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III. The authorities thoroughly establish that wherever money or property is due from a Government to a citizen, there the court cannot, by garnishment, attachment, or injunction, prevent the citizen from receiving or the Government from delivering the thing so owing. And these authorities show the absurdity of the position that though the Government cannot be enjoined from paying, yet the citizen can be enjoined from receiving.

IV. So, too, the authorities are direct and conclusive that neither the State nor the Federal courts can enjoin the citizen from transacting, with his Government, any business which the laws, as administrable by the executive, authorize or require him to transact, whether the transaction be the receipt of his dues under a contract or any other thing.

1. The cases bearing on this in its general aspects are as follows: 11 How., 272; 17 How., 284; Ib., 225; 4 Wall., 522; 5 Wall., 563; 7 Wall., 352; 9 Wall., 298-312.

2. The authorities on this exact proposition are: 1 Op., 681; Ib., 684; 6 Op., 226; 11 Op., 118; 4 How., 20; 2 Cr. Cir. Ct. R., 544; 3 Pet., 292; and the opinion of Attorney-General of July 11, 1879, and of First Comptroller above cited.

V. That this corporation is not extinct is shown by the fact that Baldwin & Wright sue it as alive, and by the fact that it cannot be collaterally attacked as defunct, and can only be dissolved by the judg ment of a court. (Angell & Ames on Corp., 10 ed., sec. 777, and note; 4 Otto, 308; 24 How., 283.)

VI. The New York statute does not prohibit an officer of an insolvent corporation, or one owing for more than one year matured debts, from making to it a loan, and taking by assignment collateral security. The act only applies to assignments to "pay debts." But this is not material, because the assignees were, in this case, not stockholders or officers, when the resolution of board, authorizing the assignment to secure the $25,000 loan, was passed, nor when the loan was agreed to be made.

Ross & Dean, for Baldwin & Wright:

FIRST. This final voucher represents an amount due the paving corporation for work done under the contract. No rights vested in the company by the statute. Its claim inured wholly by virtue of the contract, which required certain work to be done by June 1, 1877, and certain other work after May 19, 1880. To secure the faithful execution of the deferred work in 1880, the contract stated that at date of acceptance the contractor would be entitled to nine-tenths of the contract price, and that the other tenth shall be "retained," as provided in the act of Congress, &c. Neither the law nor the contract fixed any date at which the one-tenth should become payable.

When the pavement was accepted, May 19, 1877, the company had no vested right to the one-tenth. Its rights were contingent: 1. Upon the work lasting three years. 2. Upon its repairing defective places during the three years. 3. Upon its restoring the surface to the original thickness after the three years had expired.

Until that stipulated thickness of surface should be restored, the contract would still be open and unperformed, and, until the whole pavement should be approved and accepted after the expiration of three years, no right accrued even to the company to make a demand for payment. Its rights would not become the subject of transfer until

the work should be performed and a Treasury draft should issue upon the amount finally certified by the commission. (U. S. vs. Gillis, 95 U. S. Rep., 412; Spofford vs. Kirk, 97 Id., 488.)

SECOND. The papers relied on as passing title from the company to Libby, Bartlett & Kimball, bear date December 30, 1876; May 11, 1877; and June 19, 1877, respectively. If, on any of these dates, the company's claim had been allowed, its amount ascertained, and a warrant had issued for the payment thereof, none of said papers could be operative under section 3477 of the Revised Statutes.

That of December 30 names no definite amount, has only one witness, and was not acknowledged before any officer. Corporate seals are required to all instruments which are sealed instruments, when executed by individuals or natural persons. (Field on Corporations, sec. 284.)

An assignment is a specialty, and must be under seal. There is no seal of the corporation attached in this instance.

The paper dated May 11, 1877, was not witnessed by even one witness, and was not acknowledged before any officer.

The paper dated June 19, 1877, completes the list of attempted transfers from the company to Libby, Bartlett & Kimball. It purports to be a power of attorney. The only witness is Libby, one of the grantees of the power, who was clearly incapacitated to prove a paper to which he was a party. And it was not acknowledged before any officer.

No document having been executed to Libby, Bartlett & Kimball, which, under the law and rules of the Treasury, could pass title to them, of course they could not confer title on any one else. And if they had title, their power of attorney of date July 14, 1877, to Safford & Co., was inoperative, not having been acknowledged before any officer, and not being witnessed by even one person.

