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some remedy, if any practicable and expedient remedy exists. The lawyer in an important case does not feel that he has discharged his full duty if he has not made a thorough examinatiou of the multitudinous mass of decisions and put the result upon his brief. The community which is conclusively supposed to know the law and required to obey it, does not attempt to acquire or affect to possess such knowledge. Tennysou's well-known picture borrows nothing from poetic coloring, but is severely drawn with the sober pencil of a judge.
• The lawless science of our law,
The codeless myriad of precedent,
May beat a pathway out to wealth and fame." Our condition is worse than the condition in England, since we have thirty-eight State courts of last resort, and no superior tribunal to harmonize conflicting decisions except in the comparatively small number of cases involving Federal law.
Still the inquiry comes back, What is the remedy? "If there no balu iu Gilead? Is there no physician there?" Still the question presses, Where or in what is all this to end ?
When we consider how purblind are the wisest and most sagacious in dealing with the future, I venture a forecast and the reasons therefor with unaffected distrust.
1. Our laws will, I believe, even if codification be not adopted, become relatively more and more embodied iu legislative form.
The greater certainty and convenience of a carefully considered enactment over the chaotic and unmethod. ized condition of the law when it has to be sought through volumes of reports and a variety of statutes, will constantly operate with no incousiderable force in expanding the scope of legislative action; and this, although codification in the sense usually attached to the term, be not undertaken. This tendency is especially observable in modern English legislation, and one cannot fail to perceive in the recent English reports how much greater than formerly is the proportion of causes that turn upon statutory enactments. In this silent, unperceived way the English bar and people are being educated up to and gradually prepared for codification in some practicable,expedient form. Every statute carefully thought out and fully covering an important sub
to all the complicated transactions of modern business and society, with a view wholly to supersede the reports.
The comprehensive scheme above outlined seems to have been Bentham's idea of a code. What is more visionary than the legal millenuium be pictured to his fancy? "Every man his own lawyer. Behold in this," he exclaimed, "the point to aim at.” Bentham never argued or tried a cause. His independent and vigorous intellect lacked the true legal wisdom that can only come from living contact with the law at the bar or on the bench,
He had all the elements of a reformer-enthusiastic, fierce, destructive. He is an unique, statuesque, eccentric figure in the English law. His sensitive nature personally unfitted him for the practice of his profes
But as we read his bitter, bold, sweeping denun. ciations of the evils in government and law as he saw them, we seem to behold in him an ancient prophet with flowing robe and beard, coming with a new message to an upheeding world. His assaults were not wholly without effect, and they brought about at length some useful emendations in the law. “Nobody has been so much plundered as Bentham,” said some one to Talleyraud, who replied: “True, but how rich he still is." The world is yet troubled over his ideas as to the rational and true purpose of that to which he gave the name of codification, and it is not impossible that a more remote age may accept as sound in principle what to most of us still seem to be his extravagant notions on this subject.
He believed it was possible to extract from the reports all that was valuable in them; nay, that this ought to be done, and done speedily, and embodied in a code, whereupon he would have beeu willing, I fancy, to have burned the law reports, and himself to have applied the torch. Unfortunately there is no alchemy by which the value of the law reports can all be extracted and transmuted into statutory ovin.
There are, I think, few advocates of codification who share in Bentham's extreme views; but there are many who believe, myself amongst them, that a far less radical scheme-one more suited to human nature's daily food-is not only feasible, but desirable, vizi a thorough revision and systematic statement, not of the whole law, but as far as it can be expediently done, of the law on the great subjects which relate to the ordinary business and life of the people; deducing and stating what is clear; removing what is archaic and obsolete; settling what is doubtful or obscure; filling in the gaps and interstices by legislative additions, never losing sight of the old land-marks, sailing ever close to the shore, using whenever they will answer the purpose old conceptions, language and methods of classification, and making no changes in substantive law, except where it is demonstrably clear that change is improvement.
Codification within these conservative limits has many advocates in England and in this country among lawyers and judges of ability and wide experience.
Of the opponents of codification of the unwritten law in any form, some deny its practicability and some its expedienoy. Its practicability proceeds in part upon the truth so clearly expressed by Lord Mansfield that “the law does not consist of particular cases, but of general principles, which are illustrated and explained by those cases.” Rex v. Bembridge, 3 Dougl. 332.
