Imágenes de páginas

that a carrier who breaks bulk and takes doors. There is nothing stated which warthe goods is guilty of larceny. Y. B. 13 Edw. rants us in doubting that all the transacIV. 9, pl. 5. The act is a trespass, as tions were in good faith. agreed in Keilwey, 160, pl. 2; Ward v. Although the first question does not refer Turner, 1 Dick. 170, 172, 2 Ves. Sr. 431, in terms to the statutes of Illinois, it is 443; Moore v. Mansfield, 182 Mass. 302, 303, proper to add that we see no sufficient rea95 Am. St. Rep. 657, 65 N. E. 398. So, son for denying to the place of storage the again, if the goods had been in a place character of a public warehouse. “Public under the exclusive control of the company, warehouses of Class C shall embrace all even without the company's knowledge, they other warehouses or places where property would have been in the company's posses- of any kind is stored for a consideration." sion. Elwes v. Brigg Gas Co. L. R. 33 Ch. Rev. Stat. chap. 114, par. 121, § 2. These Div. 562, 568; Reg. v. Rowe, Bell, C. C. sweeping words embrace any place so used, 93. See Barker v. Bates, 13 Pick. 255, 257, whether owned or hired by the warehouse261, 23 Am. Dec. 678; Northern P. R. Co. men; and, if so, they embrace as well a v. Lewis, 162 U. S. 366, 378, 379, 382, 41 place hired of the owner of the goods as L. ed. 1002, 1007, 1008, 16 Sup. Ct. Rep. one hired of anybody else. See Sumner v. 831. When there is conscious control, the Hamlet, 12 Pick. 76; Gough v. Everard, 2 intent to exclude and the exclusion of Hurlst. & C. l. If we are right in this, others, with access to the place of custody then the indorsement of the receipts transas of right, there are all the elements of ferred the property in the leather by the possession in the fullest sense. Gough v. express terms of the statute already referred Everard, 2 Hurlst. & c. 1, 8. Ancona v. to. Rev. Stat. chap. 114, § 24. If not, we Rogers, L. R. 1 Exch. Div. 285.

should come to the same result by the comWe deal with the case before us only. mon law; for even if we did not adopt the No doubt there are other cases in which argument of Mr. Benjamin, to which we the exclusive power of the so-called bailee have referred above, against the earlier view gradually tapers away until we reach those of Blackburn on Sales, 297, followed in in which the courts have held as matter of Farina v. Home, 16 Mees. & W. 119, still law that there was no adequate bailment. all the authorities agree that, if an assent Tradesmen's Nat. Bank v. Thomas Kent in advance is not enough, yet, as soon as Mfg. Co. 186 Pa. 556, 65 Am. St. Rep. 876, the bailee attorns to the assignee, the de40 Atl. 1018; Drury v. Moors, 171 Mass. livery is complete. The statement has not 252, 50 N. E. 618. So, different views have this point in view. But we should suppose been entertained where the owner has un- that a fuller statement would make it plain dertaken to constitute himself a bailee by that the warehouse company knew and asissuing a receipt. We may concede, for pur- sented to the transfers to the trust company, poses of argument, that all the forms gone if that be material, which we do not imply. through in this case might be emptied of See also Union Trust Co. v. Trumbull, 137 significance by a different understanding be- Ill. 146, 173, 27 N. E. 24; Millhiser Mfg. tween the parties, which the form was in Co. v. Gallego Mills Co. 101 Va. 579, 589, tended to disguise. But no such understand. 44 S. E. 760; Gibson v. Stevens, 8 How. 385, ing is stated here, and it cannot be assumed. 399, 12 L. ed. 1123, 1129. There is no reason even to infer it as a As we answer the first and second ques. conclusion of fact, if such inferences were tions in the affirmative, it is unnecessary open to us to draw. It is true that the to consider the third. evident motive of Flanders was to get his It will be so certified. goods represented by a document, for convenience of pledging, rather than to get Mr. Justice Harlan, Mr. Justice them stored, and the method and amount Brewer, and Mr. Justice Day dissent. of compensation show it. But that was a lawful motive, and did not invalidate his acts, if otherwise sufficient. He could get

