsement:--

'The person accepting this free ticket, in consideration thereof, assumes all risk of all accidents, and expressly agrees that the company shall not be liable, under any circumstances, whether of negligence by their agents or otherwise, for any injury to the person, or for any loss or injury to the property, of the passenger using the ticket. If presented by any other person the individual named therein, the conductor will take up this ticket and collect fare.'

The plaintiff testified that he put the pass into his pocket without looking at it; and the jury found specially that he did not read the indorsement previous to the accident, and did not know what was indorsed upon it. He had been a railroad conductor, however, and had seen many free passes, some with a statement on the back, others without.

During the passage from Portland to Montreal, the car in which the plaintiff was riding ran off the track and was precipitated down an embankment, and he was much injured. The direct cause of the accident, according to the proof, was that, at the place where it occured, and for some considerable distance in each direction, the bolts had been broken off the fishplates which hold the ends of the rails together, so that many of these plates had fallen off on each side, leaving the rails without lateral support. The consequence was that the track spread, and the cars ran off, as before stated. There was also evidence that at this place the track was made of old rails patched up.

The above facts appeared on the plaintiff's case, and the defendant offered no evidence, but requested the court to instruct the jury as follows:--

First, That if the plaintiff, at the time of sustaining the injury, was travelling under and by virtue of the pass produced in evidence in the case, he was travelling upon the conditions annexed to it.

Second, That if the plaintiff, at the time of sustaining the injury, was travelling under and by virtue of the pass produced in evidence in the case, the defendant is not liable.

Third, That if the plaintiff, at the time of sustaining the injury, was travelling as a free passenger, the defendant is not liable

Fourth, That if the plaintiff, at the time of sustaining the injury, was travelling as a gratuitous passenger, without any consideration to the defendant for his transportation, the defendant is not liable.

The court refused these instructions, as inapplicable to the evidence produced, and instructed the jury as follows, viz.:--

That if the jury find that, in May, 1873, the plaintiff was interested in a car-coupling, which had been used on the cars of the defendant since December previous, and that the officers of the company were desirous that the plaintiff should meet them at Montreal to arrange about the use of such couplings on their cars by defendant, and they agreed with him to pay his expenses if he would come to Montreal, and he agreed so to do, and took passage on defendant's cars, and was, by the reckless misconduct and negligence of the defendant, and without negligence on his part, injured whilst thus a passenger in defendant's car, the defendant is not exonerated from liability to plaintiff for his damages occasioned by such negligence, by reason of the indorsement upon the pass produced in evidence.

There was a verdict and judgment for the plaintiff. The defendant then sued out this writ of error.

Mr. John Rand for the plaintiff in error.

The plaintiff below was travelling gratuitously under a free pass, and subject to its conditions. The company was, therefore, not liable. Wells v. New York Central Railroad Co., 24 N. Y. 181; Perkins v. Same, id. 196; Bissell v. Same, 25 id. 442; Poucher v. Same, 49 id. 263; Cragin v. Same, 51 id. 64. He cannot be permitted to deny that he knew and accepted those conditions. Steen v. Steamship Company, 57 N. Y. 1; Monitor Company v. Buffum, 115 Mass. 345.

Mr. C. P. Mattocks, contra.

A pass, purporting on its face to be a free pass, may, nevertheless, be given for a consideration, and the holder be a passenger for hire. That such was the fact in this case is conclusively shown by the evidence, and the company is liable. Kinney v. Central Railroad Co., 34 N. J. L. 513; S.C.. 3 Am. Rep. 265; Philadelphia & Reading Railroad Co. v. Derby, 14 How. 486; Wilton v. Middlesex Railroad Co., 107 Mass. 108; Jacobus v. St. Paul & Chicago Railway Co., 20 Minn. 125; Rose v. Des Moines Valley Railroad Co., 39 Iowa, 346; Cleveland, Painesville, & Ashtabula Railroad Co. v. Curran, 19 Ohio St. 1; S.C.. 2 Am. Rep. 362. Bissell v. New York Central Railroad Co., 25 N. Y. 442, and Poucher v. Same, 49 id. 263, can have no weight in this court since Railroad Company v. Lockwood, 17 Wall. 357.

Even admitting that the words printed on the back of the pass furnished to the plaintiff could, if assented to by him, have limited the company's liability, there is no evidence whatever that he had knowledge of them. There was, therefore, no assent upon his part to the terms of the alleged special contract or notice. New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344; The Philadelphia & Reading Railroad Co. v. Derby, 14 id. 468; The Steamboat New World v. King et al., 16 id. 469; York Company v. Central Railroad, 3 Wall. 107; Walker v. The Transportation Company, id. 150; Express Company v. Kountze Brothers, 8 id. 342; Railroad Company v. Lockwood, supra.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Railway Company v. Stevens


text: Talk:Railway Company v. Stevens

title: Talk:Railway Company v. Stevens


text:
Railway Company v. Stevens/Opinion of the Court

It is evident that the court below regarded this case as one of carriage for hire, and not as one of gratuitous carriage, and that no sufficient evidence to go to the jury was adduced to show the contrary; and, hence, that under the ruling of this court in Railroad Company v. Lockwood, 17 Wall. 357, it was a case in which the defendant, as a common carrier of passengers, could not lawfully stipulate for exemption from liability for the negligence of its servants. In taking this view, we think the court was correct. The transportation of the plaintiff in the defendant's cars, though not paid for by him in money, was not a matter of charity nor of gratuity in any sense. It was by virtue of an agreement, in which the mutual interest of the parties was consulted. It was part of the consideration for which the plaintiff consented to take the journey to Montreal. His expenses in making that journey were to be paid by the defendant, and of these the expense of his transportation was a part. The giving him a free pass did not alter the nature of the transaction. The pass was a mere ticket, or voucher, to be shown to the conductors of the train, as evidence of his right to be transported therein. It was not evidence of any contract by which the plaintiff was to assume all the risk; and it would not have been valid if it had been. In this respect it was a stronger case than that of Lockwood's. There the pass was what is called a 'drover's pass,' and an agreement was actually signed, declaring that the acceptance of the pass was to be considered as a waiver of all claims for damages or injury received on the train. The court rightly refused, therefore, in the present case, to charge that the plaintiff was travelling upon the conditions indorsed on the pass, or that, if he travelled on that pass, the defendant was free from liability. And the court was equally right in refusing to charge, that, if the plaintiff was a free or gratuitous passenger, the defendant was not liable. The evidence did not sustain any such hypothes s. It was uncontradicted, so far as it referred to the arrangement by virtue of which the journey was undertaken.

