text:
Spaids v. Cooley/Opinion of the Court

This suit was brought in the supreme court of the district of Columbia, on the thirteenth of December, 1876, by Chauncey D. Spaids against Dennis N. Cooley, to recover $6,593.70, with interest from July 1, 1868. The declaration contains the common money counts, and nothing more. There are two pleas, one denying indebtedness, and the other averring that the alleged cause of action did not accrue within three years before the suit. The plaintiff's reply joins issue on the first plea, and, as to the second plea, avers that the defendant promised to pay the debt named in the declaration within three years next before the commencement of the suit. At the trial, the jury found 'the issue in favor of the defendant,' and there was a judgment accordingly, at special term. The plaintiff appealed to the general term, which affirmed the judgment, and he brings the case here by a writ of error.

There are four bills of exceptions. They show that the trial took place in March, 1880. The first one contains the following statement: 'The plaintiff, to sustain the issue on his part, offered evidence tending to show that some time in December 1866, he became acquainted with one John A. Hudnall, who had a claim against the United States for cotton captured by the army during the war of the rebellion, the proceeds of which had gone into the treasury of the United States; that said Hudnall had no means to employ counsel, and applied to him to undertake the collection of his, said Hudnall's, claim against the United States; that the plaintiff agreed to do so for a contingent fee of 30 per cent. of the amount to be recovered; that plaintiff thereupon associated with himself one Joseph Parrish, to whom he agreed to give one-fourth of the said fee, if he would assist him in the collection of said claim; that, neither the said Parrish nor the plaintiff being a lawyer, they concluded to employ the defendant to prosecute the said case in the United States court of claims; that the defendant was absent from the city at the time; that the contract made by the plaintiff with Hudnall was in writing, and the plaintiff thinks he inserted the name of the defendant, as the contracting party with Hudnall, at the suggestion of said Parrish or one Weed, and because the plaintiff was not an attorney at law; that the plaintiff and said Parrish procured the form of a petition for instituting a suit in the court of claims, and prepared a petition, and had it printed and filed, according to the rules of the court of claims, signing the name of the defendant to said petition, as the attorney of record, without his knowledge or consent; that the plaintiff proceeded at once, under the rules of the said court, to take some testimony in the case on behalf of the claimant; that he employed Judge MERRIMAN, a competent lawyer, to assist him in taking the testimony; that the case was partly prepared for trial before the return of the defendant to the city, and, when he came, the plaintiff and said Parrish called upon him, and informed him what they had done, and he approved of it, and agreed to take charge of and prosecute the said case; that Parrish said to the defendant that, if successful, he could have a fee of five thousand dollars, which the defendant said would be entirely satisfactory; that they then left the agreement made with Hudnall with the defendant; that, subsequently, the defendant said to the plaintiff that the contract did not provide for making the fee a lien upon the judgment which might be recovered, and he wanted Hudnall to come and indorse this stipulation on the agreement; that the defendant afterwards took into partnership W. Penn Clark, and the firm of Cooley & Clark did go on with the case, and prosecute it to judgment, recovering about $44,000, which was paid to said Clark; that the money paid to said Clark was about $44,000, and the plaintiff demanded from the defendant his share of the fee, which defendant, who was about leaving for his home in Iowa, said he had instructed his partner Clark to retain, and not pay over any of the money until the plaintiff had been settled with; that said Clark did not pay him any part; and that the fee retained amounted to about eleven thousand dollars. The plaintiff also gave testimony tending to show that the defendant had on several occasions promised to pay the plaintiff his share of said fee; and once in the city of Chicago, within three years before the commencement of this suit, had promised to pay said plaintiff, but that he had not done so. He testified, on cross-examination, that when Cooley returned, he approached him and told him what the arrangement was between him and Parrish,-that Parrish was to have one-fourth of his fee, out of which he was to pay Cooley; that Cooley said that was satisfactory, and he would go on and prosecute the claim; and that that was the arrangement made between him and Cooley. And the plaintiff further testified that he rendered no services in the case at the request of Cooley or Clark, and rendered none at all after his first conversation with Cooley about it.'

The fourth bill of exceptions contains the following: 'And whereas, the defendant had pleaded the statute of limitations, and the plaintiff replied a new promise within the three years preceding the commencement of this suit, the plaintiff, to support this issue on his part, did testify in chief as follows: 'I next saw Cooley-well, I have seen him so many times I cannot remember when the next time was; I saw him twice in Chicago. * *  * My recollection is that I next saw him in 1874. Well, I cannot exactly fix the time; it was during the oyster season, I remember; either in the spring or fall. Well, from about the first of September to the latter part of April or the first of May-mean between the first of September, 1874, and the last of April or first of May, 1875-I met him in the street, with his satchel in his hand. He said he was going to Washington. I asked him if he intended to pay me that money. He replied, 'You should have had your money long ago, but my partner, Col. Clark, is behaving very badly; he has got a portion of the money into his hands and refuses to pay you.' He said: 'I am now on my way to Washington; I am going to get the best settlement I can from Clark, and upon my return I will positively pay you.' He said further that he did not know but he would have to pay me himself.' And, upon cross-examination, he further testified: 'Remember quite distinctly, I asked Cooley if he was going to pay me that money in the Hudnall case, or whether he was going to force me to further proceedings at law. He said: 'You ought to have had that money long ago; it would have been paid, but Clark is behaving very badly in the matter; he has part of it in his hands and refuses to pay you. I do not know but what I will have to pay you myself.' That is as near precisely what he said as language can make it. I think I cannot be much mistaken; that was, as near as possible, the very language he used. I said to Cooley: 'Are you going to pay me that money due me in that Hudnall case, or are you going to force me to further legal proceedings to get it?' He said: 'Mr. Spaids, you ought to have had your money long ago, but Mr. Clark is behaving very badly in the matter; he has a portion of the money in his hands and refuses to contribute towards paying you, and I do not know but that I will have to pay you myself.' And this was all the evidence offered by the plaintiff in support of the new promise. After overruling the prayer of the plaintiff, the court instructed the jury that the plaintiff had not offered sufficient evidence of a new promise, on the part of the defendant, to take the case out of the statute of limitations, to be submitted to them, and directed them to return a verdict for the defendant. To which instruction and direction of the court the plaintiff, by his counsel, excepted.'

It must be inferred that, as the fourth bill of exceptions states that the evidence set forth in it 'was all the evidence offered by the plaintiff in support of the new promise,' such evidence is the testimony referred to in the first bill of exceptions, in the statement there made that 'the plaintiff also gave testimony tending to show that the defendant had, on several occasions, promised to pay the plaintiff his share of said fee, and once, in the city of Chicago, within three years before the commencement of this suit, had promised to pay said plaintiff;' but in regard to which evidence, notwithstanding the above statement, the court afterwards 'instructed the jury that the plaintiff had not offered sufficient evidence of a new promise, on the part of the defendant, to take the case out of the statute of limitations, to be submitted to them, and directed them to return a verdict for the defendant.'

The second bill of exceptions states that the plaintiff offered in evidence the deposition of Joseph E. Spaids, of which a copy is set forth, to which the defendant objected; that the court 'sustained the objection, and refused to permit the said deposition to be read to the jury, and ruled it out because of its informality, to which ruling the plaintiff excepted.'

The record shows that in December, 1879, on motion of the plaintiff, the court made an order 'that a commission issue to John M. Robertson, Esq., a justice of the peace, of Algonac, St. Clair county, and state of Michigan, to take the testimony of Joseph E. Spaids, a witness for the plaintiff, on the interrogatories and cross-interrogatories filed herein, to be read in evidence on the trial of this case.' The commission was issued by the court, under its seal, and the signature of its clerk, December 27, 1879, to Mr. Robertson, empowering him to examine Joseph E. Spaids 'as a witness for the plaintiff in the above-entitled cause, upon the interrogatories annexed to this commission,' 'on oath or affirmation.' The entire deposition is as follows:

'IN THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.

'Chauncey D. Spaids v. Dennis N. Cooley. (At Law. No.     16,894.)

'Interrogatories to be propounded to Joseph E. Spaids, a     witness on behalf of the plaintiff in the above-entitled      case, by John M. Robertson, Esq., justice of the peace, a      commissioner appointed by the said court for that purpose: (1) What is your name, age, and place of residence? (2) Of     what relation are you to the plaintiff? (3) Are you     acquainted with the defendant Dennis N. Cooley? (4) When and     under what circumstances and where did you first meet him? What took place between you at that time? (5) When and under     what circumstances and when did you next see him? (6) State     fully and particularly the conversation which took place      between your father, the plaintiff, and the defendant Cooley      at that time.

'ANSWERS TO INTERROGATORIES HEREUNTO ANNEXED.

