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

The charter-party out of which this controversy has arisen is dated on the 26th of August, 1865. It stipulates, among other things (1), that the schooner was then, and while in the service of the government should be kept, 'tight, staunch, and strong,' at the cost of the owners, and that the time lost by the deficiency in these respects should not be paid for by the United States. 'The war risk to be borne by the United States, the marine risk by the owners.' (2) The United States agreed to pay $50 per day for the time the vessel was engaged in their service.

On the 17th of November, 1865, pursuant to the charter-party, the schooner left Wilmington, in North Carolina, for the port of New York, laden with ordnance and ordnance stores. On her way she sprung a leak and was compelled to bear away and put into the port of St. Thomas, in the West Indies, for repairs. There the captain executed a bottomry bond, binding the vessel and cargo, and amounting, principal and interest, to $17,399.71. Having received the necessary repairs the vessel left St. Thomas on the 26th of January, 1866, and reached New York on the 13th of February ensuing. There, the bottomry bond not being paid at maturity, the vessel and cargo were libelled in the District Court, and, on the 10th of March, they were attached on that proceeding. The District Court dismissed the libel. An appeal was taken to the Circuit Court. That court affirmed the decree as to the cargo but reversed it as to the vessel, and finally decreed against the latter for the amount, due on the bond. The vessel was held by the marshal under the attachment from the 10th of March until the 30th of July. She was discharged from the service of the United States on the 7th of August.

A claim was made against the United States in general average. It was adjusted and paid to the satisfaction of the owners. All the per diem compensation claimed has also been paid except that for the time the vessel was in the hands of the marshal. Whether the claim for general average, and that for the time lost by the vessel in deviating from her course, going to St. Thomas, there awaiting repairs, and going thence to her port of destination, were not covered by the marine risk she had assumed, are questions not before us, and which we need not, therefore, consider.

The claim of per diem compensation for the time the marshal held the vessel, is the only ground of controversy between the parties, and it is the only subject open for examination in this case.

During that time, she was in the custody of the law, she was in no wise in the employment of the United States nor subject to their control. She did not, and could not render them any service while thus held.

The United States had not stipulated to pay in such a contingency. On the contrary, the detention was incident to the marine risk which the owners had expressly assumed. It was a fruit of that peril. The United States are not blameworthy, and not responsible. The contract puts all such burdens upon the shoulders of the owners. Those burdens cannot be shifted and thrown upon the other party.

JUDGMENT AFFIRMED.


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

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


text:
Cutner v. United States

APPEAL from the Court of Claims; the case as found by that court was thus:

Cutner, a loyal citizen of the United States, resident at Savannah, Georgia, one of the States which went into rebellion, was, on the 21st of December, 1864, the owner of thirty bales of cotton. On the day just named Savannah was captured by the army of the United States. On the 23d of February, 1865, Cutner reported his cotton to the commanding officer, and it was registered, in compliance with general military orders, by the Treasury agents in his name; and on the 3d of March following taken into the custody of the Treasury agents of the United States and shipped to New York, and there sold by the United States; the net proceeds, amounting to $6897, being paid into the Treasury.

On the 6th of March, 1865, Cutner executed a bill of sale of the cotton specifically, and describing it as 'all that certain lot and quantity of cotton, viz., thirty bales of cotton, marked S.C.., ' to Schiffer & Co., of New York, and received at the time, from one Stewart, the attorney and agent of Schiffer & Co., $2250, the entire consideration named in the bill of sale. The bill of sale recited that the cotton sold was the same which he, Cutner, had described in a petition of March 6th, 1865, to the President of the United States; and it authorized Stewart, the attorney, 'to pay over to Schiffer & Co. any and all proceeds which may arise from the same when sold.' At the time of this sale Schiffer & Co. had no license to trade with the enemy.

By act of July 13th, 1861, it was enacted, that 'all commercial intercourse' between the inhabitants of any State, or any section, or part thereof, who the President should declare 'were in a state of insurrection against the United States,' and the citizens of the rest of the United States should 'cease and be unlawful so long as such condition of hostility shall continue.'

By proclamation of August 16th, 1862, the President declared the State of Georgia to be in such state of insurrection.

By the act of July 2d, 1864, the prohibitions upon commercial intercourse with the territory in rebellion, are made to apply 'to all commercial intercourse by and between persons residing or being within districts within the present or future lines of National military occupation in the States or parts of States declared in insurrection, whether with each other or with persons residing or being within districts declared in insurrection, and not within those lines.'

It was not denied by Cutner, or Schiffer & Co., or at the bar, that the sale had been made in Savannah.

In this state of things Cutner, suing for the use of Schiffer & Co., filed a petition in the court below, under the provisions of the Captured and Abandoned Property Act, asking for restitution of the proceeds of the cotton in the Treasury.

The Court of Claims held:

1. That Schiffer was the real and beneficial claimant in this suit, although Cutner was the nominal one.

2. That the pretended transfer of the cotton by Cutner to Schiffer, on 6th March, 1865, was in violation of the non-intercourse acts of Congress and the President's proclamations made subsequent thereto, and therefore inoperative to clothe the real claimant, Schiffer, with a valid title to the cotton, or to vest in him a right to the proceeds thereof.

The court accordingly dismissed the petition. Hence this appeal.

Messrs. A. G. Riddle and A. L. Merriman, for the appellant:

There was no violation of the law restricting commercial intercourse in this transaction. However, the subject of sale is described in the bill of sale, the property sold was a claim against the United States for thirty bales of cotton or the proceeds of them, and, as a matter of course, was situated at the seat of government. Then the purchasers were loyal citizens of a loyal State, and being such, could not be presumed to have intended to send the fruits of such contract to the aid of the insurrectionary government, even if it were possible (which it was not) to have obtained the subject-matter of the trade from the government before sale thereof.

Messrs. G. H. Williams, Attorney-General, and C. H. Hill, Assistant Attorney-General, contra:

In any view the sale was unlawful. The State of Georgia, in which Savannah was, had been declared by a proclamation of the President, 'in a state of insurrection against the United States.' Though occupied by our forces, the 'state of hostility still continued.' The case comes, therefore, within the act of July 13th, 1861. It comes also within the later act of July 2d, 1864; for the sale and purchase-the 'commercial dealing'-was made 'with each other' by and between parties 'being within districts within the lines of National military occupation, in a State declared in insurrection.'

Mr. Justice BRADLEY delivered the opinion of the court.

title: Cutner v. United States


text: Talk:Cutner v. United States

title: Talk:Cutner v. United States


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

Intercourse between the inhabitants of the two belligerent sections was still prohibited when this sale was made. It was, therefore, clearly illegal, unless Schiffer & Co. had a license to trade in Savannah, which the case expressly finds they had not. The sale being illegal, the suit cannot be sustained for the benefit of the vendees. It cannot be sustained for Cutner's own benefit, because he received the full consideration of the cotton and has no interest remaining.

DECREE AFFIRMED.


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


text:
Board of Public Works v. Columbia College

APPEAL from the Supreme Court of the District of Columbia.

This was a suit in equity to reach property belonging to the estate of a deceased debtor, and have it applied to the demand of creditors, and particularly funds distributed by the executor of the estate of the deceased to legatees.

The facts of the case were as follows:

In July, 1853, the firm of Selden, Withers & Co., which was engaged in the business of banking in the city of Washington, entered into a contract with the Board of Public Works of Virginia, to sell on its account certain bonds of the State of Virginia, which had been issued for public improvements. In pursuance of this contract, the firm received from the complainant at different times bonds of the State amounting to over $4,000,000. In November, 1854, the firm suspended payment, being in insolvent circumstances, and made an assignment of its partnership assets to trustees for the benefit of its creditors. It was at the time indebted in a large amount to the complainant for the proceeds of bonds sold and not accounted for. The firm consisted of five partners, named Selden, Withers, Latham, Bayne, and Whiting; the two former having been of Alexandria, Virginia, the others mostly of Washington.

In December following, the said board instituted an action in the Supreme Court of the State of New York, against the members of the firm, to compel them to account for bonds deposited with them, and to pay the proceeds received from their sale. In this action personal service of process was made upon two of the partners, Latham and Bayne. Whiting, another partner, voluntarily appeared by attorney. The other two partners, Selden and Withers, were not personally served, and did not appear in the action. Being non-residents of the State, only a constructive service by publication was made upon them. The answer of Bayne, which was filed in 1856, alleged various set-offs, and (referring to the general assignment of the partnership in 1854, and to that of Withers in 1855) set up for a further and separate defence, that since the filing of the bill there had been assigned to the said Board of Public Works, or to persons for it, bonds, real estate, and other property (which it alleged that the said board, had accepted and received), to an amount sufficient to extinguish and satisfy the balance. The action proceeded on the pleadings to judgment, which was rendered in March, 1857, against all the partners for upwards of $500,000, including the allowance to the attorneys and costs.

