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Page:Dictionary of National Biography volume 42.djvu/132

 O'Leary was by far the most brilliant and popular writer on the catholic side; 'but, though his devotion to his creed was incontestable, it would be hardly possible to find a writer of his profession who exhibits its distinctive doctrines in a more subdued and attenuated form, and no one appears to have found anything strange or equivocal in the curiously characteristic sentence in which Grattan described his merits: "If I did not know him to be a Christian gentleman, I should suppose him by his writings to be a philosopher of the Augustan age' (Hist. of England, vi. 440). Mr. Froude considers that O'Leary was 'the most plausible, and, perhaps, essentially the falsest, of all Irish writers' (The English in Ireland, ii. 37 n.) A collected edition of his works, edited by 'a clergyman of Massachusetts,' appeared at Boston in 1868, 8vo.

There is a portrait prefixed to England's biography, 'engraved by W. Bond from the scarce print, after a drawing by Murphy' (, Cat. of Engraved Portraits, p. 364). Another portrait, engraved by T. H. Ellis from a painting by E. Shiel, is prefixed to Buckley's 'Life.'

 O'LEARY, ELLEN (1831–1889), Irish poetess, and an active participator in the fenian movement in Ireland, was born in 1831 in the town of Tipperary. Her father was a shopkeeper. Miss O'Leary contributed verse to various Irish journals from an early age; but after her brother had accepted the invitation of James Stephens, 'chief organiser of the Irish republic,' to take charge of the 'Irish People,' which was established in November 1863, she wrote exclusively for that journal, and soon became a distinguished member of the band of poets whose gifts the fenians, in imitation of the Young Irelanders of twenty years earlier, employed in spreading their opinions. The 'Irish People' was seized by the government on 15 Sept. 1865; its editor, John O'Leary, and other leaders of the movement were arrested, and Stephens, who escaped, and was in hiding at Sandymount, near Dublin, employed Miss O'Leary to carry messages between Sandymount and Dublin, and to aid him generally in directing the affairs of the fenian organisation. Stephens was arrested at Sandymount on 11 Nov. 1805, but on the 24th he escaped from Richmond prison. A sum of 200l. was raised by Miss O Leary on a mortgage on her property to aid the fenian leader in getting out of the kingdom.

After the collapse of the fenian movement Miss O'Leary went to her home in Tipperary, and lived there in retirement, devoting herself to literature, till 1885. She then rejoined her brother John, who, after being imprisoned for five years and exiled for fifteen, had in that year returned to Ireland. She died on 16 Oct. 1889 at Cork.

A selection of her poems, entitled 'Lays of Country, Home, and Friends,' was published in Dublin in 1891. It contains a biographical sketch by Mr. T. W. Rolleston, and an appreciative criticism of Miss O'Leary's poems by Sir Charles Gavan Duffy, which had first appeared in the 'Dublin University Review,' in December 1886, under the title 'A Celtic Singer.' Miss O'Leary's songs are sweet and simple lays, couched in the natural colloquial language of the Irish peasant.

 O'LEARY, JOSEPH (d. 1845?), songwriter and journalist, was born in Cork about 1795. In youth he joined a company of strolling players, but his theatrical experience was short, as the manager wras insolvent. About 1818 he commenced to write for the Cork papers — notably, the 'Freeholder,' a scurrilous sheet which was edited by John Boyle, and lasted till 1842. O'Leary's contributions were considered very powerful, and it was in its columns his famous Bacchanalian song, 'Whiskey, drink divine,' appeared.


text: Talk:Movius v. Arthur

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

title: Talk:Movius v. Arthur


text:
Movius v. Arthur/Opinion of the Court

The question in this case arises upon the construction of the revenue acts of the United States, there being no disputed questions of fact.

By the twentieth section of the act of March 2, 1861, 12 Stat. 189, it is enacted as follows:-

'From and after the day and year aforesaid there shall be levied, collected, and paid a duty of twenty per cent on the importation of the articles hereinafter mentioned and embraced in this section; that is to say,. . . leather tanned, bend or sole, leather upper, of all kinds except tanned calf-skins, which shall pay twenty-five per cent ad valorem,. . . skins tanned and dressed of all kinds.'

'SECT. 22. From and after the day and year aforesaid there shall be levied, collected, and paid a duty of thirty per cent on the importation of the articles hereinafter mentioned and embraced in this section; that is to say, japanned, patent, or enamelled leather or skins of all kinds,. . . manufactures and articles of leather, or of which leather shall be a component part, not otherwise provided for.'

By the act of Aug. 5, 1861, sect. 2, id. 293, it is enacted:

'From and after the day and year aforesaid there shall be levied, collected, and paid on the importation of the articles hereinafter mentioned the following duties; that is to say,. . . on sole and bend leather, thirty per cent ad valorem.'

By the thirteenth section of the act of July 14, 1862, id. 555-557, it is enacted:--

'From and after the day and year aforesaid, in addition to the duties heretofore imposed by law on the articles hereinafter mentioned, there shall be levied, collected, and paid on the goods, wares, and merchandise enumerated and provided for in this section, imported from foreign countries, a duty of five per cent ad valorem.

'Japanned, patent, or enamelled leather or skins of all kinds.

'Leather tanned of all descriptions.

'Manufactures and articles of leather, or of which leather shall be a component part, not otherwise provided for.

'Morocco skins.' By the act of June 6, 1872, 17 id. 230, it is provided as follows:--

'SECT. 1. On and after the first day of August, 1872, in lieu of the duties heretofore imposed by law on the articles hereinafter enumerated or provided for, imported from foreign countries, there shall be levied, collected, and paid the following duties and rates of duties; that is to say,--

'On bend or belting leather, and on Spanish or other sole leather, fifteen per cent % ad valorem''. On calf-skins, tanned or tanned and dressed, twenty-five per cent ad valorem. On upper leather of all other kinds, and on skins dressed and finished, of all kinds not herein otherwise provided for, twenty per cent ad valorem. On all skins for morocco, tanned but unfinished, ten per cent'' ad valorem.

'SECT. 2. On and after the first day of August, 1872, in lieu of the duties imposed by law on the articles in this section enumerated, there shall be levied, collected, and paid on the goods, wares, and merchandise in this section enumerated and provided for, imported from foreign countries, ninety per cent of the several duties and rates of duty now imposed by law upon said articles severally, it being the intent of this section to reduce existing duties on said articles ten per cent of such duties; that is to say,. . . on all leather not herein otherwise provided for, and on all manufactures of skin, bone, ivory, horn, and leather, except gloves and mittens, and of which either of said articles is the component part of chief value.'

The plaintiff in error contends that the words 'skins dressed and finished, of all kinds not herein otherwise provided for,' in the act of 1872, repeals the provision imposing duties on 'japanned, patent, or enamelled leather or skins,' in the acts of 1861 and 1862. The collector of the port of New York held otherwise, and compelled him to pay duties according to the provisions of the latter acts. He made such payment under protest, and in this action seeks to recover from the collector the sums thus required to be paid.

It is a general rule, in the construction of revenue statutes, that specific provisions for duties on a particular article are not repealed or affected by the general words of a subsequent statute, although the language is sufficiently broad to cover the article first mentioned.

Thus, an act of 1861, which exempted from duty singing-birds, land and water fowls, was held not to be repealed by an act imposing a duty of twenty per cent 'on all horses, sheep, and other live animals.' Reiche v. Smythe, 13 Wall. 162.

So, in Homer v. The Collector, 1 id. 486, where a specific duty was imposed upon almonds, eo nomine, it was held that almonds were not included within the general terms of a subsequent statute providing a duty on dried fruit, although, in popular language, almonds came within the description.

Patent leather, no doubt, is finished skin; but every finished skin is not patent leather. When a calf-skin is tanned and dressed, that is, softened by the application of some lubricating substance, shaven or cleaned, and then blacked, it is said to be finished. To make it patent leather, it requires another process; to wit, that of varnishing. While all patent leathers are finished skins, it is quite clear that all finished skins are not patent leather. This was no doubt well known to the Congress passing the laws we have quoted, and we can hardly suppose that they meant to include the particular subjects under the general designation.

The expression 'not herein otherwise provided for,' in the act of 1872, means provided for by the act in which the words occur, and not by some previous act. Smythe v. Fiske, 23 id. 374.

We find, in examining the statutes imposing duties on foreign importations, that, generally, the highest duty is imposed on the most expensive articles of the same class, and that articles of luxury are taxed higher than those of necessity. In regard to the particular article of japanned leather, strictly an article of luxury, used by the rich only, we find that Congress has usually imposed upon it a higher duty than it has imposed on ordinary leather, an article of strict necessity for the purpose of clothing, and of almost equal necessity in the mechanic arts. It was only during the years of the war, 1861 and 1862, that, for some temporary purpose, this rule was suspended. The following is an illustration:-- Sole leather............................. 30 per cent p. 189.

Upper leather............................ 20 "  "   "

Calf-skin................................ 25 "  "   "

Patent leather........................... 30 "  "  p. 192.

Act of 1861, id. 292.

Sole leather............................. 30 per  cent,  p. 293.

Upper leather............................ 20 "  "  p. 189.

Calf-skins............................... 25 "  "   "

Patent leather........................... 30 "  "  p. 192.

Act of 1862, id. 543.

Sole leather............................. 35 per  cent,  p. 556.

Upper leather............................ 25 "  "   "

Calf-skins............................... 30 "  "   "

Patent leather........................... 35 "  "   "

The act of 1872 under consideration. As construed by the

Sole leather............................. 15 per  cent.

Upper leather............................ 20 "  "

Calf-skins............................... 25 "  "

Patent leather........................... 31 1/2 " "

Revised Statutes, p. 481.