The resolution and receipt of August 12, 1880, could not, under the law, pass title to the proceeds of this voucher. The claim had not been allowed, nor its amount ascertained. The amount named in the "receipt" does not correspond with the voucher. No warrant had issued. The title, being in the company, could not pass, except in the mode prescribed by law. Connected with the action of August 12, was neither attestation nor acknowledgment.

THIRD. The Grahamite Company existed only by virtue of the general incorporation laws of the State of New York. The statute of that State (vol. 2, Rev. Stats. N. Y., p. 399) renders null and void all transfers and assignments made in contemplation of the insolvency of the company to any person whatsoever. A suit on its notes for $10,000 has been and is still pending against the company in this District since October 16, 1876. Another suit for over $38,000 was begun against it here April 27, 1877. Having received warrants from the commission for over $112,000 up to December 30, 1876, owing Baldwin & Wright then over $19,000, without the ability to pay, how could it have been other than insolvent if it could not proceed without borrowing $25,000 from two of its directors, and could furnish no other collateral than what it hoped to earn three years thereafter? Both suits were pending at the date of each successive attempted transfer of 1877, and in addition it owed Baldwin & Wright over $30,000 when the transfers of May 11 and June 19 were made. If reliance be placed on the action taken August 12, 1880, as the transfer, the record shows that at that date an execution for more than $22,000 had been returned unsatisfied;

the $10,000 Wood & Co. suit was pending; a sworn bill in equity, alleging insolvency, had been filed, and receivers had been appointed by a court having jurisdiction.

FOURTH. The same section of the New York Revised Statutes, vol. 2, page 399, renders null and void any transfer of corporate property or choses in action to any director or stockholder, directly or indirectly, for the payment of any debt, after the company shall have refused the payment of any of its notes or other evidences of debt. The proofs of such refusal are referred to under the preceding division, and show that the company could not make such transfer at any time from October 16, 1876, to the present time.

The only questions are, Were Libby & Bartlett stockholders or directors, and was the fund attempted to be assigned to them in payment of any debt? They became stockholders prior to December 30, 1876, else they would not have been eligible to be elected directors December 30, 1876, as shown by the record. That Libby continued to act is shown by his resignation, on file, of date December 26, 1878. Bartlett's letter to Hon. A. G. Porter, January 30, 1879, describes him as director. The affidavits of Davies and De Smedt show the same facts as to 1876-'77 and 1879. The records of the meeting of August 12, 1880, certify that both were then members of the board, but at that meeting only three directors were present. If the object or result of that meeting was to finally consummate an invalid transfer of the assets of a corporation then certainly insolvent, what was the situation? The man Libby was one of the requisite three who were trying to transfer the only chose in action the company had in payment of the company's debt towhom? Not Safford & Co., for the Grahamite Company never contracted with or borrowed from them. The resolution of the board, on file, states the assignment to have been made "to secure the loan of $25,000 made to the company this day by Libby, Bartlett & Kimball." The company knew no other creditors, as shown by its records, both of that date and of August 12, 1880. Libby, director, makes the quorum to transfer to Libby, creditor, to Bartlett, director and creditor, and Kimball.

"A director cannot have any personal interest in a contract between his company and a third person." (36 Ind., 60; 4 How., 503; 30 Barb., 553; 16 Md., 456; 60 III., 138; Field on Corporations, sec. 397, and page 429.)

FIFTH. On and prior to August 12, 1880, an order of the supreme court of this District was in force enjoining the company, Libby, Bartlett & Kimball, and Safford & Co., their agents, attorneys, and assignees, from collecting or receiving the proceeds of this final voucher; and receivers had qualified, under an order of the court, at the suit of the unpaid sub-contractors, to hold said proceeds subject to the order of the court. The company was in court by service on its president, and by appearance of counsel, and certified copies of the order served on Libby, Bartlett & Kimball, and Safford & Co.

By an order of the Supreme Judicial Court of Massachusetts, dated September 25, 1880, Safford & Co. were enjoined from collecting by themselves or attorney, and from assigning.

State courts may rightfully prohibit citizens within their jurisdiction from prosecuting claims to property outside the limits of the State. (High on Injunctions, sec. 60, and note 1 to sec. 57; Massie vs. Watts, 6 Cranch, 148, and cases there cited; Dehon vs. Foster, 4 Allen, 545; Great Falls vs. Wooster, 23 N. H., 470.)