The number of the cases is legion, but the principles they establish are comparatively few, capable of course of being thoroughly mastered, and capable also of direct and intelligible statement. The objection to the expediency of such a performance, assuming the work to be thoroughly done by the ablest and fittest men in the profession, is that the freedom of growth of the
tanto a remedy for the unsatisfactory condition of the law ou that subject existing when the statute was en. acted.
But ought the legislative action to be so expanded as to embrace codification within its remedial endeav. ors? Well, what is codificatiou? The term is used in such a variety of senses that it must be defined before the question, Whether codification is an expedient remedy," can be answered.
By one class of oude advocates it is insisted that the essential idea of a code is a complete statement of the whole law of the land, including both statute law and case law. In their view the principles of true codifica. tion must assume that the law in its leading departments has practically attained its growth; that its principles are settled; that these can be and ought to be expressed in precise and logical form, without any necessary references to old language and conceptions or titles; that it is feasible to do this so as to cover the whole field of general law, to the end of superseding the prior statutes and the law reports; and that any lesser attempt argues an inadequate appreciation of the mischief and of the needful remedy. To me it has always seemed, I will not say chimerical, but inexpedient, to attempt a scheme so ambitious as the embodying into a code or statutory form rules applicable
unwritten law will thereby be arrested, and the inelas. character for learning and ability of many of the ticity and imperativeness of the codified rule will work benches of shifting judges is not such as to invest injustice, since the courts will be required to apply it their judgments and decisions with special value, the in cases in which the facts and circumstances would combined result will be a tendency more and more to take it out of the rule if the rule had not been cast in diminish the importance of the “case lawyer," and to an inflexible statutory mould.
make felt the importance of a knowledge of the great, There is some plausibility, but on the assumption living, fundan ental principles of our law and equity that the work of codification is done in the spirit and systems, and to argue and decide causes with greater manner I have indicated, there is little real force in reliance upon these principles. We have at length the objections. In my view, the codifier ought not to happily reached, in law as in literature, the salutary generalize any principle, so that it could fairly apply stage when, in the language of Dr. Johuson, “no preto any other than the class of cases specially defined, cedents can justify absurdity.” Life of Milton. and for which it was intended, to the end that the As therefore we must expect that adjudged cases codified rule shall, unless purposely changed, be sim- will continue to be reported, and continue as heretoply 00-extensive with the settled uncodified rule, fore to be used as authority, and to serve as sources or which the courts have no more power to cbange or to evidence of legal principles, we are deeply concerned refuse to apply in the uncodified than in the codified in whatever favorably or injuriously affects the value state. If cases shall arise not within the rule, and not of the reports. expressly provided for, they will be determined in the The character of many recent reports has deteriosame manner as if no code existed. If mistakes shall rated from several causes. To two of these I will now be made they can be speedily remedied by the Legisla- allude, because they arise from mistaken views and ture, which meets annually or bi-annually in all the practices of the judges themselves, and are therefore States; and by a standing provision for frequent leg- readily remediable. islative revision. A rule could also be enacted that Most of our appellate courts are crowded with the code should be construed as a code of the common causes, and the effect of this upon the judges is that law of the State, and not strictly, like statutes, in de- they too often feel it to be an over-pressing, pararogation of the common law.
mount, all-absorbing duty “to clear the docket.” This A more extended and radical scheme of codification mistakenly becomes the chief object to be attainedthan the one I have outlined is, I admit, theoretical, the primary instead of a quite subordinate considerapossible, and perhaps desirable, whenever the work tion. In the accomplishment of this end, the judges can be thoroughly done. Codification in some form are as impatient of delay as was the wedding guest in will, I feel sure, be accomplished at vo very distant the Rime of the Ancient Mariner. Added to this, a maday in Great Britain, and then, if not before, our jority of the Appellate judges generally reside elseStates will undoubtedly adopt the result with neces- where than at the capital or place where the courts are sary changes.
