text:
Clarkson v. Stevens/Opinion of the Court

The controversy in this case arises between the plaintiffs in error, who are, with others, heirs at law of Robert L. Stevens, deceased, and the state of New Jersey, and involves the title to an uncompleted ship-of-war known as the Stevens battery.

The claim of the plaintiffs in error is founded on a resolution of congress approved July 17, 1862, (12 St. 628,) as follows:

'A resolution releasing to the heirs at law of Robert L.     Stevens, deceased, all the right, title, and interest of the      United States in and to Stevens battery.

'Resolved, by the senate and house of representatives of the     United States of America, in congress assembled, that all the      right, title, and interest of the United States in and to      Stevens battery be, and the same hereby are, released and      conveyed to the heirst at law of the and conveyed to the      heirs at law of the representatives.'

Robert L. Stevens died in 1856, having his domicile in New Jersey, and by his will constituted his brother, Edwin A. Stevens, who was one of his heirs at law, and whom he made one of his executors, his sole residuary devisee and legatee.

Edwin A. Stevens died August 7, 1868, and by his will, conceiving himself to be the owner of the unfinished vessel, of which he had been in possession since the death of his brother, and claiming as his residuary legatee, he directed his executors to complete it on his general plan, at a cost not exceeding $1,000,000, and then to offer it to the state of New Jersey as a present. The executors, after having expended $919,915.49 upon the vessel, found that they could not finish it for the amount of money to which they were limited, and discontinued the work. In the mean time the state of New Jersey had accepted the bequest, and the consent of congress thereto was given in the following resolution, approved July 1, 1870:

'A resolution giving the consent of congress to the reception     of a certain bequest by the State of New Jersey under the      will of the late Edwin A. Stevens.

'Whereas, Edwin A. Stevens, who was in his life-time the     owner of the ship known as the Stevens battery, originally      commenced under contract for the United States government,      and upon the building of which large sums of money were spent      by his brother and himself, did, by his last will and      testament, (the United States having previously relinquished      all claims to said ship,) leave the same to be finished by his executors, at an expense not      exceeding the sum of $1,000,000, and when finished to be      offered to the state of New Jersey as a present, to be by her      received and disposed of as the said state shall deem proper;      and

'Whereas, doubts have been suggested as to the right of the     said state to accept the said bequest without the consent of      congress, under the prohibition of the tenth section of the      first article of the constitution of the United States;      therefore,

'Resolved, by the senate and house of representatives of the     United States of America, in congress assembled, that the      consent of congress is hereby given that the state of New      Jersey shall receive and dispose of the said ship according      to the terms and conditions of said bequest.'

A bill in equity was filed in the chancery court of New Jersey by the executors of Edwin A. Stevens, asking for a construction of the will in certain particulars, including the question arising upon this bequest to the state of New Jersey. The attorney general appeared on behalf of the state, and filed an information by way of a cross-bill, to which the heirs at law of Robert L. Stevens were made parties, as claiming an adverse title. A final decree was made, establishing the title of the state, which was affirmed on appeal by the court of errors and appeals. To reverse that decree the present writ of error is prosecuted, the question presented being one, which, as it arises under a law of the United States, and the decision thereon of the state court being in denial of the title claimed under the authority thereof, falls within the jurisdiction of this court.

To determine the proper construction and legal effect of the resolution of congress of July 17, 1862, it becomes necessary to trace from its origin the history of the Stevens battery.

An act of congress 'authorizing the construction of a war-steamer for harbor defense,' approved April 14, 1842, enacted 'that the secretary of the navy be and he is hereby authorized to enter into a contract with Robert L. Stevens for the construction of a war-steamer, shot and shell proof, to be built principally of iron, upon the plan of the said Stevens: provided the whole cost, including the hull, armament, engines, boiler, and equipment, in all respects complete for service, shall not exceed the average cost of the steamers Missouri and Mississippi;' and $250,000 was thereby appropriated towards carrying the law into effect. 5 St. at Large, 472.

In pursuance of this law, on February 10, 1843, the secretary of the navy entered into a contract with Robert L. Stevens for the construction of a war-steamer for harbor defense, which recited his proposal, describing the vessel, and containing certain specifications as to its construction, with a covenant on his part that he would faithfully build and construct the steamer conformably to the plan submitted, and complete the same within two years, provided congress should make the further appropriations necessary for the purpose within a reasonable period.

According to the plan proposed the war-steamer was to be shot and shell proof against the artillery then in use on board vessels-of-war, viz., from 18-pounders to 64-pounders; to be propelled by submerged machinery, called Stevens' circular shells; to have greater speed than any of our steam vessels-of-war then built; the whole engine to be out of the way of shot from any vessel of an enemy; and with other specifications as to the character of the material and the dimensions and relations of the parts, which are important to be noticed only so far as to show that the proposed vessel was to be constructed upon a plan original and novel, and with the expectation of results not previously obtained in any naval construction.

On November 14, 1844, the secretary of the navy and Stevens entered into an explanatory contract, which recited that the stipulations of the former had been found to be too loose and indefinite as to the details of its execution, and that the parties considering themselves bound by so much thereof as related to the dimensions, power, ability to resist shot and shell, and other qualities and arrangements of the vessel, and the amount to be paid therefor, entered into further stipulations modifying and explaining the same. The time for the completion and delivery of the vessel was extended two years from the date of the new contract. Many additional specifications as to the details of construction were inserted. It was agreed that if the cost of making any models or patterns used in the construction should be included in bills paid by the United States in the course of the work or at its completion, they should become the property of the United States.

It was also agreed that the secretary of the navy should appoint some person, whom Stevens should admit within his establishment for building said vessel, whose duty it should be to receive and receipt for, on account of the navy department, all materials delivered therein for constructing said steamer; which materials, when so received and receipted for, should be distinctly marked with the letters U.S. and should become the property of and belong to the United States; and it should be his further duty to certify all accounts, presented and certified by Stevens, for materials and labor, which should form the evidence on which payment should be made; but the authority of such inspecting officer, it was understood, should not extend to a right to judge of the quality or fitness of the materials or workmanship, but merely as to the cost thereof; 'it being understood,' the contract proceeds, 'that the quality and fitness thereof, with other matters concerning the performance of the contract, are to be inspected and determined in the manner hereinafter provided for.'

It was thereupon further stipulated that, before the final payment for the said war-steamer should be made, a certificate should be rendered to the navy department that in her construction, armament, and equipment, all the provisions of the contract had been fully performed by Stevens, which certificate should be given and signed by persons appointed to examine the vessel,-one by Stevens, one by the secretary of the navy, and, in case of disagreement, a third by the other two,-the decision of the majority to be conclusive. It was also agreed that Stevens, in lieu of other security for the faithful performance of the contract on his part, should make to the United States a mortgage, which should be a first lien on all the land, docks, wharves, slips, and all their appurtenances belonging to and embraced within the establishment at Hoboken, New Jersey, at which the war-steamer was to be constructed, with ample power to enter upon and sell the same in case of failure on the part of the said Stevens to fulfill his part of the contract, or so much thereof as should be necessary to complete any deficiencies on his part.

The secretary of the navy agreed to pay, as the price of the said war-steamer when fully completed and delivered at the navy-yard at Brooklyn, in conformity with the contract, the sum of $586,717.84, the supposed mean cost of the steamers Missouri and Mississippi, or any additional sum that might afterwards be ascertained as properly included in that cost, to be indorsed on the contract 'as the price which is to be paid for the said war-steamer when fully completed, delivered, and accepted.'

Payments were to be made, from time to time, upon bills certified by Stevens and the agent of the United States, for not less than $5,000 each, and approved by the navy department, until the sum of $500,000 should have been paid; at which time, it was stipulated, that an examination should be had of the war-steamer, by persons to be appointed, as before agreed, for final examination, and if a majority of them should certify their opinion that the vessel could be fully completed according to contract for the remaining balance which might then be due, then payments of further bills in full should continue, not exceeding the full amount of the whole agreed price; but otherwise the examiners were required to certify the amount which, in their opinion, would be required to complete the steamer, when the secretary of the navy was authorized to withhold from future payments such deductions as might be necessary to meet the probable excess of cost. It was further provided that when the said Stevens should have fully completed the said war-steamer, and when she should have been duly delivered to and received by the agent of the United States, according to the terms of the contract, that full amount of the price remaining unpaid and to become due when the said war-steamer should be fully completed and accepted, was required to be paid and the mortgage security canceled and returned.

In pursuance of his contract to that effect, Robert L. Stevens executed and delivered a mortgage on the premises therein described, being the basin, dock, shops, etc., wherein the war-steamer was to be constructed, conditioned to be void in case he fully performed his contract in relation thereto, with a power of entry and sale, on the part of the mortgagee, in case default should be made in the completing and delivery of the said war-steamer at the expiration of four years from that date, according to the conditions and stipulations of the contract, and out of the proceeds of such sale to retain any dues that might have accrued by reason of the failure to perform the contract, or so much thereof as should be necessary to complete any deficiencies on the part of the said Stevens.

The time for the performance of the contract was by a subsequent agreement extended for four years from September 9, 1848.

From January 5, 1845, to December 14, 1855, there was paid out by the navy department on account of the vessel $500,000.

Robert L. Stevens, prior to his death, in 1856, had, in addition, expended in its construction, of his own means, $113,579.

