text:
Taylor v. Bowker/Opinion of the Court

By chapter 46 of the Revised Statutes of Maine of 1857, reenacted in the Revised Statutes of 1871, it is, among other things, provided that 'when the charter of a corporation expires, or is terminated, a creditor or stockholder may apply to the supreme judicial court, which may appoint one or more trustees to take charge of its estate and effects, with power to collect its debts, and to prosecute and defend suits at law. The court has jurisdiction in equity of all proceedings therein, and may make such orders and decrees, and issue such injunctions, as are necessary.' Section 19. Also, that 'the debts of the corporation are to be paid in full by such trustees, when the funds are sufficient; when not, ratably to those creditors who prove their debts as the law provides or as the court directs. Any balance remaining is to be distributed among the stockholders or their legal representatives, in proportion to their interests.' Section 20. Further, that 'when such a corporation has unlawfully made a division of any of its property, or has property which cannot be attached, or is not by law attachable, any judgment creditor may file a bill in equity in the supreme judicial court, setting forth the facts, and the names of such persons as are alleged to have possession of any such property or choses in action, either before or after division. Service is to be made on the persons so named, as in other suits in equity. They are, in answer thereto, to disclose on oath all facts within their knowledge relating to such property in their hands, or received by a division among stockholders. When any one of them has the custody of the records of the corporation, he is to produce them and make extracts therefrom, and annex to his answer, as the court directs.' Section 34. Still further, that 'the court is to determine, with or without a jury, whether the allegations in the bill are sustained, and it may decree that any such property shall be paid to such creditor in satisfaction of his judgment, and cause such decree to be enforced as in other chancery cases. Any question arising may, at the election of either party, be submitted to the decision of a jury under the direction of the court.' Section 35. These statutory provisions being in force, Bowker, the appellee, on the seventh day of June, 1866, brought his action against the Piscataqua Fire & Marine Insurance Company, in the supreme judicial court of Maine, for the county of York, to recover the sum due him on a policy issued by that company, in the sum of $5,000, upon his interest in a certain vessel. It was duly entered at the September term, 1866, of that court. Before judgment was obtained the legislature of Maine, by an act approved February 28, 1867, accepted the surrender of the charter of the company, declaring therein that 'its affairs shall be wound up in the manner provided in sections nineteen and twenty of chapter forty-six of the Revised Statutes, and the organization of the company shall continue for the purposes provided for in said sections: provided, that so much of said acts, or the act incorporating said company, or the act amending the same, as confer any special remedies against officers or stockholders of said corporation, shall not be affected hereby; nor shall this act relieve them from any personal liabilities under any of said acts, or under any of the statutes of this state, or prevent any creditor from pursuing any remedies conferred by chapter one hundred and thirteen of the Revised Statutes.' Section 1. Also, that 'actions pending against said company when trustees are appointed as provided in said sections, may be discontinued without payment of costs; or continued, tried, and judgment rendered, as in other cases. Actions may be also maintained upon claims disallowed in whole or in part by the trustees. All judgments shall be satisfied in the same manner as other claims against the company are satisfied by the trustees.' Section 2.

In the action instituted by Bowker, judgment in his behalf was entered April 4, 1868, and execution thereon was issued April 8, 1868. It was returned July 8, 1868, with an indorsement by the officer that after diligent search he had been unable to find any property of the corporation wherewith to satisfy it. Before that judgment was rendered, the supreme judicial circuit court for York county, in accordance with the provisions of the Revised Statutes, appointed trustees to take charge of the estate and affairs of the company, with power to collect its debts, and to prosecute and defend suits at law. The present suit was instituted April 11, 1874, by Bowker,-he being a citizen of Massachusetts,-in the circuit court of the United States for the district of Maine, to enforce the rights given to him, as a judgment creditor, by the statutes of Maine. The defendants were William Hill, the testator of appellants, and the trustees, to whom had been committed the custody of the property of the insurance company. Hill was the treasurer, and a stockholder of the company. The bill proceeds upon the ground that the company, prior to the surrender of its charter, had, in violation of the statute, made a division of portions of its property. The bill avers that it had, and that its corporators still have, property which cannot be attached; that Hill, at the commencement of the suit, had possession of part of the property so unlawfully divided, which could not be attached. The prayer of the bill is that the complainant's judgment be satisfied from the property so divided, transferred, and delivered to Hill, or from its proceeds. The trustees answered that there were no assets in their hands with which to satisfy the judgment. Hill demurred upon the ground that the bill made no case entitling complainant to the discovery or relief asked. The demurrer was overruled, and Hill answered. One of the defenses is that the complainant's cause of action was barred by the statutes of limitations of Maine. Upon final hearing a decree was entered against Hill for the amount of his judgment against the company.

The only point seriously insisted upon in argument, or which is necessary to be considered, is that this suit was barred by limitation. The Revised Statutes of Maine, in force when it was brought, provided that 'all actions of assumpsit or upon the case, founded on any contract or liability, express or implied,' should be commenced 'within six years next after the cause of action accrues, and not afterwards.' Rev. St. Me. 1857, c. 81, § 92. The judgment against the company was entered more than six years before the commencement of this suit. It is insisted that appellee's cause of action accrued upon the entry of the judgment; while it is contended, in behalf of appellee, that even if the foregoing limitation has any application in a suit in equity, brought in the circuit court of the United States by a citizen of another state, his cause of action did not accrue until the return of execution against the company, which occurred within six years prior to this suit. The counsel for appellee also insist that this suit can be maintained upon the general equitable principles recognized in the cases which hold that the capital stock of a corporation is a trust fund which may be followed by creditors into the hands of those who have notice of the trust; and, consequently, that the right of a circuit court of the United States to give relief, according to the received principles of equity, cannot be controlled by any limitation prescribed by the state in actions of assumpsit or upon the case, founded on contract or liability, express or implied. Without entering upon a discussion of that question, and assuming, for the purposes of this case only, that the circuit court, in analogy to the limitation prescribed by the local statute, could properly have denied the relief asked, where the suit was not brought within six years after the cause of action accrued, we are of opinion that the decree was right and should be affirmed.

The proposition that Bowker's cause of action accrued upon the entry of his judgment against the company rests upon a very technical interpretation of the statute, which, in terms, gives a judgment creditor the right to file his bill in equity against any corporation which has unlawfully made a division of its property, or has property which cannot be attached, or is not, by law, attachable. As this right is given to a judgment creditor, his cause of action, it is claimed, accrues the moment he becomes such; that is, when he obtains a judgment. But such, we think, was not the intention of the legislature. The provisions upon this subject, in the Revised Statutes of 1871, are brought forward from the Revision of 1857. In respect of these matters, there is no difference, even of phraseology, in the two Revisions. In reference to the Revision of 1857, it was expressly decided, in Hughes v. Farrar, 45 Me. 72, that the principal design was to revise, collate, and arrange the public laws, and, in revising, to condense as far as practicable; that a mere change of phraseology should not be deemed a change of law, unless there was an evident intention upon the part of the legislature to make such change. The special remedies given by the Revised Statutes of 1857, and which were not affected or withdrawn by the act of February 28, 1867, were not then for the first time provided. Going back to the laws of 1848, we find that, by an act approved August 10, 1848, it was made unlawful for corporations, other than those for literary and benevolent purposes, banking, and such as, by the common law, were termed quasi corporations, to make any division of their corporate funds or property, so as to reduce their stock below par value, except to close up the concerns of the corporation after all its debts are paid. And by the same act it was provided that in all such cases of unlawful division of corporate property, 'and in all cases where such corporation has corporate property of any kind which is undivided, and which cannot be come at readily to be attached, or which is not attachable, any judgment creditor or creditors of such corporation, or his or their attorney, may make complaint thereof to the supreme judicial court, therein setting forth in substance his or their judgment, and alleging the same to be unsatisfied by reason of inability to find corporate property wherewith to satisfy the same,' etc.

