.. FITZBtlGB ".M'KINNEY.
FITZHUGH L
11.' McKINNEY.
(Cf.rewtt Court, N. D. Texas. May 26, 1890.) EQUITY-JURISDIOTION-REMEDY AT LAW-SET-O!!'!!'.
Rev. St. Tex. art. 649, provides that if the plaintilf's cause of action be a claim for unliquidated damages founded on tort.hthe .d ..efend.ant. Sh.all not be permi.tted to set·. oft' any debt due him by plaintift'j and ift esuit be founded on a certain dellland, the defendant shall not be permitted to set off unliquidated damages founded on tort. Article 650 p"ovides that defendant may' set olf any counter-claim arising out of, or incident to, plaintiff's cause of action. Held, that these Ilrovisions do not require the pleading of a set-off, so as to defeat a suit in equity to enforce it, on the ground that the party pleading it has an adequate remedy' at law. . Attorneys, under the laws..of Texas, have no suell 11811 on judgments re<l9vel1ld by them Bstliat an assignment to'plaintift"s attorney of apart of a judgmehtas' compensation will defeat a suit in by defenliant injforce a eet·oft' .against Buoh, judgment. '. ) '.;) ""
2. ,
ATTOIj.NEYs....LIEN ON JUDGMENT.
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In Equity. Bill for injunction. M. L. 'Orawford, for bOlll.plainant.. ., J. M. McCoy and .John R. Hayter; fbi" respondent. ; ", ,. . '. . I'. ',.'.,
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14th clay the W ·lI.juc).gment:.a.tlaw,jll this court against, tblHlomplainant, for thesum:of $4,050, besidesc08ts\ in an actionoriginallyinstiiu1Mon the 4thdayof.N?v,ember, 1887. It pt>ar,inthebilland answer, but it'was admitted on the hearing that was for damages for.wrongfuUysuilJ.gQut' aIld, eXecuting, of seqtHistration ih a litigation 'between the same ,inl the courts for Lamar. county, which ,litigation, in Lamar C9uIlty .reSu,ltedin the two judgments in favor of complaimtht set out in this suit.' " On the 15th dayof June, 1889., the complaillltIlf his, bill herein to this collrt, showiJig t,he :recovery of saiq jqdginent against· him for $4,050, besides costs,anrl shbwing that he a judgment against respondentontheHth, day of October, '1886, for costs,ll.nd on the 15th day of MaY; 1888, baa 'recovered a judguwnt against respondent for $2,343.69,: the first judgment <l.raW'iug .interest ,at the rate 'of 8 .per cent. per 'annum, nnd the other. at .the rate of 12 per cent. per annum, both in full force; and, tliattqese, with the interest thereon, the ar:nountpf '$3,400.61; nQpiiri oJ, whichbad been paid, or in any manner discharged; thatsaidqharles, w. McKinney is notoriously insolvent; that complainanthadpai,Qto, the clerk of this court all the costs adjIldged .ag!l:ins,t respondent against him; and had tendered tqtherespondentafrillarr, quittimce and. discharge of b?t.h of said ,j udgm,epta against. and. the SUnlaf. agall1stqomplamant and. the two spondetIt, which respondent had refused to and. comp1a,lpipt had sum of pjoney, to-wit,$649.40;!pto theregistry 001#6 court' fOr' the respoJ)dent,aiid' attached to. his bill the in discharging COil). p1'ainant's' j'udgmentsagainst· .and MCCORMICK;
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prays that his said set-off and payment may be allowed, and the judgment against him Tbejl.nswer substantially admits the material allegations orthe' hilI;' but' prese·nis-=---- First. B)T way of plea and demurrer to the bill, the de:fensll tbatthe could have pleaded his said judgments in set-off, in the action at law against defendtqat,.haying failed of this adeqnateremedywhich he had at in equity. Second.Respondent d1l1 com,on .the June, 1889, and before complainto, respondent.,inconsideration ant',s arid' fttlfillmeilt ot'aoon,traet,ba:'Jmd' w.ith his attorneys; to compensate them for their services as in said action atlaw, had transtettM' to juugment;@dthat on the sameday.,to",wit,dhe, Hth-tl8y:(jfJ;June, 1889, he trans-tetred the other half of said judgment to one Luther Rees, in part payment of his homeremained unpl;lid. The stead in Dallas, Tex., on which that provisions of the Texas statutes bearirig on the first of defense , ". \. ' , urged by the "Art. 649. If the phiintiff's cause of action be a claim for unliqnidated or I'
da,mIlBfs. fO. nuded 011 of co;venant. defet.tdant. . ellldl'not [)ep... to 'by the plaintiff: and If the suit· be,t'ollttdedob aeerUiln di>maffil\'the'defenflltnt shall not'be pel'\Illtted to seclliT:unliquidKted or. uncertain .dl/.tnIIg!l811011ndt'don a tOi't,ul' breach of coven,'mt pf till;! "....l1.,650.N Qth ,ngiin art!cl,e,spl111 alii to in set-off ari:ling 91lt orincitll'pt to, of ·connected Wetll. the of actIOn." Rev. St. Tex. (Ed. Ul79.) tflIl.'21J'. : ,':1',' ,I; I", i' " ":',,'l'i,",. ' ' , , " ' , ,,' : ,
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pleadiJ:1g bU reful,'
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pp . t!¥1dere!1 p,y tijls90Ul't, and, r.., . ':.',.L.'.ill, st,ate cpWfs,..