The naval appropriation act, approved August 16, 1856, (11 St. at Large, 48,) contains an appropriation 'for Stevens war-steamer, $86,717.85,' being the remainder of the contract price, but no portion of this was ever paid.

In the mean time Edwin A. Stevens took possession of the work upon the death of his brother, as executor and residuary legatee, and expended thereon, prior to September 5, 1857, of his own money, the sum of $89,185.37.

Nothing further appears to have been done until congress passed an act, approved April 17, 1862, (12 St. at Large, 380,) making an additional appropriation for the naval service for the year ending June 30, 1862. The second section of that act is as follows:

'And be it further enacted, that the sum of $783,294, being     the amount necessary to be provided, as estimated by a board      appointed for that purpose, to pay for and finish the Stevens      battery, now partially constructed at Hoboken, New Jersey, be      and the same is hereby appropriated out of any money not      otherwise appropriated for the immediate construction of said      battery: provided, that in the contract for the completion of      said vessel it shall be stipulated that no part of the money      claimed by Edwin A. Stevens to have been heretofore expended      by him upon said vessel shall be refunded until the amount of      said claim shall be established to the satisfaction of the      secretary of the navy, and the payment of the said sum shall      be contingent upon the success of said vessel as an      iron-clad, sea-going war-steamer, to be determined by the      president, and such contract shall stipulate the time within      which the vessel shall be completed: provided, nevertheless,      that said money shall not be expended unless the secretary of      the navy is of opinion that the same will secure to the      public service an efficient steam-battery.' The board, whose estimate is adopted in this act, was one appointed by the secretary of the navy, under the authority of a joint resolution of congress, approved July 24, 1861, whose report was communicated to the house of representatives in a letter of the secretary of the navy to the speaker, dated January 2, 1862. Ex. Doc. No. 23, H. R. 37th Congress, 2d Sess. Upon the question of the expediency of completing the vessel, the board specify six important particulars, as among 'the many novel characteristics which she would possess,' in which she differed from ordinary war-vessels, and conclude by saying: 'We cannot recommend the expenditure of important sums of money upon projects of more than doubtful success when put into practical execution; and therefore we do not deem it expedient to complete this vessel upon the plan proposed.' The report had previously stated 'that the original projector of the vessel was the late Robert L. Stevens, Esq., deceased, and that his brother, Edwin A. Stevens, Esq., who now proposes to complete it, has materially changed the plans from what appears to have been originally intended.'

No part of the sum appropriated by the act of April 17, 1862, was applied to the purpose of completing the battery. The secretary of the nevy declined to do so, in the exercise of the discretion confided to him in the last clause of the section, for reasons set forth in his letter to the speaker of the house of representatives, dated May 27, 1862, in which he states that he had taken the opinion of a commission of experts, who had reported that 'the vessel, if completed on the plans of Mr. Stevens, will not make an efficient steam-battery,' and therefore that he did not feel authorized to make the expenditure unless congress should so direct.

Congress thereupon passed the joint resolution, approved July 17, 1862, on which the plaintiffs in error found their claim.

Nothing appears to have been done towards resuming work on the vessel, from the date of the last previous expenditure in 1857, until the death of Edwin A. Stevens, on August 7, 1868, during which time it remained in his possession and control. His will contained the following provision:

'I empower my executors to apply not exceeding the sum of     $1,000,000 TO FINISH, ON my general plans, as near as may be, in the      discretion of my said executors, the battery known as the      Stevens battery, and for the accomplishment of the said      object I give to them the use of the dock and yeard and basin      heretofore appropriated to the said battery, and all the      material provided for said battery. When said battery shall     be finished, I direct my executors to offer the same to the      state of New Jersey as a present, to be disposed of as the      said state shall deem proper; and if not accepted by the said      state, I direct my executors to sell the same, and the      proceeds thereof shall fall into the residue of my estate.'

In execution of this authority the executors, prior to February 27, 1873, expended $919,915.49, of which $27,309.79 was received from the sale of old material.

The legislature of New Jersey, on March 21, 1871, had authorized the appointment of commissioners with power to sell the battery, and, in pursuance of that authority, the vessel, never having been finished, was sold for the sum of $75,000.

The contention of the plaintiffs in error is that the title to the unfinished vessel passed, as the work progressed, to the United States, and became vested, together with the right to enforce the contract for its completion, and the security of the mortgage, as against the estate of Robert L. Stevens, in his heirs at law, by force of the joint resolution of July 17, 1862.

In support of the proposition that by the building contract the title to the unfinished ship vested, as the work progressed, in the United States, counsel rely upon the rule of construction announced by Lord TENTERDEN in Woods v. Russell, 5 Barn. & Ald. 942, and followed by the English cases of Clark v. Spence, 4 Adol. & E. 448; Carruthers v. Paine, 5 Bing. 270; Laidler v. Burlinson, 2 Mees. & W. 602; Wood v. Bell, 5 El. & Bl. 355, affirmed in the exchequer chamber, 6 El. & Bl. 355; McBain v. Wallace, L. R. 6 App. Cas. 589; and the American cases of Moody v. Brown, 34 Me. 107; Butterworth v. McKinley, 11 Humph. 209; Sandford v. Wiggins Ferry Co. 27 Ind. 522; Scudder v. Calais Steam-boat Co. 1 Cliff. 370.

This conclusion was assented to in the present case by the chancellor, who proceeded to a final decree, however, against the plaintiffs in error, on the ground that the title of the United States passed by the resolution of July 17, 1862, not to the heris at law of Robert L. Stevens for their own benefit, but to or for the benefit of Edwin A. Stevens, the residuary legatee. The court of errors and appeals took a different view, and decided that the title of the ship never vested in the United States as owner, following its own previous decision in Elliott v. Edwards, 6 Vroom, 265; S.C.. 7 Vroom, 449; the New York case of Andrews v. Durant, 11 N. Y. 35 and supported by the decision in Williams v. Jackman, 16 Gray, 514, in which the rule is stated by BIGELOW, C. J., as follows:

'Under a contract for supplying labor and materials and     making a chattel, no property passes to the vendee till the      chattel is completted and delivered, or ready to be      delivered. This is a general rule of law. It must prevail in     all cases, unless a contrary intent is expressed or clearly      implied from the terms of the contract.'

The rule first introduced in Woods v. Russell, 5 Barn. & Ald. 942, as interpreted by the English courts, according to Clark v. Spence, 4 Adol. & E. 448, is 'founded on the notion that provision for the payment, regulated by particular stages of the work, is made in the contract with a view to give the purchaser the security of certain portions of the work for the money he is to pay, and is equivalent to an express provision that on payment of the first installment the general property in so much of the vessel as is then constructed shall vest in the purchaser.' This dictum from Woods v. Russell, according to Benj. Sales, 246, (2d Ed.,) was deliberately adopted as a rule of construction by which, in similar ship-building contracts, the parties are held to have, by implication, evinced an intention that the property shall pass, notwithstanding the general rule to the contrary, and adds: 'The law thus established has remained unshaken to the present time.'

Nevertheless, in Wood v. Bell, 5 El. & Bl. 791, Lord CAMPBELL, C. J., said:

'When a man contracts with another to make any article for     him for a given price, the general rule is, in the absence of      all circumstances from which a contrary conclusion may be      inferred, that no property passes in the chattel until it be      completed and ready for delivery. On the other hand, where a     bargain in made for the purchase of an existing ascertained chattel, the general rule, in the same absence of      opposing circumstances, is that the property passes      immediately to the vendee; that is, that there is at once a      complete bargain and sale. But these general rules are both     and equally founded on the presumed intention of the parties. If, in the first, there are attendant circumstances from     which the intention may be inferred that the property shall      pass in the incomplete and growing chattel as the manufacture      of it proceeds, or even in ascertained materials from which      it is to be carried to perfection, that intention will be      effectuated; and, equally in the latter, if it appear that      the parties intended to postpone the transfer of the property      till the payment of the price or the performance of any other      condition, such intention will be upheld in the courts of      law.'

'This principle,' he added, 'we believe to be well settled;' and referring to the cases of Woods v. Russell, Clark v. Spence, Laidler v. Burlinson, and others cited in argument, he remarked that 'previous decisions, therefore, are mainly useful as serving to guide our judgment in estimating the weight of circumstances as evidence of intention;' and concluded by saying: 'Still it must be remembered, after all, that what we have to determine is a question of fact, namely, what, upon a careful consideration of all the circumstances, we believe to have been the contract into which the parties have entered.'

It is, perhaps, worthy of remark that this passage from the judgment of Lord CAMPBELL has been incorporated into the text of Abb. Merch. Ships & Seamen, 4, by the editors of that treatise.

The courts of this country have not adopted any arbitrary rule of construction as controlling such agreements, but consider the question of intent, open in every case, to be determined upont he terms of the contract, and the circumstances attending the transaction, (1 Pars. Shipp. & Adm. 63;) and such seems to us to be the true principle.

Accordingly, we are of opinion that the fact that advances were made out of the purchase money, according to the contract, for the cost of the work as it progressed, and that the government was authorized to require the presence to an agent to join in certifying to the accounts, are not conclusive evidence of an intent that the property in the ship should vest in the United States prior to final delivery. Indeed, in reference to the latter circumstance, it is noticeable, as indicating a contrary intention, that the authority of the inspecting officer was expressly limited, so that it should not extend to a right to judge of the quality and fitness of the materials or workmanship; such matters, and all others concerning the performance of the contract, being reserved for determination after the completion of the work, as a condition of acceptance and final payment.