The provisions of the act of 1848 are preserved, although much condensed in words, in the later Revisions of the statutes. Clearly, the special remedy given to a creditor by the act of 1848 was given upon the condition that his judgment was unsatisfied, 'by reason of inability to find corporate property wherewith to satisfy the same.' This condition could only be met, within the settled doctrines of the courts of Maine, by an issue of execution upon the judgment. But, because these words were omitted in subsequent Revisions, it is claimed that the legislature intended that the creditor should have the privilege of filing his bill in the supreme judicial court, even though it was in his power, by execution, to find corporate property wherewith to satisfy his judgment. In this construction of the Revisions of 1857 and 1871 we do not concur. Although they do not, in terms, as did the act of 1848, require the creditor to allege in his bill that his judgment remained unsatisfied by reason of his inability to find corporate property wherewith to satisfy it, we are not satisfied that their purpose was to change the law, or to modify the grounds upon which relief in equity could be obtained in the supreme judicial court. That court, as we infer from its decisions, would not have given relief under the Revisions of 1857 and 1871, unless it appeared that the creditor could not otherwise obtain satisfaction of his judgment; for, as early as in 1848, in Webster v. Clark, 25 Me. 313, it was announced, as a general rule, that 'courts of equity are not tribunals for the collection of debts; and yet they afford their aid to enable creditors to obtain payment, when their legal remedies have proved to be inadequate. It is only by the exhibition of such facts as show that these have been exhausted, that their jurisdiction attaches. Hence it is that when an attempt is made by a process in equity to reach equitable interests, choses in action, or the avails of property fraudulently conveyed, the bill should state that judgment has been obtained, and that execution has been issued, and that it has been returned by an officer without satisfaction.' See, also, Corey v. Greene, 51 Me. 114; Griffin v. Nitcher, 57 Me. 270; Howe v. Whitney, 66 Me. 18. A different construction of the Revisions of 1857 and 1871 can be maintained only upon the theory that the legislature intended to abrogate or modify the established rule of equity announced in repeated decisions of the state court. We are not prepared to say that such was its intention.

But it is suggested that the insurance company, by the surrender of its charter, under the act of February 28, 1867, ceased to exist, and that an execution upon a judgment obtained against it was unauthorized by law, and void; consequently, the appellee had a right to institute his suit in equity immediately upon the rendition of the judgment. This position is not, in our opinion, well taken. That act expressly saved special remedies given by former legislation, and provided that suits, pending at its passage, might be discontinued without payment of costs, or continued, tried, and judgment rendered as in other cases; and that all judgments should be satisfied in the same manner as other claims against the company are satisfied by the trustees. When the act of 1867 gave a creditor in pending suits the privilege of proceeding to judgment, and thereby establishing these demands, it gave him the right, if it did not impose upon him the duty, of putting himself in such a condition that he could, according to the principles of equity, have invoked the aid of the court to remove all obstacles in the way of obtaining satisfaction of his judgment. It is true that the corporate property was in the possession and charge of the trustees when the execution issued, and the effort to levy it became, perhaps, a form; but, as was well said by the circuit judge, it is by no means certain, in view of the strictness with which statutory forms are often required to be followed, that if this form had been neglected the defendant might not have successfully contended that the complainant had neglected to meet the requirements of the statute. Besides, the act of 1867 did not, upon its face, show that the funds of the corporation would be insufficient to meet its debts in full. When the execution issued, the trustees might, for aught that the judgment creditor knew, have caused it to be satisfied, and thereby dispensed with further proceedings upon the complainant's part against those who were supposed to have unlawfully received the property of the corporation. It was proper, therefore, that a creditor, desiring to resort to the special remedies reserved to him, should attempt by execution to secure payment of his judgment against the corporation before resorting to a court of equity.

For these reasons we are of opinion that the complainant's cause of action should not be deemed to have accrued until the return of the execution; consequently his suit was not barred by the limitation of six years.

The decree is affirmed.

title: Taylor v. Bowker/Opinion of the Court


text: Talk:Taylor v. Bowker/Opinion of the Court

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


text:
Moore v. Page

H. T. Helm, for appellants.

E. S. Isham and ''Wm. Burry'', for appellees.

FIELD, J.

title: Moore v. Page


text: Talk:Moore v. Page

title: Talk:Moore v. Page


text:
Moore v. Page/Opinion of the Court

It is no longer a disputed question that a husband may settle a portion of his property upon his wife if he does not thereby impair the claims of existing creditors and the settlement is not intended as a cover to future schemes of fraud. The settlement may be made either by the purchase of property and taking a deed thereof in her name, or by its transfer to trustees for her benefit. And his direct conveyance to her, when the fact that it is intended as such settlement is declared in the instrument or otherwise clearly established, will be sustained in equity against the claims of creditors. The technical reasons of the common law growing out of the unity of husband and wife, which preclude a conveyance between them upon a valuable consideration, will not in such a case prevail in equity and defeat his purpose. Shepard v. Shepard, 7 Johns. Ch. 57; Hunt v. Johnson, 44 N. Y. 27; Story, Eq. § 1380; Pom. Eq. § 1101; Dale v. Lincoln, 62 Ill. 22; Deming v. Williams, 26 Conn. 226; Maraman's Adm'r v. Maraman, 4 Metc. (Ky.) 85; Sims v. Rickets, 35 Ind. 181; Story v. Marshall, 24 Tex. 305; Thompson v. Mills, 39 Ind. 532. Such is the purport of our decision in Jones v. Clifton, 101 U.S. 228. His right to make the settlement arises from the power which every one possesses over his own property, by which he can make any disposition of it that does not interfere with the existing rights of others of others. As he may give it, or a portion of it, to strangers, or for objects of charity, without any one being able to call in question either his power or right, so he may give it to those of his own household, to his wife or children. Indeed, settlements for their benefit are looked upon with favor, and are upheld by the courts. As we said in Jones v. Clifton: 'In all cases where a husband makes a voluntary settlement of any portion of his property for the benefit of others who stand in such a relation to him as to create an obligation, legally or morally, to provide for them, as in the case of a wife, or children, or parents, the only question that can properly be asked is, does such a disposition of the property deprive others of any existing claims to it? If it does not no one can complain if the transfer is made matter of public record and not be designed as a scheme to defraud future creditors. And it cannot make any difference through what channels the property passes to the party to be benefited, or to his or her trustee, whether it be by direct conveyance from the husband, or through the intervention of others.'

While property thus conveyed as a settlement upon the wife may be held as her separate estate, beyond the control of her husband, it is of the utmost importance to prevent others from being misled into giving credit to him upon the property that it should not be mingled up and confounded with that which he retains, or be left under his control and management without evidence or notice by record that it belongs to her. Where it is so mingled, or such notice is not given, his conveyance will be open to suspicion that it was in fact designed as a cover to schemes of fraud. In this case there was much looseness; and the transactions between the husband and the wife touching the property were well calculated to excite suspicion. It is, therefore with must hesitation that we accept the conclusion of the circuit court. We do so only because of its finding that there was no deception or fraud intended by either husband or wife; that the appellants were not led to give him any credit upon the property, but acquired their interest in the judgment which they are seeking to have satisfied long after the transactions complained of occurred; that the title to the Dearborn avenue property was taken by mistake in his name, and that the mistake was rectified before this litigation commenced; that the bonds and notes in bank which the creditors seek to reach represent the money advanced by her from the sale of this Dearborn avenue property for the purpose of meeting an alleged deficit in his account as administrator of the estate of Maxwell, and in equity belong to that estate; that the money applied in satisfaction of the mortgage upon the Lincoln avenue property was part of the proceeds of that sale; and that she was entitled to have the conveyance to her from Mrs. Maxwell treated as security for that money. Such being the case, the creditors have no claim upon the bonds and notes superior in equity to that of the Maxwell estate, nor upon the Lincoln avenue property superior to that of the wife.

Decree affirmed.

title: Moore v. Page/Opinion of the Court


text: Talk:Moore v. Page/Opinion of the Court

title: Talk:Moore v. Page/Opinion of the Court


text:
Garretson v. Clark

''Jas. A. Allen'', for appellant.

W. F. Cogswell, for appellee.

FIELD, J.

title: Garretson v. Clark


text: Talk:Garretson v. Clark

title: Talk:Garretson v. Clark


text:
Garretson v. Clark/Opinion of the Court

In this case the court below sustained the plaintiff's patents, adjudged that the defendants were infringers, and directed a reference to a master, to ascertain and report the profits and gains made by the defendants. The master reported that no proof was presented to him that they had made any profit, or that the plaintiffs had suffered any damages. The court sustained the report, and the decree allowed the plaintiffs only nominal damages. From this decree the appeal is taken. Garretson v. Clark, 15 Blatchf. 70.

