text:
United States v. Harris (106 U.S. 629)/Opinion of the Court

The certificate of division of opinion in this case does not expressly state that the point of difference between the judges was certified 'upon the request of either party or their counsel.' Neither party challenges the jurisdiction of this court, but it has occurred to us as a question, and we have considered it, whether this omission in the certificate is fatal to our jurisdiction, and we have reached the conclusion that it is not.

It fairly appears from the certificate that the point upon which the judges differed in opinion was stated, under their direction, in the presence of the counsel of both parties, without objection from either, and it is expressly stated that the cause was continued until the decision of this court upon the point of difference between the judges could be rendered. Had no certificate of division of opinion been made, the result must have been a judgment against the indictment, although the difference of opinion arose upon the demurrer of defendant; for no judgment could have been given against the defendant upon the indictment, if the judges were not agreed as to the constitutionality of the law upon which it was based. Hence it became the duty of the prosecuting officer, and the interest of the government which he represented, to request a certificate of division of opinion for the determination of the question by this court. The case is brought to this court by the counsel for the United States upon the point stated in the certificate; the case is suspended until our decision upon the point certified is made; and he asks us to decide the question upon which the judges of the circuit court differed. These circumstances, all of which appear of record, considered in connection with the fact that the court made the certificate, raise the legal presumption that a request for the certificate was duly preferred. The record evidence of the fact of the request by counsel for the United States is incontrovertible.

It is suggested that under section 649 of the Revised Statutes, which provides that a jury may be waived 'whenever the parties or their attorneys of record file with the clerk a stipulation in writing waiving a jury,' this court has decided that the fact that the stipulation was in writing and filed with the clerk must appear of record in order to entitle the party to the review of the rulings of the court in the progress of the trial provided by section 700, and therefore that in the present case the record should distinctly show the request. But section 649 expressly requires that the waiver of the jury shall be in writing and shall be filed with the clerk. The section which provides for a certificate of division of opinion makes no such requirement in relation to the request for a certificate.

In one case the jurisdictional fact is the filing of a certain paper writing with the clerk; in the other, the making of a request, which may be oral, to the court. In either case, when the jurisdictional fact fairly appears by the record, our jurisdiction attaches. So, in this case, if the request may be fairly inferred from such circumstances as we have mentioned, that is all that is necessary to satisfy the statute. In Sup'rs v. Kennicott, 103 U.S. 554, this court held that when a stipulation in writing was filed with the clerk, by which it was provided that the case might be submitted to the court on an agreed statement of facts, but which contained no express waiver of a jury, yet this amounted to a waiver sufficient to meet the requirements of section 649. And though the right of trial by jury is a constitutional one, yet this court has declared that when it simply appeared by the record that a party was present by counsel and had gone to trial before the court without objection or exception, a waiver of his right to a jury trial would be presumed, and he would be held in this court to the legal consequences of such waiver. Kearney v. Case, 12 Wall. 275.

We are, therefore, of opinion that the request by counsel of the United States for a certificate of division is sufficiently shown by the record in this case, and that our jurisdiction is clear.

We pass to the consideration of the merits of the case. Proper respect for a co-ordinate branch of the government requires the courts of the United States to give effect to the presumption that congress will pass no act not within its constitutional power. This presumption should prevail unless the lack of constitutional authority to pass an act in question is clearly demonstrated. While conceding this, it must, nevertheless, be stated that the government of the United States is one of delegated, limited, and enumerated powers. Martin v. Hunter, 1 Wheat. 304; McCulloch v. State, 4 Wheat. 316; Gibbons v. Ogden, 9 Wheat. 1. Therefore every valid act of congress must find in the constitution some warrant for its passage. This is apparent by reference to the following provisions of the constitution: Section 1 of the first article declares that all legislative powers granted by the constitution shall be vested in the congress of the United States. Section 8 of the same article enumerates the powers granted to the congress, and concludes the enumeration with a grant of power 'to make all laws which shall be necessary and proper to carry into execution the foregoing powers and all other powers vested by the constitution in the government of the United States, or in any department or officer thereof.' Article 10 of the amendments to the constitution declares that 'the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people.'

Mr. Justice STORY, in his Commentaries on the Constitution, says:

'Whenever, therefore, a question arises concerning the     constitutionality of a particular power, the first question      is whether the power be expressed in the constitution. If it     be, the question is decided. If it be not expressed, the next     inquiry must be whether it is properly an incident to an      express power and necessary to its execution. If it be, then     it may be exercised by congress. If not, congress cannot     exercise it.' Section 1243, referring to Virginia Reports and      Resolutions, January, 1800, pp. 33, 34; President Monroe's      Exposition and Message of May 4, 1822, p. 47; 1 Tuck. Bl. Comm. App. 287, 288; 5 Marsh. Wash. App. note 3; 1 Hamilton's     Works, 117, 121.

The demurrer filed to the indictment in this case questions the power of congress to pass the law under which the indictment was found. It is, therefore, necessary to search the constitution to ascertain whether or not the power is conferred.

There are only four paragraphs in the constitution which can, in the remotest degree, have any reference to the question in hand. These are section 2 of article 4 of the original constitution, and the thirteenth, fourteenth, and fifteenth amendments. It will be convenient to consider these in the inverse of the order stated.

It is clear that the fifteenth amendment can have no application. That amendment, as was said by this court in the case of U.S. v. Reese, 92 U.S. 214, 'relates to the right of citizens of the United States to vote. It does not confer the right of suffrage on any one. It merely invests citizens of the United States with the constitutional right of exemption from discrimination in the enjoyment of the elective franchise on account of race, color, or previous condition of servitude.' See, also, U.S. v. Cruikshank, 92 U.S. 542; S.C.. 1 Woods, 322. Section 5519 of the Revised Statutes has no reference to this right. The right guarantied by the fifteenth amendment is protected by other legislation of congress, namely, by sections 4 and 5 of the act of May 31, 1870, (16 St. 141,) and now embodied in sections 5506 and 5507, Rev. St.

Section 5519, according to the theory of the prosecution, and as appears by its terms, was framed to protect from invasion by private persons the equal privileges and immunities under the laws of all persons and classes of persons. It requires no argument to show that such a law cannot be founded on a clause of the constitution whose sole object is to protect from denial or abridgment, by the United States or states, on account of race, color, or previous condition of servitude, the right of citizens of the United States to vote.

It is, however, strenuously insisted that the legislation under consideration finds its warrant in the first and fifth sections of the fourteenth amendment. The first section declares.

'All persons born or naturalized in the United States, and     subject to the jurisdiction thereof, are citizens of the      United States and of the state wherein they reside. No state     shall make or enforce any law which shall abridge the      privileges or immunities of citizens of the United States,      nor shall any state deprive any person of life, liberty, or      property without due process of law, nor deny to any person      within its jurisdiction the equal protection of the laws.'

The fifth section declares 'the congress shall have power to enforce by appropriate legislation the provisions of this amendment.' It is perfectly clear, from the language of the first section, that its purpose also was to place a restraint upon the action of the states. In the Slaughter-house Cases, 16 Wall. 36, it was held by the majority of the court, speaking through Mr. Justice MILLER, that the object of the second clause of the first section of the fourteenth amendment was to protect from the hostile legislation of the states the privileges and immunities of citizens of the United States, and this was conceded by Mr. Justice FIELD, who expressed the views of the dissenting justices in that case. In the same case, the court, referring to the fourteenth amendment, said that 'if the states do not conform their laws to its requirements, then by the fifth section of the article of amendment congress was authorized to enforce it by suitable legislation.'

The purpose and effect of the two sections of the fourteenth amendment above quoted were clearly defined by Mr. Justice BRADLEY in the case of U.S. v. Cruikshank, 1 Woods, 316, as follows:

'It is a guaranty of protection against the acts of the state     government itself. It is a guaranty against the exertion of     arbitrary and tyrannical power on the part of the government      and legislature of the state, not a guaranty against the      commission of individual offenses; and the power of congress,      whether express or implied, to legislate for the enforcement      of such a guaranty, does not extend to the passage of laws      for the suppression of crime within the states. The     enforcement of the guaranty does not require or authorize      congress to perform 'the duty that the guaranty itself      supposes it to be the duty of the state to perform, and which      it requires the state to perform."

When the case of U.S. v. Cruikshank came to this court the same view was taken here. The chief justice, delivering the opinion of the court in that case, said:

'The fourteenth amendment prohibits a state from depriving     any person of life, liberty, or property without due process      of law, or from denying to any person the equal protection of      the laws; but this provision does not add anything to the      rights of one citizen as against another. It simply furnishes     an additional guaranty against any encroachment by the states      upon the fundamental rights which belong to every citizen as      a member of society. The duty of protecting all its citizens in     the enjoyment of an equality of rights was originally assumed      by the states, and it remains there. The only obligation     resting upon the United States is to see that the states do      not deny the right. This the amendment guaranties, and no     more. The power of the national government is limited to this     guaranty.' 92 U.S. 542.

