text:
Bowden v. Johnson/Opinion of the Court

George E. Bowden, as receiver of the First National Bank of Norfolk, Virginia, brought this suit in equity against Jacob C. Johnson and Mrs. B. Valentine, alleging, in the bill, that Johnson, owning 130 shares of the capital stock of the bank, of $100 each, in order to exonerate himself from liability to the creditors of the bank, transferred said shares to Mrs. B. Valentine, on the books of the bank; that the transfer was made without legal consideration, and with a view to such exoneration; that Mrs. B. Valentine is, and was known by Johnson, at the time of the transfer, to be, utterly insolvent; that the transfer was made with a view of defrauding the creditors of the bank, and therefore was and is void; and that the plaintiff had been appointed, by the comptroller of the currency, receiver of the bank, and had been directed by said comptroller to proceed to enforce the personal liability of all persons owning the capital stock of the bank on the twenty-sixth day of May, 1874, the day on which the bank failed to redeem one of its circulating notes, and was in default in the payment of its circulating notes generally. The bill alleges that Johnson visited Norfolk for the purpose of examining into the condition of the affairs of the bank, and, becoming satisfied from such examination, and from other information in relation to the bank, that its affairs were in a critical condition, as in fact they were, and that a suspension of the bank was inevitable, returned to New York and immediately thereafter made said transfer. The prayer of the bill is that Johnson and Mrs. B. Valentine answer it on oath; that the transfer of the stock be set aside; and that Johnson be decreed to pay to the plaintiff, as such receiver, the par value of the 130 shares.

The joint answer of the defendants admits that Johnson became the owner of the 130 shares in 1869. It avers that Johnson visited Norfolk in November, 1873, but not for the purpose of examining into the condition and affairs of the bank. It denied that Johnson, on said visit, became satisfied that the affairs of the bank were in a critical condition, and that a suspension of the bank was inevitable. It avers that Johnson went to Norfolk, at that time, to inspect a farm which it was proposed to exchange with him for said stock. It denies that Johnson 'then, during that visit, or at any other time, saw anything in the condition of the said bank,' except that William Lamb, who was at that time the president of the said bank, and who went with Johnson to inspect said farm, at the same time proposed that Johnson should lend to the bank $25,000, and proposed to secure the loan by mortgage on the real estate of the bank, which loan Johnson declined to make. Johnson admits that he, on December 5, 1873, sent his said stock to the bank, with too power and direction to have the same transterred to Mrs. Valantine, but he denies expressly that such transfer was madern order to oxonerate himself from liability to the creditors of the bank. The answer avers that the actual transfer of the stock, on the books of the bank, was delayed for some time, without the knowledge and against the will of the defendants. It denies that the transfer of the stock was made without legal consideration, or with any view to exonerate Johnson from liability as stockholder. It denies that the defendant Valentine is, or was, at the time of said transfer, known by Johnson 'to be utterly insolvent, or that such transfer was made with a view of detrauding the creditors' of the bank. It avers that it is not true that Mrs. Valentine was, at the time of said transfer, insolvent, or that said transfer was made for any such purpose as is alleged in the bill, but avers that it was made in good faith and for a valuable and lawful consideration.

The principal question in this case is as to the circumstances attending the transfer of the stock to Mrs. Valentine. This question divides itself into two branches: (1) The information which Johnson had in regard to the affairs of the bank; (2) the real nature of the transaction between Johnson and Mrs. Valentine.

1. Lamb, the president of the bank, gives the following testimony: In the latter part of 1873, Lamb, owing to the straitened condition of the bank, was anxious to make a loan on its real estate, and wrote to Mr. Cole, the former president, then living in New York, to assist him in doing so. Cole wrote to Lamb that he had a friend, Johnson, who he thought was able to make the loan, and would do so if proper representation could be made to him, and that he would bring Johnson down to Norfolk. Some time in November, 1873, Johnson went to Norfolk with Cole, when Lamb endeavored to get Johnson to make a loan on the banking building of the bank. Lamb told Johnson that the need of a loan was urgent; that he thought the security was good; and he appealed to Johnson as a stockholder to make the loan. Johnson promised, when he returned, to look into his affairs, and to make the loan if he could conveniently do so. Lamb says.

'I cannot remember any of the details of the conversation,     nor the full extent given him by me as to the condition of      the bank, but my impression is that I called attention to the      fact that our capital had been seriously impaired by the      Elkton suit, and other litigation, and that the panic had      caused us to lose business and be very hard up, and the      necessity of having ready money to retain our business and to      recover our position. I think I asked for a loan of $25,000     on the building. My conversation was of such a confidential     character as I would have only had with one largely      interested in the bank. * *  * I don't remember whether he      examined the books and papers of the bank.'

Lamb says that the Elkton suit was one in which a bank obtained a judgment against his bank, after long and expensive litigation, for $30,000; and that the result destroyed about one-half of the capital stock of his bank, which was $100,000.

Chamberlain, who was cashier of the bank, says that Johnson visited Norfolk the latter part of November or about the first of December, 1873.

Hunter, who was bookkeeper of the bank and remembers Johnson being at the bank, says that he believes the reports and statements showing the condition of the bank, made up by the witness as bookkeeper, were taken into the president's room which John on was in it, but he cannot state whether they were exhibited to Johnson.

The foregoing is all the direct evidence there is as to Johnson's knowledge of the condition of the bank at the time he returned from Norfolk. Within a very few days after his return he wrote a letter to Lamb, dated December 5, 1873, saying:

'I regret to say that I will be unable to comply with your     wishes in letting the First National Bank have $25,000. I     cannot raise the money. I was depending for the greater part     of it on my folks in San Francisco, and they send me word      that they cannot let me have the money, as they need all they      can lay their hands on to get through the winter. The bulk of     my means is in real estate and cannot readily be converted      into cash. I have disposed of my stock in the First National     Bank of Norfork, and inclose certificate of my shares, with      power of attorney etc., to transfer. Please have the stock     transferred to Mrs. B. Valentine, and send the certificate to      her at Belleville, Essex county, New Jersey.'

This letter contained the certificate of stock, with the power of attorney to transfer it

Lamb, instead of transferring the stock, wrote as follows to Cole, inclosing Johnson's letter:

'I send you the inclosed to show you Mr. Johnson. Please let     me know who Mrs. B. Valentine is. I shall make an assessment     on our stockholders of 50 per cent. If she is not able to pay     it I will not transfer the stock. Please return this letter.'

'Mrs. Valentine is the sister of Johnson, the wife of a poor     man that Johnson employs on his farm. I would not transfe the     stock, but notify him at once that you have made an      assessment of 50 per cent.'

These letters were written, Lamb says, in December, 1873. Lamb also says that he was not satisfied from Cole's reply, but found, after obtaining legal advice, that he had no right to refuse the transfer, and therefore he made it, on January 15, 1874.

On the fourteenth of February, 1874, Lamb wrote as follows to Johnson:

'I find the inclosed certificate has not been forwarded to     Mrs. Valentine, although issued a month ago; please hand it      to her. I regret not hearing from you in regard to the     proposition made by the directors. Something must be done at     once. The bank cannot go on as affairs are now, and if I surrender it to a receiver I know our stock will be     worthless; the margin is too small. If I could have gotten     the refusal of all the stock I might have induced some      capitalists to come in, but I am afraid it is too late now. With $4,000 cash I could have infused new life into our stock     and built it right up. Please let me hear from you, as I     suppose you must feel an interest in Mrs. Valentine's stock.'

Johnson did not offer himself as a witness.

2. Mrs. Valentine was called as a witness by the plaintiff. Her deceased daughter was the wife of Johnson. She herself was divorced from her husband, and he was not dead that she knew of. Johnson had no children. Her daughter died in 1864. She herself lived in California with her husband for 13 years. She came from California in 1865 or 1866, and went to live at Mr. Johnson's house in Kearney township, New Jersey, in 1871. She was examined as a witness in August, 1877. She endeavors to make out a consideration for the transfer of the stock to her, in this way:

'Mr. Johnson owed me for services rendered after we came to     live where we are. He was to pay me $1,000 a year for my     services. He was away a great deal of the time, and I took     care of everything while he was gone. He went away two     winters to California, and I had the care and responsibility      of everything-the entire place-while he was gone. * *  * We      have been at the place six years. He was away the second     winter; then two winters intervened, and he was away another      winter. * *  * Question. Please explain why Mr. Johnson should     have paid you by the assignment of the Norfolk Bank stock      instead of money, if he was indebted to you and wished to      make payment? Answer. Because I preferred that. He would have     paid money if I had wished it. I thought it would be less     trouble for me in that way, already invested, and I had to      pay Q. Did Mr. Johnson's engagement gagement to pay you one     thousand per year for services commence at the time you moved      to Kearney township, six years ago, as you have said? A. It     did. Q. Mr. Johnson has not been indebted to you, has he, for     any other matter or thing except such service for the last      six years? A. Since my daughter's death I have had all the     charge of Mr. Johnson's clothes, and of his house at San Francisco, and here also. There was no agreement between     us for compensation till we came here to Kearney. I always     supposed he would compensate for these. Q. What price were     you to allow Mr. Johnson in payment for that stock? A. Fifty     cents on the dollar; that was the price Mr. Lamb, the      president of the bank, offered for it at the time Mr. Johnson      transferred it to me. Q. Did you suggest to him or he to you     the purchase of this stock? A. I really can't tell. I think I     proposed to him to take it instead of money. I am not     positive. I think that was the way. Q. Please explain, if you     call, how you came to the knowledge that he was the owner of      the Norfolk Bank stock? A. He told me that he had the stock     before he went to Norfolk to see the land that he then      thought of exchanging the stock for. I think that was the     first I knew of it. Q. And when he came back, or soon after,     he proposed to you to take the stock, did he not? A. It was a     long time after he came back; several months, I think. Q. Are     you not mistaken in saying it was several months? A. It may     not have been several months after; it was some time after. Q. Really, Mrs. Valentine, on reflection, was it more than     one month? A. Perhaps not. I cannot remember. Q. When Mr. Johnson proposed that you should purchase the stock, what did     he propose? Please give me, as near as you can, the language     he used in relation thereto. A. I cannot remember the     language used. Q. Have you now, or had you at the time you     took the assignment of this stock from Mr. Johnson, any      money, or any property, to purchase the stock, other than the      alleged indebtedness for annual services rendered by you to      Mr. Johnson? A. I am not dependent entirely; I am not     destitute; have enough to keep me from want. Q. Did you give     any money or other valuable thing to Mr. Johnson for the      transfer of the stock other than his alleged indebtedness to      you for services? A. I told him at the time he might consider     all my jewelry his for part compensation. Q. He did not     accept of the jewelry, did he? A. Well, it remained in the     house, as it always had. Q. The stock that Mr. Johnson     transferred to you was not paid for by either your obligation      or promise of payment further than the alleged indebtedness      to you, was it? A. It was not.