'State of Michigan, County of St. Clair-ss.: On this     thirty-first day of December, A. D. 1879, before me, the      undersigned, a justice of the peace in and for said county,      personally appeared Joseph E. Spaids, of Algonac, in said      county, who, being by me duly sworn according to law, doth      depose and say, in relation to the case of Chauncey D. Spaids      versus Dennis N. Cooley, hereunto annexed. Said deponent     states as follows: (No. 1) My name is Joseph E. Spaids; my      age is forty-four years; and residence is Algonac, St. Clair      county, Michigan. (No. 2) That the said Chauncey D. Spaids is     my father. (No. 3) And am acquainted with the said Dennis N.     Cooley, defendant. (No. 4) I first met the said Cooley at     Chicago, in the state of Illinois, about the year 1870; that      I was appointed a deputy-sheriff to serve a process of a      court, to-wit, a summons, upon the said Cooley, in a suit      then and there commenced by said Spaids against said Cooley;      that I did serve said summons upon said Cooley. (No. 5) I     next saw the said Cooley at Chicago, aforesaid, in year 1874. I met him on Randolph street, of said city, going towards the     Pittsburg and Fort Wayne depot. I then went into an office     where my father, the plaintiff, was, and informed him that      said Cooley was in the city. He asked me where he (said     Cooley) was. We stepped out of said office onto the street;     said Cooley being in sight, I pointed him out to said Spaids. We both proceeded down to said Cooley, and, after the     usual compliments were exchanged between said Spaids and      Cooley, the following conversation took place: (No. 6) The      said Spaids asked Cooley if he was going to pay him (said      Spaids) the money due him and now in his (said Cooley's)      hands, in the Hudnall case, without my being obliged to      resort to legal proceedings; to which said Cooley replied as      follows: Mr. Spaids, you ought to have had your money long      ago, for you got the case and done most of the work in the      case before I (Cooley) knew much about it, but my partner,      Mr. Clark, is acting very bad in the matter, and I don't know      but what I will have to pay the whole amount myself; but I am      now on my way to Washington, and while there I will try and      get the best settlement I can with Clark, and on my return      from there, which will be in about ten days, you shall have      your money, if I have to pay it all myself. I paid particular     attention to said conversation, as I had often heard my      father speak of said case, both before and after I served      said summons in 1870.

'And further saith not.

JOSEPH E. SPAIDS.

'Taken, subscribed, and sworn to before me, the day and year     first above written.

JOHN M. ROBERTSON, Justice of the Peace.'

Appended to the deposition is a certificate, under the hand and seal of the clerk of the county of St. Clair, Michigan, certifying to the official character of Robertson as a justice of the peace.

It must be intended that the defendant objected to the admission of the deposition because of some alleged informality, but what that was is not set forth in connection with the objection; nor is it stated what the informality was on account of which the court ruled out the deposition. The deposition appears to be regular in form. It was taken under a commission issued by the court, and executed by the commissioner named. The interrogatories forming part of it were put and answered under a sufficient oath, administered before the answers were taken. The answers are not in narrative form, nor in the form of an affidavit, but each is an answer to the specific interrogatory of corresponding number. The place where the deposition was taken sufficiently appears. The fact that there were no cross-interrogatories cannot affect the regularity, because, under the order for the commission, made 12 days before it issued, and providing for the taking of the testimony 'on the interrogatories and cross-interrogatories filed herein,' it was for the defendant to show distinctly that there were cross-interrogatories filed which had not been annexed to the commission. In the absence of any apparent informality, if the objection made by the defendant to the admission of the deposition was made on the ground of an informality, that ground, to avail him here, should appear in the bill of exceptions, with a sufficient statement to enable this court to see that the ground was a valid one; and the informality on which the deposition was ruled out should, to avail him, be stated in the bill of exceptions, with sufficient other matter to enable this court to say that the identical informality on which the ruling of the court proceeded existed, and was good ground for the ruling. As the defendant made the objection to the admissibility of the deposition, and it was excluded, it was incumbent on him to make it appear, by the bill of exceptions, what the ground of objection was, and that it was a valid ground. The evidence, in the excluded deposition, as to the new promise, was material, and ought to have been before the jury, as tending to show an absolute promise by the defendant to the plaintiff, made within three years before the bringing of the suit, to pay to the plaintiff the money in question, as money then in the hands of the defendant, and due to the plaintiff. As the direction of a verdict for the defendant appears to have been rested on the instruction that there was not sufficient evidence, to be submitted to the jury, of a new promise to take the case out of the statute of limitations, and as, if the jury had found that there was such new promise, there was evidence on both sides for the consideration of the jury on the other issues, under proper instructions, and the bills of exceptions do not purport to set out all the evidence on such other issues, a new trial must be had.

The judgment of the court in general term is reversed, and the case is remanded to that court, with a direction to reverse the judgment of the court in special term, with costs, and to direct that court to award a new trial.

title: Spaids v. Cooley/Opinion of the Court


text: Talk:Spaids v. Cooley/Opinion of the Court

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


text:
Sully v. Drennan

This appeal is from the order of the circuit court for the Southern district of Iowa, remanding to the state court a case which had been removed from the state into the circuit court. The suit was brought originally in the district court of the state by James N. Drennan and others, tax-payers of Prairie township, in the county of Mahaska.

The allegations of the bill necessary for our consideration are that on May 11, 1880, the voters of said township voted a tax of 3 per cent. upon the taxable property of said township to aid in constructing a railroad by a company whose name was afterwards lawfully changed to that of the Chicago, Burlington & Pacific Railroad Company. That by the order and notice submitting the question to vote, it was provided that one-half of the tax should be collected the first year and one-half the second year; the said road to be fully completed and running to a depot within the town of Sharon, in said township, before the tax is due and collectible by the said railroad company; and if not built within two years from the day of the election said tax never to be collectible; that the railroad was not completed to a depot in Sharon within two years from the date of the vote; that it was not completed from Sharon to any other town. That Morgan, president of the railroad company and another director, pending the consideration of the matter by the voters, made false and fraudulent representations to them that the company had arrangements with the Chicago, Burlington & Quincy Railroad Company, and the Chicago, Milwaukee & St. Paul Railroad Company, by which either of these companies would build and equip the road to the town of Sharon as soon as the tax was voted; that the railroad company, by its officers and agents, are demanding of the trustees of the township that they certify to the county treasurer of Mahaska county that the conditions required by said vote have been complied with, and are threatening, by suits against them and otherwise, to compel them to make such certificate, and petitioners fear that said trustees will yield and make the certificate unless restrained by the act of the court. They aver that one Alfred Sully claims some interest in the tax, and ask that he be made a party to the suit so that he may be estopped by the judgment. They say the tax is illegal and void for many reasons, and pray for an injunction against the trustees from certifying to the county treasurer that the conditions of the vote have been complied with, and the county treasurer, John H. Warren, and his successor in office, and the Chicago, Burlington & Pacific Railroad Company, and Alfred Sully, from in any manner attempting to collect said tax, or from endeavoring to procure said certificate from the trustees of Prairie township.

The notice, which in the Iowa practice stands for the original writ, was returnable to the May term, 1883, and service acknowledged by the trustees and treasurer on the twentieth day of March, and on the railroad company, March 29th. The day required for the appearance and pleading of the defendants was May 11th. A temporary injunction was granted September 13, 1883. It seems that on the fifteenth day of May the case was, by order of the judge of the district court, who had been of counsel in it, transferred to the circuit court of the same county, the judge of which granted the injunction. At the October term of this court all the parties, including Sully, who had not been served with notice, appeared. A demurrer was interposed by Sully, and overruled. Many motions were made and decided about the pleadings, and the railroad company, Sully, and Warren filed a joint answer denying the right to the relief prayed. The pleadings were finally made up at this term. At the next term of that court, in May, the application of Sully to remove the case into the United States court was made on the ground that he was a citizen of the state of New York, and all the other parties were citizens of Iowa. He claimed to have an assignment from the railroad company of the right to the taxes. The state court refused to make the order, and Sully took a transcript of the record and filed it in the circuit court for the Southern district of Iowa. When the attention of that court was called to the matter, the case was remanded to the state court, and from that order this appeal is taken.

''Chas. A. Eldredge and J. C. Cook'', for appellants.

[The balance of this page intentionally blank.]

''Geo. C. Morgan, H. S. Winslow, and L. C. Blanchard'', for appellees.

Mr. Justice Miller delivered the opinion of the court. He recited the facts as above stated, and continued:

title: Sully v. Drennan


text: Talk:Sully v. Drennan

title: Talk:Sully v. Drennan


text:
Sully v. Drennan/Opinion of the Court

We think the order remanding the case was well made:

1. Mr. Sully is the only defendant who is not a citizen of Iowa. The other defendants, against whom relief is sought, are the railroad company, the trustees of Prairie township, and the treasurer of the county. All of these are proper parties, and are necessary parties, against whom positive and affirmative relief is sought. Without deciding whether the railroad company could assign the right to sue for and enforce these taxes to Mr. Sully, it is sufficient to say that the assignment did not carry that right to him discharged of the equities between the company and the tax-payers, as if they had been negotiable bonds. To any suit, therefore, to invalidate this tax the company was a necessary party. It is especially so in equity, where the matter set up to defeat the tax, as in this case, was the failure of the company to comply with the conditions of the vote, and its false and fraudulent representations by which the vote was secured. In such a suit the company has a right to defend against these allegations, and the plaintiffs have a right that the company shall be bound by the judgment in the case. The interest of Sully and the company in this controversy are the same, and are both opposed to the interests of plaintiffs. This railroad company is organized under the laws of Iowa, and is a citizen of that state as well as plaintiffs.

2. The township trustees are also citizens of Iowa. These are not nominal parties, and their interest is not identical with that of plaintiffs. What may be their personal wishes is not known, nor is it material. They are sued in regard to their official position, to restrain them in the threatened exercise of their official authority, to the prejudice of plaintiffs. The exercise of this power lies at the root of plaintiffs' case, and of defendants' rights. The statute of Iowa which authorizes this vote by a township declares that the money collected under it shall be paid out by the county treasurer 'at any time after the trustees of the township, or a majority of them, shall have certified to the county treasurer that the conditions required of the railroad and set forth in the notice for the special election, at which the tax was voted, have been complied with.' Until this is done, no right to the money accrues to the railroad company, or any one else. The act here required of the trustees is not a mere ministerial one. It requires them to ascertain and decide what was required of the company by the notice, with the meaning of its terms, and, when they have construed these, to ascertain, as a matter of fact, whether they have been complied with.

