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The material facts are stated in the head note and about seven years after the contract was made, and opinion.

that said Spaulding died in September, 1882, without Charles Hamlin and Jusper Ilutchins, for plaintiff.

erer having executed and delivered the deed of tho

premises in accordance with said contract. H. L. Mitchell, for defendants.

The authorities are numerous that a respondent canFOSTER, J. The object of this bill is a specific per not avail himself of the statute of frauds, on demurformance of an oral agreement for the conveyance of rer, when a bill in equity is brought to enforco specific real estate. This necessarily presupposes an agree performance of an oral contract, although the bill adment, and the bill must, as in all cases of this descrip mits the contract to be parol, if such bill, in addition tion, set out what that agreement was.

to the contract, alleges matter avoiding the bar creUpon inspection of the bill it will be found to be a ated by the statute, such as part performanco. Ilarris parol contract for the sale of real estate, and therefore v. Knickerbucker, 5 Wend. 638. void by the statute of frauds. An action at law could In the caso at bar, to take the same out of the operanot be sustained on this agreement. Tho statuto for tion of the statute of frauds, the complainant relics on tho prevention of frauds would be a barrier to the certain facts alleged in the bill, additional to the fact maintaining of an action upon it.

that the contract was oral, ils amounting to such part The power of this court as a court of equity then performance as to give a court of equity jurisdiction must rest on other grounds, for the specifio execution to enforce specific performance of the contract. of parol agreements is decreed in equity for the pur What are these facts? The admission into pospose of preventing fraud.

session of the premises under and in pursuance of the Ileretofore, on account of limited equity powers, contract, immediately thereafter, and the open, excluthis court has declined to enforce specific performance sive and long-continued occupation of tho same, not of oral contracts relating to real estato, and it was not only during the time in which the payments were until February 28, 1871, that “full cquity jurisdiction, being made, but ever afterward for a period of more according to the usage and practice of courts of equity than thirteen years, together with full payment of the in all cases where there is not a plain, adequate and consideration or price agreed upon between the parcomplete remedy at law was conferred upon it, with ties to the contract. power of decreeing specific performance in cases of Possession of land taken by the vendee and this kind. St. 1874, ch. 175; Stearns v. llubbard, 8 Me. continued from the time of the contract to the 320; Wilton v. Hurucovul, 23 id. 131 ; Pulsifor v. Iluter timo of bringing the bill, such possession being man, 73 id. 24.

in pursuance of the contract, is an act of part perNor will a court of equity lend its aid to the enforco formance, taking the case out of the operation of ment of oral contracts, unless thero shall have been the statute of frauds. Turris v. Knickerbacker, such acts of part performance by the party seeking re Sipill. And in this case, where the possession had lief as will be considered suflicioni in equity to take been for eight years, the court says: “The possession the case out of the operation of the statute, and au is, in my judgment, to be considered as taken on ac. thorize a court of general equity powers in the exer count of the contract and pursuant to it; and being cise of sound discretion to decreo specific perform thus taken by tho appellant and continued so long, it

would be a fraud in him now to repudiato the conAnd it is woll sottled that the ground upon which tract. The respondent may therefore allege this poscourts of equity consider part performance of such session and its continuance by his permission as a part contract as creating an equity to have the agreement performance available to avoid the operation of tho specifically exocuted, is that it would be a fraud upon statute of fraudis.' the party if the transaction were not completed. Admission into possession having unequivocal referParkhurst v. Men ('ortlanil, 11 Johns. 15; Verton v. ence to the contract, has always been considered an Swazey, 8 N. II. 13; Tilton v. Tillon, 9 id. 391; Jalins act of part performance. Lester v. Foxcroft, 1 ('ole v. Brown, + ('omst. 110; Pulsifir ri Waterman, 733 Me. Parl. ('as. 103; Lead (ilis. in E4.771*; llorphuil v. 244; Kiilder v. Burr, 35 X. II. 235.