Much stress is laid, in argument, upon that provision of the contract which required all materials received at the yard for use in constructing the steamer, to be distinctly marked with the letters U.S., and declared that they should become the property of and belong to the United States. But it does not follow, because the materials provided for that use were declared to be the property of the United States, it was intended that they should remain so after becoming part of the structure. Such a precaution might well have been suggested, as a security against a diversion of the materials to any unauthorized use, or to preserve the materials to the United States, in case, by reason of the failure of the work or from any other cause, they should not be used in the vessel. Indeed, as is remarked by the learned judge who delivered the opinion of the court of errors and appeals in this case, the express declaration that defined the property in the unused materials, seems to exclude the implication sought to be raised as to the property in the unfinished ship; for the inference is obvious, from the particularity of such a provision, that the larger interest would not be left to mere intendment.

There are two other provisions of the contract, which seem to us conclusive of the question, and, in a sense, adverse to the construction of the plaintiffs in error.

The first of these is that which requires Stevens to execute and deliver a mortgage, in lieu of other security, for the faithful performance of the contract on his part, on all the land, docks, wharves, slips, and all their appurtenances belonging to and embraced within the establishment at Hoboken, New Jersey, at which the war-steamer was to be constructed, with power to the mortgagee to enter upon and sell the same in case of failure on the part of Stevens to fulfill his part of the contract, or so much thereof as should be necessary to complete any deficiencies on his part.

The taking of this security, as an indemnity to the United States, assumes the anticipated possibility that the failure might be total, so that the vessel, when offered for delivery, might be altogether rejected. And it does not detract from the force of this conclusion, that the alternative provides for completing deficiencies, if they should prove to be remediable; for, in that case, the United States, at its option, might accept the vessel, thus becoming invested with the title, and make good its deficiencies out of this security.

The other feature of the contract, which corroborates this view, is that which provides that final payment for the steamer shall be made only upon the certificate of examiners, to be appointed for that purpose, that in her construction, armament, and equipment, all the provisions of the contract have been fully performed and completed, which requires that the steamer shall be fully completed and delivered at the navy-yard at Brooklyn, and fixes the gross amount which is to be paid for it when fully completed, delivered, and accepted. The fact that advances are to be made in the mean time is expressly stated to be in consideration of the security to be given by Stevens for the faithful performance of his contract, and that compensation for his time and services must be wholly deferred until the final completing and delivery of the vessel.

It is thus apparent, as we think, from these stipulations, that the vessel was in all respects to be at the risk of the builder, until, upon its completion, the United States should accept it, upon final examination and certificate, as conforming in every particular with the requirements of the contract, and answering the description and warranty of an efficient steam-battery for harbor defense, shot and shell proof.

And looking at the situation of the parties and the objects they must have had in view, all doubt is removed as to their intention. Mr. Stevens was an ardent and sanguine inventor, who had convinced himself that his unique design of a naval structure was practicable and of great value, and that, if adopted, it would prove to be of immense public utility. He succeeded also in persuading the government to make the experiment and give him the opportunity of realizing his theories. But is was understood to the merely an experiment, and evidently, by the navy department, naturally conservative and inclined to adhere with some tenacity to its own traditions, regarded, at best, as of very doubtful success. The steamer when built was to constitute a part of the naval establishment of the United States. Can it be supposed that this was to take place except upon condition that, after completion and sufficient examination, it should be found fit for the service? This is the view, as it seems to us, which congress by its legislation, and the navy department in all its dealings with the subject, constantly entertained and acted upon, and which both Bobert L. Stevens and his brother, Edwin A. Stevens, did not hesitate to accept; the latter not shrinking from a further investment of $1,000,000 in an enterprise which he still cherished with confidence of ultimate success, after it had become to almost every one else a demonstrated failure, and after the government, for whom it was originally intended, had refused to it all further subsidies.

We find, therefore, that on July 17, 1862, the date of the joint resolution of congress, under which the plaintiffs in error make their claim, the United States had no title to the Stevens battery; but that the property in it had continued in Robert L. Stevens until his death, and passed by his will to Edwin A. Stevens, as residuary legatee. It follows that it did not pass to the heirs at law of Robert L. Stevens by virtue of the joint resolution.

It is urged, in argument, that, if the right to the vessel itself did not pass, then the joint resolution must be construed as a transfer to the heirs of Robert L. Stevens of the right of action of the United States to recover against his estate damages for his non-performance of his contract, together with the securities, by way of mortgage and lien, it held as indemnity. We see no ground for a construction that leads to so remarkable a result. The plain meaning of the resolution is limited to a relinquishment on the part of the United States of any interest it might be supposed to have in the vessel, in which the heirs of Robert L. Stevens are mentioned, probably, because it was with him that the building contract was made; and if it could operate at all as a release, would be to them, for the benefit of those who, by law, had become his successors in the title; and that release would necessarily convey with it, as an incident, an extinguishment of the obligation of the contract for construction, and all the securities taken for its performance. It was, in effect, and was doubtless intended as, a declaration on the part of the United States, for the benefit of whom it might concern, of its entire abandonment of all further connection with the battery and the contract for its construction. The subsequent assent on the part of congress to its acceptance by the state of New Jersey, as a bequest from Edwin A. Stevens, while it could not operate to affect any rights vested in the interval, is, at least, a legislative interpretation of its previous release. This resolution expressly recites that Edwin A. Stevens was the owner of the battery in his life-time, and is scarcely more explicit in the recognition of his title than was the conduct of all the parties, including the present plaintiffs in error.

We are of opinion, for the reasons stated, that there is no error in the decree complained of, and it is accordingly affirmed.


text: Talk:Clarkson v. Stevens/Opinion of the Court

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


text:
Patterson v. Lynde

[Syllabus from page 519 intentionally omitted]

[Statement of Case on pages 519-520 intentionally omitted]

C. M. Harris, for plaintiff in error.

''Chas. M. Osborn'', for defendant in error.

WAITE, C. J.

title: Patterson v. Lynde


text: Talk:Patterson v. Lynde

title: Talk:Patterson v. Lynde


text:
Patterson v. Lynde/Opinion of the Court

The only question we deem it necessary to consider in this case is whether a creditor of a corporation, formed and organized under the general laws of Oregon 'in relation to the formation of private corporations,' can maintain an action at law against a stockholder to recover, out of an unpaid balance of subscription to the capital stock, the debt due to him from the corporation. The constitution of Oregon, art. 11, § 3, provides that 'the stockholders of all corporations and joint-stock companies shall be liable for the indebtedness of said corporation to the amount of their stock subscribed and unpaid, and no more.'

Section 14 of the statute 'in relation to the formation of private corporations' is as follows:

'Sec. 14. All sales of stock, whether voluntary or otherwise,     transfer to the purchaser all rights of the original holder      or person from whom the same is purchased, and subject such      purchaser to the payment of any unpaid balance due or to      become due on such stock. But if the sale be voluntary, the     seller is still liable to existing creditors for the amount      of such balance, unless the same be duly paid by such      purchaser.'

Since this case was decided below, the supreme court of Oregon has passed on the same question, and in Bush v. Cartwright, 7 Or. 329, determined that the individual liability of stockholders for the indebtedness of the corporation is limited to the amount of their stock subscribed and unpaid, and that the remedy of the creditor to enforce this liability is in equity, where the rights of the corporation, the stockholder, and all the creditors can be adjusted in one suit. Of the correctness of this decision we have no doubt. The liability of the stockholder is upon his subscription; that is to say, upon his obligation to contribute to the capital stock, which is a trust fund for the benefit of those to whom the corporation, as a corporation, becomes liable. Sawyer v. Hoag, 17 Wall. 620. The constitution of Oregon created no new right in this particular; it simply provided for the preservation of an old one. The liability under this provision is not to the creditors, but for the indebtedness. That is no more than the liability created by the subscription. The subscription is part of the assets of the corporation, at least so far as creditors are concerned. The liability of the stockholder to the creditor is through the corporation, not direct. There is no privity of contract between them, and the creditor has not been given, either by the constitution or the statute, any new remedy for the enforcement of his rights. The stockholder is liable to the extent that the subscription represented by his stock requires him to contribute to the corporate funds, and when sued for the money he owes, it must be in a way to put what he pays, directly or indirectly, into the treasury of the corporation for distribution according to law. No one creditor can assume that he alone is entitled to what any stockholder owes, and sue at law so as to appropriate it exclusively to himself.

The judgment of the circuit court is affirmed.

title: Patterson v. Lynde/Opinion of the Court


text: Talk:Patterson v. Lynde/Opinion of the Court


text:
Page:The Works of J. W. von Goethe, Volume 10.djvu/19

 Part II.

HERMANN AND DOROTHEA.

before have I seen our market and streets so deserted; Truly the town is as though 'twere swept out, or dead: for not fifty Still are remaining behind, methinks, of our whole population. What will not curiosity do? Thus runneth and rusheth, Each one now to see the train of the poor wretched exiles. Up to the causeway on which they travel, is nigh an hour's journey. Still runs thither the crowd, in the dust and heat of the midday; Yet, should not I like to stir from my place to see what affliction


text:
Nets to Catch the Wind/Sanctuary

This is the bricklayer; hear the thud Of his heavy load dumped down on stone. His lustrous bricks are brighter than blood, His smoking mortar whiter than bone.

