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and items of personal property, including moneyed | Thus construing the statute, we have no doubt that capital aud credits of every description. These are to money at interest was used as the equivalent of be put down opposite to numbers. The first five num

money loaned

In ordinary parlance, “money at in. bers or items are as follows: "(I) Money on hand or terest” has reference more to money loaned than to on deposit, within or without this State, subject to interest-bearing notes and accounts received for propmy order, check or draft; (2) all money loaned by me erty sold. either on time or on call; (3) all bonds belonging to Section 6273, in giving a definition of the terms me, or in which I have any interest, issued by bodies “personal estate” and “personal property" as used corporate either within or without this State; (4) all in the act, provides that they shall include, among bonds belonging to me, or in which I have any inter- other things, all rights, credits, choses in action, all est, issued by public corporations, including State, bonds and stocks, all money at interest, and all other county, city, towu and all other bouds of this class; credits and investments. Here evidently the term (5) all shares of stock in any corporation formed out- “money at interest” does not mean accounts and side of this State, and also all shares of stock in any choses in action drawing interest, but money loaned. corporation formed in this State and conducting busi- In section 6286 the term “money loaded " is used, ness outside of this State."

and not the term “money at interest." Thus the From the above items the schedule makes no provis- terms “money loaned ” and “money at interest” ion for deducting the designated bona fide debts of the seem to be used in the act as convertible terms. If tax payers. It will be observed also that the above however there were an irreconcilable conflict between items do not include the "credits" mentioned in sec- 6332 and 6336, which provides the schedule, the latter tion 6332, supra. Nor do they include “money or in- must govern. The scbedule is the summing up and terest," except as that may be included in and as putting in shape for practical nse what is provided in meaning the same as mouey loaned. The only other the preceding sections. The schedule has beretofore number or item in the schedule material here is num- been regarded as controlling. It was so regarded unber or item 82, at the close of the schedule, which is as der the tax law of 1852, as amended in 1869. Clark v. follows: "(82) Credits (by which is meant whatever is Carter, 40 Ind. 190. It was so under the tax law of due to the party from any other person, company or 1872. Matter of Campbell, 71 id. 512. It may be obcorporation, in the shape of labor, property or money) served in passing that the act of 1872 is materially difamounting to $—, less my bona fide indebtedness ferent from the act of 188). And so the Supreme (subtracted from the credits), $ leaving a residue Court of the United States, in construing the tax law of credits amounting to $

This item in the of 1872, placed its decision upon the scbedule. Evansschedule is in perfect barmony with our construction mille Nat. Bank v. Britton, 105 U. S. 322. of section 6332, supra, and embraces the same kind of Upon the examination of the whole statute we are credits, and none other, from which the bona fide clearly of the opinion that the individual tax payer debts inay be deducted. It does not include the first may deduct his bona fide debts, of the class designated two items in the schedule-money on hand or on de- in the act, from all his moneyed capital and credits, posit, and money loaned on time or on call; nor does except from the classes specified in the first five items it include the items of bonds and stocks. It therefore of the schedule as above set out, viz., money on hand includes notes, drafts, mortgages and judgments held or on deposit, money loaned, bonds, and shares of or owned by tax payers, except they are to secure stock in corporations. money loaned; amounts due them for goods and va- The National Bank Act provides that the shares of rious manufactured articles sold at wholesale or retail, stock in the national banks may be subjected to taxa. for material furnished, for work and labor, for profes- tion under the laws of the State, with other personal sional services; amounts due upon public improve. property, “subject only to the two restrictions that ments, on accounts of land sold; and all other credits the taxation shall not be at a greater rate than is asof every description, due from any person, company or sessed upon other moneyed capital in the hands of iucorporation, in the shape of labor, property or money, dividual citizens of such State, and that the shares of except amounts due on loans on time or on call. And any national banking association owned by non-resithis is so, whether the notes, mortgages, judgments dents of any State shall be taxed in the city or town and the other items of indebtedness draw interest un. where the bank is located, and not elsewhere." Secder the provisions of our law. As a usual thing, notes tion 5219, Rev. Stats. U, S. and mortgages draw interest, and so as a general thing The limitations upon the taxation of shares of naother accouuts, for goods, raw material and manufac. tioval bank stock, imposed by the above section are tured articles sold, draw interest after the expiration imposed in almost the same language by our statute. of stated periods of credit. The fact then that cred. Rev. Stat. 1881, $$ 6306, 6307. It has been many times its may draw interest makes no difference under the held by the Supreme Court of the United States that schedule and section 6332, supra.

