text:
Thomson v. Wooster/Opinion of the Court

The appellants have assigned 14 reasons or grounds for reversing the decree. The first nine relate to the taking of the account before the master, and his report thereon; the last five relate to the validity of the letters patent on which the suit was brought. It will be convenient to consider the last reasons first. The bill, as we have seen, was taken pro confesso, and a decree pro confesso was regularly entered up, declaring that the letters patent were valid, that Douglass was the original inventor of the invention therein described and claimed, that the defendants were infringing the patent, and that they must account to the complainant for the profits made by them by such infringement and for the damages he had sustained thereby; and it was referred to a master to take and state an account of such profits and to ascertain said damages. The defendants are concluded by that decree, so far at least as it is supported by the allegations of the bill, taking the same to be true. Being carefully based on these allegations, and not extending beyond them, it cannot now be questioned by the defendants unless it is shown to be erroneous by other statements contained in the bill itself. A confession of facts properly pleaded dispenses with proof of those facts, and is as effective for the purposes of the suit as if the facts were proved; and a decree pro confesso regards the statements of the bill as confessed.

By the early practice of the civil law, failure to appear at the day to which the cause was adjourned, was deemed a confession of the action; but in later times this rule was changed, so that the plaintiff, notwithstanding the contumacy of the defendant, only obtained judgment in accordance with the truth of the case as established by an ex parte examination. Keller, Proced. Rom. § 69. The original practice of the English court of chancery was in accordance with the later Roman law. Hawkins v. Crook, 2 P. Wms. 556. But for at least two centuries past, bills have been taken pro confesso for contumacy. Id. Chief Baron GILBERT says: 'Where a man appears by his clerk in court, and after lies in prison, and is brought up three times to court by habeas corpus, and has the bill read to him, and refuses to answer, such public refusal in court does amount to the confession of the whole bill. Secondly. When a person appears and departs without answering, and the whole process of the court has been awarded against him after his appearance and departure, to the sequestration; there also the bill is taken pro confesso, because it is presumed to be true when he has appeared, and departs in despite of the court, and withstands all its process without answering.' Forum Romanum, 36. Lord HARDWICKE likened a decree pro confesso to a judgment by nil dicit at common law, and to judgment for plaintiff on demurrer to the defendant's plea. Davis v. Davis, 2 Atk. 21. It was said in Hawkins v. Crook, qua supra, and quoted in 2 Eq. Cas. Abr. 179, that 'the method in equity of taking a bill pro confesso is consonant to the rule and practice of the courts at law, where, if the defendant makes default by nil dicit, judgment is immediately given in debt, or in all cases where the thing demanded is certain; but where the matter sued for consists in damages, a judgment interlocutory is given; after which a writ of inquiry goes to ascertain the damages, and then the judgment follows.' The strict analogy of this proceeding in actions of law to a general decree pro confesso in equity in favor of the complainant, with a reference to a master to take a necessary account, or to assess unliquidated damages, is obvious and striking.

A carefully prepared istory of the practice and effect of taking bills pro confesso is given in Williams v. Corwin, Hopk. Ch. 471, by HOFFMAN, master, in a report made to Chancellor SANFORD, of New York, in which the conclusion come to, (and adopted by the chancellor,) as to the effect of taking a bill pro confesso, was that 'when the allegations of a bill are distinct and positive, and the bill is taken as confessed, such allegations are taken as true, without proofs,' and a decree will be made accordingly; but 'where the allegations of a bill are indefinite, or the demand of the complainant is in its nature uncertain, the certainty requisite to a proper decree must be afforded by proofs. The bill, when confessed by the default of the defendant, is taken to be true in all matters alleged with sufficient certainty; but in respect to matters not alleged with due certainty, or subjects which from their nature and the course of the court require an examination of details, the obligation to furnish proofs rests on the complainant.'

We may properly say, therefore, that to take a bill pro confesso is to order it to stand as if its statements were confessed to be true; and that a decree pro confesso is a decree based on such statements, assumed to be true, (1 Smith, Ch. Pr. 153,) and such a decree is as binding and conclusive as any decree rendered in the most solemn manner. 'It cannot be impeached collaterally, but only upon a bill of review, or [a bill] to set it aside for fraud.' 1 Daniell, Ch. Pr. (1st Ed.) 696; Ogilvie v. Herne, 13 Ves. 563.

Such being the general nature and effect of an order taking a bill pro confesso, and of a decree pro confesso regularly made thereon, we are prepared to understand the full force of our rules of practice on the subject. Those rules, of course, are to govern so far as they apply; but the effect and meaning of the terms which they employ are necessarily to be sought in the books of authority to which we have referred. By our rules a decree pro confesso may be had if the defendant, on being served with process, fails to appear within the time required; or if, having appeared, he fails to plead, demur, or answer to the bill within the time limited for that purpose; or if he fails to answer after a former plea, demurrer, or answer is overruled or declared insufficient. The twelfth rule in equity prescribes the time when the subpoena shall be made returnable, and directs that 'at the bottom of the subpoena shall be placed a memorandum, that the defendant is to enter his appearance in the suit in the clerk's office on or before the day at which the writ is returnable; otherwise, the bill may be taken pro confesso.' The eighteenth rule requires the defendant to file his plea, demurrer, or answer (unless he gets an enlargement of the time) on the rule-day next succeeding that of entering his appearance; and in default thereof the plaintiff may, at his election, enter an order (as of course) in the order-book that the bill be taken pro confesso; and thereupon the cause shall be proceeded in ex parte, and the matter of the bill may be decreed by the court at any time after the expiration of 30 days from the entry of said order, if the same can be done without an answer, and is proper to be decreed; or the plaintiff, if he requires any discovery or answer to enable him to obtain a proper decree, shall be entitled to process of attachment against the defendant to compel an answer, etc. And the nineteenth rule declares that the decree rendered upon a bill taken pro confesso shall be deemed absolute, unless the court shall at the same term set aside the same, or enlarge the time for filing the answer, upon cause shown upon motion and affidavit of the defendant.

It is thus seen that by our practice a decree pro confesso is not a decree as of course according to the prayer of the bill, nor merely such as the com-plainant chooses to take it; but that it is ade (or should be made) by the court, according to what is proper to be decreed upon the statements of the bill assumed to be true. This gives it the greater solemnity, and accords with the English practice, as well as that of New York. Chancellor KENT, quoting Lord ELDON, says: 'Where the bill is thus taken pro confesso, and the cause is set down for hearing, the course (says Lord ELDON, in geary v Sheridan, 8 Ves. 192) is for the court to hear the pleadings, and itself to pronounce the decree, and not to permit the plaintiff to take, at his own discretion, such a decree as he could abide by, as in the case of default by the defendant at the hearing.' Rose v. Woodruff, 4 Johns. Ch. 547, 548. Our rules do not require the cause to be set down for hearing at a regular term, but, after the entry of the order to take the bill pro confesso, the eighteenth rule declares that thereupon the cause shall be proceeded in ex parte, and the matter of the bill may be decreed by the court at any time after the expiration of 30 days from the entry of such order, if it can be done without answer, and is proper to be decreed. This language shows that the matter of the bill ought at least to be opened and explained to the court when the decree is applied for, so that the court may see that the decree is a proper one. The binding character of the decree, as declared in rule 19, renders it proper that this degree of precaution should be taken.

We have been more particular in examining this subject, because of the attempt made by the defendants on this appeal to overthrow the decree by matters outside of the bill, which was regularly taken pro confesso. From the authorities cited, and the express language of our own rules in equity, it seems clear that the defendants, after the entry of the decree pro confesso, and while it stood unrevoked, were absolutely barred and precluded from alleging anything in derogation of, or in opposition to, the said decree, and that they are equally barred and precluded from questioning its correctness here on appeal, unless on the face of the bill it appears manifest that it was erroneous and improperly granted. The attempt, on the hearing before the master, to show that the reissued patent was for a different invention from that described in the original patent, or to show that there was such unreasonable delay in applying for it as to render it void, under the recent decisions of this court, was entirely inadmissible, because repugnant to the decree. The defendants could not be allowed to question the validity of the patent which the decree had declared valid. The fact that the reissue was applied for and granted 14 years after the date of the original patent would, undoubtedly, had the cause been defended and the validity of the reissued patent been controverted, been strongly presumptive of unreasonable delay; but it might possibly have been explained, and the court could not say as matter of law, and certainly, under the decree of the court, the master could not say, that it was insusceptible of explanation. And on this appeal it is surely irregular to question the allegations of the bill. If anything appears in these allegations themselves going to show that the decree was erroneous, of course it is assignable for error; but any attempt to introduce facts not embraced in those allegations, for the purpose of countervailing the decree, is manifestly improper. The introduction of the original patent, pending the appeal, was clearly irregular.

