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United States v. Knox (102 U.S. 422)/Opinion of the Court

This case is a petition for a writ of mandamus directed to the comptroller of the currency. It was fully heard in the court below upon the merits. The writ was refused, and judgment for costs rendered against the relator, the Citizens' National Bank of Louisiana. This writ of error was thereupon sued out, and the case is thus brought before us for review.

There is no controversy as to the facts. The only question presented for our consideration is a question of law. The case made in the record, so far as it is necessary to be stated for the purposes of this opinion, is as follows: On the 7th of April, 1874, the Crescent City National Bank of New Orleans was, and for some time had been, insolvent and in the hands of a receiver. On that day the comptroller assessed each shareholder seventy per cent upon the par value of each share of his stock, and ordered the receiver to collect the assessment. This the receiver proceeded to do by filing a bill in equity in the Circuit Court of the United States for the District of Louisiana, against all the shareholders. Thereafter he obtained a decree against all the defendants severally, who were within the jurisdiction of the court, for the amount due from each one according to the assessment, and the cause was thereupon continued to await any further assessment the comptroller might deem it proper to make, and it is still pending.

The capital stock of the bank was $500,000; seventy per cent, therefore, was $350,000.

This sum, if it could have been collected in full, would have paid all the debts of the bank and left a balance over. But by reason of the insolvency of many of the shareholders the assessment netted only $112,658.13, and nothing, or very little more, will hereafter be realized from it. From the proceeds of the assessment and other assets of the bank, eighty per cent of the principal of its debts have been paid.

The relator being a large creditor of the bank, requested the comptroller to order a further assessment of thirty per cent upon each share of the capital stock, for the discharge of the balance of principal and interest still due to its creditors, and to direct the receiver to proceed as before to collect the amount of the new assessment. The comptroller refused, because the enforcement of such an assessment would compel the solvent shareholders to pay the sums and proportions due from the shareholders who are insolvent.

He holds that no such liability is imposed on the solvent shareholders, and that he has, therefore, no right or power to make the assessment as requested.

The point to be decided is whether he is clothed with this power and duty, and whether the shareholders are thus liable.

The first bank law was passed Feb. 25, 1863, c. 58, 12 Stat. 665. The last clause of sect. 12 is as follows:--

'For all debts contracted by such association for circulation, deposits, or otherwise, each shareholder shall be liable to the amount of the par value of the shares held by him, in addition to the amount invested in such shares.'

This provision was changed in 1864, and has been since and is now in force in these terms: 'The shareholders of every national banking association shall be hled 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 such shares.' Rev. Stat., sect. 5151.

The act of 1863 made no provision for enforcing the personal liability of shareholders, while that of 1864 provided that it might be done through a receiver appointed by the comptroller, and acting under his direction. Id., sect. 5234.

The difference between the clause creating the individual liability as it was originally, and as it was after it was amended and altered, is obvious and striking. The change was plainly made ex industria, to prevent the possibility of doubt as to the meaning of Congress. What the effect of the clause would have been without the change is a point we are not called upon to consider. The charter of a private corporation is a contract between the law-making power and the corporators, and the rights and obligations of the latter are to be measured accordingly.

By the common law the individual porperty of the stockholders was not liable for the debts of the corporation under any circumstances. Here the liability exists by virtue of the statute and the assent of the corporators to its provisions, given by the contract which they entered into with Congress in accepting the charter. With respect to the character of that liability, it is entirely clear from the language employed in creating it, that it is several and cannot be made joint, and that the shareholders were not intended to be put in the relation of guarantors or sureties, 'one for another,' as to the amount which each might be required to pay.

In the process to be pursued to fix the amount of the separate liability of each of the shareholders, it is necessary to ascertain, 1, the whole amount of the par value of all the stock held by all the shareholders; 2, the amount of the deficit to be paid after exhausting all the assets of the bank; 3, then to apply the rule that each shareholder shall contribute such sum as will bear the same proportion to the whole amount of the deficit as his stock bears to the whole amount of the capital stock of the bank at its par value. There is a limitation of this liability. It cannot in the aggregate exceed the entire amount of the par value of all the stock.

The insolvency of one stockholder, or his being beyond the jurisdiction of the court, does not in any wise affect the liability of another; and if the bank itself, in such case, holds any of its stock, it is regarded in all respects as if such stock were in the hands of a natural person, and the extent of the several liability of the other stockholders is computed accordingly. Crease v. Babcock, 10 Metc. (Mass.) 525.

These rules have been applied in several well-considered judgments of other courts, where the words we have italicized were not in the statutes upon which they proceeded. We have found no case in conflict with them. See Crease v. Babcock, supra; Atwood v. R. I. Agricultural Bank, 1 R. I. 376; In the Matter of the Hollister Bank, 27 N. Y. 393; Adkins v. Thornton, 19 Ga. 325; Robinson v. Lane, id. 337; Wiswell v. Starr, 48 Me. 401. See also Morse on Banking, 503.

Although assessments made by the comptroller, under the circumstances of the first assessment in this case, and all other assessments, successive or otherwise, not exceeding the par value of all the stock of the bank, are conclusive upon the stockholders, yet if he were to attempt to enforce one made, clearly and palpably, contrary to the views we have expressed, it cannot be doubted that a court of equity, if its aid were invoked, would promptly restrain him by injunction.

Nothing in this opinion is intended in any wise to affect the authority of Kennedy v. Gibson and Others, 8 Wall. 498, and Casey v. Galli, 94 U.S. 673. On the contrary, we approve and reaffirm the rule laid down in those cases.

The comptroller decided correctly as to his duty in this case.

Judgment affirmed.


text: Talk:United States v. Knox (102 U.S. 422)/Opinion of the Court

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McElrath v. United States

APPEAL from the Court of Claims.

On the 5th of June, 1866, Thomas L. McElrath transmitted to the Secretary of the Navy his resignation as a first lieutenant in the Marine Corps. By an official communication from the Navy Department, dated June 19, 1866, and signed by Mr. Welles, as Secretary of the Navy, he was notified that the department declined to accept his resignation, the Secretary adding, 'As you deserted from the 'Monogahela' on the eve of her sailing for the West Indies, you are hereby dismissed from the service from this date.' The President, June 27, 1866, nominated to the Senate for appointment Second Lieutenant George B. Haycock of the Marine Corps to be a first lieutenant in that corps, from June 20, 1866, 'vice Thomas L. McElrath, dismissed.' To that appointment the Senate gave its advice and consent; and Haycock was accordingly commissioned, July 13, 1866, to be first lieutenant, on the active list, from June 20, 1866. Thus matters stood until May 14, 1873, when McElrath made a formal application to the department for the revocation and annulment of the order of dismissal of June 19, 1866, submitting therewith evidence tending to show that he was not a deserter, as charged in the order of that date. Pending that application, he tendered, July 10, 1873, his resignation as a first lieutenant in the Marine Corps. On the same day, Mr. Robeson, then Secretary of the Navy, notified him, in writing, that 'the order of June 19, 1866, dismissing you [him] from the service, is hereby revoked, having been issued under a mistake of facts.' The Secretary added: 'You are thus restored to the position which you held at the date of that order. The resignation which you now tender is accepted, to take effect this day.'

On the eighth day of January, 1874, the claimant was further notified, in writing, by the Secretary of the Navy, as follows: 'Your dismissal from the Marine Corps, as a first lieutenant, dated 19th of June, 1866, is revoked, and your resignation as a first lieutenant in that corps, tendered in your letter of the 10th of July, 1873, is accepted from that date.'

Why this second notification was given is not explained, and, in the view which the court takes of the case, it is not material to inquire.

In January, 1874, the claimant made application to the Fourth Auditor of the Treasury for the settlement of his account as first lieutenant in the Marine Corps. That officer, upon examination and settlement of the account, certified to the Second Comptroller that the sum due to the claimant was $6,106.53, being the amount of the half-pay and allowances of a first lieutenant of marines from June 21, 1866, to July 10, 1873, inclusive. The Second Comptroller, having examined the Auditor's settlement, certified its correctness to the Secretary of the Navy, who issued his requisition, properly countersigned, upon the Secretary of the Treasury, requesting a warrant in behalf of the claimant for the amount so ascertained. A warrant was accordingly issued, and that sum was paid to the claimant, who, at the time he received it, declared his belief that the sum was not the entire amount due him, and that he accepted the same under protest, and should hold himself in no manner concluded as to the remaining sum claimed to be due him.

All of the foregoing facts, and the further fact that the number of first lieutenants in the Marine Corps, from June 5, 1866, to July 10, 1873, was thirty, were known to the Fourth Auditor, the Comptroller, and the Secretary of the Navy when they respectively acted upon the claimant's account.

It also appears that, from June 19, 1866, to June 10, 1873, he was engaged in business in New York, earning $30 per week. In other words, he earned in private business, when not performing service in the navy, during the above period, more than $10,000.

The present action is by McElrath to recover from the United States the balance, nearly $7,000, alleged to be due him on account of pay and allowances as a first lieutenant in the Marine Corps of the United States. The government, denying its indebtedness to him in any sum whatever, set up a counter-claim for the sum of $6,106.53, which, it contends, was paid to him by the accounting officers of the Treasury Department without warrant of law. A judgment was rendered in favor of the United States therefor, and he appealed.