Set each sharp-edged, fire-bitten brick Straight by the plumb-line's shivering length; Make my marvelous wall so thick Dead nor living may shake its strength.

Full as a crystal cup with drink Is my cell with dreams, and quiet, and cool.... Stop, old man! You must leave a chink; How can I breathe? You can't, you fool!

title: Nets to Catch the Wind/Sanctuary


text:
Carll

A. J. Dittenhoefer, for petitioner.

WAITE, C. J.

title: Carll


text: Talk:Carll

title: Talk:Carll


text:
Carll/Opinion of the Court

This application is denied. We have had occasion to say at the present term, in Ex parte Curtis, ante, 381, that 'we have no general power to review the judgments of the inferior courts of the United States in criminal cases, by the use of the writ of habeas corpus or otherwise. Our jurisdiction is limited to the single question of the power of the court to commit the prisoner for the act of which he has been convicted.' This rule is well settled. Ex parte Lange, 18 Wall. 163; Ex parte Rowland, 104 U.S. 604. The grounds of the present application, as stated in the petition, are, that the circuit court had no jurisdiction to try the prisoner for the offense of which he has been convicted and to commit him to prison therefor, because (1) the instruments described in the indictment and charged to have been forged show on their face that they are not bonds or obligations of the United States, and, even if genuine, possessed no validity; and (2) it was conceded on the trial that the instruments set forth in the indictment were genuine registered bonds, and that the forgery complained of consisted in erasing the name of the original payee and substituting that of the prisoner.

All the bonds described in the indictment, except that in the third count, purported to have been issued under the act of July 14, 1870, c. 256, as amended by the act of January 20, 1871, c. 23. This act provides for an issue of bonds by the secretary of the treasury 'in such form as he may prescribe.' The bonds now in question appear to be signed by the register of the treasury and not by the secretary. They also have the 'imprint and impression of the seal of the department of the treasury of the United States.' In the indictment it is averred that the counterfeits were of bonds of the United States. This is enough for the purposes of the jurisdiction of the circuit court. Whether the bonds counterfeited are in the form of those actually issued by the secretary of the treasury under the authority of the act referred to, is a question of fact to be established on the trial. Errors committed on the trial of this issue do not deprive the court of its power to imprison upon conviction, and, as has been seen, such errors are not subject to correction here, either in the present form of proceeding or any other. What has just been said applies equally to the instrument described in the third count, which purports to be signed by the acting register of the treasury. By the act of February 20, 1863, c. 45, the president was authorized to designate some officer in a department to perform the duties of another in case of death, resignation, absence, or sickness.

The second ground of application presents no jurisdictional question. The indictment charged the prisoner with a crime against the laws of the United States, (U.S. v. Marigold, 9 How. 560,) and we have nothing to do with questions arising on the evidence presented to sustain the charge.

title: Carll/Opinion of the Court


text: Talk:Carll/Opinion of the Court

title: Talk:Carll/Opinion of the Court


text:
First National Bank of Youngstown Ohio v. Hughes

Sidney Strong, for appellant.

W. C. McFarland, for appellees.

WAITE, C. J.

Section 2782 of the Revised Statutes of Ohio (1880) provides that if a county anditor has reason to believe or is informed that any person has given to a tax assessor a false statement of his personal property, moneys, etc., or that the assessor has made an erroneous return of any property, moneys, etc., which are by law subject to taxation, he may proceed to correct the return and to charge such persons on the tax duplicate with the proper amount of taxes; 'to enable him to do which he is * * * anthorized and empowered to issue compulsory process, and require the attendance of any person or persons whom he may suppose to have a knowledge of the articles, or value of the personal property, moneys, or credits, investments in bonds, stocks, joint-stock companies, or otherwise, and examine such person or persons, on oath, in relation to such statement or return.'

Section 2783 provides for process of subpoena in case any person shall neglect to appear and testify when called on by the auditor, and for punishment for contempt. Under the authority of this statute the auditor of Mahoning county, in the exercise of his power to charge persons on the tax duplicate with the proper amount of taxes, called on the cashier of the First National Bank of Youngstown to appear and testify, and, because he could not testify without, to bring with him the books of the bank showing its deposits. Thereupon the bank filed a bill in equity to enjoin the auditor, alleging for cause that such a proceeding on his part would unlawfully expose its business affairs, lessen public confidence in it as a depository of moneys, diminish its deposits, and greatly impair the value of its franchises. The circuit court dismissed the bill and the bank appealed. A motion is now made to dismiss the appeal for want of jurisdiction, because the value of the matter in dispute does not exceed $5,000.

In Barry v. Mercein, 5 How. 120, it was decided that to give this court jurisdiction in cases dependent upon the amount in controversy, 'the matter in dispute must be money, or some right, the value of which, in money, can be calculated and ascertained.' To the same effect are Pratt v. Fitzhugh, 1 Black, 273; De Kraft v. Barney, 2 Black, 714; Potts v. Chumasero, 92 U.S. 361.

The present suit is not for money, nor for anything, the value of which can be measured by money. The bank has no interest in the taxes to be placed on the tax duplicate. There is no property in dispute between the auditor and the bank. If the cashier is compelled to testify and to produce the books to be used in evidence for the purposes required, the damages, if any, resulting to the bank would be, in the highest degree, remote and speculative. Certainly no suit for even nominal damages could be sustained against the auditor on account of what he had done. All the cashier is required to do, is to give testimony in a proceeding instituted under the authority of law by the auditor to perfect the tax lists of the county. It is supposed the books of the bank contain evidence pertinent to this inquiry, and appropriate measures are taken to have them produced for examination. The case is in no respect different in principle from what it would be if the evidence was called for in an ordinary suit in a court of justice between individuals.


text: Talk:First National Bank of Youngstown Ohio v. Hughes


text:
First National Bank of Youngstown Ohio v. Hughes/Opinion of the Court

Affidavits can only be used to furnish evidence of value not appearing on the face of the record when the nature of the matter in dispute is such as to admit of an estimate of its value in money.

The motion to dismiss is, therefore, granted.


text: Talk:First National Bank of Youngstown Ohio v. Hughes/Opinion of the Court


text:
United States v. Stone Stone

Asst. Atty. Gen. Maury, for the United States.

''Geo. E. Harris'', for Stone and McAlexander.

MATTHEWS, J.

title: United States v. Stone Stone


text: Talk:United States v. Stone Stone

title: Talk:United States v. Stone Stone


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

This action was brought by the United States upon an official bond of Benjamin B. Emory, as collector of internal revenue for the third district of Mississippi, against himself and Stone and McAlexander, two of his sureties. The bond is dated March 29, 1870, is in the penal sum of $50,000, and reciting that Emory had been appointed and had received a commission as collector for the district mentioned, dated December 29, 1869, is conditioned that 'he shall truly and faithfully execute and discharge all the duties of the said office according to law, and shall justly and faithfully account for and pay over to the United States, in compliance with the orders and regulations of the secretary of the treasury, all public moneys which may come into his hands or possession,' etc. The breach alleged is that he failed to account for and pay over the sum of $57,497.84 of public moneys which had come into his possession as such collector.

The defendants pleaded nil debet, and gave notice of special matter to be given in evidence under that plea, among others, that 'the alleged liability for which this suit is brought arose, if it arose at all, under a bond given by said Emory, as such collector, in October, 1869, and not under the bond on which this suit was brought,' etc. They also pleaded payment before suit brought, and also an argumentative plea of non est factum, to which a demurrer was sustained. Subsequently they filed an additional plea traversing the alleged breach of the condition of the bond.

Before the trial the district attorney moved to strike out the defendants' plea of nil debet, with the notice of special matter attached, and an order sustaining that motion appears from the record to have been made; although, from a bill of exceptions taken at the time, it is stated that the motion was sustained only so far as the notice was concerned, and overruled as to the plea. There was a verdict in favor of the United States for $10,003.52, and judgment rendered thereon. Writs of error were sued out by both parties, and are now prosecuted to reverse that judgment, for errors alleged to have been committed by the court in its rulings on the trial, duly excepted to by the parties respectively, and brought upon the record by bills of exception. They will be considered in their order, beginning with those assigned by the defendants below.

1. There was no error, as alleged, in striking out the notice of the special matter, to be given in evidence, under the plea of nil debet. It was proper to strike it out, because it was matter which denied the plaintiff's whole cause of action, which, consequently, it was bound to meet with its own evidence in the first instance, and which, therefore, the defendants traversed by the plea of nil debet, and the plea denying the alleged breach of the condition of the bond. Any evidence which would have been competent under the notice would have been equally so without it; and in point of fact, all the evidence offered on the part of the defendants, which was competent under the notice, was admitted under the pleas.

