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may be legally entitled to receive it for her.” The court refused to allow interest, on the ground that there was no recognition in the language of the grantor, or indication from the circumstances of the case, that the amount designated was a debt or claim. In the case of Insurance Co. v. Delaunie, 3 Bin. 295, there was a disputed account between plaintiff and defendant; the former claiming too much, the latter offering too little, and a suit became necessary. The court said that interest depended on the conduct of the parties, and allowed interest on the sum recovered. A strong ruling in respect to interest was that of the United States supreme court in Early v. Rogers, 16 How. 599. There a controverted case was, by agreement of parties, entered settled, and the terms of settlement were that the debtor should pay by a limited day, and the creditor agreed to receive, a less sum than that for which he had obtained judgment; and, the debtor having failed to pay on the day limited, the original judgment became revived in full force. This original judgment having omitted to name interest, and the supreme court having affirmed the judgment as it stood, the supreme court held, on the case again coming before it, that it was proper for the court below to issue an execution for the amount of the judgment and costs, leaving out interest. Numerous other cases might be cited in which interest has been disallowed on varying grounds, not easily classified; but I do not think it will be found that interest has been often, if it has ever been, disallowed, where debts have been due and demanded, and where no circumstances have existed to negative the idea that interest was to follow the principal. A number of cases may be found in which trustees under deeds of assignment have been required to pay interest on preferred debts, and to this rule depositors in national banks are not exceptions. In National Bank v. Mechanics' Nat. Bank, 94 U. S. 437, it was specifically held that a depositor in a national bank, when it suspends payment and a receiver is appointed, is entitled, from the date of his demand, to interest upon his deposit, and that such deposits, when regularly proved, stand on the same footing as judgments. Generally, as to interest, the supreme court held in Young v. Godbe, 15 Wall. 565, that, "if a debt ought to be paid at a particular time, and is not, owing to the default of the debtor, the creditor is entitled to interest frem that time by way of compensation for the delay in payment.” The court went so far in that case as to hold that, there being no law in the place where the contract arose (Utah) prescribing a rate of interest on such transactions as the one under consideration, nevertheless, reasonable interest must be paid by way of damages for withholding the payment of the debt.
The principle that where a debt is due and remains unpaid, the creditor has a right to claim interest upon it from the time it is due, is as firmly established by the statute law and by decisions of the court of appeals of Virginia, as it is by the decisions of the supreme court of the United States; and the question in the case at bar is resolved into the inquiry— First, whether the amount claimed by the receiver of the Exchange National Bank of Norfolk against the trustees under the deed of the Bains is a debt due; and, second, whether the receiver has, bf any act
of his own, estopped himself from claiming interest upon the debt. The receiver holds notes which are thus described in that clause of the deed which gives them, with a few others, a first preference over other debts of the grantors: "Three notes of George M. Bain, Jr., as maker alone, held by the Exchange National Bank; the overdraft of the said George M. Bain, Jr., at said bank; and the overdraft of Mrs. Annie S. Hall at said bank,” etc. of the notes, one for $13,000 and another for $9,000 were past due, and one for $9,000 was to mature on the 3d of July following. The two overdrafts amounted to an aggregate sum of $11,288.49. The principal of these sums, $42,291.65, was paid in July last. The interest which is now claimed is what accrued on the respective notes from their maturity, and on the overdrafts from April 2, 1885, when the bank failed, until the date of the payment of the principal.
There is certainly nothing in the character of this debt, or in the circumstances of its creation, or in the terms of the deed securing it, to negative the presumption of its being an interest-bearing debt; and therefore we have only to inquire whether the receiver has done anything to estop him from claiming interest upon it. It appears from the affida zit of Mr. Old, one of the trustees in the Bains deed, that affiant, shortly after the execution of that instrument, went to the receiver, and informed him that the trustees were “in part ready to pay the whole indebtedness of Bain & Bro. to the Exchange National Bank as a preferred claim, and would pay the overdrafts as soon as those accounts were audited and presented, and any note of G. M. Bain then due, and would be ready to pay the other of said notes when due.” Affiant further avers that the receiver positively refused to receive said money from deponent, or to recognize him or his co-trustees in any manner whatever. ceiver, in a counter-affidavit, denies that any tender of payment of any part of any of the said indebtedness was ever made to him in any form, or that the receiver refused to receive any money from the trustee; but the receiver says that he did then refuse to recognize the said Old and his co-trustees as the lawful holders of the estate conveyed under the said deed of trust of April 6, 1885; and the receiver further says that, even if a tender had been made of the money to pay the said preferred claims, he would not have received the same, for the reason that he was then intending to bring, or had actually brought, his suit, claiming that the said deed of trust was fraudulent and void, and he was advised to do nothing that could be construed into a recognition of its validity. The suit alluded to was brought in this court on the 2d May, 1885, and, in the month of July following, the trustees in the deed of trust of the Bains filed a cross-bill, praying that their trust might be administered under the direction of the court, in which cross-bill they say that they are advised that the amounts named in the deed as preferred debts due to the Exchange National Bank should not be paid by them, because the receiver, in attacking the said deed, had estopped himself from claiming the said indebtedness, or any benefit under the said deed.
