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then belonging to the relator then amounted to $4,615,326.07. No explanation is vouchsafed for $4,6.5,326.07, and from that sum it was claimed these seemingly most unfortunate investments. It should be deducted the amount assesseil ag:inst it might, perhaps, be thought there was a mistake in for its real estate, being $451,300, and the sum of the record from which I have quoted, and that the $2,500,000 for bonds issued by it, and also $2,567, stock had, in fact, never been issued to any such 000 for further indebtedness incurred by it in the

The statement for 1894 would seem to course of its business, thus claiming a total of de- show there was no mistake of that nature, for it is duction for indebtedness (including the assessment there stated that the entire share capital, except for real estate, of $5,518,300,) or almost a million

the twenty shares already spoken of, and the entire of dollars of debts over assets, and reducing the issue of bonds, exc pt the 820 sold for cash, were assessment, of course, to nothing.

exchanged for property. Ten millions of investIt does not appear that any receiver of the com

ments in five months, and at the end thereof less pany has been appointed or applied for, or that any five millions left. In January, 1895, its relative proceedings have been taken or were contemplated condition was about the same; its gross assets had for the winding up of what, by these statements,

sbrunk from $1,615,326.07 to $3,466,919, being conwould appear to be a hopelessly insolvent concern.

siderably over a million of dollars, but its indebtedThe president of the company was examined in

ness was less by $1,046,500. regard to the assessment of 1893, before the com

And yet this (seemingly) insolvent corporation is missioners, and he testified that the company was organized August 27, 1892, less than seven months dividends upon its stock.

paying interest on its bonded indebtedness and

These facts call for exprior to the making of this statement.

The presi

planation. There is no doubt that the astute and dent further testified that the nominal capital was

able counsel for the city would have made the effort $5,000,000, $2,000,000 of preferred and $3,000,000

to obtain it had not the defendants proceeded upon of common stock; that $2,000 in cash were paid the theory as to the tax of 1894 that the amount of into the treasury for twenty shares of its capital

indebtedness was in stock at par, and that sum was paid out for corpora

any aspect immaterial, and the

amount of assets in this State was sufficient for an tion expenses. He was unable to state whether in

assessment for 1894, which would be fair if no deissuing the stock at the time the company was organ- Quction for indebtedness were allowed. As to the ized it acquired anything beyond the tangible assets of the firm or parties whose property Wits pur

assessment for 1893, in which there was some allow

ance for indebtedness, the relator claims that the chased. The first meeting of the directors was held August 27, 1892, and at that meeting its bonds

entire face value of three of the items entering into secured by mortgage were issued, and $20 of them,

that assessment, viz., for machinery and tools, office of $1,000 each, were sold for cash at porr, and the

furniture and horses and trucks, making a total of money brought into New York and deposited in the

over $800,000, should have been deducted in addibank with which the company did business, and

tion to the amount already allowed by the defendwas subsequently used for the purchase of mercban

ants for indebtedness incurred for the purchase of dise used by the company. The question was then

assets in this State. The decision of the defendasked of him: “And the rest of the capital stock

ants in this regard as to what amount of indebtedand the balance of the bonds were issued in ex

ness was actually incurred in the purchase of the change for real and personal property ?" and he

assets in this State in 1893 was made upon a quesanswered “Yes.”

tion of fact, in regard to which the evidence on the From this statement of 1893, and from the exami- part of the relator was by no means of that clear pation of the president of the company, it appears and convincing character which could leave no that all but $2,000 of its capital stock of $5,000,000, doubt as to the fact. The assessment itself deand the $2,500,000 of its bonds, had been issued in pended also upon the different kinds of property exchange for property, real and personal, between making up the assets of the relator in this State, 27th day of August, 1893, and the second Monday and it was not made at all plain as to what the real of January, 1894, the cash for the $820,000 of and true value of such assets was. We do not feel bonds issued having been used for the purchase of called upon to review and reverse the determination merchandise. Further than this, it appears that of the defendants as to the true amount for which $2,567,000 of further indebtedness had been in the relator should be assessed for the year 1893. curred upon its notes for borrowed money, loans to There was some evidence to support their determiit on collateral and on bills for merchandise. This nation, and that is sufficient for 11s. It is not plain would make about $10,000,000 invested by the rela- that any

theory of assessment tor within this short period, and yet it makes a adopter. statement that its total gross assets existing on the The orders of the Special and General Terms second Monday of January, 1893, amounted to but I will, therefore, as to that assessment, be affirmed.

