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Counsel for Parties.
UNITED STATES V. SCHOFIELD. Appeal from the District Court of the United States for the District of Maryland. No. 1034; submitted with No. 1033. MR. JUSTICE LAMAR delivered the opinion of the court. This case is similar in all its essential features to the preceding one of United States v. Davis, and the decision in it should be the same. For the reasons given in the opinion in that case the judgment of the court below in this case is
Affirmed. Mr. Assistant Attorney General Cotton for appellants.
No. 116. Argued and submitted November 15, 1889. – Decided December 9, 1889.
An action on a marshal's bond, to recover damages for the wrongful taking
of goods under an attachment issued out of a Circuit Court of the United States, is a case arising under the laws of the United States, and is within the jurisdiction of a Circuit Court of the United States without averment of citizenship of the parties. Feibelman v. Packard, 109 U. S. 421,
affirmed and applied. In the absence of a statute forbidding it, an assignment for the benefit of
creditors may be made to an assignee who is not a citizen or resident of
the State where the assignment is made or the debtor resides. It having been held in Cunningham v. Norton, 125 U. S. 77, that the act of
Texas of March 24, 1879, was intended to favor general assignments by insolvents for the benefit of their creditors, and to sustain them notwithstanding technical defects; it is now Held, that there is nothing in the sixth section of the act, directing the assignee's bond to be filed with the county clerk of “his” county, to indicate a legislative intent that an assignee under such an assignment must necessarily be a citizen or resident of the State.
Mr. H. G. Robertson and Mr. Sawnie Robertson, for plaintiff in error, submitted on their brief.
Mr. D. A. McKnight for defendant in error. Johns was with him on the brief.
Opinion of the Court.
MR. JUSTICE BRADLEY delivered the opinion of the court.
This is an action on a marshal's bond, against him and his sureties, to recover damages for his wrongful taking of the goods of the plaintiff under an attachment issued out of the Circuit Court of the United States for the Northern District of Texas, against one Myerson. According to the decision in
Feibelman v. Packard, 109 U.S. 421, it is a case arising under the laws of the United States, and is therefore within the jurisdiction of the Circuit Court without any averment of citizenship of the parties.
The plaintiff avers that Myerson had previously assigned the goods to him for the benefit of his creditors, and sets out a copy of the assignment. The defendants demurred to the pe tition, or, in the language of the Texas practice, filed a special exception, the principal ground of which was that it appears by the petition that the plaintiff was a resident and citizen of Missouri, and therefore could not lawfully be an assignee under the laws of Texas. The court below entertained this view and sustained the exception and, the plaintiff having declined to amend, the cause was dismissed. The question, therefore, is, whether the view taken by the court below was, or was not, erroneous.
The assignment was made on the 22d day of October, 1880, under the act of the legislature of Texas, approved March 24th, 1879, which was before this court in the case of Cunningham v. Norton, 125 U. S. 77. In that case the provisions of the act were examined in extenso, and we held that it was intended to favor general assignments by insolvents for the benefit of their creditors, and to sustain them, notwithstanding technical defects, provided they assigned all the property of the debtor. The assignment in the present case is substantially the same in form as in the case of Cunningham v. Norton. The only material difference (if it is material) is the fact that the assignee was a resident of the State of Missouri, and not of Texas. As to this, the allegation of the petition is, " that at the time of making of said assignment he (the plaintiff) was a resident of the city of St. Louis and State of Missouri; but that, while
Opinion of the Court.
holding his domicil in said State last named, his business lay in the State of Texas, and for the greater part of the year,
before and since said time of the making of said assignment, he was in said State of Texas in pursuance of his calling in said State; that at, before and since the time of said assignment he was, in pursuance of his calling, frequently in said county of Grayson, in which county he had business interests. That at the time of making said assignment said Myerson was a resident of Grayson County, Texas, where he was conducting his business, and where said goods, wares and property, before and at the time of making said assignment, were situated, and where said assignment was made.” Some two or three years after this assignment was made, viz., April 7th, 1883, an amending act was passed which, amongst other things, required that the assigneee of an insolvent debtor under the act should be a resident of Texas; but the act of 1879 had no such requirement. The only word in the whole act which could be construed to imply it was in the 6th section, which required the assignee to execute a bond with sureties, and directed that the bond should be filed with the county clerk of his county. We think that this expression was insufficient to raise the implication contended for. It probably only meant that the bond should be filed with the clerk of the county where the debtor resided and carried on business.