The charge actually given by the court was also free from material error. It stated the law as favorably for the defendant as the latter had a right to ask. If subject to any criticism, it is in that part in which the court supposed that the jury might find that the plaintiff was injured by the reckless misconduct and negligence of the defendant. If this degree of fault had been necessary to sustain the action, there might have been some difficulty in deducing it from the evidence. However, the condition of the track where the accident took place, without any explanation of its cause, was perhaps sufficient even for such an inference. If the defendant could have shown that the injury to the rails was the result of an accident occurring so shortly before the passage of the train as not to give an opportunity of ascertaining its existence, it did not do so, but chose to rest upon the evidence of the plaintiff. In fact, however, negligence was all that the plaintiff was bound to show; and of this there was abundant evidence to go to the jury. On the whole, therefore, we think that the charge presents no sufficient ground for setting aside the verdict. The charge, if not formally accurate, was not such as to prejudice the defendant.

It is strongly urged however, that the plaintiff, by accepting the free pass indorsed as it was, was estopped from showing that he was not to take his passage upon the terms therein expressed; or, at least, that his acceptance of the pass should be regarded as competent, if not conclusive, evidence that such a pass was in the contemplation of the parties when the arrangement for his going to Montreal was made. But we have already shown that the carrying of the plaintiff from Portland to Montreal was not a mere gratuity. To call it such would be repugnant to the essential character of the whole transaction. There was a consideration for it, both good and valuable. It necessarily follows, therefore, that it was a carrying for hire. Being such, it was not competent for the defendant, as a common carrier, to stipulate for the immunity expressed on the back of the pass. This is a sufficient answer to the argument propounded. The defendant being, by the very nature of the transaction, a common carrier for hire, cannot set up, as against the plaintiff, who was a passenger for hire, any such estoppel or agreement as that which is insisted on.

Since, therefore, from our view of the case, it is not necessary to determine what would have been the rights of the parties if the plaintiff had been a free or gratuitous passenger, we rest our decision upon Railroad Company v. Lockwood, supra. We have no doubt of the correctness of the conclusion reached in that case. We do not mean to imply, however, that we should have come to a different conclusion, had the plaintiff been a free passenger instead of a passenger for hire. We are aware that respectable tribunals have asserted the right to stipulate for exemption in such a case; and it is often asked, with apparent confidence, 'May not men make their own contracts, or, in other words, may not a man do what he will with his own?' The question, at first sight, seems a simple one. But there is a question lying behind that: 'Can a man call that absolutely his own, which he holds as a great public trust, by the public grant, and for the public use as well as his own profit?' The business of the common carrier, in this country at least, is emphatically a branch of the public service; and the conditions on which that public service shall be performed by private enterprise are not yet entirely settled. We deem it the safest plan not to anticipate questions until they fairly arise and become necessary for our decision.

Judgment affirmed.


text: Talk:Railway Company v. Stevens/Opinion of the Court


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United States v. Wilcox

APPEAL from the Court of Claims.

This was an action by Wilcox to recover from the United Stat § certain commissions which he claimed were due to him as a collector of internal revenue upon taxes collected by him for articles removed in bond from his district to another.

The Court of Claims found the following facts:--

1. Under the provisions of the act of July 20, 1868, c. 186, sect. 73, 15 Stat. 157, the Commissioner of Internal Revenue designated and established at different ports of entry bonded warehouses for the storage of manufactured tobacco and snuff in bond intended for exportation, under the control of the collector of internal revenue in charge of exports at the port and in the district where located.

2. The commissioner promulgated the following instructions and regulations applicable to the withdrawal of tobacco from said warehouses for consumption, so far as material in this case:--

'The law makes no provision for the removal of tobacco in bond without payment of tax, except such tobacco and snuff as are intended for export. . ..

'Sect. 73 of the act of 1868, c. 186, provides. . . that said goods may be withdrawn from warehouses either for immediate export to a foreign country, or after the tax has been paid thereon. . ..

'The following rules and regulations are prescribed for the deposit in, and the withdrawal from, any export bonded warehouse of. . . manufactured tobacco and snuff. . . . 'WITHDRAWAL AFTER PAYMENT OF TAX.

'The party desiring to withdraw manufactured tobacco or snuff from an export bonded warehouse, after the tax has been paid thereon, will file with the collector an entry for withdrawal in the following form, describing the goods as they were entered for warehousing, viz.:--

ENTRY FOR WITHDRAWAL.

'Entry of merchandise intended to be withdrawn from the export bonded warehouse of 05r, at _____, in the _____ district of the State of _____, by _____, for consumption, on payment of the taxes, the same having been stored in said werehouse by _____, on the ___ day of _____, 18 __, and which were described as follows, viz.:--

'The taxes having been fully paid and the stamps affixed and cancelled, the collector will issue a permit for the delivery of the goods, which permit must be presented to the assessor of the district for his certificate that the same has been presented to him, and that the amount of taxes paid thereon has been entered in his bonded account of the district.'

And the collector was required to certify that the full amount of tax due and owing thereon had been paid to him.

3. The claimant was collector of internal revenue for the Fifth Collection District of Virginia from April, 1869, to March, 1871, as alleged in his petition.

4. During the time the claimant was collector as aforesaid there were removed from manufactories in his district, without the payment of tax thereon, and transported directly to export warehouses in other districts, under the provisions of sect. 74 of said act, 15 Stat. 157, and the regulations of the commissioner, a large quantity of manufactured tobacco, to each package of which was affixed, by said collector, an engraved stamp, as required by said section.

5. Of the tobacco so removed from manufactories in the district of the claimant, and shipped to export bonded warehouses in other districts, there was withdrawn by the owners from said warehouses, to be sold in districts other than that of the claimant, and not for export, in accordance with the regulations of the commissioner mentioned in the second finding, a large quantity of tobacco, and the tax thereon was paid to the collectors in the districts where said warehouses were situated.

