:'a
prQvisi. stllte process! and-: procedure, rqr i.curing to a >litigaI!l1l10,:s. fedel'alcol1tt: similar remedies b;Y"attachmeht .to;those· :thelitigantidn:al state court. That cOnclusion is reached both as an inference from the course of legislation, and' by: coo.shleraticmsof:reasOD1.311d,justice; f1lr'!'notbingcan be more .unjust than ,that a person. should ,ha:ve: hiiuights;passed upon aniLfinallydecided by upon Hlm),b,Y which he '#llll'i'ave notIce; whicJ9wlUenable.lhm to appearhnd defend' himself." :Tdktiid v. case as . full 0(fS'7·2, the secured, \without in anyway confli.cting with the proviso which restricts thejuris· diction of the circuit. court. The 'defendant is personally before the paving been sen:edwithprocess. JIe had abundant ,notice, and, by pleading.to merits, admits that this COUl:t has jurisdiction of his person; and that it has juris4icti(m of. the suboftlle the act of May 20, 1826, ,(Rl;lV, St. U. S. § 985,) giveait jurisdiction of .this very property, by JProvi4ing that execution;p·flOn sl,lChjudgment as may be entered in this run into, and be executed in, any part.of the state. Neither J'l;lallon nor forbids our construing the act of 1872 (ReY. St..§ 915) so .o,s W,entitle tpep1aintiff in this.ca.se to a warrant of which IIjIlY. rUB. against property of the defendant in any zeq:uniy of ·.· $ ill no proper sense enlarges the Juri!3diction of the ,fEl,<il.er,a,l courts. . . ,&ince tlle pasBag&jof,theil,ct of 1872, the Code ofPr()cedure of this ..tate has been superseded by 'C(Hle ,Civil Proc. :1876, c. 448; Code CivilPrqc. 1877, § 416. The only-modification, in t/:}e practice upon attachment, which at all affects this case, .ia the provision in seption.641 that. the warrant may be directed, tpthe sheriff of a partiQu,larcoullty, or generally to the .sheriff of any county:. " 'I'his. provision., i ",hich is the one now in. force, and in ,fQrmityto which the "'llJ'l'ant is,llilelJted, was, with aU others relating to p,ttachment contained .in- the New. :CQQ.e, adopted by r\11eof this court, in conformity to tile ,provisions of the act of 1872, (Rev. St. § on October .The motion. to vacate attachment is denied, the /iltay vacated·
act
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(Ci7!cUU Oourt,W;'D: Mi88bUr'£, "J:;,-Il:'
w. D.
March 8.
,10 ;MmuOIP,lLCORPOH4TION,h-Vioi»: BOND8H-JillPLIBD ·t'ROlllIllB. _ ', ". :, Bonds.of a p,ity. being voidbec,,:u,e iJ!,ll,ll!l<;lundor an act ,COIISt. Mp. 1865, , shall Ii . its credtt to,any:corperatlon unlesstwD-:lthitds. of.the qualifled voters assent theteto, tb.e qa1:\not maintain. an act;ion money had and to recover the amount pmd to the citY for such'bonds; aS,the city having n6power to .create nobiiplied ipr{)mise can IlriiefQl' its payment, notwithstalIdihg, Gen.
at. 140. 41, § 7,gives tile board6f tl'\lstees power "to borrow money improvement" of the town, the money been borrowed in violation of the co:lstitutiol1, and not for the improvement of the town, but to buy a right· otway and depot grounds for a raUJ'Qad. , ' 9. An a<;tion upon au implied promise by'" city to repay mane,. received for void '!Qunicipal bonds accrues at the time the payment is made, and not from tho time the bonds are adjudged raid, or from the of his mistake. by plaintiff, in the absence of fraud ulent concealment by defendant, from the time of demand. S. BAlm. Though illegal bonds of a city be regarded as voidable only at the will of the city, an action' as fOI money had alld received is barred by Rev. St. Mo. § 8980, limiting' actions on implied promisesw five years,where, more than five years before action bJ'Qug1jt1i, the city refused to l'ay interest thereon, and pleaded in an action thereon that thJY were void, though it was stipulated in that action that the suit might be' continued till decision in another suit involving the validity o.f similar bondB; 'aB on 'Uttra Vires plaintiff i llOuld abandon his suit, and Bue on the promISe, BAMlll...,.LIJ-fITA.TION OF Ol'.THE STATUTE. ,
