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Fowler v. Rapley/Opinion of the Court

'Goods sold in the ordinary course of business undoubtedly become discharged from the lien, otherwise business could not be safely carried on.'

2. Even if the chattels were taken by the purchasers with notice of the lien, it was unlawful for the landlord to proceed against the property by attachment.

The statute authorizes this process to be used for the purposes, only, of holding the property for judgment after the rent has become due, and to prevent a sale or removal thereof. In cases where a sale has been perfected, the remedy is explicitly pointed out in the third subdivision of the said section. The landlord must resort to his action at law against the purchaser, instead of seizing the chattels by attachment.

Messrs. T. J. Miller and R. T. Merrick, contra:

The landlord's lien, under the act of 1867, attaches at the commencement of the tenancy, or whenever personal chattels, owned by the tenant and subject to execution for debt, are brought on the rented premises.

This lien once attaching continues upon the chattels to which it attaches, into whosesoever hands they may come during the time limited for instituting proceedings; unless, probably where the chattels are disposed of by the tenant in the ordinary course of mercantile transactions.

In providing a personal remedy 'by action against any purchaser of any of said chattels with notice of the lien,' the law, by implication, permits the landlord, when proceeding against the chattels in specie, to reach them into whosesoever hands they may be found, whether the holder had notice of the lien or not.

The plaintiff, as assignee of the unexpired term and of the personal chattels on the premises, was put upon inquiry as to the terms and conditions of the tenancy; he was therefore bound to know the charges upon the goods that existed by reason of the tenancy; and he can occupy with respect to the landlord's right-as such-to the goods on the premises, no better position than did his assignor.

Decisions of the courts of Iowa, Missouri, Alabama, and Arkansas in interpreting statutes of those States, nearly similar in their provisions to the act of Congress now under consideration, sustain these views.

At common law a purchaser of goods and chattels takes them subject to the same liens which existed against the vendor.

Mr. Justice CLIFFORD delivered the opinion of the court.

Congress, on the twenty-second of February, 1867, abolished the power previously claimed and exercised as of common right by every landlord in this District, of seizing by his own authority the personal chattels of his tenant for rent arrear, and instead of it, provided that the landlord shall have a tacit lien upon such of the tenant's personal chattels upon the premises as are subject to execution for debt, to commence with the tenancy and continue for three months after the rent is due and until the termination of any action for such rent brought within said three months.

Hall & Stackpole, on the first day of July, 1867, rented a wharf, situated in this city, of the first named defendant, for a site for ice-houses and for a lumber yard, at the monthly rent of one hundred dollars. As lessees they took possession of the premises, and carried on there the business of buying and selling lumber and ice until the twenty-third of November following, when they sold out their entire stock of lumber and ice to J. M. Perkins, as appears by the written agreement which is made a part of the case. Perkins immediately took possession of the premises and of the stock embraced in the sale, and continued the business until the fourteenth of the succeeding January, when he sold all that remained of the stock and delivered the same to the plaintiff. At the time of the first sale rent was due from the lessees from the first day of August of that year. On the twenty-fourth of January of the next year the lessor sued the lessees for rent in arrear, to wit, for one hundred dollars per month for the months of August, September, October, November, and December of the previous year, and caused an attachment to be issued under section twelve of the before-mentioned act of Congress, and it appears that the marshal, who is the other defendant, under that process attached the property which is the subject of controversy in this case. By the agreed statement it also appears that the property so attached was a part of the stock which had belonged to Hall & Stackpole, and had been by them sold to Perkins, and which was sold by Perkins to the plaintiff, and that it had not been removed from the premises at the time of the attachment. Both of the purchasers knew at the time of their respective purchases that the premises were rented premises, but neither of them had special notice of that fact, or any notice thereof, except by implication from the facts set forth, and that the rent was in arrear. Five hundred and thirty tons of ice were attached by the marshal, of the alleged value of two thousand dollars, and the plaintiff sues the defendants for wrongfully taking and unjustly detaining the ice, claiming the same as his property, and that the same should be taken from the defendants and delivered to him, or if eloigned, that he may have judgment for the value of the ice and all mesne profits and damages, which he estimates at one thousand dollars, exclusive of costs.

Two pleas were pleaded by the defendants: (1.) That they were not guilty. (2.) That the goods and chattels were not the property of the plaintiff; that they were attached on the described premises as the property of the lessees of the same to answer to the first-named defendant for rent due to him and unpaid by the lessees in the sum of five hundred dollars. Issue was joined on those pleas, and the cause, by consent of parties, was referred. Subsequently the referee, having heard the parties, made an award in favor of the defendants. Exceptions to the report or award of the referee were filed by the plaintiff, and the court, after argument, passed an order that the award be set aside and vacated, holding that the award was based upon an erroneous construction of the act of Congress.

By the twelfth section of the act it is provided, that instead of the right to seize the tenant's personal chattels for rent in arrear, the landlord shall have a tacit lien upon such chattels situated on the premises as are subject to execution for debt, to commence with the tenancy and continue for three months after the rent is due. Pursuant to that enactment the referee decided that the lien commenced with the tenancy, that it attached immediately to the chattels in question, and that it continued for three months after the rent became due, or until the termination of an action brought to recover the rent within three months; that the only conditions are that the chattels shall belong to the tenant at the commencement of the tenancy, or at any time during its continuance, if within three months after the rent falls due, and that the chattels shall be on the premises, and be subject to execution. Contrary to the views of the plaintiff, the referee held that the sales of the chattels did not displace the lien or impair the right of the lessor; that the lien, when it once attached, continued for the period prescribed by the act of Congress, and that the sales, without removing the ice from the premises, did not extinguish the lien or affect the validity of the attachment. Dissatisfied with the order of the court setting aside and vacating the award of the referee, the defendants appealed to the court sitting in general term, where the judgment of the subordinate court was affirmed. Judgment was accordingly entered for the plaintiff in the sum of fifty dollars, with costs of suit. Two days afterwards the parties filed in the case an agreed statement of facts, the substance of which has already been reproduced, and the parties having been again heard, the court decided that there was manifest error in the proceedings, and reversed the judgment, and entered judgment for the defendants, and for a return of the ice replevied, and for the costs of their defence. Whereupon the plaintiff sued out a writ of error, and removed the cause into this court.

Based on the agreed statement of facts, the plaintiff assigned two errors, as follows: (1.) That by the two sales of the property the lien was discharged. (2.) That the landlord was not authorized by the act of Congress to proceed by attachment against the chattels, they having been twice sold.

Congress abolished the right of distress previously claimed and exercised in such cases as of common right, and instead of it provided that the landlord should have a tacit lien upon such of the personal chattels of the tenant situated upon the premises as were subject to execution for debt, and enacted that the lien should commence with the tenancy, and continue for three months after the rent became due, and until the termination of any action for such rent brought within said three months. Provision is also made by the same section of the act, that the lien may be enforced by the landlord in three ways: (1.) By attachment to be issued upon affidavit that the rent is due and unpaid, or if not due, that the defendant is about to remove or sell all or some of said chattels. (2.) By judgment against the tenant, and execution to be levied on said chattels, or and of them, in whosesoever hands they may be found. (3.) By action against any purchaser of any of said chattels, in which action he may have judgment for the value of the chattels, not exceeding the rent in arrear and damages.

He elected in this case to adopt the first mode, and sued out an attachment to enforce the lien on the ice in controversy, which was upon the premises, and was clearly subject to execution for debt, and had been there before the rent fell due, and remained there when the attachment was issued.

Beyond doubt the tenants owned the ice, and they sold it and the remainder of their term, with all their other personal property, to the grantor of the plaintiff, and he transferred the goods in bulk, and all the other personal property on the premises, together with the unexpired term, to the present plaintiff, who took possession of the whole personal property, and entered upon the premises, and continued the business under the lease.

Repeated decisions in other jurisdictions have settled the question, that the lien in such cases attaches at the commencement of the tenancy, or whenever personal chattels owned by the tenant and subject to execution for debt are brought on the rented premises. Statutory liens without possession have the same virtue that existed in common law liens accompanied by possession. Liens like the one in the case before the court are upon the chattels in bulk, or the stock in mass and not in detail, or rather the lien is displaced where the goods are sold in the usual course of trade carried on by the tenant, provided they are duly delivered, and do not remain on the premises. Purchasers of goods and chattels take them at common law, subject to the liens which existed against the vendor, and the same rule applies in a case arising under the act of Congress in question, where the purchase is of the stock in mass, which is not removed from the premises, or with knowledge of the lien, and not in the usual course of trade. Sales of the stock in mass, which is not removed, or not made in the ordinary course of trade on the premises, and with knowledge of the lien, are subject to that rule under this provision, and the landlord may have his remedy for the same 'in whosesoever hands they may be found.' Personal chattels sold in the ordinary course of trade on the premises, without knowledge of the lien, are not subject to the lien, or, in other words, the lien in respect to such sales, where the goods are removed from the premises, is displaced, and the purchaser takes a perfect title to the property discharged of the lien. Goods sold in the ordinary course of trade, said this court, undoubtedly become discharged from the lien, because if it were not so, business could not be safely carried on; but the court held, in the same case, that the lien created by that act of Congress commences with the tenancy, and continues for three months after the rent is due, which cannot be true for any practical effect if it be admitted that the sale of the personal property in bulk, when not removed from the premises, and not in the usual course of trade, prevents the landlord from levying on the chattels 'in whosesoever hands they may be found.' Unquestionably the lien, when it once attaches, continues to attach to the chattels into whosesoever hands the chattels may come during the time allowed for instituting proceedings, unless the lien is displaced by the removal of the goods, or by the sale of the chattels by the tenant in the ordinary course of mercantile transactions. Support to that view is found in the fact that the act of Congress, in providing a personal remedy by action against the purchaser with notice of the lien, evidently intends to permit the landlord to reach the chattels in whosesoever hands they may be found, if the chattels were not sold in the usual course of business.