(198 U. S. 477) the goods by producing the receipt and pay- DANIEL R. KENDALL, Appt., ing charges, of course, but there is no hint

v that the company did not insist upon its AMERICAN AUTOMATIC LOOM COMcontrol. It is suggested that the goods gave

PANY. credit to the owner. But, in answer to this, it is enough to say that the goods were not Direct appeal from circuit courtwhen juvisible to any one entering the shop. They risdiction in issue-writ and processcould be surmised only by going to the base- service on treasurer of foreign corporament, where signs gave notice of the com- tion. pany's possession, and probably could be seen only if the company unlocked the 1. The question of the validity of the service

a subpæna issued by a Federal circuit court | defendant corporation; that the domicil and upon the resident treasurer of a foreign cor residence of the defendant were in the state portion involves the jurisdiction of that court as a Federal court so as to sustain of West Virginia; the purpose of its incora direct appeal to the Supreme Court of the poration was the development of a selfUnited States under the act of March 3, 1891 feeding loom attachment, which gives to (26 Stat. at L. 827, chap. 517, U. S. Comp. the ordinary loom a continuous supply of Stat. 1901, p. 549), $ 5, from an order set- filling thread. It was further stated in the ting aside the service.

affidavit that the corporation was the owner 2. Service of a subpæna on the resident treas

urer of a foreign corporation is not sufficient of divers patents, but it had never manuto give the court jurisdiction over such cor- factured merchandise. It had never made poration, where, at the time of such service, a sale, and it had never engaged in the it was doing no business within the state, and transaction of the business for which it was never had done any business there since its incorporated. It had no business or assets incorporation.

in the state of New York, and had no office

or place of business there, and those of its [No. 541.]

officers who resided in that state were not

there officially, or as representing any busiSubmitted April 24, 1905. Decided Mayness or interest of the corporation. After 29, 1905.

the formation of the corporation, and be

tween the years 1898 and 1901, the meetings A of

United States for the Southern District at different places in the city of New York of New York to review an order setting where accommodations could be secured, aside the service of a subpæna on the resi- / sometimes at the office of the counsel of the dent treasurer of a foreign corporation. Af- company in New York, and sometimes at firmed.

a hotel; but since August 10, 1901, there

had been no meeting, either of the stockStatement by Mr. Justice Peckham:

holders or of the directors; and on the lastThis suit was brought against the de- mentioned date the stockholders were notifendant, appellee, for the purpose of obtain-fied that the company had no funds with ing a discovery of all the matters referred which to pay the franchise taxes which were to in the bill of complaint, and to have a due to the state of West Virginia, and receiver appointed of the assets of the com- affiant averred that no funds had since been pany within the state of New York, and for provided for that purpose; that since that an accounting by the directors of the de- date the company had transacted no busifendant, and for other relief.

ness, had maintained no office in the state The bill alleged that the plaintiff, at the of New York, and that an action had been time of filing his bill, was a citizen of the commenced by the state of West Virginia United States and of the state, county, and against it to terminate and forfeit its corcity of New York; that the defendant was porate franchise. The sole assets of the a stock corporation, organized in March, company consisted of two automatic looms 1898, and existing under the laws of the and tools and machinery employed in the state of West Virginia, and was incorpo- making thereof and its patents. The looms, rated to engage in the business of manufac- with machinery and tools, were in Attleturing and selling looms and weaving ma- boro, Massachusetts. The letters patent chinery, and that, by its charter, its prin- were also in the possession of a Mr. Mosscipal office and place of business was in the berg, in Attleboro, Massachusetts, who had city, county, and state of New York. The made divers attempts to improve the looms. bill of complaint, together with a writ of The company had no bank account, no office subpæna requiring the defendant to answer force, and no employees. It had never the bill, were served in the city of New York upon a person who had been the treas reached the stage of the active transaction urer of the defendant corporation. Within of business, and such assets as it possessed the proper time the defendant appeared were beyond the jurisdiction of the court. specially, for the sole purpose of question. No one had been elected treasurer in place ing the jurisdiction of the court, and of of Mr. Emery, so far as the record shows, moving to set aside the attempted service. and he was the treasurer of the company

