Concord Casualty & Surety Co. v. United States
69 F.2d 78
2d Cir.
1934
Check Treatment

*1 we are give pause; nothing us in that appear learned ready to assume for the in it not Again, ance at once. hesitate, but unfairly, tent we to trade deliberately plagiar advantages upon a built give the make-up ized do not seem to us any standing complain borrower vested interests will be disturbed. Coneeded be a ly nothing short of abandonment Holt, hearing, Menendez v. defence at final Eisner Mendelson 179 U. Saxlehner v. No doubt less 7, 45 L. Ed. 60. injunc necessary preliminary defeat a may tion; delay enough, at least alone original Bish use was innocent. Burke v. op, considering 2). But, origin here, wrong we not think delay years of two a defence. Wes Galef, supra, son v. 286 F. 621. reversed; plaintiff The decree injunction against the use of the

take box; e., edges. the red second i. that with present trial, Por and until earlier enjoined. box will not be CO. CASUALTY &

CONCORD SURETY

UNITED STATES. Second

Circuit Court Circuit. *2 pense City (J. endeavoring bring in of New Sid- the de- York true Fred Flatow, coun- fendants the Bernstein, of before court. He it had re- said ney agents no definite proof ceived that its appellant. sel), for alleged frauds, although in involved the it Atty., of Dewey, U. Thomas E. independent investigation. made an It sus- N. Earle David Marcus and York pended agents the of all the who Brook- Attys., Bishopp, Asst. U. S. both the in ques- wrote bonds involved cases in the Y. lyn, N. agents In notices it tion. directed its MANTON, AUGUS- SWAN, and Before duce in the real defendants court for the dis- HAND, Judges. Circuit N. TUS cases, position of their co- and he swears it operated attorney’s the with United States Judge. MANTON, inquiry to the fullest extent. cause, issued order to On an show complaint or was process No bill of by an affida against appellant, supported the asking equitable filed kind. relief attorney for United States vit of an assistant hearing return day, On the was had be- appel York, the of New district the Southern single judge issuing fore the the to show why an cause was directed show lant testimony No cause. was taken. After the re prohibiting and entered should not be the hearing, received the evidence of a acting any and “in straining it from grand witness who had testified the before States District in the United all matters part which is of this record. His testi- jury, The York.” District of New for the Southern mony merely the company’s described meth- for defend that substitutes averred affidavit carrying od of on its pay- its them, fraudulently served ants, impersonating agents part premises. ments to of the sixty instances for terms in prison their short The court below was without USCA). Volstead Law violation upon enter the order. It was not a based and other appellant The equity. It was an attempt bill in to carry on appearance for their bail bonds issued had special disciplinary proceeding. prece- No another affidavit submitted In when wanted. supports dent it. If we are informed to be date, the same assistant United a later under below, the rendered the nature of attorney had been a affirms there that proceeding the is to disbar surety compa- the ar substitution practice of for defendants, ny carrying on its business as in serving their short in sentences for rested, criminal eases similar to a proceeding dis- twenty-six that in instances He states terms. cipline attorney, an ox it is in of the nature the named de appellant was o-fthe the fendants, contempt criminal proceeding, for sus- the that, imposters the one of pension granted i's punish- referred to as a Court, judge of came before a the upon appellant. Indeed, ment inflicted the he apprehension, lie asked after stated was appellee support seeks proceeding for the agent act a substitute case under rule General Rules of the Southern agent appellant, and that he York, covering District o£ Now disbarment doing pay $10 him for attorneys. By very terms, its rulo liquor the term as a law violat- after ho served applicable to members of deserving the bar appellant affidavit, officerof the in or. An proceeding discipline. The not for a crim- opposition proceeding, stated in contempt. Section title 28 inal USCA. knowledge had no or information unless the appellant could not ac- bo was perpetrated upon the court. as to frauds tively directly connected with the con- the business routine of the com He described tumacious act. arrange pany bonds, its business Nor is there inherent agents, when, its in one of the ment with rule, statute, as below. court to No it had issued a a de eases which power can be appear, implied support invoked to promptly called to dis fendant appellant organ- The particular notice thereof to de patched the laws of New ized under telephone, telegraph, and has had fendant mail, convenient, approval superintendent the state agent and that it notified its most certificate, to do business. It procuring instrumental in the insurance who had been procedure issued was followed in each bond. This thorizing issue twenty-six eases it to bonds in federal courts. referred to in the mov Its to execute bonds ing affidavits. soon as the and undertak- ings judicial proceedings imposters is derived from appeared learned that had USCA, defendants, statute. place investigation federal Section caused deposit agents copy its charter spared requires its no ex- be made showing laws of upon with States, depending and, express its assets he is satisfied liabilities, statutes. federal Klein v. with to do business Construction and S. prescribed charter as 6-7L. Ed. sections L. R. A. *3 $250,- Mansfield, capital Swan, than C. L. paid-up has of not less R. v. M. Co. 111 equivalent 379, 510, 462; is able to U. S. 4 S. 000 in cash or its and Ct. 28 L. Ed. Han contracts, grant 1051, ford keep perforin Davies, he shall v. 163 273, 157; do 41 L. Ed. authority company such to Mine Workers v. Cha (D. fin C.) 959; Thompson sections 6-13. 