held, and the desire is constantly felt to bring a laboIn the law of procedure we have heretofore led the rious session to an end as speedily as possible, in order way, under an able and eminent lawyer of this State that they may rejoin their families and do their work (Mr. David Dudley Field) in a great reform, which in the fatigue dress of their libraries rather than under spread not only over our own land, but has crossed the the necessary restraints of the term. As a result, two two oceans, and lies at the basis of the recent and ex- practices have grown up too generally throughout the isting Judicature Act of Great Britain.*
country, which have, as I think, done more to impair It ought to gratify a laudable national and profes-the value of judicial judgments and opinions than persional pride if we could in like manner lead the way to haps all other causes combined. a reform equally needed, and within the limits indi- The first is tbat the submission of causes upon cated, equally practicable, in the substantative law printed briefs is favored, and oral arguments at the common to both nations. I recall here Mr. Webster's bar are discouraged, and the time allowed therefor is remarks in his finished eulogy on Mr. Justice Story; usually inadequate. "There is no purer pride of country than that in which On this subject I hold very strong opinions, but also we may indulge when we see America paying back hold that no opinion can be too strong. As a means the great debt of civilization, learning and science to of enabling the court to understand the exact case Europe; and in the august reckoning and accounting brought thither for its judgment;/as a means of elicbetween nations, returning light for light and mind iting the very truth of the matter, both of Jaw and for mind. Acknowledging, as we all ackvowledge, fact, there is no substitute for oral argument. None! our obligations to the original sources of English law, I distrust the soundness of the decision of any court, as well as of civil liberty, we have seen in our genera- of any case, either povel or complex, which has been tion copious and salutary streams turning and running submitted wholly upon briefs. Speaking, if I may be backward, replenishing their original fountains, and allowed, from my own experience, I always felt a reagiving a fresher and brighter grace to the fields of sonable assurance in my own judgment, when I had English jurisprudence.”
patiently heard all that opposing counsel could say to 2. In course of time each State will have, as the aid me, and a very diminished faith in any judgment result of permanent statutes and the lengthened line given in a cause not orally argued. Mistakes, errors, of its own judicial decisions, a jurisprudence of its fallacies and flaws elude us in spite of ourselves, unless own, so ample that the necessity for going beyond it the case is pounded and hammered at the bar. This will arise only in the novel and exceptional cases, mischievous substitute of printer's ink for face-to-face which will justify and reward the labor.
argument impoverishes our case law at its very source, 3. As the common law happily underlies our juris- since it tends to prevent the growth of able lawyers, prudence, thereby giving it a general uniformity of who are developed only in the conflicts of the bar, and character, and as the labor of examining the multitude of great judges, who can become great only by the aid of reports becomes more and more onerous to the busy of the bar that surrounds them. It was not thus until practitioner or the equally busy judge; and as the a quite recent period. Nor are these views at all novel
Lord Coke refers to the benefits of oral arguments in * Fortunate man! To have had his days graciously
language the most solemn and impressive. In cases of prolonged so much beyond the common span, that he
difflculty he says: “No mau alone, with all his uttermight witness this ecumenical triumph of the ideas of his earlier, but not more enthusiastic, days.
most labors, nor all the actors in them, themselves by themselves, out of a court of justice, can attain unto
a right decision; nor in court without solemn argu- | ciples of law wbich apply to this precise state of ment, where I am persuaded Almighty God openeth facts, each of whicb operations requires the disciplined and enlargath the understanding of those desirous of exercise of intellectual qualities of a high order; when justice and right."
the bench shall be constituted of the flower of the bar, Formerly whenever a new or difficult question arose and appellate judgments shall not be giveu without a the judges of England invited argument and reargu- previous conference of the judges, at which the grounds ment always in open court; and in the earlier days of of the judgment shall be agreed upon before the recthe law the matter was not only debated at the bar by ord is assigned for the opinion to be written; when the counsel for the parties, but was afterward dis- opinions shall be rigidly restricted, without unnecescussed by the judges openly at a time prefixed in the sary disquisition and essay writing, to the precise presence of the barristers and apprentices. "A rever- points needful to the decision, we will have an abler end and honorable proceediug in law, a grateful satis- bar, better judgments, and an improved jurisprudence faction to the parties, and a great instruction to the in which erroneous and conflicting decisions will be studious hearers."'*
few and reduced in the minimum. If, gentlemen, our case law is not to go on deterior- And bere I must close. My purpose has been to ating, we must revive the former appreciatiou of the show that our system of jurisprudence is consonant value of oral arguments. It is there that must be fa- with the genius of our people and with our civil and vored, and it is the submission wholly on briefs that | political ivstitutions; that it is an outgrowth of them, ought to be discouraged.
