text:
Read v. City of Plattsmouth/Opinion of the Court

We cannot accept the conclusion, urged upon us by the counsel for the plaintiff in error, that the city of Plattsmouth had authority to issue the bonds in question, under the power conferred upon it as a municipal body, 'to borrow money for any purpose within its discretion,' without reference to the limit as to the amount imposed by the act of 1867, expressly authorizing it to build school-houses. Whatever implications of power as to school buildings might have been admissible, if the law conferring municipal powers had stood alone, must give place to the express declarations, with the accompanying qualifications, contained in the statute, that dealt by name with the very subject. And we must, therefore, assume, at the beginning, that while the city of Plattsmouth was authorized to erect a high-school building, it could not lawfully borrow money or issue its bonds for that purpose in excess of $15,000. We are, therefore, required to consider whether the issue of bonds involved in this litigation can be supported by the subsequent legislation which sought to cure the defects of their origin. No objection is made to either of the statutes relied on, on the ground that the constitution of Nebraska of 1867 forbade retroactive legislation. The twelfth section of article 1 of that instrument declares that 'no bill of attainder, ex post facto law, or any law impairing the obligation of contracts, shall ever be passed.' This prohibition would not include legislation of the class now in question. They are attacked, however, on other grounds.

The first act,-that of February 18, 1873,-it is claimed, is made void by article 8 of section 1 of the constitution of Nebraska, which declares that 'the legislature shall pass no special act conferring corporate powers.' It is contended that the act in question, by legalizing bonds of the city, void because it had no power to issue them, is legally equivalent to an act conferring upon the city power to issue bonds, which is conferring corporate power, and, being a special act, is therefore unconstitutional. But this conclusion we cannot adopt.

The act in question, so far as it relates to the bonds in suit, does not confer any corporate power upon the city in the sense of the constitution of the state. The statute operates upon the transaction itself which had already previously been consummated, and seeks to give it a character and effect different in its legal aspect from that which it had when it was in fieri. Whether such an effect may be given by a legitimate exercise of legislative power, depends upon those considerations which draw the line beyond which retroactive laws cannot pass, and is not affected by the supposed form of the enactment as a special or general act conferring corporate power. For it operates upon the rights of the parties, as determined by the equity of their circumstances and relations, and gives to them the sanction derived from subsequent confirmation, by clothing them with forms which are essential to their enforcement, but not to their existence. Within the usual limitations prescribed by our written constitutions, such as have been quoted from that of Nebraska, this may be done, provided it can be done without the destruction of rights recognized by the law as vested.

In the present case, the statute in question does not impose upon the city of Plattsmouth, by an arbitrary act, a burden without consent and consideration. On the contrary, upon the supposition that the bonds issued, as to the excess over $15,000, were void, because unauthorized, the city of Plattsmouth received the money of the plaintiff in error, and applied it to the purpose intended, of building a school-house on property, the title to which is confirmed to it by the very statute now claimed to be unconstitutional, and an obligation to restore the value thus received, kept, and used, immediately arose. This obligation, according to general principles of law accepted in Nebraska, was capable of judicial enforcement. Clark v. Saline Co. 9 Neb. 516; [S.C.. 4 N. W. Rep. 496;] Louisiana v. Wood, 102 U.S. 294; New Orleans v. Clark, 95 U.S. 644; Hitchcock v. Galveston, 96 U.S. 341; Chapman v. County Com'rs Douglas Co. ante, 62, and City of Parkersburgh v. Brown, 1 SUP CT. REP. 442.

As was said by Mr. Justice FIELD, in New Orleans v. Clark, 95 U.S. 644-654:

'A law requiring a municipal corporation to pay a demand which is without legal obligation, but which is equitable and     just in itself, being founded upon a valuable consideration      received by the corporation, is not a retroactive law, no      more so than an appropriation act providing for the payment      of a pre-existing claim. The constitutional inhibition does     not apply to legislation recognizing or affirming the binding      obligation of the state, or of any of its subordinate      agencies, with respect to past transactions.'

As the city of Plattsmouth was bound, by force of the transaction, to repay to the purchaser of its void bonds the consideration received and used by it, or a legal equivalent, the statute which recognized the existence of that obligation, and, by confirming the bonds themselves, provided a medium for enforcing it according to the original intention and promise, cannot be said to be a special act conferring upon the city any new corporate power. No addition is made to its enumerated or implied corporate faculties; no new obligation is, in fact, created. The language of the constitution, forbidding special legislation of that description, evidently refers to grants of authority to be exercised by the body itself and in the future, and a consideration of the evil intended to be remedied by the prohibition will confine it to grants of that character, and will not include a statute like that now under discussion. Here the power of the legislative department of the state is directly exercised upon the transaction itself, and upon a matter clearly within the scope of its authority. It was the constitutional duty of the legislature 'to pass suitable laws to encourage schools and the means of instruction.' Under the terms of this authority, having created, as it did, the city of Plattsmouth a separate school-district, it might prescribe the number and character of the school-houses to be provided, and impose, if it saw fit, directly, a tax upon the locality to defray the cost of erecting and maintaining them. What the state might properly have done by direct action it may do through the public agency of a municipal body, such as the city of Plattsmouth, which, in the performance of the duty assigned, does not so much exercise a corporate power of its own as discharge a function of the statute. An illustration and example of the distinction is found in the case of Foster v. Com'rs Wood Co. 9 Ohio St. 540, where it was held that a public corporation for the construction and repair of highways was really only a part of the machinery of the state, and its officers, county or township officers discharging duties in connection therewith, and that consequently an act of the general assembly authorizing the body by name to complete the construction of a particular highway, and to make an assessment of the cost upon the property benefited, was not a special act conferring corporate power within the meaning of the constitutional prohibition. So it was held in State v. Squire, 26 Iowa, 340, that while the legislature would not, in view of the constitutional provision of that state, have the power to pass a special law incorporating an independent school-district, it would nevertheless have the power to pass a curative act, legalizing the defective organization of a school-district already in existence under the general law authorizing the creation of independent school-districts.

In view of the decisions of this court and the courts of the several states in this county, affirming the capacity of municipal corporations to accept and administer trusts of property, given or devised for purposes of public charity, it would not be denied that the city of Plattsmouth might lawfully receive and apply a gift of money bestowed in trust to pay the principal and interest of the bonds involved in this litigation, as having been issued for the purpose of obtaining means with which to erect a public-school building. The administration of such a trust would not be contested on the ground that it was enlargement of its corporate powers. But the duty to repay the consideration for them, employed by it in the same uses, already existed; and its enforcement through the legislative act, which prescribed a remedy, is not more open to the same objection. It is not a special act conferring corporate power; it is merely a special act taking away from the corporation the power to interpose an unconscionable defense against a just claim, and to avoid an obligation to pay an equivalent for public benefits, which it has continued to enjoy.

The very proposition involved here was maintained by the supreme court of Nebraska in the case of Com'rs Jefferson Co. v. People, 5 Neb. 127. There it was decided that a special act of the legislature, authorizing the county commissioners of Jefferson county to provide funds for the payment of certain outstanding warrants of said county, by issuing bonds, selling the same, and using the proceeds in payment of warrants issued to contractors for the erection of a court-house and jail, was valid and effectual. The court said: 'That Jefferson county is justly indebted to the relator for the amount of the warrants in question will not be controverted; and, where such is the case, there is no doubt of the power of the legislature to require the county to issue its bonds for the amount of its indebtedness.' In one aspect, this case goes beyond the argument; for it contemplated further action by the corporation it the issue of its bonds.

The second statute-that of February 25, 1875-is not subject to the objection to the former, one just disposed of, for it is a general act 'to amend an act to incorporate cities of the second class and to define their powers, approved March 1, 1871, and to legalize certain taxes therein mentioned;' and the terms of its second section embrace the case of the bonds in controversy in this suit. It expressly declares 'that all bonds heretofore issued by any city of the second class in good faith for the erection of, or to procure the means for erecting, a high-school building within such city, or for heating or furnishing the same, whether issued under a general or special law providing therefor, or any bonds hereafter issued by such city in exchange for any such bonds, shall be legal and valid; and any tax heretofore or hereafter levied to pay the interest or a portion of the principal of any such bonds, not exceeding five mills on the dollar valuation of the taxable property in the city in any one year, shall be legal and valid.' Accordingly objections are made to its validity for want of conformity to other provisions of the constitution of the state, the first of which,-that it conflicts with section 19, art. 2, which declares that 'no bill shall contain more than one subject, which shall be clearly expressed in its title,'-it is claimed, applies to both acts.

In regard to the special act of February 18, 1873, however, it seems to us unnecessary to say more than that the title appears to be a full and apt description of the whole contents of the act. The proceedings of the city council in reference to the construction of a high-school building, which it is the object of the act, as expressed in the title, to legalize, necessarily includes the issue of the bonds authorized by it for that purpose.

