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that the act of Congress and the rules and | therewith would have constituted negligence regulations made under the same which the per se, those courts would have been necesplaintiffs allege to have been violated, are sarily compelled to pass upon the constitunot authorized by the Constitution of the tionality of the acts, which question was United States, and are not valid subsisting sharply presented by defendant. And it is laws or rules and regulations with which also obvious that if the supreme court had the defendant is bound to comply, and any been applied to and granted a writ of error, violation of the same would not, of itself, and that court had differed with the conclube an act of negligence, and you are not to sions of the court of appeals, arrived at avart consider a violation of the same as an act from constitutional objections, the validity of negligence in itself in arriving at a verdict of the acts and regulations would have been in this case." considered.

This instruction was objected to and was not given, though no exception appears to have been thereupon preserved.

On behalf of plaintiffs the court was asked to instruct the jury as follows:

*The court of appeals seems to have been of[123] opinion that after the cattle arrived in Colorado, Congress had no power to regulate their disposition, and hence that the regulations were not binding. And the question of power involved the construction of a provision of the Constitution of the United States. At the same time its judgment may fairly be said to have rested on the view that the statutes did not assert the authority of the United States, but conceded that of the state, in this regard; and that the regulations were not within the terms of the statutes. But, if the case had reached the supreme court, that tribunal might have ruled that the judgment could not be sustained on these grounds, and then have considered the grave constitutional question thereupon aris

"If the jury are satisfied from the evidence that the defendant company failed to comply with paragraph two of the rules and regulations of the United States Department of Agriculture of April 23, 1891, and that the defendant company did not put its cattle in pens or on trails or ranges that were to be occupied or crossed by the plaintiffs' cattle going to eastern markets before December, 1891, so that these two classes should not come in contact, then that constitutes negligence and want of reasonable care on the part of the defendant, and you need not look to any other evidence to find that the defend-ing. [122]ant did not use reasonable care in this case, and that the defendant was guilty of negligence."

And although the supreme court might have applied the rule that where a judgment rests on grounds not involving a constituThis was refused by the court and plain- tional question it will not interfere, we cantiffs excepted. But the court charged the not assume that that court would not have jury that the rule promulgated by the Sec-taken jurisdiction, since it has not so decided retary of Agriculture "would have the effect in this case, nor had any opportunity to do to give to this defendant notice that the so. United States authorities having in charge the animal industries, so far as the government of the United States may control it, were of the opinion that it was unsafe to ship cattle from Kimble county at the period of the year into Colorado and graze them upon lands that were being occupied by other cattle intended for the eastern market, or to allow them to commingle with them." this modification of the instruction requested plaintiffs saved no specific exception.

To

After the affirmance of the judgment by the court of appeals, plaintiffs filed a petition for a rehearing, the eighth specification of which was that

"This court erred in holding and deciding that the rules and regulations promulgated by the Secretary of Agriculture on April 23, 1891, as shown by the record herein, were not applicable to the herd of cattle which the defendant in error imported into Colorado in June, 1891, as shown by the record herein, for the reason, as this court held, that after said cattle were domiciled in Colorado their management must be regulated by the state laws, and not by the act of Congress, and that the disposition of said cattle afterwards was not within the scope of Federal authority."

It thus appears that if the trial court and the court of appeals had been of opinion that the Secretary's rules and regulations were within the terms of the authority conferred by the statutes, and that noncompliance

We must decline to hold that it affirmatively appears from the record that a decision could not have been had in the highest court of the state, and, this being so, the writ of error cannot be sustained. Fisher v. Perkins 122 U. S. 522 [30: 1192]. Writ of error dismissed.

HENRIETTA

MINING & MILLING COM-
PANY, Appt.,

บ.

JAMES I. GARDNER.

(See S. C. Reporter's ed. 123–130.)

Arizona
law as to attachment--time of
issuing attachment-construction of stat
ute.

1.

