text:
Freeman v. Dawson/Opinion of the Court

This is an appeal by the grantee in a deed of trust, from a decree of the circuit court of the United States for the Western district of Tennessee, in favor of a judgment creditor of the grantor. The undisputed facts of the case, as shown by the pleadings and the documentary evidence, are as follows: In January, 1878, the owners of two lots of land in the city of Memphis county of Shelby, and State of Tennessee, executed to R. C. Daniel a lease, thereof for the term of six years, at a certain rent, and with a provision that any improvements or machinery made or erected by the lessee might be removed by him at the end of the lease. Steers and Morse, under a contract with Daniel, erected upon the land a cotton-press, engine, boilers, and machinery; and on August 8, 1878, filed the original bill in this case against him, in the chancery court of Shelby county, to enforce a mechanic's lien, under the statutes of Tennessee, upon his leasehold interest in the land, and upon his interest in the press and machinery, and obtained a writ of attachment against the same. On June 6, 1878, A. H. H. Dawson duly recovered against Daniel two judgments at law, upon default, in the circuit court of the United States, amounting together to the sum of $5,629.91. At the same term, on June 13th, an application was made by Daniel to vacate each of those judgments, and was 'continued until the next term of the court, without prejudice to either party.' On July 5th writs of fieri facias upon both the judgments were issued by the clerk and delivered to the marshal. On July 9th the marshal, as appears by his indorsement thereon, levied each of these executions upon Daniel's interest in the land, (particularly described,) and upon all his interest 'in and to the chattel property in, about and upon the foregoing described lots and parcels of land, consisting of a Morse improved Tyler cotton compress, with engines, boilers, machinery, etc., with all appurtenances thereto belonging;' and afterwards published and posted, and served upon Daniel, as required by law, notices of a sale to be made on August 8th in pursuance of the levy. On August 5th the circuit judge sent to the clerk the following letter:

'MY DEAR SIR: I have been furnished by Messrs. Gantt &     Patterson, attorneys for Mr. R. C. Daniel, with certified      copies of the record in the suits of A. H. H. Dawson v.      Daniel, pending in your court. From this, as I construe it,     judgments by default were rendered at the last term, and then      an application made to set aside said judgments and permit      defendant to plead, which application was continued to next      term of the court. This leaves these cases pending and     undetermined. Yet Messrs. Gantt & Patterson, for their     client, represent that executions have been issued and levied      on Daniel's property. If this is so, the executions are     without authority, and ought to be called in as improvidently      issued. There is no final judgment on which they can rest. My     suggestion is that you issue a paper to the marshal reciting      the fact that executions were issued without authority, and      request him to return the same unexecuted.

'I am, very truly, etc.,

JNO. BAXTER.

'BELL W. ETHERIDGE, Esq.

'U.S.C.ircuit Clerk, Memphis, Tenn.'

On August 7th the clerk delivered to the marshal a paper headed 'Circuit Court of the United States for the Western District of Tennessee,' with the names of the cases and their numbers on the docket, and the rest of which was as follows:

'To the United States Marshal, Western District of Tennessee:

'In accordance with the instructions of Judge BAXTER,     communicated by letter, a copy of which is hereto attached, I      notify you that the executions in the two above-named cases      were issued without authority, and request you to return the      same unexecuted. You will therefore act accordingly.

'Witness my signature, and the seal of said court, this, the     seventh day of August, 1878.

[Seal.]

'BELL W. ETHERIDGE, Clerk.'

The marshal's return upon each execution, after stating the levy and notice, concluded as follows: 'And on seventeenth August, 1878, in obedience to an order of court issued by Hon. JOHN BAXTER, I return this writ without further proceedings.' The coroner of Shelby county thereupon, on the same day, took possession of the property under the writ of attachment issued upon the bill in equity of Steers and Morse, On November 22d Daniel executed a deed, which was recorded on the next day, of his interest in the leasehold, and in the cotton-press, with its engine, boiler, machinery, and appurtenances, to John J. Freeman, in trust to secure, and to sell for the payment of, debts due from Daniel to various persons, in sums of $6,000 or less, and amounting in all to the sum of $18,370, for moneys borrowed by Daniel to pay for the leasehold and fixtures. The circuit court, at a regular term, on January 6, 1879, denied the applications of Daniel to vacate the judgments at law, and on Febuary 8th granted motions of Dawson for writs of venditioni exponas. On Febuary 10th such writs were issued accordingly, which recited that 'said writs of fieri facias have been returned without any sale of the property levied on as aforesaid, which levies this court now adjudges as still in full force, and unabandoned by the marshal, and the property so levied on is still in his possession by virtue of said levies.' The opinions delivered on the applications and motions are reported in Dawson v. Daniel, 2 Flippin, 301, 305. The returns subsequently made by the marshal upon the writs of venditioni exponas show that, upon receiving them, he want upon the land, and found the cotton-press being operated by and under the control of Charles Yerger, who claimed to be in possession, in behalf of the sheriff and coroner, under an order of the chancery court of Shelby county; that he exhibited his writs of venditioni exponas, and demanded of Yerger possession of the property, which was refused; that he was thereupon directed by the attorneys for Dawson to proceed under those writs to a sale of the property, and gave notice to Daniel of such a sale to take place on March 11th; and that on February 12th those attorneys 'directed that all proceedings hereunder be suspended until further orders in the premises.' On February 13th Steers and Morse filed in the suit in equity an amended and supplemental bill against Dawson, Freeman, trustee, and the beneficiaries under the trust deed; and on February 15th removed that suit into the circuit court of the United States, and there moved for a temporary injunction to restrain Dawson and the marshal from further proceeding against the property under the judgments and executions at law. On March 18th that court issued such an injunction, and ordered, with the consent of all the parties, 'that the custody and possession by the marshal of said property shall remain as it is, undisturbed, and that for the preservation of the property he may employ a day and night watchman for the same, but without in any manner affecting the rights or claim of any party hereto; and nothing herein contained shall be held in any manner to affect or release any lien that the defendant Dawson claims to have acquired under his said judgments, executions, and liens.' On June 2d the marshal returned the writs of venditioni exponas, 'without further proceedings.' On June 13, 1879, after answers filed by Dawson, and answers and cross-bills filed by Freeman and the beneficiaries under the trust deed, the suit in equity came to a final hearing in the circuit court, and a decree was entered, by consent, ordering and confirming a sale of the leasehold, and of the press and machinery, establishing the priority of the lien of Steers and Morse, and applying to the satisfaction of that line, and to the payment of the accrued rent and taxes, the proceeds of the sale, except the sum of $6,000, which was reserved to abide the result of the litigation between Dawson and Freeman. And on July 28, 1880, a final decree was entered, affirming the validity of the judgments and executions, and awarding the fund of $6,000 to Dawson. The opinion is reported in Steers v. daniel, 2 Flippin, 310; [S.C.. 4 Fed. Rep. 587.] Freeman thereupon appealed to this court.

By the marshal's deposition, and the weight of the whole evidence, the other material facts in the case appear to be as follows: The marshal, on July 9, 1878, at the time of levying the executions issued upon the judgments at law, and with the consent and at the expense of Dawson's attorneys, put a watchman in possession of the premises to protect the property against fire and depredation; and on August 8th showed the letter of the circuit judge, and the paper received from the clerk, to Dawson's attorneys, and was told by them that actual possession was not required by law to maintain the levies, and thereupon by their direction withdrew the watchman, knowing that the coroner was about to levy the attachment granted by the state court on the bill in equity of Steers and Morse; and the marshal did not afterwards retain possession, in fact, of the property. But he did not intend to abandon the levies; and he suspended further proceedings merely in obedience to the order received from the clerk, and for the purpose of submitting to the court the question of the validity of the executions and levies.

The appellee has moved to dismiss the appeal for want of a sufficient amount in controversy to sustain the jurisdiction of this court. The reason assigned for the motion is that, if the appellant's position is maintained, no one of the creditors secured by the trust deed will receive so much as $5,000 out of the fund of $6,000 in court. But it is admitted that the whole amount of debts secured by the deed of trust exceeds that fund. The sole question at issue on this appeal is of the legal title to the whole fund, as between Dawson, the judgment creditor, on the one hand, and Freeman, the grantee in the deed of trust, on the other; and no question of payment to or distribution among the several cestuis que trust is presented. The motion to dismiss must therefore be overruled. Ex parte Baltimore & O. R. Co. 106 U.S. 5, [1 SUP. CT. REP. 35,] and cases there cited.

