would give no right to the exclusive use of the tin or wood as a material to designate the goods. A person may appropriate any word, figure, or emblem as a trade-mark, but that does not give an exclusive right to the use of the well-known material substances upon which the word, figure, or emblem may be impressed or engraved. I am therefore of opinion that th:q bill should be dismissed for want of equity; but this disposition of the case is made without prejudice to the complainants' right to sue upon any of its specific trade-marks depending on the coloring, design, shape, or letterings on the tin label.
HENNING V. PLANTERS'
Te1/.n68s8e. August 80, 1886.)
FOREIGN JUDGMENT-SUIT AGAINST FOREIGN CORPORATION-WHAT THE REOORD :MUST SHOW.
It is a rule of interstate or international law that the courts of another state will not receive. as evidence of a foreign judgment, in a suit brought upon it. any record thereof which does not show on its face that the defendant, if a foreign corporation, was doing' business in that state. This is a substantive jurisdictional averment that must affirmatively appear, and not be left to any inference from the bare return of the officer that he has served an "agent... Nor can parol or other proof of the fact be received in aid of the defective record, if the averment does not appear therein.
SAME-PROOF ALIUNDE THlil RECORD NOT AVAILABLE TO CURE THE DEFECT.
At Law. This was an action upon the judgment of a state court in Illinois, and the facts are stated in the opinion. It appears by the proof which was rejected that the defendant company issued the policy of insurance through a broker at Chicago, and that it had issued many other policies through that and other brokers; the business all being done by mail, and the policies sent to and delivered at Chicago. The company did not comply, nor attempt to comply, with the statutes of Illinois regulating the business of foreign insurance companies in that state, and appointed no agent to receive service as required. The agent served was the broker through whom the policy was issued, and he had then ceased, in fact, to be a broker for defendant, though whether he had ceased to be an "agent" for the service of process was a contested fact, or inference of fact, depending on the phraseology of the Winois statutes. The defendant pleaded a special plea, denying that it was doing ousiness in the state, or that the broker was its agent, and averring that the judgment was void, to which the plaintiff replied, and issue was joined; the plaintiff offered in evidence the record, which was objected to, and depositions, to show the facts already stated. The
fl. PLANTERS' 'INS. CO.
defenda.nt offered proof to show that Mitchell was only its broker in each transaction, etc. The case was submitted, upon stipulation, to be tried without a jury. Ellett <t Houston, for plaintiff. T. B. Turley, for defendant. HAMMOND, J. On the authority of the case of St. Clair v. Cox, 106 U. S. 350, S. C. 1 Sup. Ct. Rep. 354, it is my opinion that the judgment here must be for the defendant compa.ny. Mr. Justice FIELD there says:
"It is sufficient to observe that we are of opinion that, when service is made within the state upon an agent of a foreign corporation, it is essential, in order to support the jurisdiction of the court to render a personal judgment, that it should appear somewhere in the record-either in the application for the writ, or accompanying its service, or in the pleadings, or the finding of the court-that the corporation was engaged in business in the state. The transaction of business by the corporation in the state, general or special, appearing, a certificate of service by the proper officer on a person who is its agent there, would, in our opinion, be sufficient p1'ima facie evidence that the agent represented the company in the business. It would then be open, when the record is offered as evidence in another state, to show that the agent stood in no representative character to the company; that his duties were limited to those of a subordinate employe, or to a particular transaction; or that his agency had ceased when the matter arose. "In the record, a copy of which was offered in evidence in this case, there was nothing to show, so far as we can see, that the Winthrop Mining Company was engaged in business in the state when service was made on Colwell. The return of the officer, on which alone reliance was placed to sustain the jurisdiction of the state court, gave no information on the subject. It did not, therefore, appear even prima facie that Colwell stood in any such representative character to the company as would justify the service of It copy of the writ on him. The certificate of the sheriff, in the absence of this fact in the record, was insufficient to give the court jurisdiction to render a personal judgment against the foreign corporation. The record was therefore properly executed."