Jone's, 1 Swanst. 191; Kent (om. 151*; Waterman Where there has been part performance the refusal Spec. Perf., 270 to complete it is in the nature of a frand, and the de Although it was formerly hell otherwise, the aufendant is estopped to set up the statue of frauds in thorities now all agree that mere payment of the condefense. Polter v. Jucolis, 111 Mass. 337; Try Sprec. sideration alone will not take it out of the statute. Perf., $ 351;. Adams Eq. *80; 3 Pom. Eq. Jur., 110:). Webster 1. Blurlaill, 9 V. II. 1:20); (iluss v. llulbert, 102

We must in this case then examine and ascertain Mass. :S. Vevertheless possession together with paywhat the contract was in fact, the extent of its execu ment is suflicient part performance; and this act is tion by the party seeking aid, and in what the injury, greatly strengthened where improvements have been hardship or fraud would consist is a performance were made, serving to explain and define one act of part denied.

performance “to which it is itself il superaddeel and The contract set forth in the bill and admitted by contributory act." Brown St. Frands, 187; Tilton the demurrer, was that the complainant was to pay v. Tilbon, ! V. II. 390; Ictmore v. While, : (aines' Jeremiah G. Spaulding, now deceased, the sum of ('rs. Err. 109; Story Eq Jur., 7653; Slavl v. Il’ilder, 36 $100, $100 of which wils to be paid down, and the bal Vt. 7535; Waterm:m Spec. Perf., 270, 250). anco “to bo paid in such sums, at such times, and in The law is thus correctly stated by the Supreme such manner as might thereafter be convenient for the ('ourt of Vermont: “It is eqully well settled that complaivant," and at the completion of said payments where the purchases pays the whole or a part of the the complainant was to have a warranty deed of the purchase tioner, and enters into possession of the promises free of all incumbrance.

premises, or does arts relying upon the agreement, that It further appears that in pursuance of sail agree place him in sub il position that the refusal by the ment the complainant entered into the possession and seller to esecute the contract on his part will operato use of the premises the next day .. Ipril 12, 1972, and to his prejudice and injury, heyond the payment of has ever since, during a period of more than twenty the mosley, so that the repayment of the money, or the one years, with the full knowledge and consent of the recovery of it, wiil not be an adequate remedy, then respondents' intestate', continue in the possession and such acts will take the case out of the statute, and use of tho sawo; that payment in full was completed warrant it court of equity in decreeing a specific per


formance of the contract. A refusal under such cir ground tbat it would be inequitable and unjust. Holl cumstances to execute the contract, it is sometimes said v. Rogers, 8 Pet. 433; Barnard v. Lee, 97 Mass. 93. in the books, operates as a fraud ou the purchaser.”' • Inexcusable luches and delay," says Folger, J., in Stark v. Iilder, 36 Vt. 1755.

Merchants Bunk v. Thomson, 55 N.Y. 12, "will debar The defense here claimed by the respondents in re a party from the relief which, they being absent, he lation to the statute of frauds cannot prevail. The might have by a judgmeut for specific performance." facts alleged and admitted by the pleadings are suffi But whenever the delay is attributable to the party recient to constitute part performance on the part of the sisting performance, he will not be allowed it as a decomplainant, thereby taking the case out of the statute fense. Mnro v. Tuylor, 3 Mc. N. & G. 723; Morse v. and entitling him to a decree for specific performance, lleresl, 6 Madd. 26; Spurrier v. Huncock, 4 Ves. 667. unless by his delay in asking relief he has slept upon his In Lloyd v. Collett, 4 Bro. Ch. Chs. 469, Lord Loughrights, and been guilty of such laches as would deprive borough said the conduct of the parties, inevitable achim of that right.

cident, etc., might induce the court to relieve, notBy the terms of the contract the complainant was withstanding the lapse of time. And in Waters v. entitled to a deed at the time when he completed his Travis, 9 Johns. 450, the court held that mere lapse of payments for the land, which was something more time is not in all cases an objection to decreeing spethan twelve years prior to the death of Spaulding: It cific performance; and in that case where an agreecannot be claimed that until after the payments were ment for the sale of land was suffered to remain unexcompleted the complainant was in fault by reason of ecuted for fourteen years, the vendee having coutinany delay.

