text:
Doe v. Hyde/Opinion of the Court

This is an appeal by Bartlett Doe, the plaintiff in a suit in equity, brought in the district court of the United States for the district of California, from a decree of the circuit court for that district, affirming the decree of the district court, dismissing the bill on demurrer. The defendant is Henry C. Hyde, assignee in bankruptcy of the City Bank of Savings, Loan, and Discount, a California corporation, which was adjudicated a bankrupt by the district court in December, 1870. The case made by the bill is this: In December, 1869, Doe lent to the bank $10,000, on its promissory note, at two years, secured by the assignment of six promissory notes and six accompanying mortgages of real estate, made by other parties, amounting to $20,550. By an instrument executed by the parties at the time, it was agreed that the bank should be at liberty to substitute other securities of equal value with any of the assigned notes and mortgages in their place, at any time before the maturing of the $10,000 note. In April, 1870, four of the six collateral notes and mortgages, amounting to $10,550, were, by consent, given up, and three other promissory notes and three like mortgages, made by other parties, amounting to $3,900, were substituted. In February, 1871, the assignee in bankruptcy presented to the district court a petition, alleging that Doe had unlawfully possessed himself of the five notes and five mortgages, which he then held, amounting to $13,900, and praying that he be cited to show cause why he should not be ordered to deliver them up to the assignee. After Doe had been so cited, the assignee demanded from him the delivery of the three notes and the three mortgages, so substituted in April, 1870, and Doe, 'believing him to be entitled to the custody thereof, delivered the same to him.' Before the assignee collected any moneys on them, Doe appeared to the petition, and in July, 1871, filed an answer, setting forth the indebtedness of the bank to him, and how it was secured, and the facts attending the substitution of securities, before mentioned, and averring that he was entitled to the possession of those which he had so delivered to the assignee, and to the moneys collected or which might be collected on them.

In November, 1872, the assignee filed a bill in equity, in the district court, against Doe, to obtain a decree for the delivery up of the two remaining notes and mortgages, amounting to $10,000, on the ground that the bank had no right to transfer them to Doe. Doe answered the bill, setting forth the transactions between the bank and himself respecting the loan and the securities transferred for securing it, and particularly the facts attending such substitution of securities; and averring that the assignee had collected the money due on the securities so delivered to him, and that he (Doe) was entitled to have them applied on the debt of the bank to him. In 1876 an interlocutory decree was made in that suit, to the effect that the assignee was entitled only to the surplus which should remain after applying the two notes and the two mortgages to the payment of the $10,000 note, of December, 1869, and that an accounting should be had as to the amounts severally due on that note, and on those securities. The accounting was had, and on January 29, 1877, the district court decreed that on January 1, 1877, there was a balance due to Doe of $7,096.82, after applying the securities retained by him. The assignee appealed to the circuit court, but the appeal was dismissed, for want of prosecution, before July 2, 1877. The amount of the deficiency remains due to Doe. The assignee collected the three notes and three mortgages which Doe delivered to him, collecting on one, June 19, 1872, $1,301.07; on another, May 19, 1875, $500; and on the third, June 19, 1872, $293.80,-the assignee giving the debtor an acquittance of the remainder. After the decree was rendered in the equity suit begun in November, 1872, and after the appeal therefrom was dismissed, and after Doe had ascertained it would be necessary to resort to the three notes and three mortgages he had delivered to the assignee, for the payment of the amount due to him from the bank, he demanded from the assignee the delivery of those securities, or the payment of the moneys thereby secured, which the assignee refused.

The bill in the present suit was filed February 25, 1879. Its prayer is for a decree that Doe is the beneficial owner of the securities which he delivered to the assignee, and of the moneys represented by them, and is entitled to have them applied on the indebtedness of the bank to him, and that the assignee pay over the proceeds, with interest, to Doe. The demurrer sets forth various causes of demurrer, and, among them, that eight years had elapsed, before the bill was filed, after Doe delive ed to the assignee the securities in question, and that any right of action to recover them or their proceeds was barred by section 2 of the bankruptcy act of March 2, 1867, (14 St. 518,) and by section 5057 of the Revised Statutes of the United States. The limitation referred to is that no suit at law or in equity shall in any case be maintainable by or against an assignee in bankruptcy, or by or against any person claiming an adverse interest touching any property, or rights of property, of the bankrupt, transferable to or vested in the assignee, in any court whatsoever, unless the same be brought within two years from the time the cause of action accrued, for or against the assignee.

The contention of the appellant is that the necessity for resorting to the securities which were delivered to the assignee was not determined until the decree of the district court, ascertaining the amount of the deficiency, became final by the dismissal of the appeal to the circuit court; and that the cause of action did not accrue until that time, which was within two years before the filing of this bill. It does not distinctly appear when the appeal was taken, or when it was dismissed, except that those events occurred between January 29, 1877, and July 2, 1877. But this is unimportant, because it is quite clear, on the averments of the bill, that this suit was barred.

In the proceeding instituted in the district court by the assignee, in February, 1871, the petition alleged that Doe had unlawfully possessed himself of all the collateral notes and mortgages, five of each, which he then held, and prayed for an order that he deliver all of them up to the assignee. The bill in this suit avers that after Doe had been cited to appear to the petition, the assignee applied to him for, and demanded the delivery to him, as assignee, of, the three notes and three mortgages in question, and that Doe, 'believing him to be entitled to the custody thereof, delivered the same to him.' As the bill alleges that the answer of Doe to the petition was filed before the assignee collected any of the moneys on those securities, it must be inferred that that answer was filed after the securities were delivered by Doe. Nothing further is alleged to have been done on the petition. three notes and the three mortgages selected from the whole number, though the petition covered all, having been delivered to the assignee, he allowed the matter to rest from July, 1871, till November, 1872, when he brought the equity suit in respect only of the two notes and two mortgages which had not been delivered to him. The averment of the bill in this suit is that, on a demand by the assignee on Doe for the delivery to him of the three notes and three mortgages, Doe delivered them to him. It is not averred that the delivery was accompanied by any express qualification or condition, or any agreement or arrangement or reservation made between the parties. The delivery followed the claim which the assignee had made in the petition, that the securities were unlawfully in the possession of Doe, and was made after Doe had been cited to appear to the petition.

The statement in the bill that Doe, believing the assignee to be entitled to the custody of the securities, delivered them to him, is only the statement of what Doe now remembers as to the uncommunicated motives which operated on him to deliver the securities. The assignee obtained the securities directly from Doe, under an assertion of title, and, if Doe desired to make available the claim set up in regard to them, in July, 1871, in his answer to the petition, it became then his duty to procure a judicial decision of the matter, the assignee having accomplished the object of his proceeding. But the litigation dropped, and was not renewed, respecting those securities. The allegation of Doe, in his answer to the bill filed by the assignee in November, 1872, in regard to the securities retained by Doe, that Doe was entitled to have the assignee apply on the debt to Doe the securities which Doe had delivered to the assignee, amounted to nothing, because such a claim could not be litigated in that suit. It was not a set-off or counter-claim to any relief sought by the assignee in that suit. The cause of action in regard to the securities delivered to the assignee by Doe accrued to Doe at the time of such delivery. It did not depend upon or arise from the existence or ascertainment of any deficiency of the other securities to meet the debt. If Doe was entitled at all to have the securities which were delivered to the assignee applied to his debt, he was, on the showing of the bill, as much entitled to have them so applied as to have the other securities so applied, and as much entitled to their possession for that purpose as to the possession of the other securities. His right of action to that effect accrued, therefore, when the assignee came into the possession of the securities, on their delivery to him by Doe.

Decree affirmed.

title: Doe v. Hyde/Opinion of the Court


text: Talk:Doe v. Hyde/Opinion of the Court

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

title: Talk:Doe v. Hyde/Opinion of the Court


text:
Bissell v. Foss

John F. Dillon and L. C. Rockwell, for appellant.

D. P. Dyer, for appellees.

WOODS, J.

title: Bissell v. Foss


text:
Page:Popular tales from the Norse (1912).djvu/613

 Rh "I only said you do not eat half fast enough," for he was afraid the lion would eat him up.

Then they went on eating, but Ananzi wanted to revenge himself, and he said to the Lion, "Which of us do you think is the strongest?"

The lion said, "Why, I am, of course."

Then Ananzi said, "We will tie one another to the tree, and we shall see which is the stronger."

Now they agreed that the Lion should tie Ananzi first, and he tied him with some very fine string, and did not tie him tight. Ananzi twisted himself about two or three times, and the string broke.

Then it was Ananzi's turn to tie the Lion, and he took some very strong cord. The Lion said, "You must not tie me tight, for I did not tie you tight." And Ananzi said, "Oh! no, to be sure, I will not." But he tied him as tight as ever he could, and then told him to try and get loose.

The lion tried and tried in vain—he could not get loose. Then Ananzi thought, now is my chance; so he got a big stick and beat him, and then went away and left him, for he was afraid to loose him lest he should kill him.

Now there was a woman called Miss Nancy, who was going out one morning to get some "callalou" (spinach) in the wood, and as she was going, she heard some one say, "Good morning, Miss Nancy!" She could not tell who spoke to her, but she looked where the voice came from, and saw the Lion tied to the tree?

"Good morning, Mr. Lion, what are you doing there?"

