Logansport Gas Co. v. Knowles.

not be controverted; but in Christmas v. Russell, 5 Wallace, 305, it is said that "They (judgment records of sister states) are open to inquiry as to the jurisdiction of the court and notice to the defendant." In the state courts there is great confusion upon the subject. The case of Murray v. Starbuck, 5 Wend. 148, is the leading one relied upon to sustain the position taken by the defendants' counsel, and seems to have been followed very generally in the New York courts. The reasoning of Judge MARCY in this case was criticised and rejected by the late Justice MCLEAN (see Lincoln v. Tower, 2 McLean, 473), and by the supreme court of the state of Michigan (see Wilcox v. Kassick, 2 Mich. 165); but in many of the states it has been followed and approved. In order to properly understand the decision given in Murray v. Starbuck, it is necessary, in my opinion, to examine the law and practice existing at that time in the state of New York in regard to the manner of making up the judgment record; for this practice undoubtedly influenced the court in its decision. It will be found, upon examination, that, by the practice in the courts of that state, the attorney of the prevailing party prepared the judgment record out of court, after the suit had terminated; and the entries were made by him, and not by a particular officer in court. The supervision of the court over the whole course of action was not required by this practice, and the entries, therefore, in a judgment record were such as the attorney saw fit to insert, although by a fiction everything was supposed to be entered in open court. (See Graham's Practice, Burrill's Practice, title "Judgments in General," etc.) There was very good reason, therefore, for permitting a defendant in a suit upon a judgment rendered in the courts of that state to contest any jurisdictional fact, even to the extent of contradicting the statement of personal service of process, or any fact which showed jurisdiction of the perThe record in all its parts was the act of the attorney,

son.

Logansport Gas Co. v. Knowles.

and did not bear the impression of absolute verity. It is true this case (Murray v. Starbuck), goes to the full extent of deciding that, notwithstanding the record, any jurisdictional fact may be inquired into; but to my mind it is clear that Judge MARCY had in view the practice with which he was most familiar, and what he said had reference to the status of judicial records similarly situated to those of the state of New York.

The authorities compiled by Mr. Bigelow in his excellent work on "Estoppel," seem to me to justify the conclusion laid down by him, viz: "If the allegations in the record as to jurisdiction could not be disputed in the sister state, they must be conclusive throughout the Union," and "We should state the rule to be, that where the record contains an allegation of specific facts sufficient to constitute jurisdiction, parties and privies are estopped to deny the jurisdiction in a suit for the same cause of action, unless the record would be inconclusive in an action upon the judgment in the state in which it was rendered." (Bigelow on Estoppel, page 237, and preceding title, "Foreign Judgments in personam.") In Indiana, this record would be conclusive between the parties without doubt. (23 Indiana, 628; 2 Blackf. 108.) A case on all fours with the one at bar has been decided in that state, upholding the conclusiveness of the judgment of a sister state, where the record alleges personal service of summons. (Westcott v. Brown, 13 Indiana, 83, explaining Boylan v. Whitney, 3 Indiana, 140, cited by defendants' counsel; see, also, Roberts v. Caldwell, 2 Dana, 512; 3 Gilman, 197.)

The defendants, therefore, in my opinion, are not entitled to a new trial.

MOTION DENIED.

United States v. Hall.

UNITED STATES v. HALL et al., Plaintiffs in Error.

The discretion of the secretary of the treasury, under the 25th section of the internal revenue act of June 30, 1864, as to making allowances to collectors, in addition to their fixed and regular compensation, cannot be judicially revised; and the courts cannot make allowance to the collector for items and charges which the secretary has rejected.

(Before DILLON, Circuit Judge.)

Internal Revenue Collector's Compensation.-Discretion of Secretary of the Treasury as to Allowances.-Act of June 30, 1864, Section 25, Construed.

