IU.IN t1. PETERS.
1875, "that he haa reasoh to.beHeve and does believe," etc; The present act says: "When it shall be made to appear to said circuit court," etc., and the change of phraseology seems to me to require the interpre:tation which Justice HARLAN has kdopted. In Rike v. Floyd, 42 Fed. Rep. 247, an affidavit was held insufficient on grounds quite applicable here. See, also,. recent decision of the supreme court in Ex parte PfI!1,rI.sylvania OJ., 11 Sup. Ct. Rep. 141, (decided December 22, 1890.) Whether Or not, if tht:l showing of prejudice were prima facie good, the. court ought to consider the counter-affidavits, which have been filed, or should sustain the_ motion made to reject them, need not be considered. There is another and more conclusive reason why the court cannot take of this cause. There is in it no "controversy between a citizen of the state in which the suit is brought and a citizen of another state." It is perhaps not material that the defendant who sought a removal was joined as with a citizen of the state where the suit was brought, but it is fatal to the right of removal that one of the plaintiffs was a citizen of another state. It was so decided, after car&ful consi(jeration, ill the case of Thouron v. Bailwa1j 00., 38 Ifw. Rep. 673. Motion to remand sustained.
(OIreuU Court, E. D. Virginia. December 10, 1890.)
K"'ft01UJ. Bl1Ol-IN'soLVENcT-PuMBNT 011' PRB1'BRRBD DBJI'II-INTBRBS'I'.
In80lvent debtors of an insolvent national bank assign, glviugpreferenceslD faTor of the bank. Qurere whether the debt preferred shall carry interest. BeLd that, where there is nothing in the language 01 the assignment, or in the circumItaDceS un(1er which the debt was created, to negative the presumption that the debt should bear interest. and nothing in the conduct of the receiver of tbe nationalbank to estop him from claiming interest, in such a case interest muat be paid. (S1/UabUB btl the Court.)
In Equity. On petition of receiver to be allowed interest upon &.PJ:'&Cerred debt, the principal of which has been paid. T. S. Garnett and W.J. Robertson, for receiver. Old, James Alfred Jrmea, and Legh R. Page, for trustees.
HUGHES, J. There are cases in which sums of money made payable by instruments defining them do carry interest after the date when they become payable, if payment is deferred. They are cases in which· the circumstances and language under and by which the sums are made payable forbid the hnplication that interest is to accrue. A of this c1l155 was that ofJfurphy's Appe,al,6 Watts & S, 22-3, cited at bar. in . which there was an aSsignment in -trust, which provided, among other things, that the .trustee should "pay and satisfy in full the.sulli of 85,178.32 to Placette Caze, a winor,to be paid to her, or
may be legally entitled to receive it for her." The court refused to al· low' 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 booame 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 judgmel'lt and costa,leaving out interest. Numerous other cases 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 trustee!} under deeds of assignment have been required to pay interest on preferred debts, and to this rule depositors in nfl.tional banks are not exceptions. In National Bank v. Mechanica' 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 hill 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 fer 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 d.ecisions of the supreme court of the , United States; and the 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, by any act
BAIN V. PETERS.
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 fllw 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; a.nd therefore we have only to inquire whether the receiver has done anything to estophim from claiming interest upon it. It appears from the affida',rit of Mr. Old, one of trustees in the Bltins deed; that !,lffiaot, 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, ll;nd would be ready to pay the other of said notes when due." Afmuit 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. The recei"er, 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; bilt the receiver says that he did then refuse to recognize the said Old.and hisoo-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 ti!lle to time until July, 1890. The funds have been held under the direction of theCQurt
ingfhiswhole period. Fora:bout 13 months oHbis thnethey were on ooposit, in It national depository, not bearing interest. For the rest of the tinie 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 'Iuestion is whether the preferred debt held agait'lst those trust funds by the receiver shall be decreed tt:> have borne interest from the date at which the component partaof it severally became payable, to the date of thepRyment 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 to divest it of the incident of interest which attaches presumpto 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 prop,erty conveyed by theitrust-deed which he was about to assail could estop hini. I think the.receiver is entitled to> interest at 6 per cent. on the preferred debt which he held, and will so decree.
ExP.. eo. 11; SErnERT, State Auditor, .c .al.
(cCrCuu Court, W. D. M!88ourt,W. D. Octobe,r 29, 1890.)
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, eq· lJity lI.allju;rijQ.iction to the legality of the tax, and eujoln ita COllection if illegal.
SA.lIIE-,-MUVrlPLlOJTY OF ACTIONS.
The fact tuat n penalty is imposed tor each day's delay in the payment ot a tax, and that the state might bring a separate actiQn for each day's penalty, is no ground tor tbe interference of a cburt of equity in cirder to prevent a multiplicity of actions, since it will not be presumed that the. state would institute vexa,tious litigation. Act Mo. May 16, 1889, whloh imposes on companies l'arrying goods "by express, on contract ,witb any railroad or steam-boat company." a tax on their "receipts for don,e within this state, " is not an interference witll interstate commerce.
COMMEROE. : ' ,
Saidact'do6s ,not deprive the express companies of the equal protection of the laws,; or .CQnstitute lI\equality of taxation, sin ce the, state has a right· to tax differ. ent kinds ot.property in different ways. AneJGpreB$ company is a common carrierwbich, a. regUlar periods, over fixed routes.ca,rril!S :aud articles o! value .in cqarge of its own ;DIessenger, on passenger stefl,mers and railway trams which It does not own, but Wlth the owners of which it contraotsfor tqe. carriage of its messengers andfreighta.
lS.ExPR,ESS CQMPANI'IlS-COMMON CARRIERS. '
In Equity.' Bill for injunction. under the following act ,of the' legislature of the state ofMis&btu1:·, " . .