He said, "It is all that fellow Ananzi who has tied me to the tree, but will you loose me?"

But she said, " No, for I am afraid, if I do, you will kill me." But he gave her his word he would not; still she could not trust him; but he begged her again and again, and said,—

"Well, if I do try to eat you, I hope all the trees will cry out shame upon me."


text: Talk:Bissell v. Foss

title: Talk:Bissell v. Foss


text:
Page:Stubbs's Calendar or The Fatal Boots.djvu/75

Rh he has had, I don’t know how many liasons already; and he has been engaged to I don’t know how many women."

"Indeed!" says Clopper; "Come, Stubbs, tell us your adventures."

"Psha!" said I, modestly, "there is nothing, indeed, to tell; I have been in love, my dear boy—who has not?—and I have been jilted—who has not?"

Clopper swore that he would blow his sister’s brains out if ever she served me so.

"Tell him about Miss Crutty," said Dobble; "he! he! Stubbs served that woman out, any how; she didn’t jilt him, I’ll be sworn."

"Really, Dobble, you are too bad, and should not mention names; the fact is, the girl was desperately in love with me, and had money—sixty thousand pounds, upon my reputation. Well, every thing was arranged, when, who should come down from London, but a relation."

"Well; and did he prevent the match?"

"Prevent it—yes, sir, I believe you, he did; though


text:
Bissell v. Foss/Opinion of the Court

This was a suit in equity. The facts, as they appeared by the pleadings and evidence, were as follows:

In January, 1878, two miners, named Davidson and Van Boxall, located a mining claim near Leadville, Colorado, which they called the 'Winnemuck.' In March following they jointly conveyed to the appellant, Bissell, and to the appellees Foss and Hunter each a one-fourth interest in the property in consideration of their agreement to furnish money to sink a shaft to the ores on the claim. These parties worked the mine as mining partners until July, 1878, when Davidson and Van Boxall, with the consent of their associates, sold their one-fourth to three persons, Rawlings, Handley, and Robertson, called in the record 'The Missourians,' who with Bissell, Foss, and Hunter continued the working of the mine. Tabor and Reische, who owned and worked a mine adjoining the Winnemuck, on an alleged title not necessary to state, claimed the ore from the Winnemuck mine, and instituted, from time to time, attachment proceedings, by which they seized the ore as it was taken from the mine. The associates who were working the Winnemuck mine procured the release of the ore by giving forthcoming bonds, with one Halleck as security, who signed the bonds on condition that the money arising from the sale of the ore should be placed and kept in bank as an indemnity to him until the ownership of the ore could be settled. On this understanding the proceeds of the sale of the ore were deposited in the Miners's Exchange Bank of Leadville.

In August or September, 1878, the owners of the Winnemuck, Bissell, Foss, Hunter, and the Missourians, having received from the sale of ore money more than sufficient to indemnify Halleck, with the surplus bought and paid for an interest in the New Discovery lode. About October 1, 1878, they had on deposit to their credit in the bank $16,000, and Halleck was bound for them to the amount of $12,000. In the latter part of September the Missourians offered for sale their one-fourth interest in the mines. Bissell and Foss were anxious lest the interest of the Missourians should fall into the hands of Tabor and Reische, who might thereby gain some advantage in their suits then pending. They had a conversation in reference to the purchase of the interest of the Missourians. They differ in their account of this conversation. It is thus detailed by Bissell: 'Along about the thirtieth day of September, Mr. Foss came to my room and stated that the Missourians, as we termed them, were wanting to sell their quarter interest in the property, and had offered it for $30,000, and he said that he thought we had better go in and buy it. I said to him that it was all well enough to buy it, if they wanted to sell, but that I was confident that I could get it at better figures. I said, 'I am almost certain, Mr. Foss, that I can buy it for less; let me manage it and I think I can buy it for $15,000,' and went on to say what I would say to them concerning all the trouble and suits in the case. He said, 'Very well, if you can get it for that, so much the better.' It was an agreement and understanding between us that if we could get it for $15,000 we were to take it.' He further stated in reference to the same interview: 'We sat down there and made figures to see if we could pay for it out of the money belonging to the company in bank; and the result of our figuring was, that we couldn't do it to the full extent; that we could pay a portion of it from that money, and the balance outside, each of us to raise our share.' In answer to the question, who were to have the interests in the quarter to be purchased of the Missourians, he said: 'They were to go between us four, Trimble and Hunter, Foss and myself. Mr. Trimble's and Hunter's were interests together; they owned jointly that quarter interest, so I was informed by Mr. Trimble and Mr. Hunter.'

Foss gave the following account of his interviews with Bissell in reference to their project to buy out the Missourians: 'I met Dr. Bissell over Tribe & Jeffrey's store, in Leadville, and we talked the purchase over. I told him that the boys wanted to get out bad, and I thought they would sell pretty reasonable; but t at as I was working about there managing the mine, he could do better than I could. I said * he had mentioned to us one night on the street $30,000 as a price, but that we wouldn't agree to for a moment. We wondered how we could do about the money for the purchase. If we could use the company money, we thought we must use a little more than our joint interest. Bissell was to see the boys in regard to it.' In answer to the question, 'What was said about the price?' he replied: 'We talked the amount; $20,000 was spoken of. He thought that was too high and more than we should give. I thought so too, but $30,000 was the price fixed by them. That I wouldn't think of for a moment. We figured it over, but I don't remember the exact figures, and we concluded that at $15,000 we could pay for it, in case we could draw out the money in the Exchange Bank. Dr. Bissell thought it could be bought for less than $10,000. There was no proposition made for any definite price, but if we could buy the property we were to buy it together. He was to see what was the best he could do with it.' He was then asked to state 'whether there was, up to the time you concluded the trade with Handley, any agreement with Dr. Bissell that you and he should buy that property for $15,000;' to which he replied, 'No, sir.'

After these conversations between Bissell and Foss, Foss and Hunter, early in October, 1878, purchased of the Missourians for $15,000 their interest in the Winnemuck and New Discovery mines, and in the money of the associates on deposit in the Exchange Bank. The purchase was made in the name of Foss, but it was agreed between him and Hunter that Hunter was to have two-thirds and Foss one-third of the share. The money to pay for the share was all advanced by Hunter, Foss agreeing to reimburse Hunter the one-third. In order to induce the Missourians to sell at $15,000, Hunter declared to them that he was willing to sell his fourth to Foss for that sum, and actually made a pretended sale and conveyance to Foss at that price. Bissell was not informed of the negotiations for the sale and purchase while they were going on, and Foss requested Handley, the one of the Missourians with whom he treated for the purchase, not to tell Bissell of the sale. After the purchase was completed Foss denied the right of Bissell to a one-third share of the interest sold by the Missourians. Matters thus remained until November 16, 1878, when the Tabor party on one side, and Foss, Bissell and Hunter on the other, joined in a conveyance of their interests to B. M. Hughes, as trustee, to hold 73 out of 100 equal shares for the Tabor party, and 27 for Bissell, Foss, and Hunter; and, by agreement, the mines were to be worked and the moneys made deposited in the First National Bank of Denver, one of the appellees, and credited to the two parties in the proportions above stated. On April 2, 1879, there was on deposit in the bank to the credit of Foss, Bissell, and Hunter $92,502.58. It was in reference to the division of this fund that this litigation arose.

If there had been no purchase of the interest of the Missourians, Bissell, Foss, and Hunter would each have owned three-twelfths of this fund. But Bissell, insisting that he was entitled to a one-third of the one-fourth interest purchased of the Missourians, claimed four-twelfths. Foss and Hunter, insisting that Bissell had no interest in the share purchased of the Missourians, contended that he was only entitled to three-twelfths of the fund, and they jointly to nine-twelfths. Thereupon Foss and Hunter, on April 26, 1879, brought the present suit in equity against the First National Bank of Denver as the depositary, and against Bissell as the adverse claimant, to recover nine-twelfths of the fund. The bank answered the bill and at the same time filed a cross-bill, in which it alleged that it was merely a stakeholder, claiming no interest in the fund, and praying that Foss, Hunter, and Bissell might be required to interplead. Bissell answered both the original and cross-bills, claiming four-twelfths of the fund.

The sum in dispute between the parties seems to have increased after the filing of the original bill, and before final decree amounted to $36,454.35. This sum, by agreement of the parties, was deposited in the registry of the court, and they stipulated that the decision of the court should settle their rights, not only to the fund claimed in the original bill, but to the whole amount in the registry of the court. 3 Fed. Rep. 185.

On final hearing, the circuit court decreed 'that Foss and Hunter were entitled to the $36,454.35 in controversy in the registry of the court, and that it be paid to them.' From this decree Bissell appealed.

It is clear that the appellant had no claim to the fund in controversy, unless he had some title, legal or equitable, to the property which produced it. But he was not a party to the purchase of the property by Foss and Hunter. The Missourians, who owned the property, never bargained with Bissell to sell him any interest in their share, and never conveyed to him any interest in it. They contracted with Foss and Hunter only. Bissell never paid any part of the purchase money; it was paid exclusively by Foss and Hunter. His title, if he has any, is not based on any contract of purchase made with the Missourians, nor on any contract or understanding between him and Hunter. He bases his claim on the conversation and agreement between himself and Foss. This agreement, as stated by Bissell, was that Bissell and Foss should buy out the Missourians, for the benefit of themselves and Hunter, and divide the share equally between the three, and that each should pay one-third of the purchase money. According to Bissell's own version, the arrangement was based on the expectation that a large part of the purchase money could be paid out of the deposit of the parties in the bank. But the evidence shows that the money which they were at liberty to draw from the bank would pay less than one-third of the price at which the purchase was made. Foss testifies that all his individual resources consisted of a small grocery store, not paying much, and that he 'was just living in the hope of beating Tabor.'

