BANK OF THE METROl'OLtS iI. WEBER.
413
whereby defendant binds itself to render monthly reports and to pay royaltiesl-the complainant can, as before shown, obtain adequate redresS in Rsuitat law. Another covenant in the license---that whereby the' defendant :bound itself "to give, its co-operation in maintaining the barbedwire business, and the patents under which the license is granted"-is altogether too vague and indefinite to warrant any court in attem pting to specifically enforce it by judicial order or decree. The license also calls for the performance of personal duties that are continuous during the existence of the license, and it seems to be the hetter opinion that it is into enforce the specific performexpedient for courts of equity ance ofcovenants of that nature. Marble Co. v. Ripley, 10 Wall. 358; Port ClintonR. C,o.v. Cleveland, 1JtC., R .. Co., 13 Ohio St., 544. At all events, this. court does not, feel' inclined to undertake to supervise the performance of all the duties assumed by the defendant under the provisions of the license"and for the faU term of the license" without some stronger Rssu:rance than the present bill affords that the complainant will suffer irreparable injury, .ifleft to enforce its rights in a legal proceeding. And, lastly" it may be observed, as an additional reason for refusing specific performance, that the complainant has the power to revoke the license in question at any time, if the remedy at law for the enforcement of the covenants therein contained is in any respect, or for any cause. incomplete or inadequate. For the reasons givell I conclude that the bill does not state a case for equitable relief of any sort. demurrer thereto is accordingly sustained.
"
/'
,,:J3ANK OF T,HE METROPOLIS 'V.W,EBER;
Collector.
(Oircuit Oourt, S. D. New York. November 27,1889.) L B.utKBAND
S;
, ,Jt,ev. St, U, S, §34(l8, providl,ls tbatstate banks shallpllY a tax of one twenty·fourth of one per cent. per month on the average deposits of money subject to payment by check, 01' draft, or represented, by certificates of deposit or otherwise, whether payou. demand or at som,e.future day. PIl'intiff"as suchbank, received forde' P061t checks and drafts on (jther city banks, which were sen,t by it to another bank to ,be put through the clearing-house, necessitating :the keeping of a large balance in 8ucll;other. bank to meet, any 'balances that might be due from plaintiff ,to such bank on account of those clearances. 1:lela, that the check;s and drafts upon other city banks constituted a part of plaintiff'sde'posits subject to payment on check or dJ;aft,lj.ndshould be included in determining the average da.lly deposits for the purpose of taxation. ,
AND DRAJ!'TSOl!' 'CITY BANKS.
SAMIll--CliECKS AND DRAFTS OJ!' COUNTRY B A N K S . '
B,ut Where.' a po,rt,ion Of, P,''laillt,tit'S, deposits 'consisted of checks of count,ry whIch were not considered as subject to payment on check .or draft until they haa been sent to the respective.country, banks against they were drawn, and reo . turned as good; such deposits should not be included bi the average da1l1 deposits such retll,rn had been madlil. . ." .
At Law.
414
the 'Bank of:-the'Metropolissgilinst Max W6berF collector of ,intElrual,',reVenU6j, to ,recover 84,361.90, : being' the :certain revellUe' taxes assessed upon the :bank .for a tax alllouni of monthly. deposits during fuel-Smooths eilding,Nov.ember 30, .1882., :The plaintiff is a state 'bank, and the tax was :under section ,34080£ Revised Statutes, which 'provides that; sueh banks shall pay !'aftax of one orone percentum eaoh,mq;pthnpon the averageamount'bfthe deposits of money subject to, payment by check or draft; or represented by certificates of deposit or:othel',vise,whether payable on den1and or at some future day."The plaintiff claims to have been iUegallyassessed are so-muouofihe tax as,was paid on dep<5sits,ofchecks of "country banks;'1bankslocated elsewhere ·than in New York city, and so much of the ta:ta8 was paid 011 checks. and dmft/J .upon 'city banks, which, having beenreceiVied by the plaintiff,ltere- by it sent to the Union National Bank, 'to-,be put The Barik of the Metropolis wasnota,memberbf the clearin:g-house' during and it made.its,clearances of checks on other city banks; and checks on it deposited in :other city banks t through the Union Bank, which was a member of theclearing-house.lt was therefore necessary for it, to keep with the' UniGn ,Bank a large ,balance to meet any balaneeswhich might be from :dayto day due tG"the Union Bank' from the plaintiff to make its clearances. As checks, it appeared in evidence that there was an understanding between the plaintiff and its depositors that they should not draw against any country checks deposited by them until they had been sent out of town and returned as good. The other material facts appear in the opinion. "Thetestimony being closed, each side moved for the direction of a verdict. Joseph H. and 'f/I,os.,T. plaintiff. . .' Edward MttcheU t U. S. Atty., and Abram J. ROse, Asst. U. S. Atty., for defendant.
