text:
Adams v. Norris/Opinion of the Court

The plaintiff claimed, as the assignee of heirs at law of Eliab Grimes, deceased, the title and possession of an undivided seven-eighths of a parcel of land in Sacramento county, known as the rancho del Paso, containing ten square leagues, being the land granted to Eliab Grimes by Micheltorena, Governor of California, the 20th December, 1844. The defendant resisted the claim, as the assignee of Hiram Grimes, who is a devisee of the land by a codicil to the last will of Eliab Grimes, which is in the Spanish language, and of which the following is a translation:

'SEAL FIRST-EIGHT DOLLARS.

'Provisionally empowered by the maritime custom-house of the port of Monterey, in the Department of the Californias, for years eighteen hundred and forty-four and eighteen hundred and forty-five.

PABLO DE LA GUERRA.

'MICHELTORENA. [SEAL.]

'I, Eliab Grimes, a Mexican citizen by naturalization, having to add a codicil to my testament heretofore made, and desirous of doing it in conformity with law established in this Republic, do make and declare it to be of my will and intention, in presence of the alcalde of this jurisdiction, his secretary, and two witnesses of assistance, as follows:

'Codicil 2d. I give and bestow to Hiram Grimes, my nephew, all the right and title which the Government conceded to me to the rancho known (or named) as the 'rancho del Paso,' in Upper California, situated on the American river, as is delineated and appears in the plan and title, the original of which exists in the public archives of Monterey, together with all the cattle, horses, and other animals, that are on said rancho, as also all the buildings and laboring and cooking utensils, and all other property of mine which is met with on said rancho, deducting always a certain proportion of all the cattle, horses, and other animals, and of their produce, for those who have had the care of said rancho, in payment of their services, according to the agreement made.

'And in order that it may be evident, I sign in the manner above expressed this 18th day of April, 1845, at the pueblo of San Francisco de Asis, and at the same time there remains deposited a copy in the archives of the same.

'ELIAB GRIMES.

'Before me, in the absence of the two alcaldes.

'ROBERTO T. RIDLEY, Sindico.

'Witnesses:

'NATHAN SPEAR.

'GUILLERMO HINCKLEY.'

The verdict and judgment in the Circuit Court were in favor of the defendant; and the cause is presented to this court upon exceptions to decisions of the presiding judge in the course of the trial.

The defendant, to sustain the codicil, established, by the admission of the plaintiff, the genuineness of the signatures of the testator and of the witnesses to the codicil, and that they were all dead, the testator having died in 1848. He also adduced the testimony of a number of witnesses to prove the existence of a custom in California as to the mode of making wills prior to any change in the Mexican law by the State Government, and that Grimes, shortly before his death, had informed a witness that he had devised his place of del Paso, with the stock on it, to Hiram Grimes, his nephew, and desired of him some aid for his nephew in the settlement of his affairs. No other testimony is reported in the bill of exceptions. It was contended, on behalf of the plaintiff, that the codicil was not competent as evidence, nor sufficient to transfer property:

1. That the codicil had never been admitted to probate in California, and that the proof of the signatures to the codicil was not sufficient to establish its validity.

2. That there is no statement in the paper itself tending to show that the disposition was dictated by the testator in presence of the witnesses, or read over to the witnesses in the presence and hearing of the testator, they being present at one and the same time, without interruption or turning aside to any other act, and having been so dictated, or so read over, was declared by the testator to the witnesses to be his last will and testament.

3. That three witnesses of assistance are necessary to the validity of a will, and that the sindico, not having professed to act as a witness, and being without authority to receive wills in that capacity, the codicil is void for want of the sufficient number of witnesses, and that this deficiency could not be cured by proof of any custom at variance with the written law.

The court did not support these objections, but instructed the jury that a will, executed under the Mexican laws, in presence of only two witnesses, affords no sufficient proof of the execution. But if they should be satisfied, from the proofs in this case, that a uniform and notorious custom existed uninterruptedly for the space of ten years in California, which authorized the execution of wills in the presence of two witnesses only, and which custom was so prevailing and notorious that the tacit assent to it of the authorities may be presumed, then the proof of such a custom, and for such a length of time, will operate a repeal of the prior law, and that two witnesses will be sufficient. On the contrary, if a custom of the character described and for the period mentioned was not proved to their satisfaction in such case, if three witnesses have not attested to the codicil, it is a nullity.

The court further instructed the jury, that if, from the evidence and under the instructions given, they should find three witnesses required, they will inquire whether each and all of the three witnesses to the will is or are competent; that the will being written in the Spanish language, if either of the witnesses did not speak or read that language, and could not understand the disposition of the property made by it, and that the testator was in the same predicament, such witness would be incompetent, and, unless the custom was established, the codicil would be null; but if the custom was established, that custom would control the case; and if the signatures of the testator and of a sufficient number of witnesses is established, in the absence of countervailing testimony, the jury may infer a due execution of the will. This selection from some twenty exceptions will sufficiently present the questions that were considered in the Circuit Court and have been discussed at the bar of this court.

These instructions require an examination of the law of California, previously to its organization as a State, relative to the execution of a testament, and the modification of that law by the revolution made in its legal system after that event. The law of Spain was introduced into Mexico, and forms the basis of its jurisprudence. By the laws of the Council of the Indies, it was provided in all cases, transactions, and suits, which are not decided nor provided by the laws contained in that compilation, nor by the regulations, provisions, or ordinances, enacted and unrepealed concerning the Indies, and by those which may be promulgated by royal orders, the laws of the kingdom of Castile shall be observed conformably to the law of Toro, with respect as well to the substance, determination and decision of causes, transactions, suits, as to the form of proceeding. The Partidas (6 part, tit. 1, l. 1, 2) describes two kinds of wills. 'The one is that which is called, in Latin, testamentum nuncupativum, which means a declaration openly made before seven witnesses, by which the testator makes known by words or in writing who the persons are whom he institutes as his heirs, and the manner in which he disposes of his other property.' This form of will is of Roman origin, and can be traced to the modes of testamentary disposition employed in the time of the republic. Originally the form was wholly nuncupative, but the use of writing was allowable before the testamentum in scriptis was introduced.

The Partidas proceeds to describe the other form of will 'that which is called, in Latin, testamentum in scriptis, which means a declaration made in writing, and in no other way. This will ought to be made before seven witnesses, called at the instance of the testator for that purpose. Each of the witnesses ought to write his name at the end of the will; and if one of them should not know how to write, either of the others may do it for him, at his request. We also say that the testator ought to write his name at the end of the will; and if he should not know, or could not write, then another may do it for him, at his request.'

The witnesses were formerly required to superscribe and seal as well as sign the will. If the testator desired to conceal the contents of his will from witnesses, he could do so, either by writing the will, or procuring it to be written, and enclosing it in an envelope, and by writing his name and causing the witnesses to write their names on the envelope, with the declaration that the paper contained the last will and testament of the testator.

The essence of the testamentum in scriptis consists in the writing, and whether it was published to the witnesses who subscribed and attested it, or was concealed from them, was not a fact of any consequence. But the writing contained in the envelope was subject to no formality. It might be written by the testator, or by the hand of another. His signature to the will itself was not required.

The announcement to the witnesses that it was his will, and their attestation of that declaration, and the sufficiency of the seals, were the only securities against forgery or fraud. Other formalities were added, and a rigid exaction of those that were prescribed, rendered this form of testamentary disposition onerous. On the other hand, the nuncupative or oral will was subject to the objections that the witnesses might die, or fail to remember the declarations of the testator, or misrepresent them. In the process of time, the form of making a will orally became unfrequent. The olographic will and the mystic will served the purpose of those who desired to conceal the disposition of their property; while the written will, prepared by a public officer, and attested by witnesses, was the form commonly used on the continent of Europe.

The last-named form, with a reduced number of witnesses, was permitted in Spain by the law of Toro. This testament might be made before a notary public, but he was not indispensable. If made before a notary public, there should be three witnesses of the vicinage; but if there was not a notary, five witnesses were necessary, unless they could not be had, in which event three witnesses of the place, or seven strangers, would be sufficient. 1 Tapia Febrero, 364.

The authentication of the will by the intervention of judicial authority is also of Roman origin.

Savigny traces the changes in that administration, and explains the manner in which this system penetrated the jurisprudence of Europe; 1 Sav. hist. du droit Ro., 83; and the result, as it affects the question under consideration, is clearly ascertained in the writings of the civilians.

Ricard says: 'It results from what has been established, that the depositions of the seven witnesses before the judge, when the nuncupative will has not been drawn up in writing at the time it was made, is in a manner of the essence of the testament, since it could not have effect without those depositions.' * *  * 'But in respect to those that were drawn up in writing,' he says, 'the opening and reading that were made after the death of the testator contributed nothing to the validity of the testament, and served only to verify the seals of the witnesses, and to render the testament public. We see, however, from laws of the title, in what manner shall testaments be opened (quem an mod. testam. oper.) in the Code and Digest, that it was the ordinary practice for those who were interested in the execution of the testament to apply to the praetor, who obliged the testamentary witnesses to come before him to admit or deny their signatures and seals, and of which he made a proces verbal; and that this is the practice in the contries where the Roman law prevails.'

Ricard des don., 1325-1398.

The Maxican jurists agree that the written testament from its form is not a public and authentic act, and that it is necessary, to the full enjoyment of their rights, that those interested in the will should invest it with that quality. They show that such a person may compel the production of a will from private custody, and that the witnesses may be examined in reference to all the circumstances relative to the execution of the will, and the capacity and death of the testator; and if it shall result from these that the testament is legal, the judge may order it to be protocoled, and it obtains the faith due to an authentic or public act. These writers describe the measures to be taken in case of the death or absence of the witnesses, in order to obtain the same result. 2 Sala Mex., 127, 128; 2 Curia Felip. Mej., 327; 2 Febrero Mej., ch. 25, section 2.