Looking at all the testimony it is impossible to reach the conclusion, unless we disregard altogether the evidence of Foss and rely entirely on that of Bissell, that there was any well-defined agreement between them to buy out the Missourians at a specified price, or that the two had available resources to make the purchase. Nothing but an arrangement left at loose ends can be deduced from the evidence. But if the agreement had been clear and definite, it could bind neither Foss nor Bissell until Hunter was consulted and agreed to it. If Hunter declined, the matter was at an end, and there was no obligation on either Foss or Bissell to purchase for themselves or themselves and Hunter.

The record shows, and counsel for Bissell contend, that Foss told Hunter about the arrangement, in reference to the purchase, between himself and Bissell. There is no proof that Hunter assented to the arrangement made between Foss and Bissell. It is clear that he did not assent, for he made a different arrangement with Foss, by which he was to purchase and pay for two-thirds of the share of the Missourians, and Foss the other third, and by which he was to advance all the money to make the purchase, leaving the funds of the associates on deposit in the Miners' Exchange Bank untouched. It is plain, therefore, that the project of Foss and Bissell for the purchase, for the joint benefit of themselves and Hunter, of the share of the Missourians fell through. It could not be carried out without the assent of Hunter, and he did not assent.

To show the fraudulent conduct of Foss and Hunter, stress is laid by couns l for the appellant on the fact that they deceived the Missourians by the pretense that Hunter was willing to sell, and that he did actually sell, his one-fourth to Foss for $15,000, and thus induced them to sell at the same price. But as the Missourians were the only persons injured by this stratagem, if any one was injured, and they do not complain, we do not see how it concerns the appellant. The device by which Foss and Hunter made the purchase at $15,000 did not add to or detract from the rights of the appellant. And, as he is seeking to get the benefit of the contract thus fraudulently made, as he alleges, it does not lie in his mouth to complain of a fraud of which he is seeking to share the fruits. Bissell had no ground upon which he could base any contract right to an interest in the purchase made by Foss for himself and Hunter. He paid no money on the purchase, and he could not have been compelled to pay any, either by the Missourians with whom he had no contract, or by Foss, who, after Hunter had declined to acquiesce in the arrangement between Bissell and himself, could not have demanded of Bissell that he and Foss should buy for themselves. And if Foss had actually bought for himself and Bissell, he could not have compelled the latter to pay his half of the purchase money, for Bissell had never agreed to such a purchase. The agreement could not bind Foss unless it also bound Bissell. Bissell therefore did not, by reason of his agreement with Foss, acquire any interest in the share purchased by Foss and Hunter of the Missourians.

But the appellant insists that there was a mutual agreement between Bissell and Foss that if either made the purchase it should be for the benefit of all, and that this agreement, although not amounting to a contract which could be specifically enforced if it had been made with a stranger, created between parties who sustained to each other the confidential and trust relations which existed between these parties a constructive trust which would be enforced in equity. The contention is that these three parties were in such relations to each other that if one bought a share in the common property and business, it inured in equity to the benefit of all, subject to the payment by each of the associates of his share of the purchase money. The relations from which this result springs are stated to be those, first, of joint tenants, and, second, of partners; and that, by reason of these relations, Foss and Hunter became trustees for themselves and Bissell in purchasing the share of the Missourians. It is true that one of two or more tenants in common, holding by a common title, cannot purchase an outstanding title or incumbrance upon the joint estate for his own benefit. Such a purchase inures to the benefit of all, because there is an obligation between them, resulting from their joint claim and community of interest, that one of them shall not affect the claim to the prejudice of the others. Rothwell v. Dewees, 2 Black, 613; Van Horne v. Fonda, 5 Johns. Ch. 388; Lloyd v. Lynch, 24 Pa. St. 419; Adm'rs of Downer v. Smith, 38 Vt. 464.

But this rule cannot apply to Hunter and Foss. They purchased no outstanding title or incumbrance to the prejudice of the other tenant in common. They did what any tenant in common with entire good faith might do, namely, purchased the interest of some of their co-tenants without consulting the others. The title which they purchased of the Missourians was not antagonistic or hostile to the title of Bissell. Their purchase did not in any degree tend to injure or damage his interest. His share was just as valuable after as before the purchase, and his rights were the same. In such a purchase no trust or confidence is violated. Nor do we think that the relations of the parties as partners prohibited Foss and Hunter from making the purchase in question for their own benefit to the exclusion of Bissell. The association of Bissell, Foss, Hunter, and the Missourians was not an ordinary partnership. It was what is known as a mining partnership, which is a partnership sub modo only, and is thus described by Mr. Justice FIELD in Kahn v. Smelting Co. 102 U.S. 641: 'Mining partnerships, as distinct associations, with different rights and liabilities attaching to their members from those attaching to members of ordinary trading partnerships, exist in all mining communities; indeed, without them successful mining would be attended with difficulties and embarrassments much greater than at present.' He then quotes a passage from the opinion in Skillman v. Lockman, 23 Cal. 203, to the effect that a mining partnership is governed by many of the rules relating to ordinary partnerships, but also by some rules peculiar to itself, one of which is that one person may convey his interest in the mine and business without dissolving the partnership, and then proceeds as follows: 'The same doctrine is asserted in numerous other cases, not only in that court but in the courts of England. Associations for working mines are generally composed of a greater number of persons than ordinary trading partnerships; and it was early seen that the continuous working of a mine, which is essential to its successful development, would be impossible, or at least attended with great difficulties, if an association was to be dissolved by the death or bankruptcy of one of its members, or the assignment of his interest. A different rule from that which governs the relations of members of a trading partnership to each other was therefore recognized as applicable to the relations to each other of members of a mining association. the delectus personoe, which is essential to constitute an ordinary partnership, has no place in these mining associations. Duryea v. Burt, 28 Cal. 569; Settembre v. Putnam, 30 Cal. 490; Taylor v. Castle, 42 Cal. 367.'

This case settles two propositions: First, that the members of a mining association have no right to object to the admission of a stranger into the association who buys the share of one of the associates; and, second, that the sale and assignment by one of the associates of his interest does not dissolve the mining partnership. It follows from these propositions that one member of a mining partnership has the right, without consulting his associates, to sell his interest in the partnership to a stranger, and that such a sale injures no right or property of the other associates. Much less does a purchase by one associate of the share of another inflict any wrong upon the other members of the partnership. There is no relation of trust or confidence between mining parties which is violated by the sale and assignment by one partner to a stranger, or to one of the associates, of his share in the property and business of the association. It results as a conclusion from these premises that Bissell has suffered no wrong at the hands of either Hunter or Foss, on the ground that they were his tenants in common or partners, by reason of any contract made between the latter in reference to the purchase of the share of the Missourians in their joint enterprise. There has been no violation of any trust and confidence arising from the relations existing between Bissell, Foss, and Hunter.

The appellant, it is therefore clear, cannot demand any part of the two-thirds interest purchased by Hunter in the share of the Missourians. If he is entitled to participate in any way in the purchase made by Foss and Hunter, it can only be in the one-third interest purchased by Foss. But this demand cannot be based on any contract between Bissell and Foss, for the contract arrangement between them was conditioned upon the consent of Hunter, and Hunter did not consent. It was also an element of the agreement that the money of the associates on deposit in the bank should be sufficient, and should be available to pay a large part of the money required for the purchase of the hare of the Missourians. But this condition also failed. He was, therefore, bound by no contract with Bissell to make the purchase.

The only question which remains is, was Foss bound, when he learned that the arrangement he had made with Bissell for the purchase of the share of the Missourians could not be carried out, to inform Bissell of the fact, and give him a chance to join in the purchase made by him and Hunter? It cannot be denied that, under the circumstances, thee was an obligation on Foss to inform Bissell of the failure of their plan before making another with a third person. But it was not a legal obligation capable of enforcement in foro externo, but only a natural obligation to be disposed of in foro conscientioe. Story, Eq. Jur. § 2. It was one of those obligations which was binding on the honor and conscience of the party, but one not the subject of a suit, and not to be enforced in a court of either law or equity.

We are of opinion that the decree of the circuit court was right. It is therefore affirmed.