and powerfully supports and sustains them. It is, in The other practice among some, I fear many, of our its ground work, the system that prevails wherever, in appellate courts which injuriously affects our case law, either continent, the English language is spoken. In is the practice of assigning the record of causes sub- our law libraries we find the learning and labors of mitted on printed arguments to one of the judges to judges administering this system in law reports from look into and write an opinion, without a previous ex
India, South Africa, Australia, New Zealand, the amination of the record and arguments by the judges
Sandwich Islands and the West Indies. All this is the in concert.
heritage, by a species of tenancy in common, of the This practice ought to be forbidden; peremptorily English and American lawyer, who wherever, within forbidden, by statute. What is the most difficult func- this wide horizon, he finds his language spoken, finds tion of an appellate court? It is, after the record is also individual and civil liberty, popular institutions, fully opened and the arguments understood, to deter- legislative assemblies, the grand and petit jury, Magna mine precisely upon what point or points the judgment Charta, Habeas Corpus,the same sacred regard for iudiof the case ought to turn and rest. This most delicate vidual rights, the same reverential affection for, and and important of all judicial duties ought always to be instinctive obedience to law. What incalculable adperformed by the judges in full conference before the vantages! We have the same legal literature. We bave record is delivered to one of their number to write the the same legal firmament, in which we behold Hale opinion of the court, which, when written, should be and Mansfield, Hardwicke and Story, Blackstone and confined to the precise grounds thus predetermined. Keut, Erskine aud Webster. We partake mutually of But in respect to oral arguments and prior confer
the benefits of each other's labors. Whoever achieres ences, it gives me sincere pleasure to add that the Su- auy thing for the advancement of the law, achieves it preme Court of the United States is a model for every not for his own country alone, but for all Englishappellate tribunal in the country.
speaking and English-governed peoples. When the ideal of legal education shall be the master My further purpose has been to show that although of principles, so that the first impulse of the lawyer this system is not without serious defects, rather howwill be to find the “principle" and not the " case ever of form than of substance, the remedy is not to that governs the matter in hand; when arguments at substitute the principles of some alien system, but to the bar shall be mainly directed, first, to an ascertain- engraft the needed amendments and changes on this ment of the peculiar avd controlling facts of the case hardy, native stock. under consideration, and then to pointing out the prin- The special duty of the American lawyer is of course
to improve and promote the jurisprudeuce of his own ** Whereunto (in those cases that be tortuosi and of country. That we recognize this duty, the existence great difficulty, adjudged upon demurrer or resolved of this association, of which this is the chief end, and in open court) no one man alone with all his true and
your presence fully attests. What great and complex uttermost labors, nor all the actors in them, themselves problems confront the American lawyer, growing out by themselves, out of a court of justice, nor in court of our vast territorial extent, and our District, Federal without solemu argument, where (I am persuaded Al- and State systems of government and jurisprudence; mighty God openeth and enlargeth the understanding out of the changes wrought by iron, steam and elecof the desirous of justice and right) could ever have at- tricity in business, and all the modes of communicatained unto. For it is one amongst others of the great tion and transportation; out of the combinations of honors of the common laws that cases of great dilli- capital almost without limit, in corporate form, affectculty are never adjudged or resolved in tenebris or sub ing interests vital to individuals and to society. The silentio suppressio rationibus; but in open court, and law has to be adapted to these new situations and cirthere upon solemn and elaborate arguments, first at cumstances. What a weighty work! Truly it demands the bar by the counsel learned of either party (and if the most attentive study, the most penetrating obserthe case depend in the Court of Common Pleas, then vation, the most sedate consideration, the ripest judgby sergeants at law only); and after by the bench by ment. Here will be found work enough for us all. the judges, where they argue (the puisve judge begin- We have laid, as I have attempted to show, the foundning and so ascending) seriatim upon certain days ations of a noble jurisprudence, and during the two openly and purposely prefixed, declaring at large the centuries of our colouial and national life the structauthorities, reasons and causes of their judgments and ure has been carried along so as to meet contemporary resolutions, in every such particular case (habet enim wants and needs. The work must however go forward nescio quid energiae viva vox) a reverend and honora
with the national progress. What more generous amble proceeding in law, a grateful satisfaction to the bition can inspire; what higher duty can engage the parties, and a great instruction and direction to the American lawyer than to assist in his day in advancattentive and studious hearers.” Sir Edward Coke's ing this structure, and adapting it, by alteration and Preface to Oth Coke's Reports, page XIV
enlargement, to the changed and changing conditions
of society, a work which must ever go on, and never be and the grant was to the patentee, his “heirs, admincompleted!