Sole leather............................. 15 per  cent.

Upper leather............................ 20 "  "

Calf-skins............................... 25 "  "

Patent leather........................... 35 "  "

The course of legislation is in harmony with the construction of the collector, while it is quite at variance with that of the plaintiff. The plaintiff's construction imposes a duty of twenty-five per cent on calf-skins simply, and only twenty per cent on the more elaborate and expensive article of patent leather, while that of the collector taxes calf-skins twenty-five per cent, and patent leather thirty-one and a half per cent.

The plaintiff insists further, that all finished skins are dutiable under the act of 1872, and that, as patent leathers are not there named specifically, they are dutiable as 'finished skins.' This is the question already examined, and we are of the opinion that, as patent leather had been previously specifically provided for, such duty was not intended to be altered by the general words of the act of 1872. The ruling of the circuit judge upon this principle was sound, and the judgment rendered in conformity therewith must be affirmed; and it is

title: Movius v. Arthur/Opinion of the Court


text: Talk:Movius v. Arthur/Opinion of the Court


text:
Knote v. United States

APPEAL from the Court of Claims.

The petition of the claimant alleged that he was the owner of certain described personal property in West Virginia, which was seized and libelled by the authorities of the United States on the alleged ground of his treason and rebellion; that, by a decree of the District Court for that district, the property was condemned and forfeited to the United States, and sold; and the net proceeds of the sale, amounting to the sum of $11,000, were paid into the treasury of the United States, the proceedings for its condemnation and sale having been taken under the confiscation act of July 17, 1862; that subsequently, by virtue of the amnesty proclamation of the President, of Dec. 25, 1868, the claimant was pardoned and relieved of all disabilities and penalties attaching to the offence of treason and rebellion, for which his property was confiscated, and was restored to all his rights, privileges, and immunities under the Constitution and the laws made in pursuance thereof, and thus became entitled to receive the said proceeds of sale; but that the United States, disregarding his rights in the premises, had refused to pay them over to him, and therefore he prayed judgment against them. Upon demurrer for insufficiency of the facts thus alleged to constitute a cause of action the petition was dismissed, and hence the present appeal.

The proclamation of President Johnson relied upon is in the following words:--

'Whereas the President of the United States has heretofore set forth several proclamations offering amnesty and pardon to persons who had been or were concerned in the late rebellion against the lawful authority of the government, which proclamations were severally issued on the eighth day of December, 1863, on the twenty-sixth day of March, 1864, on the ttwenty-ninth day of March, 1865, on the seventh day of September, 1867, and on the fourth day of July, in the present year.

'And whereas the authority of the Federal government having been re-established in all the States and Territories within the jurisdiction of the United States, it is believed that such prudential reservations and exceptions, as at the dates of said several proclamations, were deemed necessary and proper, may now be wisely and justly relinquished, and that a universal amnesty and pardon for participation in said rebellion, extended to all who have borne any part therein, will tend to secure permanent peace, order, and prosperity throughout the land, and to renew and fully secure confidence and fraternal feeling among the whole people, and their respect for and attachment to the national government designed by its patriotic founders for the general good.

'Now, therefore, be it known that I, Andrew Johnson, President of the United States, by virtue of the power and authority in me vested by the Constitution, and in the name of the sovereign people of the United States, do hereby proclaim and declare unconditionally, and without reservation, to all and to every person who directly or indirectly participated in the late insurrection or rebellion, a full pardon and amnesty for the offence of treason against the United States, or of adhering to their enemies during the late civil war, with restoration of all rights, privileges, and immunities under the Constitution and the laws which have been made in pursuance thereof.' 15 Stat. 711.

Mr. Thomas Jesup Miller, and Mr. Linden Kent, for the appellant.

As to offences against the United States, the pardoning power of the President is unlimited, except in cases of impeachment. Const. U.S., art. 2, sect. 2; Ex parte Wells, 18 How. 307; Ex parte Garland, 4 Wall. 333.

The pardon relied on here is in general terms, and its meaning and intent are clear beyond cavil. Even if it were ambiguous, it is to be construed most beneficially to the parties who claim its benefits. 4 Bl. Com. 401; Wywill's Case, 5 Co. 49; United States v. Klein, 13 Wall. 128.

In England, a restoration of forfeited estates, if they have not inured to the benefit of some third person, is inherently incident to a full and complete pardon. 3 Coke, Inst. 233; 4 Bl. Com. 402; 1 Russell, Crimes, 175; 3 id. 621; Bac. Abr., tit. Pardon; Cole's Case, Plow. 401; Brown v. Brashaw, 1 Bulst. 154; Toomb's Adm'r v. Ethrington, 1 Sand. 353; Ludlam v. Lopez, 1 Stra. 529; Biggin's Case, 5 Co. 50; Burgess v. Wheat, 1 Eden, 201; Brown v. Waite, 2 Mod. 133.

The same rule prevails in this country. Such a pardon, therefore, wipes out an offence and its consequences. Cathcart v. Robinson, 5 Pet. 264; United States v. Wilson, 7 id. 160; Ex parte Wells, 18 How. 307; Ex parte Flavel, 8 Watts & S. (Pa.) 197; Ex parte Garland, 4 Wall. 380; Perkins v. Stevens, 24 Pick. (Mass.) 280; Armstrong's Foundry, 6 Wall. 766; United States v. Padelford, 9 id. 531; United States v. Klein, 13 id. 128; Armstrong v. United States, id. 154; Pargoud v. United States, id. 156; Carlisle v. United States, 16 id. 147; Osborn v. United States, 91 U.S. 474; 2 Op. Att.-Gen. 329; 3 id. 317; 4 id. 458; 6 id. 488; 8 id. 281; 10 id. 452.

The proceeds of the sale of the claimant's property are held by the government, and no third party is interested in them. His right to them under the pardon imposes legal obligations on the government, and may be judicially enforced. Brown v. United States, 1 McCahon, 229; Osborn v. United States, supra United States v. Klein, supra.

The Solicitor-General, contra.

1. At common law, a simple charter of pardon did not restore forfeited property which had already vested in the crown A special clause of restitution in the cha ter was required for that purpose. Chitty on Prerogative, 102.

2. The clause of restitution in the present case being limited to rights, &c., under the Constitution, does not include rights of property. Slaughter-House Cases, 16 Wall. 36; United States v. Cruikshank et al., 92 U.S. 542.

3. At all events, without authorization by Congress, the President has no power, whether by a clause in a charter of pardon or otherwise, to render to the claimant the moneys derived from the sale of his property, under a decree of forfeiture, which have been paid into the treasury of the United States.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Knote v. United States


text: Talk:Knote v. United States

title: Talk:Knote v. United States


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

The question presented for determination in this case is, whether the general pardon and amnesty granted by President Johnson, by proclamation, on the 25th of December, 1868, will entitle one receiving their benefits to the proceeds of his property, previously condemned and sold under the confiscation act of 1862, after such proceeds have been paid into the treasury.

The proclamation of the President extended unconditionally and without reservation a full pardon and amnesty for the offence of treason against the United States, or of giving aid and comfort to their enemies, to all persons who had directly or indirectly participated in the rebellion, with a restoration of all rights, privileges, and immunities under the Constitution and the laws made in pursuance thereof. Some distinction has been made, or attempted to be made, between pardon and amnesty. It is sometimes said that the latter operates as an extinction of the offence of which it is the object, causing it to be forgotten, so far as the public interests are concerned, whilst the former only operates to remove the penalties of the offence. This distinction is not, however, recognized in our law. The Constitution does not use the word 'amnesty;' and, except that the term is generally employed where pardon is extended to whole classes or communities, instead of individuals, the distinction between them is one rather of philological interest than of legal importance. At all events, nothing can be gained in the consideration of the question before us by showing that there is any difference in their operation. All the benefits which can result to the claimant from both pardon and amnesty would equally have accrued to him if the term 'pardon' alone had been used in the proclamation of the President. In Klein's case, this court said that pardon included amnesty. 13 Wall. 128.

The rights, privileges, and immunities under the Constitution and laws which the proclamation restored to parties embraced by its terms, are such as all citizens possess and enjoy. That instrument does not declare that any subjects of property are restored with reference to which such rights, privileges, and immunities might be invoked; nor can its language be thus construed without a manifest perversion of its sense.

The effect of a pardon upon the condition and rights of its recipient have been the subject of frequent consideration by this court; and principles have been settled which will solve the question presented for our determination in the case at bar. Ex parte Garland, 4 Wall. 333; Armstrong's Foundry, 6 id. 766; United States v. Padelford, 9 id. 531; United States v. Klein, 13 id. 128; Armstrong v. United States, id. 155; Pargoud v. United States, id. 156; Carlisle v. United States, 16 id. 147; Osborn v. United States, 91 U.S. 474. A pardon is an act of grace by which an offender is released from the consequences of his offence, so far as such release is practicable and within control of the pardoning power, or of officers under its direction. It releases the offender from all disabilities imposed by the offence, and restores to him all his civil rights. In contemplation of law, it so far blots out the offence, that afterwards it cannot be imputed to him to prevent the assertion of his legal rights. It gives to him a new credit and capacity, and rehabilitates him to that extent in his former position. But it does not make amends for the past. It affords no relief for what has been suffered by the offender in his person by imprisonment, forced labor, or otherwise; it does not give compensation for what has been done or suffered, nor does it impose upon the government any obligation to give it. The offence being established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required. Neither does the pardon affect any rights which have vested in others directly by the execution of the judgment for the offence, or which have been acquired by others whilst that judgment was in force. If, for example, by the judgment a sale of the offender's property has been had, the purchaser will hold the property notwithstanding the subsequent pardon. And if the proceeds of the sale have been paid to a party to whom the law has assigned them, they cannot be subsequently reached and recovered by the offender. The rights of the parties have become vested, and are as complete as if they were acquired in any other legal way. So, also, if the proceeds have been paid into the treasury, the right to them has so far become vested in the United States that they can only be secured to the former owner of the property through an act of Congress. Moneys once in the treasury can only be withdrawn by an appropriation by law. However large, therefore, may be the power of pardon possessed by the President, and however extended may be its application, there is this limit to it, as there is to all his powers,-it cannot touch moneys in the treasury of the United States, except expressly authorized by act of Congress. The Constitution places this restriction upon the pardoning power.

