Ins. Co. v. Lanier, 95 U.S. 171
Case details
Bluebook Citation
Ins. Co. v. Lanier, 95 U.S. 171
Full caption
Insurance Company v. Lanier.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Majority
Strong (Justice)
Majority
Miller (Justice)
Insurance Company v. Lanier.
1. A bill of exceptions, allowed and signed or sealed by the judge, is the only mode by which his rulings during the progress of a trial, or his charge to the jury, can be rendered a part of the record. 2. The provisions of the Code of Georgia are in harmony with this rule.
Error to the Circuit Court of the United States for the Southern District of Georgia.
The facts are stated in the opinion of the court.
Mr. Philip Phillips and Mr. William H. Phillips for the plaintiff in error.
Mr. Julian Hartridge and Mr. Rufus E. Lester, contra.
Mr. Justice Strong delivered the opinion of the court.
After careful consideration, we are all of opinion that the record contains nothing upon which the assignments of error can be based. The plaintiff in error complains that certain evidence was improperly admitted, and that incorrect instruction was given to the jury ; but the record does not show that any exception was saved to the admission of evidence or to the charge of the court. No bill of exceptions appears to have een made up or signed. It is true that in the transcript sent up to us it is stated that at the trial objection was made to the reception of certain testimony of witnesses, that the objection was overruled, and that the defendant then and there excepted o such ruling of the court, and assigned error thereon. So the ranscript states that the judge gave substantially certain ins ruction to the jury, and adds, “to which portion of said urge said defendant then and there excepted, and assigned the as error. But, even if the facts occurred as certified by e c eik, his statement that they occurred does not bring them
6 reCOr(^ 80 as them the subject of review. There of’t th*16 m.°de bringing upon the record and making a part his b 6 fU^n^s a judge during the progress of a trial, or all C ^Ur^’ and that is by a bill of exceptions the R6 an^ Sea^e^ or ^gned by the judge. It is true that in sealed11^ total the bill is not often reduced to form and or signed. Generally an exception is only noted by the p. 172judge at the time claimed, and it is subsequently drawn up; but it is not a bill of exceptions until it has been sealed, or, as is now sufficient, signed. The sealing or signature of the judge is essential for its authentication ; and it has been ruled that the judge’s notes do not constitute a bill of exceptions. They are but memoranda from which a formal bill may afterwards be drawn up and sealed. Pomeroy v. The Bank of Indiana, 1 Wall. 592. There it was said, “ When exceptions are taken to the ruling of the court, in the course of a trial, to the jury, such an entry is frequently made in the minutes of the case, or of the presiding justice, as evidence of the fact, and as a means of preserving the rights of the party in case the verdict should be against him, and he should desire to have the case re-examined in the appellate tribunal; but it was never supposed that such an entry could be of any benefit to the party unless he seasonably availed himself of the right to reduce the same to writing, and took proper measures to have the bill of exceptions sealed by the judge presiding at the trial, or, in other words, such an entry in the minutes can only be regarded as evidence of the right of the party seasonably to demand a bill of exceptions, but it is not the same thing, and it has never been so considere in the Federal courts. And again: “ Unless an exception is reduced to writing and sealed by the judge, it is not a bill o exceptions, within the meaning of the statute authorizing it, and it does not become part of the record.” No such bill is found in the present case. Where the memoranda of exceptions appearing in the transcript came from does not appeal1. They are not even stated to be on the minutes or the ju ge 8 notes.
The verdict was returned, and the judgment was signe on the 14th of November, 1874. The transcript exhibits a paper dated Nov. 19, 1874, called an assignment of error, signed1 by the attorney of the insurance company, and filed on day, setting forth that in the foregoing record and procee i g various errors appeared, and describing them. The paper pears to have been served on the plaintiffs attorney, an the same day it was indorsed “ exceptions overrule. Erskine, judge.” For what purpose the paper was PreP^ does not clearly appear. Perhaps it was m aid o
for a new trial, or it was intended as preparation for a writ of error, probably the latter. But it is impossible to regard it as a bill of exceptions taken or noted at the trial. It refers to no exceptions then taken. On the contrary, while it refers to objections alleged to have been made at the trial, and assigns overruling them as error, it states that the defendant now (Nov. 19) assigns the same as error, and excepts thereto.