BRADLEY and MATTHEWS, JJ., dissenting.

title: Bissell v. Foss/Opinion of the Court


text: Talk:Bissell v. Foss/Opinion of the Court


text:
The Bradstreet v. Higgins

W. Hallett Phillips, for the motion.

W. Wise Garnett, in opposition.

WAITE, C. J.

title: The Bradstreet v. Higgins


text: Talk:The Bradstreet v. Higgins

title: Talk:The Bradstreet v. Higgins


text:
The Bradstreet v. Higgins/Opinion of the Court

This writ of rror was dismissed at a former day in this term, on motion of the defendant in error, for want of jurisdiction, because the value of the matter in dispute did not exceed $5,000. 112 U.S. 227; S.C.. ente, 117. In order to present his motion to dismiss, it became necessary for the defendant in error to cause the record to be printed, and to do that he was compelled to pay the cost of printing and the fee of the clerk for supervising. The judgment, as entered on the motion to dismiss, made no order as to costs, and the defendant in error now moves that the cost of printing and the clerk's fee for supervising be taxed against the plaintiff in error. It has been often decided that if a suit is dismissed for want of jurisdiction in this court, no judgment for the costs of the suit can be given. Inglee v. Coolidge, 2 Wheat. 368; McIver v. Wattles, 9 Wheat. 650; Strader v. Graham, 18 How. 602; Hornthall v. Collector, 9 Wall. 566. A different rule prevails when there has been a reversal here because the circuit court did not have jurisdiction, as this court had authority to correct the error of the circuit court in taking jurisdiction. Turner v. Enrille, 4 Dall. 7; Winchester v. Jackson, 3 Cranch, 514; Montalet v. Murray, 4 Cranch, 47; ''Mansfield, C. & L. M. Ry. Co. v. Swan'', 111 U.S. 387; S.C.. 4 SUP. CT. REP. 510.

Here, however, the question is not as to the right of the defendant in error to recover his costs in the suit, but only such as are incident to his motion to dismiss. It has been decided that the writ of error was wrongfully sued out by the plaintiff in error. To get rid of the writ and the supersedeas which had been obtained thereunder, the defendant in error was compelled to come to this court and move to dismiss. That motion we had jurisdiction to hear and decide. The right to decide implies the right to adjudge as to all costs which are incident to the motion. Under rule 10, § 2, of this court, it was the duty of the plaintiff in error to cause the record to be printed, and to pay all the costs and fees incident thereto in time for use when required in the progress of the cause. If it failed in this, the defendant in error might pay the costs and fees, and thus secure the printing. Under section 7, in case of reversal, affirmance, or dismissal with costs, the amount of the cost of printing the record and the clerk's fee are to be taxed to the party against whom the costs were given.

In this case the plaintiff in error neglected to have the record printed by the time it was wanted by the defendant in error on his motion to dismiss. Under these circumstances we do not doubt our authority to adjudge the costs incident to the printing against the plaintiff in error as part of the costs of the motion to dismiss. It is accordingly ordered that the judgment heretofore entered be amended so as to charge the plaintiff in error with all the costs of the motion to dismiss, which shall include the cost of printing the record, and the clerk's fee for supervising.


text: Talk:The Bradstreet v. Higgins/Opinion of the Court


text:
Page:Popular tales from the Norse (1912).djvu/614

 428 So at last she consented; but she had no sooner loosed him, than he came up to her to eat her, for he had been so many days without food, that he was quite ravenous, but the trees immediately cried out, "Shame," and so he could not eat her. Then she went away as fast as she could, and the Lion found his way home.

When Lion got home he told his wife and children all that happened to him, and how Miss Nancy had saved his life, so they said they would have a great dinner, and ask Miss Nancy. Now when Ananzi heard of it, he wanted to go to the dinner, so he went to Miss Nancy, and said she must take him with her as her child, but she said, "No." Then he said, I can turn myself into quite a little child, and then you can take me, and at last she said, "Yes;" and he told her, when she was asked what pap her baby ate, she must be sure to tell them it did not eat pap, but the same food as every one else; and so they went, and had a very good dinner, and set off home again—but somehow one of the Lion's sons fancied that all was not right, and he told his father he was sure it was Ananzi, and the Lion set out after him.

Now as they were going along, before the Lion got up to them, Ananzi begged Miss Nancy to put him down, that he might run, which he did, and he got away and ran along the wood, and the Lion ran after him. When he found the Lion was overtaking him, he turned himself into an old man with a bundle of wood on his head—and when the Lion got up to him, he said "Good morning, Mr. Lion," and the Lion said, " Good morning, old gentleman."

Then the old man said, "What are you after now?" and the Lion asked if he had seen Ananzi pass that way, but the old man said, "No, that fellow Ananzi is always meddling with some one; what mischief has he been up to now?"

Then the Lion told him, but the old man said it was no use to follow him any more, for he would never catch him, and so the Lion wished him good day, and turned and went home again.


text:
Boatmen's Savings Bank v. State Savings Association of St. Louis

This suit was brought by the State Savings Association of St. Louis against the Boatmen's Savings Bank to recover the amount of two checks drawn on the bank by the firm of Cobb, Dolhonde & Co., dated respectively September 5, 1874, and October 23, 1874, and presented for payment November 5, 1874. When the checks were presented there was a balance on deposit in the bank to the credit of the firm more than enough to take them up; but the firm had failed between the dates of the checks and the time of their presentation, and had notified the bank to that effect. The bank on that account refused payment. At the time of the presentation of the checks, and also at the time of the failure of the firm, the bank held a draft, not then due, drawn by one Bradley on and accepted by the firm for $3,174, dated October 3, 1874, and payable in 40 days from date. On the same day that the checks were presented and refused, it was arranged between the bank and the savings association that if the bank succeeded in collecting this draft from the drawer, it would pay the checks. The draft was never collected, and the checks still remain unpaid. Cobb, Dolhonde & Co. did not resume payment after their failure, and on the twenty-third of March, 1875, they were duly adjudicated bankrupts on a petition filed January 8, 1875. The bank indorsed on the Bradley draft the amount standing to the credit of the firm at the time of the failure, and proved its claim in the bankruptcy proceeding for the balance remaining due after this indorsement was made. Upon this balance dividends were paid by the assignee in bankruptcy. The savings association also proved its claim in bankruptcy, and received dividends thereon. The total amount of its claim was much more than the amount of the checks.

The ground on which the savings association sought to recover in the suit was that the presentation of the checks to the bank for payment, while there was a balance of deposits to the credit of the firm exceeding the amount drawn for, charged the bank with a liability to pay the checks to the association as the holder thereof. The defenses set up by the bank in its answer were (1) that the failure of the firm, and notice thereof to the bank, was equivalent to instructions from the firm not to pay any checks that might thereafter be presented; (2) that the savings association was not the assignee or indorsee of the checks; (3) that, in consideration of the agreement of the bank to pay the checks if the Bradley draft was collected, the savings association bound itself not to hold the bank liable if the collection was not made; and (4) that, relying on this agreement by the association, the bank credited the full amount of the balance of deposits in favor of the firm upon the Bradley draft, and proved up its demand against the estate of the ankrupts on account of the draft for no more than remained due after this credit was given, and that dividends were paid by the assignee only on the amount proven. Upon the trial, judgment was given in favor of the savings association for the full amount of the checks, and this judgment was affirmed by the St. Louis court of appeals, which is the highest court of the state in which a decision in the suit could be had.

J. W. Noble, J. C. Orrick, and W. Hallett Phillips, for plaintiff in error.

John M. Glover, George H. Shields, and ''Jeff. Chandler'', for defendant in error.

WAITE, C. J.


text: Talk:Boatmen's Savings Bank v. State Savings Association of St. Louis


text:
Boatmen's Savings Bank v. State Savings Association of St. Louis/Opinion of the Court

We are unable to discover any federal question in the record. No title, right, privilege, or immunity, under the constitution or laws of the United States, was set up in the pleadings, and no claim of that kind was made at the trial. The whole controversy, at and before the trial, seems to have been as to the right of the holder of a banker's check to recover against a bank having funds of the drawer when presentation has been duly made and payment demanded, and as to the effect of the arrangement between the parties when it was agreed that the bank should pay the checks if the Bradley draft was collected.

In the court of appeals it was, among other things, assigned for error that 'the judgment was against the right of the defendant to a judgment in his favor under the provisions of the act of congress of the United States, establishing and providing for a uniform system of bankruptcy, in force at the time of the transaction between the parties, out of which the controversy arises,' and, from the opinion of the court, section 5073 of the Revised Statutes seems to have been relied on. That section provides: 'In all cases of mutual debts or mutual credits between the parties, the account between them shall be stated, and one debt set off against the other, and the balance only shall be allowed or paid.' No rights under this section were set up in the pleadings or claimed at the trial; and, besides, the right of the bank to apply whatever credit there may be in its accounts in favor of the bankrupt firm to the reduction of the amount due on the draft is not denied. The only dispute is as to the amount of the credit, and we are unable to see that the bankrupt law is involved in the determination of that question. The court of appeals decided that the presentation of the checks on the fifth of November operated as an equitable assignment at that date of an amount of the fund then standing to the credit of the firm equal to the amount of the checks, and made the savings association from that time, in equity, the creditor of the bank to that extent. Debts are provable against a bankrupt's estate as of the date of the commencement of the proceedings in bankruptcy. Rev. St. § 5067. As section 5073 relates to the amount which may be allowed upon such proof, it is clear that the mutual debts or mutual credits there referred to must be such as are in existence at the same date. In the present case, the question was whether, on the fifth of November, 1874, more than two months before the commencement of the proceedings in bankruptcy, a part of the balance standing to the credit of Cobb, Dolhonde & Co. on the books of the bank had been assigned to the plaintiff in this action. That did not depend on the bankrupt law, but on the legal effect of what was done at and before that time by the parties, and when, so far as appears from the record, no proceedings in bankruptcy were contemplated. The point for determination was whether the presentation of a check drawn on a banker by a customer having funds to his credit, transferred in equity to the holder of the check so much of the debt due from the bank to the drawer as was sufficient to pay the check. This clearly is not a federal question.