JUDGMENT AFFIRMED.

title: Fowler v. Rapley/Opinion of the Court


text: Talk:Fowler v. Rapley/Opinion of the Court

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United States v. Thomas (82 U.S. 337)

ERROR to the Circuit Court for the Middle District of Tennessee.

The United States sued Thomas and others as the principal and sureties on the official bond of the said Thomas, as surveyor of the customs for the port of Nashville, Tennessee, and depositary of public moneys at that place. The condition of the bond was in the usual form, that he should faithfully execute and discharge the duties of his office, according to law, and should well, truly, and faithfully keep safely, without loaning, using, depositing in banks, or exchanging for other funds than as allowed by act of Congress, all the public money collected by him or otherwise placed in his possession and custody, till the same should be ordered by the proper department, or officer, to be transferred or paid out; and when such orders for transfer or payment were received, should faithfully and promptly make the same as directed, and should perform all other duties as fiscal agent of the government which might be imposed by any act of Congress or regulation of the Treasury Department, &c. The breach alleged was, that certain public moneys were collected by Thomas in his official capacity, and were placed in his possession and custody, of which a balance of $4880 remained in his hands on the 27th of April, 1861, which he did not keep safely, but which he paid out to persons not entitled thereto, whereby it was wholly lost; and that although the said sum was ordered by the proper department and officer to be transferred and paid out, he failed and refused to transfer or pay it out, as so required. The defendants, besides performance, pleaded seizure of the moneys in question by the rebel authorities by the exercise of force, which Thomas was unable to resist, and against his will and consent, he being a loyal citizen, endeavoring faithfully to perform his duty. Upon the trial, evidence was adduced tending to support this plea, and the court charged the jury that if they believed from the evidence that, at the time the demand was made by the insurgents for the surrender by Thomas of the effects in his hands belonging to the government, there was an organized insurrection in the State of Tennessee, and in the city of Nashville, against the government of the United States, with a force sufficient to compel obedience to the orders and demands of the governor who led and controlled such insurrection, and that in this state of things the demand was made upon Thomas to surrender said effects; and if they further believed that Thomas was acting in good faith, and surrendered the effects in his hands only in the honest belief that he would be imprisoned and the effects seized by force, and had good reason to apprehend that and other violence to his person; and if they believed that the threatened force would be applied to compel the surrender, then the court was of opinion that the seizure and appropriation of the government effects in his hands would be by public enemies of the United States, and would relieve him from liability for the same, notwithstanding the condition of his bond; but if they believed that Thomas was one of the insurrectionists, or willingly co-operated with them in their lawless acts against the government, the jury might infer that he was willing that the effects in controversy should fall into the hands of the rebel authorities, and he would not be relieved from the obligations of his bond. To this ruling an exception was taken, and whether the ruling was correct in law was the point now before this court.

Mr. G. H. Williams, Attorney-General, and Mr. C. H. Hill, Assistant Attorney-General, for the plaintiff in error:

Performance of an express contract is not excused by reason of anything occurring after the contract was made, though unforeseen by the contracting party, and though beyond his control. This law was declared in England years ago, in the old case of Paradine v. Jane. It is emphatically thus reasserted there of late time in Ford v. Cotesworth:

'We think it firmly established, both by decided cases and on principle, that where a party has either expressly or impliedly undertaken, without any qualification, to do anything, and does not do it, he must make compensation in damages, though the performance was rendered impracticable by some unforeseen cause over which he had no control.'

The rule was equally enforced in this country in Dermott v. Jones, and has been applied by this and other courts to the cases of official bonds under circumstances undistinguishable in principle from the present, in United States v. Prescott, United States v. Dashiel, United States v. Keehler, Boyden v. United States, United States v. Bevans, Muzzy v. Shattuck, Commonwealth v. Comly, and State v. Harper.

In Boyden v. United States, the court observes:

'It is true that in Prescott's case the defence set up was that the money had been stolen, while the defence set up here is robbery. But that can make no difference, unless it be held that the receiver is a mere bailee. If, as we have seen, his liability is to be measured by his bond, and that binds him to pay the money, then the cause which renders it impossible for him to pay is of no importance, for he has assumed the risk of it.'

Mr. Henry Cooper, contra:

We concede that it is no defence to an action on the official bond of a receiver of public moneys, conditioned to keep safely the public moneys, that the money was feloniously stolen, as in the cases of United States v. Prescott, or of United States v. Dashiell, or paid over by the officer voluntarily to a creditor of the government, without authority from the United States, but under a statute of the Confederate States, as was the case in the case of the United States v. Keehler, or where the officer is overpowered and robbed, as in the case of United States v. Boyden, or where an officer is in default, and such default concurs with the acts of a public enemy, and contributes to or facilitates the wrong, or renders it possible, by which the money is lost, as was the case of United States v. Bevans. The principles settled in these cases have no application to the present case. In none of them does it appear that it was impossible to have prevented the loss. And to have excused the officers, under the circumstances, might have opened the door to fraud. But here we have this case: The officer was a loyal citizen of the United States, with her property in Tennessee, and Tennessee and the United States were public enemies, waging war. The public property of the latter is found within the territory of the former; the commanding general has the right to determine whether or not he will seize it; it is subject to seizure, and he orders Thomas to surrender it; the latter finds himself without protection, and is bound to submit to such laws as the ruler of the territory chooses to impose. If he had been ordered by the United States to transfer the effects to the loyal States he could not possibly have obeyed the order, nor could the United States have enforced it. Those who here gave the order were at the head of a government of paramount force. In such a case it is not only a necessity, but the duty of parties who reside in such territory to yield obedience to the ruling power in all civil and local matters.

It was not necessary that actual violence should have been used to constitute duress. Moral compulsion was sufficient.

Mr. Justice BRADLEY delivered the opinion of the court.

title: United States v. Thomas (82 U.S. 337)


text: Talk:United States v. Thomas (82 U.S. 337)


text:
United States v. Thomas (82 U.S. 337)/Opinion of the Court

This case brings up squarely the question whether the forcible seizure, by the rebel authorities, of public moneys in the hands of loyal government agents, against their will, and without their fault or negligence, is, or is not, a sufficient discharge from the obligations of their official bonds. This precise question has not as yet been decided by this court. As the rebellion has been held to have been a public war, the question may be stated in a more general form, as follows: Is the act of a public enemy in forcibly seizing or destroying property of the government in the hands of a public officer, against his will, and without his fault, a discharge of his obligation to keep such property safely, and of his official bond, given to secure the faithful performance of that duty, and to have the property forthcoming when required? The question is thus stated in its double aspect, namely: first, in regard to the obligation arising from official duty; and, secondly, in regard to that arising from the bond, because the condition of the latter is twofold,-that the principal shall faithfully discharge his official duties, and that he shall pay the moneys of the government that may come into his hands as and when it shall be demanded of him. It is contended that the latter branch of the condition has a more stringent effect than the former, and creates an obligation to pay, at all events, all public money received.

That overruling force arising from inevitable necessity, or the act of a public enemy, is a sufficient answer for the loss of public property when the question is considered in reference to an officer's obligation arising merely from his appointment, and aside from such a bond as exists in this case, seems almost self-evident. If it is not, then every military commander who ever lost a battle, or was obliged to surrender his ship or fort, or other public property, added a civil obligation to his military misfortune. And as it regards this question, it is difficult to perceive any distinction between the loss of one kind of property and another. If the property belongs to the government, the loss falls on the government; if it belongs to individuals, it falls on them.

The general rule of official obligation, as imposed by law, is that the officer shall perform the duties of his office honestly, faithfully, and to the best of his ability. This is the substance of all official oaths. In ordinary cases, to expect more than this would deter upright and responsible men from taking office. This is substantially the rule by which the common law measures the responsibility of those whose official duties require them to have the custody of property, public or private. If in any case a more stringent obligation is desirable, it must be prescribed by statute or exacted by express stipulation.

The ordinary rule will be found illustrated by a number of analogous cases.

It is laid down by Justice Story that officers of courts having the custody of property of suitors are bailees, and liable only for the exercise of good faith and reasonable diligence, and not responsible for loss occurring without their fault or negligence. Trustees are only bound to exercise the same care and solicitude with regard to the trust property which they would exercise with regard to their own. Equity will not exact more of them. They are not liable for a loss by theft without their fault. But this exemption ceases when they mix the trust-money with their own, whereby it loses its identity, and they become mere debtors. Receivers, appointed by the court, though held to a stricter accountability than trustees, on account of their compensation, are nevertheless not liable for a loss without their fault; and they are entitled to manage the property and transact the business in their hands in the usual and accustomed way. A marshal appointed by a court of admiralty to take care of a ship and cargo is responsible only for a prudent and honest execution of his commission. 'Every man,' says Sir William Scott, 'who undertakes a commission incurs all the responsibility that belongs to a prudent and honest execution of that commission. Then the question comes, What is a prudent and honest execution of that commission? The fair performance of the duties that belong to it. . . . He must provide a competent number of persons to guard the property; having so done he has discharged his responsibility, unless he can be affected with fraud, or negligence amounting in legal understanding to fraud.' A postmaster is bound to exercise due diligence, and nothing more, in the care of matter deposited in the post-office. He is not liable for a loss happening without his fault or negligence. Soon after the organization of the government post it was attempted to charge the Postmaster-General to the same extent as the common carriers who had previously carried the mails; and the question was elaborately argued in the great case of Lane v. Cotton et al., and Lord Chief Justice Holt strenuously contended for that view; but it was decided that the postmaster was only liable for his own negligence; and this case was followed by Lord Mansfield and the whole court, three-quarters of a century later, in the case of Whitfield v. Le Despencer.