We find nothing in the code of Georgia that aids the plaintiffs in error. The only provision that is of any importance as bearing upon the subject is the following: “ At any stage of the cause either party may file his exception, and, if the same be certified or allowed, it shall be entered of record in the cause; and should the case, at its final determination, be carried by writ of error to the Supreme Court, error may be assigned upon such bill of exceptions.” This does not differ substantially from the provisions of the Statute of Westminster, 13 Edw. I. c. 31. The exception must be certified or allowed as well as filed, and it is the signature or seal of the judge that certifies or allows it.
We are, therefore, reluctantly brought to the conclusion that the record of this case exhibits nothing that justifies the assignments of error. Judgment affirmed.
Blount v. Windley.
When no rights of third parties interfere, the extent to which mutual obliga-
ions may be set off against each other, and the mode of doing it, are wholly subject to legislative control.
A statute, therefore, as that of North Carolina, passed after the bank or its
commissioner had obtained a judgment, which authorizes the defendant set off againat u the circulating notes of the bank which he procured v Pd 16 jud®men^> is> as between him and the bank or its commissioner,
1, and does not impair the obligation of the contract sued on, or of the
judgment. in tl either creditors of the bank, or other parties interested mo ^gment, were such that they could exact payment of the judg-
nt ln lawful money, the case would be different.
^uPreme Court of the State of North Carolina.
e acts are stated in the opinion of the court.
Mr. Joseph J. Davis for the plaintiff in error.
Mr. Samuel F. Phillips, contra.
Mr. Justice Miller delivered the opinion of the court.
Under a statute of North Carolina, passed March 12,1866, to enable the banks of the State to close their business, the plaintiff in error was, by a decree of the proper State court, in the fall of that year, appointed commissioner of the Bank of Washington; and all the real and personal property and choses in action of the bank were by the decree vested in said commissioner for the benefit of those creditors of the bank who should prove their debts within twelve months. As such commissioner, Blount sued and recovered against the defendant in error a judgment on a note given to the bank for borrowed money, on which he was surety. This was in November, 1867. The defendant subsequently procured the circulating notes of the bank, and tendered them in payment of the judgment to plaintiff, who refused to accept them. He then deposited them with the clerk of the court in which the judgment was rendered, who received them, not in payment, but subject to the order of the court.
A motion for new trial in the original suit remained undecided until the spring term, 1872. At the next term of the court after this, the defendant, on due notice, moved the court to have these notes applied in payment of the judgment, an satisfaction of that judgment entered on the record.; whic motion was granted, and the order made. From this oi.er plaintiff appealed to the Supreme Court of the State, whic affirmed the judgment of the court below; and he thereupon sued out the present writ of error.
Two grounds are relied upon in this court to reverse t a judgment: — ,
1. That plaintiff had a right, under the Constitution an laws of the United States, to have his judgment paid in coi or legal-tender notes, and nothing else. t
2. That certain statutes of North Carolina under whic defendant was allowed to set off the notes of the bank in sa^ faction of the judgment are void, because they impair t e o gation of his contract.
We will consider the last ground first, because, if these statutes are valid and authorized the judgment of the court, then the other objection is also answered; for, if the defendant had the right to pay or set off these notes in satisfaction of the judgment, the plaintiff did not have the right to exact payment exclusively in legal-tender money of the United States.
The following acts and parts of acts are those relied on to justify the order of the court in this case.
Act of Aug. 22, 1868: —
“The General Assembly of North Carolina do enact, that where any note or bond has be6n, or may hereafter be, given as a renewal of any debt or demand due or payable to any bank in this State, whose charter bears date prior to the twentieth day of May, 1861, the bills of said bank shall be a legal set-off to such note or bond, without regard to whether such note or bond be made payable to said bank or to some other party; and the bills of such bank may be offered, and shall be received, to sustain the plea of set-off to any suit brought upon such note or bond in any court of this State, whether such note or bond be made payable to such bank or to any other party.”