The motion was founded upon the affi- when service was made upon him. davit of Joseph H. Emery, in which he An affidavit in opposition was filed by the averred, among other matters, that the sery- complainant, but the facts above set forth ice of the subpena had been made upon him were substantially undenied. The circuit in the city of New York, because (as he be- court, upon the hearing, granted the motion lieved) he had been the treasurer of the of the defendant to set aside and declare

25 S. C.-49.


(198 U. S. 561) null and void the attempted service on the GREAT WESTERN MINING & MANUcorporation of the bill of complaint and FACTURING COMPANY, by L. C. Black, writ of subpæna by the service thereof upon its Receiver, Petitioner, Joseph H. Emery, on or about the 13th day of December, 1904. The complainant has CHARLES A. HARRIS et al., Executors of appealed directly to this court from the

D. B. Harris, Deceased. order of the circuit court setting aside the service of the subpæna.

Receiversright to sue outside of state of

appointment. Mr. Noah C. Rogers for appellant. Mr. Benjamin N. Cardozo for appellee. The receiver of a corporation, with no other

title to its assets and property than that de

rived from his appointment in a suit brought Mr. Justice Peckham, after making the

to adjudicate and enforce liens and subject foregoing statement, delivered the opinion

the property to the payment of the claims of of the court:

creditors, cannot be empowered by the court It is objected, in the first place, by the of his appointment to sue in a foreign jurisappellee, that the appellant had no statu

diction, either in his own name or in that of

the corporation, to realize its assets. tory right to appeal directly to this court from the order setting aside the service of

[No. 217.) the subpæna. It is asserted that the case does not involve the jurisdiction of the Argued April 14, 17, 1905. Decided May court below within the meaning of g 5 of

29, 1905. the act of March 3, 1891 [26 Stat. at L. p. 549], inasmuch as the jurisdiction of Second Circuit to review a decree which re827, chap: 517, V. s. Comp. Stat. 1901

, ONS WRIT of Certiorari to the United

States Circuit Court of Appeals for the the circuit court as a Federal court is not versed a decree of the Circuit Court for the questioned, the jurisdiction being denied

District of Vermont, in favor of the reupon grounds alike applicable to any other ceiver of a foreign corporation in a suit to judicial tribunal, state or Federal, under

realize its assets. Affirmed. the same circumstances. This case is, how

See same case below, 128 Fed. 321. ever, on that point governed by that of Board of Trade v. Hammond Elevator Co.

Statement by Mr. Justice Day: (decided at this time), 198 U. S. 424, 25 Sup Ct. Rep. 740, 49 L. ed. — where it is held filed in the circuit court of the United

This case was begun by bill in equity, that the order is reviewable by this court States for the district of Vermont, in the under the section above mentioned.

Regarding the case as properly here, the name of the Great Western Mining & Manquestion is whether the service made upon tion, by L. C. Black, its receiver, against

ufacturing Company, a Kentucky corporathe treasurer of the appellee corporation B. D. Harris, a citizen of the state of Verwas a valid service upon the corporation

mont. It is averred that the corporation itself. We think it was not.

It is per- was duly organized under the laws of the fectly apparent that the corporation was, state of Kentucky. In substance the bill at the time of the service on the treasurer, sets forth: That the Great Western Mindoing no business whatever within the state of New York, and that it had never done ing & Manufacturing Company was organany business there since it was incorporated 19, 1856,

for the purpose of owning and op

ized by the Kentucky legislature on January in the state of West Virginia. While we erating mining property, and selling coal. have lately held that, in the case of a On or about February 10, 1859, it became foreign corporation, the service upon a resident director of the state where the service the owner of coal properties to the value of was made was a good service where that about $40,000, situated in Lawrence county, corporation was doing business within that Kentucky. The capital stock of said comstate (Pennsylvania Lumbermen's Mut. F. pany was $200,000, divided into 2,000 state (Pennsylvania Lumbermen's Mut. F. Shares of $100 each. That previous to NoIns. Co. v. Meyer, 197 U. S. 407, 25 Sup. Ct Rep. 483, 49 L. ed. -), yet such service

vember 10, 1887, the capital stock of the is insufficient for a court to acquire juris company was owned as follows: diction over the corporation where the com- B. D. Harris, the defendant herepany was not doing any business in the in, 600 shares, par value.... $60,000 00 state, and was situated like this company at G. D. Harris, 600 shares, par the time of the service upon the treasurer. value

60,000 00 Conley v. Mathieson Alkali Works, 190 U. John Carlisle, 440 shares, par S. 406, 47 L. ed. 1113, 23 Sup. Ct. Rep. 728.