So, in Virginia v. Rives, 100 U.S. 313, it was declared by this court, speaking through Mr. Justice STRONG, that 'these provisions of the fourteenth amendment have reference to state action exclusively, and not to any action of private individuals.'

These authorities show conclusively that the legislation under consideration finds no warrant for its enactment in the fourteenth amendment.

The language of the amendment does not leave this subject in doubt. When the state has been guilty of no violation of its provisions; when it has not made or enforced any law abridging the privileges or immunities of citizens of the United States; when no one of its departments has deprived any person of life, liberty, or property without due process of law, or denied to any person within its jurisdiction the equal protection of the laws; when, on the contrary, the laws of the state, as enacted by its legislative, and construed by its judicial, and administered by its executive departments, recognize and protect the rights of all persons,-the amendment imposes no duty and confers no power upon congress.

Section 5519 of the Revised Statutes is not limited to take effect only in case the state shall abridge the privileges or immunities of citizens of the United States, or deprive any person of life, liberty, or property without due process of law, or deny to any person the equal protection of the laws. It applies, no matter how well the state may have performed its duty. Under it private persons are liable to punishment for conspiring to deprive any one of the equal protection of the laws enacted by the state.

In the indictment in this case, for instance, which would be a good indictment under the law if the law itself were valid, there is no intimation that the state of Tennessee has passed any law or done any act forbidden by the fourteenth amendment. On the contrary, the gravamen of the charge against the accused is that they conspired to deprive certain citizens of the United States and of the state of Tennessee of the equal protection accorded them by the laws of Tennessee.

As, therefore, the section of the law under consideration is directed exclusively against the action of private persons, without reference to the laws of the states, or their administration by the officers of the state, we are clear in the opinion that it is not warranted by any clause in the fourteenth amendment to the constitution.

We are next to consider whether the thirteenth amendment to the constitution furnishes authority for the enactment of the law under review. This amendment declares that 'neither slavery nor involuntary servitude, except as a punishment of crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.' 'Congress shall have power to enforce this article by appropriate legislation.'

It is clear that this amendment, besides abolishing forever slavery and involuntary servitude within the United States, gives power to congress to protect all persons within the jurisdiction of the United States from being in any way subjected to slavery or involuntary servitude, except as a punishment for crime, and in the enjoyment of that freedom which it was the object of the amendment to secure. Mr. Justice SWAYNE, in U.S. v. Rhodes, 1 Abb. U.S. 28; Mr. Justice BRADLEY, in U.S. v. Cruikshank, 1 Woods, 308.

Congress has, by virtue of this amendment, enacted that all persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalities, taxes, licenses, and exactions of every kind, and no other. Act of April 9, 1866, § 1, (14 St. 27.)

But the question with which we have to deal is, does the thirteenth amendment warrant the enactment of section 5519 of the Revised Statutes. We are of opinion that it does not. Our conclusion is based on the fact that the provisions of that section are broader than the thirteenth amendment would justify. Under that section it would be an offense for two or more white persons to conspire, etc., for the purpose of depriving another white person of the equal protection of the laws. It would be an offense for two or more colored persons, enfranchised slaves, to conspire with the same purpose against a white citizen or against another colored citizen who had never been a slave. Even if the amendment is held to be directed against the action of private individuals, as well as against the action of the states and United States, the law under consideration covers cases both within and without the provisions of the amendment. It covers any conspiracy between two free white men against another free white man to deprive the latter of any right accorded him by the laws of the state or of the United States. A law under which two or more free white private citizens could be punished for conspiring or going in disguise for the purpose of depriving another free white citizen of a right accorded by the law of the state to all classes of persons,-as, for instance, the right to make a contract, bring a suit, or give evidence,-clearly cannot be authorized by the amendment which simply prohibits slavery and involuntary servitude.

Those provisions of the law, which are broader than is warranted by the article of the constitution by which they are supposed to be authorized, cannot be sustained.

Upon this question the case of U.S. v. Reese, 92 U.S. 214, is in point. In that case this court had under consideration the constitutionality of the third and fourth sections of the act of May 31, 1870, (16 St. 140,) and now constituting sections 2007, 2008, and 5506, Rev. St. The third section of the act made it an offense for any judge, inspector, or other officer of election, whose duty it was, under the circumstances therein stated, to receive and count the vote of any citizen to wrongfully refuse to receive and count the same; and the fourth section made it an offense for any person, by force, bribery, or other unlawful means, to hinder or delay any citizen from doing any act required to be done to qualify him to vote or from voting at any election.

The indictment in the case charged two inspectors of a municipal election in the state of Kentucky with refusing to receive and count at such election the vote of William Garner, a citizen of the United States, of African descent. It was contended by the defendants that it was not within the constitutional power of congress to pass the section upon which the indictment was based. The attempt was made by the counsel for the United States to sustain the law as warranted by the fifteenth amendment to the constitution of the United States. But this court held it not to be appropriate legislation under that amendment. The ground of the decision was that the sections referred to were broad enough not only to punish those who hindered and delayed the enfranchised colored citizen from voting, on account of his race, color, or previous condition of servitude, but also those who hindered or delayed the free white citizen. The court, speaking by the chief justice, said:

'It would certainly be dangerous if the legislature could set     a net large enough to catch all possible offenders, and leave      it to the courts to step inside and say who could be      rightfully detained and who should be set at large. This     would, to some extent, substitute the judicial for the      legislative department of the government. The courts enforce     the legislative will, when ascertained, if within the      constitutional grant of power. But if congress steps outside     of its constitutional limitation and attempts that which is      beyond its reach, the courts are authorized to, and, when      called upon, must, annul its encroachment upon the reserved      rights of the states and the people.'

And the court declared that it could not limit the statute so as to bring it within the constitutional power of congress, and concluded:

'We must, therefore, decide that congress has not as yet provided by appropriate legislation for the punishment of the offenses charged in the indictment.'

This decision is in point, and, applying the principle established by it, it is clear that the legislation now under consideration cannot be sustained by reference to the thirteenth amendment to the constitution.

There is another view which strengthens this conclusion. If congress has constitutional authority under the thirteenth amendment to punish conspiracy between two persons to do an unlawful act, it can punish the act itself, whether done by one or more persons. A private person cannot make constitutions or laws, nor can he with authority construe them, nor can he administer or execute them. The only way, therefore, in which one private person can deprive another of the equal protection of the laws is by the commission of some offense against the laws which protect the rights of persons, as by theft, burglary, arson, libel, assault, or murder. If, therefore, we hold that section 5519 is warranted by the thirteenth amendment, we should by virtue of that amendment, accord to congress the power to punish every crime by which the right of any person to life, property, or reputation is invaded. Thus, under a provision of the constitution which simply abolished slavery and involuntary servitude, we should, with few exceptions, invest congress with power over the whole catalogue of crimes. A construction of the amendment which leads to such a result is clearly unsound.

There is only other clause in the constitution of the United States which can, in any degree, be supposed to sustain the section under consideration, namely, the second section of article 4, which declares that 'the citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states.' But this section, like the fourteenth amendment, is directed against state action. Its object is to place the citizens of each state upon the same footing with citizens of other states, and inhibit discriminative legislation against them by other states. Paul v. Virginia, 8 Wall. 168.

Referring to the same provision of the constitution, this court said, in the Slaughter-house Cases, ubi supra, that it 'did not create those rights which it called privileges and immunities of citizens of the states. It threw around them in that clause no security for the citizen of the state in which they were claimed or excercised. Nor did it profess to control the power of the state governments over its own citizens. Its sole purpose was to declare to the several states that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other states within your jurisdiction.'

It was never supposed that the section under consideration conferred on congress the power to enact a law which would punish a private citizen for an invasion of the rights of his fellow-citizen, conferred by the state of which they were both residents on all its citizens alike.

We have, therefore, been unable to find any constitutional authority for the enactment of section 5519 of the Revised Statutes. The decisions of this court above referred to leave no constitutional ground for the act to stand on.

The point in reference to which the judges of the circuit court were divided in opinion must, therefore, be decided against the constitutionality of the law.


text: Talk:United States v. Harris (106 U.S. 629)/Opinion of the Court

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text: Rogers v. Durant (106 U.S. 644)

title: Rogers v. Durant (106 U.S. 644)


text: Talk:Rogers v. Durant (106 U.S. 644)

title: Talk:Rogers v. Durant (106 U.S. 644)


text:
Rogers v. Durant (106 U.S. 644)/Opinion of the Court

L. L. Coburn and H. C. Whitney, for appellant.

C. B. Lawrence, for appellee.

GRAY J.