So important is this action to Sully and to the railroad company, that the bill alleges they are seeking to drive them to make the certificate by threats of expensive litigation, and it is said, in the brief, that Sully has resorted already to a writ of mandamus. Are these trustees nominal parties? Are they, in their official action, on the same side of this controversy with plaintiffs? If they were, there would be no necessity to sue out an injunction to prevent them from issuing this certificate. If there is any nominal party, or any party unnecessary to the relief sought by plaintiffs, it is Sully, for, if plaintiffs can procure a decree enjoining the trustees from making that certificate, their relief is sufficient, if not complete. So of the treasurer, Warren, who, so far from siding with plaintiffs in the suit, has joined Sully and the railroad company in a demurrer to the bill, and in his answer denies the merits.

The case of Harter v. Kernochan, 103 U.S. 562, is cited in opposition to this view of the case. But in that case negotiable bonds had been issued and were in the hands of Kernochan as a bona fide holder. The case between him and the township of Harter was a very different one from the present case. In that case the whole right was vested in Kernochan, and the whole matter in controversy could be determined between him and the township. In the suit as brought in the state court in that case the officers who were served with the writ made default, and a notice by publication against the unknown owner of the bonds being unanswered, a default was taken against them, and a decree made enjoining all proceedings to collect the bonds. Under a statutory provision, Kernochan came in due time, and, alleging himself to be a holder of the bonds, the default as to the unknown owner was set aside, and he was permitted to answer. As to the other defendants, they were now out of the case, and Kernochan being a citizen of another state, removed the case into the circuit court of the United States. The difference between the two cases is obvious.

The judgment of the circuit court, remanding the case, is affirmed.

title: Sully v. Drennan/Opinion of the Court


text: Talk:Sully v. Drennan/Opinion of the Court


text:
Page:Travels with a Donkey In The Cevennes.djvu/105

Rh man who keeps rabbits, for example, hurries from his hutches to the chapel, the chapter-room, or the refectory, all day long: every hour he has an office to sing, a duty to perform; from two, when he rises in the dark, till eight, when he returns to receive the comfortable gift of sleep, he is upon his feet and occupied with manifold and changing business, I know many persons, worth several thousands in the year, who are not so fortunate in the disposal of their lives. Into how many houses would not the note of the monastery-bell, dividing the day into manageable portions, bring peace of mind and healthful activity of body? We speak of hardships, but the true hardship is to be a dull fool, and permitted to mismanage life in our own dull and foolish manner.

From this point of view, we may perhaps better understand the monk's existence. A long novitiate, and every proof of constancy of mind and strength of body is required before admission to the order; but I could not find that many were discouraged. In the photographer's studio, which figures so strangely among the outbuildings, my


text:
Avegno v. Schmidt

This was an action brought in the civil district court for the parish of Orleans, in the state of Louisiana, by the plaintiffs in error, heirs of Bernard Avegno, deceased, two of whom, being minors, were represented by his widow, as their tutrix, against the defendants in error, to establish their title to certain real estate in the city of New Orleans, and to recover possession thereof. The case was tried by the court without a jury, and judgment was rendered for the defendants. Upon appeal to the supreme court of the state, the judgment of the civil district court was affirmed. To reverse that judgment of affirmance, the plaintiffs have brought this writ of error. The pleadings and evidence disclose the following facts:

On April 3, 1862, Bernard Avegno, being the owner of the property in dispute, executed a mortgage thereon to Israel C. Harris to secure promissory notes made by Avegno, payable to his own order and indorsed by him, amounting in the aggregate to $36,500, which he delivered to Harris. The mortgage contained the pact de non alienando, by which the mortgagor agreed not to sell, alienate, or incumber the mortgaged property to the prejudice of the mortgage. The notes and mortgage were afterwards transferred by Harris to Charles Morgan. The mortgage being still in force, on January 20, 1865. the United States filed, in the district court for the district of Louisiana, a libel of information against the mortgaged property, of which Bernard Avegno was still the owner, to condemn it as confiscated, under the act of July 17, 1862, entitled 'An act to suppress insurrection, to punish treason and rebellion, and confiscate the property of rebels, and for other purposes,' (12 St. 589,) for the offenses of its owner, Avegno. A writ of seizure was issued to the marshal, who, in his return, dated February 14, 1865, stated that he had seized and taken into his possession the property libeled.

Morgan, the mortgage creditor, intervened in the suit for confiscation, claiming to be paid out of the proceeds of the property the amount due on his mortgage. The district court, on August 1, 1865, made a decree condemning the property in question as forfeited to the United States, and ordering it to be sold, and dismissing the intervention of Morgan, on the ground that his mortgage 'could not be acknowledged.' The decree of condemnation made by the district court was not followed by a sale of the forfeited premises, nor were any proceedings taken under it. Afterwards, on June 25, 1867, Morgan filed his bill in the circuit court for the district of Louisiana against Avegno, for the enforcement of his mortgage. On July 11, following, the court made a decree, under which, on December 21, 1868, the property was sold by the marshal and purchased by Morgan, to whom, on December 26, the marshal made a deed therefor. On March 1, 1869, Morgan conveyed the premises to the defendants. On August 12, 1872, Bernard Avegno died, leaving the plaintiffs, who are his children, as his heirs at la. They claim title to the property sued for under Bernard Avegno as his heirs. The averment of their petition is 'that, by reason of such confiscation and forfeiture, all right, title, interest, and ownership of Bernard Avegno (deceased) was absolutely divested; that said real estate was during his life-time forfeited to the United States; but that the naked ownership thereof was then vested in your petitioners, who were his legitimate children, living at the time of the rendition of said decree and judgment of condemnation and forfeiture; that on the twelfth day of August, 1872, Bernard Avegno died, whereupon the title and interest of the United States in the said property came to an end, and said life-estate was terminated, your petitioners being therefore entitled to the full ownership thereof.'

Albert Voorhies, for plaintiffs in error.

[Argument of Counsel from pages 295-296 intentionally omitted]

Henry J. Leovy and Henry C. Miller, for defendants in error.

Mr. Justice Woods delivered the opinion of the court. He recited the facts as above stated, and continued:

title: Avegno v. Schmidt


text: Talk:Avegno v. Schmidt

title: Talk:Avegno v. Schmidt


text:
Avegno v. Schmidt/Opinion of the Court

It is plain, and is not disputed by the plaintiffs, that if there had been no proceeding instituted by the United States for the condemnation of the property, and no intervention therein by Morgan, he would have acquired a good title to the premises, by his purchase thereof at the sale made under the decree of the circuit court rendered upon his bill to enforce his mortgage, and his deed therefor to the defendants would have vested in them a good and indefeasible title. The plaintiffs contend, however, that the title so conveyed is void, for two reasons: First, because the judgment of condemnation divested Avegno of all interest and estate in the forfeited premises, and the circuit court was, therefore, without jurisdiction to render a decree for the sale of the property in the suit brought to foreclose the mortgage to which Avegno was the only defendant; and, second, because the district court dismissed Morgan's intervention on the ground that his mortgage 'could not be acknowledged,' and because this was, in effect, the judgment of a court of competent jurisdiction in a proceeding to which Morgan was a party, declaring his mortgage to be void, and he and those claiming under him were bound by that judgment. We do not think that either of these grounds is well taken.

The interest of Morgan as a mortgagee was not divested or affected by the judgment of condemnation rendered by the district court. Day v. Micou, 18 Wall. 156; Claims of Marcuard, 20 Wall. 114. Notwithstanding the judgment of condemnation, therefore, he had a valid subsisting mortgage superior to any estate in the mortgaged property acquired by the judgment of condemnation, or which could be acquired under a sale made by virtue thereof. A decree for the foreclosure of his mortgage and a sale under such a decree would carry to the purchaser the entire estate in the mortgaged premises, provided the necessary parties were made to the proceeding to foreclose. It does not lie with the plaintiffs to object that the United States were not made defendants to Morgan's suit. The estate of the government in the property having been determined by the death of Avegno, it is now of no concern to any one, so far as it respects the title to the property, whether the government was represented in the suit of Morgan of enforce his mortgage or not. Without pointing out who were the necessary and proper parties to such a suit, the plaintiffs say that Avegno was neither a necessary nor a proper party, and that as he was the sole defendant, the circuit court was without jurisdiction to make any decree in the suit brought by Morgan to enforce his mortgage.

One answer of the defendants to this contention of the plaintiffs is that the proceedings and decree of the district court, in the suit brought by the United States to enforce the forfeiture of the mortgaged premises, was void, because there was no sufficient averment in the libel of a preliminary seizure, by authority of the president, of the premises against which the libel was filed, as required by the act of July 17, 1862, and that consequently the title of Avegno was never divested, and he was not only a necessary, but the only prop r party to the suit of Morgan to foreclose his mortgage. We have not found it necessary to pass upon this question. Assuming that the decree of condemnation made by the district court was valid, its effect was to vest in the United States an estate in the property condemned for the life of Avegno, and it left in Avegno no estate or interest, of any description, which he could convey by deed or devise by will; but the ownership, after his death, was in nowise affected, except by placing it beyond his control while living. Wallach v. Van Riswick, 92 U.S. 202; Pike v. Wassell, 94 U.S. 711; French v. Wade, 102 U.S. 132. The cases cited also declare that the joint resolution passed contemporaneously with the act of July 17, 1862, (12 St. 627,) was intended for the benefit of the heirs of the person whose property was condemned, to enable them to take the inheritance after his death. And in the case of Pike v. Wassell, ubi supra, a bill, filed during his life-time by the children of the person whose life-estate had been condemned and sold, to protect the property from the incumbrance arising from the failure of the purchaser of the life-estate to pay the current taxes thereon, was sustained, the court declaring that, as there was no one else to look after the interests of the succession, the children might be properly permitted to do so.

