text:
The Wanata/Opinion of the Court

Ship-owners are in no case liable for any loss, damage, or injury occasioned by collision beyond the amount of their interest in the colliding ship and her freight pending, except for costs and interest by the way of damages in case of dafault of payment and suit to recover the amount. 9 Stat. 635; The Propeller Niagara v. The Cordes, 21 How. 7. Nor are the stipulators, either for cost or value, ever liable for any default of their principal beyond the amount specified in the stipulation which they gave, except for costs and interest by the way of damages in case of their own default to make payment pursuant to the terms of the stipulation. The Ann Caroline, 2 Wall. 538; The Union, 4 Blatch. 90.

Whenever the obligation of the stipulator, as expressed in the stipulation, is for a definite sum, the surety stipulating to pay that sum cannot be compelled to to pay more than that amount for any default of his principal. The Steamer Webb, 14 Wall 406; Brown v. Burrows, 2 Blatch. 341.

Stipulators, like sureties, where the stipulation is for a definite sum, are bound to make good the liability or default of the principal to the amount of the stipulation; but they cannot be held to any greater sum, unless they themselves have been guilty of default, in which case they may be held liable for costs and interest, by the way of damages, to the extent that the same have arisen from the breach of their duty to comply with the terms of their stipulation. Where the stipulation or bond is given for the value of the ship, the obligation of the stipulator is that he pay into court the sum ascertained as the value. Benedict, Adm. (2d ed.) 294; Dunlap, Adm. 174; Lane v. Townsend, Ware, 289.

Sufficient appears to show that the collision occurred between the pilot-boat and the schooner at the time alleged, off the coast of New Jersey, north of Barnegat, and between that point and Long Branch, and that the collision resulted in the total loss of the pilot-boat belonging to the first-named libellant, and of certain clothing and other property belonging to the other libellants. Pending the suit, the owner of the pilot-boat deceased, and his executors were by consent substituted as libellants in his place.

Thirteen persons, including the boat's company and six Sandy Hook pilots, were on board the pilot-boat at the time of the collision; and it appears that the pilot-boat was at anchor at the time, about a half-mile from the shore, in four fathoms of water. During the afternoon of the day, in course of her cruise for employment, she had lost or burst her foresail, and came in to repair it, and anchored at six o'clock prior to the collision, which occurred about nine o'clock the same evening.

Eleven of the persons on board were examined as witnesses; and, from their testimony, it satisfactorily appears that the wind was north-west, blowing hard; that the sails of the pilot-boat were furled; that when she anchored she backed off to the south-east, heading north-west; that it was not a thick night, and that it was pretty clear at the time of the collision; that vessels anchored all along the coast; and that the place where the pilot-boat was lying is a well-known anchorage ground.

Service was made, and the claimants appeared and filed an answer. Before answering to the libel, however, the claimants filed a stipulation for costs in the sum of $250.

Three principal defences are set up in the answer, as follows: 1. That the pilot-boat was anchored in an unusual, unsafe, and improper place, which exposed her to the very disaster which happened. 2. That she did not display a proper light. 3. That she did not have a proper watch upon her deck to guard and provide against such accidents, especially in the night-time and in stormy weather.

Due attachment of the schooner was made by the marshal under the process of monition; and it appears that the ship was subsequently discharged from custody by consen, the claimants having executed a stipulation for value, in addition to the stipulation for costs, in the sum of $16,000, the parties agreeing that, in case of default or contumacy of the claimants or their sureties, execution for the amount may issue against their goods, chattels, and lands. Testimony was taken on both sides, which is fully reported in the transcript. Hearing was had; and the District Court entered a decretal order in favor of the libellants, and sent the cause to a commissioner to ascertain and compute the amount of the damages due to the owner of the pilot-boat, and to the other libellants respectively for the loss of clothing and other property on board the pilot-boat at the time when sunk and lost by the collision.

Pursuant to the decretal order, the commissioner heard the parties, and made a detailed report, in substance and effect as follows: 1. That the owner of the pilot-boat is entitled to recover the sum of $14,694.94. 2. That the other nine libellants are each entitled to recover the sum therein set forth, amounting in the aggregate to the sum of $1,305.06.

Remark should be made that the owners of the schooner, George Sparrow and David L. Turner, are the claimants of the colliding schooner, and that they excepted to the report of the commissioner. Both sums, when added together, make $16,000, which is the exact amount of the stipulation for value.

Amendment was made to the libel, which obviated all except one of the material exceptions of the claimants to the report of the commissioner. They excepted to the amount reported as the value of the pilot-boat, which exception was overruled by the District Court.

Matters of a preliminary character being disposed of, the District Court confirmed the report of the commissioner, and entered a final decree against the schooner and in favor of the libellants, ten in number, for the sum of $16,000 for the loss of the pilot-boat, clothing, and the other property lost, together with interest by way of damages, with costs taxed at $305.27.

Throughout it was the owners of the schooner as claimants who made defence to the libel, and they appealed to the Circuit Court. Both parties were heard in the Circuit Court upon the evidence introduced in the District Court, and the Circuit Court affirmed the decree of the District Court, and ordered and decreed that the libellants recover against the schooner the sum of $16,000 as damages sustained by the collision, and the costs taxed in the District Court, amounting with interest to the sum of $323.12, and also the costs taxed in the Circuit Court, which, including the interest on the damages from the date of the decree in the District Court to the date of the decree of the Circuit Court, taxed at the further sum of $1,085.35, amounting together to the sum of $17,407.47.

Stipulation for costs in the sum of $250 was given by the claimants in the District Court when they entered their appearance, and they subsequently gave a stipulation for value in the sum of $16,000. Apart from that, it should also be borne in mind that it was the claimants who appealed to the Circuit Court, and that they gave bond with sureties in the sum of $2,000 to prosecute their appeal with effect.

Two stipulations and an appeal-bond were given in the District Court, the sureties in each being the same persons; and the record shows that the Circuit Court, at the same time that the decree was entered against the schooner, entered a decree against the stipulators for value in the sum of $16,000, and against the stipulators in the other stipulation and the sureties in the appeal-bond in the sum of $1,407.47, the two sums being exactly equal to the amount of the decree entered against the schooner, which includes the $16,000 recovered as damages in the District Court, together with the costs taxed in the District Court, and interest on the sums recovered in that court to the date of the decree entered in the Circuit Court, and the costs taxed in the Circuit Court, amounting in all to the sum of $17,407.47.

Immediate appeal was taken to this court by the claimants of the schooner; but neither the stipulators for value nor for costs, nor the sureties in the bond given to prosecute the appeal from the District Court to the Circuit Court, have ever appealed from the decree entered against them in the Circuit Court.

Since the appeal was entered here, the appellants, who are the owners and claimants of the schooner, have assigned error as follows: 1. That the Circuit Court erred in holding that the place where the pilot-boat was lying was a proper anchorage. 2. That the court erred in holding that the pilot-boat showed a proper light. 3. That the court erred in holding that the pilot-boat was not bound to show the light required of such boats when under way. 4. That the court erred in holding that the want of a lookout on the pilot-boat did not contribute to the collision. 5. That the court erred in holding that the schooner had no proper lookout. 6. That the court erred in holding that the schooner was in fault and that the pilot-boat was without fault. 7. That the court erred in awarding costs taxed in the District Court in excess of the stipulation for costs.

Pilot-boats, when lying at anchor like other ships, are required to exhibit a white light in a globular lantern of eight inches in diameter, with all the other conditions specified in the article prescribed in the act of Congress concerning lights. 13 Stat. 59. Art. 8 applies to sailing pilot-vessels when under way, and it does not apply to pilot-boats when lying at anchor.

Enough appears to show that the pilot-boat was lying at anchor, and the uncontradicted testimony shows that she was anchored in a proper place. Other support to that proposition is unnecessary; nor is any other argument required to support the proposition that the light shown by the pilot-boat was the proper one, as regulated by the act of Congress, than that exhibited in the very able opinion of the district judge. Full proof was exhibited that the light was trimmed and replaced in the halyards sixteen feet above the deck at half-past seven o'clock in the evening, and the evidence clearly shows that it burned brightly from that time to the collision.

Even suppose that is so, still it is contended by the appellants that the pilot-boat had no lookout, and that the Circuit Court erred in holding that the want of a lookout on board the pilot-boat did not contribute to the collision.

Evidence to support the first branch of the proposition is entirely wanting, as appears from a careful examination of all the testimony in the case. Instead of that, it clearly appears that the anchor-watch came on deck as early as eight o'clock, and that he kept a constant lookout until just before the schooner struck the starboard side of the pilot-boat. Prior to that he was standing on the port side of the quarter-deck, and was in the act of getting his coat from the forecastle, having left the deck for that purpose when the collision occurred.

Viewed in the light of these circumstances, the court is of the opinion that the momentary absence of the lookout from the deck did not contribute to the collision, inasmuch as it clearly appears that the schooner did not show any signal-lights, and that she had no lookout forward, where a lookout should be stationed.

Lookouts should be stationed forward; and, if the anchorwatch had been on deck, it is exceedingly doubtful whether he would have seen the schooner in season to adopt any precautions, and, if he had, he could not have done any thing except to hail; and, inasmuch as there was no lookout on the forward part of the schooner to give heed to any such warning, it is scarcely possible that the watch, if he had remained on deck, could have rendered any useful service.

Vessels under way in the night-time are required by law to display proper signal-lights; and they should never be without a competent lookout properly stationed on the vessel. Delinquent as the schooner was in respect to both of those requirements, the suggestion that the lookout of the pilot-boat was absent from the deck at the moment of the collision is not entitled to much weight, as the circumstances afford a strong presumption that his absence did not contribute to the disaster.