In White v. City of Lincoln, 5 Neb. 505-516, it was said that 'the object of this constitutional provision is to prevent surreptitions legislation by incorporating into bills obnoxious provisions which have no connection with the general object of the bill, and of which the title gives no indication. It will be sufficient, however, if the law have but one general object, which is fairly expressed in the title of the bill.' Accordingly it was held in that case, as it was also in City of Tecumseh v. Phillips, 5 Neb. 305, that the third section of the act of February 25, 1875, which ratified expenditures by cities of the second class of moneys illegally collected for licenses for the sale of intoxicating liquors, was void, because there was nothing in the title of the act to indicate the object contemplated by that section. 'It is in nowise amendatory,' said the court in City of Tecumseh v. Phillips, supra, 'of the general incorporation law for cities of the second class, nor does it make any allusion to the legalization of any taxes whatever.' And in the same case, speaking of the entire act, the court said: 'But we fail to discover wherein it is in any particular amendatory of the general act relating to cities of the second class.' The act, therefore, may be considered as if its title were simply that of 'An act to legalize certain taxes therein mentioned.'

The second section, which is the only one material in this controversy, does legalize taxes theretofore or thereafter levied to pay the interest on certain bonds, namely, such as having been theretofore issued by any city of the second class, in good faith, for the erection of, or to procure the means for erecting, a high-school building within such city, or for heating or furnishing the same, whether issued under a general or special law providing therefor, etc., are thereby declared to be legal and valid.

It is impossible to say that legalizing the bonds, and the taxes levied to pay them, are two diverse subject, when to legalize the taxes necessarily makes the bonds valid; for nothing more strongly confirms an invalid bond than to make provision for its payment. We have no hesitation, therefore, in upholding the second section of the act of February 25, 1875, as a valid enactment, so far as the present objection is concerned. As we do not consider it as an act to amend the general law incorporating cities of the second class, rejecting that portion of the title, it is not subject to the further objection that it does not conform to the constitutional requirement that 'no law shall be revived or amended, unless the new act contain the entire act revived and the sections amended.'

The remaining objection is not to its validity, but to its application to the present case. It is argued that the second section of the act relates only to bonds that have been issued 'under a general or special law providing therefor;' and that the bonds now in controversy were not so issued, and cannot, therefore, claim support from this provision. If by this is meant that no bonds are within the purview of this section except such as have been lawfully issued, the conclusion results in an absurdity; for it supposes an act of the legislature passed to cure the invalidity of valid bonds. If, on the other hand, the section is construed to mean that all bonds that have been issued in good faith for the purposes mentioned, and under color of law, whether general or special, but without actual authority, shall be deemed to be legal and valid, the only rational and worthy effect is given to the enactment that can be deduced from its terms. We do not doubt that such was the purpose of the legislature, and that it is the meaning of the law.

In our opinion, the bonds in controversy are valid obligations of the city of Plattsmouth, under either of the two acts, of February 18, 1873, and of February 25, 1875, respectively; and the circuit court erred in its instructions to the jury to the contrary. For that error the judgment is reversed and the cause remanded, with instructions to grant a new trial.


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Page:Dictionary of National Biography volume 60.djvu/140

 , Leicestershire. He remained chief justice for twelve years, and preserved the dignity of the office, although ‘he had not much credit as a common lawyer.’ On 2 April 1783 North and Fox formed a coalition ministry under the premiership of the Duke of Portland; the great seal was put into commission, and Loughborough was appointed first commissioner. The coalition government, it was evident, could not long hold together. Loughborough seemed to favour the party of Fox rather than that of their opponents. It is possible that the friendship of the prince regent for Fox had suggested to Loughborough that in event of the death of George III the coveted lord chancellorship might be at Fox's disposal. But Pitt came into office at the end of 1783, and Lord Thurlow was made chancellor. Thurlow retired in June 1792, and the great seal was for seven months in commission.

At length Pitt gratified Loughborough's ambition. On 28 Jan. 1793 he obtained the great seal, and took his seat as lord chancellor. Having reached the goal of his ambition, he abandoned the party of the Prince of Wales, and definitely joined himself to the adherents of George III, who were known as ‘the king's friends.’ In 1795 he obtained a regrant of his title, and, as he had no children, it was given in remainder to his nephew, Sir James St. Clair Erskine. The designation was changed from Loughborough, Leicestershire, to Loughborough, Surrey. The chancellor was not fated to find the woolsack an easy seat. The wave of insurgency which had begun in France spread rapidly to this country, and the sedition trials were mercilessly prosecuted under the new chancellor. There can be little doubt that the firm attitude of Loughborough helped to stem the swelling tide of revolution, though it served to make him very unpopular. There were constant cabals among contending statesmen, and he knew that his place, so patiently waited for, was far from secure. After the king had a return of mental malady, Loughborough was accused of procuring the king's signature to important documents when he was not in a fit state to understand them. In March 1801 Pitt's ministry was dismissed, Mr. Addington (Lord Sidmouth) was called upon to form a new cabinet, and Loughborough was ousted from his office to make way for John Scott, lord Eldon. On 14 April Loughborough resigned the great seal, but so tenaciously did he cling to office that he continued to attend the meetings of the cabinet when he had no longer any right to do so, until he was politely dismissed by Addington. On 21 April 1801 he was created Earl of Rosslyn, with remainder to his nephew, as in the patent of the barony of Loughborough. As an equity judge Loughborough attained a very modest reputation. But his decrees were well considered, and were couched in clear and forcible language. He showed good sense and good nature in the distribution of ecclesiastical patronage.

After his retirement from the woolsack Loughborough's mental powers declined. He took little part in parliamentary affairs, and spent most of his time in a villa which he purchased near Windsor. It is said that he often contrived to force himself into the company of the king. He died suddenly at his residence on 2 Jan. 1805, and was buried in St. Paul's Cathedral. He was twice married: first, on 31 Dec. 1767, to Betty Anne, daughter of John Dawson of Morley, Yorkshire; and, secondly, in 1782, to Charlotte, daughter of William, first viscount Courtenay. As he died without issue, the earldom fell to his nephew, Sir James St. Clair Erskine, son of his sister Janet, who was the direct ancestor of the present Earl of Rosslyn.

[The chief authority is Campbell's Lives of the Lord Chancellors, as the writer had access to the Rosslyn documents. Many letters by and to Wedderburn will be found in Hist. MSS. Comm. 6th Rep., 10th Rep. pt. vi., 12th Rep. pt. ix., 14th Rep. pts. i. iv. x. See also The Wedderburn Book, 1898; Millar's Compt Buik of David Wedderburne (Scottish Hist. Soc.); Millar's Roll of Eminent Burgesses of Dundee; Franklin's Works, ed. Sparks, iv. 425, 447; Brougham's Statesmen of the Reign of George III; Foss's Judges.]  WEDDERBURN, DAVID (1580–1646), Latin poet, was baptised in Aberdeen on 2 Jan. 1579–80 (Aberdeen Parish Register). He was the eldest son of William Wedderburn, burgess of Aberdeen, and Marjorie Annand, and was educated at Marischal College. In 1602 he was appointed master of the grammar school of Aberdeen, in conjunction with Thomas Reid (d. 1624) [q. v.]; but in the following year he resigned his office, with the intention of becoming a minister. This purpose was abandoned, however, and in 1603 he was reinstated. In 1614 Gilbert Gray, principal of Marischal College, died, and Wedderburn was appointed to teach the class in that college which had been under Gray's charge. On 6 Feb. 1620 Wedderburn was made poet-laureate of Aberdeen, receiving a salary of eighty merks yearly from the town council, for which he undertook to teach a weekly lesson of humanity in the college, and ‘to compose in

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text: Talk:Read v. City of Plattsmouth/Opinion of the Court


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Memphis v. State of Alabama

W. Y. C. Humes, for appellant.

No counsel for appellee.

GRAY, J.

title: Memphis v. State of Alabama


text: Talk:Memphis v. State of Alabama

title: Talk:Memphis v. State of Alabama


text:
Memphis v. State of Alabama/Opinion of the Court

This action was brought by the state of Alabama, for the use of Jackson county, in a court of that state, against a railroad corporation whose road passed through that state and county, to recover the amount of a county tax assessed upon its property. It was removed into the circuit court of the United States for the northern district of Alabama, upon the petition of the corporation, alleging that it was a citizen of the state of Tennessee and the plaintiff was a citizen of Alabama. Upon the motion of the plaintiff, and the introduction in evidence of the acts of the legislatures of Tennessee, Alabama, and Mississippi, relating to the defendant corporation, and of its organization under those acts, the circuit court, following its own decision in Copeland v. Memphis & C. R. Co. 3 Woods, 651, remanded the case to the state court, upon the ground that the defendant was a corporation chartered by the state of Alabama; and from the order remanding the case the defendant appealed.

The question decided by the circuit court, and argued by the appellant, depends upon the provisions of the statutes of Alabama.