Q. Had you, at that time, any other stock, bonds, bank     account, or money in hand, or on deposit in any bank or      banks, or in anywise invested for you or for your use? A. I     had no bank account, no stock. I am never without any money     to use. I have no bonds. Q. The money that you had were     merely pocket funds, of small amount, were they nor? A. Yes,     sir. Q. In what month was the arrangement made between you      and Mr. Johnson about the stock? A. In December, 1873. Q. You     stated, in reply to the thirty-second direct question, that      you thought you proposed to Mr. Johnson to take the stock      instead of money. Did you mean to be understood, by any     subsequent answer, that the proposition for you to take the      stock arose with Mr. Johnson? A. No.'

The circuit court dismissed the bill, taking, as we think, an erroneous view of Mrs. Valentine's testimony in one important particular. It was assumed that she testified that she had had charge of Johnson's house and family since the death of Mrs. Johnson in 1864, at the fixed compensation of $1,000 per year; that is, that the compensation was for taking charge of Johnson's house and family from 1864 until the stock was transferred, in 1873, and that the compensation of $1,000 a year was fixed in 1864. Whereas, what Mrs. Valentine says expressly is that the engagement to pay her $1,000 a year for her services commenced in 1871, when she moved to Kearney township, and not till then; and that what Johnson owed her for was for services rendered after that. The winters Johnson was away were the winters of 1872 and 1875. At most, according to Mrs. Valentine's own story, less than three years' services, at $1,000 a year, had been rendered by her when she took this stock at $6,500. No alleged indebtedness accruing subsequently to the transfer of the stock in December, 1873, can be looked at. Mrs. Valentine says she supposed Johnson would compensate her for what she had done before she went to Kearney in 1871, but she does not pretend that there was any such obligation recognized by Johnson, or any debt for the same. That Mrs. Valentine, knowing that the alleged indebtedness to her did not amount to the alleged price of the stock, was conscious that the transaction was not an honest one, is shown by her admission that the stock was not paid for by her to Johnson, by either her obligation or promise of payment, further than the alleged indebtedness to her. This was less than $3,000 in December, 1873. To make up the difference between the indebtedness and the $6,500, she resorts to the bald suggestion that she told Johnson at the time that he might consider all her jewelry as his, 'for part compensation' for the transfer of the stock, the jewelry remaining in the house as it always had. Equally bald is the suggestion that she was saving trouble in making an investment in a stock that was worth only 50 cents on the dollar.

The conclusion of the circuit court was that there was no bad faith or fraud in the transfer. But what are the facts proved? Johnson, being a stockholder, goes to Norfolk and has interviews with the officers of the bank in regard to making a loan of $25,000 to the bank. He is appealed to as a stockholder to make the loan. His position as a stockholder involved not merely the value of his stock, but his liability for $13,000 more. The urgency of the needs of the bank is prossed upon him. The facts that the capital of the bank had been impaired, and that it had lost business, are brought to his attention. The bank had made a dividend in July, 1870, and one in February, 1873, and none since. Can it be doubted, from the foregoing testimony and Johnson's subsequent action, that he examined into the affairs of the bank sufficiently to satisfy himself that the failure of the bank, and the loss of its entire capital stock, and the attaching of the statutory liability of the stockholders, were impending in the near future. He was at Norfolk the last of November or the first part of December. Mrs. Valentine says that the arrangement between her and Johnson about the stock was made in December. He sends the certificate and the power to Lamb on the fifth of December. He loses no time in assigning his stock. Lamb understood what Johnson was doing. He sent to Cole the letter from Johnson, and directed Cole to inquire as to Mrs. Valentine's responsibility. He received information that she had none, and that she was Johnson's sister. With that knowledge he acted as Johnson's attorney in transferring the stock. He evidently thought there was no bona fides in the transfer, for, in his letter sending the certificate to Johnson, although Johnson had instructed him to send it to Mrs. Valentine at a given address, he addresses Johnson as if he were still a stockholder. He refers to the future, and to the necessity of doing something at once, and to the prospective worthlessness of the stock, and winds up with the sarcastic remark that he supposes Johnson must feel an interest in Mrs. Valentine's stock. Mrs. Valentine was wholly unable to respond for any liability as a stockholder. This was known to her and to Johnson. Johnson, notwithstanding all the testimony on the part of the plaintiff, is not sworn as a witness for himself. It is worthy of note that the answer does not set forth what the consideration was for the transfer to Mrs. Valentine. The bill alleges that there was no legal consideration. The answer merely avers that the transfer was not without legal consideration, and that it was made in good faith and for a valuable and lawful consideration. It is manifest that, at the very best, on Mrs. Valentine's evidence, supposing it to be entitled to credit, and on her statement of the price at which she took the stock, there was only $2,500 of consideration, at the rate of $1,000 a year for two years and a half, leaving the transfer as to 80 shares of the stock without consideration. The entire theory of the defense is that there was a sale, and not that there was any gift.

The provisions of section 12 of the act of June 3, 1864, (13 St. at Large, 102,) which govern the present case, are as follows:

'The capital stock of any association formed under this act     shall be divided into shares of $100 each, and be deemed      personal property and transferable on the books of the      association in such manner as may be prescribed in the      by-laws or articles of association; and every person becoming      a shareholder by such transfer shall, in proportion to his      shares, succeed to all the rights and liabilities of the      prior holder of the shares, and no change shall be made in      the articles of association by which the rights, remedies, or      security of the existing creditors of the association shall      be impaired. The shareholders of each association formed     under the provisions of this act, and of each existing bank      or banking association that may accept the provisions of this      act, shall be held individually responsible, equally and      ratably, and not one for another, for all contracts, debts,      and engagements of such association, to the extent of the amount of their stock therein, at the par value thereof, in      addition to the amount invested in said shares.'

The answer sets forth that Johnson became the purchaser and owner of the 130 shares in 1869. As such shareholder, he became subject to the individual liability prescribed by the statute. This liability attached to him, until without fraud as against the creditors of the bank, for whose protection the liability was imposed, he should relieve himself from it. He could do so by a bona fide transfer of the stock. But where the transferrer, possessed of information showing that there is good ground to apprehend the failure of the bank, colludes and combines, as in this case, with an irresponsible transferee, with the design of substituting the latter in his place, and of thus leaving no one with any ability to respond for the individual liability imposed by the statute, in respect of the shares of stock transferred, the transaction will be decreed to be a fraud on the creditors, and the transferrer will be held to the same liability to the creditors as before the transfer. He will be still regarded as a shareholder quoad the creditors, although he may be able to show that there was a full or a partial consideration for the transfer, as between him and the transferee.

The appellees contend that the statute does not admit of such a rule, because it declares that every person becoming a shareholder by transfer succeeds to all the liabilities of the prior holder, and that, therefore, the liabilities of the prior holder, as a stockholder, are extinguished by the transfer. But it was held by this court in National Bank v. Case, 99 U.S. 632, that a transfer on the books of the bank was not in all cases enough to extinguish liability. The court, in that case, defined as one limit of the right to transfer, that the transfer must be out and out, or one really transferring the ownership as between the parties to it. But there is nothing in the statute excluding, as another limit, that the transfer must not be to a person known to be irresponsible, and collusively made, with the intent of escaping liability, and defeating the rights given by statute to creditors. Mrs. Valentine might be liable as a shareholder succeeding to the liabilities of Johnson, because she has voluntarily assumed that position, but that is no reason why Johnson should not, at the election of creditors, still be treated as a shareholder, he having, to escape liability, perpetrated a fraud on the statute. This is the view enforced by the decision of the Chief Justice in Davis v. Stevens, 17 Blatchf. C. C. 259.