The patent was for an improvement in the construction of mop-heads, which may be described, with sufficient accuracy, as an improvement in the method of moving and securing in place the movable jam or clamp of a mop-head. With the exception of this mode of clamping, mop-heads like the plaintiff's had been in use time out of mind. Before the master, the plaintiff proved the cost of his mop-heads, and the price at which they were sold, and claimed the right to recover the difference as his damages. This rule was rejected; and, no other evidence of damages being offered, the master reported as stated. When a patent is for an improvement, and not for an entirely new machine or contrivance, the patentee must show in what particulars his improvement has added to the usefulness of the machine or contrivance. He must separate its results distinctly from those of the other parts, so that the benefits derived from it may be distinctly seen and appreciated. The rule on this head is aptly stated by Mr. Justice BLATCHFORD in the court below: 'The patentee,' he says, 'must in every case give evidence tending to separate or apportion the defendant's profits and the patentee's damages between the patented feature and the unpatented features, and such evidence must be reliable and tangible, and not conjectural or speculative; or he must show, by equally reliable and satisfactory evidence, that the profits and damages are to be calculated on the whole machine, for the reason that the entire value of the whole machine, as a marketable article, is properly and legally attributable to the patented feature.' The plaintiff complied with neither part of this rule. He produced no evidence to apportion the profits or damages between the improvement constituting the patented feature and the other features of the mop. His evidence went only to show the cost of the whole mop, and the price at which it was sold. And, of course, it could not be pretended that the entire value of the mop-head was attributable to the feature patented. So the whole case ended, the rule was not followed, and the decree is therefore affirmed.

title: Garretson v. Clark/Opinion of the Court


text: Talk:Garretson v. Clark/Opinion of the Court


text:
Black v. Thorne

''Chas. N. Black,'' for appellants.

D. B. Eaton, for appellees.

FIELD, J.

title: Black v. Thorne


text: Talk:Black v. Thorne

title: Talk:Black v. Thorne


text:
Black v. Thorne/Opinion of the Court

This is a suit on the equity side of the court for the infringement of two patents issued to the plaintiffs' intestate, one for an alleged 'new and useful improvement for burning tan bark, bagasse, sawdust, and other kinds of fuel, in a wet state, for the purpose of creating heat to generate steam, or to be employed in heating or drying operations;' and the other for 'a new and useful improvement in furnaces, in using as fuel bagasse and other carbonaceous substances, too wet to be conveniently burned in the usual way,' with a prayer that the defendants may be decreed to account for and pay to the plaintiffs the gains and profits derived from making and using furnaces containing the inventions and improvements of the deceased, and be enjoined from further infringement. The defendants contested the validity of the patents, but the court sustained them, and held that the defendants had infringed them by the use of furnaces containing the improvements patented in burning wet tan to generate heat employed in the tanning of hides. It therefore decreed that the plaintiffs recover the profits and gains which the defendants had made from this use of the improvements, and ordered a reference to a master to take testimony on the subject and state an account of them. It also granted the injunction prayed restraining further infringement. The master took testimony on the subject, and reported that the plaintiffs were entitled to recover from the defendants, as profits made by them from the infringement, the cost or value of the wood, which, but for the use of the patented inventions, they would have burned in generating heat for their tanneries, which amounted to over $44,000. Upon exceptions, this report was set aside, the court holding that the rule adopted to ascertain the profits made was erroneous. Black v. Thorne, 12 Blatchf. 20. The case was thereupon again sent to the master, and further testimony was produced, upon which he reported that there was no proof before him showing what profits, if any, had been made by the defendants from the use of the plaintiffs' improvements. This report was confirmed, and a decree entered pursuant to it that no profits were to be recovered of the defendants. From this decree the case is brought here by appeal.

The question presented for our determination relates to the correctness of these reports, the plaintiffs contending for the first one, the defendants for the second. The rule adopted by the master in his first report, to ascertain the profits made by the defendants from the use of the improvements, was clearly wrong. The claims of the patents were confined to the use of the improvements to produce heat by the burning of wet fuel. The object sought was the production of heat. The question, therefore, was what advantage in its production did the use of the improvements in burning wet tan have over other known methods in common use of producing the same result, that is, the same heat. So far as the improvements by burning wet tan gave advantages in producing heat over other methods, there was a profit or gain to the defendants. We can suppose that such advantage might arise from the rapidity with which the heat was produced, or from the distinished cost of its production, or in various other ways. The difference between the cost of generating heat by the use of the improvements and wet tan, and the cost of producing it by the use of wood as a fuel, could not be the measure of profit, unless, with those improvements or with other methods, wood was the only means besides wet tan of producing the same heat, and that was not shown. Other substances may have answered equally well as fuel. On the second hearing before the master it was shown, and he so found and reported, that there were methods and furnaces, other than those of the plaintiffs, and other than those burning dry fuel alone, which would produce the same results in generating heat for the purposes for which the defendants used the heat, and which methods and furnaces they had a right to use, and that the saving to them or profits made by them, by the use of the plaintiff's inventions, over the other furnaces, was not proved. Such being the case, the report could not have been otherwise than as it was. It does not always follow that because a party may have made an improvement in a machine and obtained a patent for it, another using the improvement and infringing upon the patentee's rights will be mulcted in more than nominal damages for the infringement. If other methods in common use produce the same results, with equal facility and cost, the use of the patented invention cannot add to the gains of the infringer, or impair the just rewards of the inventor. The inventor may indeed prohibit the use, or exact a license fee for it, and if such license fee has been generally paid, its amount may be taken as the criterion of damage to him when his rights are infringed. In the absence of such criterion, the damages must necessarily be nominal.

Decree affirmed.

title: Black v. Thorne/Opinion of the Court


text: Talk:Black v. Thorne/Opinion of the Court


text:
Phoenix Bank of the City of New York v. Risley

''Wm. M. Evarts and Flamen B. Candler'', for plaintiff in error.

F. A. Wilcox, W. R. Beebe, and John E. Risley, for defendant in error.

MILLER, J.


text: Talk:Phoenix Bank of the City of New York v. Risley


text:
Phoenix Bank of the City of New York v. Risley/Opinion of the Court

This is a writ of error to the court of appeals of New York. The defendant in error recovered against the plaintiff in error the sum of $10,000 and interest by the verdict of a jury, which found, as matter of fact, that the Bank of Georgetown, South Carolina, having a balance with the Phoenix Bank of New York on the twentieth day of May, 1861, assigned to Risley, the plaintiff in the state court, $10,000 of that sum, of which the Phoenix Bank had due notice by demand made by Risely January 4, 1865. With the questions which arose out of this transaction in the state court we have nothing to do, except as they concern the defense set up by the bank, that the money in its hands due to the Bank of Georgetown had been seized, condemned, and paid over to the marshal of the Southern district of New York, by virtue of certain confiscation proceedings in the district court of the United States for that district. The sufficiency of those proceedings, as a defense to the action, raises a question of a claim asserted under an authority of the United States, and, as the court of appeals sustained the judgment of the inferior court of that state rejecting the defense, the case, as to that question, is cognizable in this court.

The record of the confiscation proceedings in the district court was rejected by the state court when offered in evidence by defendant, and our inquiry must be directed to ascertain whether, if admitted, it would have been a good defense. The judge before whom the jury trial was had refused to receive the record in evidence, because it showed that the * confiscation proceedings, being in rem, were directed against certain specific money, which was the property of the Georgetown Bank, and which the Phoenix Bank held as a special deposit in the nature of a bailment, and not against the debt which the Phoenix Bank owed to the Georgetown Bank arising out of their relations as corresponding banks; that, this debt being assigned to Risley, the plaintiff was unaffected by the confiscation proceedings, because it was not mentioned in them, and no attempt was made to subject that debt to condemnation. That the relation of the Phoenix Bank and the Georgetown Bank was that of debtor and creditor, and nothing more, has been the settled doctrine of this court, as it is believed to be of all others, since the case of the Marine Bank v. Fulton Bank, 2 Wall. 252. In that case it was said that 'all deposits made with bankers may be divided into two classes, namely, those in which the bank is bailee of the depositor, the title to the thing deposited remaining with the latter, and that other kind of deposit of money peculiar to the banking business, in which the depositor, for his own convenience, parts with the title to his money and loans it to the banker; and the latter, in consideration of the loan of the money and the right to use it for his own profit, agrees to refund the same amount, or any part thereof, on demand.' 'It would be a waste of time,' said the court, 'to prove that this latter was a debtor and creditor relation.' This proposition has been reaffirmed in Thompson v. Riggs, 5 Wall. 572; Bank v. Millard, 10 Wall. 155; Oulton v. ''Sav. Inst.'' 17 Wall. 109; Scammon v. Kimball, 92 U.S. 370; and Newcomb v. Wood, 97 U.S. 583.

Mr. Parker, the cashier of the Phoenix Bank, speaking of the time when the marshal served the monition in the confiscation case on him, says that there were no specific funds, separate in kind, in the bank belonging to the Georgetown Bank, and only a general indebtedness in account for money, or drafts remitted, which had been collected. 'It was a debt. No specific money or bills the property of the Georgetown Bank.'

