William Booth, Appellant v. Ferdinand Clark

Decision Date01 December 1854
Citation17 How. 322,58 U.S. 322,15 L.Ed. 164
PartiesWILLIAM A. BOOTH, APPELLANT, v. FERDINAND CLARK
CourtU.S. Supreme Court

58 U.S. 322
17 How. 322
15 L.Ed. 164
WILLIAM A. BOOTH, APPELLANT,
v.
FERDINAND CLARK.
December Term, 1854

THIS was an appeal from the circuit court of the United States for the District of Columbia, holden in and for the county of Washington.

The dispute was about the same sum of money which was in controversy in the preceding case of Clark v. Hackett.

Booth filed his bill in the circuit court, claiming the money in virtue of his character of receiver, appointed by the chancellor of the first circuit in the State of New York. All the circumstances of the case are recited in the opinion of the court.

On the 29th of March, 1853, the circuit court dismissed the bill, and Booth appealed to this court.

Page 323

The case was argued by Mr. Bradley, for the appellant, and by Mr. Lawrence and Mr. May, for the appellee.

The counsel for the appellant contended:——

1. That by the proceedings in the court of chancery of New York the property of Clark was vested in the receiver, Booth, before Clark petitioned for the benefit of the bankrupt act, and the right of Booth was not affected by the voluntary bankruptcy and discharge of the defendant. 2 Rev. Stat. 173, §§ 38, 39, in margin; Storm v. Waddell, 2 Sandf. ch. 494, 510, 512, and cases cited.

The order of the court works the transfer of the title. Mann v. Pentz, 2 Sandf. ch. 257, 271, 272.

The subsequent discharge did not devest the title thus created. Marcy v. Jordan, 2 Denio, 570.

It is like an execution in the hands of the sheriff, not levied, which, by the 'settled law of the State,' binds the property. Savage's Assignees v. Best, 3 How 111.

Or the attachment in a New Hampshire suit. Peck et al. v. Jenness et al. 7 How. 612, 619, 622.

It is the settled law of the State of New York, 2 Sandf. ch. 519.

II. The receiver could maintain any action in relation to the property, and rights of property, which the debtor himself could have had. 6 Barb. Sup. Ct. R. 542, 544; 3 Sandf. 311, 316, 317.

III. The matter in controversy was a chose in action at the time of the appointment of the receiver, was personal property, followed the person of the owner, and passed to the receiver.

The term chose in action is broad enough to pass the claim in question, whether the evidence of the debt was in his possession or not, at the time of the appointment of the receiver. Nathan

Page 324

v. Whitelock, 9 Paige, 159; North v. Turner, 9 Ser. and Raw. 244; and the authorities there cited. 19 Wend. 75; Gillett v. Fairchild, 4 Denio, 80, 82, and cases cited.

A claim upon a foreign government would be embraced in such an assignment. 4 Denio, supra, and cases cited. Couch v. Delaplain, 2 Coms. 397, 402, 403; Milner v. Metz, 16 Pet. 321; Comegys v. Vass, 1 Pet. 193, 2 Story's Eq. § 829, 1040.

The fund not being the subject of manual possession, an appropriation of it is all that is required. 5 Binn, 392, 398.

But it was not merely a loose unsettled demand of redress for injuries. The treaties of 1839 and 1843, gave it a fixed character.

Having no locality, the validity of its transfer depends on the law of the place where the transfer was made. 2 Kent's Comm. 570, 7th ed.; Story's Confl. § 362, 383, 399; Van Buskirk v. Hartford Fire Insurance Co. 14 Conn. 583, 586, 587, 588, 590.

'According to the law of the place where made.' Black v. Zacharie, 3 How. 483; Oakey v. Bennett, 11 Ib. 44.