This is a bill in equity, by which Rogers seeks to recover of Durant and seven others, as copartners under the name of James W. Davis & Associates, the amount due upon several drafts, some drawn, and some accepted or promised to be accepted, by that firm, and all alleged to have been held by the plaintiff and lost without his tault after maturity. The defense of Durant is twofold First, to the jurisdiction, because there is no sufficient proof of the loss of the drafts; second, to the merits, because he was never a member of the firm of James W. Davis & Associates. The court below, while inclining to the opinion that it had no jurisdiction, did not decide the case upon that ground, but upon the merits, and dismissed the bill generally. The testimony introduced to show the loss of the drafts, construing it most favorably for the plaintiff, proves no more than this: In a former suit in the supreme court of New York to wind up the affairs of the firms of James W. Davis & Associates and of Davis, Sprague & Co., a receiver was appointed, and the claims of creditors, including the plaintiff's, were presented to a referee appointed by the court, and by him reported to the court, and a dividend ordered and paid in part thereof. The drafts in question were handed by the plaintiff to Steiger, his attorney in New York, to be filed before the referee, and were so filed, and were afterwards delivered by the referee to the receiver. Neither the plaintiff nor Steiger had since seen them or known where they were; and Steiger had applied for them to the receiver, to his clerk, to the referee, and to Bell, Durant's attorney in New York, and believed, without any foundation beyond his own suspicion, that they were in Bell's possession.

The original papers presented to the referee would properly be returned with his report to the files of the court which appointed him. Yet no search appears to have been made in those files, nor any application presented to that court for the delivery of the drafts of the plaintiff or his attorney. The plaintiff, having made no inquiry in the place in which the drafts would be most likely to be found utterly fails in his attempt to prove their loss. There being no sufficient evidence of loss, there can be no doubt that the case is one within the exclusive jurisdiction of a court of law; and it becomes unnecessary to consider the varying decisions in England and in this country upon the question under what circumstances a court of equity has jurisdiction of a suit upon a lost bill or note; or the voluminous proofs contained in the record upon the question whether Durant was a member of the firm of James W. Davis & Associates,-a question of which, for the reason already given, we have no jurisdiction in this case, and which, being a pure question of fact, can never be brought to this court in any future action at law.

The decree of the circuit court, dismissing the bill generally, might be considered a bar to an action at law, and should therefore be reversed, and the cause remanded with directions to enter a decree dismissing the bill for want of jurisdiction, without prejudice to the right of the plaintiff to sue at law. Horsburg v. Baker, 1 Pet. 232; Barney v. Baltimore, 6 Wall. 280; Kendig v. Dean, 97 U.S. 423. In accordance with the spirit of the twenty-fourth general rule of this court, and under the discretionary power therein reserved, costs should not be allowed to the plaintiff, because, so far as concerns the present suit, the decree is wholly against the relief that he seeks; but the dismissal is to be with costs in the court below, and each party is to pay his own costs on this appeal.

Decree accordingly.


text: Talk:Rogers v. Durant (106 U.S. 644)/Opinion of the Court


text:
The Sterling v. Peterson

J. Warren Coulston and William L. Putnam, for appellants.

Joseph P. Hornor and W. S. Benedict, for appellees.

WAITE, C. J.

title: The Sterling v. Peterson


text: Talk:The Sterling v. Peterson

title: Talk:The Sterling v. Peterson


text:
The Sterling v. Peterson/Opinion of the Court

This was a suit in admiralty against the ship Sterling and tow-boat Equator, for damages sustained by the bark Sif in a collision. Both the ship and tow-boat were found to be in fault, and they were condemned in solido for the whole amount of the loss. From a decree to that effect this appeal was taken.

It is conceded that upon the facts found the owners of the Sif are entitled to a decree against the ship and the tow-boat, as both were in fault. The well-established rule in such cases is to apportion the damages equally between the two offending vessels, the right being reserved to the libelant to collect the entire amount from either of them in case of the inability of the other to respond for her portion. The Washington and The Gregory, 9 Wall. 516; The Alabama and The Gamecock, 92 U.S. 695; The Virginia Ehrman and The Agnese, 97 U.S. 317; The City of Hartford and The Unit, Id. 323. As in this case the decree was against both vessels for the full amount of the loss, it should be modified so as to be against the Sterling and the Equator, and their respective stipulators, severally, each for one-half of the entire damage and costs; any balance of such half which the libelant shall not be able to enforce against either vessel to be paid by the other vessel or her stipulators. As it does not appear from the record that the attention of the court below was called to this objection to the form of the decree, each party will be required to pay his own costs in this court.

The decree of the circuit court is reversed, and the cause remanded with instructions to enter a new decree in accordance with this opinion, adding interest to the date of such entry.


text: Talk:The Sterling v. Peterson/Opinion of the Court


text:
Fitzpatrick v. Flannagan

A. B. Pittman, for plaintiff in error.

''Jeff. Chandler'', for defendants in error.

MATTHEWS, J.

title: Fitzpatrick v. Flannagan


text: Talk:Fitzpatrick v. Flannagan

title: Talk:Fitzpatrick v. Flannagan


text:
Fitzpatrick v. Flannagan/Opinion of the Court

This is an action of assumpsit commenced by the defendants in error by the issuing of a writ of attachment, according to the practice as prescribed by the laws of Mississippi, the plaintiffs below being citizens of Missouri. The process of attachment was founded on an affidavit, which set forth that the plaintiff in error, as the surviving partner of the firm of Fitzpatrick Bros., composed of himself and his brother, James C. Fitzpatrick, deceased, was the legal owner of the partnership property; that the defendant, as such survivor, was indebted to the plaintiffs in several sums, evidenced by partnership obligations, as well as in a sum of $6,000, for a debt contracted by James C. Fitzpatrick and Eugene A. Forbes, then partners under the name of Forbes & Fitzpatrick, and which had, on the dissolution of that firm, by the retirement of Forbes, been assumed by the firm of Fitzpatrick Bros., which debt was evidenced by the promissory note of Forbes & Fitzpatrick, held by the plaintiffs. The whole indebtedness, for which suit was brought, was alleged to amount to $15,936.55. The affidavit then charged that 'the said John J. Fitzpatrick has property or rights in action which he conceals, and justly refuses to apply to the payment of his debts, and that he has assigned or disposed of, or is about to assign or dispose of, his property or rights in action, or some part thereof, with intent to defraud his creditors, or give an unfair preference to some of them; and that he has converted, or is about to convert, his property into money or evidence of debt, with which to place it beyond the reach of his creditors.' And suggesting that John McGinty, Edward McGinty, and George M. Klein, cashier of the Mississippi Valley Bank, are indebted to the defendant, or have property of his in their hands, etc., the affidavit prays for a summons against them as garnishees.

The statutory bond having been given, a writ of attachment was issued, which the marshal returned as served by levying upon and taking possession of certain personal property, according to an inventory attached, as the property of the defendant; and that afterwards Edward McGinty, having made claim that he was the owner of the property attached, and the same having been valued, and a claimant's bond given and accepted, he had turned said goods over to said McGinty, and had summoned the defendant and the garnishees.

The defendant below then, in due time, filed a plea in abatement to the writ of attachment, denying the several grounds thereof as alleged in the affidavit; and on the same day the plaintiffs, by leave of court, filed an amendment to the affidavit, setting forth 'that the firm of Fitzpatrick Bros., composed of defendant and James C. Fitzpatrick, deceased, and of which he is the surviving partner, fraudulently contracted the debt or incurred the obligation for which suit has been brought.' The granting of this leave to amend the affidavit was objected to by the defendant, and is the subject of an exception and assigned for error. But section 1483 of the Code of Mississippi of 1871 expressly authorizes amendments to defective affidavits, and we see no objection on principle, under such a provision, to an amendment adding a new ground for the attachment. There was no claim on the part of the defendant of being taken by surprise or put to any disadvantage by reason of the amendment, and we fail to perceive how in any way he could have been prejudiced. In point of fact, he immediately filed his plea in abatement to the amended affidavit, traversing the additional allegations, and the cause being at issue upon the pleas in abatement, was submitted to a jury, according to the practice authorized by the statute. There was a verdict finding 'that the attachment herein was rightfully sued out,' and the defendant thereupon had leave to plead to the merits, and filed with a plea of non-assumpsit several special pleas, which it is not necessary now to notice. The cause having been tried to a jury upon these issues, there was a verdict and judgment for the plaintiff. The present writ of error brings up for reveiew these proceedings and judgment, errors having been assigned upon bills of exception duly taken to the rulings of the court upon both trials.