We do not consider it necessary to inquire whether the elevation of this writing to the grade of an authentic act was a necessary condition to the support of a suit upon it by an heir or legatee in the ordinary tribunals in the Department of California. We think it is clear that the heir was not restrained from entering upon the inheritance, by the fact that this was not done; and that there are circumstances that would have authorized the heir to maintain a suit, even though the testament could not produced. The right exists independently of that evidence. Merlin, verbo preuve. Gab. des preuves, 368, 450. This testator died in 1848. His devisee seems to have taken possession of the property bequeathed to him. There is no testimony of any action by the tribunals in California previously to the organization of the State Government. We know that the political condition of California from the time of the death of the testator until the organization of that Government was chaotic, and no inference can be drawn from such an omission. Immediately after the organization of that Government, the common law of England was introduced, and the ancient legal system of the Department abrogated. No provision was made for the probate of wills that had been executed before the introduction of that system. 'The statute of the State,' say the Supreme Court of California, 'fails to require wills executed before its passage to be probated;' and 'this was not a casus omisses;' but 'the Legislature actually intended to exclude them from the operation of the statute altogether, leaving their validity to rest upon the laws under which they were made.'

Grimes v. Norris, 6 Cal. R., 621.

And in Castro v. Castro, 6 Cal. R., 158, they say, that a will is regarded by the courts of England and the United States as a conveyance, and takes effect as a deed, on proof of its execution, unless there be some express statute requiring it to be probated.' Conceding, therefore, that, under the Mexican system, the preliminary proof of the will before some public authority was necessary to give it probative force in a court of justice, that condition has been altered by the statutes of California before adverted to.

Our conclusion is, that the codicil was not inadmissible as testimony, because it had never been admitted to probate, and because the witnesses who were present at its execution had never been examined to establish it as an authentic act. The next inquiry will be, whether the codicil is null because it does not appear on the face of the will that the witnesses were present during the whole time of the execution of the will, and heard and understood the dispositions it contained. The laws that prescribe these formalities do not require that express mention shall be made of their observance under the penalty of the nullity of the testament. In Bonne v. Powers, 3 Martin, N. S., 458, the question arose in Louisiana upon a will made in 1799, before the change of government.

The Supreme Court say: 'The Spanish law did not require, as our code does, it should appear on the face of the instrument itself that all the formalities necessary to give effect to a will previous to the signature of the testator and the witnesses had been complied with.' In Sophie v. Duplessis, 2 Louis. Ann. R., 724, the Supreme Court say: The principle invoked by the defendants, that a will must exhibit upon its face the evidence that all the formalities required for its signature have been fulfilled, has no application to nuncupative testaments under private signatures. Such testaments are not required to make full proof of themselves, and the observance of formalities which do not appear on the face of the will may be shown by testimony dehors the instrument. Biec, in his supplement to Escriche, reports the case of a mystic will attached for nullity, because the solemnities required for those of that class, in the law of the Partidas before cited, did not appear to have been followed. The supreme tribunal of justice in Spain sustained the will. Sup. al. dic. v. Testamento. And the same conclusion is maintained by the French jurists upon similar statutes. Merl. Rep. v. Testament.

In order to show that the codicil was valid and translative of property, the defendant introduced evidence of a custom in California as to the manner of making wills, and the jury were instructed that the evidence was competent; and that, if the custom was so prevailing and notorious that the tacit assent to it of the authorities may be presumed, it will operate to repeal the prior law. The civilians state that customs which are opposed to written law are held to be invalid, unless they have been specially confirmed by the supreme power of the State, or have existed immemorially; and it is not material whether they consist in the non-observance of the written law, or in the introduction of principles or practices opposed to such law; that every valid custom presupposes a rule, observed as binding by the persons who are subjected to it, by an unbroken series of similar acts; and that it belongs to the sound, legal discretion and conscience of the tribunals to determine by what testimony such a custom can be established.

Lind's Study of Juris., 14, 17, and note.

The Spanish codes recognise these principles. They say, to establish a custom, the whole or greater part of the people ought to concur in it; that ten years must have elapsed amongst persons present, and twenty at least amongst persons absent, in order to its being introduced; that it may be proved by two sentences of judges or judgments given upon or according to it; that, being general and immemorial, it may repeal or alter the anterior law, the approbation of the Prince being supposed or presumed.

De Asso & Rodri. Inst., ch. 1. 1 Febrero, 55.

The custom under consideration is one of a general nature, and its existence for the period must be assumed from the verdict of the jury. It is a rule of property pervading in its application, and necessary to be known in order that judicial administration should be carried on. The recognition of such a rule, if it exists, was therefore to be looked for from the superior and supreme tribunals of the State of California. In the case of Panaud v. Jones, 1 California R., 497-505, the Supreme Court say: 'The custom with respect to the execution of wills, so far as the testimony goes, appears to have prevailed generally and for a long time in California. It may have been the universal practice from the first settlement of the country.' In Castro v. Castro, 6 Cal., 158, this observation is cited, and the court say: 'That it is shown, from the testimony of various witnesses, that two [witnesses to a will] were sufficient under the customs of California.' The same fact is restated in the case of Tevis v. Pitcher, 10 Calif. R., 465.

Nor is such a change in the mode of transfer of property a singular fact in the history of the American States. Several cases are mentioned in the opinion of the court in Panaud v. Jones, above cited, and a similar instance is mentioned in Fowler v. Shearer, 7 Mass., 14.

Nor is the existence of such a departure from the written law extraordinary, when the circumstances of the early history of the Department are understood. The most important of the arrangements for the colonization of the Department related to the establishment of the military districts and presidios, and the mission establishments in close proximity to them. The priests and soldiers were the most conspicuous and influential members of the Department, and exerted supreme influence in its political and economical arrangements. The Spanish laws relieved the soldier from the inconvenient formalities that attended the execution of the ordinary nuncupative or closed testament, and authorized him to make a nuncupative will before two witnesses, or an olographic will.

The canon law distinctly reprobates (praescriptam consuetudinem improbamus) the requirement of seven or five witnesses for the testation of a will: secundum quod leges humanae decernunt; * *  * 'quia vero a divina lege et sanctorum Patrum institutis et a generali ecclesiae consuetudine id noscitur esse alienum cum scriptum sit, in ore duorum vel trium testium stet omne verbum.' Decret. Greg., lib. 3, tit. 26, ch. 10.

The precept and example of these dominant classes in the Department may possibly have exercised a controlling influence in forming the habitude of the population on this subject. And if it became prevailing and notorious, so as that the assent of the public authorities may be presumed, upon principles existing in the jurisprudence of Spain and Mexico, the acts of individuals, in accordance to it, are legitimate. This codicil was written in the Spanish language; and it is to be inferred that there was testimony that the testator and one or more of the witnesses understood that language imperfectly.

The instructions of the Circuit Court required the jury to find that the testator dictated the contents of the codicil to the witnesses, they being assembled at the same time, and that it should be then read in the presence of all, so that it was understood by all, and that the testator should then have declared it to be his last will; and the court informed them that if the testator did not understood the language, and there was not present any one who explained and interpreted the codicil in the presence and hearing and understanding of the witnesses, the document was not a valid instrument; and also, if neither the testator nor a sufficient number of the witnesses understood the language of the codicil, that it was not valid.

The Roman law did not require the witnesses to a Latin will to understand the Latin language: 'nam si vel sensu percipiat quis, cui rei adhibitus sit, sufficere.' It is admitted by the civilians that a testator may dictate his will in his own language, and the will may be drawn in another, provided that the witnesses and notary understand both. The object of the law is that the instrument shall express the intentions of the testator, and it does not require the reproduction of his exact words. Whether the witnesses should understand the language of the will, has been the subject of much contest among those writers; and names of authority may be cited in favor of either opinion. But the current of judicial authority seems to have decided it is not necessary that the witnesses to a testament should comprehend the language in which it is written. And the same authority has settled that the witnesses should understand the language of the testator.

16 Dalloz. jur. gen. tit. disposi. entre vifs. et test., No. 3126.

3 Trop. don. & test., No. 1526.

2 Marcad. Exp., 15.

Escriche dicc. verb. interprete.

The instruction of the presiding judge to the jury, that the testator and witnesses should alike hear and understand the testament, and that, under these conditions, its publication as the will of the testator should be made, embraced all that it was necessary to be said upon this part of the case.

The last inquiry to be made refers to the weight to be given to the testimony adduced in support of the factum of the codicil. This consists of the proof of the signatures of the deceased witnesses and of the testator, and of some declaration by him that he had made a will with a similar devise. We comprise, among the witnesses to the will, Ridley, the sindico. It does not appear that a sindico was charged with any function in the preparation or execution of testaments by the law or custom of California. Nor it is clear that the sindico in the present instance expected to give any sanction to the instrument by his official character. He attests the execution of the will, and we cannot perceive why the description of himself which he affixes to his signature should detract from the efficacy of that attestation.

The binding force and legal operation of this codicil are to be determined by the law, as it existed when the codicil was made. But the mode in which it should be submitted to the court and jury, and the effect to be given to the testimony that accompanied it, depend upon the law of the forum at the time of the trial. The evidence of the signatures of the testator and witnesses was competent; and it was a proper question to be submitted to the jury, whether, under the circumstances of the case, it was probable the formalities required by the law were complied with. As suppletory proof that the testator had made the codicil, and was acquainted with the contents of the instrument, the admission or declaration offered as evidence was competent testimony.

