13 Cal. 242 | Cal. | 1859
Field, J. concurring.
Suit brought to recover damages of defendant for taking certain teas. The case is one of more than usual interest and importance. It involves principles novel in their application in this State, and it has been ably and fully argued at the bar and upon briefs. The general nature of the suit may .be thus stated: Eye
“Be it known, that on the eleventh day of March, a. d. eighteen hundred and fifty-six, before me, Oliver H. Perry, Consul of the United States of America, at Canton, China, personally came and appeared Gideon Bye, Jr. a citizen of the United States of America, and at present a resident of the city of Canton, China, and a partner in the commercial house of Messrs. Bye Brothers & Company, residing, transacting, and doing business in the city of Canton, China, and being the only partner in said commercial house of Bye Brothers & Company here present, and requested me to note, that he desires to assign, and does assign, all and singular the real and personal property belonging and appertaining .unto the said commercial house of Bye Brothers & Company, whether situate in China or elsewhere, jointly unto Messrs. Russell & Company, a commercial house residing and doing business in Canton, China, and unto James Purdon & Company, also a commercial house, residing and doing business in the said city of Canton, China, in trust and for the benefit of each and all the creditors of the said Gideon Bye, Jr. and the said commercial house of Bye Brothers & Company, and the said appearer declared that he reserves to himself sufficient time to record in this Consulate a full and complete schedule of all the assets and liabilities, whether appertaining and belonging to him personally, or appertaining and belonging to the said commercial house of Gideon Bye, Brothers & Company, of which he is a partner, as aforesaid.
Gideon Bye, Jr. for self and
Bye Brothers & Co.
Boted before me on the eleventh day of March, a. d. eighteen hundred and fifty-six, at the hour of two, p. m. this day, in faith whereof I hereunto sign my name and fix my seal of office.
Oliver H. Perry, U. S. Consul, [l. s.] ”
Some other facts appear in the record. These relate mainly to the question of fraud in fact, in the assignment, and will be noticed when we come to consider that subject. The case was tried by the Judge below, who made a finding of facts and legal conclusions, and gave judgment for plaintiff for the amount claimed. The defendant appeals from the judgment.
If this property had been sold by these assignees in China to third persons, it is not a question that the title would be upheld here if the property vested abroad and had been brought here by the purchaser. Why ? Because the attributes of property ■—a thing acquired by a legal mode of acquisition—had been impressed on it—where, is wholly immaterial, or, probably, by what law, unless, indeed, the Courts had to give effect to some worse principle than a rule of the common law of England, or violate some better declared public policy than a section of the statute regulating modes of assignment of property here. The authorities cited have no application to the facts here. The early cases in Massachusetts maintain only the doctrine that where the property is within the State, the Courts will not allow a contract operating on it to be made in another State, the effect of which is to dispose of the property differently from the mode provided in Massachusetts. In other words, Massachusetts will not suffer her own resident creditors to be prejudiced in favor of foreign creditors, by giving the debtor the right to assign the property in the State contrary to the mode she has prescribed for assignments. But Massachusetts has never held that when the property is in Mew York, and there assigned, and the assignee legally vested with the title, she will not recognize the title when the property is brought within her jurisdiction.