'in this case respondent's of the l satis.., and faIlure to do so ·.· ;9e, ,on of ,saId WIt.Ix the c.'o.st!".'. of ,.t .· S.1;11.t.. I.V.(ll.. Gray, 7, Tex. 549; Wright v.· ld. 476,; ,:. lwpbcatwn 0. f,
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h,llp be matte tt? thIS lIIen. ts. ha.,I.i . . n. laW,and eq,lll,ty, ,seeks ..Ctrcmt q9Qrt. ash.e 'S?uld
grlmt vel'S f:ectedull We
u,dgmept, th¢,
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<;ould: n()t . .! ,t?,
af-
er;EDGE tI.GAYOSO HOTEL
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neys 'MrffriJ1: v.Souther; 6 Dana, 305. no such 'lien' on judglnents recovered bythent
attorneys state as is cl8.imed in respond'ent's answer is I' thlil'k well settled., Wright 'I. ·Treadwell, :8upta. A decree' will' granting the com plainmit' therelief prayed for in his'bill, except aato costs, which will be adjudged against eomplaili., '
SLlllDGEt1. GAYOSO
IJoTEL, Co.
opurt. w', 'rOO
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" " ',' assuu)tl,UPOD the bare and, nece88alTlly brief statements of a , to depidl) the,fact pi or contributorYJ;lllglig-"nce., I:f " b e tecbniMllysUlRciel1t in its averments, and it lie not blear uponthoseteebhical ,'l!Ivermen1;!i t4at 'there was not negligence, should be reserVll!tl the " triW, ,aIld ",demurrer seekiIig llrematqrely ,of the court. wil,l, ,?f , courlle,overru1ed:" , "," " , ' " ,
At 'LaW.'
,; 900ft & PaiUrsfm,
for plaintiff. fJ!u'fley & Wrigltti'fordefendant.
On detnurrertci the declaration. ' ,;
HAMMOND, a suit: for an injury to theplni!rliff'gfoot,su8.tainMby ,the working of thebotel elevator,' wh'i'ch ury; the 'declara·tion alleges, was ooused by the negligence of the iault on the part o:f the plaintiff. The ded'aflitioiuindertakesto tet6ut 'briefly 'the mcts:relied on to constitute negligence,itia narrative mode, that the the open door ,imd, amongbther things, of the elevator, whereupon the conveyance l:legan ro ascend ofitil 'own aec()rd, tllertl,"beingn0 'to' get· olit, Wks· injured. The insistS on. its face, l'lhow,s, negligence-Firl;lkby the whUe the was arid, sewn,q),y, it 'YAen asee,nt ·. ' ,But of tqbe abandorie4,since only the, first is subm,ttedbythe priefo! de(en.dcOunseL .',.' , , ' '.' , ;,The declaration goes farther, perhaps, than it nEled to have un,4er our ,system of plea.ding, in stating the fact$ ing andupder,aJ;ly system, it ill alwllYs injudiciou/3 for a of tion of, the declaratIon or plea contams a substantIal Negligence is a mixed question oflaw and fact, sometImes largely'depending upon inferences to be drawn wholly by the jury, and for the court to assume to decide them upon the necessarily brief statements of the conclusions of fact found in a pleading would be to usurp the function of the jury, or at least to trench upon it with insufficient knowledge of the
states
FEDERAL REPORTER,
vol, 43.