, LAco¥:B)l:,.J., (orally.) In view of the uncontradictedtestimony in this case as to the arrangement between the bank and its customers, and of the decision of Judge BROWN, cr;..s.'v. Naasau Bank,!) I see no other way than to hold thattbesecountrychecks were not deposits of money, subject to payttlent by Qbeck. or draft, until the time that they ripened by collectiOn: into something other and different from what they were When depo$lte!l. . I amsrUl unable to. reach the same conclusion as Mr.'Choate, touching the sUfficiency of the proof, but, in view oftpefact that that is something which should be on a close inspection of the figuresandproofa" aIP satisfied that the proper disposition to make Of this branch of the caSe is to directaV'erdict in favor Of the plaintiff for ctlie amount' it interest. . Thereafter, when the testimony is written out, and all the exhibits are before the court, examinationfuay 1See Dote at end of opinion.
415
mmade, upon a motion for a new trial, to see if the error which I think existS in the plaintiff's calculation!! does in fact or if I ha,ve misentirely what the testimony is upon that branch of the case. With regard, however, to the other part Qf the to-wit, the claim for on account of average,halances held by the Union Bank, I must direct a verdict for the Theseave:rage balances, as I ungerstand them, are theniselves made up from. checks ,and drafts upon city banks deposited with the plll.intitfby its customers. As to these, there was,an arrangerp,ent betweenthebllonks,by which they were sent to Bank to be 'cleated, and it 'may be that as the result of such arrangement same amount of money has paid twice as a deposit; by.Ht has so paid because it has lived as a deposit, once in each bank. It certainly was a deposit in Bank of the Metropolis while of checks deposited by its 'customers, and was retairiedby it until! the morning when it was sent down to the Union Bank.. , If, it was so treated by the Uni<:>ti Bank as to become a deposit there, that fact is immaterial. Verdict directed accordingly.
ON .MOTION FOR NEW TRIAL.
(February 5, 1890.)
·I4.00MBE, J. the views expressed, upon the trial as to the non-taxable character of country 'c1l6cks duringtransit,8ndas to the taxable character of the deposits sellt to the Union Bank for clearance, ,are unchanged. Upon the reserved point, a careful examination of the variin the case, has led to the fo1l9wing ousexbil:litll, and of the conclusions': The claim of the plaintiff that it, shou,ld have 'been requireli to return only the average net deposits, after deducting the average amount of country checks outstandingjin other words, that the ratlltnsit made should have :been similar to those it, did make ptior to ,18Sh: It.concedes, however, that at some time the country checks should pay:. ',What is to be ascertained, then,is whether the country cheeks would 'escape altogether, or to aconsiderablee±tent, ifpll1bltitrs methodbfinaking returns were adopted. To do thisl:we may first take np' the 'Inquiry independent of the circumstance that the plaintitf ibas in factpaidpind now'seeks to recover back. Assuming that for .the months in plaintiff ispreparinK its returns,is the'method it/, asks 'to adopHbftcoiTeot one?:, Inasmuch as concerns averageS; it that the amount of item for each day is the age amoUnt·. , So, tob, it may be assumed :fhatthe time required. to realiZe on,eaoh.oountry check is the average' tirneilir all, and any particular titnemay be assumed, as, for instance, 10 days. IU20,000 ofcountry ohecks,are!deposited each day, and 10 days ,are allowed for their transit, the:ilmouut ofthem outstanding each day sum not, cbmposed entirely of the sameohew for two sDccessiva'day1i. We :may, then construot the, following table:.! '.: [<, > ' '
i
,I
,B. EXdl!lANGBS. ,,' O'
c. NET DEPoeITS.