The court of chancery in New York had jurisdiction of the subject-matter, and of the person. It carried with it jurisdiction over his personal effects. Holmes v. Renesen, 4 Johns. ch. 485; S. C. 20 Ib. 262; Hooper v. Tuckerman, 3 Sandf. Sup. Ct. Rep. 311, 317; Hoyt v. Thompson, 1 Selden, 320; Story's Confl. 420; Life and Letters of Joseph Story, vol. 1, p. 380, Letter to Chancellor Kent.

The defendant resided in the city of New York. He was engaged in business there. His original domicile was in Massachusetts; his next, a domicile for commercial purposes, in Havana; next, from 1841 to 1844, his residence and domicile for business was in New York.

And while so residing and doing business in New York, he appeared in the chancery court, in this cause.

There is no evidence to show any other residence or domicile elsewhere, from 1841 to 1843. In the absence of such proof, prim a facie he was a domiciled citizen of New York, and his rights over his personalty are to be governed by the laws of that State.

We assume, upon these points, that if this cause was in a New York court, the right of receiver would not admit of dispute.

IV. The circuit court of the District of Columbia had jurisdiction of this case; was bound to enforce the rights of the receiver according to the law of the State of New York, and ought to have rendered a decree in favor of the appellant.

1. It had jurisdiction of the cause, if the right of the receiver was complete under the laws of the State of New York. Holmes

Page 325

v. Renwer; Hooper v. Tuckerman; Hoyt v. Thompson; Story's Confl. 419, 420, 421, already cited; Thomas v. Merchant's Bank, 9 Paige, 216; McLaren v. Pennington, 1 Ib. 102; Bank of Augusta v. Earle, 13 Pet. 520, 589, 590, 591; Metz v. Milner, 16 Ib. 321.

2. There were no conflicting claims on the part of any citizen of the District of Columbia, and the court was bound to give effect to the foreign assignment, not only by the comity of nations, but by the peculiar federal relations existing in this country.

3. The policy of the law of this District shows an enlarged comity. Executors and administrators, by statute act, (24th June, 1812, § 11, 2 Stats. at Large, 758,) and assignees of insolvents in the several States, have always been allowed by the courts to sue here. The receiver in this case is not a common law receiver, but a receiver by statute, as in case of insolvency.

4. The court had jurisdiction under the act of 3d March, 1849.

The title of Booth being consummate, and the fund enjoined, and locked up in the treasury, at the instance of the creditors of Clark, it was subject to the claims of other creditors giving notice and filing their bonds.

The design was to keep the money in the treasury, in order that claimants should have a reasonable time to prosecute their rights; the risk ran was that it should be paid over. As regards the claimant, it was merely directory. Time was not of the essence of the law.

'There is a known distinction between circumstances which are of the essence of a thing required to be done by an act of parliament, and clauses merely directory. The precise time, in many cases, is not of the essence.' Rex v. Loxdale, 1 Burr, 447.

The provisions of a law which are merely directory, are not to be construed into conditions precedent. Laws are construed strictly to save a right or avoid a penalty, but liberally to give a remedy, or effect an object declared in the law. Whitney v. Emmett, 1 Bald. C. C. R. 316.

The intention of the legislature should be followed, whenever it can be discovered, although the construction seem contrary to the letter of the statute. Dwarris on Stat. 718; The People v. The Utica Insurance Co. 15 Johns. 380. See also 6 Cranch, 307; 3 How. 565.

By the court: 'Courts are not to construe an act so liberally as to work injustice; but so liberally as to prevent the mischief, and advance the remedy.' Jackson v. West, 10 Johns. 466.

Negative words will make a statute imperative; words in the affirmative are directory only. Rex v. Leicester, 9 Dowl. and Ry. 972; 7 Barn. and Cress. 12.

Page 326

Where a statute directs a person to do a thing in a given time, without any negative words restraining him from doing it afterwards, the naming of the time will be considered as directory to him, and not as a limitation of his authority. Pond v. Negus, 3 Mass. 230; Smith's Com. § 670, et seq.; Stinson v. Huggins, 16 Barb. 61.