Upon the merits, the priority of the mechanic's lien having been established by the circuit court with the consent of the parties, the single question is whether the title of Dawson, under the judgments rendered against Daniel and the executions levied on the property, is to be preferred to the title of Freeman under the deed of trust to him from the judgment debtor. The judgments were duly recovered. The filing of applications to set them aside did not affect the validity of the judgments, nor suspend the right to take out executions thereon. The continuance of those applications to the next term, 'without prejudice to either party,' left both parties in statu quo, the applications of the judgment debtor to set aside the judgments undetermined, and the right of the judgment creditor to enforce the judgments unaffected. The leview were duly made by the marshal, and indorsed by him on the executions. The law of Tennessee, following the rule established in the colonies by the English statute of 5 Geo. II. c. 7, § 4, authorizes real estate, as well as personal preperty, to be levied upon and sold under a writ of fleri facias. Code Tenn. § 2999; Russell v. Stinson, 3 Hayw. 1; Pillow v. Love, 5 Hayw. 109. The action of the circuit judge in directing the recall of the executions in vacation, out of court, without notice to the judgment creditor, was irregular and unauthorized, and of no legal validity. The levy of an execution takes effect from the time when it is made by seizing the property, and is not defeated by a subsequent writ of supersedeas, but all the proceedings, by sale or otherwise, in the due course and completion of the levy, for collecting the debt out of the property, have relation back to the time of the seizure. Boyle v. Zacharie, 6 Pet. 648, 659; U.S. v. Dashiel, 3 Wall. 688; Batdorff v. Focht, 44 Pa. St. 195; Bond v. Willett, 31 N. Y. 102; Capen v. Doty, 13 Allen, 262. By the common law, a leasehold interest in land is personal property. Trade fixtures put up by the lessee, although real estate as between the lessor and himself, while annexed to the land, yet may, during the term of the lease, be severed by the lessee, or by one deriving title from him, and thus reconverted to their original condition of chattels. At any time before the expiration of the term, therefore, both the leasehold and the fixtures may be taken on execution against the lessee, like other personal property. Dalzell v. Lynch, 4 Watts & S. 255; Kutter v. Smith, 2 Wall. 491; Van Ness v. Pacard, 2 Pet. 137; Minshall v. Lloyd, 2 Mees. & W. 450; Guthrie v. Jones, 108 Mass. 191.

It is argued for the appellee that by the law of Tennessee the rule is different as to both leasehold and fixtures, or at least as to the leasehold. But we have not found it necessary, for the purposes of this case, to decide whether by the local law the leasehold and fixtures, or either of them, should be treated as real estate, or as personal property, in levying an execution on them for the debt of the lessee. If, as the appellee contends, the property levied on should be considered as real estate, the judgments, having been recovered in the county in which the debtor resided, created a lien from the time they were rendered, which was continued in force by the taking out of the executions and the sale of the property within a year after the rendition of the judgments. Code Tenn. §§ 2980, 2982. If, as the appellant contends, the leasehold and fixtures were personal property, the case stands thus: The leasehold interest, though personal property, is an interest in land. The lessee's interest in the fixtures arises out of the agreement contained in the lease, and of the manner and purpose of their annexation to the land, from which they could not be separated and removed without much labor and expense. It was not necessary that the officer should retain actual possession in order to keep alive a levy upon such property. Ashmun v. Williams, 8 Pick. 402. The executions have never been legally recalled or set aside. The officer, in deference to the supposed order of the court, staying the executions, suspended further proceedings for the conversion of the property into money to satisfy the judgment debts, and returned the executions to the court with indorsements showing all the proceedings under them, thereby submitting the regularity of his proceedings and the validity of the levies to the judgment of the court; and it was after this return that the property was taken possession of by the coroner, under the writ of attachment from the state court, and was conveyed by the judbment debtor to the appellant. The possession so taken by the coroner, and the conveyance so made by the debtor, cannot impair the validity of the levies. The judgment creditor and the marshal had done everything in their power to perfect them. All the proceedings of the marshal had been indorsed by him on the executions and returned to the court, and thus appeared of record. The levies having been once duly made, and never abandoned or intended to be abandoned, and not needing a continuance of actual possession by the marshal to maintain them, had not been defeated by any extrinsic facts. And the court, upon motion and hearing, determined that the levies continued in force, and ordered writs of venditioni exponas to issue. The marshal was prevented from taking possession of and selling the property under those writs by the fact of its being in possession of the officer of the state court, under the attachment issued in the present suit to enforce the mechanic's lien. But by the removal of this suit into the circuit court of the United States, all danger of conflict between the federal process and state process was avoided; and the circuit court, having all the parties and all the processes before it, rightly held that the levies of the executions upon the judgments at law continued in force, and gave the judgment creditor a priority over the grantee of the judgment debtor.

Decree affirmed.

title: Freeman v. Dawson/Opinion of the Court


text:
Page:Mind (New Series) Volume 12.djvu/450

 only importance I can claim for the subject I shall investigate is that it seems to me to be a matter upon which not Idealists only, but all philosophers and psychologists also, have been in error, and from their erroneous view of which they have inferred (validly or invalidly) their most striking and interesting conclusions. And that it has even this importance I cannot hope to prove. If it has this importance, it will indeed follow that all the most striking results of philosophy—Sensationalism, Agnosticism and Idealism alike—have, for all that has hitherto been urged in their favour, no more foundation than the supposition that a chimera lives in the moon. It will follow that, unless new reasons never urged hitherto can be found, all the most important philosophic doctrines have as little claim to assent as the most superstitious beliefs of the lowest savages. Upon the question what we have reason to believe in the most interesting matters, I do, therefore, think that my results will have an important bearing; but I cannot too clearly insist that upon the question whether these beliefs are true they will have none whatever.

The trivial proposition which I propose to dispute is this: that esse is percipi. This is a very ambiguous proposition, but, in some sense or other, it has been very widely held. That it is, in some sense, essential to Idealism, I must for the present merely assume. What I propose to show is that, in all the senses ever given to it, it is false.

But, first of all, it may be useful to point out briefly in what relation I conceive it to stand to Idealistic arguments. That wherever you can truly predicate esse you can truly predicate percipi, in some sense or other, is, I take it, a necessary step in all arguments, properly to be called Idealistic, and, what is more, in all arguments hitherto offered for the Idealistic conclusion. If esse is percipi, this is at once equivalent to saying that whatever is is experienced; and this, again, is equivalent, in a sense, to saying that whatever is is something mental. But this is not the sense in which the Idealist conclusion must maintain that Reality is mental. The Idealist conclusion is that esse is percipere; and hence, whether esse be percipi or not, a further and different discussion is needed to show whether or not it is also percipere. And again, even if esse be percipere, we need a vast quantity of further argument to show that what has esse has also those higher mental qualities which are denoted by spiritual. This is why I said that the question I should discuss, namely, whether or not esse is percipi, must be utterly insufficient either to prove or to disprove that reality is spiritual. But, on the other hand,

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


text: Talk:Freeman v. Dawson/Opinion of the Court


text:
Page:Mind (New Series) Volume 12.djvu/451

 I believe that every argument ever used to show that reality is spiritual has inferred this (validly or invalidly) from ‘esse is percipere’ as one of its premisses; and that this again has never been pretended to be proved except by use of the premiss that esse is percipi. The type of argument used for the latter purpose is familiar enough. It is said that since whatever is, is experienced, and since some things are which are not experienced by the individual, these must at least form part of some experience. Or again that, since an object necessarily implies a subject, and since the whole world must be an object, we must conceive it to belong to some subject or subjects, in the same sense in which whatever is the object of our experience belongs to us. Or again, that, since thought enters into the essence of all reality, we must conceive behind it, in it, or as its essence, a spirit akin to ours, who think: that ‘spirit greets spirit’ in its object. Into the validity of these inferences I do not propose to enter: they obviously require a great deal of discussion. I only desire to point out that, however correct they may be, yet if esse is not percipi, they leave us as far from a proof that reality is spiritual, as if they were all false too.

But now: Is esse percipi? There are three very ambiguous terms in this proposition, and I must begin by distinguishing the different things that may be meant by some of them.

And first with regard to percipi. This term need not trouble us long at present. It was, perhaps, originally used to mean ‘sensation’ only; but I am not going to be so unfair to modern Idealists—the only Idealists to whom the term should now be applied without qualification—as to hold that, if they say esse is percipi, they mean by percipi sensation only. On the contrary I quite agree with them that, if esse be percipi at all, percipi must be understood to include not sensation only, but that other type of mental fact, which is called ‘thought’: and, whether esse be percipi or not, I consider it to be the main service of the philosophic school, to which modern Idealists belong, that they have insisted on distinguishing ‘sensation’ and ‘thought’ and on emphasising the importance of the latter. Against Sensationalism and Empiricism they have maintained the true view. But the distinction between sensation and thought need not detain us here. For, in whatever respects they differ, they have at least this in common, that they are both forms of consciousness or, to use a term that seems to be more in fashion just now, they are both ways of experiencing. Accordingly, whatever esse is percipi may mean, it does at least assert that whatever is, is experienced. And since what I wish to maintain is, that even this is untrue, the


text:
Page:Mind (New Series) Volume 12.djvu/452

 question whether it be experienced by way of sensation or thought or both is for my purpose quite irrelevant. If it be not experienced at all, it cannot be either an object of thought or an object of sense. It is only, if being involves ‘experience,’ that the question, whether it involves sensation or thought or both, becomes important. I beg, therefore, that percipi may be understood, in what follows, to refer merely to what is common to sensation and thought. A very recent article states the meaning of esse is percipi with all desirable clearness in so far as percipi is concerned. ‘I will undertake to show,’ says Mr. Taylor, ‘that what makes [any piece of fact] real can be nothing but its presence as an inseparable aspect of a sentient experience.’ I am glad to think that Mr. Taylor has been in time to supply me with so definite a statement that this is the ultimate premiss of Idealism. My paper will at least refute Mr. Taylor’s Idealism, if it refutes anything at all: for I shall undertake to show that what makes a thing real cannot possibly be its presence as an inseparable aspect of a sentient experience.