In January, 1855, the defendant Withers, professing a desire, so far as he was able, to furnish sufficient security out of his private means for any balance of the debt of the firm that might remain unsatisfied from the partnership assets, conveyed to Bocock, the Attorney-General of Virginia, and one Wylie, a resident of that State, in trust for that purpose, certain real property situated in Alexandria, Virginia, and in St. Louis, Missouri, and certain shares in the Cumberland Coal Company. The nominal value of the property thus conveyed exceeded $250,000.

In September, 1858, the said board instituted a suit in equity in the Circuit Court of Alexandria County, in Virginia, against the members of the firm, their assignees, and the trustees, Bocock and Wylie, to obtain a decree against all the partners for the amount due from them, and for the sale of the property conveyed by Withers to Bocock and Wylie, and the application of the proceeds to the payment of the debt. In this suit two of the partners, Selden and Withers, were personally served with process; the other partners being non-residents of Virginia, were proceeded against by publication. Withers filed an answer, setting up, among other things, the recovery by the complainant of the judgment in the New York Supreme Court against his copartners upon the same causes of action, insisting that those causes were merged in that judgment; and also that the partnership assets in the hands of the assignees exceeded in amount the indebtedness of the firm, and that his individual property conveyed to the trustees, Bocock and Wylie, could not be subjected to sale until the trusts of the deed to the assignees were fully executed. This defence does not appear to have made much impression upon the Circuit Court, for on the same day on which the answer was filed, it rendered its decree that the complainants recover against all the partners, as well against those brought in by publication as those personally served, the sum of $513,615; this sum having been ascertained and reported as due from them by a commissioner previously appointed in the case. The decree, which was made June 1st, 1860, was accompanied by a direction that unless the amount was paid before the 1st of December following, the property conveyed by Withers to the trustees, Bocock and Wylie, should be sold and the proceeds applied thereon; and commissioners were designated to make such sale.

From this decree Withers filed a petition to the Supreme Court for an appeal. But the appeal was denied, 'the court being of opinion that the decree being interlocutory, no execution can issue without the order of court; and deeming it most proper that the case should be proceeded in further in the court below before an appeal is allowed.'

In the year 1860, Withers removed his residence from Alexandria, in Virginia, to the District of Columbia, and in November, 1861, died there, leaving a will, which was insufficient to pass real property, but was sufficient to pass personal estate. The will was admitted to probate in the Orphans' Court of the district, and letters testamentary were issued thereon to English, the only one of the executors named in the will who qualified.

Under this will there were several legatees, among whom were the President of Columbia College (in trust for the college), Elizabeth Madden and Attie Gulick.

In 1865 the legatees filed a bill in the Supreme Court of the District to compel the executor to account for and distribute the personal estate in his hands. The executor appeared and answered, and the cause was referred to an auditor to take an account of the personal property of the testator, and of the debts against the estate, and of the balance distributable to the legatees and next of kin. The auditor having by advertisement called on persons having claims against the estate to present them to him, made a report accordingly, reporting distribution among the legatees and next of kin. The report was confirmed, and in April, 1866, the Board of Public Works of Virginia not having in any way appeared or made any claim before the auditor, or in the Orphans' Court of the District of Columbia (a tribunal having jurisdiction over the estates of decedents in the District), a decree was entered directing distribution, which was accordingly made.

The will, as already stated, was insufficient to pass real property, and an interest in such property situated in the District, belonging to the deceased, vested, accordingly, in his heirs.

In 1856 the deceased had conveyed a parcel of land, situated in the District, to Columbia College for the nominal consideration of $18,000.

In this state of things the Board of Public Works of Virginia filed, in July, 1867, the present bill against the executor of Withers, his heirs at law, and legatees, among whom were Columbia College, Madden, and Gulick, to reach the real property of the deceased which did not pass under the will, but which vested in his heirs; to set aside the deed to the college, on the alleged ground that it was made without consideration, whilst the deceased was insolvent, with intent to defraud the complainant; to charge the executor for the assets which came into his hands, and which he distributed to the legatees under the decree of the Supreme Court of the District, on the ground that he was informed of the debt to the complainant, and failed to bring it to the notice of the court directing the distribution, and to compel the legatees to refund the amounts received by them.

Columbia College, Madden, and Gulick (these last two with their husbands) alone answered the bill. In their answers they negatived its material allegations and relied upon the non-joinder of the surviving partners of Withers, and the statute of limitations. They also contended that the demand against Withers was merged in, and extinguished by, the judgment of the Supreme Court of New York; that the decree of the court of Virginia was interlocutory and not final, and that the distribution under the decree of the Supreme Court of the District afforded a complete protection to the executor and legatees.

A replication was filed to the answers, and the case was heard upon the pleadings without any proofs. The court dismissed the bill without prejudice, and the complainant appealed.

The defendants, in their answer, disclaimed any knowledge or information touching the alleged interest of the deceased in real property in the District which did not pass under his will, and, by consent of parties, a decree was entered for its sale. The answer of Columbia College showed that the deed to that institution, executed by the deceased in 1856, was made in part payment of a bond given as far back as 1852, and which became payable in July, 1853, before the suspension of Selden, Withers & Co., and before that firm was in failing circumstances; and the attempt to reach the property appeared to have been abandoned by the complainant. On the argument no decree was asked respecting it, nor was any allusion made to it. And from the failure to press the charge made against the executor personally, and to present any evidence of neglect of duty on his part, that ground of relief would also appear to have been abandoned. In his printed argument in this court the counsel of the complainant stated, that the only question really controverted and decided in the court below was the liability of the above legatees to refund the amounts received by them to be applied on the demand of the complainant. And that question was the only one for determination on this appeal.

Mr. W. S.C.ox, for the appellant, argued that the case brought in 1854 in the Supreme Court of New York was, of course, founded on the existence of a debt due by Selden, Withers & Co. to the Board of Public Works of Virginia; that except on pleadings showing it, no such judgment as was given could have been given; that the decree of the Circuit Court of Alexandria County, Virginia, made in 1860, was equally conclusive; that it terminated in a decree ascertaining a clear balance, and decreeing unconditionally that the board recover of all the partners the sum of $513,615; that such a decree was a final decree according to the Virginia decisions, and must be treated as conclusive in other States.

Assuming thus, he argued further that it was a settled doctrine of equity that the creditors of a deceased person had a right to pursue assets in the hands of legatees, and this law was recognized in this court, as generally elsewhere.

Mr. W. D. Davidge, contra, for Columbia College, argued that independent of numerous technical objections, which he specified, including among them and prominently the statute of limitations, and non-joinder of the surviving partners of Withers,-that neglect of the complainant to give notice to the executor of Withers, or to notify its claim to the auditor when about finally to distribute the fund, alone required the dismissal of the bill below, and the affirmance of the decree which dismissed it.

Mr. Justice FIELD, after stating the facts of the case, delivered the opinion of the court as follows:


text: Talk:Board of Public Works v. Columbia College


text:
Board of Public Works v. Columbia College/Opinion of the Court

As preliminary to the inquiry whether any grounds are disclosed in the case for the interposition of a court of equity, the existence of an undisputed debt by the deceased must appear. The existence of such a debt is affirmed upon the admission of the pleadings of the indebtedness, in 1854 and 1855, of the firm of Selden, Withers & Co., and upon the decree of the Circuit Court of Virginia, in June, 1860.

Whether the indebtedness of that firm was merged in the judgment of the Supreme Court of New York, and the personal claim against Withers was thus extinguished, as contended by counsel, it is unnecessary to determine. It is sufficient for the disposition of this case that the judgment is not evidence of any personal liability of Withers outside of New York. It was rendered in that State without service of process upon him, or his appearance in the action. Personal judgments thus rendered have no operation out of the limits of the State where rendered. Their effects are merely local. Out of the State they are nullities, not binding upon the non-resident defendant, nor establishing any claim against him. Such is the settled law of this country, asserted in repeated adjudications of this court and of the State courts.

The judgment in New York, it is true, is a joint judgment against all the partners, against those summoned by publication as well as those who were served with process or appeared, but this joint character cannot affect the question of its validity as respects those not served. The clause of the Federal Constitution which requires full faith and credit to be given in each State to the records and judicial proceedings of every other State, applies to the records and proceedings of courts only so far as they have jurisdiction. Wherever they want jurisdiction the records are not entitled to credit.

The indebtedness of the firm of Selden, Withers & Co., to the complainant in 1854 is, it is true, admitted by the pleadings, but the admission is accompanied with such statements as to the assignment of the partnership property, and transfer of individual property of Withers for the payment of the indebtedness, and the disposition and use of such property, as to render it a matter of doubt whether, upon an accounting, any amount would remain due to the complainant. The existence of any present indebtedness is denied, and the case was brought to a hearing on the pleadings without any evidence.