At !JJ.w. Action for money-had'and received. J. B. Henderson and J. M. Lewis, for plaintiff. Burton &0 Wight, for defendant. PHILIPS, This is an aotion for money had and received,and' grows out of the following state of facts; substantially, presented on an agreed statement: The·defendant is an incorporated town, under the General Statutes of the state. In 1870 the Tebo & Neosho Railroad Company-was constructing a railroad in the direction of the defendant town., To secure the location of a depot within one-half mile of the public square, the board of trustees agreed with Baid company to·donate 10 acres of ground 'for such depot purposes. To this end said trustees passed: a:reaolution and donate to the. company the right of way through said town, and to pay a sum not exceeding "$5,000 for .the actual Mst to the company of establishing .Buch depOt; also; to donate for depofand other purposes 10 acres of ground. Thereafter; on June 4, 1870,under an act of the general assembly of the state entitled ,et An act to authorize cities and towns to purchase land,and to donate,'lease, or sell the same to railroad companies," approved March 18, 1870, the said board'oftrusteesordered an election of the qualified voters of the town, to be held October 25, 1870, to vote for the issue of 810,000 in bonds of said town, with 'which to purchase the ground for said '.:railroad company. At Buchelection a majority of those voting at said election voted for the issue of such bonds. On November 1, 1870, the chairman and the clerk of said board of trustees executed in due, form 20 :bonds of $500 each, payable at the national bank in the city of New York, ten years after date, payable to the Tebo & Neosho Railroad Company or bearer, with interest at the rate of 10 per cent.perfa,n· paya,ble semi7annually at said ban,k,with the. UBUal interest couponsattaohed thereto. That said bonds, through defendant's·finanoial agent,wereplaced upon the market, and were bought by the plainti:ff, whopaid"therefor$8,171. With this money the bought 10 acres of ground, paying therefor the sum of $6,785.50, taking tbedeed for said land to the incorporated fown 'of Nevada. The balance of said ltlbney was used. by said board of trustees for various purpOses inoident
58t
J1I1DE1U.L
yol, 41:1
to ,the government of said town. The' Tebo & Railroad Comptmy,thercafter, having sold and. cQnveyed to, and m¢rgedits line of railroad Rnd property, franchises, etc., into, the Missouri, Kansas & Texas,Rflilroad Company, the defendalit d'uly conveyed said 10 acres of ground to the last-named company. On the 23d of August, 1877, the sq.itagainst in the .United States circuit court tor the western district of Missouri, at Jefferson City, to recover upon'the past-due coupons attached to said bonds. ,On the 2Dth day of November, 1877, the defendantamnvered to said action, in which it pll'li;t<iegthat it waG not liable in saidnction, for the reason that the act of Marcb ,18, 1870, under which the bonds al1d coupons in question wertPvoLed,was unconstitutional. To this answer the plaintiff filed a demurrer on the 22d day of November, 1877, which demurrer was subthat time,thefewas pending in the supreme mitted to the court. court of tho United States, on.apFl:'alfrom said circuit court, the case of Jarrolt v. Moberly, in which the san;J.e, question, to-wit, the constitutionality of the act of March 18, 1870, was involved, which case is reportedfin S. 586. 'l'heattomeys' ,in said case of Morton against The Toumof Nevada then agreed that no further action was to be taken thereid, but the case would stand upon the pleadings until the supreme court passed upon said Jarrolt Case, after which either pa.rty, t'l.1ight proceed in said cau..'>e as might be deemed best by said party, and the cause was continued. On the 25th day of November, 1881, after the supreme court had decided in said JnrroltGue that'the said act of March 18, 1870 l was unconstitutional. said cause of ,MQ1'to:n v. Town of Nf3'Jada was taken up, and the.demurrertherein, and menl The interest on said bonds was paid by thetown,;ofNevada for the yeats 1871 and 1872. after which the 'town refused to' 'pay plaintiff any further Jnterest, for the teaSO!l that said bonds andLooupons were unconstitutional, and issued without, ity. October 29, 1885, the plaintiffjnstltutod this action, setting up substantially tbe'history of factsaforeslI,id, and asking jUdgment against the defendant for the amount of money so paid by plaiJatiff for said bortds;with interest thereon. ,. ,. , " I ' , :T.whprincip1l1 questions arise Oll, the foregoing, facts: Will the acti9n for money had and :received lie against :the defendant? And, if so, is the ,cause ohction barred by the statute of limitations? ,Bondssimilar to these were held by ,the BU preme court in Jarrolt v. }ftiberly, gupra, to be void, for the reason that their issue was in vention ofsection 14; art. lit of theetate constitution of 1865, which declares that- ' . . '."IThegeneralassembly shall not atithorizEnmy county, city, or town to beor to loan its cl'ooitto, any tJOmpany. association, or two·thirds of the gl1alified voters of such <lr, town; at a regular or special eleoti911to be held therein, . ' ' ; This provieibn' was prohibitoryin its character. In its 'legal effect, it, was a from and a denial of the power to such C'. ,: ,
HORTON fl. CITY OJ' NEVADA.