It is urged that, as the bill prays that Johnson may answer its allegations on oath, the answer is evidence in his favor, and is to be taken as true, unless it is overcome by the testimony of one witness and by corroborating circumstances equivalent to the testimony of another witness. Under the view we have taken of the case, the only material questions which are controverted are the knowledge and intent of Johnson, and the insolvency of Mrs. Valentine, and the knowledge of the latter fact by Johnson at the time. Although Johnson executed the transfer and power of attorney on December 5th, he did not deliver it to Mrs. Valentine. He sent it to Lamb for him to act as attorney. Mrs. Valentine had no agency in it. When the transfer had been made on the books of the bank, and the new certificate was made out, it was sent to Johnson on February 14th, for him to deliver it to Mrs. Valentine. The letter of that date from Lamb to Johnson, which inclosed it, was full notice to Johnson that the condition of the bank was growing worse. His contract with Mrs. Valentine, if there was one, was not fully consummated on his part till after that. There was no delivery of anything by him to her till after that. On the whole evidence, the intent of Johnson, though denied in the answer, is abundantly proved, because the facts from which the conclusion as to such intent flows are satisfactorily established, to an extent sufficient to satisfy the rule of equity. As to Mrs. Valentine's insolvency, she herself proves it conclusively, and she states facts which show that Johnson must have known it. She could give him nothing, according to her story, to answer for the $4,000 balance due him on the stock and was reduced to telling him he might consider her jewelry his, for part compensation. Under all these circumstances, the omission of Johnson to testify as a witness for himself, in reply to the evidence against him, is of great weight. This case, on the whole, is brought within the principle asserted by Chief Justice MARSHALL, speaking for this court, in Clark v. Reimsdyke, 9 Cranch 153, as a case where the evidence arising from circumstances is stronger than the testimony of any single witness. In 3 Greenl. Ev. § 289, it is stated as a rule that the sufficient evidence to outweigh the force of an answer may consist of one witness, with additional and corroborative circumstances, which circumstances may sometimes be found in the answer itself, or it may consist of circumstances alone, which, in the absence of a positive witness, may be sufficient to outweigh the answer even of a defendant who answers on his own knowledge.

It is contended for the appellees that this is not a case of equitable cognizance, because a plain, adequate, and complete remedy may be had at law. But the case is one of a transfer of the legal title to the stock, made to defraud the creditors of the bank. The evidence of title to the stock is the formal assignment on the books of the bank. This being a bill for discovery as well as relief, and the fraudulent transfer being good between the parties, and only voidable at the election of the plaintiff, it is clear that equity has jurisdiction to set it aside and enforce the liability of the transferrer.

Objection is taken here, by the appellees, to the sufficiency of the proof that the comptroller of the currency decided, before this suit was brought, that it was necessary to enforce the personal liability of the stockholders. The plaintiff, as a witness, testified that he received written instructions from the comptroller of the currency to enforce the whole of the personal liability of the stockholders. The defendant Johnson objected that the written evidence referred to must be produced. The record states that the plaintiff reserved the right to file the paper, or a duly-certified copy of it, with the deposition, before the same should be closed. Before the deposition was closed the witness was recalled and produced, as the record states, the original letter addressed to him and signed by the comptroller, and it was filed with the deposition. No objection was made to it, and no requirement of further proof was made. It directs the receiver to institute legal proceedings to enforce against every stockholder of the bank owning stock at the time the bank suspended, his or her personal liability as such stockholder under the statute. This was sufficient.

The liability of the defendant bears interest from the date of said letter, August 13, 1875. Casey v. Galli, 94 U.S. 677.

In June, 1878, Orson Adams was appointed receiver of the bank, in place of Bowden, the plaintiff. The decree of the circuit court was not made till January, 1879. The appeal to this court was taken in the name of Bowden, Adams not having been substituted as plaintiff. Adams became surety in the appeal bond, and thus treated the decree as valid and adopted the appeal. Adams now moves to be substituted as plaintiff and appellant in place of Bowden, without prejudice to the proceedings heretofore had. The appellees and their counsel first heard of the appointment of Adams from the papers served on the motion for substitution, and the appellees now move to dismiss the appeal, on the ground that none was ever lawfully taken. We think that the motion of Adams should be granted, and that of the appellees should be denied. Adams prosecuted the appeal in the name of Bowden, who was and is in life, and had a representative capacity. The power of amendment to this extent is authorized by section 954 of the Revised Statutes. It is of the same character as that exercised by this court in Gates v. Goodloe, 101 U.S. 612, where a writ of error was sued out by two bankrupts after their discharge in bankruptcy, and this court, on a motion to dismiss the writ, and a counter-motion by the assignee in bankruptcy to be substituted as plaintiff in error, denied the former motion and granted the latter.

The motion of Adams is granted, and that of the appellees is denied, and the decree of the circuit court is reversed, with costs, and the cause is remanded to that court, with directions to enter a decree in favor of the substituted plaintiff as receiver, setting aside, as against him, the transfer of the 130 shares of stock by Johnson to Mrs. Valentine, and decreeing that Johnson pay to said receiver the sum of $13,000, with interest thereon, at the lawful rate in the state of New Jersey, from August 13, 1875, with costs.

title: Bowden v. Johnson/Opinion of the Court


text: Talk:Bowden v. Johnson/Opinion of the Court

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


text:
Ex parte Wall

''Chas. W. Jones and Wilkinson Call'', for petitioner.

''Jas. W. Locke'', U.S. Judge, for himself.

BRADLEY, J.

A petition was filed in this case by J. B. Wall for an alternate writ of mandamus to be directed to James W. LOCKE, district judge of the United States for the southern district of Florida, to show cause why a peremptory writ should not issue to compel him to vacate an order made by him as such district judge, prohibiting said Wall from practicing at the bar of said court, and to restore said Wall to the rights, privileges, and immunities of an attorney and proctor thereof. The petition set forth the proceedings complained of, and an order was made by this court requiring the judge to show cause why the prayer of the petition should not be granted. The rule to show cause has been answered, and we are now called upon to decide whether the writ ought to be granted.

The proceedings of the court below for disbarring the petitioner were substantially as follows:

On the seventh of March, 1882, during a term of the said court, held at Tampa, Hillsborough County, Florida, the same court exercising both Circuit and District Court jurisdiction, J. W. LOCKE, the judge then holding said court, issued, and caused to be served upon the petitioner, the following order:

title: Ex parte Wall


text: Talk:Ex parte Wall

title: Talk:Ex parte Wall


text:
Ex parte Wall/Opinion of the Court

"(Circuit Court of the United States, Southern District of     Florida. March Term, 1882.)

"Whereas, it has come to the knowledge of this court that one     J. B. Wall, an attorney of this court, did, on the sixth day      of this present month, engage in and with an unlawful,      tumultuous, and riotous gathering, he advising and      encouraging thereto, take from the jail of Hillsborough      county, and hang by the neck until he was dead, one John,      otherwise unknown, thereby showing such an utter disregard      and contempt for the law and its provisions, which, as a      sworn attorney, he was bound to respect and support, as shows      him to be totally unfitted to occupy such position:

"It is hereby ordered that said J. B. Wall be cited to appear     and show cause by 11 o'clock, Wednesday, the eighth instant, why his name should not be stricken from the roll of      attorneys, and he be disbarred and prohibited from practicing      herein.

[Signed] 'JAMES W. LOCKE, District Judge.

'Tampa, Florida, March 7, 1882.'

Wall appeared in court at the return of this rule, and, on the following day, filed a written answer, as follows:

'This respondent, now and at all times hereafter saving and     reserving to himself all and all manner of benefits of      exception to the many errors, uncertainties, and      imperfections in the said rule contained, prays leave to      object, as if he had demurred thereto, to the right,      authority, or jurisdiction of this court to issue said rule      and require him to answer it:

'(1) Because said rule does not show that the matters therein     charged took place in the presence of the court, or were      brought to the knowledge of the court by petition or      complaint in writing under oath; and,

'(2) Because respondent is charged in said rule with a high     crime against the laws of Florida not cognizable in this      court, and for which, if proven, this respondent is liable to      indictment and prosecution before the State court; but for      answer to so much of said rule as this respondent is advised      that it is material or proper for him to make answer to,      answering, saith--

'He denies counselling, advising, encouraging, or assisting     an unlawful, tumultuous, and riotous gathering or mob in      taking one John from the jail of Hillsborough County, and      causing his death by hanging, in contempt and defiance of the      law, or that he has been guilty of any unprofessional or      immoral conduct which shows him to be unfitted for the      position of an attorney and proctor of this court, as he is      charged in the said rule.

'Whereupon he prays to be hence dismissed, etc.

[Signed] 'J. B. WALL.'

The court overruled the exceptions to its jurisdiction, and called to the stand Peter A. Williams, the marshal of the district, whose testimony, at the request of the respondent, was reduced to writing, and was as follows:

'Peter A. Williams, being duly sworn to testify, says:

'I saw Mr. J. B. Wall and others come to Mr. Craft's house     about 2 o'clock March 6th, and having already heard that a      sheriff's posse had been summoned to protect the jail, I      though by the orderly manner they came in that it was the sheriff's      posse coming for instructions. I was sitting on the end of     the piazza, and did not go in the house, but sat there till      they came out, thinking they had come for instructions.

'When they came out I heard one of the party remark, 'We have     got all out of you we want.' Mr. Wall was one of the party.

'I then thought something was wrong; they all went out of the     gate, and Mr. Craft after them, and I followed after them      rather slowly, and when I got to the corner I saw the party      coming out of the jail with the criminal, the man who was      afterwards hanged. They carried him over the steps to the oak     tree in front of the steps to the court-house. The crowd     gathered around him, and some one threw the man down. I saw     him then put on a dray, and afterwards pulled up on the tree. There was a crowd of about a hundred persons there. I don't     think I could name any man in that crowd except the sheriff,      who was there protesting, as I had come away from the crowd      and was on the upper piazza of the court-house. I heard the     man hollowing. He was put on a dray with a rope around his     neck. The dray went off and he fell to the ground about 10     feet from a perpendicular; then the crowd pulled the rope and      he went up. The crowd had their backs towards me. I suppose I     could have indentified some one if I had thought to, but I      was excited, and did not notice who they were. I saw Mr. Wall     coming from the jail with the prisoner until they crossed the      fence; then I did not see him any more until after it was      over. I did not see him leave the crowd, though he might have     done it without my seeing it. When going from the jail to the     tree Mr. Wall, I think, had hold of the prisoner; he was      beside him.

'I did not see him afterwards until the hanging was over,     then the crowd had increased, perhaps, to 200 persons, and I      went down to them to the plank-walk.

'This was Monday of this week, the sixth of this month, I     think, in Tampa, Hillsborough County.