Upon the trial of the issues of fact arising upon the pleas in abatement, evidence was introduced, as appears by the bill of exceptions, by the respective parties, tending to prove the following state of facts:

That in March, 1878, defendant had purchased the interest of Forbes in the firm of Forbes & Fitzpatrick, wholesale     grocers, forming with the latter the partnership of      Fitzpatrick Bros., who, by the terms of the purchase, assumed      the liabilities of Forbes & Fitzpatrick, including, among      others, about $15,000 due to the plaintiffs. These     liabilities, as was afterwards ascertained, exceeded the      value of the assets of the original firm. James C.     Fitzpatrick died in September, 1878, leaving in the hands of      the defendant, as surviving partner, the partnership      property, and the concern insolvent. The defendant continued     the business, sold out in part the old stock, pur chased      other goods to replenish it to the amount of more than      $12,000, partly on credit, partly for cash, putting the goods      indiscriminately in stock with those on hand. During the     existence of the firm of Fitzpatrick Bros the firm paid part      of the debt due to the plaintiffs, assumed by them, and      contracter other indebtedness with them for goods bought and      money loaned for about the same amount as that paid. The     deceased partner, before his death, had drawn out of the      partnership more than his interest therein and was indebted      to it. On December 3, 1878, the defendant being very much     pressed to pay some maturing bills of the firm to the      Mississippi Valley Bank, being debts created by the firm of      Fitzpatrick Bros., borrowed $5,700 from John McGinty, giving      his note at one day's date, verbally promising to repay the      smount speedily out of the assets of the late firm. This     money was used by the defendant in paying partnership debts. Fitzpatrick Bros. owed John McGinty, besides, two notes, one     for $2,500 and one for $5,200. Being unable to repay the     borrowed money to John McGinty the defendant on December 19,      1878, sold to Edward McGinty, a relative of John McGinty, his      entire stock of goods, amounting to $6,633.46, at cost and 10      per cent. added, and the partnership accounts, amounting to     $10,222.06, for which Edward McGinty paid $8,200 in cash and      assumed to pay obligations due in part from Fitzpatrick Bros. and in part from Fitzpatrick, the surviving partner, for     commercial debts contracted by him since the death of his      partner, to the amount of $6,974.16. This price was a full     and fair value for the goods and accounts, and, in fact,      Edward McGinty paid out several thousand dollars more on the      debts assumed than he had collected out of the assets      transferred.

This sale to Edward McGinty was made with the knowledge  of John McGinty, who, in fact, advanced the money to   complete it, Edward being without means, and upon an   understanding that the money should be paid to John   McGinty on account of the debts due to him; and   accordingly the $8,200 cash was returned to him in   payment of the two notes for $2,500 and $5,700   respectively. Immediately after the sale Fitzpatrick was  employed by Edward McGinty as a clerk to carry on the   business at a salary of $2,500 per annum, and shortly   afterwards a partnership between them was advertised. The assets of the firm of Fitzpatrick Bros. on hand at  the time of the death of J. C. Fitzpatrick, together   with after-acquired goods and moneys, were applied   indiscriminately by the defendant to the payment of   debts of the firm and of those contracted by him in the   subsequent course of business, and it appeared that he   had paid as much at least on account of partnership   debts as he had realized from partnership assets, and   that he had applied all the proceeds of the business,   after paying its necessary expenses, to the payment of   the debts of the late firm and of his own, contracted in   carrying on the business as surviving partner.

The second issue, upon the pleas in abatement, was upon the allegation of the affidavit that 'the defendant had assigned and disposed of, or was then about to assign or dispose of, his property or rights in action, or some part thereof, with intent to defraud his creditors, or give an unfair preference to some of them.'

Upon the first branch of this issue-whether the defendant had disposed of any of his property with intent to defraud his creditors-the court charged the jury as follows:

'If you shall find from the evidence that the defendant sold     or transferred any of the property or assets of the late firm      of Fitzpatrick & Brothers, with intent to prevent the      creditors of the firm of Fitzpatrick & Brothers, or any of      them, from collecting their debts, such sale or disposition      will sustain this ground of attachment. It was the duty of     the defendant, as such surviving partner, to apply all of the      assets of the firm to the payment of the debts due by the      firm, and if he appropriated any part of them to the payment      of his individual debts, it was a fraud upon the firm creditors, whether he so      considered it or not, and if established by the proof, will      sustain this ground of attachment, as the law will presume      that he intended the natural result of his act. The     defendant, being liable for the debts of the firm, could not,      by borrowing the money and paying the debts of the firm,      create himself a creditor of the firm, or subrogate himself      to the rights of the creditors as paid.'

And to the giving of this instruction an exception was taken.

The ground on which this part of the charge appears to rest is that a surviving partner, although invested with the legal title to the partnership property, on the dissolution of the firm, by the death of his copartner, is not the beneficial owner, but a mere trustee, to liquidate the partnership affairs, by selling the assets and applying them to the payment of the partnership debts; that the continuance of the business by means of the partnership assets is a breach of that trust, and, if it results in diverting any of the partnership property from the creditors of the firm, is a fraud upon them. And yet, upon that supposition, it deserves consideration whether the allegation made in the affidavit as the ground of the attachment-that defendant has disposed of his own property to defraud his creditors-can be supported by proof of a disposition of property belonging to the firm, in order to defraud the creditors of the firm; especially, in view of the result that, if the attachment is sustained, it not only subjects the partnership property, but also takes the individual property of the defendant from individual creditors for the payment of the firm debt. The writ runs against his individual property alone, and upon the sole ground that he has sought fraudulently to withdraw it from the claims of his individual creditors. This incongruity is sufficient, at least, strongly to suggest the suspicion that the proceeding itself, and the grounds on which it has been sustained, are based upon a misconception of the law which governs the case. And this will be confirmed by a critical examination of the charge.

Upon the state of the evidence, as disclosed by the bill of exceptions, the jury may have found that the defendant, as surviving partner, with the assent, either express or tacit, of the personal representatives of his deceased copartner, had been left in possession of the firm property, for the purpose of continuing the business; that in doing so, in good faith, he raised money upon the individual credit given him, on the faith of his possession and control of property, which he was allowed to deal with as his own, and applied it to the purpose of paying the debts due from the firm of which he was the surviving partner; and yet felt compelled, under this charge, to find that an appropriation out of the property which had come to him as such survivor, to pay such a loan, without any actual fraudulent intent, would be a fraud in law upon every creditor of the partnership, justifying a seizure, on attachment for that cause, of all his property, whether formerly belonging to the partnership or since acquired, and that, although his individual additions to his stock in trade were, at east, equal to what had been taken for the payment of individual debts.

It is fair to consider this charge, although not so qualified, in connection with the facts, in reference to which there was evidence, that the firm of Fitzpatrick Bros., and its individual members, were insolvent, in the sense of not being able to pay their debts, during the whole period of its existence, and the additional fact that the deceased partner had before his death drawn from the partnership more than his interest therein, and was indebted to the firm.

The legal right of a partnership creditor to subject the partnership property to the payment of his debt, consists simply in the right to reduce his claim to judgment, and to sell the goods of his debtors on execution. His right to appropriate the partnership property specifically to the payment of his debt, in equity, in preference to creditors of an individual partner, is derived through the other partner, whose original right it is to have the partnership assets applied to the payment of partnership obligations. And this equity of the creditor subsists as long as that of the partner, through which it is derived, remains; that is, so long as the partner himself 'retains an interest in the firm assets, as a partner, a court of equity will allow the creditors of the firm to avail themselves of his equity, and enforce through it the application of those assets primarily to payment of the debts due them, whenever the property comes under its administration.' Such was the language of this court in Case v. Beauregard, 99 U.S. 119, in which Mr. Justice STRONG, delivering its opinion, continued as follows:

'It is indispensable, however, to such relief, when the     creditors are, as in the present case, simple contract      creditors, that the partnership property should be within the      control of the court, and, in the course of administration,      brought there by the bankruptcy of the firm, or by an      assignment, or by the creation of a trust in some mode. This     is because neither the partners nor the joint creditors have      any specific lien, nor is there any trust that can be      enforced until the property has passed in custodio legis.'

Hence it follows that 'if, before the interposition of the court is asked, the property has ceased to belong to the partnership, if by a bona fide transfer it has become the several property either of one partner or of a third person, the equities of the partners are extinguished, and consequently the derivative equities of the creditors are at an end.' In that case it was held, in respect to a firm admitted to be insolvent, that transfers made by the individual partners of their interest in the partnership property, converted that property into individual property, terminated the equity of any partner to require the application thereof to the payment of the joint debts, and constituted a bar to a bill in equity filed by a partnership creditor to subject it to the payment of his debt, the relief prayed for being grounded on the claim that these transfers were in fraud of his rights as a creditor of the firm.

Another case between the same parties came again for consideration before the court, which reaffirmed the decision, and held that in such a case the bill might be properly filed by a creditor, without first reducing his claim to judgment. Case v. Beauregard, 101 U.S. 688.

The same doctrine has been fully sanctioned by the supreme court of Mississippi in Schmidlapp v. Currie, 55 Miss. 597, where it is said, that—

'The doctrine that firm assets must first be applied to the     payment of firm debts, and individual property to individual debts, is only a principle of      administration adopted by the courts where, from any cause,      they are called upon to wind up the firm business, and find      that the members have made no valid disposition of or charges      upon its assets. Thus, where, upon a dissolution of the firm     by death, or limitation, or bankruptcy, or from any other      cause, the courts are called upon to wind up the concern,      they adopt and enforce the principle state; but the principle      itself springs alone out of the obligation to do justice      between the partners.'

In that case one of two partners, but with the assent of the other, and without any fraudulent intent, transferred the whole business and stock of the firm to a third person in payment of an individual debt. A creditor of the partnership sued out a writ of attachment against them, and caused it to be levied on the goods in the possession of the purchaser, upon the ground that the transfer of the firm goods in satisfaction of the individual debt of one of the partners was fraudulent and void as against firm creditors. The right to do so was denied.

The same principle applies in case of a dissolution of the partnership.