The libel of information in the district court commences by saying that it is 'against the estate, property, money, stocks, credits, and effects, to-wit, against $15,000, (fifteen thousand dollars,) more or less, belonging to the Bank of Georgetown, a corporation doing business at Georgetown, in the state of South Carolina; which said $15,000 is now in cash, and is now on deposit in the Phoenix Bank, a corporation doing business in the city of New York, all of which are owned by, and belonging to, and are the property of, the said Bank of Georgetown.' And it is alleged that, by reason of the use of this property in aid of the rebellion, and the treasonable practices of the Georgetown Bank, the said property, estate, and effects are subject to lawful prize, capture, and seizure, and should be confiscated and condemned. The monition, after reciting the libel against $15,000 belonging to the Georgetown Bank, which said $15,000 is now in cash, and on deposit with the Phoenix Bank, commands the marshal to attach the said $15,000, and to detain the same in his custody until the further order of the court. The return of the marshal is that he attached $13,000, more or less, deposited in the Phoenix Bank, belonging to the Bank of Georgetown, and gave notice to all persons claiming the same that the court would try the case on January 24th thereafter The decree of the court is that he, the judge, doth hereby order, sentence, and decree that $12,117.38 belonging to the Bank of Georgetown, of Georgetown, in the state of South Carolina, and now on deposit in the Phoenix Bank, in the city of New York, which said $12,117.38 has been heretofore seized by the marshal in this proceeding, be and the same is hereby condemned as forfeited to the United States. On this sentence a venditione exponas was issued to the marshal, in which he is ordered to sell this $12,117.38, and to have the moneys arising from the sale at the district court on a day mentioned.

It is not possible to understand that this case proceeded on any other idea than the actual seizure of a specific lot of money, supposed at first to amount to $15,000, but which turned out to be less, and that that lot of money was seized, was formally condemned, and ordered by the court to be sold, and the proceeds of the sale brought into court for distribution under the confiscation law. The specific money is described by apt words, as the property of the Bank of Georgetown, for whose misconduct it is seized, condemned, and forfeited. The very language is used, and no other, that would be if it were 1,200 horses instead of $12,000, of which the Georgetown Bank was owner, though in the possession of the Phoenix Bank. There is not the slightest intimation in the libel, the monition, the return to that monition, or in the final decree, that a debt due by the Phoenix Bank to the Georgetown Bank is attached, and no language appropriate to such a purpose is found in the whole proceeding, from the beginning to the end. On the contrary, the whole case presents the idea of tangible property, actual cash taken by manual seizure, in the hands of the Phoenix Bank, the ownership of which was in the Georgetown Bank; that these dollars, whether of gold, silver, or bank bills, were to be placed in the hands of the marshal and sold, and the sum bid for them brought into court under its order.

In further illustration of this idea, the libel charges that the Bank of Georgetown, the owner of the property libeled, did purchase and acquire said property, and the same was sold and given to it by a person unknown to the attorney, with intent to them to use and employ, and to suffer the same to be used and employed, in aiding, abetting, and promoting the insurrection, and resistance to the laws, and in aiding and abetting the persons engaged therein, and that the Georgetown Bank did knowingly use and consent to such use of the property, contrary to the provisions of 'An act to confiscate property used for insurrectionary purposes,' approved August 6, 1861. It is beyond question that this act was directed to the confiscation of specific property used with the consent of the owner to aid the insurrection, and had no reference to the guilt of the owner, and could only apply to visible, tangible property which had been so used. If the thing seized and condemned in the district court was the actual dollars, they were the property of the Phoenix Bank, and the loss was its loss, and that did not satisfy the debt which at that time it owed to Risley; nor would it have been otherwise if the debt had been then due to the Georgetown Bank, for the debt was not seized, but the dollars of the Phoenix Bank.

Counsel for plaintiff in error insists strenuously, however, that it was the debt which was intended to be seized and condemned, and which constitutes the res in the proceeding. We are not able to see that this view of the matter places the case in any more favorable condition for the bank. While the manner of seizing ordinary personal property or real estate, for the purposes of confiscation proceedings, under the two acts of congress on which this libel professes to be founded, namely, the act of April 6, 1861, and the act of July 17, 1862, is easily understood and followed, namely, an actual seizure and actual possession by the officer under the monition, it has not been so plain what proceeding should be had in the confiscation of debts due to one who has incurred the penalty of such confiscation, and who is not within the jurisdiction of the court. In this class of cases, where the debt is evidenced by a note, bond, or other instrument in writing whose possession carries the right to receive the debt, it may be that the manual seizure of that instrument gives jurisdiction to the court to confiscate it and the debt which it represents. And we are not prepared to say that the debt itself may not be confiscated in the absence of the bond or note which represents it. But in this class of cases, and in the case of an indebtedness on a balance of accounts where no writing or other instrument represents the debt or ascertains its amount, or carries with it by transfer the right to receive it, it is obvious that something more is necessary than the statement of the marshal that he has attached or seized a certain sum of money.

In the case of Miller v. U.S. 11 Wall. 268, which was a case of confiscation of stock in a railroad company, these difficulties are fully considered, and it is there held that the proper mode of seizure of such stock is by notice of the proceeding and attachment to the proper officer of the company, whose stock is the subject of the proceeding. And the same matter is veryfully considered in the subsequent case of Alex- andria seizure was brought up collaterally in another suit, and the whole proceeding held void, because notice of the seizure or attachment of the debt of the city of Alexandria was not made to the officer of the city named by the statute of the state, though it was given to another officer of the city government. The statute authorizing these confiscation proceedings requires that they be conducted according to proceedings in admiralty, as near as may be, and hence libels, monitions, publications, and sentences have been the usual mode of enforcing confiscation. The thirty-seventh admiralty rule, in force long before this statute was enacted, provides how such seizures shall be made. 'In cases of foreign attachment, the garnishee shall be required to answer under oath or solemn affirmation as to the debts, credits, or effects of the defendant in his hands, and to such interrogatories touching the same as may be propunded to him by the libelant; and if he should refuse so to do, the court may award compulsory process against him. If he admits any debts, credits, or effects, the same shall be held in his hands liable to the exigency of the suit.' Here was a plain mode of attaching the debt of the Phoenix Bank due to the Georgetown Bank, pointed out by the very rule to which the act of congress referred as prescribing the mode of practice in such cases. In the first case, above referred to, the court, after referring to the practice in admiralty, said: 'These are, indeed, proceedings to compel appearance, but they are, nevertheless, attachments or seizures bringing the subject seized within the jurisidiction of the court, and, what is of primary importance, they show that, in admiralty practice, rights in action, things intangible, as stocks and credits, are attached by notice to the debtor or holder without the aid of any statute.' In the latter case the court said: 'We are compelled to inquire whether the simple statement of the marshal, that he had given notice to R. Johnson, auditor of the city, was a sufficient seizure, in face of the conceded fact that he had made no actual or manual seizure of anything to give jurisdiction to the court. And in determining what it was of which Johnson had notice, it is, perhaps, fair to infer that the marshal read to him the paper issued by the district attorney.' The court, after saying there is no doubt that the stocks were credits and liable to confiscation within the meaning of the act, added: 'It is clear that there was a mode of reaching them under the act of congress, notwithstanding the evidence of Fairfax's right to them were in his pocket and beyond the reach of the court. If the debt due him had been by an individual, there would have been no difficulty in serving such a process or notice on the debtor as would have subjected him to the order of the court in regard to it.' The record of the district court in the confiscation proceedings gives no evidence of any service of notice on the Phoenix Bank, the debtor in this case; and as it was an ex parte proceeding, in the absence of the party whose property was condemned, the language of the court in Alexandria v. Fairfax is appropriate, that 'where the seizure is a sine qua non to the jurisidiction of the court, and where, as in the present case, actual manucaption is impossible, the evidence which supports a constructive seizure should be scrutinized closely, and be of a character as satisfactory as that which would subject the party holding the fund or owing the debt, which is the object of the proceedings, to an ordinary civil suit in the same court.' 95 U.S. 779.