istrators, executors or assigns," St. July 4, 1836, $ 5; 5 "Some unfinished window
St. 119. In 1870 administrators and executors were left In Aladdin's Tower
out. This omission is not significant. The law was Unfinished must remain."
not changed by it, the proof of which is that executors and administrators are mentioned as taking title in
five of the sections of the Revised Statutes which rePATENTS ARE PERSONAL PROPERTY.
enact the law of 1870. Thus, by section 4896, if an inUNITED STATES CIRCUIT COURT, DISTRICT OF MAS- ventor dies before a patent is granted, the right to obSACHUSETTS, MARCH 12, 1884.
tain it devolves on his executor or administrator, in
trust for his heirs at law (that is, his next of kin, as we SHAW RELIEF VALVE Co. v. CITY OF NEW BEDFORD.*
have seen), or to his devisees, as the case may be, which A patent-right is personal property, and goes to the executor.
technically should be legatees. By section 4898 every Section 4884 of the Revised Statutes, providing for the
patent shall be assignable, and the patentee and his asgrant of a patent to the patentee, “his heirs and assigns,"
signs, does not change the law by which executors and admin
or legal representatives,' may in like manner istrators take the title to a patent on the death of the
grant, etc. Now legal representatives usually means owner, as appears by other sections of the same chapter. executors or administrators (Price v. Strange, 6 Madd. N
159; Re Gryll's Trusts, L. R., 6 Eq. 589), and it has that meaning in this statute, for by section 4896, above men
tioned, by which the executors or administrators are Charles H. Drew, for complainant.
authorized to apply for a patent, it is provided that C. J. Hunt, for defendant.
wheu the application is made "by such legal represenLOWELL, J. This bill is brought upon two patents,
tatives," the oath shall be varied to meet their situa
tion. By section 4900 it is made the duty of all patand the demurrer of the city of New Bedford raises several objections, all but one of which, it is agreed,
entees and their assigns and “legal representatives can be and may be removed by amendment. A question
to do certain acts by way of informing the public that which cannot be thus disposed of, and which has been
the article they make or sell is patented. By section argued with earnestness, and is pending in at least one
4922, when a patentee has innocently claimed more other Circuit, is whether the complainant's title to an
than his invention, he, his executors, administrators undivided part of one of the patents is sufficient. It
and assigns may maintain a suit on the patent, notseems that this title comes through an administrator
withstanding the mistake. By section 4916 if a patof the patentee, and the defendant contends that the
entee is dead, without having assigned the patent, and grant of a patent, by Rev. Stat., $ 4884, is to the pat
there is occasion for a reissue, it shall be made to his entee, “his heirs and assigns," and that by force of
executors or administrators. From a comparison of these words a patent descends directly to the heirs,
these sections it is made clear that a patent-right, like without the intervention of the administrator. This
any other personal property, is understood by Congress is a new and somewhat surprising proposition. It has
to vest in the executors and administrators of the patnever been doubted before that a patent personal
entee, if he has died without having assigned it. It is property, which follows the ordinary course, and goes
really of no consequence whether they hold in trust for to the executor or administrator in trust for the next
heirs or for next of kin, so long as they take the legal
title. of kin. The cases take this for granted, and when any question has been mooted, it has had reference to the
It was argued that Congress may have intended to due qualification of the executor or administrator, or
express by the word “heirs" that a patent should not something of that sort, as ir Rubber Co. v.Goodyear, 9
be assets for the payment of debts. But they have Wall. 788. The text-writers treat of patent-rights as
not only not exempted patent-rights from being taken personal property which goes to the executor. Norm.