He assigns for error that the Court of Claims erred in holding: 1. That the order of June 19, 1866, was the order of the President, and that the latter dismissed him from the Marine Corps from that date. 2. That he was not entitled to pay and allowance from June 21, 1866, to July 10, 1873. 3. That, in a suit brought in the Court of Claims against the United States, the latter can recover on a counter-claim a judgment against a claimant further than is necessary to defeat his claim. 4. That a counter-claim by the United States in the Court of Claims which seeks an affirmative judgment for more than twenty dollars is not a suit at common law within the meaning of the [[United States Bill of Rights|[[United States Bill of Rights|[[United States Bill of Rights|[[United States Bill of Rights|Seventh Amendment]]]]]]]] to the Constitution; and that so much of sect. 3 of the act of March 3, 1863 (12 Stat. 765), as purports to confer on said court power to render such judgment, is not in violation of the Constitution; and that no part of the proceedings in this case constituted or belonged to a suit at common law within that amendment. 5. That the United States under the counter-claim could recover of the appellant the sum paid to him by the accounting officers of the treasury as half-pay and allowances for the period; viz., $6,106.53.

Mr. Frank W. Hackett for the appellant.

The attempted dismissal by Secretary Welles, by his letter of June 19, 1866, was illegal and void. Power summarily to dismiss a commissioned officer of the Marine Corps was at that date lodged in the President alone. Art. of War, 2 Stat. 359; Ex parte Hennen, 13 Pet. 230; Gratiot v. The United States, 1 Ct. of Cl. 258. The presumption that an official act of the head of department is that of the President, appears to be founded upon the theory that, at some previous period, the President gave general directions, in conformity to which a secretary may from time to time transact public business. But this implied general authority must be confined to such ministerial acts as are within the proper sphere of the secretary's duties. On the dismissal of commissioned officers of the army or the navy by the President, the order, to be effectual and valid, if it be not signed by him, should at least purport to be an attestation of his act.

The action of the President and Senate in nominating and confirming Haycock did not indirectly have the effect of dismissing McElrath. A dismissal from an office, the incumbent whereof is removable at the pleasure of the President, may be caused by the appointment of a successor; but, until the latter is commissioned, that action vests no right in him, nor does it work the removal of the incumbent. Marbury v. Madison, 1 Cranch, 137; United States v. LeBaron, 19 How. 73. Haycock's commission was not signed till July 13, 1866. But on that day a statute went into effect providing that no officer of the military or the naval service should in time of peace be dismissed from service except upon and in pursuance of the sentence of a court-martial to that effect, or in commutation thereof. 14 Stat. 92. A Federal statute takes effect from its date. Matthew v. Zane, 7 Wheat. 164. This statute took effect from the beginning of July 13. United States v. Lapeyre, 17 Wall. 191; United States v. Norton, 97 U.S. 164. Congress, under art. 1, sect. 8, of the Constitution, empowering them to 'make rules for the government and regulation of the land and naval forces,' may restrain the implied power of the President to make summary dismissals.

The claimant is entitled to full pay and allowances from June 19, 1866, to July 10, 1873. He was debarred from active service by a cause which he could not control, and from no fault of his own. Act June 30, 1834, 4 Stat. 713; Rev. Stat., sect. 1612; Digest Decisions Judge-Advocate-General of the Army, pp. 267-268, sects. 14, 18, 19.

So much of sect. 3 of the act of March 3, 1863 (Rev. Stat. 1061), as purports to give the Court of Claims power to render judgment in favor of the United States against a claimant, is in violation of the [[United States Bill of Rights|[[United States Bill of Rights|[[United States Bill of Rights|[[United States Bill of Rights|Seventh Amendment]]]]]]]] of the Constitution, which provides that in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. Bains v. The James and Catherine, 1 Baldw. 544; Parsons v. Bedford, 3 Pet. 446; Willard v. Dorr, 3 Mas. 161. The counter-claim upon which this judgment was rendered was a suit at common law for money had and received. A counter-claim which seeks not merely to defeat the cause of action, but to obtain a distinct and independent judgment against the claimant, is not a mere incident to the original claim. It is a new suit. The original suit in the Court of Claims is not a suit at common law, but the moment the government attempts to obtain an affirmative judgment in any sum whatever against a claimant, the proceeding, so far as that judgment is concerned, becomes a suit at common law.

Unquestionably, as a general principle, Congress has the right to prescribe terms upon which the government consents to be sued. But it cannot authorize the government to sue an individual in a suit at common law, and deny him therein a trial by jury. Nor can it do this indirectly by attaching to his right to sue the government a condition that he shall surrender a privilege guaranteed to him by the Constitution. He may, by formally giving his assent thereto, waive the right of trial by jury; but it is the duty of Congress to preserve the right in all suits at common law. The Court of Claims has no jury, consequently a petitioner cannot be said sua sponte to waive his right to one. Nor is it entirely correct to treat the right of bringing suit in the Court of Claims as a favor. United States v. Klein, 13 Wall. 144.

But conceding that the court had authority to enter judgment upon the counter-claim, the judgment itself was erroneous. The Secretary and the Second Comptroller decided that appellant was legally entitled to receive the sum paid him. The subject-matter being within their jurisdiction, it is presumed that their action was correct in point of law. Wilkes v. Dinsman, 7 How. 89. If the money was paid upon a mistake, it was a mistake of law, and according to the well-known rule it is not recoverable.

The Second Comptroller of the Treasury is a quasi judicial officer. His decisions have the ordinary elements of finality. McKee v. United States, 12 Ct. Cl. 532; McKnight v. United States, 13 id. 292. They are authoritative declarations of law binding on his successors, and respected in like manner as the constructions of a statute which have received judicial sanction. He has jurisdiction to determine whether or not an individual is an officer of the naval or the military forces, and as such entitled to pay and allowances.

This court does not know upon what precise grounds the Comptroller based his decision. There may have been facts presented to him which do not appear of record here. Because the appellant brought his petition in the Court of Claims, asking full pay instead of half pay for a specified period, and because certain facts are certified here from the court below, it does not follow that the payment by the Treasurer, after allowance by the Second Comptroller, was based upon these facts, and nothing else. That, though closely connected with the present proceeding, is a distinct transaction, and there may have been proof laid before the Comptroller which the appellant did not make before the court below, or which is not certified up.

How is this court, for instance, to know whether or not Lieutenant McElrath's case as laid before the Comptroller came within the provisions of the act of March 3, 1865? That act (13 Stat. 489) was in force at the date of Secretary Welles's letter. It provided that in case any officer dismissed by order of the President should 'make application for a trial, setting forth under oath that he has been wrongfully and unjustly dismissed, the President shall, as soon as the necessities of the public service may permit, convene a court-martial to try such officer. And if such court-martial shall not award dismissal or death as the punishment of such officer, the order of dismissal shall be void. And if the court-martial aforesaid shall not be convened for the trial of such officer within six months from the presentation of his application for trial, the sentence of dismissal shall be void.'

Suppose that an officer dismissed under such circumstances had applied for a court-martial. That tribunal is not convened within six months, or, if convened, does not award death or dismissal. The statute makes the order of dismissal absolutely void. The President meanwhile has sent in to the Senate, and that body has confirmed, the nomination of another individual to fill the vacancy. Is the dismissal thus made legal and valid?

It is error to treat the Comptroller as an agent of the government to settle accounts rather than as a quasi-judicial officer, competent to decide the question whether or not Lieutenant McElrath was legally an officer of the navy. While his opinion upon the law of the case may be pronounced incorrect by this court, payment of money made by the government in conformity with his opinion is final and conclusive. Nor does the appellant, by bringing suit in the Court of Claims, reopen the settlement at the treasury so as to entitle the government to recover money paid in mistake of law. If this were the case of credits or allowances made in an account, it may be conceived that an action on the account would give opportunity for the defendant to restate his account; but here the government has actually paid over the money and closed the transaction, so far as the question of liability to pay anything at all is concerned; the only thing remaining unsettled being the method of computation.

As there is no statute of limitation running against the United States, there would be constant danger in dealing with the government, for fear that, years after receiving one's lawful dues (as he supposes), one's heirs would be called upon to make restitution; whereas, practically, but little loss can result to the treasury from an adherence to what has proved a sound rule in transactions between individuals.

The Attorney-General for the United States.

McElrath held his office at the pleasure of the President, and such was the tenor of his commission.

The President's power of summarily dismissing an officer of the army or the navy, although frequently exercised from the origin of the government, was never seriously questioned. No attempt was made until 1865 to impose any limitation upon it. Sect. 17 of the act of July 17, 1862 (12 Stat. 596), did not confer the power, but rather recognized and declared its existence, and requested him to exercise it whenever the efficiency of either of those branches of the service would, in his opinion, be thereby promoted.

The letter of the head of the Navy Department of June 19, 1866, to McElrath as effectually severed his connection with the service as if it had declared in express terms that the dismissal was by order of the President. Wilcox v. Jackson, 13 Pet. 498. If this, however, were an open question, and doubts could be raised on the subject, they would be removed by the President's nominating, June 27, 1866, Haycock, vice McElrath dismissed, and his subsequently commissioning the former from June 20, 1866, pursuant to the appointment made by and with the advice and consent of the Senate. The record thus furnishes conclusive proof of McElrath's dismissal by the President.

Congress has power, by express grant, to make rules for the government and regulation of the land and naval forces. Whether by such rules the President's power of removal can, consistently with the Constitution, be restricted, is a question which does not arise in this case. Sect. 12 of the act of March 3, 1865 (13 Stat. 489), does not apply to McElrath, as he did not avail himself of its provisions; nor does sect. 5 of the act of July 13, 1866 (14 id. 92), for when it took effect he was not in the service.