Is the claim of the complainant against Withers established by the decree of the Circuit Court of Virginia so as to authorize the present bill? The suit in this latter court was brought against all the partners, but personal service was made only upon two of them, Withers and Selden, and the case proceeded against the others upon publication of citation. Withers, as already stated, insisted in his answer, among other things, upon the merger of the causes of action in the New York judgment; and that his individual property conveyed to trustees could not be subjected to sale until the trusts in the deed of assignment were executed; but the Circuit Court, without appearing to attach any weight to this defence, immediately rendered its decree against all the partners. Withers desired to appeal from this decree, but the Court of Appeals denied his application for that purpose, on the ground that the decree was merely interlocutory and not final, declaring, in its order, that it deemed it 'most proper that the case should be proceeded in further' before an appeal was allowed. One of the principal objects of the suit was to obtain a sale of the property conveyed by him to trustees, and the application of the proceeds to the debt of the firm of Selden, Withers & Co. to the complainant. The amount of individual property thus conveyed exceeded in nominal value, as already stated, $250,000, and this was to be applied only to cover a deficiency remaining after the application to that debt of a portion of the partnership assets assigned in 1854. The Court of Appeals may have considered that the decree of the Circuit Court, as a personal judgment, was not to be treated as final, but only as interlocutory, until the deficiency mentioned was determined, and the property held as security for its payment had been sold and applied. At any rate, the complainant, relying upon the decree of the court as evidence of his demand against Withers, invoking for it full faith and credit under the clause of the Constitution, cannot object to the character which the highest court of Virginia has given to it, or insist that it is entitled to any other consideration or weight. No greater effect can be given to any judgment of a court of one State in another State than is given to it in the State where rendered. Any other rule would contravene the policy of the provisions of the Constitution and laws of the United States on that subject.

If the decree was interlocutory, it is to be treated as only fixing provisionally the indebtedness to the complainant of the firm of Selden, Withers & Co., and, of course, the individual liability of Withers. The adjudication did not prevent a re-examination of the question of his liability, if an examination of the merits of his defence were ever made, or any subsequent modification of the terms of the interlocutory decree. The whole subject remained open, under the control of the court, and at the final hearing the provisions of the decree might have been enlarged or restricted, or otherwise modified.

It does not appear from the bill, or the record annexed, whether any proceedings for the enforcement of the interlocutory decree were subsequently taken; whether the property in Virginia or in Missouri, or any part of such property, was ever sold; or, if a sale was made, whether any of the proceeds were applied to the extinguishment of the amount adjudged due. If any inference upon this head can be drawn from the allegation of the bill that the amount remains wholly unsatisfied, it is that no such proceedings were ever taken.

The jurisdiction of a court of equity to reach the property of a debtor justly applicable to the payment of his debts, even when there is no specific lien on the property, is undoubted. It is a very ancient jurisdiction, but for its exercise the debt must be clear and undisputed and there must exist some special circumstances requiring the interposition of the court to obtain possession of, and apply the property. Unless the suit relate to the estate of a deceased person, the debt must be established by some judicial proceeding, and it must generally be shown that legal means for its collection have been exhausted. In all cases, we believe property pledged or conveyed for the payment of the debt must be first applied.

The rule requiring the existence of special circumstances bringing the case under some recognized head of equity jurisdiction, should not only be insisted upon with rigor whenever the property sought to be reached constitutes, as here, assets of a deceased debtor, which have already been subjected to administration and distribution; but some satisfactory excuse should be given for the failure of the creditor to present his claim, in the mode prescribed by law, to the representative of the estate, before distribution.

In England, courts of chancery took jurisdiction of bills against executors and administrators, for discovery and account of assets, and to reach property applicable to the payment of the debts of deceased persons, not merely from their general authority over trustees and trusts, but from the imperfect and defective power of the ecclesiastical courts. It was sufficient that a debt existed against the estate of a decedent, and that there was property which should be applied to its payment, to justify the interposition of the court; but when a distribution of the fund had been made, another creditor could not ask for a return of the moneys from the distributees or for a proportional part, if he had received notice of the original proceeding, and had been guilty of laches or unreasonable neglect.

In this country, there are special courts established in all the States, having jurisdiction over estates of deceased persons, called probate courts, orphans' courts, or surrogate courts, possessing, with respect to personal assets, nearly all the powers formerly exercised by the court of chancery and the ecclesiastical courts in England. They are authorized to collect the assets of the deceased, to allow claims, to direct their payment and the distribution of the property to legatees or other parties entitled, and generally to do everything essential to the final settlement of the affairs of the deceased, and the claims of creditors against his estate. There is a special court of this kind in this District, called the Orphans' Court, which was competent to allow the complainants' demand, but the demand was never presented to it for allowance. That court court have directed the application of the assets of the estate, if the demand had been allowed, or, if rejected, had been established by legal proceedings. No application was made for its aid, nor was the demand brought to the attention of the Supreme Court of the District when the estate was before it for settlement, although publication was made by the auditor for the presentation of claims. No explanation is made or attempted of this neglect, and the only grounds disclosed by the bill for relief are fully met by the answers, and are not sustained by any proof.

We are of opinion, for the reasons stated, that the decree of the court below, dismissing the bill, was correct; and it is unnecessary to consider the objections to it founded upon the non-joinder of the surviving partners of Withers, and the statute of limitations.

DECREE AFFIRMED.


text: Talk:Board of Public Works v. Columbia College/Opinion of the Court


text: Rea v. Missouri

title: Rea v. Missouri


text: Talk:Rea v. Missouri

title: Talk:Rea v. Missouri


text:
Rea v. Missouri/Opinion of the Court

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

The First National Bank of Washington, D. C., in 1869, having a judgment against one Perry Fuller, who had been a large dealer with the Indians on the Western frontier, having more than one trading-place there, levied on certain goods at St. Louis, in Missouri, which they alleged to be his. One Hayes, however, claimed them; and the sheriff refusing to go on with his levy unless indemnified, the bank, along with Rea and another, in accordance with a statute of Missouri, executed a bond to the State of Missouri, conditioned that the bank should indemnify the sheriff against the seizure of the goods, and should also pay Hayes, and any person claiming title to the property, for all damages which they should sustain in consequence of such seizure and sale.

The sheriff hereupon sold the goods under the attachment, and thereupon an action was brought in the name of the State of Missouri on the relation and to the use of Hayes against the sureties in the bond, Rea, and the other; the suit, of course, being in fact, one by Hayes, for an illegal seizure and sale of his goods.

The bank set up that the goods belonged to Fuller, and that the purchase of them by Hayes was a simulated and fraudulent one, and was in truth made for the benefit of Fuller.

The great question on the trial was whether there was or was not a fraudulent scheme between the two persons, by which the goods in question were to be purchased in Hayes's name, but in secret trust for the use and benefit of Fuller, wholly or in part.

In the course of the trial Hayes, the virtual plaintiff, was placed on the stand, by his own counsel, to show the value of the goods in question, and the fact that he had purchased them on his own account alone. His cross-examination was very long, covering fifty pages of the printed record, and took a wide range. It appeared on this cross-examination that in 1865 he had been a clerk in the Indian Department at a salary of $1500, and had a wife and child, and that these goods were bought in 1869, and had cost about $24,000, being bought partly for cash and partly on credit. To explain his ability to make a purchase, in either way, on so considerable a scale, the witness having stated that in 1865 some four years before the goods were bought-he was worth $45,000, he was asked how he had acquired that sum. As to a portion of it he stated that he had advanced money,-sometimes $3000 or $4000, and from that to $6500 at a time,-to a third person to buy up government vouchers on speculation; and that he and this person had shared, share and share alike in the profit.

The record then disclosed the following dialogue:

Counsel for the defendants (to the witness):

Question. To whom did you lend this money to buy Indian vouchers?

''Answer. To a friend of mine''.

Question. Who was it?

Answer. If the court requires I shall tell the name, not without.

Question. You decline to answer?

Answer. If the court requires it, I will answer.

The Court. If there is some reason why he does not wish to disclose the name, the court will not oblige him to do it.

Counsel for the defendants. The witness might answer the questions; they are very short.

The Court. He may have personal reasons why he does not choose to name the parties; if so, I won't press him.

Counsel for the plaintiff. Suppose the man was an officer of the government, and made himself criminally liable?

Counsel for the defendants. Then let the witness state it.

The Court. If there are personal reasons why the witness does not choose to answer, he need not state it.

Witness. I prefer not to give it.

And thereupon, no answer being given, an exception was noted.

Hayes also stated in his cross-examination, that Fuller & Co. and McDonald & Fuller, firms dealing with the Indians, and in which Perry Fuller was interested, were indebted to him for services rendered to them in certain contracts which they had with the government in 1866, and that they had paid him large amounts on that account, a matter which the defendants denied to be true.

The goods had been purchased at New York by Hayes, and the bills made and the goods shipped to St. Louis in his name alone.