The return thus declared against was that the officer had served a copy of the writ "by delivering the same to Henry J. Colwell, Esq., agent of said Winthrop Mining Company, personally, in said county." Here the return is :
"Served this writ upon the within-named defendant. the Planters' Insurance Company, by delivering a copy thereof to and leaving same with Charles P. Mitchell, agent of said company, this fifteenth day of January, 1885; the prellident of said company not found in my county this fifteenth day of January. 1885."
We look in vain for suggestion, even, in the record that the defendant was, at the time of bringing the suit, or that it had been theretofore, "doing business" in the state of Illinois. The prfecipe does not suggest it, nor the writ, nor the return of service. From these it does not even appear that the defendant was a corporation foreign to the state of Illinois; and for all that is shown it might be a home corporation, as no distinction is intimated by the language
used; it being simply, in common form, a suit against the Planters' Insurance Company,-whether a corporation or a partnership is not stated. The declaration does aver that the defendant is "a corporation organized and existing under the laws of the state of Tennessee, and having its principal office or place of business at Memphis, in said last-named state, and which has been duly summoned of a plea of trespass on the case upon promises," etc.; but nowhere is it even hinted that the defendant, so shown to be beyond the jurisdiction of the state, is "doing business" within it. The statement of the cause of action does not aid us in the least. It is not shown, even, that the plaintiff, or the firm of which he was receiver, were citizens of Illinois, nor that the policy was executed or delivered there, nor that there was the least connection between the transaction and the state of Illinois, or persons within it, before or since, except the bare fact of the suit itself. The policy is set out in hcec verba in the declaration; and if we may look to this, which is doubtful, it appears to have been on its face a Tennessee contract, for it is stated to have been signed and sealed in the city of Memphis, and there is absolutely nothing to show but that all parties to it were in Memphis at the time. 'fhe property insured was in the state of Minnesota, so that we are without the least trace of any fact to show that the defendant company had, either in this particular transaction or any other, the least possible relation to the state of Illinois. The judgment of the court is equally barren. It is a judgment by default, and the assessment of damages at $2,600, as if upon a suit against an individual upon personal service. It is all left to inference, based on the return of the sheriff that he had served defendant's agent, that this foreign corporationwBs "found" or "doing business" within the state of Illinois. But we have seen that, according to the supreme court of the United States, this inference will not do, and Mr. Justice FIELD makes the reason plain. An individual is always "found" where he is served, and cannot be served without such "finding," but a corporation is not, necessarily. The sheriff may choose to serve anybody as agent; and wherever the suit be brought he could assume that any convenient person was "agent;" and if that simple return imports that the foreign corporation was "doing business" within the state, and that the person served was a proper "agent" to represent it, the whole jurisdiction would depend upon what may be a fallacious inference; for, in the nature of the thing, it does not essentially import that fact. Ab· stractly, perhaps, the same might be said of a service on agents OI officers of a domestic corporation; but in that case there is a judicial knowledge, so to speak, of the corporations of the state, as to any par. ticular corporation being engaged in business, as to the requiremenh of service on corporations, and the character of their organization and officers, which aids the service. Here-and particularly in this case, for I have shown that every suggestion of this record is aga.inst
HENNING tI. PLANTEBS' INS. 00.