Upon a review of the whole case, our opinion is, there is no error in the record, and the judgment of the Circuit Court is affirmed.

title: Adams v. Norris/Opinion of the Court


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1982

 INDEX. CCLui Public Welfare, D. C ., Boord o/-Contd. Pap. appropriation for Southern Relief SOCiety___________________ 676,1293 for Library for the Blind, etc ____ 677, 1393 for indigent insane _____________ 677,1393 for de~rting nonresident insane_ 677, 1393 for relief of the poor ____________ 677,1394 for payment to abandoned families, , etc_______________________ 67~ 1 294 for burial of indigent ex-service men_ _ 677, 1294 for transporting paupers- __ _____ 677, 1294 deficiency aepropriation for board, etc., ofchUdren ___________________ 9,891 for support of jail prisoners________ 10 for jail improvements, etc__________ 10 for wor.khouse____________________ 10 for reformatory; material for metal for m;friti=============-10, 8~g for Columbia H08pital- 10 for Saint Elizabeths H08pital_______ 10 for maintenance of f~ble-minded children_____________________ 891 for Division of Child Welfare_______ 1630 for receiving, etc., home for children_ 1630 for salaries, 1929_________________ 1693 Pueblo Indiana, N. M~., appropriation for attOrney for _____ 206, 1568 for settling land and water rights loaHS________________________ 1569 deficiency appropriation for reconnais- sance work relating to irrigation, Middle Rio Grande conservancy Pap. Pure Food LaW-Continued. appropriation for expeneea enforcing, in the District of Columbia_ 669, 1285 deficiency appropriation for expenses PU1laUup o~:=~:iWtiih.~-- 14 appropriation for supporl, etc., of In- dians at __________________ 223, 1584 PU1laUUP Indians, W08h. trust fund of, set aside for upkeep of
 * o~W.:hTarmstroBot (talk)-01:33, 25 September 2010 (UTC):- 378

deficiency appropriation for ________ 902 PU1le Cliff Ruins, N. M~., ' admission fee to, authorlzed__________ ,1586 Pyle, UlYB, etc., may briage Wabash River, at McGregors Ferry, Ill____________________ 480 Pyramid Lake Agency, N tIfI., appropriation for support, etc., of Indians at- __________ 223,1571,1584 Pyramid Lak6 Indian Resenlation, Nev., appropriation for maintenance, etc., of irrigation system on; repayment_ 213, 1575 Pyramid Lak6 Indian Sanatorium, NtIfI., appropriation for maintenance, etc., of________________ ~ _ __ _ _ _ _ 221, 1581 Q. Quackenbo. Street NW., D. C., appropriation for pavin~ etc., North Dakota Avenue to Fourth Street; from gasoline tax fund__ _______ 1270 district _____________________ _ for irrigation, drainage, flood control, 17 Quannah Parker, Comanche Indian, appropriation for erecting monument etc., lands of- _ _ _______ _ __ _ ___ 901 agreement authorized with Middle Rio Grande Conservancy District, for irrigation, etc., of lands oL__ 312 Pueblo Landa Board, appropriation for expenses__________ 78, 1109 deficiency appropriation for motor ve- hicle_ _ _______ ______________ _ 905 for appraisers, etc_________________ 1645 credit allowed in accounts of dis- bursing clerk oL______________ 1645 P'Uget Sound, W 08h., appropriation for navy yard, public works_______________________ 635 deficiency appropriation for navy yard, railrcad repairs-- ___ __ ___ __ __ _ 24 for ammunition depot, light!1ing pro- tection____ ____________ __ _____ 908 bridge authorized across, at the Nar- rows________________________ 1403 Pugilistic Encounters regulatil'DB of, in Hawaii and Alaska__ 1156 Puloski Sesquicentennial Commission, United States, established, composition, etc__________ 1222 authorized to cooperate in observance of the 100th anniversary of the death of Brigadier General Casi- mir PulaskL_________________ 1222 PuUman, W 08h., appropriation for public building___ 181,1043 Purchasing Agent Post Office Department, appropriation for, and office personneL 187, 1049 Purchasing Division, D. C., appropriation for salaries, etc______ 645, 1263 deficiency appropriation for __________ 7 Pure Food Law, appropriation for executing________ 566,1217 54835°--29-PT 1--125 to___________________________ 225 Quantico, Va., appropriation for Marine Corps bar- racks, construction_ ___________ 1464 deficiency appropriation for marine barracks, public works________ _ Quapaw Agency Indians, Okla. appropriation for e~;;r attorneys, 25 etc., in probate matters affecting restricted allottees of__________ 205 Quapaw Agency, Okla., appropriation for common schools__ 220, 1580 Quapaw Indiana, Okla., appropriation for fulfilling treaty with_ 222, 1583 Quarantine Service, appropriation for maintenance of sta- tioDB ______________________ 174,1040 for interstate__________________ 175, 1040 deficiency appropriation for _________ 31,48, 916,93~ 1619, 1671 Quarantine Stationa, appropriation for Cape Fear, N. C ., extending gangway and new dol- pbin_________________________ 176 for repairs and preservatioD- _ __ _ 183, 1045 for mechanical equipment_______ 183,1045 for building, New Orleans, La______ 1043 deficienH~ok~Pj!~:~tTarmstroBot (talk)-TarmstroBot (talk)--TarmstroBot (talk) 31 for New York, N. Y_______________ 32 Quarantine Stationa, Li_tock, appropriation for establishing, etc__ 545, 1196 Quartermoster Corps, Arm1l, appropriation for civilian personnel, Quartermaster General's Office__ 326, 1349 forsubsistencesupplies,etc-- 331,1354 sales to officers, etc_________ " 331,1354

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text: Talk:Adams v. Norris/Opinion of the Court


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1983

 ccxxxii INDEX. Pap, Quarien"aakr Carp', Army-Contin'Jed. appropriation for regular quartermaster lupplies___________________ 331,1355 heat, ligh!t etc _____________ .. 3 31.1355 sales to omcers, etc__________ 332,1355 bakeries, ice, etc_____________ 332. 1355 IChoolluppliea, etc___________ 332. 1355 forage for animaIs ___________ 332, 1355 stationery, printing, etc_ _ _ _ _ __ 332, 1356 amount for fuel immediately avail- able______________________ 332,1356 for clothing and equipage_______ 332, 1356 for incidental expenaea _________ 333,1356 civilian emplo;ree& ___________ 333, 1356 teats, etc., by'Standards Bureau__ 333 .1 1350 for transportation. _____________ 333, 1356 dependents of officers and enlisted men _______________________ 333,1357 amount for procuring and trans- porting fuel immediately avail- able_______________________ 333,1357 restriction on expenses for motor vehicles___________________ 334, 1357 purchase of motor vehicles limited_ 334, 1357 for purchase, etc., of hOrle& _____ 334, 1357 breeding of riding hOrle& ______ 334.1357 limit; standard required. _________ _ 334 native horses in China.. ____________ 334 restriction on polo ponies_ _________ 334 for construction, etc., military posts_ 334. 1358 Walter Reed Hospital, D. C_ ___ __ 334 technical, etc., services_______ 334, 1358 contractsauthoriae--- 335 "Castle," Fort Niagara, N. Y __ _ _ 335 for shootin~ galleries and ranges_ 335, 1358 for rent, District of Columbia_ _ _ 335, 1359 not available if space provided in Government-owned buildings__ _ 335. 1359 for Fort Monroe, Va____________ 335,1359 for post hospitals, construction, etc__ _ 336. 1359 Jefferson Barracks, Mo., immedi- ately restoring________________ 336 eonstruction of new hospitals for- bidden____________________ 336, 1359 for supplies, etc., to units of Reserve Officers' Training Corps ____ 349,1371 for supplies, etc., to other schools and colleges___________________ 350,1372 for national cemeteries__________ 354, 1374 American military cemeteries, abroad_______________________ 1375 for headstones for soldiers', etc., graves____________________ 354, 1375 for Antietam battle field ________ 354,1375 for disposition of remains of officers, enlisted men, etc______________ 1375 recovery of bodies______________ 1375 Quarkrmaakr Corp., Army-Continued. p .. . . appropriation for expensest.,. American cemeteries in Great tlritain and France______________________ 355 deficiency appropriation for subsistence_ 351 42, 49, 935, 1672, 167. fortranaporta~ion. etc_____________ 42,49. 935,938,1672.1674 for general appropriations_ __ _ __ ____ 43. 44, 49,935,938,1619,1622,1672,1674 for hOrle& __________________ 43.935,1619 for hospitals_____________________ 43,935 for stfoTarmstroBot (talk):_TarmstroBot (talk):01:33, 25 September 2010 (UTC) 43.44, 49,935, 161~ 1622. 1672, 1674 for Reserve Officers' Training Corps, forh::e;iOr801dfen;g;avis:- 43~ 50, 9 for national cemeteries_____________ 43 for barracks and quarters_ ____ ___ _ 49, 935 for regular supplies. 49,935,1619,1622.1672 for roads, walks, etc_______________ 49.935 for water and sewers _____________ 49,935 for disposition of remains of offi- cers/ etc____________ _____ _____ 49 for clothing and equipage___ 938, 1672, 1674 for survey of Kings Mountain battle field_________________________ 929 for Fort Monroe, Va., sewerage SysteDl ___________________ ~__ 938 forincidentalexpenses _____ 935, 1619,1674 for roads, etc., Alaska______________ 936 for shootmg galleries and ranges_ ___ 1619 for Fort Thomas, Ky., road repairs__ 1664 for Fort Leavenwortn, Kans., road repairs____ _ _ __ ____ ___________ 1664 for military posts, construction, etc_ 1664 for improvements, etc., designated Ali' Corps stations____________ 1665 for Kittl Hawk Monument, N. C _ _ _ 1666 for pavmg road, Roasville, Ga., to Chickamauga and Chattanooga National Park________________ 1666 for Virgi~ia. Dare memorial; reap- for c;fnTarmstroBot (talk)bO~ -Natio~ai -Pa"'rk~ 1666 Tenn., establishment, etc., of._ 1666 for memorial, Lititzb Pa___________ 1666 for inspection of attle fields at Brices CroBB Roads and Tupelo, MiBB_ _ _ _____ ___ ____ ______ ___ 1666 for Lee Mansion, Va., restoration___ 1666 for Fort Defiance, Ohio, Museum___ 1666 for Lincoln Birthplace Memorial___ 1666 for recovering bodies of American soldiers buried in Russia and Alaska_______________________ 1667 for salaries, 1929. under Office of Quar- termaster GeneraL ____ ~ _ _ _ _ _ _ 1689 for BBiaries, etc., 1929, national cemeteries, etc., under_________ 1691 authorization for disposition of re- mains of officers, etc., including Army Nurse Corps____________ 251 recovery of bodies added___________ 252 horses and mules purchases limited to needs of the service___________ 245 monument, etc., to commemorate battle between Sioux Indians and forces of Majors Reno and Benteenj to be placed unl!er care of. __ ___ ___ 223 Quartermaater General's Office, War De- partment, appropriation for civilian personnel. 326, 1439