2.

The right to issue an attachment "at the commencement of the suit, or at any time during its progress," as given by Ariz. Rev. Stat. 1887, tit. 4, chap. 1, ¶ 42, is taken away by the provision of the act of March 6, 1891, authorizing attachment at the issuance of summons, or at any time afterward.

An attachment issued before the issuance of a summons is void under Ariz. Rev. Stat. 1887, 40, as amended by the act of March 6, 1891, allowing attachment "at the time of Issuing the summons, or at any time afterward."

8.

A statute taken from another state will be presumed to be taken with the meaning it had there.

of the territory, or is a foreign corporation, or is acting as such; or,

"3. That he is about to remove permanently cut of the territory, and has refused to Decided Febru- pay or secure the debt due the plaintiff; or, 4. That he secretes himself, so that the ordinary process of law cannot be served on him; or,

[No. 140.] Argued January 16, 1899. ary 20, 1899. ON APPEAL from a judgment of the Supreme Court of the Territory of Arizona affirming a judgment of the District Court of the Fourth Judicial District in and for

Yavapai County, in said Territory, in favor
of James I. Gardner, appellee, against the
Henrietta Mining & Milling Company, in an
action in which an attachment was issued
and property sold upon the judgment. Re-
versed, and cause remanded for further pro-
ceedings.

The facts are stated in the opinion.
Messrs. Frank Asbury Johnson and
William H. Barnes for appellant.

Messrs. S. M. Stockslager and George C.
Heard for appellee.

[124] *Mr. Justice McKenna delivered the opinion of the court:

This is an appeal from a judgment of the supreme court of the territory of Arizona, affirming a judgment of the district court of the fourth judicial district in and for Yavapai county, for $12,332.08 in favor of appelLee and against appellant, who was plaintiff

in error below. The action was upon an open account and a large number of assigned accounts. An attachment was sued out and the mines and mining property of appellant company were seized. Judgment was rendered by default, and the property attached ordered sold.

The judgment is attacked on two grounds: (1) That there was no personal service on that the attachment was appellant; (2) void because the writ was issued before the issuance of summons.

It is conceded that the appellant is an Illinois corporation, and that there was no per sonal service upon it. Was the attachment issued in accordance with the statutes of Arizona? If it was not, the judgment must be reversed. Pennoyer v. Neff, 5 U. S. 714 [24:565].

"5. That he has secreted his property, for the purpose of defrauding his creditors; or, "6. That he is about to secrete his property for the purpose of defrauding his credit

ors; or,

"7. That he is about to remove his property out of the territory, without leaving sufficient remaining for the payment of his debts; or,

"8. That he is about to remove his property, or a part thereof, out of the county where the suit is brought, with intent to defraud his creditors; or,

"9. That he has disposed of his property, in whole or in part, with intent to defraud

his creditors; or,

"10. That he is about to dispose of his property with intent to defraud his credit

ors; or,

"11. That he is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors; or,

"12. That the debt is due for property ob tained under false pretenses.

"41 (Sec. 2). The affidavit shall further state:

"1. That the attachment is not sued out for the purpose of injuring or harassing the defendant; and,

*"2. That the plaintiff will probably lose[126] his debt unless such attachment is issued.

"42 (Sec. 3). No such attachment shall issue until the suit has been duly instituted, but it may be issued in a proper case either at the commencement of the suit or at any time during its progress.

"43 (Sec. 4). The writ of attachment above provided for may issue, although the plaintiff's debt or demand be not due, and the same proceeding shall be had thereon as in other cases, except that no final judgment shall be rendered against the defendant until such debt or demand shall become due."

The record shows that the complaint was Paragraph 649 provides that "all civil filed December 4, 1894; that on the 24th of suits in courts of record shall be commenced that month affidavit and bond for attachment were filed and the writ was issued. by complaint filed in the office of the clerk of such court." Therefore, if paragraph 42 The return shows the seizure of the proper- (section 3) was in force at the time the ty on the 26th of December, the day sum-writ of attachment was issued, to wit, on the

mons was issued.