In certain cases, it is true, a more stringent accountability is exacted; as in the case of a sheriff, in reference to prisoners held by him in custody, where the law puts the whole power of the county at his disposal, and makes him liable for an escape in all cases, except where it is caused by an act of God or the public enemy. The exception which thus qualifies the severest exaction of official responsibility known at the common law is worthy of particular notice. The reason for applying so severe a rule in cases of escape is probably founded in motives of public safety. Chief Justice Gibson, in Wheeler v. Hambright, says: 'The strictness of the law in this respect arises from public policy.' Lord Chief Justice Holt, in his dissenting opinion in Lane v. Cotton, also held that the sheriff was responsible in the same strict manner for goods seized in execution; but he cited no authority for the opinion, and the general rule of responsibility is certainly much short of that.

The basis of the common-law rule is founded on the doctrine of bailment. A public officer having property in his custody in his official capacity is a bailee; and the rules which grow out of that relation are held to govern the case. But the legislature can undoubtedly, at its pleasure, change the common-law rule of responsibility. And with regard to the public moneys, as they often accumulate in large sums in the hands of collectors, receivers, and depositaries, and as they are susceptible of being embezzled and privately used without detection, and are often difficult of identification, legislation is frequently adopted for the purpose of holding such officers to a very strict accountability. And in some cases they are spoken of as though they were absolute debtors for, and not simply custodians of, the money in their hands. In New York, in the case of Muzzy v. Shattuck, the court, after a careful examination of the statutory provisions respecting the duties and liabilities of a town collector, came to the conclusion (contrary to its previous decision in The Supervisors v. Dorr), that he was liable as a debtor, and not merely as a bailee, for the moneys collected by him, and consequently that he could not excuse himself, in an action on his bond, by showing that, without his fault, the money had been stolen from his office.

Where, however, a statute merely prescribes the duties of the officer, as that he shall safely keep money or property received or collected, and shall pay it over when called upon to do so by the proper authority, it cannot, without more, be regarded as enlarging or in any way affecting the degree of his responsibility. The mere prescription of duties has nothing to do with the question as to what shall constitute the rule of responsibility in the discharge of those duties, or a legal excuse for the non-performance of them, or a discharge from their obligation. The common law, which is common reason, prescribes that; and statutes, in subordination to their terms, are to be construed agreeably to the rules of the common law.

The acts of Congress with respect to the duties of collectors, receivers, and depositaries of public moneys, it must be conceded, manifest great anxiety for the due and faithful discharge by these officers of their responsible duties, and for the safety and payment of the moneys which may come to their hands. They are expressly required to keep safely, without loaning, using, depositing in banks, or exchanging for other funds than as specially allowed by law, all the public money collected by them, or in their possession or custody, till ordered by the proper department or officer to be transferred or paid out; and where such orders from transfer or payment are received faithfully and promptly to make the same as directed. To obviate all excuse for casual losses, it is provided that they shall be allowed, under the direction of the Secretary of the Treasury, all necessary additional expenses for clerks, fire-proof chests or vaults, or other necessary expenses of safekeeping, transferring, and disbursing said moneys. And it is expressly made embezzlement and a felony, for an officer charged with the safekeeping, transfer, and disbursement of the public moneys, to convert them to his own use, or to use them in any way whatever, or to loan them, deposit them in bank, or to exchange them for other funds except as ordered by the proper department or officer. Every receiver of public money is required to render his accounts quarter-yearly to the proper accounting officers of the treasury, with the vouchers necessary to the prompt settlement thereof, within three months after the expiration of each quarter, subject, however, to the control of the proper department. Besides this, all such officers are required to give bonds with sufficient sureties for the due discharge of all these duties. And upon making default and being sued, prompt judgment is directed to be given, and no claim for a credit is to be allowed unless it has been first presented to the accounting officers of the treasury for examination and disallowed, or unless it be shown that the vouchers could not be procured for that purpose, by reason of absence from the country, or some unavoidable accident.

These provisions show that it is the manifest policy of the law to hold all collectors, receivers, and depositaries of the public money to a very strict accountability. The legislative anxiety on the subject culminates in requiring them to enter into bond with sufficient sureties for the performance of their duties, and in imposing criminal sanctions for the unauthorized use of the moneys. Whatever duty can be inferred from this course of legislation is justly exacted from the officers. No ordinary excuse can be allowed for the non-production of the money committed to their hands. Still they are nothing but bailees. To call them anything else, when they are expressly forbidden to touch or use the public money except as directed, would be an abuse of terms. But they are special bailees, subject to special obligations. It is evident that the ordinary law of bailment cannot be invoked to determine the degree of their responsibility. This is placed on a new basis. To the extent of the amount of their official bonds, it is fixed by special contract; and the policy of the law as to their general responsibility for amounts not covered by such bonds may be fairly presumed to be the same. In the leading case of The United States v. Prescott (which was an action on a similar bond to that now under consideration), the court say: 'This is not a case of bailment, and consequently the law of bailment does not apply to it. The liability of the defendant, Prescott, arises out of his official bond, and the principles which are founded on public policy.' After reciting the condition of the bond, the court adds, with a greater degree of generality, we think, than the case before it required, 'The obligation to keep safely the public money is absolute, without any condition, express or implied; and nothing but the payment of it, when required, can discharge the bond.'

This broad language would seem to indicate an opinion that the bond made the receiver and his sureties liable at all events, as now contended for by the government. But that case was one in which the defence set up was that the money was stolen, and a much more limited responsibility than that indicated by the above language would have sufficed to render that defence nugatory. And as the money in the hands of a receiver is not his; as he is only custodian of it; it would seem to be going very far to say, that his engagement to have it forthcoming was so absolute, as to be qualified by no condition whatever, not even a condition implied in law. Suppose an earthquake should swallow up the building and safe containing the money, is there no condition implied in the law by which to exonerate the receiver from responsibility?

We do not question the doctrine so strongly urged by the counsel for the government, that performance of an express contract is not excused by reason of anything occurring after the contract was made, though unforeseen by the contracting party, and though beyond his control-with the qualification, however, that the thing to be done does not become physically impossible; as, to cultivate an island which has sunk in the sea. It was thus decided in the leading case of Paradine v. Jane. The law on this subject is well stated by Sergeant Williams, where he says: 'When the law creates a duty, and the party is disabled to perform it without any default of him, and he has no remedy over, the law will excuse him; as in waste, if a house be destroyed by tempest, or by enemies, the lessee is excused; so, in escape, if a prison be destroyed by tempest or enemies, the gaoler is excused. But where the party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract.'

It is contended that the bond, in this case, has the effect of such a special contract, and several cases of actions on official bonds have been cited to support the proposition. Those principally relied on are the cases of United States v. Prescott, just cited; Muzzy v. Shattuck, Commonwealth v. Comly, The State v. Harper, and the recent cases of Dashiel, Keehler, and Boyden in this court. It must be conceded that the language used by the court, not only in the case already referred to, but in some of the other cases cited, seems to favor the rule contended for. But in none of them was the defence of overruling necessity interposed. They were all cases of alleged theft, or robbery, or some other cause of loss, which would have been insufficient to exonerate a common carrier from liability. They all concur in establishing one point, however, of much importance, that a bond with an unqualified condition to account for and pay over public moneys enlarges the implied obligation of the receiving officer, and deprives him of defences which are available to an ordinary bailee; but they do not go the length of deciding that he thereby becomes liable at all events; although expressions looking in that direction, but not called for by the judgment, may have been used.

The case of United States v. Prescott has already been sufficiently adverted to. The next, in order of time, was that of Muzzy v. Shattuck, which was decided the same year, 1845, and in which the Supreme Court of New York construed the statutes of that State as making the town collector a debtor for the amount of taxes to be collected by him, and held him liable on his bond notwithstanding the money was stolen. Here again the result arrived at was correct; but the reasoning by which it was attained may be fairly questioned. The statutes of the State, however, may have justified the view which was taken in that case.

The next case is that of The Commonwealth v. Comly, decided in 1846. That was an action on the bond of a collector of tolls, and the same defence (of theft) was interposed. Chief Justice Gibson refers to the case of United States v. Prescott, and remarks, that 'the responsibility of a public receiver is determined not by the law of bailment, which is called in to supply the place of a special agreement where there is none, but by the condition of his bond.' So in the case of The State v. Harper et al., which was an action on the official bond of a county treasurer, conditioned for the payment of all moneys that should come to his hands for State, county, or township purposes; and larceny of the money being pleaded, the court say: 'By accepting the office, the treasurer assumes upon himself the duty of receiving and safely keeping the public money, and of paying it out according to law. His bond is a contract that he will not fail, upon any account, to do these acts;' and the defence of larceny was overruled.

It is unnecessary to examine the cases further in detail. It appears from them all (except perhaps the New York case) that the official bond is regarded as laying the foundation of a more stringent responsibility upon collectors and receivers of public moneys. It is referred to as a special contract, by which they assume additional obligations with regard to the safe-keeping and payment of those moneys, and as an indication of the policy of the law with regard to the nature of their responsibility. But, as before remarked, the decisions themselves do not go the length of making them liable in cases of overruling necessity. On the contrary, in the last reported case on the subject, that of Bevans v. United States, Mr. Justice Strong, delivering the opinion of this court, says: 'It may be a grave question whether the forcible taking of money belonging to the United States, from the possession of one of her officers or agents lawfully holding it, by a government of paramount force, which at the time was usurping the authority of the rightful government, and compelling obedience to itself exclusively throughout a State, would not work a discharge of such officers or agents, if they were entirely free from fault, though they had given bond to pay the money to the United States.' These observations show that the particular question raised in this case has been reserved by the court after its most mature consideration of the subject.