'I also saw Mr. Sparkham, the mayor of the city, protesting     at the time of the hanging.'

'When the man fell from the dray he fell his full length to     the ground; the rope was slack.'

On the next day the court, after argument by respondent's counsel, made an order in the case, 'That J. B. Wall be prohibited from practicing at the bar of this court until a further order herein.'

The answer of Judge LOCKE to the rule granted by this court to show cause why a mandamus should not issue, states:

'That during a session of the Circuit and District Courts of     the United States at Tampa, in said Southern District of      Florida, he, the said James W. LOCKE, presiding, on the sixth      day of March, A. D. 1882, at the adjournment of said courts      for dinner, at about 1 o'clock of said day, as he was passing      from the court-house, a prisoner was being brought to the      jail in the same yard by two officers; that upon his return      to the court-house after dinner, in a little more than an      hour, the dead body of the same prisoner hung from the limb      of a tree directly in front of the court-house door; whereby      he became personally informed of the commission of a most      serious offence against the laws. The same afternoon he was     informed of the active participation in said crime of one J.      B. Wall, an attorney of said court, by an eye-witness in whom      the most implicit confidence could be placed, but who      declined to make any charge or affidavit of such fact on      account of a fear of said Wall's influence and the local      feeling it would cause against him, the said witness.

'That not only from the direct statements of eye-witnesses,     but from numerous other sources, reliable information of like      import was received; whereupon said J. B. Wall, your      petitioner, was, on the said seventh day of March, during a      session of the Circuit Court of the United States, in open      court, charged in writing by the respondent herein, as judge,      with having, with an unlawful, tumultuous, and riotous      gathering, he advising and encouraging thereto, taken from      the jail of Hillsborough County, and hanged to a tree by the      neck until he was dead, a man to the court known only as      John; and cited by rule served upon him to show cause by 11      o'clock A.M. of the next day, the eighth day of said March,      why his name should not be stricken from the roll of      attorneys and he prohibited from practicing in the United      States courts of said district.

'That at said time of return, said J. B. Wall appeared in     person, and by counsel, and moved that whereas said rule had      charged him with a criminal offence, indictable by the grand      jury of the courts of the state, the matter be continued      until after the meeting of such grand jury; and the matter      was held under advisement by the court and continued until      next day.

'That at the opening of the court the next day, before any     order had been made upon the pending motion, came said J. B.      Wall, and withdrew said motion for continuance, and filed answer      demurring to the right of the court to issue the rule served      upon him, because [stating the contents of Wall's answer,]      and demanded that proof be had of the matter charged.

'That thereupon Peter A. Williams, Esq., United States     marshal for said district, being duly sworn, testified as      follows: [Stating the testimony of Williams, as before      given.]

'Whereupon J. B. Wall, being himself present and stating that     he had no testimony to offer, and desiring to be heard by      counsel, was so heard, and the court took the matter under      consideration.

'Afterwards, to wit, on the tenth day of March aforesaid, the     matter having been fully and duly considered, it was ordered      that J. B. Wall be prohibited from practicing at the bar of      the Circuit or District Courts of this district until further      order therein.

'All of which matters are true, and as far as relates to the     action of the court therein shown and set forth in the      records of said court and the papers therein.

'And, further, answering, he says that J. B. Wall at no time     denied active participation in the hanging as charged, nor      answered the spirit and substance of said charge.

"That when the motion for continuance was withdrawn by him,     and the demand made that proof be made of the charge, upon      inquiry your respondent ascertained that both the sheriff and      mayor, who had alone opposed the action of the mob, and the      only parties present not active participants, were absent      from the city, and could not be summoned to testify without      unadvisable delay; of all of which said J. B. Wall had      knowledge.

"That on account of the excited state of feeling existing at     the time, the timidity of many, from the influential position      of some of those engaged in the hanging, and the sympathy of      others with the lynchers, it was not advisable to attempt to      compel any resident of said city of Tampa, who was found to      have personal knowledge of the matter, to testify against      said J. B. Wall.

"That said J. B. Wall had every opportunity to explain his     presence and action in the matter as proven, if innocent, but      made no attempt to do so.

"That the evidence, although of but a single witness, for     grounds already stated, was to your respondent positively      conclusive beyond a reasonable doubt that said J. B. Wall had      been guilty of active participation in a most immoral and      criminal act, and a leader in a most atrocious murder, in      defiance and contempt of all law and justice, and had thereby      shown himself unfitted to longer retain the position of attorney in any court over which your respondent      might have the honor to preside.

'Wherefore and upon which showing your respondent would most     humbly submit to your Honors that said order prohibiting said      J. B. Wall from practising as attorney should not be revoked      nor he restored to the rights and privileges of an attorney      of said courts.

"JAMES W. LOCKE,

"U.S. Dist. Judge, S. Dist. Fla.

"Key West, Florida, December 2, 1882."

It will be perceived that the rule to show cause, which was served upon the petitioner, contained a definite charge of a very heinous offence, and that an opportunity was given to him to meet it and to exonerate himself if he could do so. It would, undoubtedly, have been more regular to have required the charge to be made by affidavit, and to have had a copy thereof served (with the rule) upon the petitioner. But the circumstances of the case, as shown by the return of the judge, seem to us to have been sufficient to authorize the issuing of the rule without such an affidavit. The transaction in which the petitioner is charged with participating, was virtually in the presence of the court. It took place in open day, in front of the court-house, and during a temporary recess of the actual session of the court; and the awful result of the lawless demonstration was exhibited to the judge on his return to the court-room. Under the intense excitement which prevailed, it is not "wonderful" that no person could be found willing to make a voluntary charge against the petitioner or any one else; and yet, the fact that he was engaged as one of the perpetrators was so notorious, and was brought to the judge's knowledge by information so reliable and positive, that he justly felt it his duty to take official notice of it, and to give the petitioner an opportunity of repelling the charge. This was done is such a manner as not to deprive him of any substantial right. The charge was specific, due notice of it was given, a reasonable time was set for the hearing, and the petitioner was not required to criminate himself by answering under oath.

In Ex parte Steinman and Hensel, 95 Pa. 220, where the county court on its own motion had cited the parties before it for publishing a gross libel upon the court, and had struck their names from the roll, though, on appeal, the order was reversed on other grounds, as to the mode of initiating the proceedings, Chief Justice SHARSWOOD, delivering the opinion of the court, said: 'We entertain no doubt that a court has jurisdiction without any formal complaint or petition, upon its own motion, to strike the name of an attorney from the roll in a proper case, provided he has had reasonable notice, and been afforded an opportunity to be heard in his defence.'

In the case of Randall v. Brigham, 7 Wall. 523, 539, which was an action for damages brought by an attorney against a judge for striking his name from the roll unjustly and without authority, not having before him in making the order to show cause any charge of misconduct, except only a letter of a third person addressed to the grand jury; this court, speaking by Mr. Justice FIELD, said:

'But the claim of the plaintiff is not correct. The     information imparted by the letter was sufficient to put in      motion the authority of the court, and the notice to the      plaintiff was sufficient to bring him before it to explain      the transaction to which the letter referred. The informality     of the notice, or of the complaint by letter, did not touch      the question of jurisdiction. The plaintiff understood from     them the nature of the charge against him; and it is not      pretended that the investigation which followed was not      conducted with entire fairness. He was afforded ample     opportunity to explain the transaction and vindicate his      conduct.'

Looking at all the circumstances of the present case, we are not prepared to say that the course which was pursued rendered the proceedings void, as being coram non judice. And since they were not void, (though not strictly regular,) and since no substantial right of the petitioner was invaded, we do not think that the mere form of the proceeding requires us to interpose by the extraordinary remedy of mandamus.

The next question to be considered is, whether the facts charged against the petitioner constitute a legitimate ground for striking his name from the roll. Of this we think there can be no doubt. It is not contended but that, if properly proven, the facts charged are good cause for removal from the bar. A moment's consideration will be sufficient to demonstrate this.

It is laid down in all the books in which the subject is treated, that a court has power to exercise a summary jurisdiction over its attorneys to compel them to act honestly towards their clients, and to punish them by fine and imprisonment for misconduct and contempts, and, in gross cases of misconduct, to strike their names from the roll. If regularly convicted of a felony, an attorney will be struck off the roll as of course, whatever the felony may be, because he is rendered infamous. If convicted of a misdemeanor which imports fraud or dishonesty, the same course will be taken. He will also be struck off the roll for gross malpractice or dishonesty in his profession, or for conduct gravely affecting his professional character.

In Archb. Pr. (Ed. by Chitty,) p. 148, it is said: "The court will, in general, interfere in this summary way to strike an attorney off the roll, or otherwise punish him, for gross misconduct, not only in cases where the misconduct has arisen in the course of a suit, or other regular and ordinary business of an attorney, but where it has arisen in any other matter so connected with his professional character as to afford a fair presumption that he was employed in or intrusted with it in consequence of that character." And it is laid down by Tidd that "where an attorney has been fraudulently admitted, or convicted (after admission) of felony, or other offence which renders him unfit to be continued an attorney, or has knowingly suffered his name to be made use of by an unqualified person, or acted as agent for such person, or has signed a fictitious name to a demurrer, as and for the signature of a barrister, or otherwise grossly misbehaved himself, the court will order him to be struck off the roll." 1 Tidd, Pr. 89, (9th Ed.) Where an attorney was convicted of theft, and the crime was condoned by burning in the hand, he was nevertheless struck from the roll. "The question is," said Lord MANSFIELD, "whether, after the conduct of this man, it is proper that he should continue a member of a profession which should stand free from all suspicion. * *  * It is not by way of punishment; but the court in such cases exercise their discretion, whether a man whom they have formerly admitted is a proper person to be continued on the roll or not."