more upollthe evjdence tha,n upon the conclusions from It has been our uniform practice,gwrefore, to decline t<;>c deciderthe questionofn.egligence in cases like, this, upon demurrer,' if tp.e declaration or plea. be technically suffiwhole, an.d a deposition or eVIdential statement of facts, which neither, certainly, is mtended to be. Just as in this case, it is quite a bare assumption to say that it is, in all cases and under all circumstances, contributory negligence to enter an open elevator at an hotel when the conductor is awaYi and that is necessarily the ground. of this, demurrer, because, the declaration, in its statement of facts, discl'oses'llo'other whatever relating to that act of the plaintiff. '. Under smne circumstances it might be the grossest negligeildeto "'elevator while the cOlldu'ctor was away, an open door, and under others it might not be, possibly; even ,a.hd. th,I.·8I.·.sa qh8ti n for ,t.h.eJ.u.,'tY'o.'n the eviden in ea.ch particulal' c.ase, .. ...·.o. ....ce or. CQ*rt wh(\)ri 'the .evidence is in; but certainly it is upon J,>leadings, if the pleading be. o.therwise sU'ffict'efitj'w,ntfs''here,'where'itdhatges generally that the mJury, was done by the negligence of the defendant, and without the fault of the plaintiff. We all know eleV'l1tqrs are provided, with' seats to be occupied by the guests; and sl,:l.ppose one should remain seated while the conductor, from some em,ergellCy, should leave his post. would that be negligence? Possibly not, and yet. under some circum'. npt to leave theseai apdthe ele,vator. so/ .without negligence, under som.e we c;1nnot &lliYJ in the face of the declaration here, whitt, That this is the proper practice upon t1W 2 Thomp. Neg. p. 1235 37. In Railroad Co. v; Crist. court says: "We;do negligent breach of ,a *.'" * w:!lIfufto.rt \Voll!d. make the liable. if the plaintIff's negHaence contnbuted to the InJury, *'" '" but what we do 4ecide is that :the character of the duty, and tbenature of the place wherethe ,wfis:receivl!d,; 'are important factors in the solution of'the problem." that knowledge ofa danger or an unsafety does not al'ways,ahdtulder all'cil'cumstanees, preclude a reCovery as a matter pleadings. ,This case cites many and the knowledge of a danger bemg c()ntnbuit is no.t an absolute rule, as 'tlti§ I1ssumes, that It IS contrIbutory always to take · s.llevents, we cannot decide it on a de:ili'nrrer'to' in' Ill. this, hut reserve it for the trial · . 'iiJ)enr'U¥fe'r'bfe'truied. .." ;
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STEPHENS fl. OVERSTOLZ.
4:65
STEPHENS
'I).
OVEBSTOLZ.
{otrcttit Oourt, E. D. Mis8ouri, E. D. September 96, 1800.}
1.
SURVIVAL OJ' AOTIONS-RElIIEDIAL STATUTE·
.An act ot congress imposing a legal liability on tbedirectors of a nl!r.Monal bank for certain things whioh they may do, whioh shall result in an injury to the bank, its stockholders, or creditors, and lIlaking them liable for the amount of the dalllage, is a rellledial and not a penal statute, and 'therefore an action under it survives against the estate of a director.
2.
SAME.
Wbete a, bank director make8 a wrongful loan of 1Il0ney from which loss occurs, it is no'defense to an action, by the receiver of the bank against the director's estate tllat the iusolvenoy oUbe person to whom the loan was made was not discovered until' after the death of the director and the appointment of the receiver. , A ,general demurrer to a petition as a whole oannotbe sustained if there is one good cause ,of aotion stated it.
8.
PLEA'DING-DEMORRER.
At Law., 'On demurrer to petition. Action' by Lon V. Stephens, receiver of the Fifth National Bank of St. Louis, Phillipine Overstolz, executrix of Henry Overatolz, deceased. ' (leo. U. S. Atty., and Lubke Muench, for plaintiff. Oh¢er H. 'Kru,m, for defendant. :MILLIllR,Justice, (orally.) The main question in this case, which it would seem to necessary to determine at this time, is the question whether the right of action stated in the petition in favor of the ,receiver is one that has abated' by the death of the director who committed the wrongful acts charged, or is a right of action that survives against the executrix of the deceased. The argument is that the statute under which the suit is brought is a penal statute, and imposes a punishment; that the demand sLled for is a penalty; and that it is of that character that the right to reco\fer it ceased with the death of the wrong-doer. We cannot, as important as the case is, when on the circuit, where so much is to be done in a short time, give as full investigation to the authorities on the subject as we would like to do, but we have given it such con sideration as we are able to. and all three of us are of the opinion that the act of congress on this subject treats the directors of a national bank as persons charged with a duty and a trust for the benefit of other parties; that, when they viOI!1te such trust, the statute in effect declares that they shall compensate t4e parties who have been injured for that violation of the tr,ust. In effect ,that was a principle which existed before the statnte was enacted. The statute declares the mode of proceeding, the liability 0.£ the wrong-doer, and the limit of his responsibility. It is not so esscrntially a penal statute intended to ,punish a wrong-doer for a ,wrongfl;ll act as to bring it within that class of the liability for which expires with the death of the party. The statute imposes a legal upon the officers of .bank ifor certain things which, they may inaninjury the stockholders ,or v .43F .no.7 -30 M