The first act of the legislature of Alabama upon the subject, passed on the seventh of January, 1850, is entitled 'An act to incorporate the Memphis & Charleston Railroad Company,' and has this preamble:

'Whereas an act was passed by the state of Tennessee, bearing     date the second day of February, 1846, and the same was      amended by an act of the same state, dated February 4, 1848,      for the formation of a company, under the name and style of      the Memphis & Charleston Railroad Company, for the purpose of      establishing a communication by railroad between Memphis,      Tennessee, and Charleston, South Carolina; and whereas it is      believed that the most eligible route for said road is      through a portion of this state; and whereas it is also      believed that great and lasting benefits will accrue to the      inhabitants of this state from said improvement; therefore *      *  * '

It then proceeds, in the first section, to provide that 'the said company shall have the right of way through the territory of this state to construct their road' between certain points named, 'and said company shall have and enjoy all the rights, powers, and privileges granted to them by the act of incorporation above mentioned, and shall be subject to all the liabilities and restrictions imposed by the same, together with the following requirements.'

The second section provides that 'in the event said road shall be located through Tuscumbia, it shall be the duty of the company to construct a branch to Florence; and in the event said road shall pass on the north side of the Tennessee river near Florence, it shall be the duty of said company to construct a branch to Tuscumbia, provided that the subscription in the town or county applying for such branch shall be fully sufficient to pay the cost of the same.'

The third section provides that 'the said company shall be authorized and required to open books for the subscription of stock in the capital of said corporation in the state of Alabama, so as to afford the citizens thereof an opportunity to take stock to the amount of $1,500,000 of the capital of said company; provided that if said $1,500,000 be not subscribed in Alabama within 90 days after the books are opened, then it may be taken elsewhere.'

The fourth section provides that 'the said company shall, at the first meeting of the stockholders, designate a time when, and a place or places in North Alabama where, for the convenience of the citizens of the state who may be stockholders, the subsequent election for directors shall be held, and shall give notice thereof in one or more newspapers published in North Alabama; and said elections shall be held at the same time both in this state and in Tennessee.'

The fifth section provides that 'the moneys subscribed by the citizens of Alabama, whether by the state, counties, corporations, or individuals, shall first be applied to the construction of the road within the limits of the state of Alabama, and said moneys shall be placed in some safe depository in North Alabama until required for use, provided that nothing in this section shall be so construed as to prevent the company from putting under contract the whole road whenever in their estimation a sufficient amount of funds shall have been obtained.'

The sixth section provides that 'said company shall not charge for the transportation of persons or property any higher rates on one part then on another of said road; but the tolls shall be equal and uniform on every part of said road for articles of the same description, whether passing in one direction or the other.'

So far, it is not made quite clear whether the words 'said company,' as used in the body of the act, refer to the company which the act in its title purports to incorporate, or to the company, mentioned in the preamble, for the formation of which acts had been passed by the state of Tennessee. But that these words do not refer to the Tennessee corporation, and are meant to designate an Alabama corporation, is made plain by the repeated use of the words 'the company hereby incorporated' in the seventh section, which is as follows: 'The company hereby incorporated shall not locate their road on the track of the Tennessee Valley Railroad, nor of any other railroad which has heretofore been chartered by this state, provided companies have been organized under the same, without first procuring the assent by agreement with said companies; but it shall be lawful for the company hereby incorporated to acquire by purchase, gift, release, or otherwise, from any other company, all the rights, privileges, and immunities of said company, and possess and enjoy the same as fully as they were or could be possessed or enjoyed by the company making the transfer.'

The two other sections of the act also seem to regard the corporation as created as well as controlled by the state of Alabama; for the eighth section provides that 'any railroad company now chartered or hereafter to be chartered in this state shall have the right to connect their road with the road authorized by this act;' and the ninth section provides that 'nothing contained in this act shall prevent the state of Alabama from the levying and collecting such taxes on the property of said company within this state as shall by the general assembly of the state be assessed on the property of other railroads in this state; nor shall anything therein be construed so as to prevent the chartering and building other railroads in the state coming within any distance whatever of said road, anything in said law of Tennessee to the contrary notwithstanding.' St. Ala. 1849-50, c. 128.

The whole act, taken together, manifests the understanding and intention of the legislature of Alabama that the corporation, which was thereby granted a right of way to construct through this state a railroad, with which any railroad company chartered or to be chartered in this state should have the right to connect its road; and which was required to construct a branch railroad in this state, to open books for subscriptions of stock to a certain amount in this state, to apply the moneys here subscribed to the construction of the road within this state, and to hold elections in this state; was and should be in law a corporation of the state of Alabama, although having one and the same organization with the corporation of the same name previously established by the legislature of Tennessee. The subsequent acts of the state of Alabama point in the same direction, and each speaks of the company as incorporated or chartered by the legislature of Alabama.

The act of the twelfth of February, 1850, is entitled 'An act to amend an act entitled 'An act to incorporate the Memphis & Charleston Railroad Company,' approved January 7, 1850,' and provides that if 'the subscribers to the capital stock of the Memphis & Charleston Railroad in the state of Alabama, from a failure to obtain the necessary legislation from the states of Tennessee and Mississippi, or from any other cause, deem it expedient to form a separate and independent organization, then and in that event they are hereby vested with full power and authority to do the same; and said company so organized shall be known by the name and style of the Mississippi & Atlantic Railroad Company, and shall have and enjoy all the rights, privileges, and powers heretofore granted or intended to be granted, and be subject to all the limitations, restrictions, and liabilities heretofore imposed or intended to be imposed, in the several acts incorporating the Memphis & Charleston Railroad Company.' St. Ala. 1849-50, c. 129.

The act of the seventh of February, 1856, which, as mentioned in its title and provided in its first section, grants to 'the Memphis and Charleston Railroad Company' a right of way for an extension of its road through the territory of this state, expressly provides in the second section that 'said right of way is granted upon the same terms, restrictions, liabilities, and conditions that the right of way is granted to said company under the charter granted to said company by the general assembly of this state, and approved seventh January, 1850.' St. Ala. 1855-56, c. 302.

The defendant, being a corporation of the state of Alabama, has no existence in this state as a legal entity or person, except under and by force of its incorporation by this state; and, although also incorporated in the state of Tennessee, must, as to all its doings within the state of Alabama, be considered a citizen of Alabama, which cannot sue or be sued by another citizen of Alabama in the courts of the United States. Ohio & M. R. Co. v. Wheeler, 1 Black, 286; Railway Co. v. Whitton, 13 Wall. 270, 283.

This view being conclusive against the claim of the appellant, it is unnecessary to consider whether the action, brought by the state of Alabama for the use of one of its counties can be considered as a suit brought by a citizen of the state of Alabama, within the meaning of the constitution and laws of the United States. Judgment affirmed.


text: Talk:Memphis v. State of Alabama/Opinion of the Court


text:
Ambler v. Choteau

S. S. Henkle and O. D. Barrett, for appellant.

P. Phillips and W. Hallett Phillips, for appellees.

WAITE, C. J.

title: Ambler v. Choteau


text: Talk:Ambler v. Choteau

title: Talk:Ambler v. Choteau


text:
Ambler v. Choteau/Opinion of the Court

This is a suit in equity, and the case made by the bill may be stated as follows:

Ambler, the appellant, and one R. M. Whipple, invented an     improved mode of manufacturing gas from petroleum, for which      they were about to apply for patents, and being desirous of      securing each to the other one undivided half of what they      were doing, on the twenty-fourth of May, 1869, entered into      an agreement of copartnership to effect that object. The     third article of the agreement was as follows:

'Article 3. R. M. Whipple shall have the exclusive and entire     'business management' of the same, so as to include the      introduction of said invention to public use, and to secure,      as far as possible, the adoption of the same, both in this      country and in all other countries; and for which purpose,      and all and singular the purposes incident thereto, the said      R. M. Whipple shall have full and ample power and authority,      and is hereby granted by said Ambler full power and      authority, to act for him in the premises, to sign his name,      and make his seal to any instrument, and all instruments of      writing needful and necessary to carry out the object and      intention of this agreement, as fully and entirely as the      same may be done by the said Ambler if personally present at      the doing thereof; and the said A. I. Ambler hereby ratifies and      confirms all and singular whatsoever may be legally and      lawfully done in and about the premises.'

All patents secured for the invention were to be put into the     business and owned by the parties in equal shares. The     proceeds of sales and all other profits were to be equally      divided.