Now, what is the offence with which the petitioner stands charged? It is not a mere crime against the law; it is much more than that. It is the prostration of all law and government; a defiance of the laws; a resort to the methods of vengeance of those who recognize no law, no society, no government. Of all classes and professions, the lawyer is most sacredly bound to uphold the laws. He is their sworn servant; and for him, of all men in the world, to repudiate and override the laws, to trample them under foot, and to ignore the very bands of society, argues recreancy to his position and office, and sets a pernicious example to the insubordinate and dangerous elements of the body politic. It manifests a want of fidelity to the system of lawful government which he has sworn to uphold and preserve. Whatever excuse may ever exist for the execution of lynch law in savage or sparsely settled districts, in order to oppose the ruffian elements which the ordinary administration of law is powerless to control, it certainly has no excuse in a community where the laws are duly and regularly administered. But besides the character of the act itself, as denoting a gross want of fealty to the law and repudiation of legal government, the particular circumstances of place and time invest it with additional aggravations. The United States court was in session; this enormity was perpetrated at its door; the victim was hanged on a tree, with audacious effrontery, in the virtual presence of the court! No respect for the dignity of the government as represented by its judicial department was even affected; the judge of the court, in passing in and out of the place of justice, was insulted by the sight of the dangling corpse. What sentiments ought such a spectacle to arouse in the breast of any upright judge, when informed that one of the officers of his own court was a leader in the perpetration of such an outrage? We have no hesitation as to the character of the act being sufficient to authorize the action of the court.

A question of greater difficulty is raised as to the legality of proceeding in a summary way on a charge of this nature. It is strenuously contended that when a crime is charged against an attorney for which he may be indicted, and the truth of the charge is denied or not admitted by him, it cannot be made the ground of an application to strike his name from the roll until he has been regularly convicted by a jury in a criminal proceeding; or, at least, that this is true, when the act charged was not committed in his professional character. As, in urging this argument, much stress is laid upon the fact that the petitioner, by his answer, denied the charge contained in the rule to show cause, it is proper to notice the manner in which this denial was made. The charge, as we have seen, was specific and particular:

"That J.B. Wall, an attorney of this court, did, on the sixth     day of this present month, engage in and with an unlawful,      tumultuous, and riotous gathering, he advising and      encouraging thereto, take from the jail of Hillsborough      County, and hang by the neck until he was dead, one John,      otherwise unknown, thereby showing an utter disregard and      contempt for the law and its provisions," etc.

The denial of this charge was a mere negative pregnant, amounting only to a denial of the attending circumstances and legal consequences ascribed to the act. The respondent denied 'counseling, advising, encouraging, or assisting an unlawful, tumultuous, and riotous gathering or mob in taking one John from the jail of Hillsborough County, and causing his death by hanging, in contempt and defiance of the law.' He was not required to answer under oath, and did not do so. Yet, free from this restriction, he did not come out fully and fairly and deny that he was engaged in the transaction at all; but only that he did not engage in it with the attendant circumstances and legal consequences set out in the charge. Even the name of the victim is made a material part of the traverse. Upon such a special plea as this, we think, the court was justified in regarding the denial as unsatisfactory. It was really equivalent to an admission of the substantial matter of the charge. Nevertheless, the marshal of the court was called as a witness, and clearly proved the truth of the charge; and no evidence was offered in rebuttal. The case, as it stood before the court, was as clear of all doubt as if the petitioner had expressly admitted his participation in the transaction.

It is necessary, however, that we should examine the authorities on the question raised by the petitioner, as to the power of the court to proceed against him without a previous conviction upon an indictment. It has undoubtedly been held in some of the cases that where the offence is indictable, and the facts are not admitted, a regular conviction must be had before the court will exercise its summary jurisdiction to strike the name of the party off the roll. At first view this was supposed to be the purport of Lord DENMAN'S judgment in the anonymous case reported in 5 Barn. & Adol. 1088. That was a case of professional misconduct in pecuniary transactions. Lord DENMAN is reported as saying: "The facts stated amounted to an indictable offence. Is it not more satisfactory that the case should go to a trial? I have known applications of this kind, after conviction, upon charges involving professional misconduct; but we should be cautious of putting parties in a situation where, by answering, they might furnish a case against themselves, on an indictment to be afterwards preferred. On an application calling upon an attorney to answer the matters of an affidavit, it is not usual to grant the rule if an indictable offence is charged." And the Solicitor-General, Sir JOHN CAMPBELL, who made the application in that case, being requested to look at the authorities, afterwards stated that he could find no precedent for it. In that case, however, the rule applied for was one requiring the attorney to answer charges on oath. On a similar application in a subsequent case, charging perjury and fraud, (Anon. 3 Nev. & P. 389,) Lord DENMAN said: 'Would not an indictment for perjury lie upon these facts? We are not in the habit of interfering in such a case, unless there is something amounting to an admission on the part of the attorney, which would render the intervention of a jury unnecessary."

In another anonymous case in the Exchequer, (2 Dowl. Pr. 110,) where an attorney had been sued in an action at law for an aggravated libel, and a verdict had been rendered against him with only one shilling damages; on an application being then made to strike him off the roll, Lord LYNDHURST said: 'Have you any instance of such an application on a verdict for the same criminal act, but for which no criminal proceedings have been taken?' and intimated that if there was any such case, the rule would be granted, but added: 'Here there was conflicting evidence at the trial, and it is doubtful whether the publication was brought home to the defendant; and the jury seemed to have so considered it:' and the rule was refused.

But this matter was carefully reviewed by the Court of Exchequer in the subsequent case of Stephens v. Hill, 10 Mees. & W. 28, where motion was made against an attorney who had conspired with others to induce a witness for the opposite party to absent himself from a trial, giving him money, etc. It was objected that the application to strike from the roll could not be heard on these charges without a conviction, inasmuch as a conspiracy is an indictable offence. Lord ABINGER took a distinction between a rule to show cause why an attorney should not be struck off the roll, and a rule calling on him to answer the matters of an affidavit with a view to strike him off the roll. The latter course he conceded would be improper, if the offence was indictable, because it would compel the attorney to criminate himself; but not so the former, for he might clear himself without answering under oath; and that this was all that Lord DENMAN meant in the case before him. Lord ABINGER said that as long as he had known Westminister Hall he had never heard of such a rule as that an attorney might not be struck off the roll for misconduct in a cause merely because the offence imputed to him was of such a nature that he might have been indicted for it; but he said that in the case of applications calling upon an attorney to answer the matters of an affidavit, he had known Lord KENYON and Lord ELLENBOROUGH frequently say, you cannot have a rule for this purpose, because the misconduct you impute to the man is indictable; but you may have one to strike him off the roll. After noticing and explaining the language attributed to Lord DENMAN, as before stated, Lord ABINGER adds:

"If, indeed, a case should occur where an attorney has been     guilty of some professional misconduct for which the court,      by its summary jurisdiction, might compel him to do justice,      and at the same time has been guilty of something indictable      in itself, but not arising out of the cause, the court will      not inquire into that with a view of striking him off the      roll, but would leave the party aggrieved to his remedy by a      criminal prosecution."

This expression, about leaving the party aggrieved to his remedy by a criminal prosecution, is frequently found in the English cases, and has reference to the practice in that contry of regarding the party injured by the perpetration of a crime as the proper person to prosecute the offender; and one, indeed, upon whom a duty, in some sort, rested to institute such prosecution. The court would, therefore, hesitate to take any summary action against the offender which might remove the inducements the injured party would otherwise have for proceeding criminally against him, and thus interfere with the course of justice. In this country, the prosecution of criminal offences is generally committed to the charge of a public officer, and sufficient emolument is attached to the duty of prosecution to secure its faithful performance. The same reason, therefore, does not exist here, as in England, for leaving it to the injured party to prosecute for the criminal offence. So far as the offender himself is concerned, it is true, the reason is equally strong against compelling him to answer under oath charges preferred against him, and in favor of giving him a trial by jury in all cases of doubt or of conflicting evidence. That a reluctance to interfere with the incentive to prosecute criminally in these cases operated strongly upon the judicial mind in England, is manifest from the fact, that after a prosecution had been made, and the duty of the injured party had been performed, the courts never hesitated to strike the accused from the roll, if found guilty by a jury, even though judgment against him had been arrested, or reversed, or the offence had been pardoned or condoned; thus showing that it is not a technical conviction which is required, but a fair effort on the part of the prosecutor to bring the offender to justice; coupled also with the fact that a jury is the most suitable tribunal for passing upon a question of fact depending upon conflicting evidence.

Some expressions in the cases cited, including the remarks made by Lord ABINGER in Stephens v. Hill, seem to imply that the summary jurisdiction will not be exercised where the charges made against an attorney affect only his general character as such, and do not amount to malpractice in a particular cause. But subsequent decisions are to the effect that it is properly extended to cases affecting his general character also. Thus, in Re Blake, 3 El. & El. 34, an attorney was struck from the roll for having improperly collected the money due on a mortgage which he had pledged as collateral security for a loan, and which he borrowed from the pledgee on some false pretence. On a rule to show cause and reference to the master, the facts were found to be truly charged; and, although he was not acting as attorney in the matter, the court suspended his certificate for two years, on the general ground (as stated by Lord Chief Justice COCKBURN) that where an attorney is shown to have been guilty of gross fraud, although not such as to render him liable to an indictment, nor committed by him while the relation of attorney and client was subsisting between him and the person defrauded, or in his character as an attorney, the court will not allow suitors to be exposed to gross fraud and dishonesty at the hands of one of its officers. And in a subsequent case, (Re Hill, L. R. 3 Q. B. 543,) where an attorney acting, not as such, but as clerk to a firm of attorneys, appropriated to his own use money which came to his hands on the sale of an estate; on a motion to strike his name from the roll, it was objected that, as his offence was indictable, a conviction was necessary before this proceeding could be had. Lord Chief Justice COCKBURN said:

"No case has, so far as I am aware, come before the court     under the precise circumstances under which this case      presents itself, namely, of an act of delinquency committed      by an attorney's clerk, who at the same time is an attorney,      though at that time not acting as such; but still I think, on      every principle of justice, we ought not the less to      entertain the application. *  *  * If the delinquent had been      proceeded against criminally upon the facts admitted by him,      it is plain that he would have been convicted of      embezzlement; and, upon that conviction being brought before      us, we should have been bound to act. If there had been a      conflict of evidence upon the affidavits, that might be a      very sufficient reason why the court should not interfere      until the conviction had taken place; but here we have the      person against whom the application is made admitting the      facts.'