So much stress has, in almost every case, been laid upon the bond as forming, either directly or indirectly, the basis of a new rule of responsibility, that it seems especially important to ascertain what are the legal obligations that spring from such an instrument. The learned judges in the great generality of the remarks made in some of the cases referred to, with regard to the liability of a receiving officer, and especially of his sureties, by virtue of his bond, have evidently overlooked what we conceive to be a very important and vital distinction between an absolute agreement to do a thing and a condition to do the same thing, inserted in a bond. In the latter case the obligor, in order to avoid the forfeiture of his obligation, is not bound at all events to perform the condition, but is excused from its performance when prevented by the law or by an overruling necessity. And this distinction, we think, affords a solution to the question involved in this case.

The following extract from Coke on Littleton expresses the law on this subject, which is repeated by Blackstone and other modern authorities: 'In all cases,' says Lord Coke, 'where a condition of a bond, recognizance, &c., is possible at the time of making of the condition, and before the same can be performed, the condition becomes impossible by the act of God, or of the law, or of the obligee, &c., there the obligation, &c., is saved. But if the condition of a bond, &c., be impossible at the time of the making of the condition, the obligation, &c., is single.'

Of course the above rule does not apply to a money bond given for a debt, where the condition is simply for the payment of a less sum of money than the penalty; for there, as the books say, the condition is of the same nature as the obligation itself, and not collateral to it. The bond in suit is not such a money bond. The condition of an official bond is collateral to the obligation or penalty; it is not based on a prior debt, nor is it evidence of a debt; and the duty secured thereby does not become a debt until default be made on the part of the principal. Until then, as we have seen, he is a bailee, though a bailee resting under special obligations. The condition of his bond is, not to pay a debt, but to perform a duty about and respecting certain specific property which is not his, and which he cannot use for his own purposes. In the case of Farrar and Brown v. United States, the question being whether sureties were liable for defaults made prior to the giving of the bond, the court say: 'For any sums paid to Rector (the principal) prior to the execution of the bond, there is but one ground on which the sureties could be held answerable to the United States, and that is the assumption that he still held the money in bank or otherwise. If still in his hands, he was up to that time bailee of the government; but on the contrary hypothesis he had become a debtor or defaulter to the government, and his offence was already consummated.' That is, as custodian of the money he is bailee of the government-not a debtor. What makes him a debtor or defaulter is the very question at issue. When he becomes such, then he and his sureties are liable until the amount is paid, as we held in the late case of Bevans, before referred to. Until then, neither he nor they are liable on the bond.

We think that the case is within the law as laid down by Lord Coke, and that the receiver, and especially his sureties, are entitled to the benefit of it; and that no rule of public policy requires an officer to account for moneys which have been destroyed by an overruling necessity, or taken from him by a public enemy, without any fault or neglect on his part.

JUDGMENT AFFIRMED.


text: Talk:United States v. Thomas (82 U.S. 337)/Opinion of the Court


text: Grand Chute v. Winegar at Law

title: Grand Chute v. Winegar at Law


text: Talk:Grand Chute v. Winegar at Law

title: Talk:Grand Chute v. Winegar at Law


text:
Grand Chute v. Winegar at Law/Opinion of the Court

ERROR to the Circuit Court for the Eastern District of Wisconsin; the case being thus:

By the first section of an act of the 10th of February, 1854, the legislature of Wisconsin authorized the boards of supervisors of Grand Chute, Greenville, Hortonia, and certain other towns along the course of a contemplated plankroad in Wisconsin, named the Wolf River Branch Plankroad, to subscribe in behalf of said towns or any of them, 'under the restrictions and conditions hereinafter named,' to the capital stock of the said plankroad company, such amounts, not exceeding $10,000, for any one town, as may be declared by the board of directors of said company necessary for the completion of said road at the time of such subscription, and to pay for the same in bonds of the town or towns so subscribing, payable in fifteen years from the date thereof with interest, at a rate not exceeding ten per cent. per annum, payable annually, at such place within or without the boundaries of this State as shall be therein named.

'SECTION 6. No bonds shall be issued by any town in pursuance of this act, unless a majority of the votes cast in said town, at the election hereinafter mentioned, shall be in favor of the same.

'SECTION 7. A special election shall be called and held in each of the towns before named, for the purpose of carrying this act into effect within six months after the passage of this act. At such election, those voting in favor of the subscription of stock, and the issuing of bonds in accordance with the provisions of this act, shall put in ballots having inscribed on them the words 'FOR THE ROAD,' and those voting against such subscription and issue of such bonds, shall put in ballots inscribed with the words 'AGAINST THE ROAD,' Notice of such election shall be given for two weeks successively next preceding said election, in some newspaper printed in the county where the town so voting is situated. And such elections and the canvass thereof, shall be held at the same place, and conducted by the same persons, and in the same manner in all respects as the annual town meetings of each town.'

On the 12th of March, 1855, certain bonds were issued in form thus:

[No. 5.]

TOWN OF GRAND CHUTE BOND.

Whereas, the legislature of the State of Wisconsin, on the tenth day of February, A.D. 1854, passed an act authorizing and empowering the board of supervisors of the town of Grand Chute to subscribe, for the town of Grand Chute, ten thousand dollars to the capital stock of the Wolf River Branch Plankroad Company, and to pay for the same in the bonds of the town, payable in fifteen years; and whereas the said board of supervisors, at a meeting of their board, did agree, by resolutions of said board, to subscribe the sum of $10,000 to the stock of the Wolf River Branch Plankroad Company, and that the said town issue bonds to the amount of said subscription to the said plankroad company, and that the said bonds be signed by the chairman of said board, under the seal of said town:

Now, therefore, for the purpose of carrying out the provisions of the said act of the legislature, and in accordance with the resolutions of the said board as aforesaid:

Know all men by these presents that the town of Grand Chute, in the county of Outagamie, and State of Wisconsin, is held and firmly bound unto the Wolf River Branch Plankroad Company, or bearer, in the sum of ONE THOUSAND DOLLARS, lawful money of the United States of America, to be paid to said plankroad company, or bearer, or their successors or assigns, for which full payment well and truly to be made, the said town binds itself firmly by these presents, and hereby pledges, irrevocably, the said stock and the proceeds thereof. Dated the 12th day of March, A.D. 1855. Sealed with the seal of said town.

The condition of the above obligation is such, that if the said town of Grand Chute shall pay, or cause to be paid, to the said Wolf River Branch Plankroad Company, or their successors or assigns, or to the bearer hereof, the just and full sum of one thousand dollars in fifteen years from the 12th day of March, A.D. 1855, with interest annually at the rate of 10 per cent. per annum until paid, said principal and interest to be paid at Appleton, in the State of Wisconsin, then the above obligation to be void; otherwise to remain in full force and virtue.

[SEAL.] THEODORE CONKEY, Chairman of Board of Supervisors town of Grand Chute.

To the bond were annexed fifteen coupons, in form thus:

[No. 1.]

The town of Grand Chute will pay to the holder hereof, eighty-eight and 35/100 dollars on the first day of February, 1856, at Appleton, Wisconsin, on the presentation hereof, being the interest due that day on the bond of said town, No. 5.

THEODORE CONKEY, Chairman.

Nine of these bonds with the coupons being in the control or ownership of one Winegar, he brought suit against the town of Grand Chute in April, 1870, in the court below, describing himself as 'a citizen of the State of New York.' The town of Grand Chute pleaded in abatement, to the effect that the Circuit Court of the United States had no jurisdiction over the action for the reason that at the time of the commencement of the action, a portion of the bonds ($5500) sought to be recovered, were held and owned by one Henry Hewett, and the residue by one Theodore Conkey; that Conkey and Hewett were the real plaintiffs in interest in the action, that they were citizens of the State of Wisconsin, and, therefore, that the court could not take cognizance of the action. The plea in abatement further alleged that the bonds were not issued in good faith or for any valuable consideration, but were procured and issued by the fraudulent contrivance of Hewett, Conkey, and one Reeder Smith, who was the president of the plankroad company for whose benefit the bonds were authorized to be issued, and the substance of the fraud was briefly stated. Issue was joined on this plea, and the deposition of the plaintiff, Winegar, was himself taken by the defendant to prove the affirmative of it. Winegar swore that he purchased the bonds of Goodwin, as the agent of Hewett, at the First National Bank of Union Springs, Cayuga County, N. Y., for $5100, payable $2500 in one year, and $2600 payable in two years, with 7 per cent. interest. That he had negotiated for the bonds a year and a half or two years before he purchased; that he purchased the bonds in January, 1870; purchased them for speculation; that he 'had no reason to believe that they were any other than good and valid bonds;' that he 'so believed at the time he made the purchase; that the purchase was made by him in good faith and without any knowledge or information that they were other than good and valid bonds; that he in equal good faith gave his notes, and that they would be met;' that he lived at Union Springs, Cayuga County, N. Y.; that he was the teller of a bank there, and had lived there for nearly four years before he brought the suit. He testified also that he never had the bonds in his possession, that he had a bill of sale of them, and they were subject to his order, and that the bill of sale was signed by Goodwin as the agent of Hewett, the seller. The court directed the jury on this evidence-the only evidence taken on the issue raised by the plea in abatement-to find the issue for the plaintiff. An exception was taken to the direction.

After this decision of the plea in abatement, the plaintiff asked for final judgment in his favor on the verdict, which the court declined to grant. Thereupon the town of Grand Chute put in nine special pleas, of which certain ones only need be mentioned.

1st. Nil debet.

