Gambar halaman

Errors assigned material to be noticed are as follows: dollars, for the other party to the instrument, and “to 1. That the court erred in directing the jury to return receive payment for the same at the times and in the a verdict in favor of the plaintiffs for the amount of manner therein described," which of itself shows to a the policy and interest. 2. That the court should have demonstration that the buildings when erected bedirected the jury to return a verdict the other way, as came the property of the plaintiffs, as the terms of the the law of the case was with the defendants. 3. That instrument, called a lease, show that the buildings were the court erred in not submitting the questions of erected for the plaintiffs on their land, and that they fact to the jury whether the plaintiffs were so far the paid the agreed price for their erection. Decided supsole, entire, and unconditional owners of the property port to that theory is also derived from another clause insured as to be entitled to recover in view of the of the lease, by which the lessee bound himself to evidence.

insure the buildings during the time employed in their Authorities to prove that a fee-simple estate is the erection, in the name and for the benefit of the plainhighest tenure known to the law is quite unnecessary, tiffs, and to deposit the policies in their keeping and as the principle is elementary and needs no support, possession. Policies were to be taken out and kept nor is any argument necessary to show that the title in force in the sum of thirteen thousand dollars, in of the plaintiffs to the land where the buildings stood the name and for the benefit of the lessors, during the was of that character, as that is admitted in the bill continuance of the lease, in companies to be approved of exceptions, which constitutes a part of the record. by the plaintiffs, and the stipulation was that the

Concede that, and it follows that the plaintiffs were, policies should be deposited with the lessors of the within the meaning of the policy, the entire, uncondi- property. Other evidence to support the theory of tional, and sole owners of the land where the build- the defendants is entirely wanting, the record showing ings stood, for their own use and benefit, at the time that they offered no evidence at the trial, and inasof the fire; and if so, the prima facie presumption much as the terms of the lease show that the plaintiffs must be that they held the title of the buildings by owned the land in fee simple and that they contracted the same fee-simple title, in the absence of any evi- to have the buildings erected and paid for their erecdence in the case to controvert that conclusion. tion and caused them to be insured in their own name None certainly was introduced by the defendants and for their own benefit, it is clear that the supposed and it is not pretended that there is any thing in the defense that the plaintiffs were not the entire, unconproofs introduced by the plaintiffs to support any ditional, and sole owners of the buildings, utterly fails, different theory, except the lease referred to in the and that the charge of the court directing a verdict for evidence offered to prove the loss.

the plaintiffs is correct. Land-owners under a fee-simple title, in the absence Attempt is made in this case to maintain the theory of any proof to the contrary, are certainly presumed that the plaintiffs are not the entire owners of the to be the owners of the buildings erected and standing property, because it was under lease both when the on the premises, the rule being that the buildings policy was issued and at the time of the loss, but it is and the lands together are known as real estate, and clear that the theory has no foundation in law or jus. the buildings, where nothing is shown to the contrary, tice. Nor can the theory be sustained which attempts are presumed to be held by the fee-simple owner of to separate the ownership of the buildings from the the land by the same title as the land on which the land, which it is admitted is vested in the plaintiffs by buildings are situated, from which it follows that the a fee-simple title. Such an assumption is coutrary to plaintiff's being the owners in fee of the same the facts exhibited in the record and can no more be are also the owners in fee of the buildings, unless supported than that the lessees of stores, tenementthere is something in the terms of the lease to houses, or other buildings in our large cities own the disprove that theory; and it is equally clear that if same by mere possession or occupancy of the particuthey are the entire, unconditional, and sole owners of lar stora, tenement, or building included in the lease the buildings as well as of the land, the assignment of they hold from the owner. error must be overruled,

Thousands of cases arise where dwelling house3, Nor is any thing contained in the lease to support stores, and other buildings of every kind, are leased to any different theory. Instead of that the lease shows occupants, for longer or shorter periods of time and that the plaintiffs were the owners of the land and upon still more varying conditions and stipulations, that the contractor agreed to erect the teu buildings and yet the owners procure insurance upou the same on the land for the owners; nor does it make any without mentioning the names of the lessees in the difference that the owners of the land contracted with policies, or ever suspecting that they have omitted any the builder that they, when the buildings were erected, duty, or been guilty of any concealment or neglect. would lease the same to him for the term of ten years. Insurance companies set up no such pretense, and if