the notion that this company was doing business or that thist1\ansaction was within the state-the substantive fact to support the service, that the corporation, namely, was "doing business," 01\ was "found" doing business, in the state, is wholly wanting in this record, and cannot be supplied by that sort of general knowledge of which I have spoken as existing in relation to domestic concerns. It is a general rule that a special jurisdictional fact outside the ordinary and intrinsic situation of the thing shall be specially averred in plead. ing, and certainly that which is contrary to that ordinary course of things should be averred, to give the court knowledge of the fact. Of course, a pleader need not state his evidence in the pleading, but he must aver the conclusion of fact in some form sufficient to show it, however generally. Precisely how this averment should be alleged or shown by the record may be difficult to say, for it is a remarkable fact that until 1872, when the case of Newby v. Von Oppen, L. R. 7 Q. B. 293, occurred, there was never any suit against a foreign corporation in a court of law in England. Reasoning by analogy from the practice of avel'ring the jurisdictional facts as to the citizenship of the parties to a suit in the federal courts, it might be enough to simply aver the general fact that the defendant "is doing business within this state" in the declaration, or elsewhere in the technical record. Nor can the want of such averment or showing in the record as the supreme court demands be supplied by proof aliunde the record, offered at the trial of the subsequent suit predicated on the alleged judgment. The defects of the record cannot be so pieced or patched up by parol. Mr. Justice COOLEY says in Montgomery v. Merrill, 36 Mich. 97, S. C. 25 Mich. 73:
"We think, also, that the court was right in rejecting the evidence offered by the plaintiff on the trial to show that Sidney Ketchum was in fact the last president of the bank. Jurisdictional facts cannot rest in parol, to be proved in one case, and perhaps disproved in another. The record must be complete in itself." 1 Whart. Ev. (2d Ed.) § 824.
Nor is this a case of local Illinois law, to be binding here if binding there. This judgment might be good there, and not good here, in this proceeding, as evidence of its existence. Mr. Justice GRAY well expresses the rule on that subject in H.art v. Sansom, 110 U. S. 151, S. C. 3 Sup. Ct. Rep. 586, where he remarks:
"The courts of the state might perhaps feel bound to give effect to theservice made as directed by its statutes. Hut no court deri ving its authority from another government will recognize a merely construct\ve service as bringing the person within the jurisdiction of the court. Thejudgment would be allowed no force in the courts of any other state, and it is of no greater force, as against a citizen of another state, in a court of the United States, though held within the state in which the jUdgment was rendered." Id.155.
And Bee Town of Pana v. Bowler, 107 U. S. 529, 545; S. C. 2 Sup. Ct. Rep. 704.
It is an international or interstate consideration as affected by our constitution. Article 4, § 1. The court started out, under the lead of Mr. Justice WASHINGTON, to construe that requirement into a rule of absolute verity for all judgments of another state, and respectable and high authority is not wanting to show that such is the proper international doctrine; but in the conflict over the point, not settled when our constitution was made, there has been evolved a general consensus of opinion that the courts of another state will not give effect to the judgment unless it appear by the record that the court had potential jurisdiction over the person of the defendant; and, if the record show that,-which this does not,-then the defendant may contradict it by proof, in order to save his rights of "natural justice," whatever that may mean. Whart. Confl. Laws, (2d Ed.) § 646 et seq.; Moulin v. Insurance Co., 24 N. J. Law, 222; S. C. 25 N. J. Law, 57. And 'it will be found from the cases cited that, beginning with Pennoyer v. Neff, 95 U. S. 714, the supreme court has vigorously laid hold of this rule with a deliberate purpose to protect in the most thorough manner all non-residents against judgments where there is no personal service, except so far as the state rendering them has property within itl:! borders to satisfy them by its own execution of them. Elsewhere, except to that extent, they are utterly void. This case of St. Clair v. Cox, supra, is one of the series, and it establishes, as an element of this protection, that, when foreign corporations are sued, the record must show affirmatively, not only that there was service upon an "agent," but that the corporation was in fact "doing business" in the state. This latter fact being shown, the court will assume, in the absence of proof to the contrary, that the party returned served as "agent" was in fact the representative of the corporation, but not otherw.ise. What facts will constitute "doing businoss" within a state we need not decide; nor whether, on the facts of this case, as shown by the proof taken in support of defendant's special plea that it was not doing business there, and that Mitchell was not its "agent," this defendant was "found" by its "agent," either perforce of the Illinois statutes in that behalf, or of the general law. It is sufficient here that the defendant's objection to the admission in evidence of the plaintiff's recurd must prevail. However it may be under the laws of Illinois, that record does not, under the international or interstate law, disclose the fact that this defendant was doing business in that state, and the fact cannot be now proved in aid of the record. Judgment for defendant.