6. Adding one-half the amount of the tax received on the quantity of tobacco shipped from the claimant's district, as set forth in the fourth finding, and withdrawn from the warehouses in other districts to be sold, as stated in the fifth finding, to the amount of taxes collected by the claimant on which his commissions were calculated, if he was entitl d to have such addition made under the provisions of the act of June 30, 1864, c. 173, § 25, 13 Stat. 231, as amended by the act of July 13, 1866, c. 184, § 9, 14 id. 106, and the act of March 2, 1867, c. 169, § 9, id. 171, the claimant would be entitled to additional commissions amounting to the sum of $1,020, which has not been paid to him.

As a conclusion of law, the court found that the claimant was entitled to recover the sum of $1,020, and rendered judgment accordingly.

The United States then appealed here.

The Solicitor-General, for the United States.

Mr. J. G. Kimball, contra.

MR. JUSTICE STRONG delivered the opinion of the court

title: United States v. Wilcox


text: Talk:United States v. Wilcox

title: Talk:United States v. Wilcox


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United States v. Wilcox/Opinion of the Court

We agree with the Court of Claims in the opinion that the act of Congress of July 20, 1868, c. 186, §§ 73, 74, was not intended to change the rule prescribed by the act of July 13, 1866, c. 184, § 24, 14 Stat. 153, as amended by the act of March 2, 1867, id. 473, for the allowance of commissions to collectors of internal revenue upon taxes collected by them for articles removed from one district to a bonded warehouse in another district. The purposes of the act were distinct.

The act of June 30, 1864, as amended by the ninth section of the act of July 13, 1866, enacted that manufactured tobacco might be removed from the place where manufactured to a bonded warehouse in another collection district without payment of the tax, under certain treasury regulations, and might be withdrawn from the bonded warehouse on payment of the tax, or removed for export to a foreign country without such payment. The warehouses provided were for two purposes,-one for the custody of tobacco designed for export, and the other for custody of tobacco designed either for export or for domestic consumption or sale. Whenever the tobacco was removed for the latter uses, and when, consequently, the tax was paid to the collector of the district in which the warehouse was situated, the proviso inserted by the act of 1866 divided the commissions on the tax between the collector of that district and the collector of the district from which the tobacco had been removed.

Such was the law when the act of 1868 was enacted. That act was plainly intended to throw around the removal of the manufactured tobacco greater security against evasion of payment of the tax upon it than had existed before. In no manner did it attempt to deal with the subject of collectors' commissions. Nor did it relieve collectors from any of the duties incumbent upon them before. We cannot better express our opinion of it than by adopting the language of the Court of Claims:--

'The only real changes effected were the substitution of export bonded warehouses for internal bonded warehouses, and requiring the owners of tobacco shipped from the manufactory to the warehouses to affix to each package an engraved stamp, for which he paid to the government through the collector of the shipping district twenty-five cents, and which was to be indicative of the owner's intention to export the package. But, notwithstanding that stamp, the owner was not bound to export the tobacco, but was permitted to withdraw it from bond for consumption on payment of the taxes due thereon, precisely as before.

'And it is upon this narrow construction that the defence in this case rests; that because under the act of 1868 tobacco could be shipped in bond from the manufactory only with a stamp thereon indicative of the intention of the owner to export it, while the language of the proviso of 1866 referred to articles 'shipped in bond to be sold in another district,' therefore the commissions of collectors were to be calculated on a different basis in the two cases, upon taxes collected in like manner upon tobacco shipped in bond from the manufactory and withdrawn for consumption from the bonded warehouse alike under both acts.

'In our opinion, the Fortieth Congress, in passing the act of 1868, c. 186, had no such intention and expressed no such will; and to adopt the construction contended for by the efendants would be to defeat the clearly established policy of Congress in this particular, by giving substantial force to language not material to the subject-matter legislated upon, and by establishing an incidental and accidental change of the law beyond the contemplation of the legislators.'

Judgment affirmed.


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


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Chubb v. Upton

ERROR to the Circuit Court of the United States for the Western District of Michigan.

Upton, as assignee in bankruptcy of the Great Western Insurance Company, a corporation organized under the laws of Illinois, brought this suit against Chubb. The company was originally chartered by the legislature in 1857.

In 1870, acting under the general laws of that State authorizing insurance companies to increase their capital stock, the directors and stockholders of the company took measures to increase its capital stock, and filed their papers for that purpose with the secretary of state, and the auditor of public accounts. By these proceedings the company undertook to increase its stock to $5,000,000.

The company, assuming that its stock had been increased, took subscriptions and issued certificates therefor, and immeditately commenced doing business, issuing policies, &c., upon the basis of such an increase. Dec. 31, 1870, it held out to the public that its subscribed stock was $1,188,000, of which $222,831 was paid in, and $965,169 subscribed, for which the subscribers or holders were liable. Chubb bacame a subscriber to this increased stock, and a certificate for fifty shares was issued to him on the twenty-fifth day of November, 1870.

The company had a branch office at Grand Rapids, where meetings of the stockholders residing there were held. Chubb was president of said branch, took part in those meetings, and also in a meeting of stockholders and directors held at Chicago in January, 1871. He paid money on his stock, and at one time, while holding it, gave another person a proxy to attend and vote at a stockholder's meeting at Chicago.

The company continued to do business, issue policies, &c., until it was put into bankruptcy, February, 1872. Upton was duly appointed assignee of the company on the eleventh day of April, 1872; and the court sitting in bankruptcy made an order upon the stockholders to pay, on or before Aug. 15, 1872, the balance due upon their stock. Notice was duly served upon them.

Upon the trial of the cause, Chubb objected to the production in evidence of the proceedings by which the company increased its stock, upon the ground of their alleged irregularities, and of informality in the papers filed in the public offices. The objections were overruled, and Chubb excepted to the ruling of the court.

He also objected to the introduction in evidence of papers filed in the public offices of Illinois by the company, showing that it was doing business, and that it had stock subscribed to a large amount. This objection was overruled, and an exception taken.

He further offered to prove that he was induced to purchase the stock by false representations that he would only be compelled to pay twenty per cent upon the amount subscribed; and that the holders of the stock in the original company never increased their stock or authorized any one to increase it, and never sold or transferred it to the new company. The court excluded the evidence, and he excepted.