For the purpose of carrying into effect the provisions of the     partnership agreement, Ambler, on the twenty-fifth of May,      executed to Whipple an assignment of all his interest in the      invention and in the patents that might be issued thereon. The agreement and the assignment were both recorded in the     patent-office. On the thirteenth of July, 1869, a patent was     issued to Whipple & Ambler for 'Whipple & Ambler's Steam      Petroleum Gas-generating Apparatus,' which was embraced in      their inventions. In September, 1869, Whipple fraudulently     determined to exclude Ambler from the benefits of their      undertaking, and to accomplish that purpose formed another      partnership with one Thomas S. Dickerson, to whom, in      October, 1869, a patent was issued for an improved mode of      manufacturing gas from petroleum, which was the invention of      Whipple & Ambler. Afterwards another patent was issued to     Whipple & Dickerson, which came within the scope of the      Whipple & Ambler experiments. In this condition of affairs,     Ambler, on the fourth of January, 1870, began a suit in      equity in the supreme court of the District of Columbia      against Whipple & Dickerson, the object of which was to bring      the Dickerson and the Whipple & Dickerson patents into the      Whipple & Ambler partnership, and to get an account of sales      and profits. The supreme court of the district dismissed the     bill, but on appeal to this court that decree was reversed at      the October term, 1874, and the cause remanded with      instructions to enter another decree, 'declaring Whipple &      Dickerson to hold in trust for the benefit of Ambler to the      extent of one-half of the two patents issued to them,' and      'that an accounting be had as to the profits realized by      them, or either of them, from the use or sale, or otherwise,      arising from said patents.' Ambler v. Whipple, 20 Wall. 559.     A decree was entered in the court of the district on the      second of February, 1875, in accordance with this mandate, and afterwards upon an accounting a balance was found due      from Whipple of $666,052.35. Whipple is insolvent, and the     amount due from him is uncollectible. On or about the     twenty-first of April, 1870, Whipple & Dickerson sold and      conveyed to James G. Blunt and Merritt H. Insley, of the      state of Kansas, the right to use the Dickerson patent in      Missouri for $35,000, and on the twenty-third of December,      1871, the right to use the Whipple & Dickerson patent in the      same state for the same sum. On the eighteenth of December,     1871, Charles P. Choteau, Gerard B. Allen, Charles H. Peck,      Stilson Hutchins, Theodore Laveille, George H. Rea, Albert C.      Ellithorpe, John Kupferle, James G. Blunt, M. H. Insley,      Charles P. Warner, Frank Gregory, and Oliver B. Filley      organized a corporation under the general corporation law of      Missouri by the name of the Missouri Liquid Fuel Illuminating      Company, with an authorized capital of $500,000, divided into      5,000 shares of $100 each. The persons thus organizing the     corporation were, by the articles of association, constituted      directors for the first year. On the twenty-third of     December, 1871, Blunt & Insley, in consideration of $83,000      in cash, or its equivalent, and $417,000 in capital stock,      assigned to this company all their right to the Dickerson and      Whipple & Dickerson patents for the state of Missouri. At the     same time Whipple & Dickerson agreed with the company to make      such conveyance as might be deemed necessary to perfect the      title of the company under the assignment from Blunt &      Insley. When these several transactions took place all the     parties had full notice of all the rights and claims of      Ambler in the premises.

This suit is brought against Choteau, Harrison, Allen, Peck,     Rea, Laveille, Warner, Gregory, and Filley. All the other     corporators and directors, or, so far as appears,      stockholders, of the Missouri corporation are named as      defendants in the bill, but they were never served with      process, and have never appeared. Neither Whipple, Dickerson,     nor the Missouri corporation is even named as defendant. The     persons who are served, and who appear in the cause, hold, or      are interested in, the stock of the corporation to the amount      of $150,000, or thereabouts. The bill abounds in charges of     fraud and conspiracy, in a general way, against all the persons who are named,      whether parties to the suit or not, but so far as the      defendants served with process are concerned, the only      specific allegation to be found is that, being 'incorporators      of the Missouri Liquid Fuel & Illuminating Company,' they      'made said purchase, and paid said large sum of money with      full knowledge of the trust, and of the fraud and breach of      trust aforesaid, [that of Whipple & Dickerson,] and with      lawful and timely notice of your orator's legal rights and      equitable title therein, without any effort whatever on the      part of said directors of said company to protect your      orator's share of the purchase money, as they were bound in      law, in equity, and good conscience to do in this behalf, and      without the knowledge or consent of your orator, and to your      orator's damage and injury.'

At the opening of the bill it is expressly averred 'that the     subject-matter of this complaint, and the foundation and      gravamen of this bill, is the franchise, the trust, the      breach of trust, the collusion, conspiracy, and fraud between      the defendants and said Whipple & Dickerson, as the trustees      of your orator, the rights and remedies of your orator      against these defendants, and the prayer for relief.' It is      then stated 'that this cause is an action on the case in the      nature of a conspiracy, founded upon the fraudulent intention      and specific acts of the defendants to cheat, swindle, and      defraud your orator of his franchise, and the rights in the      patent and trust property aforesaid, and that said plan      consists in an agreement with a common design to do an unlaw      ful act, and which plan, agreement, and conspiracy, being a      common design to do an unlawful act, was fully carried out,      as will hereafter more fully appear, to the great damage and      injury of your orator.'

It is nowhere alleged that these defendants had any actual     connection with the transactions of Whipple & Dickerson      otherwise than as corporators, stockholders, and directors of      the Missouri corporation, though it is stated that they 'gave      to such fraudulent firm [Whipple & Dickerson] credit,      character, and support by dealing with them,' etc., and that      they 'took no steps whatever, legal or otherwise, to recover      said property or the proceeds thereof, or to stay Whipple &      Dickerson in the pursuit and furtherance of the fraud in the waste of the      proceeds of the trust,' etc. The prayer is that the      defendants may be enjoined 'from proceeding further with any      dealings with the said partnership and trust property      aforesaid,' and 'that the damages to your orator for the be      taken thereof before the master, *  *  * and that your orator,      upon the final hearing, be allowed, adjudged, and decreed      damages therefor.'

This is the substance of all there is material in the mass of irrelevant matter that incumbers the record and fills the voluminous argument filed by the appellant in his own behalf. Upon full consideration we have no hesitation in saying that it presents no case for such relief in equity as is asked. If, as is more than once distinctly alleged, the object of the suit is to recover damages for an unlawful and fraudulent conspiracy to cheat Ambler out of his interest in the original invention which is the subject-matter of the controversy, the remedy is clearly at law and not in equity. If an account of profits is wanted, and an injunction against the further use of the patented inventions under the transfers from Whipple & Dickerson, then the suit should have been against the Missouri corporation in its corporate capacity, and not against a part only of its stockholders and directors individually. If the object is to charge these defendants for the profits made by Whipple through his breach of trust, then he is a necessary party, and nothing can be done in his absence. In any event, these defendants are but purchasers from Whipple of specific interests in the property which he held in trust for himself and Ambler. While the allegations of fraud in their general terms are as broad as language can make them, specifically they are confined by other allegations to the use of the patented invention in Missouri by the Missouri corporation, of which the defendants are stockholders and directors. It is not in any manner alleged or claimed that the defendants have profited by what Whipple has done, except through the title acquired by the conveyance to Blunt & Insley, and from them, with the consent of Whipple & Dickerson, the faithless trustees, to the corporation. No effort is made to set aside these conveyances. It is conceded that Blunt & Insley actually paid Whipple & Dickerson $70,000 for the assignments which were made, and it is fairly to be inferred that in the accounting had under the decree of this court in Ambler v. Whipple, Whipple has been charged with the proceeds of this sale. But, whether that be so or not, no case has been made by the loose and general allegations in this bill for relief against these defendants. The words 'fraud' and 'conspiracy' alone, no matter how often repeated in a pleading, cannot make a case for the interference of a court of equity. Until connected with some specific acts for which one person is in law responsible to another, they have no more effect than other words of unpleasant signification. While in this case the offensive words are used often enough, the facts to which they are applied are not such as to make the defendants answerable to the complainant for the damages and other relief he asks.

The decree of the circuit court sustaining the demurrer and dismissing the bill is affirmed.

title: Ambler v. Choteau/Opinion of the Court


text: Talk:Ambler v. Choteau/Opinion of the Court


text:
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 * A Thousand-Mile Walk To The Gulf/Introductory
 * ix
 * I.
 * A Thousand-Mile Walk To The Gulf/Chapter 1
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 * II.
 * A Thousand-Mile Walk To The Gulf/Chapter 2
 * 17
 * III.
 * A Thousand-Mile Walk To The Gulf/Chapter 3
 * 47
 * IV.
 * A Thousand-Mile Walk To The Gulf/Chapter 4
 * 66
 * V.
 * A Thousand-Mile Walk To The Gulf/Chapter 5
 * 83
 * VI.
 * A Thousand-Mile Walk To The Gulf/Chapter 6
 * 123
 * VII.
 * A Thousand-Mile Walk To The Gulf/Chapter 7
 * 143
 * VIII.
 * A Thousand-Mile Walk To The Gulf/Chapter 8
 * 169
 * IX.
 * A Thousand-Mile Walk To The Gulf/Chapter 9
 * 192
 * A Thousand-Mile Walk To The Gulf/Index
 * 213
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 * VIII.
 * A Thousand-Mile Walk To The Gulf/Chapter 8
 * 169
 * IX.
 * A Thousand-Mile Walk To The Gulf/Chapter 9
 * 192
 * A Thousand-Mile Walk To The Gulf/Index
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 * }
 * A Thousand-Mile Walk To The Gulf/Index
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text:
Union Trust Company of New York v. Souther

Appeal from the Circuit Court of the United Court for the Southern District of Illinois

This appeal was taken because of a difference of opinion between the circuit judge and the district judge, holding the circuit court, as to a matter decided, and the facts on which the questions certified depend may be stated as follows:

On the seventh of October, 1871, the Cairo & St. Louis     Railroad Company mortgaged its property, franchises, tolls,      incomes, and profits to the Union Trust Company of New York, to secure an issue of bonds amounting in the aggregate to      $2,500,000. Default was made in the payment of interest     falling due October 1, 1873, and semi-annually thereafter. On     the sixth of December, 1877, the trust company filed its bill      in the circuit court of the United States for the southern      district of Illinois to foreclose the mortgage. In the bill     it is, among other things, averred that the company is      insolvent; 'that many and large claims exist against said      railroad company of the character known as floating debt; and      that unless a receiver is appointed * * * great, irreparable      damage to said bondholders will ensue, and the property will      be liable to be greatly depreciated, and to be involved in      useless litigation; and your orator and its bondholders will      lose the benefit thereof as a security for the payment of      said bonds.' Upon this allegation it was prayed that the      'court will appoint a receiver according to the course and      practice of this court, with the usual powers of receivers in      like cases.'

