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ence has hardly justified such an expectation, and we trust the Senate may yet demand it of him.
The nomination for Chief Justice must have been a surprise at least to one of our exchanges, which declares that "the law of social gravitation" has worked in favor of Mr. Justice Miller, and that, " over and above local influences and the preferences of friendship, the name of Miller has been ' spreading undivided ' and still ' operates unspent.'" A very disagreeable surprise it must have been to the fifteen gentlemen whom one newspaper enumerated as already in the field for the vacancy to be created by Mr. Conkling's nomination. That distinguished politician, however, we are told, refused to be made Chief Justice.
The New Attorney General. — The Hon. Benjamin H. Bristow has been nominated by the President to fill the vacancy caused by the promotion of Attorney General Williams. This is an appointment eminently fit to be made. Mr. Bristow was a staunch Union man in Kentucky during the war, and served with distinction in the army. As United States' District Attorney for the Kentucky district, after the war, he was noted for courage, strength, and executive ability. He is a man of good legal training and much breadth of mind, and enjoys the distinction of having been the first Solicitor General of the United States. His will be the fourth portrait of Grant's Attorneys General to be hung in the rapidly increasing gallery of the Department 'of Justice, which we sincerely hope will remain, under Attorney General Bristow's administration, without further extension, for some time to come.
Common Carrier's Right To Limit His Liarility. — A recent decision of the Supreme Court, in The New York Central Railroad Company v. Loctcu>ood, is of importance as bearing on the extent to which a railroad can limit its liability for injury to passengers. The action was brought for injuries received by a drover who was travelling on the same train with his cattle, and had signed an agreement to take all risk of injury to him and them, and had received a ticket, called a drover's pass, declaring that he waived all claims for injuries which he might receive during the journey. The opinion, by Mr. Justice Bradley, is elaborate and exhaustive. The conclusions to which he comes are, — *
First. That a common carrier cannot lawfully stipulate for exemption from responsibility when such exemption is not just and reasonable in the eye of the law.
Secondly. That it is not just and reasonable in the eye of the law for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his servants.
Thirdly. That these rules apply both to carriers of goods and carriers of passengers for hire, and with special force to the latter.
Fourthly. That a drover travelling on a pass, such as was given in this case, for the purpose of taking care of his stock on the train, is a passenger for hire.
The court purposely abstain from expressing any opinion as to the rights of the drover had he been a " free passenger."
Bankruptcy. —In response to a letter from the Hon. William A. Richardson, Secretary of the Treasury, the Attorney General, under the date of November 18th, is of opinion, —
First. That a payment made by a debtor to a creditor who has committed an act of bankruptcy, and against whom proceedings in bankruptcy have been instituted and are pending, but who has not yet been adjudged a bankrupt, will not be valid in the event of an adjudication of bankruptcy in such proceedings, if the payment transpired subsequent to the filing of the petition therein.
Secondly. That a payment made by a debtor to a creditor who is known to have committed an act of bankruptcy, but against whom proceedings have not at the time been taken, is valid in so far as it is affected by existing bankrupt laws.
Right Of Action Against A Corporation.—Implied Trust.— United States Circuit Court. The United States v. The Union Pacific Railroad. Co. and Others. — In this celebrated case some of the defendants who lived outside the district of Connecticut moved to dismiss the bill for want of jurisdiction, on the ground that Congress could not pass a special law extending the jurisdiction of the Circuit Court for a single case. Others demurred. The motion and the demurrer were both argued at Hartford, in September, by Messrs. Bartlett, Curtis, and Evarts, for the defendants, and by the Attorney General and Messrs. Jenckes, Perry, and Ashton, for the United States. On the twenty-ninth of November the court filed two opinions, one overruling the motion to dismiss, and the other sustaining the demurrer. The importance of the latter, we think, justifies us in printing it in full, in spite of its length.
Hunt, J. — This action was commenced during the summer of 1878 by process issuing from the district of Connecticut, and served upon defendants in other districts, who were not residents of Connecticut, nor found therein to be served with process. The Union Pacific Company, and twenty-four other defendants, now demur to the bill of complaint filed by the complainant. The alleged grounds of demurrer are, first, that the complainant, by its bill, has not made a case which entitles it to any discovery or relief in a court of equity from or against the defendants; second, that the bill is multifarious.