Buildings of every kind are frequently erected by they should do so, they would find no support to such a land owners to be rented, nor is it any thing uncom- theory in the courts of justice. mo! that the contract for lease should be made before Stores and other buildings are sometines erected by the buildings are erected or that the contract for a their owners upon leased lauds, without any other title lease should be blended with the contract for erecting than what is derived from their lease, which is a very the building, as in this case. Leases of the kind are different thing from the case where the owner, both not uncommon, nor is there any thing in the terms of of the land and the building, leases the estate to the the instrument to countenance the theory that the occupant for a term of years, without parting with the title of the plaintiffs did not remain as before a fee- | fee-simple title to the land or the building. Feesimple title, as described in the admission of the de- simple ownership in such a case is matter of importfendants.

ance to the insurer, especially if the company is a In the words of the contract the lessee agreed to pro- mutual one, as such companies usually have a lien on ceed at once to erect ten buildings on the land therein the premises for the payment of the premium; nor is described, to cost not less than twenty-four thousand 'the ownership of the land an immaterial matter even if no such lien arises as it furnishes an important thorities in favor of the plaintiffs, as the facts in this element to enable the company to determine whether case show that the property, in the true sense of init is expedient to take the risk.

surance law, belonged to the insured at the date Considerations of the kind, it may be presumed, of the policy. Ins. Co. v. Kelly, 32 Me. 438; Hubinduced the defendants to insert the condition in the bard v. Ins. Co., 33 Iowa, 333. policy of the plaintiffs, " that if the buildings stand on Unless the true ownership or interest in the property leased ground it must be so represented to the com- is required by the conditions of the policy to be pany, and must be so expressed in the written part of specifically and with particularity and accuracy set the policy, otherwise the policy shall be void.” Noth- forth, it will in general be sufficient if the insured has ing of the kind is pretended in this case, and if it were, an insurable interest under any status of ownership or it could not be sustained for a moment, as it is ad- possession, in cases where no inquiries are made at the mitted in the record that the plaintiffs were the time the application is presented or the policy is owners in fee of the land where the buildings executed. May on Ins., $ 284. stood at the time of the fire.

No inquiry was made in this case, although it apAdjudged cases are invoked to sustain the theory of pears that the agent of the company who took the the defense, but none of those cited support the propo- insurance resided in Chicago, where the buildings were sition involved in the theory. Examples of the kind situated; nor did the defendants offer any evidence are Gahagan v. Ins. Co., 43 N. H. 177, and Warner at the trial to show that the unincumbered fee-simple v. Ins. Co., A1 Conn. 444, both of which are cases where title was not in the plaintiffs at the time the buildings the insured represented that the property covered by were destroyed by the fire; nor did the defendants the policy was free and unincumbered, when in fact it request the court at the trial to give the jury any was incumbered by mortgage. May on Ins., $ 290 ; instructions upon the subject. On the contrary, they Towne v. Ins. Co., 7 Allen, 51.

admitted at the trial that the plaintiffs were the ownCases are also cited where the insured had only a ers in fee of the land on which the buildings insured bond for a deed, or only a leasehold interest, and stood, leaving it to be inferred by the jury that the where the insured procured a policy as the absolute plaintiffs were also the owners in fee of the buildings. owner of the property in the face of those facts. Ins. Enough appears in the terms of the instrument, Co. v. Wright, 22 III. 474; Smith v. Ins. Co., 6 Cush. called the lease, to show that both the lessee and lessors 448; Brown v. Williams, 28 Me. 262; Hinman v. Ins. treated the buildings" during the process of erection” Co., 36 Wis. 167.