The court substantially charged the jury, that upon the admitted facts, and upon further facts proved by the plaintiff by uncontradicted and documentary evidence, the plaintiff was entitled to recover, and that the matters offered in evidence by the defendant constituted no defence to the action. The defendant excepted to the instruction.

There was a judgment against Chubb, who thereupon removed the case here.

Mr. J. W. Champlin for the plaintiff in error.

Mr. M. J. Smiley, contra.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Chubb v. Upton


text: Talk:Chubb v. Upton

title: Talk:Chubb v. Upton


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Chubb v. Upton/Opinion of the Court

The numerous questions raised u on the trial of this action depend upon a few general principles which are not difficult of application.

It is settled by the decisions of the courts of the United States and by the decision of many of the State courts that one who contracts with an acting corporation cannot defend himself against a claim on such contract, in a suit by the corporation, by alleging the irregularity of its organization. This was settled more than a half a century since in the courts of the State of New York, and has recently been affirmed in this court. Dutchess Collar Manufacturing Co. v. Davis, 14 Johns. (N. Y.) 237; Sanger v. Upton, 91 U.S. 56; Upton v. Tribilcock, id. 45; Buffalo & Allegheny Railroad Co. v. Cary, 26 N. Y. 75; Bissell v. Michigan Southern Railroad Co., 22 id. 258.

The same principle applies to the case of a subscription to the capital stock in an organization which has attempted irregularly to create itself into a corporation, and has acted as such. Methodist Episcopal Church v. Pickett, 19 N. Y. 482; Upton v. Hamborn, 3 Biss. 417.

The rule applies to increasing the stock of a corporation when the question arises upon paying a subscription for stock forming a part of such increase. The duty and the necessity of performing the contract of subscription are the same as in the case of an original stockholder.

An assignee appointed under the bankrupt laws of the United States represents both the corporation and its creditors, and the defence of irregular organization cannot be urged against him.

It has been several times adjudged in this court, that, in an action by such assignee to recover unpaid subscriptions upon stock in such an organization, the defence of false and fraudulent representations inducing such subscription cannot be set up; especially when the subscriber has not been vigilant in discovering such fraud, and in repudiating his contract. Upton v. Tribilcock, 91 U.S. 45; Webster v. Upton, id. 65; Sanger v. Upton, id. 56; Ogilvie v. Knox Insurance Co., 22 How. 380.

The same authorities hold that one who receives a certificate of stock for a certain number of shares, at a given sum per share, thereby becomes liable to pay the amount thereof when called upon by the corporation or its assignee. Nor is it necessary to sustain the action that there suould have been a subscription for the whole amount named on the articles. Rensselaer & Washington Plank Road Co. v. Westel, 21 Barb. (N. Y.) 56.

The statute of Illinois of 1869 authorized an increase of the capital of the Great Western Insurance Company. Papers were filed under the law for that purpose, which were examined by the Attorney-General, and certified to be in due form; and the company proceeded to issue its stock upon that theory.

The defendant became a subscriber for fifty shares of this increased stock, the shares being $100 each. He paid a portion, to wit, thirty per cent, of this subscription. He attended meetings of the stockholders and of the directors, acting himself as such. He gave another person a proxy to attend a meeting of the stockholders at Chicago, and to vote for him; and he was elected and acted as the president of a branch of the said company.

It is idle to deny that this was the case of an organization which claimed to have taken, and apparently supposed that it had taken, the measures required by law to complete its increase of capital. It acted as such, and the defendant, by receiving his certificate of stock, entered into engagements with it as such. If it be conceded that its increased stock was but de facto, and that it could have been annulled or suppressed by the action of the Attorney-General as acting under an irregular organization, the defendant derives no aid from the admission. The cases cited are clear to the point that he cannot make the objection, but must perform the engagements he has made.

The last offer of the defendant was intended to present this question in its most formi able shape. It was to show that the original capital of $100,000 was fully subscribed; that the holders of this stock never increased the capital nor authorized its increase; that this company ceased to do business prior to 1868; that the $100,000 was not transferred to the company claiming to have organized on the increased capital; and that there was no valid transfer of the original stock or charter.

All this does not alter the fact that there was an attempted alteration of the company under the forms of law, approved by the Attorney-General, with an increased capital, in the organization and management of which the defendant took part; that he paid his money, received his certificate of stock, attended meetings, voted, acted as an officer, and, so far as the record shows, never repudiated his position at any time, even to the time of the trial. If successful, he would have shared in its profits. He may have been the dupe and victim of the action of others. He may have been an accomplice. At all events, he was so far an actor in the affair that he cannot escape the consequences of his position.

Another series of objections is to the admission of various pieces of evidence introduced to show that the defendant was a stockholder. The original stock-ledger had been destroyed by fire, and the plaintiff supplied its place by the introduction of sundry other kinds of evidence tending to prove who were the stockholders, and that the defendant was one of them. The importance of this evidence was at an end when the certificate of shares was afterwards given in proof, and when it was expressly admitted by the defendant that he held the same; that he made payments thereon, and acted as a holder of shares in the company. It is not necessary, therefore, to inquire whether or not the evidence was properly admitted.

At the time this writ of error was taken, the decisions of this court in Upton v. Tribilcock, Sanger v. Upton, and Webster v. Upton, to which we have referred, had not been made. They contain a clear statement of our views upon all the material questions arising in this record, and we suppose that this writ of error would not have been brought had they then been known to the party and his counsel. The careful examination then given to the several questions renders unnecessary a detailed review of them.

We think there is nothing in the record before us that would justify us in disturbing the verdict and judgment rendered in the Circuit Court.

Judgment affirmed.

title: Chubb v. Upton/Opinion of the Court


text: Talk:Chubb v. Upton/Opinion of the Court


text:
United States v. Fox (95 U.S. 670)

ON a certificate of division in opinion between the judges of the Circuit Court of the United States for the Southern District of New York.

In November, 1874, the defendant filed a petition in bankruptcy in the District Court for the Southern District of New York. In March, 1876, he was indicted in the Circuit Court for that district for alleged offences against the United States, and, among others, for the offence described in the ninth subdivision of sect. 5132 of the Revised Statutes, which provides that 'every person respecting whom proceedings in bankruptcy are commenced, either upon his own petition or that of a creditor,' who, within three months before their commencement, 'under the false color and pretence of carrying on business, and dealing in the ordinary course of trade, obtains on credit from any person any goods or chattels with intent to defraud,' shall be punished by imprisonment for a period not exceeding three years.