erroneous

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We are now brought to the consideration of the portion of it, and promises to pay the balance at assessment for 1894, founded upon the Thurber some future day? This relator is engaged in the Whyland Company case above referred to.

business of milling in this State. We think an erroneous use has been made of the

Suppose it brought $100,000 into this State and decision of this court in that case, and that the as- bought $200,000 worth of wheat to be manufacsessment now before us for 1894 must be set aside. tured into flour, and paid for it with the $100,000 Upon another examination of the question, carried in cash, and gave its notes for the balance, the on by the defendants, commissioners, a more thor- ownership of the wheat passes to the relator by the ough investigation may be made, so far as it shall

purchase, and in that sense it can be said it owns appear necessary, for an accurate assessment against wheat to the amount or value of $200,000. Has it, the relator for all sums invested by it in this State.

however, under this statute, invested in this State The question is as to the true construction to be

any sum beyond the $100,000 which it paid in cash given those words of the statute which provide that for the wheat? Is its promise or liability to pay the all persons non-residents of the State and doing other $100,000, a sum invested in this State by it, business herein “shall be assessed and taxed on all

and is it the same as cash for the purpose of taxasums invested in any manner in said business the tion? Is the fact that the company has in its possame as if they were residents of this State," etc.

session as ostensible owner the $200,000 in value of The case of the Thurber-Whyland Company held wheat conclusive evidence that the company has inthat a foreign company having assets in a foreign vested that sum in its business in this State, when State could not invest some of its capital here and in truth it has paid a sum amounting to but half its rightfully claim a deduction from such sum invested value, and has promised to pay the balance at some of all its indebtedness. That company admitted an future time? It seems to us there can be but one investment here of at least $750,000, and its total answer to these questions. The sum invested is the indebtedness was over $1,200,000, consisting of sum paid, and not the sum which is promised to be open accounts and of bills payable. There was no | paid on a future occasion. It is true the purchaser claim set up as to the right specially to deduct the has in its possession wheat to the value of $200,000, specific indebtedness arising upon the purchase of but it cannot be said to have invested $200,000 in the very assets in New York in regard to which the the purchase of the wheat as long as it has in fact assessment had been made. Very possibly lan- paid but one-half that sum and has simply promised guage was used in that case in the course of the

to pay the other half at a future day. opinion which might be capable of a construction

No part of the value of the wheat lost to taxabroader than was called for by the facts appearing tion by this holding; neither is the sum which was in that record. If so, it would be but another illus- brought into the State by the relator and invested tration of the truth and importance of the principle in the wheat. The vendor of the wheat is taxed which makes it necessary to construe the language for the $100,000 he has received as part payment used in judicial opinions strictly with reference to for the same, and he is also taxed for the $100,000 the facts which exist in the case which is decided. of notes he has received from the purchaser of the It was stated in that case that the Court was of wheat on account of the balance due for the puropinion that the act did not contemplate the de- chase money, and the relator is taxed the $100,000 duction of debts from the sum invested in this cash it has brought into the State and invested in State by non-residents. As then applied, the lan- this wheat, and there is thus an assessment of guage was appropriate, although it might well have $300,000 made between these two, the vender and been more definite and precise.

the vendee of the wheat, and that is all the propThat company had assets at its home office enough erty that is then subject to taxation. To tax the to permit a reduction of all indebtedness asserted, full value of the wheat in the hands of the purand there was no claim that was argued that any of chaser is, in reality, to tax the purchaser on its own it had been incurred in the purchase of property indebtedness. Its promise to pay in the future the in this State, which formed the basis of the assess other $100,000 is not a sum invested by it here ment. Under such circumstances we held, and, as until it has redeemed its promise and paid its notes. we think, properly held, that the place for the de- The transaction is, in truth, substantially the same, duction of general indebtedness was the residence whether the payment has been secured by a chattel of the person or corporation, and that the sum in- mortgage on the wheat or not, although, if the payvested here should not be diminished by a derluc- ment bave been thus secured, the purchaser has not tion of any part of such general indebtedness. even obtained an unincumbered title to the wheat

The question we are now to decide is, what is the until the payment is made. And so long as the sum invested in this State by a foreign corporation property purchased has not been paid for in full, which purchases property here and pays cash for a then the amount still due upon it ougbt to be de