as the property of the plaintiffs, and to show beyond Much discussion of such authorities is not required, controversy that the buildings when completed vested as it is clear they do not favor the theory of the de- in the plaintiffs as their absolute property, subject fendants. Nor does the case of Smilh v. Ins. Co., 17 only to the right of the builder to occupy and use the Penu. St. 253, aid the defendants, as it is clear that if same, just as in the ordinary case where the owners a mortgagee insures his interest in the premises, he is of property agree to lease the same to be used by the bound, under a provision, calling for incumbrances, lessee for a stipulated rent. affecting his interest, to state prior mortgages on the Lessees holding under an ordinary parol lease do not same premises. May on Ins., $ 293.

acquire such an interest in real estate so leased as to Misrepresentations of material facts of course avoid avoid a policy issued to the lessor, even though the a policy, but there were none such in the case before insured failed to represent the matter to the company the court. Ins. Co. v. Laurence, 10 Pet. 516, cited by in a case where no inquiries were made of the applithe defendants.

cant, at the time the policy was issued, as to the true Where the policy contained the provision that if the character of the title or occupancy of the insured property to be insured is held in trust, or on commis- premises, and where no pretense is shown that the sion, or is a leasehold interest, or an equity of re- insured has been guilty of any fraud or misrepresendemption, or if the interest of the insured in the tation. property is any other than the entire, unconditional, Such a lease is a mere chattel interest, being reckand sole ownership of the property, for the use and oned as part of the personal estate of the lessee, and benefit of the insured, it must be so represeuted to

in រ se of the death of the lessee goes to his executors the company and be so expressed in the written part and not to the heirs-at-law, as appears by all the of the policy, otherwise the policy shall be void, the authorities. 2 Bl. Com. (Cooley's ed.) 143. Ex parte Gay, Supreme Court of Illinois held, in a case where it ap- 5 Mass. 419; Brewster v. Hill, 1 N. H. 351 ; Bisbee v. peared that the property had been sold under judgment Halt, 3 Ohio, 463; Dillingham v. Jenkins, 7 S. & M. and execution against the insured, that the non-dis- 487; Spangler v. Stanler, 1 Md. Ch. Decis. 36. closure of the sale and purchase avoided the policy, Leases for years, says Taylor, are considered chattel though the period allowed for redemptiou had not interests arising out of a contract between the parties, expired. Ins. Co. v. Brennan, 58 I11. 158.

and pass only a transient interest in the land, which By the sale and purchase in that case nothing was

is not a freehold, and might originally be made at left in the insured but the right of redemption, which common law by parol for any certain period. Taylor's would expire in one year from the sale, and it was well L. & T. (6th ed.), 2?; Moshier v. Reding, 12 Me. 482; held by the court that the paramount title being in a Marerick v. Lewie, 3 McCord, 210; Caricell v. Dietthird person, it could not be truthfully said that the rich, 15 Wend. 379; Chapman v. Black, 5 Scott, 533; insured had, at the date of the insurance, “the entire, Wuller v. Morgan, 18 B. Monr. 141. unconditional, and sole ownership of the property." Two requisites, says Blackstone, were necessary to

Beyond all doubt the property in the case under make a fief or feud: 1. Duration as to time. 2. Imconsideration vested in the lessors, and if so, the two mobility as to place; and he adds that whatever was cases cited by the defendants, of Mayor v. Ins. Co., 10 not a feud was accounted a chattel. Bosw. 545, and Mayor v. Ins. Co., 9 id. 434, are au- Chattels real, says the same commentator, are such as concern or savor of the realty, including terms for “ The person accepting this free ticket in considerayears, and are called real chattels, as being interests tion thereof assumes all risk of all accidents, and arising out of, or being annexed to, real estate, of expressly agrees that the company shall not be liable, which they have one quality, to wit, immobility, but under any circumstances, whether of negligence by want the quality of indeterminate duration, the want their agents or otherwise, for any injury to the person of which constitutes them chattels. 2 Bl. Com. 386; or for any loss or injury to the property of the passen2 Kent's Com. (12th ed.) 342; 5 Bacon's Abr. (Bouvier ger using the ticket. If presented by any other pered.) 434; 2 Comyn's Dig., Biens a.; 1 Chitt. Gen. son than the individual named therein, the conductor Prac. 244; Co. Litt. 46, 118 b.

