페이지 이미지
PDF
ePub

Opinion of the Court.

confessed by the firm in favor of various defendants, some of whom were citizens of the same State with the plaintiff, might be set aside for fraud. On the allegations of the bill there was but a single controversy, as to all of the defendants. One of the defendants, who was a citizen of a different State from the plaintiff, removed the entire cause into a Circuit Court of the United States. After a final decree for the plaintiff, and on an appeal therefrom, this court held that the case was not removable under $ 2 of the act of March 3, 1875, 18 Stat. 470, and reversed the decree, and remanded the case to the Circuit Court, with a direction to remand it to the state court, the costs of this court to be paid by the petitioner for removal.

IN EQUITY. The cause was argued in full on the inerits. The case is stated in the opinion.

Mr. J. M. Flower, for appellant, to the question of jurisdiction cited: Capron v. Van Noorden, 2 Cranch, 126; Breithaupt v. Bank of the State of Georgia, 1 Pet. 238; Brown v. K'eene, 8 Pet. 112; American Bible Society v. Price, 110 U. S. 61; Sewing Machine Co. Case, 18 Wall. 553; Vannevar v. Bryant, 21 Wall. 41.

Mr. William J. Manning, for appellee, to the same point cited: Langdon v. Fogg, 18 Fed. Rep. 5; Kerling v. Cotzhausen, 16 Fed. Rep. 705; Sheldon v. Keokuk Northern Line Packet Co., 9 Bissell, 307; Barney v. Latham, 103 U. S. 205; Des Moines Navigation Co. v. Iowa Homestead Co., 123 U. S. 552; Bushnell v. Kennedy, 9 Wall. 387; Edwards v. Conn. Mut. Life Ins. Co., 20 Fed. Rep. 452.

MR. JUSTICE BLATCH FORD delivered the opinion of the court. í ,

On the 1st of March, 1883, Chester C. Corbin filed a bill in equity in the Circuit Court of Cook County, in the State of Illinois, against William A. Boies, Benjamin B. Fay, Lucius W. Conkey and Julius K. Graves, who had composed the limited partnership of Boies, Fay & Conkey, in which Graves was the special partner and the three others were the general partners, the partnership being formed under a statute of Illinois, and doing business in Chicago, as wholesale grocers and importers. The First National Bank of Chicago, Illinois,

Opinion of the Court.

Alvin F. Shumway, The Bay State Sugar Refining Company of Massachusetts, The First National Bank of Westboro', Massachusetts, Walter Potter, James M. Flower, Curtis H. Remy and Stephen S. Gregory, the last three being a firm of attorneys-at-law, under the name of Flower, Remy & Gregory, Seth F. Hanchett, sheriff of Cook County, Illinois, and twentyone other persons and corporations were also made defendants to the bill.

The bill set out that the plaintiff was the creditor of the said limited partnership, as being the owner of two promissory notes made and endorsed by it, and made the following averments : The limited partnership carried on business at Chicago from March, 1882, until January, 1883, and contracted debts during that time amounting to about $400,000. On the 13th of January, 1883, its assets were insufficient to pay more than about 50 cents on the dollar of its liabilities, and during the time named it borrowed large sums of money, by loans and discounts of commercial paper made by it. On or about December 2, 1882, the members of the partnership, knowing it to be insolvent, and with the intent to hinder, delay and defraud such of its creditors as they did not see fit to prefer, and in contemplation of its insolvency, and with the intent to prefer certain of their creditors, or pretended creditors, and to evade the provisions of the statute of Illinois, pretended to dissolve the partnership, and recorded in the office of the county clerk of Cook County a paper purporting to be a dissolution of it; but the paper was a mere device contrived by them to evade the provisions of the statute, and to give color of validity to the acts of Fay and Conkey, thereinafter set forth, in executing the judgment notes, warrants of attorney, and confessions of judgment thereinafter described. After the pretended dissolution Fay and Conkey pretended to carry on the business under the firm name of “ Fay & Conkey,” and assumed to be the owners of all the assets of the limited partnership. Boies and Graves pretended to release and convey to Fay and Conkey all their interest in such assets; but such release was void as against the creditors of the limited partnership. By the statute of Illinois, under which the partnership

Opinion of the Court.