IN BIl YANCEY.
At Chambers. Application to be qualified as marshal. The department of justice having forwarded the commission of T. B. Yancey to be a marshal of the United States for the Western district of Tennessee to United States District Judge HAMMOND, with a request that he be qualified as required by law, and the commission delivered to him, he was notified to appear for that purpose. The district attorney, however, interposed the following letter:
"OFFICE OF UNITED STATES ATTORNEY, "MEMPHIS, TENN., August 21,1886.
"Hon. E. S. Hammond, JUd.qe United States District Court, Memphis, Tenn.-DEAR SIR: I deem it my duty to call your attention to the fact that
the only jUdicial decision upon tlw question in the United States casts at least a doubt upon the propriety of Thos. H. Yancey, Esq.. assuming the duties of marshal in this district under his recent appointment, and I suggest that you examine the question in order that he may act advisedly, and also that no trouble or inconvenience may arise in regard to the service of process. "This can all be avoided by an authoritative determination of this qnestion, or by Mr. Yancey's appointment by the circuit justice, until the office is filled by the president. If the commission lately issued to Mr. Yancey was improvidently done, he would incur the penaltyatlixed under section 1771, Rev. St., i. e., imprisonment not exceeding five years, and a finE' not exceeding ten thonsand dollars. And if th6 0pinion of Judge CADWALADER is the law, all service of process by him would not only be ilTE'gular, but be void, because, under that opinion, he would not be an officer de jure nor de facto. and could receive no compensation for any of his acts. "Marshal Williamson was suspended on June 12, 1885. His term of office expired May 24, 1886, and Marshal Freeman was designated' to perform the duties of such officer in the mean time;' the suspension of Mr. Williamson being, however. upon its face until the end of the next sf/ssion of the senate. If the vacancy occurred at the end of Mr. Williamson'l' term, it happened in May, and during the session of the senate, and Mr. F"eeman was only a de facto officer after that date. If, however, he held until the
end of the session of the senate, his appointment is valid and regular. opinion which leads me to make theFle suggestions is that of Judge CADWALADER, entitled ·ProcE'edings upon the question of incumbency of the office of attorney of the United States for the Eastern district of Pennsylvania,' and is reported in the eighth volume of the Internal Revenue Record, pages 138146, and in which nearly every precedent and opinion is cited except that of Mr. Evarts regarding the same appointee, and that will be found in the same book at page 78. "Very respectfully, H. W. MCCORRY, U. S. Attorney." Indorsed: "The clerk will file this letter, send Dr. T. B. Yancey a copy of it, and notify him and the district attorney that I will confer with them at my chambers on Monday next at 10 o'clock. E. S. HAMMOND."
The judge thereupon sent the following telegram to Mr. Justice WOODS, assigned as circuit justice in place of Mr. Justice MATTHEWS, . who is traveling abroad dnring vacation:
"MEMPHIS, TENN., August 25, 1886. "Mr. Justice W. B. Woods, Washington, D. C.: Marshal Williamson waS 8uspended. Freeman designated, nominated, and rejected. Williamson's term expired while senate in session. Yancey nominated, and no action by senatE-. After adjournment, president commissions Yancey. District attorney makes question that the president cannot, and circuit justice must, appoin.t. Can you confer with circuit jUdge and myself; and, if 80, will you come here, or shall we meet you at a place convenient to all? "E. S. HAMMOND, U. S. District Judge."
"JACKSON, TENNESSEE, August 25, 1886. "Han. E. B. Hammond, Memphis, Tennessee: Since calling your attention to the question of Dr. Yancey's appointment I have become satisfied that Judge CADWALADER'S opinion was wrong in stating that such a person would not be an officer de facto. Such being the case, thEl service of process by him would not be void. As this is the only interest my office has in the question, I communicate the fact to you, and leave him to act as he may be advised by bis attorneys, and without either suggestion or objection on my part. Please have this shown to Genl. Wright. "H. W. MCCORRY, District Attorney."