D. COUNTRY'
I' ' J:i4. [d-D) .
... .0'" A 1..' 8
, , ,8 P. M.day
(Customers' . ' (Aggregation 4heeks whioh 'of deposits come up from as found at clearing,
CnEPKS . OUTSTAND-
I
before.)
.
house.)
ING.
[A-B]
,
.(Depo·s,its to be returned . fortax, as plaintiff .claims;)
,.. 4............. 5; ······. .·.;... 8 ...··· ;.1·. ,....
,.;..
2,500,000' ,'5'00,000'. 2,006,000 · . 200,000. · Jc,SOO,Ooo 2,500;000 ';;500,000 iJ,ooo;OOO' ·i.· 2000001,800,000 2,500,000.500,000 .2;000,000 .. ,,1,800,000' 2,500,000 500,000 2,000,000 1<l00,opO ,1,800,000 ; 2,500,000 500,0002'000000 "'200;006 1,800,000 2,500,000 2,500,000 200,000 2QOIOQO 1,800;000' . 1,800,000 : 1,800,000 1,800,000 1,800,000 1,800,000 1,800,000 1,800,000 1,800,000 1,800,000 1,800,000 1,800,000 I: 1,800,000 1,800,000 1,800,000 .1,800,000 Wl;60d,ooo' i'
iL,::::t::,::::: 12......... 0 ··
.Q ····
nJ";
, . I 500,000
13 ," 14............. 15.. . .. .. ·· ···· 16... ······ ···· 17............. 18............. HI............. 20,.. .... .. .... 21......... ·· ·· 24 ;.: 25 1
2;500,000, 2,500,000 2,500,000 2,500,000 2,500,000 2,500,000 2,500.000' iI.' 2,500,000 2,500,000 2,500,000
,'.
11.000,000 ,
500,000 '1\00,000 500,000 500,000 500,000 500,000 500,000' 500,000 500;000 500,000
I'
27 ...... ; " j . ..
::;':::
2;5OP:OOO. 2,500,000 ,'. it
l:'!
n i [,
,500;OOQ 1$00,000 '500,00<l [email protected],000
ggg,ggg
2;000;000 '200,000 2,000,000 200,000 2,000,000 200,000 2,000,000 200,000 2,000,000 200,000 2,000,000 200,000 200,000 2,000,000 200,000 2,000,000 200,000 2,000,000 200,000 2:000;(/00 2,000,000 2,000,000 2,000,000
a88:ggg ,
q::;ggz
.200,000 200 000 200;000
DiVideiiy 27. $67,500,000118,500,000· $54,000,000 Average.. PlilJ,': ....
m?:.,;. ...-_.
' , n : 2,000,000
,'I
In' the .margin 8l>peal!S ,the business day of the month. . In· the first column; A, appearstbegross total of deposits for each day; which is tbeaggregation pfalldepoaitors'b1l1anoes as they stood at.3 P.M. the dayb,efore. ,.In column, B; appear This'is the of all checks drawnbydepositorsagainst their balances, presented to' the bank from the clearing-houIlEl;, as the evidence lilhows,about noon. The third column, 0, shows the net deposits for each daYl that is, the amount to which thedepositilleft over at Sp, M. day hefo1'e:are reduced by the payments of tbechecks drawn aj1;ainst them, Itnd presented through the clearing-house on tMt day. OfcoU'rse, tbecountry checks are included inhoth columns, A and 0., The next column, D, shows the total of country checks outstanding each day. It includes the $201000 just received; and the $180,000 received- on the preceding days, -and not yet returned, but does not include the $20,000, which, having finished its.l0-daytransit, is returned in cash by the country correspondent. The amount of D, plaintiff. claims, should be deducted each day from the net deposits, 0, and' thus its return for 0
BANK' OF THE METROPOLIS tI. WEBER.