In this attitude of the issue between the receiver and the trustees the suits went on. Large funds were collected from time to time until July, 1890. The funds have been held under the direction of the court dur
ing this whole period. For about 13 months of this time they were on deposit in a national depository, not bearing interest. For the rest of the time they have been on deposit in several banks of Norfolk, bearing interest at the rate of 3 per cent. per annum. This disposition of the funds has been made in accordance with orders of the court, and now the question is whether the preferred debt held against those trust funds by the receiver shall be decreed to have borne interest from the date at which the component parts of it severally became payable, to the date of the payment of the principal to the receiver, in July last. This court has decreed that the receiver did not become estopped from claiming this preferred debt by bringing his suit to set aside the deed. It was a debt due, and there was nothing in the circumstances under which it arose to divest it of the incident of interest which attaches presumptively to every debt. If bringing his suit did not estop the receiver from claiming his debt, with interest, I do not see that his previous refusal to recognize the right of the trustees to dispose of any part of the property conveyed by the trust-deed which he was about to assail could estop him. I think the receiver is entitled to interest at 6 per cent. on the preferred debt which he held, and will so decree.
PACIFIC Exp. Co. v. SEIBERT, State Auditor, et al.
HOEY v. SAME.
(Circuit Court, W. D. Missouri, W. D. October 22, 1890.)
1. EQUITY JURISDICTION-INJUNCTION-Taxation.
Where a suit is not essential to the collection of a tax, and a penalty is imposed for delay in paying the tax, and no action lies to recover back the tax if paid, equity has jurisdiction to determine the legality of the tax, and enjoin its collection
if illegal. 2. SAME-MULTIPLICITY OF ACTIONS.
The fact that a penalty is imposed for each day's delay in the payment of a tax, and that the state might bring a separate action for each day's penalty, is no ground for the interference of a court of equity in order to preventă multiplicity of actions,
since it will not be presumed that the state would institute vexatious litigation. 3. TAXATION-INTERSTATE COMMERCE.
Act Mo. May 16, 1889, which imposes on companies carrying goods "by express, on contract with any railroad or steam-boat company, a tax on their “receipts for
business done within this state,” is not an interference with interstate commerce. 4. Same-ConstiTUTIONAL LAW.
Said act does not deprive the express companies of the equal protection of the laws, or constitute inequality of taxation, since the state has a right to tax differ
ent kinds of property in different ways. 5. EXPRESS COMPANIES-COMMON CARRIERS.
An express company is a common carrier which, au regular periods, over fixed routes, carries money and articles of value in the charge of its own messenger, on passenger steamers and railway trains which it does not own, but with the wners of which it contracts for the carriage of its messengers and freights.
In Equity. Bill for injunction.