The appellants have called attention to one matter in the allegations of the bill on which they rely, for the purpose of showing that, as matter of law, the reissued patent must be void. It is stated in their tenth assignment of error as follows: '(10) For that, on the face of the bill and the patent, the reissued patent in suit was illegally granted, and therefore void, and the court should have so held; and this court is now asked to so hold, because the bill avers that uring the fourteen years of the original term of the patent the validity of said letters patent was established in numerous suits in the circuit courts of the United States, and that all persons sued took licenses and paid therefor, as well as many others not sued, thereby averring, in substance, that the original letters patent were valid and operative; wherefore, appellants ask this court to hold that the original letters patent, having been valid and operative, as averred by complainant, for over fourteen years, no reissue thereafter could be legally obtained, because invalidity or inoperativeness are conditions precedent to the grant of a reissue.' The answer to this assignment is obvious. The suits brought on the original patent may have been for infringements committed against particular parts of the invention, or modes of using it and putting it into operation, as to which the specification was clear, full, and sufficient; while, at the same time, there may have been certain other parts of the invention, or modes of using it and putting it into operation, as to which the specification was defective or insufficient, and which were not noticed until the application for reissue was made; or, in the original patent, the patentee may have claimed as his own invention more than he had a right to claim as new,-a mistake which might be corrected at any time. At all events, the court cannot say, as mere matter of law, that this might not have been the case.

We think that the objection to the decree going to the validity of the patent and the whole cause of action cannot be sustained.

We are then brought to the proceedings in taking the account. The errors assigned on this part of the case are based on the exceptions taken to the master's report, which have already been noticed. They resolve themselves into two principal grounds of objection: First. That the master allowed the complainant all the profits made by the defendants by the use of the patented machine in folding cloths and strips as compared with doing the same thing by hand; whereas he should only have allowed the profits of using the complainant's patented machine as compared with a single folder, which the defendants allege was open to the public before their infringement commenced. Secondly. That the master, in allowing profits, took no account of the fact that folded strips, such as those used by the defendants, were an article of merchandise, cut and folded by different parties, at a charge of only 25 cents for 144 yards, or about one-sixth of a cent per yard; whereas the defendants were charged with a profit of one-half of a cent per yard.

As to the first of these objections it is to be observed, first, that no evidence was produced before the master to show that, during the period of the infringement, there was open to the public the use of any machine for folding a single edge, which was adapted to the work done by the defendants. The only evidence adduced for that purpose was the letters patent granted to S. P. Chapin, February 19, 1856, and the letters patent granted to J. S. McCurdy, dated February 26, 1856. No evidence was introduced to show that the folding-guides described in those patents were adapted to the folding of strips for corsets, which was the work required by the defendants, and for which they used the complainant's invention. On the contrary, it was proved by the positive testimony of the complainant (and not contradicted) that 'the Chapin device could not be used for folding strips of materials on one or both edges for use upon corsets,' for reasons fully detailed in the testimony; and that 'the McCurdy device is a binder calculated and adapted to fold selvaged-edged goods, such as ribbon and braid, and will fold the strip passing through it in the center only,' 'and cannot be used for folding raw-edged strips of cloth, either on one or both edges.' The complainant also testified that there was no other way known to him (and he testified that he had large experience on the subject) to do work like that done by the defendants, except by hand, or in the use of another patent owned by him, namely, the Robjohn patent, dated April 19, 1864, (which was produced in evidence,) which consisted of a folding-guide, folding one edge in combination with a device for pressing said fold to an edge, and then passing said folded strip through a narrower folder, folding the other edge, and pressing said fold by a pressing device. No evidence was adduced by the defendants to contradict this testimony.

It is proper to remark here that the affidavits presented to the master, and those afterwards presented to the court, as grounds of the respective applications to reopen the proofs, cannot be looked into on this hearing. They form no part of the evidence taken before the master on the reference; and no error is assigned (even if error could be assigned) to the refusal of the court to refer the case back to the master for the purpose of taking further testimony.

The second objection to the report is that the master, in estimating the profits chargeable to the defendants, did not take into account the fact that folded strips, such as those used by the defendants, were an article of merchandise, cut and folded by different parties at a charge of only 25 cents for 144 yards. To this objection it may be observed that the evidence before the master did not show by what process such folded strips were made, nor whether they were not really made by infringing the complainant's patent. As the proof stood before the master, they must have been made by the use of the complainant's machine, for there was no other known machine by which they could have been made at any such cost. And if made by the use of complainant's machine, the inference must be that the persons making them were infringing the complainant's patent, for they are not named in the list of those to whom the complainant had granted licenses, which list was presented before the master at the defendants' request. If made by such infringement they can hardly be set up against the complainant to reduce the amount of profits made by the defendants. There is something singular about this part of the case. If folded strips, suitable for the defendants' purpose, could have been procured in the market by them at such a low price as is pretended, why did they not procure them in that way after being enjoined against using the complainant's machine, instead of making them by the disadvantageous method of using a single folder and folding one edge at a time? Was it from a knowledge of the fact that the persons who folded such strips were infringing the complainant's patent, and a consequent unwillingness to become further complicated in such infringements? At all events, since the defendants chose to make their own folded strips in their own factory, instead of going outside to purchase them, or have them made by others, they cannot justly complain of being accountable for the profits realized in using the complainant's machine for that purpose. It might have been a better financial operation to have bought of others, or employed others to make the folded strips which they required, just as, in the case of the Cawood Patent, the railroad company would have done better not to have mended the ends of their battered rails, but to have had them cut off; but as they chose to perform the operation they became responsible to the patentee for the advantage derived from using his machine. 94 U.S. 710. We do not think that the objection is well taken.

It follows that all the reasons of appeal must be overruled.

No error or ground of appeal is assigned upon the refusal of the court below to refer the cause back to the master for the purpose of reopening the proofs, although some observations on that point are submitted in the brief of the appellants. We think that that matter was fairly addressed to the discretion of the court, and cannot properly be made the ground of obj ction on this appeal. New evidence, discovered after the hearing before the master is closed, may, in proper cases, be ground for a bill of review, on which issue may be joined and evidence adduced by both parties in the usual way. The defendants are not concluded by the refusal of the court, on mere affidavits, to refer the cause back to the master. An examination, however, of the affidavits presented to the court does not convince us that a further inquiry should have been ordered.

In thus considering the case on its merits, as presented by the evidence taken before the master, his report thereon, and the exceptions to such report we have deemed it unnecessary to make any remarks as to the status of a defendant before a master on a reference under a decree pro confesso. Both parties in this case seem to have taken for granted that the rights of the defendants were the same as if the decree had been made upon answer and proofs. In the English practice, it is true, as it existed at the time of the adoption of our present rules, (in 1842,) the defendant, after a decree pro confesso and a reference for an account, was entitled to appear before the master and to have notice of and take part in the proceedings, provided he obtained and order of the court for that purpose, which would be granted on terms. 2 Daniell, Ch. Pr. (1st Ed.) 804; Id. (2d Ed. by Perkins,) 1358; Heyn v. Heyn, Jac. 49. The former practice in the court of chancery of New York was substantially the same. 1 Hoff. Ch. Pr. 520; 1 Barb. Ch. Pr. 479. In New Jersey, except in plain cases of decree for foreclosure of a mortgage, (where no reference is required,) the matter is left to the discretion of the court. Sometimes notice is ordered to be given to the defendant to attend before the master, and sometimes not; as it is also in the chancellor's discretion to order a bill to be taken pro confesso for a default, or to order the complainant to take proofs to sustain the allegations of the bill. Nixon's Digest, 'Art. Chancery,' § 21; Gen. Orders in Chancery, XIV., 3-7; Brundage v. Goodfellow, 8 N. J. Eq. 513.