As soon as the bill was filed a receiver was appointed, and     in making the appointment the court, of its own motion,      entered the following order: 'And said receiver, after paying      the expenses of operating, maintaining, and repairing said      railroad and property, and after making such other payments      herein authorized as are or may be necessary for the conduct      of such receivership, shall pay and discharge all amounts due      and owing by said railroad company for labor, or supplies,      that may have accrued in the operation and maintenance of      such railroad property within six months immediately      preceding the rendition of this decree.'

In 1876 the railroad company paid $3,000 to the beneficiaries     under the mortgage on account of their expenses, to a much      larger amount, in keeping an agency in the United States, and      in connection with the forbearance which they had given the      company in respect to overdue interest. Previous to the     appointment of the receiver none of the current income of the      company, except this single amount, had been paid to the      bondholders.

When the order in respect to debts for labor and supplies was     entered, the court instituted no special inquiries in respect      to the use which had been made of the income prior to that      time.

The receiver thus appointed took possession of the property and operated the road until the end of the year 1881, and     after a sale had been perfected under a decree of      foreclosure. During the receivership the net earnings of the     road, after paying all operating expenses, exceeded $200,000. The whole amount was, however, under the orders of the court,     with the consent of the trust company, from time to time,      expended 'in purchasing additional grounds, rolling-stock,      etc., and in making permanent repairs and improvements upon      said railroad property, instead of discharging therewith the      claims of [against] the railroad company for labor,      materials, and supplies' during the six months immediately      preceding the appointment of the receiver, and when the      property was finally sold over $65,000 of these debts      remained unpaid. Among them was one to E. E. Souther &     Brother amounting to $532.14 for supplies. On the ninth of     May, 1878, after the receiver got into possession of the      road, Souther & Brother filed in the suit for foreclosure an      intervening petition praying for the allowance of their claim      and its payment. On the sixteenth of May the claim was     allowed and the receiver directed to pay it out of the net      earnings, 'and before any improvements or ameliorations are      made upon the property in his hands as receiver.' On the      fifth of June both the trust company and receiver filed      motions to set aside this order. These motions remaining     undisposed of, the road was sold under a decree of      foreclosure in 1881, and brought only $4,000,000, when the      amount due under the mortgage was $4,300,000 and some more. After the report of the sale was made, and a deficiency     appeared, the court, on the eighth of September, 1882, set      aside the order for the payment of the debt to the      intervenors and allowed the trust company to answer. An     answer was filed and proof taken which disclosed the      foregoing facts. Upon the facts so established one of the     questions which arose was whether, under the circumstances,      the court had the right to make an order directing the      payment of the claim. The circuit judge was of the opinion     that it had, and a decree was entered accordingly. From that     decree this appeal was taken.

S.C.orning Judd and W. F. Whitehouse, for appellant.

T. C. Mather, for appellee.

Mr. Chief Justice Waite, after stating the case, delivered the opinion of the court.


text: Talk:Union Trust Company of New York v. Souther


text:
Union Trust Company of New York v. Souther/Opinion of the Court

It seems to us that the question certified is fully disposed     of by the case of Fosdick v. Schall, 99 U.S. 251, where it      was said: 'We have no doubt that when a court of chancery is      asked by railroad mortgagees to appoint a receiver of      railroad property, pending proceedings for foreclosure, the      court, in the exercise of a sound judicial discretion, may,      as a condition of issuing the necessary order, impose such      terms in reference to the payment from the income during the      receivership of outstanding debts for labor, supplies,      equipment, or permanent improvement of the mortgaged property      as may, under the circumstances of the particular case,      appear to be reasonable.' To this we adhere, and, in our      opinion, the right to impose terms does not depend alone on      whether current earnings have been used to pay the mortgage      debt, principal or interest, instead of current expenses. Miltenberger v. ''Logansport, C. & P. Ry. Co.'' decided at the     present term, [1 SUP. CT. REP. 140.] Many other circumstances     may make such an order reasonable, and this case furnishes a      striking example. The first default in the payment of     interest under the mortgage occurred in October, 1873. The     bondholders did not see fit to take possession, as they had      the right to do, when the default had continued for six      months. On the contrary, notwithstanding no payments of     interest were made, they allowed the company to operate the      road and incur obligations therefor until December, 1877. This was evidently in the hope that their condition would be     improved by the delay, for, to effect the forbearance they      established an agency and incurred expenses to an amount much      larger than the $3,000 reimbursed by the company. Prior to     the appointment of the receiver the gross earnings do not      appear to have been enough to pay expenses, but afterwards      they yielded a very considerable surplus. There cannot be a     doubt that it was for the interest of the bondholders that      the road should be kept in operation, and as they did not see      fit to take possession while it could only be operated at a      loss, it was certainly not an abuse of judicial discretion      for the court to order, as a condition of granting their      application for a receiver, that debts incurred by the      company in thus protecting the security should be paid from the income of the receivership, if, in consequence of an increase of revenue, it could be done.

The income of the receivership, instead of being applied in accordance with the order to pay the debts for the supplies and labor, was used with the consent, and, it may fairly be inferred, at the request, of the bondholders, to buy additional grounds, rolling stock, etc., and to make permanent improvements, thus adding to the value of the property, which was afterwards sold. There is nothing whatever to indicate that in thus using the income it was the intention of the court to revoke the original order. It seems to have been found, in the administration of the cause, that by using the income to add to the value of the fixed property the interests of all parties would be promoted, and so the fund, which in equity belonged to the labor and supply creditors, was for the time being diverted from them and put into improvements and additions, the proceeds of which are now in court. It is not to be presumed that this diversion would have been authorized if the value of the property added to and improved was not to be correspondingly increased. Clearly, therefore, on the face of the transaction, the fund in court represents in equity the income which belongs to the labor and supply creditors as well as the mortgage security, and there was no impropriety in appropriating it as far as necessary to pay the creditors specially provided for when the receiver was appointed. Such a practice, under proper circumstances, was approved in Fosdick v. Schall, ubi supra, and seems to us eminently just.

There were other questions certified in the case, but as we answer the one which has been particularly stated in the affirmative, and nothing more is needed to sustain the decree, the others will not be considered further than has already been done incidentally.

The decree of the circuit court is affirmed.


text: Talk:Union Trust Company of New York v. Souther/Opinion of the Court


text:
Union Trust Company of New York v. Walker

S.C.orning Judd and W. F. Whitehouse, for appellant.

''Thos. C. Fletcher'', for appellee.

WAITE, C. J.


text: Talk:Union Trust Company of New York v. Walker


text: Page:A Thousand-Mile Walk To The Gulf.djvu/16


text:
Union Trust Company of New York v. Walker/Opinion of the Court

The facts and questions certified in this case are in all material respects like those in the Union Trust Co. v. Souther, just decided, [ante, 295.] Without, therefore, answering the questions further than by reference to what has been said in that case, we affirm the decree.


text: Talk:Union Trust Company of New York v. Walker/Opinion of the Court


text:
Davis v. State of South Carolina

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

''Ch. Richardson Miles'', Atty. Gen. of South Carolina, for defendant in error.

MATTHEWS, J.

title: Davis v. State of South Carolina


text: Talk:Davis v. State of South Carolina

title: Talk:Davis v. State of South Carolina


text: 1911 Encyclopædia Britannica/Hobbema, Meyndert


text:
Davis v. State of South Carolina/Opinion of the Court

Lemuel Davis was indicted for the murder of one Hall in the court of general sessions for the county of Spartanburg, in South Carolina, in July, 1876; and, being in custody, it was ordered by the court that he be enlarged on giving bail for his appearance at the next term of the court, it being required that the bond should contain a condition that it should be forfeited in case the prisoner should be ordered beyond the limits of the state by the proper authority of the army of the United States. He entered into a recognizance accordingly, the other plaintiffs in error being his sureties. The prisoner thereafter presented to the circuit court of the United States for the district of South Carolina a petition, which is set out in the record, as follows:

'(United States of America, District of South Carolina,     Fourth Circuit.)