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1984

 INDEX. ooxxxiii Q_ StrMt NE., D. C ., l'a.ce. appropriation for paving, etc., Trinidad Avenue to alley wesl; of Hol- brook Terrace; from gasoline taz fund_____________________ 6M paving, etc., Trinidad Avenue east- ward; from gasoline taz fund__ 1271 Quillayute RiHf', Wah., statlon of Coast Guard authorised at mouth oft,!ln the Pacific coast__ 1156 QuinaUlt A,mq, wah., , appropriation for support, etc., of In- dians at__________________ 223,1584: Quincy, IU., tinle extended for bridging Mississippi Quiney s~;tli~;ii.-c:,-- 296 appropriation for paving, etc., Tenth Street to Georgia Avenue; from gasoline tax fund_____________ 652 K. R Strut NW., D. C., closed, 38th to 39th Streets_ __ _______ 890 Rabiu, appropriation for suppressing, by de- stroying certam predatory ani- mals _____________________ 559,1209 RaciM, WiB., deficiency appropriation for public building at________________ 923,1661 Radio Act of 19S7, deficiencv appropriation for expenses of, under Navigation Bureau __ _ 16 powers vested in Federal Radio Com- miBBion by, continued until March 16, 1929_______________ 373 period of salary of members of com- miBBion extended to March 16, 1929________________________ 373 limitation of period of licenses, for broadcasting stations, prior to January 1,1930-- 373 other stations_ _ _ _ ___ ____ __ __ _____ 373 term of office of present commiBBion to expire February 23J 1929_______ 373 of appointments thereaIter_________ 373 equal allocation of broadcasting licenses to all zones___________________ 373 prop<>rtional to population of each State, etc____________________ 373 licensing authority to carry the same into effect____________________ 373 iBBue of temporary licenses to other zones, if proportionate share of a zone not applied for___________ · 373 allocations charae<t to location of studio of station, and not of transmitter__________ ________ _ 374 continuance of Federal Radio Com- miBBion until December 31,1929- 1559 period of salary ext.ended until March 16,1930--- 1559 limitation on licenses prior to January office ;/ 1!bir";.-~Tco~i-tO 1559 expire February 23, 1930; terms thereafter____________________ 1559 general counsel, 888istants, etc., to be appointed;pay_______________ 1559 Radio Advertmng, expenses of, in connection with public debt iBBUes, payable from i n- definite appropriation for e x- penses of loans ____________ 166, 1032 Radio Commiuion, FedMal, appropriation for salAries and exp61l1611.. ~.... 5791 1230 deficiency appropriation for salaries and espenses_________________ 5 for stenographic service, 1927-1928_ 1626 R:Jdio Communication, appropriation for enforcing laws regu- lating, on ocean steamers, etc_ 84, 1115 for standardiling, etc., instrument. usedin ____________________ 91,1122 deficiency appropriation for enforcing laws regulating _________ 16,896,1636 for standardizing instruments used in research, etc_______________ 897 Radio Station, acquisition of site and construction authorized for a constant fre- quency monitoring, etc_________ 1255 Radioactive Sub.tanus, aM X Ra"., appropriation for investigating, testing, etc________________________ 93, 1124 Radiotelegraphic Convention, International, appropriation for share of expenses__ 72, 1103 deficiency approj>riation for expenses_ _ 28 Radiotelegraphy, International Union of Scientific, appropriation for quota, etc., to_ ____ __ 1104 Railroad AdminiBtration, deficiency appropriation for judaments, United States courts, under____ 931 Railroad AII/Jnue SE., D. C., name ot changed to Fairlawn Avenue_ 997 Railroad (irant Landa, relinquishment of, to Indians in Ari- zona, etc., extended; conditioIl.._ 299 Railroad Routes, Poatal Senic6, appropriation for mail transportation by _______________________ 190,1052 special arrangements for mail by freight trains, etc__________ 190,1052 deficiency appropriation for transfer to . star route service______________ 910 for mail transportation by_________ 936, 1620,1622, 1650, 1672, 1674 Railroad Track Scalea, etc., appropriation for testing, etc_______ 93, 1123 Railroads (see also Interstate Commerce CommiBBion) , appropriation for establishing uniform systemofaccountingby_____ 581,1239 for enforcing use of safety appliances by_______________________ 681,1239 for securing reports of accidents, etc_______________________ 581, 1239 for investigating block signal and train control systems, etc., by _______________________ 581,1239 for requiring installation of auto- matictrainstop,etc.,devices- 681,1239 for compelling use of safe locomotive boilers, etc., by ____________ 581,1239 for ascertaining physical Valuation of property oL ____________ 682,1240 for securing information of stocks, bonds, etc., oL ____________ 582,1240 Railway Co~res8, International, appropriatlon for quota____________ 72, 1103 Railway Equipment, appropriation for investigating mate- rials used in ________________ 93,1123 Railway Labor Act, appropriation for Board ·of Mediation expenses under ____________ 575,1232 for emergency boards_____________ 1232

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text:
Wiseman v. Chiappella

THIS case was brought up by writ of error from the Circuit Court of the United States for the eastern district of Louisiana.

It was an action brought by Wiseman against Chiappella, who was a notary public in New Orleans, upon the ground that he had been negligent in protesting a bill of exchange, and in consequence of such negligence Wiseman had lost the money. The question therefore was, whether or not he had been guilty of negligence. The question of prescription was also decided by the Circuit Court, and argued here, but it will not be further noticed.

The facts of the case are stated in the opinion of the court. The Circuit Court decided in favor of the defendant upon two grounds: 1st, that the protest was sufficient; 2d, that the action was prescribed.

It was argued in this court by Mr. Benjamin for the plaintiff in error, and by Mr. Janin for the defendant.

Upon the first ground, Mr. Banjamin said:

I. The protest was insufficient. Calling at the office of the acceptors of a bill, and finding it closed, is not such due diligence as will excuse the want of presentment and demand. There should have been inquiry, and effort should have been used to discover the dwelling, and demand made there, if found.

The necessity for due diligence is not questioned, but cases are cited, in the opinion of the court, to show that the action of the notary was sufficient to constitute due diligence. These cases seem to us not to warrant the inference drawn by the court, but rather to establish the reverse.

In the case of the Union Bank v. Foulkes, 2 Sneed Tenn. Rep., the court held, that want of presentment and demand was excused, because the place of business was open, but no one had been left there to answer; the court expressly stating that if it had been closed, further diligence would have been necessary.

In the case of Shed v. Brett, 1 Pick., 413, the court held that plaintiff must be nonsuited, if the demand at the place of business was not proven to have been made in business hours; the protest in the present case does not allege any visit in business hours.

In the case of the Branch Bank at Decatur v. Hodges, 17 Ala. Rep., 42, there was actual presentment and demand of the book-keeper of the acceptors at their counting-room.

In the case of Brown v. Turner, 15 Ala. Rep., 832, there was actual demand of the agent of one partner, both partners being absent.

In Watson v. Templeton, 11 Annual Rep., 137, the court held, that as against a partnership, the want of demand was excused where the bill was presented at the commorcial domicil, within the usual business hours, but reserved its opinion as to cases where a person does business alone, and has a dwelling as well as a place of business which is found closed. In support of this distinction between bills accepted by a firm and those accepted by individuals, the court cites Story on Promissory Notes, sec. 235; but we have sought in vain in the authority referred to, and elsewhere, for anything to sustain this distinction, which seems to be quite a novel doctrine in the law of bills and notes.

In Williams v. Bank of United States, 2 Peters, 96, and the case of Goldsmith and Bland therein cited and approved, there was, in the former case, further inquiry and information received, that the party and his family had left town on a visit; and in the latter there was no person in the countinghouse in the ordinary hous of business, but the countinghouse is not stated to have been closed, the implication being, on the contrary, that it was open.

The foregoing are all the authorities cited in the opinion of the Circuit Court, no one of which goes the length required to sustain the validity of the protest now in dispute.

The authorities to show its insufficiency are very numerous.

In McGruder v. Bank of Washington, 9 Wheaton, 601, there was no decision directly on the point; but the court said, in its reasoning, that the notary might, 'had the house been shut up, with equal correctness have returned that he had not found him, (the drawer,) and yet that clearly would not have excused the demand, unless followed by reasonable inquiries.

In Granite Bank v. Ayres, 16 Pick., 392, demand was made at the last place of business, and notary was informed that the parties had failed and gone out of town. They had in fact failed, and given up their place of business, but one of them lived in town. Held, diligence insufficient, no further inquiry having been made by notary.

In Ellis v. Commercial Bank of Natchez, 7 Howard's Mississippi Rep., 294, held, that further inquiry must be made when the place of business is found shut, in order to excuse want of presentment and demand.

In Follain v. Dupre, 11 Rob., 470, held, that going to the counting-house during the usual business hours, waiting a short time, and, no one being there, coming away, is not sufficient to excuse presentment for acceptance, and doubtful if sufficient to excuse want of presentment for payment.

In Collins v. Butler, 2 Strange, 1087, held, that when place of business is found closed, further inquiry for the drawer of a note or an attempt to find him must be shown, in order to excuse want of demand.

The rule as laid down by all the text writers is, that if the acceptors have absconded, and cannot be found, presentment and demand being impossible, the want of them is excused; but even where the acceptor has become bankrupt, or has removed to another place within the same State, or is absent on a journey, yet, if he has a dwelling, demand must be made there, in order to hold the other parties.

Story on Promissory Notes, secs. 237, 238.

Story on Bills, secs. 351, 352.

Byles on Bills, pp. 141, 159.

Chitty on Bills, pp. 355, 383.

The only cases where want of inquiry and effort to find party have been excused, are those where a place of payment is designated in the bill or note.

Hine v. Alleby, 4 B. and Ad., 624.

Buxton v. Jones, 1 Man. and Gran., 83.

Mr. Janin referred to the following cases quoted by the Circuit Court, namely:

Union Bank v. Foulkes, 2 Smead Tenn., 555.

Shed v. Brett Trustees, 1 Pick., 413.

Br. Bank at Decatur v. Hodges, 17 Ala. Rep., 42.

Brown v. Turner, 15 Ala. Rep., 832.

Burbank v. Beach, 15 Bak., 326.

The Louisiana case referred to by the Circuit Court, but not quoted, is the case of Watson v. Templeton, 11 Ann. Rep., 137.

Again, in Nott's Ex'r v. Beard, La. Rep., 308, the notary certified, that 'at the request of the holder of the original draft, whereof a true copy is on the reverse hereof written, I demanded payment of said draft at the counting-house,' &c. The counsel for the defendant contended that the protest should say that the bill was presented, and payment thereof demanded. The court held that this was not necessary, and said: 'We are disposed to give such meaning to terms used by public officers as will be understood by the mass of mankind.'

'The act of the Legislature, passed in 1827, vests notaries with certain powers in relation to these matters, and gives more authenticity to their acts than to private individuals. They are public officers, and the presumption of law is that they do their duty.'