581>
bodiesto loan their credit to such corporation, unless authorized thereto by the vote of two:-thirds of. the qualified electors. No such vote having been taken, and no consent of the qualified voters given, tbepo':Ver to create this debt never came into existence. It would therefore seem to follow logically that, no matter what the form of-action is, no recov,. ery could be had against the town, as such, for the money arising trom the sale of the bonds, as the town was forbidden by law from doing what it did do. We are not left in this controversy to conjecture to certainwpat was the object and scope of the provision of the tion in question. The supreme court of the state of Missouri, '3peaking J.,.in Sta,tev. University, 57 Mo. 183, say:, "What Was the object of restriction on county courts, city and ,town ,municipa;litJes? The object was, plainly, to prevent them from taxing the peo'ple without their consent. 11<, * II< It is manifestly the intention of ,the constitution to prevent taxation, without the assent of the tax-payers,' and . to the pUl'p()sesof the proposed tax." . '. So1Y.fr. for the supreme court ,Statesin ,Ja1'1'oUv. Mober.ly, BUpra, says: , .' ," "The objel,lt of the, inhibition 'i,n the state constitution. was to prev:ent, ,Qf dellts by' counties. cities, and towns on behalf of any association, or corporation, without the aBsent of two-thirds Of theitquahfied voters." .' ' ", , After to the abti,seswhich had hitherto grown up in this respect, he furthersays,: " ,'! ' "It was the purpose of. the constitutional provision to check, thes'e abUSeS, by requiringtlle previous of two-thirds of the qualifiMvotersof the municipal bodies before any more stock should be subscribed by thew, or any further indebtedness bathuB incurred." he says: , . "As by connsel, it is difficult to Bee how the fllndamentall"wof the state could be evaded by it cha,nge of the parties through whom the of the municipality is to be converted into money. In e1ther case, the debt created is to be paid by taxation>?' ;: What is said by Chief Justice BEASLEY in Town of HackettstOwn v. SYJiJ,cteLaw, 191,is quite perLinent andreasonable: ,,; "Nor do I think that it adds anything to the right to enforce the: note ill this case ilhat.the money which it represents, and which was bOrrow.ed,has been expended in· behalf of the corporation for legitimaile purposes. The argument on this head was that, as the money had gone for the' benefit .0£ the its rI'Pi\yment. corporation, the. law. upon general principles, would If thists so, then the rejection of an implied power to bOl'row is of Uttleavail. The doctrine, 'sIthough repudiated in the aUstract, would be ratified in concrete·.. "If this contention .is tenable, it is impossible to close the eye to the fact thllit although held illegal and void in its inception, would thus:, by a act, be rendered valid and enforceable. To style,it.tBs.was done in the ·mouey bad a,nd ,receired,' w?u!dnot. natureof the To pel'mlt a recovery of It III this secqlldaryfprm, would 'be, and in truth. to effectuate a loan. and all the evils att(jnd· ant on thepbwer'toborrow money jnan 'unrestricted form would And it is to 'be, noted that it is altogether a fallacy to argue '.law will
hamer, 37
i· :: . ! , , ' .
Its, object beaMNFedby . state and qf' this' connmutio.n, ,to prlil,yent \yithout first had thereto, how can it be to the . b,e .tR:x:ed ,on !he contract i.n ilie bond, or on a contradt ansmg by'lmphcatlOn., What substance IS to be the 19H18jf3mtl;>t,for, JDoney oftndebitatiul a88umpmt'f It is the cause of action, rather than the fann of is 't1Iixed tb l>lty the judgment. Such a slibswnce ·. !.Y!, inevitably, woti}q o.f . the law tl? do dlmethods.,,,,.: " " '. " . I am unable to perceive any differellce in and that of liitchfield v. Ballou, 114 U. S. 190. 5 Sup. Ct. rbere ,the tow!i authorities issued, bonds to the aid in .., cdurt of the ,fAtchfield,J02JJ,. S. 278" he14 bonds so issued were void, on the ground that-t,hey were inviolaHon oLseotion 9, ofthe which that-,. '... ,. , countY1 ;toWps.h.IP. or 8hall be allowed to become Indebted. in anymanner'orfor'any purpose. to an eDroulDll,:including exiBtlpg indebtednass.in aggregllte'eXceeding"fiv'e'per loehtbmionthe.valueof'thi:! taxable property therein; tO'be ascettained':by 'the -wtJ 'assessment for.stalte'and county taxes/'preVious to'tlie -incurX'ing of such I
'h'9w'isr thdconstHutional inhibition tbbe 'made effectual?,:
ci an tmpliedproriiise'to pay is applicabletb this case,
citr
/indebtedness; tt,'
,
'
i
one l3allou;",wboheld the h.istorY:Qf of the.supremeeouitaforesa.i.d.. It.was .alleged.thatthe,procelldsJ of ,the bonMwere takemandapplied by the (to tha:constfuction of 'said water-worKs, which 'Works the /' for !ill 1a \V for v.ndrecelveQ, wOlJ.1d not he, uPQu; theory put, the lOoney Jfeceive.(UQ,tQrthe constrl1otiun of it should,inconseience, aptioll 'in
}lORTON WI. ClTYOP NilvAbA.·