But Mr. Taylor’s statement, though clear, I think, with regard to the meaning of percipi, is highly ambiguous in other respects. I will leave it for the present to consider the next ambiguity in the statement: Esse is percipi. What does the copula mean? What can be meant by saying that esse is percipi? There are just three meanings, one or other of which such a statement must have, if it is to be true: and of these there is only one which it can have, if it is to be important. (1) The statement may be meant to assert that the word ‘esse’ is used to signify nothing either more or less than the word ‘percipi’: that the two words are precise synonyms: that they are merely different names for one and the same thing: that what is meant by esse is absolutely identical with what is meant by percipi. I think I need not prove that the principle esse is percipi is not thus intended merely to define a word; nor yet that, if it were, it would be an extremely bad definition. But if it does not mean this, only two alternatives remain. The second is (2) that what is meant by esse, though not absolutely identical with what is meant by percipi, yet includes the latter as a part of its meaning. If this were the meaning of ‘esse is percipi,’ then to say that a thing was real would not be the same thing as to say that it was experienced. That it was real would mean that it was experienced and something else besides: ‘being experienced’ would be analytically essential to reality, but


text:
James v. Hicks

This action was brought by Hicks, the defendant in error, on August 15, 1879, to recover $3,292.95 for taxes alleged to have been illegally exacted by the intestate as collector of internal revenue on October 31, 1865. The only question now made is that the suit was not brought within the time allowed by law. The plaintiff in his declaration alleged that he appealed to the commissioner of internal revenue to refund the tax illegally collected, and that his appeal was rejected by the commissioner on January 22, 1879. To this declaration the defendant pleaded that the appeal to the commissioner to refund the money exacted, was filed in his office on February 8, 1866, and was rejected on May 7, 1866. To this the plaintiff replied that the appeal referred to in the plea was not duly made, and that it was not rejected on its merits, but because it had not been made and certified on proper forms as required by the treasury regulations; and that afterwards, on January 8, 1868, he made an appeal in due form, which was entertained by the commissioner, and finally decided and rejected on January 22, 1879. The finding of the fact on this issue by the court is as follows:

'The issues in fact being tried and determined by the court in this cause, upon a stipulation in writing by the parties through their respective counsel, filed under section 649, Rev. St., the court find the facts as provided under the special plea of the statute of limitations, to be that the suit was brought within six months after the final rejection of the plaintiff's appeal made to the commissioner of internal revenue at Washington, the same having been pending before the commissioner from the time the appeal was perfected on form 46, according to the provisions of law, and the regulations of the secretary of the treasury made in pursuance thereof. It is further found that the delay in the consideration of the appeal by the commissioner, after its perfection on form 56 and the signatures of the proper officers required by law, was occasioned by the loss of the original papers filed with the department by the plaintiff or his attorney, and required by law to be kept there.'

Judgment was rendered in favor of the plaintiff below, to reverse which, is the object of the present proceeding.

''Sol. Gen. Phillips'', for plaintiff in error.

W. P. Burwell, for defendant in error.

MATTHEWS, J.

title: James v. Hicks


text: Talk:James v. Hicks

title: Talk:James v. Hicks


text:
Page:Mind (New Series) Volume 12.djvu/453

 would not be the whole meaning of the term. From the fact that a thing was real we should be able to infer, by the law of contradiction, that it was experienced; since the latter would be part of what is meant by the former. But, on the other hand, from the fact that a thing was experienced we should not be able to infer that it was real; since it would not follow from the fact that it had one of the attributes essential to reality, that it also had the other or others. Now, if we understand esse is percipi in this second sense, we must distinguish three different things which it asserts. First of all, it gives a definition of the word ‘reality’: asserting that that word stands for a complex whole, of which what is meant by ‘percipi’ forms a part. And secondly it asserts that ‘being experienced’ forms a part of a certain whole. Both these propositions may be true, and at all events I do not wish to dispute them. I do not, indeed, think that the word ‘reality’ is commonly used to include ‘percipi’; but I do not wish to argue about the meaning of words. And that many things which are experienced are also something else—that to be experienced forms part of certain wholes, is, of course, indisputable. But what I wish to point out is that neither of these propositions is of any importance, unless we add to them a third. That ‘real’ is a convenient name for a union of attributes which sometimes occurs, it could not be worth any one’s while to assert: no inferences of any importance could be drawn from such an assertion. Our principle could only mean that when a thing happens to have percipi as well as the other qualities included under esse, it has percipi: and we should never be able to infer that it was experienced, except from a proposition which already asserted that it was both experienced and something else. Accordingly, if the assertion that percipi forms part of the whole meant by reality is to have any importance, it must mean that the whole is organic, at least in this sense, that the other constituent or constituents of it cannot occur without percipi, even if percipi can occur without them. Let us call these other constituents x. The proposition that esse includes percipi, and that therefore from esse percipi can be inferred, can only be important if it is meant to assert that percipi can be inferred from x. The only importance of the question whether the whole esse includes the part percipi rests therefore on the question whether the part x is necessarily connected with the part percipi. And this is (3) the third possible meaning of the assertion esse is percipi: and, as we now see, the only important one. Esse is percipi asserts that wherever you have x you also have percipi: that whatever


text:
James v. Hicks/Opinion of the Court

It is alleged as error, in the first place, that the court should have treated the appeal rejected for informality as the basis for determining the time within which the suit ought to have been brought. But that appeal was not so treated by the commissioner, who rejected it for mere informality and entertained the subsequent appeal, made in proper form, as rightly prosecuted. The latter, in our opinion, was the appeal contemplated by the statute.

It is further insisted, however, that treating the appeal of January 8, 1868, as the only one to be considered, the action was barred by lapse of time. Section 19 of the act of 1866, (July 13,) c. 184, (14 St. 152,) is: 'that no suit shall be maintained in any court for the recovery of any tax alleged to have been erroneously or illegally assessed or collected until appeal shall have been duly made to the commissioner of internal revenue according to the provisions of law in that regard, and the regulations of the secretary of the treasury established in pursuance thereof, and a decision of said commissioner be had thereon, unless such suit shall be brought within six months from the time of said decision, or within six months from the time this act takes effect: provided, that if said decision shall be delayed more than six months from the date of such appeal, then said suit may be brought at any time within twelve months from the date of such appeal.' Section 3227, Rev. St., which was first adopted in the act of June 6, 1872, provides that 'no suit or proceeding for the recovery of any internal tax alleged to have been erroneously or illegally assessed or collected, or of any penalty alleged to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, shall be maintained in any court unless the same is brought within two years next after the cause of action accrued; provided, that actions for such claims which accrued prior to June six, eighteen hundred and seventy-two, may be brought within one year from said date; and that where any such claim was pending before the commissioner, as provided in the preceding section, an action thereon may be brought within one year after such decision and not after. But no right of action which was already barred by any statute on said date shall be revived by this section.'

It is argued now, by the solicitor-general, that the action was barred by the act of 1866, because not brought within twelve months from the date of the appeal. The terms of that act require, as conditions precedent to the right to bring any such suit, First, an appeal to the commissioner of internal revenue; second, a decision thereon by him; and not then unless it shall be brought within six months after such decision, or within that time after the act takes effect. The proviso is, that if the decision is delayed more than six months from the date of the appeal, the suit may be brought at any time within twelve months from the date of such appeal, that is, although no decision may have in the meantime been made. Such was the construction of similar provisions contained in section 2931 Rev. St., adopted in Arnson v. Murphy, 3 SUP. CT. REP. 184. The plaintiff is not bound to sue until a decision on the appeal has actually been made, but must sue within six months thereafter. If he does not choose to wait for a decision, he may nevertheless bring suit before it is made if it is delayed more than six months from the date of the appeal, provided, however, in that case, he sues within twelve months from the date of the appeal.

In the present case, the plaintiff chose to wait, as he had the right to do, until a decision upon his appeal had been made. It had not been made on June 6, 1872, when the act of that date took effect, being section 3227 Rev. St. The claim, therefore, was pending before the commissioner at that time. It continued to be so until January 22, 1879, when it was decided. By the terms of section 3227, he had one year after that decision within which to bring his suit, which he did.