was formed, all of its assets were pledged to the payment of its debts ratably, and it was the duty of the four partners, when they first had knowledge of its insolvency, or at the time of its pretended dissolution, to appoint a trustee to take charge of its assets and convert them into money and distribute the same ratably among its creditors. Fay and Conkey, on or about the 22d of January, 1883, in pursuance of said fraudulent scheme, executed in favor of six of the defendants seven promissory notes, payable on demand, with warrants of attorney annexed to confess judgment for such amount as might appear to be unpaid thereon, with costs and five per cent attorneys' fees, the notes amounting to $91,353.18, of which one note, for $40,000, was in favor of the First National Bank of Chicago, and one note, for $17,500, was in favor of the defendant Graves. On the 22d of January, 1883, judgments were entered in the Superior Court of Cook County, Illinois, against Fay and Conkey upon each of the seven notes, together with the costs and five per cent attorneys' fees, in favor of the six defendants mentioned, there being seven judg. ments in all, amounting in the aggregate to $95,965.83, of which one judgment was in favor of the First National Bank of Chicago, for $12,000, and one in favor of Graves, for $18,375. On or about the 22d of January, 1883, Fay and Conkey, in further pursuance of said fraudulent scheme, executed in favor of fifteen of the defendants fifteen promissory notes, payable on demand, with warrants of attorney to confess judgment annexed, amounting in the aggregate to $120,999.61, of which one note, for $27,000, was made in favor of Graves, one for $6990 in favor of Shumway, one for $10,000 in favor of The Bay State Sugar Refining Company of Massachusetts, one for $12,000 in favor of the First National Bank of Westboro', Massachusetts, and one for $1300 in favor of Potter. On the 22d of January, 1883, or between that day and the 26th of January, 1883, inclusive, there were entered in the Circuit Court of the United States for the Northern District of Illinois judgments against Fay and Conkey upon each of the last named fifteen notes, in pursuance of said warrants of attorney, together with the costs and five per cent attorneys' fees, in

Opinion of the Court.

favor of fifteen of the defendants, amounting in the aggregate to $127,044.61, of which judgments one was in favor of Graves for $28,350, one in favor of Shumway for $7339.50, one in favor of The Bay State Sugar Refining Company for $10,500, one in favor of the First National Bank of Westboro', Massachusetts, for $12,600, and one in favor of Potter for $4515. On or about the 22d of January, 1883, and immediately after the entry of the judgments in the Superior Court of Cook County, the defendants Flower, Remy and Gregory, as attorneys for the defendants Boies, Fay, Conkey and Graves, and as attorneys of record for the respective plaintiffs in those judgments, caused execution to be issued on each of them against the property of Fay and Conkey, to the sheriff of Cook County, who, by direction of the attorneys, seized and levied on a large quantity of merchandise, of the value of about $75,000, part of the assets of the limited partnership. The levy and seizure were made in further pursuance of said fraudulent scheme, and with intent to delay, hinder and defraud the plaintiff and other creditors of the limited partnership, and to give a preference to each of the defendants in whose favor the judgments were entered. The sheriff has sold the property seized, with the exception of about $12,000 worth which was replevied, and has in his possession about $54,000 as the proceeds of said sales. Immediately after four of the judgments in the Circuit Court of the United States for the Northern District of Illinois were entered, namely, that in favor of the Commercial National Bank of Dubuque, Iowa, for $14,962.50, that in favor of Graves for $28,350, that in favor of the Dubuque County Bank of Dubuque, Iowa, for $12,495, and that in favor of the Importers and Traders? National Bank of New York City for $16,800, the defendants Flower, Remy and Gregory, on the 22d of January, 1883, as the attorneys of Boies, Fay, Conkey and Graves, and as the attorneys of the plaintiffs in those four judgments, caused execution to be issued on each of them, directed to the marshal of the district, against the property of Fay and Conkey. The marshal, on the same day, returned those executions nulla bona. Thereupon, Flower, Remy and Gregory, as attorneys

Opinion of the Court.

for the plaintiffs in those four judgments, filed a creditors' bill in the Circuit Court of the United States for the Northern District of Illinois, alleging divers frauds on the part of Fay and Conkey, and praying for the appointment of a receiver. That court appointed as receiver the defendant Hancock, a brother-in-law of Flower, and the books of account and assets of the limited partnership were delivered to him by Fay and Conkey, and he has possession of them, and is collecting them, the drafts, notes, accounts and choses in action amounting to more than $210,000. Immediately after the entry of the judgments in the Circuit Court of the United States in favor of seven of the defendants, including Shumway, The Bay State Sugar Refining Company, the First National Bank of Westboro', and Potter, Flower, Remy and Gregory, as attorneys of Boies, Fay, Conkey and Graves, and as attorneys for the plaintiffs in said seven judgments, caused executions to be issued upon them to the marshal, against the property of Fay and Conkey. The marshal returned them nulla bona, and thereupon Flower, Remy and Gregory, as such attorners and on behalf of the plaintiffs in the seven judgments, filed a creditors' bill in the said Circuit Court of the United States, alleging that Fay and Conkey had concealed their property, and praying the appointment of a receiver. Hancock was appointed such receiver, or his first receivership was extended. The judgments in the Circuit Court of the United States were rendered in pursuance of the said fraudulent scheme on the part of Boies, Fay, Conkey and Graves. Upon the entry of each of the judgments before mentioned, there was added to and included therein a sum equal to five per cent of the original demand on which the judgment was rendered, as attorneys' fees for the entry thereof, the aggregate amount of such attorneys' fees being $10,657.65. That amount was an excessive charge for the service, and was charged for the purpose of absorbing to that extent the assets of the limited partnership, and Fay and Conkey are interested therein, and have some secret agreement with said attorneys for a division of that sum. Flower, Remy and Gregory are and have been the attorneys of Boies, Fay, Conkey and Graves, and are the

« 이전계속 »