'What'it thfus had obtained; and'aHien was prayed to be onJ 'tl1ewater-works, and enforced by the'sale thereof, to satisfy complairl..i antTs claim. Mr. Justice MU:-LER, who delivered the opinion of the court, held that, as'· the constitntionalprovision forbade the creation of a debt in excess of the prescribed limit, no action would lie therEifor in any ,form; ieno more reason fora recovery on the itnplied contract to that repay the 'money than on the express contract found itlthe bonds. "And' further ·on he sa VB : . II TI' 'thIs prohibition is wortlianythlng. it Is as effectual against the implied' and lans binding in'8 court of chancery as a court of law." . It is true that stress is placed onihe langua.geof the constitutional: provision thnt no city "shall be allowed to become indebted, in any mall': neror lor'tiriypurpose, to an amount "' exceeding five p'er centum.":But what difference in prinoip,lecan be maintained,in ,this particular, between that and theprovisiop of the Missouri constitution 1: Both were designed to protect the tax-payerS; in the language of Justice' MILLER, lIas an impassable obstacle to tM,creation of any further debt." The one affixed the conqition that, while the city niight incur debts Up' to a givellpoint, yefbeYdnd' that itshorildnot become indebted·. The' other'declared. thatthegeneral assembly of the state should not authorize any city", etC.,to loan its' credit to anycorpotation,elc., ,for any purpose, witho'nt the preceaent act of' theexpress'ed consent of two-thirds ofthb' qualifiedvotets. Unless' the debt contracted in the oM, instance is within the rrutximum limit, it cannot be enforced. In the Qther, the. power Is, taken'awa.:rto create it, unless the tax-payers first aritllflrized it. ''It w'as, the .Mr. Jarrolt v. Moberly, 8upra, constitutiooo:flm:;vision, to check these Itbuses, by requiring the previous nsseiit (;f:tw&.thirds of the quaJified voters ofmunicipal, bodies :belore 'any mote sro6li:sh<nild be subscribed by them, or any'further be thus ,incurred. . *, * * A provisi'on should, be as to defeat its ev'identprirpose, but rather so as to' givel i,t effectual' and suppress the mischief at which it was ,aimed.": suggest that anantire 'want of power does riot pear in' :thisi(jase,' because the :General Statutes' a865) of the state, (secthat,llsuch board of trusteesshnH have to. tion pass' by1laWS! and ordinances * * *, to borrow' rooney for the' provementfof'8uch town" or to supply the same 'It ,might' be sufficient-wsRy that, on the very face ofthe.transaction, tllis"money: was not borrowed for any such purpose. The object for which' this I moneywas:ebtained does not come within the most liberal const!!\lctidn of the improveli'lentofsuch,town." The .resort tQ the, legislati,v,eexpedientin the act of March 18, 1870, wasBGonfessionby it$; recogiiitio,J1by the legi/llature" of fa,ct that, tbia;atat- . $upserve the end tp ,be tbjs ·. ,But a more CQrnplete, answer to this8uggestionis that, the :constitmtioUflI provision.under reviewinterposed,and prohibited this ciiy from'· 'd()ifJg this very: l1etl:Reference is made: to the cases ()fWotid . l I
or
a
and, Gausey. reported in5 DiU.' l22 and 165. found a,s in other cases' where the doctrille of implied has been that the power to create the debt ,iothe first :.nstaqge existed. The opinion of 1)tEA'J), J., in Wood v; Louisiana,8upr,a, recognizes the distinction, that the of ultra vires II would apply in the instance of an unlawful or prohibitedojact. And the opinion ,of Chief .TustioeWAITE in the same case on appeal, 102 U. S. 298, expressly states, as the foundation of the ruling, that "the city borrow. The objection goes only to the it was done." of LimitatiortB. It ll.lustbeconcerled that there:is an apparent equity in favor of plaintiff as to the sum of $1,385.50, which was used board oftrustees," for various purposes incident to tlle governtown. n · thesepurpqses were or" not is, qqt sw.J¥ld.;. ,But, assuming that they and conceding tha:tthe COncrrating, debts after this .can):le ,to, so, muchpf th,e 1()!tD: carried, ,thQdty, promiscuously othe! funds ofthe city" plaintiff is still the bar"of, oflinlitatiops. S,t,., tlwse fOf' the recovery:of within the, perioqsprescribed ill ,tR-,erfg\!0!Ving the: causes of action sllall aC,crued." prescribeq five ,years inA.cti9ns gp., irnpl.ied con,Whep" thisl:l14eged cause/ofa.ction accrue?\VAGNER, J. i in Mqfike,. 59.M;o.; 9:91,very states,the rqle thus: to the .statute of limitations is thl\t the ,cause of aetJon 01' ilnd a,l\8QOn as the party has ,a right to apply to the red'rtls!!." " , . ,,' ,' '" :.So J., iufalmer v. Palmer, 36 Mich. said: ,,,A the putposeofsetting ill motion al5 br his own act, rand in spite of clin m,ake
"S
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the rule, 8 cause of actiop: accrued.to the time defendant received plaintiff's money. , ',the bonds. were ab, rhey never had any legnl existence, and WElm i as U never written ,nOr executed. the plaintiff parted with };lia he got ,nothing, and the equity ipypke<! i:lyhilll; aroile eo. in8tanti. Lunt v,, Wrenn, J 13 Ill·. 168, was sale of frauduleptor forged lan<i-scl'ip. , In .ltn the. m()ney, thec9urt, through SCH()k ' upon, the ground of failure dfconsideration, it Is qJlit!l tplI statl,ltll of i.s a defeuSljldlililce.iu ' th\lt t,o the of, .. tnen, what now a,nd j circumstance Whereby, in le-. gltima:te 'Ptdtlt 'c'6uldbe ded \ted from its prospect" if .we-shall concede that the liability to tecO'ver is u'pon theoground of illlnUed:warrau,ty: otgennineness, wetbink. it is ·equally clear' that the. facts ff;Col'(l; is,a'cQJD.plete d-r .,;10 ;tWa