Where, however, property condemned, or its proceeds, have not thus vested, but remain under control of the Executive, or of officers subject to his orders, or are in the custody of the judicial tribunals, the property will be restored or its proceeds delivered to the original owner, upon his full pardon. The property and the proceeds are not considered as so absolutely vesting in third parties or in the United States as to be unaffected by the pardon until they have passed out of the jurisdiction of the officer or tribunal. The proceeds have thus passed when paid over to the individual entitled to them, in the one case, or are covered into the treasury, in the other.

The views here expressed have been applied in practice, it is believed, by the executive departments of the government. In 1856, the question was submitted by the Secretary of the Treasury to the Attorney-General, whether, under a pardon of the President remitting a forfeiture to the United States, imposed by a judgment of a United States district court, the proceeds of the forfeiture deposited by the marshal in one of the public depositories to the credit of the United States, but not brought into the treasury by a covering warrant, could be refunded to the marshal, and through him to the party entitled, in execution of the remission granted by the President; and the Attorney-General replied, that the pardoning power was completely vested in the President, and did not require in its exercise any aid from Congress, nor could it be curtailed by Congress, but that, if the money had actually passed into the treasury, it could not be refunded without an act of Congress; for the Constitution itself, in the provision that 'no money shall be drawn from the treasury but in consequence of appropriations made by law,' opposed an insuperable obstacle to such a proceeding, and that this provision was of equal efficiency with the pardoning power, and operated as a restriction upon it. But the Attorney-General held, and so advised the Secretary, that, if the money had only gone into the hands of some officer of the government, and the right of third parties had not attached, it might be refunded. 8 Op. A t.-Gen., p. 281. As an instance where property acquired by a third party, whilst the judgment against the offender is in force, cannot be affected by a subsequent pardon, he cited the case of the disposition of a convict's property during the time of his civil incapacity. The pardon does not restore the property. And, as an instance where a right, other than of property, acquired during the same period, is also unaffected, he cited the case where, by the law of the country, a conviction of felony operates to dissolve a marriage, and the innocent party contracts new bonds of matrimony. The subsequent pardon does not dissolve the new bonds. Matter of Deming, 10 Johns. 232.

The same views were, to some extent, applied in the recent case of Osborn v. United States, supra, where proceeds of property, confiscated under the act of July 17, 1862, for the alleged treason of the claimant, remaining in the registry, were ordered by the Circuit Court to be delivered to the claimant who had been pardoned, Mr. Justice Miller, presiding in the Circuit Court, holding that, until an order of distribution of the proceeds was made, or the proceeds were actually paid into the hands of the party entitled, as informer, to receive them, or into the treasury of the United States, they were within the control of the court, and that no vested right to the proceeds had accrued so as to prevent the pardon from restoring them to the claimant, and impliedly holding, that, had they been thus paid, either to the informer or into the treasury, the right to them would have passed beyond the control of the court. On appeal, this court affirmed the decision, observing, that it was of the essence of a pardon that it relieved the offender from the consequences of his offence; and as in that case the forfeiture of his property was one of those consequences, it restored the property to him, unless the rights of other parties had vested, and the power of restoration was thus gone.

An attempt is made by counsel to give some expressions used in the opinion of the court a wider meaning, so as to support the claim here presented; but the language will not sustain the conclusion sought. There was no consideration of the effect of the pardon upon the proceeds of the forfeited property when paid into the treasury, but only of its effect upon those proceeds whilst under the control of the court in its registry. Any language which seemingly admits of a broader interpretation must be restricted to the facts of the case. There was no intention of expressing any opinion that a pardon could do away with the constitutional requirement as to money in the treasury; whilst there, it is the property of the United States.

There is another view of this case, which must lead to an affirmance of the judgment of the Court of Claims. The jurisdiction of that court is limited to claims founded upon a law of Congress, or upon a regulation of an executive department, or upon a contract, express or implied, with the government. The claim here presented rests upon a supposed implied contract to pay to the claimant the money received as the proceeds of the forfeited property. To constitute such a contract, there must have been some consideration moving to the United States; or they must have received the money, charged with a duty to pay it over; or the claimant must have had a lawful right to it when it was received, as in the case of money paid by mistake. But here there was no consideration moving to the United States; they were charged with no duty in respect to the money; there was no legal claim by any one to it when received into the treasury; and no law since has required it to be paid to the claimant. There can be, therefore, no implied contract in the case.

Judgment affirmed.


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


text:
Brown v. County of Buena Vista

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

The facts are stated in the opinion of the court.

Mr. George G. Wright for the appellant.

Mr. Galusha Parsons, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Brown v. County of Buena Vista


text: Talk:Brown v. County of Buena Vista

title: Talk:Brown v. County of Buena Vista


text:
Brown v. County of Buena Vista/Opinion of the Court

This is an appeal in equity. The appellee filed the bill.

The decree of the court below was against the appellant.

In this court, the grounds relied upon to sustain the decree are,--

That the judgment sought to be enjoined was procured by the fraud and conspiracy of the appellants, Jamison the county clerk, and Moore the county treasurer;

That the judgment was founded in a large part upon warrants of the county, issued pursuant to a fraudulent conspiracy of the same parties, and in part upon warrants which were forged;

And that the payments upon the judgment were procured to be made by the fraudulent misrepresentations of Langdon and Brown, through their attorney.

On the 6th of September, 1865, Jamison acknowledged service of mesne process in the case in which the judgment was recovered. It is not denied that the acknowledgment rendered the service sufficient in point of law, and warranted the court in giving the judgment, if the fraud and conspiracy charged had no existence. The allegations of the bill casting the imputation are explicitly met and denied by the answers. This put the burden of establishing them upon the complainant. There is no proof whatever in the record upon the subject.

The judgment was rendered by default in the Circuit Court of the United States for the District of Iowa, on the 25th of October, 1865, in favor of Langdon, against the county, for $6,259.32. It was founded upon county warrants. Five of them were for the sum of $1,000 each. The residue were for smaller sums, amounting in the aggregate to less than $500. There is proof tending to show such warrants had been issued fraudulently to a very large amount, and there is some proof that the name of William S. Lee upon some of the smaller warrants included in the judgment is not in his handwriting. By whom it was written is not shown.

It appears, also, that warrant No. 86, for $1,000, embraced in the judgment, was subsequently abstracted from the clerk's office. When the testimony was taken, it was in the hands of a person in Vermont. As it was clearly thus put in circulation when overdue, the county can sustain no injury from it. A transcript of the judgment, pursuant to the law of Iowa, was filed in the clerk's office of the District Court for the county on the 29th of January, 1866. Moore and Jamison left the county in October, 1866. After their departure, the sheriff, with process, made search for the record of the proceedings of the supervisors, and for the county seal. Neither was found. When last heard from, Jamison was reported to have died in Texas. Moore was said to be living somewhere in the interior of New York. His testimony was not taken by either party.

That fraud was perpetrated as to the issuing of warrants by Jamison is very probable, and it may be that it extended to the warrants here in question.

But however this may be, there is no proof of any thing wrong on the part of Brown or Langdon. Brown was examined, cross-examined, and re-examined, as a witness. He testifies, that, having sent the transcript of the judgment to the county to be filed, and getting no answer, he went there to see that it was done. This brought him into contact with Jamison, and he thinks he saw a man of the name of Moore. He says he never saw them at any other time, and never had any other communication with either of them. There is no other evidence upon the subject.

The counsel of Brown appeared before the supervisors on the 5th of September, 1870, and asked that action be taken for the payment of the judgment, and stated that it was rendered upon warrants of the county.

The supervisors thereupon imposed a tax, accordingly, for the year 1870. A like tax was imposed on the 5th of September, 1871, for that year. Under these assessments there was paid upon the judgment, on the 20th of June, 1871, the sum of $1,603.01, and on the 15th of May 1872, $1,282.60. There is still in the hands of the county treasurer, arising from these assessments, the further sum of $1,892.45, applicable in the same way. In this connection, also, we find nothing in the case affording the slightest ground for any imputation upon the counsel who appeared before the supervisors in behalf of Brown, or upon Brown himself.

The power of a court of equity to relieve against a judgment, upon the ground of fraud in a proceeding had directly for that purpose, is well settled.

The power extends also to cases of accident and mistake. But such relief is never given upon any ground of which the complainant, with proper care and diligence, could have availed himself in the proceeding at law. In all such cases he must be without fault or negligence. If he be not within this category, the power invoked will refuse to interfere, and will leave the parties where it finds them. Laches, as well as positive fault, is a bar to such relief. Duncan v. Lyon, 3 Johns. (N. Y.) Ch. 351; Marine Insurance Co. v. Hodgson, 7 Cranch, 332; Story, Eq. Jur., sects. 894-896; Bigelow on Estoppel, 151; Freeman on Judgments, sects. 486, 489, 490, 495.

Passing by without remark the filing of the transcript in the office of the county clerk, it is clear that on the 5th of September, 1871, the supervisors were expressly notified of the existence of the judgment, and for what it was recovered. Notwithstanding the large amount of spurious warrants known to have been issued, it does not appear that those officers thereupon inquired, retained counsel, or did any thing else to procure information touching the warrants upon which the judgment was founded.