[125] *The Revised Statutes of Arizona of 1887, chapter 1 of title 4, provided for attachments and garnishments as follows:

"46 (Sec. 1). The judges and clerks of the district courts and justices of the peace may issue writs of original attachment returnable to their respective courts, upon the plaintiff, his agent, or attorney, making an affidavit in writing, stating one or more of the following grounds:

"1. That the defendant is justly indebted to the plaintiff, and the amount of the demand; and,

"2. That the defendant is not a resident

24th of December, 1894, there is no doubt of the validity of the writ. But it is contended that the paragraph was not in force, because, it is claimed, it had been repealed by an act passed by the legislative assembly of the territory, approved March 6, 1891.

This act is entitled "An Act to Amend Chapter 1, Title 4, Entitled 'Attachments and Garnishments."" Revised Statutes of Arizona, 1887. Section 1 is as follows:

"Sec. 1. Paragraph 40, being section 1, chapter 1, title 4, Revised Statutes of Arizona, 1887, is hereby amended so as to read as follows:

"The plaintiff at the time of issuing the 173 U. S.

summons, or at any time afterward, may have the property of the defendant attached, as security for the satisfaction of any judgment that may be recovered, unless the defendant gives security to pay such judgment as in this act provided in the following

cases:

"First. In an action upon a contract, express or implied, for the direct payment of money where the contract is made or is payable in this territory, and is not secured by any mortgage or lien upon real or personal property, or any pledge of personal property. "Second. When any suit be pending for [127]damages, and the *defendant is about to dispose of or remove his property beyond the jurisdiction of the court in which the action is pending, for the purpose of defeating the collection of the judgment.

"Third. In an action upon a contract, express or implied, against the defendant not residing in this territory or a foreign corporation doing business in this territory.

"Sec. 2. Paragraph 41, being section 2, chapter 1, title 4, Revised Statutes of Arizona, 1887, is hereby amended so as to read as follows:

"Section 2. The clerk of the court or justice of the peace must issue the writ of attachment upon receiving an affidavit by or on behalf of plaintiff, showing—

"First. That the defendant is indebted to the plaintiff upon a contract, express or implied, for the direct payment of money, and that such contract was made or is payable in this territory, and that the payment of the same has not been secured as provided in section 1 of this act, and shall specify the character of the indebtedness, that the same is due to plaintiff over and above all legal set-offs or counterclaims, and that demand has been made for the payment of the amount due; or,

"Second. That the defendant is indebted to the plaintiff, stating the amount and character of the debt; that the same is due over and above all legal set-offs and counterclaims; and that the defendant is a nonresident of this territory or is a foreign corporation doing business in this territory; or,

"Third. That an action is pending between the parties, and that defendant is about to remove his property beyond the jurisdiction of the court to avoid payment of the judg. ment; and,

"Fourth. That the attachment is not sought for wrongful or malicious purpose, and the action is not prosecuted to hinder or delay any creditor of the defendant.

"Sec. 3. Paragraph 43, being section 4, chapter 1, title 4. Revised Statutes of Arizona, 1887, is hereby repealed.

"Sec. 4. Paragraph 47, being section 8, chapter 1, title 4, Revised Statutes of Ari[128]zona, 1887, is hereby amended by striking out the word 'original' where it occurs in the first line of said section.

"Sec. 5. Paragraph 50, being section 11, chapter 1, title 4, Revised Statutes of Arizona, 1887, is hereby amended by striking out the word 'repleviable' where it occurs in line five of said section.

"Sec. 6. All acts and parts of acts in con

flict with this act are hereby repealed, and this act shall take effect and be in force from and after its passage.

"Approved March 6, 1891."