Subsequently the district attorney sent to the district judge the following dispatch:
The district judge, having received the reply of the circuit justice, given in the opinion, forwarded it, with a statement of his own, to the circuit judge, from whom he received the letter copied in the opinion. 'fhe facts are that M. T. Williamson was, on the twenty-fourth day of May, 1882, appointed and commissioned marshal of the United States for this district, by and with the advice and consent of the senate, for a term of four years, which ended May 24, 1886, while the senate was in session. The president, on tbe twelfth day of June, 1885, snspended Williamson, and thereupon designated and commissioned James H. Freeman to discharge the duties· of "such suspended officer in the mean time," and "subject to all the provisions of law applicable thereto." When the senate again met, Freeman was nominated to be marshal, and his nomination was, a few
IN BE YANCEY.
days before its adjoumment, rejected. T. B. Yancey was then nominated by the president, but no action was taken by the senate, which adjourned. After this adjournment, and during the recess of the senate, the president appointed and commissioned said Yancey "to execute and fulfill the duties of that office according to law, and to have and hold the said office, with all the powers," etc., "until the end of the next session of the senate of the United States, and no longer; subject to the conditions prescribed by law." Chas. A. Stainback, Luke E. Wright, and Thomas B. Turley, for the Marshal.
Before WOODS, Justice, and JACKSON and HAMMOND, JJ. HAMMOND, J. Reflection has satisfied me that I should qualify this appointee as required by Rev. St. §§ 782, 783. One cannot read the very cogent opinion in the Case of the District Attorney, 7 Amer. Law Reg. (N. S.) 786, S. C. 8 Int. Rev. Rec. 138, without feeling that there is very grave doubt as to the validity of this appointment by the president, and it may be that there should be an authoritative judicial determination of the doubt. Judge CADWALADER calls attention to the difficulty of raising the question for judicial decision, and it is apparent that even that opinion itself is subject to challenge as being only an expression of the learned judge's views of the question, and not, in a strict sense, an adjudication of it; and he is himself careful, in his consideration of the subject, to distinguish between expressions of opinion that are authoritative with courts, and those which are not. It may be true, as suggested by the district attorney, that questions may arise as to the validity of the service of process; the appointee of the president may, by accepting the office, by taking the oath he asks me to administer, and by undertaking to exercise the duties of marshal, incur the severe penalties of Rev. St. § 1771; or even the president and the department officers may incur the penalties of section 1772,-and yet it may not be, and I think is not, the duty of the district judge to protect them, or any of them, from those penalties, by refusing to qualify the appointee, or to thus undertake to furnish any immunity from the inconveniences of disputed services of process. The statute does not impose on the district judge any judicial functiou to determine, while approving the bond and administering the oath, the right or title of the appointee to the office, or the power of the president in making the appointment. I am not prepared to say, nor called on to decide, whether the district judge, in approving the bond and qualifying the marshal, exercises a purely ministerial duty, as defined in Gaines v. Thompson. 7 Wall. 347, 353. and other cases, or not; nor whether its performance could be coerced by mandamus; nor whether any court has been authorized to issue that writ against him, if it be a proper remedy. It requires only a slight examination of the cases to show that these are very grave questions. like the other. and they should neither be
mooted, nor any attempt be made to decide them, until, in the due course of events, lit contestation arises which shall present them formally for judicial action. But I feel quite sure that, whatever may be the precise nature of that duty, the appearance of a person holding the president's commission, and his offer to qualify, does not present to the district judge a case or question invoking from him any opinion or decision as to the president's power to make the appointment, whether objection, or suggestion of objection, be made to him or not. It is true, the statute says every "marshal" shall, before he enters upon the duties of his appointment, take, before the district judge, an oath, etc., and one appointed by the president or other functionary without authority cannot be "a marshal;" but it would be a very strained implication from this that the district judge thereby acquires the power to determine whether the applicant be "a marshal" or not. Strictly, he