.. :
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3"
),lORTON ".CITY Oll' NEVADA.:
fense. The implied warranty, if it existed, was broken ,eo, 't»,9tQ1iti it was made. Bleth.en v. Lo'Oering, 58 Me. 437. The scrip was then counterfeit, and a nullity. There was nothing of, title or value that passed by the of its possession, and no future contingency could possibly affect its legal' <lharacter. " ' If the action be bottomed upon the payment of In9ney under a mistake, the cause of action accrued upon the payment of the money. and not fronl' the date of the ascertainment of the fact of sU<lh mistake, in the absence of any fraudulent concealment on the partof the defendant. Jones v. School-Dist., 26 Kan. 490. That was the case of a comUy treasurer overpaying a school-district. and suing to recover it back. 'BREWER, J., inter alia, said: "Now. whatever rigbtof a,:ltion plaintiff has undel" such circumstances springs 'not from any express promise in writing, but fron:\the implied' du ty' of tbe defendant to' pay to any one moneys' which thr'ough mistake it had received .from such person. The obligation Is not fdu'\1ded a written contract, but springs from an implied obligatir>n to retuh\Itiorieyl! it propei-lyreceived. Bntsuch a cause of action is barred'by the st,atute of litri.! j tatiorts at the end of three years ' from the time'of the payment to the dlstriht.'" " ' . .,', , It was insisted in that case that the treasurer ought not 'to be held to have iristittlted his suit until after he had a settlement with the count, on which the court further observed : ,".Asettleml'nt with tneeollimissioners may be of value in asberta.ining the amlHLQt:oUhe: ,but it doesl)ot make add any.thing to plaintiff's right to ' If, he 'cou;lP TEry cover could have brought his aCtion the very dl\1 aftl:r he pad lDlldEl this,?verpl\tD;llmt.'" , ',.' ", " , ' " been Iiluggested in argument that noaetion W'ou1<llie this . demand was made, and that, as. n!> demandcowd be made by plaintiff the decision of 'court pronoune; ing .against the validity of the bonds, the statute of not apply thereafter. It is,now the settled rule of law .that"e;ven as to a promissory note payable upon demand, the ! qf, tions hegins to. run. its delivery; and this rulelnust sUPl)" .with equal force to ImplIed promises. Palmer v. Palmer,BUpra" ThEi conrt ,say; · ' ':,,' ' '''1'he payee.could have presented it at any time, and the put it in the power of the creditor to at his llle!lSure. * II< lie If a creditOr 'has the means at all tim,es 6fmaking his' caUlleof,action perfect, it would be unjilst and oppressive to' hold that he eould' postpone indefinitely tOl.' time for enforcing hiselll.im' by'fa.'ililJg to present it. H,e is really and in 'fact able at anytime to ,bring an actiQll when he can by hili! own act fix tl)e time of payment. '! Vtcl/lMorrison. V.' ,Mullin, ,84 Pat St. , ,
*'
It is/contended'by the learned counsel .for the 'plaintiff" With;xnndh more reason and :authonty, that, notwithstanding,the :bond'llm.ayhave been illegal and non-enforceable. yet. the defendant might recogi J?,ep1, as valid,. and ,c,Pntinued to, pay th,f' it up to thfl ?-'1;2, ,.apd the, J
,lor,
DDERAL'
'\701.41:
Be it so' cOllced'Jd,;l; :'Xhastlltrite of
tloti.,'
Rerqne merelfvbldable on' tHe part. beginstd,ru'ti on a ",oidis by; 9.ne :<>r; partIes; and. when 'anything done by either party mdicatmg a purpose to
the sale of 9f fra,u,ds. ,The vendee money contr,act The .sU!.tut,qf liri:fitati<ms wasipterposed. The court said': . .. The contract is not absolutely void, as are contracts that, are.lu'ohibited to 1?e ": , . is V()idable will qr"ither party, .so as ,to ;takeit out of the, Qperatiqn of the It then statllte otlin)itatiops dl!l not begin to run ,one.party Qr it to all and. If" ", .. , appellee.,tllah tbe be lle and his not blil:qo"H"d:by ,tlle: an end. and no rij;tht UpPIJ and the statute began attllat run, and would bar an action to recover back the pnrchase money at the. end of five from ,that
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::The agreed· statement offllct9declares· that defetidant paid the interest on the bonds for the years 1871 and 1872, "after which the town refused tojnly plaintiff any furthel' interest, for the reason' that said bonds, and coupOns,thereon, weril urieonstitutional, and iSSl1edwithoutany RUthbrfty;"'" That put, 'ilnend'tlf·thecotittllct: The plaintiff bl1.d Db right to'fely rurthetulJoo its "and the statute' time tQ run." Then, .again, whl;)nplaintiff sUl;ld to recover iJlieselco'upons that, ":00.. .20,th, 1877,. Wlrn'of Nevada mteI'posed'll defense In. saId SlUt by fihng Itn ,answer 10 in.said for the of 18, 1870, u,rider which ,the bOilds to which 8ai(tlcpupbn's'had beeh llttached was uilconstitutional."; 1'his was notice p,4Jded' ,on record that it repUdiated the conlilld',in\r6kEld thE! botistlfution ligllitistitsenforceOl.ent; That was 'e1ght'yearsprior' to,thElinstituti6riot' this: suit. ! After the interP tiO. n. .·.0.f or the . ..' . .. .i. tr· CITCUlt n eed. to . .. .. n.,I' o· hIm th.e he teHie"(j¢prt" iS d.efe.·.n,s,.e. .the .l,.a . n t.the d.i.,d n ot court; th e adrtee . n. ..Of..that su'the iti· orGei:' 'to to abandon the of 1Jltr:(J, piri",the in flption: wj)uld:be estopped.. from. plea.ding ,the validity ,0Uhe.bonds.l: ;Gll!lal"ly:, it would have beenan.estoppelinterpartes. In no' ·inIpottnri'ce'C8.11 be 'attached:; to the fact that the parties consented to a continuance of the suit on the' coupons UptAA !Softer,.the.: dooi.eiol:} supr,eme. court in the au,. . That .. sta.tut, pNirnitatJons. (i,Auaid by