The amending act is more than a revision of the provisions of the statute of 1887; it is a substitute for them. It, however, does not expressly repeal paragraph 42. Does it do so by implication? Expressing the rule of repeal by implication, Mr. Justice Strong, in Henderson's Tobacco, 11 Wall. 657 [20: 238], said:

"Statutes are indeed sometimes held to be repealed by subsequent enactments, though the latter contain no repealing clauses. This is always the rule when the provisions of the latter acts are repugnant to those of the former, so far as they are repugnant. The enactment of provisions inconsistent with those previously existing manifests a clear intent to abolish the old law. In United States v. Tynen, 11 Wall. 92 [20: 154], it was said by Mr. Justice Field, that 'when there are two acts upon the same subject, the rule is to give effect to both, if possible. But if the two are repugnant in any of their provisions the latter act, without any repealing clause, operates to the extent of the repugnancy as a repeal of the first and even where two acts are not in express terms repugnant, yet, if the latter act covers the whole subject of the first, and embraces new provisions, plainly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act.' For this several authorities were cited, some of which have been cited on the present argument. This is undoubtedly, a sound exposition of the law. But it must be observed that the doctrine asserts no more than that the former statute is impliedly repealed, so far as the provisions of the subsequent statute are repugnant to it, or so far as the latter statute, making new *provisions, is plainly intended as a sub-[129] stitute for it. Where the powers or directions under several acts are such as may well subsist together, an implication of repeal cannot be allowed."

with paragraph 42? Certainly not, if the May paragraph 40, as amended, subsist former prescribes the time when the writ of attachment may be issued, and not the time when it may be levied. Its identical language was section 120 of the practice act of California, and was continued as 537 of the Code of Civil Procedure of said state, and was such at the time the act of 1891 of Arizona was passed. When part of the practice act, it was construed by the supreme court of California in the case of Low v. Henry, 9 Cal. 538. Mr. Justice Burnett, speaking for the court, said:

"The twenty-second section of the practice act provides that a suit shall be commenced by the filing of a complaint and the issuance of a summons; and the one hundred and twentieth section allows the plaintiff, 'at the time of issuing the summons, or at any time afterwards,' to have the property of the defendants attached. These provisions must be strictly followed, and the attachment, if issued before the summons, is a nullity. Ev parte Cohen, 6 Cal. 318. The issuance of the

summons afterwards cannot cure that which
was void from the beginning."

Counsel for appellee, however, urges that this decision is explained by the fact that by the California laws a suit was commenced by filing a complaint and the issuance of a summons, and that the decision of the court was that the attachment having been issued before summons was issued, it was issued before the commencement of suit, and hence was void on that ground. We think not. "To have the property of the defendant attached" was construed to mean the issu ance of the attachment, and it was held to be a nullity if done before the summons was issued. If, however, ambiguity could arise under the practice act and the Code of Civil Procedure as originally passed, it could not arise after the Code was amended in 1874, and as it existed at the time of the Arizona enactment of 1891. At that time the issu[130]ance of summons *was not the commence

solvent national bank-basis of dividends -bankruptcy rule.

1. A decree of the circuit court of appeals reversing a decree of the circuit court, with specific directions to enter a decree in accordance with the mandate, is final for the purposes of an appeal to this court.

2.

3.

4.

5.

The entry of a decree by the circuit court in conformity with a mandate of the circuit court of appeals, after reversal, with specific directions, does not cut off the right to an appeal not yet prosecuted from the decree of reversal.

A controversy as to the basis on which dividends should be declared by a receiver of a national bank, which involves the enforcement of the administration of the trust, is within the jurisdiction of equity.

A secured creditor of an insolvent national bank is not estopped from claiming the right to prove his full claim, by temporarily submitting to an adverse ruling of the comptroller, when other creditors have not been harmed thereby.