ued in possession, the court under the circumstances Where a vendee of land had paid a large part of the of the case decreed specific performance of the conpurchase-money, and a judgment was rendered for the tract. balance, it was held that a delay of eighteen years to It was stated by Spencer, J., that the continuance of enforce the contract was not a bar to a suit for specific the possession by the tacit consent of the respondent performance. McLaughlin v. Shields, 12 Penn. St. was a constant and continued affirmance on his part 283.

that the holding was under the agreement, and that In considering this branch of the case we are per

this was irresistible evidence that the agreement was mitted to regard the situation of the parties, their re not abandoned by the parties, and their conduct was lation to each other, and the circumstances of the case such as to leave no doubt that they both looked to the as gathered from the facts alleged.

future performance of it, and brought it within the The parties were near relatives, and the trust and principle laid down by Lord Loughborough. These confidenco in each other, whether well-founded or views are supported by Barnard v. Lee, 97 Mass. 93, otherwise, seems to have been reciprocal. The com and cases there cited; all v. Johnson, 20 How. 521; plainant was to have a warranty deed “free and clear Taylor v. Longworth, 14 Pet. 175; Hubbell v. Von Schoenof all incumbraces; ” but it appears that at the time ing, 19 N. Y. 330; Eyre v. Eyre, 19 N. J. Eq. 102. In of the contract these premises, together with other the case last cited there had been a delay for fifteen lands of said Spaulding, were incumbered by mort years in calling for specific performauce for the cougage, and remained thus incumbered till about a veyance of land under a parol contract, and without month prior to his death. Ile had many times ac any attempt to enforce it in the life-time of the knowledged payment in different parties, promised to vendor. givo complainant a deed, and it is alleged would have Mr. Justico (lifford, in the opinion of the court andono so had he not died.

nounced by him Ahl v. Johnson, supra, says, “that With whom are the equities in this case? Would a courts of equity, as a general rule, have always claimed clecreo for specific performance bo doing injustice, or and exercises the right to decree specific performance would a denial of it be inequitable?

of agreements in respect to the purchase and sale of The respondents represent the deceased, and there is real property, in their discretion, and usually to a more nothing that shows any change in the situation of the liberal extent in favor of purchasers than those who parties, or the property, or any now interests interven contract to sell such properties.” ing that would render a decree inequitable. The death The court expects the party to show that the relief of either party to such a contract does not impair its which he is seeking is under all the circumstances of obligation, and forms no objection to the maintaining the case equitable, and to account in a reasonable manof a bill for specific performance in a case where such ner for this delay. Taylor v. Longworth, 14 Pet. 175. performance might have been enforced hail the party This is nioro often the case where the contract is execlived. Newton v. Suuzey, 8 N. H. 11; Kidder v. Bur', ulory on the part of the complainant, than when it has 35 id. 253. Blero had been full execution of tho con been executed by him. Burnarů v. Lee, 97 Mass. 95; tract on the part of the complainant and full payment Waterman Spec. Perf., $ 480. by him. If the contract were executory on his part, In this case the eguities seem to be with the comand nono or a part only of the consideration had been plainant. True there has been delay in seeking his paid, tho equities between the parties would stand in equitable relief, but under the circumstances of this a different light. The court remarks in K'ing v. llam case, not such gross negligence as will necessarily deillon, 4 Pet. 3:28, that “when a party comes into a court feat his right. IIo was admitted into possession of the of equity seeking equity he is bound to do justice, and premises, and has lived there all the time under the not to ask tho court to become the instrument of in agreomont, paying the taxes and treating the property iquity."

as his own, paying in full the consideratiou in accordIn cases whero the contract is not fully executed on ance with that agreemont, without objection from the the part of the complainant seeking for a decree of spe respondents' intestate, Spaulding. Such occupancy, cilic performance, and even where time is not of the taken in connection with the relation and situation of essence of the contract, courts of equity will not inter the parties, the length of time it has continued, the fero where there has been long delay and luches on the fact of its incumbrance by mortgage, the admission of part of the party seeking specific performance.