These decisions, alone considered, apparently sustain the contention of the plaintiffs that a decree in a suit to foreclose the mortgage, to which Avegno was the sole defendant, was without the necessary parties, and was, therefore, void for want of jurisdiction in the court to render it. The answer of the defendants to this contention of the plaintiffs is that, as the mortgage executed by Avegno contained the pact de non alienando, he was a proper and the only necessary party to the suit brought by Morgan to foreclose his mortgage. The effect of the stipulation in a mortgage called the pact de non alienando, by which the mortgage agrees not to alienate or incumber the mortgaged premises to the prejudice of the mortgage, is well settled in Louisiana. In Nathan v. Lee, 2 Mart. (N. S.) 32, the effect was decided to be that 'the mortgagee is not bound to pursue a third possessor, but may have the hypothecated property seized in via executina as if no change had taken place in its possessors, because any alienation or transfer made in violation of the pact de non alienando is ipso jure void, as it relates to the creditor, and that this effect of the pact is not annulled by the provisions of the Civil Code in relation to mortgages, and the rules laid down for pursuing the action of mortgage.'

In Stanbrough v. McCall, 4 La. Ann. 324, the court reviewed the cases on this subject, and held that where a mortgage contained the pact de non alienando, one who subsequently purchases the property from the mortgagor cannot claim to be in any better condition than his vendor, nor can he plead any exception which the latter could not, and that any alienation in violation of the pact is null as to the creditor. These cases, and those cited in the note, establish the rule that where a mortgage contains the pact de non alienando the mortgagee may enforce his mortgage by proceeding against the mortgagor alone, notwithstanding the alienation of the property, and that all those claiming under the mortgagor, whether directly or remotely, will be bound, although not made parties.

In the present case, and in the later case of Shields v. Shiff, 36 La. Ann. 645, the supreme court of Louisiana has held that there was such a privity between a person whose life-estate had been condemned under the act of July 17, 1862, and his heirs, that the latter were bound by a suit and decree to enforce a mortgage executed by their ancestor containing the pact de non alienando, to which the ancestor alone had been made a party defendant. We think this decis on is right. It is sustained by the case of Wallach v. Van Riswick, ubi supra, as will appear by the following passages from the opinion of the court in that case, delivered by Mr. Justice STRONG:

'If it be contended that the heirs of Charles S. Wallach,' the person whose property had been condemned, 'cannot take by descent unless their father, at his death, was seized of an estate of inheritance, e. g., reversion or a remainder, it may be answered that even at common law it was not always necessary that the ancestor should be seized to enable the heir to take by descent. Shelley's Case is that where the ancestor might have taken and been seized, the heir shall inherit. FORTESCUE, J., in Thornby v. Fleetwood, 1 Strange, 318. If it were true that at common law the heirs could not take in any case where their ancestor was not seized at his death, the present case must be determined by the statute. Charles S. Wallach was seized of the entire fee of the land before its confiscation, and the act of congress interposed to take from him that seizin for a limited time. That it was competent to do, attaching the limitation for the benefit of the heirs. It wrought no corruption of blood. In Lord de la Warre's Case, 6 Coke, 1a, it was resolved by the justices 'that there was a difference betwixt disability personal and temporary, and a disability absolute and perpetual; as where one is attainted of treason and felony, that is an absolute and perpetual disability, by corruption of blood, for any of his posterity to claim any inheritance in fee-simple, either as heir to him or any ancestor above him; but when one is disabled by parliament (without any attainder) to claim the dignity for his life, it is a personal disability for his life only, and his heir, after his death, may claim as heir to him or to any ancestor above him.' There is a close analogy between that case and the present. Without pursuing this discussion further, we repeat, that to hold that any estate or interest remained in Charles S. Wallach after the confiscation and sale of the land in controversy, would defeat the avowed purpose of the confiscation act and the only justification for its enactment; and to hold that the joint resolution was not intended for the benefit of his heirs exclusively, to enable them to take the inheritance after his death, would give preference to the guilty over the innocent. We cannot so hold.'

These extracts show that it was the opinion of the court that the children of a person whose estate was condemned under the act of July 17, 1862, took, as his death, by descent as his heirs, the fee-simple, and did not derive their title from the United States or by virtue of the confiscation act. Avegno, the mortgagor, was, therefore, the only person necessary to be made a party to the suit brought by Morgan to foreclose his mortgage, and the proceedings and sale were valid and binding on the plaintiffs, and vested in Morgan a good title to the premises in dispute, which he conveyed to the defendants. But the plaintiffs insist that the mortgage had been declared inoperative and void by the district court, in dismissing the intervention of Morgan in the proceeding to condemn the mortgaged property, and that the defendants are bound by that judgment. There are two answers to this contention: The first is that this defense-if it be a defense-should have been pleaded in Morgan's suit brought to enforce his mortgage. The decree of a court of competent jurisdiction cannot be collaterally attacked by averring and proving that there was a good defense to the suit, if the defendant had chosen to make it. The second answer is that the district court was without jurisdiction to pass upon the validity of the mortgage in the suit for the condemnation of the mortgaged property. Bigelow v. Forrest, 9 Wall. 339; Day v. Micou, 18 Wall. 156; Claims of Marcuard, 20 Wall. 114. It does not clearly appear from the record that the district co rt intended, by its decree dismissing the intervention of Morgan, to pass upon the validity of the mortgage; but if its decree is to be interpreted as declaring the mortgage to be invalid and void, the court exceeded its jurisdiction, and the decree was without effect upon the mortgage. In our opinion, therefore, Morgan acquired a good title to the premises in controversy by his purchase at the sale made to satisfy his mortgage lien, and his deed to the defendants having vested them with his title, the judgment of the supreme court of Louisiana in their favor was right.

Judgment affirmed.

title: Avegno v. Schmidt/Opinion of the Court


text: Talk:Avegno v. Schmidt/Opinion of the Court


text:
Stone v. Chisolm

This is a writ of error prosecuted to reverse a judgment of the circuit court for the district of South Carolina, dismissing the complaint in which the plaintiff asked for a recovery for the sum of $1,050, with interest from July 1, 1883. The jurisdiction of this court depends upon and is limited by a certificate of division of opinion between the Circuit and District Judges before whom the case was tried, and is confined to the single question so certified, whether the remedy of the plaintiff below was by an action at law or by a suit in equity. The allegations of the complaint are as follows:

'(1) That the plaintiff, Roy Stone, is a citizen of the state of New York.

'(2) That the defendants, Robert G. Chisolm, Samuel Lord, A. Canale, L. D. Mowry, Alfred Ravenel, and Sallie E. Conner as executrix of James Conner, deceased, are citizens of the state of South Carolina.

'(3) That heretofore, to-wit, on the-February, 1881, the Marine & River Phosphate Mining & Manufacturing Company of South Carolina was a corporation under the laws of the state of South Carolina, with a paid-up capital stock of fifty thousand dollars, and no more; that said company was, by the terms of the charter, authorized to increase its capital stock, in the manner provided by law, to an amount not exceeding two hundred and fifty thousand dollars, and, by an act amendatory of its charter passed-December, 1882, the said company was further authorized to increase its capital stock to an amount not exceeding four hundred thousand dollars in the whole, inclusive of the stock then existing; that the company did, from time to time, between the said February, 1881, and twenty-first of March, 1883, increase its capital stock to the sum of three hundred thousand dollars; that is to say, scrip for shares of capital stock to the par value of three hundred thousand dollars were issued; but, as the plaintiff is informed and believes, and so alleges and charges, of the additional amount of stock issued after-February, 1881, only the sum of twenty-five thousand dollars, or thereabouts, was ever actually paid in; making the entire aggregate of capital stock actually paid in not to exceed, in all, the sum of seventy-five thousand dollars.

'(4) That by an act amendatory of its charter, passed twenty-first December, 1882, the name of said Marine & River Phosphate Mining & Manufacturing Company was changed to the Marine & River Phosphate Company.

'(5) That on the twenty-first day of March, 1883, the said Robert G. Chisolm, Samuel Lord, A. Canale, L. D. Mowry, Alfred Ravenel, and James Conner were directors of said company; that thereafter, to-wit, July, 1883, the said James Conner departed this life, leaving a last will, whereof he appointed his wife, Sallie E. Conner, executrix, who has duly qualified thereon.

'(6) That on said twenty-first March, 1883, the said Marine & River Rhosphate Company was indebted in an amount not less in the aggregate than seventy-five thousand dollars.

'(7) That on said twenty-first March, 1883, in the administration of the aforesaid directors, there were issued the following bonds, being a debt contracted by the said company additional to the debt existing as aforesaid, to-wit: Sixty bonds or obligations of said company, bearing date the twenty-first day of March, 1883, and each conditioned for the payment to bearer of the sum of five hundred dollars on the first day of January, 1893, with interest thereon, payable semi-annually, at the rate of seven per cent. per annum on the presentment of the interest coupons therefor, attached to said bonds, and payable on the first days of July and January of each year; that an interest coupon for the sum of $17.50 became due on each of said bonds on the first day of July last past, and the same were, at maturity, duly presented for payment and payment refused, and no part of the same has been paid.