The judgment of the circuit court was, therefore, right, and is accordingly affirmed.

title: James v. Hicks/Opinion of the Court


text: Talk:James v. Hicks/Opinion of the Court


text:
Page:Mind (New Series) Volume 12.djvu/454

 has the property x also has the property that it is experienced. And this being so, it will be convenient if, for the future, I may be allowed to use the term ‘esse’ to denote x alone. I do not wish thereby to beg the question whether what we commonly mean by the word ‘real’ does or does not include percipi as well as x. I am quite content that my definition of ‘esse’ to denote x, should be regarded merely as an arbitrary verbal definition. Whether it is so or not, the only question of interest is whether from x percipi can be inferred, and I should prefer to be able to express this in the form: can percipi be inferred from esse? Only let it be understood that when I say esse, that term will not for the future include percipi: it denotes only that x, which Idealists, perhaps rightly, include along with percipi under their term esse. That there is such an x they must admit on pain of making the proposition an absolute tautology; and that from this x percipi can be inferred they must admit, on pain of making it a perfectly barren analytic proposition. Whether x alone should or should not be called esse is not worth a dispute: what is worth dispute is whether percipi is necessarily connected with x.

We have therefore discovered the ambiguity of the copula in esse is percipi, so far as to see that this principle asserts two distinct terms to be so related, that whatever has the one, which I call esse, has also the property that it is experienced. It asserts a necessary connexion between esse on the one hand and percipi on the other; these two words denoting each a distinct term, and esse denoting a term in which that denoted by percipi is not included. We have, then, in esse is percipi, a necessary synthetic proposition which I have undertaken to refute. And I may say at once that, understood as such, it cannot be refuted. If the Idealist chooses to assert that it is merely a self-evident truth, I have only to say that it does not appear to me to be so. But I believe that no Idealist ever has maintained it to be so. Although this—that two distinct terms are necessarily related—is the only sense which ‘esse is percipi’ can have if it is to be true and important, it can have another sense, if it is to be an important falsehood. I believe that Idealists all hold this important falsehood. They do not perceive that Esse is percipi must, if true, be merely a self-evident synthetic truth: they either identify with it or give as a reason for it another proposition which must be false because it is self-contradictory. Unless they did so, they would have to admit that it was a perfectly unfounded assumption; and if they recognised that it was unfounded, I do not think they would maintain its truth to be evident. Esse is percipi, in the sense


text:
Krippendorf v. Hyde

It is alleged that all the attachment creditors are non-residents of the state of Indiana; but it does not appear from the record what is the citizenship of any of the parties to the bill. The ground of the decree of the circuit court was that the appellant had a plain and adequate remedy at law.

D. V. Burns, for appellant.

Lew Wallace and A. W. Hatch, for appellees.

[Argument of Counsel from pages 278-279 intentionally omitted]

MATTHEWS, J.

title: Krippendorf v. Hyde


text:
Page:Mind (New Series) Volume 12.djvu/455

 I have found for it, may indeed be true; I cannot refute it: but if this sense were clearly apprehended, no one, I think, would believe that it was true.

Idealists, we have seen, must assert that whatever is experienced, is necessarily so. And this doctrine they commonly express by saying that ‘the object of experience is inconceivable apart from the subject’. I have hitherto been concerned with pointing out what meaning this assertion must have, if it is to be an important truth. I now propose to show that it may have an important meaning, which must be false, because it is self-contradictory.

It is a well-known fact in the history of philosophy that necessary truths in general, but especially those of which it is said that the opposite is inconceivable, have been commonly supposed to be analytic, in the sense that the proposition denying them was self-contradictory. It was, in this way, commonly supposed, before Kant, that many truths could be proved by the law of contradiction alone. This is, therefore, a mistake which it is plainly easy for the best philosophers to make. Even since Kant many have continued to assert it; but I am aware that among those Idealists, who most properly deserve the name, it has become more fashionable to assert that truths are both analytic and synthetic. Now with many of their reasons for asserting this I am not concerned: it is possible that in some connexions the assertion may bear a useful and true sense. But if we understand ‘analytic’ in the sense just defined, namely, what is proved by the law of contradiction alone, it is plain that, if ‘synthetic’ means what is not proved by this alone, no truth can be both analytic and synthetic. Now it seems to me that those who do maintain truths to be both, do nevertheless maintain that they are so in this as well as in other senses. It is, indeed, extremely unlikely that so essential a part of the historical meaning of ‘analytic’ and ‘synthetic’ should have been entirely discarded, especially since we find no express recognition that it is discarded. In that case it is fair to suppose that modern Idealists have been influenced by the view that certain truths can be proved by the law of contradiction alone. I admit they also expressly declare that they can not: but this is by no means sufficient to prove that they do not also think they are; since it is very easy to hold two mutually contradictory opinions. What I suggest then is that Idealists hold the particular doctrine in question, concerning the relation of subject and object in experience, because they think it is an analytic truth in this restricted sense that it is proved by the law of contradiction alone.


text: Talk:Krippendorf v. Hyde

title: Talk:Krippendorf v. Hyde


text:
Page:Mind (New Series) Volume 12.djvu/456

 I am suggesting that the Idealist maintains that object and subject are necessarily connected, mainly because he fails to see that they are distinct, that they are two, at all. When he thinks of ‘yellow’ and when he thinks of the ‘sensation of yellow,’ he fails to see that there is anything whatever in the latter which is not in the former. This being so, to deny that yellow can ever be apart from the sensation of yellow is merely to deny that yellow can ever be other than it is; since yellow and the sensation of yellow are absolutely identical. To assert that yellow is necessarily an object of experience is to assert that yellow is necessarily yellow—a purely identical proposition, and therefore proved by the law of contradiction alone. Of course, the proposition also implies that experience is, after all, something distinct from yellow—else there would be no reason for insisting that yellow is a sensation: and that the argument thus both affirms and denies that yellow and sensation of yellow are distinct, is what sufficiently refutes it. But this contradiction can easily be overlooked, because though we are convinced, in other connexions, that ‘experience’ does mean something and something most important, yet we are never distinctly aware what it means, and thus in every particular case we do not notice its presence. The facts present themselves as a kind of antinomy: (1) Experience is something unique and different from anything else; (2) Experience of green is entirely indistinguishable from green; two propositions which cannot both be true. Idealists, holding both, can only take refuge in arguing from the one in some connexions and from the other in others.

But I am well aware that there are many Idealists who would repel it as an utterly unfounded charge that they fail to distinguish between a sensation or idea and what I will call its object. And there are, I admit, many who not only imply, as we all do, that green is distinct from the sensation of green, but expressly insist upon the distinction as an important part of their system. They would perhaps only assert that the two form an inseparable unity. But I wish to point out that many, who use this phrase, and who do admit the distinction, are not thereby absolved from the charge that they deny it. For there is a certain doctrine, very prevalent among philosophers nowadays, which by a very simple reduction may be seen to assert that two distinct things both are and are not distinct. A distinction is asserted; but it is also asserted that the things distinguished form an ‘organic unity’. But, forming such a unity, it is held, each would not be what it is apart from its relation to


text:
Krippendorf v. Hyde/Opinion of the Court

This appeal is prosecuted to review a decree dismissing the bill of the appellant for want of equity. The case made by the bill is as follows:

According to the law of Indiana, the giving of the delivery bond did not divest the lien of the attachment upon the goods, which remained, in contemplation of law, in the possession of the officer, (Gass v. Williams, 46 Ind. 253;) so that if the proceedings had been in the state court, the appellant, while the goods remained in specie, on demand and refusal of a return of the property to him by the officer, might have maintained an action of replevin on proof of title. Louthain v. Fitzer, 78 Ind. 449. Having disposed of the goods, so that he could not return them in specie, it would seem that no action of replevin could thereafter be brought, and, on general principles, be could not set up his ownership as a defense to an action on the bond. Drake, Attachm. § 340. Under the practice in Indiana he would not be permitted to become a party to the suit in order to have his title there determined. Risher v. Gilpin, 29 Ind. 53. And, accordingly, in the attachment suit of Hyde Bros. against Frey & Maag, as stated in the bill, the appellant, having been at first made a party on his own motion, was susequently dismissed from it. Payment of the appraised value of the attached property to the marshal, which, by the terms of the delivery bond, he was bound to make, it can hardly be insisted deprived him of his title to the goods and their proceeds. Without giving the delivery bond, it is true, the owner could have brought suit against the marshal for trespass, although that would not in all cases furnish an adequate remedy by giving damages for the value of the property taken. Watson v. Sutherland, 5 Wall. 74.

The only legal remedy which can be said to be adequate for the purpose of protecting and preserving his right to the possession of his property was an action of replevin. Of this remedy at law in the state court he was deprived by the fact that the proceedings in attachment were pending in a court of the United States, because the property attached, being in the hands of the marshal, is regarded as in the custody of the court. This was the point decided in Freeman v. Howe, 24 How. 450, the doctrine of which must be considered as fully and firmly established in this court. In meeting the objections made in argument to the conclusion of the court in that case, Mr. Justice NELSON, delivering his opinion, used the following language: 'Another misapprehension under which the defendant in error labors, and in which the court below fell, was in respect to the appropriate remedy of the plaintiffs in the replevin suit for the grievance complained of. It was supposed that they were utterly remediless in the federal courts, inasmuch as both parties were citizens of Massachusetts. But those familiar with the practice of the federal courts have found no difficulty in applying a remedy, and one much more effectual than replevin, and more consistent with the order and harmony of judicial proceedings, as may be seen by reference to the following cases: Pennock v. Coe, 23 How. 117; Gue v. Tide Water Canal Co., [24 How. 257,] decided this term; 12 Pet. 164; 8 Pet. 1; 5 Cranch, 288.