payment and of promise to convey, indicates that the Especially is this true where thero has in the mean delay in completing the contract by executing and detimo been a great change in the circumstances, ils in livering a deed is certainly as much, if not more, atthe value of the land, and now interests havo inter tributable to the deceased as to the complainaut. vened. Iu such cases the refusal is upon the plain And it is as evident that this delay has been acquiesced

in by the deceased as well as by the complainant. It purchased, aud may therefore make a valid lease of goes to show that the contract was not considered by them for any term as years, though extending beyond either party as abandoned, but that there was “a con the limit of its corporato existence. But is is unnecstant and continued aflirmance” that the holding was essary to express a definitive opinion upon that point, under the agreement, and now when tho complainant because it is agreed in the case stated that the defendcamot be made whole in any other way, it is his right ant gave, in compromise of the original twenty notes to ask that tho agreement should be performed by the for $171.05 each, the new note for $1,881.60. If the party whoso delay and death has compelled him to plaintiff had exceeded its corporate powers in making seek the interventiou of a court of equity.

the original contract, yet it had authority to comproNor do we tbink the statute of limitations should mise and settle all claims by or against it under that apply in this case for the reasons before stated. The contract. Morville v. American Tract Soc., 1:23 Mass. language of Mr. Justice Barrows, in Lawrence v. 1:29. The compromise of the disputed claim on the Rokes, 61 Me. 43, may not be inappropriato in this con original notes was a legal and suflicient consideration nection, that “where it appears beyond question or for the new note. Cook v. Wright, 1 Best & S. 559; dispute that lapse of time has not in fact changed the Tuttle v. Tuttle, 12 Metc. 551; Riggs v. Hawley, 116 condition and position of the parties in any important Mass. 596. By the terms of the agreement of comproparticular, and there are any peculiar circumstances mise the plaintiff's cause of action on the original notes entitled to consideration as excusing the delay, they was not to revive, in case of the new note not being (the court) will not refuse the appropriate relief, al paid at maturity, except upon the surrender of this though a strict and unqualified application of limita note to the defendant. The plaintiff

' not having surtion rules might seem to require it.

* Ile does rendered it, but holding and suing upon it as well as not plead the statuto of limitations, and although un upon the original notes, has not performed the condi der rule 6 he may bave the benefit of a plea in bar by tion on which the revival of the right of action on the inserting its substance in his answer, in the absence of original notes depended. It follows that the plaintiff any intimation in the answer that he claims exemption cannot recover in this action on tho original notes for ou the score of lapse of time, the court will not inter $171.05 each, but is entitled to recover on the new noto fere to set up the bar, but will consider the respondent for $1,881.60. Vorthern Liberty Murket Co. v. Kelly. as waiving it, even though the facts alleged were such Opinion by Gray, J. as to make it appear that it might be successfully in [Decided Jan. 19, 1885.] torposed.”

UNITED STATES GOVERNMENT PROPERTY-UNAUNeither will courts of equity allow such a bar to prevail “to suits in equity, where it would be in the fur

THORIZED SILE.- A party to whom has been delivered therance of a manifest injustice.'' Story Eq. Jur., $

without sanction of law material of old ships, property 1521.

of the United States, to which he had no titlo whatUuder all the circumstances and upon the case as set

ever, by contract or otherwise, is accountable to the forth in the bill, we are of the opinion that the com

government for its full value, notwithstanding that plainant is entitled to the specific performance for

his account has been settled by the oflicers of the navy which he prays, and in accordance with the stipulation

department at a suu less than its full value. Both the of the parties, the entry should be: Demurrer over

disposition of the property and the settlement of the ruled. Bill sustained, with no costs for complainant.

account were without authority of law, and not bindDecree for specific performanco as prayed for in said

ing on the government. Nor can laches in not objectbill.

ing to the settlement of the appellant's account at an Poters, C. J., Danforth, Virgin, Emery and Ilaskell,

earlier time be imputed to the United States, and set JJ., concurred.

up as a bar to the recovery of the value of the property [Seu 37 Am. Rep. 817; 3 id. 657; 22 Eng. Rep. 764.

unlawfully appropriated. This is a case for the appli

cation of the rule nullum tempus occurrit regi. Lindsey ED.]