for the debts of the owners, but have required that Pat. 145; Schouler Exrs., $ 200. The defendant argues
they should be so taken by assignees in bankruptor that the statute of 1870 changed the rule by omitting
(Rev. Stat., § 5046); and the Supreme Court have the words "executors and administrators” from what
failed to discover such an intent, for they hold that by is now section 4884, intending to make a sort of real
due process in chaucery a patent-right may be applied estate of this incorporeal right. He has not argued
to such payment. Ager v. Murray, 105 U. S. 126. Inthat the widow can be endowed of it, but I suppose
deed section 4898 is decisive of this question, for it exthat will follow. A grant of personal property to a
pressly provides that the legal representatives of the man and his heirs, without further qualification,
patentee may assign. Even if this were a mere statumeans to him and his next of kin, according to the
tory power, the authority would be sufficient; but it statute of distributions. 4 Kent Comm. (5th ed.) 537,
is of course a recognition of a fact, and not a new grant
of power. note d, and cases; Vaux v. Henderson, 1 J. & W. 338n. ;
Demurrer overruled. Gitlings v. McDermott, 2 Mylne & K. 69; Re Newton's Trusts, L. R., 4 Eq. 171; Re Gryll's Trusts, L. R., 6 Eq. 589; Re Steeven's Trusts, L. R., 15 Eq. 110, Re Thomp- FEDERAL JURISDICTION-STATE LAWS. son's Trusts, 9 Ch. Div. 607; Houghton v. Kendall, 7 Allen, 72; Sweet v. Dutton, 109 Mass. 589. Such a grant UNITED STATES CIRCUIT COURT, DISTRICT OF INDIANA. is simply a limitation of an estate of inheritance, hav
FEBRUARY 26, 1884. * ing no reference one way or the other to the administrator. He takes in trust for the next of kin, because
HULL V. DILLS. the estate is more than a life estate. The acts of Con- A bill of complaint having been filed by a ward against his gress have not been draw with technical accuracy guardian in the United States Circuit Court for Indiana, in this particular respect. Down to 1836 the word it was contended by the defense, that according to the "executors was omitted, and patents were issued to
laws of Indiana, in matters of probate, relief could be
granted only by the courts in which the proceedings were the patentee, his "heirs, administrators, or assigns'
had, and that these could not be made subject to any cola (St. April 10, 1790, $1; 1 St. 110; St. Feb. 21, 1793, $ 1;
lateral proceedings. Held, that the equity courts of the 1 St., $ 321); but no one ever doubted but executors
United States are not affected by the restrictions laid by would take the title. In 1836 executors were added, the several States upon their own equity courts. *S. C., 19 Federal Reporter, 753.
* 19 Fed. Rep. 957.
O demurrer to bill.
Sullivan & Jones, I. L. Penfielıl, and E. Callahan, for complainant.
Combs, Bell & Morris, for defendant.
366; Jones & C. Pr. 270, S6; Rorer Jud. Sales, 125, $ 317; 2 Story Eq., $ 1339.
Whatever may be the rule in and in respect to the State courts, the jurisdiction of the Federal courts, iu such cases, if the parties be citizens of different States, seems to have been distinctly declared and upheld.
In Payne v. Hook, 7 Wall. 4:25, a case wherein the bi]l sought “to open the settlements with the Probate Court as fraudulent, and to cancel the receipt and transfer from the complainant to the administrator because obtained by false representations," the proposition was advanced “that a Federal court of chancery sitting in Missouri will not enforce demands against an administrator or executor, the State court, having general chancery powers, could not enforce similar demands." In response to this, the Supreme Court, by Davis, J., says: “If this position could be maintained, an important part of the jurisdiction conferred on the Federal courts by the Constitution and laws of Congress would be abrogated. But this objection to the jurisdiction of the Federal tribunals has been heretofore presented to this court and overruled."
“We have repeatedly held 'that the jurisdiction of the courts of the United States cannot be impaired by the laws of the States which prescribe the modes of redress in their courts, or which regulate the distribution of their judicial power.' If legal remedies are sometimes modified to suit the changes in the laws of the States, and the practice of their courts, it is not so with equitable. The equity jurisdiction conferred on the Federal courts is the same that the high court of chancery in England possesses; is subject to neither limitation for restraint by State legislation; and is uniform throughout the different States of the Union. Ilgde v. Stone, 20 How. 175; Union Banks v. Jolly's Admrs., 18 id. 503; Suydam v. Broadnax, 14 Pet. 67. " See also Fiske v. Hills, 11 Biss. 294; S.C., 12 Fed. Rep. 372; Cornett v. Williams, 20 Wall. 249.
This bill shows that the complainant is a citizen and resident of Illinois, and the respondent of Indiana, and except in the respect already considered, its sufficiency bas not been questioned. The demurrer is therefore overruled.