Attempt is made by the appellants to ascribe the omission of the schooner to display signal-lights to inevitable accident, but the evidence introduced to support the theory is quite insufficient for the purpose. Proper signal-lights were shown by the pilot-boat; and the court is of the opinion that the schooner might have done so, if those who were responsible for her navigation had made proper exertions to comply with that requirement. Nothing is shown in the case to support that theory, or to furnish any proper excuse for omitting to adopt that highly useful precaution. Union Steamship Co. v. New York Steamer Co., 24 How. 307; The Morning Light, 2 Wall. 550.

Weighed in the light of these suggestions, it follows that the schooner was wholly in fault, and that all the assignments of error, except the last, must be overruled. Suppose that is so, still it is insisted that the District Court erred in awarding costs to the libellants in excess of the stipulation filed for that purpose, it appearing that the decree for damages was equal to the whole amount of the stipulation for value, and that the Circuit Court erred in affirming that decree and in allowing costs to the libellants beyond the amount of the stipulation for costs filed in the District Court. Superadded to that, they also contend that the Circuit Court erred in decreeing that interest should be taxed as costs in addition to the damages awarded by the decree of the District Court, inasmuch as the damages there awarded were equal to the full amount of the stipulation filed in the District Court.

Beyond all doubt, the decree for the damages awarded in the District Court is correct, as it is for the exact sum specified in the stipulation for value; but it is equally clear that the costs taxed against the schooner exceed the stipulation for costs filed by the claimants in the District Court in the sum of $55.27, as appears by the record.

Prompt appeal was taken by the owners of the schooner, as claimants, to the Circuit Court; and the principal owner of the schooner, George Sparrow, with James R. Sparrow and James R. Sparrow, Jr., as sureties, gave bond to the libellants in the sum of $2,000, the condition of the instrument being that if the appellants, George Sparrow and David L. Turner, shall prosecute their appeal with effect, and pay all damages and costs which shall be awarded against them, if they fail to make their appeal good, then the obligation to be void; otherwise, to remain in full force.

Admiralty courts proceed according to the principles, rules, and usages which belong to the admiralty, as contradistinguished from courts of common law. Manro v. Almeida, 10 Wheat. 473; 1 Stat. 276.

Whenever a stipulation is taken in the admiralty for the property subjected to legal process and condemnation, the stipulation is deemed a mere substitute for the thing itself, and the stipulators are held liable to the exercise of all those authorities on the part of the court which it could properly exercise if the thing itself were still in the custody of the court. The Palmyra, 12 Wheat. 1.

Such a stipulation is binding on the Appellate Court, unless it appears that the property was released by misrepresentation and fraud. Houseman v. The North Carolina, 15 Pet. 40.

Bail is taken for property attached for the value of the same when delivered to the claimant, and it will not be reduced if the property when sold brings less than the appraised value; and it is the settled rule, that, where the value of the property held in a cause of damage is insufficient to pay the loss, it is not competent for the court to award damages against the sureties in the stipulation beyond the proceeds or value. The Hope. 1 Rob. A. 155.

Nor can the sureties in a stipulation for costs be held for any greater sum on account of the default or contumacy of the principal than the sum specified in the stipulation; but it is well settled that costs may be awarded against the owner beyond the stipulation, if he appeared and made defence. The John Dunn, id. 160.

Sureties in admiralty, like sureties at law, are only bound to the extent of the obligation expressed in their stipulation, unless they are themselves guilty of default, or appear and make defence, in which case they become responsible for costs, and, in some cases, for interest by the way of damages for the delay of payment.

Costs, unquestionably, were taxed in the District Court beyond the sum expressed in the stipulation filed to secure their payment; but the decree in the District Court, both for costs and damages, was against the schooner. No decree was entered in that court either against the stipulators for costs or the stipulators for value; and the contention is, that the owners defending the suit are liable for costs even where the damages are equal to the stipulated value of the property, and the costs taxed exceed the amount of the stipulation for costs filed when the owners appeared in the District Court.

Doubtless the rule was so prior to the passage of the act of Congress limiting the liability of ship-owners. 9 Stat. 635. Since the passage of that act, the question arises whether costs can be allowed in such a case, where it appears that the decree for damages exhausts the whole amount of the stipulation for value.

Much aid is derived in the solution of that question from the decisions of the British courts in construing the act of Parliament passed for the same purpose. By that act the liability of ship-owners was limited, in the cases therein specified, to the value of the ship or freight. 53 Geo. III., c. 159. Cases have arisen under that act where the proceeds of the ship were insufficient to make good the loss, in which it is held that the court cannot decree against the owner for the excess of damage beyond the proceeds of the ship. The Volant, 1 Rob. A. 383. Other decided cases support the same rule; but it is settled law that the defending owners in such a case are liable for costs, even though the damages recovered exhaust the whole amount of the stipulation for value. The John Dunn, supra.

Costs were awarded against the owners in that case beyond the amount of the proceeds of the vessel, the owners having appeared and defended the suit. Pending the litigation, the owners applied to the Queen's Bench for a prohibition, and insisted that costs could not be allowed even against the owners where the damages were equal to the value of the ship, the words of the act of Parliament being that the liability of ship-owners shall be limited to the value of the ship or freight. Hearing was had, eminent counsel appearing on both sides, and the court, Lord Denman delivering the opinion, decided to the effect that the limitation did not discharge defending ship-owners from costs.

Interest in such a case is allowed as well as costs; and, in case of appeal, the interest is cast upon the whole amount of the decree in the court below, including the costs as well as the amount of the damages. The Dundee, 2 Hagg. 137.

Due objection to a decree settled in that form was made in that case; but Lord Stowell held that the allowances were correct, that the costs to which the party is put to recover his just damages is a part of his loss, and that the costs in such a case are properly added to the damages in the computation of interest. Objection was also made in that case to the allowance of interest, as the damages were equal to the value of the ship; but the same learned judge answered that the sufferer is entitled to such costs as he shall incur in recovering the value of the ship, and to interest if payment is delayed, meaning, of course, that the party causing the delay is liable in such a case: and he added, that the suffering party is entitled to remuneration or the costs to which he is driven for recovering his loss, as the costs constitute a part of the same; that the act of Parliament is not guilty of the injustice which would ensue if it excluded the costs, which are necessary for replacing the suffer in a just state of compensation. Such a party, if he is reinstated in the value of the property without litigation, is not entitled to costs; but if he cannot obtain the benefit of the regulation in respect to compensation without being driven to the necessity of a suit, the statute would be chargeable with great injustice if it did not allow him to recover costs; and these remarks apply with equal force to the charge of intervening interest arising from delay occasioned by such litigation.

Common-law authorities support the same construction of the act of Parliament referred to, and show to a demonstration that the rule is firmly established in all the courts of the parent country. Ex parte Rayne, 1 Gal. & Dav. 377; Gall v. Laurie, 5 B. & C. 163.

None of these authorities, however, conflict in the least degree with the proposition that the sureties in an admiralty stipulation can never be compelled to pay more than the specific sum expressed in the stipulation for any default or contumacy of the principal. Seasonable payment of the sum expressed in the instrument is all that can be required at their hands; but if they neglect to fulfil the terms of the instrument, and the suffering party is driven by their neglect to resort to legal measures to recover the amount to satisfy his loss, they are then, like the delinquent ship-owner, liable for costs and interest occasioned by their neglect and contumacy. Our act of Congress limiting the liability of ship-owners was passed subsequent to the British act referred to, and, in the respect involved in this case, is subject to the same construction.

Tested by these considerations, it follows that the decree of the District Court, which was a decree against the schooner, is correct.

Concede that, and still the appellants insist that the Circuit Court erred in awarding costs taxed in the District Court in excess of the stipulation filed there before or at the time the claimants entered their appearance.

Properly analyzed, the decree of the Circuit Court is as follows: 1. That the decree of the District Court is affirmed. 2. That the ten libellants recover as damages the sum of $16,000, which is the exact amount of the stipulation for value. 3. That they recover the costs taxed in the District Court, with interest to the date of the decree, amounting to the sum of $323.12. 4. That they recover the costs taxed in the Circuit Court, including the interest to date on the damages awarded in the District Court, amounting to the sum of $1,085.35, making in the aggregate the sum of $17,407.47.

Two technical errors occur in adjusting the terms of the decree of the Circuit Court; but, inasmuch as neither will injuriously affect the rights of the parties, the decree will not be disturbed. 1. Interest is not costs in any sense, and, when allowed, it should be decreed as damages, and be added to the damages awarded in the District Court. 2. Costs and interest should never be blended in such a case, as it would be difficult, if not impossible, to ascertain the amount to be paid by the stipulators for costs, if less than the full amount of the stipulation, or to separate the same from the amount to be paid by the sureties in the appeal-bond.

Cases often arise where such an adjustment is necessary; and it would arise here were it not that the sureties in the stipulation for costs in the District Court and the sureties in the appeal-bond are the same persons. Nor will the other error operate to the prejudice of any one of the parties, as it is clear that the allowance of interest is a proper charge in the decree against the schooner and the appellants, within the principle of the authorities to which reference has been made.

Nothing remains for re-examination except that portion of the decree which adjudges what portion of the aggregate sum awarded shall be paid by the sureties in the respective stipulations, and what portion shall be paid by the sureties in the appeal-bond.

Sixteen thousand dollars were awarded to the ten libellants as damages; and the decree is, that the stipulators for value shall pay that amount, which is obviously correct. They stipulated for that amount; and, inasmuch as they did not make defence, and have not been guilty of default or contumacy, they cannot be compelled to pay interest or costs to the libellants beyond their stipulation. The Palmyra, 12 Wheat. 10. Nor can the stipulators for costs be compelled to pay more than the sum of $250 for the same reasons, as they stipulated for a definite sum, and have not made defence, nor been guilty of any default. Clerk's Praxis, tit. 63, p. 141; The Ann Caroline, 2 Wall. 538; The Steamer Webb, 14 id. 406.