It is hard to see by what rule.of justice or of policy, Huth, a
The Appellants contend that, in the absence of any proof of the law of the place of contract, our own law must be presumed to prevail, and they cite several authorities which seem to maintain this doctrine. This presumption, if it be one, would present a curious illustration of a fact presumed to exist, when in every single instance, probably, in which the application is made of the presumption, i.t would falsely represent the real fact. That China had ever passed or given effect to the 39th Section of our insolvent law is rather a violent intendment, but possibly the principle invoked was necessary, as some rule must be had for the determination of matters of litigation, and the convenience or necessity of the case constrains the adoption of the one nearest at hand when the foreign rule is unknown. (See 2 Hill, 202; 12 La. 465 ; 13 Mass. 147.) Having shown possession and control of this property in China, or on the seas, and the property having been brought into this State by the plaintiffs, by a law of universal application a title prima facie good is shown by the plaintiffs. Upon that title so proved, without showing anything more than this possession, the plaintiff would be entitled to recover for a seizure of it in this State, unless the defendant showed a better title in himself or in some person whose right he legally represented. To prove this title ho is forced to assail the validity of this assignment. The burden of proof is on him to show the invalidity,of it, and, as the invalidity rests upon its illegality, and this depends upon the proper construction of the law of the place of contract, he assumes the responsibility of showing what that law is and how this transaction opposes it. But the Appellant answers this position by the not'«very satisfactory appeal to the principle of presumption already adverted to, to wit: That the law of the forum is to be taken to be the law of the place of contract, and calls upon the Respondent to show that it is different. We are not satisfied that the rule invoked is properly applicable to such a state of facts as this; that to rebut an inference of title from possession acquired in a foreign country, a party can refer to a local statute of the forum, and demand, as a presumption of law, that the contract under
* * * In China I found that Great Britain had stipulated for the absolute exemption of her subjects from the jurisdiction of the Empire, while the Portuguese attained the same object through their own local jurisdiction at Macao. I deemed it, therefore, my duty, for all the reasons assigned, to assert a similar exemption on behalf of the citizens of the United States.
* * * In extending this principle to our intercourse with China, seeing that I, have obtained the concession of absolute and unqualified exterritoriality, I considered it well to use in the treaty laws of such generality in describing the substitute jurisdiction, as while they held unimpaired the customary, or law of nations, jurisdiction, do also leave to Congress the full and compíete right to define, if it please to do so, what offices, with what and in what fcjjrm of law, shall be the instruments for the protection and regulation of the citizens of the United States.”
Mr. Cushing, (Opinion of Attorney-General, Vol. 7, 501,) shows that the treaty, besides conferring on American citizens in China exterritoriality in commercial matters, provides, in respect to civil matters : 1. That questions arising between citizens of the United States, in China, shall be subject to the jurisdiction and regulated by the authorities of their own government. 2. That in controversies between a citizen of the United States and China, the authorities of the two governments are to have concerted action. 3. That in controversies between the United States citizen and other persons, not Chinese, the adjustment is to be regulated by the international relations of the United States and the Government, or State of that other person.
To give effect to this treaty, the Act of August 11, 1848, was passed by Congress. The “ authorities ” of the United States, were by this Act directed in respect to their duties and the manner of performance, and the new jurisdiction regulated and defined. The system of administration was constituted by: 1. The ■ laws of the United States, so far as suitable to carry the treaty into effect. 2. The common law, in all cases where the laws of the United States are hot adapted to the subject, or are deficient in the provisions necessary to furnish suitable remedies. 3. Decrees and regulations, by the Commissioner, which shall have the force of law, and supply such defects and deficiencies as still
It is suggested, though no great stress seems to be laid upon the objection, that Congress had no constitutional power to provide a system so organized and for such objects. But wo are not disposed so to hold. It would require an extremely clear case of repugnancy to the Constitution of the United States to
The general authority given to Congress to regulate commerce -with foreign nations could, probably, find no more useful or appropriate means of exercise than in treaties and laws withdrawing our citizens domiciled in unchristian nations from tho jurisdiction of such governments, and confiding their rights of property and person to judicial officers of their own country, administering, under responsibilities to a common government, laws, with the general spirit and principles of which those citizens are familiar. That government would be weak, indeed, which could not, in this peaceful and unobjectionable mode, with the assent of the foreign power, exercise this wholesome protection and restraint over its own citizens abroad. The case of Dred Scott, (19 How. 449,) maintains no such doctrine as that it is cited to sustain; but the general principles there declared seem carefully to exclude the construction given, and to limit their operation to the territories “ within the dominion of the United States.” In The People v. Gerke, (5 Cal. 381,) this Court, in giving effect to the treaty with the kingdom of Prussia, which had direct effect on property in this State in opposition to its laws of descent, went further than it is necessary to go to uphold the treaty and laws in question. Mr. Justice Bryan said in this case: “ So far as the authority of the Federal Courts is concerned, they appear to have uniformly administered the law upon the meaning given by construction to the language of the treaty, seeming never to have, in any respect, doubted the power of the General Government 'to provide by treaty with a foreign power for the mutual protection of the property belonging to the citizens or subjects of each in the territory of the other. The treaty-making power of the Federal Government must, from necessity, be sufficiently ample so as to cover all of the usual subjects of treaties between different powers. If we were to deny to the treaty-making power of our government the exercise of jurisdiction over the property of deceased aliens, upon
If the treaty-making power which resides in the Federal Government is not sufficient to permit it to arrange with a foreign nation the distribution of an alien’s property, then that power resides nowhere, since it is denied to the States, and we must confess our system of government so weak and faulty as to be incapable of extending to its citizens in foreign lands that protection which is most common among a majority of modern civilized nations.”