The following English cases support the same doctrine:

In Burton v. Jones, 1 Man. and Gr., 89, C. J. Tindal said:

'This bill drawn upon Epworth is addressed to him as Mr. Frederick Epworth, Ilnito St., Baal-Zepher St. Bennondsey. The drawee accepts generally, thereby adopting the description of his residence, as stated at the foot of the bill. When the bill becomes due, a messenger is sent to demand payment. The messenger inquires for Epworth of a person who must be taken to be an inmate, and from that person he receives an answer, which is true. It was not necessary to present the bill to Epworth personally. If he chose to remove from the house pointed out by the bill as his place of residence, he was bound to leave sufficient funds on the premises. In Hine v. Alleby, (4 B. and Adol., 624,) the holder went to the place at which the bill was addressed, and found the house shut up. This was held to be sufficient evidence of presentment.'

In Hine v. Alleby, (4 B. and Adol., 627, and 24 Engl. Common Law Rep., 127,) it was shown that on the day when the bill became due, it was taken to the place of payment, but the house was shut up, and no further presentment could be made. The court held that there was a presentment. The case of Burbridge v. Marmers, 3 Campbell, 183, was cited, and it was urged that there Lord Ellenborough said: 'I think the note was dishonored as soon as the maker had refused payment on the day when it became due;' and that here (that is, in Hine v. Alleby) the holder only concluded that the bill would not be paid, from finding no one at the house, and that there had been no refusal.'

But, per curiam: 'It is the same if the house is shut up and no one there. The case is in point.'

title: Wiseman v. Chiappella


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1985

 coxxxiv INDEX. RailtDGJI Mail 8erviu POIIiJl Serna, PaP. appropriation for division superintend- ents assistants, clerks, etc __ 190, 1052 for trav;! allowances for clerks_ __ 190, 1053 for traveling expenses, etc., away from headquarters _________ 190, 1053 for miscellaneous expenses_ _ _ _ __ 190, 1053 arms for mail protection ______ 190,1053 rent, etc., for tenninal offices __ 190,1053 equipment, etc.! for terminaL_ 190,1053 deficiency appropnation for travel allowances of elerka___ 26,50,910, 1620 for misce1laneouaexpenses_ ____ _____ 50 for 8IIlariee _____________________ 00,1650 for additional salaries, 1929 _______ .. 1650 clerks and substitute clerk may be aaaigned as temporary substi- tute Ilea post clerks_________ .: _ _ 1175 BainJllAU Referma! deficieney appropnation for examina- tion and report on____________ 1651 Rainy RiDer, deficieney appropriation for purchase of flowage easements for pro- tectin8 banks, etc., of. _ _ _ _____ 930 Raker, Johft R./oTfMf' Member of CongreA, prominent mountain in Lassen Volcanic National Park, Calif., to be named in honor of deceased____ R71 IlGleigh, N. C., terms of court, at___________________ 495 Randolph and Laturma COUnAe8, Ark., may bridge Spring River, at Black ILock________________________ 1093 at Imboden______________________ 1093 Randolph FWd, Sa:n Antonio, Tex., construction authorized of buildings at_ 1303 RaJ:[p~.Air COrps________________ 1304 bridge authorized acroaa Missouri River, at_____________________ 729 time extended for bridging Missouri River, at_____________________ 1431 Randolph Stru4 NR., D. C., appropriation for paving, etc., Twelfth to Thirteenth Streets; from gas- oline tax fund_ _______________ 1271 Randolph S'rea NW., D. C., appropriation for paving, etc., Thir- teenth Street to Kansas Avenue; from gasoline tax fund________ 652 Range Condititm8, National Forests, appropriation for experiments, etc., in improving ________________ 55~ 1205 Rankin County, Miss., bridge authorized acroaa Pearl River, in Madison COuntyand__________ 421 Rapid City Indian Sanatorium School, S. Dak., appropr'.ation for support, etc., of_____ 1582 Rapid City, S. Dak., appropriation for Indian school at_____ 219 Raritan ArHnal, N. J ., construction authorized of buildings at_ 1302 Rathbone, Henry R., late a Representative in Congre88, deficiency appropriation for pay to widow 01.____________________ 1607 Ravtn8wood, W. Va., bridge authorized acroaa Ohio River, at___________________________ 317 Raw Materials and Manufactures, appropriation for securing information as to disposition, handling, etc., of_________________________ 87, 1118 Read, Commander Albert Cmhi1l{l, Navy, tendered thanks of Congress for com- ~t:~:fu!~-t01:33, 25 September 2010 (UTC)TarmstroBot (talk)t _TarmstroBot (talk) advanccd in numbers on list of com- xnanders ____________________ _ gold medal awarded, for achievement in first successful trans-Atlantic Palre. 790 790 flight________________________ 1185 Real Estate, D. C., in condemuation proceedings, notice of benefits assessed on property not taken, to be mailed by Commis- sioners, if owner not notified by thejury_____________________ 953 advertisement by the court______ :-_ _ 954 Real Properly, Army, sale of tracts, etc., no longer needed___ 773 survey of parcel on request of adverse possessor thereof, on receiving notice of Government claim_ ___ 773 title by quitclaim deed upon pay- ment of 10 per cent of appraised value________________________ 773 claimant estopped if making no application, etc_______________ 773 options to citizens who have occupied for over 15 years under leases from War Department, to buy at appraised value_______________ 774 expenses limited____________________ 774 Reclamation Act, appropriation for investigations for utilizing western lands reclaimed under, etc________________ 551,1202 irrigable lands withdrawn from publie entry, under Boulder Canyon Project Act, opened to entry under________________________ 1063 lands of homestead entrymen under, subject to State, etc., taxation__ 439 of desert-land entrymen receiving water from an irrigation project under, subject to State, etc., tax_ 439 enforcement of aaseased taxes by lien, etc__________________________ 439 title conveyed by tax sale, etc.~ subject to prior lien for unpaia irrigation charges_ _ ___________ 439 rights of holders of tax titles______ 439 Reclamation Bureau, Interior Department, appropriation for Commissioner, ana . office personnel________. _ __ 227,1589 for attendin~ meetings of technical, etc., soCIeties ______________ 227, 1589 for all expenditures, from recla- mation fund; objects specified ____________ _____________ 227,1589 chief engineer's office _________ 227,1589 photographic service _________ 227,1589 telegraph, etc., services _______ 227,1589 field legal offices expenses _____ 227,1589 printing, binding, etc_________ 227,1589 transporting effects of employees _________________________ 22~ 1589 damages to property_________ 227,1589 limit on outside headquarters__ 227, 1589 medical service for employees__ 227, 1589 restriction on use for irrigation dis- tricts in arrears for charges__ 228, 1589 for examination and inspection of projects; balance available__ 228, 1590

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text: Talk:Wiseman v. Chiappella

title: Talk:Wiseman v. Chiappella


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1986

 INDEX. ccxxxv Reclamation Bureau) Interior Department- Pace. Continuea. appropriation for operation, mainte- nance, etc., of reserved works_ 228, 1590 for Yuma, Ariz.-Calif __________ 228,1590 for Orlana...Calif. __ __ __ __ __ __ __ 2 28,1590 for Grand valley, Colo _________ 228, 1590 for Boise, Idaho_______________ 228, 1590 for Miniaoka., Idaho; American Falls ~rvoir _________________ 228,1590 for Milk River, Mont_· __ _ _ _ __ _ _ 229,1591 for Sun Rive~t Mont. ___________ 229,1591 for Lower rellowstone, Mont. - N. I>ak______________________ 229, 1591 for North Platte, Nebr.-Wyo ____ 229,1591 for Newland&, Nev.; Truckee Mea- dows, test wells. ________ . __ 229,1591 for Carlsbad, N. Mex _________ ~- 229, 1591 for Rio Grande, N. Mex.- Tex ____ 229,1591 for Owyhee, Oreg______________ 229,1591 for Umatilla, Oreg________________ 229 for Baker, Oreg________________ 229,1591 for Vale, Oreg_________________ 229,1591 for Klamath, Oreg. -Calif________ 229,1591 for Belle Fourche, S. I>ak _______ 229,1592 for Salt Lake Basin, Utah.. __ __ _ 2 29, 1592 for YakimaJ.. Wash___________. __ 2 29, 1592 Kittitas vivision_. ___ ___ ___ . _ 230, 1592 for Riverton, Wyo- 230,1592 for Shoshone, Wyo_____________ 230,1592 for secondary projects__________ 230,1592 for investigations to determine eco- nomic conditions, financial feasi- bility, etc., of new projects__ 230, 1592 expenditures supplementary to allowances for the projects_ _ 230, 1592 refund of construction charges____ 1593 for North Platte irrigation project, Nebr.-Wyo.. _________________ 1593 Farmers' Irrigation I>istrict cred- ited for expenses connected with_ 1593 limitation of allotments to specific projects, etc_______________ 230, 1593 interchangeable appropriations- limit______________________ 230, 1593 emergency 1Iood repairs, etc___ 230,1593 use of motor vehicles for travel etc.; allowances for_________ 230, 1593 for cost of operating levee, etc., of Colorado River, adjacent to Yuma project, Ariz. -Calif ___ 231, 1593 for investigating arid cut-over timber- lands,etc____________________ 231 deficiency appropriation for refunding construction charges on per- manently unproductive lands__ 19 for expenses determining losses at Hatch and Santa Teresa, N. Mex., from overflow of Rio Grande______________________ 19 for Boise project, Idaho_________ 902,1642 for Carlsbad project, N. Mex. _ __ 902, 1642 for Uncompahgre project_ _________ 1642 for Shoshone project, Wyo_________ 1643 for Vale project, Oreg._. ___ __ ___ __ _ 1643 for secondary projects __________ .__ 1643 for salaries, 1929 ______ ._ __ __ __ __ _ 1683 employment authorized of five con- sulting engineers on important work of. _ _______ ______ ______ _ 1406 compensation limited. ___________ 1406 retired Army and Navy officers maybeused____ .. ____________ 1406 repeal of authority for employing en- gineers on irrigation dams.. _ __ _ 1406 • Reclamation BureauJ Interior Department- Pap. Continue«. field work appropriations for, available for hire of work animals, vehicles, etc. ______________________ 243,1606 Reclamation Fund, . appropriation for all expenditures of_ 227, 1589 amount authorized from, for survey, etc., of Gila River and tribu- taries, New Mexico and Arizona_ 739 Reclamation Projed&, transfer of Okanogan, Wash., to Okan- O8an irrigation district________ 739 Recorder of Deeda, D. C., appropriation for office personneL._ 641, 1266 for recopying old land records_ _____ 1266 for contingent expenses_________ 649,1266 for rest room, equipment and medical SUfPlies-- 649 for ren __________________________ 649 Recreation/or EnliBted Men, Navy, appropriation for ________________ 626, 14M Recruiting N(JI]1/, approp~tion for expenses of. __ _ __ 632,1460 Red Bank, N. J ., deficiency appropriation for public b1li1ding at. _____ . __ ___ __ __ __ _ 1661 Red Bluff, Cali/., appropriation for public building______ 1043 deficiency appropriation for publio . building at. _________________ _ 33 Red Lake Agency, Minn.., appropriation for support, etc.L2! In- dians at. ____________ , ,"G.J:, 1571, 1583 Red Lake Band 0/ Chi:ppetJJG Iftdiam. Minn., appropriation for constructing roads and bridges on reeervation, from tribal funds; Indian labor__ 224 determination if judgment of Court of Claims in favor of claime of Chippewas of Minnesota, should be paid from tru.stfunds of_____ 601 employment of attorneys author- ued_________________________ 601 Red Lake Re8enJation, Minn., appropriation for constructing roads and bridges, from tribal funds; Indian labor_______________ 224, 1586 Red River, bridge authorized acroBB, at Coushatta, La________________________. _ at Garland City, Ark____________. _ at Moncla, La___________________ _ 56 742 293 1497 at Montgomery, La______________ _ time extended for bridging, at Cou- shatta, La___________________ 1167 near Fulton, At-k__________________ 55 toll charges by Arkansas, authorized on bridge across, at Fulton____ 743 Red Riller, etc., compact authorized. between New- Mexico, Oklahoma, and Texas, for division of the waters ot._ __ 1502 projects for 1Iood control of, to be sub- mitted______________________ 538 Red River 01 th6 North, bridge authorized acroBB, between Fargo, N. Dak., and Moorhead, Minn__ 472 between Grand Forks, N. I>ak., and East Grand Forks, Minn_.__ ___ 113 time extended for bridging1 • between Fargo, N. I>ak., and Moorhead, Minn_______________________ 1534