2d. Non est factum.

3d. That the act authorizing the town of Grand Chute to subscribe for plankroad stock and issue bonds in payment, 'was not published pursuant to the constitution and laws of said State of Wisconsin, at or prior to the time of the calling, holding and canvass of the special election prescribed by said act, to wit: on the 20th day of May, 1854.'

4th. That the town of Grand Chute was not authorized to subscribe to the stock of the plankroad in question.

5th. That the board of directors of the plankroad company had not declared, as the 1st section of the act required them to do, what 'amount was necessary for the completion of the road.'

7th. That no special election, such as the act prescribed, had been called or held, previous to the issue of the bonds.

8th. That Hewett owned $5500 of the bonds in suit, that Conkey owned the residue, and that they, and not Winegar, were the real parties in interest in the action. That the bonds were not issued in good faith or for any valid consideration, but were procured by fraud, deception, and by collusion between Hewett, Conkey, and Reeder Smith, president and general agent of the plankroad company, in pursuance of a corrupt agreement, whereby Smith received a contract at an extravagant price and Conkey received the privilege of paying off the workmen from his store at a large profit; that a change in location was made to the injury of the road, but for the benefit of the conspirators; that Hewett signed a writing purporting to bind him, and that the bonds were fraudulently delivered to Hewett before he had performed any part of the work or even commenced it. The plea was a very long plea, covering nearly four pages of twice as much type as one of the ordinary pages of these Reports; it amplified all the above matter; inserted copies of the agreement with Hewett, and specified the mode and manner in which the fraud was alleged to have been effected.

[The reader will observe that this eighth plea resembled the plea in abatement already mentioned.]

9th. That the bonds were not executed and delivered to the plankroad company for the purpose of carrying out the provisions of any act of the legislature, or for a valid consideration; that the company did not sell the same to bon a fide holders for a valuable consideration; that the same had not passed from hand to hand like other negotiable securities, and had not as such come to the hands of the plaintiff: that they were a part of $10,000 of bonds procured to be issued by fraud and deception, and by collusion between Conkey, chairman of the town board, Smith, president of the plankroad company, and Hewett, a contractor, and divers other persons, and in pursuance of a conspiracy for the purpose of defrauding the defendant and the creditors and stockholders of the plankroad company. The plea contained other allegations of the same general character.

These pleas being filed, the plaintiff moved the court to strike off the second of them, as inconsistent with the first; and also to strike off the eighth, as embracing the same matter as was in the plea in abatement. This motion the court granted, the defendant excepting.

The plaintiff then filed replications to the first and fourth pleas, and demurred to the third, fifth, seventh, and ninth. The court sustained the demurrers.

On the trial of the issues of fact, the plaintiff offered to read the act of the Wisconsin legislature, of February 10th, 1854, in evidence, and the defendant objected, because it had no applicability to the case, and did not authorize the issuing of the bonds. The court, however, allowed the act to be read, and also the bonds and coupons.

The plaintiff, after having put in his bonds and coupons, here rested.

The defendant, on its part, offered to read in evidence the deposition of the plaintiff, Winegar, it being the same that was read on the issue in abatement. The plaintiff objected, on the ground that the same was incompetent, irrelevant, and immaterial, and that the same was not admissible under the pleadings. The court sustained the objection, and ruled out the deposition; the defendant excepting.

The defendant then offered the record of a suit brought in the court below, October 21st, 1861, in the name of Henry Decker, Jr., against the town of Grand Chute, on some of the same coupons which appeared in this action; the record being offered to show that the bonds and coupons were in litigation at that early date. The record showed a suit begun, carried on to a certain point, and then before trial discontinued. The court ruled the record out on the ground of irrelevancy; the defendant excepting.

The defendant then offered the record of a suit brought in the Circuit Court of Wisconsin, November 17th, 1856, in the name of the Wolf River Branch Plankroad Company, for the use of Henry Hewett, against the town of Grand Chute; also, the record of an action brought in the same court, August 28th, 1857, in the name of the ''State of Wisconsin, ex rel. Henry Hewett v. The Board of Supervisors of the Town of Grand Chute; also, the record of an action brought in the same court, September 9th, 1857, in the name of Henry Hewett v. The Town of Grand Chute, together with the certified copy of the opinion of the Supreme Court of the State of Wisconsin, on appeal in the action, given September 10th, 1858; all being offered to show the pendency of actions involving the validity of the same bonds and coupons in question in this action, prior to the time that this plaintiff, Winegar, pretended to have become the bon a fide'' owner, holder, and bearer of the said bonds and coupons, and that, therefore, it was impossible for him to be what he professed to be.

[The said suits showed that the subject-matter of this action was in litigation before and at the several times when the said several suits were pending, and that the said suits were discontinued several years before this action was brought.]

The plaintiff's counsel objected to all this evidence on the ground of irrelevancy; and the court ruled it out, the defendant excepting.

The defendant's counsel then offered in evidence a bill in equity, filed in the court below on the 5th day of August, 1870, wherein the town of Grand Chute was complainant, and Winegar, Hewett, Conkey, and Goodwin defendants, and also offered in evidence all the papers and records in the case, including the demurrer to the bill of complaint.

This bill was one charging that the bonds and coupons now in suit had been issued without authority, in violation of law, and in fraud of the town of Grand Chute, by Goodwin, Hewett, and Conkey; that, for the reasons set forth in the bill, they had no legal force or validity; that the transfer of the same to Winegar was colorable merely; that he was a man of no responsibility; that he paid no valuable consideration on the pretended purchase; that he knew all the facts in relation to their issue, and that he never had any right or title to said pretended bonds, or to any of them. It further alleged that Winegar was a citizen of the State of New York, and that the other defendants were citizens of Wisconsin, and that Winegar had commenced an action in the Circuit Court of the United States for Wisconsin against the town of Grand Chute, to recover the amount of the said nine bonds. The bill prayed that an injunction might be issued restraining Winegar and his confederates from the further prosecution of the bonds, and that the same be adjudged to be fraudulent and void, and be decreed to be cancelled. The record offered showed that the bill had been demurred to; that no injunction had issued on the bill, and that the bill itself had been dismissed. The plaintiff objected to the evidence on the ground of irrelevancy and immateriality, and because it was inadmissible under the pleadings. The court ruled out the evidence deciding that the same was 'not proper:' the defendant excepting: the court equally ruling out the record when in addition it showed an appeal, undetermined, to this court.

The defendant then offered town records of Grand Chute, and evidence to show that some of the facts recorded in them as true about these bonds were not true; and that after a location of the road had been actually fixed on, it had been changed to a different one, for the benefit of persons interested in the bonds, and to the disadvantage of the Town of Grand Chute; and that persons who were interested in having the bonds issued had by fraudulent means procured them to be issued. But the court refused to let any of the evidence, or any of the same sort, of which there was a good deal, go in; there being nothing in any of it tending to show that the plaintiff had anything to do with any of these alleged frauds; ever knew of them before he got his bonds, or was other than a bon a fide holder of them for value.

Under instructions of the court the jury found a verdict for the plaintiff; and judgment going accordingly, the defendant brought his numerous exceptions already mentioned here.

Mr. G. W. Lakin, for the plaintiff in error:

1. The court erred in peremptorily ordering a verdict for the plaintiff on the issue raised by the plea in abatement. The defendant went into the enemy's camp for testimony. He extorted from the plaintiff a few facts reluctantly given. It was the constitutional right of the defendant that the jury should weigh the testimony and return a verdict agreeably to their convictions. To instruct the jury 'to find the issue for the plaintiff,' was an arbitrary infringement of that common law and constitutional right.

2. The court erred in ordering the second plea, that of non est factum, to be struck out. The alleged reason was that it was inconsistent with the first plea. But the law of pleading does not require that one separate and independent plea shall be consistent with another separate and independent plea. Each plea stands or falls by its merits. The reason which was the basis of the ruling, if it were true, would be no sufficient reason. But it is not true. How is nil debet inconsistent with non est factum? The defendant 'owes nothing'-the bonds 'are not its deed.' It owes nothing, because the bonds are not its deed-because they are a forgery, a fraud, were made without authority. So far from being inconsistent, the second plea is a logical reason for the first.

3. The court erred equally in striking out the eighth plea. Its object, end, and aim were different from the object, end, and aim of the plea in abatement. One sought to abate; the other to bar. It set forth facts sufficient to bar. The plea in abatement, so far as it did more than set up the pretended citizenship of Winegar, was surplusage.

4. The court erred in sustaining a demurrer to the third plea, which sets up the non-publication of the act of the legislature under which the bonds purport to have been issued.

5. The court erred in sustaining a demurrer to the fifth plea. The act, under and by virtue of which the plaintiff pretends that the bonds were issued, and which act is referred to on the face of the bonds and in the declaration as the only foundation thereof, limits all concerned. The subscriptions are not to exceed $10,000, and, before they can exceed one dollar, a prerequisite is interposed. It must be ascertained definitely, in due form, by the declaration of the board of directors, what sum is necessary for the completion of the road. Until that is done there is no authority to subscribe a dollar. Such declaration, by the act, is designated as the corner-stone of the contemplated edifice. The plea declares its non-existence. The legislative act must be followed, or else it may as well be dispensed with altogether. No one pretends that, without it, the bonds would be legal, or good for anything. How can they be valid without any attempt at complying with its most prominent and essential provision; that which may be denominated its jurisdictional provision?

6. The court erred in sustaining a general demurrer to the seventh plea, which alleges that no special election, such as is prescribed in said act of February 10th, 1854, was called or held, previous to the issue of the bonds, &c. The act absolutely prohibits the issuing of any bonds, until that election is had. And here it stands admitted on the record that no election was had. And the court overrides the law, and adjudges that no election was necessary. To adjudge that no act at all was necessary as a foundation for the issue of the bonds would be as reasonable.

