CLEAVER t'. TRADERS' INS.
tinue in business as a local company in the city of New York, in co-operation with the new company, why'provide in the third resolution for the organization of another local company for the same place? The.evidence clearly shows that after the reorganization of the new company, the American transacted no business. An insolvent corporation cannot thus reorganize, and hold its property against creditors. Even if this scheme was not intended to hinder or delay McVicker in the prosecution of his suit and the collection of his debt,-and I do not hold that it was,-it had that 'effect,and the law presumes that the neeessary consequences of an act are intended. On the theory that the American Company and the National Company were distinct legal entities, the latter was not ignorant of the condition of the .former. By the lease,the American Company disposed of all its property for 12 months; and, whether the $25,000 was a fair rental or not, the insolvent lessor' could not thus place its property beyond the reach of creditors. Instead of holding its assets in trust for creditors, as it should have done, it being insolvent, the American Company endeavored to place them where the creditors, for a time at least, could not so readily reach them. The first appears to have been levied before th 13 sale was consummated under the optionalagreementj but, however that may be, the property was properly seiZed under both writs. Findings have already been announced of the amount due McVicker for breach of the two con-
L CoSTs-IN' F1roEBAL
CoURTS--CoSTS BEFORB RB1(OVAL.
J;lllon .final judgment here.
, The docket fee of $20, taxableul'0D a trial or final hearing, is taxable bJ;lt once, and t4en only uPQ/1 that examinatIOn of the law or facta which resulta in the flnal disposition of the eMe. It ill not taxa.ble where the jury has diBa.greecb
On· Appeal from Clerk's Taxation of Costs. O. P. Bkr,clc, for plaintiff. · L. D. Noms; for· defendant.
BROWN,J. Defenda.nt appeals from the following items of costs taxed against it by,the clerk: ·1. Costs accrued in the state court prior to the removal of the case here.· The action waa :originally begun, in the circuit court for Tuscola county, was tried there twice,was twice carried to the supreme court,' (32 N.iW.:Rep. 660, 39N.W.Rep.. 571,) and reversed, and was then removed· to: this court upon the the defendant, where it was
DDERAL REPORTER, vol. 40.
(ante, 711) before a verdict was reached. It has always also tried been customary in the two districts of this state to allow the prevailing party his costs in the state court IIp to the time of removal. This point was expressly passed upon by my predecessor, Judge LONGYEAR, in Wolf y. In8urance 00., 1 Flip. 377; and it appears from his opinion that Judge WITHEY had made a similar decision in the western district. It is true a different rule seems to obtain in the second circuit, (Clare v. Bank, 14 Blatchf. 445; Ohadbotf,rne v. Instf,rance Co., 31 Fed. Rep. 625,) but the propriety of such allQwance in this district is too firmly established to be now disturbed. It is true these costs are not contemplated by sections 823 and 824, but, in our opinion, these sections were intended to apply only to cases originally commenced here. There is no doubt that cases removed from the state court are taken by this court in. the· precise condition in which they leave the state court, and that all orders made and rights accrued will be respected here. William8 v. Conger, 125 U. S. 397, 8 Sup. Ct. Rep. 933j Loomi8 v. Carrington, 18 Fed. Rep. 97; Davis v. Railroad Co., 25 Fed. Rep .. 786; Bryant v. Thomp8O'n, 27 Fed. Rep. 881. We see no reason why an inchoate right to costswhicb nlUst ultimately become perfected by the entry of a judgment should not fall within this category., Ai; the plaintiff originally began his action in the state court, and was forced into this forum against his will. it is manifllst injustice that he should be put to any pecuniary loss by sucb action, and w.e should not so construe this statute unless its language inexorably manded it. This exception is overruled. 2. The taxation of a double docket fee of $20. The case was tried in May last, and the jury disagreed. The question is whether the plaintiff is entitled to an attorney's fee of $20 u,pon this trial, as well as upon the second trial, which resulted in a verdict. In the case of Stove-Work8 v. Perry, (unreported,) decided in 1879, which the yerdiet on the first trial was set aside, it was held that the docket fee was taxable but once, and we see no reason to change OU1' opinion. We decided this <lase upon the authbrity of Dedekam v. Vose,3 Blatchf. 77, 153, in which it was held that the docket fee of $20 was taxable but once. This ruling was repeated by Mr. Justiee N$ON in Factory v. Oorning,7 Blatchf. 16, though the facts from the report upon whichihedisallowance was made do not. of the case. In Strafer v. Oarr, 6 Fed. Rep. 466, an attempt was made to tax a docket fee upon a trial wherein the jury disagreed, and it was held by Judge SWING that the docket fee applied only to trials which resulted in a verdict and judgment. This case is precisely in point. There is no conflict between it and The Bay Oity, 3 Fed. Rep. 47, wherein I held that the right to the docket fee attached as soon as the trial was begun, although the case was discontinued before it was concluded. It is merely necessary that the language of Judge SWING 'be read in connection with the facts of the case, to see that there is no want of harmony in the two adjudications. In Ckiy v.Perkins, 13 Fed. Rep. 111, it was said by Mr, Justice GRAY, Judge LOWELL concurring: "We are of opinion that, upon the face of the statute, the intention of the legislature is manifest that it is only where some question of law or fact