A secured creditor of an insolvent national bank may prove and receive dividends upon the face of his claim as it stood at the time of the declaration of insolvency, without crediting either his collaterals or collections made therefrom after such declaration, subject always to the proviso that dividends must cease when from them and from collaterals realized the claim has been paid in full.

ment of the action. The amendment of 1874
(Amendment of the Codes 1873-4, 296) pro-
vided that "civil actions in the courts of the
state are commenced by filing a complaint,"
(section 405) and summons may be issued
at any time within one year thereafter (sec-
tion 406). Section 537, which provided for
the issuance of an attachment and which
was adopted by the Arizona statute, was not
changed. Notwithstanding the amendment 6. The bankruptcy rule which requires the

holder of collateral security to exhaust it
and credit the proceeds on his claim, or else
to surrender it, before he can prove his claim,
is not adopted for national banks by U. S.
Rev. Stat. § 5236, providing for a ratable
dividend on claims proved or adjudicated.
[Nos. 54 and 55.]

of 1874, we have been cited to no case revers-
ing or modifying Low v. Henry, nor is it
claimed that the practice did not continue in
accordance with the ruling in that case. In-
deed, how could there be change? The pro-
visions of the Code did not need further in-
terpretation. The procedure was clearly de-
fined. An action was commenced by filing a
complaint. Within a year summons might Argued October 20, 21, 1898. Decided Feb-
be issued, and when issued the plaintiff
might have the property of the defendant at-
tached, that is, have an attachment issued

The language of paragraph 40, as amended in 1891, having been taken from the California Code, it is presumed that it was taken with the meaning it had there, and hence we hold it worked a repeal of paragraph 42 of the Revised Statutes of Arizona of 1887; and the judgment of the Supreme Court of the Territory is reversed and the cause manded for further proceedings in accordance with this opinion.

ruary 20, 1899.

PPEALS from decrees of the United States Circuit Court of Appeals for the Fifth Circuit in a suit by the National Bank of Jacksonville against T. B. Merrill, as receiver of the First National Bank of Palatka, Florida, one decree reversing the decree of the Circuit Court of the United States, for the Southern District of Florida, and reremanding the case with directions to enter a decree that the Jacksonville Bank was entitled to prove its claims to the entire amount of the indebtedness to it of the Palatka Bank, etc.; and the other decree dismissing an appeal taken by the receiver of the Palatka Bank. Decree of the Circuit Court of Appeals, first mentioned, affirmed; and decree of the Circuit Court entered in pursuance of the mandate of the Court of Appeals, also affirmed.

[131]T. B. MERRILL, as Receiver of the First National Bank of Palatka, Florida, Appt.,

V.

NATIONAL BANK OF JACKSONVILLE.

T. B. MERRILL, as Receiver of the First
National Bank of Palatka, Florida,
Appt.,

v.

See same case below, 41 U. S. App. 529, and 645.

Statement by Mr. Chief Justice Fuller: On the 17th day of July, A. D. 1891, the NATIONAL BANK OF JACKSONVILLE. First National Bank of Palatka, Florida, a

(See S. C. Reporter's ed. 131-179.) Decree, when final-right to appeal-jurisdiction of equity-secured creditor of in

banking association incorporated under the laws of the United States, having its place of business at Palatka, Florida, failed and closed its doors. Subsequently T. B. Merrill was duly appointed receiver of the bank

by the Comptroller of the Currency, and entered upon the discharge of his duties. At the time of the failure of the bank, it was indebted to the National Bank of Jacksonville in the sum of $6,010.47, on sundry drafts, which indebtedness was unsecured; and also in the sum of $10,093.34, being $10,000, and interest, for money borrowed June 5, 1891, evidenced by a certificate of deposit, which was secured by sundry notes belonging to the First National Bank of Palatka, attached to the certificate as collateral. These notes aggregated $10,896.22, the largest being a note of A. L. Hart for [132]$5,350.22. The National Bank of Jacksonville proved its claim upon the unsecured drafts for $6,010.47, and as to this there was no controversy. It also offered to prove its claim for $10,093.34, but the receiver would not permit it to do this, and, under the ruling of the Comptroller of the Currency, it was ordered first to exhaust the collaterals given to secure the certificate of deposit, and then to prove for the balance due after applying the proceeds of the collaterals in part payment.

ler and would demand payment upon a different basis."