As we have seen, by our eighteenth rule in equity it is provided that if the defendant make default in not filing his plea, demurrer, or answer in proper time, the plaintiff may, as one alternative, enter an order as of course that the bill be taken pro confesso, 'and thereupon the cause shall be proceeded in ex parte.' The old rules, adopted in 1822, did not contain this ex parte clause; they simply declared that if the defendant failed to appear and file his answer within three months after appearance day, the plaintiff might take the bill for confessed, and that the matter thereof should be decreed accordingly; the decree to be absolute unless cause should be shown at the next term. See Equity Rules VI. and X. of 1882, 7 Wheat. vii., and Rendleton v. Evans, 4 Wash. C. C. 336; O'Hara v. MacConnell, 93 U.S. 150. Under these rules the English practice was left to govern the subsequent course of proceeding, by which, as we have seen, the defendant might have an order to permit him to appear before the master and be entitled to notice. Whether under the present rules a different practice was intended to be introduced, is a question which it is not necessary to decide in this case.

The decree of the circuit court is affirmed.

title: Thomson v. Wooster/Opinion of the Court


text: Talk:Thomson v. Wooster/Opinion of the Court

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Page:Eskimo Life.djvu/214

172 great end and aim of their conduct, and reflect what an all-important matter this is for them, we may perhaps pass a somewhat milder judgment.

If a Greenlander's wife does not bear children, his marriage fails of its chief purpose, and it is quite natural that he should try to find a remedy. A young man whose wife had no children once offered Niels Egede a fox-skin either to come to his aid himself in the matter, or to order one of his sailors to do so, and was much astonished to find Egede indignant at the proposal. 'There would be no disgrace,' he said, 'for she is married, and she could have one of your married sailors.'

It appears, however, that even the married Greenlanders are not by nature devoid of what we understand as moral feeling, for their everyday behaviour is, as a rule, quite reputable and void of offence; on that point all travellers must agree.

If a heathen—and in many cases even a Christian—Greenlander refrains from having to do with another mans wife, whom he has looked upon with favour, it is generally, no doubt, more because he shrinks from quarrelling with the husband than because he regards adultery as morally wrong; but we may gather from the following saying, current at Angmagsalik, that even on the east coast there is a vague feeling that it is not the right thing. 'The

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Hayes v. Holly Springs

H. T. Ellett, for plaintiff in error.

W. S. Featherston and ''Ed. M. Watson'', for defendants in error.

BLATCHFORD, J.

title: Hayes v. Holly Springs


text: Talk:Hayes v. Holly Springs

title: Talk:Hayes v. Holly Springs


text:
Hayes v. Holly Springs/Opinion of the Court

This is a suit at law brought by J. Addison Hayes, in the district court of the United States for the Northern district of Mississippi, against the mayor and aldermen of the city of Holly Springs, to recover the sum of $8,560, as due on 568 coupons, cut from 43 bonds, for the payment of $16,250, purporting to be issued by the city of Holly Springs, in the state of Mississippi, the bonds and coupons being owned by the plaintiff. Each bond is in the following form:

'State of Mississippi, City of Holly Springs. Bond. Issued in     payment of stock of the Selma, Marion & Memphis Railroad Co. No. ___, $ _____. Fifteen years.

'Know all men by these presents that the city of Holly     Springs, Marshall county, in the state of Mississippi,      acknowledges itself indebted and firmly bound to the Selma,      Marion & Memphis Railroad Company, in the sum of _____      dollars, which sum the city of Holly Springs promises to pay      to the Selma, Marion & Memphis Railroad Company, or bearer,      at the Holly Springs Savings & Insurance Company, Holly      Springs, Mississippi, on the first day of January, A. D. one      thousand eight hundred and eighty-seven, together with the      interest thereon from the first day of January, A. D. one      thousand eight hundred and seventy-two, at the rate of eight      per cent. per annum, which interest shall be payable     semi-annually, on the presentation and delivery of the      attached interest coupons, at the office of the said Holly      Springs Savings & Insurance Company.

This bond is issued under and in pursuance to an order of the     board of mayor and aldermen of the city of Holly Springs,      Marshall county, state of Mississippi, made under authority      of the constitution of the state of Mississippi and the laws      of the legislature of the state of Mississippi, and      authorized by a vote of the people of the said city of Holly      Springs at a special election held for the purpose.

[Corporate seal.] 'In testimony whereof, the said city of     Holly Springs has executed this bond by the mayor of said      city, under the order of said city's board of mayor and      aldermen, signing his name thereto, and by the treasurer of      said city, under the order thereof, attesting the same, and      affixing thereto the said seal of the said city of Holly      Springs.

'This done at the city of Holly Springs, Marshall county,     state of Mississippi, this first day of January, A. D. 1872.

'HENRY A. COOPER, Mayor of the City of Holly Springs.

'LEWIS BEEHLER, Treasurer of the City of Holly Springs.'

The questions in the case arise on a demurrer to the declaration, the facts alleged in which are as follows:

The defendant is a municipal corporation created by the legislature of the state of Mississippi. By the constitution of Mississippi, adopted December 1, 1869, and still in force, it is provided as follows, by article 12, § 14: 'The legislature shall not authorize any county, city, or town to become a stockholder in, or to lend its credit to, any company, association, or corporation, unless two-thirds of the qualified voters of such county, city, or town, at a special election, or regular election, to be held therein, shall assent thereto.' In the fall of 1871 the inhabitants of the city of Holly Springs were desirous that the city should subscribe for stock in the Selma, Marion & Memphis Railroad Company, whose road was to be constructed through or near the city. The mayor and aldermen, in conformity to the wishes of the inhabitants, on the ___ day of _____, 1871, ordered a special election to be held, in pursuance of the constitution, on the thirtieth day of December, 1871, to ascertain whether two-thirds of the qualified voters of the city would assent to a subscription by it to $75,000 of the capital stock of said company, and to issue the bonds of the city in payment of the subscription, 'having to run' to the first of January, 1887, and bearing interest at 8 per cent. per annum, payable semi-annually. Due notice was given of the election, and it was held on the thirtieth of December, 1871, under the direction and supervision of the mayor and aldermen; and, at the election, largely more than two-thirds of all the qualified voters of the city voted in favor of the subscription and the issuing of the bonds, and assented thereto, and thereby authorized and directed the mayor and aldermen to make the subscription, and to issue and deliver the bonds. After the election, to-wit, on the first of January, 1872, the defendant, in purs ance of the vote, subscribed for $75,000 of the capital stock of the company, and agreed and undertook to issue its bonds in payment thereof as soon as the same could be prepared, and received the regular and proper certificates therefor, which it still holds and has never surrendered, or offered to surrender. By an act of the legislature of Mississippi, approved March 16, 1872, (Laws 1872, c. 75, p. 313,) entitled 'An act to facilitate the construction of the Selma, Marion & Memphis Railroad,' it was provided (section 4) 'that all subscriptions to the capital stock of the said Selma, Marion & Memphis Railroad company, made by any county, city, or town in this state, which were not made in violation of the constitution Railroad Company, made by any county, ratified, and confirmed.' By another act of that legislature, approved April 19, 1872, (Laws 1872, c. 102, p. 120,) it was provided (section 1) 'that any county through which any railroad will pass, incorporated city or town along the line of any railroad, or contiguous thereto, may subscribe to the capital stock of said company in any sum;' and (section 2) 'that no such subscription shall be made until the question has been submitted to the legal voters of such county or counties, city or cities, incorporated town or towns, in which the subscription is proposed to be made;' and (section 3) that if it shall appear that two-thirds of the legal voters of such county, city, or town have voted for subscription, the subscription shall be made, and bonds not having more than 20 years to run to maturity be issued to the company therefor. On the twenty-sixth of April, 1872, the defendant, in payment of the subscription, executed and delivered to the company its coupon bonds, under its corporate seal, to the amount of $75,000, bearing date January 1, 1872, and payable January 1, 1887, with interest at the rate of 8 per cent. per annum, payable semi-annually, and in the form before set forth, with coupons for the semi-annual interest attached, of the following form:

'CITY OF HOLLY SPRINGS,

'MARSHALL COUNTY, MISSISSIPPI, January 1, 1872.