417
tax should be as shown in column E. Let us see the result of such a. method of making returns, remembering that the plaintiff only contends that the country check should not pay while outstanding. It concedes that, when realized on, it becomes a true deposit, which should enter as a factor into the process by which the monthly avera.ge of taxable deposits is ascertained. The $20,000 of country checks deposited on the first day appears in columns A and C, but being included in the amount outstanding on that day, column D, and thus deducted, it doel:! not on that day get into the column E, returned for tax. The $20,000 of country checks deposited on the second day shares the same fate. It does not figure in the return for. tax on the second day, the' first day of its 10-days transit. The same, of course, is true of each separate $20,000 deposited each business day. Returning now to the first $20,000: :B'or 9 successive days after the first, it is still outstanding,-is included in column D,-and therefore does not figure in column E. the return for tax. At last, its 10-days transit being completed, this $20,000 of country checks reappears in the bank, found to be good and thus no longer a deferred deposit not to be drawn against, but a true deposit subject to draft, and a proper factor ofthe taxable average. Where does it appear in the account? It is found in column A. It was put there the eleventh day before; and, as the bank rules forbade the customer from drawing it out, it remained in that column during the transit period, and IS stiW there at 3 P. M. of the tenth day, which is the time as of which column A is made up. It is not found in column D. During each day of its 10-days transit it was there, but now, being returned, it is no longer outstanding; therefore it is not to be deducted as a country check from the deposits. If the return for tax were the difference between columns A and D, the country checks would be found among the returns of the eleventh day. But another deduction has been made. Column A (in which, as we have seen, on the eleventh day our first $20,000 of country checks still appears) is reduced by the exchanges, B. If none of those exchanges were drafts against this particular $20,000, it would still figure in column C, and therefore in column E, not having been taken. out of A, either, as an exchange or as an outstanding country check. If among those exchanges were drafts covering the whole of this $20,000, it would not appear in column E on that day, because it is taken out of A when B is deducted; nor on any prior day, because taken out of A when D is deducted. It would thus escape entirely. It would at no time enter as a factor into the calculation by which the average of monthly deposits is determined. Unless it is shown that the $20,000 does not appear in the exchanges of that morning, therefore, this method of making the return is defective and illusory. 'rhe probabilities are that the depositor has drawn promptly against his deferred deposit, and that to a considerable extent the country checks leave the deposit column, A, as exchanges (B) before they get a lodgment in it by being marked oft' from their proper column (D.) This is an uncertainty which must be cleared up before the method of making returns for which the plaintiff contends can be accepted. Of cpurse that burden rests with the party who holds the affirmative. v.41F.no.7-27
.': nll>ERAL
vol. 41;
qW1llInow .soo to what extent,if at all, the situation' is changed by \P.eJ.ll.ct tMtinthe present case the 'plaintiff has paid alIi the taxes deIIlQ.Jlded of it, and issuing torecov,er back an excess unlawfully,exacted. The pWntiff insists that from A there shall be deducted both Band D. Tbisi$ .precisely themetbod of determining the amount 'of E, already discussed. In otherwords,what the ,plaintiff asks for here is a reformationofUs original returns, and an adjustment of accounts with the govthe basis' of such reformed return. When the rebate it asksf(jrisallowed,thetax whichit:·has paid will be reduced to precisely jthe sum which would be found payable under the method of calculatioQsbownin the table 8'Wpraj and; as shown before, the'probability of the government's thus losing a tax on some considerable amount of taxable deposits is so' great as to be practically a certainty. So long, tberefutel as plaiI.ltiffdoes not by proof eliminate such probability of loBS, by: showing that the proceeds of the country checks do not get out of the oolumn of deposits in the manner suggested, it is hot entitled to l'ecov:etthe full amount asked for. ·Under the ruling already made, however, as to the Btatua of a country check.deposited with the bank to be drawn against while outstanding, the government has undoubtedly taken too muoh. It has the average of column 0, which includes all the country cheoksJotthe whole period from their deposit till they are drawn outlC 'To deptonstratethis; let us assume that the proceeds of country checks are d:rawnout 'promptly when they become available, and then what bas happened 00 tbe$20,000'deposited on first day. It did not become a tax-payiog deposit when made, but did ,on that day figure in· ,column A. Nor was itsuohWhile in transit, though it still relllainediD::that column.: It did become a tax-paying deposit on the day of its return. . If it was then drawn out, it should figure as such only for the government's method, it has so figured for 10 days. By the true method, it should enter once as an item ·of the monthly aggregate.whicbis to be divided by;27 to get the daily average for the month.