Accrued interest was allowed in the Circuit Court in addition to the damages awarded in the District Court, which, if added to the sum there awarded, would exceed the stipulation for value; and the costs taxed in the Circuit Court, if added to the costs taxed in the District Court, would much exceed the stipulation for costs, which was only for the sum of $250.

Allowances of the kind, if the case stopped there, would clearly be error; but the case does not stop there, as will presently fully and satisfactorily appear. Mention has already been made that the claimants, who were the owners of the schooner, appealed to the Circuit Court, and that they gave an appeal-bond in the sum of $2,000, with the same persons as sureties as those who became sureties in the stipulation for costs and value.

Nothing can be better settled, said Judge Story, than that the admiralty may take a fidejussory caution or stipulation in cases in rem, and may in a summary manner award judgment and execution there thereon. Jurisdiction to that effect is possessed by the District Court; and, being fully authorized to adopt the process and modes of proceeding of the admiralty, they have an undoubted right to deliver the property on bail and to enforce conformity to the terms of the bailment. Authority to take such security is undoubted, and, whether it be by a sealed instrument or by a stipulation in the nature of a recognizance, cannot affect the jurisdiction of the court. Having jurisdiction of the principal cause, the court must possess jurisdiction over all the incidents, and may, by motion, attachment, or execution, enforce its decrees against all who become parties to the proceedings. The Alligator, 1 Gall. 145; Nelson v. United States, Pet. C. C. 235. Bonds, says Dunlap, are, to all intents and purposes, stipulations in the admiralty. Dunlap, Prac. 164.

Where the claimant appeals from the decree of the District Court, the bond and other stipulations follow the cause into the Circuit Court; and, upon the affirmation of the decree, the fruits of the appeal-bond and other stipulations may be obtained in the same manner as in the court below, they being in fact nothing more than a security taken to enforce the original decree, and are in the nature of a stipulation in the admiralty. McLellan v. United States, 1 Gall. 227.

It matters not, says that learned magistrate, whether security in an admiralty and maritime cause be by bond, recognizance, or stipulation, as the court has an inherent authority to take it, and to proceed to award judgment or decree thereon according to the course of the admiralty, unless where some statute has prescribed a different course. The Octavia, 1 Mason, 150; 2 Conkl. Adm. (2d ed.) 105; Holmes v. Dodge, Abbott, Adm. 60; Gaines v. Travis, id. 422; Benedict, Adm. (2d ed.) 290.

Everywhere it is admitted that an appeal in admiralty carries up the whole fund, and that is the duty of the Circuit Court to execute its own decree; and it is equally clear that the fund in this case consists of the stipulation given in the District Court for costs, the stipulation given there for value, and the bond or stipulation in the sum of $2,000 to prosecute the appeal with effect and pay all damages and costs awarded against them, if the appellants shall fail to make their appeal good. Montgomery v. Anderson, 21 How. 386.

Two points were ruled in that case applicable to this: 1. That the appeal in admiralty carries up the res. 2. That the Circuit Court must carry into execution its own decree. The Collector, 6 Wheat. 194; 2 Pars. Ship. 493.

Sureties in such an appeal-bond or stipulation may become liable for the whole amount specified, as the condition of the instrument is that the principal shall prosecute his appeal with effect, and pay all damages awarded against the appellant, if he fail to make good his appeal. Hence it was decided by this court that the surety in such a bond is liable for the entire amount of damages and costs, to the extent of the penalty, and interest thereon from the date of the institution of the suit, when the property attached produces less than the judgment or decree. Ives v. Merchants' Bank, 12 How. 159.

Examined in the light of these suggestions, as the decree should be, it is manifest that it contains no error, as the amount of the stipulation for value is decreed to be paid to the libellants for the losses sustained by the collision, and the stipulation for costs is decreed to be paid to the libellants in part discharge of the taxed costs, leaving the balance of the taxed costs and the accrued interest from the date of the decree in the District Court to the date of the decree in the Circuit Court to be paid by the sureties in the appeal-bond, which may, by the rules and usages which belong to courts of admiralty, be treated as an admiralty stipulation. 1 Stat. 276; Admiralty Rules 5 and 21.

Admiralty bonds and stipulations taken in the District Court, inasmuch as they constitute the fund out of which compensation is to be decreed to the libellants, follow the appeal into the Circuit Court.

Authorities of highest character show that sureties for a definite sum in an admiralty stipulation can never be compelled to pay more than the sum stipulated, unless they are guilty of default or contumacy, in which event they may become liable for interest and the taxable costs incurred by the delay; but the respondent, where there is no statutory prohibition, may become liable for costs beyond the security given for the same, and for additional damages in the nature of interest, in case of appeal. Were it not so, the injured party, in case of delay, would never be made whole; but such a recovery against the respondent will not enlarge the liability of the sureties in the stipulation for cost or value, as the remedy of the libellants in that event is found in the appeal-bond or stipulating given to make the appeal good. Costs and interest are given in such a case, not as indemnity for the loss set forth in the libel, but for the reason that the loss ascertained in the decree of the District Court was not paid at the proper time. The Northumberland, Law Rep. 3 Adm. & Ecc. 33, 35; Ives v. Merchants' Bank, supra; The Diana, 3 Wheat. 58; Sneed v. Wister, 8 id. 690; 5 Stat. 518.

Suffice it to say, there is no error in the record.

Decree affirmed.

title: The Wanata/Opinion of the Court


text: Talk:The Wanata/Opinion of the Court

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title: Talk:The Wanata/Opinion of the Court


text:
County of Henry v. Nicolay

ERROR to the Circuit Court of the United States for the Western District of Missouri.

This is an action for the recovery of the amount due upon certain coupons annexed to bonds issued by the county of Henry, Missouri. The following is a copy of one of the bonds:-- 'HENRY COUNTY BOND.-STATE OF MISSOURI.

'$1,000.

'Interest ten per cent per annum, payable semiannually on the first days of January and July.

'Know all men by these presents, that the county of Henry, in the State of Missouri, acknowledges itself indebted and firmly bound to the Tebo and Neosho Railroad Company, to the use and in the name of the Clin on and Memphis Branch of the Tebo and Neosho Railroad, in the sum of $1,000, which sum the said county hereby promises to pay to the Tebo and Neosho Railroad Company, or bearer, to aid in building said branch railroad, at the National Park Bank, in the city of New York, on the first day of January, 1881, together with interest thereon at the rate of ten per cent per annum, which interest shall be paid semiannually on the first days of July and January of each year, on the presentation and delivery at said bank of the coupons hereto severally subjoined.

'This bond is issued under and in pursuance of an order of the county court of Henry County in the State of Missouri, and in pursuance of and by authority of an act of the General Assembly of the State of Missouri, entitled 'An Act to incorporate the Tebo and Neosho Railroad Company,' approved Jan. 16, 1860, and of an act of the General Assembly of the State of Missouri, entitled 'An Act to aid in the building of branch railroads in the State of Missouri,' approved March 21, A.D. 1868.'

The bond is duly signed, sealed, and attested, and the coupons attached are in the usual form.

The act of incorporation thus mentioned authorizes the company thereby created to 'survey, mark, locate, construct, maintain, and operate a railroad, commencing at a point on the Pacific Railroad, between the west bank of the Lamine River, and Muddy Creek, in Pettis County, by the most direct and practical route, in a southerly or south-westerly direction, through Henry County; thence to some point on the State line, between the north-west corner of Jasper County and the south-east corner of McDonald County,. . . and to extend branch railroads into and through any counties that the directors may deem advisable.'

It declares as applicable to the company certain sections of the act incorporating the Osage Valley and Southern Kansas Railroad Company, approved Nov. 21, 1857, among which is the fourteenth, providing that 'It shall be lawful for the county court of any county in which any part of the route of said railroad or branch may be, or any county adjacent thereto, to subscribe to the stock of the company; and, for the stock subscribed in behalf of the county, may issue bonds of the county to raise the funds to pay the same, and to take proper steps to protect the interest and credit of the county court.'The following is an act of the General Assembly of Missouri, approved March 21, 1868:--

'SECTION 1. Any railroad company in this State, authorized by law to build branches, and wishing to avail themselves of the provisions of this act, shall, by its board of directors, pass, and cause to be entered upon its records, a resolution setting forth such desire, and designating the name under which such branch shall be built, its point of intersection with its main line, and general course, a certified copy of which resolution shall be filed with the secretary of state, after which they shall be governed by the provisions of this act.

'SECT. 2. Whenever any such railroad company shall undertake the construction of a branch designated, as provided in the first section of this act, they shall receive donations or subscriptions to stock to aid in its construction in the name of such branch, which shall be expressed in the certificate of stock issued; the cost and expenses of constructing and operating such branch shall be kept separate and distinct from expenses on the main line. They may borrow money and issue bonds secured by mortgage on such branch road to aid in its construction, and, in general, may operate, lease, sell, or consolidate with any connecting road, distinct and separate from their main line, and in any other way may manage or dispose of such branch as by law they may be authorized, with reference to their main line, and separate therefrom.

'SECT. 3. Any branch road so constructed shall not be holden for any debt, lien, or liability of the main line, nor shall the main line be holden for any debt, lien, or liability of such branch. ny dividends of profits arising out of the business of such branch road shall be divided among the stockholders in said branch, and in all respects the interest of the stockholders in the branch shall be kept separate and distinct from the interests of the stockholders in the main line.