is not marshal until he qualifies, a.nd cannot be; and there is inaccuracy of expression in the statute calling him so, if we think of it in reference to this supposed authority of the district judge to decide whether he be "a marshal" or not. It will not do to base so formidable a power on so bare an expression. It is not a necessary implication from the statute, and the rule is familiar that it is only such implications that are a part of the statute. This duty might have been conferred as well upon the secretary of state or other executive officer, upon any commissioner, notary, justice of the peace, 01' the like; and the character of the official, as being executive or judicial, or his dignity of office or want of it, could add nothing whatever to the nature of the act performed. But the fact that it might be so variously authorized shows that it cannot have been the intention of the statute to empower the particular functionary selected with the judicial office of deciding whether the president has, in a given case, exceeded his powers. There is too much disparity of importance between the two for any sound basis of association of ideas in that regard. I should not surely qualify an applicant coming with a commission as marshal from, let us say, the mikado of Japan or the governor of a state; but, in refusing, I should not act judicially, and determine that he was not a marshal; for he would be in no better attitude than one who came with no commission at all. But when he appears with a commission of the president of the United States, under the great seal of the United States, that seal imports, prima facie, a rightful appointment so far as coneerns the duty, I wish carefully to say, of any functionary authorized to take his bond, and administer the oath of office. Beyond this I express no opinion as to the import of the commission. If we consider the probable or possible effect of the refusal of the district judge to qualify the president's appointee, the impotence of the refusal, so far as it can serve any useful purpose, becomes more plain. Besides .the doubts already indicated whether a mandamus would lie, or whether, if it do, any court has power to issue it, there
is quite a strong probability that the mandamus, if available, would not bring the question under any judicial sorutiny, because it would not involve the right or title of the appointee to the office. U. S. v. Guthrie, 17 How. 301. But see Etc parte Hennen, 13 Pet. 230. The only proper subject of inquiry would probably be whether there was any defect in the prima facie right created by the commission, and behind that no court would attempt to go. But if the mandamus be not available, then the excluded applicant would be without remedy, unless the impeachment of the judge could be called a remedy, until congress could confer the power to qualify him upon some more reasonable official. Meantime, the duties might go undischarged; for, although the circuit justice, under Rev. St. § 793, may fill vacancies in the office of marshal, it would be doubtful if the refusal to qualify the president's appointee would of itself produce such a condition of affairs as would authorize action under that section. It is my opinion that whether the district judge refuses to qualify the president's appointee or not should have no influence on the action of the circuit justice in the matter. If the applicant be qualified, it does not add anything to his right or title to the office; and if the president have no power under the constitution-and it is purely a constitutional question-to make the appointment, the vacancy would still exist, whioh the circuit justice is required to fill. If the district judge qualify the president's appointee, it might induce the circuit justice to withhold any action, since he finds a person in the actual discharge of the duties; but, if he refuse to qualify him, it does not follow that the circuit justice would any more readily act in the premises, because it does not relieve the situation of the necessity of the circuit justice deciding whether he has power to fill the vacancy. The only possible useful purpose, therefore, in refusing qualification, would be to invite the circuit justice to consider and determine his powers and duty in the premises, by removing the cause he might find for non-action in the de facto (if it be so) incumbency of the president's appointee. I shall certainly not feel author· ized to withhold qualification to the extent of the embarrassment of the circuit justice in that matter; nor, on the other hand, to the extent of embarrassing the person holding the president's commission in any contest he may have with an appointee of the circuit justice either in respect of his right or possession. I have, under the circumstances, therefore, invited a conference with the circuit justice and the circuit judge, so that we may mutually determine what is best to be done for the public service.