It is no interference with the executive branch for the judiciary to adjudge that a bankrupt may not collect a claim at the Treasury, but that his assignee may; that a claimant is insane, and that his committee is competent to act; that the claimant is dead, and his administrator has qualified; that a corporation is insolvent, and that its legal successor is a receiver; that an assignment is fraudulent, inoperative, or void, and that the assignee ought not to take. The Attorney-General has held, in the Doyle-Giddings case, that where there are several claimants to the same fund, the executive officer may properly submit to the adjudication of a court as to contested facts. The Second Comptroller has held that a receipt of a receiver is a valid discharge to the Government. (Abs. Decisions Second Comp., p. 118; MS. vol. 17, p. 439.)

SIXTH. By the act of July 19, 1876, Congress named a commission to execute that law. They were invested with authority to advertise for proposals, let contracts, and issue warrants to the contractors in payment for work as, in their discretion, they might deem safe and proper. It was the commission which was required to retain the ten per cent. as a guarantee fund, and a fund to keep the pavement in repair for three years.

The commission, then, are a part of the executive branch of the Government for the special purpose contemplated by the act.

As such part of the executive department, they have submitted it to the jurisdiction of the court, by the delivery of the final warrant to the receiver as the legal representative of the company. That warrant being the only evidence of the indebtedness of the United States to the company known or authorized by the act of Congress, and the commission, its lawful custodians, having, as a part of the executive department, delivered it to the court, it is submitted that there need be no embarrassment touching the question as to submission of questions of law involved herein to the adjudication of the court.

DECISION BY WILLIAM LAWRENCE, First Comptroller:

The act of July 19, 1876, requires the interest on the bonds, to which reference is therein made, to be paid to the contractors to whom the commission therein appointed should award the contract. The contract made, as authorized by that statute, requires, by implication, if not in express terms, the delivery of the United States bonds to the contractors when entitled thereto under the provisions of the act. The contractors' right to such delivery, in payment for work done, is, if implied, as clear, and the obligation as imperative, as if stated in exact words. (National Bank vs. Matthews, 98 U. S., 625.)

The paving commission had a right to employ all necessary and proper agencies for the execution of the law. The appointment of the Treasurer of the United States as a custodian of the bonds was a proper exercise of this right; and it is the duty of this commission or its agencies-executive officers of the Government appointed by the law to execute the law-to make payment to the party entitled to receive the bonds. It is not to be assumed that there is no officer or person charged with

the duty of executing the law. Strictly, the trust inscribed in the bonds should have been for the purposes named in the act, because, in fact, a small part of the bonds has been charged with the expense of keeping the pavement in repair; but the form of trust expressed in the bonds is subject to the law.

The request which is now made on behalf of the plaintiffs, in the proceedings in the courts, is, that the executive officers shall await the decisions of the courts and conform to them. This request cannot, for several reasons, be complied with.

I.-No court has obtained, or can obtain, the requisite jurisdiction.

1. Jurisdiction may exist in favor of creditors by a proceeding in rem as to tangible chattels, and, in some cases perhaps, as to choses in action, if the court can acquire the custody of them, and give notice, actual or constructive, as the law may authorize, to all parties in interest; or it may, in proper cases, exist without custody, if all the parties in interest can be served actually or constructively with process or notice obligatory on them by law. (Herman, Estoppel, sec. 103; 1 Inst. Lib. 4 Tit., 16, 17; Woodruff vs. Taylor, 20 Vt., 65.) But neither of the courts whose authority is invoked has obtained, or can obtain, jurisdiction over the persons of all the parties in interest, without their consent, which has not been given; hence, no decree in the matter can be made. (Kendall vs. U. S., 12 Pet., 527; Rhode Island vs. Massachusetts, Id., 657; Herndon vs. Ridgway, 17 How., 424; Grignon's Lessee vs. Astor, 2 How., 338; McPherson vs. Cunliff, 11 S. & R., 429; Sallu's case, ante, 223.)

2. No executive officer has authority to place the bonds in the custody of either court; and even if there were such authority, neither court could acquire such jurisdiction of the persons of all parties in interest, as to authorize a decree disposing of the bonds. (Case vs. Terrell, 11 Wall., 199; U. S. vs. Ames, 1 Woodbury & Minot, 76; Carr vs. U. S., 98 U. S., 437.)

3. If both courts could now proceed in the matter, it is not certain that they would reach the same conclusions of fact or of law, or decree the same disposition.

The pavement company was first served with process of the Supreme Court of the District of Columbia. Safford & Co. were first served with process of the Supreme Judicial Court of Massachusetts, in the suit at Boston.

The question of determining which of these courts should direct the action of the executive officers, if that could be allowed, in making disposition of the bonds, might be extremely perplexing.

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