McElrath being out of the navy, his relations to it thereafter were the same as if he had never entered it. The Secretary's pretended restoration of him in 1873 was without effect. He could only be appointed by the President in the mode prescribed by the Constitution and laws.

All the facts bearing upon the case being set forth in the claimant's petition, the issue before the Court of Claims was essentially one of law, involving the effect of the order of dismissal, its attempted revocation, and the lawfulness of the payment made, under the circumstances, by officers of the United States.

The question of the constitutionality of sect. 1061, Rev. Stat., which he discusses, does not, therefore, fairly arise; but, conceding that it does, the section has no relation to matters of defense which might be pleaded in a suit at common law. It authorizes that court to hear and determine any distinct and separate cause of action of the United States against the claimant, at the same time with his claim; and if it be less or equal to his, to set it off; and if it be greater, to render judgment for the United States. The principle is the same whether the counter-claim be greater or less than the amount to recover which the suit was brought.

The act of Feb. 10, 1855 (10 Stat. 612), first gave the formal consent of the United States to be sued. To the privilege thus conferred Congress subsequently attached the right of the government to plead a set-off, a counter-claim, a claim for damages, whether liquidated or unliquidated, or other demands on its part.

McElrath, by availing himself of the privilege, waived in the Court of Claims whatever right he possessed of trial by jury in other courts.

A set-off is merely an incident to a pending suit, and acts upon a plaintiff already in court. Congress has not attempted to bring debtors into a court where there is no trial by jury. It simply says, that when asserting rights by suit against the United States they shall be subject to its cross-demand.

A ser-off did not exist at common law in suits at law. Green v. Darling, 5 Mas. 201; Green v. Farmer, 4 Burr. 2214.

In a recent case brought here by appeal from the Court of Claims, where the judgment upon a counter-claim was for hundreds of thousands of dollars, it was not suggested or intimated by eminent counsel that sect. 1061 was unconstitutional. Union Pacific Railroad Co. v. United States, 99 U.S. 402.

The argument of the claimant strikes at the whole existence of the court, for it was as customary to try by jury issues of fact arising on a petition of right, as those arising in suits brought by the sovereign against the subject. Tidd's Practice, tit. Extent in Chief, p. 1046; Manning's Exchequer Practice, tit. Petition of Right, p. 85.

The receipt by the claimant of public money to which he had no right, legal or equitable, gave to the United States a cause of action.

The allowance of the claim by the accounting officers is no obstacle to a recovery. After jurisdiction to hear set-offs and counter-claims had been conferred on the Court of Claims, Congress provided, by the act of March 30, 1868 (15 Stat. 54, sect. 191, Rev. Stat.), that the balances stated by those officers upon settlements of public accounts should be subject to revision by the proper courts.

Neither the United States nor the claimant is bound by those settlements. United States v. Bank of the Metropolis, 15 Pet. 377; United States v. Kaufman, 96 U.S. 567.

Public money paid improperly and without authority of law by the agents of the government, may be recovered. Cooke v. United States, 91 U.S. 397; Bayne v. United States, 93 id. 642; Attorney-General v. Perry, 2 Com. 481; United States v. Bartlett, 2 Ware, 9; Duke de Cadaval v. Collins, 6 Nev. & M. 324; Jones v. Barkley, 2 Doug. 684, 697; Muttyloll Seal v. Dent, 8 Moo. P. C. C. 319; Evans's Essay on the Action for Money Had and Received, 28, 29.

MR. JUSTICE HARLAN, after stating the case, delivered the opinion of the court.

title: McElrath v. United States


text: Talk:McElrath v. United States

title: Talk:McElrath v. United States


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

The first and second assignments of error proceed upon the ground that, notwithstanding the order of dismissal of June 19, 1866, and the subsequent appointment, by and with the advice and consent of the Senate, of Haycock as a first lieutenant in the Marine Corps, vice McElrath, the latter was never legally dismissed from the service, but was, in law, a first lieutenant in that corps during the whole period from June 20, 1866, to July 10, 1873, and as such entitled to full pay and allowances.

In discussing the questions of law involved in this position, counsel for the claimant starts with these propositions: that the order of dismissal issued from the Navy Department under the official signature of Secretary Welles was without authority of law; that the President alone, at that time, was invested with power to summarily dismiss from the service a commissioned officer of the Marine Corps; and that, since the order in question simply purported to be the act of the Secretary, and did not purport to be the act of the President, or to have been issued in pursuance of any previous direction by him given, the presumption cannot be indulged that the dismissal of Lieutenant McElrath was by order of the President.

These propositions open up a very broad field of inquiry as to what exceptions there are to the general rule that the direction of the President is to be presumed in all instructions and orders issuing from the proper department concerning executive business, notwithstanding they may contain no express statement of any direction from him as to the matters to which such instructions or orders refer. There are, undoubtedly, official acts which the Constitution and laws require to be performed by the President personally, and the performance of which may not be delegated to heads of departments, or to other officers in the executive branch of the government. It is equally true that, as to the vast multiplicity of matters involved in the administration of the executive business of the government, it is physically impossible for the President to give them his personal supervision. Of necessity he must, as to such matters, discharge his duty through the instrumentality or by the agency of others. Whether a particular act belongs to one or the other of these classes may sometimes be very difficult to determine, and we shall not attempt now to lay down any general rule upon the subject. Nor shall we extend this opinion by any consideration of the question whether the particular order, signed by Secretary Welles, should not be presumed to have been issued by direction of the President. The determination of that question is not essential to the disposition of this case, since, if that order should, for the reasons urged by the claimant's counsel, be deemed a nullity, the nomination and confirmation, subsequently, of Lieutenant Haycock, followed by his commission, as a first lieutenant in the Marine Corps in place of Lieutenant McElrath, as certainly operated, under the law as it then was, to remove the latter from the service, as if he had been dismissed by direct order of the President under his own signature. This, because, as is conceded, the President, at the time he asked the advice and consent of the Senate to the appointment of Lieutenant Haycock in place of Lieutenant McElrath, had the power to dismiss the latter, summarily, from the service. That power, if not possessed by the President, in virtue of his constitutional relations to the army and navy (and as to that question we express no opinion), was given by an act of Congress approved July 17, 1862. The seventeenth section of that statute declared 'that the President of the United States be, and hereby is, authorized and requested to dismiss and discharge from the military service, either in the army, navy, marine corps, or volunteer force, in the United States, any officer, for any cause which, in his judgment, either renders such officer unsuitable for, or whose dismission would promote, the public service.' 12 Stat. 599. The message of the President informing the Senate of the dismissal of Lieutenant McElrath, and the consent of the Senate to the appointment of Lieutenant Haycock, in his stead, followed by a commission, in due form, clearly invested the latter with the office which McElrath had held, and gave him from that time the exclusive right to the pay and allowances attached to that position.

But we are here met with the suggestion that a vacancy did not exist, and Lieutenant Haycock's right to the office did not attach until he received his commission on the thirteenth day of July, 1866, on which day, and from the first moment of that day, as is claimed upon the authority of United States v. Lapeyre (17 Wall. 191) and United States v. Norton (97 U.S. 164),-it was the law that 'no officer of the military or naval service shall, in time of peace, be dismissed from service, except upon and in pursuance of the sentence of a court-martial to that effect, or in commutation thereof.' Act of July 13, 1866, 14 Stat. 92. To this suggestion one obvious answer is, that the act of July 13, 1866, was not, on that day, in effective operation. That act assumes to control the President, in the matter of dismissing officers from the naval and military service, only in time of peace. Its purpose was, upon the declaration of peace, to suspend the broad power which he exercised during the recent rebellion, when prompt, vigorous action was often demanded, to dismiss an officer from the service whenever, in his judgment, the public interests would thereby be promoted. But when was the rebellion suppressed and peace inaugurated? Not until the twentieth day of August, 1866, on which day the President announced, by proclamation, that the insurrection against the national authority was at an end, and that 'peace, order, tranquillity, and civil authority' then existed 'in and throughout the whole of the United States of America?' 14 Stat. 814; United States v. Anderson, 9 Wall. 71; The Protector, 12 id. 702. The effect of that proclamation, as fixing the time when the rebellion closed, was distinctly recognized by Congress in the act of March 2, 1867 (14 Stat. 422), which declared that the previous act of June 20, 1864 (13 id. 144), increasing the pay of soldiers in the army, should be continued in full force and effect for three years 'after the close of the rebellion, as announced by the President of the United States, by proclamation, bearing date Aug. 20, 1866.' Since peace, in contemplation of law, could not exist while rebellion against the national government remained unsuppressed, the close of the rebellion and the complete restoration of the national authority, as announced by the President and recognized by Congress, must be accepted as the beginning of the 'time of peace,' during which the President was deprived of the power of summarily dismissing officers from the military and naval service.

It results that neither when Lieutenant Haycock was nominated to and confirmed by the Senate, nor when he was commissioned in place of McElrath, was the sentence of a court-martial, or any commutation thereof, required as a condition precedent to the exercise by the President of the power of dismissal, or to his appointment of an officer in the service, by and with the advice and consent of the Senate.