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text:
Wiseman v. Chiappella/Opinion of the Court

The counsel for the plaintiff, indeed, endeavors to distinguish these cases from the one before the court, because the number of the acceptor's residence was there stated on the face of the bill. But while the courts evidently speak of well-known places where the presentment is to be made, they lay no stress upon the manner in which they became known. The proper place to present a bill to a firm is, undoubtedly, their counting-house; and whether that be known to the notary by the number of the house stated in the bill, or in any other positive manner, the reason of the thing and the conclusion must be the same. Here the notary knew the counting-house so well, and so positively, that he went to it several times.

Mr. Justice WAYNE delivered the opinion of the court.

The plaintiff in this action alleges that he is the holder and owner of a certain bill of exchange for two thousand and forty-five dollars forty-five cents, dated at Vicksburg, in the State of Mississippi, May 13th, 1855, and payable on the 23d November, 1855, which had been drawn by John A. Durden and A. Durden on William Langton & Co., of New Orleans, and accepted by them, payable to the order of Langton, Sears, & Co., and by that firm endorsed in blank. He further declares that the bill, when it became due, was intrusted to the defendant, Achille Chiappella, a commissioned notary public for the city of New Orleans, to demand payment of it from the acceptors, and to protest the same for non-payment, should the acceptors dishonor it; and that, from his carelessness in not making a legal demand of the acceptors, and from not having expressed it in the protest, that the endorsers of the bill had been discharged from their obligation to pay it, by a judgment of the Circuit Court of the United States for the southern district of Mississippi. He further alleges that the acceptors, payees, and endorsers, were insolvent, and that, from the insufficiency of the demand for payment to bind the drawers of the bill, the defendant had become indebted to him for its amount, with interest at the rate of five per cent. from the day that it became due, the 23d November, 1855.

The defendant certifies in his notarial protest that the bill had been handed to him on the day it was due; that he went several times to the office of the acceptors of it, in Gravier street, in order to demand payment for the same, and he found the doors closed, and 'no person there to answer my demand.' It also appeared that one of the firm by which the bill had been accepted had a residence in New Orleans; that no demand for payment had been made individually upon him; and that no further inquiry had been made for the acceptors than the repeated calls which the notary states he had made at their office.

We think, under the circumstances, that such repeated calls at the office of the acceptors was a sufficient demand; that further inquiry for them was not required by the custom of merchants; and that the protest, extended as it had been, is in conformity with what is now generally considered to be the established practice in such matters in England and the United States. We say, under the circumstances, for, as there is no fixed mode for making such a demand in all cases, each case as it occurs must be decided on its own facts.

We have not been able to find a case, either in our own or in the English reports, in which it has been expressly ruled that a merchant, acceptor of a foreign bill of exchange, having a notorious place of business, has been permitted to close it up during the business hours of the day, thus avoiding the obligation of his acceptance on the day of its maturity, and then that he was allowed to claim that the bill ought to have been presented to him for payment elsewhere than at his place of business. Though such conduct is not absconding, in the legal sense of that word, to avoid the payment of creditors, it must appear, when unexplained, to be an artifice inconsistent with the obligations of an acceptor, from which the law will presume that he does not intend to pay the bill on the day when it has become due.

The plaintiff in this case does not deny that the office of the acceptors was closed, as the notary states it to have been. The only fact upon which he relies to charge the defendant with neglect is, that one of the firm of Langton, Sears, & Co. resided in New Orleans, and that it was the duty of the notary to have made inquiry for him at his residence. No presumption, under such circumstances, can be made, that the acceptors had removed to another place of business, or that they were not intentionally absent from it on the day that they knew the bill was payable. This case, then, must be determined on the fact of the designed absence of the acceptors on that day; and that inference is strengthened by no one having been left there to represent them.

All merchants register their acceptances in a bill book. It cannot be presumed that they will be unmindful of the days when they are matured. Should their counting-rooms be closed on such days, the law will presume that it has been done intentionally, to avoid payment, and, on that account, that further inquiries need not be made for them before a protest can be made for non-payment.

Cases can be found, and many of them, in which further inquiries than a call at the place of business of a merchant acceptor has been deemed proper, and in which such inquiries not having been made, has been declared to be a want of due diligence in making a demand for payment; but the rulings in such cases will be found to have been made on account of some peculiar facts in them which do not exist in this case. And in the same class of cases it has been ruled that the protest should contain a declaration by the notary that his call to present a bill for payment had been made in the business hours of the day; but in no case has the latter ever been presumed in favor of an acceptor, whose place of business has been so closed that a demand for payment could not be made there upon himself or upon some one left there to attend to his business.

Lord Ellenborough said, in the case of Cross v. Smith, 1 M. and S., 545: 'The counting-house is a place where all appointments respecting business and all notices should be addressed; and it is the duty of the merchant to take care that proper persons shall be in attendance.' It was also ruled in that case, that a verbal message, imparting the dishonor of a bill, sent to the counting-house of the drawer during the hours of business, on two successive days, the messenger knocking there, and making a noise sufficient to be heard within, and no one coming, was sufficient notice.

In this case the facts were, that Fea & Co. had a counting-house at Hull, where they were merchants, and one lived within one mile and the other within ten miles of Hull. The Monday after Smith & Co. received the bill, their clerk went to give notice, and called at the counting-house of Fea & Co. about half after ten o'clock. He found the outer door open; the inner one locked. He knocked so that he must have been heard, had any one been there, waited two or three minutes, and went away; and on his return from the counting-room he saw Fea & Co.'s attorney, and told him. The next Monday he went again at the same hour, but with no better success. No written notice was left, nor was any notice sent to the residence of either of the parties. The court took time to consider, and then held, without any reference to the clerk having called at the counting-house two successive days, that going to the counting-house at a time it should have been open was sufficient, and that it was not necessary to leave a written notice, or to send to the residence of either of the parties.

In Bancroft and Hall, Holt, 476, the plaintiff received notice of the bill's dishonor at Manchester, 24th May. The same day he sent a letter by a private hand to his agent at Liverpool, to give defendant notice. The agent called at the defendant's counting-house about six or seven P. M.; but the counting-house was shut up, and the defendant did not receive notice of the dishonor of the bill until the morning of the 27th-Monday. Two points were ruled: 1st. That sending by a private hand to an agent to give notice was sufficient; 2d. That it was sufficient for the agent to take the ordinary mode to give notice-the ordinary time of shutting up was eight or nine. Where the endorser of a note shut up his house in town soon after the note was made, and before it became due, and retired to his house in the country, intending, however, only a temporary residence in the country, it was held that a notice left at his house, by having been put into the key-hole, was sufficient to charge him. Stewart v. Eden, 2 Can. R., 121.

This court held, in Williams v. the Bank of the United States, 2 Peters, that sufficient diligence had been shown on the part of the holder of a note to charge the endorser, under the following circumstances: A notary public employed for the purpose called at the house of the endorser of a note, to give him notice of its dishonor; and finding the house shut and locked, ascertained from the nearest resident that the endorser and his family had left town on a visit. He made no further inquiry where the endorser had gone, or how long he was expected to be absent, and made no attempt to ascertain whether he had left any person in town to attend to his business, but he left a notice of the dishonor of the note at an adjoining house, requesting the occupant to give it to the endorser upon his return.

In making a demand for an acceptance, the party ought, if possible, to see the drawee personally, or some agent appointed by him to accept; and diligent inquiry must be made for him, if he shall not be found at his house or place of business; but a demand for payment need not be personal, and it will be sufficient if it shall be made at one or the other place, in business hours. Chitty, 274, 367.