The indictment, among other things, charged the defendant with having, within three months previous to the commencement of his proceedings in bankruptcy, purchased and obtained on credit goods from several marchants in the city of New York, upon the pretence and representation of carrying on business and dealing in the ordinary course of trade as a manufacturer of clothing; whereas he was not carrying on business in the ordinary course of trade as such manufacturer, but was selling goods to some parties by the piece for cost, and to other parties at auction for less than cost, and that these pretences and representations were made to defraud the parties from whom the goods were purchased.

The defendant was convicted; and, upon a motion in arrest of judgment, the judges holding the Circuit Court were opposed in opinion, and have certified to this court the question upon which they differed. That question is thus stated in the certificate:--

'If a person shall engage in a transaction which, at the time of its occurrence, is not a violation of any law of the United States, to wit, the obtaining goods upon credit by false pretences, and if, subsequently thereto, proceedings in bankruptcy shall be commenced respecting him, is it within the constitutional limits of congressional legislation to subject him to punishment for such transaction considered in connection with the proceedings in bankruptcy?'

Mr. Assistant Attorney-General Smith for the United States.

Mr. B. F. Tracy, contra.

MR. JUSTICE FIELD delivered the opinion of the court.

title: United States v. Fox (95 U.S. 670)


text: Talk:United States v. Fox (95 U.S. 670)

title: Talk:United States v. Fox (95 U.S. 670)


text:
United States v. Fox (95 U.S. 670)/Opinion of the Court

The question presented by the certificate of division does not appear to us difficult of solution. Upon principle, an act which is not an offence at the time it is committed cannot become such by any subsequent independent act of the party with which it has no connection. By the clause in question, the obtaining of goods on credit upon false pretences is made an offence against the United States, upon the happening of a subsequent event, not perhaps in the contemplation of the party, and which may be brought about, against his will, by the agency of another. The criminal intent essential to the commission of a public offence must exist when the act complained of is done: it cannot be imputed to a party from a subsequent independent transaction. There are cases, it is true, where a series of acts are necessary to constitute an offence, one act being auxiliary to another in carrying out the criminal design. But the present is not a case of that kind. Here an act which may have no relation to proceedings in bankruptcy becomes criminal, according as such proceedings may or may not be subsequently taken, either by the party or by another.

There is no doubt of the competency of Congress to provide, by suitable penalties, for the enforcement of all legislation necessary or proper to the execution of powers with which it is intrusted. And as it is authorized 'to establish uniform laws on the subject of bankruptcies throughout the United States,' it may embrace within its legislation whatever may be deemed important to a complete and effective bankrupt system. The object of such a system is to secure a ratable distribution of the bankrupt's estate among his creditors, when he is unable to discharge his obligations in full, and at the same time to relieve the honest debtor from legal proceedings for his debts, upon a surrender of his property. The distribution of the property is the principal object to be attained. The discharge of the debtor is merely incidental, and is granted only where his conduct has been free from fraud in the creation of his indebtedness or the disposition of his property. To legislate for the prevention of frauds in either of these particulars, when committed in contemplation of bankruptcy, would seem to be within the competency of Congress. Any act committed with a view of evading the legislation of Congress passed in the execution of any of its powers, or of fraudulently securing the benefit of such legislation, may properly be made an offence against the United States. But an act committed within a State, whether for a good or a bad purpose, or whether with an honest or a criminal intent, cannot be made an offence against the United States, unless it have some relation to the execution of a power of Congress, or to some matter within the jurisdiction of the United States. An act not having any such relation is one in respect to which the State can alone legislate.

The act des ribed in the ninth subdivision of sect. 5132 of the Revised Statutes is one which concerns only the State in which it is committed: it does not concern the United States. It is quite possible that the framers of the statute intended it to apply only to acts committed in contemplation of bankruptcy; but it does not say so, and we cannot supply qualifications which the legislature has failed to express.

Our answer to the question certified must be in the negative; and it will be so returned to the Circuit Court.


text: Talk:United States v. Fox (95 U.S. 670)/Opinion of the Court


text:
National Bank v. Hartford Fire Insurance Company

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

This is an action on a policy of insurance issued by the Hartford Fire Insurance Company to W. D. Oldham, on certain mill property, building, and machinery, and by him transferred and assigned to the First National Bank of Kansas City, Mo. The parties, by written stipulation, waived a jury; and, upon a special finding of facts, the Circuit Court gave judgment for the company. The bank thereupon sued out this writ of error.

It appears from the special finding, that, by the terms of the application, the assured was required to state separately 'the estimated value of personal property and of each building to be insured, and the sum to be insured on each;. . . the value of the property being estimated by the applicant.' The applicant was also directed to answer certain questions, and sign the same 'as a description of the premises on which the insurance will be predicated.' Among the questions to be answered were: 'What is the cash value of the buildings, aside from hand and water power? What is the cash value of the machinery?' The answer was: '$15,000, building; $15,000, machinery.'

The application concludes with these words:--

'And the said applicant hereby covenants and agrees to and with said company, that the foregoing is a just, full, and true exposition of all the facts and circumstances in regard to the condition, situation, value, and risk of the property to be insured, so far as the same are known to the applicant, and are material to the risk.'

The policy refers to the application in these words:--

'Special reference being had to assured's application and survey, No. 1462, on file, which is his warranty, and a part hereof.'

The policy further recites:--

'If an application, survey, plan, or description of the property herein insured is referred to in this policy, such application, survey, plan, or description shall be considered a part of this policy, and a warranty by the assured; and if the assured, in a written or verbal application, makes any erroneous representation, or omits to make known any fact material to the risk,. . . then, and in any such case, this policy shall be void. . . . Any fraud or attempt at fraud, or any false swearing on the part of the assured, shall cause a forfeiture of all claim under this policy.'

The policy also declares that it is made and accepted upon the above, among other, express conditions.

It is found by the court that when the policy was issued, as well as at the date of the destruction of the property by fire, the cash value of the building, aside from hand and water power, was $8,000, and no more; and the cash value of the machinery, at the same dates, was $12,000, and no more.