A great mass of evidence of a circumstantial character was taken on the subject, showing the history and character of the connection between Hayes and Fuller; and as the defendants contended, tending to prove that Hayes was a mere tool of Fuller's, in this as well as other transactions. It was shown that Hayes had been in intimate relations with Fuller previously to this purchase; that Fuller, though a dealer with the Indians, and in the West, was much in Washington, and that Hayes, as already said, was a clerk in the Indian Department in that city, and that the two persons were acquainted in this manner in 1861; that Fuller being afterwards, 1868, appointed revenue collector at New Orleans, Hayes was appointed an appraiser under him, with a salary of $1800; that in the matter of the purchase of the goods levied on, Fuller recommended Hayes as a purchaser of them, certified to his responsibility, indorsed his notes for a part of the purchase-money, and pledged his wife's securities as collateral to a portion thereof. A great variety of other evidence of many kinds was given tending, as the counsel of the defendants conceived, to show intimacy and collusion. Amongst this evidence were various declarations of both Hayes and Fuller, made at different times, as well when they were together as when they were not.

The testimony being closed the circuit judge charged the jury thus:

'If you find from the evidence that Hayes was the sole owner of the goods, and that Fuller had no interest or right of property therein, then the bank had no right to levy its attachment upon them, and the defendants are liable to the plaintiffs for their damages.

'But if you find that Fuller owned the property attached, or was a copartner, though a secret copartner with Hayes in respect to said goods, or had a joint interest in them, then, in either case, the bank had a right to attach the goods, and the defendants are not liable in this action; and in this action are not liable although Hayes, as between himself and Fuller, may have had a joint interest, with Fuller, in the goods.'

After stating that the goods were purchased in New York in the name of Hayes, and that the bills were made to him, and that prim a facie, therefore, the goods would be Hayes's, the learned judge added:

'But the bank asserts that, although the goods were thus purchased ostensibly or apparently in the name of Hayes, yet that the purchase was in pursuance of a secret agreement or understanding between Hayes and Fuller, to the effect that Hayes should buy, in his own name, but for Fuller's benefit and use, or for the joint use and benefit of Hayes and Fuller, and that the motive or inducement for this arrangement or understanding was that Fuller was in embarrassed circumstances, or was apprehensive of trouble if his name was known in the purchase. In other words, the bank alleges that there was a fraudulent scheme between Fuller and Hayes, by which goods were to be purchased in Hayes's name, but in secret trust for the use and benefit of Fuller wholly or in part.'

The learned judge then told the jury that the alleged fraudulent scheme might be established by circumstances; that it was not necessary to establish it by express or positive testimony; and after other pertinent remarks, not now material to be stated, the case was submitted.

The jury having remained out until the next morning failed to agree, and returned into court, when they were again charged by the district judge, then holding a Circuit Court, as follows:

['If the property in question was bought and shipped solely in the name of Hayes, then the jury should find the ownership to be exclusively his, unless the defendants have proved that notwithstanding such purchase and shipment, the fact really is that the ostensible and apparent ownership of Hayes was to cover up and conceal a proprietary interest of Fuller in the goods. In other words, the possession of the goods by Hayes, the same having been bought and shipped solely in his name, throws upon the defendants the burden of proving that Fuller had a property interest therein, or was part owner thereof.]

['The defendants, in proving a secret or other agreement or understanding between Hayes and Fuller as to ownership of these goods, must first establish that fact by competent evidence, independent of any declarations or statements by Fuller in the absence of Hayes.]

['In order to prove such understanding, the defendants cannot resort to such declarations or statements by Fuller; hence, discarding from your minds on that branch of the inquiry all statements made by Fuller in the absence of Hayes, you should first determine whether such an understanding existed. If it did not exist, or is not proved by testimony independent of such statements by Fuller, then the jury cannot consider such statements by Fuller as any evidence whatever in this case. If satisfied by such independent evidence that such an understanding existed, then Fuller's declarations are competent testimony, and not otherwise.]

['It is immaterial as to the ownership of the goods how Hayes acquired his means, or whether his exhibit of his means was correct or not, if he actually bought the goods solely for himself. The merchants of whom he bought, if the purchase was based on false representations, had their legal redress, but the defendants cannot impair the title on such grounds;] that testimony it is proper for the jury to consider in reference to the credibility of Hayes as a witness, and also as tending to show what connection, if any, Hayes had at the time with Fuller, and so with respect to the manner in which he acquired his means or credit.

['If he wronged the government, or violated his official obligations, or procured an unfair advantage in his settlement with Fuller & Co. or McDonald & Fuller, this is not the case in which he is to be tried for such alleged misconduct. This is a simple question as to the ownership of the goods in controversy, and not as to other or outside questions, and such questions have nothing to do with the merits of this case further than they affect the credibility of witnesses, or throw light upon the alleged understanding between Hayes and Fuller as to their ownership of this property.']

After this last charge the jury brought in a verdict of $23,127; and judgment being entered accordingly, the defendant brought the case here on an exception to the ruling as to Hayes's refusal to answer, and on exceptions to different parts, put above in brackets, including, in all, almost every part of the charge as last above given. No exception was taken to the charge of the circuit judge; on the contrary, it was admitted to be proper.

Messrs. J. B. Henderson and A. F. Smith, for the plaintiff in error:

1. As to the refusal of the court to make Hayes name the third person, styled his friend; the exception to the ruling of the court on the admission of evidence.

Whether or not Hayes did own $40,000 when he bought these goods was a question of capital importance in the case. If he did, HE might well have bought them. If he did not, and owned nothing, HE could not have bought them at all; and this, his inability to buy them, taken in connection with the intimate relation, both generally and in this particular transaction, shown with Fuller, made patent the collusion and fraud which was set up and charged by the bank, and which was the gist of the case. The matter which it was sought by the question to prove went, therefore, directly to the foundation of the case. There was nothing irrelevant or even collateral in it.

Moreover, the question put was one invited, by what the witness himself had shown, to wit, that he had been but an inferior clerk-one at $1500 a year-and had a wife and child with himself to provide for. How then did he, during that time, come to get $40,000?

Our purpose in the question was obvious. We wished Hayes to name his alleged friend, that we might call that 'friend' and show by him that Hayes's statement was false, and that Hayes had never made anything in the way alleged. The witness, it will be observed, did not set up as a ground for his refusal that a disclosure of his alleged friend's name would criminate either the friend or himself. He simply declined to name him; and the court sustained the witness.

Now, while it is no doubt true, that when a witness is under cross-examination and the object of counsel is merely to test his accuracy, or his memory, or to impeach him by an exposure of his transactions outside of the case on trial, the whole control of the cross-examination rests with the judge who presides, and that the judge may either restrict the counsel or may throw the door wide open-the only limits being that the witness shall not be required to give evidence tending to prove himself guilty of a crime, and that he shall not be required to expose himself to a penalty or forfeiture-yet when the evidence in question is principal evidence, and is not collateral or irrelevant to the issue, the witness will not be excused from answering. And this is true even if it appear that the answer will tend to degrade him; a matter which, as we have said, was not here alleged.

Further. A witness having voluntarily and without objection testified to part of a transaction in such a manner as favorably to affect the case of one side, cannot afterwards object to tell the remainder of the story, when such remainder might afford an explanation or an answer to the part already told. And this is again true, even though telling the remainder will tend to convict the witness of a crime.

2. As to the additional instructions: While the first charge properly left to the jury the real question in the case-namely, whether the goods bought by Hayes in his own name were bought upon some secret trust for the benefit of Fuller-the additional instructions, or new charge, as it really was and might be better called, was calculated to lead the jury to throw out of account every consideration but the one, who bought the goods, and to give no weight to the facts, which tended to prove that there was a secret trust for Fuller.

The additional instructions or new charge, moreover, gave an unusual and a prejudicial prominence to the consideration that if Hayes wronged the government, or violated his official obligations, or procured an unfair advantage in his settlement with Fuller & Co., or McDonald & Fuller, this was not the case in which he was to be tried for such alleged misconduct, especially when the judge added, 'This is a simple question as to the ownership of the goods in controversy, and not as to other or outside questions.'

This was almost like directing a verdict for the plaintiffs.

Besides this, the additional instructions or new charge left out of view the consideration that the jury should consider the fact whether Hayes had the means to buy these goods and undertake this business, and that if he had not, the jury might properly infer that the business was Fuller's, and that Hayes was his secret agent.

The effect of the additional instructions or new charge, as a whole, was to obliterate what the circuit judge had said in the first charge.

1. As to the refusal of the court to make Hayes disclose the name of the third person, referred to as his friend; the exception to the ruling of the court on the evidence.

The examination in chief has no reference to this subject. Could not the other side, if desiring testimony de novo, have called the witness?

But, under any circumstances, can a witness be compelled to state a fact in order that the other side may contradict him? Moreover, an answer, if one had been given-and even if the information given by it had been followed out-that is to say, if the friend had been named, and even if that friend had said that he had never had any transactions with Hayes-would not have been relevant to the matter in issue:

1st. Because all transactions alleged with the friend were in 1866, more than three years before the purchase of these goods.

2d. Because the witness did not say that he had paid cash for the goods. On the contrary, it is part of the case that he did not pay cash for them, but that he bought them largely on credit. A man who buys largely on credit rarely has cash. Here the goods cost but about $24,000, and even that sum was not paid in cash. Nor indeed does it appear whether it has ever yet been paid at all.