7. There was error in sustaining a general demurrer to the ninth plea. The demurrer admits the truth of all that is alleged in the plea. It places Winegar in no better position for a recovery than are the real parties who stand behind him. And it then shows the numerous acts of fraud, collusion, and conspiracy which taint the whole thing and render the paper void. Even if Winegar were the actual purchaser of the void bonds, which were issued without authority of law, he could not recover. Marsh v. Fulton County decides that point and disposes of the case.

So the case of Smith v. Sac County, the bonds sued on there belonged to the same class as the bonds here. In that case the bonds were fair on their face, and payable to bearer. But Meservy, a contractor to whom they issued, and the county judge had a fraudulent understanding about them. After the negotiable paper had been 'concocted' and the official seal affixed by the judge, one of the $1000 bonds was immediately presented by Meservy to him. This court says:

'That the bonds should turn up in the possession of some one else was to be expected. But, to hold that after all this was shown in defence, such holder should have judgment on these bonds, without any proof that he purchased them for value, or that he gave any consideration for them at all, is, in our judgment, pushing the doctrine which gives sanctity to negotiable paper beyond any just principle or any decided case.'

The court held the bonds void. There was no element of fraud in that case which does not appear in the case at bar. 'That the bonds should turn up in the possession of some one else' (Winegar) 'was to be expected.' Conkey, Hewett & Co. had long been scheming. They at last conceived the plan of having the bonds transferred for value. And the plaintiff was selected as the transferee, and his notes the value. In Smith v. Sac County all forms and precedents were observed in the creation of the bonds. The proper officer issued, sealed, and delivered them to Meservy, the contractor, who immediately bestowed one of them, of the denomination of $1000, on the judge.

8. The court erred in allowing the bonds and coupons to be read in evidence. Without some valid act of the legislature with which the bonds can be identified as their foundation, and as their authority for being issued, they are surely void.

9. The court erred in ruling out the deposition of the plaintiff, Winegar, offered to be read by the defendant at the trial. It was certainly competent for the defendant to show on the trial that the plaintiff had notice of the nature, character, and the frauds connected and identified with the bonds; when, where, and how he came by them; whether he gave any, and what value for them? The defendant had a legal right to testimony of the plaintiff when he spoke on these points, and to make the most of it, as coming from the party whose interest was largely in favor of a recovery. Whatever spark of testimony could be obtained from it, which pointed the other way, could be fastened upon. A few such sparks were evolved; and the defendant had a right to them, and to point them out, and to urge them to the jury. 'Incompetency,' 'irrelevancy,' 'immateriality,' and 'inadmissibility,' were the alleged grounds of rejecting the testimony. But it is clear that nothing beyond those naked terms was ever manifested to the parties, or to their counsel, to show why the testimony of the adverse party was thus summarily rejected.

10. There was error in rejecting the several records offered in evidence by the defendant, which showed that coupons of these bonds had been repeatedly litigated in courts of record without a recovery ever being had upon them. The records show what defences were interposed, and that the character of these bonds and coupons was made public very soon after their issue.

11. There was error in rejecting the bill in equity, and the records in the case, on the equity side of the court below. That bill was filed in the same court in which the action at law was pending. It commenced at the root of the fraud and traced it connectedly down. It proceeded against all the fraudulent parties. The bill sought to have the bonds cancelled of record. No clearer case of fraud brought home to and identified with the plaintiff in the action at law, Winegar, the pretended owner of the bonds, can be stated than is stated in the bill. The equity suit covered the whole ground. The demurrer admitted the truth of every allegation; and why, with the whole bill thus admitted to be true, the court ruled out the bill and the whole record, we know not.

12. There was error in ruling out the town records, and the proof offered of the changing of the location of the road for the benefit of the parties who procured the issuing of the bonds. And in ruling out the offer to show that the bonds were procured to be issued by fraudulent means, by persons who were interested in their being issued, and error in other rulings, as well as in the charge of the court to return a verdict for the plaintiff.

Mr. H. L. Palmer, contra.

Mr. Justice HUNT delivered the opinion of the court.

The first alleged error of which complaint is now made is the direction of the court to the jury that they find the issue for the plaintiff on the plea of abatement where issue had been joined and testimony taken. The defendant held the affirmative of the issue, and attempted to sustain his case by calling Winegar, the plaintiff on the record.

Winegar swore that he had purchased the bonds on which the suit was brought of Goodwin; that he was the absolute owner of them; that he gave for them his notes for $5100, payable in one and two years, at seven per cent. interest, and that the purchase was made in good faith, with no knowledge or information that the bonds were not valid and with no reason to believe they were not. He testified also that he never had the bonds in his possession, that he had a bill of sale of them, and they were subject to his order, and that the bill of sale was signed by Goodwin as the agent of Hewett, the seller.

There was no evidence here that would have justified a finding by the jury that Winegar was not the bon a fide owner for value of the bonds in suit. He was the defendant's witness, and no other witness was called upon the issue. If the jury had found otherwise it would have been the duty of the judge to set aside the verdict as unsupported by evidence and in hostility to all the evidence given. There was no error in this charge.

Upon the decision of the plea in abatement the plaintiff asked for final judgment in his favor upon the verdict. Of the refusal to comply with this request, the plaintiff makes complaint, but as he ultimately succeeded in the suit, that result wipes out all exceptions on his part. Upon this refusal the defendant interposed nine special pleas. The plaintiff moved to strike from the record the second of the said pleas as being inconsistent with the fact, and this motion was granted. The first of the said pleas was that the defendant did not owe the moneys demanded or any part thereof in manner and form as the plaintiff had complained against it. The second plea was that the said supposed writings were not, nor were any of them, the deed of the defendant. It is not easy to see the inconsistency of these two defences. If the defendant had never executed the bonds, it would be very likely it did not owe the moneys in them agreed to be paid. So again it might well be that if it did not owe the money it had never executed the bonds. If not an error in striking out the second plea, there certainly was an erroneous reason given for it. If any prejudice had occurred to the defendant from striking out the plea of non est factum there would be difficulty in sustaining the judgment. But the record shows none. Indeed it is evident that although the plea was technically excluded, no evidence was rejected on account of its absence, but that the defendant litigated every question of fact as far and as fully as it would have done if this pleading had remained. Numerous offers of evidence were indeed objected to by the plaintiff and rejected by the court, but the objection was, in a few instances, only based on the character of the pleadings and then in connection with the objection of irrelevancy and incompetency. In no instance was the rejection placed upon the absence of a proper plea. The objection was sometimes expressed to be on the ground of the irrelevance and immateriality of the evidence offered, and in the remaining instances it is evident, from the nature of the offers, that the objection and decision were upon that ground. Among these were the offers of the pleadings in the equity suit still undecided, and again after its dismissal, and including his own bill of complaint, also the book of records of the town clerk's office, also the location of the plankroad, also that it was changed to a different route for the benefit of the parties who procured the issuing of the bonds, and much other evidence of a similar character. It does not appear that any evidence on the point of the actual signing and delivering of the bonds was rejected by the court, or that any harm was sustained by the defendant, from the absence of his plea of non est factum.

A further answer to this objection is given in the plaintiff's brief, to wit: that the allowance of double pleas and defences is not a matter of absolute right, but of discretion in the court, and that the courts constantly exercise their discretion in controlling this privilege by disallowing sham or inconsistent pleas.

The eighth plea was, on motion of the plaintiff, stricken out for the avowed reason that it embraced the same matters as had already been set up and passed upon in the plea in abatement. The pleas are the same in substance and effect. The eighth plea contains the same matter which is in the fifth, though in the eighth it is set forth with much fulness of detail, giving copies of the agreement with Hewett, and specifying the mode and manner in which the fraud, which both the pleas set up, was alleged to have been effected. The two pleas are, however, as has been already said, the same in substance and effect. A party having his plea in abatement passed upon by a jury, and found against him, is not permitted to set up the same matter in bar and again to go to the jury upon it.

Numerous objections were taken, and in a variety of forms, which fall within the principles of Knox County v. Aspinwall, Mercer County v. Hackett, and Meyer v. The City of Muscatine. The most of the objections, which we have already referred to, were decided not upon the pleadings, but upon the principle of these cases. In Knox County v. Aspinwall Mr. Justice Nelson thus states the question: 'The main ground of the defence relied upon to defeat the recovery is, that the defendant, the board of commissioners, possessed no authority to execute, or to authorize to be executed, the bonds in question, and hence that they are obligations not binding upon the County of Knox, which this board represents. Our chief inquiry, therefore, will be whether or not these several obligations were executed and put into circulation as evidence of indebtedness by competent legal authority.' Upon the inquiry thus put the decision is stated by the reporter in the following language: 'Where the statute of a State provided that the board of commissioners of a county should have power to subscribe for railroad stock, and issue bonds therefor, in case a majority of the voters of the county should so determine after a certain notice should be given of the time and place of election, and the board subscribed for the stock and issued the bonds, purporting to act in compliance with the statute, it is too late to call in question the existence or regularity of the notices in a suit against them by the holders of the coupons attached to the bonds, who were innocent holders. In such a suit, according to the true interpretation of the statute, the board were the proper judges whether or not a majority of the votes of the county had been cast in favor of the subscription. The bonds on their face import a compliance with the law under which they were issued, and the purchaser was not bound to look further for evidence of a compliance with the condition of the grant of the power.'