'To the Judges of the Circuit Court:

'The petition of Lemuel J. Davis, corporal of Company K,     Eighteenth United States infantry, shows:

'That some time in February, 1876, he was detailed to serve     as one of a guard of United States soldiers to aid Deputy      Marshal James Jarrett in making the arrest of one Brandy      Hall, under a warrant issued by a United States commissioner for violation      of internal-revenue laws as a distiller.

'That said guard of United States soldiers consisted of two     men under the command of First Lieut. W. A. Miller,     Eighteenth United States infantry. That said guard, under     command of said Lieut. Miller, proceeded with Deputy Marshal     James Jarrett to the house of said Brandy Hall, for the      purpose of arresting him. That for the purpose of making the     arrest, the house of said Hall was surrounded. This     petitioner was stationed at the back door of the house for      the purpose of guarding the same, and preventing the escape      of said Hall. That the deputy marshal, Jarrett, went to the     front of the house for the purpose of effecting an entrance      and arresting said Hall. That at the time he did so, and     while your petitioner was guarding the back door, said Hall      made his escape through a hole in the side of the house near      where petitioner was standing, sprang past him, frightening      his horse and accidentally discharging his piece.

'That by the discharge of his said piece the said Hall was     shot and mortally wounded, and subsequently died of said      wound. Your petitioner shows that at the time of said     accident he was in the discharge of his duty, and that said      shooting of said Hall was purely accidental, and your      petitioner is in no way responsible therefor. Your petitioner     shows that he has been arrested and bound over for trial in      the circuit court of the state of South Carolina for      Spartanburg county, for the murder of said Hall.

'That an indictment by the grand jury of that county for the     murder was found at the August term of said court against      your petitioner, and your petitioner was put upon his trial      thereon; that the jury before whom he was tried found your      petitioner guilty of manslaughter; that the court thereupon      set aside said verdict and granted a new trial. Your     petitioner shows that he is illegally and unlawfully held for      trial under the order of said court, and prays your honor to      grant a writ to remove said cause for trial in the circuit      courts of the United States for the district of South      Carolina, now being held at Columbia, in said state.

[Signed] 'LEMUEL J. DAVIS.

'Personally appears before me Corporal Lemuel J. Davis, who,     being duly sworn, deposes and says the above petition is true      of his own knowledge.

'LEMUEL J. DAVIS.

'Sworn and subscribed before me the second day of December,     A. D. 1876.

'J. E. HAGOOD,

'[Seal of Court.]

C. C. C. U.S., Dist. of S.C..

'(United States of America, District of South Carolina,  Fourth circuit.)

'Ex parte LEMUEL J. DAVIS, Eighteenth U.S. Infantry.

'Petition for habeas corpus.

'I certify that I represented the petitioner upon his trial     at Spartanburg; that I have examined the proceedings against      him; and have carefully inquired into all the matters set      forth in the petition of the said Davis, and believe them to      be true.

WM. E. EARLE.'

On the hearing of this petition, December 4, 1876, it was ordered by the court that a writ of habeas corpus cum causa do issue, to be served according to law on the clerk of the circuit court for Spartanburg county, and that the marshal do take said Corporal Lemuel J. Davis into his custody, to be dealt with according to law.

On March 12, 1877, an order was made by the circuit judge for the county of Spartanburg in the court of general sessions, reciting that the said Lemuel J. Davis had failed to answer when called according to his recognizance, and directing process against him and his sureties to appear and show cause why judgment should not be confirmed against them, and their recognizance adjudged to be forfeited. The plaintiffs in error accordingly appeared and answered the rule, alleging the removal of the cause into the circuit court of the United States by the proceedings recited, by reason whereof the said Lemuel Davis was not bound to appear for trial in the court of general sessions for the county of Spartanburg, and that consequently there had been no breach of the condition of the recognizance. Upon this return to the rule to show cause judgment was rendered against the plaintiffs in error, which, on appeal to the supreme court of the state, was affirmed. To reverse that judgment the present writ of error is prosecuted.

The learned attorney general of the state of South Carolina, who appears bere on the part of the state, very properly waives all questions arising in this case which are covered by the decision of this court in Tennessee v. Davis, 100 U.S. 257. He seeks to distinguish the present case, however, from that, upon its circumstances, and claims that Davis was not entitled, by virtue of the capacity in which he was acting, to the benefit of section 643, Rev. St., and to that end maintains the proposition that, as that section applies only to officers appointed under or acting by authority of any revenue law of the United States, or any person acting under the authority of such officers, it cannot be extended to embrace the case of United States marshals, or their deputies or assistants, even when they are engaged in the service of process issued for the arrest of parties accused of violation of the revenue laws of the United States.

In our opinion the distinction cannot be maintained. A marshal or deputy marshal of the United States is, it is true, not an officer appointed under a revenue law; but when engaged officially in lawful attempts to enforce a revenue law, by the arrest of persons accused of offenses against it, he is an officer acting under the authority of that law; for it is that law under which is issued the process, which constitutes his authority for his official action. There is, indeed, the general law, prescribing the nature of his duties, which requires him faithfully to execute all lawful process placed in his hands for that purpose; but when process, issued under a particular law, is lawfully issued to him for service, in executing it he is acting under the authority of that law, without which the process would not be valid. It is that law which he would be compelled to rely on as his justification if he was sued as a trespasser for executing the process issued for its enforcement. And the protection which the law thus furnishes to the marshal and his deputy, also shields all who lawfully assist him in the performance of his official duty. It is not questioned that Davis was acting in that capacity. It is true, he was a non-commissioned officer in the army, detailed as a guard in aid of the marshal, and acting as one of his posse comitatus; but this was before such service became unlawful by the passage of the fifteenth section of the army appropriation act of June 18, 1878, (Supp. Rev. St. 361; 20 St. at Large. 145.)

The prosecution against Davis was removed into the circuit court in strict compliance with the statute. His petition set out the necessary facts showing that the homicide which was charged against him as a crime took place while he was in discharge of his official duty; it was verified, and certified as required by law. The writ of habeas corpus cum causa, which was issued upon it, was the writ prescribed by the act of congress in cases of that description, a duplicate of which it requires shall be delivered to the clerk of the state court; and thereupon the statute declares that it shall be the duty of the state court to stay all further proceedings in the cause, and the prosecution, upon delivery of such process, shall be held to be removed to the circuit court, and any further proceedings, trial, or judgment therein in the state court shall be void.

When, by virtue of the writ of habeas corpus, the prisoner was taken into the custody of the marshal, the jurisdiction of the circuit court of the United States of his person, and of the indictment against him, was completely vested, and that of the state courts ceased altogether. The recognizance was an incident and followed the principal case. The obligation to appear was transferred with the cause, and he was no longer bound to answer in the court of original jurisdiction. It would have been unlawful for his bail to have surrendered him to that tribunal. They were consequently discharged from the obligation of the recognizance, so far as it required them to do so, or to answer for the default. There was, consequently, no breach of the bail-bond in not appearing in the state court, and all proceedings to forfeit it and render judgment upon it against the sureties were coram non judice and void. The right to proceed upon it at all against him or them passed from the state court with the transfer of its jurisdiction over the person of the prisoner and the indictment against him.

The judgment of the supreme court of South Carolina is accordingly reversed, and the cause is remanded, with instructions to enter a judgment reversing the judgment of the circuit court for the county of Spartanburg, and directing that court to dismiss the proceeding upon the recognizance for want of jurisdiction. It is accordingly so ordered.


text: Talk:Davis v. State of South Carolina/Opinion of the Court


text:
Basket v. Hassell (107 U.S. 602)

This is a bill in equity, filed by the appellee, a citizen of Tennessee, to which, besides the appellant, a citizen of Kentucky, the Evansville National Bank of Evansville, Indiana, Samuel Bayard, its president, and Henry Reis, its cashier, and James W. Shackelford and Robert D. Richardson, attorneys for Basket, citizens of Indiana, were made parties defendant. The single question in the case was, whether a certain fund, represented by a certificate of deposit, issued by the bank to Chaney in his life-time, belonged to Basket, who claimed it as a gift from Chaney, having possession of the certificate, or to the appellee, as Chaney's administrator. Basket asserted his title not only by answer, but by a cross-bill. The final decree ordered the certificate of deposit to be surrendered to the complainant, and that the bank pay to the complainant, as its holder, the amount due thereon. The money was then tendered by the bank, in open court, and the certificate was deposited with the clerk. It was thereupon ordered, Basket having prayed an appeal, that until the expiration of the time allowed for filing a bond on appeal, the bank should hold the money as a deposit at 4 per cent. interest, but if a bond be given, that the same be paid to the clerk, and by him loaned to the bank on the same terms. Basket failed to give the bond required for a supersedeas, but afterwards prayed another appeal, which he perfected by giving bond for costs alone. To this appeal Basket and the appellee are the parties respectively, the co-defendants not having appealed, or been cited after severance. And, on the ground that they are necessary parties, the appellee has moved to dismiss the appeal.