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ducted as not representing any sum invested by the enough outside of such investment to render it inpurchaser in this State. Otherwise it is to say that solvent. The indebtedness it has incurred in the the relator has invested a sum in this State by transaction from which the purchase of the propmerely promising to do so at some future day. If erty is the result is no part of the sum it has inafter the purchase the wheat should appreciate, the vested in such purchase, and no assessment can be whole of such appreciation would of course go made which includes the amount of that indebtedtoward swelling the amount invested by the relator But the stock which a corporation issues in in this state, and the contrary would be the case if payment for property is not a deb: incurred by it. it should depreciate; the indebtedness being a The scrip for the stock is merely a certificate to the fixed quantity in both cases, it would not be altered holder to certify as to his interest in the property or affected by either event.

of the corporation, wbich interest is his share of The same thing would happen in case the relator the property that remains to it after the payment of purchased the wheat and paid nothing for it, but all its debts. gave its notes even without a mortgage for the Construing the statute as we do, it follows that whole amount. In such case the relator could not the assessment of 1894 cannot stand. Upon a be said to have invested any sum in its business, as-bearing of the case by the assessors it will be most suming, of course, that the wheat was worth no appropriate to endeavor to learn what kind of more than its purchase price. Instead of paying, it property was obtained in exchange for the stock, had simply promised to pay for it. The vendor in bonds and notes of the company amounting to ten such case would be assessed on the notes he took millions of dollars; where it is situated, how much for the price of the wheat instead of for the wheat it is in fact worth or what has become of it and itself and the relator would not be assessed at all. how it has to the extent claimed disappeared or This would be right, because no more property had sbrunk in value. It is a case which indeed calls been created by the sale than existed before its con for rigid examination and investigation to learn, if summation, and there would be an assessment levied possible, how a corporation seemingly by its prefor the full amount that had been levied before or pared statements insolvent, can go on and pay which would have been levied if no sale had been

interest on its mortgage debt, dividends on its made. The relator would not have invested any | stock and keep clear of all hostile steps from its sum in its business until it paid something on its other creditors. notes or until the property purchased had apprecia Our conclusion is that the orders of the General ted beyond the purchase price thereof. A gift of and Special Terms in relation to the assessment of the property would be different. In that case while

1893 must be affirmed, with costs, and those in rethe relator would not have actually taken money or gard to the assessment of 1894 must be reversed, brought it into the State for investment and inves- and the defendants directed to make a new assessted it in the property, yet it would have received ment in conformity to the facts and to the views the property as absolute owner with no outstanding set forth in this opinion. liabilities to pay for it, and being in such case the All concur. owner of the property, it would answer the description of a sum invested in its business and thus be liable to assessment under the act.

INTEMPERANCE OF SPEECH BEFORE This treatment of the question is not in fact to

JURIES. be regarded in the light of a strict deduction of debts from assets; it is construing the meaning The case of Holden v. Pennsylvania R. R. Co. in of the statute determining what in reality is the the Supreme Court of Pennsylvania (32 Atl. Rep., sum invested by a non-resident individual or cor 103) once more calls attention to the use of violent poration under these circumstances, in the business and irrelevant language in summing up a case, as a in which he or it is engaged in this State. It is not ground for reversal of a judgment. The action was adjusting the equities as spoken of in the Thurber for damages for personal injuries sustained through Whyland case, which we then held should be done at a railroad crossing accident. Plaintiff's counsel in the place where the corporation was a resident. It is addressing the jury employed such expressions as a different thing from ascertaining the general and “ corruption,” death trap put there for the purgross assets of a non-resident to be found within pose of taking lives, a fellow (one of defendant's the State, and from that sum deducting all its witnesses) bumming around town," "a ghoul with debts whenever and upon whatever cause incurred. a human face," “ terrorizing witnesses who swear The non-resident corporation investing a sum of against them," "lying with the hope of being paid,” money in this State is to be assessed for the full “perjured, the tools of a company," "scoundrels." sum it invests here, although it may owe debts | The Supreme Court assigns, as one of the errors for