'It is competent,' says Mr. Justice STORY, Part. § 358, 'for     the partners, in cases of a voluntary dissolution, to agree      that the joint property of the partnership shall belong to      one of them; and if this agreement be bona fide, and for a      valuable consideration, it will transfer the whole property      to such partner, wholly free from the claims of the joint      creditors. The like result will arise from any stipulation to     the same effect, in the original articles of copartnership,      in cases of a dissolution by death, or by any other personal      incapacity.'

And, in case of dissolution by death of one of the partners, without any previous agreement as to the mode of liquidation, the only difference is, that the joint creditor may, at his election, institute proceedings, by filing a bill in equity against the personal representatives of the deceased partner and the survivors, to wind up the partnership business, to marshal the assets, and appropriate the partnership property to the payment of the joint debts. Story, Part. §§ 347, 362. Although, in Mississippi, it is denied that a court of equity has jurisdiction to entertain a suit on behalf of a firm creditor at large against a partnership, whether it be an existing one or one that has ceased by limitation or by the withdrawal or death of one of the partners. Roach v. Brannon, 57 Miss. 490-500; Freeman v. Stewart, 41 Miss. 133. And unless a partnership creditor, or the personal representatives of the deceased partner, commence such a proceeding, to liquidate the affairs of the partnership, there is nothing to prevent the surviving partner from dealing with the partnership property as his own, and, acting in good faith, to make valid dispositions of it. Locke v. Lewis, 124 Mass. 1. And if, in like good faith, with the acquiescence of the personal representatives of the deceased partner, he uses the firm property to continue the business on his own account and in his own name, he does it without other liability than to be held accountable to the estate of his deceased partner for a share of the profits; or, as we have seen, upon a bill filed for that purpose, by the personal representatives of the deceased partner or a partnership creditor, to wind up the firm business and apply its assets to the payment of its debts. Any intermediate disposition of the property, made in good faith, even although it may have been specifically a part of the partnership assets, and even if it has been applied to the payment of his individual obligations, will be valid and effectual; and, without circumstances showing an actual intention to defraud, cannot be treated as a fraud in law upon partnership creditors. Accordingly, in Roach v. Brannon, 57 Miss. 490-500, the supreme court of Mississippi said:

'If, then, a firm creditor may sue out and levy an attachment     upon firm assets in the hands of a surviving partner, upon      what grounds must he proceed? Must he aver and prove one of     the specific grounds of attachment laid down in the statute,      or will it be sufficient to show that the surviving partner      is acting in violation of that quasi trust imposed upon him      by law for the benefit of firm creditors? We have no     hesitation in saying that he must bring his case strictly      within the letter of the statute.'

The next assignment of error is based on an exception to the following instruction, being in continuation of that just considered:

'(5) The latter clause of this issue is as to whether or not the disposition made by the defendant of the assets was with     the intention or giving an unfair preference to some of his      creditors over others. It is difficult to determine what     particular acts will constitute such preference. I am of the     opinion that the legislature meant something by this      expression, but it has never been construed by the supreme      court of the state. In the absence of such construction, I     will instruct you that when a debtor is insolvent, and knows      that he will be unable for a great length of time to pay all      his debts, and disposes of his means to one or more of his      creditors, to the exclusion of others, and with the design      that those unpaid shall remain so, it will constitute an      unfair preference, within the meaning of this clause of the      statute. You will, therefore, apply this rule to the facts in     proof under this issue.'

The language of the Mississippi Code of 1871, describing one of the grounds for which an attachment might issue, was that 'the debtor has assigned or disposed of, or is about to assign or dispose of, his property or rights in action, or some part thereof, with intent to defraud his creditors or give an unfair preference to some of them.' Code 1871, § 1420. This provision, it is said, so far as it relates to an 'unfair preference,' was first introduced into the statutes of the state by the Code of 1857, art. 2, p. 372. It is said by the supreme court of Mississippi, in Eldridge v. Phillipson, 58 Miss. 270, that 'the right of a debtor, insolvent or in failing circumstances, to give a preference to one or more of his creditors, if it be bona fide, and with no intent to secure a benefit to himself, is a firmly-established rule in the jurisprudence of this state,' and many cases are cited, occurring both before and after the adoption of the Code of 1857, in support of the statement. It was well settled, therefore, that whatever else the prohibition against unfair preferences might be supposed to include, it certainly did not make all preferences illegal. But the necessary result of preferring one or more creditors by a debtor unable to pay all, would be that the rest should remain unpaid, and for an indefinite length of time; and as the preference is supposed to have been designed, it could well be said, in every such case, that the debtor making it also designed its natural and expected consequences. It follows, therefore, if the part of the charge of the court now under examination be correct, that all preferences are unfair, and being unfair, are illegal,-a conclusion which we have seen is opposed to the settled law of Mississippi.

In the case just referred to, of Eldridge v. Phillipson, the question was presented directly for decision for the first time to the supreme court of that state. It was then decided that no preference could be held to be unfair which, tested by the rules of law, is legal; and that as, to be illegal, it must be fraudulent; and as all fraudulent dispositions of his property by a debtor are prohibited in other words, the clause relating to unfair preferences is mere surplusage. This construction is confirmed by the fact that the words in question have been omitted from the Code of 1880 by the legislature of Mississippi.

In our opinion this interpretation of the statute is correct, and we accordingly adopt it. The ruling of the circuit court to the contrary we adjudge therefore to be erroneous.

The cause came on for further trial upon the issues raised by the pleas to the merits. Besides the general issue, the defendant pleaded as to the note for $6,000 made by Forbes & Fitzpatrick, the defense of the statute of frauds, that the alleged promise was not in writing; Eldridge v. Phillipson, the question therefor was the sale to him by Forbes of his interest to the partnership of Forbes & Fitzpatrick, and that the promise to pay the same, as one of the debts of that firm, was procured from him by means of false and fraudulent misrepresentations made to him by Forbes as to the value of that interest.

On the trial, as appears from the bill of exceptions, there was evidence tending to show that, although the original assumption by the firm of Fitzpatrick Bros. of the debts of Forbes & Fitzpatrick was verbal, yet that afterwards it was repeated in writing in sundry letters by the defendant-written after he had full knowledge of the character and condition of the assets, property, and business which he had purchased from Forbes. The court instructed the jury as follows:

'The plea of the defendant alleges, as to the $6,000 note of     Forbes & Fitzpatrick, that its payment was assumed as part      consideration of a purchase by him from Eugene A. Forbes, and that said purchase was made on fraudulent      misrepresentations as to the character and value of the      things sold. If you believe this, and that the defendant was     thereby injured, you will deduct from said note the amount of      his damages by reason of such misrepresentations, unless you      shall find that the defendant, after he had a full knowledge      of the misrepresentations, continued to recognize his      liability to plaintiffs, and promised to pay, after he had      acquired such knowledge, in which case he will be estopped to      make such defense.'

To this portion of the charge an exception was taken, and instructions of an opposite tenor asked to be given, which were refused, but which it is not necessary to notice especially, as they are directly negatived by the instruction given, and are disposed of if that be correct. And of its correctness we have no doubt. A subsequent promise, with full knowledge of the facts, is certainly equivalent to an original promise made under similar circumstances, and no one, acting with full knowledge, can justly say that he has been deceived by false representations. Volenti non fit injuria.

We are advised that, according to the practice in Mississippi, as authorized by its statutes, (Code of Miss. of 1880, § 2434,) which, by sections 914 and 915, Rev. St., are adopted as the practice of the circuit court of the United States in that district, the proceedin which resulted in the verdict sustaining the attachment, and the verdict and judgment on the merits of the cause of action, are separate, and, consequently, may be separately considered on error. The judgment on the plea in abatement is not final in the sense that it may be reviewed before the final determination of the cause; but a writ of error, upon the final judgment, brings up the whole record and subjects to review all the proceedings in the cause. As we find no error in the personal judgment against the defendant, ascertaining the existence and amount of the debt due from him and awarding execution therefor, the same is accordingly affirmed; but the judgment overruling the pleas in abatement and sustaining the attachment is reversed, and the cause is remanded with instructions to set aside the verdict upon the issues arising upon the pleas in abatement of the writ of attachment, and to grant a new trial thereof. Judgment accordingly, with costs.


text: Talk:Fitzpatrick v. Flannagan/Opinion of the Court


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McGinty v. Flannagan

A. B. Pittsman, for plaintiff in error.

''Jeff. Chandler'', for defendant in error.

MATTHEWS, J.

title: McGinty v. Flannagan


text: Talk:McGinty v. Flannagan

title: Talk:McGinty v. Flannagan


text:
McGinty v. Flannagan/Opinion of the Court

This is an action which arose in the course of the proceedings in that of Fitzpatrick v. Flannagan, ante, 369, the judgment in which has been in part reversed. Edward McGinty, the plaintiff in error, having in that cause appeared as a claimant of the property seized under the attachment, the same was delivered to him by the marshal, on taking a bond conditioned to pay to the plaintiffs in the attachment such damages as might be awarded against the claimant in case his claim should not be sustained, or, in that event, to return the goods to the marshal. Thereupon, in accordance with the statutory practice in such cases in Mississippi, and issue was joined between the plaintiffs in attachment and the claimant, to try their respective titles to the property. Upon this issue, evidence was submitted by the parties, tending to show substantially the same state of facts as appears in the principal case.