'SECT. 4. The holders of stock in any railroad company which was subscribed in aid of the construction of a branch road, according to the provisions of this act, shall have the same rights as other stockholders in the company in the choice of officers; but in all matters directly and specially affecting the interests of such branch road the stockholders in such branch shall control, and for such purposes the directors, under their by-laws, may, or on the petition of parties representing one-tenth of such stock shall, call a meeting of the stockholders in such branch, setting forth the object of such meeting; and at any such meeting such stockholders may instruct the board of directors in all matters relating especially to their interests, and they shall be governed by such instructions, if not inconsistent with the laws of the State and the powers of such company.

'SECT. 5. This act shall be in force and take effect from and after its passage.'

The 'Clinton and Memphis Branch of the Tebo and Neosho Railroad' was organized and undertaken with the consent of the directors of the Tebo and Neosho Railroad Company.

On the 4th of August, 1870, the county court of the county of Henry, on 'the application of the Clinton and Memphis Branch of the Tebo and Neosho Railroad for a subscription to the capital stock of said branch road from the county of Henry, to aid in the construction of said branch road,' ordered and adjudged that the said county 'do subscribe for and agree to take one thousand five hundred shares of the capital stock of the Clinton and Memphis Branch of the Tebo and Neosho Railroad, each share being of the denomination of $100, and amounting, in the aggregate, to the sum of $150,000, under and by virtue of the authority in the charter of the Tebo and Neosho Railroad Company contained, and under the act of the General Assembly of the State of Missouri, entitled 'An Act to aid the building of branch railroads in the State of Missouri,' approved March 21, 1868, and in accordance with the resolution and orders of the board of directors of said Tebo and Neosho Railroad Company, establishing said branch railroad company and authorizing subscriptions to the capital stock thereof, adopted on the sixth day of June, 1870, the said capital stock to be paid for by the issue and delivery to the committee appointed to construct said branch road of the coupon bonds of the county,' of the foregoing tenor. The subscription was made on certain conditions as to the location of the branch railroad, and none of the bonds were to be delivered until the grading and masonry of the road within the limits of the county were let by contract to persons of whose responsibility the court should be satisfied. One Hillegas was appointed the agent of the county to subscribe the stock in accordance with the terms of the order, and to cause the bonds to be issued and delivered.

Oct. 11, 1870, the Tebo and Neosho Railroad Company executed a deed, whereby it, with the consent of a majority of its stockholders, sold, conveyed, and transferred to the Missouri, Kansas, and Texas Railway Company 'all its privileges, rights, powers, franchises, real estate, and other property, the whole or a part of which is in this State, excepting only such as belong to the extension of the Tebo and Neosho line north from Sedalia, via Boonville, Fayette, and Moberly, to the railroad bridge at West Quincy, declared July 2, 1869, certificate of which, dated July 3, 1869, was filed in the office of secretary of state, and doth consent to a merger of the same with the franchises, property, and rights of said party of the second part; and the said Missouri, Kansas, and Texas Railway Company, party of the second part, shall have, exercise, and enjoy all the rights, powers, privileges, and immunities of the original charter of the Tebo and Neosho Railroad Company, and of the several amendments thereto, in the same manner and to the same extent as has been heretofore exercised and enjoyed by the said Tebo and Neosho Railroad Company, party of the first part, or by the several shareholders in said company, whose stock shall be exchanged as herein provided, either or both; and the said party of the second part does hereby accept the terms and conditions of the within instrument.'

On the 7th of November following, the county court made an order, which, after reciting that of Aug. 4, the subscription made by Hillegas, and the fact of the compliance by said branch road, with all the conditions precedent to the delivery of said bonds, concluded as follows:--

'Now, therefore, it is considered by the court that said bonds be signed by the presiding justice of this court, and attested by the clerk of this court, under the seal thereof, and the coupons signed by said clerk as directed in said order; and that said bonds, numbered from No. 1 to No. 150, inclusive, of the denomination of $1,000 each, and amounting in the aggregate to $150,000, signed and sealed as aforesaid, be delivered to the chairman of the committee of construction of said branch railroad, and that the clerk of this court take his receipt therefor.'The petition of the plaintiff is in the usual form.

The answer of the county alleges that the bonds were issued without authority of law; that they were not ordered to be issued, nor were they in fact issued, to the Tebo and Neosho Railroad Company, to the use and in the name of the Clinton and Memphis branch; that said branch never had any legal existence; that, if it did have such existence, it was under the act of March 21, 1868, and therefore the issue of the bonds was illegal, as the consent thereto of two-thirds of the qualified voters of the county was not first obtained; that prior to the issue of the bonds the Tebo and Neosho Company sold all its rights and franchises to the Missouri, Kansas, and Texas Railroad Company, which sale revoked the authority, if any existed, to issue said bonds; that after their issue and sale proceedings were instituted in the State court to enjoin the collection of the tax for the payment of either their principal or interest, and that all of these matters were known to the plaintiff when he brought his action.

The plaintiff demurred to the evidence offered by the county. There was nothing to show that, when he purchased the bonds, he had notice of the facts relied on in support of the answer. The court sustained the demurrer, and instructed the jury to find a verdict for him; which was done, and judgment rendered accordingly.

The county then sued out this writ of error.

Mr. John F. Philips and Mr. James O. Broadhead for the plaintiff in error.

Mr. James Grant, contra.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: County of Henry v. Nicolay


text: Talk:County of Henry v. Nicolay

title: Talk:County of Henry v. Nicolay


text:
County of Henry v. Nicolay/Opinion of the Court

Since the decision of this court in County of Scotland v. Thomas, 94 U.S. 682, little remains to be considered in this case. It is conceded that the charter of the Tebo and Neosho Railroad Company, passed Jan. 16, 1860, gave the power to establish a railroad through Henry County, and to extend branch railroads into and through any counties that the directors might deem advisable; and it was made lawful for the county court of any county in which any part of the route of said railroad or branches might be, or any county adjacent thereto, to subscribe to the stock of the company, and for such stock to issue bonds of the county to raise funds to pay for the same. This charter being granted prior to the Constitution of Missouri, adopted in 1865, according to the settled law of the State did not become subject to the provision in that Constitution, which requires the assent of two-thirds of the lawful voters of a county to a subscription of stock in aid of the railroad.

But it is objected that the pr ject of the branch road, in aid of which the stock was subscribed in this case, was undertaken as an independent enterprise under the act of March 21, 1868, and, consequently, that the constitutional provision applies to it. It is true that the branch in question was projected, and the organization for its construction was made, under the provisions of that act. It is necessary, therefore, to inquire whether branches of railroads thus projected are thereby made subject to the constitutional provision relied on; for the bonds sued on in this case show on their face that they were issued in pursuance of that act as well as under the authority of the original charter, and being made 'to the use and in the name of the Clinton and Memphis Branch of the Tebo and Neosho Railroad,. . . to aid in building said branch railroad.' The Supreme Court of Missouri has decided this question, holding that the constitutional provision does not apply to branch roads built under the act of 1868. ''The State ex rel. the Attorney-General v. Green County'', 54 Mo. 540, is precisely in point. That was the case of a branch road authorized by the original charter of the Kansas City, &c. Railroad Company, but constructed as an independent interest under the act of 1868; and in that case, also, the original company had consolidated with the Hannibal and St. Joseph Railroad Company, before the subscription to the stock for the branch was made. The court said: 'This branch road commences and ends in the same places designated for the branch road in the original charter. It proposes nothing but what was intended to be accomplished by the act creating it, and its union with another company is in name only; no new powers are granted to either the branch or the company with which it is consolidated, and no original powers are taken away. I see nothing that alters, affects, or changes the power of the county court to subscribe the stock. I think the power existed when the subscription was made, the same as it did when the act of incorporation of 1857 was passed.'

It is true, in that case, that the board of directors of the parent company, before it consolidated with the Hannibal and St. Joseph Railroad Company, and the latter company afterwards, passed resolutions authorizing the construction of the branch, and that this was not done in the present case; the branch in the present case being organized and undertaken only with the consent of the directors of the parent company. But, under the decisions of this court, the purchasers of the bonds were not bound to know whether or not the proceedings of the company were regular. The charter of the Tebo and Neosho company contained the power to construct the branch, and gave the county court power to subscribe stock for it; and the act of 1868 authorized such branch and stock to be an independent interest; and the bonds on their face simply showed that they were made to the parent company, 'to the use and in the name of the Clinton and Memphis branch,' 'to aid in building said branch.' The purchaser, therefore, was apprised by the law that power existed in the county court to issue such bonds, without any election of the people; and there was nothing on their face to show that they were not regularly issued. It was not incumbent on him to inquire whether the railroad company had pursued all the regular steps necessary to entitle it to receive the bonds. Its agents, that is, the agents of the branch road, had them for sale, and he had a right to presume that they were lawfully entitled to them.

The fact that before bonds were issued, but not before the subscription was made, the parent company sold and assigned a portion of its route, and all franchises connected therewith, to the Missouri, Kansas, and Texas Railroad Company, does not alter the case. So far as appears, the Tebo and Neosho company did not cease to exist. In the deed of sale it expressly reserves a very material portion of its franchises; namely, all those belonging to 'the extension of the Tebo and Neosho line north fro Sedalia, via Booneville, Fayette, and Moberly, to the railroad bridge at West Quincy, declared July 2, 1869, certificate of which, dated July 3, 1869, was filed in the office of the secretary of state.' But had the company ceased to exist, it would make no difference. Its franchises were not extinguished, but only transferred, and the subscription had been ordered before the sale took place. It is unnecessary to discuss this point further, as the grounds on which it rests were sufficiently considered in the case of Scotland County, already referred to.