Moreover, the matter whether the witness should answer rested with the judge. He did give a vast latitude to the cross-examination. He had a right to say where it should stop.

2. As to the additional instructions: These were but suppletory to the charge, which is admitted by the opposite side to have been right, and which still remained the principal and fundamental exposition of principles applicable to the case, and must have been so regarded by the jury.

The whole of the new instructions, when analyzed and abbreviated, is this:

1st. That if Hayes bought and shipped the goods in his own name, then prim a facie they are his, and the burden of proving a property interest in Fuller is on the defendants.

2d. That the alleged secret understanding between Hayes and Fuller, as to the ownership of the goods, cannot be established by the declarations of Fuller, made in the absence of Hayes, but that such declarations are competent against Hayes after the secret understanding is established by other testimony to the satisfaction of the jury.

3d. That the testimony as to how Hayes acquired his means, whether his exhibit to the merchants of his means was correct or not, whether he took an unfair advantage in his settlements with Fuller & Co., or McDonald & Fuller, is immaterial as to the ownership of the goods, but competent and proper to be considered by the jury as affecting the credibility of Hayes, and as tending to show what connection there was between Hayes and Fuller at the time of the transactions to which this testimony is directed.

What is there in any one of these charges that does not embrace a correct proposition of law?

Mr. Justice BRADLEY delivered the opinion of the court.

1. As to the exception to the ruling of the court on the admission of evidence in the case. The cross-examination of Hayes was very long, and took a wide range: much wider than is allowed in United States courts in the case of an ordinary witness, where the cross-examination is usually confined within the scope of the direct examination. But a greater latitude is undoubtedly allowable in the cross-examination of a party who places himself on the stand than in that of other witnesses. Still, where the cross-examination is directed to matters not inquired about in the principal examination, its course and extent is very largely subject to the control of the court in the exercise of a sound discretion; and the exercise of that discretion is not reviewable on a writ of error. That was precisely the case here. The witness, on his cross-examination, having stated that he was worth $45,000 at a period some four years prior to the purchase of the goods, was asked how he had acquired that sum. As to a portion of it he stated that he had advanced money to a friend to buy up government vouchers on speculation upon shares. Being asked to name this friend, he declined; and the court refused to compel him to disclose it. This refusal was excepted to. We think it was entirely in the discretion of the court to compel an answer or not. It was on a new matter first introduced on the cross-examination, and was in fact a cross-examination upon a cross-examination. If a court did not possess discretionary power to control such a course of examination, trials might be rendered interminable.

2. As to the exception to the additional instructions of the court. This presents a more serious question; and an examination of them leads us to the conviction that, taken as a whole, they were calculated to mislead the jury as to the character of the evidence necessary to make out the charge of fraud and to prove the issue on the part of the defendants.

To establish fraud, it is not necessary to prove it by direct and positive evidence. Circumstantial evidence is not only sufficient, but in most cases it is the only proof that can be adduced. It was not necessary in this case, for the defendants, in order to maintain the issue on their part, to prove by direct and positive evidence, that Fuller had a secret trust or property in the goods. It was sufficient if they proved such facts and circumstances tending to that conclusion as might reasonably induce the jury to believe that he had such trust or property. The sufficiency of such circumstantial evidence was not, in our judgment, properly presented to the jury; but, on the contrary, the manifest tendency of the charge was to give them the impression that evidence of a more positive and direct character was required. The court said: 'The possession of the goods by Hayes, the same having been bought and shipped solely in his name, throws upon the defendant the burden of proving that Fuller had a property interest therein, or was part owner thereof.' Whilst this may have been strictly true in a sense in which it might be understood by an educated lawyer, it did not express the whole truth in a form likely to be understood by the jury in such a complicated case as the one before them. 'Property interest' and 'ownership' are words of precise legal signification, and the jury might readily conclude that an interest or trust in the goods, by which Fuller was to receive or to participate in the profits, was not such property or ownership. And yet such an interest or trust would have been sufficient to sustain the charge made by the defendants, and to entitle them to a verdict.

The passage quoted is but one of several expressions contained in the charge, all tending to give the impression that a technical ownership or property in Fuller was necessary to be proved, in order to sustain the validity of the seizure of the goods under the attachment. A further specification is unnecessary.

It may be urged that the qualifications made in the original charge given to the jury before they were sent out, rendered further qualification unnecessary in the final charge now under consideration. On the contrary, it is a more just inference to suppose that the final charge was regarded by the jury as explanatory and corrective of the first. And as the point on which they were likely to have had difficulty and difference of opinion, would be the sufficiency of the circumstances proved, to make out the case of the defendants, a charge like that which was finally given, coming after their fruitless discussion, ignoring altogether the force of circumstantial evidence, and reiterating that the only issue was property or no property in Fuller, must have had a strong tendency to lead them to an entire disregard of such evidence.

We also think the judge erred in laying it down so absolutely as he did, that the defendants in proving a secret or other agreement or understanding between Hayes and Fuller as to the ownership of the goods, must first establish that fact independent of any declarations or statements by Fuller in the absence of Hayes. Any statements made by Fuller in the absence of Hayes, which were afterwards assented to by the latter, or which were a part of the res gestoe of the purchase of the goods, were competent evidence. For example, the statement of Fuller when commending Hayes to the vendors of the goods, that he was worth forty or fifty thousand dollars, if shown to be untrue, was very material evidence.

We also think the judge erred in instructing the jury that it was immaterial as to the ownership of the goods, how Hayes acquired his means, or whether his exhibit of his means was correct or not. Considering the connection between Hayes and Fuller, the fact that Fuller recommended Hayes as a purchaser of the goods, certified to his responsibility, indorsed his notes for a part of the purchase-money, and pledged his wife's securities as collateral to a portion thereof, an inquiry into Hayes's means at the time of the purchase, and the correctness of his exhibit, was competent and proper. The opposite idea proceeded from the view of the case before noticed, to wit, that the only legitimate inquiry was, as to the naked property of the goods. Whereas, the case really turned upon the ancillary question, whether Hayes and Fuller were engaged in a fraudulent scheme to procure goods in the name of Hayes, but for the secret benefit of Fuller.

VENIRE DE NOVO ORDERED.

Mr. Justice CLIFFORD dissented, on the first point, the exception to the ruling of the court on the admission of evidence.

title: Rea v. Missouri/Opinion of the Court


text: Talk:Rea v. Missouri/Opinion of the Court


text:
Eldred v. Bank

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

A statute of Michigan known as the Joint Debtor Act thus enacts:

'1. In actions against two or more persons, jointly indebted upon any joint obligation, contract, or liability, if the process issued against all of the defendants shall have been duly served upon either of them, the defendant so served shall answer to the plaintiff; and in such case the judgment, if rendered in favor of the plaintiff, shall be against all the defendants, in the same manner as if all had been served with process.

'2. Such judgment shall be conclusive evidence of the liability of the defendant who was served with process in the suit, or who appeared therein; but against every other defendant it shall be evidence only of the extent of the plaintiff's demand, after the liability of such defendant shall have been established by other evidence.'

This statute being in force, the Michigan Insurance Bank, on the 14th of August, 1861, sued Anson Eldred, Elisha Eldred, and Uri Balcom, trading as Eldreds & Balcom, in the court of Wayne County, Michigan, as indorsers on a promissory note for $4000. On the same day a writ of attachment was issued, and the sheriff returned to it that he had attached certain property, but that he was unable to find any of the defendants in his bailiwick. Publication-notice under the laws of Michigan was given, and thereupon the defendants' appearances were entered in the Common Rule Book by the attorney of the plaintiff, under the practice of Michigan, and a declaration, to which a copy of the note sued on was annexed, filed December the 16th, 1861. The defendant, Anson Eldred, filed a plea of non-assumpsit, with notice of setoff, December 27th, 1861, and demanded a trial.

On the 22d of April, 1862, as the record of the case stated, the cause came on to be heard, and the plea of the defendants theretofore pleaded by them was withdrawn, and the default of Elisha Eldred and Uri Balcom entered, and on the 10th day of May the said default was made absolute. On the 13th of May, the record continues:

'The plea of the defendant, Anson Eldred, heretofore pleaded by him, having been withdrawn, and the default of the defendants, Elisha Eldred and Uri Balcom, having been duly entered, and the same having become absolute, and the damages of the said plaintiff, on occasion of the premises, having been duly assessed at the sum of $4211 over and above their costs and charges by them about their suit in this behalf expended; therefore, it is considered that said plaintiffs do recover against said defendants their damages aforesaid, together with their costs aforesaid to be taxed, and that said plaintiff have execution therefor.'