It follows that we have no jurisdiction of the case, and it is dismissed.


text: Talk:Boatmen's Savings Bank v. State Savings Association of St. Louis/Opinion of the Court


text:
Page:A Book of Dartmoor.djvu/74

46 Some of the huts are very large, and in these no traces of fires and no cooking-holes have been found. Adjoining them, however, are smaller huts that are so full of charcoal and peat ash and fragments of pottery that no doubt can be entertained that these were the kitchens, and the large huts were summer habitations. Occasionally a small hut has been found with a large hole in the centre crammed with ashes and round stones, the hole out of all proportion to the

size of the hut if considered as a habitation. No reasonable doubt can be entertained that these were bath huts. The Lapps still employ the sweating-houses. They pour water over hot stones, and the steam makes them perspire profusely, whereupon they shampoo themselves or rub each other down with birch twigs. Indeed, men wearing skin dresses are obliged to go through some such a process to keep their pores in healthy action.

title: Page:A Book of Dartmoor.djvu/74


text: Poindexter v. Greenhow

title: Poindexter v. Greenhow


text: Talk:Poindexter v. Greenhow

title: Talk:Poindexter v. Greenhow


text:
Poindexter v. Greenhow/Opinion of the Court

v.

v.

In Error to the Circuit Court of the United

States for the Eastern District of Virginia.

v.

BALTIMORE & O.R. CO. Appeal from the Circuit Court of

the United States for the Western District of Virginia.

v.

GREENHOW, Treasurer, etc. Appeal from the Circuit Court

of the United States for the Eastern District

of Virginia.

v.

TAYLOR. In Error to the Supreme Court of Appeals of

the State of Virginia.

v.

PARSONS. Appeal from the Circuit Court of the United

States for the Eastern District of Virginia.

April 20, 1885.

There were eight of these cases. All related to the legislation of the State of Virginia of March 30, 1871, authorizing coupons of the funded debt of the State to be received in payment of taxes, debts, dues, and demands due the State, and to subsequent legislation, practically forbidding the receipt of the coupons in present payment of dues and taxes. court. The legislation is set forth, or referred to in Antoni v. Greenhow, 107 U.S. 769, and in the opinion of the court in the first of the present cases.

The cases were argued, or submitted, in the following order: PLEASANTS v. GREENHOW,, was submitted December 1, 1884. POINDEXTER v. GREENHOW; WHITE v. GREENHOW; CHAFFIN v. TAYLOR; CARTER v. GREENHOW; and MOORE v. GREENHOW, were argued together March 20, 23, 24 and 25, 1885. ALLEN v. BALTIMORE & OHIO RAILROAD CO. was argued March 25, 26, 1885; and MARYE v. PARSONS was argued March 26, 27, 1885.

The opinions and judgments of the court in all the cases except MOORE v. GREENHOW were announced April 20, 1885. In the later case they were announced May 4, 1885.

The dissenting opinion will be found after the opinion of the court in MARYE v. PARSONS. The Justices who concurred in it dissented from the judgments and opinions of the court in POINDEXTER v. GREENHOW; WHITE v. GREENHOW; CHAFFIN v. TAYLOR; and ALLEN v. BALTIMORE & OHIO RAILROAD CO. In PLEASANTS v. GREENHOW; CARTER v. GREENHOW; and MARYE v. PARSONS, they concurred in the judgments of the court, but rested their concurrence on the reasons given in their dissenting opinion.


text: Talk:Poindexter v. Greenhow/Opinion of the Court


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Page:Popular tales from the Norse (1912).djvu/615

 Rh ANANZI AND QUANQUA.

was a very clever fellow, and he had a large house full of all sorts of meat. But you must know he had a way of saying Quan? Qua? (how? what?) when any one asked him anything, and so they called him "Quanqua." One day when he was out, he met Atoukama, Ananzi's wife, who was going along driving an ox, but the ox would not walk, so Atoukama asked Quanqua to help her; and they got on pretty well till they came to a river, when the ox would not cross through the water. Then Atoukama called to Quanqua to drive the ox across, hut all she got out of him was, "? ? Quan? Qua?" At last she said, "Oh! you stupid fellow, you're no good; stop here and mind the ox while I go and get help to drive him across." So off she went to fetch Ananzi. As soon as Atoukama was gone away, Quanqua killed the ox, and hid it all away, where Ananzi should not see it; but first he cut off the tail, then he dug a hole near the river side, and stuck the tail partly in, leaving out the tip. When he saw Ananzi coming, he caught hold of the tail, pretending to tug at it as if he were pulling the ox out of the hole. Ananzi seeing this, ran up as fast as he could, and tugging at the tail with all his might, fell over into the river, but he still had hold of the tail, and contrived to get across the water, when he called out to Quanqua, "You idle fellow, you couldn't take care of the ox, so you shan't have a bit of the tail," and then on he went. When he was gone quite out of sight, Quanqua took the ox home, and made a very good dinner.

Next day he went to Ananzi's house, and said, Ananzi must give him some of the tail, for he had got plenty of yams, but he had no meat. Then they agreed to cook their pot together. Quanqua was to put in white yams, and Ananzi the tail, and red yams. When they came to put the yams in, Quanqua put


text:
White v. Greenhow

''Wm. L. Royall, D. H. Chamberlain, Wm. M. Evarts, and Wager Swayne'', for plaintiff in error.

A. H. Garland, R. T. Merrick, and F. S. Blair, Atty. Gen., for defendant in error.

MATTHEWS, J.

title: White v. Greenhow


text: Talk:White v. Greenhow

title: Talk:White v. Greenhow


text:
Page:Stubbs's Calendar or The Fatal Boots.djvu/82

, now, what life is; I have had ill-luck on ill-luck from that day to this. I have sunk in the world, and, instead of riding my horse and drinking my wine, as a real gentleman should, have hardly enough now to buy a pint of ale; ay, and am very glad when any body will treat me to one. Why, why was I born to undergo such unmerited misfortunes?

You must know that very soon after my adventure with Miss Crutty, and that cowardly ruffian Captain Waters (he sailed the day after his insult to me or I should most certainly have blown his brains out; now he is living in England, and is my relation; but, of course, I cut the fellow). Very soon after these painful events another happened, which ended, too, in a


text:
White v. Greenhow/Opinion of the Court

The plaintiff in error, who was plaintiff below, brought his action in the circuit court of the United States for the Eastern district of Virginia against the defendant, both being citizens of that state. The declaration, in substance, sets out that the plaintiff, owning property in the city of Richmond, was assessed thereon for the year 1882 for certain taxes to be paid to the state of Virginia, leviable for after December 1, 1882; that the defendant was treasurer of the city of Richmond, and, as such, collector of taxes due to the state assessed on property in that city; that plaintiff tendered to the defendant, on demand being made for payment of said taxes, the amount thereof in coupons cut from bonds issued by the state of Virginia under the act of March 30, 1871, entitled 'An act to provide for the funding and payment of the public debt.' Which coupons, by the terms of said act, were receivable in payment of taxes by virtue of a contract with the state of Virginia; that the defendant refused to receive said coupons, under color of the authority of the act of the general assembly of the state of Virginia, passed January 26, 1882, which forbade him to receive the same; that the defendant, after refusal of said tender, forcibly and unlawfully entered the premises of the plaintiff, and levied upon and seized and carried away personal property of the plaintiff of the value of $3,000, in order to sell the same for the satisfaction of said taxes, which he claimed to be unpaid and delinquent; that the acts of the general assembly of Virginia, specified in the pleadings, which require the tax collector to refuse to receive such coupons in payment of taxes, and to proceed with the collection of taxes, for the payment of which they have been tendered, as if they were delinquent, impair the obligation of the said contract between the state of Virginia and the plaintiff; and that by reason of the said wrongs the plaintiff has suffered damage in the sum of $6,000, for which he brings suit. To this declaration the defendant demurred generally, the demurrer was sustained, and judgment was rendered for the defendant. The plaintiff sued out this writ of error.

All the questions raised and argued upon the merits of this case have been fully considered in the opinion of the court in the case of Poindexter v. Greenhow, ante, 903. The present action, as shown on the face of the declaration, was a case arising under the constitution of the United States, and was one, therefore, of which the circuit court of the United States had rightful jurisdiction by virtue of the act of March 3, 1875, without regard to the citizenship of the parties, the sum or value in controversy being in excess of $500.

In conformity with the views expressed in the opinion in Poindexter v. Greenhow, ante, 903, the judgment in the present case is reversed, and the cause is remanded, with directions to proceed therein in conformity with law.

title: White v. Greenhow/Opinion of the Court


text: Talk:White v. Greenhow/Opinion of the Court


text:
Chaffin v. Taylor (114 U.S. 309)

''Wm. L. Royall, D. H. Chamberlain, Wm. M. Evarts, and Wager Swayne'', for plaintiff in error.