'$_____. The city of Holly Springs acknowledges to owe the     sum of _____ dollars, payable to bearer on the first day of      _____, 18__, at the office of the Holly Springs Savings &      Insurance Company, Holly Springs, Mississippi, for six      months' interest on bond No. ___, (No. of bond.)

'LEWIS BEEHLER, Treasurer of the City of Holly Springs.'

After the issuing and delivery of the bonds to the company, the defendant, for several years, continued to levy and collect taxes for the payment of the interest accruing on the bonds, and took up the coupons as they fell due, and voted the stock so subscribed in the election of directors of the company, and in all stockholders' meetings of the company. On the first of January, 1875, the plaintiff became the bona fide holder for value, in due course of trade, and without any notice or knowledge of any illegality in the bonds or want of power to issue them, of 43 of the bonds, and is the owner of 568 of the coupons, identifying sufficiently the bonds and coupons.

The demurrer sets forth, as causes of demurrer, that the declaration does not show that there was any power to order the election, or to hold it, or to subscribe for the stock, or to issue the bonds and coupons. The court sustained the demurrer, and judgment was given for the defendant. The plaintiff has brought a writ of error.

It is not claimed there was any statute in existence which authorized at the time the action of the mayor and aldermen of the city in ordering what is called the 'special election' to be held, or which authorized at the time the holding of any election, general or special, on the question of a subscription to the stock of the company. Under the provision of the constitution of Mississippi before cited, it is clear that the authority of the legislature is necessary to enable the county, city, or t wn to become a stockholder in, or lend its credit to, a corporation. The act of March 16, 1872, relied on as the validating act, was passed after the so-called election took place, and after the making of the subscription, but before the issuing of the bonds.

It is contended for the plaintiff in error that the constitution contemplated that the vote might be taken in advance of the granting by the legislature of authority to subscribe. But, however that may be, it is manifest, we think, that the provision of the constitution confers no authority to subscribe for stock. The legislature must authorize the subscription, either by a statute passed in advance, providing for an election, and for obtaining the assent of the required two-thirds of the qualified voters, to be followed by a subscription; or by a proper statute of distinct ratification and authorization, passed after there has been such assent of two-thirds of the qualified voters, at an election, as the constitution requires. The provision is inhibitory on the legislature, and not permissive or enabling to the city. Whether the voting which the declaration says took place was the holding of such an election as the constitution contemplated, (for the assent is to be given at an election to be held, and not otherwise,) is a question not necessary to be decided; because we are of opinion that the act relied on as a validating or ratifying act has no such effect. It provides 'that all subscriptions to the capital stock of the' company in question, 'made by any county, city, or town in this state, which were not made in violation of the constitution of this state, are hereby legalized, ratified, and confirmed.' It is urged that the qualifying words, 'which were not made in violation of the constitution of this state,' were unnecessary, because the legislature could not make valid any act done in violation of the constitution; and it is sought to have the provision construed as if it read that all subscriptions made after such a voting as took place in this case are legalized, ratified, and confirmed. But this assumes that the legislature regarded such voting as being the holding of such a special election as the constitution requires. If the legislature had destinctly, in words, designated and identified such voting, and adopted it as being such an election, and as evidencing the assent required by the constitution, it might be held that there was an intention manifested to ratify this particular voting and assent and subscription, still leaving it open to be determined whether, on the whole, the constitution had been complied with, and the legislature had, in fact and in law, authorized the subscription. Such a designation and identification of a voting at an election, described as resulting in an approval by the constitutional two-thirds of the qualified voters, followed by an authority to Grenada county, declared to based on such approval, to subscribe for stock in the Vicksburg & Nashville Railroad Company, is found in the act of the legislature of Mississippi, approved January 27, 1872, (Laws 1872, c. 71, p. 290, § 4,) seven weeks before the act in question was approved. It was the act involved in Grenada Co. v. Brogden, 112 U.S. 261, S.C.. ante, 125, where this court held that it was a valid confirmatory act. But no such view can be taken of the act in this case. The intention of the legislature to confirm and ratify the subscription in question cannot be ascertained, with certainty, from the language of the act, which is too vague to form the basis of so important an authority as that sought to be deduced from it. As is said in State v. Stoll, 17 Wall. 425, 436, if the legislature intended to do what is claimed, 'it was bound to do it openly, intelligibly, and in language not to be misunderstood,' and 'as a doubtful or obscure declaration would not be justifiable, so it is not to be imputed.' Even a bona flde holder of a municipal bond is bound to show legislative authority in the iss ing body to create the bond. Recitals on the face of the bond or acts in pais,operating by way of estoppel, may cure irregularities in the execution of a statutory power, but they cannot create it. If, as in the present case, legislative authority was wanting, the bond has no validity.

The general act of April 19, 1872, is referred to in the declaration. But it does not avail in this case; for, although the bonds were issued after its passage, the subscription took place before, and the act applies only to future elections and subscriptions, and authorizes only bonds bearing interest at 7 per cent. per annum. Judgment affirmed.


text: Talk:Hayes v. Holly Springs/Opinion of the Court


text:
Tower v. Fletcher

M. D. Brainard and J. K. Redington, for motions.

''Wm. J. Johnston'', in opposition.

WAITE, C. J.

title: Tower v. Fletcher


text: Talk:Tower v. Fletcher

title: Talk:Tower v. Fletcher


text:
Tower v. Fletcher/Opinion of the Court

These motions are made on the ground that the judgments for the review of which the writs of error were sued out are not final judgments. The judgment in each case is that the judgment of the state district court 'be, and the same is hereby, reversed, with costs, with directions to the superior court of Los Angeles county to enter judgment upon the findings for the plaintiff as prayed for in his complaint.' That judgment is final for the purposes of a writ of error to this court, which terminates the litigation between the parties on the merits of the case, so that, if there should be an affirmance here, the court below would have nothing to do but to execute the judgment it had already rendered. Bostwick v. Brinkerhoff, 106 U.S. 3; S.C.. 1 SUP. CT. REP. 15, and the numerous cases there cited. The judgments in these cases are of that character. The litigation is ended, and the rights of the parties on the merits have been fully determined. Nothing remains to be done but to require the inferior court to perform the ministerial act of entering the judgments in that court which have been ordered. This is but carrying the judgment of the supreme court which has been rendered into execution. Nothing is left to the judicial discretion of the court below. The cases relied on in support of the motions to dismiss were all judgments or decrees of reversal, with leave for further proceedings in the inferior court. Such judgments are not final, because something yet remains to be done to complete the litigation. The motion, in each of the cases, is overruled.

title: Tower v. Fletcher/Opinion of the Court


text: Talk:Tower v. Fletcher/Opinion of the Court


text:
Butterworth v. Hill

''Sol. Gen. Phillips and Frank T. Brown'', for appellant.

W. E. Simonds.

for appellee.

WAITE, C. J.

title: Butterworth v. Hill


text: Talk:Butterworth v. Hill

title: Talk:Butterworth v. Hill


text:
Page:Stubbs's Calendar or The Fatal Boots.djvu/73

Rh The red-coats carried every thing before them in those days; and I, such a crack character as I was in my regiment, was very well received by the towns-people; many dinners I had; many tea-parties; many lovely young ladies did I lead down the pleasant country-dances.

Well, although I had had the two former rebuffs in love, which I have described, my heart was still young; and the fact was, knowing that a girl with a fortune was my only chance, I made love here as furiously as ever. I sha'n't describe the lovely creatures on whom I fixed, whilst at Portsmouth. i tried more than—several—and it is a singular fact, which I never have been able to account for, that, successful as I was with ladies of maturer age, by the young ones I was refused regular.