Sundry exceptions were taken to the answer, which were overruled, and the cause was set down for final hearing on bill and answer.

The circuit court entered its decree, January 29, 1896, that complainant was entitled to receive dividends on the whole face of the indebtedness due July 17, 1891, less the dividends actually paid to it; that the receiver declare the dividend on the basis of the whole claim, and pay it out of any assets which were in his hands March 15, 1894; and that he render an account.

From this decree the receiver prosecuted an appeal to the circuit court of appeals for the fifth circuit. That court, differing from the circuit court as to the form of its decree, reversed it and remanded the cause, with directions to enter a decree that the Jacksonville Bank was entitled to prove its claims to the entire amount of the indebtedness, and to the payment thereon of the same dividends as had been paid on other indebtedness of the Palatka Bank, with interest on such The Jacksonville Bank collected all the dividends from the date of the declaration notes excepting that of A. L. Hart, obtained thereof, less a credit of the sums which had a judgment on the latter, which it assigned been paid as dividends on the part of the and transferred to the receiver, applied the claim theretofore allowed, provided the diviproceeds of the collaterals which it had col-dends theretofore paid and thereafter to be fected to its claim on the certificate, and paid on the sum of $10,093.34, together with proved for the balance due thereon, being the the amounts theretofore and thereafter resum of $4,496.44. On December 1, 1892, a ceived on the collaterals securing that individend of $1,573.75 was paid on the claim debtedness, should not exceed one hundred as thus proved and on May 17, 1893, a sec- cents on the dollar of the principal and interond dividend of $449.64 was paid. est of said debt; that the receiver recognize the Jacksonville Bank as creditor of the Palatka Bank in said sum of $10,033.34 as of July 17, 1891, and pay dividends as aforesaid thereon, or certify the same to the Comptroller of the Currency, to be paid in due course of administration; and that the Jacksonville Bank receive, before further payment to other creditors, its due proportion of the dividends as thus declared, with interest. 41 U. S. App. 529. From that decree, after the mandate of the circuit court[134] of appeals had been sent down to the circuit court, and proceedings had thereunder, an appeal was taken and perfected to this court, and is numbered 54 of this term.

On the 11th of September, 1894, the Jack sonville Bank filed its bill of complaint in the Circuit Court of the United States for the Southern District of Florida against Merrill as receiver, which set forth the foregoing facts, complained of the action of the receiver in not permitting proof for the full amount of the certificate of deposit, and alleged that it "gave due notice that it would demand a pro rata dividend upon the whole amount due your orator, without deducting the amount collected on collateral security, -to wit, that it would demand a pro rata dividend upon $16,103.81, and interest thereon from the 17th day of July, ▲. d. 1891.”

The prayer of the bill was, among other things, for a pro rata distribution on the entire amount of the indebtedness.

The defendant demurred to the bill, and, the demurrer having been overruled, answered, denying "that the complainant gave due notice that it would demand a pro rata dividend upon the whole amount due to it without deducting the amount collected on collateral security;" and averring, to the contrary, that "the complainant accepted the said ruling of the said Comptroller without demur, and accepted from the said Comptroller, through this defendant, without protesting notice of any kind, the checks of the 1133]said Comptroller in payment of the dividends mentioned in the bill, and that it was not until the 15th of March, 1894, that the complainant gave notice of any kind that it dissented from the said ruling of the Comptrol173 Ú. S. U. S.. BOOK 43.

41

[blocks in formation]

*Mr. Chief Justice Fuller delivered the[134) opinion of the court:

The circuit court of appeals reversed the decree of the circuit court, with specific di641

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