In our judgment, the defence set up by the county was properly overruled, it not being shown that the plaintiff, when he purchased the bonds, had any knowledge or notice of the facts relied on.

Judgment affirmed.


text: Talk:County of Henry v. Nicolay/Opinion of the Court


text:
Terry v. Anderson

APPEAL from the Circuit Court of the United States for the Southern District of Georgia.

The Planters' Bank of the State of Georgia was incorporated by the legislature of that State, with a charter, providing that the stockholders, for the time being, shall 'be pledged and bound, in proportion to the amount of the shares that each individual or company may hold in said bank, for the ultimate redemption of the bills or notes issued by or from said bank, during the time he, she, or they may hold such stock, in the same manner as in ordinary commercial cases, or in simple cases of debt.'

The bank issued notes, some of which, in due course of trade, came into the possession of the complainants.

The bank failed to pay its notes in lawful money on the twentieth day of February, 1865, and nothing has been paid thereon, except as hereinafter stated.

On the 24th of May, 1866, the stockholders, being of opinion that the corporation was insolvent and unable to pay its debts, ordered the board of directors to execute an assignment to Anderson and Mercer of the assets of the bank, for the purpose of equally distributing them among the creditors and bill-holders, and to surrender its charter to the governor of the State at such time as they might deem expedient.

On the 9th of July, 1866, the directors, in the name of the bank, assigned to Anderson and Mercer its property, both real and personal, and made said assignees their attorneys, in the name of the bank or otherwise, and, for the trusts created by the assignment, to ask, demand, recover, and receive of and from all and every person and persons all and singular the property and estate, goods, chattels, wares, merchandise, debts, choses in action, sum and sums of money and demands due and owing or belonging to said bank;. . . and, in default of delivery or payment in the premises, to sue, prosecute, and implead for the same, as they might see fit, &c.

The assignees accepted their trust on the same day, and soon after published a notice to all bill-holders and other persons having claims against the bank, to present them for liquidation.

On the 24th of December, 1869, Harvey Terry presented to the assignees for liquidation bills of the said bank, to the amount of $5,605.

Joshua and Thomas Green, in December of that year, presented to the assignees for liquidation bills to the amount of $5,791. Upon the bills so presented a dividend of twenty per cent was paid before Jan. 1, 1870.

Subsequently to the payment of this dividend, the assignees filed a bill in equity in the Superior Court of Chatham County, Georgia. McNish and other creditors of the bank, including the present complainants, were made defendants.

Their object was to obtain direction as to the mode of paying out the assets in their hands; and the court, July 14, 1871, adjudged, among other things, that there was due to Terry the sum of $5,605, less the dividend of twenty per cent received by him, and also the sum of $1,117, on bills on which he had received no dividend; that there was due to Joshua and to Thomas Green $5,791 on bills of the bank, less the dividend of twenty per cent previously paid thereon; and that the assignees should pay the balance of the assets to all creditors named in the decree, in proportion to their respective dues.

In obedience to the decree, the assignees paid further dividends, making the whole amount so paid thirty and one-eighth per cent of the face value of the bills; and they were finally discharged June 30, 1873.

On the eighteenth day of March, 1869, the General Assembly of Georgia passed an act accepting the surrender of the charter of the bank.

The amount of bills outstanding at the time of the failure of the bank was $1,460,112. Of this amount, $207,448 were redeemed before the bank executed its deed of assignment.

Besides the bills so presented by said Terry, he is now the owner and holder of bills to the amount of $1,464, upon which no dividend has been paid.

The present bill of complaint was filed April 6, 1874, by him, Joshua Green, and Thomas Green, on behalf of themselves and others, against said Anderson and Mercer, the assignees and the other defendants who are stockholders of the bank. It sets forth the preceding facts, and alleges that at the time the bank failed its capital stock was not paid in in full, and that many of the stockholders had paid in only about eighty per cent of their subscription; that the right to sue for and recover the several balances due by them on their shares passed by the assignment of July 9, 1866, to the assignees, who had never collected them.

It prays that the stockholders be decreed to pay such sum upon each share of stock owned and held by them respectively as shall make up the full sum of $100,-its par value,-and such further sums respectively as may be found due, in order to pay the complainants' demands.

The defendant Anderson demurred generally.

The others demurred specially, upon the ground, 1, that the suit was barred by the Statute of Limitations; 2, that complainants, although defendants in the case of Anderson and Mercer against McNish and others, in the Superior Court for Chatham County, allege no reason or excuse for not seeking the aid of that court to require the assignees to collect the unpaid subscriptions due from the several stockholders, or why the decree rendered in that cause should not be conclusive and binding upon them; 3, that the complainants do not allege that the defendants held any stock of the bank when the bills were issued; and, 4, that as to the bills amounting to $1,464, as to which Terry seeks judgment, the complaint does not set forth whether he became the holder of them before or after the final decree in that case, or why they were not presented for participation in the distribution of assets of the bank.

The demurrers were sustained and the bill was dismissed. The complainants thereupon brought the case here.

The Statute of Limitations of Georgia approved March 16, 1869, so far as it bears upon this case, is as follows:--

'SECTION 3. And be it further enacted, that all actions on bonds or other instruments under seal, and all suits for the enforcement of rights accruing to individuals or corporations, under the statute or acts of incorporation, or in any way by the operation of law which accrued prior to the 1st of June, 1865, not now barred, shall be brought by the 1st of January, 1870, or the right of the party, plaintiff or claimant, and all right of action for its enforcement, shall be for ever barred.

'SECT. 4. And be it further enacted, that all actions on promissory notes, bills of exchange, or other simple contracts in writing, and all actions on open accounts, or for the breach of any contract not under the hand of the party sought to be charged, or upon any implied assumpsit or undertaking, which accrued on a contract which was made prior to June 1, 1865, not now barred, shall be brought by the 1st of January next, after the passage of this act, or the right of the party, plaintiff or claimant, and all right of action for its enforcement shall be for ever barred.'

'SECT. 6. And be it further enacted, that all other actions upon contracts, expressed or implied, or upon any debt or liability whatsoever, due the public, or a corporation, or a private individual or individuals, which accrued prior to the 1st of June, 1865, and are not now barred, shall be brought by the 1st of January, 1870, or both the right and the right of action to enforce it shall be for ever barred. All limitations hereinbefore expressed shall apply as well to courts of equity as courts of law, and the limitation shall take effect in all cases mentioned in this act, whether the right of action had actually accrued prior to the 1st of June, 1865, or was then only inchoate and imperfect, if the contract or liability was then in existence.'Mr. Harvey Terry and Mr. William Stone for the appellants. Mr. Henry R. Jackson, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Terry v. Anderson


text: Talk:Terry v. Anderson

title: Talk:Terry v. Anderson


text:
Terry v. Anderson/Opinion of the Court

In Terry v. Tubman, 92 U.S. 156, we decided that where the charter of a bank contained a provision binding the individual property of its stockholders for the ultimate redemption of its bills in proportion to the number of shares held by them respectively, the liability of the stockholder arose when the bank refused or ceased to redeem, and was notoriously insolvent; and that when such insolvency occurred prior to June 1, 1865, an action against a stockholder not commenced by Jan. 1, 1870, was barred by the Statute of Limitations of Georgia of March 16, 1869. That act, as recited in its preamble, was passed on account of the confusion that had 'grown out of the distracted condition of affairs during the late war,' and substantially barred suits upon all actions which accrued before the close of the war, if not commenced by the first day of January, 1870.

This is a suit to enforce the liability of the stockholders of a bank, under a provision of the charter similar to that considered in Terry v. Tubman; and it is expressly averred in the bill that the bank stopped payment on the 20th of February, 1865, and never resumed. The affairs of the bank were closed up under an assignment made July 9, 1866, the proceeds of which paid only a small percentage upon its liabilities. The case is thus brought directly within our former ruling; but it is insisted that the act of 1869 is unconstitutional, because it impairs the obligation under which the complainants claim, and, as that question was not directly passed upon in the other case, we are asked to consider it now. The argument is, that as the statute of limitations in force when the liability of the defendants was incurred did not bar an action until the expiration of twenty years from the time the action accrued, a statute passed subsequently reducing the limitation impaired the contract, and was consequently void.

This court has often decided that statutes of limitation affecting existing rights are not unconstitutional, if a reasonable time is given for the commencement of an action before the bar takes effect. Hawkins v. Barney, 5 Pet. 451; Jackson v. Lamphire, 3 id. 280; Sohn v. Waterson, 17 Wall. 596; Christmas v. Russell, 5 id. 290; Sturges v. Crowninshield, 4 Wheat. 122. It is difficult to see why, if the legislature may prescribe a limitation where none existed before, it may not change one which has already been established. The parties to a contract have no more a vested interest in a particular limitation which has been fixed, than they have in an unrestricted right to sue. They have no more a vested interest in the time for the commencement of an action than they have in the form of the action to be commenced; and as to the forms of action or modes of remedy, it is well settled that the legislature may change them at its discretion, provided adequate means of enforcing the right remain.

In all such cases, the question is one of reasonableness, and we have, therefore, only to consider whether the time allowed in this statute is, under all the circumstances, reasonable. Of that the legislature is primaril the judge; and we cannot overrule the decision of that department of the government, unless a palpable error has been committed. In judging of that, we must place ourselves in the position of the legislators, and must measure the time of limitation in the midst of the circumstances which surrounded them, as nearly as possible; for what is reasonable in a particular case depends upon its particular facts.