In Woods v. Lawrence County, it was held that where the statute requires the grand jury to fix the amount of a subscription to railroad stock, and to approve of it, and upon their report being filed empowers commissioners to carry the same into effect by making its subscription in the name of the county, and if these things be done agreeably to the law, the county cannot afterwards deny its obligation to pay the amount subscribed. In a suit brought to recover the arrears of interest on such bonds, it is not necessary for the holder to show that the grand jury fixed the manner and terms of paying for the stock; nor is it a defence for the county to show that the grand jury omitted to do so. It is enough that the manner and terms of payment were agreed upon between the company and the commissioners. In a suit brought upon the coupons by a bon a fide holder, his right to recover is not affected by the fact that the railroad company sold the bonds at a discount of twenty-five per cent. contrary to the charter, which forbids the sale of them at less than their par value.

In Mercer County v. Hackett, it was held that where a county issues its bonds payable to bearer, and solemnly pledges the faith and credit and property of the county, under authority of an act of the Assembly, referred to on the face of the bonds by date, and the bonds pass into the hands of a bon a fide holder for value, the county is bound to pay them; that it is no defence that the act of the Assembly referred to on the face of the bonds authorized their issue only on, and subject to, certain 'limitations, restrictions, and conditions,' which have not been formally complied with, nor that the bonds were sold at less than par when the act authorizing their issue declared that they should in 'no case,' nor 'under any pretence,' be so sold, and that the bonds are in the nature of negotiable instruments. The same principles are announced in Gelpcke v. The City of Dubuque, and in Meyer v. The City of Muscatine. In the latter case the court say that if the legal authority was sufficiently comprehensive, a bon a fide holder for value has a right to presume that all precedent requirements have been complied with.

By the act of February 10, 1854, the legislature of Wisconsin authorized the supervisors of the town of Grand Chute to make a plankroad subscription to the amount of ten thousand dollars. The bonds in question were signed by the chairman of the board of supervisors of that town, and recited that the subscription had been made by the supervisors of the town, and that these bonds were issued in pursuance thereof for the purpose of carrying out the provisions of that act. The plaintiff was the bon a fide holder for value of the bonds in suit, and his title accrued before their maturity. The cases cited are an answer to the numerous offers to show want of compliance with the forms of law, or to show fraud in their own agents. There are some other exceptions which it is not necessary to consider in detail.

After a careful examination of the whole case, we are of the opinion that the judgment should be

AFFIRMED.


text: Talk:Grand Chute v. Winegar at Law/Opinion of the Court


text:
Grand Chute v. Winegar in Equity

APPEAL from the Circuit Court for the Eastern District of Wisconsin.

The town of Grand Chute, in Wisconsin, filed its bill or the equity side of the court below against one Winegar three other persons, Goodwin, Hewett, and Conkey, being also made defendants. It set forth that Winegar had brought suit on the law side of the same court against the town to recover from it the amount of certain bonds-nine in number, and for the sum of $8500 in all purporting to have been issued by the said town; that the bonds were issued without authority, in violation of law, and in fraud of the town, by the other defendants, Goodwin, Hewett, and Conkey; that for reasons set forth in the bill the bonds had no legal force or validity; that the transfer of them to Winegar was colorable merely; that he paid no valuable consideration on the pretended purchase; that though he had given his notes for them, he was a bankrupt and altogether 'irresponsible in a financial point of view;' that he knew all the facts in relation to the issue, and that he never had any right or title to the said pretended bonds, or to any of them. It was further alleged that Winegar was a citizen of the State of New York, and that the other defendants were citizens of Wisconsin. The bill prayed that an injunction might be issued restraining Winegar and his confederates from the further prosecution of suit on the bonds, and that the bonds themselves might be adjudged to be fraudulent and void, and be decreed to be cancelled. To this bill the defendants demurred. The demurrer was sustained in the court below, and the complainant now appealed to this court.

Mr. G. W. Lakin, for the appellant; Mr. H. L. Palmer, contra.

Mr. Justice HUNT delivered the opinion of the court.

title: Grand Chute v. Winegar in Equity


text: Talk:Grand Chute v. Winegar in Equity

title: Talk:Grand Chute v. Winegar in Equity


text:
Grand Chute v. Winegar in Equity/Opinion of the Court

The inquiry at once suggests itself upon reading the bill in this case, why does the plaintiff file it? Can any relief be had in this suit which could not be obtained in the suit sought to be enjoined? It is an elementary principle of equity law that, when full and adequate relief can be obtained in a suit at law, a suit in equity cannot be maintained. In Hipp v. Babin the court say: 'The bill in this case is in substance and legal effect an ejectment bill. The title appears by the bill to be merely legal, the evidence to support it appears from documents accessible to either party, and no particular circumstances are stated showing the necessity of the court's interfering, either for preventing suits or other vexation, or for preventing an injustice irremediable at law. In Welby v. Duke of Rutland, it is stated that the general practice of courts of equity in not entertaining suits for establishing legal titles, is founded upon clear reasons, and the departing from that practice where there is no necessity for so doing, would be subversive of the legal and constitutional distinctions between the different jurisdictions of law and equity. . . .. Agreeably hereto, the established and universal practice of courts of equity is to dismiss the plaintiff's bill if it appears to be grounded on a title merely legal, and not cognizable by them, notwithstanding the defendant has answered the bill and insisted on matter of title.' After citing numerous other authorities, the matter is thus summed up: 'And the result of the argument is, that whenever a court of law is competent to take cognizance of a right and has power to proceed to a judgment which affords a plain, adequate, and complete remedy, without the aid of a court of equity, the plaintiff must proceed at law, because the defendant has a constitutional right to a trial by jury.' The right to a trial by jury is a great constitutional right, and it is only in exceptional cases and for specified causes that a party may be deprived of it. It is in vindication of this great principle, and as declaratory of the common law, that the Judiciary Act of 1789, in its sixteenth section, declares 'that suits in equity shall not be sustained in either of the courts of the United States in any case where adequate and complete remedy may be had at law.'

A demurrer having been interposed to the present bill, all of its allegations are to be taken as true. This is so both in favor of the plaintiff and against him. It seems quite clear upon the statements of the bill that the defence to the suit at law upon the bonds is adequate and complete. Thus, the bonds, it is alleged, were issued without authority and in fraudulent violation of the duty of those having the subject in charge. It is not suggested that there is any difficulty, either legal or practical, in establishing these facts by competent proof. If proven, they furnish as complete a defence to the suit at law to recover the amount of the bonds as they do in equity. In each suit the question arises, were they received by Winegar before their maturity, without knowledge of the defence, and for a valuable consideration by him paid on the purchase thereof? To cut off the defence, interposed by the town, all of these facts must exist. The absence of any of them destroys the endeavor to exclude the defence. In other words, if Winegar received the bonds after their maturity, or if he had knowledge of the facts constituting the defence to them, or if he did not pay value on their purchase, the defence is admissible and its effect distinctly presented. Now, upon the allegations of the bill, each and all of these facts, except that of the maturity of the bonds, is averred to have existed. The time when Winegar received the bonds is not definitely stated. It is alleged, however, that he knew the alleged facts in regard to their issue before he received them. This alone opens the case to any defence. It is alleged again that he paid no consideration whatever on the purchase, but that his title is sham and colorable. This again opens the whole case. Upon the statements of the bill the defence to the bonds can be interposed against Winegar, as it could be against an original holder; and if the allegations are true, and constitute a defence, the defence at law to the suit brought by him is perfect and complete.

A judgment against Winegar in the suit brought by him would be as conclusive upon the invalidity of the bonds, would as effectually prevent all future vexatious litigation, would expose the fraud, and prevent future deception as perfectly and thoroughly as would a judgment in the equity suit. Under such circumstances, there is no authority for bringing this suit in equity.

We are so well satisfied that the bill cannot be sustained for the reason stated, that we do not discuss the further question, whether a bill of this character can be sustained, where two of the defendants in the suit are residents of the same State with the plaintiff.

DECREE AFFIRMED.


text: Talk:Grand Chute v. Winegar in Equity/Opinion of the Court


text:
Kimball v. West

APPEAL from the Circuit Court for the District of Missouri.

Kimball and Trask brought their bill in chancery against West, to rescind a contract for the sale of land of which they were purchasers from him. The contract was an executed one, West having conveyed the land-about four hundred acres in quantity-to the complainants' agent, who had conveyed to them, and the purchase-money ($22,000) having been paid. The deed of West, the defendant, contained a clause of general warranty.

The allegation mainly relied on by the bill to set aside the contract was that the defendant represented to the agent of the complainants, that the title to the land was good; that there was no incumbrance on it, nor adverse claim to it; when in truth and in fact an action of ejectment was then pending for one hundred and eighty-four acres of it against the defendant, in which judgment was afterwards rendered against him; that the land so recovered in the suit against the defendant was the most valuable part of the track, and without which the complainants would not have made the purchase; and that the defendant fraudulently concealed the existence of this suit, and represented the title to the whole to be perfect. On the question of concealment and fraudulent representation testimony was taken on both sides, which did not leave the matter free from doubt. This part of the matter, however, was unimportant in the view which this court took of the case.

It appeared from the record that before the cause in the court below came to a final hearing, the defendant purchased the outstanding and conflicting title to the one hundred and eighty-four acres, and tendered to the complainants such conveyances as made their title perfect. The court, therefore, dismissed the bill, but decided that the defendant should pay the costs of the suit.

From this decree of dismissal the complainants appealed.

Mr. R. T. Merrick, for the appellants:

There was confessedly misrepresentation by the vendor as to five-twelfths of the whole tract. On the ground of mere defect in quantity the purchasers have a right to be relioved of their purchase; or rather their no purchase. Can the vendor by coming in now, at the twelfth hour, and offering a good title, destroy this right? The purchasers may have bought for a special purpose. Presumably they did so. Suppose they bought for immediate resale on a high but falling market, obviously they are not made whole by the tender of a good title now. Their opportunity of sale is gone, and their lost time and pains is their profit. An entire rescission of the contract should have been decreed, or at least compensation for the portion included in the ejectment suit.