· By the government'smethod"it enters into such aggregate 10 times. By the true method, it sbouldcount as $20,000. By the governmentmethod, it counteas $200,000. This is manifestly unjust. Giln it be. corrected? If so, in. what way other than that suggested by plaintiff, which, as we have open to a fatal error? The answet to this may be found: in a study of the table. If $20,000 of country checks is deposited each day, and, being suspended for 10 days, becomeS then<subject to draft, and is thereupon drawn out, the total so deposited for the llionth will be $540,000. What isoarried over from· the month beforej'snd what runs into the month after, keeps eaoh day's amount equal.:forany iCUl'tent .month. This sum, then, ($540;000,) divided 'by 27, will be the average for the month. But in the'table the average of outsta:ndingoountry checks for the month appears (column D) to be 85,400;000 divided by 27. .Why? Because each $20,000 is counted times instead of once. In the final aggregate, then, of net depositsl (Oj 854,OOOjOOO,) that aggregate ;which, when divided by 27, .1'_:.: · '. '. ·
shol.1ldgive taxable deposits; tb'ereis $5;400,000 as try cheeks, when in fact the total of checks subject to draft was only $540,000. What, then, shall be deducted from, tlie $54,OOO,OOO? The whole $5,400,OOO? No; only tM differenc!:l'J:)ef,ween $5,400,000 and$540,000, or, $5,400,000 -- $540 j OOO = $4,860,000. And $540,000 is oM-tenth of $5,400,000. All so far have been made on the supposition that it takes 10 days for the transit of a country check. Suppose, now, that it only takes 5 days. The total country checks amount, as before, to $540,000. As it takes only 5 days for transit j the balance outstanding on any single day is $20,000 X 5 = $100,000. The aggregation of these balances will be $2,700,000; each $20,000 being counted five times instead of once, as it should be. The $54.000,000 should in.that case be reduced, not by $2,700,000, but by $2,700,000 - $.540,000, which is $2,160,000. And $540,000 is one-fifth of $2,700,000. Again, suppose it takes but three days for the transit of a country check. The total deposits of such cbecks are, as before, $540,000. The balance outstanding each day, $20,000 X 3 = $60,000. The aggregate of such balances will be $60,000 X 27 = $1,620,000; each $20,000 becounted three times instead of once. The $54,000,000 of net deposits should then be reduced, not by $1,620,000, but by $1,620,000 - $540,000, which is $1,080,000. And $540,000 is one-third of $1,620,000. Of course, to turn these reductions into averages, they should be divided in each case by 27. Thus: $4,860,000 -;- 27 = $180,000 2,160,000 -;- 27.... 80,000 40,000 1,080,000 -:- 27 =
We are now prepared to-state the mIe, which is this: Ascertain the average number of days required for the transit ofcountry checks. Deduct Jrom the average amount of country checks outstanding a sum which bears the same proportion to such average amount as one day does to the average number of days of transit. The remainder will be the aver.;. age amount of country checks upon which the government has improperly levied the tax, and for 24 per cent. thereof, with interest, plaintiff is entitled to recover. The present judgment is excessive, and should be Bet aside. As there is not sufficient evidence in the case to determine the correct amount, there being no proof of the average number of days required in transit, a new trial is ordered. It is urged by the defendant that the country checks should be treated as deposits from the date of their receipt by the bank, because they were at once charged to the country correspondents to whom the bank forwarded them for collection. These country correspondents kept deposits with the plaintiff bank, subject to draft, and therefore, of course, taxable. These deposits, it is claimed, were reduced by charging against them the country checks which were sent to the correspondents. Whether these country checks were so entered on the to. counter-balance an equal amount of undisputed taxable depositS is not entirely clear upon the proof, and this point may therefore be reserved'
I'BDEBAL REPORTER,
vol. 41.