The court also found that 'the answers made by the assured to the questions contained in the application were made by him in good faith, without any intention on his part to commit any fraud on the defendant.'

It is further declared in the special finding, that, 'under the provisions of the policy and application, made part thereof, the court finds, as a conclusion of law, that the answers of the assured as to the value of the property insured defeat the right to recover on the policy.'Mr. John K. Cravens for the plaintiff in error cited May on Ins., sects. 156, 160, 164, 168, 169; Elliot v Hamilton Mutual Insurance Co., 13 Gray (Mass.), 139; Fitch v. American Popular Life Insurance Co., 59 N. Y. 557; Germania Fire Insurance Co. v. Casteel, 9 Chicago Legal News, 374; Franklin Insurance Co. v. Vaughan, 92 U.S. 516; Yeaton v. Fry, 5 Cranch, 342.

Mr. John C. Gage, contra, cited Owens v. Holland Purchase Insurance Co., 56 N. Y. 565; First National Bank of Ballston Spa v. Insurance Company of North America, 50 id. 45; Ripley v. The AEtna Insurance Co., 30 id. 136; AEtna Life Insurance Co. v. France et al., 91 U.S. 110; Jeffries v. Life Insurance Co., 22 Wall. 47; Leroy v. The Market Fire Insurance Co., 39 N. Y. 90; Conover v. The Massachusetts Insurance Co., 3 Dill. 217; Miles et al. v. Connecticut Mutual Life Insurance Co., 3 Gray (Mass.), 580; Campbell v. New England Mutual Life Insurance Co., 98 Mass. 381; Cooper v. Farmers' Mutual Fire Insurance Co., 50 Pa. St. 305

MR. JUSTICE HARLAN delivered the opinion of the court


text: Talk:National Bank v. Hartford Fire Insurance Company


text:
National Bank v. Hartford Fire Insurance Company/Opinion of the Court

On behalf of the company, it is contended that, under any proper construction of the contract, the assured warranted, absolutely and without limitation, the truth of the several statements in the application, including the statement as to the value of the property. If this view be sound, the judgment of the Circuit Court must be affirmed; otherwise, it must be reversed.

Our conclusion is that the plaintiff in error, who is the beneficiary of the policy, is entitled to a judgment, notwithstanding the overvaluation of the property by the assured.

The entire application having been made, by express words, a part of the policy, it is entitled to the same consideration as if it had been inserted at large in that instrument. The policy and application together, therefore, constitute the written agreement of insurance; and, in ascertaining the intention of the parties, full effect must be given to the conditions, clauses, and stipulations contained in both instruments.

Looking first into the application, we find no language which, by fair construction, was notice to the assured that, in answering questions, he was assuming, or was expected to assume, the strict obligations which the law attaches to a warranty. There is no intimation anywhere in that instrument that the exact truth of the answers was a condition precedent, either to the consideration of the application or to the issuing of a policy. On the contrary, the application contains the covenant of the assured that he had in that instrument made a just, full, and true exposition of all material facts and circumstances in regard to the condition, situation, value, and risk of the property, so far as known to him. The taking of that covenant, at the threshold of the negotiations, was, in effect, an assurance that a frank statement of all such material facts as were within the knowledge of the applicant would meet the requirements of the company. It was a covenant of good faith on the part of the assured,-nothing more; and, so far as it related to the value of the property, was not broken, unless the estimates by the assured were intentionally excessive. If the case turned wholly upon the construction to be given to the application, it is quite clear that the overvaluation of the property would not defeat a recovery upon the written agreement, since the assured, by the special finding, is acquitted of any purpose to defraud the company. That is equivalent to saying that the assured did not withhold any material fact within his knowledge concerning the condition, situation, value, or risk of the property.

But the difficulty in the case arises from the peculiar wording of the policy, considering the application as a part thereof. While the assured in one part of the written agreement is made to stipulate for a warranty, and in another the policy is declared to be void if the assured 'makes any erroneous representation, or omits to make known any fact material to the risk,' in still another p rt of the same agreement-the application he covenants that, as to all material facts within his knowledge, respecting the condition, situation, value, and risk of the property, he has made a full, just, and true exposition. If the purpose of the company was to secure a warranty of the correctness of each statement in the application, and if the court should adopt that construction of the contract, there could be no recovery on the policy, if any one of these statements were proven to be untrue; and this, although such statement may have been wholly immaterial to the risk, and was made without any intent to mislead or defraud. Such a construction, according to established doctrine, might defeat the recovery, even if the overvaluation had been so slight as not to have influenced the company in accepting the risk. But if such was the purpose of the company, why did it not stop with the express declaration of a warranty? Why did it go further, and incorporate into the policy a provision for its annulment in the event the assured should make an 'erroneous representation, or omit to make known any fact material to the risk'?-language inconsistent with the law of warranty. Still further, why did the company make the application a part of the policy, and thereby import into the contract the covenant of the assured, not that he had stated every fact material to the risk, or that his statements were literally true, but only that he had made a just, true, and full exposition of all material facts, so far as known to him.

It is the duty of the court to reconcile these clauses of the written agreement, if it be possible to do so consistently with the intention of the parties, to be collected from the terms used.

It will be observed, from an examination of the questions propounded to the assured, that, among other things, he was asked whether the building was of stone, brick, or wood; how the premises were warmed; what materials were used for lighting them; whether a watchman was kept during the night; what amount of insurance was already on the property; whether it was mortgaged, &c. These and similar questions refer to matters of which the assured had actual knowledge, or about which he might, with propriety, be required to speak with perfect accuracy. They are matters capable of precise ascertainment, and in no sense depending upon estimate, opinion, or mere probability. But his situation and duty were wholly different when required to state the cash value of his property. He was required to give its 'estimated value.' His answers concerning such value were, in one sense, and, perhaps, in every just sense, only the expression of an opinion. The ordinary test of the value of property is the price it will command in the market if offered for sale. But that test cannot, in the very nature of the case, be applied at the time application is made for insurance. Men may honestly differ about the value of property, or as to what it will bring in the market; and such differences are often very marked among those whose special business it is to buy and sell property of all kinds. The assured could do no more than estimate such value; and that, it seems, was all that he was required to do in this case. His duty was to deal fairly with the company in making such estimate. The special finding shows that he discharged that duty and observed good faith. We shall not presume that the company, after requiring the assured in his application to give the 'estimated value,' and then to covenant that he had stated all material facts in regard to such value, so far as known to him, and after carrying that covenant, by express words, into the written contract, intended to abandon the theory upon which it sought the contract, and make the absolute correctness of such estimated value a condition precedent to any insurance whatever. The application, with its covenant and stipulations, having been made a part of the policy, that presumption cannot be indulged without imputing to the company a purpose, by studied intricacy or an ingenious framing of the policy, to entrap the assured into incurring obligations which, perhaps, he had no thought of assuming.