In Siemssen v. Bofer, (6 Cal. 250,) the doctrine of People v. Gerke was doubted by the late Chief Justice; but the decision has not been expressly overruled. ¡Numerous cases sustain the general principle and reasoning upon which Gcrke’s case rests. (See 4 Wheaton, 453, and the other cases cited in Respondent’s brief.)
In the second place, it is urged with much earnestness that this assignment is void, because no means of enforcing the trusts against the assignees exist in the local jurisdiction. It is said that the only ground upon which assignments for the benefit of creditors are supported is, that Courts of Equity can compel the fair and faithful execution of the trusts they create. But as Huth & Co. English creditors, could not go before the American authorities, they would be without any relief. As this is a matter of local law, pertaining to the lex loci contractus, the Appellant should show, as against an assignment seemingly otherwise authorized, the existence of this cause assigned for its invalidity. It is not to be presumed a priori, that any system of jurisprudence could be so defective as to withhold some remedy for so flagrant a breach of duty, as the refusal to comply with the obligations of such a trust. We think the point is not sustained. So far as these Consular Courts exist at all, as such they are Courts of the United States, into which, by the general law, an alien friend may enter for redress against a citizen of the country of which the Court is an appendage. Mr. Cushing
As to the other cases, that of controversies occurring in China, between citizens of the United States, and subjects of any other (Christian) government, the treaty provides that the same ‘ shall be regulated by the treaties existing between the United States and such governments, respectively, without interference on the part of China.’ (Art. 25.)
How, we have no special treaty with any of these governments on this point, nor is any needed, or necessarily required, or intended by stipulation under consideration. With all wo have treaties of amity, or of ordinary commercial and social intercourse, and that suffices to meet the exigency.
By the tenor of those treaties, as they are construed by the law and usage of nations, an Englishman has the right to sue a resident of America, or an American a resident Englishman, as alien friend, in all places wherever, respectively, the jurisdiction of the other country exists locally, and is comjdete as to subject matter, persons, and remedial forms. (Fœlix, Dr. Intern, Prive. Tit. 11, Ch. 2.)
The jurisdiction of the United'States is complete, as to their citizens in China, and the jurisdiction of Great Britain is complete as to her subjects in China. That the jurisdiction in each case is exterritorial—that in China it is excepted from the local territoriality, and that it is outside of the territoriality of either Great Britain or the United States—is a fact wholly immaterial to the question. It is a question free of all doubt on principles of international right, and subject only to the single inquiry whether the given country, each proceeding in established legal forms, by whatsoever authority such forms be established, has conferred on its Courts of justice in China jurisdiction ad hoc, or whether that remains to be done.
Here, again, the statute is explicit and ample. It confers on
Therefore a suit may ho brought by the Englishman against the American in the Consular Court of the United States, as, undoubtedly, in the Consular Court of Great Britain, it may, consistently with public law, be brought by an American against an Englishman.
If the Englishman were within the territorial jurisdiction of the United States, he might sue, but would also be subject to suit, in the local Courts, as the American might and would be in England. (Fœlix, Ubi Supra.) Bay, a suit would lie in the Courts of Great Britain or the United States, between residents, both being aliens in the country. (Fœlix, Ubi Supra.)”