The court refused to give instructions asked on behalf of the defendant, and in lieu thereof, among others not necessary to be considered, gave the following:

'(2) It was the duty of J. J. Fitzpatrick, as such surviving     partner, to sell and convert into money the goods and      property belonging to said firm, and to collect the debts due      the firm, and first apply the same to the payment of the      debts due by the firm, and not to mingle the same with his      own goods, so that they could not be identified, he being by law created a      trustee for this purpose; but if he mingled them with other      goods, so that they could not be identified, he thereby      rendered his own goods liable for the debts of the firms, or      [as?] those originally owned by the firm; and if he applied      the proceeds of the sale of such goods, either originally      owned by the firm or those afterwards purchased and mixed up      with them, so that they could not be identified, to the      payment of his private debts, such disposition operated as a      fraud upon the rights of the creditors of the firm of which      he was surviving partner and as to him rendered the sale      void.'

There was a verdict and judgment for the plaintiffs in the attachment, which are brought into review by this writ of error.

The charge above quoted goes further than that which was considered and adjudged to be erroneous in the principal case. For here the jury were instructed, that it was a fraud upon partnership creditors to apply to the payment of individual debts goods belonging to the surviving partner, which never belonged to the partnership, but were his own individual property, merely because they had been mingled with the stock formerly belonging to the firm. This is an error, in any view that can be taken of the rights of the parties. Even on the supposition that the partnership stock was held under an express and positive trust for partnership creditors, equity would give the latter only so much of the fund as represented the partnership property, and would divide it as to values between the parties beneficially interested, even although the specific goods might not be separable. This being so, it could hardly be charged, as a matter of law, that an appropriation of the mingled stock to the extent of a value no greater than would be allowed in equity to individual creditors, in marshaling the assets for distribution, between them and the creditors of the partnership, amounted to a fraud upon the latter. For this, as well as for reasons stated in the opinion in the former case between the original parties, we hold this instruction to be erroneous.

The judgment is accordingly reversed, and the cause remanded, with instructions to grant a new trial. Judgment reversed.


text: Talk:McGinty v. Flannagan/Opinion of the Court


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Township of Chickaming v. Carpenter

[Syllabus from page 663 intentionally omitted]

[Statement of Case on pages 663-664 intentionally omitted]

Edward Bacon, for plaintiff in error.

Mitchell J. Smiley, for defendant in error.

WAITE, C. J.

title: Township of Chickaming v. Carpenter


text: Talk:Township of Chickaming v. Carpenter


text:
Township of Chickaming v. Carpenter/Opinion of the Court

The assignments of error in this case present the following questions: (1) Whether an action at law can be maintained in the  circuit court of the United States against a municipal   corporation of Michigan upon municipal bonds or the   coupons for interest attached thereto; (2) whether the   circuit court of the United States has jurisdiction of a   suit brought by a citizen of state other than Michigan   to recover the amount due on an obligation of a   municipal corporation of Michigan, for the payment of a   sum of money to a corporation of Michigan or bearer, or   to bearer; (3) whether the obligations and coupons sued   on in this case could be introduced in evidence, under   the pleadings, without proof that the person who signed   them as township clerk actually held that office at the   time his signature was affixed and the obligations were   delivered; and (4) whether, since the obligations were   not delivered to the corporation to which they were   voted by the township, but to a corporation created by   the consolidation of that corporation with another, they   are valid.

1. As to the right to sue a municipal corporation of Michigan in the courts of the United States on an obligation for the payment of money.

If we understand correctly the cases in the courts of Michigan to which our attention has been directed, they decide no more than that in the courts of the state the remedy for the recovery of money from a municipal corporation on a liquidated demand is by mandamus against the proper officer, to require him to do his duty under the law with respect to the descharge of the obligation which has been entered into, and that for such purposes, in that jurisdiction, an independent judgment in an action at law against the corporation is not necessary. There is no law of the state prohibiting such a suit. All that has been determined is that, in the courts of the state, a judgment is not necessary to lay the foundation for a writ of mandamus to require the officer to do his duty.

In the courts of the United States, however, a mandamus can only be granted in aid of an existing jurisdiction, and in this class of cases a judgment against the corporation is an essential prerequisite to such a writ, although in the courts of the state it is not. This whole subject was fully considered at the last term in Davenport v. Dodge Co. 105 U.S. 242, where the other cases establishing the rule are cited.

2. As to the jurisdiction of the courts of the United States, in a suit by the assignee of an obligation of a municipal corporation of a state payable to a citizen of the same state or bearer, or to bearer

This question was decided at the present term in Town of Thompson v. Perrine, ante, 564, 568. The act of March 3, 1875, c. 137, (1 Supp. Rev. St. 174,) which provides, section 1, that the district and circuit courts of the United States shall not 'have cognizance of any suit founded on a 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,' is certainly not a limitation on the judiciary act of September 24, 1789, c. 20, (1 St. 79,) which provided, section 11, that the same courts should not '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.' Under the act of 1789, it was always held that an obligation payable to bearer, or to an individual or bearer, did not come within the prohibition of suits by assignees. Bank of Kentucky v. Wister, 2 Pet. 326; Bushnell v. Kennedy, 9 Wall. 391; Lexington v. Butler, 14 Wall. 293.

3. As to the necessity for proving that the township clerk whose signature appears on the bonds and coupons was in fact township clerk when he affixed his signature.

The name of the person who signed the bonds as clerk is O. C. Gillett. That O. C. Gillett signed the bonds was admitted, but it was denied under oath that he was clerk of the township prior to the end of the summer of 1869, which was more than 60 days after the bonds were voted by the town. The statutes of Michigan and the rules of the circuit court in force when this cause was tried, provided that upon the plea of the general issue in an action upon any written instrument, under seal or without seal, the plaintiff should not be put to the proof of the execution of the instrument or the handwriting of the defendant, unless the plea was verified by affidavit. In this case the suit was on a written instrument, and the plea was the general issue. This plea, however, was not verified in broad terms, but an affidavit was filed to the effect, argumentatively, that the township clerk, whose signature was necessary under the law to the due execution of the bonds, could not have signed them before the end of the summer of 1869, because he was not clerk until after that time. The law under which the bonds were issued provided that if any township voted the aid to railroads which was authorized, it 'shall, within 60 days after the question of aid is determined by a vote of the electors, * *  * issue its coupon bonds for the amount so determined to be granted.'

The effect of the affidavit was to raise the question whether the bonds were valid if issued after the 60 days. The affirmative of showing that they were issued within the 60 days was probably put by the pleadings on the plaintiff. This showing he did not make. Consequently the objection to the admissibility of the bonds resolved itself into the question of their validity, issued as they were after the time. We see nothing in the statutes which takes away from the township authorities the right to execute and deliver bonds, if, for any reason, it is not done within the time named. The word 'shall,' as used in the statute, undoubtedly gives the township officers the whole of the 60 days to get the bonds out, but it certainly does not imply that if they fail to do it voluntarily within the time they cannot be compelled to do so afterwards. And if they can be compelled to do so, it necessarily follows that they should do it voluntarily. We have not been referred to any decisions by the courts of Michigan to the contrary, and, construing the statute for ourselves, we think that valid bonds may be issued after the time. This being so, the antedating does not invalidate the bonds. In this suit no attempt is made to recover for interest accruing before actual delivery.

4. As to the issue to the consolidated company.

This precise question was before us at the last term in the case of New Buffalo v. Iron Company, 105 U.S. 73, and decided adversely to the claim of the plaintiff in error. We see no reason for reconsidering that case, and this cannot be distinguished from it.

The judgment is affirmed.


text: Talk:Township of Chickaming v. Carpenter/Opinion of the Court


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County of Kankakee v. Aetna Life Ins Co

Francis H. Kalcs, for plaintiff in error.

O. J. Bailey and ''Jas. H. Sedgwick'', for defendant in error.

MATTHEWS, J.

title: County of Kankakee v. Aetna Life Ins Co


text: Talk:County of Kankakee v. Aetna Life Ins Co


text:
County of Kankakee v. Aetna Life Ins Co/Opinion of the Court

The judgment sought to be reviewed by this writ of error was rendered upon coupons attached to municipal bonds purporting to be issued by the plaintiff in error. The cause was tried by the court without the intervention of a jury, and the facts appear in a bill of exceptions. Each bond of the issue contains a recital that it 'is issued under and pursuant to orders of the board of supervisors of Kankakee county, Illinois, for subscription to the capital stock of the Kankakee & Illinois River Railroad Company, as authorized by virtue of the laws of the state of Illinois authorizing cities and counties to subscribe capital stock to aid and construct railroads; also in accordance with the provisions of an act of said state of Illinois entitled 'An act to fund and provide for paying the railroad debt of counties, townships, cities, and towns,' in force April 16, A. D. 1869.'