But "faint heart never one fair lady;" and so I went on, and on, until I had really got a Miss Clopper, a tolerably rich navy-contractor's daughter, into such a way, that I really don't think she could have refused me. Her brother, Captain Clopper, was in a linefine [sic]


text:
Butterworth v. Hill/Opinion of the Court

This is an appeal from a decree on a bill in equity filed in the circuit court of the United States for the district of Vermont against the commissioner of patents, under section 4915 of the Revised Statutes. That section is as follows. 'Sec. 4915. Whenever a patent, on application, is refused, either by the commissioner of patents, or by the supreme court of the District of Columbia upon appeal from the commissioner, the applicant may have remedy by bill in equity; and the court having cognizance thereof, on notice to adverse parties and other due proceedings had, may adjudge that such applicant is entitled, according to law, to receive a patent for his invention as specified in his claim, or for any part thereof, as the facts in the case may appear. And such adjudication, if it be in favor of the right of the applicant, shall authorize the commissioner to issue such patent on the applicant filing in the patent-office a copy of the adjudication, and otherwise complying with the requirements of law. In all cases where there is no opposing party, a copy of the bill shall be served on the commissioner; and all the expenses of the proceeding shall be paid by the applicant, whether the final decision is in his favor or not.' On the filing of the bill, a subpoena was issued commanding the 'commissioner of patents of the United States of America' to appear before the court in Vermont and answer. On the eighteenth of October, 1883, the commissioner made the following indorsement on the writ:

'WASHINGTON, D. C., October 18, 1883.

'I hereby accept service of the within subpoena, to have the     same effect as if duly served on me by a proper officer, and      I do hereby acknowledge the receipt of a copy thereof.

E. M. MARBLE, Com'r of Ratents.

'(Office of Com'r of Patents. Received Oct. 18, 1883.)'

And afterwards, and on said twenty-third day of October, A. D. 1883, a letter from the commissioner of patents was filed, which said letter is in the words and figures following:

'DEPARTMENT OF THE INTERIOR,

'UNITED STATES PATENT-OFFICE,

'WASHINGTON, D. C., October 18, 1883.

'SIR: I am in receipt of your letter of the 16th instant,     inclosing copy of a bill of complaint entitled Hill &      Prentice et al. v. The Commissioner of Patents of the United      States of America, in the United States circuit court for the      district of Vermont, praying that said court direct the      commissioner of patents to issue a patent to the assignees of      Hill & Prentice for the invention disclosed and claimed in their application      filed in this office March 30, 1880, for an improvement in      milk-coolers; also a subpoena to appear and answer to said      bill on the 5th proximo and a certified copy of said      subpoena. I herewith return the subpoena, service accepted,     and have to inform you that I shall not appear in defense in      said bill.

'Very Respectfully,

E. M. MARBLE, Commissioner.

Mr. W. E. Simonds, Hartford, Conn.

No other service of process as mdae on the commissioner, and he made no other appearance in the cause than such as may be implied from his acceptance of service and his letter as above. In due course of proceeding a decree was entered adjudging that 'Samuel Hill and Benjamin B. Prentice, as inventors, and the Vermont Machine Company, as assignee of said inventors, are entitled to have issued to them letters patent * *  * as prayed for in the petition and bill of complaint.' No one was made defendant to the bill except the commissioner of patents, and Hill, Prentice, and the machine company, the complainants, were all citizens of Vermont. Benjamin Butterworth, the commissioner of patents, took this appeal, and the only question presented under it for our consideration is whether the circuit court of the district of Vermont had jurisdiction so as to bind the commissioner by the decree which was rendered.

It is contended that the supreme court of the District of Columbia has exclusive jurisdiction of suits against the commissioner brought under this section of the Revised Statutes. In the view we take of this case, however, that question need not be decided. By section 739 of the Revised Statutes, as well as by the act of March 3, 1875, c. 137, § 1, (18 St. 470,) it is provided in substance that, with some exceptions which do not apply to this case, 'no civil suit shall be brought before either of said courts [the circuit or district courts of the United States] against an inhabitant of the United States, by any original process, in any other district than that of which he is an inhabitant, or in which he may be found at the time of serving the writ.' We entertain no doubt that this statute applies to suits brought under section 4915. The applicant is to have his remedy under that section by bill in equity, and by the adjudication 'of the court having cognizance thereof, on notice to adverse parties, and other due proceedings had.' A bill in equity implies a suit in equity, with process and parties. The prayer for process is one of the component parts of the structure of a bill, and its purpose is to compel the defendant to appear and abide the determination of the court on the subjectmatter of the proceeding. Story, Eq. Pl. § 44.

The bill in this case was filed against the commissioner alone, and it does not appear that he was an inhabitant of the district of Vermont. The patentoffice is in the department of the interior, (Rev. St. § 475.) which is one of the executive departments of the government at the seat of government, in the District of Columbia. Rev.St. § 437. The commissioner of patents is by law located in the patent-office. Rev. St. § 476. His official residence is therefore at Washington, in the District of Columbia. The subpoena in this case was delivered to him in the District of Columbia, and his acceptance of service was made there. That is apparent from the face of his indorsement and the letter which was written afterwards, and filed in the cause undoubtedly as proof of a delivery of a copy of the bill which the law required should be served on him. Both the indorsement and the letter purport to have been written at Washington, and the letter in the patent-office. Unless, therefore, the acceptance of service as indorsed on the writ is to be treated as a voluntary appearance by the commissioner in the court in Vermont, without objection to the jurisdiction, the case stands as it would if the process had been actually served on him in the District of Columbia by some competent officer. The circuit court was of opinion that by his acceptance of service the commissioner waived all objection to the jurisdiction, and consented to be sued away from the seat of government and from his residence. In this we think there was error. The fair meaning of the indorsement on the writ is that the commissioner admits the service with the same effect it would have if made by an officer in the District of Columbia. No appearance is thereby entered in the cause. Service o the subpoena in the District is acknowledged, but nothing more. In the letter which followed the indorsement of service, both counsel and the court were informed that the commissioner declined to appear. The parties proceeded, therefore, at their own risk, and without the consent of the defendant to the jurisdiction of the court. Such being the case, we are of opinion that the court was without jurisdiction, and had no authority to enter the decree which has been appealed from. The act of congress exempts a defendant from suit in any district of which he is not an inhabitant, or in which he is not found at the time of the service of the writ. It is an exemption which he may waive, but unless waived he need not answer, and will not be bound by anything which may be done against him in his absence. What is here said, of course, does not apply to cases where the suit is brought and service is made under sections 736, 737, and 738 of the Revised Statutes.

Without considering any of the other questions which have been presented in the argument, or which might be suggested under the statute, we reverse the decree of the circuit court and remand the cause, with instructions to dismiss the bill without prejudice, for want of jurisdiction.


text: Talk:Butterworth v. Hill/Opinion of the Court


text:
Page:Eskimo Life.djvu/215

Rh whale, the musk-ox, and the reindeer,' so the saying runs, 'left the country because men had too much to do with other men's wives.' Many men declared, however, that it was 'because the women were jealous of their husbands.' The jealousy of the women was also alleged as a reason for the fact that the channel which formerly went right through the country, from the Sermelik Fiord to the west coast, had been blocked with ice.

Egede relates that, strangely enough as he thought, the women before his arrival had felt no jealousy when their husbands had more wives than one, 'and got on very well with each other'; but as soon as he had preached to them the wickedness of such proceedings, they began to show much annoyance when their husbands wanted to take second wives. 'When I have been reading with them,' he says, 'and instructing them in the Word of God, they have often urged me to bring the seventh commandment sharply home to their husbands.' The men, as may be supposed, did not at all approve of the missionaries' influence over the women in this respect, and one of them, whose two wives had fallen by the ears, said angrily to Niels Egede: 'You have spoiled them with your teaching, and now they're jealous of each other.' It appears to me

title: Page:Eskimo Life.djvu/215


text:
Detroit City Railway Company v. Guthard

John C. Donnelly, F. A. Baker, and ''Geo. F. Edmunds'', in opposition to motion.

Henry M. Duffield, for motion.

WAITE, C. J.

title: Detroit City Railway Company v. Guthard


text: Talk:Detroit City Railway Company v. Guthard


text:
Detroit City Railway Company v. Guthard/Opinion of the Court

This is a motion to dismiss a writ of error to the supreme court of Michigan on the ground that the record does not show that any federal question is involved. The case is this:

The Detroit City Railway Company was organized in May, 1863, under a general law of Michigan to provide for the construction of tram railways, passed February 13, 1855, to operate a street railway in Detroit. Article 15, § 1, of the constitution of the state, which went into effect January 1, 1851, is as follows: 'Corporations may be formed under general laws, but shall not be created by special act, except for municipal purposes. All laws passed pursuant to this section may be amended, altered, or repealed.'