It also necessarily follows, from what has been said, that the orders which issued from the Navy Department under the signature of Secretary Robeson, in 1873 and 1874, even if issued by direction of the President, were inoperative for the purpose of reinstating the appellant in his position as a first lieutenant in the Marine Corps. The position to which it was attempted to restore him had, as we have seen, been previously filled by constitutional appointment, and by the laws then in force the incumbent could neither be displaced nor dismissed, except 'upon and in pursuance of the sentence of a court-martial to that effect, or in commutation thereof.' The attempted restoration was ineffectual for the additional and equally conclusive reason, that the complement of first lieutenants in the Marine Corps was at that time full. The order assuming to restore him was, of course, for the reasons already given, equally inoperative to entitle him to pay and allowances for any portion of the period covered by the account settled by the officers of the treasury. The requisition upon the Secretary of the Treasury by the Secretary of the Navy was, consequently, without warrant of law. During the period for which the appellant was allowed half-pay he was not an officer in the service, and the allowance to him of pay, after the appointment of his successor, was illegal.

We come now to inquire whether the Court of Claims erred in awarding judgment against the appellant for the amount paid to him out of the treasury of the United States upon the settlement of his accounts.

Upon this branch of the case counsel for the claimant contends that so much of the act of March 3, 1863, as invests the Court of Claims with power to render judgment in favor of the United States against a claimant, is in violation of the [[United States Bill of Rights|[[United States Bill of Rights|[[United States Bill of Rights|[[United States Bill of Rights|Seventh Amendment]]]]]]]] of the national Constitution, which provides that in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.

That section, referring to the trial of causes in which the government may plead against the claimant any set-off, counter-claim, claim for damages, or other demand, provides that the court shall hear and determine such claim and demand both for and against the government and claimant; and if, upon the whole case, the court finds that the claimant is indebted to the government, it 'shall render judgment to that effect, and such judgment shall be final, with the right of appeal, as in other cases provided for by law.' There is nothing in these provisions which violates either the letter or spirit of the [[United States Bill of Rights|[[United States Bill of Rights|[[United States Bill of Rights|[[United States Bill of Rights|Seventh Amendment]]]]]]]]. Suits against the government in the Court of Claims, whether reference be had to the claimant's demand, or to the defence, or to any set-off, or counter-claim which the government may assert, are not controlled by the [[United States Bill of Rights|[[United States Bill of Rights|[[United States Bill of Rights|[[United States Bill of Rights|Seventh Amendment]]]]]]]]. They are not suits at common law within its true meaning. The government cannot be sued, except with its own consent. It can declare in what court it may be sued, and prescribe the forms of pleading and the rules of practice to be observed in such suits. It may restrict the jurisdiction of the court to a consideration of only certain classes of claims against the United States. Congress, by the act in question, informs the claimant that if he avails himself of the privilege of suing the government in the special court organized for that purpose, he may be met with a set-off, counter-claim, or other demand of the government, upon which judgment may go against him, without the intervention of a jury, if the court, upon the whole case, is of opinion that the government is entitled to such judgment. If the claimant avails himself of the privilege thus granted, he must do so subject to the conditions annexed by the government to the exercise of the privilege. Nothing more need be said on this subject.

The remaining objection against the judgment in favor of the government upon its counter-claim deserves notice at our hands. It is, in substance, this: That the Secretary of the Navy, the Second Comptroller, and the Fourth Auditor having examined the claim of Lieutenant McElrath, and, with full knowledge of all the facts, decided that he was legally entitled to half-pay and allowances for the period in question, the amount paid him cannot be reclaimed because of the subsequent discovery that, in point of law, he was not an officer in the Marine Corps during the period for which he was allowed such half-pay. This view is controverted by the Attorney-General, who contends that the right of the government to reclaim money paid out of the treasury under a mere mistake of law is not subject to the same limitations which, under like circumstances, would be applied between individuals. The Attorney-General goes even further, and insists that whether the mistake be one of fact or of law, or of both, the government may always recover from third persons money improperly paid out of the public treasury by its accounting officers, not in pursuance of previous judicial determination. Whether the one or the other of these views, in the broad terms in which they are announced, is correct, we will not now inquire. For if the general rule applicable in such cases would preclude the government from reclaiming money which had been paid under a mistake of law simply, that rule is inapplicable under the circumstances disclosed in the present case.

Had the appellant rested upon the settlement of his account by the proper officers of the government, his right to invoke the general rule, to which we have referred, would have been entitled to more consideration than it can now receive. Upon receiving the amount awarded to him by the representatives of the government, he distinctly announced his purpose not to abide by their settlement of his accounts; but, in disregard thereof, to demand an additional sum upon the basis of full pay and allowances from June 20, 1866, to July 10, 1873.

This suit itself invites the court to go behind that settlement, to re-examine all the questions arising out of the appellant's claim for full pay and allowances, and to correct the error which he insists was committed to his prejudice by the accounting officers of the government. The government, declining to plead the settlement of 1874 in bar of the suit, meets him upon his own chosen ground, and, insisting that its officers, misapprehending the law, paid to him out of the treasury money to which he was not legally entitled, asks, as we think it may rightfully do, judgment for the amount thus improperly paid to him.

Judgment affirmed.


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


text:
Swift v. Smith

APPEAL from the Circuit Court of the United States for the Northern District of Illinois.

The facts are stated in the opinion of the court.

Mr. William C. Goudy for the appellants.

Mr. William T. Burgess and Mr. Van H. Higgins, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Swift v. Smith


text: Talk:Swift v. Smith

title: Talk:Swift v. Smith


text:
Swift v. Smith/Opinion of the Court

The appellants complain of the decree of the Circuit Court because it adjudged that the complainant, Janet Smith, as administratrix of David Smith, deceased, had a lien on the lots described in the bill, by virtue of the deed of trust purporting to have been made by George N. Williams to Obadiah Jackson on the first day of October, 1868, and because it adjudged that lien to be prior to the lien in favor of Joseph Swift and Edwin Swift, and that in favor of Elizabeth Carroll and Ellen Carroll. There are other objections to the decree, but the two mentioned are the most important, for they strike at all the relief sought by the complainant's bill.

Both the defendants below (now appellants) and the complainant claim under Charles C. Waite, who, it is agreed, was the owner of the lots on the first day of October, 1868. On that day Charles C. Waite made his deed of the lots to one George N. Williams, which was duly recorded on the twenty-fourth day of the same month. To secure the payment of part of the purchase-money, Williams gave two promissory notes, both dated Oct. 1, 1868, payable to the order of Charles C. Waite,-one for $6,000, payable in one year from its date, and the other for $30,000, payable four years after its date, with interest at the rate of eight per cent, payable semi-annually. On the same day (October 1) Williams made and delivered his deed of trust of the lots, sold to him by Charles C. Waite, to Obadiah Jackson, to secure payment according to the tenor of the promissory notes he had given. This deed was duly acknowledged and recorded concurrently with Waite's deed to him. In effecting the sale from Waite to Williams, and in taking the notes and security for the payment of the purchasemoney, Jackson was the attorney and agent for the vendor, and during some years thereafter the interest on the $30,000 note appears to have been paid through him. The $6,000 note was paid at its maturity. The other note came into the hands of Waite, the vendor, then living in New York, and he soon afterwards transferred and indorsed it to the order of his brother, Silas M. Waite, who subsequently, and before it fell due, indorsed it generally in blank to Obadiah Jackson. Thus Jackson became clothed with apparent ownership of the note, and with apparent power to transfer it by his indorsement.

On the eighteenth day of April, 1871, Jackson borrowed from David Smith, the complainant's intestate, the sum of $31,500, giving his promissory note therefor, and to secure the payment of his note he indorsed and delivered to Smith the Williams note for $30,000 as a collateral. This was nearly a year and a half before its maturity. At the time when the note was thus indorsed to Smith there were entries upon its back of payments of interest upon it up to May 17, 1871. These entries purported to be acknowledgments of 'S. M. Waite by O. Jackson.' There was also a regular chain of indorsements by Charles C. Waite, the payee, to Silas M. Waite or order; by Silas M. Waite to Obadiah Jackson or order, followed by an indorsement by Obadiah Jackson in blank. There was also on the margin of the note the following: 'This note secured by trust-deed of even date herewith, duly stamped.'

Thus far the facts appear without any real controversy, and unless there is something in the case to qualify them, they unquestionably etablish that on the 18th of April, 1871, Smith became the bona fide holder of the $30,000 note for value paid, and as such entitled to the benefit of the deed of trust given by Williams to Jackson to secure its payment. Though he took it only as a collateral security for a loan made to Jackson at the time, he was entitled to the protection of a purchaser for value, without notice of anything to impeach his right.

Conceding, what appears to be more than probable, that Jackson was not, in fact, the owner of the note when he transferred it to Smith, that he simply held it as agent or attorney of S. M. Waite for collection, and that in transferring it to Smith he perpetrated a fraud upon the true owner, it is still certain that he was clothed by Waite with power to transfer the ownership as he did. Waite's indorsement of the note to him gave him that power; and, though its exercise was a fraud, if Smith advanced his money in good faith, relying upon Jackson's apparent ownership, he was justified in so doing, and S. M. Waite, who enabled Jackson to negotiate the note, thereby lost his title. He was bound by Jackson's act.