'The principle is that a bill filed on the equity side of the court to restrain or regulate judgments or suits at law in the same court, and thereby prevent injustice or an inequitable advantage under mesne or final process, is not an original suit, but ancillary and dependent, supplementary merely to an original suit out of which it had arisen, and is maintained without reference to the citizenship or residence of the parties.

'The case in 8 Pet. 1, which was among the first which came before the court, deserves, perhaps, a word of explanation. It would seem, from a remark in the opinion, that the power of the court upon the bill was limited to a case between the parties to the original suit. This was probably not intended, as any party may file the bill whose interests are affected by the suit at law.'

It has been sometimes said that this statement was obiter dictum, and not to be treated as the law of the case; but it was, in point of fact, a substantial part of the argument in support of the judgment, and, on consideration, we feel bound to confirm it in substance as logically necessary to it; for, if we affirm, as that decision does, the exclusive right of the circuit court in such a case to maintain the custody of property, seized and held under its process by its officers, and thus to take from owners, wrongfully deprived of possession, the ordinary means of redress by suits for restitution in state courts, where any one may sue, without regard to citizenship, it is but common justice to furnish them with an equal and adequate remedy in the court itself which maintains control of the property; and, as this may not be done by original suits, on account of the nature of the jurisdiction as limited by differences of citizenship, it can only be accomplished by the exercise of the inherent and equitable powers of the court in auxiliary and dependent proceedings incidental to the cause in which the property is held, so as to give to the claimant from whose possession it has been taken, the opportunity to assert and enforce his right. And this jurisdiction is well defined by Mr. Justice NELSON, in the statement quoted, as arising out of the inhereint power of every court of justice to control its own process so as to prevent and redress wrong.

This principle was illustrated and applied in the case of Bank v. Turnbull, 16 Wall. 190. There, under a statute of Virginia, the claimant of property taken in execution upon a judgment rendered against another, gave to the sheriff a suspending and forthcoming bond, which stayed the sale and maintained his possession of the property until the title could be determined by a statutory interpleader. This issue having been properly directed in the state court, between parties who were citizens of different states, a petition was filed for its removal to the circuit court of the United States, under the removal act of March 2, 1867. The order of removal was reversed by this court on the ground that the suit 'was merely auxiliary to the original action, a graft upon it, and not an independent and separate litigation;' that 'it was provided to enable the court to determine whether its process had, as was claimed, been misapplied, and what right and justice required should be done touching the property in the hands of its officers. It was intended to enable the court, the plaintiff in the original action, and the claimant, to reach the final and proper result by a process at once speedy, informal, and inexpensive.' No one, even in equity, is entitled to be made or to become a party to the suit unless he has an interest in its object, (Calv. Part. 13;) yet it is the common practice of the court to permit strangers to the litigation, claiming an interest in its subject-matter, to intervene on their own behalf to assert their titles. 'When any person,' says Mr. Daniell, (Ch. Pr. c. 26, § 7, p. 1057,) 'claims to be entitled to an estate or other property sequestered, whether by mortgage or judgment, lease or otherwise, or has a title paramount to the sequestration, be should apply to the court to direct an inquiry whether the applicant has any and what interest in the property sequestered. This inquiry is called an examination pro interesse suo; and an order for such an examination may be obtained by a party interested, as well where the property consists of goods and chattels or personalty, as where it is real estate. Thus, in Martin v. Willis, 1 Fowl. Ex. Pr. 160, a person claiming title to goods seized under a sequestration, obtained an order for an examination pro interesse suo, and in the mean time that the goods might be restored to him on his giving security.' The same practice prevails in cases where property is put into the hands of a receiver. Daniell, Ch. Pr. c. 34, § 4, p. 1744. The grounds of this procedure are the duty of the court to prevent its process from being abused to the injury of third persons, and to protect its officers and its own custody of property in their possession, so as to defend and preserve its jurisdiction, for no one is allowed to question or disturb that possession except by leave of the court. So, the equitable powers of courts of law over their own process to prevent abuse, oppression, and injustice are inherent and equally extensive and efficient, as is also their power to protect their own jurisdiction and officers in the possession of property that is in the custody of the law, (Buck v. Colbath, 3 Wall. 334; Hagan v. Lucas, 10 Pet. 400;) and when in the exercise of that power it becomes necessary to forbid to strangers to the action the resort to the ordinary remedies of the law for the restoration of property in that situation, as happens when otherwise conflicts of jurisdiction must arise between courts of the United States and of the several states, the very circumstance appears which gives the party a title to an equitable remedy, because he is deprived of a plain and adequate remedy at law; and the question of citizenship, which might become material as an element of jurisdiction in a court of the United States when the proceeding is pending in it, is obviated by treating the intervention of the stranger to the action in his own interest, as what Mr. Justice STORY calls, in Clarke v. Mathewson, 12 Pet. 164-172, a dependent bill.

In the original action of Hyde Bros. against Frey & Maag, in which the attachment was issued and levied, the jurisdiction of the circuit court at tached by reason of the citizenship of the parties. But the statute of Indiana, granting and regulating the process of attachment, provides (section 943, Rev. St. 1881,) that after the institution of the suit, and at any time before final judgment, any creditor of the defendant may file and prove his claim, with the right to participate in the distribution of the proceeds of the attached property. In the present case that actually took place, and it is shown, on the face of the bill, that a large number of persons, as to whom it is not stated, that they were citizens of other states, competent to bring an original action in the circuit court, and as to whom it does affirmatively appear, that the judgment upon their claims in their favor are less than the jurisdictional sum of $500, nevertheless, filed their claims, obtained judgments, and will be entitled on distribution to divide with the plaintiff and among themselves the money paid into court by the appellant. So that, unless he is allowed to intervene by his present bill to stay the distribution of the fund, which, by the demurrer, is admitted to be his own, the anomaly will be presented, in judicial proceedings, of an award, dividing property among claimants, from which the only person excluded is the one whose sole and paramount title is confessed; and he will be compelled to stand idly by to witness the dissipation of his property into many unknown hands, by a court, to whose jurisdiction he has submitted himself from the beginning, and which now remits him to an action for damages against its own officer who has simply acted under its order.

This court has uniformly resisted the tendency to confuse the boundaries of law and equity in its procedure, and maintained the distinction between the two systems, so deeply imbedded in our jurisprudence; and in the present instance, is not to be considered as departing from the consistent course of precedents in which that distinction has been maintained. The bill in this case is not to be treated as an original bill in equity, for, as such, it could not be maintained. It is altogether ancillary to the principal action at law in which the attachment issued, and should be regarded as merely a petition in that cause, or dependent upon it and connected with it, as a petition pro interesse suo, or of intervention in an equity or an admiralty suit, asserting a claim to property or a fund in court, the subject of the litigation, which, owing to the peculiar relations between the courts of the states and of the United States, is a necessary resort to prevent a failure of justice, and furnishes in such cases a certain, adequate, and complete remedy against injurious abuses of the process of the court, by supplying a means, in the principal suit, of trying the title to property in the custody of the law.

The character of the bill as related to the principal case is well explained in Minnesota Co. v. St. Paul Co. 2 Wall. 609-633, where it is stated 'that the question is not whether the proceeding is supplemental and ancillary, or is independent and original in the sense of the rules of equity pleading, but whether it is supplemental and ancillary, or is to be considered entirely new and original, in the sense which this court has sanctioned, with reference to the line which divides the jurisdiction of the federal courts from that of the state courts. No one, for instance, would hesitate to say that, according to the English chancery practice, a bill to enjoin a judgment at law is an original bill in the chancery sense of the word. Yet this court has decided many times that when a bill is filed in the circuit court to enjoin a judgment of that court, it is not to be considered as an original bill, but as a continuation of the proceeding at law; so much so that the court will proceed in the injunction suit without actual service of subpoena on the defendant, and though he be a citizen of another state, if he were a party to the judgment.' And in speaking of the application of the principle to the case then before it, the court, Mr. Justice MILLER, delivering its oinion, continued: 'The case before us is analogous. An unjust advantage has been obtained by one party over another by a perversion and abuse of the orders of the court, and the party injured comes now to the same court to have this abuse corrected, and to carry into effect the real intention and decree of the court, and that while the property, which is the subject of the contest, is still within the control of the court and subject to its order.'

The question was discussed in Van Norden v. Morton, 99 U.S. 378, where the court pointed out the mode of reconciling the distinction between original legal and equitable rights and remedies, as administered in the courts of the United States, and ancillary proceedings to restrain and control their process. Referring to the statutory injunction given by the law of Louisiana to restrain 'the sheriff in the execution of a judgment' when 'he has seized property not belonging to the defendant, and insists on selling the same, disregarding the opposition of him who alleges that he is the real owner,' Mr. Justice MILLER, delivering the opinion of the court, said: 'Now, this obviously refers to the control of the court over its own officer, in the execution of its own writs, and is applicable to other misconduct of that officer in the execution of his official duties, as in cases of seizures of property not liable under an execution in his hands. The remedy needs no formal chancery proceeding, but a petition or motion, with notice to the sheriff, is not only all that is required, but is the most speedy and appropriate mode of obtaining relief. This relief does not depend upon any inadequacy of an action for damages or by sequestration. It is a short, summary proceeding before the court under whose authority the officer is acting, gives speedy relief, and is very analogous to the statutory remedy given in many of the western states in similar cases to try the right of property at the instance of the party whose property is wrongfully seized.' It is in this light, we think, that the court below should have regarded the present bill, not as an original bill invoking the general jurisdiction of the court in equity, but as an ancillary and dependent bill, equivalent in effect and purpose to a petition in the attachment proceeding itself, incident to and dependent upon it.