Sections 22 and 31 of the law under which the railway company was incorporated are as follows:

'Sec. 22. Each and every railway company formed under this act shall pay to the treasurer of the state of Michigan an annual tax at the rate of one-half of one per cent. on the whole amount of capital paid in upon the capital stock of said company, which said tax shall be estimated upon the last preceding report of said company, and shall be paid to the said treasurer on the first Monday of July in each year, and shall be in lieu of all other taxes upon all the property of said company.'

'Sec. 31. The legislature may at any time alter, amend, or repeal this act, but such alteration, amendment, or repeal shall not operate as an alteration or amendment of the corporate rights of companies formed under it, unless specially named in the act so altering or amending this act, nor shall the dissolution of any such company take away or impair any remedy given for or against said corporation, its stockholders or officers, for any liability which shall have been previously incurred.'

Section 22 of this act was repealed March 13, 1882. In the repealing act the Detroit City Railway Company was not specially named. On the four-teenth of March, 1882, a general tax law was enacted. This law provided that all property within the jurisdiction of the state not expressly exempt should be subject to taxation, and that all corporate property, except when some other provision is made by law, should be assessed to the corporation as to a natural person in the name of the corporation. Under the authority of this last law, the city of Detroit assessed a tax on the property of the railway company, and Guthard, the receiver of taxes for the city, on failure of the company to comply with his demand for payment, in regular course of his proceeding for the collection, levied upon 61 horses to sell at public auction and make the money. The company thereupon brought an a tion of replevin for the recovery of the horses. Upon the trial of this action the only question in dispute was as to the validity of the tax. The supreme court of the state, on writ of error, decided that the tax was valid, and gave judgment accordingly. To reverse that judgment this writ of error was brought.

The rule which governs our jurisdiction in this class of cases is thus stated by Mr. Justice MILLER for the court in Bridge Prop'rs v. Hoboken Co. 1 Wall. 143: 'The court must be able to see clearly, from the whole record, that a certain provision of the constitution or act of congress was relied on by the party who brings the writ of error, and that the right thus claimed by him was denied.' In Crowell v. Randell, 10 Pet. 398, one of the propositions 'established,' after a careful review of the cases, was 'that it is not sufficient to show that a question might have arisen, or been applicable to the case, unless it is further shown, on the record, that it did arise, and was applied by the state court in the case.' And at * the last term, in Chouteau v. Gibson, 111 U.S. 200, S.C.. 4 SUP. CT. REP. 340, it was said: 'From the beginning it has been held that, to give us jurisdiction in this class of cases, it must appear affirmatively on the face of the record, not only that a federal question was raised and presented to the highest court of the state for decision, but that it was decided, or that its decision was necessary to the judgment or decree rendered in the case.' Murdock v. Memphis, 20 Wall. 590, 636.

The reason of this rule is obvious. Our jurisdiction for the review of a judgment of the highest court of a state depends on the decision by that court of one or more of the questions specified in section 709 of the Revised Statutes, and in the way there mentioned. If there has been no such decision in the suit, there can be no re-examination of the judgment here. It is what was actually decided that we are to consider, not what might have been decided; and, as our jurisdiction must appear affirmatively on the face of the record before we can proceed, the record must show, either in express terms or by fair implication, not only the question, but its decision. It is not enough to find by searching after judgment that the lequisite question might have been raised and presented for decision. It must appear that it was actually raised and actually decided. Brown v. State of Colorado, 106 U.S. 97; S.C.. 1 SUP. CT. REP. 175.

It remains only to apply this well-established rule to the facts as they appear in this record. The claim now is that, under the operation of sections 22 and 31 of the incorporating act, the state entered into a contract with this corporation not to subject it to taxation otherwise than in the way provided in section 22, unless it did so by a statute in which the company should be specially named. The record certainly does not show that any such claim was made in the state courts, or that such a question was raised or presented for decision, or that it was decided. Nothing of the kind appears, either in the pleadings or the findings of fact, on which alone the case was heard in the supreme court. The apparent question presented for decision was whether the state had changed the mode of taxation by what was done, not whether it was prohibited by the constitution of the United States from doing so without specifying that the repeal of section 22, and the provisions of the general tax law of 1882, were to operate on this particular company, and referring to it by name. No judge, in deciding the case as it came up on the record, would be likely to suppose that, if he gave judgment for the receiver of taxes, he would deny the company any 'right, title, privilege, or immunity' 'specially set up or claimed' under the constitution of the United States. It is true that such a right might have been set up and claimed, and if the court below had certified in proper form that it was, and t at it was denied, we could have taken jurisdiction. The court has, however, not only not made such a certificate, but it has expressly refused to do so upon application specially made for that purpose. All this appears affirmatively in the motion papers.

We are referred to the opinion of the court below, which is found in the transcript, as showing a decision of the federal question involved. The constitution of Michigan requires that the opinion of the supreme court shall be in writing, signed by the judges concurring therein, and filed by the clerk. From the opinion in this case it appears that the point determined, and on which the judgment rested, was that the term 'corporate rights,' as used in section 31, did not include incidental privileges and immunities, such as a special standard of taxation. No reference whatever is made to any question of charter contract.

On the whole we are satisfied we have no jurisdiction in the case, and the motion to dismiss is granted.


text: Talk:Detroit City Railway Company v. Guthard/Opinion of the Court


text:
Farmington Village Corp v. Pillsbury

This was a suit upon coupons for semi-annual interest on the bonds of the Farmington Village Corporation, and among the defenses set up was one to the effect that the plaintiff was not a bona fide holder of the coupons in suit, but that they were placed in his hands merely for the purpose of bringing a suit in the circuit court of the United States. The case was tried by the court without the intervention of a jury, and comes here with a special finding of facts, and a certificate of division of opinion between the judges holding the court upon certain questions arising at the trial. Among the questions certified was this: 'Whether the plaintiff can maintain an action in this court upon the coupons declared upon, the bonds or instruments to which they were attached not being assigned to him, but having been issued to and always held by citizens of Maine.'

The facts applicable to this question, which appear in the special findings, are these: The bonds from which the coupons were cut were issued by Farmington village under a private statute passed by the legislature of Maine authorizing the village corporation to raise money to aid in the extension of the road of the Androscoggin Railroad Company to some point within or near the limits of the village. The bonds were issued by the assessors and treasurer of the village to a committee of citizens, who were authorized to sell and dispose of them for the purpose mentioned in the statute. Before the committee received any of the bonds from the assessors and treasurer, and before July 1, 1870, which was the date of the bonds, Jonas Burnham and 11 others, all citizens, owners of property subject to taxation, and tax-payers in the village corporation, filed a bill in equity in the supreme judicial court of the state of Maine, in Franklin county, against the railroad company, the assessors and treasurer, and the committee of the village, to enjoin them from issuing the bonds, on the ground of a want of authority of law for that purpose. This suit was entered at the July term, 1870, of the court, and held under advisement until the third of August, 1872, when the bill was dismissed without prejudice. After this, on the twelfth of August, 1872, other tax-payers filed another bill of the same general character against the same defendants and the village corporation to obtain substantially the same relief. To this bill the village corporation filed an answer, and the railroad company a general demurrer. The case was heard by the court as the July term, 1873, and kept under advisement until August 27, 1878, when a decree was rendered sustaining the bill and granting the injunction prayed for. The opinion of the court is reported in 70 Me. 515, and is to the effect that the statute authorizing the village corporation to aid the extension of the railroad was unconstitutional and void. This opinion was concurred in by only four of the eight judges composing the court at the time of the hearing. One judge, who sat in the cause, died while the opinion was in his hands for examination, and his death made the four judges a majority of the court at the time of the decision.

Notwithstanding the pendency of the original suit, the bonds were put out, and, with the exception of a few only, were bought by citizens of Farmington and members of the village corporation. The coupons in suit were collected from various holders of the bonds, all residents of Farmington and citizens of the state of Maine, about May, 1880, and transferred to the plaint ff, a citizen of Massachusetts, separate from the bonds. The plaintiff gave his note and agreement for these coupons to the agent of the holders who had taken them to dispose of, as follows:

'$500.

BOSTON, May 5, 1880.

'For value received I promise to pay to P. Dyer five hundred     dollars in two years, with interst.