Here, nine months and seventeen days were given to sue upon a cause of action which had already been running nearly four years or more. The third section of the statute is as follows:--

'That all actions on bonds or other instruments under seal, and all suits for the enforcement of rights accruing to individuals or corporations under the statute or acts of incorporation, or in any way by operation of law which accrued prior to the 1st of June, 1865, not now barred, shall be brought by the 1st of January, 1870, or the right of the party, plaintiff or claimant, and all right of action for its enforcement, shall be for ever barred.'

The liability to be enforced in this case is that of a stockholder, under an act of incorporation, for the ultimate redemption of the bills of a bank swept away by the disasters of a civil war which had involved nearly all of the people of the State in heavy pecuniary misfortunes. Already the holders of such bills had had nearly four years within which to enforce their rights. Ever since the close of the war the bills had ceased to pass from hand to hand as money, and had become subjects of bargain and sale as merchandise. Both the original billholders and the stockholders had suffered from the same cause. The business interests of the entire people of the State had been overwhelmed by a calamity common to all. Society demanded that extraordinary efforts be made to get rid of old embarrassments, and permit a reorganization upon the basis of the new order of things. This clearly presented a case for legislative interference within the just influence of constitutional limitations. For this purpose the obligations of old contracts could not be impaired, but their prompt enforcement could be insisted upon or an abandonment claimed. That, as we think, has been done here, and no more. At any rate, there has not been such an abuse of legislative power as to justify judicial interference. As was said in Jackson v. Lamphire, supra: 'The time and manner of their operation [statutes of limitation], the exceptions to them, and the acts from which the time limited shall begin to run, will generally depend upon the sound discretion of the legislature, according to the nature of the titles, the situation of the country, and the emergency which leads to their enactment.'

The Supreme Court of Georgia, in George v. Gardner, 49 Ga. 441, held that the time prescribed in this act was not so short or unreasonable under the circumstances as to make it unconstitutional; and the Circuit Court of the United States for the Southern District of Georgia held to the same effect in Samples v. The Bank, 1 Woods, 523. We are satisfied with these conclusions. The circumstances under which the statute was passed seem to justify the action of the legislature. The time, though short, was sufficient to enable creditors to elect whether to enforce their claims or abandon them.

This disposes of the questions arising upon the individual liability of the stockholders under the charter. It still remains to consider the cases of the stockholders whose subscriptions were not paid in full at the time of the failure of the bank. For this purpose, it is not necessary to decide whether this liability passed to the assignees under the assignment. If it did not, and the present complainants have the right to sue for it, their action is barred by the statute of 1869. It was a debt due the corporation June 1, 1865; and, by sect. 6 of that statute, all actions upon any debt or liability due a corporation, which accrued prior to that date and was not barred when the act was pass d, must be brought by Jan. 1, 1870. The case of Cherry v. Lamar, decided by the Supreme Court of Georgia in January, 1877, is not, as we understand it, at all in conflict with this. There the charter of the bank made a call by the directors, and sixty days' notice of it to the stockholders, conditions precedent to the collection of unpaid stock subscriptions; and it was consequently held that the statute did not commence to run against such a liability until the requisite call had been made and notice given. Neither in this case nor in Terry v. Tubman does any such provision of the charter appear. For all that is shown in the record, the stockholders were liable to suit at any time for the recovery of the balance due from them.

These complainants are neither of them judgment creditors of the bank. In a suit instituted by the assignees to close up the assignment, they proved their claims, and the amount due them was found for the purposes of a dividend. The finding was sufficient for the purposes of distribution; but it has none of the characteristics of a judgment or decree, to be enforced as against any thing but the fund which the court was then administering.

We see nothing to take this case out of the operation of the decision in Terry v. Tubman, and the decree of the Circuit Court is therefore

Affirmed.

At a subsequent day of the term, a petition for rehearing was filed.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

In this petition it is suggested that the provision of the charter of the Planters' Bank, in respect to the liability of subscribers to the capital stock for the payment of the balances due upon their subscriptions, is substantially the same as that passed upon in Cherry v. Lamar, and that consequently, under the ruling in that case, the Statute of Limitations is no bar to this action for the recovery of balances due. This does not appear either in the record or in the voluminous printed arguments filed at the hearing. If it was mentioned in the oral argument, it did not attract our attention.

But upon the facts as they are now stated the result will not be changed. The liability of the stockholders upon their unpaid subscriptions is that of debtors to the bank. Ogilvie v. Knox Insurance Co. et al., 22 How. 380. Consequently the balances now in controversy passed to the assignees under the assignment, which was 'of all the property, estate, credits, and assets of the' bank. The liability of a stockholder for his subscription is entirely different from that imposed by the charter 'for the ultimate redemption of the bills' issued by the bank. The subscription inures to the benefit of all creditors, while the individual liability under the charter operates only in favor of billholders.

Since the debts due upon the subscriptions passed to the assignees, the appellants, being parties to the suit instituted by them to close their trust, had the right to insist that this part of the assets should be reduced to possession, and distributed before the trust was closed and the assignees were discharged.

Ordinarily, a creditor must put his demand into judgment against his debtor and exhaust his remedies at law before he can proceed in equity to subject choses in action to its payment. To this rule, however, there are some exceptions; and we are not prepared to say that a creditor of a dissolved corporation may not, under certain circumstances, claim to be exempted from its operation. If he can, however, it is upon the ground that the assets of the corporation constitute a trust fund which will be administered by a court of equity in the absence of a trustee; that principle being that equity will not permit a trust to fail for want of a trustee. But here there was a trustee invested with ample powers to collect and dispose of all the assets belonging to the alleged trust fund. In a suit to which these appellants were parties one court of equity has found that this trustee has fully executed his trust, nd that the fund is exhausted. That decree is a bar to any further proceeding in equity by them, as creditors of the bank before judgment, for the purpose of securing the administration of the same trust. If there are assets which the trustee did not reach, the appellants are remitted to their remedies, after judgment against the bank, to subject equitable assets to the payment of their demands. We have seen, in the former opinion filed, that they do not now occupy the position of judgment creditors.

The other questions presented by the petition for rehearing have already been sufficiently considered. A liability by statute is as much the subject of remedial legislation as a liability by contract, unless the remedy enters into and forms part of the obligation which the statute creates. Such, we think, is not the case here.

Petition overruled.

NOTE.-In Terry v. Coskery, error to the Circuit Court of the United States for the Southern District of Georgia, which was argued at the same time as was the preceding case by Mr. Harvey Terry and Mr. William Stone for the plaintiff in error, and by Mr. W. H. Hull for the defendant in error, MR. CHIEF JUSTICE WAITE, in delivering the opinion of the court, remarked: 'There is nothing to distinguish this case in principle from that of Terry v. Tubman, 92 U.S. 156, and that of Terry v. Anderson, supra, p. 628.'

Judgment affirmed.

title: Terry v. Anderson/Opinion of the Court


text: Talk:Terry v. Anderson/Opinion of the Court


text:
Burdette v. Bartlett

ERROR to the Supreme Court of the District of Columbia.

This was an action brought by Bartlett, Robbins, & Co. against Howard, Peugh, Lacey, and Ross, as makers, and Helmick and Burdette, as indorsers, of a certain joint and several promissory note for $1,993, dated July 16, 1873, and payable to the order of said Helmick. The note was duly protested for non-payment, and the indorsers served with notice. The defendants, with the exception of Ross and Helmick, were served with process; but the action was subsequently dismissed as to all of them but Burdette. Judgment by default was rendered against him, which the general term, upon appeal, affirmed. Burdette then sued out this writ, and here assigns for error: 1. The court below erred in giving judgment for plaintiffs, because there was misjoinder of parties defendants. 2. Because the makers and indorsers of a promissory note cannot be joined as defendants in the same action.

Mr. William F. Mattingly, for the plaintiff in error.

Sect. 827 of the Revised Statutes relating to the District of Columbia unquestionably does not, in express terms, authorize the joinder of makers and indorsers of a promissory note as defendants. Where such is the intent of the legislature, it has been expressed in plain and unambiguous terms, as in Mississippi. Keary v. Farmers' & Merchants' Bank of Memphis, 16 Pet. 89.

That section was, by its terms, evidently intended to modify the common-law rule, that, in a case of a joint and several contract, all the parties must be sued in one action, or a separate action be brought against each, and to allow a plaintiff to unite, at his pleasure, two or more of the parties in one action.

The contract of a maker and that of an indorser of a promissory note are wholly distinct and different. The maker promises to pay absolutely, while the undertaking of the indorser is merely conditional; and, unless a statute in plain terms authorizes the parties to two such independent contracts to be joined in one action, no such construction should be given to it.

Mr. Andrew C. Bradley, contra.

The joinder of the makers and indorsers of a promissory note, or of part of them, as defendants in 'one action,' is expressly authorized by the statute; and such, since its enactment, has been the judicial construction uniformly given to it. No clause excludes from its provisions the parties severally liable upon promissory notes, whether as makers or as indorsers. The statute is a emedial one, and should be liberally construed. Atcheson v. Everitt, Cowp. 381; Eyston v. Studd, 2 Plowd. 465; Wilkinson v. Leland, 2 Pet. 267; 1 Bl. Com. 87; Dwarris on Statutes, 231.