the authority of the States to tax shares of national Section 6335, at first blush, seems to be in conflict bauk stock is derived wholly from the above act of with the above sections as we construe them. That Congress, and that without the consent of Congress section is by way of a limitation upon deductions to these bank stock shares could not be taxed by State be made by the tax payer. It provides that “no per- authorities at all. McCulloch v. Maryland, 4 Wheat. 3on, company or corporation shall be entitled to any 316; Osborn v. Bank of U. S., 9 id. 378; Weston v. deduction from the amount of any bonds, stocks, Charleston, 2 Pet. 449; People v. Weaver, 100 U. S. money loaned, or money at interest,” etc. If "money 539-543. The authority and privilege of course must at interest as used in the section means any thing be exercised under the limitations and restrictioms different from money loaned-it in other words, it imposed. means that because accounts, notes, judgments, etc., The controlling questions then are: What are the may draw interest, they are “money at interest”- limitations and restrictions imposed? What is the then clearly the section that far is in conflict with the moneyed capital" as used in the act? schedule and section 6332, supra. It is a settled rule Were we at liberty to place our own construction that in the construction of a statute all of its various upon the act, we should be very strongly inclined to sections and provisions must be construed together, hold that “moneyed capital," as therein used, has refgo as to ascertain the intention of the law makers, and erence to capital invested as an investment for profit, make the statute in all its parts consistent as a whole. whether ip bonds, stocks, money loaned, or otherwise,

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and not to debts due to the tax payer growing out of it denies the same right of deduction from the cash
the ordinary affairs of business life. Such substan- value of bank shares, operates to tax the latter at a
tially is the dissenting opinion of Chief Justice Waite, greater rate than other moneyed capital.”
concurred in by Justice Gray, in the case of Evansville There can be no doubt that under these decisions all
Nat. Bank v. Britton, supra. The court in that case credits, of whatever nature-which includes the cred-
however adopted a different construction, and it is its from which the tax payer may deduot his bona fide
the duty of this court, as it is the duty of all State debts, as here decided, whether interest-bearing or not
courts, to follow the construction placed upon the act ---are moneyed capital in the sense in which the term
by that court. The above case arose under the assess. is used in the act. And under these decisions also
ment law of 1872, and the questions were, what is statutes which allow the tax payer to deduct his debts
meant by “moneyed capital" as used in the above act from such moneyed capital, and deny this right to the
of Congress ? and whether the owner of national bank holders of shares of national bank stvok, must yield to
stock, having the designated bona fide debts, might the paramount act of Congress which inhibits such dis-
deduct them from the assessed value of the shares of crimination.
stocks. It was held that he could, and that

But what shall be said when the tax payer is allowed eyed capital” includes not only bonds, stocks and to deduct his debts from a part of his moneyed capimoney loaned, but all credits and demands of every tal, as here beld-from his moneyed capital other than character in favor of the tax payer.