'(8) That plaintiff is the lawful owner and holder of said bonds and coupons.

'(9) That the said bonds, so conditioned, for the aggregate sum of thirty thousand dollars, was in addition to the debt already existing as aforesaid, and constituted an indebtedness in excess of the capital stock of said company actually paid in as aforesaid.

'10) That by the 1367th section of the General Statutes of the state of South Carolina, and by the provisions of an act of the said state, approved tenth December, 1869, entitled 'An act to regulate the formation of corporations,' (under which act the said Marine & River Phosphate Mining & Manufacturing Company of South Carolina was incorporated,) and by sundry other laws

'(10) That by the 1367th section of and severally liable to the plaintiff for the payment of the said bonds and an act of the said state, approved tenth

'(11) That the said Marine & River Phosphate Company is totally insolvent; that all its property is mortgaged to an extent far in excess of its value; that, as plaintiff is advised, its property, consisting of personalty so mortgaged, is not subject to levy under execution; and that, even if it were, plaintiff alleges and charges that there is no unincumbered property of said company subject to levy, and that judgment and execution would be wholly nugatory and fruitless to effect anything, as the incumbered property, upon a sale thereof, would not bring sufficient to discharge the liens on the same, and the execution creditors would only be cast in the costs of such levy and sale.

'(12) That by reason of the premises defendants are indebted to plaintiff, upon the coupons held by him as aforesaid, in the sum of one thousand and fifty dollars, and interest from the first day of July, 1883.

'Wherefore plaintiff prays judgment against said defendants for the sum of one thousand and fifty dollars, with interest from first July, 1883, and costs.'

Thereupon the defendants demurred orally, on the ground 'that the liability imposed by the statutes referred to in the complaint cannot be enforced in an action at law, but by a proceeding in equity only, and, consequently, that this being a court of law, has no jurisdiction to entertain the plaintiff's case.' And this question having been fully argued before the judges aforesaid, and their opinions thereupon being opposed, the point upon which they disagree is stated as follows: 'Whether the liability imposed upon the directors of a corporation by the provisions of the statutes referred to in the complaint can be enforced by a single aggrieved creditor in an action at law against one or more directors, or whether such creditor must proceed by a creditor's bill in equity.'

W. E. Earle, for plaintiff in error.

''Theo. G. Barker and James Lowndes'', for defendants in error.

Mr. Justice Miller delivered the opinion of the court. He recited the facts as above stated, and continued:

title: Stone v. Chisolm


text: Talk:Stone v. Chisolm

title: Talk:Stone v. Chisolm


text:
Stone v. Chisolm/Opinion of the Court

The statutes referred to in the complaint are the 1367th section of the General Statutes of South Carolina, the act of December 10, 1869, entitled 'An act to regulate the formation of corporations,' and 'sundry other laws of said state.' This last reference would broaden the question certified, so as to embrace the inquiry whether the remedy insisted on was conferred by any law of the state; but counsel for the plaintiffs in error disclaim reliance upon any provisions of the statutes, except those specifically referred to, which they have accordingly rinted with their brief. Section 1367 of the General Statutes of South Carolina occurs in a general act on the subject of the organization and government of corporations, contained in the revision of 1882, in chapter 38, under the sub-title 'of corporations organized under charters.' It reads as follows:

'Sec. 1367. The total amount of debts which such corporations shall at any time owe shall not exceed the amount of its capital stock actually paid in; and, in case of excess, the directors in whose administration it shall happen shall be personally liable for the same, both to the contractor or contractors and to the corporation. Such of the directors as may have been absent when the said excess was contracted or created, or who may have voted against such contract or agreement, and caused his vote to be recorded in the minutes of the board, may respectively prevent such liability from attaching to themselves by forth with giving notice of the fact to a general meeting of the stockholders, which they are authorized to call for that purpose. The provisions of this section shall not apply to debts of railroad corporations secured by mortgage.'

This provision was a re-enactment of, and consequently superseded, a similar provision contained in section 33 of the act of December 10, 1869, under which the Marine & River Phosphate Company had been organized as a corporation, and which being a general law was subject to modification and repeal. The language of that section was as follows: 'Sec. 33. The whole amount of the debts which any such company at any time owes shall not exceed the amount of its capital stock actually paid in; and, in case of any excess, the directors under whose administration it occurs, shall be jointly and severally liable to the extent of such excess, for all the debts of the company then existing, and for all that are contracted, so long as they respectively continue in office, and until the debts are reduced to the amount of the capital stock: provided, that any of the directors who are absent at the time of contracting any debt contrary to the foregoing provisions, or who object thereto, may exempt themselves from liability by forthwith giving notice of the fact to the stockholders at the meeting they may call for that purpose.'

The act of 1869 also contained the following:

'Sec. 35. When any of the officers of a company are liable, by the provisions of this act, to pay the debts of the company, or any part thereof, any person to whom they are so liable may have an action against any one or more of said officers, and the declaration in such action shall state the claim against the company and the grounds on which the plaintiff expects to charge the defendants, personally; and such action may be brought, notwithstanding the pendency of an action against the company for the recovery of the same claim or demand; and both of the actions may be prosecuted until the plaintiff obtains the payment of his debt, and the cost of both actions.'

This section now appears as section 1401 of the General Statutes, but under a subdivision of 'Provisions applicable solely to corporations under class I;' and this class is defined by section 1377 as 'all labor, agricultural, manufacturing, industrial, mining, or companies or associations of like nature,' the organization and government of which is the subject of chapter 39, entitled 'Of corporations organized under general statutes.' On the other hand, section 1367 of the General Statutes, which, as we have seen, corresponds to and supersedes section 33 of the act of 1869, is contained in chapter 38 of the General Statutes under the head 'Of corporations organized under charters.' But section 1370 of the same chapter, under a subdivision designating 'manufacturing companies,' provides that 'all manufacturing companies which shall be incorporated in this state shall have all the powers and rpivileges, and be subject to all the duties, liabilities, and other provisions contained in sect ons 1361 to 1369, inclusive, of this chapter, unless the said corporations be specially exempted therefrom by their respective charters.'

It thus appears that, although section 35 of the act of 1869 furnished the remedy for enforcing the liability imposed by section 33 of the same act, the former has been superseded by section 1401, and the latter by section 1367 of the General Statutes, but with a totally different relation in the latter from that sustained by the corresponding sections in the former, so that it cannot be said that the action given by and described in section 1401 of the General Statutes applies as the remedy expressly prescribed for enforcing the liability imposed by section 1367. It follows that if section 1401 applies to the Marine & River Phosphate Company section 1367 does not. Either there is no such liability as is sought to be enforced in the present action, or the remedy resorted to cannot rest upon the section cited as expressly conferring it.

It is argued, indeed, on behalf of the defendants in error, that section 1367, which declares the liability of the directors in the case stated in the complaint, cannot apply, because the Marine & River Phosphate Company is not a corporation organized under a charter, but under a general law, that provision being applicable, it is said, only to those of the former description. But we deem it unnecessary to consider and decide that question, because no special remedy being prescribed by statute for enforcing the liability defined by that section from a consideration of its nature, and the circumstances which are made the conditions of it, we are led to the conclusion that the only appropriate remedy in the courts of the United States is by a suit in equity.

The conditions of the personal liability of the directors of the corporation, expressed in the statute, are that there shall be debts of the corporation in excess of the capital stock actually paid in, to which the directors sought to be charged shall have assented, and this liability is for the entire excess both to the creditors and to the corporation. To ascertain the existence of the liability in a given case requires an account to be taken of the amount of the corporate indebtedness, and of the amount of the capital stock actually paid in, facts which the directors, upon whom the liability is imposed, have a right to have determined, once for all, in a proceeding which shall conclude all who have an adverse interest, and a right to participate in the benefit to result from enforcing the liability. Otherwise the facts which constitute the basis of liability might be determined differently by juries in several actions, by which some creditors might obtain satisfaction and others be defeated. The evident intention of the provision is that the liability shall be for the common benefit of all entitled to enforce it according to their interest, an apportionment which, in case there cannot be satisfaction for all, can only be made in a single proceeding to which all interested can be made parties.

The case cannot be distinguished from that of Honner v. Henning, 93 U.S. 228, the reasoning and result in which we reaffirm. It is immaterial that in the present case it does not appear that there are other creditors than the plaintiffs in error. There can be but one rule for construing the section, whether the creditors be one or many. To the question certified, therefore, it must be answered that an action at law will not lie, and that the only remedy is by a suit in equity.

The judgment is accordingly affirmed.

title: Stone v. Chisolm/Opinion of the Court


text: Talk:Stone v. Chisolm/Opinion of the Court


text:
Page:Travels with a Donkey In The Cevennes.djvu/106

88 eye was attracted by the portrait of a young fellow in the uniform of a private of foot. This was one of the novices, who came of the age for service, and marched and drilled and mounted guard for the proper time among the garrison of Algiers. Here was a man who had surely seen both sides of life before deciding; yet as soon as he was set free from service he returned to finish his novitiate. This austere rule entitles a man to heaven as by right. When the Trappist sickens, he quits not his habit; he lies in the bed of death as he has prayed and laboured in his frugal and silent existence; and when the Liberator comes, at the very moment, even before they have carried him in his robe to lie his little last in the chapel among continual chantings, joy-bells break forth, as if for a marriage, from the slated belfry, and proclaim throughout the neighbourhood that another soul has gone to God. At night, under the conduct of my kind Irishman, I took my place in the gallery to hear compline and Salve Regina, with which the Cistercians bring every day to a conclusion. There were none


text:
Thornley v. United States

The appellant brought this suit against the United States to recover a balance due him, as he contended, on his pay as an officer of the navy. His petition alleged that, on September 1, 1855, he was commissioned a surgeon in the navy; that on June 1, 1861, while he still held the grade or rank of surgeon, he was, by order of the secretary of the navy, issued by direction of the president, placed on the retired list, in accordance with the provisions of section 3 of the act of congress approved February 21, 1861, (12 St. 150,) by reason of incapacity for further service at sea, but that for some years after said retirement he was assigned to and performed active duty; that by section 3 of the act of congress approved July 15, 1870, the sea-pay of an officer on the active list of the navy of the grade or rank held by the appellant at the time of his retirement was fixed, for the first five years from date of commission, at $2,800 per annum; for the second five years from the date of commission, at $3,200 per annum; for the third five years from the date of commission, at $3,500 per annum; for the fourth five years from the date of commission, at $3,700 per annum; and after 20 years from the date of commission, at $4,200 per annum.