286 F. business-under v. Nichols (D. C.) 254 F. 973. complied requirement Appellant with this Secretary authority and received from the Hudson, said in United States v. 7 * * * Treasury specified in sec- write bonds 32, 33, Cranch. 3 L. Ed. 259: “All 0, provides that 6 tion title 6 USCA. Section by Courts general created Government or un- recognizance, stipulation, bond, “such possess jurisdiction no given what is them but * * * by dertaking approved shall be power that creates them.” * * * required judge, or officer court, The courts of the United States are all approve 9 of or the same.” Section limited in their nature and constitution, and Secretary authority upon the title 6 confers have powers not the inherent in courts exist Treasury to revoke the certificate ing by prescription the common law. un- authority he issues to do business which Myers States, v. United 272 47 S. U. 52, provides: “The said Secre- der section It 8. 21, L. 160; Cary Curtis, 71 Ed. v. 3 How. tary Treasury power, shall have the L. jurisdiction 11 Ed. 576. The duty, the author- shall be his revoke inherent, District Court is not but result any any new ity company such to transact Colgate of statute. & Co. v. Procter & Gam business under sections 6 to 13 of this Mfg. ble (D. C.) F.(2d) Co. 160. Rule judgment company whenever in surety of the District Court, approving all conducting its not solvent or is companies holding certificates of the Secre may insti- to 13. He violation of sections 6 tary of the but coincides with the solvency of inquiry any time into the tute at authority. statute of 6 USCA 6. The rule company may require that additional grant jurisdiction, cannot for a cannot rule any by any princi- security given at time abrogate or modify the law. substantive longer pal he deems such Ry. Co., Johnson v. Manhattan 289 U. S. security.” sufficient 1331; Washington- L. Ed. Dis- Southern The District Court for the Southern Nav. Co. v. Baltimore & P. S. (rule 28 of Gen- trict of New York has a rule S. Ct. July providing 1, 1031) eral Rules effective Woodbury Jergens Co., 61 F.(2d) 736 that: (C. 2). C. A. holding “All certificates power There no inherent or vested Treas- authority from the special proceeding the court to ain ury acceptable bonds sureties on federal way to revoke the of a disbar- incorporated in the and which are either duty ment. It was the of the court below proc- appointed of New York or have point raise the at the outset. hereby ap- agents for the District, ess Colgate Mfg. & Co. v. Procter & Gamble Co. they are proved to the amounts for which up (D. C.) F.(2d) 160; Cunard S. S. Co. v. Treasury De- respectively- authorized Smith, 2). sureties partment to act on one Congress placed in the administrative value, stipulations for costs under- on government, branch of the bonds and all bonds re- bail takings, power designate be filed in quired the Court. to revoke the sureties. 0 pending amount of “When the bail granted 9. has not been to the §§ corpus pro- in criminal habeas peal causes or special proceeding courts. A to disbar at- ceedings, or after indictment or information torneys is authorized because members of the Judge, criminal eases been fixed subject bar are officers of the courts to disci- Deputy Clerk or Clerk take such provided reg- the courts rules pline, ulatory when the thereon is one Surety companies thereof. derive * * * ” approved companies. aforesaid powers their charter and ad- ju govern- The District Courts are limited officers ministrative of the federal risdiction supervision, conduct, conferred the Constitution and Their ment. and re- & GELBERG. In re GORDON ad- charge of are left sponsibility officers. ministrative Appeal et al. of GORDON protection is not without The court poor moral deemed Circuit, Second Circuit. should surety company risk. unsafe confi to lose the conduct thereof, judge or a the court dence of undertaking is submitted judge to whom approval could refuse ease may direct or the The court prove it. in in such likewise or clerks the clerk *4 fcf stance, under the by rule refuse District Court 6. The compa named accept bonds giving financial risk in ny. Like well risk as undertaking guaranty, moral It is risk is involved. material as the presence responsibility personal —the requires. When a bail bond prisoner —that obliga pay his upon to is called a defendant the bail is not tion to society, for, rather society asks hut imprisonment. for presence of the defendant judicial approval of bond act of The court’s hut the mandatory under section not judicial a wise calls for the exercise statute discretion. special this for

There was

proceeding.

Order reversed.

SWAN, Judge (concurring). reversed. must he agree I plain that perfectly make it But I wish to Judges pow- full my the District written accept any bonds er to refuse to they satisfied that appellant until preclude toas be so conducted will mo- led to this repetition of the evils which injunction. the court lacks tion for ability surety’s purpose confidence defend- appearance of a bailed to secure even approval of a bond may refuse its ant, standing of the bail though financial Lee, 170 States v. beyond question. United Ohio). The statute (D. C. S. D. F. 613 prevent the my opinion, not, in USCA) does refusing corporate court a certificate of obtained which Consequent- 8 thereof. thority section was so conduct- appellant’s ly, if confidence, appears forfeit ed as to for David Haar, Judges might, the ease, pellants. it from the list exclude of rule amendment Geist, City But approved. Burnstine therein George Charney, making Netter and G. employed (George E. attempted to he cedure counsel), beyond New York the both of appealed from pellee. court’s