44,000 00 The order of the Circuit Court was right, George W. Carlisle, 300 shares, and is affirmed.

30,000 00

par value

par value

par value

par value

par value

par value

James C. Holden, 4 shares, par

of whom the defendant was one, ostensibly value ..

400 00 in consideration of alleged betterments of Loren Hinsdale, 4 shares, par

said mining property, which betterments, it value ..

400.00 was pretended, were made and paid for out George S. Richardson, 52 shares,

of the net earnings of the company, which,

5,200 00 it was represented, had increased the value On November 10, 1887, the stockholders holders. Complainant alleges that no such

of the property belonging to the stockincreased the capital stock in the sum of betterments had been made, and if made $50,000, the same being distributed among they were paid for out of money borrowed the stockholders as follows:

upon the credit of the company, for which To B. D. Harris, 150 shares, par

an indebtedness then existed and still exists. value

$15,000 00 That in fact there had been no net earnings To G. D. Harris, 150 shares, par

which had been put into betterments by the value.

15,000 00 company, and that the issue of said stock To John Carlisle, 110 shares,

was without consideration, illegal and void,

11,000 00 and a breach of duty upon the part of the To George W. Carlisle, 75 shares,

stockholders and the directors of the cor

7,500 00 poration to its creditors. That said stock To George S. Richardson, 13

so issued still remains outstanding in the shares, par value

1,300 00 names of the parties to whom it was issued, To James C. Holden, l share,

or their assignees. That on May 13, 1889,

100 00 the directors of the company, of whom the To Loring Hinsdale, l share,

defendant Harris was one, and who were

100 00 also stockholders in the company, for the [The record she ys that this increase was purpose of defrauding said company, and in fact made on January 11, 1888, in pursu: their own use and benefit, the corporation

abstracting the assets of the company for ance of a meeting authorized to be called at that date in the meeting of November 10, then being insolvent, without means to pay


which floating indebtedness,

then 1887, and certificates issued January 14, 1888.)

amounted to $100,000, or more, agreed that On April 22, 1889, a further increase of they would obtain a loan of $300,000 for capital stock was had by adding 1,000 said company, said loan to be evidenced by shares of $100 each, which was distributed bonds to the number of 300, in the denomas follows:

ination of $1,000 each, to be secured by

mortgage upon the property of the comTo B. D. Harris, 300 shares, par

pany. That the issues of stock had been value

$30,000 00 made upon the consideration that certain To G. D. Harris, 300 shares, par

betterments had been added to the property, value..

30,000 00 and had been paid for out of the profits of To John Carlisle, 220 shares,

the operation thereof, which profits would

22,000 00 otherwise belong to the stockholders, when To George W. Carlisle, 150

in truth and fact the said company was shares, par value

15,000 00 largely insolvent, and had a mortgage debt To George S. Richardson, 26

of about $60,000 upon it, and a floating debt shares, par value .

2,600 00 of $100,000 or more. In fact, said company To James C. Holden, 2 shares,

had not made any net profits whatever, and

200 00 said betterments had not been made at all; To Loring Hinsdale, 2 shares,

or, if made, had been paid for out of the

200 00 earnings of the company, and no consideraThe complainant avers that at the time tion than that herein stated was ever paid the increases of capital stock were made by the stockholders for the stock issued to and carried out, the stockholders

That it was for the purpose of carformed a plan of issuing bonds and selling rying out the scheme of abstracting from the same, and that the issues and distribu- the company money arising from the sale of tion of said stock were made for the pur- the bonds, and for that purpose only, that pose of defrauding said company, and ob- said stock was issued to the defendant Hartaining, without consideration, the afore- ris and others. That said bonds were sold said shares of capital stock, and for the at a price of 85 cents on the dollar, includpurpose of selling the same to the company ing a bonus of 50 per cent of the par value in connection with the said loan, and de- of said bonds in the stock of the company; frauding the company out of a part thereof.that is, a purchaser of a $1,000 bond was That said issues of capital stock were made entitled to have with said bond $500 of the by the shareholders and board of directors,' capital stock of the company. That in pur.