In this state of things the bank brought this, the present suit, in the court below, on the same note against the same Anson Eldred, Elisha Eldred, and Uri Balcom. The declaration contained a special count on the note against the Eldreds and Balcom, as indorsers, and the common counts with a copy of the note annexed and notice that it would be given in evidence under them. Anson Eldred, who alone was served or appeared, pleaded the general issue; and the case came on for trial. The plaintiffs having offered the note sued upon, and proof tending to show presentment of it for payment, dishonor, and notice to the indorsers, and having rested their case, the defendant, who had given some proof tending to show a fraudulent alteration in the note, then offered in evidence the record of the above-mentioned suit on the same note in the Wayne County Court:

1st. As corroborative proof that the note was fraudulently made.

2d. As being a bar to recovery on this note in suit.

The plaintiffs' counsel objected to the records being received.

The bill of exceptions proceeded:

'The defendant's counsel, in answer to a question from either the court or counsel, admitted that the said suit was an attachment suit, and that there was no personal service of process on the defendant.'

The court after this overruled the plaintiff's objection and admitted the record in evidence. And, in charging the jury, refused to charge them-as the defendant asked that they should be charged-that the judgment was a bar to the action on the note now sued on.

Judgment having gone accordingly for the bank, Anson Eldred brought the case here on error; the error assigned being the refusal of the court to instruct the jury that the judgment was a bar.

In the case of Mason v. Eldred, this court announced its adherence to the general doctrine that when a judgment was recovered on a promissory note in a court of competent jurisdiction the original cause of action was merged in the judgement, and such a judgment was a bar to any future action on the note; but said that by the statute law of Michigan this effect was not given to the judgment as to parties to the note who were not served in the first suit nor had personally appeared.

In the case now before the court the question was whether, by the record of the suit in the Wayne County Court, Anson Eldred was before that court, in Michigan, when the judgment was rendered against all the defendants, so as to bind him personally as if he had been served with notice.

Mr. J. P. C. Cottrill (a brief of Mr. J. W. Cary being filed), for the plaintiff in error:

1. The appearance of Anson Eldred in the suit in the Wayne County Court, and his pleading to the merits, was equivalent to personal service of process, and gave to the Michigan court full jurisdiction of his person (which was all that was necessary to be acquired in order to render a valid judgment), as also of his cause. His subsequent withdrawal of his plea could not divest the court of the full jurisdiction that it had previously acquired.

2. The judgment afterwards obtained was admissible in evidence under the plea of the general issue, and was a bar to this, it being another suit on the same note there sued and recovered upon.

Mr. A. Finch, contra:

1. The only appearance entered by the defendant, in the Wayne County suit, was by the filing of a plea. The court, upon motion of the defendant's attorneys, permits the plea to be withdrawn. Is not that the same, in legal effect, as if the order had been that the defendant have leave to withdraw his appearance? There is no doubt that a court in which an action is pending has the right to permit a party to withdraw his appearance, and if the withdrawal is allowed, the order must be held conclusive until vacated or set aside by a proper proceeding. It cannot be reviewed in another and different action, in another court.

In Forbes v. Hyde, it appeared that an answer was inadvertently filed for all the defendants in the suit. The attorneys upon discovering the mistake made application to the court to withdraw the answer and file another, limiting their appearance to the defendants whom they represented and for whom they intended to answer. The motion was granted. In another action the record was offered in evidence. It was objected to on the ground that it appeared the court had never acquired jurisdiction of the person. The objection was overruled, and the record was admitted in evidence in the lower court. On error, it was held improperly admitted. The opinion says, as to the effect of the withdrawal of the answer:

'Upon the discovery of the mistake, upon application, and a proper showing promptly made to the court, and by order of the court, the mistake was corrected and the answer, and consequently the appearance involved in the filing, were withdrawn. After the correction of this mistake, ''the record, in legal contemplation, stood as though it had never occurred, and there can be no reasonable ground for holding that the court, after the answer was thus withdrawn, had jurisdiction, in consequence of the inadvertence. The plaintiff was in no way injured''. The way was open to him to proceed in the proper mode, as he had before commenced to do, to obtain jurisdiction, and he did proceed, in all respects, as though no answer had been filed.'

2. The statement of the counsel of the defendant at the time when he offered the copy of the record in evidence-and when the court made an inquiry of him whose obvious and sole purpose was to obtain a true and full knowledge of the nature of the record thus offered by him-that it was 'a suit commenced by an attachment, and that there was no personal service of process,' was a representation of such a character, and made under such circumstances, that to allow the defendant now to allege that the said record shows an appearance duly entered in the suit by the defendant, would be to impute a fraud by the learned counsel of the defendant upon the court below. It would be, in effect, permitting the defendant to allege, as a ground of reversal, a fact which he must have known was in the record when he offered it, and which fact he must have intentionally suppressed.

The defendant ought not to complain if the presiding judge assumed the record to be what his counsel represented it to be. His statement, indeed, could have left no other impression upon the judge than that it was a record affecting only the property attached, and not creating any personal liability on Anson Eldred or in any way binding on him. It is certain that the presiding judge, and the counsel for the plaintiff, were led by the statement of the counsel to believe that this was the fact. Now, the rule of law is well settled that solemn admissions made by counsel in the progress of a trial conclude the party making them.

Mr. Justice MILLER delivered the opinion of the court.

title: Eldred v. Bank


text: Talk:Eldred v. Bank

title: Talk:Eldred v. Bank


text:
Eldred v. Bank/Opinion of the Court

It is argued by the counsel of the defendant in error that the withdrawal of the plea of Anson Eldred left the case as to him as though he had never filed the plea, and that never having been served with process he was not liable to the personal judgment of the court.

We do not agree to this proposition. The filing of the plea was both an appearance and a defence. The case stood for the time between one term and another with an appearance and a plea. The withdrawal of the plea could not have the effect of withdrawing the appearance of the defendant, and requiring the plaintiff to take steps to bring that defendant again within the jurisdiction of the court. Having withdrawn that plea he was in condition to demur, to move to dismiss the suit if any reason for that could be found, or to file a new and different plea if he chose, either with the other defendants jointly, or for himself. He was not, by the withdrawal of the plea, out of court. Such a doctrine would be very mischievous in cases where, as it is very often, the first and only evidence of the appearance of a party is the filing of his plea, answer, or demurrer. The case might rest on this for a long period before it was ready for trial, when, if the party could obtain leave of the court to withdraw his plea (a leave generally granted without objection), he could thereby withdraw his appearance, the plaintiff is left to begin de novo.

We are of opinion that the record of the suit in Michigan shows a valid personal judgment against Anson Eldred, and that that judgment was a bar to recovery in the present suit.

But it is further urged that the present judgment should not be reversed because the court was prevented from giving the instructions asked by defendant's counsel by being misled by that counsel as to the character of the judgment. The bill of exceptions, immediately after what is said about the purposes for which the transcript of the judgment was offered, proceeds as follows: 'The defendant's counsel, in answer to a question from either the court or counsel, admitted that said suit was an attachment suit, and that there was no personal service of process on defendant.'

It is argued that this was equivalent to a declaration that it was rendered without notice or personal appearance. This impression may have been produced on the opposite counsel and the court may have shared in it. But it is very clear that it was not so equivalent, and that what he said was perfectly consistent with what is now found to be in that transcript, namely, the appearance of defendant and a valid personal judgment against him. Many attachment suits are accompanied by the appearance of defendant in the progress of the suit, though not served with process or notice.

Besides, the counsel for defendant had stated that he offered it as a bar, and both counsel and court had their attention turned to the fact that it could be no bar without serive or appearance; and after all this was over and the record admitted he asked the court for the instruction which was refused and which could only be founded on the idea that it was valid as a personal judgment. The record was open to inspection of counsel opposed, and it would be a very dangerous practice to hold, under these circumstances, that counsel had intentionally misled his opponent and the court in this matter.

There seems to be an entire absence of motive to deceive the court or counsel. What was said was at the time the record was offered in evidence as a bar. To show that it was a valid personal judgment was to secure its admission, while to show it was not was to render its admission doubtful.

So, in regard to the instruction, there could be no object in misleading the court other than to have a judgment rendered against his client that he might have the satisfaction of reversing it, a motive hardly to be imputed to counsel in this court. It seems much more reasonable to infer that counsel doubted whether the withdrawal of the plea did not withdraw the appearance of defendant, and, therefore, did not say anything on that point.

We do not think that under these circumstances we can permit a judgment to stand, manifestly erroneous, where there is a complete bar found to it in the record, when the effect would be to close to defendant entirely this defence, while to reverse it would only leave the other party where he would be had nothing been said.

He has not been injured by the statement of the opposing counsel. Shall he profit by it to the extent of having an erroneous judgment confirmed?

JUDGMENT REVERSED, but without costs to either party in this court, and a new trial granted in the Circuit Court.

title: Eldred v. Bank/Opinion of the Court


text: Talk:Eldred v. Bank/Opinion of the Court


text:
Page:Triangles of life, and other stories.djvu/29

Rh And there was one little man with a smile in England who never talked of Australia.