On the contrary, upon the same day, they imposed a tax for the payment of the judgment; and on the same day, one year later, the second levy was ordered for the same purpose. It appears they retained counsel at their session, in June, 1871, and, that upon searching in the proper clerk's office at Des Moines, the warrants in question could not be found. The search was made several times, with the same result. The counsel apprised the supervisors of the fact, and advised them that nothing could be done without the warrants. When this announcement was made does not appear; but the evidence shows that in the same month of June in which he was retained the first payment was made upon the judgment. The second payment was made a year later. The warrants were found in the proper office in the fall of 1872, partly through the efforts of the counsel of Brown, who thereupon notified the counsel of the supervisors, and the warrants were placed in the hands of the latter. The bill was not filed until at least half a year later.

The Statute of Limitations of Iowa of five years, perhaps, does not apply, because the fraud, if it existed, was not known sufficiently early. The statute could run only from the time of the discovery. But a court of equity applies the rule of laches according to its own ideas of right and justice. Every case is governed chiefly by its own circumstances. Whether the time the negligence has subsisted is sufficient to make it effectual is a question to be resolved by the sound discretion of the court. Sullivan v. Portland & Kennebec Railroad Co., 94 U.S. 806.

The facts in this connection to which we have adverted are entitled to grave consideration.

'Nothing can call forth'-a court of equity-'into activity but conscience, good faith, and reasonable diligence. Where these are wanting, the court is passive, and does nothing. Laches and neglect are always discountenanced, and, therefore, from the beginning of this jurisdiction there was always a limitation of suits in this court.' Smith v. Clay, Amb. 645. See also Story, Eq. Jur., sect. 1520 a; 94 U.S., supra; Sample v. Barnes, 14 How. 70; Walker et al. v. Robbins et al., id. 584; Creath's Administrator v. Simms, 5 id. 192; Bateman v. Willoe, 1 Sch. & Lef. 201; Murray v. Graham, 6 Paige (N. Y.) Ch. 622; Callaway v. Alexander, 8 Leigh (Va.), 114; Powell v. Stewart, 17 Ala. 719; Riddle v. Barker, 13 Cal. 295.

The law of laches, like the principle of the limitation of actions, was dictated by experience, and is founded in a salutary policy. The lapse of time carries with it the memory and life of witnesses, the muniments of evidence, and other means of proof. The rule which gives it the effect prescribed is necessary to the peace, repose, and welfare of society. A departure from it would open an inlet to the evils intended to be excluded.

Upon the whole case, we are of the opinion that the county is not entitled to the relief sought.

Decree reversed and cause remanded, with directions to dismiss the bill.


text: Talk:Brown v. County of Buena Vista/Opinion of the Court


text:
Continental Improvement Company v. Stead

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

The facts are stated in the opinion of the court.

Submitted on printed arguments by Messrs. Hughes, O'Brien, & Smiley for the plaintiff in error, and by Mr. J. J. Coombs, contra.

MR. JUSTICE BRADLEY delivered the opinion of the court.


text: Talk:Continental Improvement Company v. Stead


text:
Continental Improvement Company v. Stead/Opinion of the Court

This is a case of collision near the village of Lima, in La Grange County, Indiana, between a train of passenger cars of the plaintiff in error and the wagon of the defendant in error. The latter brought the action below to recover the damages done to himself and his wagon, and recovered a verdict. The present writ of error is brought to review the instructions given by the court to the jury on the trial. The case, as appears by the bill of exceptions, was substantially as follows: The collision occurred in a cut about five feet in depth, in which the wagon-road crossed the railroad on a level therewith nearly at right angles, descending to it on each side by an excavation. The train was a special one, coming from the north, and did not stop at the station, which was four hundred or five hundred feet north of the crossing, and none of the regular trains were due at that time, although special trains were occasionally run over the road. The plaintiff was going east, away from the village, following another wagon, and in approaching the railroad track could not see a train coming from the north, by reason of the cut and intervening obstructions. There was evidence tending to show that the plaintiff, though he looked to the southward (from which direction the next regular train was to come), did not look northwardly; that his wagon produced much noise as it moved over the frozen ground; that his hearing was somewhat impaired; and that he did not stop before attempting to cross the track; also, evidence tending to show that the engineer in charge of the train used all efforts in his power to stop it after he saw the plaintiff's wagon on the track. The evidence was conflicting as to whether the customary and proper signals were given by those in charge of the locomotive, and as to the rate of speed the train was running at the time, some witnesses testifying that it was at an unusual and improper rate, and others the contrary.

The counsel for the railroad company requested the court to adopt certain specific instructions, to the general effect that the plaintiff should have looked out for the train, and was chargeable with negligence in not having done so; that there was nothing peculiar in the crossing to forbid as high a rate of speed as would be proper in the case of other important highways; that an engineer is not bound to look to the right or left, but only ahead on the line of the railway, and has a right to expect that persons and teams will keep out of the way of the locomotive; and that it is the duty of those crossing the railroad to listen and look both ways along the railroad before going on it, and to ascertain whether a train is approaching or not.

The judge refused to adopt the instructions framed by counsel, but charged, in effect, as follows: that both parties were bound to exercise such care as, under ordinary circumstances, would avoid danger; such care as men of common prudence and intelligence would ordinarily use under like circumstances; that the amount of care required depended on the risk of danger; that, where the view was obstructed so that parties crossing the railroad could not see an approaching train, the exercise of greater care and caution was required on both sides; as well on the part of those having the management of the train as of those crossing the railroad; that the former should approach the crossing at a less rate of speed, and use increased diligence to give warning of their approach; and, if the train was a special one, it was still more incumbent upon them in going through such a place to slacken their speed and sound the whistle and ring the bell, than if the train were running on regular time; and, on the other hand, that the party crossing with a team should proceed with more caution and circumspection than if the crossing were in an open country, and not venture upon the track without ascertaining that no train was approaching, or at least without using the means that common prudence would dictate to ascertain such fact; but that, if a train were not a regular one, no train being due at the time, the same degree of caution would not be expected on his part as if it were a regular train and on usual time. In short, the judge charged that the obligations, rights, and duties of railroads and travellers upon highways crossing them are mutual and reciprocal, and no greater degree of care is required of the one than of the other. He further charged, that the plaintiff could not have a verdict unless the persons in charge of the train were guilty of negligence or want of due care, and unless the plaintiff himself were free from any negligence or carelessness which contributed to the injury. The evidence of the case was fairly submitted to the jury in the light of the principles thus announced.

This is the general scope of the charge; and we think it is in accordance with well-settled law and with good sense. If a railroad crosses a common road on the same level, those travelling on either have a legal right to pass over the point of crossing, and to require due care on the part of those travelling on the other, to avoid a collision. Of course, these mutual rights have respect to other relative rights subsisting between the parties. From the character and momentum of a railroad train, and the requirements of public travel by means thereof, it cannot be expected that it shall stop and give precedence to an approaching wagon to make the crossing first: it is the duty of the wagon to wait for the train. The train has the preference and right of way. But it is bound to give due warning of its approach, so that the wagon may stop and allow it to pass, and to use every exertion to stop if the wagon is inevitably in the way. Such warning must be reasonable and timely. But what is reasonable and timely warning may depend on many circumstances. It cannot be such, if the speed of the train be so great as to render it unavailing. The explosion of a cannon may be said to be a warning of the coming shot; but the velocity of the latter generally outstrips the warning. The speed of a train at a crossing should not be so great as to render unavailing the warning of its whistle and bell; and this caution is especially applicable when their sound is obstructed by winds and other noises, and when intervening objects prevent those who are approaching the railroad from seeing a coming train. In such cases, if an unslackened speed is desirable, watchmen should be stationed at the crossing.

On the other hand, those who are crossing a railroad track are bound to exercise ordinary care and diligence to ascertain whether a train is approaching. They have, indeed, the greatest incentives to caution, for their lives are in imminent danger if collision happen; and hence it will not be presumed, without evidence, that they do not exercise proper care in a par icular case. But notwithstanding the hazard, the infirmity of the human mind in ordinary men is such that they often do manifest a degree of negligence and temerity entirely inconsistent with the care and prudence which is required of them,-such, namely, as an ordinarily prudent man would exercise under the circumstances. When such is the case, they cannot obtain reparation for their injuries, even though the railroad company be in fault. They are the authors of their own misfortune. These propositions are so indisputable, that they need no reference to authorities to support them. We think the judge was perfectly right, therefore, in holding that the obligations, rights, and duties of railroads and travellers upon intersecting highways are mutual and reciprocal, and that no greater degree of care is required of the one than of the other. For, conceding that the railway train has the right of precedence of crossing, the parties are still on equal terms as to the exercise of care and diligence in regard to their relative duties. The right of precedence referred to does not impose upon the wagon the whole duty of avoiding a collision. It is accompanied with, and conditioned upon, the duty of the train to give due and timely warning of approach. The duty of the wagon to yield precedence is based upon this condition. Both parties are charged with the mutual duty of keeping a careful lookout for danger; and the degree of diligence to be exercised on either side is such as a prudent man would exercise under the circumstances of the case in endeavoring fairly to perform his duty. The charge of the judge was in substantial accordance with these views.

The mistake of the defendant's counsel consists in seeking to impose upon the wagon too exclusively the duty of avoiding collision, and to relieve the train too entirely from responsibility in the matter. Railway companies cannot expect this immunity so long as their tracks cross the highways of the country upon the same level. The people have the same right to travel on the ordinary highways as the railway companies have to run trains on the railroads.