J. Having briefly telegraphed the facts to Mr. Justioe asked a conference with him and the circuit judge, he replied as follows: v.28F.no.8-29
HAMMOND, WOODS, and
"WASHINGTON, D. C., August 26, 1886. "Hon. II. 8. Hammond, U. 8. Judge, Memphis, Tennessee: In my opinion, president had power to make appointment. See In re Farrow and Bigby. 4 Woods, 491, [So C.3 Fed. Rep. 112.] W. B. WOODS, Justice." Whereupon I forwarded his telegram to Mr. Circuit Judge JACKSON, with a copy of the foregoing views of my own, asked his advice whether to urge a conference and argument, and for his opinion as to the president's authority and my own duty in the premises, to which the following reply was received:
"NASHVILLE, TENNESSEE, August 28, 1886. "Hon. E. S. Hammond, Memphis, Tennessee-My DEAR JUDGE: Your note of the twenty-sixth instant inclosing draft of your views in the matter of the marshalship, and his right to be qualified, was received last night. I have not seen the case referred to by JUdge WOODS in his dispatch, viz., In re Farrow and Bigby, 4 Woods, 491, [So C. 3 Fed. Hep. 112,] which seems to control his opinion that the president has the right to make the appointment in question. The vacancy having occurred dU1"ing the session of the senate, I do not think the president has the authority, under the constitution, to fill it during the recess of the senate. I examined the question with some care while the Edmunds resolutions were under discussion, and then reached the conclusion, supported by the undoubted weight of authority, that the president had no power to make a temporary appointment in cases like the present; the vacancy not happening during the recess of the senate. The question is an important one, and should be definitely settled by the supreme court. How to raise it judicially is the difficllity. I agree with you in thinking that the duty imposeq upon the district judge to qualify the marshal (approve his bond, and administer to him the oath of office) does not enable you to institute sua sponte an inquiry into the regularity of the appointment. The validity of his appointment is a jUdicial question, which must be raised by some one questioning the appointment. This could be raised by an appointee of the circuit justice under section 793 of the Hevised Statutes, if the circuit justice should choose or think proper to make an appointment under that section, on the theory that Yancey held under no valid appointment. Yancey's qualification would in no way affect the case in that event. The qllestion of the validity of the appointment might perhaps be raised in soma other manner. Judge CADWALADER allowed it to be mised by the retiring officer, occupying the position Freeman now does. But, unless Yancey's right or title to the office is in some way questioned, and in some mode so as to make it the subject of judicial inquiry, I do not Ilee how you can properly decline to qualify him, or to act on his bond, and, if that is satisfactory, administer to him the oath of office. I think, in an important question like this, which involves the regularity of service of process, and the rights of individuals and the public, you did right in suggesting or proposing a conference with the circuit justice and circuit judge. "Yours, truly, HOWELL E. JACKSON."
The telegram from the circuit justice settles that he will not undertake to exercise any power of appointment under Rev. St. § 793, since it is his opinion that the president has the power to make this appointment. This relieves me of any embarrassment in that direction, and, of course, amounts to an advice from him that I should qualify Yancey. Whether this determination of the circuit justice be a judicial decision or not, he has, whatever the character of his
III BE YANCEY.