This case arises under the following act of the legislature of the state of Missouri:
“An act to define express companies, and to prescribe the mode of taxing the same, and to fix the rate of taxation thereon. Be it enacted by the general assembly of the state of Missouri, as follows: Section 1. Any person, persons, joint-stock association, company, or corporation incorporated under the laws of any state, territory, or country, conveying to, from, or through this state, or any part thereof, money, packages, gold, silver, plate, articles, goods, merchandise, or effects of any kind, by express, on contract with any railroad or steam-boat company, or the managers, lessees, agents, or receiver thereof, (not including railroad companies or steam-buats engaged in the ordinary transportation of merchandise and property in this state,) shall be deemed to be an express company. Sec. 2. Every such express company shall annually, between the 1st day of April and the 1st day of May, make and deliver to the state auditor a statement, verified by the oath of the officer or agent making such report, showing the entire receipts for business done within this state of each agent of such company doing business in this state for the year then next preceding the 1st day of April, for and on account of such company, including its proportion of gross receipts for business done by such company in connection with other companies: provided, that the amount which any express company actually pays to the railroads or steam-boats within this state for the transportation of their freight within this state may be deducted from the gross receipts of such company, as above ascertained: and provided. further, that said amount paid to the various railroad or steamboat companies for transportation shall be itemized, showing the amount paid to each railroad or steam-boat company: and provided, further, that nothing herein contained shall release such express companies from the assessment and taxation of their tangible property in the manner that other tangible property is assessed and taxed. Such company making statement of such receipts shall include as such all sums earned or charged for the business done within this state for such preceding year, whether actually received or not. Such statement shall contain an abstract of the annount received in each county and the total amount received for all the counties. In case of the failure or refusal of such express company to make such statement before the 1st day of May it shall then be the duty of each local agent of such express company within this state annually, between the 1st day of May and the 1st day of June, to make out and forward to the state auditor a similar verified statement of the gross receipts of his agency for the year then next preceding the 1st day of April. When such statement is made, such express company shall, at the time of making the same, pay into the treasury of the state the sum of two dollars on each one hundred dollars of such receipts. And any such express company failing or refusing for more than thirty days after the 1st day of June in each year to render an accurate account of its receipts in the manner above provided, and to pay the required tax thereon, shall forfeit one hundred dollars for each aditional day such statement and payment shall be delayed, to be recovered by an action in the name of the state of Missouri, on the relation of the state auditor, in any court of competent jurisdiction, and the attorney general shall conduct such prosecution; and such company, corporation, or association so failing or refusing shall be prohibited from carrying on said business in this state until such payment is made. Sec. 3. There being no law in this state by which such express companies are taxed, creates an emergency within the meaning of the constitution. Therefore this act shall take effect and be in force from and after its passage. Approved May 16, 1889.”
The bill alleges in substance that the plaintiff is a corporation organized under the laws of the state of Nebraska, and is conducting business as an express company in Missouri and many other states, “conveying money, packages, gold, silver, plate, articles, goods, and merchandise to,
from, and through the state of Missouri and various parts of said state, by express;" that in the prosecution of said business it does not provide its own transportation, but carries all its express matter "on contract with the Missouri Pacific Railroad Company and various other railroad companies;” that in the prosecution of its business it receives express freight in many states, and carries the same, for hire, to points in the state of Missouri, and receives such freights within the state of Missouri, and
conveys the same to points within other states, and that it receives such express matter at points within the state of Missouri, and conveys the same to other points within said state; that there are "other persons, copartnerships, associations, and corporations residing and doing business within the state of Missouri, who were engaged in conveying to, from, and through the said state, and various parts of the same, goods and property of the descriptions aforesaid, for hire, by freight and by express, but not on con act with any railroad or steam-boat company, or the managers, lessees, agents, or receiver thereof, within said state, such persons, copartnerships, associations, and corporations being either provided with their own transportation facilities, or procuring the same, by hire, from other persons, not railroad or steam-boat company, or the manager, lessees, agent, or receiver thereof." The bill then refers to the act of the legislature hereinbefore set out, and alleges that it is not a valid law, because it lays a tax on interstate commerce, and discriminates in favor of all express companies that do not hire their transportation by “contract with any railroad or steam-boat company” and against those who do, by imposing the tax on the latter only, thus denying to the plaintiff the equal protection of the laws, in violation of the constitution of the United States, and violating the rule of equality and uniformity of taxation required by the constitution of the state of Missouri. The bill prays that the act of the legislature may be decreed to be unconstitutional, and the defendants enjoined from enforcing said act, or attempting to collect any tax or penalty therein provided for. A temporary injunction was granted on filing the bill. The case is now before the court on den urrer to the bill.
The case of Hoey v. The Same Defendants, and similar in all respects, was submitted at the same time.
W. W. Morsman, for Pacific Express Co.
CALDWELL, J., (after stating the facts as above.) Does the bill present a case of equitable jurisdiction? A very clear case must be made out before a federal court will enjoin the collection of a state tax.
A case for the exercise of such jurisdiction is not made out by showing that the tax is illegal, irregular, or unjust. It must also appear that its collection will be attended with a multiplicity of suits, or the destruction of a franchise, or cast a cloud upon the title to real estate, or some other recognized head of equity jurisdiction must be shown. This being a personal tax, no cloud can be cast on the title to real estate.