V. Miller, 6 Pet. 669; Gibson v. Christian, 1:3 Wall. 92.

Sleele v. United States. Opinion by Woods, J.


RAILROAD CORPORATION.-('ertain unsecured NEGOTIABLE INSTRUMENT — ('OMPROMISE - NEW creditors of a railroad company in Alabama instituted NOTE-CONSIDERATION-SURRENDER.-- Amarket-house proceedings in cquity in a court of that Stato, on becompany, incorporated for twenty years, with power half of themselves and of all other creditors of the to purchase, hold and convey any real or personal es same class who should come in and contribute to the tate necessary to enablo it to carry on its business, built expenses of the suit, to establish in lien upon the propa market-houso on land owned by it in fee-simple, and erty of that company in the hands of other railroad sold by public auction loases for ninety nine years, l'e corporations which had purchased and had possession newable forever, of stalls therein at a specified rent. of it. The suit was successful, and the court allowed The highest bidder for one of the stalls gave the corpo. all unsecured creditors to prove their claims before a ration several promissory notes in part payment for register. Pending the reference before the register the option of that stall, received such a lease, and took the defendant corporations bought up the claims of ind kept possession of the stall, and afterward gave it complainants and other unsecured creditors. Thereal noto for a less sum in compromiso of the original upon the solicitors of coniplainants filed their petition notes, and upon express agreement that if this note in the canse to be allowed reasonable compensation in should not bu paid at maturity the corporation might l'espect of the demands of unsecured creditors (other surrender it to the maker, and thereupon the cause of than their immediate clients) who filed their claims action on those notes should revive. Blclil, that the under the decree, and to have a lien declared therefor new note was upon il sufficient legal consideration, and on the property reclaimed for the benefit of such credo that the corporation, holding and suing upon all the itors. The suit between the solicitors and such denotes, could recover upon this note only. The plaintiff fondant corporations was removed to the ('ircuit ('ourt insists that the original notes were valid, because a of the United States. lIchil, (l) Within the principle corporation, empowered to hold and convey the real announced in Trustees v. Greenough, 10.5 l. S. 5:27, the estate for the objects of its incorporation, may convey claim was a proper one to be allowed; (?) it wils also au estate in feo or any less estate in lands which it has proper to give the solicitors alien upon the property




brought under the control of the court by the suit and manufacturers, whether natural persons or corporathe decree therein, such lien being authorized by the tions, in their private business. These limits of the law of Alabama. See also Montgomery, etc., R. Co. legislative power are now too firmly established by v. Branch, 59 Ala. 139; Matter of Lehman, id. 632; judicial decisions to require extended argument upon Warfield v. Campbell, 38 id. 527. Central Railroad & the subject. In Loan Association y. Topeka, 20 Wall. Bunking Co. of Georgia v. Pettus. Opinion by Har 655, bonds of a city, issued, as appeared on their face, lan, J.

pursuant to an act of the Legislature of Kansas, to a [Decided Jan. 5, 1885.]

manufacturing corporation, to aid it in establishing

shops in the city for the manufacture of iron bridges, MANDAMUS — ADEQUATE REMEDY – JUDGMENT OF were held by this court to be void, even in the hands CIRCUIT COURT.-A writ of mandamus is not ordi of a purchaser in good faith and for value. A like denarily granted when the party aggrieved has another cision was made in Parkersburg v. Brown, 106 U. S. adequato remedy. No formal allowance by the Cir 487. The decisions in the courts of the States are to cuit Court of a writ of error from this court to review

the same effect. Allen v. Jay, 60 Me. 124; Lowell v. a judgment of that court is required. Davidson v.

