UNITED STATEs
391
were deputies under Marshal Fitzsimmons. .The finding of the auditor on this suqject is in these words: "In the of thisc!,se it became necessary,1!P go into the account of the deputies the United and to ascertain the amount disallow'snces·. etc., and tbus to ascertain of their the balance. due them; and while. in accorqance with the view I have taken of the case, the statement of these balances is not neCeJJsaryto Ii proper unOf the issues involved, yet I. have thought proper to append a table, set fort/l in Exhibit L. cQverh;tg two pages, showing the balance due the deputies ,tl;lere named from the United States." . He then appends a table of the' amounts due the various deputies. This was nqt a matter referred to the auditor;. and, as will be setln by the langungeHhe uses,' he did DOt so consider it. The verdict in this case, which ,defendant desires now to have set aside,isin a suit Lt..Neen the United States, as' plaintiff, and O. P. Fitzsimmons and the sureties on his official bond, as del{mdants. The deputy marshals were not partiesto,the 'case, and, I understand that the finding of the auditor as to amounts due them was simply a voluntary statement of that which might be at same time beJ;lefieial to perso-ns at interest. As. a knowledge of the amoullt due by the, government to these various deputies came to him in the course ofhisiuvestigation; in auditing the account between the and Fitzsimmons, he attached it to his report, not as a finding on matter referred to him, but because he probably thought it might be desirable for future In a suit before my predecessor, Hon. H. K. MCCAY, in the circuit court for this district, between some of these very deputies Rnd O. P. Fitzsimmons and his sureties, a ruling was made by the cO)lrt which maybe of interest just here. The entire report of that, case, which I findin 1 Ga. Law Rep. 116, is given, for the reason that that periodical seems to have been very shortlived, and probably but a few num1;>ers of it are in existence. The case stated therein is 8S follows: "J. B. GfUJton, L. G. Pirkle, and A. P.Woodward vs. O. P. Fitzsimmom et a1. "(U. B. Circuit Court, Dtstrf.ct of Georgf,a. November 14th, 1885.) "BOND OJ!' l1. B. MAllSIuL-BUIT ON BY DEPUTY MARSIULS J!'OR FEES-LIABLE WHE1t'DBMUllllEll.
"A suit cannot be maintained a U. B. marshal, and the sureties on hts bond, for fees of U. S. deputy marshals paid over to him. Buch clam is against theU.S.
"Gaston and two other deputy U. S. marshals brought 'suit against O. P. Fitzsimmolls, U. S. marshal, and the sureties on his bond, in the United States circuit court, for the northern district of Georgia. claiming that vari. ous sums of money were due them for fees earned as such deputies; that said sum of money had been collected by said Fitzsimmons from the United States, and that he had failed to pay the same over to them. Defendants demurred to the declaration in said cause upon the following grounds: (1) That the court had,no jurisdiction. (2) That, if a liability existed, it was an indivulualand not an Official one. (3) That the deputies were co-obligors with the marshal. All of these cases were tried together on said demurrer. "J. O. Reed and Haight de Osborn, attorneys for plaintiffs.
392
,P'EDERALnEPORTER,
vol. 50.
, Johnson, Jrii::'Rson& King,fIop'ttins & Glen, R. B. 'bippe, and ·Albert S. Johnson, attorneys for defendants. "CouDsel for plaintiff insisted that th!lir cause of action arose under section 7S4,"ReV'tSti. '0. S;\,and under' the foliowing clause thereof:'In case of the the condition of a marshal's, 'bond, any person thereby injured may institute in bis own name, and fol' his sole. use, suit on said bond,' etc. , "MCCAY, J., held that plaintiffs were Dot injured by the failure of the to pay the money due over to them; that the United States still owed them,:'thattheir claimtor fees was agAinst the United States, and not disCharged by a payment to ,the marshal; that the government should pay the deputies, then Bue and I'eeover on the marshal's bond any sum that might be due ,the government by reason of the marshal's failure to pay over fees due said deputies. passed thefollowillg order in each of the three cases: I That tbe demurrer be sustained on the ground that the plaintiffs have no right of action theUnitea States marshaland the sureties on his bond: their against the United States. Wherefore, it is ordered that this calle be, dill[llissed,' etc."
, IHtillbe seen that the above decision was rendered by Judge MCCAY oriNovetnber 14, 1885. The original declaration in the suit by the 'United'States against Fitzsimmons and others, in which this motion for nevnrial"is made, was filed on November 18th,so that it seems likely that'the decision in the suit of the deputies against the marshal gave eblorito this case, and the management of it before the auditor. At all it seems never to have been suggested,even before the auditor, that 'there was any right in Fitzsimmons to set off the amount due the deputies against any aillount that might be found against him in fav{)r of the United States. Thelluditor states in his report that, in making his in'Vestigation, he treated Fitzsimmons as a disbursing officer of the government, charging him with all the money which went into his hiitids,and giving him credit for all disbursements to which he found him to 'be ntitled. Except as to a.'few items, which were eliminated from the case on trial before the jury, I do not believe that any serious ever been made by themarshal!o the of account, calculation, and finding of. 1f it was proper to treat officer of the government in making his investigatiqn. " legal questions, it is true,were raised, as to whether the auditor pursued the correct course in his method of stating the account betweeQ. the marshal and his deputies,all of which were disposed of by the court in the opinion heretofore filed in the case. There has been nq argument as to that question on this motion, and I presume that it is considered as disposed of by the former decision of the court. I have carefully,examined this case, and reflected upon it; and I am unable to see imy error in the conclusions that were reached in passing upon the exceptions to the auditor's report, or in deciding the motion to strike the plea 'Of set.off, which is copied above, or in the direction given to the wise when it was for trial before the COlut and a jury. It may be proper, however, to allude to each of the grounds of motion for new trial. The first three are based upon the statutory grounds in Georgia,--that the verdict is contrary tolll,W, contrary to evidence, and against the weight
UliITF;D STATES V. FITZSIMMOJllS.
