United States v. Greene
| Decision Date | 20 July 1908 |
| Citation | 163 F. 442 |
| Parties | UNITED STATES v. GREENE et al. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Marion Erwine, Sp. Asst. Atty. Gen., and Thos. L. Moore, Dist Atty., for the United States.
J. L McClure, Aubrey Strode, and Horsley, Kemp & Easley, for intervener.
Heretofore a bill in equity was filed by the government against Benj. D Greene, L. F. Kellogg, and the Norfolk & Western Railway Company. Of the nature of the bill it seems at present only necessary to say that it alleges a trust ex maleficio in favor of the government on some 400 shares of the stock of the railway company, standing in the name of Kellogg, which is alleged to have been purchased for Greene with misappropriated funds belonging to the government. The executrix of Jas. D. Leary asks permission to intervene, and alleges, in brief, that the said Leary became the surety of Greene in bail bond given in a criminal cause, on which default was made and on which judgment has been rendered, and that at the time Leary became surety it was understood between him and Greene and Kellogg that the railway stock should be held by Kellogg as a stakeholder and should be used, if occasion arose, to indemnify Leary. The petition of the administratrix of Jas. D. Leary for leave to file a bill of intervention herein is objected to by the government.
The bill of intervention does not deny the allegations in the original bill to the effect that the Norfolk & Western stock was purchased with funds embezzled from the government, nor does it allege that Leary, at the time of the alleged agreement of indemnity, was innocent of knowledge of the facts which are alleged in the original bill and which impress upon the stock a trust in favor of the government. In this failure of allegation the bill of intervention seems to me to be fatally defective. However, as the pleading may be amended in this respect, it will be necessary to go further.
I find myself unable to determine from the bill whether the draftsman is setting up an express agreement that the securities were to be used to indemnify Leary, or a tacit and therefore merely a supposed implied agreement.
As uncertainties in pleadings are to be construed against the pleader, we must for the present regard the pleading as alleging a tacit, unexpressed intention, which, but for a rule to be mentioned later, would from the acts done and the circumstances create the implied agreement relied upon. I think it is settled, and counsel seem to concede it, that the law will not imply an obligation on the part of the principal in a bail bond in a criminal case to indemnify his surety. See 3 Am. & Eng. Ency. (2d Ed.) 684; Highmore on Bail, p 204; U.S. v. Simmons (C.C.) 47 F. 575; U.S. v. Ryder, 110 U.S. 729, 4 Sup.Ct. 196, 28 L.Ed. 308. And to the extent stated I regard the last case cited as a binding decision. But here again the bill of intervention may be amended. Although verified, the ambiguity...
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Carr v. Davis
... ... 35 Ga. 180, it is held that a mortgage indemnity by the ... accused is valid. In United States v. Ryder, 110 ... U.S. 729, 4 S.Ct. 196, 28 L.Ed. 308, the syllabus states ... that: ... ... United States v. Greene (Circuit Court, W. D. Va.) ... 163 F. 442, decided in July last, involved the exact point ... ...
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United States v. Lee
...third parties, the public will have the security of two persons instead of one, and that in view of the announcement in United States v. Greene (C.C.) 163 F. 442, sureties should be accepted. The acceptance, as a surety on a criminal bond, of one who had been indemnified by a person other t......