E. F. PILLSBURY.'

'BOSTON, May 5, 1880.

'Whereas, I have this day bought of P. Dyer, of Farmington,     coupons of the Farmington village corporation to the amount      of $7,922, and given him my note for the same; as a further      consideration for said coupons, I agree that, if I succeed in      collecting the full amount of said coupons, I will pay him      fifty per cent. of the net amount collected above said five     hundred dollars, and pay him as soon as I collect the money      from said corporation.

'E. F. PILLSBURY.'

This suit was begun July 1, 1880.

''Wm. L. Putnam'', for plaintiff in error.

''Chas. F. Libby'', for defendant in error.

[Argument of Counsel from pages 140-141 intentionally omitted]

WAITE, C. J.

By the original judiciary act of September 24, 1789, c. 20, (1 St. 73,) it was provided (section 11) that no district or circuit court should 'have cognizance of any suit to recover the contents of any promissory note or other chose in action in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents if no assignment had been made, except in cases of foreign bills of exchange.' The same act provided (section 12) for the removal of suits from a state court to the circuit court by a defendant, and he was required to file his petition for such a removal at the time of entering his appearance in the state court.

By the act of March 3, 1875, c. 137, § 1, (18 St. 470,) section 11* of the act of 1789 was changed so as to provide that the circuit and district courts should not have cognizance of any suit founded on contract in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made, except in cases of promissory notes negotiable by the law-merchant and bills of exchange. By the same act, sections 2 and 3, removals could be effected by either party, when the necessary citizenship existed, if a petition was filed therefor in the state court, before or at the term at which the cause could be first tried, and before the trial thereof. This last act also contained this provision, (section 5:) 'If, in any suit commenced in a circuit court, or removed from a state court, * * * it shall appear to the satisfaction of the circuit court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a suit or controversy properly within the jurisdiction of said circuit court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said circuit court shall proceed no further therein, but shall dismiss the suit or remand it to the state court from which it was removed, as justice may require, and shall make such order as to costs as shall be just; but the order of the circuit court, dismissing, or remanding said cause to the state court, shall be reviewable by the supreme court on writ of error, or appeal, as the case may be.'

Under the act of 1789, the jurisdiction of the courts of the United States, in suits by assignees of choses in action, was confined within narrow limits, and there was comparatively little danger of collusion, to create a case of that character cognizable by those courts, because, if the owner of the claim could sue in his own name, there would ordinarily be no motive for transferring it to another to bring the action. In that act, promissory notes and inland bills of exchange, the form of negotiable securities most used in the transaction of ordinary business by citizens of the United States, were included in the prohibition of suits by assignees.

The subject of colorable transfers to create a case for the jurisdiction of the cou ts of the United States was presented for the most part in suits for the recovery of real property, when a conveyance had been made by a citizen of the state in which the suit must be brought to a citizens of another state. At a very early day it was held in this class of cases that the citizenship of the parties could not be put in issue on the merits, but that it must be brought forward at an earlier stage in the proceedings by a plea in abatement, in the nature of a plea to the jurisdiction, and that a plea to the merits was a waiver of such a plea to the jurisdiction. De Wolf v. Rabaud, 1 Pet. 498; Evans v. Gee, 11 Pet. 83; Sims v. Hundley, 6 How. 5; Smith v. Kernochen, 7 How. 216; Jones v. League, 18 How. 81; De Sobry v. Nicholson, 3 Wall. 423. And upon the question of transfer it was uniformly held that, if the transaction was real, and actually conveyed to the assignee or grantee all the title and interest of the assignor or grantor in the thing assigned or granted, it was a matter of no importance that the assignee or the grantee could sue in the courts of the United States, when his assignor or grantor could not. A suit by such an assignee or grantee would present, in reality, a controversy between the plaintiff on the record and the defendants. McDonald v. Smalley, 1 Pet. 620; Smith v. Kernochen, supra; Barney v. Baltimore, 6 Wall. 288. But it was equally well settled that if the transfer was fictitious, the assignor or grantor continuing to be the real party in interest, and the plaintiff on record but a nominal or colorable party, his name being used only for the purpose of jurisdiction, the suit would be essentially a controversy between the assignor or grantor and the defendant, notwithstanding the formal assignment or conveyance, and that the jurisdiction of the court would be determined by their citizenship rather than that of the nominal plaintiff. Maxwell's Lessee v. Levy, 2 Dall. 381, S.C.. 4 Dall. 330, decided by Mr. Justice IREDELL and PETERS, J., in the Pennsylvania circuit, in 1797; Smith v. Kernochen, supra; Barney v. Baltimore, supra.

title: Farmington Village Corp v. Pillsbury


text: Talk:Farmington Village Corp v. Pillsbury


text:
Farmington Village Corp v. Pillsbury/Opinion of the Court

Such was the condition of the law when the act of 1875 was passed, which allowed suits to be brought by the assignees of promissory notes negotiable by the law-merchant, as well as of foreign and domestic bills of exchange, if the necessary citizenship of the parties existed. This opened wide the door for frauds upon the jurisdiction of the court by collusive transfers, so as to make colorable parties and create cases cognizable by the courts of the United States. To protect the courts as well as parties against such frauds upon their jurisdiction, it was made the duty of a court, at any time when it satisfactorily appeared that a suit did not 'really and substantially involve a dispute or controversy' properly within its jurisdiction, or that the parties 'had been improperly or collusively made or joined * *  * for the purpose of creating a case cognizable' under that act, 'to proceed no further therein,' but to dismiss the suit or remand it to the state court from which it had been removed. This, as was said in Williams v. Nottawa, 104 U.S. 211, 'imposed the duty on the court, on its own motion, without waiting for the parties, to stop all further proceedings and dismiss the suit the moment a fraud on its jurisdiction was discovered.' The old rule established by the decisions, which required all objections to the citizenship of the parties, unless shown on the face of the record to be taken by plea in abatement before pleading to the merits, was changed, and the courts were given full authority to protect themselves against the false pretenses of apparent parties. This is a salutary provision which ought not to be neglected. It was intended to promote the ends of justice, and is equivalent to an express enactment by congress that the circuit courts shall not have jurisdiction of suits which do not really and substantiall involve a dispute or controversy of which they have congizance, nor of suits in which the parties have been improperly or collusively made or joined for the purpose of creating a case cognizable under the act. It does not, any more than did the act of 1789, prevent the courts from taking jurisdiction of suits by an assignee when the assignment is not fictitious and actually conveys all the interest of the assignor in the thing assigned, so that the suit when begun involves really and substantially a dispute or controversy in favor of the assignee for himself and on his own account against the defendant; but it does in positive language provide that, if the assignment is collusive, and for the purpose of enabling the assignee to sue in the courts of the United States for the benefit of the assignor, when the assignor himself could not bring the action, the court shall not proceed in the case. In this respect it goes further than the rulings of the courts under the act of 1789. Under its provisions the holders of promissory notes, or of foreign or domestic bills of exchange, who are citizens of a state in which the decisions of the courts have been adverse to their interests, cannot, by collusive transfers to citizens of other states, create a case apparently cognizable in the courts of the United States, and have it prosecuted by their assignees in those tribunals for their benefit, in the hope of securing an adjudication in that jurisdiction more favorable to their interests. The courts of the United States were not created under the constitution for any such purpose. Except in certain specified cases they have no jurisdiction of controversies between citizens of the same state.