2. The first bill of exceptions taken by the defendants states that 'the said plaintiff offered to read to the jury certain transcripts from the books of the treasury department at Washington city, and certified transcripts of papers on file in said department, touching the official conduct of B. B. Emory as late internal-revenue collector for the third district of Mississippi, which said transcripts are dated respectively, _____, as shown by the certificates of the secretary of the treasury. And to these transcripts the defendants had filed written exceptions and objected to their introduction as evidence for the reasons assigned in said exceptions.' The court overruled the objection and permitted the transcripts to be read in evidence, to which reading the defendants excepted; and it is now assigned for error. In another part of the record there is this statement: 'The following are transcripts from the books of the treasury department at Washington and of papers on file, which are referred to in the bills of exception taken and filed in this cause.' THEN FOLLOWS 47 Printed pages of matter, consisting of certified statements of account from the books of the treasury department, and copies of numerous papers on file, apparently relating to the accounts of this collector. But it is impossible to know, with accuracy, from the record, which of these were offered in evidence by the plaintiff and to which the objection was intended to apply; for it appears from another bill of exceptions, and there were six in all, which was taken by the plaintiff, that some of these transcripts from the books of the treasury department were offered by the defendants themselves and admitted in evidence, against the objection of the district attorney, a ruling we are called upon to consider hereafter, as it is alleged as error on the part of the United States, under the writ of error which it prosecutes. It is only by subtracting these from the entire mass that we can infer to what the defendants objected. The exceptions filed to these transcripts, referred to in the bill of exceptions and found elsewhere in the record, are as follows:

'(1) The certificates are not such as the law requires; (2)     the transcripts are incomplete, and do not set out the      entries on the books of the department, and are not      transcripts from the books, but summaries of what the      officers suppose the books contain; (3) the reports and      receipts of Emory, as collector for assessments, and other      papers connected with the settlement of his accounts by the      department, are not set out in said transcripts; (4) Emory's      monthly and quarterly reports are not set out in said      transcripts; (5) Emory's receipts for assessments are not set      out in said transcripts; (6) facts are set out in said      transcripts which did not come before the department, which      were not in the course of business, and of which its      transcript is no evidence; (7) said transcripts are partial,      imperfect, and do not present the whole record statement in      regard to said Emory's accounts as late collector as      aforesaid.'

The particulars in which the transcripts in question are supposed to be open to these exceptions are not pointed out to us, either by anything in the record or in argument by counsel, and there is nothing upon their face which suggests them to us. The papers in question seem to be in the usual form of such statements, and purport to be copies from the books of the treasury department of the accounts between the collector and the United States, containing the usual items, and showing the appropriate balance between the debits and credits. If there is anything in them illegal, insufficient, or incomplete, we have not been able to discover it. U.S. v. Gaussen, 19 Wall. 198.

It is, however, said by counsel for defendants that in the treasury transcript, showing an adjustment of the collector's accounts, covering all his official time prior to the date of giving the bond sued upon, he is charged with five items, aggregating $50,063.20, and that this account is balanced by credits, three items of which purport to be transfers to himself, as his own successor, amounting to $30,534.42, which, it is alleged, was an existing indebtedness to the government. In the next adjustment he is charged with the same items, showing an arrearage at that time of $60,613.85, and a balance is found against him as occurring since the date of the bond in suit, the effect of which, it is argued, is to shift a default from the first to the second bond; and it is claimed that for this reason the transcript offered by the district attorney was not competent evidence, and should have been excluded from the jury. But this objection did not arise upon the face of the accounts offered in evidence by the United States, but only after a comparison between them and that offered by the defendants, and therefore would lie, not to the competency of the evidence, but to its effect. And while it is true that the sureties sued are liable only for money received during the term for which the collector was appointed, covered by the bond to which they are parties, and not for the misapplication of money received and misapplied prior or subsequent to that term, (U.S. v. Eckford, 1 How. 250,) nevertheless it is equally true that they are liable for taxes collected during that term, upon assessment rolls received during a prior term, or for moneys or stamps on hand at the expiration of a former term, and remaining in his possession at the beginning of a new one; for the collector is responsible as well for moneys and stamps retained by him as his own successor, as for those received by him from any other predecessor. And the separate adjustment of his accounts for both periods, made at the treasury department upon its books, is prima facie evidence, not only of the fact and of the amount of the indebtedness, but also of the time when and the manner in which it arose. It is, of course, always open to the defendants sought to be charged to show by opposing proof that the default charged occurred before the commencement of their liability. We repeat what was said by this court in U.S. v. Eckford, 1 How. 263.

'The amount charged to the collector at the commencement of     the term is only prima facie evidence against the sureties. If they can show, by circumstances or otherwise, that the     balance charged, in whole or in part, had been misapplied by      the collector prior to the new appointment, they are not      liable for the sum so misapplied.'

3. It is next assigned for error that the court omitted to charge the jury 'that the facts not properly appearing on the books of the treasury department could not be embraced in the transcript, facts of which the department had no knowledge, and if so embraced they did not constitute proof in this case.' This alleged omission on the part of the court is stated in the bill of exceptions to have occurred in connection with the following instruction, which was given:

'That while it was true that the plaintiff could only recover     in this case for money actually collected by Emory, and not      accounted for to the government, yet, if they believe from      the evidence that Emory had received the assessment rolls of      the taxes imposed, that was prima facie evidence that he had      received the money on them in the absence of any other or      further proof on that subject.'

Although the giving of this charge was excepted to, the error assigned upon it was not pressed in argument; nor could it be maintained, as the instruction was undoubtedly correct. Nor does it appear from the bill of exceptions that the court was asked to give the instruction, the omission of which is now complained of; although it states that for that cause the defendants then and there excepted. But, waiving the form of the exception, it must be overruled, because, however correct the rule may be, which it states the court omitted to give to the jury, it is not shown, by anything in the present record, how it could apply to the case. It was not shown that there were any facts embraced in the transcripts which could not properly appear on the books of the treasury department, nor any of which the department had not knowledge; and no attempt has been made to point them out in argument.

This disposes of the errors assigned by the defendants, in none of which do we find any ground for disturbing the judgment.

4. A bill of exceptions was taken during the trial on the part of the United States. From that it appears that the defendants offered in evidence a certified copy of the official bond of Emory, as collector of internal revenue for the third district of Mississippi, under an appointment dated October 2, 1869, the bond being dated October 11, 1869, with sureties other than the present defendants, and a certified transcript from the books of the treasury department of an adjustment of his accounts as such collector, under that appointment, from November 4, 1869, to March 28, 1870, showing a balance due from him to the United States, 'transferred to himself as his own successor,' of $4,027.52, and with which he is charged in the next adjustment under the bond sued on, dated March 29, 1870; and in which, also, he is credited with $13,050.17 as 'amount of taxes on lists transferred to himself as collector under second bond,' and with $13,456.13 as 'amount of stamps transferred to himself as collector under second bond, viz., tobacco, $8,098.88; spirits, $5,327.25.' To the introduction of these documents in evidence the district attorney objected. The objection was overruled, the evidence was admitted, and an exception was taken, on which error is now assigned on the part of the United States.

The objection, however, cannot be sustained. We have already stated that it was competent for the defendants to show, in their own exoneration, that the balance charged against the collector, upon the adjustment of his accounts, during the period when they were liable for his defaults, in fact, had arisen by virtue of some default accruing during a prior term. For that purpose, and as tending to prove such a claim, it was competent and proper to show that credits had been given to him, on a prior account, that belonged to subsequent ones, and that he had been debited in the latter with items improperly transferred from previous ones. And to do that, the accounts, in which these charges and credits appeared, were manifestly pertinent and material. It required, of course, further evidence to show the impropriety of the adjustment, unless the facts appeared on the face of the papers, as they did not in this case; and the failure to follow them up with such further evidence might have been a sufficient ground, when the defendants had rested, for granting a motion to rule out the testimony, or for an instruction to the jury as to its effect; but the objection would not prevail, in the first instance, to its introduction.

We find no error in the record, and the judgment is affirmed.


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


text:
Shelton v. Van Kleeck

[Syllabus from page 532 intentionally omitted]

[Statement of Case from pages 532-534 intentionally omitted]

''Chas. J. Beattie and L. E. Payson'', for appellants.

John I. Bennett, for appellees.

WAITE, C. J.

title: Shelton v. Van Kleeck


text: Talk:Shelton v. Van Kleeck

title: Talk:Shelton v. Van Kleeck


text:
Shelton v. Van Kleeck/Opinion of the Court

The only questions open for examination on a bill of review for error of law appearing on the face of the record are such as arise on the pleadings, proceedings, and decree, without reference to the evidence in the cause. This has been many times decided in this court. Whiting v. Bank of U.S. 13 Pet. 6; Putnam v. Day, 22 Wall. 66; Buffington v. Harvey, 95 U.S. 99; Thompson v. Maxwell, Id. 397.

A demurrer admits only such facts as are properly pleaded. As questions of fact are not open for re-examination on a bill of review for errors in law, the truth of any fact averred in a bill of review inconsistent with the decree is not admitted by a demurrer, because no error can be assigned on such a fact, and it is, therefore, not properly pleaded. This disposes of the first, second, third, fourth, and fifth specifications of error presented in this bill of review. They are all errors of fact, and can only be determined by a reference to the evidence. It nowhere appears from 'the bill, answer, and other pleadings, together with the decree,' constituting what Mr. Justice STORY said, in Whiting v. Bank of U.S. supra, 'is properly considered as the record,' that there was any usury in the case, or that the appellants had not waived their homestead rights as alleged in the bill.