function in that behalf may be, the responsibility of determining if B' state of facts exists requiring him to make an appointment, and it is a practical construction of the constitution and statutes in favor of the president's power in the premises, and furnishes to me an additional support for declining to question it by a refusal to qualify the applicant. And, while it is apparent that the circuit judge holds a contrary opinion as to the power of the president, he concurs in the conclusion I had reached to qualify the appointee. It may be remarked here that a similar question as to the presidential power of appointment was sought to be raised in Re Marshalship of Alabama, 20 Fed. Rep. 379, by the motion of a claimant "to be recognized and held by the courts as now entitled to assume the duties of that office." But it is doubtful if the court or its judges can, by recognition or non-recognition of an officer, adjudicate the constitutional question involved in any objection to these appointments by the president. The case referred to by the circuit justice was a decision made by him while circuit judge. Be Farrow, 4 Woods,491; S. C. 3 Fed. Rep. 112. It might be challenged, as the opinion of Judge CADWALADER might, as not being an authoritative adjudication of the point, for I am not aware of any federal statute, such as the states sometimes have, authorizing agreed cases to be submitted to a court; but, beyond that, Chief J uatice MARSHALL held in Wallace v. Anderson, 5 Wheat. 291, that quo warranto to try the title to an office could not be maintained but at the instance of the government, and that con sent of parties will not give jurisdiction in such a case; which doc· trine was affirmed in Nebraska v. Lockwood, 3 Wall. 236. It mas be doubtful, therefore, whether the agreement of Farrow and Bigby to submit their rival claims to the court or judge was anything than an arbitration of them. This only emphasizes the difficulty pointed out by Judge CADWALADER of ever having, in the present state of our federal legislation, any direct judicial adjudication of the point. The remedy by quo warranto, or upon an information in that nat· ure, may not be available, any more than the mandamus, since the jurisdiction conferred by Rev. St. sec. 563, subsec. 14; Id. sec. 629, subsec. 14; and Id. sec. 1786,-is limited to a particular class of cases not embracing this; and since that limitation may exclude any broader jurisdiction that might be claimed under the general power of the courts to issue writs to enforce any jurisdiction granted to them, (Rev. St § 716,) if, indeed, any jurisdiction to directly try the title to federal offices by quo warranto or other like proceeding has been conferred upon any federal court,-they being destitute of all common-law jurisdiction in that regard, as every other. The question may arise some time in the way of contestation over private rights involved, and may be then authoritatively decided. The opinion of Mr. Circuit Justice WOODS in the Farrow Case gives a force of authoritative decision to the opinions of the attorneys general, which is de-
nied by Judge CADWALADER because of a tendency to thereby perpetuate an abuse of executive power; for, if the courts recognize executive decision and practice as authoritative on them in construing the constitution, they may abdicate one of their most important duties, and loosen their power to check all violations of the constitution by any department of the government, legislative, executive, or judicial. Of course, it cannot be questioned that the practice of the government in all its departments, and the opinions of eminent publicists and jurists, whether official or otherwise, and whether technically authoritative on the courts or not, are entitled to the consideration of the courts in construing the constitution; but care should be used not to go beyond the limits of their just weight in that behalf. These remarks are made to strengthen my conclusion to limit my own action, as a district judge proceeding to exercise the power conferred by Rev. St. §§ 782, 783, within the narrow bounds to which it belongs, and not to attempt to decide this grave question of constitutional construction by either qualifying, or refusing to qualify, the president's appointee. There are criminal penalties prescribed by the legislation of congress designed to protect against executive abuses of this power of appointment; and, if they be unavailable by reason of executive control over prosecutions, the ultimate remedy may be in the independence of grand juries from any such determent. The courts or judges should not undertake any duty in that direction not strictly belonging to them.
In re BAXTER and others, Bankrupts.
(Oircuit Oourt, 8. D. New York. 1886.) 1.
BANKRUPTCy-PREFERENCES-BILL OF EXCHANGE.
Where bankrupts, before insolvency or contemplation thereof, delivered their bill of exchange drawn on a certain firm, payable at a future day to certain creditors, and said creditors, after the insolvency and with knowledge that it had occurred, presented the bill to said firm. who accepted it, while ignorant of the insolvency, thereby obtaining an equitable lien fofits amount upon property. in their hands as consignees of the bankrupts, lteid, that the payment of the bill of exchange was not an illegal preference, although made after the bankruptcy was notorious. Services rendered by counsel for the benefit of particular creditors only, and not for all the creditors of a bankrupt, are not allowable against the estate of said bankrupt.
In Bankruptcy. See 25 Fed. Rep. 700. A. P. J; W. Man, for respondents, (Wtn. F. Scott, of counsel.) Abbott Bros., for appellant. WALLAOE, J. Baxter & Co., the bankrupts, before insolvency or contemplation thereof, delivered their bill of exchange drawn on J onl:lS