bouds, money loaned, and shares of stock? The act of Mr. Justice Miller, speaking for the court, in stating Congress, as it has been held, does not require absoand deciding the case, said: “The objection made to lute equality, as that is difficult, if not impossible, of the Indiana statute is the same as that made against attainment. The cases hold however that the intention the New York statute, namely: that it permits the of Congress in the enactment of the statute was not to tax payer to deduct from the sum of his credits, permit any substantial discrimination in favor of monmoney at interest, or other' demands, the amount of eyed capital in the hands of the tax payer, as against his bona fide indebtedness, leaving the remainder as capital invested in shares of national bank stock. the sum to be taxed, while it denies the same right of Boyer v. Boyer, supra. deduction from the cash value of bank shares. A dis- In that case, at page 693, in speaking of the case of tinction is attempted to be drawn between the Indi. Hepburn v. School Directors, 23 Wall. 480, Harian, J., ana statute and the New York statute, because the said: “That case is authority for the proposition that former permitted the deduction of the tax payer's in- a partial exemption by a State for local purposes of debtedness to be made from the valuation of his per- | moneyed capital in the hands of individual citizens, sonal property, while in Indiana he can only deduct it does not of itself, and without reference to the aggrefrom his credits; and undoubtedly there is such differ- gate amount of moneyed capital not so exempted, esence in the laws of the two States. But if one of them tablish the right to a similar exemption in favor of pais more directly in conflict with the act of Congress tional bank shares held by persons within the same than the other, it is the Indiana statute. In the sched- jurisdiction. But it is by no means an authority for ule the subject of taxation from which the tax payer the broad proposition that national bank shares may may deduct his bona fide indebtedness is placed under be subjected to local taxation when a very material three heads, as follows: ‘(1) Credits or money at in- part, relatively, of other moneyed capital in the hands terest, either within or without the State, at par value; of individual citizens within the jurisdiction or taxing (2) all other demands against persons or bodies corpo- district is exempt from such taxation." rate, either within or without this State; (3) total Again, at page 695, in speaking of the cases generamount of all credits.' The act of Congress does not ally, it was said: “These decisions show that in whatmake the tax on personal property the measure of the over form the question has arisen, this court has tax on bank shares in the State, but the tax on mon- s'eadily kept in view the intentiou of Congress not to eyed capital in the hands of individual citizens. Cred- permit any substantial discrimination in favor of monits, money loaved at interest, and demands against eyed capital in the hands of individual citizens as persons or corporations are more purely representa- against capital invested in the shares of national tive of moneyed capital than personal property, so far banks." as they can be said to differ. Undoubtedly there may And still further, at page 701: “But as substantial be such personal property exempt from taxation with equity is attainable, and is required by the supreme out giving bank shares a similar right to exemption, | law of the lavd, in respect to State taxation of nabecause personal property is not necessarily moneyed tional bauk sbares, when the inequality is 80 palpable capital. But the rights, credits, demands and money at as to show that the distrimination against capital ininterest mentioned in the Indiana statute, from which vested in such shares is serions, the courts have no bonaffide debts may be deducted,all mean moneyed cap. discretion but to interfere." ital invested in that way. It is unnecessary to repeat In that case the State of Pennsylvania had exempted the argument in People v. Weaver, 100 U. S. 539, on this from local taxation fur county purposes mortgages, point. We are of the opinion that the taxation of judgments, etc., and imposed such local taxes upon bank shares by the Indiana statute, without permitting the shares of nationol bank stock. It was held that the shareholders to deduct from their assessed value the result was a material inequality, and that the bank the amount of his bona fide indebtedness, as in the stock could uot be taxed for such local purposes. See case of other investments of moneyed capital, as a dis- also First Nat. Bank, etc., v. Treasurer, etc., 25 Fed. crimination forbidden by the act of Congress."

Rep. 749; Ruggles v. City of Fond du Lac, 53 Wis. 346. In the case of Boyer v. Boyer, 113 U. S. 689, Mr. Jus- The California statute as in force in 1880 provided tice Harlan reviewed the cases, and from them deduced that "in assessing solvent debts pot secured by mortcertain rules for the construction of the above section gage or trust deed, a deduction therefrom shall be of the National Bank Act, the second of which is as made of debts due to bona fide residents of the State," follows: "That a State law which permits individual but did not allow a like reduction from the assessed citizens to deduct their just debts from the valuation value of national bank stock. It will be observed that of their personal property of every kind other than the statute, like ours, does not allow such deductiou national bank shares, or which permits the tax payer from all moneyed capital. In the case of Miller v. to deduct from the sum of his credits, money at inter- Heilbron, 58 Cal. 133, after quoting from the opinion est, or other demands, to the extent of his bona fide in the case of People v. Weaver, 100 U. S. 543, which inindebtedness, leaving the remainder to be taxed, while volved a statute of New York allowing a deduction of