Mr. Justice BLACKBURN, in the same case, said:

"I think when we are called upon, in the exercise of our     equitable jurisdiction, to order an attorney to perform a contract, to      pay money, or to fulfil an undertaking, there we have      jurisdiction only if the undertaking or the contract is made      in his character of attorney, or so connected with his      character of attorney as to bring it within the power of the      court to require that their officer shall behave well as an      officer. But where there is a matter which would subject the      person in question to a criminal proceeding, in my opinion, a      different principle must be applied. We are to see that the      officers of the court are proper persons to be trusted by the      court with regard to the interests of suitors, and we are to      look to the character and position of the persons, and judge      of the acts committed by them, upon the same principle as if      we were considering whether or not a person is fit to become      an attorney. * *  * It should be considered whether the      particular wrong done is connected with the character of an      attorney. The offence morally may not be greater, but still,     if done in the character of an attorney, it is more dangerous      to suitors, and should be more severely marked. I agree that     where it is denied that a criminal offence has been      committed, the court ought not to decide on affidavits a      question which ought to be tried before a jury.'

This case is important as showing the latest consideration of the question by the English courts, and by the most eminent judges of those courts. The rule to be deduced from all the English authorities seems to be this: that an attorney will be struck off the roll if convicted of felony, or if convicted of a misdemeanor involving want of integrity, even though the judgment be arrested or reversed for error; and also (without a previous conviction) if he is guilty of gross misconduct in his profession, or of acts which, though not done in his professional capacity, gravely affect his character as an attorney: but in the latter case, if the acts charged are indictable, and are fairly denied, the court will not proceed against him until he has been convicted by a jury; and will in no case compel him to answer under oath to a charge for which he may be indicted. This rule has, in the main, been adopted by the courts of this country; though special proceedings are provided for by statute in some of the States, requiring a formal information under oath to be filed, with regular proceedings and a trial by jury. The cases are quite numerous in which attorneys, for malpractice or other misconduct in their official character, and for other acts which showed them to be unfit persons to practise as attorneys, have been struck from the roll upon a summary proceeding without any previous conviction of a criminal charge. See, amongst others, the Case of Niven, 1 Wheeler, Crim. Cas. 337, note; Ex parte Levi S. Burr, Id. 503; S.C.. 2 Cranch, C. C. 379; In re Peterson, 3 Paige, 510; Ex parte Brown, 1 How. (Miss.) 303; In re Mills, 1 Mich. 392; Ex parte Secombe, 19 How. 9; In re John Percy, 36 N. Y. 651; Dickens's Case, 67 Pa. 169; In re Hirst and Ingersoll, 9 Phila. 216; Baker v. Com. 10 Bush, 592; Penobscot Bar v. Kimball, 64 Me. 140; Matter of George W. Wool, 36 Mich. 299; People v. Goodrich, 79 Ill. 148; Delano's Case, 58 N. H. 5; Ex parte Walls, 64 Ind. 461; Matter of Eldridge, 82 N. Y. 161.

But where the acts charged against an attorney are not done in his official character, and are indictable, and not confessed, there has been a diversity of practice on the subject: in some cases it being laid down that there must be a regular indictment and conviction before the court will proceed to strike him from the roll; in others, such previous conviction being deemed unnecessary. The former view is taken, or seems to be assumed, in the cases we will now cite.

In an anonymous case, reported in 2 Halst. 162, (1824,) where the charge was larceny, the court refused the rule to strike off the roll, because the offence was indictable, and there had been no conviction.

In State v. Foreman, 3 Mo. 412, the court refused to disbar an attorney for passing counterfeit money, knowing it to be counterfeit, and escaping from prison before being convicted therefor; the ground of refusal being that it was not a case within the Missouri statute, which required a conviction. Of course, being governed by the statute, this case is not in point.

In Fisher's Case, 6 Leigh, 619, (1835,) Fisher commented to a jury in a manner which the judge deemed grossly unprofessional and disrespectful to the court; and on the next day, after reciting the circumstances, made an order suspending his license for 12 months. This order was reversed by the Court of Appeals, on the ground that the party proceeded against must be regularly prosecuted by indictment or information, and found guilty by a jury. But as this decision was based upon a statute of Virginia, prescribing the course of proceeding, it is no authority on the point in question.

In The State v. Chapman, 11 Ohio, 430, an attorney had been charged with theft, and brought an act of slander therefor; the defendant pleaded the truth in justification, and obtained a verdict establishing his defence. Upon this, a rule was granted against the attorney to show cause why he should not be struck off the roll. He proved explanatory circumstances, and the court held that the verdict in the civil action was not sufficient to establish the charge of larceny, and discharged the rule.

In Beene v. The State, 22 Ark. 149, where the defendant had made an unwarrantable and atrocious personal attack upon the Circuit Judge for his action as judge, on application of the county bar to strike his name from the roll the rule was granted; but the Supreme Court of Arkansas reversed the order on the ground that the proceedings were irregular, and not in pursuance of the statute, which required regular charges to be exhibited, verified by affidavit, and a time fixed for hearing. The court also held that where the offence is indictable, there must be a regular conviction before the party can be struck off the roll; if not indictable, he was entitled to be tried by the jury. This case seems to have been decided upon the statutes of Arkansas.

In Ex parte Steinman and, 95 Pa. 220, the respondents published a libel against the judges of the Quarter Sessions of Lancaster County, Pennsylvania, accusing them of political motives in allowing a defendant to be acquitted. On being cited to show cause why they should not be struck off the roll, they took the ground, amongst other things, that they were charged with an indictable offence, and were entitled to a trial by jury. The court having made the rule absolute, they appealed, and the Supreme Court of Pennsylvania reversed the order. Chief Justice SHARSWOOD, in delivering the opinion of the court, said:

'No question can be made of the power of a court to strike a     member of the bar from the roll for official misconduct. * *      * We do not mean to say that there may not be cases of      misconduct not strictly professional, which would clearly      show a person not to be fit to be an attorney, nor fit to      associate with honest men. Thus, if he was proved to be a     thief, a forger, a perjurer, or guilty of other offences of      the crimen falsi. But no one, we suppose, will contend that     for such an offence he can be summarily convicted and      disbarred by the court without a formal indictment, trial,      and conviction by a jury, or upon confession in open court.'

Reference was then made to a provision in the Bill of Rights of the Pennsylvania constitution of 1874, that 'no conviction shall be had in any prosecution for the publication of papers relating to the official conduct of officers, etc., where the fact that such publication was not maliciously or negligently made, shall be established to the satisfaction of the jury;' and it was held that this provision, at all events, entitled the parties to a jury trial.

The cases now cited do undoubtedly hold that where the offence charged is indictable and is committed outside of the attorney's professional employment or character, and is denied by him, a conviction by a jury should be had before the court will take action for striking his name from the roll.

There are other cases, however, in which it is held that a previous conviction is not necessary.

In Ex parte Burr, 1 Wheeler, Crim. Cas. 503, (S.C.. 2 Cranch, C. C. 379,) the Circuit Court of the District of Columbia struck Burr off the roll on charges made by Mr. Key, of various instances of malpractice, and also of dishonest conduct, in procuring deeds of property from persons in distress, etc. Burr objected, among other things, that he was entitled to a trial by jury. The court examined witnesses, who were cross-examined by the defendant, and Chief Justice CRANCH delivered an elaborate opinion, concluding by making the rule absolute for disbarring the accused, holding that proceedings by attachment, as for contempt and to purify the bar of unworthy members, and not within those provisions of the constitution which guaranty a trial by jury. This case was brought to the attention of this court on an application for a mandamus to compel the Circuit Court to restore Burr to the bar, and the writ was refused. The court, by Chief Justice MARSHALL, expressed a disinclination to interpose unless the conduct of the court below was irregular or flagrantly improper; as where it had exceeded its power or decided erroneously on the testimony; and upon the testimony, it would be unwilling to interpose where any doubt existed.

Fields v. State, Mart. & Y. 168, was the case of a constable, (but placed upon the same ground as that of attorneys,) and the charge was extortion. The supreme court of Tennessee, by CATRON, J., held that a previous conviction was not necessary to enable the court below to suspend from office; that the constitutional privilege of trial by jury for crime does not apply to prevent courts from punishing its officers for contempt, and to regulate them or remove them in particular cases; that removal from office for an indictable offence is no bar to an indictment; that it is a proceeding in its nature civil, and collateral to any criminal prosecution by indictment; and that even if acquitted by a jury the party could be removed if the court discovered from the facts proved on the trial that he was guilty of corrupt practices.