The bonds were sealed with the county seal, signed by the chairman of the board of supervisors, and countersigned by the clerk of the county court, under the order of the board of supervisors of the county, September 20, 1870.

The defendant in error is a bona fide holder for value, having purchased before due in the open market, and without notice of any defense.

The defense made, however, and overruled in the court below, is matter of law, and alleges that the bonds are void, in whosesoever hands-First, because the county had no power under the law to issue them at all; and, second, because they were issued by the board of supervisors of the county, who were not representatives of the county empowered to bind it.

The charter of the Kankakee & Illinois River Railroad Company, in force April 15, 1869, contained a provision (section 16) that 'to further aid in the construction of said railroad, townships, corporate towns, and cities on or along the line of said railroad may subscribe to the capital stock of said company in sums not exceeding $100,000, respectively:' provided, that such subscription shall have been authorized by a majority of the legal voters at an election called and held for that purpose; in which event, bonds of such township, corporate town, or city should be issued in payment thereof to the railroad company. The same act (section 17) provides that 'nothing herein contained shall prevent counties and cities from taking and voting for subscriptions in the stock of said company, under the general laws of the state.'

The general laws of the state referred to include 'An act supplemental to an act entitled 'An act to provide for a general system of railroad incorporations," which took effect November 8, 1849. Laws 1849, (2d Sess.) p. 33. That statute authorizes every county in the state to subscribe for stock in any railroad company, already or thereafter to be organized or incorporated, to the extent of $100,000, and, for the payment of the same, expressly empowers them to borrow money, at a rate of interest not exceeding 10 per cent. per annum, and to pledge the faith of the county for the annual payment of the interest and the ultimate redemption of the principal, or, if the judges of the county court should deem it most advisable, they are authorized to pay for such subscription in bonds of the county, bearing interest not exceeding the rate aforesaid; and the railroad company are also authorized, by a separate section of the act, to receive such bonds in payment of such subscriptions.

The contention now is, on the part of the plaintiff in error, that the language quoted from the seventeenth section of the charter of the Kankakee & Illinois River Railroad Company is a reservation merely of the power given by the general laws of the state to counties to subscribe for stock; and as the power to issue bonds in payment therefor is a distinct power, it is not included in the reservation, and therefore ceased to exist on the passage of the act, so far as the present transaction is concerned.

But the obvious meaning of the clause relied on to accomplish that result is merely that the general laws of the state authorizing counties to subscribe for stock in that railroad company shall remain unaffected by the charter, which conferred similar power on townships, corporate towns, and cities on the line of the road, and not in any manner to limit the operation and application of those general laws upon the subject. The very purpose of the proviso seems to us to have been to exclude the very conclusion now sought to be drawn from it. Indeed, if the argument be good for anything at all, it results that, under the operation of this reservation, the naked power to subscribe for stock remains in the counties, without any authority, and therefore without any obligation, to pay for it; for, if the power to issue bonds is taken away, so also is the power to pledge the faith of the county for the annual payment of the interest and the ultimate redemption of the principal,-a pledge which means, of course, that payment shall be made out of the revenues of the county derived from taxation. As such a construction of law confesses its own absurdity, it is not necessary to make any formal refutation of it.

It is further contended, on the part of the plaintiff in error, that if at the date of these bonds Kankakee county had corporate power to execute and issue them, it could only be done by the county court, according to the terms of the statute conferring that power. Such, in fact, is the language of the general law of 1849, from which the power is derived. But the county of Kankakee, it is admitted, was organized under the act to provide for township organization of April 1, 1851. Laws 1851, p. 35. Under that mode of organization the corporate powers of counties, otherwise exercised by the judges of the county court, are devolved upon a board of supervisors, such as, in the present instance, executed and issued the bonds in question. Article 15, § 4, of that act declares that 'the powers of a county as a body politic can only be exercised by the board of supervisors thereof, or in pursuance of a resolution by them adopted.' And article 16, § 4, provides that 'the board of supervisors of each county in this state shall have power at their annual meetings, or at any other meeting, * *  * to perform all other duties not inconsistent with this act which may be required of or enjoined on them by any law of this state to the county courts.'

In Green v. Wardwell, 17 Ill. 278, it was said that the board of supervisors were the legal successors to the county commissioners' court, as had been previously decided in People v. Thurber, 13 Ill. 554. In Prettyman v. Sup'rs of Tazewell Co. 19 Ill. 406, the very point here raised was decided, and it was held that under the act of 1851 it was the duty of the board of supervisors to act instead of the county court in calling an election to vote on the question, in making the subscription for the stock, and in issuing county bonds in payment therefor. The act of April 1, 1861, 'to reduce the act to provide for township organization and the several acts amendatory thereof into one act, and to amend the same,' (Sess. Laws Ill. 1861, pp. 216-237,) removes all doubt on the subject. It confers (article 14, § 6, cl. 8) upon the board of supervisors authority 'to perform all other duties, not inconsistent with this act, which may be required of or enjoined on them by any law of this state, or which are enjoined upon county courts, when holding terms for the transaction of county business in those counties not adopting township organization.' This act was in force when the bonds sued upon in this case were issued, and they are governed by it. The case of Gaddis v. Richland Co. 92 Ill. 119, relied upon by counsel for plaintiff in error in this point, is not inconsistent with this result in the present case, because that decision is based on the words of the charter of the railroad company conferring the authority to subscribe to its capital stock, which, in the opinion of the court, expressly limited the exercise of the power to the county court. The same comment may be made upon the case of Sup'rs Schuyler Co. v. People, 25 Ill. 181.

We find no error in the record, and the judgment of the circuit court is accordingly affirmed.


text: Talk:County of Kankakee v. Aetna Life Ins Co/Opinion of the Court


text:
Hayward v. Andrews

Gilbert M. Spier, Jr., Ephraim Banning, and ''Thos. A. Banning'', for appellant.

E. A. West and L. L. Bond, for appellees.

MATTHEWS, J.

title: Hayward v. Andrews


text: Talk:Hayward v. Andrews

title: Talk:Hayward v. Andrews


text:
Hayward v. Andrews/Opinion of the Court

This appeal brings into review the decree of the circuit court sustaining a general demurrer to the amended bill of the complainant, and dismissing the bill for want of equity. The case made by the amended bill and exhibits is this: Aaron H. Allen was the owner of reissued patent No. 1,126 granted to him upon the surrender of original  patent No. 12,017, dated December 5, 1854, for a new and   useful improvement in seats for public buildings, which   was extended for seven years from December 5, 1868, and   which consequently expired by limitation December 4,   1875. The complainant claimed to be the sole and  exclusive owner in equity of all claims for damages   arising out of or occasioned by infringements of said   reissued letter patents, committed after September 18,   1869, and of all claims for gains and profits, derived   by others by reason of such infringements, by virtue of   certain written instruments, set out as exhibits to the   bill.

The first of these is an instrument dated September 18, 1869,     by which Allen grants to J. W. Schermerhorn & Co. 'the sole      right and privilege of manufacturing and selling school      furniture, made according to' the reissued patent, 'for a      tilting seat on the lever principle,' subject to the terms      and conditions of an indenture between the parties, which,      however, is not set out. On April 22, 1881, John H. Platt, as     assignee of James W. Schermerhorn, George M. Kendall, and      George Munger, bankrupts, transfers to the complainant all      the interest of the bankrupts in the Allen patent, and all      causes of action arising to him, as assignee of the      bankrupts, by reason of his interest in the said patent, and      especially his claim in a certain suit then pending, brought      by Allen in the circuit court of the United States for the      southern district of New York against the city of New York. The second and only other instrument of title exhibited is an     assignment from Allen, the patentee, to the complainant,      dated March 8, 1880, whereby Allen transfers to him and to      his assigns all his right and interest in the suit, mentioned      in the assignment from Platt, agaisnt the city of New York,      'together with all claims for damages arising since the      eighteenth day of September, 1869, against any persons,      firms, or corporations, by reason of infringements of letters      patent of the United States for a tilting seat supported on      the lever principle,' being the reissued patent specified in      the bill. And the complainant is thereby further constituted     the attorney in fact of Allen, irrevocably, in his name to      demand and recover all such damages, for his own use, paying all expenses, but accounting      for 30 per cent. of all sums recovered to allen, until the     latter shall have received $6,600, and no longer.

It is alleged in the amended bill that in the suit against the city of New York a decision was reached sustaining the validity of the patent, but no final decree therein has been entered; and that, owing to the delays incident to that litigation, while waiting for a decision upon the validity of the patent, neither Allen nor complainant have been in a situation to prosecute other infringers or sooner to file this bill. It is also alleged in the amended bill that the defendants have infringed the said letters patent since September 18, 1869, and until the expiration thereof, and in violation thereof 'have manufactured, sold, and used the said invention for improvements in seats for public buildings, patented as aforesaid, whereby great injury resulted to your orator, and great gains and profits accured to the said defendants,' for which, accordingly, an account is prayed, and a decree for the amount thereof and for damages.

The original bill was filed December 1, 1881, Allen being a concomplainant, and the amended bill on May 25, 1882, the original bill having been dismissed as to Allen.