It was formerly the practice, if the house of the acceptor was shut up when the holder called there to present the bill for payment, and no person was there to represent him, and it appeared that he had removed, that the holder was bound to make efforts to find out to what place he had removed, and there make a payment. Such, however, is no longer the practice either in England or in the United States, nor has it been in the United States for many years. It is now sufficient if the bill shall be taken to the residence of the acceptors, as that may be stated in the bill, for the purpose of demanding payment, and to show that the house was shut up, and that no one was there. Hine v. Alleby, 4 B. and Adol., 624. It has been decided by the Supreme Court in Tennessee, that the protest of a foreign bill of exchange, drawn upon a firm in New Orleans, with no place of payment designated, where it appeared that the deputy of a regularly commissioned notary had called several times at the office of the acceptors to make demand of payment, but found no one there of whom the demand could be made, was sufficient to excuse a demand, and to fix the liability of the endorsers to whom notice had been given. Union Bank v. Jeptha Fowlkes et al., 555. The Supreme Court of Louisiana, in Watson v. Templeton, 11 Annual, 137, declares 'that a demand made within the usual hours of business, at the commercial domicil of a partnership, for the payment of a note or bill due by the firm, is a sufficient presentment; that it was not necessary to make a further demand at the private residences of individual persons. The place of business is the domicil of the firm, and it is their duty to have suitable persons there to receive and answer all demands of business made at that place.' Going with a promissory note, to demand payment, to the place of business of the notary, in business hours, and finding it shut, is using due diligence. 1 Pick., Shed v. Brett, 413.

In the case of the B. B. at Decatur v. Hodges, the Supreme Court of Alabama say: 'The court below excluded the protest for non-payment, because the presentment is stated thereon to have been made of the book-keeper of the drawees in their counting-room, they being absent. This was erroneous. The bill was presented at the place of business of the firm, at their counting-room. If they had intended to pay the bill, it was their duty to have been present on the day of payment, or to have left means for making such payment in charge of some one authorized to make it. The notary finding them absent from their place of business, and their book-keeper there, might well make protest of the dishonor of the bill for nonpayment upon presentment to and refusal by him.' When, upon presentment for acceptance, the drawee does not happen to be found at his house or counting-room, but is temporarily absent, and no one is authorized to give an answer whether the bill will be accepted or not, in such case it would seem the holder is not bound to consider it as a refusal to accept, but he may wait a reasonable time for the return of the drawee. He may present the bill on the next day, but this delay is not allowable in a presentment for payment. This must be made on the day the bill falls due; and if there be no one ready at the place to pay the bill, it should be treated as dishonored, and protested. Story on Bills, sec. 250; Chitty on Bills, 9 Ed., 400. The Supreme Court of New York has ruled that where a notary's entry case states that presentment and demand were made at the maturity of a bill, at the office of C. & S., the acceptors, this language imports that the office was their place of business, and it will be presumed in favor of the notary, that the time in the day was proper. Burbank, President of Eagle Bank of Rochester, v. Beach and others, 15 Barbour, 326.

The preceding citation is in conformity with what the Supreme Court of New York had ruled thirteen years before, in the case of the Cayuga Bank v. Hart, 2 Hill, 635. Its language is, that where a notarial certificate of a protest of a bill of exchange stated a presentment for payment at the office of an acceptor, on the proper day, and that the office was closed, but was silent as to the hour of the day of doing the act, that it was sufficient, and that regularity in that particular should be presumed.

We infer, from all the cases in our books, notwithstanding many of them are contradictory to subsequent decisions, that the practice now, both in England and the United States, does not require more to be done, in the presentment of a bill of exchange to an acceptor for payment, than that the demand should be made of a merchant acceptor at his counting-room or place of business; and if that be closed, so in fact that a demand cannot be made, or that the acceptor is not to be found at his place of business, and has left no one there to pay it, that further inquiry for him is not necessary, and will be considered as due diligence; and that presenting a bill under such circumstances at the place of business of the acceptor will be prima facie evidence that it had been done at a proper time of the day. If that shall be denied, it must be shown by evidence.

But whatever may have been the differences between cases upon this subject, both in England and the United States, there has always been a requirement in both countries, and everywhere acknowledged in the United States, which protects the defendant in this suit from any responsibility to the plaintiff. The requirement is this: that the protest was made in this case in conformity with the practice and law of Louisiana, where the bill was payable. Rothschild v. Caine, 1 Adol. and Ell., 43; 11 Smedes and Marshall, 182.

We are aware of the contrariety of opinion which prevailed for many years in regard to what should be considered due diligence in making a presentment of a bill of exchange for payment to an acceptor of it, under such circumstances as are certified to by the notary in this case. We have carefully examined most of them, from the case of Cotton v. Butler, in Strange, 1086, to the year 1856, and we have adopted those of later years as our best guide, and as having a better foundation in reason for the practice and the commercial law of the present day, and because we think it has mostly prevailed in the United States for thirty years.

As the view which we have taken of this case disposes of it in favor of the defendant, we shall not notice another point made in the argument in his behalf, which was, that the plaintiff's right of action, if he ever had one against the defendant, was excluded by the Louisiana law of prescription.

We direct the affirmance of the judgment of the Circuit Court.


text: Talk:Wiseman v. Chiappella/Opinion of the Court


text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1987

 ccxxxvi INDEX. Reed, Wolter, Pale. name placed on yellow fever honor roll, and preeented gold medal______ 1409 lUeHa F4fT¥, N. C., bridge authorbed. acroes Waccamaw FUver, at____________________ 516 IUJoraliJWm, amount authorbed. for Inveatlaations of coeta and returns, aneI poIIIi-
 * ~. t01:33, 25 September 2010 (UTC)-t-TarmstroBot (talk) 702

'"f0f'fltlJlDr7l, D. C., appropriation for lI8laries_ ___ _____ 673, 1289 for constructing buildings, etc_ __ 673, 1289 for maintenance, etc___________ 673,1290 for providiIut working capital for Industrial enterpriaes_______ 674, 1290 deficleocy appropriatfon for material f(ll'motor metal tags__________ 10 for construcUo~etc-- 1630 '"fuM. 0/ BrTOfte01.I8 Collediom, D. C., approPriaUon for; availability ____ 651, 1269 deficiency appro~riation for _________ 8,1629 Re/uM. of Intimal RmHmv.e Ta:ua, approPriation for, ill~y collected_ __ 1035 d~ficiency ap}>ropriatlon for illegally collected excet!8 tax on auto- mobDe acceB8Ories____________ 30 for,~ycollected-- 933,1613,1618 forooll8CtioDS ____________________ .9 35 authoriled to owner, of excess taxes paid on distilled. spirits in tax- direc~: =~=y or -m.iiy-coi:' 492 lected; penalties, etc_ ___ ______ 996 repayment to collector of money re- covered against him_ _________ 996 dama&eI! against officiala_________ 996 report to Congress in excess of $500, eachyear 996 ~oJtMTr~. . appropriation for operating force, Annex for___________________ 163 IUvUtn of Willa, D. C., appropriation for salaries_ ________ 648, 1266 for conUngent expenses _________ 648, 1266 deficiency appropriaUon for contingent ~ 7, 1628 Regiatn«l Mail, PoataZ Service appropriation for indemnity for lost.z domestic__________________ 1\11,1053 deficiency aepropriaUon for paying in- demmties, lost international_ _ __ 9as, . 1620, 1622 indemnity fees on, in addition to regular ~- 469 official maD of departments, bureaus thereof, independent Govern- ment institutions in Washington, D. C ., or Public Printer, may be registered without paring fee_ __ 469 uniform system of registratIon and in- demnity therefor, may be estab- 1i8hed_______________________ 469 RegWterI 0/ LaM. Offi,ce3, appropriation for salaries and commis- RODS _____________________ 203, 1565 deficiency appropriation for ________ 46, 1637 com~D8&tion fixed 01.______________ 684 at Juneau, Alaska________________ ~ IUvUtrGtion and Selection for Military Service, deficiency appropriation for ____ 49,937,1619 Rehabilitation oj PenO'M Dilabkd in In- Pap. dwtry, Vocational, appropriation for promotion 0'- ___ li78, 1235 for investigating placements, etc., of________________________ li78,1236 provisioDS for vocational, of disabled resident80f Dlatrictof Columbia_ 1260 Reitadur, AlGaka, a.ppropriation for improving, etc., industry _____________ lili9,1210, 1603 Reiter, Fred, ek.t • • maybri~_01:33, 25 September 2010 (UTC)~_v_e~:_ 289 RelieJ aM Protection oj AfMrican SBIJ- meta appropriatlon for, in foreign countries, etc. _______________________ 68, 1098 deficiency appropriation for ________ 48,1618 Rmo, Major MarclJ.8 A., Army, appropriation for monument on site of battle of Sioux Indians with forces of, and of Major Benteen_ 225 Rmo, Nev., deficiency appropriation for public bullding at___________________ 923 Rmo Road NW., D. C., appropriation for paving, etc., Quebec to Rodman Streets; from gas- oline tax funds_______________ 652 Rmo-Sparb IMian Colony, Nev., appropriaUon for water system for ____ 209 Rent Commiarion, D. C., deficiency appropriation for ~paying costs, District Supreme Court_ _ 890 Rent, D. C., appropriation for Department of Jus- tice_______________________ 77,1108 for Court of Customs Appeals ____ 79,1110 for Department of COmmerce ____ 84,1115 for Department of Labor _______ 106,1136 for Treasury Department_______ 163, 1030 for public debt service_____________ 166 for Army; restriction ___________ 335,1359 for Department of Agriculture___ 540,1190 for Board of Tax ~ppeals _______ 576,1233 for CivD Service Commission_ __ 577, 1234 for Interstate Commerce COmmis- siOD _____________ 581,582, 123~ 1240 deficiency appropriation for District (}overnment_________________ 8 Rent, Light, aM Fuel, Pod Offi,ce3, appropriation for ________________ 189,1051 deficiency appropriation for_ 45,50,1622,1672 allowance of, and equipment, to fourth Rent oj C=~rs- 724 appropriation for _________________ 81,1112 Rental AUowanctl, Arml/, appropriation for, Including quarters for enlisted men ___________ 329,1353 RmtaZ Allowance Marine Corps, . appro}>riation for, officers _________ 638, 146~ RmitiJl AUowance, NallY, appropriation for,officers __________ 631, 1459 for, Nurse Corps_______________ 631,1460 Reporter, United States Supreme Court, appropriation for _________________ 79,1110 RePOTting Proceedings in Congress, appropriation for House of Repre- sentatives.. __________________ 523, 1393 for Senate_____ -- - - - _520, 1390 Reports to Congress, submission of designated, by executive departments, etc., repealed_ ___ 986 •

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text:
Page:United States Statutes at Large Volume 45 Part 1.djvu/1988