In 1901 Robert Cleaves went to London with great hopes—and deep fears—as a writer, and struck a period of "mental dismay," as I heard it called by another who went to London with great hopes as a young poet, and came back grey. But it was more than "mental dismay" with Bob, it was mental horror—or horrors—most of the time, for he had heavy private trouble on him, and no funds, relatives or friends. In the lowest depth of the dismay, and on the verge of rags and starvation, he thought of "Shawlton" and "God Forgive Billy."


text:
Union Pacific Railroad Company v. Fort

ERROR to the Circuit Court for the District of Nebraska.

Fort brought a suit in the court below to recover damages for an injury to his son, aged sixteen years, resulting in the loss of an arm, while in the employment of the Union Pacific Railroad Company. The boy was employed in the machine shop of the company as a workman or helper, under the superintendence and control of one Collett, and had been chiefly engaged in receiving and putting away mouldings as they came from a moulding machine. After the service had been continued for a few months the boy, by the order of Collett, ascended a ladder, resting on a shaft, to a great height from the floor, among dangerous machinery, revolving at the rate of 175 to 200 revolutions per minute, for the purpose of adjusting a belt by which a portion of the machinery was moved, and which had got out of place. While engaged in the endeavor to execute the order his arm was caught in the rapidly revolving machinery and torn from his body. The jury, by a special verdict, found that he had been engaged to serve under Collett as a workman or helper, and was required to obey his orders; that the order by Collett to the boy (in carrying out which he lost his arm) was not within the scope of his duty and employment, but was within that of Collett's; that the order was not a reasonable one; that its execution was attended with hazard to life or limb, and that a prudent man would not have ordered the boy to execute it.

The circuit judge (DILLON, J.), in charging the jury, after conceding, in accordance with requests of the railroad company, that it was a rule settled, at least by precedent, that a master is not liable to one of his servants for injuries resulting from the carelessness of a fellow-servant, said:

'In deciding this case you should determine the nature of the employment on which the plaintiff engaged that his son should serve. If you find that his contract of service or the duties which he engaged to perform were such that it was within the contract or within the scope of those duties that the son should assist in the repair of the machinery in question, and that the son when injured was in the discharge of a duty or service covered by the contract of employment, then the company is not liable for the negligence of Collett (if he was negligent) with respect to ordering the son to ascend the ladder and hold the belt away from the shaft. [But I draw this distinction; if the work which the son was ordered by Collett to do, was not within the contract of service, was not one of the duties which fell within the contract of employment, but was outside of it, then Collett, in ordering the service in question (if he was in the scope and course of his duties and power at the time) must, as to this act, be taken to represent the company (which is presumed to be constructively present); and if that act was wrongful and negligent, as hereinafter defined, the company, his employer, would be liable for the damages caused by such negligent and wrongful act; and the principle, that the master is not liable for the neglect of a co-employ e in the same service, has no application, or no just application to such a case; for in such a case they are not, in my judgment, in any proper sense 'fellow-servants in the same common service.']'

To the part of the instructions included in brackets, the defendants excepted; and the jury having found for the plaintiff, and judgment being entered accordingly, the case was now here on the exception.

Mr. C. P. James (a brief of Mr. A. J. Poppleton being filed), for the plaintiff in error:

The rule is, in the absence of statutory enactment, settled both in England and in this country, that, with certain exceptions which it was not pretended applied to this case, the master is not liable to his servant for injuries accruing to him by reason of the negligence of a fellow-servant engaged in a common employment.

The court, in instructing the jury, not denying the rule to be settled as above stated, sought to incorporate into it an exception, which is believed to be without any precedent whatever, and in conflict with certain established principles regulating the relation in question.

If the service during which the accident happened was without the scope of the boy's duty and employment, then the boy, when directed by Collett, was at liberty to refuse to obey. In obeying he was in the position of a mere volunteer; in the position of a bystander who should assist at the request of the company's servant. Now a volunteer, assisting at the request of the master's servant, assumes the character of a fellow-servant, and the master is not liable for injury arising from negligence of fellow-servants. It makes no difference that plaintiff's son was a minor, sixteen years of age.

It was error to instruct the jury that if the work which the son was ordered by Collett to do, was not within the contract of service, but was outside of it, then Collett, in ordering the service in question (if he was within the scope and course of his duties and powers at the time) must, as to this act, be taken to represent the company (which is presumed to be constructively present).

Collett was clothed with no discretion in hiring, discharging, or assigning to duty. He was a mere superintendent of a particular kind of work and machinery, hired and assigned to his duty as the boy was. He could not, therefore, in any sense, be said to represent the company as constructively present. The case of Murphy v. Smith decides the question. The defendant there was the proprietor of a match manufactory. One Simlack was superintendent or manager. Under him was Debor, a workman who, in Simlack's absence, managed the establishment. The plaintiff, one Murphy, a boy of tender years, had been hired by Simlack, and was set to stir a compound-liable to explosion when not skilfully done-with a stick, and in the presence of Debor, whose duty it was to mix the compound, which exploded.

The court submitted to the jury whether the accident was caused by the negligence of Debor, and whether he was at the time acting as manager of the establishment. The jury answered both questions in the affirmative. The court, in its opinion, says, 'that the accident was the result of Debor's negligence, and that he is not shown to have filled any other position in relation to the plaintiff than that of a fellow-workman.'

Messrs. J. I. Redick and Clinton Briggs, contra.

Mr. Justice DAVIS delivered the opinion of the court.

title: Union Pacific Railroad Company v. Fort


text: Talk:Union Pacific Railroad Company v. Fort


text:
Union Pacific Railroad Company v. Fort/Opinion of the Court

It was assumed on behalf of the plaintiff in error, on the argument of this cause, that the master is not liable to one of his servants for injuries, resulting from the carelessness of another, when both are engaged in a common service, although the injured person was under the control and direction of the servant who caused the injury. Whether this proposition, as stated, be true or not, we do not propose to consider, because, if true, it has no application to this case.

It is apparent, from the findings in the present suit, if the rule of the master's exemption from liability for the negligent conduct of a coemploy e in the same service be as broad as is contended for by the plaintiff in error, that it does not apply to such a case as this. This rule proceeds on the theory that the employ e, in entering the service of the principal, is presumed to take upon himself the risks incident to the undertaking, among which are to be counted the negligence of fellow servants in the same employment, and that considerations of public policy require the enforcement of the rule. But this presumption cannot arise where the risk is not within the contract of service, and the servant had no reason to believe he would have to encounter it. If it were otherwise principals would be released from all obligations to make reparation to an employ e in a subordinate position for any injury caused by the wrongful conduct of the person placed over him, whether they were fellowservants in the same common service or not. Such a doctrine would be subversive of all just ideas of the obligations arising out of the contract of service, and withdraw all protection from the subordinate employees of railroad corporations. These corporations, instead of being required to conduct their business so as not to endanger life, would, so far as this class of persons were concerned, be relieved of all pecuniary responsibility in case they failed to do it. A doctrine that leads to such results is unsupported by reason and cannot receive our sanction.

The injury in this case did not occur while the boy was doing what his father engaged he should do. On the contrary, he was at the time employed in a service outside the contract and wholly disconnected with it. To work as a helper at a moulding machine, or a common work-hand on the floor of the shop, is a very different thing from ascending a ladder resting on a shaft, to adjust displaced machinery, when the shaft was revolving at the rate of 175 to 200 revolutions per minute. The father had the right to presume when he made the contract of service that the company would not expose his son to such a peril. Indeed, it is not possible to conceive that the contract would have been made at all if the father had supposed that his son would have been ordered to do so hazardous a thing. If the order had been given to a person of mature years, who had not engaged to do such work, although enjoined to obey the directions of his superior, it might with some plausibility be argued that he should have disobeyed it, as he must have known that its execution was attended with danger. Or, at any rate, if he chose to obey, that he took upon himself the risks incident to the service. But this boy occupied a very different position. How could he be expected to know the peril of the undertaking? He was a mere youth, without experience, and not familiar with machinery. Not being able to judge for himself he had a right to rely on the judgment of Collett, and, doubtless, entered upon the execution of the order without apprehension of danger. Be this as it may, it was a wrongful act on the part of Collett to order a boy of his age and inexperience to do a thing which, in its very nature, was perilous, and which any man of ordinary sagacity would know to be so. Indeed, it is very difficult to reconcile the conduct of Collett with that of a prudent man, having proper regard to the responsibilities of his own position and the rights of others. It is charitable to suppose that he did not appreciate the danger and acted without due deliberation and caution. For the consequences of this hasty action the company are liable, either upon the maxim of respondeat superior, or upon the obligations arising out of the contract of service. The order of Collett was their order. They cannot escape responsibility on the plea that he should not have given it. Having intrusted to him the care and management of the machinery, and in so doing made it his rightful duty to adjust it when displaced, and having placed the boy under him with directions to obey him, they must pay the penalty for the tortious act he committed in the course of the employment. If they are not insurers of the lives and limbs of their employees, they do impliedly engage that they will not expose them to the hazard of losing their lives, or suffering great bodily harm, when it is neither reasonable nor necessary to do so. The very able judge who tried the case instructed the jury on the point at issue in conformity with these views, and we see no error in the record.