All the allegations of error on the face of the record are equally bad. It is stated in the decree that all the material averments of fact in the bill were proved, and on these facts the priority of the lien of the complainant was established. All the issues were thus disposed of, and the decree was in favor of the complainant and against all the defendants. The omission of the name of McGregor from among those against whom it was stated in the decree the bill was taken as confessed, is unimportant. If, as is stated in the brief of counsel for the appellant, he was served with subpoena, and did not plead, answer, or demur to the bill, the decree was in fact proconfesso as to him, and he is as much bound as if he had been particularly named.

All the new matter alleged to have been discovered relates to the proceedings in making the sale, and can have no effect on the original decree. So far as the decree confirming the sale is concerned, the matter is not new, for the addition to the transcript, filed by consent, shows that all the affidavits now relied on to establish the new facts were actually read in evidence on the hearing of a motion, made before the confirmation, to set aside the sale. These affidavits cannot be considered on a bill of review to reverse the decree of confirmation for errors appearing on the face of the record, because as evidence they form no part of the record which can be looked into on such a review. But, as part of the exhibits annexed to a bill of review for alleged discovery of new matter, they may be referred to for the purpose of determining whether, upon the showing of the complainant in review, the matter alleged to be new first came to his knowledge after the time when it could have been made use of at the original hearing. This disposes of the case; and the decree of the circuit court dismissing the bill of review is affirmed.


text: Talk:Shelton v. Van Kleeck/Opinion of the Court


text:
United States v. Power

''Sol. Gen. Phillips'', for plaintiff in error.

No brief filed or argument made for defendant in error.

MILLER, J.

title: United States v. Power


text: Page:Sketches by Mark Twain.djvu/2

title: Page:Sketches by Mark Twain.djvu/2


text: Talk:United States v. Power

title: Talk:United States v. Power


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

The United States recovered a judgment in the circuit court for the district of Massachusetts against Denvir, on his bond, given as surety for the faithful performance by David F. Power of all his duties as acting assistant paymaster in the navy of the United States. No service on Power or appearance for him and no defense by Denvir being made, judgment was rendered for the sum of money found to be in the hands of the paymaster, with interest from the service of the original writ in this suit, in March, 1875. The United States asserted a right to interest from the date of the last receipt of money by the paymaster, namely, August, 1865, and excepted because the court overruled this proposition. No evidence was given of any demand on the paymaster, or any refusal to pay or transfer the fund in his hands, or to comply with any lawful order on the subject.

Though the condition of the bond is not exactly the same as in the case of U.S. v. Curtis, 100 U.S. 119, the principle of that case must control this.

That principle is that where an officer of the government has money committed to his charge, with the duty of disbursing or paying it out as occasion may arise, he cannot be charged with interest on such money until it is shown that he has failed to pay when such occasion required him to do so, or has failed to account when required by the government, or to pay over or transfer the money on some lawful order. The mere proof that the money was received by him raises no obligation to pay interest, in the absence of some evidence of conversion or some refusal to respond to a lawful requirement. The obvious reason for this is that the government places the money in the hands of this class of officers and all others who are disbursing officers that it may remain there until needed for use in the line of that officer's duty, and until that duty requires such payment, or a return of the money to the proper department of the government, he is in no default, and cannot be required to pay interest.

The judgment of the circuit court is affirmed.


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


text:
City of Detroit v. Dean

Henry M. Duffield, for appellant.

E. W. Meddaugh, E. N. Dickerson, and ''Geo. T. Curtis'', for appellees.

FIELD, J.

title: City of Detroit v. Dean


text: Talk:City of Detroit v. Dean

title: Talk:City of Detroit v. Dean


text:
City of Detroit v. Dean/Opinion of the Court

In December, 1871, the Mutual Gas-light Company, of Detroit, was created a corporation under a general law of Michigan, for the purpose of manufacturing, selling, and furnishing gas for consumption in Detroit. The proposed corporators had previously made application to the common council to authorize the corporation, when formed, to lay gas-pipes, mains, conductors, and service-pipes in the avenues, streets, lanes, highways, alleys, public parks, and squares throughout the city; and obtained the passage of an ordinance granting permission to the company to lay the pipes, subject, however, to certain conditions. Power was conferred by law upon the city authorities to grant the permission 'upon such reasonable regulations as they might prescribe;' and they provided that the permission should cease if the company should, at any time, combine with any other company concerning rates to be charged for gas either to the city or to private consumers; and that the company should not sell its property, franchised, or privileges to any other gas-light company, under the penalty of a forfeiture of its works to the city. The company accepted the terms of the ordinance; erected its manufacturing works in the township of Hamtramck, just beyond the boundary of the city; laid mains and service-pipes in the streets, and in November, 1872, commenced distributing and supplying gas to private consumers and to the city, and continued to do so up to the time this suit was commenced. During this period, and previously, another corporation, known as the Detroit Gas-light Company, was in existence and was also supplying gas to private consumers and the city. In June, 1877, the two companies entered into an agreement to divide the city between them, one to take the part lying easterly of the middle of Woodward avenue, and the other the part lying westerly of it; each to transfer to the other its property situated in the portion of the other, and each stipulating not to lay mains or to supply gas in the portion of the other; reserving, however, the right to fulfill all obligations resting upon it with respect to any portion of the city. The difference in the value of the property exchanged was $140,000 in favor of the old company, and this sum the new company agreed to pay. The common council, deeming this division of the city, and other things done or omitted by the company, to constitute a breach of the conditions upon which permission to lay its pipes in the streets had been granted, passed on the fourteenth of December, 1877, an ordinance repealing the previous one, reciting as reasons for it that the company had not built its gas-works in the city of Detroit, but in the township of Hamtramck; that it had entered into an agreement with the Detroit Gas-light Company to divide the territory of Detroit between them for the supply of gas; and that it had refused to lay mains in streets on petition of owners or occupants of buildings for a supply of gas.

The repealing ordinance declared that the company had thus forfeited its gas-pipes, mains, conductors, and service-pipes lying within the avenues, streets, lanes, highways, alleys, public parks, and squares of the city, and all other property situated within its limits; and that the title to the whole had vested in the city of Detroit. It therefore directed the comptroller to assume possession and control of the same, and to serve a copy of the ordinance upon the company. To restrain the enforcement of this ordinance and protect the rights and property of the company, the present suit was commenced by the complainant, a citizen of New York. The company had expended large sums of money in the construction of its works, and created for that purpose a debt, represented by bonds secured by mortgage upon its property, which, with interest, amounted to $650,000. There was, therefore, an urgent necessity for legal proceedings to stop the seizure of the property. There were only three directors of the company, two of them residents of Detroit and one of New York, and as the company could not maintain a suit in the federal court against the city, they devised such a case of refusal on their part to take the necessary legal proceedings to protect the property and rights of the company as to give jurisdiction to the federal court of a suit brought for that purpose by the non-resident director and stockholder. The three directors discussed the matter among themselves. The president represents himself to have been very belligerent in his disposition. according to his statement, he professed not to want any legal proceedings taken. He proposed to settle the matter by force, and if any man attempted to take the property, to shoot him on the spot. His feelings on the subject must have been very intense, for more than two months afterwards he testified under oath that he would 'most assuredly' have shot any man who meddled with him 'as quick as wink;' as quick as he would have shot a burglar in his house at midnight. Dean, the complainant, another director, favored more pacific methods; he desired legal proceedings to be instituted. The third director, Meddaugh, was similarly disposed. He was a member of the bar of Michigan, and acting as one of the attorneys of the company. He favored legal proceedings, but expressed a want of confidence in the local tribunals of the state by reason of the then excited condition of the public mind; he desired to get into the federal court, and so he resolved in object to a suit in the state courts. A meeting of the directors was thereupon improvised in his office to carry out the course resolved upon. Dean then asked that the officers of the company be instructed to protect its property and rights from the execution of the threat contained in the repealing ordinance of the city and for that purpose to bring suit in the proper court. The matter being discussed, it was resolved:

'That the company, convinced of the improbability of     obtaining redress or justice in the local courts, which would      be its only recourse, in the present excited condition of the      public mind,-the press of the city having, for some time      past, continually aggravated public feeling by exaggeration      and falsehood,-cannot prudently enter into a litigation with      the city, and that no such attempt on its part would now be      made.'

Dean voted against the resolution, the other two directors in favor of it. The resolution having passed, Dean, on the following day, commenced the present suit, alleging the refusal of the directors to institute proceedings in the name of the company. The bill was read in the presence of the three directors, and one of them, Meddaugh, acted as a solicitor in the case.

It is impossible to read the testimony of the president contained in the record, with his hesitating and evasive answers to the interrogatories of counsel, and not be convinced that the refusal, which constituted the basis of the present suit, was made for the express purpose of enabling a suit to be brought in a federal court, and that no such refusal would have been given if that result had not been desired. It was an attempt to get into the federal court upon a pretense that justice was impossible in the state courts, owing to the excited condition of the public mind. The only party who could seek redress in a federal court, by reason of his citizenship, was willing to trust the local courts; and if a determination had not existed to force the controversy away from them, we have no doubt that the other directors would readily have agreed with him. The refusal to take legal proceedings in the local courts was a mere contrivance, a pretense, the result of collusive arrangement to create for one of the directors a fictitious ground for federal jurisdiction. The case comes, therefore, within the purview, if not the letter, of the provisions of section 5 of the act of March 3, 1875, defining the jurisdiction of the circuit courts of the United States, (18 St. at Large, p. 472, c. 137.) That section declares:

'That if, in any suit commenced in a circuit court, or     removed from a state court to a circuit court of the United      States, it shall appear to the satisfaction of said circuit      court, at any time after such suit has been brought or      removed thereto, that such suit does not really and      substantially involve a dispute or controversy properly      within the jurisdiction of said circuit court, or that the      parties to said suit have been improperly or collusively made      or joined, either as plaintiffs or defendants, for the      purpose of creating a case cognizable or removable under this      act, the circuit court shall proceed no further therein, but      shall dismiss the suit or remand it to the court from which      it was removed, as justice may require.'