In the subsequent case of Smith v. The State, 1 Yerg. 228, the charge was that the attorney had accepted a challenge in Tennessee to fight a duel, and had fought with and killed his antagonist in Kentucky, where an indictment had been found against him. He demurred to the charge, and judgment was given against him on the demurrer, that his name be struck from the roll. The Supreme Court of Tennessee held the charge to be sufficient; but that, instead of receiving a demurrer, the Circuit Court should have proceeded to take the proofs to ascertain the truth of the charge. The court, by Justice CATRON, said:

"The principle is almost universal in all governments, that     the power which confers an office has also the right to      remove the officer for good cause; the county court;      constables, etc.; the senate; officers elected by the      legislature and people; in all these cases the tribunal      removing is of necessity the judge of the law and fact; to      ascertain which, every species of evidence can be heard, legal in its      character, according to common-law rules, and consistent with      our Constitution and laws. This court, the Circuit Court, or      the county court, on a motion to strike an attorney from the      rolls, has the same right, growing out of a similar      necessity, to examine evidence of the facts, that the senate      of the State has when trying an impeachment. *  *  * The      attorney may answer the charges in writing if he chooses,      when evidence will be heard to support or to resist them; or,      if he does not answer, still the charges must be proved, or      confessed by the defendant, before he can be stricken out of      the roll.'

The cause was thereupon remanded to the Circuit Court, to hear the proofs; and it was declared that if the facts were proved as charged, it would be amply sufficient to authorize that court to strike the defendant from the roll, even though there had been no law in Tennessee for the suppression of dueling.

Here, it will be observed, there was no conviction; nothing but an indictment found in another State; and yet the Supreme Court of Tennessee held that the court below might lawfully proceed with the case.

In Perry v. The State, 3 Greene, 550, there were charges of misconduct as an attorney, and of perjury. The charge was dismissed for want of certainty; but as to the charge of false swearing, which it was contended could not be set up without a previous conviction, the court said that a conviction was not necessary.

In Re Percy, 36 N. Y. 651, an attorney was struck off the roll on the ground that his general reputation was bad; that he had been several times indicted for perjury, one or two of the indictments being still pending, and that he was a common mover and maintainer of suits on slight and frivolous pretexts. The order was affirmed on appeal. Some of the offences charged in this case were of an indictable character, and one point raised on the appeal was, that the court has no right to call upon an attorney to answer such charges, because it compels him to give evidence against himself. But to this the court answered that he is not compelled to be sworn, but may introduce evidence tending to show his innocence.

In Penobscot Bar v. Kimball, 64 Me. 140, an attorney was accused of misconduct, both in his professional character and otherwise, obtaining money by false pretences, and the like. He had also, many years before, been convicted of forgery of a deposition used in court, but had been pardoned. It was held that he was an unfit person to be an attorney, and was struck from the roll. In this case indictable offences, of which the party had not been regularly convicted, were embraced in the charges against him.

In Delano's Case, 58 N. H. 5, an attorney, being collector of taxes for the town, appropriated the money to his own use, intending to return it; but failing to do so, he was struck from the roll. The offence in this case was clearly of an indictable character, and no conviction had been obtained against him in a criminal proceeding.

In the Matter of George W. Wool, 36 Mich. 299, a bill in equity having been filed against an attorney charging him with procuring a deed to himself by forgery or substitution of a paper, and a decree having been made against him, the court entered an order to show cause why he should not be struck from the roll, allowing him to present affidavits in exculpation; but no sufficient cause being shown against the rule, it was made absolute. Here was an indictable offence, and no previous conviction; yet the court, upon the evidence it had before it, struck the party's name from the roll.

In Ex parte Walls, 64 Ind. 461, the charge was of forging an affidavit to obtain a change of venue in a cause pending in the court. Special proceedings were had under the statute of Indiana, and the party was struck off the roll. On error brought, it was objected that he should have been first regularly convicted of the crime by a prosecution on the part of the state. The court held that this is only true when the object is to inflict punishment, but not when it is to disbar the party, any more than when forgery is proved as a defence in a civil suit; that whilst a conviction would have authorized a disbarment, the proceeding to disbar might precede the criminal prosecution. This case, it is true, was for malpractice as an attorney, and therefore may not be strictly in point; but the ground taken by the court was general, and applicable to all cases for which an attorney may be disbarred.

In the recent case of People v. Appleton, 15 Chi. Leg. N. 241, where the charge against an attorney was for disposing of property held by him as a trustee, and appropriating the proceeds to his own use, but was not made out to the satisfaction of the court; it was observed, however, that whilst as a general rule, if an attorney is guilty of misconduct in his private character, and not in his official character as attorney, relief can only be obtained by a prosecution in a proper court, at the suit of the party injured, yet that 'it is not to be held that there are no exceptions; that there are not cases in which an attorney's misconduct in his private capacity merely, may be of so gross a character that the court will exercise the power of disbarment. There is too much of authority to the contrary to say that.'

From this review of the authorities in this country, it is apparent, that whilst it may be the general rule that a previous conviction should be had before striking an attorney off the roll for an indictable offence, committed by him when not acting in his character of an attorney, yet that the rule is not an inflexible one. Cases may occur in which such a requirement would result in allowing persons to practise as attorneys, who ought, on every ground of propriety and respect for the administration of the law, to be excluded from such practice. A criminal prosecution may fail by the absence of a witness, or by reason of a flaw in the indictment, or some irregularity in the proceedings; and, in such cases, even in England, the proceeding to strike from the roll may be had. But other causes may operate to shield a gross offender from a conviction of crime, however clear and notorious his guilt may be,-a prevailing popular excitement; powerful influences brought to bear on the public mind, or on the mind of the jury; and many other causes which might be suggested; and yet, all the time, the offender may be so covered with guilt, perhaps glorying in it, that it would be a disgrace to the court to be obliged to receive him as one of its officers, clothed with all the prestige of its confidence and authority. It seems to us that the circumstances of the case, and not any iron rule on the subject, must determine whether, and when, it is proper to dispense with a preliminary conviction. If, as Lord Chief Justice COCKBURN said, the evidence is conflicting, and any doubt of the party's guilt exists, no court would assume to proceed summarily, but would leave the case to be determined by a jury. But where the case is clear, and the denial is evasive, there is no fixed rule of law to prevent the court from exercising its authority.

The provisions of the Constitution, which declare that no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, and that the trial of all crimes, except in cases of impeachment, shall be by jury, have no relation to the subject in hand. As held by the Supreme Court of Tennessee in Fields v. The State, (and the same view is expressed in other cases,) the constitutional privilege of trial by jury for crimes does not apply to prevent the courts from punishing its officers for contempt, or from removing them in proper cases. Removal from office for an indictable offence is no bar to an indictment. The proceeding is in its nature civil, and collateral to any criminal prosecution by indictment. The proceeding is not for the purpose of punishment, but for the purpose of preserving the courts of justice from the official ministration of persons unfit to practise in them. Undoubtedly, the power is one that ought always to be exercised with great caution; and ought never to be exercised except in clear cases of misconduct, which affect the standing and character of the party as an attorney. But when such a case is shown to exist, the courts ought not to hesitate, from sympathy for the individual, to protect themselves from scandal and contempt, and the public from prejudice, by removing grossly improper persons from participation in the administration of the laws. The power to do this is a rightful one; and, when exercised in proper cases, is no violation of any constitutional provision.

It is contended, indeed, that a summary proceeding against an attorney to exclude him from the practice of his profession on account of acts for which he may be indicted and tried by a jury, is in violation of the [[United States Bill of Rights|Fifth Amendment]] of the Constitution, which forbids the depriving of any person of life, liberty, or property without due process of law. But the action of the court in cases within its jurisdiction is due process of law. It is a regular and lawful method of proceeding, practised from time immemorial. Conceding that an attorney's calling or profession is his property, within the true sense and meaning of the Constitution, it is certain that in many cases, at least, he may be excluded from the pursuit of it by the summary action of the court of which he is an attorney. The extent of the jurisdiction is a subject of fair judicial consideration. That it embraces many cases in which the offence is indictable is established by an overwhelming weight of authority. This being so, the question whether a particular class of cases of misconduct is within its scope, cannot involve any constitutional principle.

It is a mistaken idea that due process of law requires a plenary suit and a trial by jury, in all cases where property or personal rights are involved. The important right of personal liberty is generally determined by a single judge, on a writ of habeas corpus, using affidavits or depositions for proofs, where facts are to be established. Assessments for damages and benefits occasioned by public improvements are usually made by commissioners in a summary way. Conflicting claims of creditors, amounting to thousands of dollars, are often settled by the courts on affidavits or depositions alone. And the courts of chancery, bankruptcy, probate, and admiralty administer immense fields of jurisdiction without trial by jury. In all cases, that kind of procedure is due process of law which is suitable and proper to the nature of the case, and sanctioned by the established customs and usages of the courts. "Perhaps no definition," says Judge COOLEY, "is more often quoted than that given by Mr. WEBSTER in the Dartmouth College Case: 'By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society.' " Cooley, Const. Lim. 353.

The question, what constitutes due process of law within the meaning of the Constitution, was much considered by this court in the case of Davidson v. New Orleans, 96 U.S. 97; and Mr. Justice MILLER, speaking for the court, said: "It is not possible to hold that a party has, without due process of law, been deprived of his property, when, as regards the issues affecting it, he has, by the laws of the State a fair trial in a court of justice, according to the modes of proceeding applicable to such a case." And, referring to the case of Murray's Lessee v. ''Hoboken Land & Imp. Co.'', 18 How. 272, he said: "An exhaustive judicial inquiry into the meaning of the words 'due process of law,' as found in the [[United States Bill of Rights|Fifth Amendment]], resulted in the unanimous decision of this court, that they do not necessarily imply a regular proceeding in a court of justice, or after the manner of such courts."

We have seen that, in the present case, due notice was given to the petitioner, and a trial and hearing was had before the court, in the manner in which proceedings against attorneys, when the question is whether they should be struck off the roll, are always conducted.