Boston, 111 Mass. 454; Weismer v. Douglass, 64 N. Y. Lannier, 4 Wall. 453. The writ issues in a proper case 91; In re Eureka Co., 36 id. 42; Bissell v. Kankakee, as a matter of right, but when sued out security must 64 Ill. 219; English v. People, 96 id. 566; Central be given, and a citation to the adverse party signed. Branch Union Pac. R. Co. v. Smith, 23 Kan. 745. We This security may be taken, and the citation signed have been referred to nofopposing decision. The cases by a judge of the Circuit ('ourt, or any justice of Hackett v. Ottawa, 99 U. S. 86, and Ottawa v, Naof this court. No action of the Circuit Court

tional Bank, 105 id. 34:2, were decided as the chief juscourt is required. It does not appear tice pointed out in Ottowa v. Carey, 108 U. S. 110, 118, from the petition that any application has been made upon the ground that the bonds in suit appeared on to eithor of the judges of the Circuit Court to approve their face to have been issued for municipal purposes, security or to sign a citation. If they should refuse an

and were therefore valid in the hands of bona fide application hereafter, resort may be had to either of holders. In Livingston v. Darlington, 101 U. S. 407, the justices of this court. It will be time enough to the town subscription was toward the establishment apply for a mandamus when all these remedies have

of a State reform school, which was undonbtedly a failed. Motion denied. Matter of Com’rs, ctc., of public purpose, and the question in controversy was l'iryinia. Opinion by Waite, C. J.

whether it was a corporate purpose within the mean[Decided Nov. 10, 1881.]

ing of the Constitution of Illinois. In Burlington v.

Beasley, 94 U. S. 310, the grist-mill, held to be a work ADMINISTRATION OF ESTATE-CONCEALMENT, FRAUD,

ot internal improvement, to aid in constructing which ETC.--SURVIVING PARTNER-TRUSTEC-PIRCIIASER

a town might issue bonds under the statutes of KanNOTICE.-(1) A settlement of an adininistrator's ac

sas, was a public mill which ground for toll for all cuscount by the decree of a Probate ('ourt does not con

tomers. See Osborne v. Adams Co., 106 U. S. 181, and clude as to property accidentally or fraudulently with

109 id. 1; Blair v. ('uming Co., ull id. 363. Subscripheld from the account. If property be omitted by

tions and bonds of towns and cities under legislative mistake, or be subsequently discovered, a court of

authority, to aid in establishing railroads, have been equity may take the proper action to do justice to the

sustained on the same ground on which the delegation heirs or creditors of the estato as to such property,

to railroad corporations of the sovereign right of emieven though the Probate ('ourt might in such case re

nent domain has been justified-the accommodation open its decree and administer upon the omitted prop

of public travel. Rogers v. Burlington, 3 Wall. 654; erty. (??) A fraudulent concealment or a fraudulent

Queensbury v. ('ulver, 19 id. 83; Loan Association y. disposition of property is always a ground for the in

Topeka, 20 id. 661, 662; Taylor v. Ypsilanti, 105 U. S. terposition of equity. (3) The administrator of a de

60. Statutes authorizing towns and cities to pay ceased member of a partnership, who taking advan

bounties to soldiers have been upheld, because the raistage of the consent of an ignorant and weak-minded

ing of soldiers is a public duty. Middleton v. Township surviving partner, assumes control of the entire part

of Mullica, 112 U. S. 433; Taylor v. Thompson, 42 111. 9; norship property, is bound to the utmost good faith in

IIilbish v. ('atherman, 61 Penn. St. 164; State v. his dealings with the property, and should be held in

Richland Tp., 20 Ohio St. 362; Agawam v. Hampden, its disposition to the responsibilities of a trustee of

130 Mass. 5:28, 5:31. The express provisions of the Consuch surviving partner. (1) A surviving partner,

stitution of Missouri tend to the same conclusion. It whose property is sold by the fraudulent act of a de

begins with a declaration of rights, the sixteenth articeased partner's administrator, may, instead of seek

cle of which declares that “no private property ought ing to annul the sale, coinpel the administrator to ac

to be taken or applied to public use without just comcount to him for the amount received for the property.

pensation." This clearly presupposes that private (5) A purchaser, who colluded with an administrator

property cannot bo taken for private use. St. Louis in the fraud by which a sale of partnership property