There is nothing in the case to show that Smith's purchase was not in good faith. There was nothing upon the note, nor anything in the indorsement thereon, to notify him that it did not belong to Jackson, both legally and equitably. It was mercantile paper, and not due. One who purchases such paper from another, who is apparently the owner, giving a consideration for it, obtains a good title, though he may know facts and circumstances that cause him to suspect, or would cause one of ordinary prudence to suspect, that the person from whom he obtained it had no interest in it, or authority to use it for his own benefit, and though by ordinary diligence he could have ascertained those facts. Goodman v. Simonds, 20 How. 343. He can lose his right only by actual notice or bad faith. It is true that if the bill or note be so marked on its face as to show that it belongs to some other person than the one who offers to negotiate it, the purchaser will be presumed to have knowledge of the true owner, and his purchase will not be held to be ''bona fide. Fowler v. Brantly'', 14 Pet. 318. Nothing of this kind existed in the present case. Everything upon the note tended to show that it belonged absolutely to Jackson when Smith bought it. And we fail to discover anything in the entries of interest payments, or in any other circumstances, that should have aroused even suspicion to the contrary.

We are unable, therefore, to comprehend how it can be maintained, as the appellants contend, that the note did not belong to the complainant, but belonged to Silas M. Waite. Whatever may have been the fact before its indorsement to David Smith, and even after its indorsement to Jackson, Waite was estopped from asserting any claim to it by its transfer to Smith. It is true Waite is not a party to this suit. The decree does not bind him. But there is enough without the decree to estop him. He was examined as a witness for the appellants on the 12th of May, 1877. Then, if not before, he was informed that the note had been transferred to Smith, and that Smith's administratrix was proceeding to collect it. Plainly, then, it became his duty to assert his claim to it, if any he then had. He could not innocently lie by without intervention, or any action to vindicate his claim, while she was proceeding to enforce the trust. His laches, if he had any right, was inexcusable. But he made no movement in this case, and, so far as it appears, none elsewhere.

Without further remark upon this part of the case, we think we have said enough to warrant the conclusion at which we have arrived, that the complainant's intestate, on the 18th of April, 1871, became the owner of the note, and thereby entitled to the benefit of the trust declared in the deed of Williams to Jackson.

The appellants, however, contend that no lien was created by that deed, because, as they assert, Williams was a fictitious person, or an alias of Jackson, and, therefore, that the pretended deed was void, since no man can convey to himself. This is a strange position for the appellants to take. If there was no such person as Williams, then Waite's deed to Williams was a nullity, for there was no person to take, and, as all the rights which the appellants assert come from Waite through Williams (as will appear hereafter), they have no interest in resisting the demand of the complainant, and are not entitled to be heard in the case. And so, as all the rights they assert are by virtue of a deed subsequently made by Williams (a deed hereafter to be noticed), it is not easy to see how they can have any standing; or, if Williams was but another name for Jackson, and Waite's deed was made to Jackson under the name of Williams, then the note, though signed by the name George N. Williams, was Jackson's note, and the trust-deed signed by the same name would be construed as a declaration of trust for the security of the note, equivalent to a covenant to stand seised to uses for the holder. But we are of opinion that Williams was not a myth. Beyond doubt Waite's deed was made to a person calling himself Williams, and made to the same person who signed the note and signed and acknowledged the deed of trust. Whether that was his real name or not is immaterial. He appeared before the notary and acknowledged the deed as his. He was not Jackson, it is clear. The evidence that the witnesses called in 1877 knew no such person as George N. Williams, in a city containing several hundred thousand inhabitants, is hardly worthy of respect as proof that no such person was in Chicago in 1868. The existence of the lien, or of the trust declared by the deed, is not to be disprove by such evidence.

Concluding, then, that David Smith, on the 18th of April, 1871, obtained a lien on the lots described in the bill by virtue of the deed of trust from Williams to Jackson, we come to consider the second leading objection urged against the decree of the Circuit Court. It is that the court erred in decreeing that lien to be prior to the liens in favor of the appellants Swift and Carroll.

To comprehend this assignment of error, it is necessary to observe the facts as they appear in the record.

On the fifth day of October, 1868, Williams, who had then become the purchaser of the lots, and who held them subject to his deed of trust to Jackson, sold and conveyed them by warranty deed to Mary P. Moody for the consideration of $60,000, subject to the deed of trust to secure the payment of the $30,000 note which the grantee agreed to assume and pay as part of the consideration of the purchase. This deed was recorded Oct. 24, 1868.

On the 17th of May, 1871, Mary P. Moody, by warranty deed, recorded May 25, 1871, conveyed the lots, for the consideration of $45,000, to Charles V. Dyer, subject to the trust-deed aforesaid, describing it as given to secure to note for $30,000, which amount, with interest from date, the grantee covenanted to pay as part of the consideration.

Afterwards, on the first day of June, 1872, Charles V. Dyer and wife, by deed of that date with warranty, conveyed the lots to Obadiah Jackson aforesaid, expressly subject 'to a trust-deed given by George N. Williams to Jackson, dated Oct. 1, 1868,. . . to secure a certain note on which is due $30,000 and interest.' This deed was filed for record June 18, 1872.

Subsequently Jackson, with his wife, made a deed of trust of the same property to Norman Perkins to secure the payment of an indebtedness by two bonds, each for $25,000, given by Jackson, one to Joseph Swift and the other to Edwin Swift. This deed was dated June 1, 1872, acknowledged June 29, 1872, and filed for record Aug. 3, 1872.

On the same day, Aug. 3, 1872, there was filed for record an instrument puporting to be a release by Jackson, to Charles V. Dyer, for the consideration of one dollar, of the right, title, interest, claim, and demand of him, the said Jackson, which he had acquired by virtue of the trust-deed given to him by Williams to secure payment of the $30,000 note. This release was dated Oct. 2, 1871. It was not acknowledged until Aug. 3, 1872, the day when the deed of trust to Perkins was filed for record, nor did it acknowledge the payment of the note.

On the thirteenth day of November, 1876, Jackson and wife made a second deed of trust, conveying the lots with other property to George Chandler to secure the payment of notes which he had given to Elizabeth Carroll and Ellen Carroll. This deed was filed for record on the next following day.

This recital of the conveyances exhibits the fact that the lien of the trust-deed to Jackson, given to secure the payment of the note for $30,000, was long prior in time to the liens of the Messrs. Swift, and Elizabeth and Ellen Carroll, and it was certainly in existence on the 18th of April, 1871, when that note was indorsed to Smith, the complainant's intestate.

But it is earnestly insisted by the appellants that the act of Jackson in making the release to Dyer protects them against the Williams deed of trust. That the release was a gross fraud upon the rights of Smith, the holder of the Williams note, is plain enough, and we think both the Swifts and the Carrolls had constructive, if not actual, notice that it was fraudulent. They were bound to know what was in the line of their title, that title being upon record. They are presumed to have known, and they are affected by the recitals in the deed under which they assert their rights. The trust-deed to Jackson informed them of the trust to protect the $30,000 note, and informed them that when the release was made and put upon record the note had not matured. The deeds to Mrs. Moody, to Dyer, and from Dyer to Jackson, all recited the continued existence of the debt, down to June, 1872, ane each grantee, including Jackson, assumed its payment. The record assured them that Jackson was the owner of the lots when the release to Dyer was made, and that Dyer had no interest in the trustdeed to be released. They, therefore, were informed that the release was substantially a release by Jackson to himself of a debt which he had assumed to pay. Even if his power to execute the trust confided in him by the trust-deed was not extinguished by his acquisition of the property, it was evident that he could not release the lien, while he remained the owner of the lots, without a gross abuse of his trust. In regard to Perkins, who was the trustee in Jackson's deed to secure the Swifts' loans, and who was their attorney to examine the title before the loans were made and the trust-deed was executed, it appears that he knew there was no release of the trust for the protection of the Williams note, and required one to be filed. The release was brought to him by Jackson, unacknowledged. It was, therefore, in Jackson's possession, and, in fact, Dyer had never seen it. It was dated in 1871, October 2, and Perkins was informed that was not the date when the instrument was made. Jackson told him, indeed, it was the date when the debt was paid; but he was not authorized to rely upon Jackson's assertion, more especially when he had before him, in Dyer's deed of the lots to Jackson, the acknowledgment that the note was unpaid on the first day of June, 1872, nine months after the time when Jackson affirmed it had been paid, and had in view also Jackson's assumption, at that time, to pay it. The evidence leaves no doubt that the release was not made until August, 1872, when it was put upon record. Then Jackson, being the owner of the lots subject to the operation of the Williams deed of trust, was in such a situation that he could not, without an abuse of his trust, destroy the rights of the holder of the note. It is impossible, therefore, to maintain that there was not enough on the face of the recorded title under which the Swifts claim, and in the facts attending the execution of the release, to make it their duty to inquire whether the Williams note had been in fact paid,-enough to apprise them that the holder of that note could not be postponed or injured by the fraudulent release.

The other appellants are in no better condition. When the deed of trust was made to Chandler to secure the debt due to the Carrolls, the prior trust protecting the Williams note was on the record in the line of their title. They were affected by notice of it. And though the subsequent release to Dyer also appeared upon the record, the fact that Dyer had no interest in the property when the release was acknowledged and recorded; that Jackson was then the owner; that he then held the lots under a deed from Dyer, declaring the property to be subject to the payment of the $30,000 note, which he assumed to pay; that the note was not then mature, and that, therefore, the release was practically a release by Jackson to himself,-these facts were all before them when they took their lien, that is, the trust-deed to Chandler. The Carrolls were dealing with one who they knew had been a trustee for the holder of the Williams note, and who was still such trustee, unless the trust had been extinguished, or transferred. The facts by which they were confronted were more than enough to put them upon inquiry whether the Williams note had been in fact paid. They revealed a plain abuse of his trust by Jackson, from which, with the knowledge of it that they must be presumed to have had, they could derive no advantage. In the fact of it they could not obtain a priority over the earlier equity held by Smith.