on
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O1J moment'lilriactforl'b,Y'the don,duct Qfthos.e officers iM'egard'tothe8l.,'ir1p:)iWrievel: accomplished aUt teniporary
or otherwise; and no impediment lay in the way of bringing the suit from, at lefaslt, the forge,r,; and worthlessness o tIe SCrlp. The plaintitrwas atlibertyto,abandonhissuit, at any time after defendant interposed its answer. Mere doubt in the mind of plaintiff as of recovery on ,the bonds would 'Dotp);flVentthe statute of 'limitatiQn8ifrombeing ,put in motion. "There must; in order to defeat its operation, be some insuperable barrier,' Or sOb,lEf dertain fined, clearly established by $udicialll"ut.hQritY." Weaver V. Lei1l'l41't.52"Md.709;, In Miller v. 16 456, inan;·action , against a, sheriff for an, :insufficient return to a writ, by reason 'whereof the was it was held that the statuteoflimitations begail to ruil from the;date of the return, and not tliat of the reversal of the judgment. , The.courtverysignificantly. :observed thatfthe havepurauedhis, remedy furthest, after ex1ending"his execution; for, the judgment being then liable to reversal, he might immediately have brought hil3actionagliinst tne officer." In Chancellor v. Wiggins,4 B. Mon. 201, there was a, sale of all implied wa,rrant,y pf. 'freed'om'. ,,,tt wag:held that'there was an 'an immediate cause of action, which was barred by the statute of'lhnitatib'n itw!lafUrthe1' held tpat, 'ofndticeJl:?m , tqelatter to !Lid. defendin,g'the,itptiqn.qf tlleir freel.Wm, 'djd not affect. the ,.; Equl;llly ,quE!stion is the, qolging in v .lIiPk;, 3. Green!. · 405. ,Thisw.'as an action of aBsumpBitfor money had and · grew out of the purchase by' plaiiltiff'ofoertaiIi lands be to.whiWthll title wholly failed ..' ltwas"held · that,,'lls', .recei the a good ful.r to hie actlon, ,pa.u.secof froql. the date of the rec;:eipt of the money" The, oourt, . through MEIiLEN,C.:J., ,said·= ' ,i,. "They the tltJe'was arid 'the legislature of MMsachtlsetts .acted'i.lM-ertbis benef. '.... )! , .,,' AUW61'emistaken, and not undeceHed tm next ,the commencement of thfsStiit. It iii' '\'ly thep1liinti1!'8'cou'ilsel that,l!.s this want of title notiliscoveted'tilI witbinsilli 'yellI'S'; :the 'stat':1teis .no'bar; that it did not' commence running until the · discovery' was , Sucll;ilowever. is not the law, No 'case 'can lie found wheretheillitiMte haa'been'avoided at UtWOr in equity'unless on ttle'gtound ... "* i . c6rtcea,lment i onthe defendantls part. The. case of "Breev; Holbefih.2 Doug. 654, '\vas,' in all essential pl'trtlcularssi!llUar tot-he present. The, flrets were 'of money had been,paid for certain'estate more 'than llh,' y'ears befote'tbe commencement of the action,and the ; sold I believell.. he sold the .interest. bebetfilfan administrator·· The 'lDOl'tgage deed was afterw-ards:fonnd .to be but.'astheilefendalit lll.'d beeninnoceilt;'and never conCealed any 'factBwithhihis knowledge relating to, the title, the court lleld.'tilte'statute 'oflimitations to'be:a'gooo'bar. " " " , . " '" and [(or
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.:69.2
.J'EDERAL REPORTER,
vol. 41.
BAIRD
".ST; Lours, I. 'M. &. S. Ry. Co.
(OtrouttOourt, E. D. Arkansas. March IS, 1890.)' 1. 9.
of GooDs-FREI(}HT-BILLS 011' The act of the generalll8sembly of the state of Arkansas approved February 27, lS85;wasnot intended to.. give validity to stipulations in bills of lading which are of fraud or mistake. . . . '. material part of a bUl of lading on the subject of the freight mte Is that which llf6jJ per lOOpounl1s. Weighing ,the frelgqt is purely a meohanlcal process, S.!ME....RA.TE 011' FREIGHT-:-WBIGHT·
and may'be done at the pointo! shipment, or at the point of delivery. Where the 'welghll'otthe merchandise liI'illliformlv the same, the cal'rier or the consignee may 8811: to bave the weight vllrltled up to the D;l,oment of delivery and it is the weigl;lt disclosed by the scales, Bnd not the weight marked on the bih of lading, that con· " '.' . , . ',' ' troIs:' 0
The )IhipmElnt of merehBlldiSEl from one to another Is interstate commerce, . and any requirement'of a state statute in respect of such commerce in contiict with the req nlreJnenti.of thelnt.erstate oommerce act is of nO validity. (Bt/Z lab1:&B lYU .th6 Oo'Urt.)
COllllltrITUTIONAL
LAW....INn.RSTATB
CoMMlilBOll.·
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aotionof; 'rflP\evin tried be'fore the court .o,J1the .' ,iollowing /!tate,nwntof .