Assuming that, as argued by counsel, this was a proceeding to reach the debt of the Phoenix Bank to the Georgetown Bank, then it could not be the subject of actual manucaption or seizure, and there should be such evidence of service of the attachment or notice on the Phoenix Bank as would be sufficient in an ordinary civil suit for that debt. Nothing of the kind is shown here. No notice of any kind to the Pnoenix Bank is shown in that record. But in the deposition of the cashier of the Phoenix Bank in the present suit, he is shown the monition in the confiscation case, and says that paper was served on him on the fifth day of January, 1865, at 11:50 in the morning. It admits of grave doubt whether the essential fact on which the jurisdiction of the court in the confiscation case depended, not being found in the record, can be supplied in another suit where it is introduced in evidence, by parol proof of that fact. But if it could be done at all, the monition which was served on the cashier gave no intimation of a proceeding to charge the Phoenix Bank with a debt due from it to the Georgetown Bank, and require it to pay said debt to the marshal or into the court. Nothing in that monition required the bank to answer in regard to such a debt, and the bank made no answer. If it had been called on by that notice to answer, as it certainly would if a debt was claimed of it as being due to the Georgetown Bank, it would have been bound at its peril to have disclosed the assignment of that debt to Risley by the Georgetown Bank, and the demand and notice of Risley to the Phoenix Bank before the commencement of the confiscation proceedings. Indeed, it is quite remarkable that no answer or appearance for the Phoenix Bank is made in that proceeding. If the money, the actual cash in the bank vaults, was attached, the bank must have known that the dollars were its dollars, and it should have defended. If it was the debt which was attached, its legal duty to its creditor, whether that was Risley or the Georgtown Bank, was to have stated the facts to the court. It does not appear to us that any seizure or attachment of the debt due by the Phoenix Bank to the Georgetown Bank was made, by which the district court, if it intended to do so, obtained jurisdiction to confiscate it.

On the whole case, we are of opinion (1) that the specific money in the Phoenix Bank, against which the confiscation proceedings seem to have been directed, and which was condemned, was the money of that bank, and not of the Georgetown Bank, and the loss, if any, is the loss of the Phoenix Bank; (2) that no such seizure or attachment was made of the debt due by the Phoenix Bank to the Georgetown Bank, if any such debt existed, when the proceedings were commenced, as would give the district court jurisdiction of that debt, and no actual condemnation of that debt, or order on the Phoenix Bank to pay it, was made which can constitute a defense to the present action; (3) that the right of Risley to recover the debt, as assignee of the Georgetown Bank, remains unaffected by those proceedings.

The judgment of the court of appeals of New York is therefore affirmed.


text: Talk:Phoenix Bank of the City of New York v. Risley/Opinion of the Court


text:
Chesapeake v. White

''Wm. H. Hogeman and Wm. J. Robertson'', for plaintiff in error.

H. M. Matthews, for defendant in error.

WAITE, C. J.

title: Chesapeake v. White


text: Talk:Chesapeake v. White

title: Talk:Chesapeake v. White


text:
Chesapeake v. White/Opinion of the Court

The motion papers in this case present the following facts: On the seventeenth of September, 1881, A. E. White, as administrator of the estate of John D. White, sued the Chesapeake & Ohio Railroad Company in the circuit court of Greenbrier county, West Virginia. The summons was returnable on the first Monday in October, and on that day a declaration was filed. On the filing of the declaration an order was entered at rules that judgment be entered for the plaintiff for his damages, unless the defendant appear and plead to issue on the first Monday in November. The defendant failing to appear on that day, an order was entered, also at rules, for the assessment of damages at the next term. On the tenth of November, which was during the next term, the defendant did appear and demur generally to the declaration, in which the plaintiff joined. At the next term, on the eighteenth of April, 1882, the defendant again demurred to the declaration and to each count thereof, and then presented a petition, with sufficient bond, for the removal of the suit to the district court of the United States for the district of West Virginia, sitting at Charleston, and exercising circuit court powers. This petition the state circuit court refused to receive, on the ground that it was not filed before or at the term at which the easue could be first tried. The defendant then pleaded not guilty and a special plea, and again presented his petition and bond for the removal of the suit, which was also refused and on the same ground. On the first of May the defendant filed in the district court of the United States a copy of the record, and, on its motion, the suit was docketed in that court. On the twenty-ninth of June the plaintiff moved the state circuit court to proceed with the trial of the action, but this was refused on the ground that the case had been docketed in the district court of the United States. On the fourteenth of October the plaintiff applied to the supreme court of appeals of the state for a mandamus requiring the circuit court to proceed with the trial of the cause, and a rule was awarded, directed to the judge of the circuit court, returnable on the tenth day of the next regular term, calling on him to show cause why a peremptory writ should not issue. On the sixth of November a judgement of nonsuit was entered in the district court, the plaintiff having failed to appear and prosecute the original action there. The rule of the court of appeals was served on the judge of the circuit court on the second of December, 1882, and on the railroad company on the fourth of the same month. On the tenth of January, 1883, the railroad company filed its bill in equity in the district court of the United States against White, as administrator, to enjoin him from proceeding any further with his application for mandamus in the court of appeals, and on the twelfth of the same month a preliminary injunction was granted as prayed for. On the thirtieth of June, 1883, a judgment was entered by the court of appeals awarding a peremptorymandamus, both the judge and the railroad company having answered the rule on the twentieth of January previous. From this judgment a writ of error was taken to this court and a bond accepted, which operated as a supersedeas. That writ was docketed here on the thirtieth of July. At the November term, 1883, of the circuit court of Greenbrier county, White, the plaintiff in the original suit, applied for a trial of his action. To this the railroad company defendant objected. The court declined to proceed to a trial at that term, but entered an order that it would proceed at the next term, which will begin on the twenty-first of April, 1884. The railroad company thereupon filed its petition in this court, praying 'for a writ of prohibition, or such other process as may be deemed appropriate, directed to the circuit court of Greenbrier county, West Virginia, and to the Honorable HOMER A. HOLT, judge of said court, and to the said A. E. White, administrator as aforesaid, and to Alexander F. Matthews, attorney of said White, prohibiting them, and each of them, or such of them, as may be thought proper, from any and all further proceedings in the action aforesaid, until the final disposition of the aforesaid writ of error by the supreme court of the United States, and for such other proceedings and process as the circumstances may require and justify.'

We can find no authority for any such action in this court as is here prayed. Our proceedings in this suit must be confined to such as relate to a review of the judgment of the court of appeals and the enforcement of any order we may make upon the final hearing. If we affirm the judgment, the writ awarded by the court of appeals can issue; if we reverse, it cannot. The supersedeas does not operate on the state circuit court so as to prevent it from proceeding, nor on White to prevent him from applying to that court for a trial; it simply prevents the use of the process of the court of appeals, under the judgment awarding the writ, to compel the circuit court to go on. A supersedeas stays the execution of the judgment which is under review. Anything short of an effort to enforce the judgment will not amount to a contempt of the authority of the reviewing court. If the judgment of the court of appeals should be reversed in this court, and a mandamus refused, White would not be guilty in law of contempt, if, notwithstanding the refusal, he applied again to the circuit court to proceed with the trial. The judgment of this court would not be a prohibition to that court against proceeding, but only a refusal to order it to proceed. Our judgment could be appealed to as authority for refusing a trial, but not as a command that it should be refused.

The circuit court, when, in June, 1882, it declined to order a trial, did not abandon its jurisdiction. It still retained the suit, so far as any action of its own was concerned. If a sufficient for removal was made in the circuit court the rightful jurisdiction of that court is gone, and it cannot properly proceed further, but if it does proceed and does force the defendant, who applied for the removal, to a trial, the remedy is by a writ of error after final judgment, and not by prohibition or punishment for contempt. The proper practice in such cases was fully considered in ''Ins. Co. v. Dunn'', 19 Wall. 214; Removal Cases, 100 U.S. 457; Railroad Co. v. Mississippi, 102 U.S. 135; Railroad Co. v. Koontz, 104 U.S. 14. If the suit in the court of appeals for mandamus is to be deemed part of the original suit in the circuit court, and not an independent proceeding, we have no jurisdiction of the writ of error which has been taken, because the judgment of the court of appeals is not a final judgment in the action. If it is an independent suit, the writ of error gives us no more control over the circuit court, so as to stop its proceeding in the original suit, than it does over the district court to prevent it from punishing White for a violation of the injunction allowed against his application to the court of appeals for a mandamus.

The petition is denied, with costs.


text: Talk:Chesapeake v. White/Opinion of the Court


text:
New England Mutual Life Insurance Company v. Woodworth

Dwight Foster, Alfred D. Foster, and ''Geo. F. Hoar'', for plaintiff in error.

J. S. Lothrop, for defendant in error.

BLATCHFORD, J.


text: Talk:New England Mutual Life Insurance Company v. Woodworth


text:
New England Mutual Life Insurance Company v. Woodworth/Opinion of the Court

The New England Mutual Life Insurance Company, a corporation of the state of Massachusetts, issued a policy of life insurance, on September 21, 1869, by which, for a consideration received from Ann E. Woodworth, of Detroit, in the state of Michigan, described as 'the assured in this policy,' and of an annual premium to be paid, it agreed to pay, at its office in Boston, the amount of $5,000, 'to the assured under this policy as aforesaid, her executors, administrators, or assigns, in sixty days after presentation of satisfactory proof of the death of said Ann E. Woodworth, for the benefit of her husband, S. E. Woodworth, if he shall survive her.' The policy was signed by the president of the company, but was not under seal. The proof referred to was to be furnished at the Boston office.

On the tenth of January, 1877, letters of administration were granted by the county court of the county of Champaign, in the state of Illinois, on the estate of Ann E. Woodworth. The letters ran in the name of the people of the state of Illinois, and recited: 'Whereas, Ann E. Woodworth, of the county of Seneca and state of New York, died intestate, as it is said, on or about the twenty-fifth day of October, A. D. 1875, having, at the time of her decease, personal property in this state, which may be lost, destroyed, or diminished in value if special care be not taken of the same;' and then proceeded: 'To the end, therefore, that the said property may be collected and preserved for those who shall appear to have a legal right or interest therein, we do hereby appoint Stephen E. Woodworth, of the county of Champaign and state of Illinois, administrator of all and singular the goods and chattels, rights and credits, which were of the said Ann E. Woodworth at the time of her decease, with full power and authority to secure and collect the said property and debts, wheresoever the same may be found in this state, and in general to do and perform all other acts which now are or hereafter may be required of him by law.'

On the eleventh of February, 1878, Stephen E. Woodworth, as administrator of the estate of Ann E. Woodworth, deceased, commenced an action at law, in a court of the state of Illinois, against the company, on the policy, to recover the $5,000 named therein. The summons was served on the company in Cook county, Illinois, by reading and by delivering a copy thereof to one Cronkhite, 'attorney for service of legal process' of the company in the state of Illinois, on the twentieth of February, 1878, the president thereof not being found in the county.

The declaration states that the plaintiff is 'Stephen E. Woodworth, who sues as the administrator of the estate of Ann E. Woodworth, deceased, for the benefit and use of S. E. Woodworth.' It avers that said Ann E. Woodworth died October 21, 1875, at Seneca Falls, New York; 'that the said Stephen E. Woodworth, for whose use and benefit this suit is brought, is the said S. E. Woodworth mentioned in the said policy of insurance as the husband of the said Ann E. Woodworth, and the same party for whose benefit the said defendant contracted and agreed, in said policy of insurance, to pay the said sum specified therein; that the said Ann E. Woodworth was, at the time of the making, executing, and delivering the said policy of insurance as aforesaid, the wife of the said Stephen E. Woodworth, and that they were at the said time living together as lawful husband and wife, and that, at the time of the decease of the said Ann E. Woodworth as aforesaid, she left her surviving her said husband, the said Stephen E. Woodworth, who since her death has been a resident of the county of Champaign, state of Illinois;' and that the plaintiff was duly appointed such administrator by said letters. The declaration contained three special counts and money counts in assumpsit.

The defendant petitioned for the removal of the suit into the circuit court of the United States for the Southern district of Illinois. It stated, in the petition, that it was, at the time of the commencement of this suit, and still is, 'a foreign corporation duly incorporated under and by the laws of the state of Massachusetts and doing business in that state,' and had and still has its principal office or place of business at Boston; that the plaintiff was and is a citizen of Illinois; and 'that it was served with process of summons herein' on February 20, 1878, the service being on said Cronkhite, 'its general agent at Chicago, in the said state of Illinois.' The state court allowed the removal.

Issue being joined, the case was tried before a jury, which found for the plaintiff and assessed his damages at $5,348.73, for which amount, with costs, judgment was entered. The defendant has sued out a writ of error. There is a bill of exceptions, the whole of which is as follows: 'At the trial of the above-entitled action, which was assumpsit upon a policy of life insurance, a a copy of which is hereto annexed and made part of this bill of exceptions, it appeared that said Ann E. Woodworth, at the date of the issuing of said policy, resided and was domiciled in the state of Michigan. It appeared that she had never been domiciled in the state of Illinois, and had no other assets to be administered there than this policy; that she died at Seneca Falls, New York, October 25, 1875; that the plaintiff, the administrator, Stephen E. Woodworth, has resided continuously in Champaign county, state of Illinois, since January 1, 1876, and had his domicile there at the time of the issue of letters of administration and the commencement of this suit, and then and there had in his possession this policy of insurance. On this state of facts the defendant, a corporation of the state of Massachusetts, at the time this suit was brought doing business in the state of Illinois by virtue of the laws of said last-named state, requested the presiding judges to rule that the laws of plaintiff, as administrator appointed in Illinois, could not maintain this action. A copy of the letters of administration, which were the only evidence of the plaintiff's authority to sue, is hereto annexed and made part of this bill of exceptions. The presiding judges refused so to rule, and did rule that the plaintiff, if in other respects he showed a good cause of action, was entitled to recover; to which ruling the defendant immediately excepted, and prayed that his exception might be allowed. This bill contains all the evidence on the point herein above made.'

Mr. Alfred D. Foster and Mr. George F. Hoar, for plaintiff in error.

[Argument of Counsel from pages 141-142 intentionally omitted]

Mr. J. S. Lathrop and ''Mr. Geo. W. Gere'' for defendant in error.

Mr. JUSTICE BLATCHFORD delivered the opinion of the court

It is contended for the plaintiff in error that the county court which granted the letters of administration had no power to do so, unless property belonging to Ann E. Woodworth when she died was left by her within the jurisdiction of that court; that she was not domiciled in Illinois at the time of her death, and therefore it was necessary that assets belonging to her should have existed in that state at that time, to warrant jurisdiction to issue the letters, and it could not be obtained by bringing into the state afterwards property which which was hers when she died; that, on the facts in the case, the debt of the company to her was not property of hers in Illinois when she died, even if the policy was in Illinois when she died; and that such a debt was a simple contract debt and was local assets only at Boston, which was the only domicile of the debtor. The letters of administration state that Ann E. Woodworth had, at the time of her decease, personal property in the state of Illinois. The plaintiff's authority to sue was shown prima facie by the letters. The case was one provided for by the statute of Illinois, (Rev. St. 1874, c. 3, § 18, p. 107,) which was as follows: 'Administration shall be granted to the husband upon the goods and chattels of his wife, and to the widow or next of kin to the intestate, or some of them, if they will accept the same and are not disqualified; but in all cases the widow shall have the preference; and if no widow or other relative of the intestate applies within sixty days from the death of the intestate, the county court may grant administration to any creditor who shall apply for the same. If no creditor applies within fifteen days next after the lapse of sixty days, as aforesaid, administration may be granted to any person whom the county court may think will best manage the estate. In all cases where the intestate is a non-resident, or without a widow, next of kin, or creditors in this state, but leaves property within the state, administration shall be granted to the public administrators of the proper county: Provided, that no administration shall in any case be granted until satisfactory proof be made before the county court, to whom application for that purpose is made, that the person in whose estate letters of administration are requested is dead, and died intestate; and provided further, that no non-resident of this state shall be appointed administrator, or allowed to act as such. [Rev. St. 1845, p. 547, § 55.]' It is plain that, under phis statute, the husband had a right to administration on the property of his wife, if she had property in Illinois, as the letters state she had, when she died. Such was necessarily the decision which was made in the granting of these letters, and we have been referred to no decision in Illinois which holds to the contrary. The first branch of the statute covers all cases of intestacy where property is left to be administered; and the second branch, where the public administrator is brought in, does not apply where there is a husband surviving his wife, who applies for letters on her estate. The letters being valid on their face, and in the form prescribed by the statute, (Rev. St. 1874,c. 3, § 21, p. 108,) and apparently authorized by law, their validity must be distinctly negatived by what is set forth in the record, if the plaintiff's authority to sue is not to be supported by them. This is not done. On the contrary, the declaration of the letters that the intestate had personal property in Illinois when she died, is, we think, supported by what appears in the record, even if such property consisted solely of this policy.

In the growth of this country, and the expansions and ramifications of business, and the free commercial intercourse between the states of the Union, it has come to pass that large numbers of life and fire insurance companies, and other corporations, established with the accumulated capital and wealth of the richer parts of the country, seek business and contracts in distant states which open a large and profitable field. The inconveniences and hardships resulting from the necessity on the part of creditors of going to distant places to bring suits on policies and contracts, and from the additional requirement, in case of death, of taking out letters testamentary or of administration at the original domicile of the corporation debtor in order to sue, has led to the enactment in many states of statutes which enable resident creditors to bring suits there against corporations created by the laws of other states. Such a statute existed in Illinois, in the present case, requiring every life insurance company not organized in Illinois to appoint, in writing, a resident attorney, upon whom all lawful process against the company might be served with like effect as if the company existed in Illinois, the writing to stipulate that any lawful process against the company served on the attorney should be of the same legal force and validity as if served on the company, a duly authenticated copy of the writing to be filed in the office of the auditor, and the agency to be continued while any liability should remain outstanding against the company in Illinois, and the power not to be revoked until the same power should be given to another, and a like copy be so filed; the statute also providing that service upon said attorney should be deemed sufficient service on the company. Rev. St. 1874, c. 73, § 50, p. 607. In view of this legislation and the policy embodied in it, when this corporation, not organized under the laws of Illinois, has, by virtue of those laws, a place of business in Illinois, and a general agent there, and a resident attorney there for the service of process, and can be compelled to pay its debts there by judicial process, and has issued a policy payable, on death, to an administrator, the corporation must be regarded as having a domicile there, in the sense of the rule that the debt on the policy is assets at its domicile, so as to uphold the grant of letters of administration there. The corporation will be presumed to have been doing business in Illinois by virtue of its laws at the time the intestate died, in view of the fact that it was so doing business there when this suit was brought, (as the bill of exceptions alleges,) in the absence of any statement in the record that it was not so doing business there when the intestate died. In view of the statement in the letters, if the only personal property the intestate had was the policy, as the bill of exceptions states, it was for the corporation to show affirmatively that it was not doing business in Illinois when she died, in order to overthrow the validity of the letters by thus showing that the policy was not assets in Illinois when she died. The general rule is that simple contract debts, such as a policy of insurance not under seal, are, for the purpose of founding administration, assets where the debtor resides, without regard to the place where the policy is found, as this court has recently affirmed in Wyman v. Halstead, 109 U.S. 654; S.C.. 3 SUP. CT. REP. 417. But the reason why the state which charters a corporation is its domicile in reference to debts which it owes, is because there only can it be sued or found for the service of process. This is now changed in cases like the present; and in the courts of the United States it is held that a corporation of one state doing business in another is suable in the courts of the United States established in the latter state, if the laws of that state so provide, and in the manner provided by those laws. ''Lafayette Ins. Co. v. French'', 18 How. 404; Railroad Co. v. Harris, 12 Wall. 65; Ex parte Schollenberger, 96 U.S. 369; Railroad Co. v. Koontz, 104 U.S. 5, 10.

It is argued for the plaintiff in error that administration could have been taken out in Michigan on the policy, on the view that that was the domicile of the assured, and that it could have been taken out in Massachusetts without regard to the location of the policy at the time of the death of Mrs. Woodworth, and without regard to the fact that she died in another jurisdiction; and the case of Bowdoin v. Holland, 10 Cush. 17, is cited as holding that administration may be granted in Massachusetts, on the estate situated there of a person who died while residing in another state, although the will of the deceased had not yet been proved in the state of his domicile, on the view that otherwise debts due in Massachusetts, to or from the intestate's estate, could not be collected. The reason assigned for taking out letters in Massachusetts has equal force when applied to a state where the debtor does business under the laws of that state, and can be sued as fully as in Massachusetts, and is sure to be found so as to be served with process. If the defendant is to be sued in Illinois, administration must be taken out there; and administration in Massachusetts or in Michigan would not suffice as a basis for a suit in Illinois. The consent and capacity to be sued in Illinois still require, if an administrator is to be the plaintiff, that letters should be issued in Illinois; and by the terms of the policy, on the death of the assured, the suit must be by her executor or administrator. So it results that the question in this case must be decided on the same principle as if Illinois were the only state in which suit could be brought, and therefore the state in which letters of administration must be taken out for the purpose of a suit.

Nor is there anything inconsistent with this view in the fact that, as a corporation of Massachusetts, the defendant removed the suit from the state court on the ground of diversity of citizenship. It was not, as in Memphis, etc., R. Co. v. Alabama, 107 U.S. 581, S.C.. 2 SUP. CT. REP. 432, a corporation of the state in which the suit was brought, as well as a corporation of the state which originally chartered it, but it was exclusively a corporation of Massachusetts, for the purpose of availing itself of the privilege of removing the suit. Its diversity of citizenship for such purpose may well remain, because it does not desire a trial in the state tribunal. Yet its availing itself of the privilege of doing business in Illinois, and subjecting itself to the liability to be sued in a court in Illinois, with the effect of making the policy assets in Illinois, were voluntary acts, which, though not affecting the jurisdiction of the federal court, may well be held to give a locality to the debt for the purposes of administration, so that a suit may be brought under such letters in Illinois.

There is nothing in the foregoing views which is in conflict with what was decided in Wyman v. Halstead, ubi supra. In consonance with what was said in that case, payment of this debt to the administrator appointed in Illinois, will be good against any administrator appointed elsewhere; and the defendant will be protected in paying this judgment, especially as the husband is the exclusive beneficiary under the policy, and is the administrator and the plaintiff, and the money paid cannot be liable for any debts of the wife. Nor is this case governed by the decision in ''Ins. Co. v. Lewis'', 97 U.S. 682. The question there was as to the authority of a public administrator in Missouri, under a statute of that state, to bring an action on the policy. It appeared affirmatively that the intestate resided in Wisconsin when he died, and died there, and that there was already an administrator appointed in Wisconsin, so that the defendant could not be protected against a future suit by a proper representative of the estate. The record of this case shows that a special plea was put in, setting up that at the time of her death the assured was not a citizen or resident of Illinois, and left no property situate in that state, and that her entire estate was the claim under this policy. This plea was held bad on demurrer. Error in sustaining the demurrer is assigned, but as it appears by the bill of exceptions that, under the general issue, the defendant gave evidence of the matters set up in the special plea, and they constitute no defense, the overruling of the plea worked no injury to the defendant.

These views cover all the questions which are controlling in this case, and the judgment of the circuit court is affirmed.


text: Talk:New England Mutual Life Insurance Company v. Woodworth/Opinion of the Court


text:
Cooper v. Schlesinger

A. G. Riddle and Henry E. Davis, for plaintiffs in error.

H. L. Terrell, for defendants in error.

BLATCHFORD, J.

title: Cooper v. Schlesinger


text: Talk:Cooper v. Schlesinger

title: Talk:Cooper v. Schlesinger


text:
Cooper v. Schlesinger/Opinion of the Court

This is an action at law brought in the circuit court of the United States for the Northern district of Ohio, by the defendants in error, trading as Naylor & Co., against the plaintiffs in error, trading as George Cooper & Co. The suit was brought to recover the sum of $570.56, with interest from March 5, 1877, for goods sold, part of which was a quantity of star spring steel. Cooper & Co. set up, in their answer to the petition, as a defense, counter-claim, and set-off, that the star spring steel was delivered under a contract between the parties, made in March, 1876, whereby Naylor & Co. agreed to sell to Cooper & Co. 300 tons of said steel at 5 5/8 cents per pound, the same to be delivered on Cooper & Co.'s order, at various times in the future; that Naylor & Co. were steel makers, and Cooper & Co. were steel carriage-spring makers; that the latter had been for a long time using the star spring steel made by the former; that a change from the use thereof involved expense and delay, and Cooper & Co. could not compete with others in the business, unless they could purchase the steel at as low a price as others in the business could; that Naylor & Co. knew all this, and the contract was made with reference thereto; that, in order to induce Cooper & Co. to purchase the 300 tons of steel, Naylor & Co., by their agent, falsely and fraudulently represented to Cooper & Co. that the condition of their furnaces and business was such that they could not make and sell during 1876, exclusively of the amounts already ordered by their customers, more than 600 tons of such steel, including the 300 tons which they then requested Cooper & Co. to purchase, and such that they could not make or sell during 1876, exclusively of the amounts already ordered by their customers, more than 300 tons of such steel to makers of carriage springs, to-wit, the 300 tons which they then requested Cooper & Co. to purchase, and which the latter then did so agree to purchase; that it was a part of of the contract, and Naylor & Co. agreed, that they would not make and sell during 1876, exclusively of the amount already ordered by their customers, more than 600 tons of such steel, including the amount so contracted to be sold to Cooper & Co., and would not make and sell during 1876, exclusively of the amounts already ordered by their customers, any star spring steel to makers of carriage springs; that each and all of said representations were false, fraudulent, and untrue, and that Naylor & Co. and said agent made the same knowing them to be false, fraudulent, and untrue, and for the purpose and with the intent of inducing Cooper & Co. to make said contract and purchase said 300 tons of steel at a price in excess of the then and future market price of such steel; that Cooper & Co. believed and relied upon said representations, and in such belief and reliance entered into said contract; that said price was in excess of the then price of steel, and so continued to be during the whole time of the delivery of the steel; that the condition of the furnaces and business of Naylor & Co. was not in any respect as so represented, but, as Naylor & Co. and said agent well knew, said condition was such that they could make and sell large quantities of such steel during 1876 in addition to said 600 tons and said amounts so ordered, and could make and sell to makers of carriage springs large quantities of such steel in addition to said 300 tons and said amounts so ordered, during 1876; that, during 1876, Naylor & Co. did make and sell large quantities of such steel, in addition to said 600 tons and said amounts so ordered, and did make and sell large quantities of such steel to makers of carriage springs, in addition to said 300 tons and said amounts so ordered; that during 1876 Naylor & Co. delivered to Cooper & Co., under said contract, and at various times, 572,900 pounds of such steel, for all of which Cooper & Co. paid at the price of 5 5/8 cents per pound, as agreed, and Naylor & Co. also delivered to them the steel embraced in the petition, and not paid for; that by such acts of Naylor & Co. the market price of such steel and of carriage springs was largely decreased, and during 1876 Cooper & Co. were compelled to and did pay for all the steel delivered to them under said contract a price greater than the market price, and a price greater than such steel was sold for by Naylor & Co. to others, and to other makers of carriage springs, and were unable to compete with other makers of carriage springs, to their damage $6,000; and that they claim as a set-off so much of the $6,000 as is equal to the claim of Naylor & Co., and ask for judgment for the remainder. There was a reply denying the material allegations of the answer and counter-claim. The case was tried by a jury and resulted in a verdict for Naylor & Co. for $667.27, on which there was a judgment for that amount, with costs. Cooper & Co. have sued out a writ of error.

Mr. Henry E. Davis for plaintiff.

Mr. H. L. Terrell for defendants.

[Argument of Counsel from page 151 intentionally omitted]

Mr. JUSTICE BLATCHFORD delivered the opinion of the c

ourt.

The only exceptions presented by the bill of exceptions are to the charge of the court to the jury. The entire charge is set out. There is a general exception by the defendants to the charge, but that is of no avail. Where a charge embraces several distinct propositions, a general exception is of no effect if any one of them is correct. Lincoln v. Claflin, 7 Wall. 132, 139. The defendants did except, however, to the four distinct parts of the charge, which are below put in brackets, and they also excepted generally to the rule given as to the measure of damages. They did not ask for any specific instructions. The court said in its charge: 'It is not necessary, to constitute a fraud, that a man who makes a false statement should know precisely that it is false. It is enough if it be false, and if he made it recklessly, and without an honest belief in its truth, or without reasonable ground for believing it to be true, and be made deliberately and in such a way as to give the person to whom it is made reasonable ground for supposing that it was meant to be acted upon and has been acted upon by him accordingly. It is important that this party knew, or had reason to know, that the representations he was making at the time were false, so as to make an element constituting a fraud that would entitle a party like the defendants to maintain a suit upon it. * *  * A false representation does not amount to a fraud in law, unless it be made with a fraudulent intent. There is, however, a fraudulent intent if a man, either with a view of benefiting himself, or misleading another into a course of action, makes a representation which he knows to be false or which he does not believe to be true. * *  * It is not every misrepresentation in the making of a contract that constitutes a fraud upon which a party may rely to set aside the binding obligation of the contract. The misrepresentation must be in relation to a fact or a state of facts which is material to the transaction, and the determining ground of the transaction. There must be the assertion of a fact on which the person entering into the transaction relied, and in the absence of which it is reasonable to infer that he would not have entered into it, or at least not on the same terms. Both facts must concur. There must be a false and a material representation, and the party seeking relief should have acted upon the faith and credit of such representation. * *  * [A representation, to be material, should be in respect of an existing and ascertainable fact, as distinguished from a mere matter of opinion or advice.] In many of these trading transactions there is a system of misrepresentation in regard to the value of property, and several other things, that sometimes enter into a contract, that does not constitute representations of existing facts, but simply the opinion or advice of the party that makes the representations; and that class of representations does not constitute and lay a foundation for the maintenance of an action of fraud. [It must be a representation of existing facts that turn out to be false, and that the party at the time knew to be false.] These are general principles that you are to look into in order to ascertain, in the light of the evidence, whether the defendants in this action have been able to substantiate, by a fair preponderance of proof on their side, taking all the evidence together, that these representations were of this character,-that they were false, that the party knew them to be false, and that they were made for the purpose and with the intent of defrauding this party at the time they were made, these all constituting elements necessary to be made in order to maintain this sort of an action.'

The court then passed to the question of damages, and said: 'It is claimed, on behalf of the defendants, that their measure of recovery is the reduced market price of the steel before and at the time of the delivery of the respective quantities of steel that were to be delivered by the terms of the contract. It seems that the steel was to be delivered at different times, on the order of the defendants, as they might want the steel. On the other hand, it is claimed by the plaintiffs that the measure of damages is simply the market value of the steel at the time when this contract for the purchase of the 300 tons was made. [The general rule for an action of that kind, and for a fraud of that kind, would be the difference between the agreed price, that was procured by fraudulent representations, and the market price of the article purchased, at the time when the sale was made;] for, if the property was of the value that was agreed to be paid at the time, then there was no fraud perpetrated as to the price which was agreed to be paid for the steel, growing out of any representations in relation to it. But these representations are of a peculiar nature. It is said that the representation was that these parties had but three hundred tons of steel to be put upon the market during the year, for the purpose of being manufactured into springs, and that they had but six hundred tons of steel to be put upon the market during the whole year for all purposes. Now, I direct you that if this representation was false, and these parties did go and place upon the market greater quantities of steel than they said, in their representations, they had, then, to whatever extent the placing of that quantity of steel would have reduced the market price of steel, the defendants in this action would be entitled to recover. [But they would not be entitled to recover a reduction in the price and value of steel, occasioned by other things over which the plaintiffs in this suit had no control, and not growing out of the fact that these plaintiffs did, contrary to the representations and statements of this agent, place upon the market a greater quantity of steel.] Look into the evidence, and see whether the fact that these parties did put eight or nine hundred tons, as claimed by the defendants, upon the market, affected the market-the price of the steel; for, if a party may be induced by false representations to make a purchase of a quantity of goods at a certain time, and does not pay any more than the market price for them, then he takes the risk of the falling of the price of the article at the time when it is delivered, and the contract price fixes the amount to be paid, at the time when the contract is made, and not at the time of the delivery of the goods. If, in this case, the defendants were to pay the contract price at the delivery, then, of course, that would be another question; but they agree by this contract to fix a price which they shall pay for the whole three hundred tons, to be delivered as they might direct. If these representations were false, and these parties did, contrary to the representations, place upon the market this increased quantity of steel, and that affected the market, then, to the extent of that affectation of the market, these defendants would be entitled to recover from the plaintiff their damages.'

In the first two sentences excepted to, the court was dealing with the subject of the representations as to existing facts. The answer alleges that the representations were false and fraudulent, and that Naylor & Co. and their agent made them knowing them to be false, fraudulent, and untrue, and for the purpose of inducing Cooper & Co. to make the contract at the alleged excessive price, and knew the condition of their furnaces and business to be the opposite of that represented. So far as the cause of action on the part of Cooper & Co. is based on representations of the condition of the furnaces and business of Naylor & Co. with reference to the quantity of steel they had facilities for making in 1876, such cause of action is set forth as one founded on knowledge of the falsity of the representations. Taking the two sentences excepted to in connection with the rest of the charge, the jury were properly instructed that a statement recklessly made, without knowledge of its truth, was a false statement knowingly made, within the settled rule. In the charge on this branch of the case we see no error.

As to so much of the answer as set forth a contract by Naylor & Co. not to do certain things in the future, and a breach thereof and a claim of damages therefor, if there be such a separable cause of action set up, it is sufficient to say that there is no exception to any part of the charge which may be supposed to be addressed to such a question, and the case was, as to the entire claim of the defendants, properly presented to the jury. The plaintiffs were not responsible for any reduction in price or value occasioned by other causes than their putting on the market more steel than the quantity agreed upon.

As to the rule of damages, the court, after setting forth the general rule correctly, stated the rule applicable to the special circumstances of this case; and we understand that rule to have been substantially given as claimed by the defendants. It was, that where a person is induced by false representations to buy an article, at an agreed price, to be delivered on his future order, he can recover, as damages for the deceit, the diminution caused thereby in the market price at the time of delivery. The instruction as claimed by the defendants having been given, they cannot complain of it.

There being no error in the record, the judgment is affirmed.


text: Talk:Cooper v. Schlesinger/Opinion of the Court


text:
Moores v. Citizens' National Bank

E. W. Kittredge and J. W. Warrington, for plaintiff in error.

''Wm. M. Ramsey and E. M. Johnston'', for defendant in error.

GRAY, J.

title: Moores v. Citizens' National Bank


text:
User talk:12.109.107.253

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title: User talk:12.109.107.253


text: Talk:Moores v. Citizens' National Bank

title: Talk:Moores v. Citizens' National Bank