The proceedings taken by the complainant are based upon the Act of Congress of March, 1873. To understand them, or to appreciate the argument on the demurrer, it is indispensable that this act should be carefully considered. It is a portion of the act making appropriations for the expenses of the government for the year 1874, and for other purposes, and is in the words following: — ,
"Sfx. 4. That the Attorney General shall cause a suit in equity to be instituted in the name of the United States against the Union Pacific Railroad Company, and against all persons who may, in their own names or through any agents, have subscribed for or received capital stock in said road, which stock has not been paid for in full in money; or who may have received, as dividends or otherwise, portions of the capital stock of said road, or the proceeds or avails thereof, or other property of said road, unlawfully and contrary to equity; or who may have received, as profits or proceeds of contracts for construction or equipment of said road, or other contracts therewith, moneys or other property which ought, in equity, to belong to said railroad corporation; or who may, under pretence of having complied with the acts to which this is an addition, have wrongfully and unlawfully received from the United States, bonds, moneys, or lands, which ought, in equity, to be accounted for and paid to said railroad company or to the United States; and to compel payment for said stock, and the collection and payment of such moneys, and the restoration of such property, or its value, either to said railroad corporation or to the United States, whichever shall in equity be held entitled thereto. Said suit may be brought in the Circuit Court in any circuit, and all said parties may be made defendants in one suit. Decrees may be entered and enforced against any one or more parties defendant without awaiting the final determination of the cause against other parties. The court where said cause is pending may make such orders and decrees, and issue such process, as it shall deem necessary to bring in new parties, or the representatives of parties deceased, or to carry into effect the purposes of this act. On filing the bill, writs of subpoena may be issued by said court against any parties defendant, which writ shall run into any district, and shall be served, as other like process, by the marshal of such district. The books, records, correspondence, and all other documents of the Union Pacific Railroad Company, shall at all times be open to inspection by the Secretary of the Treasury, or-such persons as he may delegate for that purpose. The laws of the United States, providing for proceedings in bankruptcy, shall not be held to apply to said corporation. No dividend shall hereafter be made by said company but from the actual net earnings thereof, and no new stock shall be issued, or mortgages or pledges made on the property of future earnings of the company without leave of Congress, except for the purpose of funding and securing debt now existing, or the renewals thereof. No director or officer of said road shall hereafter be interested, directly or indirectly, in any contract therewith, except for his lawful compensation as such officer. Any director or officer who shall pay or declare, or aid in paying or declaring, any dividend, or creating any mortgage or pledge prohibited by this act, shall be punished by imprisonment not exceeding two years, and by fine not exceeding five thousand dollars. The proper Circuit Court of the United States shall have jurisdiction to hear and determine all cases of mandamus to compel said Union Pacific Railroad Company to operate its road as required by law. Approved March 3d, 1873."
I. This act prescribes different rules for the conduct of this suit from those by which ordinary suits are governed. Omitting the questions upon the act which give rise to the demurrer, and which may be considered as of the merits of the case, I notice the following as some of these differences :—
1. - The "said suit may be brought in the Circuit Court in any circuit, and all said parties may be made defendants in one suit." An objection that would ordinarily exist for a misjoinder of parties is cured by this provision. The objection of misjoinder of causes of action is cured by the same provision. The authority to bring a suit, and to implead various defendants, necessarily includes the right of stating the cause of action as it may exist against each of such defendants.
2. "Decrees may be entered and enforced against any one or more parties defendant, without awaiting the final determination of the cause against other parties." By the ordinary rules of chancery practice, a cause cannot be brought to a final hearing until it is ready for a hearing as to all the defendants; a final decree cannot be made against one defendant, leaving the interest of other defendants undetermined. Ordinarily there is to be but one final decree, and in that decree all the rights and interests of all the parties, however complex or varied, are to be settled. The law we are considering prescribes a different rule, and in effect authorizes a severance of the one suit commenced into one hundred and seventy different suits, in which decrees may be entered as the court shall hold to be just, independent of the result as to any other defendant. Congress intended that the suit should be against many persons; that it should include causes of action not connected with each other, or which might be hostile to each other, against persons not charged in relation to the same transactions, and which could not, under the ordinary rules of law, be united in the same suit.
3. The most striking departure from the ordinary rules for the conduct of a suit, is found in the following provision: "On filing the bill, writs of subpoena may be issued by said court against any parties defendant, which writ shall run into any district, and shall he served, as other like process, by the marshal of such district."
By the Judiciary Act of 1789 the territory of the United States is divided into judicial districts, for which district courts are appointed ; and circuit courts are organized, each circuit extending over one or more of said districts. By sec. 11 of that act, it is enacted that " the circuit courts shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and the United States are plaintiffs or petitioners, or an alien is a party, or the suit is between the citizens of a state where the suit is brought and a citizen of another state. . . . But no person shall be arrested in one district for trial in another in any civil action before a circuit or district court, and no civil suit shall be brought before either of said courts against an inhabitant of the United States by any original process in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ." (1 U. S. Stat 78, 79.)