Perhaps some of the abstract propositions of the defendant's counsel contained in the instructions asked for, based on the facts assumed therein, if such facts were conceded, or found in a special verdict, would be technically correct. But a judge is not bound to charge upon assumed facts in the ipsissima verba of counsel, nor to give categorical answers to a juridical catechism based on such assumption. Such a course would often mislead the jury instead of enlightening them, and is calculated rather to involve the case in the meshes of technicality, than to promote the ends of law and justice. It belongs to the judicial office to exercise discretion as to the style and form in which to expound the law and comment upon the facts. If a judge states the law incorrectly, or refuses to state it at all, on a point material to the issue, the party aggrieved will be entitled to a new trial. But when he explains the whole law applicable to the case in hand, as we think was done in this case, he cannot be called upon to express it in the categorical form, based upon assumed facts, which counsel choose to present to him. See Mills v. Smith, 8 Wall. 27; Nudd v. Burrows, 91 U.S. 426.

An examination of some of the principal instructions asked for by the defendant's counsel will furnish an illustration of the propriety of these views. The court was asked to instruct the jury as follows:--

'The uncontradicted testimony in this case shows that the plaintiff was acquainted with the character of this crossing; that he had frequently travelled it, and on some previous occasions had stopped to look and listen before going upon the track; that upon this occasion he went with his team and wagon upon the track without taking any precaution to ascertain whether a train was coming from the north or not; that he did not even turn his face northward along the track in the direction from which the train was com ng until it was too late for him to stop or turn back; that his wagon was making considerable noise as it moved over the frozen ground; that his hearing was to some extent impaired, but he did not stop to listen before going upon the track.

'Upon this state of facts the plaintiff is chargeable with such negligence contributing to the accident as deprives him of any right of action.'

Now, although the case may have been so clear of other evidence than that stated in the proposed instruction, as that the judge (had he seen fit) might have adopted it as a statement of the ultimate facts, yet he was not bound to do so, but was entirely justifiable in stating the law, as he did, in a more general form, namely:--

'It is left as a question of fact for you [the jury] to say whether he [the plaintiff] was guilty of carelessness from the evidence. He was required to exercise that degree of prudence, care, and caution incumbent upon a person possessing ordinary reason and intelligence under the special circumstances of the case, having regard to the particular character of the crossing and the difficulty of seeing a train approaching from the north. The fact that his hearing was somewhat impaired would not exempt him from the necessity of using the care required of persons in possession of their ordinary senses or faculties. A person suffering under such an infirmity should use more diligently his other faculties. If the place was dangerous and the approach to it by a train obscured, he should have proceeded with more caution and circumspection than if the crossing were in an open country; and not ventured upon the track without ascertaining that no train was approaching, or at least without the use of the means that common prudence would dictate to ascertain such fact. But as this was not a regular train, or on usual time, the same degree of caution would not be required on his part or such as if it were a regular train and on usual time.'

And further on:--

'It is shown by the evidence, and not disputed, that plaintiff was accustomed to pass this crossing, and may be presumed to know and be acquainted with the usual rate of speed with which the trains passed this crossing, and, if this train was not moving at a greater rate, he should be held as bound to exercise such care and caution as to avoid collision with such trains moving at usual rates and times; so that, unless you find that the train was moving at an unusual and unreasonable rate of speed, you would be warranted in finding the plaintiff was guilty of negligence which contributed to the injury, and hence not entitled to recover.'

The facts assumed in the instruction proposed depended on the evidence, and did not by any means comprise all the facts bearing upon the question; and, aside from the discretion which, as we have stated, may be exercised by the judge, we think he did quite right this instance, after stating the law to the jury, in submitting the evidence to their consideration.

Another instruction asked for was as follows:--

'It is the duty of every one approaching with his wagon and team along a highway to the crossing of a steam railroad to listen and to look both ways along the railroad before going upon it. If by reason of the character of the ground or other obstructions, or if by reason of a defect in his sense of sight or hearing, he cannot determine with certainty whether or not a train of cars is approaching without stopping, and, if necessary, going in advance of his team to examine, it is his duty to do so. If in such case he goes upon the track without taking such precaution, he does so at his own peril, and cannot recover if injury results.'

Here is no assumption of facts as in the previous instruction; but it states the duty of persons approaching a railroad with wagons and teams in a more absolute and unqualified form than we think admissible. It states such duty with the rigidity of a statute, making no allowance for modifying circumstances or for accidental diversion of the attent on, to which the most prudent and careful are sometimes subject; and assuming, in effect, that the duty of avoiding collision lies wholly, or nearly so, on one side. We think that the qualified form in which the duty of travellers, on highways in approaching a railroad was stated by the judge in his charge, as applicable to the evidence and circumstances of this case, was all that could be justly required by the defendants.

Judgment affirmed.


text: Talk:Continental Improvement Company v. Stead/Opinion of the Court


text:
Cairo and Fulton Railroad Company v. Hecht

ERROR to the Supreme Court of the State of Arkansas.

The Cairo and Fulton Railroad Company having been sued in the Circuit Court of Clay County, Arkansas, service was had on the tenth day of September, 1873, by leaving a copy of the summons with a clerk of the company.

Judgment was rendered by default. A motion was subse quently made to set the default aside, on the ground that there had been neither legal service upon nor appearance by the company. This motion having been overruled, the company appealed to the Supreme Court of the State, where the judgment below was affirmed. The company then brought the case here.

The company was incorporated by an act of the legislature of Arkansas, approved Jan. 12, 1853.

The thirteenth section of that act provides as follows:

'This act shall be deemed a public act, and shall be favorably construed for all the purposes therein expressed and declared in all courts and places whatever, and shall be in force from and after its passage: Provided, that all the rights, privileges, immunities, and franchises contained in the charter granted at this session of the legislature of this State to the Mississippi Valley Railroad Company, not restricting or inconsistent with this act, are hereby extended to and shall form a part of this incorporation as fully as if the same were inserted herein.'

The charter of the Mississippi Valley Railroad Company was granted by an act approved Jan. 12, 1853, the twenty-fourth section of which provides that 'process on said company shall be served on the president by leaving a copy to his address, at the principal office of the corporation, in the hands of any of its officers.'

An act passed in 1868 provides that 'where the defendant is a corporation, created by the laws of this State, the service of the summons may be upon the president, mayor, chairman of the board of trustees, or other chief officer; or, if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk, or managing agent.'

It will be seen that service in this case was made pursuant to the latter act, and not to the provisions of the charter.

The company here assigns for error that its charter constitutes a contract between it and the State, and that the subsequent act under which the process was served impairs the obligation of the contract, and is therefore in violation of sect. 10, art. 1, of the Constitution of the United States.

Mr. U. M. Rose for the plaintiff in error cited Oliver v. Memphis Railroad Co., 30 Ark. 129; St. Louis Railroad Co. v. Loftin, id. 693; Bronson v. Kinzie, 1 How. 311; Commonwealth v. United States Bank, 2 Ashm. (Pa.) 349; Aurora Turnpike Co. v. Holthouse, 7 Ind. 59; Powell v. Sammons, 31 Ala. N. S. 552; Cairo & Fulton Railroad Co. v. Turner, 31 Ark. 494.

No counsel appeared for the defendants in error.

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


text: Talk:Cairo and Fulton Railroad Company v. Hecht


text:
Cairo and Fulton Railroad Company v. Hecht/Opinion of the Court

The single question presented by this record is whether a statute which prescribes a mode of service of judicial process upon the Cairo and Fulton Railroad Company, different from that provided for in its charter, is void because it impairs the obligation of a contract. The regulation of the forms of administering justice by the courts is an incident of sovereignty. The surrender of this power is never to be presumed. Unless, therefore, it clearly appears to have been the intention of the legislature to limit its power of bringing this corporation before its judicial tribunals to the particular mode mentioned in the charter, the subsequent legislation upon that subject was not invalid. The provision of the charter relied upon is in these words: 'Process on said company shall be served on the president by leaving a copy to his address, at the principal office of the corporation, in the hands of any of its officers. The said corporation shall have power to establish a principal office at such place as they may see fit, and the same to change at pleasure.' As against the government, the word 'shall,' when used in statutes, is to be construed as 'may,' unless a contrary intention is manifest. Here no such intention appears. The largest latitude is given the company in respect to the location of its principal office; and it can hardly be supposed that the legislature meant to deprive itself of the power of providing another mode of service, if that specified was found to be inconvenient or unwise. The provision is one which evidently belongs to remedies against the corporation, and not to the grant of rights. As to remedies, it has always been held that the legislative power of change may be exercised when it does not affect injuriously rights which have been secured. Sturgess v. Crowninshield, 4 Wheat. 122.

Judgment affirmed.


text: Talk:Cairo and Fulton Railroad Company v. Hecht/Opinion of the Court


text:
Insurance Company v. Lanier

ERROR to the Circuit Court of the United States for the Southern District of Georgia.

The facts are stated in the opinion of the court.

Mr. Philip Phillips and Mr. William H. Phillips for the plaintiff in error.