Independently of a statute on the subject, we do not see why, as a mere matter of law, an assignment should be held void because the assignee is not a citizen or resident of the State where the assignment is made and the debtor resides, provided he complies with the conditions prescribed by the law. A citizen, or resident, of another State may, in a particular case, be a very proper assignee. A large part of a debtor's assets may be located in a State other than that in which he resides. If a non-resident assignee should for any reason be (leemed an improper person to act as such, the court having jurisdiction of the matter could, according to the laws of Texas, remove him and appoint another in his place. It was the object of the act of 1879 to uphold, rather than to set aside, assignments; to aid defects, rather than to allow them to defeat
the purpose of the debtor and the rights of his creditors. In Windham v. Patty, 62 Texas, 490, the court held that the failure of the assignee to give a bond ought not to defeat the assignment, but that the creditors might apply for the appointment of another assignee to fulfil the trust. The 14th section of the act of 1879 declares that “if any assignee becomes unsuitable to perform the trust, refuses or neglects so to do, or mismanages the property, the county judge, or judge of the District Court, may, upon the application of the assignor, or one or more of the creditors, upon reasonable notice to all parties interested, by publication or otherwise, as such judge may direct, remove such assignee, and, in case of vacancy by death or otherwise, shall appoint another in his place, who shall have the same powers and be subject to the same liabilities as the original assignee.”
One or two other objections to the assignment are made under the special exception, but we do not deem it necessary to discuss them. They are clearly untenable. In our judgment it was error in the court below to allow the exception and dismiss the action. The judgment must be Reversed, and the cause remanded, with instructions to over
rule the exceptions, and take such further proceedings in the case as to law and justice may appertain.
YOUNG v. CLARENDON TOWNSHIP.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR
THE EASTERN DISTRICT OF MICHIGAN.
No. 34. Argued October 23, 1889. – Decided December 9, 1889.
It is settled law that a municipality has no power to issue its bonds in aid
of a railroad, except by legislative permission. The legislature in granting permission to a municipality to issue its bonds
in aid of a railroad may impose such conditions as it may choose. Where authority is granted to a municipality to aid a railroad and incur a
debt in extending such aid, that power does not carry with it authority to execute negotiable bonds except subject to the restrictions and directions of the enabling act.
The act of the legislature of Michigan of March 22, 1869, “ to enable any
township, city or village to pledge its aid by loan or donation to any railroad company, etc.," provided that the bonds when“ issued ” should be"delivered by the person
having charge of the same to the treasurer of this State;” that the treasurer should “hold the same as a trustee for the municipality issuing the same and for the railroad company for which they were issued;" that whenever the railroad company should " present to said treasurer a certificate from the governor of this State that such railroad company has in all respects complied with the provisions of this act... such of said bonds as said company shall be entitled to receive shall be delivered to said company; ” that the treasurer should endorse upon each bond delivered the date of its delivery and to whom it was delivered; and that in case the bonds were not demanded in compliance with the terms of the act within three years from the date of delivery to the treasurer, “the same shall be cancelled by said treasurer and returned to the proper officers of the township or city issuing the same.” The township of Clarendon, in Michigan, having complied with the requirements of the act on its part, delivered to the state treasurer its bonds to the amount of $10,000, dated July, 1869, for the benefit of the Michigan Air Line Railroad Company. The company completed its railroad before February, 1871, and became entitled to the governor's certificate under the act; but on May 26, 1870, the Supreme Court of the State had declared the act to be unconstitutional, and the governor in consequence thereof refused to give the certificate. On the 28th May, 1872, before the expiration of three years from their delivery, the treasurer returned the bonds to the township. November 12, 1884, the appellant obtained judgment against the railroad company and an execution was issued, which was returned nulla bona. On the 24th February, 1885, he filed a bill in equity against the township and the company, claiming that the township was equitably indebted to the company to the amount of the bonds and coupons with interest, and that he was entitled to recover the amount of that indebtedness, and to apply it on his judgment debt. Held, (1) That the municipal authorities had no power to deliver the bonds,
after their execution, except to the state treasurer, and that the word “ deliver” as used in the statute with reference to this act, was used in its ordinary and popular sense, and not in its technical
sense; (2) That to the governor alone was given the power to determine whether
the bonds should ever in fact issue, and, if issued, when they
should issue; (3) That the endorsement by the treasurer upon each bond of the date
of its delivery and of the person to whom it was delivered, was nécessary to make it a completed bond, and that this could not be
done until the governor's authorization was made; (4) That as the bonds were never endorsed and delivered by the treasurer
they never became operative; (5) That the rule in regard to escrows could be applied to these