The petition further alleged that section 1 of the act of congress approved March 3, 1873, (17 St. 247,) fixed the pay of officers of the navy, who were then or might thereafter be retired on account of incapacity, resulting from sickness or exposure in the line of duty, at 75 per cent. of the sea-pay of the grade or rank which they held at the time of their retirement; that the act of congress approved April 7, 1882, (22 St. 41,) entitled 'An act for the relief of Medical Director John Thornley, United States navy,' the appellant, directed that he be considered as having been retired from active service as a surgeon and placed on the retired list of officers of the navy, June 1, 1861, on account of physical incapacity originating in the line of duty, and that he be paid accordingly. The petition also referred to section 1 of the act approved August 5, 1882, which provided that all officers of the navy should 'be credited with the actual time they may have served as officers or enlisted men in the regular or volunteer army or navy, or both, and receive all the benefits of such actual service, in all respects, in the same manner as if said service had been continuous in the regular navy.'

The petition further alleged that the appellant, under a proper construction of said acts, should have received pay since March 3, 1873, at the following rates, to-wit: from March 3, 1873, to September, 1, 1875, $2,775 per annum, or 75 per centum of the sea-pay of a surgeon on his fourth lustrum from the date of his commission; and from September 1, 1875, to the time of filing his petition, $3,150 per annum, or 75 per centum of the sea-pay of a surgeon after 20 years from the date of his commission; that such pay had been wrongfully withheld from him, and he had only been paid since March 3, 1873, at the rate of $2,400 per annum. The petitioner, therefore, demanded judgment for $6,343.67.

The findings of fact made by the court of claims, January 29, 1883, were as follows: 'On the third of September, 1855, the petitioner was commissioned a surgeon in the navy. On the first of June, 1861, on account of physical incapacity to perform further service at sea, he was placed on the retired list as a surgeon, under the third section of the act of February 21, 1861, (12 St. 147, 150.) From March 3, 1873, to November 16, 1882, he was paid at the rate of $2,400 per annum, but the accounting officers of the treasury have refused to allow him any more than that amount.' From these facts the court deduced the conclusion of law that the petitioner was not entitled to recover, and dismissed his petition. From this judgment the petitioner appealed.

''Robt. B. Lines and John Paul Jones'', for appellant.

''Sol. Gen. Phillips'', for appellee.

Mr. Justice Miller deliverd the opinion of the court. He recited the facts as above stated, and continued:

title: Thornley v. United States


text: Talk:Thornley v. United States

title: Talk:Thornley v. United States


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

It is not seriously contended that section 1 of the act of August 5, 1882, referred to in this petition, has any application to the case. The controversy arises upon the third section of the act of July 15, 1870, (16 St. 321,) entitled 'An act making appropriations for the naval service for the year ending June 30, 1871, and for other purposes,' and the second clause of the first section of the act of March 3, 1873, entitled 'An act making appropriations for the naval service for the year ending June 30, 1874, and for other purposes.' 17 St. 547. These sections have been reproduced in the Revised Statutes, and read as follows, respectively:

'Sec. 1556. The commissioned officers and warrant officers on the active list of the navy of the United States, and the petty officers, seamen, ordinary seamen, firemen, coal-heavers, and employes, in the navy, shall be entitled to receive annual pay at the rates hereinafter stated, after their respective designations: The admiral, thirteen thousand dollars; * *  * surgeons, paymasters, and chief engineers, who have the same rank with paymasters during the first five years after date of commission, when at sea, two thousand eight hundred dollars; on shore duty, two thousand four hundred dollars; on leave or waiting orders, two thousand dollars; during the second five years after such date, when at sea, three thousand two hundred dollars; on shore duty, two thousand eight hundred dollars; on leave or waiting orders, two thousand four hundred dollars; during the third five years after such date, when at sea, three thousand five hundred dollars; on shore duty, three thousand two hundred dollars; on leave or waiting orders, two thousand six hundred dollars; during the fourth five years after such date, when at sea, three thousand seven hundred dollars; on shore duty, three thousand six hundred dollars; on leave or waiting orders, two thousand eight hundred dollars; after twenty years from such date, when at sea, four thousand two hundred dollars; on shore duty, four thousand dollars; on leave or waiting orders, three thousand dollars.'

*    *     * 'Sec. 1588. The pay of all officers of the navy who have been retired after forty-five years' service after reaching the age of sixteen years, or who have been or may be retired after forty years' service, upon their own application to the president, or on attaining the age of sixty-two years, or on account of incapacity resulting from long and faithful service, from wounds or injuries received in the line of duty, or from sickness or exposure therein, shall, when not on active duty, be equal to seventy-five per centum of the sea-pay provided by this chapter for the grade or rank which they held, respectively, at the time of their retirement. The pay of all other officers on the retired list shall, when not on active duty, be equal to one-half the sea-pay provided by this chapter for the grade or rank held by them, respectively, at the time of their retirement.'

Section 1 of the act of March 3, 1873, upon which section 1588 is based, also provided that no officer on the retired list of the navy should be employed on active duty except in time of war. This provision is now reproduced in section 1462, Rev. St. The contention of the appellant is that upon these enactments he is entitled to what is known as 'longevity pay.' The contention of the United States is that longevity pay is only given to officers on the active list of the navy, and not to retired officers, to which latter class the appellant belongs.

Where the meaning of a statute is plain, it is the duty of the courts to enforce it according to its obvious terms. In such a case there is no necessity for construction. Benton v. Wickwire, 54 N. Y. 226; Woodbury v. Berry, 18 Ohio St. 456; Bosley v. Mattingly, 14 B. Mon. 72; Ezekiel v. Dixon, 3 Kelly, 146; Farrel Foundry v. Dart, 26 Conn. 376; Sussex Peerage Case, 11 Clark & F. 85, 143; Bish. Written Law, § 72. Applying this rule, we are of opinion that the case of the appellant finds no support in any act of congress.

The effect of the act for the relief of the appellant referred to in his petition was simply to allow him the rate of pay of the grade in which he was retired, prescribed by section 1588 of the Revised Statutes, for officers retired on account of incapacity resulting from long and faithful service, from wounds or injuries received in line of duty, or from sickness or exposure, therein. It placed him on the same footing in respect of his pay, and no other, as section 1588 placed the retired officers therein mentioned. There have been but three acts of congress giving longevity pay to officers of the navy. The first was the act of March 3, 1835, (4 St. 755,) by which longevity pay was given to surgeons only. At that time retired officers were unknown to the navy. The second was the act of June 1, 1860, (12 St. 23,) which gave it to commanders, lieutenants, surgeons, engineers, pursers, boatswains, gunners, carpenters, and sailmakers, when on duty at sea; and the third was the act of July 15, 1870, which gave it generally to officers on the active list of the navy, including surgeons. By no act, therefore, since the foundation of the government, has congress ever given longevity pay to officers of the navy, except those on duty at sea, or on the active list of the navy; and the statute book is now bare of any enactment which awards to any officer of the navy, not on the active list, any increase of pay for length of service.

The appellant seeks to find a reversal of this persistent policy of congress. in respect to the pay of naval officers, in the expression found in section 1588 of the Revised Statutes, to-wit, that 'the pay of all officers of the navy, who have been retired, * *  * shall, when not on active duty, be equal to seventy-five per centum of the sea-pay provided by this chapter for the grade or rank which they held respectively at the time of their retirement.' The contention is that by these words congress intended to give, in this roundabout and indirect manner, longevity pay to the retired officers, which, when dealing directly with the subject, it had uniformly refused to give them. To our minds, the section will bear no such construction. Its plain meaning is that the pay of a retired officer shall be three-fourths of the sea-pay to which he was entitled when he was retired. It is contended that, because congress graduated the pay of officers on the active list by the length of their time of service, officers not on the active list are entitled to the same increase. But the contrary is the true construction. By omitting retired officers from the class entitled to longevity pay, congress expressed its purpose not to allow them longevity pay. No other construction can be put upon the law without importing into it words which congress has left out, namely, that, besides the pay to which his grade or rank at the date of his retirement entitled him, the retired officer should also receive, for every period of five years after his retirement, the increased pay allowed officers on the active list. To give the statute this meaning, would be legislation and not interpretation.