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debts from the value of all personal property except There are many things of which the courts must from shares of national or State banks, it was said, so take judicial potice. For example, they take judicial far as the immediate question is concerued, “there is notice of the seasons, and the general course of agribut one difference between the law of New York and culture (Abel v. Alexander, 45 lud. 523; Tomlinson v. the laws of this State a difference in degree." It was Greenfield, 31 Ark. 557); that whiskey, beer and giu held, that so far as the State statute denied the deduc- are intoxicating (Myers v. State, 93 Iud. 251; Eagan v. tion to the holders of national bank stock, it was in Stute, 53 id. 162); that ale is malt liquor (Wiles y. State, conflict with the act of Congress.

33 id. 206); of the time it takes to go from one city to The holding of the above cases is that the taxing laws another (Fitzpatrick v. Papa, 89 id. 17; see also Pearce of States cannot be upheld as against the act of Con- V. Langfit, 101 Penu. St. 507); of the geography of the gress so far as they may discriminate against national country, and that a point ou a railroad one mile from bank stock by directly exempting a portion of other Rosedale is in Park county (Terre Haute & I. R. Co.v. moneyed capital from taxation, or by doing the same Pierce, 95 Ind. 496); of the population of towns and thing in allowing a deduction of debts from the as- cities (K'albrier v. Leonard, 34 id. 497); of the meaning sessed value of a portion of other inoneyed capital and of “C. 0. D.” (United States Exp. Co. v. Keefer, 59 id. devies the same deduction to the holders of national 263); and the meaning of “S. E. X of N. W. sec. 18, hank stock, when such discrimination is so palpable as T. 21 N., R. 7 E.-40 acres” (Jordan Ditching, etc., to show that it is material and serious; and that when Ass'n v. IVagoner, 33 id. 50; Frazer v. Stale, 7 N. E. Buch is the case, the holders of shares of national bank ep. 203); that the use of a farm in summer is worth stock will be allowed to deduct their debts the same more than in winter (Ross v. Boswell, 60 Iud. 235); of as the owners of other moneyed capital. Our statute the duties and powers of cashiers of banks (Farmers', makes no provision for deducting debts from the as- etc., Bank v. Troy City Bank, 1 Doug. (Mich.) 457; sessed value of shares of national bank stock, but as we La Rose v. Logansport Nat. Bank, 102 Ind. 333, 340; have seen, allows such deduction from a portion of Sturges v. Bank of Circleville, 11 Ohio St. 153); of the other moneyed capital, and thus discriminates against facilities of travel between different points (Hipes v. national bank stock. Is that discrimination so mate-Cochran, 13 Ind. 175; Manning v. Gasharie, 27 id. 399); rial and serious that the owners of such shares of stock of the fact that there are classes of notes and bills are entitled to deduct their debts notwithstanding the other than bank bills in circulation iu this State as statute? That depends upon the amount of moneyed money (Hart v. State, 55 Ind. 599); of the general pecapital from which the debts of the tax payer may be cuniary conditiou of the country as a part of the hisdeducted as compared with the whole of the moneyed tory of the times (Ashley's Adm'x v. Martin, 50 Ala. capital of the State.

537); of the division of the Methodist Church into the This case comes here upon a demurrer to appellee's Methodist Church North and the Methodist Church complaint for an injunction. Unless the court may | South (Ilumphrey v. Burnside, 4 Bush, 215, 225); that take judicial notice of the fact that the moneyed capi- | ice-cream freezers had been in use before the invental from which the tax payer may deduct his debts, as tion for freezing dead bodies or fish (Brown v. Piper, 91 here decided, is a material portion of the whole mon- U. S. 42; Terhune v. Phillips, 99 id. 592; King v. Gal. eyed capital of the State, the complaint is fatally de- lun, 109 id. 99). "The courts of the State are bound to fective, because it contains no averment as to that take notice from its general history, that during and fact.

since the war of the Rebellion the adjutant-general of Our statute provides that matters of which judicial this State has made records of the muster-rolls of the notice is taken voed not be stated in a pleading. Rev. | different regiments of volunteers furnished by this Stat. 1881, $ 374. May the court take judicial notice of State in the military service of the United States." that fact? As we have seeu, for the purposes of taxa- Board, etc., v. May, 67 Ind. 562. Upon the general tion in the hauds of the tax payers, the whole of the subject of judicial knowledge, see Busk. Pr. 15 et seq., moueyed capital of the State, as specified in the sched- / aud cases there cited. ule provided by the tax law, cousists of money on Mr. Greeuleaf says: “In fine, courts will generally hand or on deposit within or without the State, money take notice of whatever ought to be generally known loaned, bonds issued by bodies corporate, bonds issued within the limits of their jurisdiction." 1 Greenl. Ev. by public corporations, and shares of stock iu corpora- 86, pp. 12, 13; Brown v. Piper, 91 U. S. 37, 42. tions, which includes shares of bank stock. For con- In speaking of what courts will take judicial notice, venience, these several items may be regarded as con- it was said in the case of Ho Ah Kow v. Nunan, 5 stituting the first division of the moneyed capital of Sawy. 552, 560 : “ Besides, we cannot shut our eyes to the State. From the assessed value of none of them matters of public notoriety and general cognizance. can the debts of the tax payer be deducted. Another When we take our seats on the bench, we are not division includes all other moneyed capital of the struck with blinduess, and forbidden to know as State, the items of which consist, as we have also seen, judges what we see as meu. of notes, mortgages and judgments, except for money To hold in the case before us that it was necessary loaned; amounts due for goods, wares and merchan- to aver and prove that the above second division of dise of all kinds-raw material, farming implements, the moneyed capital constitutes a large and material machinery, and manufactured articles of all kinds part of the whole moneyed capital of the State would sold at wholesale or retail; amounts due for labor and be to hold that the courts cannot know judicially what professional services; amounts due upon public im- must be knowu to the mass of the people, and what provements on account of sales of real estate, live- any intelligent person would be reluctant, if not stock, and farm products; and all other credits of ashamed, to confess he does not know. every description due from any person, company, or To say that from the division of the moneyed capicorporation, whether drawing interest or not, except tal the tax payer may deduct his debts, and that the as included in the first division above. These several holders of shares of national bank stock, having no items, which form the assessed value, from which debts other credits from which to deduct their debts, may may be deducted, may be regarded as constituting the not deduot them from the assessed value of such second division of moneyed capital of the State. That shares of stock, would be to establish such an inequalthe second division constitutes a very large and mate- ity and discrimination against capital invested in such rial part of the credits iu the business of the State, and shares of stock as the act of Congress, with the interthus a very large and material part of the whole mon. pretations given it by the Supreme Court of the United eyed capital of the State, is a matter of such common States, will not tolerate. The statutory privilege to tax knowledge as to be known to the courts.

payers of deducting their debts from the above second

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division of moneyed capital is practically to relieve the samo fails to be binding under the statute, held, also, most, if not the whole, of that capital, from taxation, to be void as a common-law obligation. It is conand leave the burdens to rest upou other property, intended on the part of the defendant in error that as cluding other moneyed capital. A tax payer having the “action is brought on an objection voluntarily enthat kind of moneyed capital may have a deduction of tered into and solemuly acknowledged, and for a valhis debts from the assessed value thereof, while an- uable cousideration (the liberty of the accused),” etc., other, not having such capital, but having money on “it is a binding obligation, whether the sheriff bad hand or ou deposit, money loaned, and bonds and authority to take it or not.” Iu other words, that stocks (other than shares of national bank stock), may conceding that the recognizance was taken without not have such a deduction. If there is any inequality authority of law on the part of the officer taking it, or wrong in that, as between citizen tax payers, it is a still it is binding as a common-law obligation, and may matter wholly for the Legislature.

be euforced. I have carefully examined the numerThe holders of shares of national bank stook are ous cases cited by counsel on either side upon this upon an equality with tax payers having moneyed cap- proposition. I find two cases, and ouly two, in which ital of the second division abore; and if as between it is squarely held that a recognizance, taken without such holders and tax payers owning moneyed capital authority in a criminal case, may be enforced as a of the first, and not of the second, division above, common-law bond. These are State v. Cannou, 34 there is an inequality, it is a matter for the Legislature | Towa, 325, and Dennard v. State, % Ga. 137. Neither and for Congress. The Legislaturo may so shape the of these cases are reasoned at all, nor does the Iowa State law as to result in this inequality. Against such case cite a single authority. The Georgia case cites legislation there is no inhibition in the National Bank three very old English and one South Carolina case; Act. Possibly the Legislature might avoid this ine- the former involving questions of obligatiou between quality, if it be such, by providing that tax payers, not individuals, and the latter a bond for the support of a having shares of national bank stock, may deduct bastard. From these and other authorities it is well their debts from all or a certain portion of their mon- settled, that in matters between iudividuals, a bond eyed capital, and giving the same right to holders of or other obligation given by one to the other, upon a shares of national bauk stock to deduct their debts lawful and adequate consideration, although such from a like proportion of their moneyed capital. Pos- bond or obligation may be deficient in matter of form, sibly Congress might amend the National Bank Act to or in the manner of its execution, ackuowledgment, advantage. Doubtless many holders of shares of na- delivery or filing, yet where it is deficient to serve its tional bauk stock may have moneyed capital of the beueficial purpose to the party at whose instance or for second division alone; and if so, they may deduct whoso avail the same is given, it will be held binding their debts from its assessed value, and thus the priv-according to its terms. But I do uot think that these ilege of deducting their debts from the shares of stock authorities apply to a case like the oue at bar. Most in such cases can injure no one, as the debts can be of these cases arise upon appeal or forthcoming bouds, deducted but once. That shares of national bank where although a certain sum is fixed as a penalty to stock are taxed by State authority at all is a matter of be forfeited upon the failure of the party for whose grace or license, and not of right-80 the Supreme benefit the obligation is given to prosecute his appeal, Court of the United States holds. The States there-etc., or to deliver the property, yet the real measure of fore must tax shares of stock in accordance with that damages-the amount for which judgment is rendered license.

on such obligation-is the costs of suit, or the value, After a thorough re-examination of the question in- use of, or damage to such property, within the limit volved, we are constrained to hold, that under the of the penalty named in such bond or obligation, and averments of the complaint, the stockholders therein with no other reference to it. Iu such cases the causo named are entitled to deduct their just debts from the of action exists independent of the bond or recogniassessed value of their shares of national bauk stock. zauce, and its only office is to fasten liability upon the

It has been suggested in argument that we ought it surety; but in the case of a recognizance for the appossible, to rule otherwise, in order that the case pearance of an accused person to answer to an indictmight go upon appeal to the Supreme Court of the ment, the obligation rests primarily and solely upon United States for a decision by that tribunal. We the paper itself; and the amount of the judgment is should be glad to have the case thus appealed, but we

fixed and determined by the penalty named in the could not make a different ruling without disregarding paper.

The law does not favor penalties or forfeitour deliberate judgment, and placing this court, as we

When exacted, the authority therefore should think, in an attitude of insubordination and hostility rest upon express law. aud not upon construction or to the Supreme Court of the United States. It is the implication. To hold that an unauthorized person province of that court to interpret the acts of Con- may accept a recognizance running to the State, which gress, and the duty of the State courts to adopt and will bind the person entering into it, is to hold that one follow such interpretation.

private, unauthorized person may make another the The court below, at Special Term, sustained a de- debtor of the State-a proposition illogical in theory murrer to the complaint. That ruling was reversed and dangerous in practice. While I desire to place at General Term. The judgment at General Term is this decision rather upon principle than upon authoraffirmed at appellant's cost.

ity, yet it must be admitted that the weight of auElliott, J., did not sit.

thority on this branch of the case is with the plaintiff in error. In the case of Powell v. State, 15 Ohio, 579, the point was squarely presented, and the majority of

the court held that a recognizance taken before one of ABSTRACTS OF VARIOUS RECENT DE

the judges of the Court of Common Pleas-a court CISIONS.

composed of three judges-while the court was in ses

sion, was void as well at common law as under the BAIL - RECOGNIZANCE DEFECTIVE COMMON-LAW statute. This case was followed with approval in the BOND). A recognizance of the appearance of an ac- later case of State v. Clark, id. 595. The case of Wilcused person to auswer to an indictment for felony, | liams v. Shelby, 2 Or. 144, was while Williams, as treastaken before and approved by an officer or person un- urer of the county, sued Shelby as security on a boud authorized by law, or where under the facts of the case executed by him for the appearance of one Potterson the taking thereof is unauthorized by law, so that the to answer to a charge of felony. The boud was taken

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by a justice of the peace, and it appears from the opin- injury to the other. Minnesota Val. R. Co. v. Doran, ion that there being no law then in force in that State 15 Miun. 230 (Gil. 179); St. Paul & S. C. R. Co. v. Murauthorizing justices of the peace to take such bonds, phy, 19 id. 500 (Gil. 433). And in numerous cases in. it was held by the Circuit Court void as a statute bond | volving contests of, this kind the use to which the but valid as a common-law undertaking. Upon error property has been devoted has been deemed an imto the Supreme Court the judgment was reversed. portant consideration in determining whether lands, Harris v. Simpson, 4 Litt. 105; S. C., 14 Am. Dec. 103. being in one body, should be deemed one tract, or Neb. Sup. Ct., Sept. 8, 1886. Dickinson P. State. Opin- several distinct tracts, for the purposes of the assession by Cobb, J.

ment of compensation. Winona & St. P. R. Co. V. CERTIFICATE OF STOCK-TITLE-FRAUD-POWER OF

Denman, 10 Minn. 267 (Gil. 208); Minnesota Val. R. BLANK - INNOCENT PURCHASER FOR

Co. v. Doran, supra; St. Paul & S. C. R. Co. v. Mur. VALUE.-(1) One claiming under the transfer of a cer

phy, supra; Sherwood v. St. Paul & C. Ry. Co., 21 id. tificate of stock acquires no more than the title of the

122; Sherwood v. St. Paul & C. Ry, Co., id. 127; Wilmes transferrer, and should that bo vitiated by fraud, he

V. Minneapolis & N. W. Ry. Co., 29 id. 242. In these cannot rely upon his own good faith or the payment of

and in other like cases such use, sometimes disputed, value as a defense against the injured party. (2) Where

as in the case of Doran v. Murphy, supra, would have an owner of a certificate of stock signs a power of at

been unimportant, if the mere contiguity of the lands torney accompanying it, leaving a blauk for any name

had been deemed enough to entitle the owner to the holder may see proper to insert, as that of the one

compensation in respect to the whole. If the several by whom the authority is to be exercised, and delivers

lots of which this block consists had been actually apthe certificate, etc., to another, who obtains from a

propriated to distinct uses, the owner would not have third person, who is misled by the acts of the owner

been entitled to compensation in respect to lots no of the certificate, an advauce of money upon the faith

part of which was taken. Minnesota Val. R. Co. v. of the certificate, the first owner would be estopped

Dorau, supra. It is more doubtful whether, the lands from successfully claiming that the stock rightfully and being unoccupied, he may recover compensation for entirely belonged to him, because the one to whom he

the whole as one tract. It is perhaps impossible to eshad delivered the certificate had not fulfilled the trust

tablish any rule applicable to such cases which will reposed in him, but had disposed of the stock for his

not be subject to criticism. But in respect to city own benefit. (3) A. procured from B. a certificate of property, in fact unoccupied, but which appears to stock for a certain purpose, which certificate was at

have been platted or divided into blocks and lots, tended with a signed power of attorney in blank; A.