"(I) Orle&118 .&Texas Company is a : rlJ,il'way of Louislana doing business"an,d bas a line of railway l'Unllingfl'om New 9rleans, La;,. to Huntington, M,i!'8,' (2) That t4e St. Louil;l, 'Iron Mountain & Southern Rat/way Company itY a'raHway corpora·ti'On of Arkansas·doing interstate businEl8s; and has a' railWB:yrunning from I ArkansaS Oity, Ark., to Little Rock. (3}That Huntington,. Mis8·· is on,the el1\lt 1'1 vel'. and Arkansas City, opposite. is on the ; bank,; bejng(loilnected. by a steam railway transfe,r boat to the 8t. J;.OI,tiS. hon ,hIQunta.in.,t Southern Railway Com(4) .Tllatlib & Son Machinery Company, C!onsiA'nors at New Orleans, 'La., deli veredto the Louisville, New Orleans & ·'Texas Rai1wa.yCoinpany 6 steam cotton presses for transportation from that point to the plaintiff at Little Rock, Ark. (5) That the consignors made out ,and tlle cotton presses at ,pOu,nds. Exhibit ,(6) That, wjthqUt questioning this qr !"eig.hing the goOdS, the Loui!iviUe, New Qr1ellns & Texas Rail.)yay delivered tile, PIli of la4ing,a$ made out by tbe · (7,)TAAt after aboard of its cars "f,qe;,said,;Muisville, N:ew .&Texf\S Railway Qompany weighed the ;)1l!-me., f.9,upd that. Insteaciof said weigbing 20,{)OO pounds, they .iRfflct weighed, 25,550poup"ql\,' (8) That the charges 011 sai,d ,ma9pinel'Y .35, andtbe, rate for ,the.. shipment from eW 0,1',tQ was4c5, cents per lQQ ,p.ol.lnds. (9) That atter LOllis,vilJe, & Rail C9mpa,IlY ()ver itslille HUlltingt(>n. a .ll>Hllllg the 25,55Cr:,pounds,and nQtthe the I>IU ,Exhi!:>it:n·. (10) c. at .S/:lidI)lllc.b_Il11J;y was, turned to the defendant, the St. Louis, Iron Mountaip & SOllthl1rn Railway pa\lY, under eaid way-bill, which covered the weight as 25,550 pounds. (ll) 'theft transported said' triuc'hin:ery to Little lRock. Ark·· over its own road, and, on its arrival, presented its bill for charges and freight lI.t o
BAmD
ST. LOUIS, I. 'M. &: S. BY.
co.
693
the rate of .45 cents per 100 pounds upon 25,550 pounds, making tbe eptire freigbtbUl amount to $149.98. (12) 'rhat plaintiff, Thomas W. Baird, refused topaYllaid freight bill and charges, but presented his bill of lading, and offered to pay the charges and freight as shown thereon, according to the weight of 20,000 pounds, at 45 cents per 100 pounds, which equaled the sum of $125, and demanded that, under the statutes of Arkansas, the defendant Should protect said bill of lading. (13) That defendant again weighed said machinery, and found that the same weighed over 25,550 .pounds, and so informed plaintiff, and demanded that he should pay the freight according to the. true weight. This Thomas W. Baird refused to do; Whereupon the defendant. r.efused to protect or honor said bill of lading. upon thegrollnd that the weights of the said machinery had bl'en falsely billed by the consignors at 5,550 pou'nds less than its actual weight; that to deliver the same was in violation of the interstate commerce act, and made the defendant and its agents persooallyUllble to fine and imprisonment for doing so. (14) That thereltPQ", plnin,tiff refused to pay according to the true weights; brought this suit, tb!! goods, and now has them in his possessi<!n. (15) That the of said goods is $2,500." , , ,
A,statute ofthis state provides: .. Section!. Be it enacted by the general aSsembly of the state of Arkansas, that it "hall be unlawful for any railroad COmpany in this state, its officers, employes, to charge and collect, or to endeavor to charge and col· lect, from, the owner, agent, or consignee of any freight, goods, Wl\l"es, or mercha,pdise, of any kindor character whatever, a greater sum for transporting goods, wares, and merchandise than is specified in the bill Bec. 2. Thatany railroad company, its officers, agellts, or employes, having possession of any goods, wares, and merchandise, of any kind ol"characterwhatever, shall deliver the same to the owner, his agent or consignee, upon,payl1tlent of the freight charges as shown by bill of lading. /3ec. 3. That flnY,railroad company, its officers, agents or employes, that shall refuse todelh:erto the owner, agent, or consignee any freight, goods, wares, and mercbandise, of any kind or character whatever, upon the payment, or tender of paytrient, of the frElight due as shown by the bill of lading, the said railroad· company shall be liable in damages to the owner of said freight, goods, wares, or merchandise to i1n amount equal to the amount of the freight charges for every day said freight, goods, wares, and merchandise is held after payment, or tender of payment, of the chargps due as, shown by the bill of ladifig,to be recovered in any court of competent jurisdiction. I, Act Feb. 27, 1885. '
J.M.: R98e, for plaintiff.
Dodge « Johnson, for defendant.