will take up this ticket and collect fare." Terms of years belonging to a testator or intestate

The plaintiff testified that he put the pass into his vest in his executor or administrator without any pocket without looking at it, and the jury found entry, for the reason that in contemplation of law specially that he did not read the indorsement previsuch interests are chattels. Woodfall's L. & T. (9th ous to the accident, and did not know what was ined.) 239; Watterton v. Hakeuell, 3 Man. & Gr. 297 ; dorsed upon it. He had been a railroad conductor, Atkinson v. Humphrey, 2 C. B. 644; Ins. Co. V. however, and had seen many free passes, some with a Kelly, 32 Md. 438.

statement on the back, others without. Insurers, if they desire to object to such a risk, During the passage from Portland to Montreal, the should make inquiries of the applicant and should not car in which the plaintiff was riding ran off the track admit at the trial, without qualification, that the in- and was precipitated down an embaukment and the sured was the owner in fee of the land, in a case where plaintiff was much injured. The direct cause of the acthey offer no evidence in defense.

cident, according to the proof, was that at the place Judgment affrmed.

where it occurred, and for some considerable distance

in each direction, the bolts had been broken off the INJURIES TO PASSENGER TRAVELING ON

fish-plates which hold the ends of the rails together

so that many of these plates had fallen off on each FREE PASS.

side, leaving the rails without lateral support. The

cousequence was that the track spread and the cars SUPREME COURT OF THE UNITED STATES – OCTO- rau off as before stated. There was also evidence that BER TERM, 1877.

at this place the track was made of old rails patched

up. GRAND TRUNK RAILWAY Co, plaintiff in error, v.

The above facts appeared on the plaintiff's case, and STEVENS.

the defendant offered no evidence, but requested the Plaintiff below was negotiating, at Portland, Me., with de- court to instruct the jury as follows:

fendant below, a railroad company, for the introduction on its road of a patent car-coupling, and was requested

1. That if the plaintiff at the time of sustaining the by defendant to go to Montreal and see one of its offi- injury was traveling under and by virtue of the pass cers there, defendant agreeing to pay his expenses. He was given a pass directing conductors to pass him from

produced in evidence in the case, he was traveling Portland to Montreal. The pass contained this condi- upon the conditions annexed to it. tion: "The person accepting this free ticket in consideration thereof assumes all risk of all accidents, and

2. That if the plaintiff at the time of sustaining the expressly agrees that the company shall not be liable injury was traveling under and by virtue of the pass under any circumstances, whether of negligence by their agents or otherwise, for any injury to the person or for

produced in evidence in the case, the defendants are any loss or injury to the property of the passenger using not liable. the ticket. If presented by any other person than the individual named therein, the conductor will take up

6. That if the plaintiff at the time of sustaining the this ticket and collect fare." While traveling from injury was traveling as a free passenger, the defendPortland to Montreal, on this pass, on one of defendant's trains, plaintiff was injured by defendant's negli

ants are not liable. gence. Held, that plaintiff was carried for hire, in pur- 4. That if the plaintiff at the time of sustaining the suance of an agreement, and not as a gratuitous passenger ; (2) that it was not competent for defendant

injury was traveling as a gratuitous passenger, without to stipulate against liability for its own negligence in any consideration to the def..dants for his transporsuch a case, and it was liable for the injury.

tation, the defendants are not liable. N error to the Circuit Court of the United States for The court refused these instructions as inapplicable

the district of Maine. The facts appear in the to the evidence produced, and instructed the jury as opinion.

follows, viz. : Mr. Justice BRADLEY delivered the opinion of the That if the jury tind that in May, 1873, the plaintiff court.