When an act is to be done within a given time, it may be done afterwards, if nothing have occurred to prevent it. Griffith v. Minor, 1 Louis. R. 350; Proseus v. Mason, 12 Ib. 16.

Under a directory statute, a duty not performed at the time specified, may be valid if performed afterwards. Webster v. French, 12 Illinois, 302.

Remedial statutes have been made to extend, by an equitable construction, to other persons, to other things, to other places, and to other times than those expressly mentioned in the statute. Dwarris, 721-726.

Apply these rules to this statute and the facts of this case, and the conclusion is inevitable, that so long as the fund continued in the treasury, the court had jurisdiction to entertain and adjudicate on the complainant's claim to it. It was of no importance that the proceedings should be instituted within any specific time after the award, though it was essential that they should be, while the money was in the treasury. The intent was to prescribe the length of time the money should remain without any claim. It was not a condition precedent, to give the notice within thirty days. There is nothing in the statute to restrain its being done afterwards.

Finally: The circuit court had jurisdiction by reason of the general powers conferred upon it by statute.

It has all the powers given to the circuit courts of the United States by the act of 13th February, 1801. 'Cognizance of all cases in equity between parties, both or either of which shall be resident or be found within said district, (act of 27th February, 1801, § 5; 2 Stats. at Large, 106,) to proceed against non-residents in the same way as they are proceeded against in the general court, or in the supreme court of chancery in the State of Maryland. Act of 3d May, 1802, § 1; 2 Stats. at Large, 193; and see Kendall v. The United States, 12 Pet. 524.

Clark was here litigating the case of B. C. Clark, (now in this court,) and appeared and answered in this case. The fund itself had been enjoined, and was subject to the decree of the court, and was a fund in court. The court had jurisdiction.

The counsel for the...

To continue reading

Request your trial
276 cases
  • Cobell v. Norton
    • United States
    • U.S. District Court — District of Columbia
    • September 17, 2002
    ... ... Luskin, Patton Boggs LLP, Tom C. Clark, Brian L. Ferrell, Andrew M. Eschen, Charles Walter ... On August 27, 2001, however, William Myers, the Solicitor for Interior, informed Secretary ... of his appointment." Defs.' Opposition at 11 (citing Booth v. Clark, 58 U.S. (17 How.) 322, 331, 15 L.Ed. 164 ... ...
  • Matarazzo v. Hustis
    • United States
    • U.S. District Court — Northern District of New York
    • March 18, 1919
    ... ... Katalla Co. (C.C.) 182 F. 946, 947; ... Morris v. Clark Construction Co. (C.C.) 140 F. 756; ... Sherwood et al ... his custody, as an officer of the court;' Booth v ... Clark, 17 How. 322, 331, 15 L.Ed. 164, where the ... ...
  • Irvine v. Elliott
    • United States
    • U.S. District Court — District of Delaware
    • February 24, 1913
    ... ... booth v. Clark, 17 How. 322 (15 L.Ed. 164), Hale v ... ...
  • Clark v. Williard
    • United States
    • U.S. Supreme Court
    • April 2, 1934
    ... ... v. Harris, 198 U.S. 561, 575, 25 S.Ct. 770, 49 L.Ed. 1163; Booth v. Clark, 17 How. 322, 15 L.Ed. 164. His title is the consequence of a ... ...
  • Request a trial to view additional results
1 books & journal articles
  • Special Masters, Receivers, and the Duty to Marshal Evidence
    • United States
    • Utah State Bar Utah Bar Journal No. 19-3, June 2006
    • Invalid date
    ...(Kan. 1987). 5. See Utah R. Civ. P. 66(b); Ledbetter v. Farmers Bank & Trust Co., 142 F.2d 147, 150 (4th Cir. 1944); Booth v. Clark, 15 L. Ed. 164, 168 Geyser Mining Co. v. Bank of Salt Lake, 661 P. 151, 152 (Utah 1897); Norwest Bank Nebraska v. Bellevue Bridge Comm'n, 607 N.W.2d 207, 210 (......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT