Volume 89 — United States Reports

Held: that the-reissued patent was invalid, as not being for the same invention as the original patent. 2.

Mrs. Newton, widow of J. H. Newton, brought suit in the court below, against the Mutual Life Insurance Company, of Newark, New Jersey, upon two. policies of insurance on' the life of her husband, issued by the company’s agent at St. Louis.

” This statute being in force, Cary, collector of internal revenue at Sau Francisco, demanded of the Savings Union, one of the savings banks of that city, a certain sum of money which had been assessed against the company as a tax for dividends paid by it to its depositors. The company refused to pay, alleging thajt they had paid no “ dividends ” to their depositors, and had. only paid to them semi-annual interest on their deposits.

On the 27th of November, 1871, Eliza House filed a bill in chancery, in the court below, against Andrew Mullen and twenty-one others.

<p>Error to the Circuit Court for the Eastern District of Missouri.</p> <p>Jeffries, administrator of Kenned}, sued the Economical Life Insurance Company, of Providence, Rhode Island, in the court below, alleging that on the 19th of October, 1870, the said company issued a policy of insurance upon the life of the deceased for $5000; that Kennedy died in August, 1871, and that notice had been given to the company of his death, payment of the amount of insurance demanded and refused.</p> <p>The policy, which the declaration set out at length, contained the clauses following, viz.:</p> <p>“This policy is issued by the company, and accepted by the insured and the holder thereof, on the following express conditions and agreements, which are part of this contract of insurance:</p> <p>“1st. That the statements and declarations made in the application for this policy, and on the faith of which it is issued, are in all respects true, and without the suppression of any fact relating to the health or circumstances of the insured, affecting the interests of said company.</p> <p>“ 6th. That in case of the violation of the foregoing conditions, or any of them, . . . this policy shall become null and void.”</p> <p>The plea averred—</p> <p>“That the policy was issued and accepted, on the following express conditions and agreements contained in it and made part of the contract of insurance, to wit, that the statements and declaration made in the application for the policy, and on the faith of which it was issued, were in all respects true, and without the suppression of any fact relating to the health or circumstances of the assured affecting the interests of the defendants, and upon the further condition, that in case of the violation of the aforesaid condition, among others the policy should become null and void.</p> <p>“That the said Kennedy did violate the first condition in this, that the statements and declarations made by him in his application for the said policy, were not in all respects true, but were false in the following respects, to wit:</p> <p>“ 1st. That in the application for the policy, and on the faith of which the same was issued, in answer to the question therein asked of him as to whether he was married or single, he stated that he was single, whereas, in fact, he was married, having a wife then living, as he well knew.</p> <p>“ 2d. That in the application for the policy, and on the faith of which it was issued, in reply to the question therein asked of him, ‘ Has any application been made to any other company; if so, when?’ he answered ‘Ho;’ whereas, in fact, he had, prior thereto, to wit, in April, 1870, applied for insurance upon his life, to the Mutual Life Insurance Company of New York, and had been insured therein in the sum of $10,000, as at the time of .making the said answer, he well knew.”</p> <p>To this plea the plaintiff demurred, but the court overruled the demurrer, and entered judgment for the company. From the judgment so entered, the present writ of error was brought.</p> <p>The demurrer admitting that the statements made in the application were false, the question in the case, of course, was this: “Was the plea bad because it did not aver also, that the false statements were material to the risk ?”</p> <p>1. The statements contained in the decedent’s application were not warranties. They are not pleaded as warranties. The plea does not allege that the statements were in writing, and if they were not, but were oral only, then, as no particular form of words is essential to make a warranty,. but the question is one of intent, it should have been left to a jury to say whether there was a warranty.</p> <p>The use by a pleader, of the terms “ express conditions and agreements,” does not of itself import a condition precedent or a warranty.* If a warranty is relied on, it should be averred. The distinction between a warranty and a representation, is one well known, and, in insurance, vital. A misrepresentation will not vitiate a policy unless material to the risk. The materiality must be averred. It is a fact for the jury.†</p> <p>2. Independently of any question of defective pleadings, the plea shows on its face that no misstatement in the application could have been meant to vitiate the policy, unless the same “ affected the interest of the said company; ” affected the interests of the company injuriously, of course, thereby meaning. The plea while iterating the language of the contract, yet seeks to defeat a recovery, on the ground of the misstatements, without venturing to allege that they did affect the interests of the company in any way.</p> <p>Now, it appears that of the two misstatements made in this case, neither affected the interests of the company injuriously ; and, indeed, that if they affected those interests at all, they affected them beneficially.</p> <p>In the first one, the company being told that the applicant was an unmarried mau, asked of course, and got a higher premium than if they had been told that he was married; it being matter of notoriety, that a married man is regarded, in the parlance of insurers, as a “ better life,” than an un-married one.</p> <p>So, too, being told that no application had been made elsewhere, they necessarily made a more searching examination into the character.of the applicant’s health than they would otherwise have made. By his untrue answer the applicant invited medical inquiry. The question put to him on his application, was not as to what other company he had applied to; or for what amount or for what rate, but was simply, “ Has any application been made to any other company ? If so, when?” Had he answered.truly, he would have said “Application has been made to another company. It was made about six months ago.”</p> <p>The company to which he was now applying would have inquired and would have learned that he had been taken recently, and taken for a large amount, $10,000. This would have tended to show that he was a fit subject for a risk. Such prior insurance by another company would have been regarded as complimentary to the applicant; or in mercantile phrase, as an “ indorsement ” of his life.</p> <p>The case then, as to both misstatements, falls within the rule laid down by Mr. Parsons :*</p> <p>“Nor is a policy avoided by such a misstatement oí a fact, which, if truly stated, would diminish the risk; for then if the insurers are deceived, it is to their own advantage.”</p> <p>At all events, the second misstatement did no harm. Life insurance companies do not like over-insurances, from their tendency to produce suicide. But there is no allegation or pretence here either of suicide or of an insurance in contemplation of it.</p> <p>The art with which insurers now word and hedge about contracts of insurance in favor of themselves — their adroit modes of getting answers, and their numerous “ conditions ” hidden in long columns of finely printed matter — has been the subject of just reproof from this court;† and the results of their contrived questions are so frequently and so grossly unjust, that the legislatures of several States, including Maine, New Hampshire, Ohio, and Missouri, have interfered, and provided by direct enactment that misrepresentations not relating to the risk, shall not vitiate a policy, and that in all cases the materiality shall be a question for the jury. The Missouri statute of March 23d, 1874, to that purport, was the immediate result of the case at bar.</p>

<p>Error to tbe Supreme Court of New York; the case being thus:</p> <p>In July, 1867, three persons, Shawhan, Mendall, and Palmer, of St. Louis, advertised themselves as copartners, under the firm name of Shawhan & Co., and in the September following purchased in that city, under the name of Shawhan & Co., a quantity of flour of one Stanard, and got possession of it without paying for it. “ Shawhan & Co.” immediately failed; having shipped the flour to agents of theirs in New York, to be sold under the fictitious name and for the account of E. C. Packard & Co. Stanard thereupon, on the 2d of October, 1867, commenced an action in the Supreme Court of New York against Shawhan & Co., and attached, in the hand of the agents of Shawhan & Co., a portion of the proceeds of the flour.</p> <p>Shawhan, individually, soon after his failure, and on the 28th of October, 1867, was adjudged a bankrupt in Missouri, and one Scott was appointed his assignee. The attachment was levied on the funds mentioned, on the 28tb of March, 1868. The agents applied to the court for leave to pay the money into court and substitute the assignee of Shawhan. the opposing claimants of the fund, as defendant in their stead; and the assignee being summoned came in and defended the case.</p> <p>On the trial, he showed that there was in reality a secret agreement between the persons composing the firm of “ Shawhan & Co.,” made when that firm was organized, that they were not to be partners in fact, but that Mendall and Palmer were really to be clerks for Shawhan, and that they received a salary as such.</p> <p>This secret agreement, it was admitted, was not known to or communicated to Stanard before he sold the flour to Shawhan & Co.</p> <p>The question presented was this: "When Shawhan was declared bankrupt, whose was the property, as between Shawhan and the creditors of Shawhan & Co., and as between Shawhan and the creditors of Shawhan? Did it belong to-Shawhan individually, or to Shawhan, Palmer, and Mendall, as copartners ?</p> <p>The position of the defendants was that as between Sbawhan and the creditors of Shawhan & Co., the property in question belonged to Shawhan individually, and that therefore it passed to Scott, his assignee in bankruptcy, the same as would have done any other individual property of his, for the reason, as they alleged, that the advertisement by the parties of themselves as copartners was a fraud.</p> <p>The Supreme Court of New York decided that the attaching creditors, who had attached the proceeds as partnership property, and who were now represented by one Kelly, should prevail.</p> <p>Its view was that, had the suit been brought before Shawhan was decreed a bankrupt, Shawhan would have been estopped from denying the rights of the attaching creditor, and that this being so, his assignee was also estopped; that he had no other rights than Shawhan himself, and no rights superior to his, and was vested with the property subject to all equities against it in his hands.</p> <p>From this judgment Scott, the assignee, brought the case here as within section 709 of the Revised Statutes,* his counsel contending that the State courts of New York had no jurisdiction in cases of bankruptcy; that under the Bankrupt Act† — which enacted'in terms that “ the District Courts of the United States be and they hereby are constituted courts of bankruptcy,” and which declares that “they shall have original jurisdiction in all matters and proceedings in bankruptcy ” — the matter belonged to one of those courts, and contending further that, as plaintiff' in error, he set up a title to the subject of the controversy under an assignment in bankruptcy, under an act of Congress, to wit, the Bankrupt Act, which is a “title” . . . “claimed under” a “statute of” . . . “the United States;” that such title was necessarily “ drawn in question” in the decision of the Supreme Court, and that the decision of that court was and is “ against the title” so claimed and “set up” by the plaintiff in error.</p>

The city of New Albany, in its answer, set up a defence peculiar to itself, to wit, a complete settlement and compromise with the railroad company in 1857, by which the bonds issued by the city in payment of its stock subscription were surrendered, upon its assuming and paying a large amount of debts due by the company; and the city insisted that this settlement was made in good faith, and was for the benefit of the railroad company and its creditors; and that the…

I Appeal from the Circuit Court for the Eastern District of Missouri; in which court one Ritchie filed a bill against Franklin County-, in the said State, and various persons, holders of its bonds, such as are hereinafter described, to enjoin the county from collecting a special tax levied to pay the interest on the said, bonds, and to compel the holders of them to surrender them for cancellation; he, Ritchie, the complainant, alleging that by the constitution of Missouri…

What was finally done with the property did not exactly and by direct evidence appear. No redelivery bond, it seemed, was now existent. After the attachment had been made Maxwell voluntarily appeared and submitted himself to the jurisdiction of the Kansas court, in the case wherein the attachment issued. He filed, first, a demurrer, afterwards an answer, and finally went to trial on issues which the pleadings raised.

<p>Under the act of March 12th, 1863, relating to captured and abandoned property, and which enacted that any person claiming to bo the owner of such property may, “ at any time within two years after the suppression of the rebellion, prefer his claim to the proceeds thereof in the Court of Claims, and, on proof . . . that he has never given any aid or comfort to the present rebellion,” receive the proceeds of the sale of such property, a person who did give aid and comfort to the rebellion, and who has not been pardoned until after two years from the suppression of the rebellion cannot, on then preferring his petition, obtain the benefit of the act, even though in cases generally the limitation of actions in the said court is one of six years. The question is not one of limitation but of jurisdiction. And the inability of an Unpardoned rebel to sue in the Court of Claims does not control the operation of the statute.</p>

Appeals from the Court of Claims. The Home Insurance Company and the Southern Insurance and Trust Company, both being corporations created by the legislature of Georgia iii 1861 and 1863, while the State was in armed rebellion against the government of the United States, brought suit in the court below against the United States, under the Captured and Abandoned Property Act (an act which, by its terms, gives a right to sue only to persons who have borne true faith and…

The capital was $3,000,000; and the State took one-sixth of it, or $500,000. The company was,, however, not able to make the road with the $3,000,000 capital thus originally subscribed; and in 1836 the legislature of the State passed an act “for the promotion of internal improvements,"&c.,” meant to assist the completion of the road.

<p>Euros to the Circuit Court for the District of Maryland.</p> <p>P. & H. Pleasants sued Fant in the court below, and the single question in dispute was whether the defendant was a partner in the firm of Keene & Co., so as to charge him with a debt conceded to be due by that firm to the plaintiffs, arising out of some transactions in cotton. The case was tried before a jury, and when the testimony was through, both plaintiffs and defendant prayed instructions of the court, which were all refused, and the court said to the jury,</p> <p>“ There is no evidence in this cause from which the jury can find that the defendant had such an interest in the purchase aiid sale of the cotton by Keene & Co. as will make him, the defendant, a partner as to third persons, and the jury will, therefore, fiud their verdict for defendant.”</p> <p>The bills of exception disclosed the testimony on which this instruction was founded, and the question now before this court was whether the verdict founded on that instruction should be set aside and the judgment reversed.</p> <p>The direct testimony offered to prove the partnership was confined to the statements of Fant in a conversation with one of the plaintiffs and a clerk iu their office, and the deposition of Keene, a partner of Keene & Co. The substance of the former was that Fant denied that he was a partner, said he knew from some experience what was necessary to make him a partner, and admitted that he had procured for Keene a loan of $10,000 in gold from a bank of which he was president, and that he was to receive part of the profits of Keene’s venture in purchasing cotton with that money, as compensation for procuring the loan. What portion of the profits he was to receive was not stated.</p> <p>Keene in his deposition denied that Fant was a partner in the transaction, but said that Fant had negotiated for him the loan from the bank, and he had made Fant a promise, which was entirely voluntary, to give him a part óf the profits he might realize, and that he had mentioned no particular part or proportion of the-profits to be so given.</p> <p>After the admission of this testimony, the plaintiffs, on the ground that they had sufficiently shown a relation between Fant and Keene to admit of Keene’s declaration to .third persons as to Fant’s interest, offered to prove by one of the plaintiffs, that Keene had told him Fant was a partner, and asked that the plaintiffs would advance money enough on the cotton then in their possession as brokers to enable him to pay Fant his money and let him out of the firm. This offer was objected to and the objection sustained by the court.</p> <p>A large amount of testimony, however, was admitted, the object of which was to show that Fant, as president of the bank, was in the habit of using the money of the bank in private speculations, without the knowledge of the directors, but which was very feeble and far from establishing that fact. '</p> <p>Verdict and judgment having been given for the defendant, the plaintiffs brought the case here.</p> <p>1. The English rule laid down in Waugh v. Carver* nnikes a participation in profits conclusive proof of partnership under all circumstances.</p> <p>In Berthold v. Goldsmith,† and in Seymour v. Freer,‡ this court holds that the rule does not apply to “a ease of service or special agency, where the employé has no power, as a partner, in the firm, and no interest in the profits, as property, but is, simply employed as a servant or special agent, and is to receive a given sum out of the profits, or a proportion of the same, as a compensation for his servicesBeyond that exception the court does not go in its adjudication or its reasoning. There is nothing in either to countenance the idea, that a party, not an employé, but contributing, or leuding, or procuring the capital of a concern, can stipulate, ab initio, for a share of its profits, as a compensation for doing so, and yet escape liability for its debts. And such an idea is contrary to the whole current of authority.§ This court has not followed some of the later English eases.ǁ</p> <p>2. The instruction given to the jury improperly took the case away from it. The evidence undoubtedly did at least tend to prove a participation in the profits; and while the rule of evidence does not allow one partner to bind or speak for the other, until proof has been given of his authority, it nevertheless requires nothing more than proof tending to establish the authority; proof legally sufficient to go to the jury on the point.*</p> <p>It is settled law that a Circuit Court has no authority to order a peremptory nonsuit against the plaintiff’s will.† But very nearly the same result is reached if after a plaintiff has given-what he deems sufficient evidence of his case, and which does confessedly tend to prove it, the court may tell the jury what this court told the jury below.</p>

Pratt and H. Brigham, of Boston, sued, by process of attachment, the Ogdeusburg and Lake Champlain Railroad Company, a corporation of New York, to recover from that company damages for the loss of certain horses which Pratt, for the two parties, had put into the company’s cars on its road in the said State, and which had been burned to death, not on the said company’s road, but on the Vermont Central Railroad; a road in the State of Vermont, connecting with the former, but…

Held: That this was not a true view of the case; and that the last and italicized clause above, “ after payment of mortgage interest and delayed coupons in full," was controlled by the previous word "net," which meant “that which remained as net profit after the deduction of all charges or outlay.” The bill was accordingly dismissed.

” This enactment being in force, Bell filed a petition in the District Court of the United States of North Carolina, praying that a certain Rhyne might be decreed a bankrupt.

On motion by the State of Texas for a rule on John Chiles to show cause why he should not be dealt with as guilty of a contempt of this coui't in disobeying one of its decrees, and why he should not by proper instrument convey to the said State all his right, title, and interest to seventy-six certain bonds of .the United States now in the possession of Droege & Co., of London.

Firman, assignee of Wright, a bankrupt, filed a bill in the court below against Burnhisel, to set aside a mortgage given by the said Wright, before his bankruptcy, to the said Burnhisel, the bill alleging that the mortgage was void under the Bankrupt Act. The case was thus: Wright executed three promissory notes, each payable “in one year from date with interest at 25 per cent.” The first, dated March 26th, 1866, was to Burnhisel, and for $2450.

Held: that, notwithstanding the words above italicized, the paper of the 31st of July, 1863, was executory only and had not divested E. and C. of their property in the cotton ; no money but the thirty dollars having been paid, and nothing else done in execution of the contract; and that in a suit for the proceeds of it under the Captured and Abandoned Property Act, which gives to the “owner” a right to recover, under…

The suit was for property claimed by the wife. On the said 25th of February, 1861, a compromise was effected between the parties, and it was agreed that Stover should give his bond to Fretz and wife, secured by a deed of trust to Chilton, as trustee, of a valuable farm, specified, for $2366, payable on or before the 1st of March, 1863.

<p>Error to the Supreme Court of the Territory of Montana.</p> <p>The case was thus:</p> <p>The Civil Practice Act of the Territory of Montana thus enacts:</p> <p>“Every action shall be prosecuted in the name of the real, party in interest.”</p> <p>“ In an action to recover possession of personal property judgment for the plaintiff may be for the possession; or the value thereof in case a delivery cannot be had, and damages for the detention of it.”</p> <p>This enactment being in force, Lomme sued B. & C. Eintzing, in one of the District Courts of the said Territory, as partners, to recover a debt, and in that suit issued an attachment, under which the sheriff seized certain personal property, alleged to belong to the Eiutzings, as security for the satisfaction of any judgment that might be recovered against them.</p> <p>In this state of things one Watson brought replevin against the sheriff, to recover possession of this property; and — two persons, Sweeney and Holter, entering as sureties into a written undertaking to the sheriff, in $5000, conditioned “for the return of the property to him, if return thereof should be adjudged, and for the payment to him of such sum as might be recovered against Watson” — the property was delivered to Watson.</p> <p>In this action of Watson against the sheriff the jury found a verdict “ for the defendant,” on which the court entered a judgment to the effect that the sheriff’ “ recover from the plaintiff', Watson, the possession of the property replevied in this action,” and his costs.</p> <p>’ The jury did not find the value of the property replevied, nor was any alternative judgment entered against Watson, as required by the already quoted section of the Civil. Pra.c=tice Act, for the value of the property in case a return could not be had.</p> <p>No execution was ever issued on this judgment for the return of the property; nor was it ever returned or offered to be returned to the sheriff, by either Watson or his sureties.</p> <p>Going back now to the original suit. In that suit Lomme obtained, October 27th, 1870, judgment against the Kintzings for $4954, with interest at 10 per cent, and costs, about $1300 of which was got on execution.</p> <p>Thereupon he sued Sweeney and Holter, as sui'eties in the undertaking given to the sheriff in the replevin suit brought against him by Watson for the property attached by the sheriff at the instance of Lomme, as the property of the Kintzings; the object of this suit being to recover from the sureties the value of the propertj^ replevied, or so much thereof as might be necessary to satisfy the balance of the amount due upon the judgment obtained by Lomme against the Kintzings.</p> <p>On the trial the plaintiff, Lomme, gave no evidence of the assignment, or of the delivery, of the replevin bond to him by the defendant in the action of Watson v. The Sheriff; and was permitted to prove the value of the property attached, at the time it was replevied by Watson, this value being fixed by witnesses at from $7000 to $10,000.</p> <p>At the conclusion of the plaintiff’s ease, the defendant moved for a non-suit, on the ground that Lomme could not sue in his own name on the bond given to the sheriff. The court refused the non-suit, holding that the bond having been for the use of Lqmme, and he being the real party in interest, be could so sue.</p> <p>The evidence being all in, the defendants requested the court to charge:</p> <p>That- the only interest which the plaintiff could claim in the goods was just the interest which the Kintzings had at the time of the levy of the attachment on them, and that he could recover no greater amount from the defendants than the value of the interest of the Kintzings in them, at the sáid time, if he recovered at all.</p> <p>That unless a writ de retorno habendo (that is to say, for the return of the property claimed in the complaint) had been issued to the proper officer previous to the commencement of this action, then that the verdict should be for the defendants.</p> <p>That the undertaking sued on fixed the value of the property replevied at $2500 at the time the same was replevied, and the jury could not fix the value thereof to be any greater sum.</p> <p>The court refused to give any one of these charges, though it did charge that the $1300 which Lomme had recovered on his suit from the Kintzings was to be deducted from what the jury might find.</p> <p>The court charged that the plaintiff’s damages should be assessed at such amount as the jury might find remained unsatisfied upon his judgment against the Kintzings, with interest, and his costs expended in Watson’s suit against, the sheriff, if they found that the value of the property replevied by and delivered to Watson at the time it was so delivered, and not returned to the sheriff or placed in subjection to the plaintiff’s judgment against the Kintzings, was equal to the balance of the judgment and the amount of the costs; and if the property was not equal to the said balance and costs, that the jury should assess the plaintiff’s damages at the amount they should find the said property was worth at the time of its delivery to Watson, and the amount of plaintiff’s costs in Watson’s suit against the sheriff, with interest on such amounts at ten per cent, per annum.</p> <p>That the only question for the jury to determine was, whether possession of the property delivered to Watson was ever returned to Roberts, and to determine the value of the property so delivered to Watson and not so returned.</p> <p>The jury found, November 10th, 1871, in favor of the plaintiff for $5000. The record as it came up to the court omitted to show, by the usual sort of entry, that judgment had been entered accordingly. However, there was in the record a notice by the defendant’s counsel to the counsel of the plaintiffs, “ that the defendants appealed to the Supreme Court of the Territory from the judgment made and entered in the District Court of the Territory, in favor of the plaintiff and against the defendants.” And also an order by the Supreme Court of the Territory that the cause of Lomme v. Sweeney et al., “coming on for judgment on the appeal herein,” it was ordered “that the judgment entered herein by order of the court below be affirmed with costs.”</p> <p>This the counsel of the plaintiffs in error had regarded as a sufficient evidence of the entry of a judgment for $5000 in the District Court, and an affirmance of it in the Supreme Court, and so brought the case here. The e’rrors assigned were:</p> <p>1. That Lomme was allowed to sue in his own name.</p> <p>2. That the verdict in the replevin suit was in violation of the provision in the Civil Practice Act, since it did not find the value of the property, and there was no alternative judgment for that value, or the return of the property.</p> <p>3. That proper instruction had been refused.</p> <p>4. That wrong ones had been given.</p> <p>the latter gentleman in his brief calling attention to the peculiar form of the evidence of the judgments in the District Court, which he suggested was no evidence of what judgment, if any, had been given; and Mr. Ashton informing the court that the peculiarity was due to a mere clerical error, that would be remedied by certiorari, if the court saw fit now to order one, and would suspend its judgment till one could issue and be returned. The court directed the argument to proceed, and a certiorari to issue.</p> <p>[A certiorari having thus issued and been returned,showed the error to have been a mere clerical one, as alleged by Mr. Ashton.]</p>

<p>Appeal from the Circuit Court for the Eastern District of Missouri.</p> <p>Bailey and others, foreign stockholders, in the Pacific Railroad Company, a corporation existing and organized under different special acts of the State of Missouri, filed a bill in the court below against a certain Magwire, collector of State, county, school, and city taxes for the county and city of St. Louis, Missouri, to enjoin his collection of such taxes assessed for the year 1869, on the said railroad company under the general tax law of the State; the ground of the application being that by acts of the Missouri legislature governing the said railroad company, and which acts, as the company asserted, made a contract with it, the company—</p> <p>1st. Was not liable for any county, school, or city taxes at all.</p> <p>2d. Was not liable for State taxes under the act in virtue of which they had been assessed, but was liable for them only under another act; a special act relating to itself, and prescribing a manner for assessment, &c., different from the manner which had here been followed.</p> <p>The case was thus:</p> <p>The charter of the Pacific Railroad Company was granted in 1849, and counties, cities, and towns along its lino were authorized to subscribe to it; but it contained no provision exempting its property from taxation.*</p> <p>By an act of 1851, amendatory of the charter,† it was enacted that the capital stock, together with all their works and other property, and all profits which should arise from the same should be vested in the respective shareholders of the company forever, in proportion to their respective shares, and that the same should be deemed personal estate and be exempt from all public charge or tax whatsoever, for the term of five years from the passage of the act. This exemption, of course, would have expired in 1856.</p> <p>At the time of the passage of this act, as before and since, there existed in Missouri, under its public statutes, a general scheme of taxation of all property in the State; this scheme embracing all property of corporations over and above their capital stock, as well as the property of citizens in the counties where it was situated..</p> <p>In this state of things, the exemption given by the act of 1851 not having yet expired, the legislature of Missouri, on the 25th of December, 1852, passed another act amendatory of the charter. This act lent its credit to the company by issuing to it State bonds to the amount of $1,000,000, to be used after the expenditure of a like sum raised" from other sources; and it gave to the company a large body of lands which Congress had given to the State.</p> <p>By a twelfth section it made the following enactment as to taxation:</p> <p>“ Section 12. The said Pacific Railroad shall be exempt from taxation until the same shall be completed, opened, and in operation, and shall declare a dividend, when the road-bed, buildings, machinery, engines, cars, and other'property of such-completed road, at the actual cash value thereof, shall be subject to taxation at the rate assessed by the State on other real and personal property of like value.</p> <p>“And for the purpose of ascertaining the value of the same, it shall bo the duty of the president of said company, on tho first day of February in each year, after such road is completed, opened, and put in operation, and declares a dividend, to furnish to the auditor of the State a statement under his oath, of the actual value of the road-bed, buildings, machinery, engines, cars, and other property appertaining to such completed road; and from said statement, the auditor shall charge said company with tho amount appearing to be due to tho State, according to tho statement furnished by tho president of the company.</p> <p>“And in case said company shall fail to pay into the State treasury, within thirty days after the first day of December in each year, the amount charged against said company as aforesaid, said company shall forfeit and pay to the State of Missouri, in addition to the sum with which sq.id company may stand charged by the auditor, ten per cent, per month, after the expiration of said thirty days, on the amount charged to said company; which sum charged against said company, together with tho ten per cent, per month hereinbefore specified, may bo recovered in the name of tho State of Missouri, by civil action, in any court of competent jurisdiction; and should tho president of said company fail to make out and furnish to the auditor of the State a statement as herein required, said company shall forfeit and pay to the State $10,000 for such failure, which may be recovered in tho name of tho State of Missouri, in any court of competent jurisdiction.</p> <p>“Provided, That if said company shall fail for the period of two years after said roads respectively shall be completed and put in operation to declare a dividend, then the said company shall no longer be exempt from the payment of the said tax, nor from the forfeitures and penalties in this section imposed.”</p> <p>This act of 1852 was accepted by the company, and the rights given by the act of 1851 were thus surrendered.</p> <p>The road was completed in April, 1866; and after April, 1868, and in each year since that time — the company not having yet made any dividend — the president of the company made returns of its taxable property in the manner required by the twelfth section of the act of 1852; but not in any other manner.</p> <p>At the time when the road was completed $3,614,500 of stock had been subscribed; of which $2,500,000 had been subscribed by the counties and towns along the line of it.</p> <p>In 1866 the legislature of Missouri passed an act relating to the collection of revenue generally throughout the State. The mode prescribed for ascertaining the value of property of corporations generally, was different from that prescribed by the twelfth section of the act of 1852, for ascertaining the value of the property of the Pacific Railroad. But the act of 1866 did not in terms nor by any plain implication repeal the twelfth section of the act of 1852. Whether it did so by any kind of implication was a question that came before the Supreme Court of Missouri, A.D. 1878, in The Pacific Railroad Company v. Cass County * in which case the court decided that the act of 1866 did not repeal the said twelfth section in any way.</p> <p>In August, 1871, this decision not then having been made by the said Supreme Court, the assessors for St. Louis County, acting under the provisions of the act of 1866, assessed a tax for State, county, school, and city purposes on the property of the Pacific Railroad Company, and seized upon its property, advertising it for sale. Thereupon the present bill was filed; by which various foreign stockholders in the company — the company itself declining to act, and remaining passive-sought to enjoin the collection of the tax.</p> <p>Its positions, of course, were:</p> <p>1st. That the twelfth section of the act of 1852, respecting the taxation of the road, was and remained a contract between the State of Missouri and the railroad company; that it specifically provided for the whole subject of the taxation of the road, and that in virtue of it the general revenue laws of the State were not intended to and did not apply to this particular company.</p> <p>2d. That the said section accordingly exempted the compunja fróm taxation for county, schpol, and all other purposes except those mentioned in it.</p> <p>3d. That if this were not all so, thus broadly stated, and if the section were not a contract as to all taxes, aud did not, as such contract, furnish the only authority and rule by which this particular company was to be taxed, yet that until repealed it was the law governing the subject of taxation for State purposes; that, as was shown by the decision in the Pacific Railroad Company v. Cass County, it had never yet been repealed, and therefore that certainly, as to the taxes for State purposes, the collector was to be enjoined.</p> <p>The positions of the collector, on the other hand, were—</p> <p>1st. That after the time limited in the twelfth section— that is to say, as things turned out, after April, 1868 — the property of the railroad company became subject to taxation, as any other property in the State, to State, county, municipal, and school taxation, and through any mode which the legislature of the State might see fit to prescribe.</p> <p>2d. That the provisions of the said twelfth section constituted no contract in favor of the company as against the right of the State (after the time had elapsed during which the company was to be exempt from taxation) to provide by law for the taxation of the property of the company in any manner it should see fit, and for the general purposes for which any other property in the State was subjected to taxation: and finally,</p> <p>3d. That in point of fact the said twelfth section had been repealed, impliedly, by the general purpose of the act of 1866, so that even as to taxation for State purposes, it no longer applied.</p> <p>The court below sustained the defendant in everything excepting as to city taxes (which, for reasons not necessary tere to be stated, it deemed illegally laid); decreeing, of course, that the defendant might lawfully collect not only the county and school taxes, as he proposed to do, but also, in the same way, the State taxes. The bill to enjoin him from so doing was accordingly dismissed, and from the decree dismissing it this appeal was taken.</p> <p>It may be well euough to mention that in a case which was in effect one between these same parties, and lately before this court, it had been decided that the twelfth section of the act of 1852 created a contract between the parties, exempting the railroad from taxation until it was completed, and for two years afterwards, if it did not pay a dividend before the expiration of these two years.*</p> <p>I. It has been already decided by this court that the twelfth section, under consideration, makes a “contract” between the State of Missouri and the railroad company, that the company should be exempt by it from all taxation, until the road was completed and a dividend paid, or until two years after its completion. The two years having passed, the only question now to be considered, under the first of the points raised by the case, is as to the extent to which the road may be taxed, and the manner of taxatiou. What is the extent of that contract?</p> <p>The language of the act, leaving out such words as do not affect the meaning, so far as this question is concerned, is:</p> <p>“ The Pacific Bail road shall be exempt from taxation until the same shall be completed and in operation, and shall declare a dividend, when it shall be subject to taxation at the rate assessed by the State on other property of like value.”</p> <p>The taxation to tvhich the road is to be subject, after the happening of the events mentioned, is to be at a certain rate, that is, at the rate assessed by the State on other l’eal and personal property of like value. No other or greater rate is authorized, nor is any other taxation than that provided by the act, contemplated. It is not a mere declaration, that after the payment of a dividend the property shall be subject to taxation in the manner and at the rate specified. . The language employed is different. The property is first declared to be exempt from all taxation. This is to continue until the road is completed and declares a dividend, after which it is to be subject to a specified kind and amouut of taxation. Does not this sentence, taken together, preclude the idea of any other or greater taxation ? Is it not plain that the exemption is to continue as to all taxations except that particularly specified ?' It is not said that after these things take place it shall be no longer exempt. There are no negative words used. Were it not for the language which restores it, the total exemption would still continue. The limitation of the time of the total exemption and of the amount of the subsequent taxation are obviously one sentence, and must be taken together. The clause should not be divided into separate and distinct subjects, so that it may be argued that the exemption granted is to cease when a dividend is declared, and by the process of division and argument, a new subject of the remainder of the sentence made, which shall provide what shall take place afterwards. The whole must be taken together, the latter part as limiting or qualifying the former. The extent and manner of subsequent taxation provided for is as much a limitation of the exempting words as is the completion of the road and the payment of a dividend.</p> <p>That the whole subject of the future taxation of this road was intended to be provided for, appears by an examination of the whole section. The mode of assessing and collecting the tax mentioned is specifically provided with great particularity. A return of the property is to be made. The character of the return, the kinds of property to be returned, the person by whom, and the officer to whom, and the duties of the officer in charging the taxes, and of the officer who is to collect the same, and many other particulars are specifically set out. The tax is to be paid to the State treasurer. No mention is made anjwvhero in the act of any other taxation for county or other purposes. In the proviso, at the close of the section, it is declared “ that if said company shall fail, for the period of two years after said roads respectively shall be completed and put in operation, to declare a dividend, that then said company shall no longer be exempt from the payment of said, iax,” &e. What tax? Clearly the tax specifically provided for after the total exemption ceased. It is not taxes but iax. The total exemption is from taxes for all purposes, while that authorized is a tax only, and is to be paid to the treasurer of the State, and that is plainly the tax from which the company is no longer to be exempt. Both the obvious meaning and the well-known rule, that the last antecedent should be referred to when the meaning is obscure, indicate that it is the tax provided for. If it was the purpose of the act to leave the property subject to other taxation than that provided for, its authors would have employed language in this proviso that would embrace all taxation. The word “ said,” preceding and limiting the word “ tax,” points to the fact that the tax provided for is.the one from which the company is no longer to be exempt.</p> <p>The case of the Raleigh and Gaston Railroad Company v. Reid * in this court — a case from North Carolina — is much in point. There an act had been passed by the legislature of North Carolina in these words:</p> <p>“The said railroad, and all engines, cars, and machinery, and all the works of said company, together with all profits which shall accrue from the same, and all the property thereof, of every description, shall be exempt from any public chargo or tax whatsoever, for the term of fifteen years, and thereafter the legislature may impose a tax not exceeding twenty-five cents per annum, on each share of the capital stock held by individuals, whenever the annual profits shall exceed eight per cent.”</p> <p>Subsequently to this act being passed — within the fifteen years, and the annual profits not yet exceeding eight per cent — the legislature of the State passed an act taxing the franchise of the road.</p> <p>This court, in construing the first act, says:</p> <p>“The only way in which the property of this company could bo reached for taxation at all, was after the. limitation of the fifteen years had expired. The legislature was then at liberty to tax the individual shares of the stockholders, whenever their annual profits exceeded eight per cent. When a statute limits a thing to bo done in a particular mode, it includes a negative of any other mode. It was the manifest object of the legislature which incorporated this company-to invite the investment of capital in the enterprise of building this road, and no means better adapted for the purpose could have been devised short of total immunity from taxation. As long as the capital was unproductive it contributed nothing to the support of the governmcnt, and even after it became remunerative its contribution was fixed by the terms of the charter, and could not, in any event, exceed twenty-five cents on the share of stock. The impolicy of this legislation is apparent, but there is no relief to the State, for the rights secured by the contract are protected from invasion by the Constitution of the United States.”</p> <p>The North Carolina act and the one we are considering are similar in principle. Neither in direct words negatives the right to impose a greater or different rate of taxation.</p> <p>A similar doctrine is laid down in the Neio York and Erie Railroad v. Sabine,* in the Supreme Court of Pennsylvania.</p> <p>These cases do but afford modern application of old law;, law perfectly settled in the days of Hobart and Plowden. The former declares that affirmatives in statutes that introduce a new rule imply a negative of all else;† as the latter had declared before him,‡ that when a statute limits a thing to be done in a particular mode it includes a negative of any other mode.</p> <p>II. The objection to which acts giving exemption from taxation by States are ordinarily and justly subject — the objection, namely, that by such exemptions the legislature of a State might render the State government powerless to carry on the affairs of the State, by taking away all power to raise funds for that purpose — does not apply here. The State is at liberty to tax the property in question at the same rate, and, consequently, to as great an extent as it does other property. The exemption contended for is from county and other local taxation. The State may appropriate all the tax it is at liberty to impose to its own uses. Counties, cities, and other municipalities, possess no power of taxation, except what is granted to them by the legislature of the State, and it may, if it sees fit, withhold such power to any extent. They are frequently not permitted to tax all the property the State does.</p> <p>III. In the history of the Pacific Railroad, we find a support to our interpretation of the twelfth section under consideration.</p> <p>By the charter of the road counties, cities, and towns along the line of the road were authorized to subscribe to the capital stock of the company. The legislature was anxious to secure the construction of the road; a matter of plain importance to the State and to the public. By loaus of its bonds, conditioned on subscription, by gifts of, lands and otherwise, the State stimulated and encouraged subscriptions by counties and towns along the road. In view of this earnest desire to secure the construction of the road thus manifested by the State and by the municipalities, and the people along the line of the road; and of the fact that the counties and incorporated towns were themselves the principal stockholders, and consequently the proprietors of the road, and hence would have to pay the taxes themselves, who can question that an exemption from local taxation was proper, and was intended ? The State might well claim and reserve to itself the right to tax the road after its completion, after it was able to pay dividends on its stock, and at the same time grant an immunity from municipal taxation.</p> <p>IV. Finally. If the act in question is not a coutract, and is subject to repeal, it has in fact not been repealed. This is adjudged in the case of The Pacific Railroad Company v. Cass County,* by the tribunal most to be respected in a decision on the meaning of the statute. The assessment, therefore, as to State taxes, at least, is made in a wrong way.</p>

Held: 1st. That the so-called transfer was executory, amounting, only to an offer that if B. would pay the $5000, B. should become owner of the judgments; and that B. having, in May, 1861, gone South and joined the rebels there, and not come back till 1865, could not in 1868 file a bill, and on an allegation that A. had collected the judgments, claim the proceeds, less the $5000 and interest. 2d. That a bill making such…

Held: First. That the decree against B. was wrongly vacated; that as to him the decree in the State court on the original bill for rents was res judicata; and that that decree stood as though no amended bill had been filed, and unimpeachable as to everything covered by it; while as to the other matter (the damage to the furniture), the Circuit Court of the United States should by issue directed to a jury, or by reference…

<p>The present ease was thus':</p> <p>On the 3d of February, 1870, that is to say, six weeks after the decree for $2389 (leaving the matter of furniture open), for rents mentioned in the former case* as having been given, 23d of December, 1869, iu the County Court of Alexandria, in favor of James French, the trustee, against Alexander Hay, the said French sent a transcript of the decree to Philadelphia, the-place of Hay’s residence, and sued Hay on it, in one of the local courts there. Hay had, two days before the transcript was sued on, that is to say on the 1st of February, 1870, made the affidavits requisite to remove the case into the Circuit Court of the United States under the act of Congress; though the case was not yet actually removed, nor indeed removed until the 12th following.</p> <p>On the transcript just mentioned, from the State court, French got a judgment against Hay, in the local court at Philadelphia, March 21st, 1871; and Hay at once* took the case on error to the Supreme Court of Pennsylvania, where he had it now pending.</p> <p>Before the other side could get that court to proceed in the case, Hay† filed a bill — the present bill — in the court below— the Circuit Court for the Eastern District of Virginia — into which he bad, before this time and with a view of vacating all that had been done there, removed the ease from the County Court of Alexandria, in which French as trustee bad got the decree against him for rents, and was about proceeding for the' furniture. And in his said now bill prayed for and at once obtained, a preliminary injunction to restrain French from proceeding further in Pennsylvania or elsewhere to collect his decree in the County Court of Alexandria on the transcript. And the said Circuit Court having at a later date‡ annulled that decree and dismissed the bill on which it was founded (a course of action which this court in the last preceding case approved and affirmed) proceeded now,§ after answer put in and testimony taken, to make perpetual the preliminary injunction which it had previously granted restraining French from suing in Pennsylvania or elsewhere on the transcript of the decree so ultimately, with the affirmance of this court, annulled as aforesaid.</p> <p>From this its action French took this appeal.</p> <p>1. When the ease of French, Trustee, v. Hay et al. was removed from the Alexandria County Court into the Circuit Court of the United States, Hay, if he meant to restrain the use of the transcript, could have filed a cross-bill; and that would have been the proper way. What we now have is an original bill, asking the Circuit Court of the United States for Virginia to take jurisdiction of things in the State of Pennsylvania. This sort of bill was unallowable.</p> <p>2. But there was a graver objection to the decree from which we appeal. Its effect is to restrain the proceedings of a State court. The Circuit Court of the United States for Virginia is asked to and does restrain the party from prosecuting a suit or enforcing a judgment which he has in the court of the State of Pennsylvania. Now, the Judiciary Act enacts :*</p> <p>“Nor shall a writ of injunction be granted to stay proceedings in any court of a State.”</p> <p>It is of no pertinence to argue that though the court itself could not be enjoined, yet that a party suing in it may be. This would do indirectly what the statute says shall not be done at all. In Peck v. Jenness† the court say:</p> <p>“ The fact that injunction issues only to the parties before the court, and not to the court, is no evasion of the difficulties that are a necessary result of an attempt to exercise that power over a party who is a litigant in another independent forum.”</p> <p>Even though a State court might enjoin a party from using or enforcing a judgment in another State, the Federal court cannot enjoin proceedings in any State court. The act of Congress has no effect upon the State court, but it has upon a Federal court, and says such court shall not enjoin proceedings in a State court.</p>

Held: that the paper was not such notice of the claim as the act contemplated.

Held: in the case of Barnet v. Hunter, * might be made by the owner or by an agent or by any person willing to act for the’party interested, upon the ground that an act done by a third person for the benefit of another is valid if ratified either expressly or by implication, and that such ratification will be presumed in furtherance of justice.

Held: that supposing the judgment of the Provost Court to have been void, it was made valid by article 149 of thé State constitution.

Held: 1st. That there was nothing in this above-quoted paragraph of the bond which impliedly obliged G. either to be himself in Richmond at any time after the 1st day of April, 1864, and during the continuance of the war, or to have an attorney in fact there to receive the money due on the bond. 2d. That there was no ambiguity in the written contract, and, therefore, no occasion to introduce parol evidence to show that it…

First. Where the amount in dispute, exclusive of costs, exceeds $500, and when the suit is against an alien, or is by a citizen of the State where it is brought, and against a citizen of another State, it may be removed on the petition of the defendant filed in the case, in the State court, at the time of entering his appearance in said court.* Second.

<p>Appeal from the Supreme Court of the District of Columbia; the case being thus:'</p> <p>In the year 1849, by deed of bargain and sale, all in technical form, one Colburn conveyed to Mrs. Mary Bell and to her three children, John, Sarah, and Maria, by name, a piece of ground described, in the District of Columbia, with the appurtenances; the grant being “unto the said Mary, John, Sarah, and Maria, their heirs and assigns forever; to have and to hold the said described land and premises with the appurtenances unto them the said Mary (the mother), Johu, Sarah, and Maria, their heirs and assigns forever, to them and their-sole use, benefit and behoof forever.”</p> <p>The mother subsequently married a man named Beall, and so became Mrs. Mary Beall.</p> <p>In this state of things, the estate of one Magruder, in Maryland, being about to be sold by a certain Stephen, as trustee, under a decree of court there, Beall bought it, for $10,100, and in pursuance of the terms of sale as prescribed by the decree, paid to Stephen, the trustee, $1000 in cash, and gave to him his three notes, each for $3033.33J, secured by a deed executed by himself and wife, all with recitals of its history and purpose and with everything in or about it, in form, purporting to convey the whole of the tract of land which Colburn in 1849 had conveyed to her the said Mrs. Beall (while bearing the name of Bell), and to her three children. The children were not parties to the deed of trust.</p> <p>The order of court for the sale of Magruder’s property directed that a deed should be given by Stephen, the trustee, only on the payment by the purchaser of all the purchase-money.</p> <p>Beall, the husband, did not pay his three notes, and a resale by Stephen of the original property was directed by the court having jurisdiction of the matter. The proceeds were directed to be applied to discharge the three Jiotes, and any surplus was to be paid to Beall. A resale by public auction was accordingly made on the 5th of May, 1859; the purchaser being one Crowley. The pi’iee, howevei’, thus obtained was but $6478, thus leaving a debt due by Beall of $2622, exclusive of interest. The resale was reported to the court and was confirmed by it, after an opposition to it by Beall. To get satisfaction for the deficit of $2622 and intei’est Stephen, the trustee, now, June, 1871, filed a bill in the coui’t below against Mr. and Mi’s. Beall, praying an account of what was due to him on the notes and a sale of the property which had been conveyed to him by Mr. and Mrs. Beall in the deed of trust, or of so much of it as would satisfy what should be found due. •</p> <p>Mi’, aud Mrs. Beall answei’ed. They set up that at the time of the execution of the deed of trust, the title to the lot was in Mrs. Beall (then Mrs. Bell), “jointly with her • children,” naming them; and “submitted that the lot could not now be sold without affecting their-rights.”</p> <p>They submitted further, that Mrs. Beall could neither at law nor in equity pledge her separate estate for the payment of her husband’s debt.</p> <p>On a ci’oss-bill filed by them, they averred that when the sale was made by Stephen as trustee, to Beall, Stephen misrepi’eseuted the value of the pi’operty, much exaggerating it, and promised to execute a valid deed to Beall for it, on receiving the $1000 and the notes.</p> <p>They averi’ed further, that Stephen was now in possession of the land of Magruder said to have been resold to Crowley; that the said resale was really made for Stephen, the trustee; and fraudulent, as being a purchase made by a trustee at his own sale. They did not in this cross-bill state when Stephen came into possession of the property once held by him in trust, nor state any other thing to show how long after the “resale” it was. The cross-bill itself was sworn to February 28th, 1872.</p> <p>Stephen, in answer to this cross-bill, denying his promise to execute any deed before the full purchase-money was actually paid, admitted that he was in possession of the land resold, but averred that the resale to Crowley was a bond fide sale; and that he Stephen was in possession by a bond fide purchase from Crowley, and for full consideration which had been paid by him. He denied all fraud in the said purchase by Crowley on the resale, and in his own purchase, and averred that his own purchase from Crowley was not thought of by either himself or Crowley, until after Crowley’s purchase had been made; and, of course, that it was made without any fraudulent combination with Crowley. But he did not state the date wrhen he came into possession of the property on his alleged purchase from Crowley.</p> <p>No proofs being made, the case was heard on the pleadings.</p> <p>The court below dismissed the bill, and Stephen appealed.</p> <p>The bill was rightly dismissed, and this for several reasons:</p> <p>1. It wanted necessary parties. The lot conveyed by Mr. and Mrs. Beall, had been conveyed to the latter (before her marriage with Beall) and to her children. The law of the District of Columbia, as it stood prior to 1857, was the old law of Maryland, which after the creation of the District still remained. By that law a joint tenancy was created. Every party was seized per my and per tout, as the old terms are; that is to say of the whole and of part. A conveyance by the mother though it may not have made a good title for the whole, did affect the whole. A sale under the deed of trust would have cast a cloud on the title of the children, and they should have been brought in, and if any decree of sale was made it should have been with reference to their rights.</p> <p>If the interest of the defendant requires the presence of new parties, he takes the objection of non-joinder, and the complainant is forced to amend, or his bill will be dismissed.*</p> <p>2. The debt sought to be secured was the individual debt of the husband, Beall, and it was not competent for the wife, under the policy of the law made for her protection and under the provisions of the deed or deeds by which she held the property in connection with her children, to incumber that property for the security of her husband’s debts. Steffey v. Steffey, in the Court of Appeals of Maryland,† and Central Bank of Frederick v. Copeland,‡ in the same court seem to show this.</p> <p>3. That the price which Beall agreed to pay for the property was wholly excessive, is proved by what it brought on the resale; and that Stephen did promise to make a conveyance in fee simple to Beall, as soon as he got the money and secured notes, can hardly be doubted in view of the payment which the latter made of $1000 in money, and of the deed of trust given on his wife’s estate. Why take cash and a security on a new estate, while the complete title in the old one is retained? If a deed in fee simple was not promised and intended, then this taking of cumulated secui'ities shows that Steplieu knew that the property had been sold to Beall at a grossly exaggerated value, and renders the allegation of fraud in this particular, as alleged in the cross-bill, the more probable.</p> <p>But the great objection to the complainant’s case, the vulnus immedicabile, remains. No doctrine is better settled in equity — none more wisely settled, or upon foundation more deeply laid in morality and in the admitted frailty of human nature — than that a trustee shall not purchase at his own sale. No contrivances, no indirections, will save him when he has done so. The intervention of third parties so far from assisting him does but make his case worse, since the intervention of others shows his consciousness of guilt.</p> <p>It is here admitted that the trustee is in possession of the property which he professed to sell, or rather to resell. At what date he sold it we know. At what date he came into possession of it is a matter not at all disclosed. He may have come into possession at once. In such a case undoubtedly his possession would be convincing proof of a bad purpose -when he made the sale. And his omission to state, in any way, in his answer to the cross-bill, when he did come into possession, so that a chancellor may see how soon, or how long after the sale, it was, infers as a necessity the conclusion that his possession followed hard upon his sale.</p> <p>The court should perhaps put what Chancellor Kent calls the “sting of disability” into any such doings by a trustee, as ever getting into possession of property once sold by him in a fiduciary character. Such a rule is a safe rule, and the only safe rule.</p> <p>But if a long lapse of time will repel all presumption of fraud, then certainly it lies upon a trustee to state clearly and to show that a long lapse of time has intervened. In this case the admitted possession by Stephen, .as an individual, of the property sold by him as a trustee, puts upon him the burden of proof, even if the proof be nothing but bis own answer. Thai proof he can surely give. The time when he came into possession is matter peculiarly within his own knowledge; and when, on that subject, he keeps silence, he is entitled to no favorable presumption. Those calling him to an account are entitled to every'such; for it may well be that they don’t know vtfhen he made his purchase.</p> <p>It is not enough that he state that there was no fraud. 'Whether there was fraud or not may be a question of law. He swears therefore to matter of law. Let him state and swear to dates, and the court will decide whether there was or was not fraud.</p>

Held: shall be the rules of decision as to the competency of witnesses in the courts of the United States in trials at common law, and in equity and admiralty.” The reading of the deposition was opposed by the defendants, on the ground that it was not lawful, either by the acts of Congress or by the acts of the legislature of New Jersey, to use in evidence the deposition of a party, and because, as the defendants…

Held: that after certain sections providing for the sale, a section providing that in certain contingencies no sale should be made, was not a violation of the constitutional provision. Appeal from the Circuit Court for the Western District of Missouri.

This was a contest between a landlord of demised premises claiming rent, and the assignee in- bankruptcy of his tenants, claiming certain personal property on the premises, out of which the landlord by distress expected to get his rent.

Creditors of the firm, and the separate creditors of each partner, may prove their respective debts; and the net'proceeds of the joint stock is to be appropriated to pay the former, aud the net proceeds of the separate estate to pay the latter.

Held: therefore, that in holding these vessels liable to capture and condemnation, and lawful prize of war, it did not appear under the decision in the Prize Cases ( 2 Black, 671 ), which in their second proposition adjudged that property of persons domiciled or residing within the enemy’s lines was enemy property, *408 and liable to capture as prize of war, without regard to their sentiments of loyalty or disloyalty to…

“Resolved, That it shall not be lawful for any company incorporated by the laws of this Commonwealth, and empowered to construct, make, and manage any railroad, canal, or other public internal improvement, while the debts and liabilities, or any part thereof, incurred by the said company to contractors, laborers, and workmen employed in the construction or repair of said improvement remain unpaid, to execute a general or partial assignment, conveyance, mortgage, or other…

in that case, attach “ until the right to the patent was complete and the requisite title was fully vested in the party without anything more to be paid, or any act to be done going to the foundation of the x'ight,” and accordingly that prepayment by the company of the cost of surveying, selecting, and conveying the lands granted, being required by statute making the grant, before any of the lands “ shall be conveyed,” no title vested, even to the patented tracts, unless the…

Held: that until the payment by the company of costs of “ surveying, seleeting, and conveying ” the lauds, they were not liable to taxation. Though another point in that case has been questioned as not perhaps perfectly well considered, † this point has been received by all as well founded. Now, we say that, in this ease, those costs have not been paid. 1.

Held: that notwithstanding the exception as to the “ military tax,” the notes were to be regarded as issued in aid of the rebellion and were therefore void.

<p>Appeal from the Court of Claims; the case being thus:</p> <p>On the 28th of July, 1866, Congress enacted: *</p> <p>“ That there be allowed and paid to the officers, clerks, committee clerks, messengers, and all other empl'oyés of the Senate and House of Eepresentatives, and to the Globe and official reporters of each House, and the stenographer of the House, and to the Capitol police, and- the three superintendents of the public gardens, their clerks and assistants, and to the Librarian, assistant librarians, messengers, and other employés of the Congressional Library, an addition of twenty per cent, on their present pay, to commence with the pi’esent Congress.”</p> <p>This act was repealed July 12th, 1870.</p> <p>By a joint resolution of the 28th of February following, it was resolved†—</p> <p>“ That there shall be allowed and paid to . . . its civil officers, clerks, messengers, and watchmen and employés in the executive mansion, and in any of the following named departments, or any bureau thereof, to wit: State, Treasury, War, Navy, Interior, Post Office, Attorney-General, Agricultural, and including civil officers and . . . clerks and employés in the office of the coast survey, naval observatory, navy-yard, arsenal, paymaster-general, &c., &c., an additional compensation of twenty per cent, on their respective salaries as fixed by law, &c., . . . for one year.”</p> <p>With these two proceedings of Congress, the act of 1866 and the joint resolution of 1870 in force, one Saunders, who was engaged at a salary in superintending the public gardens of the Department of Agriculture, at Washington, applied and got an addition of 20 per cent, to it under the joiut resolution, for the one year, during which the resolution gave the increase.</p> <p>Subsequently, assuming that the act of Congress was a continuing act and not one making an allowance for one year only, and assuming also that his employment brought him within its provisions, he filed á petition in the Court of Claims, alleging that he was “ Superintendent of Gardens in the Department of Agriculture,” from March 4th, 1865, to July 1st, 1870, and asking the addition of 20 per cent, given by the act of Congress during that time.</p> <p>The Court of Claims found as a fact that “he held the position and performed the duties of Superintendent of the Public Gardens of the Department of Agriculture,” and during the time for which the 20 per cent, was claimed; and conceiving that he came within the act, gave him the addition prayed for.</p> <p>From this, its decision, the United States appealed.</p> <p>The only question considered by this court was whether Saunders was within the act of Congress.</p>

H. Piatt, on the 26th of January, 1814 — during our second war with Great Britain — by a written contract with the then Secretary of War, General Armstrong, became a contractor of supplies for the Northwestern Army for one year, to begin on the lst day of June, 1814, and end on the 31st day of May, 1815, at an average rate of twenty cents the ration; and as the usage then was to make advances in money to contractors, he retained in his hands, as an advance frotn the…