Woods, J. The bill, stated generally, charges that the defendant was appointed guardian of the complainant by the Probate Court of De Kalb county, Indiana, and that as such guardian, he wrongfully and fraudulently sold real estate of the complainant for less than its value, and afterward, in like manner, procured an order of the court for the investment of the proceeds of the sale in other lands, owned by the defendant, at and for a sum greatly exceeding the value of the land, and thereupon conveyed the land to the plaintiff, and procured the approval of the court to the conveyance, by concealing from the court the fact that the land belonged to the guardian himself; that the guardian had made false and fraudulent reports, and had been guilty of other official delinquencies specified (but which need not be particularized here); and that in October, 1878, the defendant filed with the court his resignation as guardian, concerning which the entry of record made at the time is of the tenor following, to wit: " Which resignation is accepted.” That plaintiff became of lawful age in December, 1882, and on the next day after attaining his majority executed and tendered to the defendant a reconveyance by quitclaim deed of said land, and demanded an accounting of said guardianship, all of which the defendant refused, The prayer of the bill is “to have the said record and proceedings examined in this court and corrected or revised; annulled, canceled, and set aside;" that the order authorizing such sale may be reviewed and wholly reversed; and that the plaintiff be restored to his rights as if the sale had not been inade; and if this cannot be done, “that an account may be taken of the matters and things charged," etc., and for general relief.
The objections made to the bill is that it shows a case wherein relief should be sought, and can be granted only in the Circuit Court of De Kalb county, Indiana, the court which is clothed with probate powers, and in which the proceedings complained of were had.
In support of this view, counsel for the defendant insist, and the fact cannot be denied, that the Supreme Court of Indiana has repeatedly decided that the orders of the Probate Courts, whether final or interlocutory, are binding until set aside; that they cannot be attacked collaterally; and that they can be set aside or corrected only in the particular court which made them; that a bill in equity is a collateral attack, and cannot be maintained in any other court. Among the cases cited are Spaulding v. Baldwin, 31 Ind. 376; Barnes v. Bartlett, 47 id. 98; Holland v. State ex rel., 48 id. 391; Sanders v. Loy, 61 id. 298; Parsons v. Milford, 67 id. 489; Briscoe v. Johnson, 73 id. 573; Candy v. Hanmore, 76 id. 125; Jennison v. Hapgond, 7 Pick. 1; Paine v. Slone, 10 id. 75; Negley v. Garu, 20 Ohio, 310; Goodrich v. Thompson, 4 Day, 215; State v. Rolland, 23 Mo. 95; Short v. Johnson, 25 11]. 489; Iverson v. Loberg, 26 id. 180; Freem. Judg., $8 319a, 608.
Counsel for the complainant, on the contrary, contend, that notwithstanding the statutes which confer probate jurisdiction upon particular courts, courts of equity continue to have jurisdiction in such cases, and consequently that an original bill of review may be maintained in any court of general equity powers, State or National, which can obtain jurisdiction of the parties; and cite Bond v. Lockwood, 33 Ill. 212; Wickizer v, Cook, 85 id. 68; Fogarly v. Ream, 100 id.
UNITED STATES SUPREME COURT AB
STOCK--PLEDGEE-NO LIABILITY AS STOCKHOLDER. - It is well settled that one who allows himself to appear on the books of a National bank as an owner of its stock is liable to creditors as a shareholder, whether he be the absolute owner or a pledgee only, and that if a registered owner, acting in bad faith, transfers bis stock in a failing bank to an irresponsible person, for the purpose of escaping liability, or if his transfer is colorable only, the transaction is void as to creditors. National Bank v. Case, 99 U. S. 628; Bowden v. Johnson, 107 id. 251. It is also undoubtedly true, that the beneficial owner of stock registered in the name of an irresponsible person may, under some circumstances, be liable to creditors as the real shareholder, but it has never, to our knowledge, been held that a mere pledgee of stock is chargeable where he is not registered as owner. Anderson v. IVarehouse Co. Opinion by Waite, C. J. (See 24 Eng. Rep. 624.--Ev.) [Decided April 21, 1884.)
EVIDENCE-TREASURY BOOKS - TRANSCRIPT.- This suit involved the accounts of the navy department. The fourth auditor is charged by law with the duty of examining all accounts accruing in that department. Rev. Stat., $ 277 subdivision fifth. He has certified under his hand that the paper offered in evidence “is