Mr. J. O. Broadhead, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Kimball v. West


text: Talk:Kimball v. West

title: Talk:Kimball v. West


text:
Kimball v. West/Opinion of the Court

We are of opinion that the decree of the court below was clearly right. The plaintiffs had paid their money and accepted of the defendant his deed with a clause warranting the title. For any defect in that title the law gave them a remedy by an action on the covenant. But when, declining to pursue that remedy, they apply to a court of equity to rescind the whole contract, thereby compelling the defendant to repay the sum of $22,000, and receive back the title which he had conveyed to the plaintiffs, the necessity of such a decree to obtain the ends of justice must be very clear before it will be given. When, therefore, it appears that at the time of the hearing the defendant is able to remedy the supposed defect in his title, and in point of fact secures and makes good to the complainants, at his own cost, all that he conveyed to them originally, the complainants must show some loss, injury, or damage by the delay in perfecting the title before they can claim a rescission of the contract. And even if this could be shown, which is not attempted in this case, the court, as a general rule, would not be authorized to decree a rescission, if compensation could be made for the injury arising from the delay in making good the original defect in the title.

DECREE AFFIRMED.

title: Kimball v. West/Opinion of the Court


text: Talk:Kimball v. West/Opinion of the Court


text:
Pennywit v. Eaton on Motion

O motion to dismiss, for want of jurisdiction, a writ of error to the Supreme Court of Arkansas.

Eaton sued Pennywit in the Pulaski County Court of Arkansas upon the record of a judgment rendered by the Fourth District Court of New Orleans, that court, when the judgment was rendered, having been held by a judge appointedby a military governor of Louisiana. On the trial in the Pulaski County Court, the court was requested by the defendant to hold, that if it appeared from the evidence that the judge who presided in the court at New Orleans and rendered the judgment, held his office by appointment of a military governor of the State of Louisiana, and under no other authority, the judgment was void. But the Pulaski County Court did not so hold, but held to the contrary; and the Supreme Court of Arkansas affirmed its judgment. The case was now brought here under an assumption that it came within the third clause of the 25th section of the Judiciary Act (quoted supra, p. 3), which gives a right to bring here for review any suit "where is drawn in question the validity of any clause of the Constitution or commission held under the United States, and the decision is against the title, right, privilege, or exemption specially set up or claimed by either party under such clause." The title, right, privilege, or exemption here meant to be set up was one by [p381] the defendant, and was supposed to arise under two clauses of the Constitution, which ordain as follows:

""The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress shall from time to time ordain.

"The President of the United States shall nominate, and by and with the advice and consent of the Senate shall appoint judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, which shall be established by law.""

Mr. W. M. Rose, in support of the motion; Mr. A. H. Garland, contra.

title: Pennywit v. Eaton on Motion


text: Talk:Pennywit v. Eaton on Motion

title: Talk:Pennywit v. Eaton on Motion


text:
Pennywit v. Eaton on Motion/Opinion of the Court

The CHIEF JUSTICE:

The Pulaski County Court was requested to hold, that if it appeared from the evidence that the judge who presided in the court at New Orleans and rendered the judgment there, held his office by appointment from a military governor of the State of Louisiana, and under no other authority, the judgment was void. This raised, though somewhat obscurely, the question whether the court so held had any jurisdiction under the Constitution of the United States, and the question was decided against the privilege claimed under the Constitution by the defendants.

We cannot, therefore, dismiss the case for want of jurisdiction, although we may have a very clear conviction that the decision of the State court was correct.

M.


text: Talk:Pennywit v. Eaton on Motion/Opinion of the Court


text:
Weird Tales/1944

January
Volume 37, Issue 3

Cover art by Harold S. De Lay

 * Bon Voyage, Michele [*Carmichael] • Seabury Quinn • novelette
 * The Golden Goblins [*John Thunstone] • Manly Wade Wellman • short story
 * Dimensional Doors • Hannes Bok • novelette
 * House of Hate • Allison V. Harding • short story
 * He Came at Dusk • Frank Belknap Long • short story
 * The Master of Cotswold • Nelson S. Bond • novelette
 * The Hidden Player • Roger S. Vreeland • short story
 * The Sea Shell • Ray Bradbury • short story (© Copyright renewed: Ray Bradbury (A); 18Jan71; R499072.)

March
Volume 37, Issue 4

Cover art by John Giunta

 * The Trail of Cthulhu [*Laban Shrewsbury] • August Derleth • novelette (© Copyright renewed: August Derleth (A); 6Apr71; R504225.)
 * The Unbeliever • Seabury Quinn • short story
 * Hoofs [*John Thunstone] • Manly Wade Wellman • short story
 * The Shoes of Judge Nichols • Stanton A. Coblentz • short story
 * From the House of the Rat Catcher • H. Bedford-Jones • short story
 * The Peeper • Frank Belknap Long • short story
 * The Marmot • Allison V. Harding • short story
 * Reunion • Ray Bradbury • short story (© Copyright renewed: Ray Bradbury (A); 26Nov71; R517557.)
 * Tragic Magic • Hannes Bok • short story
 * Ghouls Feeding • Damon Knight • verse
 * Superstitions and Taboos • Irwin J. Weill • article

May
Volume 37, Issue 5

Cover art by Margaret Brundage

 * Iron Mask • Robert Bloch • novelette (© Copyright renewed: Robert Bloch (A); 9Dec71; R518430.)
 * The Letters of Cold Fire [*John Thunstone] • Manly Wade Wellman • short story
 * Man in a Hurry • Alan Nelson • short story
 * Unpublished Story • H. Bedford-Jones • short story
 * The Dear Departed • Alice-Mary Schnirring • short story (© Copyright renewed: Alice-Mary Schnirring (A); 29Nov71; R517574.)
 * The Day the World Stood Still • Allison V. Harding • novelette
 * The Lake • Ray Bradbury • short story (© Copyright renewed: Ray Bradbury (A); 3Jan72; R520803.)
 * The Gothic Window • Dorothy Quick • short story
 * Fungi from Yuggoth: Evening Star • H. P. Lovecraft • verse
 * Fungi from Yuggoth: Homecoming • H. P. Lovecraft • verse
 * Fungi from Yuggoth: St. Toad's • H. P. Lovecraft • verse
 * Fungi from Yuggoth: The Well • H. P. Lovecraft • verse
 * Fungi from Yuggoth: The Window • H. P. Lovecraft • verse

July
Volume 37, Issue 6

Cover art by A.R. Tilburne

 * Death's Bookkeeper [*Jules de Grandin] • Seabury Quinn • short story
 * John Thunstone's Inheritance [*John Thunstone] • Manly Wade Wellman • short story
 * Plane and Fancy • P. Schuyler Miller • short story
 * Stranger in the Mirror • George N. Lars • short story
 * The Beasts of Barsac • Robert Bloch • short story (© Copyright renewed: Robert Bloch (A); 9Dec71; R518431.)
 * Guard in the Dark • Allison V. Harding • short story
 * The Spare Room • Crawford Sullivan • short story
 * There Was an Old Woman • Ray Bradbury • short story (© Copyright renewed: Ray Bradbury (A); 4Apr72; R526396.)
 * The Man Who Wouldn't Hang • Stanton A. Coblentz • short story
 * Lady Macbeth of Pimley Square • August Derleth • short story (© Copyright renewed: August Derleth (A); 4May71; R505507.)
 * A Charm • Page Cooper • verse
 * Weirditties • Hannes Bok & Nichol • verse

September
Volume 38, Issue 1

Cover art by A.R. Tilburne

 * The Shadow Folk • Edmond Hamilton • short story
 * The Long Still Streets of Evening • Frank Owen • short story
 * The Seven Seas Are One • Allison V. Harding • short story
 * Bang! You're Dead! • Ray Bradbury • short story (© Copyright renewed: Ray Bradbury (A); 4Apr72; R526397.)
 * The Devil's Ticket • Robert Bloch • short story (© Copyright renewed: Robert Bloch (A); 19Jul71; R509607.)
 * Pacific 421 • August Derleth • short story (© Copyright renewed: April Derleth & Walden Derleth (C); 11Apr72; R526893.)
 * Sorcery from Thule [*John Thunstone] • Manly Wade Wellman • short story
 * The Wayward Skunk • Harold Lawlor • short story
 * The Weirds of the Woodcarver • Gardner F. Fox • short story
 * Monsieur Bluebeard • Emil Petaja • short story
 * The Path Through the Marsh • Leah Bodine Drake • verse
 * Rats • Glenn Ward Dresbach • verse
 * To the Moon • Stanton A. Coblentz • verse

November
Volume 38, Issue 2

Cover art by Matt Fox

 * The Dweller in Darkness • August Derleth • novelette (© Copyright renewed: April Derleth & Walden Derleth (C); 11Apr72; R526895.)
 * A Gentleman from Prague • August Derleth [as Stephen Grendon] • short story (© Copyright renewed: April Derleth & Walden Derleth (C); 11Apr72; R526894.)
 * Ride the El to Doom • Allison V. Harding • short story
 * The Jar • Ray Bradbury • short story (© Copyright renewed: Ray Bradbury (A); 29Oct71; R515620.)
 * The Bat Is My Brother • Robert Bloch • short story (© Copyright renewed: Robert Bloch (A); 9Dec71; R518434.)
 * Dark Mummery • Thorp McClusky • short story
 * The Dead Man's Hand [*John Thunstone] • Manly Wade Wellman • short story
 * The Ghost Punch • Hannes Bok • short story

title: Weird Tales/1944