had them.

par value

par value

par value

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par value

upon the


of the combination aforesaid the respecting the matters and things set up in said directors and stockholders furnishing the bill, and that the defendant be required said bonus stock were paid for the same to pay to the complainant the sums which from the proceeds of the sale of the bonds. may be found to be due by reason of the The stock was furnished as follows, in pur- matters and things set forth, and for gensuance of the said arrangement:

eral relief. An answer and replication were

filed, and the issues made up were heard By B. D. Harris, 450 shares, par value

$45,000 00 upon the pleadings and testimony. The

circuit court found the estate of B. D. HarG. D. Harris, 450 shares, par

ris, he having died pending the suit, liable value

45,000 00 John Carlisle, 336 shares, par

in the sum of $15,000, being the amount

Harris received from the company in exvalue.

33,600 00

change for the 300 shares of stock issued George W. Carlisle, 225 shares,

to him in April, 1889, and held that the es22,500 00

tate was not liable on account of the George S. Richardson, 39 shares,

amounts received by him for stock previpar value ...

3,900 00

ously issued to him, and was not liable to That out of the proceeds of the sale of the account for the amounts taken by other ofbonds the sum of $75,000 was distributed ficers, directors, or stockholders of the comamong the parties, as follows:

pany. The case in the circuit court is reTo B. D. Harris, the defendant

ported in 111 Fed. 38. Upon cross appeals herein ..

$22,500 00

the circuit court of appeals for the second To G. D. Harris

circuit reversed the judgment of the court 22,500 00

below To John Carlisle

16,800 00

the ground that the circuit To George S. Richardson

1,950 00

court had no jurisdiction of the action, as

the same could not be brought by the reTo George W. Carlisle .

11,250 00

ceiver in the name of the corporation, and That, as a matter of fact, when the stock if it could be maintained by the corporawas contributed the company was insolvent, tion, or in its behalf, no case was made for and could not carry on its business without a recovery, because of the consent of the making the said loan; that said stock was stockholders to the transactions complained worthless, and was sold to the company at of. 128 Fed. 321. The order appointing 50 cents on the dollar for the purpose above the receiver in the circuit court is found in mentioned, and thereafter said stock was the record, and is as follows: transferred to the purchasers of the bonds. “The above cause coming on this day to Then follow allegations as to the misman. be heard upon the motion of complainant agement of the company, and the wrongful for appointment of a receiver, and having payment of dividends, and the averment been fully heard and considered, it is orthat on or about September 12, 1892, one of dered by the court that said motion be the creditors of the company was compelled granted, and that the order hereinbefore ento make an application to the United States tered, appointing L. C. Black as temporary circuit court of Kentucky, wherein a request receiver, be continued, and said L. C. Black was made for the appointment of a receiver be and he is hereby appointed receiver of of the property and franchises of the com- all the property, rights in action, choses in pany for the purpose of realizing its as- action, and all assets of every description, sets, and distributing them among its cred- of the defendant, The Great Western Minitors; that in said proceedings all of the ing & Manufacturing Co., with all the powproperty of the Great Western Mining & ers and authority conferred by the order apManufacturing Company was sold, and was pointing him temporary receiver herein; found to be of the value of $75,666.66, which and that he is to act and continue to act unleft a large floating indebtedness of about der the orders hereinbefore made, and that $90,000, besides a large balance due upon he hold and keep the property and assets the bonded indebtedness, aggregating about arising from the funds of said business, or $270,000; that in said proceedings in the that may come into his hands, subject to United States court for the district of Ken- such order as may be made from time to tucky, L. P. Black was appointed receiver time; and it is also ordered that he shall of the assets of the company, for the pur- have power to purchase such current suppose of realizing upon the same for the plies as are or may be needed in the proper benefit of its creditors, and it is averred conduct and operation of the business of that, by special order of the United States said company.” court, said receiver had been directed to The application for the order to bring prosecute this suit, either in his own name this action sets forth: or that of the company, as may be proper.

“The receiver represents that he has asThe prayer of the bill is for an accounting 'certained from the books and records of the


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