We are clearly of opinion that this case falls within the prohibitions of the statute. The bonds to which the coupons now in suit were attached, were all bought as early as 1871 or 1872 by citizens of the state of Maine, who held and owned the bonds themselves when this suit was brought. Their purchases were made while a suit was pending in the courts of the state to test the validity of the bonds. On the twenty-seventh of August, 1878, the highest court of the state decided in effect that the bonds were inoperative and void, for want of constitutional power in the village corporation to issue them. Almost two years after this decision these coupons, to the amount of $7,922, were collected from various holders of bonds, all residents of the village of Farmington and citizens of Maine, and transferred, separate from the bonds, to the present plaintiff, a citizen of Massachusetts, under an arrangement by which the plaintiff gave to the agent of the holders of the coupons his non-negotiable promissory note for $500, payable in two years from date, with interest; and agreed, 'as a further consideration for said coupons,' that if he succeeded in collecting the full amount thereof, he would pay the agent, as soon as the money was got from the corporation, 50 per cent. of the net amount collected above the $500. This suit, begun July 1, 1880, in the name of the plaintiff, is the result of that arrangement. It is a suit for the benefit of the owners of the bonds. They are to receive from the plaintiff one-half of the net proceeds of the case they have created by their transfer of the coupons gathered together for that purpose. The suit is their own in reality, though they have agreed that the plaintiff may retain one-half of what he collects for the use of his name and his trouble in collecting. It is true, the transaction is called a purchase in the papers that were executed, and that the plaintiff gave his note for $500, but the time for payment was put off for two years, when it was, no doubt, supposed the result of the suit would be known. No money was paid, and as the note was not negotiable, it is clear the parties intended to keep the control of the whole matter in their own hands, so that if the plaintiff failed to recover the money, he could be released from his promise to pay. In the language of Mr. Justice FIELD, speaking for the court in Detroit v. Dean, 106 U.S. 541, S.C.. 1 SUP. CT. REP. 560, applied to the facts of this case, the transfer of the coupons was 'a mere contrivance, a pretense, the result of a collusive arrangement to create' in favor of this plaintiff 'a fictitious ground of federal jurisdiction,' so as to get a re-examination in that jurisdiction of the question decided adversely to the owners of the coupons by the highest judicial tribunal of the state. Hawes v. Oakland, 104 U.S. 459; Hayden v. Manning, 106 U.S. 586; S.C.. 1 SUP. CT. REP. 617; Bernards Tp. v. Stebbins, 109 U.S. 341; S.C.. 3 SUP. CT. REP. 252.

We therefore say, in answer to the first question certified, that the plaintiff cannot maintain the action in the circuit court upon the coupons declared upon.

The judgment of the circuit court is consequently reversed, and the cause remanded, with instructions to dismiss the suit for want of jurisdiction and without prejudice.


text: Talk:Farmington Village Corp v. Pillsbury/Opinion of the Court


text:
Hughes

John H. Mitchell, for petitioner.

J. N. Dolph, for respondent.

WALTE, C. J.

title: Hughes


text: Talk:Hughes

title: Talk:Hughes


text:
Hughes/Opinion of the Court

This is an application for a writ of mandamus requiring Matthew P. Deady, judge of the district court of the United States for the district of Oregon, to 'forthwith sign and execute, by signing or countersigning, any and all such orders, matters, and things as may be requisite or necessary to enable your petitioner (Ellis G. Hughes, an attorney at law, practicing in the circuit and district courts of the United States for such district) to withdraw from the depositary of said court the sum of five hundred dollars belonging to him.' The petition for the writ, which is sworn to by the petitioner, states that on and prior to May 3, 1882, there was pending in the circuit court of the United States for the district of Oregon a suit in equity for the foreclosure of a mortgage in which William Reid, manager, was plaintiff and H. McCallister and W. B. McCallister defendants, and that the plaintiff therein 'recovered in said suit a certain decree as against the defendants, * *  * and a certain order of sale, wherein and whereby it was ordered, adjudged, and decreed that the defendants *  *  * should pay to the plaintiff a certain sum of money, and interest as therein specified, and also the costs and disbursements in the suit to be taxed, 'including ten per cent. on the full amount due from the defendants * *  * to the complainant, as an attorney's fee to the attorney of the complainant,' and that, in default of such payment being made, certain lands in said decree and order of sale set out and described be sold.'

The petition further states 'that your petitioner, as the attorney of the plaintiff, by express agreement, and by the express terms and conditions of said decree and order of sale, was the absoluted and unconditional owner of the attorney's fee recovered therein and thereby as costs of the suit.' It is then stated that a sale of the mortgaged property was made under the decree, and 'the amount due your petitioner under said decree and order of sale, as and for his attorney's fee, * *  * having been regularly ascertained and determined, the said purchaser at said sale paid to the clerk of the circuit court, *  *  * as and for and in payment of the claim of your petitioner for his attorney's fee, *  *  * the full amount so as aforesaid ascertained and determined to be due to your petitioner therefor.' The petition then states that, upon the collection of the money, it was deposited in the registry of the court, and that, although demanded, the district judge holding the circuit court had refused to sign an order for its payment in full to him, but that the sum of $500, part thereof, was retained, although it was then in the depository of the court and 'absolutely and unconditionally the property of your petitioner.'

No copies of the various orders and decrees on which the rights of the petitioner depend, were attached to the petition; but, upon the positive, sworn statements of the petitioner as to their nature and effect, a rule was entered on the district judge to show cause why the writ asked for should not be issued. To this rule a return has been made, from which it appea § unmistakably that it has never been adjudged that the petitioner was the owner of she money in court. On the contrary, it does appear that on the fourth of December, 1884, the petitioner asked that the money in court, being $1,039.42, be 'paid to him by the clerk,' and thereupon it was ordered 'that there be paid to said Hughes (the petitioner) out of said funds, the sum of $519.04,' but the court declined to make any disposition of the rest of the fund until the plaintiff had notice of the application and could be heard thereon. The amount so ordered to be paid was afterwards received from the registry of the court by the petitioner. The application for the rest of the fund was subsequently heard, the plaintiff in the suit appearing to resist, and upon full consideration it was expressly adjudged by the court that the litigation in the case was not ended, and that 'neither by the terms of the decree nor the right and justice of the case was he [petitioner] entitled to the same [the money] until he had earned it by prosecuting said suit to a final decree as to all the defendants therein.' The application for the remainder of the money was consequently denied, and the fund was left 'in the registry of the court to be disposed of or applied hereafter, as the rights of the parties and justice of the case may require.' Certainly, upon this return, the petitioner is not entitled to the writ he asks.

The rule heretofore granted is discharged, with costs.

title: Hughes/Opinion of the Court


text: Talk:Hughes/Opinion of the Court

title: Talk:Hughes/Opinion of the Court


text:
Page:Eskimo Life.djvu/216

174 that the man's anger was not without justification. What should we say if Greenlanders came to our country, forced themselves into our houses, and preached their own morality to our wives?

Before we utterly condemn the morality of the Eskimos, we ought also, perhaps, to remember the golden maxim that those who live in glass houses should not throw stones. European morality is in many respects of such doubtful value that we have scarcely the right to pose as judges. After all is said and done, it is possible that the most essential difference between our morality and that of the Eskimos is that with us the worst things take place behind the scenes, in partial or complete secrecy, and therefore produce all the more demoralising effect, while among the Eskimos everything happens on the open stage. The instincts of human nature cannot be altogether suppressed. It is with them as with explosives: where they lie unprotected on the surface, they may be easily 'set off,' but they do little mischief; whereas when they lie deeper and more concealed, they are perhaps less easily kindled, but when once they take fire the explosion is far more violent and destructive, and the greater the weight that is piled upon them, the greater havoc do they work.

According to the Eskimo code, marriage between

title: Page:Eskimo Life.djvu/216


text:
Page:Stubbs's Calendar or The Fatal Boots.djvu/105

Rh "Well," said I, "Child's is but a step from this: you may go and get the cash,—just giving me an acknowledgment."

Nabb drew out the acknowledgment with great punctuality, and set off for the bankers, whilst I prepared myself for departure from this abominable prison.

He smiled as he came in. "Well," said I, "you have touched your money; and now, I must tell you, that you are the most infernal rogue and extortioner I ever met with."

"O no, Mishter Shtubbsh," says he, grinning still, "dere is som greater roag dan me,—mosh greater."

"Fellow," says I, "don't stand grinning before a gentleman; but give me my hat and cloak, and let me leave your filthy den."

"Shtop, Shtubbsh," says he, not even Mistering me this time, "here ish a letter, vich you had better read."

I opened the letter: something fell to the ground:—it was my check.


text:
Stephenson v. Brooklyn Cross-Town Railroad Company

[Syllabus from pages 149-150 intentionally omitted]

[Statement of Case from page 150 intentionally omitted]

''Wm. Allen Butler, B. F. Thurston, and Philip J. O'Reilley'', for appellant.

Francis Rawle, for appellee.

[Argument of Counsel from page 150 intentionally omitted]

WOODS, J.


text: Talk:Stephenson v. Brooklyn Cross-Town Railroad Company