the testimony on the new trial may remove all doubt as to the facts. NOTE BY THE EDITOR. The calle of U. S. v. NaSSBll. BaJlk; referred to in opinion, was decided by Judge BROWN in the district court for tlle southern district of New York, February 16,1883, but has never been reported. The op1nion' was as follows: "BROWN, J. This action is brought under seotion 3408 of the United States Revised Statutes to recover a tax upon ·an average amount of the deposits of money subject to payment by check or draft, or represented by certificates of deposit or otherwise, whether payable on demand or. at some future day.' In order to oonstitute such a deposit,lI,lI this s.ection describes, it must be a deposit of money subject to payment by a check or draft, either immediately or at some future day. That requisition is not met untilthe bank becomes responsible at all events for the deposit. Solong as there is a contlngenoy about it,-so long as the bank has not assumed any absolute obligation to paY,-thedeposit does not this description. That makes this case turn upon the natll,re of the dealings between the depositor and the bank. Where deposits are made in a bank, and entered in the customer's deposit book, in the us:ual way that deposits of money are entered, that is prtma fame evidence of a receipt of those deposits by tlle bank as money, payable at once on draft, and therefore, prima facie, within this . section; and, if the evidence had stopped there, I should clearly have felt bound to direct a verdict for the plaintiff. But entry in the pass-book is only one circumstance in evidence, as to what the actual transaction between the parties was, and what the intention and agreement between the parties were. In the case of Ex parte Pease, 1 Rose, 232, to whioh reference is made in the opinion of Judge DANIELS, in Metropolitan Bank v. Loyd, 25Hun,101, the lord chancellor says, expressly, that the question is one to be deterjIlined from all the evideD.Qe between the parties to the transaction as to what the intention and the agreement were. The entry is one piece of evidence, but only one; and in this case we have the testimony of the cashier as to the usage and dealing and understanding between those parties. As there has been no evidence to controvert that, and as I find nothing in the different parts of this testimony inconsistent with each other, we must accept what he says; and he says, unequivocally, that the deposits of these country checks, although entered along with other deposits of cash, and in a deposit book, were not subject to draft; that customers were never allowed to draw on them till collected; that the bank ill not responsible for them, and that they are entered, along with other items, in the depositor's book, for convenience in book-keeping, and to avoid the great inconvenience 'and great additional burden if any other mode of entry were undertaken to be adopteilwith such.out of town checks. There is no evidence to contradict that· and therefore,l1pon his testimony, the case stands upon the fact that these country checks, although entered in the deposit book, are not subject to draft, and that the depositor halt" no. right to draw upon them till paid, and that if he did so the bank could refuse payment, ana' defeat any action brought to recover upon them until such country checks'were retu.rned collected. On his testimony, that is the inevitable and necesssi,legal conclusion. , "In the Case 0 The Metropolitan Bank, 25 Hun, 101, recently affirmed in the court of appeals, (00 58(}l) the facts proved were the opposite. The referee before whom that case tnedfo.und as a fact that the out-of-town check was deposited as money, and received as money by the bank. The.court of appea.ls comment upon and rely upon that1act:and in the court below, at general term. Judge DANIFJLS states expressly that tha facts found show that the transaction was' equivalent to a discount by the bank, and the 'deposit of the' proceeds to the customer's credit by the bank in his acoount.' If the '·bank discounts commercial paper, it is liable to 'pay the amount at once. The c,ourt.,of appeals refers to th,l.sobligation, and finds tliat upon the facts proved in thEfCase of The Metropolitan Bank there was an absolute obligation to pay the depositor at. oll.ce. ·While the depositor did not draw checks or'drafts against it, but the bank was largely his debtor, he still h.ad the right to do it, if he had been so disposed.' Neither the court of appeals, nor the court bEllow at general term, assumes to overrule any of the lluite numerous analogous cases that have been decided in this country and in EJ;lgland, cases in bankruptcy. The general term dees not refer to the case of Scott v. Bank, 23 N, Y.289. The head-note is- in this language: ··The property· in notes 01' bills transmitted to a banker by' his customer, to be' credited tp.e latter, vests ill the banker only when he .has become absolutely responsible for the atilount to the depositor.' The. same view was taken in the famous case of Thompson v. Giles 2 Barn. & C. 427. Although there, by usage, there was a certain limited right of depol!itor, .to. draw. upop; bills deposited·.still the bills were not, upon the facts proved, considered to be the property of the bank, the advances being simply in the nature of·a credit'uponthe securities; and the court there said it would be unreasonable to holdtb,at the bank was absQ1utely liable for bUls deposited, and that there was no such relation between the parties. There are many other cases on the subject. ..1 thlnkthe turning point in the whole eaSEl is whether the transaction in point of tli'!l:iD.g circumstances together; shows that when this deposit was mltdethll
EATON .,. CLEVELAND, ST.· L. & ·X. O. BV. 00.