It is manifest that the right claimed by the complainant receives no support from any title derived from Allen through J. W. Schermerhorn & Co., for the right of the latter under the instrument of September 18, 1869, was that of mere licensees. They could maintain no action for damages or profits against infringers, for they had no interest in the patent, nor was there any assignment to them of any right of action accrued or to accrue to Allen. In addition to this, the license itself only extended to the manufacture and sale of school furniture, and there is no allegation in the amended bill that the defendants had infringed the patent in that respect. That branch, therefore, of the complainant's bill is removed from the case, and he is relieved from the embarrassment which, it is alleged in argument, is occasioned by the uncertainty produced by alternative and inconsistent titles, and which is made one of the grounds for claiming the right to resort to equity. The case, then, is left to stand upon the right derived under the contract between Allen and the complainant of March 8, 1880, and the single question remains whether the assignee of a chose in action may proceed by bill in equity to enforce for his own use the legal right of his assignor, merely because he cannot sue at law in his own name.

It is admitted that according to the rule declared and established in Root v. Railroad Co. 105 U.S. 189, the patentee could not, in his own name and right, maintain the present suit, and the original bill, in which he was a co-complainant with the appellant, was accordingly dismissed as to him. To permit the latter to proceed in equity, upon the mere ground of the assignment to him, would be substantially to abrogate that rule. The principle was stated to be that the relief granted to a patentee in equity, by the recovery of profits and damages against an infringer, was 'incidental to some other equity, the right to enforce which secures to the patentee his standing in court;' that 'the most general ground for equitable interposition is to insure to the patentee the enjoyment of his specific right by injunction against a continuance of the infringement; but that grounds of equitable relief may arise other than by way of injunction;' and among these, by way of illustration, was mentioned that 'where the title of the complainant is equitable merely;' but it is the obvious meaning of the passage to limit the exception to cases where the purpose and necessity of the resort to a court of chancery are to enforce the peculiar equity personal to the complainant, and not merely the legal right of which he is the beneficial owner. If the assignee of the chose in action is unable to assert in a court of law the legal right of the assignor, which in equity is vested in him, then the jurisdiction of a court of chancery may be invoked, because it is the proper forum for the enforcement of equitable interests, and because there is no adequate remedy at law; but when, on the other hand, the equitable title is not involved in the litigation, and the remedy is sought merely for the purpose of enforcing the legal right of his assignor, there is no ground for an appeal to equity, because, by an action at law in the name of the assignor, the disputed right may be perfectly vindicated and the wrong done by the denial of it fully redressed. To hold otherwise would be to enlarge the jurisdiction of courts of equity to an extent, the limits of which could not be recognized, and that, in cases where the only matters in controversy would be purely legal rights.

In opposition to this view, a passage from Story, Eq. Jur. § 1057a, is cited and relied on in argument, in which that learned author, after stating that it had been 'recently held that the assignee of a debt, not in itself negotiable, is not entitled to sue the debtor for it in equity, unless some circumstances intervened which show that his remedy at law is, or may be, obstructed by the assignor,' adds that 'this doctrine is apparently new, at least in the broad extent in which it is laid down, and does not seem to have been generally adopted in America. On the contrary, the more general principle established in this country seems to be that wherever an assignee has an equitable right or interest in a debt or other property, (as the assignee of a debt certainly has,) then a court of equity is the proper forum to enforce it; and he is not to be driven to any circuity by instituting a suit at law in the name of the person who is possessed of the legal title.' In the next paragraph, however, it is admitted that 'if the assignment be of a contract involving the consideration and ascertainment of unliquidated damages, as in case of the assignment of a policy of insurance, then, unless some obstruction exists to the remedy at law, it would seem that a court of equity ought not, or might not, interfere to grant relief; for the facts and the damages are properly matters for a jury to ascertain and decide. But the same objection would not lie to an assignment of a bond or other security for a fixed sum.'

The doctrine referred to in this passage as 'apparently new,' is that stated by Vice-Chancellor SHADWELL in Hammond v. Messenger, 9 Sim. 327-332, where he said:

'If this case were stripped of all special circumstances, it     would be simply a bill filed by a plaintiff who had obtained      from certain persons, to whom a debt was due, a right to sue      in their name for the debt. It is quite new to me, in such a     simple case as that, this court allows, in the first      instance, a bill to be filed against the debtor by the person      who has become the assignee of the debt. I admit that if     special circumstances are stated, and it is represented that,      notwithstanding the right which the party has obtained to sue      in the name of the creditor, the creditor will interfere and prevent the exercise of that right, this      court will interpose for the purpose of preventing that      species of wrong being done; and if the creditor will not      allow the matter to be tried at law in his name, this court      has a jurisdiction in the first instance to compel the debtor      to pay the debt to the plaintiff, especially in a case where      the act done by the creditor is done in collusion with      debtor. If bills of this kind were allowable, it is obvious     they would be pretty frequent; but I never remember any      instance of such a bill as this being filed, unaccompanied by      special circumstances.'

And, accordingly, the supreme judicia, court of Massachusetts, in Walker v. Brooks, 125 Mass. 241, held that 'a court of equity will not entertain a bill by the assignee of a strictly legal right, merely upon the ground that he cannot bring an action at law in his own name, nor unless it appears that the assignor prohibits and prevents such an action from being brought in his name, or that an action so brought would not afford the assignee an adequate remedy.' And Chief Justice GRAY, delivering its opinion in that case, referring to the passage from Story to the contrary, said: 'But the adjudged cases, including those cited by the learned commentator, upon being examined, fail to support his position, and show that the doctrine of Hammond v. Messenger is amply sustained by earlier authorities in England and in this country.' This conclusion he then verifies by a review of the cases from the time of Lord Chancellor KING, whose decision in Dhegehoft v. London Assurance Co. was affirmed in the house of lords,-Mosely, 83; 4 Brown, Parl. Cas. (2d Ed.) 436;-followed by Lord HARDWICKE, in Motteaux v. London Assurance co. 1 Atkyns, 545, 547, and Lord LOUGHBOROUGH, in Caton v. Burke, 1 Brown, Ch. 434, to Vice-Chancellor KNIGHT BRUCE, in Rose v. Clarke, 1 Younge & C. Ch. 534, 548; and in this country from Carter v. ''United Ins. co.'' 1 Johns. Ch. 463, by Chancellor KENT; and Ontario Bank v. Mumford, 2 Barb. Ch. 596, 615, by Chancellor WALWORTH; including several others in various states. He then points out that in Riddle v. Mandeville, 5 Cranch, 322, the principal case cited by Mr. Justice STORY in support of his statement, a bill in equity by an indorsee of a promissory note against a remote indorser was sustained by this court, upon the ground that in Virginia, the law of which governed the case, no remedy at law could be had against him, except by the circuitous course of successive actions by each indorsee against his immediate indorser, and that, in that particular case, the intermediate party was insolvent; and that Chief Justice MARSHALL, who delivered the opinion in that case, did not consider it as establishing the general proposition for which it was cited, was manifest from his opinion in the later case of Lenox v. Roberts, 2 Wheat. 373, in which the assignee of all the property of a banking corporation was allowed to maintain a bill in equity in his own name upon a promissory note which had not been formally indorsed to him, for the reason that, 'as the act of incorporation had expired, no action culd be maintained at law by the bank itself.'

The same doctrine had received a pointed application by this court in the case of Thompson v. Railroad Cos. 6 Wall. 134. That case was commenced in the state court in Ohio, by the parties in interest, in their own name, although only beneficially entitled, in accordance with the Code of the state. It was removed into the circuit court, where the plaintiffs filed a bill in equity, because their title was equitable merely. A decree in their favor, on appeal, was reversed by this court; Mr. Justice DAVIS remarking, in the opinion, that 'this case does not present a single element for equitable jurisdiction and relief,' and added:

'The absence of a plain and adequate remedy at law is the     only test of equity jurisdiction, and it is manifest that a      resort to a court of chancery was not necessary in order to      enable the railroad companies to collect their debt.'

That decision has been cited with approval in the subsequent cases of Walker v. Dreville, 12 Wall. 442; Van Norden v. Morton, 99 U.S. 380; and Hunt v. Hollingsworth, 100 U.S. 103.

In the present case, the complainant had a plain and adequate remedy at law by an action in the name of Allen, whose willingness to permit his name to be so used, in accordance with his agreement to that effect, is manifest from the fact that in the original bill he was named as one of the complainants. There was, therefore, no error committed by the circuit court in dismissing the amended bill for want of jurisdiction in equity. The decree is accordingly affirmed.

title: Hayward v. Andrews/Opinion of the Court


text: Talk:Hayward v. Andrews/Opinion of the Court


text:
Gay v. Parpart (106 U.S. 679)

Edward S. Isham, Lyman Trumbull, and Arthur W. Windett, for appellants.

Lawrence Proudfoot and John S. Miller, for appellee.

MILLER, J.

title: Gay v. Parpart (106 U.S. 679)


text: Talk:Gay v. Parpart (106 U.S. 679)

title: Talk:Gay v. Parpart (106 U.S. 679)