The form of proceeding, indeed, must be determined by the circumstances of the case. If the original cause, in which the process has issued, or the property or fund is held, is in equity, the intervention will be by petition pro interesse suo, or by a more formal, but dependent bill in equity, if necessary. Relief, either in a suit in equity, or an action at law, may properly be given in some cases, in a summary way, by motion merely, supported by affidavits. In actions at law, where goods have been taken in execution after judgment, or upon attachment before, a proceeding in the nature of an interpleader might be appropriately ordered by the court, such as was given in the English practice to the officer by the statute of 1 & 2 Wm. IV. c. 58; 2 Lush, Pr. by Dixon, 777; and in that the respective rights of the claimants to the property could generally be tried as in an action at law by a jury, upon a formal issue framed for that purpose, or with the consent of the parties by the court; or, if the claim was such as that it could be determined only upon principles of equity, as administered in courts of that general jurisdiction, it would be proper to provide relief upon a bill of that nature, filed for that purpose. If the statutes of the state contained provisions regulating trials of the right of property in such cases, it might be most convenient to make them a part of the practice of the court, as contemplated by sections 914, 915, 916 of the Revised Statutes. In whatever form, however, the remedy is administered, whether according to a procedure in equity, or at law, the rights of the parties will be preserved and protected against judicial error, and the final decree or judgment will be reviewable, by appeal or writ of error, according to the nature of the case.

For the reasons given, we are of opinion that the circuit court should have overruled the demurrer to the bill, and required the parties to try the issue tendered to the appellant. The decree dismissing the bill is accordingly reversed, and the cause remanded with direction to take such further proceeding therein, in conformity with this opinion, as jsutice and equity require. It is accordingly so ordered.


text: Talk:Krippendorf v. Hyde/Opinion of the Court


text:
Page:Mind (New Series) Volume 12.djvu/457

 the other. Hence to consider either by itself is to make an illegitimate abstraction. The recognition that there are ‘organic unities’ and ‘illegitimate abstractions’ in this sense is regarded as one of the chief conquests of modern philosophy. But what is the sense attached to these terms? An abstraction is illegitimate, when and only when we attempt to assert of a part—of something abstracted—that which is true only of the whole to which it belongs: and it may perhaps be useful to point out that this should not be done. But the application actually made of this principle, and what perhaps would be expressly acknowledged as its meaning, is something much the reverse of useful. The principle is used to assert that certain abstractions are in all cases illegitimate; that whenever you try to assert anything whatever of that which is part of an organic whole, what you assert can only be true of the whole. And this principle, so far from being a useful truth, is necessarily false. For if the whole can, nay must, be substituted for the part in all propositions and for all purposes, this can only be because the whole is absolutely identical with the part. When, therefore, we are told that green and the sensation of green are certainly distinct but yet are not separable, or that it is an illegitimate abstraction to consider the one apart from the other, what these provisos are used to assert is, that though the two things are distinct yet you not only can but must treat them as if they were not. Many philosophers, therefore, when they admit a distinction, yet (following the lead of Hegel) boldly assert their right, in a slightly more obscure form of words, also to deny it. The principle of organic unities, like that of combined analysis and synthesis, is mainly used to defend the practice of holding both of two contradictory propositions, wherever this may seem convenient. In this, as in other matters, Hegel’s main service to philosophy has consisted in giving a name to and erecting into a principle, a type of fallacy to which experience had shown philosophers, along with the rest of mankind, to be addicted. No wonder that he has followers and admirers.

I have shown then, so far, that when the Idealist asserts the important principle ‘Esse is percipi’ he must, if it is to be true, mean by this that: Whatever is experienced also must be experienced. And I have also shown that he may identify with, or give as a reason for, this proposition, one which must be false, because it is self-contradictory. But at this point I propose to make a complete break in my argument. ‘Esse is percipi,’ we have seen, asserts of two terms, as distinct from one another as ‘green’ and ‘sweet,’ that


text:
Page:Mind (New Series) Volume 12.djvu/458

 whatever has the one has also the other: it asserts that ‘being’ and ‘being experienced’ are necessarily connected: that whatever is is also experienced. And this, I admit, cannot be directly refuted. But I believe it to be false; and I have asserted that anybody who saw that ‘esse and percipi’ were as distinct as ‘green’ and ‘sweet’ would be no more ready to believe that whatever is is also experienced, than to believe that whatever is green is also sweet. I have asserted that no one would believe that ‘esse is percipi’ if they saw how different esse is from percipi: but this I shall not try to prove. I have asserted that all who do believe that ‘esse is percipi’ identify with it or take as a reason for it a self-contradictory proposition: but this I shall not try to prove. I shall only try to show that certain propositions which I assert to be believed, are false. That they are believed, and that without this belief ‘esse is percipi’ would not be believed either, I must leave without a proof.

I pass, then, from the uninteresting question ‘Is esse percipi?’ to the still more uninteresting and apparently irrelevant question ‘What is a sensation or idea?’

We all know that the sensation of blue differs from that of green. But it is plain that if both are sensations they also have some point in common. What is it that they have in common? And how is this common element related to the points in which they differ?

I will call the common element ‘consciousness’ without yet attempting to say what the thing I so call is. We have then in every sensation two distinct terms, (1) ‘consciousness,’ in respect of which all sensations are alike; and (2) something else, in respect of which one sensation differs from another. It will be convenient if I may be allowed to call this second term the ‘object’ of a sensation: this also without yet attempting to say what I mean by the word.

We have then in every sensation two distinct elements, one which I call consciousness, and another which I call the object of consciousness. This must be so if the sensation of blue and the sensation of green, though different in one respect, are alike in another: blue is one object of sensation and green is another, and consciousness, which both sensations have in common, is different from either.

But, further, sometimes the sensation of blue exists in my mind and sometimes it does not; and knowing, as we now do, that the sensation of blue includes two different elements, namely consciousness and blue, the question arises whether, when the sensation of blue exists, it is the consciousness which exists, or the blue which exists, or both. And one


text:
American File v. Garrett Sayles

The American File Company is a manufacturing corporation created by a special act of the legislature of Rhode Island, passed in May, 1863, and carrying on its business in the town of Lincoln, in that state. The company purchased a patent under which the manufacture of files had before been carried on in the city of Baltimore, and the persons, among them one Allan A.

The firm of Kirkland, Chase & Co., on May 2, 1872, borrowed of the firm of Bobert Garrett & Sons, bankers of the same city, $50,000, and pledged as security therefor certain promissory notes, which were afterwards, on May 28th, withdrawn, and a cargo of sugar, stored in a warehouse in Baltimore, was pledged in lieu thereof, and the warehouse receipt deposited with Garrett & & Sons. Besides the $50,000, Kirkland, Chase & Co. at this time owed Garrett & Sons more than $500,000, and it was the agreement between them that all securities pledged were to be held, not only for the specific loan for which they were pledged, but for the general balance due from the pledgeors to the pledgees.

On September 12, 1872, Kirkland, Chase & Co. failed, and the firm and each of its members were subsequently adjudicated bankrupts, and their property, copartnership and individual, was assigned for the benefit of their creditors.

On the day of the failure Chapman informed Garrett & Sons that on May 30th, Kirkland, Chase & Co. had withdrawn and sold the cargo of sugar pledged as security for the loan of $50,000, and that bonds of the American File Company, to the amount of $81,500, had been substituted therefor, and handed to his son previous to September 12th to be delivered to them. On September 12th the bonds were delivered into the manual possession of Garrett & Sons in lieu of the cargo of sugar so withdrawn and sold. The assignees in bankruptcy of Kirkland, Chase & Co. disputed the title of Garrett & Sons to these bonds and some other securities on the ground that their transfer was a fraudulent preference. The assignees and Garrett & Sons settled all their controversies growing out of the bankruptcy of Kirkland, Chase & Co. by an agreement in writing, dated May 4, 1874, whereby the assignees relinquished all claim upon the 'collaterals' of every nature, or the proceeds thereof, held by Garrett & Sons on the debts due them by the bankrupts, and agreed to pay Garrett & Sons $5,000, and the latter relinquished all claim to dividends declared and to be declared on the estate of Kirkland, Chase & Co. by the assignees or their successors. The settlement also contained this stipulation: 'And said Robert Garrett & Sons likewise further agree that whereas said assignees have been offered the sum of fifty cents in the dollar for certain bonds of the American File Company, (now held by Messrs. Robert Garrett & Sons, which were received as collaterals from Messrs. Kirkland, Chase & Co.,) and an indemnification against loss or damage of any kind as holders of certain stock of said American File Company, as assignees of A. A. Chapman and Kirkland, Chase & Co., said Robert Garret & Sons hereby agree to indemnify the said assignees against loss or damage of any kind as holders of the stock aforesaid; and in consideration of said acts of said assignees, said Robert Garrett & Sons do also hereby agree to indemnify the said assignees and said estate of Kirkland, Chase & Co. and the estate of A. A. Chapman against loss or damage of any kind for releasing their claim to the said bonds of the American File Company now held by Messrs. Robert Garrett & Sons, and agree to hold said assignees and said estate harmless for said transfer and release.'