The regulations adopted by the Consular Courts of the United States are made part of the case. The second rule provides that “ when a citizen of the United States, who is a resident in China, or any subject of the Emperor of China, or the citizen or subject of any other State or nation, may have a right to bring suit against a citizen of the United States, in the United States Consular Court in China,” etc. etc. If Hnth & Co. being Englishmen by residence, wished to sue such of these assignees as were Englishmen, residing in China, in respect to this assignment, we presume there would be no doubt that the local jurisdiction of Great Britain in China, which seems to be similar to ours, would be competent to afford adequate relief.
Having reached the conclusion that the law governing this assignment, and determining its validity, is the common law, it remains to consider the objections urged against it in connection with that system. We understand by the “common law,” as used in the Act of Congress, and applied to the arbitrament of controversies between citizens of the United States, that general body of law, which, as Judge Marshall expresses it, is constituted “ by those general principles and those general usages which are to be found, not in the legislative Acts of any particular State, but that generally recognized and long established law which forms the substratum of the laws of every State,” i. e. every State carved out of the British Colonies. We may look to American as well as English books, and to American as well
The Appellants claim that the assignment by this common law is void upon its face, for several causes which will be examined hereafter. But the Eespondents say, by way of answer in limine, that this matter is foreclosed, because the Consular Courts at Canton passed upon this question in a controversy there pending, in which case the Consul, Mr. O. II. Perry, held that the assignment was valid. It is urged that the decision of this Court is as conclusive of the questions of local law decided as would be that of any other Court as to the law of its jurisdiction. There would be more force in this argument if the Consular Court were the highest judicial Court of the jurisdiction, but it seems that an appeal lies from the Consul to the United States Commissioner. And we are not aware that the rule which accords the force of definitive exposition of the local law to the decision and judgment of the Courts of the local jurisdiction has ever extended so far as to give that sanction to the judgment of a subordinate tribunal of the municipality or territory. The decision of the Consul is, doubtless, entitled to some weight, but we are not prepared to hold it as conclusive of the general question adjudicated by him. We proceed to consider the objections to this instrument:
1. That it is not the deed of Nye, or Nye Brothers & Go. but it is the paper of the Consul, Eye merely signing his name in attestation of the act of the Consul.
We think there is no weight in this objection. In order to make a trust it is enough that the trust be declared by the jjarty to be charged and signed by him—this seems to havg been done.
2. “ That it is the act of G. Eye, Jr. alone.” But it purports*287 to be the act of the firm, and is signed in the firm name. It is urged that there was no delivery shown. But this may be inferred from the acts done and the nature of the transaction, the claim made under the trust, the possession of the paper and of the property. This is not a deed; it is a mere parol assignment and trust. We are not aware of any rule requiring a delivery, as in formal deeds, as necessary in such cases. The making of the trust and its acceptance are sufficient, especially if accompanied or followed by the possession of the property. As no conditions are imposed on the creditors, an acceptance by them is presumed upon the general principle that a party is presumed to assent to acts done for his benefit. (Nicholl v. Mumford, 4 John. Ch. 522 ; Burr, on As. 308.)
3. It places the individual creditors of Eye on a par with the firm creditors in the distribution of the firm assets.”
We do not so construe the paper. It is true the assignment is of the property of G. Eye, and of the firm, for the payment of his individual debts and the debts of the firm. But the assignment must be taken and the property administered in reference and according to the rules of law prevailing in the place of contract, and one of the rules of equity jurisprudence is, that the individual property must go to the individual creditors in priority to the firm creditors, and firm assets must go to the firm creditors in priority to the individual creditors of a partner; and there is nothing in the language of this deed which, when taken in connection with the principle, indicates or would give effect to a contrary construction. Eor do we concede that the misdirection of the property, which might be corrected in equity, would ipso facto vacate the deed, though it is not necessary, nor do we decide the point.