The case of United States v. Tyler, 105 U.S. 244, relied on by appellant, brings no support to his suit. The statute allowing longevity pay to officers of the army (section 1262, Rev. St.) declared that there should be allowed and paid to all officers below the rank of brigadier general 10 per cent. of their current yearly pay for every term of five years' service, but it did not restrict the increased pay to officers in active service. The point on which the case turned was the decision of the court, that an officer of the army, though retired, was still in the service, and he was included in the very terms of the statute allowing the increased pay. The statute on which the appellant relies excludes him, by its terms, from its benefits. We are not called on to explain why congress should apply one rule to the officers of the army and another to the officers of the navy. It is sufficient to say that it has clearly done so. If the law is unequal and unjust, the remedy is with congress and not with the courts.

Judgment affirmed.


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


text:
Baylis v. Travelers' Insurance Company

This was an action brought by the plaintiff in error to recover upon a policy of insurance issued by the defendant, whereby it insured William Edward Parker Baylis, the father of the plaintiff, in the sum of $10,000, to be paid to the plaintiff in case said assured should accidentally sustain bodily injuries which should produce death within 90 days. The complaint alleged that the assured 'on or about the twentieth day of November, 1872, did sustain bodily injuries accidentally, to-wit, in that wholly by accident he took certain drugs and medicines, which, as taken by him, were poisonous and deadly, when, in fact, he intended to take wholly a different thing and in a different manner; and that, in consequence of said accident solely, said assured died on said twentieth day of November, 1872.' An issue was made by a denial in the answer of this allegation, so far as it alleged that the poisonous and deadly drugs were taken 'accidentally, or by accident, or with the intent, or under the circumstances stated or mentioned in the complaint.'

The cause came on for trial by jury, when, as appears by the bill of exceptions, the plaintiff put in evidence the policy of insurance, proved the fact and circumstances of death, and notice thereof to the defendant, and it was conceded that the question of suicide was not raised by the evidence. The testimony being closed, the counsel for the defendant moved to dismiss the complaint on the ground that the evidence was insufficient to sustain a verdict. This motion was denied, and thereupon the plaintiff's counsel insisted 'that the evidence presented questions of fact which ought to be submitted to the jury, and asked that the case be submitted to the jury to determine upon the evidence.' The bill of exceptions further states that 'the court refused to submit the cause to the jury, and the plaintiff's counsel duly excepted.' The court then directed the jury to render a verdict for the plaintiff for the full amount claimed, subject to the opinion of the court upon the question whether the facts proved were sufficient to render the defendants liable upon their policy, and the jury accordingly rendered a verdict for the plaintiff for the amount sued for, with interest. The plaintiff moved for judgment upon the verdict, and the defendant moved for judgment in its favor, on the pleadings and minutes of trial. Judgment was accordingly rendered for the defendant upon the opinion of the judge, a copy of which is set out in the record, and is as follows:

'This action is brought upon a policy of insurance against accident, issued by the defendants, whereby they agree to pay to the plaintiff the sum of $10,000, 'within ninety days after sufficient proof that the insured, William E. P. Baylis, at any time within the continuance of the policy, shall have sustained bodily injuries effected through external, violent, and accidental means, within the intent and meaning of this contract and the conditions hereunto annexed, and such injuries alone shall have occasioned death within ninety days from the happening thereof.' The contract contained the following proviso: 'provided, that this insurance shall not extend to any death or disability which may have been caused wholly or in part by any surgical operation, or medical or mechanical treatment for disease.' The cause was tried before the court and a jury, when, upon the evidence adduced, a verdict for the plaintiff was directed, subject to the opinion of the court upon the question whether the facts proved were sufficient to render the defendants liable upon their policy. The following are the facts, as derived from the evidence, and in stating them I adopt the conclusions of fact most favorable to the plaintiff that the evidence will permit to be drawn: The insured died on the twentieth of November, 1872. A week or so previous to his death he was suffering from influenza, the result of a cold, and was then treated therefor by his physician. He began to get better, when, on Friday night before his death, he had an attack of cholera morbus, accompanied with convulsions, which seemed to completely shatter his nervous system, and left him in a wholly nervous state. On Monday following he was again better, proposed to go to business, and asked his physician, on account of restlessness, to give him some opiate for a quiet night's sleep. The physician ordered a preparation of opium, and directed him to take twenty drops of it before going to bed. He was at this time taking chloral, under the same medical advice, and the opium was directed to be taken in addition to a prescribed dose of chloral. That night the insured took the prescribed dose of chloral, and, as may be inferred from the facts shown, a dose of opium also. There is no direct evidence as to the quantity of opium he took, but I shall treat the case as if the evidence respecting the symptoms that followed, and the actions of the insured, was sufficient to warrant a jury in finding that, through inadvertence, the insured took more opium than he intended to take, and such a quantity that his death was caused thereby. It is by no means clear that such finding would be warranted by the evidence given, and it is certain that no conclusion more favorable to the plaintiff can be drawn from the proofs. I am, therefore, to determine whether, as matter of law, such a death is within the scope of the policy sued on. Upon this question my opinion is adverse to the plaintiff. As I view the evidence, the death was caused by 'medical treatment for disease,' and, if so, it was excepted by the terms of the policy.

'The contention in behalf of the plaintiff is that the opium was not administered by the hand of a physician, and, moreover, was not the dose directed by the physician to be taken, but was a dose taken by the insured upon his own judgment, and that these facts take the case out of the exception in the policy. But it must be conceded that the opium which caused the death was taken by the insured with the object of allaying the nervous excitement from which he was suffering. Certainly, then, this was disease. The advice of a physician had been taken as to its cure. It is equally certain that there was a treatment of this disease, for the remedy prescribed by the physician was taken, although in excessive quantity, and the opium taken was so taken because the physician had prescribed it to remedy the disease. The opium was taken with no other object than to effect the result which the physician had advised should be attained by using opium. Under these circumstances the fact that the patient deviated from the direction given by the physician in the matter of amount, and, upon his own judgment, took a larger dose than had been directed, does not change the character of the act. The object of the insured in taking the opium he did, was to cure or else to kill. The facts repel the idea of an intention to kill and prove the intention to cure. Death caused by such an act, done with such an intent, is, in my opinion, a death caused wholly or in part by medical treatment for disease, and, therefore, is not covered by the policy. I am also of the opinion that the facts do not disclose a case of bodily injury effected through 'external, violent, and accidental means,' occasioning death, within the meaning of the policy. I do not consider that violence can fairly be said to be an ingredient in the act of taking a dose of medicine, although the medicine by destructive in its action and death the result. These considerations compel to a denial of the motion for judgment in favor of the plaintiff, and a direction that judgment for the defendants be entered.'

To which ruling and conclusion the plaintiff duly excepted.

John L. Hill, for plaintiff in error.

F. E. Mather, for defendant in error.

Mr. Justice Matthews delivered the opinion of the court. He recited the facts as above stated, and continued:

title: Baylis v. Travelers' Insurance Company


text: Talk:Baylis v. Travelers' Insurance Company


text:
Baylis v. Travelers' Insurance Company/Opinion of the Court

If, after the plaintiff's case had been closed, the court had directed a verdict for the defendant on the ground that the evidence, with all inferences that the jury could justifiably draw from it, was insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, it would have followed a practice sanctioned by repeated decisions of this court. Randall v. Baltimore & O. R. Co. 109 U.S. 478; S.C.. 3 SUP. CT. REP. 322, and cases there cited. And, in that event, the plaintiff, having duly excepted to the ruling in a bill of exceptions, setting out all the evidence, upon a writ of error, would have been entitled to the judgment of this court, whether, as a matter of law, the ruling against him was erroneous. Or, if in the present case, a verdict having been taken for the plaintiff by direction of the court, subject to its opinion whether the evidence was sufficient to sustain it, the court had subsequently granted a motion on behalf of the defendant for a new trial, and set aside the verdict, on the ground of the insufficiency of the evidence, it would have followed a common practice, in respect to which error could not have been alleged, or it might, with propriety, have reserved the question, what judgment should be rendered, and in favor of what party, upon an agreed statement of facts, and afterwards rendered judgment upon its conclusions of law. But, without a waiver of the right of trial by jury, by consent of parties, the court errs if it substitutes itself for the jury, and, passing upon the effect of the evidence, finds the facts involved in the issue, and renders judgment thereon.

This is what was done in the present case. It may be that the conclusions of fact reached and stated by the court are correct, and, when properly ascertained, that they require such a judgment as was rendered. That is a question not before us. The plaintiff in error complains that he was entitled to have the evidence submitted to the jury, and to the benefit of such conclusions of fact as it might justifiably have drawn; a right he demanded and did not waive; and that he has been deprived of it, by the act of the court, in entering a judgment against him on its own view of the evidence, without the intervention of a jury. In this particular, we think error has been well assigned.

The right of trial by jury in the courts of the United States is expressly secured by the seventh article of amendment to the constitution, and congress has, by statute, provided for the trial of issues of fact in civil cases y the court without the intervention of a jury, only when the parties waive their right to a jury by a stipulation in writing. Rev. St. §§ 648, 649. This constitutional right this court has always guarded with jealousy. Doe v. Grymes, 1 Pet. 469; D'Wolf v. Rabaud, Id. 476; Castle v. Bullard, 23 How. 172; Hodges v. Easton, 106 U.S. 408; S.C.. 1 SUP. CT. REP. 307.