Two constructions, of the contract may be suggested. One is to regard the warranty expressed in the policy as limited or qualified by the terms of the application. In that view, the assured would be held as only warranting that he had stated all material facts in regard to the condition, situation, value, and risk of the property, so far as they were known to him. This is, perhaps, the construction most consistent with the literal import of the terms used in the application and the policy. The other construction is to regard the warranty as relating only to matters of which the assured had, or should be presumed to have had, distinct, definite knowledge, and not to such matters as values, which depend upon mere opinion or probabilities. But, without adopting either of these constructions, we rest the conclusion already indicated upon the broad ground that when a policy of insurance contains contradictory provisions, or has been so framed as to leave room for construction, rendering it doubtful whether the parties intended the exact truth of the applicant's statements to be a condition precedent to any binding contract, the court should lean against that construction which imposes upon the assured the obligations of a warranty. The company cannot justly complain of such a rule. Its attorneys, officers, or agents prepared the policy for the purpose, we shall assume, both of protecting the company against fraud, and of securing the just rights of the assured under a valid contract of insurance. It is its language which the court is invited to interpret, and it is both reasonable and just that its own words should be construed most strongly against itself.

Wherefore, as it does not clearly appear that the parties intended that the validity of the contract of insurance should depend upon the absolute correctness of the estimates of value, and as it does appear that such estimates were made by the assured without any intention to defraud, our opinion is that the facts found do not support the judgment.

The judgment will, therefore, be reversed, and the cause remanded with directions to enter a judgment upon the special finding for the plaintiff in error; and it is.

So ordered.


text: Talk:National Bank v. Hartford Fire Insurance Company/Opinion of the Court


text: Dictionary of National Biography, 1885-1900/Wallace, John Alexander Dunlop Agnew


text: Dictionary of National Biography, 1885-1900/Wallace, Richard


text: Dictionary of National Biography, 1885-1900/Wallace, Robert (1697-1771)


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Page:Pierre.djvu/44

30 your young lady acquaintances in sight, I am not to be unnecessarily called upon to back up, and load for their particular edification.'

'Now I am really vexed with you, Pierre; that is the first ill-natured innuendo I ever heard from you. Are there any of my young lady acquaintances in sight now, I should like to know?'

'Six of them, right over the way,' said Pierre; 'but they keep behind the curtains. I never trust your solitary village streets, Lucy. Sharp-shooters behind every clap-board, Lucy.'

'Pray, then, dear Pierre, do let us be off!'

II

While Pierre and Lucy are now rolling along under the elms, let it be said who Lucy Tartan was. It is needless to say that she was a beauty; because chestnut-haired, bright-cheeked youths like Pierre Glendinning, seldom fall in love with any but a beauty. And in the times to come, there must be—as in the present times, and in the times gone by—some splendid men, and some transcendent women; and how can they ever be, unless always, throughout all time, here and there, a handsome youth weds with a handsome maid?

But though owing to the above-named provisions of dame Nature, there always will be beautiful women in the world; yet the world will never see another Lucy Tartan. Her cheeks were tinted with the most delicate white and red, the white predominating. Her eyes some god brought down from heaven; her hair was Danae's, spangled with Jove's shower; her teeth were dived for in the Persian Sea.

If long wont to fix his glance on those who, trudging through the humbler walks of life, and whom unequal toil and poverty deform; if that man shall haply view

title: Page:Pierre.djvu/44


text: Dictionary of National Biography, 1885-1900/Wallace, Robert (1773-1855)


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Page:Pierre.djvu/45

Rh some fair and gracious daughter of the gods, who, from unknown climes of loveliness and affluence, comes floating into sight, all symmetry and radiance; how shall he be transported, that in a world so full of vice and misery as ours, there should yet shine forth this visible semblance of the heavens. For a lovely woman is not entirely of this earth. Her own sex regard her not as such. A crowd of women eye a transcendent beauty entering a room, much as though a bird from Arabia had lighted on the window-sill. Say what you will, their jealousy—if any—is but an afterbirth to their open admiration. Do men envy the gods? And shall women envy the goddesses? A beautiful woman is born Queen of men and women both, as Mary Stuart was born Queen of Scots, whether men or women. All mankind are her Scots; her leal clans are numbered by the nations. A true gentleman in Kentucky would cheerfully die for a beautiful woman in Hindustan, though he never saw her. Yea, count down his heart in death-drops for her; and go to Pluto, that she might go to Paradise. He would turn Turk before he would disown an allegiance hereditary to all gentlemen, from the hour their Grand Master, Adam, first knelt to Eve.

A plain-faced Queen of Spain dwells not in half the glory a beautiful milliner does. Her soldiers can break heads, but her Highness cannot crack a heart; and the beautiful milliner might string hearts for necklaces. Undoubtedly, Beauty made the first Queen. If ever again the succession to the German Empire should be contested, and one poor lame lawyer should present the claims of the first excellingly beautiful woman he chanced to see—she would thereupon be unanimously elected Empress of the Holy Roman German Empire;—that is to say, if all the Germans were true, free-hearted and magnanimous gentlemen, at all capable of appreciating so immense an honour.

title: Page:Pierre.djvu/45


text: Dictionary of National Biography, 1885-1900/Wallace, Thomas


text: Dictionary of National Biography, 1885-1900/Wallace, William (1272?-1305)


text: Dictionary of National Biography, 1885-1900/Wallace, William (1768-1843)


text: Dictionary of National Biography, 1885-1900/Wallace, William (1844-1897)


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


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Page:Pierre.djvu/46

32 It is nonsense to talk of France as the seat of all civility. Did not those French heathen have a Salique law? Three of the most bewitching creatures—immortal flowers of the line of Valois—were excluded from the French throne by that infamous provision. France, indeed! whose Catholic millions still worship Mary Queen of Heaven; and for ten generations refused cap and knee to many angel Maries, rightful Queens of France. Here is cause for universal war. See how vilely nations, as well as men, assume and wear unchallenged the choicest titles, however without merit. The Americans, and not the French, are the world's models of chivalry. Our Salique law provides that universal homage shall be paid all beautiful women. No man's most solid rights shall weigh against her airiest whims. If you buy the best seat in the coach, to go and consult a doctor on a matter of life and death, you shall cheerfully abdicate that best seat, and limp away on foot, if a pretty woman, travelling, shake one feather from the stage-house door.