4. Eor is the trust void, as alleged, because it is not more fully or particularly declared. A trust of assets or property for creditors of itself suggests specific and well defined duties, and imposes specific and well defined obligations upon the Trustees. They are to hold and take care of, sell, and dispose of the property, so as to convert it, with convenient speed, into money, and distribute and pay the proceeds over to those entitled. This duty and this responsibility would not have been more plainly enjoined or created by express language, giving in detail, the*288 course of management and direction of the subject of the trust. What is vague in the contract is made certain by the law, and both are to be taken together.
5. We think the objection that the assignment was revocable is not well taken. After the assignees had taken possession of the property, the title and trust became fixed and executed, and it was not in the power of the assignors to defeat or affect it.
6. The objection to the style of designating the Trustees is not well founded. The Trustees must be designated, but whether by a firm name, or the individual name is not material, if the language used be such, as with certainty, to indicate the persons who are nominated as Trustees. It is not necessary that all the Trustees should assent to act as such. The presumption is of assent, and the assent of one is enough to give effect to the trust, though the rest expressly repudiate. (2 Kent’s Com. 533, Notes and Cases there cited.)
7. The want of a schedule of the property is sometimes regarded as a circumstance of fraud, but the absence of a schedule has never, we believe, been held sufficient of itself to avoid a conveyance of this sort;
8. The next ¡proposition is, that the deed is inoperative because one partner has no power to make an assignment of the firm property without the assent of the other partners.
It seems that G. Mye, Jr. was the only resident partner at Canton, and on the eve of some protested bills returning from London, made this assignment without consulting his associates. It is not easy to reconcile all the authorities upon this subject, and able jurists seem divided in opinion in regard to it. Wo think the weight of authority is in favor of the power. The case of Harrison v. Sterry, (5 Cranch,) expressly affirms it, and the facts of that case are very analogous to this. In Anderson v. Tompkins, (1 Brock. 458,) Ch. J. Marshall reaffirms the doctrine, Deckard v. Case, (5 Watts, 23,) is the same way. The reasoning of Mr. Justice Rogers "states with great clearness the principle on which the doctrine rests. He says : “ It is a general principle of the law of partnership that the partners are bound by what is done by each other in the course of the partnership.business. They are considered as virtually present at and sanctioning the contracts they singly enter into in the course of trade,
Among the powers most ordinarily exercised' by partners is the jus disponendi, or the power which each partner has individually of disposing of the joint stock or merchandise. When the assignment is Iona fide, I cannot doubt the power of one partner to transfer the whole as well as apart of the partnership effects.” This doctrine was reaffirmed by the same Court in Hennessy v. State Bank, (6 Watts & Serg. 310.) The able and learned author on Contracts and on Mercantile Law and Partnership, after collecting all the American cases on this question, concludes : “ If necessary for the protection of creditors, an assignment of all the pei’sonal property to a Trustee for their benefit by one partner, if his copartner is absent and cannot be consulted in season, and has, either expressly or by implication, left to him the sole management of the business, is valid.” (Parson’s on Mer. Law, 175, Note 1.)
It seems to us that the proof tends in this case to establish this precise state of things. Situated in a foreign country, at a great distance from the other partner residing there, we can scarcely conceive a condition in which the implication of the largest discretion ever confided to a partner would more properly result. The other partners do not seem to complain. Indeed, there is some evidence of their subsequent express assent, and the particular exigency existing appears to.be sufficient to have authorized the action of the acting partner.
We have already extended this opinion to such length as forbids a detailed examination of other points. We have examined those not especially noticed, and must content ourselves with merely announcing the conclusions to which we have arrived, which are in accordance with those of the Judge below.
The last point to be noticed is, the charge of fraud in fact. The Judge has passed upon those matters of proof, and we see nothing to constrain us to reverse his judgment upon them.
The appointing of Rye, Jr. as Agent, with some compensation—the allotting of some furniture to the wife—the want of a schedule, and the control, such as it was, exercised over the joint affairs by Rye after the assignment, do not, in the absence of any proof of original fraudulent design, raise even a pre
It is unnecessary to criticise the findings. Enough is found to which we see no good exception, to justify the conclusion, viz: the validity of the deed; the possession of the assignees; no fraud in fact; the levy and seizure by the defendant, and the value.
Judgment affirmed.