What is implied in a statute is as much a part of it as what is expressed. Gelpcke v. City of Dubuque, 1 Wall. 221; Dubois v. Hepburn, 10 Pet. 1; Hoguet v. Wallace, 4 Dutch. (N. J.) 524; Cullerton v. Mead, 22 Cal. 95; Jackson v. Warren, 32 Ill. 331; Pearson v. Lovejoy, 53 Barb. (N. Y.) 407; People v. Tibbets, 4 Cow. (N. Y.) 384; Holmes v. Carley, 31 N. Y. 289; Hudler v. Golden, 36 id. 446; Adm'x of Tracy v. Adm'r of Card, 2 Ohio St. N. S. 431; Staniels et al. v. Raymond & Trustee, 4 Cush. (Mass.) 314; Gibson v. Jenney, 15 Mass. 205; State v. Jones et al., 8 Md. 88; Converse v. Burrows, 2 Minn. 229.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Burdette v. Bartlett


text: Talk:Burdette v. Bartlett

title: Talk:Burdette v. Bartlett


text:
Burdette v. Bartlett/Opinion of the Court

By sect. 827 of the Revised Statutes of the United States relating to the District of Columbia, it is enacted as follows, viz.:--

'Where money is payable by two or more persons jointly or severally, as by joint obligors, covenantors, makers, drawers, or indorsers, one action may be sustained and judgment recovered against all or any of the parties by whom the money is payable, at the option of the plaintiff. But an action against one or some of the parties by whom the money is payable may, while the litigation therein continues, be pleaded in bar of another action against another or others of the said parties.' 14 Stat. 405, § 20.

This is a portion of an act of Congress entitled 'An Act to amend the law of the District of Columbia in relation to judicial proceedings therein.' In the case before us, an action was commenced and the process served upon two of the several makers of a promissory note and one of the indorsers thereof, there being other makers and other indorsers of the note.

The statute is not happily expressed, whatever may have been the intention of its framers. It is contended, on the one hand, that it was designed merely to modify the common-law rule, that, in case of a joint and several contract, all the parties must be sued in one action, or a separate action be brought against each, and to allow the plaintiff to sue one or more of the parties in one action, and to omit a portion of them, at his pleasure.

It is insisted, on the other hand, that it is an enactment in the spirit of the provisions of numerous State statutes, permitting the holder of a note to join the makers and indorsers, at his discretion, in the same action. The latter, we are told in the brief, has been the uniform construction of the statute by the courts of the District since its passage, more than ten years since, and we are of the opinion that it is a sound construction. The words, 'as by joint obligors, covenantors, makers, drawers, or indorsers,' are inserted by way of illustration, and, like many other intended illuminations, serve but to darken the subject. Omitting these words (as parenthetical), the statute provides that one action may be sustained against all or any of the parties by whom payable, where money is payable by two or more persons jointly or severally.

In the present case, there is a sum of $1,993 payable upon an instrument in writing. It is payable by Howard, one of the makers of the note. It is payable also by Burdette, one of the indorsers of the note, and it is the same sum of $1,993 that is payable by each of them. A collection of the money by the holder from one of the parties would be a bar to further proceedings by him against the others. So an action simply against Howard alone would, in our opinion, give Burdette the benefit of the latter clause of the statute; to wit, that an action against one of the parties, while it continued, might be pleaded in bar of another action against him, as another party to the contract. So far as the present question is concern d, the act of Congress was intended to produce the effect of the statutes of several of the States; to wit, 'Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange or promissory notes, may all or any of them be included in the same action, at the option of the plaintiff.' 2 Edm. Stat. of N. Y., p. 32.

The judgment of the Supreme Court of the District of Columbia was right, and is

Affirmed.


text: Talk:Burdette v. Bartlett/Opinion of the Court


text:
Young v. United States (95 U.S. 641)

ON motion for a writ of certiorari.

A judgment was rendered in this case by the Court of Claims, May 15, 1874, from which the United States took an appeal to this court. On the 5th of May, 1876, while that appeal was pending, the United States moved the Court of Claims for a new trial, under the provisions of sect. 1088, Rev. Stat. The motion was as follows:--

'And now comes the Attorney-General in behalf of the United States, and moves the court to grant the United States a new trial in the above-stated case, lately decided in this court, and that an order may be made staying the payment of the judgment so rendered in favor of said Alexander Collie, the said claimant. And the Attorney-General herewith submits to the court in support of this motion the affidavits of sundry witnesses taken abroad by the counsel of the United States, and certain papers and documents duly proved and verified, which the United States, by its Attorney-General, says have been discovered and obtained since the trial of the case, and which evidence the United States, by its Attorney-General, insists should satisfy the court that fraud, wrong, and injustice have been done to the United States by the recovery by said Collie of said judgment.'

title: Young v. United States (95 U.S. 641)


text: Talk:Young v. United States (95 U.S. 641)


text:
Young v. United States (95 U.S. 641)/Opinion of the Court

Upon the hearing of this motion a new trial was granted. The United States then came to this court, and moved to dismiss their appeal. This motion was resisted by the then appellee, who asked that a writ of certiorari might issue to bring here the proceedings of the Court of Claims in granting the new trial. This application was denied, and the appeal dismissed. Afterwards, the Court of Claims reheard the cause, and gave judgment for the United States. From that judgment this appeal was taken; and the transcript of the record sent here contains the motion of the United States for the new trial and action of the court thereon, but not the affidavits filed in support of or in opposition to the motion. The appellant now moves for a writ of certiorari to bring here these affidavits, with the papers and documents appended thereto.

Sect. 1088 of the Revised Statutes is in these words:--

'The Court of Claims, at any time while any claim is pending before it, or on appeal from it, or within two years next after the final disposition of such claim, may, on motion on behalf of the United States, grant a new trial, and stay the payment of any judgment therein upon such evidence, cumulative or otherwise, as shall satisfy the court that any fraud, wrong, or injustice in the premises has been done to the United States.'

Mr. W. W. MacFarland and Mr. J. Hubley Ashton in support of the motion.

Mr. Assistant Attorney-General Smith, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

Under the act of June 23, 1868 (15 Stat. 75), re-enacted in sect. 1008, Rev. Stat., it was said, in Ex parte Russell, 13 Wall. 664, that to justify the grant of a new trial 'a new case must be made,-a case involving fraud or other wrong practised upon the government. It is analogous to the case of a bill of review in chancery to set aside a former decree or a bill impeaching a decree for fraud.' This remark of the judge, in the argument of the opinion, is to be construed in connection with the particular objection to the jurisdiction of the Court of Claims he was then considering, which was 'that the granting of a new trial after a decision by this court is, in effect, an appeal from the decision of this c urt.' This, he said, 'would be so, if it were granted upon the same case presented to us; but it is not. A new case must be made,' &c.

When this case was before us at the last term, upon the application for the writ of certiorari to bring up the proceedings of the Court of Claims in granting the new trial, it was contended that the court had proceeded 'without jurisdiction, power, or authority;' and, in denying the writ, we said, 'the proceedings under which the new trial was obtained are now part of the record below, and, after judgment is finally rendered, may be brought here by appeal for review.' United States v. Young, 94 U.S. 258. They are now here; and the record, instead of showing that the court did not have jurisdiction to proceed, shows affirmatively that it had. The motion, as made, brings the case directly within the statute. That being so, the objection as to the jurisdiction of the court, which alone we were then considering, is answered. A case having been made upon the record, such as would justify its interference, that court had the right to hear the evidence, and decide. Over its decision within that jurisdiction we have no control, for the statute has not provided an appeal. The new trial is to be granted if the evidence submitted, whether cumulative or otherwise, is sufficient to satisfy that court 'that fraud, wrong, or injustice had been done to the United States.' The act was passed for the protection of the United States. It constitutes one of the conditions which Congress has seen fit to attach to the grant of a right to sue the United States. The suitor cannot complain, for he accepted this condition of the jurisdiction when he commenced his suit. If the record showed affirmatively that the Court of Claims had granted a new trial after the term at which the judgment was rendered, under circumstances which gave it no jurisdiction,-as, for instance, after the expiration of two years from the final disposition of the claim, or for some cause not within the provisions of the statute,-a different case would be made from that which is here now, and one which it will be time enough to consider when it arises. We are all of the opinion that the decision of the Court of Claims, upon a motion by the United States, within the prescribed jurisdiction, is conclusive, and not subject to review. The claimant must rely upon his appeal from the final judgment upon the merits for protection against wrong under this form of proceeding.

Motion denied.


text: Talk:Young v. United States (95 U.S. 641)/Opinion of the Court


text:
New Orleans v. Clark

ERROR to the Circuit Court of the United States for the District of Louisiana.

This was an action commenced Feb. 7, 1874, by Freeman Clark against the Jefferson City Gas-light Company and the city of Carrollton, La., to recover $7,200, the amount of overdue interest coupons cut from certain bonds issued by said city to that company.

On the 11th of January, 1871, the mayor and council of the city of Carrollton passed an ordinance authorizing the mayor to enter into a contract with that company to light the city and supply the citizens with gas-light, and providing that, in consideration of the execution of the contract by the company within a specified time, 'the city of Carrollton, through the mayor, shall provide and issue forty-five $1,000 bonds of the city of Carrollton, payable in thirty years, with interest at eight per cent, payable semiannually to the order of the said Gas-light Company: Provided, the said company shall guarantee the said bonds, and assume the payment of the principal thereof at maturity; And provided further, that if at the maturity the said company shall fail to pay said bonds, then the said city shall pay the same, and become the owner of all the gas-works, main-pipes, posts, &c., then lying and being within the present limits of the city of Carrollton.

'That the treasurer of the city of Carrollton shall specially appropriate and set aside in lawful money, every month, such amount or proportion of the taxes and dues of said city as shall be necessary to meet the interest on said bonds and such gas-bills as may accrue against said city; and that the mayor in said act shall be authorized to make such other agreements, not inconsistent herewith, as may be necessary to carry out the purposes of the ordinance, and make the said contract legal and conclusive on both parties thereto.'

A contract embracing the terms and stipulations of the ordinance was entered into between the mayor and the company; and the latter, having complied therewith, received the bonds, with coupons for interest attached.