reversal, the refusal of the trial judge to withdraw have brought an audience into harmony with the
a juror because of such language, which it pro- speaker's sentiment as well as his opinions. These
nounced offensive and reprehensible, the same not traits of our common Adamhood are overlooked by
being warranted by any evidence in the case. an advocate only at bis client's peril. A counsel
Whether an error of such character shall alone suf- has no calling to discourse on the exceeding sinful-
fice for reversal is a question upon which different ness of sin, or to accuse the opposite party of break-
courts have not agreed. The better practice is for ing all the Ten Commandments. A strong case
appellate courts in all cases to consider the circum can be won by soberly calling things by their right
stances disclosed by the particular récord under re names, and we do not think that weak cascs are
view, and to order new trials only in the exercise of often won by passionate and maudlin rhetoric.
a wise discretion, and not unless fair presumptions In many of the decisions in which this subject
arise that actual prejudice resulted. Such course has recently been discussed, the language com-
has bien taken in several cases in vitrious tribunals plained of was absolutely maudlin the mere cant
during the past few years. A certain latitude of of passionate vituperation. Counsel in the heat of
comment should be allowed counsel, and average oratory had flung out epithets as meaningless-as
intelligence should be taken for granted in the jury. the vulgar and obscene revilings of teamsters who
Wo bave read some judicial condemnations of the get in each other's way on the street. Such lang-
use of irrelevant and inflammatory remarks, which uage really signifies nothing more than that the
were sweeping enough to debar a lawyer from quot-speaker is beside himself. An Appellate Court
ing the Bible or Shakspere, or citing ancient his should scrutinize the whole record carefully before
tory, or, indeed, alluding to any possible thing deciding to reverse a judgment solely because the
outside the record, for purposes of illustration. trial judye did not properly put a halter on a coun-

Cases of this character should, however, impress sel's tongue. Undoubtedly a lawyer has no just upon the counsel the duty of self-restraint. In our cause of complaint if his own misconduct result in judgment fully as many deserved verdicts are lost the overturning of a judgment in his favor. But as unjust verdicts stolen through intemperate cant the public may be put to needless expense by orderand abuse. If such style of speech do not actually ing a new trial of a case that has obviously been provoke an indverse verdict, it is at least apt to determined according to the merits. A trial judge, cause it disagreement. A lawyer at nisi prins is however, is always under a duty, both for preservnecessarily something of a courtier. Of course lie ing the dignity of the court and averting possible should not cajole or fatter any more than he should injustice, to restrain intemperate villification. And browbeat or bully. But it is one of his legitimate clients are very shortsighted who retain lawyers of objects to produce a favorable personal impression ungovernable temper. We remember one case in of himself and his client on the jury; to inspire which members of a jury. after rendering a verdict them with a friendly and sympathetic as well as l'e in the teeth of bitter invective, remarked to the spectful feeling

successful counsel wat regret was felt in the jury Now, it is well recognized that reformers as it

room because am additional award could not be class are apt to be unpopular in their own genera- given for defamation of character. – New York Lau tion. The future is the better for their lives and Journal. posterity does justice to their memory. But, even where reformers do not condemn particular individuals, but are impersonal in their assaults on ex

NEGOTIABLE INSTRUMENTS AND THE isting institutions, a certain prejuclice against them

DOCTRINE OF NEGLIGENCE.
is apt to be engendered. They shock comfortable
conservatism, and the average man has dilliculty in

IIE
eliminating the personal equation – of disabusing (Lord Esher, and
his mind of the notion that the reformer sets him- L. J. J.) in Scholfield v. Lord Londesborough, 43
self up to be as good as the ideal he advocates. W. R, 331, reveal an important difference of opinion
When it comes to singling out and scourging indi as to the liability of the acceptor of a bill of ex-
viduals, the risk of unpopularity is greater. There change to subsequent holders. The action was to
will always be in many quarters il lurking sym recover £3,500 on a bill of exchange drawn by
pathy for the under dog, no matter how justly he F. C. S. Sanders and accepted by the defendant,
deserves all he gets, and a latent antagonism to the plaintiff being the holder of the bill in good
ward any man who assumes to act the censor and faith and for value. When the defendant accepted
the judge. Intemperate denunciation will often the bill it was a bill for £500 only, and afterward,
produce a reaction in favor of the subject of attack, before indorsement, it was fraudulently altered by
when a calmly argumentative arraignment would : the drawer into a bill for £3,500. The bill bore a

TE jordements delivered by the Court of Appeal

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£2 stamp, sufficient to cover £4,000, and the drawer ceived £352 2s. from the bank. The bankers subhad made the alteration of the amount of the bill sequenty sought to debit the customer with the full an easy matter by leaving suitable spaces in the body amount, and the customer objecting, the matter was of the bill, where the amount was stated in words, referred to an arbitrator. He found that the cusand by leaving a space between the sign “£" tomer had been guilty of gross negligence and that and the figures“ 500 ” in the corner of the bill.