involved in or leading to the final disposition actually made of the case has been s,ubm.itted, or, at least, presented, to the consideration of the court, that there can be said to have been a final hearing which warrants the taxationol ' the llolicitor's or proctor's fee of $20." In this case it was held that where an order was obtained dismissing a bill with costs, without notice to the defendant or consideration of the case by the court, the docket fee of $20 should not be allowed. in Huntress v. Town of Ep8om, 15 Fed. Rep. 732, it was held by Judge CLARK that, where there had been two trials of a case, the first of which resulted in a disagreement of the jury, and the second in a verdict, but one docket fee of $20 would be allowed. This case is also directly in point. I am aware that some recent cases in New York announce a different rule. Schmieder v. Barney, 19 Blatchf. 143, 7 Fed. Rep. 451; W008ter v. Handy, 23 Fed. Rep. 49. But we do not find this construction of the statute to have been adopted in other districts. The Michigan authorities are no guide to us in this connection, since by the express language of the statute an attorney's fee is allowed for "every trial" of issues of fact; How. St. § 9004. The language of the New York Code is the same, and for that reason the cases cited in Schmieder v. Barrie!} are inapplicable. By section 824, the docket fee is allowable "on a trial-before a jury," "or on a final hearing in equity or admiralty." It has always seemed to us that the words "trial" and "final hearing" contemplated in each case that examination of the law or facts which resulted in the final dispositIon 'of the case. We have always understood the law to be as stated by Judge DUDY in Jilisk v. Henarie, 32 Fed. Rep. 427, that, "where a jury is discharged without a verdict, the proceeding is properly known as' a mistrial; and, where a verdict is set aside because it ought not to stand, the result is tile sanie. The proceeding has miscarried, nnd the consequence is not a trial, bitt a mistrial." Upon the whole, while the question is not free from doubt, we prefer to adhere to the opinion originally expressed by us. This exception is therefore sustained. vAUF.no.15-55
(Oircuit Oourt,]C. V.Michigan. December
1" IxSURANOE-C)ON'rRACT TO INSURB., ,, , , , A promise to insure, made by one whose business is to Insure; is performed by issuing a policy., A like promiSe, make 'by one whose business is no" "0 insure, is performed by "he promisor procuring a polioy in some responsible oompany to "he full insurable value of the property. ,,' , S. BhiB-AGREEMENT' BY CURlEtt, 'l'O IxstmB. , ,HElUC8, where coll1PAllY oarrya cert\lol.noargo' and to in, su,re "he same, 110 was heZd 00 have, subs"antially satisfied its obligation by causing the oargotO'be insured ..o the full amount of the loss & 'BllIE-EsToPPEL. " , , '. certain pf raJis to the Erie Railroad, to carry to Buffalo and forward thence to DuluthJjy water; ,Defendant contracted with the agen" of "he road'at' New York 100 carrY'theJl:l from Buffalo to Duluth, and to insure "hem. :I"procurell certifioates torbe .isBlled, and deposit;;d them with the agent ""of the road a", ButfalOl,ofwhom it received ..lie cargo, but had no d.irecUealingwith tbe plaintiff. Held. tna..'..hereQeiptahd retention of these oertiftcate8by'the agent of "he road, wi"hout obj8QtiOn, from obj8QtiUi to "he form of " . the policies or the amoun" of theinsurance. (SvUab'U8 by tM Oowrt.) " ' "
This was . tQ daIllages for the a r.argo of steel rllils, wbil}h the defendant to carry from Buffalotq"Spperior Cjty,Wis., andJo insure the perils of tp.e,sea. The first, count of the declaration averred that the defendant pr9misedllonq with the pla,iIlt,Uf to carry said rp.ils :stiffalo to Superior. City, .and al.so· tq the safe ofthe rlJ-ils. as aforesaid against all o(the seai 'agreement, on qr a:bout:Novempf:lr the Buffalo '\'riththe said cargo of steel rails;. and before Superior City was. . bwnt and sunk, and her said thereby, washst, or damaged; whereby defendant became mdebted and liable 1;0 pay the plaintiff the amount of such loss. The second averred a parol pronlise with the plaintiff to carry the rails and also to procure insurance for the safe carriage of the rails, to their full value, against perils of the sea. Breach, that the Northerner was burnt and sunk, whereby her cargo was lost and destroyed i that the defendant failed to procure insurance to the full value of said steel rails, according to its said agreement; whereby defendant became indebted to the plaintiffin the sum of $5,000. At the request of the parties the court found the following facts: (1) Plaintiff is a manufacturer of steell'ails, doing business at Scranton, in the state of Pennsylvania. (2) Defendant is a common carrier of merchandise between ports upon the Great Lakes, and is the owner and proprietor of the steamer Northerner. (3) Early in September, 1886, plaintiff, which had sold a large amount of rails to the Northern Pacific Railroad Company, deliverable at Duluth, Minn.· and Superior City, Wis., made application to John S.· Hammond, general freight agent of the New York, Lake Erie &:; Western Railroad, at New York. for a rate on 2,500 tons of steel rails to be shipped from Scranton to Superior City. He named a rate from Scranton to Buffalo, delivered on the docks of