Mr. Julian Hartridge and Mr. Rufus E. Lester, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Insurance Company v. Lanier


text: Talk:Insurance Company v. Lanier

title: Talk:Insurance Company v. Lanier


text:
Insurance Company v. Lanier/Opinion of the Court

After careful consideration, we are all of opinion that the record contains nothing upon which the assignments of error can be based. The plaintiff in error complains that certain evidence was improperly admitted, and that incorrect instruction was given to the jury; but the record does not show that any exception was saved to the admission of evidence or to the charge of the court. No bill of exceptions appears to have been made up or signed. It is true that in the transcript sent up to us it is stated that at the trial objection was made to the reception of certain testimony of witnesses, that the objection was overruled, and that the defendant then and there excepted to such ruling of the court, and assigned error thereon. So the transcript states that the judge gave substantially certain instruction to the jury, and adds, 'to which portion of said charge said defendant then and there excepted, and assigned the same as error.' But, even if the facts occurred as certified by the clerk, his statement that they occurred does not bring them upon the record so as to make them the subject of review. There is but one mode of bringing upon the record and making a part of it the rulings of a judge during the progress of a trial, or his charge to the jury, and that is by a bill of exceptions allowed and sealed or signed by the judge. It is true that in the hurry of the trial the bill is not often reduced to form and sealed or signed. Generally an exception is only noted by the judge at the time claimed, and it is subsequently drawn up; but it is not a bill of exceptions until it has been sealed, or, as is now sufficient, signed. The sealing or signature of the judge is essential for its authentication; and it has been ruled that the judge's notes do not constitute a bill of exceptions. They are but memoranda from which a formal bill may afterwards be drawn up and sealed. Pomeroy v. The Bank of Indiana, 1 Wall. 592. There it was said, 'When exceptions are taken to the ruling of the court, in the course of a trial, to the jury, such an entry is frequently made in the minutes of the case, or of the presiding justice, as evidence of the fact, and as a means of preserving the rights of the party in ca e the verdict should be against him, and he should desire to have the case re-examined in the appellate tribunal; but it was never supposed that such an entry could be of any benefit to the party unless he seasonably availed himself of the right to reduce the same to writing, and took proper measures to have the bill of exceptions sealed by the judge presiding at the trial, or, in other words, such an entry in the minutes can only be regarded as evidence of the right of the party seasonably to demand a bill of exceptions; but it is not the same thing, and it has never been so considered in the Federal courts. And again: 'Unless an exception is reduced to writing and sealed by the judge, it is not a bill of exceptions, within the meaning of the statute authorizing it, and it does not become part of the record.' No such bill is found in the present case. Where the memoranda of exceptions appearing in the transcript came from does not appear. They are not even stated to be on the minutes or the judge's notes.

The verdict was returned, and the judgment was signed on the 14th of November, 1874. The transcript exhibits a paper dated Nov. 19, 1874, called an assignment of error, signed by the attorney of the insurance company, and filed on that day, setting forth that in the foregoing record and proceedings various errors appeared, and describing them. The paper appears to have been served on the plaintiffs' attorney, and on the same day it was indorsed 'exceptions overruled. John Erskine, judge.' For what purpose the paper was prepared does not clearly appear. Perhaps it was in aid of a motion for a new trial, or it was intended as preparation for a writ of error, probably the latter. But it is impossible to regard it as a bill of exceptions taken or noted at the trial. It refers to no exceptions then taken. On the contrary, while it refers to objections alleged to have been made at the trial, and assigns overruling them as error, it states that the defendant now (Nov. 19) assigns the same as error, and excepts thereto.

We find nothing in the code of Georgia that aids the plaintiffs in error. The only provision that is of any importance as bearing upon the subject is the following: 'At any stage of the cause either party may file his exception, and, if the same be certified or allowed, it shall be entered of record in the cause; and should the case, at its final determination, be carried by writ of error to the Supreme Court, error may be assigned upon such bill of exceptions.' This does not differ substantially from the provisions of the Statute of Westminster, 13 Edw. I. c. 31. The exception must be certified or allowed as well as filed, and it is the signature or seal of the judge that certifies or allows it.

We are, therefore, reluctantly brought to the conclusion that the record of this case exhibits nothing that justifies the assignments of error.

Judgment affirmed.


text: Talk:Insurance Company v. Lanier/Opinion of the Court


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Blount v. Windley

ERROR to the Supreme Court of the State of North Carolina.

The facts are stated in the opinion of the court.

Mr. Joseph J. Davis for the plaintiff in error.

Mr. Samuel F. Phillips, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Blount v. Windley


text: Talk:Blount v. Windley

title: Talk:Blount v. Windley


text:
Blount v. Windley/Opinion of the Court

Under a statute of North Carolina, passed March 12, 1866, to enable the banks of the State to close their business, the plaintiff in error was, by a decree of the proper State court, in the fall of that year, appointed commissioner of the Bank of Washington; and all the real and personal property and choses in action of the bank were by the decree vested in said commissioner for the benefit of those creditors of the bank who should prove their debts within twelve months. As such commissioner, Blount sued and recovered against the defendant in error a judgment on a note given to the bank for borrowed money, on which he was surety. This was in November, 1867. The defendant subsequently procured the circulating notes of the bank, and tendered them i payment of the judgment to plaintiff, who refused to accept them. He then deposited them with the clerk of the court in which the judgment was rendered, who received them, not in payment, but subject to the order of the court.

A motion for new trial in the original suit remained undecided until the spring term, 1872. At the next term of the court after this, the defendant, on due notice, moved the court to have these notes applied in payment of the judgment, and satisfaction of that judgment entered on the record; which motion was granted, and the order made. From this order plaintiff appealed to the Supreme Court of the State, which affirmed the judgment of the court below; and he thereupon sued out the present writ of error.

Two grounds are relied upon in this court to reverse that judgment:--

1. That plaintiff had a right, under the Constitution and laws of the United States, to have his judgment paid in coin or legal-tender notes, and nothing else.

2. That certain statutes of North Carolina under which the defendant was allowed to set off the notes of the bank in satisfaction of the judgment are void, because they impair the obligation of his contract.

We will consider the last ground first, because, if these statutes are valid and authorized the judgment of the court, then the other objection is also answered; for, if the defendant had the right to pay or set off these notes in satisfaction of the judgment, the plaintiff did not have the right to exact payment exclusively in legal-tender money of the United States.

The following acts and parts of acts are those relied on to justify the order of the court in this case.

Act of Aug. 22, 1868:--

'The General Assembly of North Carolina do enact, that where any note or bond has been, or may hereafter be, given as a renewal of any debt or demand due or payable to any bank in this State, whose charter bears date prior to the twentieth day of May, 1861, the bills of said bank shall be a legal set-off to such note or bond, without regard to whether such note or bond be made payable to said bank or to some other party; and the bills of such bank may be offered, and shall be received, to sustain the plea of set-off to any suit brought upon such note or bond in any court of this State, whether such note or bond be made payable to such bank or to any other party.'

Sects. 1 and 4 of an act approved March 17, 1869:--

'SECT. 1. The General Assembly of North Carolina do enact, that an act entitled 'An Act to make bank-bills a set-off,' ratified the twenty-second day of August, A.D. 1868, be so amended as to apply to judgments and executions which may have been obtained on any debt due any of the banks mentioned in the aforesaid act.'

'SECT. 4. The remedy under this act may be by plea of set-off, or by injunction, as the case may require.'

By a statute passed in December of the same year, it was made 'the duty of every court in the State, upon proof that such bills have been delivered or tendered and refused in satisfaction of such judgments to the nominal amounts thereof, to cause an entry of satisfaction of such judgments to be entered of record in the court wherein the same were recovered.'

The proposition of plaintiff in error is, that, when he recovered the judgment against the defendant, he had a right to exact and receive in payment of that judgment gold or silver coin, or the legal-tender treasury notes of the United States, and that defendant had no right to pay him in any thing else; that the judgment was a contract, and the obligation of it is impaired by the statute which authorizes payment in something else. It is undoubtedly true, in some sense and for some purposes, that a judgment has been treated and considered as a contract; and we are not disposed to deny that the judgment in this case is evidence of a contract. But the judgment is only a contract because it is evidence of a debt or obligation on the part of defendant due to plaintiff. The judgment itself presupposes, and is founded on, § me antecedent obligation or contract, and is only a higher evidence of that contract, because it now has the sanction of the judicial determination of its validity and amount by a court of law. The essential nature and character of the contract remains unchanged; and, in deciding how far it may be affected by legislation, we must look mainly to the original contract.

It may be assumed that all debts not solvable by their terms in something else are prima facie payable in legal-tender money, as ascertained by the acts of Congress. And this is true whether the contract be express or implied, and whether it exist in parol, or in a promissory note, or in a judgment. Notwithstanding this general rule, it is a principle of long standing in all systems of jurisprudence that one debt or obligation may be set off or counterbalanced against another, so that while the obligation of both is recognized, both are satisfied in law and discharged without the payment of any money on either; and this is done by the courts without the consent of the party and against his will. This doctrine of set-off in the English law originally could only be called into operation by a defendant who, when sued on an obligation of his own, should by a distinct plea claim a set-off of some demand which he had against the plaintiff of a similar character. But this original statutory doctrine of the right of set-off has been modified, enlarged, and extended in many ways.

1. The courts of common law have long established the principle of set-off as applicable to mutual judgments in the same court. And it is said that this power of setting off judgments not only in the same court, but in different courts, did not depend upon the statutes of set-off, but upon the general jurisdiction of the court over its suitors. See Barker v. Braham, 2 Bl. R. 869; Mitchell v. Oldfield, 4 T. R. 123; 3 Caines's Cases, 190. In Simpson v. Hart, 1 Johns. (N. Y.) Ch. 91, Chancellor Kent refused to set off one judgment against another although the case was otherwise made out, because the jurisdiction was ample at law, and the application had been first made there and denied. See also Simpson v. Huston, 14 Tex. 481.

2. This remedy has been very much extended in equity where the insolvency of the judgment plaintiff, his non-residence within the jurisdiction of the court, the fact that the mutual obligations have grown out of the same transaction, and many other purely equitable considerations, have been held to authorize the setting off of many classes of obligations held by the defendant, against a judgment duly recovered against him in a court of law. Merrill v. Souther, 6 Dana (Ky.), 305; Simpson v. Hart, 1 Johns. (N. Y.) Ch. 91; Palmateer v. Meredith, 4 Mar. J. J. (Ky.) 74; Davis v. Milburn, 3 Clarke (Iowa), 163; 7 How. 279.