nothing more being shown, the property should be failed to use the certificate, as it was understood and

treated as lots or blocks, intended for use as such, and intended he should when he received it, but used it for

not as one entire tract. Prima facie that character a totally different purpose, viz., being insolvent and

has been given to it by the proprietor. Presumably being indebted to C., he, in consideration of C. ac

the division or platting was with a view to the use of cepting certain promissory notes at ten, sixty and

the property, or to its disposal or ultimate use, in ninety days, and not bringing suit till they matured,

such subdivisions as have been made; and if any facts pledged to C. the certificate as collateral. Held, the

exist which might be considered sufficient to rebut pledge to C. was not such a purchase for value as to

this presumption they should be disclosed. Min. cure the defect in his title, or preclude B. from re

Sup. Ct., July 15, 1886. Wilcox v. St. Paul & N. P. Ry. claiming his stock on the ground of fraud. Penn.

Co. Opinion by Dickinson, J. Sup. Ct., April 5, 1886. Appeal of Linnard. Opin- GUARDIAN AND WARD-LIABILITY OF SURETIESion per Curiam.


on the second bond should be held liable for any ex DERED BY RELATIVE.-A. and B., a married couple,

cessive commissions retained by and allowed to the living alone, having from advanced age become in a

guardian iu the previous annual settlements. The great measure unable to take care of themselves, their

Probate Court has power to require the guardian “to childreu, who were all married, of their own volition

give a new bond or additional security.” The bond in arranged, that among them they would attend to the

this case is a new one, and it is conditioned that said wants of the parents during the day, and C., an un

Jones "shall take due and proper care of said James married grandsou, residing with his parents upon a

H. Locke, and manage and administer bis estate," portion of the same lot with A. and B., should sleep at

etc. The general rule is that sureties are not liable for their residence at night; this was done for about four past defaults unless made so by the terms of the bond. years, and until A. and B. died. Held, that in the ab

Farrar v. U. S., 5 Pet. 373; Murf. Off. Bonds, $ 300. seuce of proof of authority from A. to his children to

This rule evidently applies when the bonds are given arange with C. to sleep in the house, etc., that C. could during the same appointment or term of office, as well not recover compensation from the estate of his grand

as where there are different bonds under successive apfather for so doiug. Penn. Sup. Ct., April 5, 1886.

pointments. There is nothing in this bond, or the

statute under which it was made, which gives to it a Appeal of William P. Moyer. Opinion by Clark, J.

retrospective operation. The plaintiff cites several EMINENT DOMAIN-APPROPRIATION -- RAILROAD - cases in this court to show that there was a default DAMAGES. -Iu proceedings to condemn for railroad after as well as before the date of the second bond. purposes two vacant city lots, the owner of which also

State v. Fields, 53 Mo. 474, and Haskell v. Farrar, 56 asserted title to the entire block (also vacant and un- id. 497, only hold that sureties on the first bond are occupied) of which the two lots were a part, nothing not relieved by a second, given upon an order mede being shown in respect to the appropriation of the by the court of its owni motion. In State v. Drury, 36 property to any use, except the fact that it had been Mo. 282, the curator made breach of the first bond by : surveyed and platted into ordinary city lots, held, converting the money of the ward to his owu use. He that the land-owner was not entitled to compensation gave a second boud, and carried the amount of money for injury resulting to other lots than the two touched before converted into his subsequent settlements, so by the railroad. although the whole comprised one that the sureties on that bond had been held liable, body or block of land. If one own distinct, although and a judgment had been rendered against them. All coutiguous, farms, from ove only of which the land is this, it was held, did not relieve the first sureties, betaken, he is not entitled to compensatiou for resulting cause the breach was made under the first bond. Iu

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