We conclude, therefore, that the Circuit Court correctly decided that the complainant has a lien on the lots described in the bill by virtue of the deed of trust purporting to have been made by George N. Williams to Obadiah Jackson, and that the lien is prior to the liens held by the Messrs. Swift and by the Carrolls.

We may add that there is no evidence of such laches as should postpone the complainant's lien to those of the appellants, or either of them.

It is agreed, however, that in the decree in the Circuit Court there was an error in calculating the amount due to the complainant. The amount is too large by $554.27. The sum decreed to the complainant should have been $34,101.73.

We think, also, the court erred in not according to the defendants the right of redemption after the sale ordered by the master, according to the provisions of the statute of the State. In Brine v. Insurance Company (96 U.S. 627) we held that the statutory right of redemption after a judicial sale, under a decree of foreclosure of a mortgage, or deed of trust, is a rule of property in Illinois, and that it must be accorded in the Federal courts equally as in those of the State. It may be admitted that if the sale ordered in this case had been made by the trustee named in the deed of trust, or by a substitute under the power which the deed gave him, and made in accordance with its directions, no right of redemption would exist. But such was not the sale directed. A strict foreclosure was not decreed. The bill prayed for nothing of the kind. It prayed for a sale, in default of payment, under the order and decree of the court, and the court decreed that its master should make the sale, after giving notice of the time and place thereof, according to the course of practice of the court, not according to the provision of the trust-deed. Henry W. Bishop, it is true, was substituted as trustee in place of Jackson, but he was one of the masters of the court, and he was ordered to sell as master. He was required to make a report to the court, to pay into court any surplus arising from the sale, there to abide the court's order. The decree also contemplated a report of the sale by the master, and a confirmation of it by the court. The sale, therefore, as ordered, was in all respects a judicial sale, instead of a sale by the trustee under the power conferred by the deed. Hence it comes within the rule declared in Brine v. Insurance Company, and the right to redeem should have been preserved in the decree.

For this error, as well as for the mistake in the amount adjudged to be due the complainant, the decree must be reversed. In all other particulars the decree was correct.

The decree will be reversed, and the record remitted with instructions to enter a decree in accordance with this opinion; and it is

So ordered.

title: Swift v. Smith/Opinion of the Court


text: Talk:Swift v. Smith/Opinion of the Court


text:
Pennsylvania Company v. Roy

ERROR to the Circuit Court of the United States for the Northern District of Illinois.

The facts are stated in the opinion of the court.

Mr. J. T. Brooks and Mr. George Willard for the plaintiff in error.

Mr. John Van Arman, contra.

MR. JUSTICE HARLAN delivered the opinion of the court.

title: Pennsylvania Company v. Roy


text: Talk:Pennsylvania Company v. Roy

title: Talk:Pennsylvania Company v. Roy


text:
Pennsylvania Company v. Roy/Opinion of the Court

This is a writ of error from a judgment for the sum of $10,000, the amount assessed as damages sustained by the defendant in error, in consequence of personal injuries received while riding, as a passenger, in a sleeping-car which belonged to the Pullman Palace Car Company, but constituting, at the time the injuries were received, a part of a train of cars managed and controlled by the Pennsylvania Company, as lessee and operator of the Pittsburg, Fort Wayne, and Chicago Railway. The action was commenced in the Supreme Court of Cook County, Illinois, against the Pennsylvania Company, the Pittsburg, Fort Wayne, and Chicago Railroad Company, and the Pullman Palace Car Company. It was subsequently dismissed by the plaintiff against all the defendants except the Pennsylvania Company, and then removed for trial into the Circuit Court of the United States for the Northern District of Illinois, where the judgment complained of was rendered.

The facts set forth in the bill of exceptions, so far as it is material to detail them, are these:--

On the 5th of June, 1876, Roy, the defendant in error, purchased at the office of the lessee company, in the city of Chicago, a 'first-class railroad ticket' from that city to Philadelphia, over the line of that company, paying therefor the sum of $14.40. At the same time and place, and of the same person, he purchased a sleeping-car ticket, issued by the Pullman Palace Car Company, for the route between the same cities, and for that ticket he paid the additional sum of $5. He took the train the same day, going immediately into the section of the sleeping-car corresponding to his ticket.

The next morning, at Alliance, Ohio, upon the invitation of a friend, travelling upon the same train, he entered the sleeping-car in which that friend was riding, and there engaged with him in conversation. While so engaged, the upper berth of the section in which they were sitting fell. Thereupon the porter of the sleeping-car came at once and put up the berth, saying it would not fall again. Shortly thereafter the berth fell a second time, striking the plaintiff upon the head, injuring his brain, incapacitating him from pursuing his vocation, and necessitating medical treatment.

After the second falling of the berth, the brace or arm supporting it was found to be broken.

The evidence introduced by the plaintiff tended also to show that the Pennsylvania Company provided cars in which passengers having railroad tickets could ride without purchasing a sleeping-car ticket; that Roy had much experience in travelling, and would have gone into one of those cars had he not purchased a sleeping-car ticket; that at the time he purchased it he did not know what company ran the sleepers, but upon taking the train he ascertained it was a Pullman car; that the Pullman Palace Car Company was engaged in furnishing cars to be run in the trains of railroad companies; that, besides the general conductor of the train, there was a conductor, in uniform, and a porter, whose duty it was to make up the berths and attend to the wants of passengers occupying the sleeping-car.

Upon the trial the plaintiff introduced a time and distance card of the defendant corporation, issued, published, and circulated by that company during the year 1876, prior to the date of his injuries. That card, referring to the 'Fort Wayne and Pennsylvania R. R. line,' stated that three express trains left Chicago daily, one with popular vestibule sleeping-car,' one 'with drawing-room and hotel car,' and one with drawing-room sleeping-car.' It gave notice that 'passage, excursion, and sleeping-car tickets' could be purchased at the defendant company's office in Chicago. Referring to the 'Fort Wayne and Pennsylvania line,' the same card announced that 'no road offers equal facilities in the number of through trains, equipped with Pullman palace sleeping-cars.' It states, among the advantages of the 'Pittsburg, Fort Wayne, and Pennsylvania through line,' that the latter was the 'only line running three through trains, with Pullman palace-cars,' and 'the only line running sleeping-cars from Chicago and intermediate stations to Philadelphia without change.' The same card gave the rates charged for berths and sections in Pullman sleeping-cars from Chicago to points east of that city.

The defendant, to maintain the issues on its part, offered to prove—

1. That the sleeping-car in which the accident occurred, and all the sleeping-cars then and theretofore on the defendant's line, since the 27th of January, 1870, were owned by the Pullman Palace Car Company, a corporation of the State of Illinois, and not by the defendant; that said sleeping-cars were run in the same trains with the defendant's cars; that holders of railroad tickets were entitled to ride in said sleeping-cars, provided they also held sleeping-car tickets.

2. That the Pullman Palace Car Company, and it only, issued tickets for sale, entitling passengers to ride in said sleeping-cars; that such tickets were plainly distinguishable from railroad tickets, and were sold at offices established by said company, and indicated as places for the sale of such tickets; that the plaintiff purchased the sleeping-car ticket of the same person of whom he bought the railroad ticket; that the office where purchased indicated by plain lettering upon its door that it was a place for the sale of Pullman Palace Car Company tickets, as well as railroad tickets.

3. That the Pullman Palace Car Company employed persons to take charge of its cars, and the latter, whilst in use, were in the immediate charge of a conductor and a porter employed by that company; that such conductor and porter were the only persons who had authority to manage and control the interior of said cars, and the berths and seats and the appurtenances thereto.

To this proof the plaintiff objected, and the objection was sustained, to which ruling the company excepted.

The court thereupon charged the jury that the proof tended 'to show that the injury was received by reason of the negligence of the defendant's agents or servants, or by some negligence in the construction of the car in which the plaintiff was riding.' To that charge the company at the time excepted, upon the ground that it was unsupported by the testimony, and because it assumed as a fact that the persons in charge of the sleeping-car were the company's agents or servants.

The court further charged the jury that 'the defendant has offered in your presence to prove that the car in which the plaintiff was injured was not the car or the actual property of the defendant, but was the property of another corporation. But I instruct, as a part of the law of this case, that if the car composed a part of the train in which the plaintiff and other passengers were to be transported upon their journey, and the plaintiff was injured while in that car, without any fault of his own, and by reason either of the defective construction of the car or by some negligence on the part of those having charge of the car, then the defendant is liable.'

To that charge also the defendant excepted.

We are of opinion that there was no substantial error, either in excluding the evidence offered by the defendant, or in the charge to the jury. The court only applied to a new state of facts, principles very generally recognized as fundamental in the law of passenger carriers. Those thus engaged are under an obligation, arising out of the nature of their employment, and, on grounds of public policy, vigorously enforced, to provide for the safety of passengers whom they have assumed, for hire, to carry from one place to another. In Philadelphia & Reading Railroad Company v. Derby (14 How. 468), it was said that when carriers undertake to convey persons by the powerful and dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence,-that the personal safety of passengers should not be left to the sport of chance, or the negligence of careless agents. This doctrine was expressly affirmed in Steamboat New World v. King, 16 id. 469. In Stokes v. Saltonstall (13 Pet. 181), affirming the decision of Mr. Chief Justice Taney on the circuit, we said, that although the carrier does not warrant the safety of the passengers, at all events, yet his undertaking and liability, as to them, go to the extent that he or his agents, where he acts by agents, shall possess competent skill, and, as far as human care and foresight can go, he will transport them safely. The principles there announced were approved in Railroad Company v. Pollard (22 Wall. 341), where, speaking by the present Chief Justice, we said that we saw no necessity for reconsidering Stokes v. Saltonstall.