It is apparent, however, that the sole controversy is between the present parties to the appeal. By the delivery of the certificate of deposit to the clerk the attorneys of Basket are exonerated from all responsibility, and the payment of the money by the bank to the appellee equally relieves it and its officers; for, not being parties to the appeal, and the execution of the decree not having been superseded, the decree will always furnish them protection, whether affirmed or reversed, because, if reversed, it would only be so as between the parties to the appeal. So that the omitted parties have no legal interest, either in maintaining or reversing the decree, and consequently, are not necessary parties to the appeal. Simpson v. Greely, 20 Wall. 152; Cox v. u. s. 6 Pet. 182; Forgay v. Conrad, 6 How. 203; Germain v. Mason, 12 Wall. 261. The motion to dismiss the appeal is accordingly overruled.

The fund in respect to which the controversy has arisen was represented by a certificate of deposit, of which the following is a copy: 'EVANSVILLE NATIONAL BANK,

'EVANSVILLE, IND., Sept. 8, 1875.

'H. M. Chaney has deposited in this bank twenty-three     thousand five hundred and fourteen 70-100 dollars, payable in      current funds, to the order of himself, on surrender of this      certificate properly indorsed, with interest at the rate of 6      per cent. per annum, if left for six months.

'$23,514.70.

HENRY REIS, Cashier.'

Chaney, being in possession of this certificate at his home in the county of Sumner, state of Tennessee, during his last sickness and in apprehension of death, wrote on the back thereof the following indorsement:

'Pay to Martin Basket, of Henderson, Ky.; no one else; then,     not till my death. My life seems to be uncertain. I may live     through this spell. Then I will attend to it myself.

'H. M. CHANEY.' Chaney then delivered the certificate to Basket, and died, without recovering from that sickness, in January, 1876.

P. Phillips and W. Hallett Phillips, for appellant.

[Argument of Counsel on pages 604-608 intentionally omitted]

Asa Iglehart, for appellee.

MATTHEWS, J.

title: Basket v. Hassell (107 U.S. 602)


text: Talk:Basket v. Hassell (107 U.S. 602)

title: Talk:Basket v. Hassell (107 U.S. 602)


text:
Basket v. Hassell (107 U.S. 602)/Opinion of the Court

It is claimed on behalf of the appellant that this constitutes a valid donatio mortis causa, which entitles him to the fund; and whether it be so, is the sole question for our determination.

The general doctrine of the common law as to gifts of this character is fully recognized by the supreme court of Tennessee as part of the law of that state. Richardson v. Adams, 10 Yerg. 273; Sims v. Walker, 8 Humph. 503; Gass v. Simpson, 4 Cold. 288. In the case last mentioned, that court had occasion to consider the nature of such a disposition of property, and the several elements that enter into its proper definition. Among other things, it said:

'A question seems to have arisen, at an early day, over which     there was much contest, as to the real nature of gifts causa      mortis. Were they gifts inter vivos, to take effect before     the death of the donor, or were they in the nature of a      legacy, taking effect only at the death of the donor. At the     termination of this contest, it seems to have been settled      that a gift causa mortis is ambulatory and incomplete during      the donor's life, and is therefore revocable by him and      subject to his debts, upon a deficiency of assets, not      because the gift is testamentary or in the nature of a      legacy, but because such is the condition annexed to it, and      because it would otherwise be fraudulent as to creditors; for      no man may give his property who is unable to pay his debts;      and all now agree that it has no other property in common      with a legacy. The property must pass at the time and not be     intended to pass at the giver's death; yet, the party making      the gift, does not part with the whole interest, save only in      a certain event; and until the event occurs which is to      divest him, the title remains in the donor. The donee is     vested with an inchoate title, and the intermediate ownership      is in him; but his title is defeasible until the happening of      the event necessary to render it absolute. It differs from a     legacy in this, that it does not require probate, does not      pass to the executor or administrator, but is taken against,      not from him. Upon the happening of the event upon which the     gift is dependent, the title of the donee becomes by relation      complete and absolute from the time of the delivery, and that      without any consent or other act on the part of the executor      or administrator; consequently, the gift is inter vivos.'

In another part of the opinion (page 297) it is said:

'All the authorities agree that delivery is essential to the     validity of the gift, and that, it is said, is a wise      principle of our laws, because delivery strengthens the      evidence of the gift, and is, certainly, a very powerful fact      for the prevention of frauds and perjury.'

In the first of these extracts there is an inaccuracy of expression, which seems to have introduced some confusion, if not an apparent contradiction, when, after having stated that 'the property must pass at the time and not be intended to pass at the giver's death,' it is added that, 'until the event occurs which is to divest him, the title remains in the donor.' But a view of the entire passage leaves no room to doubt its meaning: that a donatio mortis causa must be completely executed, precisely as required in the case of gifts inter vivos, subject to be divested by the happening of any of the conditions subsequent; that is, upon actual revocation by the donor, or by the donor's surviving the apprehended peril, or outliving the donee, or by the occurrence of a deficiency of assets necessary to pay the debts of the deceased donor. These conditions are the only qualifications that distinguish gifts mortis causa and Inter vivos. On the other hand, if the gift does not take effect as an executed and complete transfer to the donee of possession and title, either legal or equitable, during the life of the donor, it is a testamentary disposition, good only if made and proved as a will.

This statement of the law, we think, to be correctly deduced from the judgments of the highest courts in England and in this country; although, as might well have been expected, since the early introduction of the doctrine into the common law from the Roman civil law, it has developed, by new and successive applications, not without fluctuating and inconsistent decisions.

'As to the character of the thing given,' says Chief Justice SHAW, in Chase v. Redding, 13 Gray, 418-420, 'the law has undergone some changes. Originally it was limited, with some exactness, to chattels, to some object of value deliverable by the hand; then extended to securities transferable solely by delivery, as bank-notes, lottery tickets, notes payable to bearer or to order, and indorsed in blank; subsequently it has been extended to bonds and other choses in action in writing or represented by a certificate, when the entire equitable interest is assigned; and in the very latest cases on the subject of this commonwealth, it has been held that a note not negotiable, or if negotiable, not actually indorsed, but delivered, passes, with a right to use the name of the administrator of the promisee, to collect it for the donee's own use;' citing Sessions v. Moseley, 4 Cush. 87; Bates v. Kempton, 7 Gray, 382; Parish v. Stone, 14 Pick. 203.

In the case last mentioned,-Parish v. Stone,-the same distinguished judge speaking of the cases which had extended the doctrine of gifts mortis causa to include choses in action, delivered so as to operate only as a transfer by equitable assignment or a declaration of trust, says further, that 'these cases all go on the assumption that a bond, note, or other security is a valid subsisting obligation for the payment of a sum of money, and the gift is, in effect, a gift of the money by a gift and delivery of the instrument that shows its existence and affords the means of reducing it to possession.' He had, in a previous part of the same opinion, stated that 'the necessity of an actual delivery has been uniformly insisted upon in the application of the rules of the English law to this species of gift.' Page 204.

In Camp's Appeal, 36 Conn. 88, the supreme court of errors of Connecticut held that a delivery to a donee of a savings-bank book containing entries of deposits to the credit of the donor, with the intention to give to the donee the deposits represented by the book, is a good delivery to constitute a complete gift of such deposits, on the general ground that a delivery of a chose in action that would be sufficient to vest an equitable title in a purchaser is a sufficient delivery to constitute a valid gift of such chose in action, without a transfer of the legal title. That was the case of a gift inter vivos. But the court say, referring to the case of Brown v. Brown, 18 Conn. 410, as having virtually determined the point: 'It is true that was a donation causa mortis, but the principle involved is the same in both cases, as there is no difference in respect to the requisites of a delivery between the two classes of gifts.' And so Justice WILDE, delivering the opinion of the court in Grover v. Grover, 24 Pick. 261-264, expressly declared that 'a gift of a chose in action, provided no claims of creditors interfere to affect its validity, ought to stand on the same footing as a sale;' that the title passed, and the gift became perfected by delivery and acceptance; that there was, therefore, 'no good reason why property thus acquired should not be protected as fully and effectually as property acquired by purchase;' and showed, by a reference to the cases, that there was no difference in this respect between gifts inter vivos and mortis causa.

In respect to the opinion in this case, it is to be observed that it cites with approval the case of Wright v. Wright, 1 Cow. 598, in which it was decided that the promissory note, of which the donor himself was maker, might be the subject of a valid gift mortis causa, though the concurrence was not upon that point. That case, however, has never been followed. It was expressly disapproved and disregarded by the supreme court of errors of Connecticut in Raymond v. Sellick, 10 Conn. 480, Judge WAITE delivering the opinion of the court; had been expressly questioned and disapproved in Parish v. Stone, 14 Pick. 198-206, by Chief Justice SHAW, and was distinctly overruled by the court of appeals of New York in Harris v. Clark, 3 N. Y. 93. In that case it was said:

'Gifts, however, are valid without consideration or actual     value paid in return. But there must be delivery of     possession. The contract must have been executed. The thing     given must be put into the hands of the donee, or placed      within his powar by delivery of the means of obtaining it. The gift of the maker's own note is the delivery of a promise     only, and not of the thing promised, and the gift therefore      fails. Without delivery the transaction is not valid as an     executed gift; and without consideration, it is not valid as      a contract to be executed. The decision in Wright v. Wright     was founded on a supposed distinction between a gift inter      vivos and a donatic mortis causa. But there appears to be no     such distinction. A delivery of possession is indispensable     in either case.'