was interested in a car-coupling, which had been used This was an action on the case for negligence, on the cars of the defendaut since December previous, brought to recover damages for injuries received by and that the officers of the company were desirous the plaintiff (now deferdant in error) whilst a passen- that the plaintiff should meet them at Montreal, to ger in the defendant's cars. The plaintiff, being owner arrange about the use of such couplings on their cars of a patented car-coupling, was negotiating with the by defendant, and they agreed with him to pay his exdefendant at Portland, Maine, for its adoption and use penses if he would come to Montreal, and he agreed so by the latter; and was requested by the defendant to to do, and took passage on defendants' cars, and was go to Montreal to see the superintendent of its car de- by the reckless misconduct and negligence of the department in relation to the matter, the defendant fendant, and without negligence on his part, injured offering to pay his expenses. The plaintiff consented whilst thus a passenger in defendants' car, the defendto do this, and in pursuance of the arrangement, he ants are not exonerated from liability to plaintiff fur was furnished with a pass to carry him in the defend. his damages occasioned by such negligence, by reason ant's cars. This pass was in the usual form of free of the indorsement upon the pass produced in evipasses, thus: “Pass Mr. Stevens from Portland to dence. Montreal," and signed by the proper officer. Ou its It is evident that the court below regarded the case back was the following printed indorsement:

as one of carriage for hire, and not as one of gratui

tous carriage, and that no sufficient evidence to go to least, that his acceptance of the pass should be rethe jury was adduced to show the contrary; and garded as competent if not conclusive evidence that hence, that uuder the ruling of this court in the case such a pass was in the contemplation of the parties of Railroad Company v. Lockwood, 17 Wall. 357, when the arrangement for his going to Montreal was it was a case in which the defendant, as a common made. But we have already shown that the carrying carrier of passengers, could not lawfully stipulate for of the plaintiff from Portland to Montreal was not a exemption from liability for the negligence of its ser- mere gratuity. To call it such would be repugnant to vants. In taking this view, we think the court was the essential character of the whole transaction. correct. The transportation of the plaintiff in the There was a consideration for it, both good and valudefendant's cars, though not paid for by him in money, able. It necessarily follows, therefore, that it was a was not a matter of charity nor of gratuity in any carrying for hire. Being such, it was not competent sense. It was br virtue of an agreement, in which the for the defendant, as a common carrier, to stipulate mutual interest of the parties was consulted. It was

for the immunity expressed on the back of the pass. part of the consideration for which the plaintiff con- This is a sufficient answer to the argument prosented to take the journey to Montreal. His expen

pounded. The defendant being, by the very nature ses in making that journey were to be paid by the

of the transaction, a common carrier for hire, cannot defendant, and of these, the expense of his transpor

set up, as against the plaintiff, who was a passenger tation was a part. The giving him a free pass did not

for hire, any such estoppel or agreement as that which alter the nature of the transaction. The pass was a is insisted on. mere ticket, or voucher, to be showu to the conductors

Since, therefore, from our view of the case, it is not of the train, as evidence of his right to be transported necessary to determine what would have been the therein. It was not evidence of any contract by rights of the parties if the plaintiff had been a free or which the plaintiff was to assume all the risk; and it gratuitous passenger, we rest our decision upon the would not have been valid if it had been. In this re

case of Railroad Company v. Lockwood. We have no spect it was a stronger case than that of Lockwood's.

doubt of the correctness of the conclusion reached in There the pass was what is called a "drover's pass,"

that case.

We do not mean to imply, however, that and an agreement was actually signed, declaring that

we should have come to a different conclusion, had the acceptance of the pass was to be considered as a

the plaintiff been a free passenger instead of a passenwaiver of all claims for damages or injury received

ger for hire. We are aware that respectable tribunals on the train. The court rightly refused, therefore, in

have asserted the right to stipulate for exemption in the present case, to charge that the plaintiff was travel such a case; and it is often asked with apparent coning upon the conditions indorsed on the pass; or that,

fidence, “May not men make their own contracts, or if he traveled on that pass, the defendant was free in other words, may not a mau do what he will with from liability. Aud the court was equally right in re

his own?” The question, at first sight, seems a simple fusing to charge, that if the plaintiff was a free, or

one. But there is a question lying behind that: "Can gratuitous passenger, the defendaut was not liable.

a mau call that absolutely his own, which he holds as The evidence did not sustain any such hypothesis. It

a great public trust, by the public grant, and for the was uncontradicted, so far as it referred to the ar

public use as well as his own profit ?" The business rangement by virtue of which the journey was under

of the common carrier, in this country at least, is emtaken.