It will be thus seen that, independent of statutes, the courts have long exercised the power of extinguishing judgments by compelling the plaintiff to receive something else than money in satisfaction thereof. It is true that, where this power has been exercised under the statutory or equity power of the court, it has been generally, perhaps universally, limited to cases where the defendant held the claim which he presents for set-off at the time the suit was brought in which he proposes the set-off. But undoubtedly there may be cases in which a claim coming to the ownership of the judgment debtor, even after the judgment has been rendered against him, presents a strong equity to have it set off against that judgment. In such cases it must be within the competency of the legislative body so to extend the remedy by set-off as to embrace them.

Such is the law of the State of Louisiana under their civil-code system of jurisprudence. In the case of Pattison v. Edmonston, 4 La. Ann. 157, Carter & Co. obtained a judgment against Pattison. After an execution was issued, and after an injunction against it had been dissolved, the defendant purchased of a third party a judgment against Carter & Co.; and the Supreme Court, reversing the judgment of the inferior court, held that, from the date of the notice of this purchase, the parties became mutually indebted, and their respective claims were liquidated and due, and compensation took place within the meaning of sect. 2203 of the Civil Code, the effect of which was to extinguish the judgment of Carter & Co.

This provision of the Code of Louisiana, and the construction given to it by her highest court, is identical with the Roman law, which is, indeed, the foundation on which that code is built. That law went much further than any of our statutes have gone, and further than our courts of equity have gone. The doctrine of the civil law was that mutual debts extinguished each other by operation of law, and that in such case no discovery could be had except for a balance due on the larger debt. And this extended to cases in which the debtor had procured an assignment or cession of the debt of a third person against his creditor. So that from the moment the creditor had notice of the transfer, compensation, as it is called in the civil law, took place; that is, the debts were extinguished so far as the amount due on the smaller debt could rightfully compensate the larger. This matter is well set forth by Justice Story in his Equity Jurisprudence, sects. 1438 to 1444 inclusive. His closing remarks are very pertinent to the case in hand. 'The general equity and reasonableness,' says he, 'of the principles upon which the Roman superstructure is founded make it a matter of regret that they have not been transferred to their full extent to our system of equity jurisprudence. Why, indeed, in cases of mutual debts, independently of any notion of mutual credit, courts of equity should not have at once supported and enforced the doctrine of the universal right of set-off as a matter of natural equity, it is not easy to see.'

The legislation of North Carolina, which we have already cited, is of this character.

The act of Aug. 22, 1868, made the bills of a bank a legal set-off in the hands of any person sued by the bank, but left the right subject to the usual rule, that it must be pleaded in the action. The act of March 17, 1869, declared that this right should extend to judgments already rendered, and that it might be asserted by a plea of set-off in the court at law or by an injunction in chancery; and the act of December, 1869, authorized the same relief by motion in the court where the judgment was rendered. Are the acts of the North Carolina legislature to wholly outside of the general doctrine of set-off as to be void? The idea of set-off is not the same as payment. It is the doctrine of bringing into the presence of each other the obligations of A. to B. and B. to A., and by the judicial action of the court make each obligation extinguish the other. And this process is applicable to any class of obligations which the legislative power of the State chooses to bring within its operation.

That it is exercised in aid of justice when a bank of circulation is compelled to receive that circulation in satisfaction of debts due to it, whether they be in judgment or in any other form, can hardly be questioned, if the rights of no one but the bank are affected by the act.

In what we have here said, we do not mean to be understood that, where the creditors of the bank have a right to have such a debt paid in lawful money, the legislature can deprive them of that right; nor that in any other case, where the judgment creditor represents an interest in the contract, which has a right to demand its payment in lawful money, the State can authorize its payment in any thing else.

In the case before us, if it appeared by the agreed facts on which the case was tried that there existed any creditors of the bank who had proved their debts as the law required, the case might have been different. But there is no evidence in this record that there was any other creditor of the bank in existence besides the defendant when he made this motion for set-off.

And though it may be held that the bank had ceased to exist, it is clear that the stockholders, whose interest in that case would be represented by the commissioner, have no equity superior to that of the defendant, or which could be interposed to prevent the exercise of the right of set-off under the statute. That the right to set-off is by the statute extended to obligations of the bank, bought by defendant after the judgment was rendered against him, does not necessarily make it unconstitutional. The debt of the bank is a just debt. To compel the defendant first to pay his debt in money, and then take the chances of collecting of the bank, is unjust.

The act of the North Carolina legislature is but an enlargement of the principle of set-off to meet this class of cases. Though the statute uses the word 'payment,' it is obvious that payment in the technical sense is not meant. The whole proceeding is one of set-off. The defendant is compelled to make his application to the court, produce his bank-bills, and deposit them there. The order or judgment of the court is that the obligation of the bills and the obligation of the judgment are set off against each other, and both are extinguished. They are both satisfied.

It may be said that this legislation is retroactive; and, as applied to the case before us, it is so. But there is no constitutional inhibition against retrospective laws. Though generally distrusted, they are often beneficial, and sometimes necessary. Where they violate no provision of the Constitution of the United States, there exists no power in this court to declare them void.

Judgment affirmed.

title: Blount v. Windley/Opinion of the Court


text: Talk:Blount v. Windley/Opinion of the Court


text:
West Philadelphia Bank v. Dickson

ERROR to the Circuit Court of the United States for the Eastern District of Pennsylvania.

The facts are stated in the opinion of the court.

Mr. Charles W. Hornor for the plaintiff in error.

Mr. Samuel Dickson, contra.

MR. JUSTICE HUNT delivered the opinion of the court.

title: West Philadelphia Bank v. Dickson


text: Talk:West Philadelphia Bank v. Dickson

title: Talk:West Philadelphia Bank v. Dickson


text:
West Philadelphia Bank v. Dickson/Opinion of the Court

In the present action, the assignees in bankruptcy of Tryon Reakirt seek to recover from the West Philadelphia Bank two different sums of money. The first is a sum of $5,000 paid by Reakirt on the sixth day of February, 1871; the second is the sum of $4,559.76 collected by B. K. Jamieson on behalf of and for the benefit of the bank, through certain attachment proceedings in the courts of the State of New York. The case was tried before a jury in the Circuit Court of the United States, and a verdict and judgment rendered in favor of the assignees for the amount demanded.

The sum first mentioned is claimed to belong to the assignees, on the ground that it was the payment of a debt, or the transfer of money or goods, with a view to give a fraudulent preference by an insolvent, and where the party receiving the money had reasonable cause to believe that the party paying the money was insolvent. The provisions of the thirty-fifth section of the Bankrupt Act control this branch of the case. There is no doubt expressed by any party as to the insolvency of Reakirt, the debtor. His career as a speculator had terminated in forgery. His forgeries had been discovered, his money was gone, and his trust in his rich relatives unavailing. The agent and director of the bank heard of the forgery, and was the first upon his track, demanding security or payment, and refused to give him even a part of a day to apply to his relatives for aid, but insisted upon an immediate transfer of his funds in bank. With the greatest pressure, only one-half of the debt could be obtained. Upon general principles, the case seems to fall clearly within the provisions of the act.

The knowledge of the agent was that of the principal, and there was not only reasonable cause to believe, but clear knowledge of, the insolvency of Reakirt.

The remaining sum falls under the fourteenth section of the Bankrupt Act, which is as follows, viz.: 'As soon as the assignee is appoi ted and qualified, the judge, or, where there is no opposing interest, the register, shall, by an instrument under his hand, assign and convey to the assignees all the estate, real and personal, of the bankrupt, with all his deeds, books, and papers relating thereto; and such assignment shall relate back to the commencement of the proceedings in bankruptcy, and by operation of law shall vest the title to all such property and estate, both real and personal, in the assignee, although the same is then attached on mesne process, as the property of the debtor, and shall dissolve any such attachment made within four months next preceding the commencement of the bankruptcy proceedings.' After obtaining from the bankrupt his funds in Philadelphia, the agent of the bank, Mr. Jamieson, who was also one of its directors, went to New York, and there commenced an action in his own name, but for the benefit of the bank, against the bankrupt, and obtained an attachment against Randolph & Co., and Evans, Wharton, & Co., bankers, with whom Reakirt, the bankrupt, had a credit of about $11,000. He obtained a judgment against Reakirt for $5,176.82, and issued an execution, which was paid through the means of the attachment referred to. The statute declares this attachment, if made within four months preceding the commencement of the bankruptcy proceedings, as was this one, to be dissolved by the assignment in bankruptcy. It is avoided and made of no effect, and the proceedings under it are held for naught. The money obtained by color of it is money held for the assignee, and is recoverable by him.

But it is contended on behalf of the bank that the money thus obtained in each instance was the money of the bank, that it was a case of the reclamation of its own property. If the $5,000 obtained in Philadelphia on checks had been the identical money received from the bank, or the fruits of that money, or if in any manner the money could be traced or separated, this question might be raised. But, in fact, the debt had accrued to the bank, and the money had been received from it nearly two months before the occurrences of Feb. 6, This money had been deposited in various banks, mixed with the other funds of Reakirt, and all used by him at his convenience. There is not a pretence that the money obtained on the checks was the result of the particular transactions with the Philadelphia bank. Reakirt was a druggist, a manufacturer, a stock speculator, and, as has occurred in other like cases, a forger. In the last capacity he had realized the sum of $100,000. There is no evidence where this particular money came from, and certainly no presumption exists that it came from the West Philadelphia Bank. The money obtained upon the New York attachment was a part of a balance of $11,000 standing to Reakirt's credit, with no evidence of the source whence any part of it was derived. There is literally no evidence on which to base the theory of reclamation.