The present suit was commenced and is pending in the Circuit Court for the district of Connecticut. By force of the statute of 1873 the writs for the commencement of the suit have been issued into ten different states. These writs have been served in those states upon persons not inhabitants of the district of Connecticut, in which district the suit was commenced, nor found within that district at the time of serving the writ. I do not pause here to consider the effect of this provision as a question of jurisdiction. The defendants insist that it is unconstitutional and void, as in violation of that article of the Constitution of the United States which provides that no person shall be deprived of life, liberty, or property, without due process of law, and they move to dismiss the bill on that ground. This motion will be the subject of consideration on another occasion. The provision is here important, as showing the difference in the conduct and management of this suit from that obtaining ordinarily in the circuit courts of the United States. For the present purpose its validity is assumed.
4. The process is authorized to be served upon representatives of parties deceased, and it is not required that they shall be residents of the district of Connecticut, or that their testators should have been such residents. As a general rule the power and authority of executors, both for the purpose of suing or being sued, is restricted to the state or district in which their letters are granted. The power of the executor to bring a suit is derived from his letters testamentary alone. Thus an executor appointed by the court of Connecticut, under authority of the statutes of that state, cannot bring a suit in that character in the state of New York. His authority will not be recognized in the latter state, but he must be reappointed under its authority before he can maintain an action. The principle is the same as to actions against executors and administrators. They must be called upon to respond within the local jurisdiction by which they are appointed. Their liability, as well as their authority, is thus locally limited. They are entitled to the benefits and protection of the laws which such local jurisdictions give them. (ATerr v. Morn, 9 Wheat. 565; Armstrong y. Lear, 12 Wheat. 189; Vaughn v. Northrop, 15 Peters, 5 ) This principle is overruled in the statute we are considering. As in the case of a former variation from the established rules of law, I assume for the present the validity of this provision, and refer to it here as one of the several differences to be found between the condition of the present action and that of an ordinary suit in the courts of the United States.
II. The powers and authorities by this act given to the Attorney General for the conduct of this suit, which have been pointed out, are in their nature exceptional and limited. They are not given to the Attorney General in all cases, but only in the case of the Union Pacific Company, and to redress the alleged wrongs specified in the act of 1873. It is quite safe to say that it is not within the general powers of the Attorney General to institute a suit in which he would be relieved from an objection of the misjoinder of the parties, and the misjoinder of causes of action; in wluch he could obtain final decrees against various defendants, from time to time, and as often as he might be prepared for that purpose; and in which he could cause to be executed writs to bring in defendants residing in remote districts, and who were not found in the district where the suit was commenced. Generally he may bring and maintain suits, subject to the ordinary rules of law.
In the present instance he insists, truly, that the act of 1873 confers extraordinary powers upon him. The act is his charter. Whatever is authorized (on the assumptions made) he may here do. Beyond it he cannot go.
It thus becomes necessary to ascertain for what alleged wrongs, or for what causes of action, the Attorney General was directed by the act of 1873 to commence a suit . If the allegations of his complaint are within the authority of that act, and if such allegations afford a good cause of action, his suit is maintainable; otherwise it is not.
III. For what causes of action, and against whom was the Attorney General thus directed to institute proceedings?
The act of 1873 directed a suit in equity to be instituted in the name of the United States,—
1. Against the Union Pacific Railroad Company, and all persons who may, in their own names, or through any agents, have subscribed for or received capital stock in said road, which stock has not been paid for in full in money.
2. Against persons who may have received, as dividends or otherwise, portions of the capital stock of said road, or the proceeds or avails thereof, or other property of said road, unlawfully and contrary to equity.
8. Against persons who may have received, as profits or proceeds of contracts for construction or equipment of said road, or other contracts therewith, moneys or other property which ought, in equity, to belong to said corporation.
4. Against any persons who have wrongfully and unlawfully received from the United States bonds, moneys, or lands, which ought, in equity, to be accounted for and paid to said railroad company, or to the United States. For these several causes of action, and for these only, the Attorney General is authorized in this suit " to compel payment for said stock, and the collection and payment of such moneys, and the restoration of such, or its value, either to said railroad corporation or to the United States, whichever shall be, in equity, entitled thereto. If either the railroad corporation or the United States is equitably entitled to such moneys, it is declared that recovery therefor may be had in this suit. The recovery of money or property, and not the regulation and management of the road, or the disposition of its estate, now or hereafter, is the object and purpose of the action.
For the purpose of enforcing these four specified causes of action, and for no other purpose, is the Attorney General invested with the unusual powers conferred by the act of 1878.