We think that the court below did not exceed its powers in taking cognizance of the case in a summary way, and that no such irregularity occurred in the proceeding as to require this court to interpose by the writ of mandamus. The writ of mandamus is, therefore, refused and the rule to show cause is discharged.

title: Ex parte Wall/Opinion of the Court


text:
Page:Dictionary of National Biography volume 60.djvu/136

 Weddell had no previous experience as a sealer, it appears to have been sufficiently successful to enable him to buy a share in the brig, and to be entrusted with the command for a second voyage, in company with the cutter Beaufoy of London, of 65 tons, also put under his orders. With these two small vessels, which sailed from the Downs on 17 Sept. 1822, Weddell, in his search for fur-seals, examined the Falkland Islands, Cape Horn, and its neighbourhood, South Shetlands, South Georgia, the South Orkneys, which he had discovered in his former voyage; and finding the sea open, pushed on to the southward as far as latitude 74° 15′, which he reached on 20 Feb. 1823. The sea was still 'perfectly clear of field ice;' but the wind was blowing fresh from south, and the lateness of the season compelled him to take advantage of it for returning. Of course, too, the fact that the primary object of the voyage was trade, not discovery, had an important weight. Weddell returned to England in July 1824, and in the following year published 'A Voyage towards the South Pole performed in the years 1822–24' (1825, 8vo; 2nd ed. 1827), to which, in the second edition he added some 'Observations on the probability of reaching the South Pole,' and 'An Account of a Second Voyage performed by the Beaufoy to the same seas.' The work is interesting not only as the record of a voyage to what was then and for long after the highest southern latitude reached, but also as giving a survey of the South Shetlands, where many of the names—as 'Boyd's Straits,' 'Duff's Straits,' 'Sartorius Island'—recall the names of the captains with whom Weddell had served.

Of the later years of Weddell's life there is no clear account. It appears from the letter of Sartorius already quoted that he was abroad from 1831 to 1833, possibly in command of a merchant ship. His trading ventures had not been successful, and he is said to have been in very straitened circumstances. He died, unmarried, in Norfolk Street, Strand, on 9 Sept. 1834.

A miniature is in the possession of the Royal Scottish Geographical Society; it was presented by Mr. John Allen Brown, whose father, John Brown, author of 'The North-West Passage and the Search for Sir John Franklin,' 1858, presented, in 1839, a life-size copy of it to the Royal Geographical Society.

 WEDDELL, JOHN (1583–1642), sea-captain, born in 1583, was, in 1617, master's mate of the East India Company's ship Dragon; and in December was promoted to command the Lion. In April 1621 he sailed from England as captain of the Jonas, with three other ships under his orders. At the Cape of Good Hope he was joined by two others, which he also took under his command and went on to Surat. Thence he was sent by the company's agent to Gombroon, where the shah called on the English to assist him against the Portuguese. The English were, or pretended to be, unwilling; but on the shah insisting, with a threat that he would treat them as enemies and sack their factory, they yielded, and the more readily as they learned that the Portuguese ships at Ormuz were intended to act against the English. The ships under Weddell were accordingly sent to co-operate with the Persians, and after taking possession of the island of Kishm, attacked Ormuz, where they landed on 9 Feb. 1622. The Persians were numerous but inefficient, and the brunt of the work fell on the English, who blockaded the place by sea, and on shore acted as engineers and artillerymen. After holding out bravely for ten weeks, the Portuguese surrendered expressly to the English, and—to the number of 2,500—were sent to Goa. The town was sacked, but most of the booty fell to the Persians; the English share of the plunder was put on board the Whale, which, with her precious cargo, was utterly lost on the bar outside Surat; and thus, in direct gain, neither the company nor the company's servants were much the richer for the capture. This was necessarily inquired into when the Duke of Buckingham claimed a tenth of the spoil, as lord high admiral, and on 6 Aug. 1623 the governor reported to the court of directors that he had 'received from Weddell good satisfaction' as to the matter; that they had been obliged to aid the Persians, for otherwise 'the company's goods and servants ashore had been in danger;' and that they had 'mollified many rigorous courses intended against the Portugals, and lent them their own ships to carry them to a place of safety.' On 4 Dec. 1623 Weddell, then described as 'of Ratcliffe, in Middlesex, gent., aged 40 or thereabouts,' was examined before the judge of the high court of admiralty, and gave a detailed account of his voyage and the plunder.

With the further dispute between Buckingham and the company he was not concerned, and on 28 March 1624 he sailed for India in command of the Royal James. He was again commander of the company's fleet


text: Talk:Ex parte Wall/Opinion of the Court

title: Talk:Ex parte Wall/Opinion of the Court


text:
Roth v. Ehman

C. M. Harris, for plaintiff in error.

Julius Rosenthal and A. M. Pence, for defendant in error.

WAITE, C. J.

title: Roth v. Ehman


text: Talk:Roth v. Ehman

title: Talk:Roth v. Ehman


text:
Roth v. Ehman/Opinion of the Court

The only question is this case controverted below was whether Madelaine Roth, the plaintiff in error, was the widow of John George Roth, deceased, and that depended entirely on the validity of the decree of the royal matrimonial court of Elwangen, in the kingdom of Wurtemburg, annulling the marriage of the parties. The supreme court of Illinois decided in favor of the validity of the Wurtemburg decree, and consequently that the plaintiff in error was not the widow of the decedent and not entitled to dower in his estate, or to inheritance under the laws of Illinois. This presents no question of which we can take cognizance under section 709 of the Revised Statutes. No right, title, privilege, or immunity which could be claimed under the authority of the United States was involved, and the validity of no treaty or statute of, or any authority exercised under, the United States was drawn in question. Neither was there any statute or authority of the state relied on which was in conflict with the constitution, treaties, or laws of the United States.

The motion to dismiss for want of jurisdiction is granted.

title: Roth v. Ehman/Opinion of the Court


text: Talk:Roth v. Ehman/Opinion of the Court

title: Talk:Roth v. Ehman/Opinion of the Court


text:
United States v. Phelps (107 U.S. 320)

[Syllabus from page 320 intentionally omitted]

[Statement of Case from pages 320-321 intentionally omitted]

Asst. Atty. Gen. Maury, for plaintiff in error.

[Argument of Counsel from 321-322 intentionally omitted]

Charles M. Da Costa, for defendants in error.

WAITE, C. J.

title: United States v. Phelps (107 U.S. 320)


text: Talk:United States v. Phelps (107 U.S. 320)


text:
United States v. Phelps (107 U.S. 320)/Opinion of the Court

tion 2928 of the Revised Statutes, a re-enactment of section 21 of the act of March 1, 1823, c. 21, relates alone to merchandise taken from a wreck, and does not in any manner affect the proceedings under section 2927, a re-enactment of section 52 of the act of March 2, 1799, c. 22, to obtain an appraisement for an abatement of duties on account of damages to goods during a voyage. What was said in Shelton v. The Collector, 5 Wall. 118, to the contrary of this is disapproved. The subject is so fully and carefully considered in the opinion of the court below that we deem it unnecessary to do more than to refer to the report of the case in 17 Blatchf. 312. The judgment is affirmed.


text: Talk:United States v. Phelps (107 U.S. 320)/Opinion of the Court


text:
Tredway v. Sanger

[Syllabus from page 323 intentionally omitted]

[Statement of Case from pages 323-324 intentionally omitted]

A. Chester, for appellants.

Henry Beard and C. H. Armes, for appellee.

WAITE, C. J.

title: Tredway v. Sanger


text: Talk:Tredway v. Sanger

title: Talk:Tredway v. Sanger


text:
Tredway v. Sanger/Opinion of the Court

There is but a single question presented by this appeal, to-wit, whether, if a promissory note, negotiable by the law-merchant, is made by a citizen of one state to a citizen of the same state, and secured by a mortgage from the maker to the payee, an indorsee of the note can, since the act of March 3, 1875, c. 137, (1 Supp. Rev. St. 173,) sue in the courts of the United States to foreclose the mortgage, and obtain a sale of the mortgaged property.

It was held in Sheldon v. Sill, 8 How. 441, that such a suit could not be maintained under the eleventh section of the judiciary act of 1789, because in equity the mortgage was but an incident of the debt, and as the indorsee could not sue on the note, he could not sue to enforce the mortgage. The language of Mr. Justice GRIER, speaking for the court in that case, is this, (p. 450:) 'The complainant in this case is the purchaser and assignee of a sum of money, a debt, a chose in action, not of a tract of land. He seeks to recover by this action a debt assigned to him. He is, therefore, the 'assignee of a chose in action,' within the letter and spirit of the act of congress under consideration, and cannot support this action in the circuit court of the United States, where his assignor could not.' This clearly implies that if a suit could be brought on the note, it could for the foreclosure of the mortgage, should there be no other objection to the jurisdiction than the citizenship of the payee and maker.

In the judiciary act of 1789 it was expressly provided that the circuit courts could not take cognizance of a suit to recover the contents of any promissory note or other chose in action in favor of an assignee, unless a suit might have been prosecuted in such court to recover the contents, if no assignment had been made, except in cases of foreign bills of exchange. The act of 1875, however, removes this restriction in suits on 'promissory notes negotiable by the law-merchant;' and now the jurisdiction in such suits is made to depend on the citizenship of the parties as in other cases.

Since, therefore, the indorsee could have sued in the circuit court on the note now in question, it follows that, as there is no objection to the jurisdiction other than the citizenship of the original payee, the suit to foreclose the mortgage was properly brought. The decree is affirmed.

title: Tredway v. Sanger/Opinion of the Court


text: Talk:Tredway v. Sanger/Opinion of the Court


text:
Standard Oil Company v. Van Etten

D. M. Dickinson and L. T. Griffin, for plaintiff in error.

W. H. Smith, Harrison Greer, and M. E. Crofoot, for defendant in error.

MATTHEWS, J.

title: Standard Oil Company v. Van Etten


text: Talk:Standard Oil Company v. Van Etten

title: Talk:Standard Oil Company v. Van Etten