phatically a branch of the public service; and the conThe charge actually given by the court was also free

ditions on which that public service shall be performed from material error. It stated the law as favorably by private enterprise are not yet entirely settled. We for the defendant as the latter had a right to ask. If

deem it the safest plan not to anticipate questions unsubject to any criticism, it is in that part in which the

til they fairly arise and become necessary for our decourt supposed that the jury might find that the plain

cision. tiff was injured by the reckless misconduct and uegli

The judgment of the Circuit Court is affirmed. gence of the defendant. If this degree of fault had been necessary to sustain the action, there might have

EXAMINATION OF DEBTOR IN COMPOSITION been some difficulty in deducing it from the evidence.

PROCEEDINGS. However, the condition of the track where the accident took place, without any explanation of its cause,

UNITED STATES DISTRICT COURT, MASSACHUwas perhaps sufficient even for such an inference. If

SETTS, FEBRUARY, 1878. the defendant could have shown that the injury to the rails was the result of an accident occurring so

RE WALTER PROBY. shortly before the passage of the train as not to give In proceedings for composition under the bankrupt law an opportunity of ascertaining its existence, it did not the register has power to conduct the inquiries allowed

to be made of the debtor, to take down the substance do 80; but chose to rest upon the evidence of the

of the answers, and to adjourn the meeting with and plaintiff. In fact, however, negligence was all that sometimes without the consent of parties, but he has

not power to conduct a written examination of great the plaintiff was bound to show; and of this there was

length, nor to extend the inquiries to the extent that abundant evidence to go to the jury. On the whole, would be proper in bankruptcy.


, we think that the charge presents are sufi: PROCEEDINGS. for composition... Application for

charge, certificate whether examination of debtor shall be if uot formally accurate, was not such as to prejudice continued. The opinion states the case. the defendant.

W. P. Fowler, for the debtor. It is strongly urged, however, tbat the plaintiff, by

Bicknell & Stacy, for the creditor. accepting the free pass indorsed as it was, was

LOWELL, J. The bankrupt offered a composition, estopped from showing that he was not to take his

and a meeting was called to consider it. A creditor passage upon the terms thereiu expressed; or, at

wished to examine the debtor, and, no objection being made, he has been examined from time to time, in stance of the answers, and to adjourn the meeting by writing, at sundry adjournments of the meeting. At consent of parties, and even, in some cases, against the the last hearing the debtor objected that the examina- wishes of one or the other; but not to conduct a writtion was being carried on at great and unnecessary ten examination of the length which this appears to length, an asked for a certificate whether it should threaten, nor to permit all the inquiries and investiproceed further, and this question has been argued. gation which would be proper in bankruptcy; and in

The statute says the debtor, unless prevented by most cases, I think he would be justified in refusing sickness or other cause, satisfactory to the meeting, to permit the inquiries to extend beyond the day of shall be present at the same, and shall answer any in- the meeting. quiries made of him. This is taken from the law of England; and in that law the proceeding is not one in VALIDITY OF STATE LAWS REGULATING bankruptcy, and the inquiries are not answered on

THE TRANSPORTATION OF CATTLE. oath, and there is no power to adjourn a meeting excepting by such a vote as would be sufficient to adopt a SUPREME COURT OF THE UNITED STATES, OCTOresolution for composition; but the creditors may

BER TERM, 1877. obtain an order for examination afterward upon making out a prima facie case of fraud. See Ex parte


iu Error, v. HUSEN. Levy, L. R., 11 Eq. 619; Ex parte Jones, L. R., 16 Eq. 386; Ex parte Till, L. R., 10 Ch. 631. We have copied

1. A statute of a State which prohibits driving or convey:

ing any Texas, Mexican, or Indian cattle into the State the words, but have varied the practice somewhat. between the first day of March and the first day of DeOur courts have held that the debtor should answer

cember in each year, is in conflict with the clause of

the Constitution of the United States that ordains on oath, and that the register has power to adjourn a * Congress shall have power to regulate commerce with meeting. See Re Holmes v. Lisberger, 12 N. B. R. 86.