A single stockholder in a corporation has undoubtedly the same right to institute legal proceedings against the corporation for the protection of his individual rights that a third party, not a stockholder, possesses; but when he resorts to such proceedings to protect, not simply such interests, but the property and rights of the corporation against the action or threatened action of third parties, thus assuming duties properly devolving upon its directors, he must show a clear breach of duty on their part in neglecting or refusing to act in the matter, amounting to such grossly culpable conduct as would lead to irremediable loss to him if he were not permitted to bring the matter before the courts. And such ncglect and refusal must not be simulated, but real and persisted in, after earnest efforts to overcome it. The opinion in the case of Hawes v. Oakland is full of instruction on this head, and to it we refer for a statement of the law; we can add nothing to its cogent reasoning. 104 U.S. 450.

The decree of the court below must be reversed, and the case remanded with directions to dismiss the bill, without prejudice to a suit in the state courts; and it is so ordered.


text: Talk:City of Detroit v. Dean/Opinion of the Court


text:
Miller v. National Bank of Lancaster

P. Phillips and W. Hallett Phillips, for plaintiffs in error.

R. T. Merrick and M. F. Morris, for defendants in error.

WAITE, C. J.

title: Miller v. National Bank of Lancaster


text: Talk:Miller v. National Bank of Lancaster


text:
Miller v. National Bank of Lancaster/Opinion of the Court

From this record it appears that one S. W. Miller, being insolvent, made an assignment of his property to M. J. Durham, trustee, for the benefit of his creditors. The trustee afterwards instituted a suit in the Boyle circuit court of Kentucky to enforce his trust. To this suit S. D. Miller and E. B. Miller, two of the present appellants, were parties; and in due course of proceeding a decree was entered for the sale of the assigned property. In this decree it appears that S. D. Miller and E. B. Miller, who were then in possession of part of the premises under a lease, were permitted to hold until the thirty-first of December, 1880, but it was added:

'Said S. D. Miller and Ed. B. Miller agree to give said     trustee the full, entire, and peaceable possession of the      house and lands they use and occupy, on or before the      thirty-first day of December next, and on their failure so to      do, the trustee, Durham, may have a writ of habere facias      possessionam against each of them, and the clerk of this      court is hereby directed to issue the same.'

Under this decree the property now in question was sold and duly conveyed to the First National Bank of Danville. The Danville bank afterwards sold and conveyed the property to the National Bank of Lancaster, a bank organized under the national banking law. Title 62, Rev. St. After these conveyances were made a writ was applied for, under the decree, in behalf of the Lancaster bank, and issued to John Meyer, sheriff of the county, commanding him to take the possession of the property from S. D. Miller and E. B. Miller, and deliver it to Durham, the trustee. Thereupon, S. D. Miller, E. B. Miller, and John W. Miller, the last of whom had in some way got into the possession of the property after the decree, filed a petition in the Boyle circuit court against the Lancaster bank and the sheriff, to enjoin the execution of the writ, on the ground that it was issued without authority and was void. In this petition it was alleged that the Lancaster bank had no power under its charter to take and hold the property, and that consequently the deed to it was inoperative and void.

There were also allegations of irregularity in the form of the writ, and that since the decree Durham, the trustee, had sold and conveyed the property to the Danville bank. To this petition the Lancaster bank filed an answer and counter-claim. In the counter-claim the bank set up its title through the sale under the decree. The prayer was that the petition of the plaintiffs be dismissed, and for a judgment for recovery of possession. Upon the hearing, the writ which had been issued was set aside for irregularity, but a new writ was awarded the bank. From a judgment to that effect an appeal was taken to the court of appeals of Kentucky, where the judgment was affirmed. To reverse this judgment of affirmance the present writ of error was brought.

Our jurisdiction depends on the question whether the plaintiffs in error have been denied by the judgment below any 'title, right, privilege, or immunity specially set up or claimed' under the banking act. As early as 1809 it was held by this court in Owings v. Norwood's Lessee, 5 Cranch 344, that in order to give us jurisdiction in this class of cases the right, title, or immunity which is denied must grow out of the constitution, or a treaty, or statute of the United States relied on. Under this rule jurisdiction was not taken in that case, although it was an action of ejectment by Norwood's lessee, and the record showed that an effort was made to defeat the recovery because of an outstanding title in a third person adverse to Norwood and protected by a treaty. Chief Justice MARSHALL, in speaking for the court, said: 'Whenever a right grows out of or is protected by treaty, it is sanctioned against all the laws and judicial decisions of the states, and whoever may have this right is to be protected. But if the person's title is not affected by the treaty, or if he claims nothing under a treaty, his title cannot be protected by the treaty,' The principle thus announced has been recognized in many cases since. Montgomery v. Hernandez, 12 Wheat. 129; Henderson v. Tennessee, 10 How. 323; Wynn v. Morris, 20 How. 5; Hale v. Gaines, 22 How. 160; Verden v. Coleman, 1 Black, 472; Long v. Converse, 91 U.S. 105. Henderson v. Tennessee, like Owings v. Norwood's lessee, was an action of ejectment, and the effort was to defeat the recovery by showing an outstanding title in a third person under a treaty with which the party in possession did not connect himself; but the jurisdiction was denied, Chief Justice TANEY saying in the opinion:

'The right to make this defense is not derived from the     treaties, not from any authority exercised under the general      government. It is given by the laws of the state, which     provide that the defendant in ejectment may set up title in a      stranger in bar of the action. It is true, the title set up in this     case was claimed under a treaty. But to give jurisdiction to     this court the party must claim the right for himself, and      not for a third person in whose title he has no interest.'

'The plaintiff in error must claim [for himself] some title,     right, privilege, or exemption under an act of congress,      etc., and the decision must be against his claim to give this      court jurisdiction. Setting up a title in the United States     by way of defense is not claiming a personal interest      affecting the subject in litigation.'

In our opinion these cases are conclusive of the present motion. The plaintiffs in error set up no title against the bank. In effect, they seek to prevent the issue of an execution on a judgment against them, or those under whom they claim, because, as between the Danville bank and the Lancaster bank, a conveyance made by the Danville bank of the property to be delivered under the execution is inoperative on account of the provisions of the banking law. What was done between the two banks had no effect on the title of the parties in possession, and it was a matter of no importance to them whether the execution issued on the application of the one or the other. Clearly, therefore, the plaintiffs in error occupy no other position than that of parties setting up title in the Danville bank by way of defense, and that is not claiming for themselves any title, right, privilege, or immunity given by the law.

The motion to dismiss is granted.

MILLER, J., took no part in the decision of this case.


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


text:
Page:Sketches by Mark Twain.djvu/5

BY

MARK TWAIN.

NOW FIRST PUBLISHED IN COMPLETE FORM.

TORONTO: BELFORDS, CLARKE & CO. MDCCCLXXIX.

title: Page:Sketches by Mark Twain.djvu/5


text:
Pierce v. Indseth

This is an action by the plaintiff in the court below, Ole A. Indseth, against the defendants, composing the firm of Pierce, Simmons & Co., on a foreign bill of exchange, payable at sight to his order, drawn by them at Red Wing, in Minnesota, on the Christiania Bank, in Norway, which is as follows:

'Exchange 15,441 50-100 kroner, per stamp 2c.

'PIERCE, SIMMONS & CO., BANKERS, RED WING, MINNESOTA, February 1, 1877.

'At sight of this original of exchange (duplicate unpaid) pay to the order of O. A. Indseth 15,441 50-100 kroner, value received, and charge same to account of Sk. P. I. & Co., Chicago, as per advice from them.

'PIERCE, SIMMONS & CO.

'To Christiania Bank of Kredit Kasse, Christania, Norway.'

The value of these kroners in our money was $4,469.35.

Indseth resided at the time near Eidsvold, in Norway, and the bill was purchased by his agent in Minnesota, who forwarded it to him. He received it February 27, 1877, and retained it in his possession until April 12th following, when he presented it to the bank for payment, which was refused. He then caused the bill to be protested by a notary of Norway for nonpayment. The drawers were notified of its non-payment by letter from the plaintiff, which they received at Red Wing as early as May 15, 1877, and also by the original certificate of protest of the notary, which, with a translation, was at that time shown to one of them by the agent of the plaintiff, to whom the document was sent for that purpose.

It appears from the findings of the court below that the drawers had no money to their credit with the Christiania bank when the bill was drawn, but depended for its acceptance and payment upon advices to the bank by Skow, Peterson, Isberg & Co., bankers, at Chicago. That firm failed and made an assignment on the twenty-first of March, 1877. It had, however, from February 28th to that date, inclusive, to its credit with the bank, money sufficient to pay the bill, but no portion of it had been set apart for that purpose, and it has been since paid to the assignee of the firm. On the fifteenth of February, 1877, the drawers wrote to the payee a letter stating that, fearing their draft might not be paid, they had caused a cable dispatch to be sent to Christiania directing payment, but there was no evidence that the bank received such a dispatch, if sent, or gave them any credit on it.