('o. Ct. v. Griswold, 58 Mo. 175, 193; 2 Kent Comm. 339 was consummated, takes tho property with notice of

note, 310, Otherwise as it makes no provision for comthe rights of the intestate's partner, and of the rela

pensation except when the use is public, it would pertion of trusteo which tho administrator bore to such

mit private property to be taken or appropriated for partner. Griffith v. (odey. Opinion by Field, J.

private use without any compensation whatever. It is [Decided Jan, 25, 1885.]

true that this article regards the right of eminent do("ONSTITUTIONAL LAW--EMINENT DOMAIN-PUBLIC

main, and not the power to tax; for the taking of USE-MUNICIPAL BONDS TO AID PRIVATE CORPORA

property by taxation requires no other compensation TION.—The general grant of legislative power in the

than the tax payer receives in being protected by the Constitution of a Stato does not enable the Legislatue government to the support of which he contributes. in the exercise either of the right of eminent domain

But so far as respects the use, the taking of private or of the right of taxation to take private property property by taxation is subject to the same limit as the without the owner's consent for any but a public ob

taking by the right of eminent domain. Each is a ject. Nor can the Legislature authorize counties,

taking by the State for the public use, and not to procities or towns to contract, for private objects, debts

mote private ends. Cole v. City of La Grange. Opinion which must be paid by taxes. It cannot therefore au by Gray, J. thorize them to issuo bonds to assist merchants or [Decided Jan.5, 1885.]


UNITED STATES CIRCUIT COURT AB The defendant was thus to advertise his implements STRACT.*

and sell them at a profit, and agreed to pay the brok

ers five dollars per newspaper for insertions so made. REMOVAL OF CAUSE-COLLUSIVE TRANSFER-REMAN]). Instead of carrying out this arrangement the brokers ING CASE-ACT OF MARCIL 3, 1875, S 5-EVIDENCE bad the advertisements inserted in newspapers in CREDIBILITY OF WITNESS-DISCRETION OF COURT.-(1) which they owned at the time, by contract with the A plaintiff who has been introduced into a controversy publishers, tho required space, or in which they had by an assignment or transfer merely that ho may ac procured the insertion of the advertisements solely by quire a standing and relation to the controversy, to en a consideration moving from themselves, and tho obable him to prosecuto it for the beneficial interests of taining tho implements was no inducement to the the original party, is collusively made a party to the newspaper proprietors. The agents intentionally presuit, and when the fact appears it is the duty of the vented the defendant from receiving all the benefits court to remand the suit, under section 5 of the act of which they undertook to obtain, and made only a Congress of March 3, 1875. Whero an extraordinary nominal performance of their contract. On the retransaction is disclosed, no satisfactory explanation of fusal of defendant to pay the agreed commissions they which is vouchsafed, and the evidence of the trans- brought suit thereof. llcle, that they had not acted action, which it was in the power of the parties to pro in good faith, and were not entitled to recover. The duce, has been withheld, the court may disregard the elementary principles which govern the decision of the testimony of the parties so far as it is improbable, and caso are stated in all the text-books, and in one of interpret the transaction in a way consistent with the them very clearly, as follows: “One of the rules, ordinary conduct and motives of business men. It is which will be found more particularly applicable to stated in Newton v. Pope, 1 Cow. 109, that it is dilli the relation of principal and agent is tho one that cult to establish a rule which shall regulato and limit good faith should always be observed,' and also tho the discretion of a court or jury in the degree of credit one that an agent camot act, so as to bind his printo be given to the testimony of a witness, but where cipal, when he has an adverso interest to him in himhe is unimpeached, the facts sworn to by him uncon self. This rule, says Mr. Justice Story, ‘is founded on tradicted, and there is no intrinsic improbability in the obvious consideration that the principal bargains the relation given by him, his testimony cannot be in the employment for the exercise of the disinterdisregarded. A witness may be contradicted by cir- ested skill, diligence, and zeal of the agent for his escumstauces as effectually as by the statements of other clusivo benefit.'" Petgr. Princ. & Ag. 23. (ir. ('t., D. witnessos. Conjecturo is not to be substituted for Comm. allen r. Pierpont Opinion by Shipman, J. probative indicial; but where these exist, a judge or a

JURISDICTION- ('IRCUIT COURT CONSOLIDATED) juror is not bound to surrender bis convictions and