Garrett & Sons, on June 23, 1876, recovered a judgment in the supreme court of the state of Rhode Island against the file company on the bonds transferred to them by Chapman, or the firm of Kirkland, Chase & Co., for the sum of $132,611.33, the principal and interest due on the same. At that time, by the statute law of Rhode Island, the creditors who recovered a judgment against a corporation whose stockholders were individually liable for its debts could take out execution thereon and seize the persons and property of the stockholders in satisfaction thereof, in the same manner as on executions issued against them for their individual debts.

Before either of the cases brought up by these appeals was commenced, the affairs of Kirkland, Chase & Co. had been nearly settled, and the bankrupts rupts discharged. After the recovery of the judgment by Garrett & Sons, William F. Sayles and other Rhode Island stockholders, about November 9, 1876, filed a bill in equity against them in the supreme court of Rhode Island to enjoin them from levying execution upon the persons or property of the complainants. The bill alleged that when the bonds of the file company were issued in 1870 there was an agreement between the stockholders that the bonds were to be taken by them in proportion to the stock which they held respectively, and that they were to be a final payment of the debts of the company, relieving the stockholders from liability, and requiring the holders to look for payment of their bonds to the property which was mortgaged to secure them, or to the property of the company, and not to the individual liability of the stockholders; that Garrett & Sons had notice of this agree ment when they acquired the bonds, and had no better right to enforee the individual liability of the stockholders than Chapman or Kirkland, Chase & Co., from whom they derived title; and that they, Garrett & Sons, had agreed to indemnify the assignees in bankruptcy of Chapman and Kirkland, Chase & Co., and thereby had discharged the complainants from any liability, if any such existed, by reason of said bonds, and that in equity and of right their said guaranty inured to the benefit of the complainants, and the court should enforce it in that suit, and thereby avoid the circuity of action which would ensue if the complainants should call on the assignees for contribution, and they on Garrett & Sons for indemnity.

After this cause was put at issue by the answer of Garrett & Sons, and by the replication of complainants, it was removed to the circuit court of the United States for the district of Rhode Island. In the year 1877 an act was passed by the legislature of Rhode Island taking away the right of the judgment creditors of a corporation, whose stockholders were individually liable, to issue execution against them, and substituting a bill in equity or an action of debt to enforce the liability of the stockholder. In pursuance of this statute Garrett & Sons, on April 6, 1878, filed their bill in the United States circuit court, for the district of Rhode Island, against the American File Company, and all the stockholders thereof who were citizens of the state of Rhode Island, to enforce their individual liability to pay the judgment recovered against the American File Company. The stockholders, against whom this liability was sought to be enforced, filed their joint answer to the bill, in which they set up by way of defense the same matters, in substance, as they had alleged in their bill against Garrett & Sons.

These two cases, which involved substantially the same questions and controversies, were heard at the same time and upon the same evidence. In the case of Garrett & Sons v. The American File Company and otheres, the circuit court decreed that the defendants were jointly and severally liable for the payment of the judgment recovered Garrett & Sons against the American File Company, and that the complainants have and recover of said stockholders holders the sum of $165,440.65, that being the amount due on the judgment. In the case of William F. Sayles and others v. Garrett & Sons, the circuit court dismissed the bill. Appeals were taken from both decrees; by the complainants in the case of sayles and others v. Garrett & Sons, and in the case of Garrett & Sons v. The American File Company, by William F. Sayles and other stockholders against whom the decree was rendered. Both cases were argued together in this court.

Abraham Payne, for appellants.

John K. Cowen and E. J. D. Cross, for appellees.

WOODS, J.

title: American File v. Garrett Sayles


text: Talk:American File v. Garrett Sayles

title: Talk:American File v. Garrett Sayles


text:
Page:Mind (New Series) Volume 12.djvu/459

 point at least is plain: namely that these three alternatives are all different from one another. So that, if any one tells us that to say ‘Blue exists’ is the same thing as to say that ‘Both blue and consciousness exist,’ he makes a mistake and a self-contradictory mistake.

But another point is also plain, namely, that when the sensation exists, the consciousness, at least, certainly does exist; for when I say that the sensations of blue and of green both exist, I certainly mean that what is common to both and in virtue of which both are called sensations, exists in each case. The only alternative left, then, is that either both exist or the consciousness exists alone. If, therefore, any one tells us that the existence of blue is the same thing as the existence of the sensation of blue he makes a mistake and a self-contradictory mistake, for he asserts either that blue is the same thing as blue together with consciousness, or that it is the same thing as consciousness alone.

Accordingly to identify either ‘blue’ or any other of what I have called ‘objects’ of sensation, with the corresponding sensation is in every case, a self-contradictory error. It is to identify a part either with the whole of which it is a part or else with the other part of the same whole. If we are told that the assertion ‘Blue exists’ is meaningless unless we mean by it that ‘The sensation of blue exists,’ we are told what is certainly false and self-contradictory. If we are told that the existence of blue is inconceivable apart from the existence of the sensation, the speaker probably means to convey to us, by this ambiguous expression, what is a self-contradictory error. For we can and must conceive the existence of blue as something quite distinct from the existence of the sensation. We can and must conceive that blue might exist and yet the sensation of blue not exist. For my own part I not only conceive this, but conceive it to be true. Either therefore this terrific assertion of inconceivability means what is false and self-contradictory or else it means only that as a matter of fact blue never can exist unless the sensation of it exists also.

And at this point I need not conceal my opinion that no philosopher has ever yet succeeded in avoiding this self-contradictory error: that the most striking results both of Idealism and of Agnosticism are only obtained by identifying blue with the sensation of blue: that esse is held to be percipi, solely because what is experienced is held to be identical with the experience of it. That Berkeley and Mill committed this error will, perhaps, be granted: that modern Idealists make it will, I hope, appear more probable later. But that my opinion is


text:
American File v. Garrett Sayles/Opinion of the Court

We shall consider the questions raised by these appeals as presented by the record in the case of William F. Sayles and others v. Robert Garrett & Sons.

The first contention of the appellants is that the bonds of the American File Company issued in 1870 were taken by its stockholders in proportion substantially to the stock held by them respectively, on the agreement between themselves that the bonds should extinguish their individual liability, and the bondholders should look to the property mortgaged to secure the bonds and the other property of the company for payment, and that Garrett & Sons were bound by this agreement. If it be conceded, what in our opinion the record fails to show, that the bonds were issued on any such understanding, it would remain for the appellants to prove notice thereof to Garrett & Sons before the title of the latter to the bonds could be affected by it. The bill in this case having charged that when Garrett & Sons took the bonds they had actual notice of all the circumstances under which they were issued to the stockholders, and of all and singular the rights and equities subsisting between the stockholders of the company in relation thereto, and having called for the answer of defendants under oath, the defendants answered under oath, and alleged that they took the bonds in the course of business for value before maturity, and that at the time they acquired title thereto they were ignorant of the fact that Allan A. Chapman was a stockholder in the American File Company, and had no knowledge or notice of the manner or circumstances of the issue of said bonds. The testimony of each one of the defendants was taken by deposition, in which they reiterate the denial of knowledge or notice contained in their answers. The answers and depositions of the defendants on this point stand uncontradicted by any evidence, direct or circumstantial, in the record. The truth of their denial must therefore be taken as an established fact in in the case. If, therefore, Garrett & Sons, having acquired the bonds before maturity, paid value for them, they can hold them unaffected by any equities between Allan A. Chapman and the American File Company or its stockholders. The evidence in the record shows beyond controversy that Garrett & Sons took the bonds as collateral security for a valid debt for which they held no other security, and which the bonds fell far short of securing; that after applying these and other assests to the debts for which they were pledged, there remained due to them from Kirkland, Chase & Co. more than $200,000. They were therefore purchasers for value, and are entitled to all the rights of bona fide holders for value, among which is the right to enforce payment from the stockholders of the American File Company. Swift v. Tyson, 16 Pet. 1; Oates v. ''Nat. Bank, 100 U.S. 239; Railroad Co. v. Nat. Bank'', 102 U.S. 14.