Now, since we began by talking of a certain young lady that went out riding with a certain youth; and yet find ourselves, after leading such a merry dance, fast by a stage-house window;—this may seem rather irregular sort of writing. But whither indeed should Lucy Tartan conduct us, but among mighty Queens, and all other creatures of high degree; and finally set us roaming, to see whether the wide world can match so fine a wonder. By immemorial usage, am I not bound to celebrate this Lucy Tartan? Who shall stay me? Is she not my hero's own affianced? What can be gainsaid? Where underneath the tester of the night sleeps such another?

Yet, how would Lucy Tartan shrink from all this noise and clatter! She is bragged of, but not brags. Thus far she hath floated as stilly through this life, as

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Page:Pierre.djvu/47

Rh floats over meadows. Noiseless, she, except with Pierre; and even with him she lives through many a panting hush. Oh, those love-pauses that they know—how ominous of their future; for pauses precede the earthquake, and every other terrible commotion! But blue be their sky awhile, and lightsome all their chat, and frolicsome their humours.

Never shall I get down the vile inventory! How, if with paper and with pencil I went out into the starry night to inventorise the heavens? Who shall tell stars as teaspoons? Who shall put down the charms of Lucy Tartan on paper?

And for the rest; her parentage, what fortune she would possess, how many dresses in her wardrobe, and how many rings upon her fingers; cheerfully would I let the genealogists, tax-gatherers, and upholsterers attend to that. My proper province is with the angelical part of Lucy. But as in some quarters, there prevails a sort of prejudice against angels, who are merely angels and nothing more; therefore I shall martyrise myself, by letting such gentlemen and ladies into some details of Lucy Tartan's history.

She was the daughter of an early and most cherished friend of Pierre's father. But that father was now dead, and she resided an only daughter with her mother, in a very fine house in the city. But though her home was in the city, her heart was twice a year in the country. She did not at all love the city and its empty, heartless, ceremonial ways. It was very strange, but most eloquently significant of her own natural angelhood that, though born among brick and mortar in a sea-port, she still pined for unbaked earth and inland grass. So the sweet linnet, though born inside of wires in a lady's chamber on the ocean coast, and ignorant all its life of any other spot; yet, when spring-time comes, it is seized

title: Page:Pierre.djvu/47


text:
Author:Satyendra Nath Bose

Translations

 * Albert Einstein: The Foundation of the Generalised Theory of Relativity (1920)

title: Author:Satyendra Nath Bose


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Page:Pierre.djvu/48

34 with flutterings and vague impatiences; it cannot eat or drink for these wild longings. Though unlearned by any experience, still the inspired linnet divinely knows that the inland migrating time has come. And just so with Lucy in her first longings for the verdure. Every spring those wild flutterings shook her; every spring, this sweet linnet girl did migrate inland. Oh God grant that those other and long after nameless flutterings of her inmost soul, when all life was become weary to her—God grant, that those deeper flutterings in her were equally significant of her final heavenly migration from this heavy earth.

It was fortunate for Lucy that her Aunt Llanyllyn—a pensive, childless, white-turbaned widow—possessed and occupied a pretty cottage in the village of Saddle Meadows; and still more fortunate, that this excellent old aunt was very partial to her, and always felt a quiet delight in having Lucy near her. So Aunt Llanyllyn's cottage, in effect, was Lucy's. And now, for some years past, she had annually spent several months at Saddle Meadows; and it was among the pure and soft incitements of the country that Pierre first had felt toward Lucy the dear passion which now made him wholly hers.

Lucy had two brothers; one her senior, by three years, and the other her junior by two. But these young men were officers in the navy; and so they did not permanently live with Lucy and her mother.

Mrs. Tartan was mistress of an ample fortune. She was, moreover, perfectly aware that such was the fact, and was somewhat inclined to force it upon the notice of other people, nowise interested in the matter. In other words, Mrs. Tartan, instead of being daughter-proud, for which she had infinite reason, was a little inclined to being purse-proud, for which she had not the slightest reason; seeing that the Great Mogul probably

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Rh possessed a larger fortune than she, not to speak of the Shah of Persia and Baron Rothschild, and a thousand other millionaires; whereas, the Grand Turk, and all their other majesties of Europe, Asia, and Africa to boot, could not, in all their joint dominions, boast so sweet a girl as Lucy. Nevertheless, Mrs. Tartan was an excellent sort of lady, as this ladylike world goes. She subscribed to charities, and owned five pews in as many churches, and went about trying to promote the general felicity of the world, by making all the handsome young people of her acquaintance marry one another. In other words, she was a match-maker—not a Lucifer match-maker—though, to tell the truth, she may have kindled the matrimonial blues in certain dissatisfied gentlemen's breasts, who had been wedded under her particular auspices, and by her particular advice. Rumour said—but rumour is always fibbing—that there was a secret society of dissatisfied young husbands, who were at the pains of privately circulating handbills among all unmarried young strangers, warning them against the insidious approaches of Mrs. Tartan; and, for reference, named themselves in cipher. But this could not have been true; for, flushed with a thousand matches—burning blue or bright, it made little matter—Mrs. Tartan sailed the seas of fashion, causing all topsails to lower to her; and towing flotillas of young ladies, for all of whom she was bound to find the finest husband harbours in the world.

But does not match-making, like charity, begin at home? Why is her own daughter Lucy without a mate? But not so fast; Mrs. Tartan years ago laid out that sweet programme concerning Pierre and Lucy; but in this case, her programme happened to coincide, in some degree, with a previous one in heaven, and only for that cause did it come to pass, that Pierre Glendinning was

title: Page:Pierre.djvu/49