RAILROAD) ('ORPORATION-CITIZENSHIP:--(1) A railroad blindly accept the statemont of a witness, because no other witness has contradicted it, and the character corporation composed of two corporations created in

the State of Michigan and one created in the State of of the witness is not impeached. The authorities are

Indiana, consolidated and merged into a single cornumerous that a judge or jury, in the exercise of ju poration under the laws of both States, owning and dicial discretion, is at liberty to reject the statements

operating a singlo continuous line of road from a cerof witnesses in the situation of the witnesses here, and

tain point in one State to a point in the other, is a under the circumstances of this case. Ilarding v.

citizen of the State of Indiana as well as of Michigan, Brooks, 5 Pick. 215; Elwood v. W. L. Tel. ('0., 15 N.

and cannot be sued by a citizen of Indiana in the CirY. 549; Kavanagh v. Wilson, 70 id. 177"; Gildersleevo r. Landon, 73 id. 609; Kochler v. Adler, 18 N. Y.287. ('ir.

cuit ('ourt of the United States for the District of In

diana. (2) The preciso question presented has never Ct., N. 1). Now York. Chandler v. Town of 11ticu. Opinion by Wallace, J. [(2) Seo 9: N. Y. 197; 85 id.

been authoritatively decided, though it has sometimes

been stated in opinions delivered in analogous cases, 377; 2 Abb. N. (!: 239, 257; 86 N. Y. 548, 55:3-1 ; 22 Fed.

and in one instance, at least, in opinion upon it has Rep. 6:34.]

been expressed. See l 'phofl v. Chicago, etc., R. ('0., 5 ("ORPORATION-ELECTION OF DIRECTORS-MUSMAX Fed. Rep. 515; Nashua & L. R. ('orp. v. Boston & L. AGEMENT-RIGUTS OF STOCKHOLDERS:- Where a cor R. ('orp., 8 il. 158; S. ('., 19 id. 301. In the latter caso poration, by contract not impeached, acquires it ma the plaintiff, being a consolidated company composed jority of the capital stock of another corporation, and of New Hampshire and Massachusetts corporations, through the control thus acquired elects new direct brought an action in the Feveral court in and against ors, and the latter corporation fails to fulfill its part of another corporation of the latter State, and in discusthe contract, the stockholders of the former company, sing the question of jurisdiction, when the case was on the solo ground that the acts of such directors are first under consideration, Nelson, J., said: “In this highly detrimental to the property and interests of the caso it seerns that the defendant corporation might go company, will not be entitled to an injunction against into New Hampshire, and there sue the plaintiff as a their further acting as directors and officers, and the New Hampshire corporation in the Federal court, appointment of a receiver of the property. See Dimp. although it could not bring such suit in the District of fell v. Ohio, etc., R. ('0., 110 U. S. 209; Ilawes v. (ak Massachusetts against the New Hampshire corporaland, 104 id. 450. ('ir. ('t., S. 1). New York, Dec. 13, tion, because no service upon the New Hampshiro cor1884. Converse v. Dimock. Opinion by Wheeler, J. poration as such could be got in this district, if for no

other reason. It has been determined by Judge LowAGENCY-CONTRACT TO PROCURE ADVERTISEMENT

ell that in some cases non-resident corporations may AGENT PERSONALLY INTERESTED) COMMISSIONS.-

bo served with process from l'nited States courts in firm of brokers, as agents for defendant, undertook to

other districts than those in which they were charhave his advertisements inserted in country newspa- | tered, and where they are found to be doing business pers, the proprietors of which were willing to furnish the required space for the required time upon the faith extend to a case like the present." In the other case

or domicile. But this rule would not, wo suppose, of defendant's written promise to sell to them from

it was decided that such a company, when sued in one ono to three feed-cutters, manufactured by him, at a

of the States in which it had been organized, by a citireduced price, the reduction in the price being the

zen of that State, cannot hy showing its organization compensation which the publishers were to receive.

in another State, procure a removal of the cause from * Appearing in Federal Reporter.

the Stato to the Federal court; and discussing tho

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