Sects. 1 and 4 of an act approved March 17, 1869: — Sect. 1. The General Assembly of North Carolina do enact, at an act entitled ‘ An Act to make bank-bills a set-off,’ ratified the twenty-second day of August, a .d. 1868, be so amended as °. apply to judgments and executions which may have been obained on any debt due any of the banks mentioned in the aforesaid act.”
ect. 4. .The remedy under this act may be by plea of set-off, y injunction, as the case may require.”
m d^ “ passed in December of the same year, it was su h^’ll^6 eve7 coul't in the State, upon proof that fact' 1 f ^aVe ^een delivered or tendered and refused in satiscaus n ° SUC^ judgments to the nominal amounts thereof, to of r satisfaction of such judgments to be entered oor in the court wherein the same were recovered.”
the ' plaintiff in error is, that, when he recovered and aSalnst the defendant, he had a right to exact eive in payment of that judgment gold or silver coin^ or p. 176the legal-tender treasury notes of the United States, and that defendant had no right to pay him in any thing else; that the judgment was a contract, and the obligation of it is impaired by the statute which authorizes payment in something else. It is undoubtedly true, in some sense and for some purposes, that a judgment has been treated and considered as a contract; and we are not disposed to deny that the judgment in this case is evidence of a contract. But the judgment is only a contract because it is evidence of a debt or obligation on the part of defendant due to plaintiff. The judgment itself presupposes, and is founded on, some antecedent obligation or contract, and is only a higher evidence of that contract, because it now has the sanction of the judicial determination of its validity and amount by a court of law. The essential nature and character of the contract remains unchanged; and, in deciding how far it may be affected by legislation, we must look mainly to the original contract.
It may be assumed that all debts not solvable by their terms in something else are prima facie payable in legal-tender money, as ascertained by the acts of Congress. And this is true whether the contract be express or implied, and whether it exist in parol, or in a promissory note, or in a judgment. Notwithstanding this general rule, it is a principle of long standing in all systems of jurisprudence that one debt or obligation may be set off or coun terbalanced against another, so that while the obligation of hot is recognized, both are satisfied in law and discharged without the payment of any money on either; and this is done-by t o courts without the consent of the party and against his wi • This doctrine of set-off in the English law originally coul on y be called into operation by a defendant who, when sued on a obligation of his own, should by a distinct plea claim a se o of some demand which he had against the plaintiff of * s1™1* character. But this original statutory doctrine of t e ng of set-off has been modified, enlarged, and extended in m ways. . . •
1. The courts of common law have long establishe e P ciple of set-off as applicable to mutual judgments in t court. And it is said that this power of setting o not only in the same court, but in different courts,
depend upon the statutes of set-off, but upon the general jurisdiction of the court over its suitors. See Barker v. Braham, 2 Bl. R. 869; Mitchell v. Oldfield, 4 T. R. 123; 3 Gaines’s Cases, 190. In Simpson v. Hart, 1 Johns. (N. Y.) Ch. 91, Chancellor Kent refused to set off one judgment against another although the case was otherwise made out, because the jurisdiction was ample at law, and the application had been first made there and denied. See also Simpson n. Huston, 14 Tex. 481.
2. This remedy has been very much extended in equity where the insolvency of the judgment plaintiff, his non-residence within the jurisdiction of the court, the fact that the mutual obligations have grown out of the same transaction, and many other purely equitable considerations, have been held to authorize the setting off of many classes of obligations held by the defendant, against a judgment duly recovered against him in a court of law. Merrill v. Souther, 6 Dana (Ky.), 305; Simpiony. Hart, 1 Johns. (N. Y.) Ch. 91; Palmateer v. Meredith, 4 Mar. J. J. (Ky.) 74; Pavis v. Milburn, 3 Clarke (Iowa), 163; 7 How. 279.
It will be thus seen that, independent of statutes, the courts ave long exercised the power of extinguishing judgments by compelling the plaintiff to receive something else than money in satisfaction thereof. It is true that, where this power has been exercised under the statutory or equity power of the court, it th^ ^6en ^enera^y’ Perhaps universally, limited to cases where ,6 efenctant held the claim which he presents for set-off at e time the suit was brought in which he proposes the set-off. u undoubtedly there may be cases .in which a claim coming e ownership of the judgment debtor, even after the judgn as been rendered against him, presents a strong equity be a®a^ns^ ^a^ judgment. In such’ cases it must wi m the competency of the legislative body so to extend e remedy by set-off as to embrace them. cod ° State of Louisiana under their civilw7St?T0i jurisprudence. In the case of Pattison v. Bd-a„fl- a’ Ann* 157, Carter & Co. obtained a judgment iniimoF S°n' . ^er an execution was issued, and after an chased^ had been dissolved, the defendant pur-
0 a t ird party a judgment against Carter & Co.; and
vol .v. 12
the Supreme Court, reversing the judgment of the inferior court, held that, from the date of the notice of this purchase, the parties became mutually indebted, and their respective claims were liquidated and due, and compensation took place within the meaning of sect. 2203 of the Civil Code, the effect of which was to extinguish the judgment of Carter & Co.