JUDGMENT AFFIRMED.

Dissenting, Mr. Justice BRADLEY.

[See Packet Company v. McCue, supra, p. 508.]


text: Talk:Union Pacific Railroad Company v. Fort/Opinion of the Court


text:
Chicago and Northwestern Railroad Company v. Fuller

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

A statute of Iowa 'in relation to the duties of railroad companies,' passed in 1862, thus enacts:

'In the month of September, annually, each railroad company shall fix its rates of fare for passengers, and freights for transportation of timber, wood, and coal, per ton, cord, or thousand feet, per mile, also, its fare and freight per mile, for transporting merchandise and articles of the first, second, third, and fourth grades of freight.

'And on the 1st day of October following, shall put up at all the stations and depots on its road, a printed copy of such fare and freight, and cause a copy to remain posted during the year.

'For wilfully neglecting so to do, or for receiving higher rates of fares or freight than those posted, the company shall forfeit not less than $100, nor more than $200, to any person injured thereby and suing therefor.'

On the 15th of June, 1866, Congress passed an act thus:

'An Act to facilitate Commercial, Postal, and Military Communication among the several States.

'Whereas, the Constitution of the United States confers upon Congress, in express terms, the power to regulate commerce among the several States, to establish post-roads and to raise and support armies; therefore--

'SECTION 1. Be it enacted, That every railroad company in the United States, whose road is operated by steam, its successors and assigns, be and is hereby authorized to carry upon and over its road, boats, bridges, and ferries, all passengers, troops, government supplies, mails, freight, and property on their way from any State to another State, and to receive compensation therefor. . . . Provided, &c.

'SECTION 2. Be it further enacted, That Congress may at any time, alter, amend, or repeal this act.'

These two enactments, of the State and of the United States, being on the statute-books, the Chicago and Northwestern Railroad Company-a corporation chartered by Illinois and having its principal place of business at Chicago in that State, and working a continuous line of railway from the said Chicago, through Illinois, Iowa, and other States (by the legislatures of which, of course, the different parts of its road were authorized),-having posted their rates of freight and put up a schedule of them in their office, in the station, was transporting, in pursuance of the request of one Fuller, certain goods of his from the said Chicago in Illinois to a place called Marshalltown, in Iowa. Having charged and received from Fuller, as he alleged, a higher rate of freight than that posted, Fuller sued them in one of the District Courts of Iowa to recover the penalty which the Iowa enactment purported to give in such a case. The company set up, among other defences, that the said enactment was in violation of that clause of the Constitution which ordains that—

'Congress shall have power to regulate commerce with foreign nations and among the several States.'

The court in which the suit was brought and the Supreme Court of the State on appeal from it, held that the enactment of Iowa was but a 'police regulation,' and accordingly that it was valid. Judgment going accordingly the case was now brought here.

Messrs. H. C. Henderson and B. C. Cook, for the plaintiff in error:

Whether, if the United States had not legislated upon the matter of 'compensation' to railroad companies carrying 'freight and property on their way from any State to another State,' the enactment of Iowa would be good as falling within the language of cases like Ex parte McNiel, 4 Willson v. The Blackbird Creek Marsh Company, Gilman v. The City of Philadelphia, and others-in which it is said that the States may legislate but only until Congress sees fit to do so-it is wholly irrelative to the present case to inquire. For here Congress by its act of June 15th, 1866, has legislated. And there was great reason (it may be said incidentally) why at that time Congress should legislate. Then for the first time our railways were about to cross the Rocky Mountains, to span the continent, and unite oceans. The subject had now become one of National importance. Congress, aroused by the vastness of this enterprise, saw the subject in its true relations, commercial, postal, and military; and accordingly it meant to take and did take the whole subject under its care, for the protection and benefit of all the people of the United States. The act itself shows all this. Its title is to 'facilitate commercial intercourse. . . among the several States.' Its preamble recites that the Constitution of the United States confers upon it (Congress), in express terms, the power to regulate commerce between them, and, 'therefore,' it enacts. Therefore it makes one unconditional provision about compensation to railroads carrying freight or property on its way, by steam and rail, 'from any State to another State;' and there too it stops. Has not Congress then 'regulated' the subject? If so, the right of the States by any view to do the same thing has ceased. It is unimportant that Congress while acting has not seen fit in its regulations to go into a great variety of details. Regulation does not necessarily consist in prescribing details, though when they are prescribed that too is 'regulation;' perhaps not wise regulation. What, however, is wise regulation and what unwise, Congress must when acting on the subject alone decide, and it has decided. The right of the State to regulate at all has, therefore, ceased. Yet here the State does attempt to regulate, and not only so but to regulate in opposition to Congress. Congress gives to the railroad company the right 'to carry,' and to receive compensation 'therefor;' that is to say, it gives to the company the right to receive compensation for carrying, simply. The company is not bound, 'in the month of September,' to fix 'rates' or 'freights,' or 'on the 1st day of October following,' to 'put up at all the stations and depots on its road a printed copy of such fare and freights;' and by the legislation of Congress no one can sue the company and recover any $100 or any $200 penalty for its 'wilfully neglecting so to do.' Congress leaves all this matter of fixing rates, and of announcing them, &c., to the agreement of the parties, and the laws of trade; and would refer any party aggrieved by a breach of contract to the ordinary remedies of justice. But the State comes in, and that very part of the subject which Congress has regulated, and regulated in one way, it attempts to regulate, and to regulate in a different way; a way which does not 'facilitate commercial intercourse among the several States,' but which rather embarrasses it by exposing the companies to the vexation and odium of continual suits for penalties.

Further. As if to withdraw the whole matter in terms. from being interfered with by State legislation, the act of the National legislature says expressly:

'That Congress may at any time alter, amend, or repeal this act.'

The court below considered that the action of the State was no regulation of commerce, and only a 'police regulation.' What is police? Sir William Blackstone has defined it in his Commentaries. He says:

'By the public police and economy, I mean the due regulation and domestic order of the kingdom, whereby the individuals of the state, like the members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood, and good manners, and to be decent, industrious, and inoffensive.'

Police regulations are in their very nature local, confined to the States enacting them, and can have no force or operation beyond those things which are purely internal to such State. If they extend to or affect a commercial transaction between two or more States, or the citizens of two or more States, they so far cease to be police regulations and become regulations of commerce among the several States.

Now, this enactment was not local. If applicable to the case at bar as the court below held it to be,-since it gave judgment for an overcharge on the whole carriage from Chicago, in Illinois, to Marshalltown in Iowa,-the enactment applies as much to the whole road of the company as to any part of it; to that part of it in Illinois and other States as well as to that in Iowa, and to the freight or compensation earned in another State as to that earned in Iowa.

Messrs. J. Hubley Ashton and N. Wilson, contra:

Admitting that the transportation of property by railroads is 'commerce,' does the enactment of Iowa attempt to regulate it? In no sense does it interfere with the business of the roads. It places no restriction or impediment upon the free transportation by them of either property or persons. The times and places when and where they should receive and deliver whatever they transport is not interfered with. The terms, conditions, and circumstances under which they shall transact their business are in no manner provided for. In short, transportation upon these roads is just as free, just as untrammelled, as it was before the act. The transportation itself by these roads is in no sense regulated. The regulations of the act extend to the prevention of abuses, injustice, and oppression toward the people, resulting from the unfair and unlawful practices of the agents and officers of the corporation or of the corporations themselves. It is intended simply for the protection of the people of the State, and in its practical operation has no other effect. In this view it is, as the court below held it to be, a police regulation, and within the scope of the authority of the State government. If the State may rightfully prevent, by fit legislation, railroad corporations from destroying the property of its citizens through the negligent acts of their servants, and provide penalties to be imposed for such acts, may it not interpose its authority to protect the people from greater losses by fraudulent and unfair dealings of such servants, or of the corporations themselves? If the most insignificant municipality within the State through which a railroad runs may prescribe the rate of speed to be run by the cars of the corporation engaged in the business of transportation, in 'commerce,' for the purpose of protecting the property or persons of its citizens, may not the State so legislate as to prevent fraud and impositions by the corporation or its servants? It would be strange if the State, to whom the people look for the protection of their private rights and the security of property, is powerless, as against these corporations, that own their very being to charters derived from State legislation, to prevent loss and injury to its citizens by fraudulent and unfair dealing.

Police regulations, while they may even affect commerce and operate upon those engaged therein, are not obnoxious to the Constitution of the United States. Quarantine and health laws, under which vessels engaged in commerce may be delayed for weeks in completing their voyages, or cargoes may be seized and destroyed, and sailors and soldiers of the United States imprisoned and punished for their violation, are constitutional. This court has very recently said, that it is not everything that affects commerce that amounts to a regulation of it within the meaning of the Constitution.

Mr. Justice SWAYNE delivered the opinion of the court.


text: Talk:Chicago and Northwestern Railroad Company v. Fuller