Much is said in argument on the subject of the rescission of the contract. The contract of loan was upon the note or notes of Reakirt, and in form was that of an ordinary loan of money. He gave forged securities as collateral. Whether this justified a rescission on the part of the bank of the entire contract, or whether the bank did rescind, we do not consider of any importance. If it could have identified and followed its money, this question might have become practical. But, as there is an entire failure of proof in that respect, the question does not arise.

Judgment affirmed.


text: Talk:West Philadelphia Bank v. Dickson/Opinion of the Court


text:
Insurance Company v. Pechner

ERROR to the Court of Appeals of the State of New York.

On the 1st of June, 1867, Pechner sued the Phoenix Insurance Company, a Connecticut corporation, in the Supreme Court of Chemung County, in the State of New York, upon a policy of insurance. On the 8th of the following month, and at the time of entering its appearance, the company presented to the court a petition, accomp nied by the necessary security, for the removal of the cause to the Circuit Court of the United States. The petition, when taken in connection with the pleadings, set forth sufficiently the citizenship of the defendant in the State of Connecticut; but as to the citizenship of the plaintiff, the statement was, that, 'as your petitioner is informed and believes, Isidor Pechner, the plaintiff in said action, is a citizen of the State of New York.' The petition bears date June 11, 1867, and was sworn to the next day. Upon its presentation the court approved the security, but denied the application for removal.

On the 5th of June, 1869, the plaintiff filed an amended complaint, to which the defendant answered June 21, 1869. On the 2d of February, 1872, the cause coming on for trial, the defendant again presented its original petition for removal, which remained upon the files, and requested the court to proceed no further with the trial; but this request was denied, for the reason that the petition did not state facts sufficient to remove the cause. A jury was thereupon called, which returned a verdict in favor of the plaintiff, and judgment was in due form entered thereon against the defendant. The case was then taken to the Court of Appeals, where the judgment was affirmed, and the petition for removal held to be insufficient in law to effect a transfer of the cause, for the reason that it did not state affirmatively that Pechner was a citizen of the State of New York when the suit was commenced.

To reverse this judgment the present writ of error has been brought by the company, and the only error assigned is grounded upon this decision.

Mr. W. F. Cogswell for the plaintiff in error.

The plaintiff in error having taken the necessary steps to remove the action from the State to the Federal court, and the former having refused its application in that behalf, the judgment subsequently rendered is reviewable in this court, notwithstanding a defence of the action on the merits. Gordon v. Longest, 16 Pet. 97; Kanouse v. Martin, 15 How. 198.

The compliance with the conditions of the act of Congress ousted the Supreme Court of New York of its jurisdiction, and all further proceedings therein were void. 1 Stat. 79, sect. 12. Stevens v. Phoenix Insurance Co., 41 N. Y. 149; Gordon v. Longest, supra; Kanouse v. Martin, supra.

Nor can the decision below be sustained by the verbal criticism of the Court of Appeals. Ladd v. Tudor, 3 Woodb. & M. 325; People v. City of Chicago, 34 Ill. 356; Sweeney v. Coffin, 1 Dill. 73; Shepard v. Graves, 14 How. 505.

The petition following the language of the act of Congress is sufficient, and this is shown especially by the uniform practice in the Federal courts under the next preceding section of the same statute. Bingham v. Cabot et al., 3 Dall. 382; Abercrombic v. Dupuis, 1 Cranch, 342; Piquignot v. Pennsylvania Railroad Co., 16 How. 104.

Although, in nearly all the States of the Union, for many years the only method by which a suit could be commenced was by some process the service and return of which preceded the filing of the declaration, the language of the declaration has been uniformly in the present tense. Mollan v. Torrence, 9 Wheat. 537; Marshall v. Baltimore & Ohio Railroad Co., 16 How. 314; Lafayette Insurance Co. v. French et al., 18 id. 404.

Mr. J. Hubley Ashton, and Mr. Nathaniel Wilson, contra.

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

title: Insurance Company v. Pechner


text: Talk:Insurance Company v. Pechner

title: Talk:Insurance Company v. Pechner


text:
Insurance Company v. Pechner/Opinion of the Court

The application for removal in this case was made under sect. 12 of the Judiciary Act of 1789. 1 Stat. 79. That section, so far as it is important for the determination of this case, reads as follows:--

'If a suit be commenced in any State court. . . by a citizen of the State in which the suit is brought against a citizen of another State,. . . and the defendant shall, at the time of entering his app arance in such State court, file a petition for the removal of the cause for trial into the next Circuit Court,. . . it shall then be the duty of the State court to. . . proceed no further in the cause.'

Clearly this has reference to the citizenship of the parties when the suit is begun; for the language is, 'If a suit be commenced by a citizen of the State in which the suit is brought against a citizen of another State, the defendant may, when he enters his appearance, petition for its removal.' The phraseology employed in the acts of 1866, 14 Stat. 307, 1867, id. 558, and 1875, 18 id. 470, and in the Revised Statutes, sect. 639, is somewhat different, and we are not now called upon to give a construction to the language there used. As to the act of 1789, we entertain no doubt in this particular.

This right of removal is statutory. Before a party can avail himself of it, he must show upon the record that his is a case which comes within the provisions of the statute. His petition for removal, when filed, becomes a part of the record in the cause. It should state facts, which, taken in connection with such as already appear, entitle him to the transfer. If he fails in this, he has not, in law, shown to the court that it cannot 'proceed further with the cause.' Having once acquired jurisdiction, the court may proceed until it is judicially informed that its power over the cause has been suspended.

It remains only to apply this rule to the facts as they appear in this record. The suit was commenced June 1, 1867. At that time there was nothing in the pleadings or process to indicate the citizenship of the plaintiff. The defendant, in its petition for removal, bearing date June 11, simply stated that the plaintiff is-that is to say, was at that date-a citizen of New York. This certainly is not stating affirmatively that such was his citizenship when the suit was commenced. The court had the right to take the case as made by the party himself, and not inquire further. If that was not sufficient to oust the jurisdiction, there was no reason why the court might not proceed with the cause. We think, therefore, that the Court of Appeals did not err in its decision.

Judgment affirmed.


text: Talk:Insurance Company v. Pechner/Opinion of the Court


text:
Amory v. Amory (95 U.S. 186)

ERROR to the Superior Court of the city of New York.

The facts are stated in the opinion of the court.

Mr. W. T. Birdsall and Mr. W. R. Beebe for the plaintiff in error.

The court declined to hear ''Mr. Matt. H. Carpenter'' for the defendants in error.

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

title: Amory v. Amory (95 U.S. 186)


text: Talk:Amory v. Amory (95 U.S. 186)

title: Talk:Amory v. Amory (95 U.S. 186)


text:
Amory v. Amory (95 U.S. 186)/Opinion of the Court

These cases are substantially disposed of by the decision in Insurance Company v. Pechner, supra, p. 183. They each present the question of the sufficiency of a petition for removal under the act of March 2, 1867, 14 Stat. 558. The suits were in New York by the defendants in error as executors, against the plaintiff in error, a citizen of New Jersey. The petitions for removal set forth sufficiently the citizenship of the plaintiff in error, but as to the defendants in error the allegation are 'that said plaintiffs, as such executors, are citizens of the State of New York.' Clearly this is not sufficient. Where the jurisdiction of the courts of the United States depends upon the citizenship of the parties, it has reference to the parties as persons. A petition for removal must, therefore, state the personal citizenship of the parties, and not their official citizenship, if there can be such a thing. From the language here employed, the court may properly infer that, as persons, the plaintiffs in error were not citizens of New York. For all that appears, they may have been citizens of New Jersey, as was the defendant. Holding, as we do, that a State court is not bound to surrender its jurisdiction upon a petition for removal until at least a petition is filed, which, upon its face, shows the right of the petitioner to the trans er, it was not error for the court to retain these causes. We need not, therefore, consider whether the act of 1867 limits the right of removal to the citizenship of the parties at the time of the commencement of the suit, or whether the State court had the right to call upon the defendants in error to show cause against the application.

Judgments affirmed.


text: Talk:Amory v. Amory (95 U.S. 186)/Opinion of the Court


text:
Kerr v. Clampitt

ERROR to the Supreme Court of the Territory of Utah.

The record in this case shows that several issues of fact regularly made up were tried by a jury in the third judicial district court of the Territory of Utah, that a verdict was returned in favor of the defendants in error for $3,583, and a judgment rendered thereon, Nov. 11, 1874; but it does not show that any exceptions were taken to the rulings of the court, either admitting or rejecting evidence, or to instructions given or to those refused, nor does it contain any thing purporting to be a bill of exceptions.

It shows, however, that a motion for a new trial was made on that day, and that a 'statement or motion for a new trial' was also filed on the 20th of March, 1875. At the foot of the statement is the following agreement, signed by attorneys for both parties: 'It is hereby agreed that the foregoing shall constitute the statement on motion for a new trial in the above-entitled cause, and is correct.' Indorsed on the statement is the following: 'Settled statement on new trial, filed March 20, 1875.'

This statement purports to give certain rulings of the court upon the admission and rejection of evidence and upon instructions to the jury given and refused, and exceptions which, it is said, were taken; but, by express agreement of the parties by their attorneys, the use of the statement is limited to the hearing of the motion for a new trial.

The record also shows that defendants below gave notice of an appeal to the Supreme Court of the Territory from the judgment entered on the verdict, as well as from that of the 1st of May, 1875, overruling the motion for new trial; and the bond recites an appeal from both judgments.

Mr. Samuel Shellabarger and Mr. Jeremiah M. Wilson for the plaintiff in error.

Mr. S. S. Henkle, contra.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Kerr v. Clampitt


text: Talk:Kerr v. Clampitt

title: Talk:Kerr v. Clampitt