A. H. Garland, R. T. Merrick, and F. S. Blair, Atty. Gen., for defendant in error.

MATTHEWS, J.

title: Chaffin v. Taylor (114 U.S. 309)


text: Talk:Chaffin v. Taylor (114 U.S. 309)

title: Talk:Chaffin v. Taylor (114 U.S. 309)


text:
Chaffin v. Taylor (114 U.S. 309)/Opinion of the Court

This was an action in trespass de bonis asportatis, brought by the plaintiff in error against the defendant in the circuit court for the county of Henrico, in Virginia, for the recovery of $150 dam ges for unlawfully entering upon the plaintiff's premises and seizing, taking, and carrying away one horse, the property of the plaintiff, of the value of $100. The defendant justified the taking, etc., as treasurer of Henrico county, charged by law with the duty of collecting taxes due the state of Virginia on property and persons in said county, alleging that the property was lawfully seized and taken for taxes due from the plaintiff to the state, which, on demand, he had refused to pay. To this plea the plaintiff replied a tender in payment of the taxes, when demanded and before the trespass complained of, of the amount due, in coupons cut from bonds of the state of Virginia, receivable in payment of taxes by virtue of the act of March 30, 1871. To the replication the defendant demurred specially, on the ground-First, that by the act of January 26, 1882, he was forbidden to receive coupons in payment of taxes; and, second, that by the act of March 13, 1884, an action of trespass would not lie in such a case. In this demurrer the plaintiff joined, and assigned as a reason why it should be overruled that the two statutes mentioned and relied on by the defendant were repugnant to section 10, article 1, of the constitution of the United States, and therefore null and void. Judgment was rendered on the demurrer in favor of the defendant. Thereafter, on November 25, 1884, the plaintiff filed his petition in the supreme court of appeals of Virginia for the allowance of a writ of error; whereupon, as the record recites, the petition, 'having been maturely considered, and the transcript of the record of the judgment aforesaid seen and inspected, the court, being of opinion that said judgment is plainly right, doty deny the said writ.' To reverse this judgment this writ of error is prosecuted.

The judgment of the supreme court of appeals is in substance a judgment affirming the judgment of the circuit court of Henrico county, and is, therefore, reviewable upon this writ of error by this court, the case being one which arises under the constitution of the United States. Williams v. Bruffey, 102 U.S. 248. The merits of the case are disposed of by the opinion in Poindexter v. Greenhow, ante, 903, in which it was decided that the act of January 26, 1882, and the act of March 13, 1884, were unconstitutional, and therefore unll and void. It is not denied that, but for these acts, the action of trespass would lie in such a case under the laws of Virginia; and as the acts relied on by the defendant must be treated as ineffectual for every purpose, they do not work a repeal of the previously existing law.

The judgment of the supreme court of appeals is accordingly reversed, and the cause is remanded to that court, with directions to take further proceedings, in accordance with law, in conformity with this opinion; and it is so ordered.


text: Talk:Chaffin v. Taylor (114 U.S. 309)/Opinion of the Court


text:
Page:A Book of Dartmoor.djvu/75

Rh It is very probable that the long tracklines that extend over hill and vale on Dartmoor indicate tribal boundaries, limits beyond which the cattle of one clan might not feed. Some of these lines, certainly of the age of the Neolithic men of the hut circles, may be traced for miles. There is one that starts apparently from the Plym at Trowlesworthy Warren, where are clusters of huts and inclosures. It follows the contour of the hills to Pen Beacon, where it curves around a collection of huts and strikes for the source of the Yealm by two pounds containing huts. That it went further is probable, but recent inclosures have led to its destruction. We cannot be sure of the age of these tracklines unless associated with habitations, as some very similar have been erected in recent times as reeves delimiting mining rights.

That the occupants of the moor at this remote period loved to play at games is shown by the numbers of little round pebbles, carefully selected, some for their bright colours, that have been found on the floors of their huts. That they used divination by the crystal is shown by clear quartz prisms having been discovered tolerably frequently. These are still employed among the Australian natives for seeing spirits and reading the future. That these early people were monogamists is probable from the small size of their huts; they really could not have accommodated more than one wife and her little family.

That they were a gentle, peaceable people is also apparent from the rarity of weapons of war. Plenty of

title: Page:A Book of Dartmoor.djvu/75


text:
Allen v. Baltimore Railroad Company

F. S. Blair, Atty. Gen., R. t. Merrick, and A. H. Garland, for appellants.

John K. Cowen and Hugh J. Sheffey, for appellee.

MATTHEWS, J.

title: Allen v. Baltimore Railroad Company


text: Talk:Allen v. Baltimore Railroad Company


text:
Allen v. Baltimore Railroad Company/Opinion of the Court

This is a bill in equity filed by the Baltimore & Ohio Railroad Company, a corporation created by the laws of Maryland, and a citizen of that state, against the appellants, who were defendants below, of whom Allen is auditor of public accounts; Revely, treasurer of the state of Virginia; and Hamilton, treasurer of Augusta county, in that state; and all citizens of Virginia. The complainant is the lessee in possession of certain railway lines in Virginia,--the winchester & Potomac, the Winchester & Strasburg, and the Strasburg & Harrisonburg Railroads,--and also operates a railroad belonging to the Valley Railroad Company in that state.

It is alleged in the bill that, 'by the twentieth and twenty-first sections of an act of the general assembly of Virginia, approved on the twenty- econd day of April, 1882, and entitled 'An act for the assessment of taxes on persons, property, income, and licenses, and imposing taxes thereon for the support of the government and free schools, and to pay the interest on the public debt,' provision was made for the assessment and taxation of the railroads within the state; the board of public works, acting upon the reports of the officers of the railroad companies, and upon the best and most reliable information that could be procured, being authorized and required to ascertain and assess the value of the real and personal property of such companies for taxation at the rate of forty cents on every hundred dollars of the estimated value thereof and said act further provides that it shall be the duty of every railroad company so assessed, to pay into the treasury of the state, within sixty days after receipt of notice of such assessment, the tax imposed by law; and a company failing to pay the tax assessed upon its property, shall be immediately assessed under the direction of the auditor of public accounts, by any person appointed by him for the purpose, rating their real estate and rolling stock at $20,000 per mile, and a tax thereon levied of forty cents on the $100 of such fixed value; and the amount so assessed shall be collected by any treasurer to whom the auditor may deliver the assessment, who is authorized to distrain and sell any personal property of such company for the amount of such taxes.'

It is further alleged that on November 22, 1882, the board of public works assessed said railroads for taxation at the rate of $15,000 per mile, of which notice was given to the complainant, on January 17, 1883, as the party liable by law for the payment of the taxes assessed upon them; that on March 16, 1884, within 60 days thereafter, the complainant obtained from the auditor of public accounts warrants to pay into the treasury the several amounts charged as to each of said railroads, which the treasurer of the commonwealth, by indorsement thereon, required to be paid into a specified bank in the city of Richmond, that being the only mode recognized by law for making such payments; that, at that time, the complainant, being the owner and holder of the requisite amount of coupons for interest, cut from bonds of the state of Virginia, issued under the act of March 20, 1871, entitled 'An act to provide for the funding and payment of the public bebt,' and receivable by virtue thereof in payment of taxes, tendered the same, with coin sufficient exactly to make the required amounts, to the said bank in Richmond, in discharge of said warrants; that said coupons were refused, and the same having been set apart, whe complainant brings the same into court, subject to its order in payment of said taxes; that similar tenders were made to the auditor of public accounts, and to the treasurer of state, on the same day, each of whom refused to receive the same; that thereupon the defendant Allen, the auditor of public accounts, proceeded to assess the said railroads upon their real estate, not having any rolling stock, at $20,000 per mile, as being in default for non-payment of the taxes assessed by the board of public works; and placed copies of said assessment in the hands of the defendant Hamilton, as treasurer of Augusta county, for collection, in pursuance of which he levied upon certain cars and locomotives belonging to the complainant, used in operating said railroads, for part of said taxes, and threatens to make further levies upon other cars and engines, to be sold for payment of said taxes so assessed by the auditor of public accounts.

The bill prays for an injunction on the several grounds of irreparable damage; that the acts complained of prevent the proper exercise by the complainant of its franchise, involving a public duty, of operating the railroads of which it is lessee, and in possession; to avoid multiplicity of suits; the want of adequate remedies at law; to remove the cloud upon the title to the railroad prop rty, occasioned by the fact that assessed taxes are a lien thereon; and because it is necessary to protect the complainant in the immunity to which it is entitled, by virtue of the contract with the state of Virginia, secured against state laws impairing its obligation by the constitution of the United States.

It is admitted by the parties in the record that the coupons tendered are genuine, though not verified as required by the act of January 14, 1882. It is also admitted, in like manner, that if the property of the complainant levied on should be sold, 'great sacrifice and loss must result therefrom; and that the withdrawal from complainant's use of the amount of rolling stock and machinery levied on and proposed to be sold as aforesaid will cause serious and prolonged embarrassment to complainant's business; that much delay must accrue before such rolling stock and machinery, if sold, can be replaced, and that it will be difficult, if not impracticable, to ascertain and estimate, with even proximate certainty, the losses and damages which would result to complainant from such sale; so that, although the estate of said J. Ed. Hamilton should be sufficient to meet any verdict for damages, in case the sale should be adjudged to have been illegal, the pecuniary value of the complainant's losses and damages could not be properly and adequately ascertained and fixed by the verdict of a jury.' There was a final decree in favor of the complainant for a perpetual injunction, as prayed for, and the case is brought here by appeal by the defendants.