 INDEX. ccxxxvii lU~ in Congreu, Pap. appropriation for compensation.. ___ 520, 1390 formUease____________________ 520,la90 for clerk bire__________________ 523,1393 RaearcA Counoil, lnUJmationcl, appropriation for annual contribution to, and usociated unions____ 73,1104 for expensea of attending de1egates_ 97, 1127 for expenses, Navy Department dele- RaearcA ;Na~; 624 appropriation for expenses of______ 625,1453 temporary civilian assistants___ 625, 1453 clerical, etc., eervices _________ 625, 1454 RaertJation 10, D. C., acquiring authorized of, 88 site for municipal center______________ 1408 RfI3ert1t1 Fuel Oil, N a"1l, appropriation for procurement, etc., to be placed in storage taDks______ 1462 apChTarmstroBot (talk)_s01:34, 25 September 2010 (UTC)_~_u!~: 1462 RUerf1t1 Ojfiura' Training CorfJ8, appropriation for quartermaster sup- plies, etc., to institutions having units of___________________ 349,1371 for maintenance of training camps, etc_______________________ 349, 1371 for travel allowancesjrates______ 349,1371 for pay of students attending ad- vanced camps; subsistence com- mutation__________________ 350,1371 for medical and hos}>ital treatment etc., if injured in line of duty _350, 1371 for transporting remains of members dying at instruction camps__ 350,1372 uniforms, etc., from Army surplus stoc~ ____________________ 8~ 1372 price current to govern payments_ 350, 1372 additional mounted, etc., units . forbidden _________________ 350,1372 use of other funds forbidden ___ 350, 1372 for tra!lBPOrting students to national ri1le contesta______________ 350,1372 deficiency appropriation for quarter- master supplies, etc__________ 43,49 1 938, 1620, 167~ 1674 for equipment____________________ 936 advanced training not required to fol- low immediately on completing the two years' course__________ 501 allowances to members of, injured on training camp duty ___________ 462 transportation, and subsistence al- low:~ candidates attending training camps_______________ 251 Raervoir Road, D. C., use authorized of designated Govern- ment land for widening________ 1341 Resident Commissioners, appropriation forcompensation ____ 520,1390 for expenses__________________ 520, 1390 for clerk hire __________________ 523,1393 Retirement and Disability Fund, Foreign Servia, appropriation for Federal contribution to_________________________ 69, 1100 Retirement oJ Classified Civil Servia Employees, appropriation for eX{lCnses of Pensions Bureau executmg Act for ___ 226, 1588 for Government contribution to retirement fund____________ 227, 1588 Retiremem 01 Classified CWil StlJ'fMe Em- p. . .. ployeu-Contlnued. ~ntlnuance in eervice ~ of em- ployee, eligible for retirement, retained wIthout prior author- Ity, due to erroneous action of _!l_ department etc_______________ 12f8 Retirement til PubZicllChool TeGCMr. D. C. appropriation for executing Act for _ 000, 1277 Retuf'ftl OjJia, JfItIJriM' Deportmmt, transferred, with activities, personnel, property, etc., to the Comptrol- lerGeneral___________________ 1147 powe1'8vested inComptroller General_ 1147 appropriations for expenses, person-. nel, etc., included_____________ 1147 regulations, etc., to be made__________ 1147 inconsistent laws repea1ed____________ 1147 in effect July 1, 1929________________ 1147 Revenus Ace Of 1898, time extended for presenting claims
 * t!FuJdTarmstroBot (talk) TarmstroBot (talk) 01:34, 25 September 2010 (UTC)!:_l~ 398

consideration of, without regard to any statute of limitatfons______ 398 payment directed of c~s allowed_ _ 398 Revenus Ace oJ 19B", appropriation for"Board of Tax Appeals, under_______________________ 576 Revenue Ace 01 19B8, TABLlD 011' CONTENTS___________________ _ Income Tax_______________________ _ ~teTax ________________________ _ Tax on Admission and Dues_________ _ Excise Tax__________________________ _ Special Taxes______________________ _ Stamp Taxes ______________________ _ Liquor Taxes______________________ _ Amendments to 1926 Income Tax____ _ Administrative Provisions___________ _ General Provisions_________________ _ TITLE I. INCOMlll TAX_________________ _ income tax for 1928 and succeeding yea1'8 _______________________ _ use of cross references _____________ " classification of desi~ted provisions_ application to special cJasees of ta...:- rates~l:~t8.X-oii-iDdi;ici=: surtax on individua1s ___________ _ period embraCing years of different laws________________________ _ net income computed_____________ _ grOBS income defined______________ _ exclusion from_________________ _ deductions from _______________ _ net income items not deductible ___ _ credits allowed against__________ _ credits allowed corporations ag~-- credit of earned income. __ __ _ __ __ _ _ tax of foreign countries_________ _ tax withheld at source__________ _ erroneouspayments____________ _ accounting period and methods____ _ returns and payments____________ _ administrative revenue laws made 791 791 793 793 794 794 794 794 794 794 794 793 795 795 795 795 795 796 797 797 797 797 799 802 802 803 804 804 804 804 805 807 applicable____ ________ ____ __ __ 810 rules and reguiations to be prescribed for f'nforcement_______________ 810 table of taxes in lieu of those of 1926 Act ________________________ _ title, "Income tax of 1928" _______ _ effective as of January 1, 1928_____ _ 810 811 811

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1989

 ccxxxviii BeIImue .Ace oj 19S5-Continued. income tax; mtes of tax on capital oet gains and 10ll8e8______________ _ on sales of mines, oU and gas wells_ exemptions from corporation tax___ _ tax on accumulation of surplus to avoid surtax_________________ _ computation, when taxab1e~. period embraces years with different laws________________________ _ determination of gain or loss on sales or exchaDge of property _______ _ recognition of gam or loss_______ _ basis for determining gain or loss__ basis for allowance of depreciation and depletion________________ _ distribution by corporations_______ _ additional items excluded from gross income _____________________ _ definition of "net loss," and allow- ances for____________________ _ loss on sale of stock or securities ___ _ income from sources within the United States______________________ _ without the United States__. ___ _ _ partly within and partly without the United States____________ _ unlimited deduction for charitable, etc' l contributions____________ _ credits for tax of foreign countries, possessions of the United States_ payments under Act of 1926 ______ _ consolidated returns of corporations_ returns from fiduciaries ___________ _ withholding tax at source _________ _ payment of corporation twc at source_ penalties________________________ _ closinfr of taxable year by Commie- moner ______________________ _ information at source_____________ _ by corporations________________ _ returns of brokers________________ _ collection of foreign items_________ _ tax on estates and trusts__________ _ partnerships not taxable __________ _ tax on iLcome of partners from __ _ returns of, to be made__________ _ tax on life insurance companies____ _ insJrm:::!fTarmstroBot (talk) _01:34, 25 September 2010 (UTC)_ mutual insurance companies other than life ____________________ _ tax on nonresident alien individuals_ foreign corporations____________ _ income from sources within p0sses- sions of the United States_____ _ China Trade Act corporations_____ _ assessment and collection of defi- ciencies_____________________ _ jeopardy assessments___________ _ bankruptcy and receiverships____ _ limitations on _________________ _ suspension of running of statute of limitations __________________ _ interest, and additions to the tax___ _ claims against transferees and fidu- ciaries______________________ _ overpayments___________________ _ TITLJI n. IfISCELLANEOUB TAXES________ _ Estate Tax, deduction in case of non- resident decedents ___________ _ suspension of statute of limitations__ in transferees or fiduciary cases__ _ credit of gift tax _________________ _ INDEX. Paae. 811 812 812 814 815 815 816 818 821 822 823 825 826 826 827 828 828 829 830 831 833 833 835 835 836 836 837 837 838 838 840 840 842 842 844 846 847 849 850 851 852 854 856 856 857 857 860 861 862 862 862 863 863 BeIIm~ Act oj 19'5-Continued. Tax on Admission and Dues_________ _ ExcbeTaxes ______________________ _ automobile tax repealed __________ _ refund to manufacturer, producer, or importer_________________ _ refund to vendee_______________ _ refund of automobile accessories tax, conditions_______________ _ cigar packages provisions ___________ _ Special Taxes______________________ _ tax on use of foreign buUt boats re~led _____________________ _ narcotic license tax_______________ _ Stamp Taxes ______________________ _ exemption of stock, etc., of agricul- tural cooperative associations__ _ steamship tickets ________________ _ sales at post office________________ _ Liquor Tax _______________________ _ tax on still wines_________________ _ grape brandy, etc., used in fortifying_ cereal beverages, repealed _________ _ TITLII W. AMENDMENTS TO 1112S INCOME TAX ________________________ _ suspension of running of statute of limi- tations applicable to deficiencies of affiliated corporations ______ _ extension of time for payment of de- ficiencies ____________________ _ request for prompt assessment byexec- utor, etc ____________________ _ suspension of running of statute of limi- . tations in deficiency proceedings_ in transferee c&seS ________________ _ waivers after expiration of period of limitation___________________ _ assessment at any time on consent of Commissioner &Ild taxpayer___ _ collection of tax by distraint; time limit extended by agreement___ _ agreements for extension valid, if en- teredinto before January 1,1921_ validity of prior waivers not affected_ on finding of Board of overpayment and no deficiency amount to be de- termined by Board___________ _ time limit for credit or refund _____ _ TITLlD IV. ADMINISTRATIVE PROVISIONS__ _ Board of Tax Appeals, procedure ____ _ assignment into diVISions, hearings and determination by ________ _ report of division the report of Board, unless reviewed ______________ _ deficiency established, if Board dis- miss petition for redetermina- tion________________________ _ date of decision __________________ _ decision of no deficiency, if aSsess- ment barred by limitation ____ ~ prior findings continue as prima facie evidence ____________________ _ procedure on hearings; decisions to be made by a member________ _ proceedings opened to the public; stenographically reported _____ _ rules and practice to be observed__ in fraudulent intent to avoid tax, burden of proof on Com- missioner ___________________ _ effect of mailed notices _________ _ to report in writing of its findings __ _ in transferee proceedings Commis- sioner to show liability of trans- feree _______________________ _ Paae. 863 865 865 865 865 866 866 867 867 867 867 867 867 867 868 868 868 868 869 869 869 869 870 870 870 870 870 870 871 871 871 871 871 871 871 871 872 872 872 872 872 872 872 872 872 872

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text: Zabriskie v. Cleveland Columbus and Cincinnati Railroad Company