Hall was collector

WRIT of error to the district court. of internal revenue from 1862 until 1866. This is a suit upon his official bond. He claims to be allowed $5,010 for the pay of sixteen deputies and for clerk hire. Section 25 of the act of June 30, 1864 (13 Stats. at Large, 231), governs the case. The treasury department rejected the claim. It was proved that Hall had made the payments to the deputies and clerks, that they were reasonable, and that similar claims had before been allowed to him by the department in his accounts. The district court decided against the defendants, who bring a writ of error to this court.

Woolfolk & Brown, and James Gilfillan, for the plaintiffs in

error.

C. K. Davis, district attorney, for the United States.

DILLON, Circuit Judge.-The act of June 30, 1864 (sec. 25), fixes the compensation of collectors, and declares that the amount shall be "in full compensation for their services and that of their deputies,' "" * * "provided, that the secretary of the treasury shall be authorized to make such further allowances, from time to time, as may be reasonable, in cases in which, from the territorial extent of the district or from the amount of internal duties collected, or from

Payson v. Stoever.

other circumstances, it may seem just to make such allowances." It is on this proviso that the defendants rely. But I am of opinion that it invests the secretary of the treasury with authority to be exercised according to his discretion or judgment; that the law assumes that this will be justly exercised, of which the collector must take the risk, if he acts without precedent authority from that officer or the proper department; and that the judgment of the secretary of the treasury in respect to the allowances he is therein authorized to make cannot be judicially revised. There is nothing in the cases of United States v. Wilkins, 6 Wheat. 135; United States v. MacDaniel, 7 Pet. 1; United States v. Gratiot, 15 Pet. 336, upon which the defendants rely, in conflict with the above view, since this case turns solely upon the meaning of section 25 of the act of June 30, 1864. If the facts stated in this record be true, the case of the defendant presents strong grounds for relief, but this must come from the secretary of the treasury, under the act, or from Congress. The judgment below is accordingly affirmed.

AFFIRMED.

NOTE-As to compensation of public officers, see United States v. Lowe, 1 Dillon, 585.

PAYSON, Assignee, etc., v. STOever.

1. Under the bankrupt act, the right to enforce the liability of stockholders with respect to their unpaid stock passes to the assignee; and this is the case with the Republic Insurance Company under its charter, whose assignee in bankruptcy may enforce such liability so far as necessary to pay losses and all other debts provable against the

company,

Payson v. Stoever.

2. The bankruptcy court has authority to make an assessment upon the stockholders, and its action in so doing cannot be collaterally assailed in suits to enforce the collection of the assessment.

3. By the charter of the Republic Insurance Company, its capital stock was fixed at $1,000,000, with authority to increase the same to $5,000,000 at the discretion of the stockholders: Held, 1. That the charter contemplated that the increase of stock should be made by the stockholders, and that the directors had no authority under the original charter to make the increase; but it was also held, 2. That no formal vote of the stockholders to increase the stock was necessary; and, 3. That the requisite assent of the stockholders might be shown by their conduct and acquiescence, and that in this case it was thus shown by the facts stated in the opinion of the court.

4. The amended charter authorizing the directors to increase the capital stock-the stock never having been increased beyond the amount authorized in the original charter - did not have the effect to discharge a non-assenting stockholder from his liability upon his unpaid stock.

(Before DILLON and NELSON, JJ.)

Bankrupt Act.-Stockholder's Liability.—Rights and Power of Assignee.-Construction of Charter of the Republic Insurance

Company.

THIS action is brought by the plaintiff, the assignee in bankruptcy of the Republic Insurance Company of the state of Illinois, against J. C. Stoever, to enforce the collection of an assessment of sixty per centum upon the par value of ten shares of stock in said company, of which he is alleged to be the holder and owner.

The company was adjudged a bankrupt on a creditor's petition by the district court of the United States for the northern district of Illinois, November 14, 1872, and the plaintiff was duly appointed assignee in bankruptcy, and a conveyance was made December 18, 1872, to him by the register under the 14th section of the bankrupt act.

The assignee filed in the bankruptcy court a petition for assessment upon the unpaid stock of the stockholders De