This provision of the Code of Louisiana, and the construction given to it by her highest court, is identical with the Roman law, which is, indeed, the foundation on which that code is built. That law went much further than any of our statutes have gone, and further than our courts of equity have gone. The doctrine of the civil law was that mutual debts extinguished each other by operation of law, and that in such case no discovery could be had except for a balance due on the larger debt. And this extended to cases in which the debtor had procured an assignment or cession of the debt oi a third person against his creditor. So that from the moment the creditor had notice of the transfer, compensation, as it is called in the civil law, took place ; that is, the debts were extinguished so far as the amount due on the smaller debt coul rightfully compensate the larger. This matter is well set fort by Justice Story in his Equity Jurisprudence, sects. 1438 to 1444 inclusive. His closing remarks are very pertinent to t e case in hand. “ The general equity and reasonableness, says he, “ of the principles upon which the Roman superstructure is founded make it a matter of regret that they have not. ee transferred to their full extent to our system of equity J111-1 prudence. Why, indeed, in cases of mutual debts, indepen ei of any notion of mutual credit, courts of equity should not av at once supported and enforced the doctrine of the universa rig of set-off as a‘matter of natural equity, it is not easy to see.
The legislation of North Carolina, which we have alrea y cited, is of this character. , ]
The act of Aug. 22, 1868, made the bills of a bank a set-off in the hands of any person sued by the ban, the right subject to the usual rule, that it must be p e the action. The act of March 17, 1869, declared that » right should extend to judgments already rendere, an might be asserted by a plea of set-off in the court a
an injunction in chancery; and the act of December, 1869, authorized the same relief by motion in the court where the judgment was rendered. Are the acts of the North Carolina legislature so wholly outside of the general doctrine of set-off as to be void ? The idea of set-off is not the same as payment. It is the doctrine of bringing into the presence of each other the obligations of A. to B. and of B. to A., and by the judicial action of the court make each obligation extinguish the other. And this process is applicable to any class of obligations which the legislative power of the State chooses to bring within its operation.
That it is exercised in aid of justice when a bank of circulation is compelled to receive that circulation in satisfaction of debts due to it, whether they be in judgment or in any other form, can hardly be questioned, if the rights of no one but the bank are affected by the act.
In what we have here said, we do not mean to be understood that, where the creditors of the bank have a right to have such a debt paid in lawful money, the legislature can deprive them of that right; nor that in any other case, where the judgment creditor represents an interest in the contract, which has a right to demand its payment in lawful money, the State can authorize its payment in any thing else.
the case before us, if it appeared by the agreed facts on ich the case was tried that there existed any creditors of t e bank who had proved their debts as the law required; the case might have been different. But there is no evidence in this recor that there was any other creditor of the bank in existence 6 A 68 ^e^en^anb, when.he made this motion for set-off. it ’ nd] may be held that the bank had ceased to exist, is c ear that the stockholders, whose interest in that case
.be represented by the commissioner, have no equity ^penor to that of the defendant, or which could be interposed Th^+n -^e exerc^se °f the right of set-off under the statute, tion „e right to set-off is by the statute extended to obligarende° d $ ^an^’ h°ugbt by defendant after the judgment was rionaf6 him, does not necessarily make it unconstitudefend 6 bank is a just debt. To compel the charm first t° ?ay his debt in money, and then take the es o collecting of the bank, is unjust.
The act of the North Carolina legislature is but an enlargement of the principle of set-off to meet this class of cases. Though the statute uses the word “payment,” it is obvious that payment in the technical sense is not meant. The whole proceeding is one of set-off. The defendant is compelled to make his application to the court, produce his bank-bills, and deposit them there. The order or judgment of the court is that the obligation of the bills and the obligation of the judgment are set off against each other, and both are extinguished. They are both satisfied.
It may be said that this legislation is retroactive; and, as applied to the case before us, it is so. But there is no constitutional inhibition against retrospective laws. Though generally distrusted, they are often beneficial, and sometimes necessary. Where they violate no provision of the Constitution of the United States, there exists no power in this court to declare them void. Judgment affirmed.