393
of the evidence, and without evidence to support it, and that it did not cover the true issue in the case, and which is unnecessary to discuss; and I shall allude to each special ground relied on. The fourth ground of the motion for new trial, with additional grounds, as contained in an amendment filed to the motion, raised two questions, as I understand it: that the court erred in treating the auditor's report as prima facie correct. There would seem to be no question whatever about the correctness of this action of the court. This case was referred to an auditor under the statute of Georgia, (Code, § 4202;) and the law under which it was referred provides that the report 9f the auditor shall be prim(/, facie correct as to its finding of fact, (Code Ga. § 3097.) The second question raised in this fourth ground of the motion is as to the pro}lerway to state the account" between the marshal and his deputies, which qU'estion was disposed of by the court in determining the exceptions to the auditor's report; and to the conclusion there reached the court adheres. The fifth ground is that the court refused to charge'the jury on "a rule laid down in a circular issued by the first comptroHer's office of the treasury department, December 5, 1$85. Thisql1estiotl was also disposed of in the former opinion filed in this case, and"! see no reason to change the conclusion there reached. The sixth ground is: ,', ' "Because the evidence submitted before the auditor was not sent up with the report, and; though this exception was duly made and filed, the "c()Urt overruled. it, and proceeded with the case." ' As Lo the question made in this ground of the motion the court's views were first expressed in the decision on the exceptions. The court ex;' pressed the opinion then, from the facts and statements of counsel made on that hear,ing, that there had been a waiver by the parties as to ,the auditor filing a stenographic report of the evidence as taken by him; but subsequently, upon examination of the record, the court held that, if it was the duty of the auditor ,to send up the evidence, hahad done so in the brief of evidence submitted by him in connection with his port, and passed an order to that effect June 5,1889. The seventh ground of the motion raif:'ed the question as to the right of the marshal to have credit for the amount due by the government to his which has been discussed and disposed of. The eighth ground makes substantially the same question as contained in the seventh ground., The conclusion is that the motion for new trial must be overruled, and it is so ordered.
394 .';
hDERAL REl'ORT:ER,
vol. 50."
YOUNd". MoKAy. (C'&'cult' Oourt, N. D. C'al'V'o1-nia. April 18, 1899.) NATJON.r, BANKS-STOCIOIOL:QEB'S LJABILITr.,.....TRANSFEB OF
, tn Il.n action by the receiver of a national bank to enfC)rce an assessment under ,Rev. St.§ 5151, againll;t Onacredited on the transfer books as a stockholder, it that nearlY"a, "Yllar,,before the failure he had sold hiS, stock to a broker fOr an undiselosed prillciPal, that he indorsed tne same, and the broker to Inform the C8shieroftlietransaction, and to have the stock tranllferred: that the the stock to the cashier, gave him the necessary informatloll,and requested, to make the transfer. This the (lashier promised to do, but in foot the never made. The certificate recited that it was transferable, on the books, of tllA I:ompany "by Indorsement hereon and surrender of this certittcate." Held., that hi requesting the cashier to make the transfer the broker acted.asthe seller's agent, and that the latter did all that was' required of him as ,8, Rrlldent business mall, lind could not beheld liable as a stockholder. Whitney v.llutler, 7 Sup. Ct. Rep. 61, 118 U. S.655,followed. Richmond v. Irons, 7 Sup. et. Rep. '188, 121 U. S. 27;dlstinguished. '
At La.w.· Action by S. P. Young,Els receiver of the California National Bank of San Frandsco, against McKay, as a to recover an asseSsment on certaiu stock. Judgment for defendant. A. R.Cotton, for plaintiff. Edward R. Taylor and John R. Jarboe, for defendant.
JUdge, (orally.) This is an action brought by the receiver of the California National Bank of San Francisco to recover the amount of ani iassessment:levied by the comptroller of t·he currency at Washington upon 50 sharesofstock alleged to be owned by the defendant. On the 20th day of October, 1886, the defendant subscribed for 100 shares of stock. On ,the 4th day of November he paid the first installment of $2,500 on 50 shares. The other 50 shares were then transferred by him upon the books of the bank to R. P. Thomas, the president of the 'bank. On January 6, 1887, he paid the se.cond installment on 50 shares, and on April 18th he paid the final iustalhnent of $500, making in all the sum of $5,000, the par value of the stock. He held and owned the certificate for this 50 shares of stock until the 1st of January, 1888, when he sold it to S. R. Noyes for $6,000. At the time or'the saJ.e the bank was solvent, doing a good business, and its stoQk was above· par, selling in the open market at a premium of $20 per share. The defendant, in detailiug the faets rlotlCerning this sale of his stock, said that Mr. Noyes, a broker, came to his office and asked him if he had any shares of stock for sale i that he replied that he had, und asked $120 per share for it j that Mr. Noyes bought the 50 shares of him, and paid him $6,000 therefor j that he then indorsed the certificate, and handed it to Noyes, and said that he would go with him to the bank, and have the certificate transferred j that Noyes said that it was unnecessary to take that trouble; that he would attend to it himself, and have it transferred; that defendant then requested Noyes to inform thr cashier of the bank that he had no longer any interest in the stock, and to be sure and have the certificate transferred. Mr. Noyes' testi-