The general questions arising and argued in this and other cases involving them are fully discussed in the opinion in the case of Poindexter v. Greenhow, ante, 903. The conclusions reached in that judgment apply to the present appeal, and require that the decree of the circuit court should be affirmed. It is deemed proper to add a few observations on the question of the jurisdiction of the circuit courts, in such cases, in equity, to grant relief by injunction. The circumstances of this case bring it, so far as that remedy is in question, fully within the principle firmly established in this court by the decision in Osborne v. U.S. Bank, 9 Wheat. 739, and within the terms of the rule as declared in Cummings v. National Bank, 101 U.S. 153, quoted in the case of Poindexter v. Greenhow. The jurisdiction was exercised with energy in behalf of a stockholder in a banking corporation in Dodge v. Woolsey, 18 How. 331, where the refusal of the directors of the company to resist the collection of an unconstitutional tax was made the ground of interposition in behalf of a stockholder as a breach of trust.

In Board of Liquidation v. McComb, 92 U.S. 531-541, it is said in the opinion of the court, speaking on the question of remedies: 'On this branch of the subject, the numerous and well-considered cases heretofore decided by this court leave little to be said. The objections to proceeding against state officers by mandamus or injunction are--,First, that it is, in effect, proceeding against the state itself; and, secondly, that it interferes with the official discretion vested in the officers. It is conceded that neither of these things can be done. A state, without its consent, cannot be sued by an individual; and a court cannot substitute its own discretion for that of executive officers in matters belonging to the proper jurisdiction of the latter. But it has been well settled that when a plain official duty, requiring no exercise of discretion, is to be performed, and performance is refused, any person who will sustain personal injury by such refusal may have a mandamus to compel its performance; and when such duty is threatened to be violated by some positive official act, any person who will sustain personal injury thereby, for which adequate compensation cannot be had at law, may have an injunction to prevent it. In such cases, the writs of mandamus and injunction are somewhat correlative to each other. In either case, if the officer plead the authority of an unconstitutional law for the non-performance or violation of his duty, it will not prevent the issuing of the writ. An unconstitutional law will be treated by the courts as null and void.' And the opinion cites Osborne v. Bank of U.S. 9 Wheat. 859, and Davis v. Gray, 16 Wall. 220. The same principle was applied in State Railroad Tax Cases, 92 U.S. 575. In the opinion of the court it is said, (page 615:) 'In the examination which we have made of these cases, we do not find any of the matters complained of to come within the rule which we have laid down as justifying the interposition of a court of equity. There is no fraud proved, if alleged. There is no violation of the constitution, either in the statute or in its administration, by the board of equalization. No property is taxed that is not legally liable to taxation; nor is the rule of uniformity prescribed by the constitution violated.' If the facts here negatived had been affirmed, the converse of the rule would have been equally applicable.

In Transportation Co. v. Parkersburg, 107 U.S. 691-695, S.C.. 2 SUP. CT. REP. 732, it was declared that a bill in equity would lie which seeks to have a wharfage ordinance declared void, and for an injunction to restrain further collections under it, and any further interference with the right of the complainant to the free navigation of the Ohio river, and perhaps, as incidental to the other relief, a demand for the return of the wharfage already paid. The remedy to restrain by injunction taxes levied upon railroads, in alleged violation of a contract with the state, was administered in Tomlinson v. Branch, 15 Wall. 460; and in numerous other similar cases where it has been denied, the jurisdiction to grant the relief, if the facts had warranted it, has been assumed without question. And see Litchfield v. County of Webster, 101 U.S. 773.

In the case of national banks, the assessment and collection of taxes illegally assessed under the authority of state laws, in violation of acts of congress, are habitually restrained by the preventive remedy of injunction, and the jurisdiction of the courts of the United States in those cases is regarded as in the highest degree beneficial and necessary, to prevent the agencies of the government of the United States from being hindered and embarrassed in the performance of their functions by state legislation. The exercise of that jurisdiction, and by means of that remedy, in such cases is to vindicate the supremacy of the constitution, and to maintain the integrity of the powers and rights which it confers and secures; and that jurisdiction is vested in the courts of the United States, because the cases embraced in it are necessarily cases arising under the constitution and laws of the United States.

Where the rights in jeopardy are those of private citizens, and are of those classes which the constitution of the United States either confers or has taken under its protection, and no adequate remedy for their enforcement is provided by the forms and proceedings purely legal, the same necessity invokes and justifies, in cases to which its remedies can be applied, that jurisdiction in equity vested by the constitution of the United States, and which cannot be affected by the legislation of the states.

In the present case, the jurisdiction in equity to grant the relief prayed for by injunction, and the propriety of its exercise, are alike indisputable.

The decree of the circuit court is accordingly affirmed.


text: Talk:Allen v. Baltimore Railroad Company/Opinion of the Court


text:
Page:Popular tales from the Norse (1912).djvu/616

 430 in a great many white yams, but Ananzi only put in one little red cush-cush yam. Quanqua asked him if that little yam would be enough? he said, "Oh! plenty, for I don't eat much."

When the pot boiled, they uncovered it, and sat down to eat their shares, but they couldn't find any white yams at all; the little red one had turned them all red. So Ananzi claimed them all, and Quanqua was glad to take what Ananzi would give him.

Now, when they had done eating, they said they would try which could bear heat best, so they heated two irons, and Ananzi was to try first on Quanqua, but he made so many attempts, that the iron got cold before he got near him; then it was Quanqua's turn, and he pulled the iron out of the fire, and poked it right down Ananzi's throat.

THE EAR OF CORN AND THE TWELVE MEN.

[This tale is imperfect at the beginning.]

said to the King, that if he would give him an ear of corn, he would bring him twelve strong men. The king gave him the ear of corn, and he went away. At last he got to a house, where he asked for a night's lodging, which was given him; the next morning he got up very early, and threw the ear of corn out of the door to the fowls, and went back to bed. When he got up in the morning, he looked for his ear of corn, and could not find it anywhere, so he told them he was sure the fowls had eaten it, and he would not be satisfied unless they gave him the best cock they had. So they were obliged to give him the cock, and he went away with it, all day, until night, when he came to another house, and asked again for a night's lodging, which he got; but when they wanted to put the cock into the fowl-house, he said,


text:
Carter v. Greenhow

''Wm. L. Royall, D. H. Chamberlain, Wm. M. Evarts, and Wager Swayne'', for plaintiff in error.

A. H. Ga land, R. T. Merrick, and F. S. Blair, Atty. Gen., for defendant in error.

MATTHEWS, J.

title: Carter v. Greenhow


text: Talk:Carter v. Greenhow

title: Talk:Carter v. Greenhow


text:
Carter v. Greenhow/Opinion of the Court

The plaintiff in error brought his action, in the circuit court of the United States, against the defendant, on May 7, 1883. His cause of action is set forth in the declaration as follows: 'Samuel S.C.arter, plaintiff, complains of Samuel C. Greenhow, defendant, of a plea of trespass on the case, for that the said plaintiff is a citizen of the state of Virginia and a resident of the city of Richmond, in said state. That the plaintiff owns property in said city, and that he was lawfully assessed on said property by the officers of the state of Virginia, whose duty it was under the laws of Virginia to make such assessment, with taxes to be paid to the state of Virginia for the year 1882, and that said taxes were due and leviable for, on, and after the first day of December, 1882. That the defendant, Samuel C. Greenhow, is the treasurer of the city of Richmond, in the state of Virginia, and that the laws of Virginia make it his duty to collect all taxes due to the state of Virginia by residents of said city on property situated and being in said city. That on the third day of May, 1883, the plaintiff was indebted to the said state of Virginia on account of the taxes so assessed upon his property as aforesaid for the year 1882, and that on said last-named date on tendered to the defendant, in payment of his said taxes, coupons cut from bonds issued by the state of Virginia, under the provisions of the act of the general assembly of the state of Virginia, approved March 28, 1879, entitled 'An act to provide a plan of settlement of the public debt,' which coupons, together with a small amount of lawful money of the United States, tendered at the same time, amounted exactly to the sum so due by the plaintiff for taxes as aforesaid, and which coupons were due and past maturity, in payment of his said taxes so due as aforesaid. That by the terms of the act of the general assembly under which said coupons were issued, the said coupons are receivable in payment of all taxes due to the state of Virginia, and that each of said coupons bore upon its face the contract of the state of Virginia that it should be received in payment of taxes due to said state. That the defendant refused to receive the said coupons and money in payment of the taxes so due by the plaintiff. That after said cender the said defendant unlawfully entered into and upon the plaintiff's premises and place of business and levied upon and seized the plaintiff's property and carried the same away to sell the same in payment of plaintiff's taxes. That plaintiff was always ready and willing to deliver to the defendant in payment of said taxes, up to the moment when the defendant so levied upon his said property, the said coupons and money, and he many times offered to do so, but the defendant always refused to receive the same. That the plaintiff has the right under the constitution of the United States to pay his said taxes to the said defendant in the said coupons and money, and that this right is secured to him by the constitution of the United States. That when the defendant refused to receive the said coupons and money in payment of the taxes so due as aforesaid by the plaintiff, he did so under color of and by the command of an act of the general assembly of the state of Virginia, approved January 26, 1882, entitled 'An act to provide for the more efficient collection of the revenue, to support government, maintain the public schools, and to pay interest on the public debt,' which act forbids collectors of taxes due to said state to receive in payment thereof anything except gold, silver, United States treasury notes, and national bank currency; and that when he so levied upon the plaintiff's property he did so by virtue of and under the command of the eighteenth section of an act of the general assembly of the state of Virginia, approved April 1, 1879, which act is chapter sixty of the laws published by authority f the general assembly of the state of Virginia for the special session of 1879, and by virtue of and under the command of other statutes enacted by the general assembly of the state of Virginia. That the said two last-mentioned acts of the general assembly of the state of Birginia, and the other mentioned statutes of said state, commanding the defendant to levy so as aforesaid upon the property of the plaintiff, are repugnant to the constitution of the United States, and are therefore void. That in refusing to receive the said coupons and money in payment of said taxes, and in levying on and seizing the plaintiff's property for said taxes, after the plaintiff had tendered the same in payment thereof, the defendant deprived the plaintiff of a right secured to him by the constitution of the United States, under color of statutes enacted by the general assembly of the state of Virginia, to the damage of the plaintiff two hundred dollars, ($200,) and therefore he brings this suit.'