These and many other adjudged cases, cited with approval in elementary treatises of acknowledged authority, show that the carrier is required, as to passengers, to observe the utmost caution characteristic of very careful, prudent men. He is responsible for injuries received by passengers in the course of their transportation which might have been avoided or guarded against by the exercise upon his part of extraordinary vigilance, aided by the highest skill. And this caution and vigilance must necessarily be extended to all the agencies or means employed by the carrier in the transportation of the passenger. Among the duties resting upon him is the important one of providing cars or vehicles adequate, that is, sufficiently secure as to strength and other requisites, for the safe conveyance of passengers. That duty the law enforces with great strictness. For the slightest negligence or fault in this regard, from which injury results to the passenger, the carrier is liable in damages. These doctrines to which the courts, with few exceptions, have given a firm and steady support, and which it is neither wise nor just to disturb or question, would, however, lose much, if not all, of their practical value, if carriers are permitted to escape responsibility upon the ground that the cars or vehicles used by them, and from whose insufficiency injury has resulted to the passenger, belong to others.

The undertaking of the railroad company was to carry the defendant in error over its line in consideration of a certain sum, if he elected to ride in what is known as a first-class passenger car; with the privilege, nevertheless, expressly given in its published notices, of riding in a sleeping-car, constituting a part of the carrier's train, for an additional sum paid to the company owning such car.

As between the parties now before us, it is not material that the sleeping-car in question was owned by the Pullman Palace Car Company, or that such company provided at its own expense a conductor and porter for such car, to whom was committed the immediate control of its interior arrangements. The duty of the railroad company was to convey the passenger over its line. In performing that duty, it could not, consistently with the law and the obligations arising out of the nature of its business, use cars or vehicles whose inadequacy or insufficiency, for safe conveyance, was discoverable upon the most careful and thorough examination. If it chose to make no such examination, or to cause it to be made; if it elected to reserve or exercise no such control or right of inspection, from time to time, of the sleeping-cars which it used in conveying passengers, as it should exercise over its own cars,-it was chargeable with negligence or failure of duty. The law will conclusively presume that the conductor and porter, assigned by the Pullman Palace Car Company to the control of the interior arrangements of the sleeping-car in which Roy was riding when injured, exercised such control with the assent of the railroad company. For the purposes of the contract under which the railroad company undertook to carry Roy over its line, and, in view of its obligation to use only cars that were adequate for safe conveyance, the sleeping-car company, its conductor and porter, were, in law, the servants and employes of the railroad company. Their negligence, or the negligence of either of them, as to any matters involving the safety or security of passengers while being conveyed, was the negligence of the railroad company. The law will not permit a railroad company, engaged in the business of carrying persons for hire, through any device or arrangement with a sleeping-car company whose cars are used by the railroad company, and constitute a part of its train, to evade the duty of providing proper means for the safe conveyance of those whom it has agreed to convey. 2 Kent, Com. 600, 12th ed.; 2 Parsons, Contracts, 218, 219, 6th ed.; Story, Bailments, sects. 601, 601 a, 602; Cooley, Torts, 642; Wharton, Negligence (2d ed.), sect. 627 et seq.; Chitty, Carriers, 256 et seq., and cases cited by the authors.

It is also an immaterial circumstance that Roy, when injured, was not sitting in the particular sleeping-car to which he had been originally assigned. His right, for a time, to occupy a seat in the car in which his friend was riding was not, and, under the facts disclosed, could not be questioned.

Whether the Pullman Palace Car Company is not also, and equally, liable to the defendant in error, or whether it may not be liable over to the railroad company for any damages which the latter may be required to pay on account of the injury complained of, are questions which need not be here considered. That corporation was dismissed from the case, and it is not necessary or proper that we should now determine any question between it and others.

Upon the trial below, the plaintiff was allowed, against the objection of the defendant, to make proof as to his financial condition, and to show that, after being injured, his sources of income were very limited.

This evidence was obviously irrelevant. The plaintiff, in view of the pleadings and evidence, was entitled to compensation, and nothing more, for such damages as he had sustained in consequence of injuries received. But the damages were not, in law, dependent in the slightest degree upon his condition as to wealth or poverty. It is manifest, however, from the record, that the learned judge who presided at the trial subsequently recognized the error committed in the admission of that testimony. After charging the jury that the measure of plaintiff's damages was the pecuniary loss sustained by him in consequence of the injuries received, and after stating the rules by which such loss should be ascertained, the court proceeded: 'But the jury should not take into consideration any evidence touching the plaintiff's pecuniary condition at the time he received the injury, because it is wholly immaterial how much a man may have accumulated up to the time he is injured; the real question being, how much his ability to earn money in the future has been impaired.'

Notwithstanding this emphatic direction that the jury should exclude from consideration any evidence in relation to the pecuniary condition of the plaintiff, the contention of the defendant is, that the original error was not thereby cured, and that we should assume that the jury, disregarding the court's peremptory instructions, made the poverty of the plaintiff an element in the assessment of damages; and this, although the record discloses nothing justifying the conclusion that the jury disobeyed the directions of the court. To this position we cannot assent, although we are referred to some adjudged cases which seem to announce the broad proposition that an error in the admission of evidence cannot afterwards be corrected by instructions to the jury, so as to cancel the exception taken to its admission. But such a rule would be exceedingly inconvenient in practice, and would often seriously obstruct the course of business in the courts. It cannot be sustained upon principle, or by sound reason, and is against the great weight of authority. The charge from the court that the jury should not consider evidence which had been improperly admitted, was equivalent to striking it out of the case. The exception to its admission fell when the error was subsequently corrected by instructions too clear and positive to be misunderstood by the jury. The presumption should not be indulged that the jury were too ignorant to comprehend, or were too unmindful of their duty to respect, instructions as to matters peculiarly within the province of the court to determine. It should rather be, so far as this court is concerned, that the jury were influenced in their verdict only by legal evidence. Any other rule would make it necessary in every trial, where an error in the admission of proof is committed, of which error the court becomes aware before the final submission of the case to the jury, to suspend the trial, discharge the jury, and commence anew. A rule of practice leading to such results cannot meet with approval.

There was, however, an error committed upon the trial, to which exception was duly taken, but which does not seem to have been remedied by any portion of the charge appearing in the bill of exceptions. The plaintiff was permitted, against the objection of the defendant, to give the number and ages of his children,-a son ten years of age, and three daughters of the ages, respectively, of fourteen, seventeen, and twenty-one. This evidence does not appear to have been withdrawn from the consideration of the jury. It certainly had no legitimate bearing upon any issue in the case. The manifest object of its introduction was to inform the jury that the plaintiff had infant children dependent upon him for support, and, consequently, that his injuries involved the comfort of his family. This proof, in connection with the impairment of his ability to earn money, was well calculated to arouse the sympathies of the jury, and to enhance the damages beyond the amount which the law permitted; that is, beyond what was, under all the circumstances, a fair and just compensation to the person suing for the injuries received by him. How far the assessment of damages was controlled by this evidence as to the plaintiff's family it is impossible to determine with absolute certainty; but the reasonable presumption is that it had some influence upon the verdict.

The court, in a manner well calculated to attract the attention of the jury, withdrew from their consideration the evidence in regard to the financial condition of the plaintiff; but as nothing was said by it touching the evidence as to the ages of his children, they had the right to infer that the proof as to those matters was not withdrawn, and should not be ignored in the assessment of damages.

For this error alone the judgment is reversed, and the cause remanded for a new trial.

So ordered.


text: Talk:Pennsylvania Company v. Roy/Opinion of the Court


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Hall v. Law

APPEAL from the Circuit Court of the United States for the District of Indiana.

The facts are stated in the opinion of the court.

Mr. James C. Denny and Mr. Charles E. Marsh for the appellants.

Mr. Asa Iglehart and Mr. J. E. Iglehart, contra.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Hall v. Law


text: Talk:Hall v. Law

title: Talk:Hall v. Law


text:
Hall v. Law/Opinion of the Court

This is a suit to quiet the title to certain real property in the State of Indiana, of which it is charged that one William P. Hall, who died intestate in 1857, was seised in fee. By the law of Indiana, his real estate descended to the complainants.

The premises in controversy are situated in the city of Evansville, in that part known as Lamasco. They constitute a part of a fractional section in the subdivision of the public lands in a township of the State. A small stream runs through the section, known as Pigeon Creek, on the west of which four-sevenths of the section lie, and on the east three-sevenths. The premises in suit are on the west side of the creek.

In 1831, the deceased William P. Hall became the owner of two undivided sevenths of the section. In 1833, proceedings were taken in the Circuit Court of the county in which the section lies, at the instance of the possessor of an undivided interest, for a partition of the land and an assignment in severalty of the interests of the different owners. These proceedings resulted in a partition, by which the interest of Hall was set apart out of that portion of the section lying east of Pigeon Creek. If these proceedings are valid, the claim of the complainants, as the children and the widow of the deceased, is without foundation. He was divested of all interest in the property in controversy several years before his death.