For error in this particular the judgment is reversed, and the cause is remanded, with directions to grant a new trial.


text: Talk:Baylis v. Travelers' Insurance Company/Opinion of the Court


text:
Page:Travels with a Donkey In The Cevennes.djvu/214

N examination, on the morning of October 4th, Modestine was pronounced unfit for travel. She would need at least two days' repose according to the ostler; but I was now eager to reach Alais for my letters; and, being in a civilised country of stagecoaches, I determined to sell my lady-friend and be off by the diligence that afternoon. Our yesterday's march, with the testimony of the driver who had pursued us up the long hill of St. Pierre, spread a favourable notion of my donkey's capabilities. Intending purchasers were aware of an unrivalled opportunity. Before ten I had an offer of twenty-five francs; and before noon, after a desperate engagement, I sold her, saddle and all, for five-and-thirty. The pecuniary gain is not obvious, but I had bought freedom into the bargain. St. Jean du Gard is a large place and largely;


text:
Illinois Pneumatig Gas Company v. Berry

W. H. Smith and C. W. Holcomb, for appellant.

Erwin Palmer, for appellees.

FIELD, J.

title: Illinois Pneumatig Gas Company v. Berry


text: Talk:Illinois Pneumatig Gas Company v. Berry


text:
Illinois Pneumatig Gas Company v. Berry/Opinion of the Court

This case comes before us on appeal from the decree of the circuit court for the Eastern district of Michigan. The facts, so far as necessary to present the point of our decision, are as follows:

In 1869, and previous to March of that year, several persons interested in a patent for the manufacture of illuminating gas, and gas-machines known as 'Rand's Patent,' for the states of Michigan, Wisconsin, Illinois, and Lowa, agreed to unite their interests, obtain an act of incorporation from the legislature of Illinois, and do business in Chicago. They accordingly applied to the legislature of the state, and, on the twenty-fourth of March following, obtained an act duly incorporating them and their associates and successors under the name of the Illinois Pneumatic Gas Company. By its third section the corporation was invested with power to manufacture and sell illuminating gas, to be made from petroleum or its products under the patents owned or to be owned by the company, or in which it may have any title or interest, issued or to be issued to A. C. Rand; also to manufacture and sell the works and machine y, with all needed materials and appliances for such manufacture, and to make assignments and grant licenses under the patents in the same manner and to the same effect as if the corporation were a natural person.

In September, 1869, the corporators organized under the act of the legislaure, adopted a set of by-laws for the management of the affairs of the company, and, pursuant to them, elected a board of nine director, with full control of its property and franchises, and a president, secretary, and treasurer and general manager. The defendant Joseph H. Berry was chosen as one of the directors, and Mahlon S. Frost was chosen treasurer and gereral manager. From this time until the first of June in the following year, 1870, the company carried on at Chicago the business of manufacturing gas-machines But the business was not profitable, and the company ran in debt and became embarrassed. Judgments were recovered against it, upon which executions were issued and levied upon its property. It was without money or credit, or any available means of raising funds, and the forcible sale of its whole property was imminent. Under these circumstances the general manager, Frost, consulted the defendants as to the course which should be pursued, and, as the result of the conference, the defendants entered into an agreement with him to the effect that if he would take the property of the company and continue its business under his personal supervision and management, they would advance sufficient money to pay its outstanding debts and to carry on the business already obtained, and to develop and increase it. Having this agreement with the defendants, Frost made a proposition to the board of directors of the company to take its property and franchises for two years from June 1, 1870, continue its business for that period at his own expense, pay its existing liabilities, and at the end of two years return to the company the property received, and transfer to it the right to manufacture gas with a machine known as the 'Maxim Gas-machine,' and the right to sell the same in Illinois. This proposition was accepted by the directors and embodied in a written agreement, executed by the company through its president and secretary, bearing date on that day. This agreement is, in fact, a lease by the company to Frost, for the period of two years, of the good-will of its business, of its right to manufacture gas and gas-machines, of its franchises, machinery, implements, tools, and fixtures, and a sale of its gas fixtures then on hand, and machines then in process of being made, and its stock and materials, notes, book-accounts, claims, and demands. And the agreement provided that, in consideration of the lease and sale of the property, Frost should pay all the then liabilities of the company as the same matured, excepting the amount then due to him, (which was to continue a liability as though the agreement had not been made,) procure the right to vend the patented 'Maxim Gas-machine' for the state of Illinois, and at the end of the lease return to the company all the property received from it, and the business which he had built up or acquired. Frost was then a director of the company, and, upon the execution of the agreement, he took possession of its property and assets, and conducted the business until August 1, 1870, when he transferred to the defendants all his interests and privileges. They thereupon took possession of the property, commenced the manufacture of gas-machines at Chicago, and continued in the business until their machinery was destroyed by fire in October, 1871. During this period they paid the debts of the company, and carried out the conditions of the lease and sale, except as to the purchase of the 'Masim' patent. After the fire the directors extended the lease for two years, and consented to the removal of the manufacturing works to Detroit. The defendants accordingly removed the works to that city, where they afterwards carried on the business.

T e lease, as extended, did not expire until June 1, 1874, but in April, before its expiration, the defendants offered to surrender it and the business to the company on certain conditions. The offer was accepted, but the proposed agreement fell through from a failure of the company to comply with the conditions. Again, after the termination of the lease, and on October 15, 1874, ths defendants made another proposition to the board of directors, which was, in substance, to sell to the company their stock on hand, including machines finished wholly or in part, at a valuation to be estimated by a committee to be appointed by the company, less the value of the property to be turned over to the company under the terms of the lease and their proportion of the working capital necessary to purchase the tools and machinery. In consideration of this agreement the defendants were to be released from all claims of the company, and were to carry on the business at Detroit for one year without compensation, the company to have the profits made. This proposition was accepted, and, pursuant to it, certain of the stockholders gave their notes to the defendants in purchase of the property then on hand, which were afterwards paid. This arrangement, however, fell through, as some of the stockholders failed to furnish their proportion of the purchase money for the property.

On the fifteenth of March, 1876, the defendants made a third proposition to the directors for the adjustment of their business, which was accepted and incorporated into an agreement executed on that day. It transferred to the company the interest in the lease to Frost remaining in them, and stipulated to assign and transfer on demand all of the capital stock owned by them for the sum of $274, and the right to manufacture gas-machines at some one place to be selected by them in certain named state, with the privilege of selling the machines. It stipulated to pay and deliver to the stockholders the moneys received from them under the contract of October 15, 1874, with interest thereon, and to deliver up such notes as they then held. And on the other hand, the company stipulated to pay to the defendants their proportion of any royalty that might be collected on the patents during the time the defendants owned stock in the company in the proportion that their stock bore to the whole stock of the company, and it released them from all claims, either equitable or otherwise, which it had by virtue of pervious agreements or transactions.

The provisions of this agreement were fully carried out by the defendants. They paid over to the several stockholders the money, and surrendered the notes they had received under the agreement of October 15, 1874, and interest on the money. Notwithstanding this settlement, and the release of the company thereby executed, the present bill was filed by it in September, 1877, upon instructions of its board of directors to cancel the lease and contracts, to charge the defendants as trustees, and compel them to account for the property received from the company and profits made by them in their business under the lease. It set forth the lease and the transactions we have mentioned, and charges that they were made in excess of the authority of the directors, and were therefore null and void; that it was a breach of duty on their pary to make the lease to Frost, and, on his part, to receive it, he being the treasurer and general manager of the company; and also that the release was invalid because the defendants then had in their possession, unaccounted for, the sum of at least $60,000 derived from their business under the lease, which belonged to the company.

The answer of the defendants explained the agreements and transactions with the company, it insolvent condition when the lease was made, the repeated offers to return the property and turn over the business to the company, and the final settlement and execution of the release of the company by the agreement of March 15, 876. The lease to Frost, and the contracts and transactions between the parties, were fully disclosed by the proofs produced, and the court held, after full consideration, that under the embarrassed circumstances in which the company was placed at the time, judgments being rendered against it and executions levied upon its property, which was about to be sold, the lease was a valid transaction. Had it not been made, said the court, and the money furnished by the defendants to meet the liabilities of the company, its whole property would have been sacrificed and its business entirely broken up; and, though Frost, to whom the lease was made, was at the time a director of the corporation, that fact of itself was not sufficient ground to set aside the contract, it being made to protect the interests or the company, and without any fraudulent design on his part. The court also held that it ought not to set aside the lease for other reasons, namely, that it had been executed over seven years before any objection was made to it, and had during this time been repeatedly ratified; and that the release executed under the agreement of March 15, 1876, was a full and final settlement of the matters and claims between the parties, there being no evidence that the settlement was obtained by fraud or any improper conduct of either party. The court therefore dismissed the bill, and from its decree the cause is brought by appeal to this court.

A court of equity does not listen with much satisfaction to the complaints of a company that transactions were illegal which had its approval, which were essential to its protection, and the benefits of which it has fully received. Complaints that its own directors exceeded their authority come with ill grace when the acts complained of alone preserved its existence.

But it is not necessary to rest our judgment of affirmance of the decree of the court below upon any consideration of the character of those transactions. After seven years' acquiescence in the lease, something more must be shown than that it was executed in excess of the powers of the directors, before the lessee will be required to surrender the profits he has made under it. The lease expired June 1, 1874; the disposition of the property was settled by the agreement of March 15, 1876; and the release is an answer to all claims for the profits made by the defendants. The release is of itself sufficient to justify the dismissal of the bill, There is no evidence that it was obtained upon any fraudulent representations. Nothing was kept from the parties when it was executed. Indeed, all the transactions between the defendants and the company, from the time they took from Frost an assignment of the lease, were open and well known. There was no concealment, either had or attempted, of anything that was done, and no just reason can be given for disturbing the settlement made.

Decree affirmed.


text: Talk:Illinois Pneumatig Gas Company v. Berry/Opinion of the Court


text:
Bigelow

Robert Christy, for petitioner.

MILLER, J.

title: Bigelow


text: Talk:Bigelow

title: Talk:Bigelow