CALDWELL, J., (after stating the facta as above.) The bill oflading was filled up by the consignors, and signed by the railroad company, on the faith that the consignors had stated truly the weight of the machinery. Either fraudulently or by mistake, the consignors stated the weight of the machinery to be 5,550 pounds less than it was. The contention of the plaintiff'is that by a statute of this state he is entitled to profit by this fraud or mistake; that. under the statute, a bill of lading procured by fraud or mistake is as binding and obligatory as one honestly procured. Of course, the statute is not susceptible of such a construction. The statute was passed to prevent fraud, not to promote iti v.41F.no.l0-38
·to:puniah 'fralldi not fto' '!l!tIictibn it. If, the, bill of lading, ::b" the. fraud ortnismke of the' ,raiIroUtl !company, had stated the:weight ijfithe"ma, obinery 'to 1,t,W118, the .be what It llre to stand, the :rule ought to be . the consignee carrier.' . Thjs,Qlisej probably ,,furnishes the first e:x:ample!ofrll pil.ity':OODling: into aicourtof justioe·a.nd'1boldly claim, ing abenetit.ftoni'i fraud or'inista'ke; ,The ,through rate of freight Is"smtbd' of lading to be 45 cents per . .,Tolltis o.rladingon the to be paId for In the ;lapgul\-ge C?f:the8tatfreight ,,* =1;, . specified , ute,that is the in the·bill thattberewas a contract, 'There was 1),0 is settled 'by tlie s6liles','afi:'d not l:ly contrabt . BIlls of lad1ng are 'frequently issued before the weight of the freight is knOwn. It is' nOt rlecessalj to the issuance of a bill of lading that it sh'dU1d'b!3 knowri.' 'The freight rate ,is fixed when Weighing,the ,fteightis may bedon:e at the pOint of "sbiplhent,' or rtf or both. Onehrt.nldred 'pounds in elise'; tQ?! theCQnslgnee :may na'll'e weight t,o, the mo·'mentof delivery·. It is the .weight;d-isolosed by not the ..weie:ht marked on ths!tbiU that controls.! .; 'llhe maohinery agreetn'ent of the parties! to this flRt, ¢tiuld it, Qe varieq by ,frll,J1 "'Jt! rPut, ,Iftbe,lict oi the WO\lIa admIt' of the ,oonfo.r:byplaintiffl it WQuid ,Thl'l qf ,this freight from Newl Orleans to J:4ttle ,Rock was interstate commerce, ;] liI!l.d,the act of congressis '60ntrolling.It is notnecesSlll'yto:9,uotethat :'nct. , Itissufficienttosjl.y that ifthedefendant hatldeli\iered, and the the are 'set 'out i'n the' agreed' stat'ement of facts, ilie agent of the defendant' iriakililg the delivery, the plaintiff, and the consignort;l, if they hl;ld knowledge of the facts, would have been guilty of a flagrant violation' of'the iilter$fu,te commerce act, and rendered themselves Hable to a'crimina:l prosecution. Let judgment be entered for the defendant for a return of the property or its value, and for costs;,(,;" " , 'I
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ADAMS",. KEYSTONE MANUF'G
(Circu,tt 001t'l't. N. D. nlinots. February 5.1890.) L
Letters patent issued October, 15, 1872, to al1nry A. for an improvement in corn'shellers, consisting of the combiDlitionwith the corn-sheller of a series of wings, whellls" or pr(ljections, so arranged on a shaft as ,to revo\ve in the direction in "'hich,t¥ corn is, running, andto force Into the sheller all misplaced ears, lire in'fringed by a devIce Which lluMtitutes for the' round shaft WIth its projectIons'a , w make the four, projilCtIng do the BllolIle work as tllp prOJections on the other shaft. ' . ' . IntakiDlt an account ofprofitil made by the infringers of a. ratent, where the comwhat lIlade by manufacturer!! 0 ',the patented article, wllich IS 8ubstantially the same as the infringing device, and the defendant O:lTe,1'B no proof 8& to his actual profits, a finding that defendant'8' profit on each machine that of the other is prop!!r. , , , , .
In Equit) , Suitby Henry A. Adams against the Keystone Manufacturing Comfor patent. . ,JJobp,'I'JI.&:.Thacher, for complainant. Manahan &:' Ward, for defElndants.
,BLO'pOE'.tT, J. An interlocutorydecree was rendered in'this case several months ago, finding that defendant the Keystone pany had infringed the first claim of the patent granted to complainant on the 15th of October, 1872, for an "improvement in a, refereace made to HenryW. ,Bishop, Esq·· one of th,e of this court, to take proofs and state an accounting of the.gains,and ceived by defendant from such infringetnent, and alsosQ:ch damages as complainant .may have by reason thereof. The master has .filed, ,his report, finding that :the defelldant company' has manJl and sold 688 two-hole shellers, 683 four-hole shellers, 236 six-hole shel.ets,' which infringe compaainant's patent; that the profits on the two-hole machines amounted to 810 on eachmaehine, on the four-hole m!tchines the profits, amounted to 820 on each machine, and On the- six-lWle ;mll; chiries'the profits amountedto 830 on each machine, making an; aggregate profit '00 all the machines so made and sold 'of ,827,620, forwh\cl;l amount he recommends that a decree be entered. It also appears ,the proofthat, after the (lourt had entered an order awarding thacpmplailllint an injunctionpendtmte lite, unless the, defendant would file a bond', with surety to be approved by the court, conditiGned for thepaYWr,'ent of such amount as the court might, on final hearing, awaro the cOmplainant, ,the defendant,: having filed such bond, :challged the coqsime:shaft,With four projel;ltipg tion of itsmacliine ,by' substituting shaft witq pickcorners or angles, in place of the picker shaft, or ers or projections, which defendant hltd bet"orel,lsed.· This fll,ltOO the master finds, is theequivll'lent of the picker shaft before used; the pronfBareawarded' on xoacmnes with the fluted shan the