he ought to make good to the bankers the loss they The exact form of the bill, as drawn for accept- had sustained. His conclusion was brought before avce, can be readily understood from the report. the Court of Common Pleas for review, and was The plaintiff claimed to recover the whole £3,500 unanimously supported. It was agreed that the from the defendant, on the ground that the latter

customer was to blame, and that upon him, conse· was estopped from alleging the alterations by reason

quently, the loss ought to fall. “ We decide here,” of his negligence in accepting the bill in the form

said Best, C. J., “on the ground that the banker in which he accepted it, and on the bill stamp on

had been misled by want of proper caution on the which it was drawn.

part of the customer.” To say that the defendant was estopped from set

The principle underlying Young v. Grote, has ting up the alterations against the plaintiff is equi- been the subject of much discussion. In Robarts valent to saying that he owed a duty to the plain

v. Tucker, 16 Q. B. 579, Parke, B. said that the tiff, that by his negligent acceptance of the bill he

customer had, by signing a blank cheque, given had committed a breach of the duty, and that he authority to any person into whose hands it was to was consequently liable to compensate the plaintiff. fall to fill it up in whatever way the blank perThe case accordingly was treated as raising, first,

mitted. In Bank of Ireland v. Trustees of Evans? the question whether the acceptor of a bill of ex

Charities, 5 H. L. C. 413, Lord Cranworth, C., put change owes any duty to subsequent holders not to

the case upon the ground of estoppel. “ The case be negligent in respect of his acceptance of the

of Young v. Grote,” he observed, “went upon the bill. Assuming such duty to exist, there were the ground (whether correctly arrived at in point of further questions whether the defendant had been

fact is immaterial) that the plaintiff there was in fact negligent, and whether the negligence was

estopped from saying that he did not sign the the proximate cause of the plaintiff's loss. Charles, cheque for £350; and if the circumstances are such. J., answered the first question in the affirmative,

whether arising from negligence or from any other but he held that there was in fact no negligence,

cause, that, as between the customer and his and under section 64 (1) of the Bills of Exchange banker

, the customer is estopped from saying that Act, 1882, he allowed the plaintiff to recover only he did not sign the cheqne for a particular amount, £500, the amount of the bill when accepted. In

that, as between them, is just the same as if he had the Court of Appeals Lord Esher and Rigby, L. Jo, signed it." In Ex parte Swan, 7 C. B. N. S. 446, answered all three questions in the negative. There

Williams, J., after referring, inter alia, to the two was no duty not to accept negligently; if there

last-mentioned cases, said that it seemed doubtful was, there was no negligence, and if there was neg

whether the cases as to the liability of a man who ligence, it was not the proximate cause of the loss. Lopes, L. J., on the other hand, agreed with signs a blank bill or note or cheque were founded

on the doctrine of estoppel, or on a rule of the law Charles, J., in holding there was a duty, but he also held that the acceptor bad been negligent, and

merchant that an actual authority is thereby conthat bis negligence was the proximate cause of the

ferred on the person in whose hands the instruloss. Consequently he was of opinion that judgment is. ment should be entered for the plaintiff for £3,500. Estoppel and implied authority are at best techIn the result the decision of Charles, J., was

nical grounds. In Swan v. North British Austraaffirmed.

lasian Co., 2 II. & C. p. 182. Blackburn, J., reThe case which is chiefly relied on as showing ferred to “the broader ground

that the the existence of a duty under such circumstances person putting in circulation a bill of exchange as the present, is Young v. Grote, 4 Bing. 25:3. A does, by the law merchant, owe a duty to all parties customer of a bank gave his wife blank cheques to the bill to take reasonable precautions against the signed by himself, requesting bis wife to fill up the possibility of fraudulent alterations in it;” and in blank according to the requirements of his business. the same case (ibidl, 190), Cockburn, C. J., pointed She caused one to be filled up for the sum of out that while, under circumstances such as those £52 2s., but this was done in such a manner that it in Young v. Grote, the customer would be entitled was easy for the 52 to be turned into 352. She de to recover from the banker the amount paid on the livered the cheque to her husband's clerk to be cheque, the banker having no voucher to justify the cashed. The clerk made the alteration and re payment, yet the banker would be entitled to re

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