But the appellants insist (and this is their second contention) that, conceding Garrett & Sons to be bona fide holders of the bonds for value without notice of any equities or defenses as against the first holders, they have nevertheless lost their right to enforce the individual liability of the stockholders by reason of the agreement between them and the assignees of Chapman, whereby they assumed the liability of stockholders, and made themselves liable through the assignees to contribute to the other stockholders the money which they might collect from them on the bonds of the company. It is clear that Garrett & Sons did not by this contract agree to become stockholders of the corporation or to indemnify Chapman against his individual liability as a stockholder. The agreement will bear no such interpretation. The contract was made for the benefit of the assignees, by which they took an indemnity for themselves and the bankrupt estate. If, therefore, the assignees themselves are not liable as stockholders, Garrett & Sons by this contract of indemnity assumed no liability, and they hold the bonds in question unfettered by any equities or conditions. It is well settled that under the circumstances of the case neither the assignees nor the assets in their hands are subject to the individual liability which attaches to stocks held by the bankrupt. The evidence does not show that the assignees acted in any way as stockholders; that they ever attended any meetings of the corporation; or that their names appeared upon its books; or that they treated the stock standing in Chapman's name as an asset of his estate. They merely had in their possession the certificates of stock, and yielded to Garrett & Sons any claim to the bonds of the American File Compnay belonging to Chapman or his firm, and took an indemnity against any supposed liability which might attach to them as holders of the stock belong to the estate of Chapman. In Gray v. Coffin, 9 Cush. 192, the supreme court of Massachusetts, having under consideration a law of that state almost identical with the Rhode Island statutes, held that the individual liability of 'stockholders did not attach when their assignee had attended and voted at meetings of the corporation and done other acts of unequivocal equivocal ownership.' The same result would follow under the bankrupt law. It has long been a recognized principle of the bankrupt laws that the assignees were not bound to accept property of an onerous or unprofitable character. South Staffordshire R. Co. v. Burnside, 5 Exch. 129; Furdoonjee's Case, 3 Ch. Div. 268; Ex parte Davis, Id. 463; Streeter v. Sumner, 31 N. H. 542; Amory v. Lawrence, 3 Cliff. 523; Rugely v. Robinson, 19 Ala. 404. As the assignees of Chapman never accepted the stock, and never consented to become stockholders in the American File Company, it follows that neither they nor the assets of Chapman in their hands are subject to the individual liability of stockholders for the debt of the corporation. The contract of indemnity did not, therefore, subject Garrett & Sons to any such liability. It follows that they took the bonds unaffected by any agreement in respect thereto between Chapman and his co-stockholders.

The result of these views is that the decree in both cases must be affirmed; and it is so ordered.


text:
Page:Mind (New Series) Volume 12.djvu/460

 plausible, I will now offer two pieces of evidence. The first is that language offers us no means of referring to such objects as ‘blue’ and ‘green’ and ‘sweet,’ except by calling them sensations: it is an obvious violation of language to call them ‘things’ or ‘objects’ or ‘terms’. And similarly we have no natural means of referring to such objects as ‘causality’ or ‘likeness’ or ‘identity,’ except by calling them ‘ideas’ or ‘notions’ or ‘conceptions’. But it is hardly likely that if philosophers had clearly distinguished in the past between a sensation or idea and what I have called its object, there should have been no separate name for the latter. They have always used the same name for these two different ‘things’ (if I may call them so); and hence there is some probability that they have supposed these ‘things’ not to be two and different, but one and the same. And, secondly, there is a very good reason why they should have supposed so, in the fact that when we refer to introspection and try to discover what the sensation of blue is, it is very easy to suppose that we have before us only a single term. The term ‘blue’ is easy enough to distinguish, but the other element which I have called ‘consciousness’—that which sensation of blue has in common with sensation of green—is extremely difficult to fix. That many people fail to distinguish it at all is sufficiently shown by the fact that there are materialists. And, in general, that which makes the sensation of blue a mental fact seems to escape us; it seems, if I may use a metaphor, to be transparent—we look through it and see nothing but the blue; we may be convinced that there is something, but what it is no philosopher, I think, has yet clearly recognised.

But this was a digression. The point I had established so far was that in every sensation or idea we must distinguish two elements, (1) the ‘object,’ or that in which one differs from another; and (2) ‘consciousness,’ or that which all have in common—that which makes them sensations or mental facts. This being so, it followed that when a sensation or idea exists, we have to choose between the alternatives that either object alone or consciousness alone or both exist; and I showed that of these alternatives one, namely that the object only exists, is excluded by the fact that what we mean to assert is certainly the existence of a mental fact. There remains the question: Do both exist? Or does the consciousness alone? And to this question one answer has hitherto been given universally: That both exist.

This answer follows from the analysis hitherto accepted of the relation of what I have called ‘object’ to ‘


text: Talk:American File v. Garrett Sayles/Opinion of the Court


text:
Page:Mind (New Series) Volume 12.djvu/461

 ’ in any sensation or idea. It is held that what I call the object is merely the ‘content’ of a sensation or idea. It is held that in each case we can distinguish two elements and two only, (1) the fact that there is feeling or experience; and (2) what is felt or experienced; the sensation or idea, it is said, forms a whole, in which we must distinguish two ‘inseparable aspects,’ ‘content’ and ‘existence’. I shall try to show that this analysis is false; and for that purpose I must ask what may seem an extraordinary question: namely what is meant by saying that one thing is ‘content’ of another? It is not usual to ask this question; the term is used as if everybody must understand it. But since I am going to maintain that ‘blue’ is not the content of the sensation of blue; and, what is more important, that, even if it were, this analysis would leave out the most important element in the sensation of blue, it is necessary that I should try to explain precisely what it is that I shall deny.

What then is meant by saying that one thing is the ‘content’ of another? First of all I wish to point out that ‘blue’ is rightly and properly said to be part of the content of a blue flower. If, therefore, we also assert that it is part of the content of the sensation of blue, we assert that it has to the other parts (if any) of this whole the same relation which it has to the other parts of a blue flower—and we assert only this: we cannot mean to assert that it has to the sensation of blue any relation which it does not have to the blue flower. And we have seen that the sensation of blue contains at least one other element beside blue—namely, what I call ‘consciousness,’ which makes it a sensation. So far then as we assert that blue is the content of the sensation, we assert that it has to this ‘consciousness’ the same relation which it has to the other parts of a blue flower: we do assert this, and we assert no more than this. Into the question what exactly the relation is between blue and a blue flower in virtue of which we call the former part of its ‘content’ I do not propose to enter. It is sufficient for my purpose to point out that it is the general relation most commonly meant when we talk of a thing and its qualities; and that this relation is such that to say the thing exists implies that the qualities also exist. The content of the thing is what we assert to exist, when we assert that the thing exists.

When, therefore, blue is said to be part of the content of the ‘sensation of blue,’ the latter is treated as if it were a whole constituted in exactly the same way as any other ‘thing’. The ‘sensation of blue,’ on this view, differs from a blue bead


text:
Whiteside v. Haselton

''Wm. H. De Witt'', for appellant.

George Norris, for appellees.

MILLER, J.

title: Whiteside v. Haselton


text:
Page:Mind (New Series) Volume 12.djvu/462

 or a blue beard, in exactly the same way in which the two latter differ from one another: the blue bead differs from the blue beard, in that while the former contains glass, the latter contains hair; and the ‘sensation of blue’ differs from both in that, instead of glass or hair, it contains consciousness. The relation of the blue to the consciousness is conceived to be exactly the same as that of the blue to the glass or hair: it is in all three cases the quality of a thing.

But I said just now that the sensation of blue was analysed into ‘content’ and ‘existence,’ and that blue was said to be the content of the idea of blue. There is an ambiguity in this and a possible error, which I must note in passing. The term ‘content’ may be used in two senses. If we use ‘content’ as equivalent to what Mr. Bradley calls the ‘what’—if we mean by it the whole of what is said to exist, when the thing is said to exist, then blue is certainly not the content of the sensation of blue: part of the content of the sensation is, in this sense of the term, that other element which I have called consciousness. The analysis of this sensation into the ‘content’ ‘blue,’ on the one hand, and mere existence on the other, is therefore certainly false; in it we have again the self-contradictory identification of ‘Blue exists’ with ‘The sensation of blue exists’. But there is another sense in which ‘blue’ might properly be said to be the content of the sensation—namely, the sense in which ‘content,’ like είδος, is opposed to ‘substance’ or ‘matter’. For the element ‘consciousness,’ being common to all sensations, may be and certainly is regarded as in some sense their ‘substance,’ and by the ‘content’ of each is only meant that in respect of which one differs from another. In this sense then ‘blue’ might be said to be the content of the sensation; but, in that case, the analysis into ‘content’ and ‘existence’ is, at least, misleading, since under ‘existence’ must be included ‘what exists’ in the sensation other than blue.

We have it, then, as a universally received opinion that blue is related to the sensation or idea of blue, as its content, and that this view, if it is to be true, must mean that blue is part of what is said to exist when we say that the sensation exists. To say that the sensation exists is to say both that blue exists and that ‘consciousness,’ whether we call it the substance of which blue is the content or call it another part of the content, exists too. Any sensation or idea is a ‘thing,’ and what I have called its object is the quality of this thing. Such a ‘thing’ is what we think of when we think of a mental image. A mental image is conceived as if it were related to that of which it is the image (if there be any such thing) in


text: Talk:Whiteside v. Haselton

title: Talk:Whiteside v. Haselton