Eidsvold, at or near which the plaintiff resided, is distant about 50 miles from Christiania, the place where the bank was situated, and between them there was daily communication by mail and by railway.

In proof of the presentment of the bill to the bank and the latter's refusal to pay the same, a copy of the notary's certificate of protest was given in evidence by the plaintiff, the defendants having stipulated for the admission of a copy with the like effect as the original, which was needed elsewhere. Subsequently the defendants themselves produced the original for the purpose of showing its character, insisting, at the time, that it had no authenticity as the act of the notary, and was not, therefore, competent evidence of the presentation and non-payment of the bill. To meet the objection of unnecessary delay in presenting the bill the plaintiff gave in evidence, against the objection of the defendants, the deposition of a lawyer of Norway as to the law of that country respecting the presentation of bills of exchange for payment. Exception was taken to the ruling of the court in its admission. It appeared, from the deposition, that by the law of Norway, the holder of a foreign bill of exchange, payable at sight, is allowed a year after its date within which to present it to the drawee for payment; and that the drawer is not relieved from liability, if the presentation be not made within the year, unless he can prove that owing to the delay he has suffered a loss in his accounts with the drawee. Evidence was offered by the defendants to show that the plaintiff, himself, had admitted his negligence in presenting the bill, but on objection of counsel it was excluded, to which ruling an exception was taken. The court found in favor of the plaintiff for the full amount of the bill, and judgment having been entered on the finding, the case was brought to this court for review.

''Chas. E. Flandrau'', for plaintiffs in error.

E. C. Palmer, for defendant in error.

FIELD, J.

The certificate of the protest of the bill of exchange by the notary in Norway was properly received in evidence. It is in due form, and bears what purports to be the seal of the notary. The seal, it is true, is impressed directly on the paper by a die with which ink was used. This is evident from inspection of the original, which has been transmitted to us from the court below for our personal examination. The use of wax, or some other adhesive substance upon which the seal of a public officer may be impressed, has long since ceased to be regarded as important. It is enough, in the absence of positive law prescribing otherwise, that the impress of the seal is made upon the paper itself in such a manner as to be readily identified upon inspection.

The language used in Pillow v. Roberts, reported in 13 How. 472 as the sufficiency of a seal of court impressed upon paper instead of wax or a wafer, is applicable here. Said the court, speaking by Mr. Justice GRIER:

title: Pierce v. Indseth


text: Talk:Pierce v. Indseth

title: Talk:Pierce v. Indseth


text:
Nets to Catch the Wind

Contents
 * /Beauty/
 * /The Eagle and the Mole/
 * /Madman's Song/
 * /The Prinkin' Leddie/
 * /August/
 * /The Crooked Stick/
 * /Atavism/
 * /Wild Peaches/
 * /Sanctuary/
 * /The Lion and the Lamb/
 * /The Church-Bell/
 * /A Crowded Trolley Car/
 * /Bells in the Rain/
 * /Winter Sleep/
 * /Village Mystery/
 * /Sunset on the Spire/
 * /Escape/
 * /The Fairy Goldsmith/
 * "/Fire and Sleet and Candlelight/"
 * /Blood Feud/
 * /Sea Lullaby/
 * /Nancy/
 * /A Proud Lady/
 * /The Tortoise in Eternity/
 * /Incantation/
 * /Silver Filigree/
 * /The Falcon/
 * /Bronze Trumpets and Sea Water -- On Turning Latin into English/
 * /Spring Pastoral/
 * /Velvet Shoes/
 * /Valentine/

/Category:Modern poetry/

title: Nets to Catch the Wind


text:
Pierce v. Indseth/Opinion of the Court

'Formerly wax was the most convenient and the only material     used to receive and retain the impression of a seal. Hence it     was said: Sigillum est cera impressa; quia cera, sine impressione non est      sigillum. But this is not an allegation that an impression     without wax is not a seal, and for this reason courts have      held that an impression made on wafers or other adhesive      substances capable of receiving an impression, will come      within the definition of 'cera impressa.' If, then, wax be      construed to be merely a general term, including within it      any substance capable of receiving and retaining the      impression of a seal, we cannot perceive why paper, if it      have that capacity, should not as well be included in the      category. The simple and powerful machine, now used to     impress public seals, does not require any soft or adhesive      substance to receive or retain their impression. The     impression made by such a power on paper is as well defined,      as durable, and less likely to be destroyed or defaced by      vermin, accident, or intention than that made on wax. It is     the seal which authenticates, and not the substance on which      it is impressed; and where the court can recognize its      identity, they should not be called upon to analyze the      material which exhibits it.'

Here there is no difficulty in identifying the seal. The impression, which is circular in form, has within its rim the words, 'Notarial Seal, Christiania.' Besides, the court will take judicial notice of the seals of notaries public, for they are officers recognized by the commercial law of the world. We thus recognize the seal to the document in question as that of the notary in Norway, and as such authenticating the certificate of protest and entitling it to full faith and credit. Greenl. Ev. § 5; Story, Bills, § 277; Townsley v. Sumrall, 2 Pet. 179; Chanoine v. Fowler, 3 Wend. 173; Carter v. Burley, 9 N. H. 559, 568; Holliday v. McDougal, 20 Wend. 81. The certificate being admitted, proved the presentation of the bill to the bank on the twelfth of April, 1870, and its non-payment. That this presentation was made within the period allowed by the law of Norway appears from the deposition of a lawyer of that country, taken under a commission from the court. That law allowed a year after the issue of the bill for its presentation; and on the question of timely presentation the law of the place where a foreign bill of exchange is payable governs, and not the law of the place where it is drawn. In giving a bill upon a person in a foreign country, the drawer is deemed to act with reference to the law of that country, and to accept such conditions as it provides with respect to the presentment of the bill for acceptance and payment. Thus, where days of grace on bills are different in the two countries, the rule of the place of payment must be followed. In England and the United States three days of grace are usually allowed; in France there are none, and in some places the number of days varies from three to thirty. Whatever is required by law to be done at the place upon which the bill is drawn, to constitute a sufficient presentment either in time or manner, must be done according to that law; and whatever time is permitted within which the presentment may be made by that law, the holder may take without losing his rights upon the drawer, in case the bill is not paid. So, also, if the bill be dishonored, the protest by the notary must be made according to the laws of the place. It sometimes happens that the several parties to a bill, as drawers or indorsers, reside in different countries, and much embarrassment might arise in such cases if the protest was required to conform to the laws of each of the countries. One protest is sufficient, and that must be in accordance with the laws of the place where the bill is payable.

In this case, the bill having been protested, the drawers were notified of its dishonor by letter from the payee, received by them on the fifteenth of May following, and also by personal delivery at about the same time of the original certificate of the protest, with a translation of it into English, to one of the drawers by an agent of the payee, to whom they were transmitted for that purpose. No question is made that this notice was not sufficient to charge the drawers. The testimony of the lawyer of Norway as to the law of that country was admissible under the statute of Minnesota, which provides that 'the existence and the tenor or effect of all foreign laws may be proved as facts by parol evidence, but if it appears that the law in question is contained in a written statute or code, the court may, in its discretion, reject any evidence of such law that is not accompanied by a copy thereof.' The general rule as to the proof of foreign laws is that the law which is written, that is, statute law, must be proved by a copy properly authenticated; and that the unwritten law must be proved by the testimony of experts, that is, by those acquainted with the law. Ennis v. Smith, 14 How. 426. But this rule may be varied by statute, and that of Minnesota leaves it to the discretion of the judge to require the production of a copy of the written law when the fact appears that the law in question is in writing. The discretion of the judge here was not improperly exercised, even if in such case his action would be the subject of review, as contended by counsel.

The admission of the payee that he had been negligent in presenting the bill was properly excluded. His negligence in that respect could not have affected his legal rights, if in point of fact the bill was presented within the time allowed by the laws of Norway.

We have thus far assumed that the drawers were entitled to notice of the presentation and non-payment of the bill. But it may be doubted whether such was the fact. They had no funds with the bank in Norway when the bill was drawn or at any other time, and they relied for its payment upon the advices of third parties. Although such third parties had funds at the bank after the bill had been received by the payee in Norway, there is no evidence that they ever advised the bank to pay the bill out of such funds. It is found by the court that the bank never set apart any portion of them to meet the bill. The cable dispatch of the drawers, of which the letter of February 15th speaks, if it ever reached the bank, does not appear to have induced it to give them any credit. In the most favorable view, therefore, which could be taken of the position of the drawers, we see nothing which relieves them from liability.

The judgment is, therefore, affirmed.

title: Pierce v. Indseth/Opinion of the Court


text: Talk:Pierce v. Indseth/Opinion of the Court


text:
Turner v. Farmers' Loan Trust Company

N. A. Cowdry and ''Geo. W. Kretzinger'', for appellants.

''Jas. D. Campbell'', for appellees.

HARLAN, J.

title: Turner v. Farmers' Loan Trust Company


text: Talk:Turner v. Farmers' Loan Trust Company