421
bank was underauy obligation immediatelrto bonor drafts or cbecks drawn against it; and the evidence is that the understandmg between the customer and the bank wae that no drafts or checks could be drawn upon a deposit until collection. This evidence leaves no l1oubt·that this was the known usage and custom of the bank, and that therefore this deposit was not in fact subject to draft or payment until collection. The evidence, however, is that the amounts collected were duly entered in the returns to the United States officers as of that date of collection, and that payment of the tax was made upon all such collections. Upon that testimony, uncontroverted, it seems to me that the.bank has fulfilled ita whole duty to the governmenthand with perfect accuracy as to time. Under this evidence, the only thing on which t e government could have any claim would be upon those country checks or drafts which were never collected; and Which, ,therefore, did not get into the ultimate returns. But as to those, upon the evidence, it'seems to me perfectly plain that the bank never came under any obligation to honor a draft based upon such uncollected deposits; and such 'deposits, therefore, do not come within the scope of this statute. For these reasons I direct a verdict for the defendant. It .
EATON
v.
CLEVELAND, ST. SHROP
L. & K. SAME.
C.
Rv.
CO.
et aZ.
(Oirewt.t Oourt, E. D. Missouri, E. D. February 21, 1890.) 1. JUDGMENT-POWER TO STAY EXECUTION-FEDERAL COURTS.
The federal circuit court has power to grant a temporary stay of execution of its judgments. '
2·. SAME-RAlLROAD COMPANIES-MEClIANICS' LIENS-FORECLOSURE. , Under Rev. St. Mo. 1879, § 8215,. an execution sale under a jUdgment foreclosing a mechanics' or contractors' lien against a railroad is for the benefit of alllienholderB who have obtained judgment at the time of the sale. 8. SAME. Where judgment had been obtained by 2 lienholders, and 20 or more ft.its to force other liens against the same property were pending, but judgment had not been reached, held that, to prevent a sacrifice of the judgment debtors' interest, and to avoid the expense of, numerous sales, and complications of title resulting from same, the court would temporarily stay execution on the first judgment until other claims were reduced to judgment.
At Law. On motion to stay executions. Taylor « Polla,rd, for Eaton. Cantwell « Edwards, for Shrop. Himm J. Grover, for defendant ,Railroad. THAVER, J. In these cases motions for a temporary stay of execution on the judgments have been filed. When the motions were argued, counsel strenuously contended that the court had no power to grant a temporary stay of execution, and that it would be a clear violation of the rights of the judgment creditors to withhold execution, even for a short period. A cursory examination of that question satisfies me, howthat all courts of common law have power to temporarily stay ecutions on judgments by them rendered, whenever it is necessary to accomplish the enq,s of justice. In Sawin v. Bank, 2 R. I. 383, the court said: ,"Weare satisfied that the court has an entire control over its process, and that it is in the discretion of . the court to grant or stay the execution in eacb