To this declaration a general demurrer was filed and sustained, and judgment rendered accordingly for the defendant. To reverse that judgment the present writ of error is prosecuted.

The sixteenth clause of section 629, Rev.St., defining the original jurisdiction of the circuit court of the United States, gives to them cognizance, with out reference to the sum or value in controversy, or the citizenship of the parties, 'of all suits authorized by law to be brought by any person to redress the deprivation, under color of any law, statute, ordinance, regulation, custom, or usage of any state, of any right, privilege, or immunity secured by the constitution of the United States, or of any right secured by any law providing for equal rights of citizens of the United States, or of all persons within the jurisdiction of the United States.' Similar jurisdiction is conferred upon district courts by the twelfth clause of section 563, Rev. St. Section 1979, Rev. St., provides that 'every person who, under color of any statute, ordinance, regulation, custom, or usage of any state or territory, subjects, or causes to be subjected, any citizen of the United States, or other person within the jurisdiction thereof, to the deprivation of any rights, privileges, or immunities secured by the constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.' These three provisions constituted the first section of the act of April 20, 1871, entitled 'An act to enforce the provisions of the fourteenth amendment to the constitution of the United States, and for other purposes.' 17 St. 13. In that section, the language conferring jurisdiction in the courts, was as follows: 'Such proceeding to be prosecuted in the several district or circuit courts of the United States, with and subject to the same rights of appeal, review upon error, and other remedies provided in like cases in such courts, under the provisions of the act of the ninth of April, eighteen hundred and sixty-six, entitled 'An act to protect all persons in the United States in their civil rights, and to furnish the means of their vindication," and the other remedial laws of the United States which are in their nature applicable in such cases.

The second section of the act here referred to, of April 9, 1866, (14 St. 27,) provided 'that any person, who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any state or territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having, at any time, been held in a condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and, on conviction, shall be pun shed by fine not exceeding one thousand dollars, or imprisonment not exceeding one year, or both, in the discretion of the court.'

The question presented in this record is whether the facts stated in the plaintiff's declaration constitute a cause of action within the terms of section 1979, Rev. St.; that is, whether he shows himself, within its meaning, to have been subjected by the defendant, under cover of a statute of a state, to the deprivation of a right, privilege, or immunity secured by the constitution.

The acts charged against the defendant are that he refused to receive from the plaintiff the coupons tendered in payment of taxes, and thereafter proceeded to levy upon and take his property for the purpose of collecting such taxes in money. The rights alleged to be violated are the right to pay taxes in coupons instead of in money, and, after a tender of coupons, the immunity from further proceeding to collect such taxes as though they were delinquent. These rights the plaintiff derives from the contract with the state, contained in the act of March 28, 1879, and the bonds and coupons issued under its authority.

How and in what sense are these rights secured to him by the constitution of the United States? The answer is, by that provision, article 1, § 10, which forbids any state to pass laws impairing the obligations of contracts. That constitutional provision, so far as it can be said to confer upon or secure to any person any individual rights, does so only indirectly and incidentally. It forbids the passage by the states of laws such as are described. If any such are nevertheless passed by the legislature of a state, they are unconstitutional, null, and void. In any judicial proceeding necessary to vindicate his rights under a contract affected by such legislation, the individual has a right to have a judicial determination declaring the nullity of the attempt to impair its obligation. This is the only right secured to him by that clause of the constitution. But of this right the plaintiff does not show that he has been deprived. He has simply chosen not to resort to it. The right to pay his taxes in coupons, and the immunity from further proceedins, in case of a rejected tender, are not rights directly secured to him by the constitution, and only so indirectly as they happen in this case to be the rights of contract which he holds under the laws of Virginia. And the only mode in which that constitutional security takes effect is by judicial process to invalidate the unconstitutional legislation of the state, when it is set up against the enforcement of his rights under his contract. The mode in which congress has legislated in aid of the rights secured by that clause of the constitution, is, as is pointed out with clearness and fullness in the opinion of the court in the Civil Rights Cases, 109 U.S. 3-12, S.C.. 3 SUP. CT. REP. 18, by providing for a review on writ of error to the judgments of the state courts, in cases where they have failed properly to give it effect, and by conferring jurisdiction upon the circuit courts by the act of March 3, 1875, c. 137, (18 St. 470,) of all cases arising under the constitution and laws of the United States, where the sum or value in dispute exceeds $500. Congress has provided no other remedy for the enforcement of this right.

It might be difficult to enumerate the several descriptions of rights secured to individuals by the constitution, the deprivation of which, by any person, would subject the latter to an action for redress under section 1979, Rev. St.; and, fortunately, it is not necessary to do so in this case. It is sufficient to say that the declaration now before us does not show a cause of action within its terms.

The judgment of the circuit court is accordingly affirmed.

title: Carter v. Greenhow/Opinion of the Court


text: Talk:Carter v. Greenhow/Opinion of the Court


text:
Pleasants v. Greenhow

''Wm. L. Royall, Wager Swayne, and D. H. Chamberlain'', for appellant.

F. S. Blair, Atty. Gen., for appellee.

MATTHEWS, J.

title: Pleasants v. Greenhow


text: Talk:Pleasants v. Greenhow

title: Talk:Pleasants v. Greenhow


text:
Pleasants v. Greenhow/Opinion of the Court

This is a bill in equity filed by the appellant, a citizen of Virginia, praying that the defendant, Greenhow, treasurer of the city of Richmond, may be perpetually enjoined from taking steps, by distraint of the complainant's property, to collect certain taxes claimed by the defendant to be due to the state of Virginia, amounting to $36.25, but for which the bill avers the complainant tendered in payment the exact amount thereof, for a part, coupons cut from bonds issued by the state under the act of March 30, 1871, and part in money. On demurrer to the bill, it was dismissed by the circuit court for want of jurisdiction, the amount in controversy being less than $500, and the complainant has brought this appeal. It is sought to maintain the jurisdiction in this case on the ground that the suit is authorized by section 1979, Rev. St., jurisdiction to entertain which is conferred by the sixteenth clause of section 629, Rev. St. The case comes within the decision just rendered in Carter v. Greenhow, ante, 928, and is governed by it. It is not, in our opinion, such a suit as is contemplated by the sections of the Revised Statutes referred to. As the sum or value in controversy does not exceed $500, the suit cannot be maintained as a case arising under the constitution and laws of the United States, provided for in the act of March 3, 1875, c. 137, (18 St. 470.) The bill was, therefore, rightly dismissed.

The decree of the circuit court is accordingly affirmed.


text: Talk:Pleasants v. Greenhow/Opinion of the Court


text:
Page:A Book of Dartmoor.djvu/76

48 flint scrapers are found for cleaning the hides, plenty of rubber-stones for smoothing seams, plenty of small knives for cutting up meat, but hardly a spear-head, and arrow-heads are comparatively scarce. Their most formidable camp is at Whit Tor, the soil of which is littered with flint chips. It did not, on exploration, yield a single arrow-head. The pounds were inclosed to protect the sheep and young cattle against wolves, not to save the scalps of their owners from the tomahawks of their fellow-men. With regard to the numbers of people who lived on Dartmoor in prehistoric times, it is simply amazing to reflect upon. Tens of thousands of their habitations have been destroyed; their largest and most populous settlements, where are now the "ancient tenements," have been obliterated, yet tens of thousands remain. At Post Bridge, within a radius of half a mile, are fifteen pounds. If we give an average of twenty huts to a pound, and allow for habitations scattered about, not inclosed in a pound, and give six persons to a hut, we have at once a population, within a mile, of 2,000 persons.

Take Whit Tor Camp. To man the wall it would require 500 men. Allow to each man five noncombatants; that gives a population of 2,500. There are pounds and clusters of hut circles in and about Whit Tor that still exist, and would have contained that population. Take the Erme valley, high up where difficult of access; the number of huts there crowded on the hill slopes is incredible. On the height is a cairn, surrounded by a ring of stones, from which leads a line of upright blocks for a

title: Page:A Book of Dartmoor.djvu/76


text:
Marye v. Parsons

F. S. Blair, Atty. Gen., A. H. Garland, R. T. Merrick, and Walter R. Staples, for appellants.

Richard L. Maury, Wager Swayne, and D. H. Chamberlain, for appellee.

MATTHEWS, J.

title: Marye v. Parsons


text: Talk:Marye v. Parsons

title: Talk:Marye v. Parsons