foreign nations and among the several States and with

the Indian tribes. Ib. Notwithstanding these differences, our statute does 2. Such a statute is not a legitimate exercise of the police not, in my opinion, intend that the debtor, as it care

power of the State. It is more than a quarantine regu

lation. Ib. fully calls him, should undergo a regular written exam- 3. The police power of a State cannot be exercised over a ination, upon things in general, like one in bankruptcy.

subject, such as interstate transportation of subjects of

commerce, contided exclusively to Congress by the Fed. In the first place the meeting may excuse his attend- eral Constitution. Ib. ance altogether, which will effectually defeat all

4. While a State may enact sanitary laws, while, for the

purpose of self-protection, it may establish quarantine inquiry; in the next, the proceeding is plainly intend- and reasonable inspection regulations, while it may ed to be summary, and to settle, so far as the voting is

prevent persons and animals sutfering under contagious

or infectious diseases from entering the State, it canconcerned, whether the creditors will accept the not interfere with transportation into or through its propositions made them. In theory the creditors are

borders, beyond what is absolutely necessary for its self

protection. Ib. attending all this time, waiting to vote, and they must 5. Neither the unlimited powers of a State to tax, nor any attend each adjourument or lose their vote. No doubt

of its large police powers, can be exercised to such ani

extent as to work a practical assumption of the powers the attendance may be and, perhaps, almost always is conferred by the Constitution upon Congress. Ib. by proxy, but that does not help me to construe the

6. Since the range of a State's police power comes very

near to the field committed by the Constitution to Constatute.

gress, it is the duty of courts io guard vigilantly against Suppose after days or weeks of examination the

any needless intrusion. creditors should vote against the acceptance of the error to the Supreme Court of the State of Miscomposition, not on the strength of any thing contained souri. The facts appear in the opinion. in the answers to the inquiries, but because there had Mr. Justice STRONG delivered the opinion of the never been a sufficient number ready to vote affirma- court. tively. Many other cases might be put, which would Five assignments of error appear in this record; but exhibit reasons of conyenience, besides those which they raise only a single question. It is whether the the language of the statute suggests.

statute of Missouri, upou which the action of the State Our practice has been to permit any creditor to file court was founded, is in conflict with the clause of the objections to the recording of the resolutions and to Constitution of the United States that ordains “ Contake evidence on the matter before the final order.

gress shall have power to regulate commerce with Even this is inconvenient and expensive, but we have foreign nations, and among the several States, and found that by postponing the formal examinations with the Indian tribes.” The statute, approved Januuntil that time, no injustice is done to the objectors, ary 23d, 1872, by its first section, enacted as follows: and many of the cases are disposed of one way or the “No Texas, Mexicar, or Indian cattle shall be driven other with the consent of all parties, without the ex- or otherwise conveyed into, or remain in any county aminations.

in this State between the first day of March and the I appreciate the difficulties which a creditor has to first day of November in each year, by any person or meet if the debtor is fraudulent. I have often thought

persons whatsoever." A later section is in these it would be well to make a rule that any creditor words: “If any person or persons shall bring into this should be at liberty to examine the bankrupt before State any Texas, Mexicau, or Iudian cattle, in violathe meeting. This would remove some of the incon- tion of the first section of this act, he or they shall be veniences. I do not think the statute positively liable, in all cases, for all damages sustained on intends this, and, therefore, I have refused to grant account of disease communicated by said cattie.” such orders, but it does not follow that this court, in Other sections make such bringing of cattle into the the absence of any rule by the Supreme Court, has not State a criminal offense, and provide penalties for it. power to establish it as a general rule of practice, ap- It was, however, upon the provisions we have quoted plicable to all cases.

that this action was brought against the railroad comAs the law stands, I think the register must have pany that had conveyed the cattle into the country. the power, subject to the reviewing power of the court, It is noticeable that the statute interposes a direct to conduct the inquiries, and to take down the sub- prohibition against the introduction into the State of


« SebelumnyaLanjutkan »