<p>Appeal from the Circuit Court for the District of Indiana; the case, as appeared by bill and demurrer,-being thus:</p> <p>On the 7th of July, 1871, John and Seth Coolidge, brothers, were partners in the retail dry goods trade in Evansville, Indiana, having been thus in business there since the year 1863. On the day just named they owed to a Mrs. Sloan $3174, for money previously borrowed of her to aid them in their business.</p> <p>They also owed the First National Bank of Evansville $7600, evidenced by seven promissory notes of the firm — all maturing between the 25th of July and the 6th of October of the year 1871 — on which one Robinson was then an accommodation indorser; and to secure to Mrs. Sloan the payment of what was due to her and to indemnify Robinson as indorser, they made to them a chattel mortgage upon their stock of goods then in their rented store, including also the furniture and fixtures connected with the same.</p> <p>The mortgage, after reciting the liability of the firm to Robinson, on the notes indorsed by him, stated that it was contemplated, that in order to take up the notes, or some of them, it might become necessary to renew the same, or to discount other notes. The recital of the indebtedness to Mrs. Sloan, by note at four months, with interest, was also made with the statement that, if not convenient to the firm to pay it at maturity, it might be renewed from time to time, as the parties, should agree.</p> <p>After these recitals, and that of the mutual understanding of the parties concerning the continuance of the debts, the property was conveyed; the mortgage proceeding thus:</p> <p>“ And it is hereby expressly agreed that until default shall be made in the payment of some one of said notes, or some paper in renewal thereof, the parties of the first part may remain in possession of said goods, wares, and merchandise, and may sell the same as heretofore and supply their planes with other goods, and the goods substituted by purchase for those sold shall, upon being put into said store or any other store in said city where the same may be put for sale by said parties of the first part, be subjected to the lien of this mortgage.”</p> <p>The instrument concluded with separate powers to the mortgagees, Robinson and Mrs. Sloan, on default in payment of their respective claims, to seize and sell sufficient goods to satisfy the same.</p> <p>All the debts owing by the firm at the date of the mortgage, other than those secured by it, have been paid, except $3500 due to one Alfred Coolidge, father of the two partners Coolidge, for borrowed money.</p> <p>The mortgagors remained in possession of the property, and bought and sold as they had been accustomed to do, from the date of the mortgage, to August 7th, 1873, when Seth Coolidge, one of the partners, died. During this interval of twenty-five months the interest and less than $100 of the principal of Mrs. Sloan’s debt was paid, and the interest and about one-third of the principal of the bank debt. The note of Mrs. Sloan’s was not renewed, but was overdue about twenty-one mouths. Robinson continued to indorse for the firm. Immediately after the death of Seth Coolidge the property of the firm, consisting of the old stock, goods subsequently purchased, and debts due the firm, was inventoried and appraised, and found to be very little in excess of the debts owing by the firm. This inventory and appraisement was completed on September 15th, and on the following day Robinson and Mrs. Sloan seized the goods and were about to sell them. However, on the 26th of September and before the ten days required by the terms of the mortgage for notice of sale had expired, proceedings in bankruptcy were begun against the surviving partner, Seth Coolidge, and an injunction was got to stay any sale. Coolidge having been decreed a bankrupt, one Elliott, on the 15th of November, 1873, was appointed his assignee, and demanded the goods from Robinson and Mrs. Sloan. They refused to deliver them to him. Hereupon Robinson and Mrs. Sloan filed a bill against Elliott, setting forth the facts as above given, and praying that an account might be taken .of what was due to them, and that the goods might be sold to pay it. Elliott, the assignee, demurred, and the court below sustained the demurrer, and rendered a decree dismissing the bill. Robinson and Mrs. Sloan then brought the case here.</p> <p>The Statute of Frauds* of Indiana makes the following provisions:</p> <p>“Section 10. No assignment of goods by way of mortgage shall be valid against any other person than the parties thereto, when such goods are not delivered to the mortgagee or assignee, and retained by him, unless such assignment or mortgage shall be acknowledged, as provided in cases of deeds of conveyance, and recorded in the recorder’s office of the county where the mortgagor resides, within ten days after the execution thereof.</p> <p>“Section 21. The question of fraudulent intent in all cases arising under the provisions of this act, shall be deemed a question of fact, nor shall any conveyance or charge be adjudged fraudulent as against creditors or purchasers solely upon the ground that it was not founded on a valuable consideration.”</p> <p>It is manifest from the tenth and twenty-first sections of the Statute of Frauds of Indiana, that the legislature of that State, while intending to guard against frauds, intended also to permit the use of personal property by way of chattel mortgages as a security for the payment of debts, in the same manner that real estate is used for that purpose, and that questions of fraud, which might arise under the law, should be questions of fact and not of law.</p> <p>Previous-to the enactment of'this statute of registration, it was necessary to the validity of chattel mortgages that there should be a manual delivery of the mortgaged property to the moi’tgagee, who should continue to hold the same in his possession, but under this statute the record of the mortgage is substituted for such delivery, and is full and complete notice to all the world of the rights and interests of the parties.*</p> <p>The questions which present themselves in this case have not, it is true, been fully and clearly determined by the Supreme Court of Indiana. But we submit that the decisions which have been made are all in our favor, and settle these propositions:</p> <p>1. Where the mortgage has been duly recorded in time, the same is prima facie valid.</p> <p>2. Where the mortgage is recorded and contains such a provision as the one in the mortgage here, it is still primñ facie valid, and the question of fraud is a question for the jury. In other words, that there is no such thing recognized in our courts in this class of cases as fraud per se.</p> <p>3. Where a mortgage is made in terms to include after-acquired property, the mortgage will attach to the property when it is acquired, and will operate as a lien upon it in equity.</p> <p>The case of Maple v. Burnside† would, indeed, seem to have decided the question under consideration. The main question before the court was, whether Maple, the attachment defendant, had sold, conveyed, or otherwise disposed of his property with the intent to cheat, hinder, or delay any of his creditors. The fact of fraud relied on was the making of á chattel mortgage, permitting the mortgagor to remain in possession of the goods, and deal with them as his own.</p> <p>The court below, among others, gave the following instruction :</p> <p>“ If, after the mortgage was given, the defendant remained in possession of the property mortgaged, after the time named in it, using and trading with the property as the owner, it is a fraud, and you must find for the plaintiff.”</p> <p>In delivering the opinion of the court, Hanna, J., says:</p> <p>“ It appears to us this instruction was calculated to confuse and mislead the jury to the prejudice of the defendant. ... If it was intended to say that the defendant could not hold possession after the date of the mortgage, it is certainly erroneous. If some other point of time was intended to be indicated at which the possession of the defendant should cease to be rightful, it should have been more specific, especially in view of the fact that the date when the debts secured by the mortgage were to become due is not stated particularly, and the right to retain said possession was to remain in the mortgagor until the maturity and failure to pay said debts.”</p> <p>The case was reversed for the error contained in the instruction given.</p> <p>It must be admitted that this opinion of the Supreme Court, in which the judge undertakes to state the case, is wanting in perspicuity in the statement of the facts. But the record clearly shows that the validity of the mortgage was in question; and that the Circuit Court had assumed in its instruction, just as the circuit judge has decided here, that if the mortgagor after the mortgage was executed, kept possession of the goods and sold and dealt with them as his own, the mortgage would be fraudulent and void.</p> <p>If we are right as to what is the law in Indiana on this question, and if the validity of the mortgage is to be settled, as of course it is to be, by that law, we may rest the argument here. As for the authority of cases decided in other States of the Union that the mortgage is invalid, it is enough to say that the opinion of the Supreme Court of Maine,* the Supreme Court of Massachusetts, with Shaw as its chief,† the Supreme Court of Michigan, with Cooley as its chief,‡ the Supreme Court of Iowa, with Dillon as its chief,§ the Circuit Court of the United States for the first circuit, Story, J., presiding;* and the Supreme Court of Indiana, the State where, and under whose statutes the question arises, are arrayed against the vacillating and unsatisfactory rulings of New York, rendered under peculiar constructions of their statutes, against the cases in Illinois, under their very peculiar statutes, and the cases in Ohio, and perhaps Wisconsin and Missouri, following the same line of argument.</p> <p>That no question about the respective domains of law and fact could arise in this ease; the proceeding being by bill in chancery, and the case being made by a demurrer to it.</p> <p>That while in Maple v. Burnside, relied ou by the other side, the case was so confusedly stated, that it was difficult to say exactly what it was, there was nothing in the report to show that the mortgage contained any provision permitting the mortgagee to remain in possession and deal with the goods, and that the judgment established no right in a mortgagor of chattels even in Illinois to do so.</p> <p>That the tenth section of the statute of Indiana did not change this rule of the common law, and that the argument of the plaintiff in error went to the extent of allowing the enactment, that a mortgage of chattels, where possession did not accompany the title, should nevertheless be valid when recorded, to set up as valid every fraudulent device which under the aspect of a mortgage might be put on record in pursuance of the statute.</p> <p>That from the case of Grantham v. Hawley, decided so far back as the time of Hobart,† it had been settled that a mortgage was void as to after-acquired property except where the mortgagor had a present actual interest in it or concerning it; that there must be something in prcesenti of which the thing in futuro was to be the product, or with which it was to be connected as necessary for its use, or as incident to it, constituting a tangible, existing basis for the contract. The future property must be an accretion to the property already owned by the mortgagor, either by adding the future to the preseut, or by growth. Thus, to take Hobart’s illustration, that while one might mortgage all the wool which should grow for a term of years on any number of sheep owned by him at the time, he could not mortgage the wool to be grown on any sheep at all if he did not own them; a position for the principle of which the counsel cited cases from nearly every State in the Union.</p> <p>And in short, that although the question might appear, to some extent, an open one in Indiana, a reference to the notes, English and American, upon Twyne’s case in Smith’s Leading Cases,* would show that the judicial mind of both England and the United States had ascertained and fixed the rule that' after-acquired chattels were not subject to lien by way of mortgage; that this rule was moreover a wise one, since to sanction a contrary rule and so to give effect to transactions like the one under consideration, would open a door to frauds innumerable and of the most extensive sort.</p>

Held: upon this part of the case, that the lands had been “sold” within the meaning of the act of Congress; and that though the State while she held the title as trustee of the United States could not tax them, she now could do so. 2.

Held: should be construed strictly, nor is there any subject-matter to which that rule should be applied with greater intensity than where the attempt is made to change by local legislation the rules of commercial law, applicable tó that class of commercial instruments.

The road is part of a line of road for tbe transportation of cotton between tbe cotton fields of the South and tbe cotton mills of the North. For the purpose, apparently, of procuring freights over its road, this company bad established an agency at Columbus, in Mississippi, and was in the habit of making contracts there for the transportation of cotton from that place to Boston, Massachusetts, its own road forming one link of the chain of transportation.

of the case is as follows: “Where two or more railroad companies are consolidated, as far as the creditors of one of the original companies are concerned, the consolidated company is the successor of the old company, but in respect to the properties of the other company it is a new and independent company, and such creditors have no claim against it upon their original contracts, but only by virtue of the assumption of the obligations of the old company. “A subsequent order…

D. 1855, power was given to it to hear and determine all claims against the United States founded upon any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the government of the United States.* Doubts, however, were suggested immediately upon the act going into practical operation and on suits being brought against the United States, whether the act meant to allow the United States to file set-offs in such…