The case from which this extract is taken was very thoroughly argued by Mr. John C. Spencer for the plaintiff, and Mr. Charles O'Connor for the defendant, and the judgment of the court states and reviews the doctrine on the subject with much learning and ability. It was held that a written order upon a third person, for the payment of money, made by the donor, was not the subject of a valid gift, either inter vivos or mortis causa; and the rule applicable in such cases, as conceded by Mr. O'Connor, was stated by him, as follows:

'Delivery to the donee of such an instrument as will enable     him, by force of the instrument itself, to reduce the fund      into possession, will suffice, is the plaintiff's doctrine. This might safely be conceded. It might even be conceded that     a delivery out of the donor's control of an instrument,      without which he could not recover the fund from his debtor      or agent, would also suffice.'

The same view, in substance, was taken in deciding Hewitt v. Kaye, L. R. 6 Eq. 198, which was the case of a check on a banker, given by the drawer mortis causa, who died before it was possible to present it, and which was held not to be valid. LORD ROMILLY, M. R., said:

'When a man on his death-bed gives to another an instrument,     such as a bond, or a promissory note, or an I O U, he gives a      chose in action, and the delivery of the instrument confers      upon the donee all the rights to the chose in action arising      out of the instrument. That is the principle upon which Amis     v. Witt, 33 Beav. 619, was decided, where the doner gave the     donee a document by which the bankers acknowledged that they      held so much money belonging to the donor at his disposal,      and it was held that the delivery of that document conferred      upon the donee the right to receive the money. But a cheque     is nothing more than an order to obtain a certain sum of      money, and it makes no difference whether the money is at a      banker's or anywhere else. It is an order to deliver the     money, and if the order is not acted upon in the life-time of      the person who gives it, it is worth nothing.'

Accordingly, the vice-chancellor (In re Beak's Estate, L. R. 13 Eq. 489) refused to sustain as a valid gift a check upon a banker, even although its delivery was accompanied by that of the donor's passbook.

The same rule, as to an unpaid and unaccepted check, was followed in ''Second Nat. Bank of Detroit v. Williams'', 13 Mich. 282. The principle is that a check upon a bank account is not of itself an equitable assignment of the fund, (Bank of Republic v. Millard, 10 Wall. 152,) but if the banker accepts the check, or otherwise subjects himself to liability as a trustee, prior to the death of the donor, the gift is complete and valid. Bromley v. Brunton, L. R. 6 Eq. 275.

Contrary decisions have been made in respect to donations mortis causa of savings-bank books, some courts holding that the book itself is a document of title, the delivery of which, with that intent, is an equitable assignment of the fund. Pierce v. Boston Savings Bank, 129 Mass. 425; Hill v. Stevenson, 63 Me. 364; Tillinghast v. Wheaton, 8 R. I. 536. The contrary was held in Ashbrook v. Ryan, 2 Bush, 228, and in McGonnell v. Murray, 3 Ir. Eq. 460.

That a delivery of a certificate of deposit, such as that described in the record in this case, might constitute a valid donatio mortis causa, does not admit of doubt. It was so decided in Amis v. Witt, 33 Beav. 619; in Moore v. Moore, L. R. 18 Eq. 474; Hewitt v. Kaye, L. R. 6 Eq. 198; Westerlo v. DeWitt, 36 N. Y. 340. A certificate of deposit is a subsisting chose in action and represents the fund it describes, as in cases of notes, bonds, and other securities, so that a delivery of it, as a gift, constitutes an equitable assignment of the money for which it calls.

The point, which is made clear by this review of the decisions on the subject, as to the nature and effect of a delivery of a chose in action, is, as we think, that the instrument or document must be the evidence of a subsisting obligation and be delivered to the donee, so as to vest him with an equitable title to the fund it represents, and to divest the donor of all present control and dominion over it, absolutely and irrevocably, in case of a gift inter vivos, but upon the recognized conditions subsequent, in case of a gift mortis causa; and that a delivery which does not confer upon the donee the present right to reduce the fund into possession by enforcing the obligation, according to its terms, will not suffice. A delivery, in terms, which confers upon the donee power to control the fund only after the death of the donor, when by the instrument itself it is presently payable, is testamentary in character, and not good as a gift. Further illustrations and applications of the principle may be found in the following cases: Powell v. Hellicar, 26 Beav. 261; Reddell v. Dobree, 10 Sim. 244; Farquharson v. Cave, 2 Colly. 356; Hatch v. Atkinson, 56 Me. 324; Bunn v. Markham, 7 Taunt. 224; Coleman v. Parker, 114 Mass. 30; Wing v. Merchant, 57 Me. 383; McWillie v. Van Vacter, 35 Miss. 428; Egerton v. Egerton, 17 N. J. Eq. 420; Michener v. Dale, 23 Pa. St. 59.

The application of these principles to the circumstances of the present case require the conclusion that the appellant acquired no title to the fund in controversy, by the indorsement and delivery of the certificate of deposit. The certificate was payable on demand; and it is unquestionable that a delivery of it to the donee, with an indorsement in blank, or a special indorsement to the donee, or without indorsement, would have transferred the whole title and interest of the donor in the fund represented by it, and might have been valid as a donatio mortis causa. That transaction would have enabled the donee to reduce the fund into actual possession, by enforcing payment according to the terms of the certificate. The donee might have forborne to do so, but that would not have affected his right. It cannot be said that obtaining payment in the life-time of the donor would have been an unauthorized use of the instrument, inconsistent with the nature of the gift; for the gift is of the money, and of the certificate of deposit, merely as a means of obtaining it. And if the donee had drawn the money, upon the surrender of the certificate, and the gift had been subsequently revoked, either by act of the donor or by operation of law, the donee would be only under the same obligation to return the money, that would have existed to return the certificate, if he had continued to hold it uncollected.

But the actual transaction was entirely different. The indorsement, which accompanied the delivery, qualified it, and limited and restrained the authority of the donee in the collection of the money, so as to forbid its payment until the donor's death. The property in the fund did not presently pass, but remained in the donor, and the donee was excluded from its possession and control during the life of the donor. That qualification of the right, which would have belonged to him if he had become the present owner of the fund, establishes that there was no delivery of possession, according to the terms of the instrument, and that as the gift was to take effect only upon the death of the donor, it was not a present executed gift mortis causa, but a testamentary disposition, void for want of compliance with the statute of wills. The right conferred upon the donee was that expressed in the indorsement; and that, instead of being a transfer of the donor's title and interest in the fund, as established by the terms of the certificate of deposit, was merely an order upon the bank to pay to the donee the money called for by the certificate, upon the death of the donor. It was, in substance, not an assignment of the fund on deposit, but a check upon the bank against a deposit, which, as is shown by all the authorities and upon the nature of the case, cannot be valid as a donatio mortis causa, even where it is payable in proesenti unless paid or accepted while the donor is alive; how much less so when, as in the present case, it is made payable only upon his death.

The case is not distinguishable from Mitchell v. Smith, 4 De G., J. & S. 422, where the indorsement upon promissory notes claimed as a gift was, 'I bequeath-pay the within contents to Simon Smith, or his order, at my death.' Lord Justice TURNER said: 'In order to render the indorsement and delivery of a promissory note effectual they must be such as to enable the indorsee himself to indorse and negotiate the note. That the respondent, Simon Smith, could not have done here during the testator's life.' It was accordingly held that the disposition of the notes was testamentary and invalid.

It cannot be said that the condition in the indorsement which forbade payment until the donor's death was merely the condition attached by the law to every such gift; because the condition which inheres in the gift mortis causa is a subsequent condition, that the subject of the gift shall be returned if the gift fails by revocation. In the mean time the gift is executed the title has vested, the dominion and control of the donor has passed to the donee. While here the condition annexed by the donor to his gift is a condition precedent which must happen before it becomes a gift, and, as the contingency contemplated is the donor's death, the gift cannot be executed in his life-time, and, consequently, can never take effect.

This view of the law was the one taken by the circuit court as the basis of its decree, in which we accordingly find no error. It is, accordingly, affirmed.

Mr. Justice MILLER did not sit in this cause, and took no part in its decision.


text: Talk:Basket v. Hassell (107 U.S. 602)/Opinion of the Court


text:
Cochran v. Schell (107 U.S. 617)

George Bliss, for Cochran.

''Sol. Gen. Phillips'', for Schell, late collector.

BLATCHFORD, J.

title: Cochran v. Schell (107 U.S. 617)


text: Talk:Cochran v. Schell (107 U.S. 617)

title: Talk:Cochran v. Schell (107 U.S. 617)