The bonds and coupons were in the following form:--

'No. 1.] CITY OF CARROLLTON. [$1,000.

'A.] State of Louisiana. [No. 1.

'Know all men by these presents, that the city of Carrollton will pay to the Jefferson City Gas-light Company, or order, the sum of $1,000, in current money of the United States, in thirty years from the date thereof, with interest at the rate of eight per cent per annum, payable semiannually on the first day of January and first day of July of each year, at the office of the city treasurer, on the delivery of interest coupon attached to said bond. For the payment of the principal and accruing interest on this bond the faith and credit of the city of Carrollton is pledged, as set forth in the ordinance printed on the reverse hereof, passed and approved Jan. 11, 1871.

'In testimony whereof, the seal of the city of Carrollton is hereto affixed, and the signatures of the mayor, controller, and treasurer appended in writing on the first day of July, 1871.

[SEAL.] 'T. A. MARTIN, Controller.

'FREDERICK KERN, Treasurer.

'D. M. BISBEE, Mayor.

(Written across the face:) 'The Jefferson City Gas-light Company guarantee the payment of the principal and interest on this bond to the holder thereof.

'JOHN LOCKWOOD, President."$40.]

COUPON.

'The city of Carrollton will pay to bearer forty dollars at the office of the city treasurer, being six months' interest due July 1, 1874, on bond No. 1, for one thousand dollars.

'A.

FREDERICK KERN, Treasurer.'

An act of the legislature of Louisiana, passed Feb. 12, 1872, empowered the mayor and city council of the city of Carrollton to ordain, establish, and cause to be carried into effect and execution, all such by-laws, ordinances, resolutions, rules, and regulations as they might deem expedient for the good government of said corporation which are not contrary to the Constitution and laws of the State or the United States. They were also authorized and empowered to fund the outstanding debts and obligations of the city created for wharves, streets, gas, and other improvements of said city, by issuing its bonds in such sums as they might deem advisable, running for thirty years, with interest at eight per cent payable semiannually: Provided, that any ordinance for the issue of bonds should provide for the payment of their principal and interest by levying such annual tax as would raise a sufficient sum to pay the interest of said bonds as the same might come due, and should create a sufficient sinking fund to meet the principal at maturity.

April 10, 1872, the following ordinance was adopted by the mayor and council of the city of Carrollton:--

'An ordinance to provide for the payment of the bonds and interest on the same, as authorized by the provisions of the new charter of the city of Carrollton, bearing date the twelfth day of February, 1872, providing for the funding of the outstanding debts and obligations of the said city created for the wharves, streets, gas, and other improvements of said city.

'SECTION 1. Be it ordained by the mayor and council of the city of Carrollton, that there shall be assessed and levied a tax on all real and personal property within the limits of said city, as per amended charter, bearing date the twelfth day of February, 1872, and to be collected annually, one-half of one per cent (1/2 per cent), for the purpose of paying the prin ipal and interest of two hundred bonds of $1,000 each, or as much thereof as may be required to fund the city debt, and to be issued under this ordinance, and running for thirty years, the proceeds of the same to be applied for the purpose of funding the city indebtedness.

'SECT. 2. Be it further enacted, that the aforesaid tax of one-half of one per cent shall be assessed and levied on the assessment rolls of 1872, and shall not be exigible or collectible before the year 1873, and shall then be collected in the same manner as other taxes, and in accordance with the city charter in relation thereto.

'SECT. 3. Be it further enacted, &c., that the treasurer of the city of Carrollton shall annually set aside, after paying the interest as provided semiannually on said bonds, a sufficient amount to pay the principal at maturity: And provided further, that any failure or neglect upon the part of the treasurer of said city to comply with the provisions of said ordinance shall be a sufficient cause for his removal from office.

'SECT. 4. Be it further enacted, that the mayor of the said city, and chairman of the finance and the chairman of the streets and landings committees, be, and are hereby, authorized and empowered to forthwith negotiate a loan, sufficient in amount and as heretofore provided for in this ordiance, to liquidate the indebtedness of said city; and that the mayor is hereby authorized and empowered to have engraved and printed two hundred bonds of $1,000 each, with coupons attached, and to warrant on the treasurer for the payment of the printing and engraving of the said bonds, and to issue the necessary amount of bonds payable in thirty years required to meet said loan thus negotiated.

'SECT. 5. That this ordinance take effect from and after its passage.'

An act of the legislature, approved March 23, 1874, enacts as follows:--

'SECTION 1. That all that portion of the parish of Jefferson being and lying below the centre of Upper Line Street of the city of Carrollton, commencing at Mississippi River, and extending northwardly along the centre of said street to its terminus, and thence along the centre of the line of the New Orleans and Carrollton Railroad to Lake Pontchartrain, shall be and constitute the upper boundary line of the parish of Orleans and the city of New Orleans; and all that portion of the city of Carrollton thus detached from the parish of Jefferson and added to the city of New Orleans and parish of Orleans shall be governed by the mayor and administrators of the city of New Orleans, in accordance with existing laws, except so far as not inconsistent with this act.'

'SECT. 5. That all the rights, titles, and interest of the city of Carrollton, as now existing, in and to all lands, tenements, hereditaments, bridges, ferries, streets, roads, wharves, markets, stalls, levees, landing-places, buildings, and other property of whatsoever description and wherever situated, and of and with all goods, chattels, money, effects, dues, demands, bonds, obligations, judgments and judgment liens, actions and rights of action, books, accounts, and vouchers, be, and they are hereby, vested in the city of New Orleans: Provided, that all estates, income funds, or property of every description now held in trust by said city of Carrollton, or which shall have been specially pledged or affected by the payment of any debt, shall be held by the city of New Orleans, under this act, upon and for the same use, trust, limits, limitation, charities, and conditions as the same are now held; and the debt and all other indebtedness or liabilities of the city of Carrollton, including the funding and improvement bonds, and the bonds issued to the Jefferson City Gas-light Company, and known as the gas bonds, and notes, interest coupons, wages, salary due or to become due, warrants, or other species of obligations whatsoever, shall be assumed and paid by the city of New Orleans; and said city is hereby declared liable therefor: Provided further, that all officers of said city of Carrollton shall continue as at present constituted to discharge the duties of their respective offices until this act of incorporation can be completed by putting into possession of the proper officers of the city of New Orleans the books, papers, records, documents, and other property now belonging to the city of Carrollton, and no longer, and after which time all the powers, rights, privileges, and immunities possessed and enjoyed by the mayor and council of the city of Carrollton shall cease and terminate: And provided further, that the claims or vested rights of any person or persons, or company or corporation, of said city of Carrollton, that have been granted, acquired, or received from or against said corporation of the city of Carrollton, or otherwise, shall not be interfered with, divested, or impaired by this act, nor by the city of New Orleans, without adequate compensation.'

'SECT. 8. That the act entitled 'An Act to incorporate the city of Carrollton,' approved March 17, 1859, and all acts amendatory thereof, be, and the same are hereby, repealed.'

'SECT. 12. That all laws and parts of laws in conflict herewith be, and the same are hereby, repealed; and this act shall take effect from and after its passage.'Sect. 4 of an act of the General Assembly of Louisiana passed in 1855, No. 263, provides:--

'That the constituted authorities of incorporated towns and cities in this State shall not hereafter have power to contract any debt or pecuniary liability, without fully providing in the ordinance creating the debt the means of paying the principal and interest of the debt or contract.'

The city of Carrollton pleaded the general issue, and, in addition, declared that it was in no wise bound for said bonds; because, 1, they were issued by the officers of the city in violation of its charter; 2, that the ordinance and the contract made under it were illegal, null, and void; and, if the city had been expressly authorized to issue the bonds, the council, by the ordinance contracting said debt, made no provision to pay the principal or interest.

The gas company, in its answer, insisted that the bonds issued under the contract for supplying the city with gas were valid; that the city had accepted the works of the company, and enjoyed the benefit of the same ever since, and was therefore bound to pay the coupons as they became due. The answer prayed that the city of Carrollton be called in warranty, and be condemned to pay to the company any sum of money which the company might be decreed to pay to the plaintiff. March 26, 1875, after said answer had been made, Clark filed a supplemental petition, averring that since the commencement of his suit the legislature had passed an act, approved March 23, 1874, repealing the act incorporating Carrollton and annexing it to the city of New Orleans; and, further, that by the fifth section of that act the latter city was made liable for said bonds in solido with the said gas company.

To this supplemental petition the company filed an answer, denying all the allegations of the petition tending in any way to show responsibility on its part, and alleging that the city of New Orleans was bound to hold the respondent harmless from any claim of the plaintiff, and praying that said city be called in warranty, and condemned to hold the respondent harmless, &c.

The city of New Orleans also filed an answer, insisting upon the exception filed by the city of Carrollton, and that it should first be disposed of. After a general denial of the allegations of the supplemental petition, the answer averred that the city of Carrollton was without power to issue the bonds; that there was neither a moral nor a legal obligation on New Orleans to pay the same; and that any act of the legislature imposing such obligation was null and void.

There was a judgment in favor of Clark for $7,200 against the gas company, and one in favor of the company, on the call in warranty, against the city of New Orleans for a like sum.

The comp ny and the city each sued out a writ of error, and brought the case here.

Submitted on printed arguments for the Jefferson City Gas-light Company by Mr. Thomas J. Semmes and Mr. Robert Mott; for Clark, by Mr. Samuel Shellabarger and Mr. Jeremiah M. Wilson; and for the city of New Orleans, by Mr. Philip Phillips.

MR. JUSTICE FIELD delivered the opinion of the court.

title: New Orleans v. Clark


text: Talk:New Orleans v. Clark

title: Talk:New Orleans v. Clark