The proceedings were taken under an act of the State, of February, 1831, entitled 'An Act to provide for the partition of real estate,' the first section of which enacts:--

'That when two or more persons are proprietors of any real     estate, any of whom are desirous of having the same divided,      it shall and may be lawful for the Circuit Court of the      county where such real estate may be situate, on the      application of any such person (notice of such application      having been previously given by the party so applying for at      least four weeks in some public newspaper in the State), to      appoint three disinterested freeholders, residents of said      county, not related to either of the parties, as      commissioners for dividing the said estate; and said      commissioners having previously taken an oath or affirmation,      before some justice of the peace in said county, honestly and      faithfully to execute the trust reposed in them as      commissioners aforesaid, shall proceed to make division of      said estate, as directed by the court, among the owners and      proprietors thereof, according to their respective rights;      which partition being made by the said commissioners, or any      two of them, and return thereof being made by the said      commissioners, in writing, under their hands, to said court,      particularly describing the lots or portions allowed to each      respective owner or proprietor, mentioning WHICH OF THE Owners or proprietors are minors, if any such      there be, which return being acknowledged by the      commissioners making the same, before any one of the judges      of the court aforesaid for the said county, and accepted by      the court, and entered and recorded in the clerk's office,      shall be a partition of such lands, lots, and tenements      therein mentioned.' Rev. Laws of Ind., 1838, 426.

The record of the proceedings of the partition in this case consists of the order of the Circuit Court of Sept. 12, 1832, appointing three commissioners to divide the section between the several proprietors, and to report to the court at the next term; their report at the next term, in March, 1833, showing the partition made and the part assigned to each proprietor; the confirmation of the report at that term by the court, and its apportionment of the expenses of the partition among the proprietors.

The order appointing the commissioners recites that it was proved to the satisfaction of the court that David Miller (one of the proprietors) had given due and legal notice that he would, on the third day of the court (which was that day, September 12), make application for the appointment of commissioners to divide among the several proprietors thereof the fractional section.

The report gives the boundaries of the section, and sets forth with proper description the portion assigned to each proprietor. It complies in its details with the requirements of the statute and is accompanied with a plat of the land showing the tract assigned.

The validity of this partition is assailed because no complaint or petition of the applicant for the partition appears in the record as the foundation of the proceedings, and without one it is contended that they were void.

The statute does not in terms require the application of the proprietor seeking a partition to be presented in writing, or, if one be presented, to be filed among the records of the court. All that it designates as necessary to authorize the court to act is, that there should be an application for the partition by one or more joint proprietors, after giving notice of the intended application in a public newspaper for at least four weeks. When application is made, the court must consider whether it is by a proper party, whether it is sufficient in form and substance, and whether the requisite notice has been given as prescribed. Its order made thereon is an adjudication upon these matters.

The recitals in the order show a compliance with the statute; they show jurisdiction in the court over the subject. That jurisdiction arises upon the presentation of the application, accompanied with proper proof of previous notice of it. The order of the court appointing the commissioners is a determination that the application is sufficient, and that due notice of it has been given. This conclusion is not open to collateral attack; it can only be questioned, on appeal or writ of error, by a superior tribunal invested with appellate jurisdiction to review it. Voorhees v. The Bank of the United States, 10 Pet. 449; Thompson v. Tolmie, 2 id. Comstock v. Crawford, 3 Wall, 396.

The cases of Lease v. Carr (5 Blackf. (Ind.) 353) and Shaw v. Parker (6 id. 345), cited by complainants, do not support their position. In the first case, the Supreme Court of Indiana, having the proceedings in partition before it for review on writ of error, held that the petition of the appellant should show the extent and nature of his interest in the land, and that he holds it in common with the defendants, whose interests, if known to him, should also be stated; and that as the petition in that case was silent in these particulars, and merely requested the appointment of commissioners to divide the land, it was defective, and the order made thereon was erroneous. But the court did not hold or intimate that the order and subsequent proceedings were, from the defective character of the petition, absolutely void. It was the common case of the reversal of proceedings because of intervening error. If not thus corrected, the existence of the error in no respect impairs the validity and efficacy of the subsequent proceedings, or the order or judgment thereon. The distinction between erroneous and void orders and judgments is too familiar to call for extended observation, and is fully recognized, not only in the courts of Indiana, but in those of every State in the Union. Hornor v. Doe, 1 Ind. 130; Doe v. Smith, id. 451; Doe v. Harvey, 3 id. 104; Ashley v. Laird, 14 id. 222; Matthews, 17 id. 367; Evans v. Ashby, 22 id. 15; Waltz v. Borroway, 25 id. 380; Hawkins v. Hawkins, 28 id. 67; Comparet v. Hanna, 34 id. 74; Gavin v. Graydon, 41 id. 559; Burk v. Hill, 55 id. 419; Hays v. Ford, id. 52; Hunter v. Burnsville Turnpike Co., 56 id. 218; Wiley v. Pavey, 61 id. 457. The second case, Shaw v. Parker, also came before the Supreme Court on a writ of error, and follows in its decision Lease v. Carr. We see nothing in either to impeach the validity of the order of the Circuit Court of the county appointing the commissioners, or its order confirming their report. Thus confirmed, the report constituted, in the language of the statute, a partition of the lands described in it.

The complainants, treating as invalid the partition proceedings, sue for the undivided two-sevenths of that portion of the fractional section lying west of Pigeon Creek, and assume in their bill of complaint that the title of the defendant rests upon a deed made under a decree in a suit in chancery commenced against the deceased in 1836, three years after the alleged partition. It seems that a claim was made at that time that the two undivided sevenths of the fractional section were conveyed by their then owner, Nathaniel Ewing and his wife, to one William Prince, upon a condition which had failed; that upon the death of Prince, his estate being insolvent, the property had been sold by order of the Probate Court to one William Daniel, for forty-five dollars, and for the like sum had, by him and wife, been conveyed to the deceased William P. Hall; and the suit in chancery was brought by parties who had obtained another conveyance fron Ewing and wife to set aside the probate sale, and to compel the deceased to convey his interest to them. The suit resulted in a decree directing the execution of a deed of the title and interest of the deceased to the complainants in that suit, of whom the defendant was one, by a commissioner appointed by the court. The decree describes the two undivided sevenths as being the same tract assigned to the deceased in the partition proceedings. The father of the deceased was appointed the commissioner, and he executed the deed ordered.

The complainants here assail the validity of this decree, as being rendered without service upon the deceased, who was then a minor under ten years of age, upon an answer filed by a guardian ad litem, who was not authorized to waive service on his ward. It is not necessary to examine into the validity of the decree for this or other reasons. This deed purports to pass whatever title the deceased possessed in the lands conveyed under the probate sale, whether it be considered as the two undivided sevenths of the whole fractional section, or the tract assigned to him on the partition. It gave at least color of title. Whenever an instrument, by apt words of transfer from grantor to grantee, whether such grantor act under the authority of judicial proceedings or otherwise,-in form passes what purports to be the title, it gives color of title. The deed of the commissioner in this case, with the return of the commissioners in the partition proceedings, gave such color. Even should they be considered as invalid, possession under them for the period prescribed by statute bars the right of the true owners as effectively as possession under the most perfect title. It is an absolute defence to the action of ejectment. And a suit in equity, brought after that period, for the determination of the title and for possession of the property, will not be entertained, as it is founded on a stale claim. As the statutes of limitations in most States, and in Indiana among them, apply in terms only to legal remedies, courts of equity are considered as bound by them only in cases of concurrent jurisdiction. In other cases they are said to act only by analogy, and not in obedience to the statutes. Though the present case is in form a suit in equity, and as the bill asks for an injunction it may be so treated, it is essentially a suit to recover the possession of the land. The complainants are out of possession, and the defendant, or parties claiming under him, are in possession. The determination in favor of the complainants' title is only preliminary to a decree for the surrender of possession. If not a concurrent remedy with the common-law action of ejectment, it so nearly resembles the latter as to justify the rule that in such cases the statute equally applies.

The defendant and his associates in the deed of the commissioner, or persons claiming under them, have been in possession of the entire fractional section for over forty years, and during all this period have exercised acts of ownership of almost every kind. They have laid out the land into lots, blocks, streets, and alleys, and have made extensive improvements either upon them or in connection with them. They have also sold parcels to a large number of persons, who have gone into possession, and still hold them, and have erected buildings thereon. The town of Lamasco, laid out by them upon the land, reached a population of over ten thousand inhabitants before it was annexed to the city of Evansville, of which it now forms a part.

The statute of Indiana reserved to the deceased a right of action to recover the premises for five years after he came of age, and though he lived for ten years after that period, within the vicinity of the property, and was cognizant of the possession of the defendant and his associates, and of parties holding under them, of their claim of ownership and of their improvements, he made no attempt to disturb them in its possession, use, and enjoyment, or in the sale of portions of it.

The claim now set up by the complainants is a stale one, and, under the facts disclosed, without merit. The decree dismissing the bill must, therefore, be affirmed; and it is

So ordered.

title: Hall v. Law/Opinion of the Court


text: Talk:Hall v. Law/Opinion of the Court

title: Talk:Hall v. Law/Opinion of the Court


text:
Walker v. Reister

APPEAL from the Circuit Court of the United States for the Eastern District of Missouri.

The facts are stated in the opinion of the court.

Mr. Nathaniel Myers for the appellant.

Mr. James O. Broadhead, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Walker v. Reister


text: Talk:Walker v. Reister

title: Talk:Walker v. Reister