The trust arising in favor of creditors by subscriptions to the
stock of a corporation cannot be defeated by a simulated payment of
such subscription,
Page 144 U. S. 105
nor by any device short of an actual payment in good faith, and
it was not intended, by anything said in
Clark v. Bever,
139 U. S. 96;
Fogg v. Blair, 139 U. S. 118; or
Handley v. Stutz, 139 U. S. 417, to
overrule this principle or qualify it in any way, but only to draw
a line beyond which the Court was unwilling to go in affixing a
liability upon those who had purchased stock of the corporation or
had taken it in good faith in satisfaction of their demands.
Applying this rule to the testimony and mass of figures in this
case, the Court affirms the judgments of the court below against
stockholders in these cases whose subscriptions for their stock in
the corporation, defendant in error in No. 643, were shown to be in
part unpaid.
There is always a presumption of the correctness of a master's
report, and in view of the fact that no exception was taken to it
by the plaintiff in error in No. 159, as required by Rule 21, the
Court does not feel bound to examine into the minor details of the
report in this case, and holds that that presumption overrides any
effort that has been made to show an error in this particular.
While the goodwill of a business may be the subject of barter
and sale, it must be something substantial and capable of pecuniary
estimation, and not shadowy.
The Court stated the case as follows:
These were appeals from a decree requiring the appellant Stuart
to pay the sum of $18,937.08, and appellant Camden the sum of
$9,495.12, these being the amounts unpaid upon certain
subscriptions made by them to the stock of the Greenbrier White
Sulphur Springs Company.
The facts of the case were substantially as follows: on January
30, 1880, appellants, Stuart and Camden, and one George L. Peyton
agreed to organize the Greenbrier White Sulphur Springs Company for
the purchase of the White Sulphur Springs property, consisting of
7,000 acres of land in West Virginia, and an interest in 2,800
acres adjoining, in Virginia, all of which was about to be sold
under a judicial decree rendered by the District Court of West
Virginia. It was agreed that Stuart should purchase the property
individually at a price not to exceed $310,000 (subsequently
increased by agreement to $340,000), and should sell the same to
the corporation, when formed, for the sum of $390,000 and the
expenses of the sale ($16,000), making an increase over the
purchase price of $66,000. Camden was to take one-half
Page 144 U. S. 106
interest in the corporation, with the privilege of disposing of
a part of his interest to other parties, and Peyton and Stuart each
one-fourth interest. Stuart bought the property at the judicial
sale for $340,000, and a charter was applied for and granted; but,
as the capital stock was put at $500,000, the company was not
organized under this charter. The parties, however, took possession
of the property and operated it as a watering place during the
season of 1880 under the name of the "Greenbrier White Sulphur
Springs Company." On December 3, 1880, a new corporation was formed
under the same name, with a capital stock of $150,000. A
certificate was filed, reciting that the incorporators had paid in
on their subscriptions $50,000, and desired the privilege of
increasing the said capital by sales of additional shares to
$1,000,000 in all. The capital so subscribed was divided into
shares of $100 each, and held as follows: by Stuart, Peyton, and
Henry M. Matthews, each 375 shares; by Camden, 188 shares, and by
William P. Thompson, 187 shares.
On December 29, 1880, the incorporators met at the City of
Baltimore; the certificate of incorporation was accepted as the
charter of the company; the five stockholders elected directors, of
whom Stuart was elected president, and bylaws adopted for the
government of the company. On the same day it was unanimously
resolved to increase the capital stock of the company from $150,000
to $300,000, the certificates of said increase to be sold at par
value for the purpose of creating an improvement fund.
Immediately after this meeting of stockholders, they met as a
board of directors, and
"the stockholders were called upon to pay in their respective
proportions of the $4,000 heretofore agreed to be paid, and which,
when paid, will be in full of the capital stock of $150,000
provided as full paid up stock."
On motion,
"the president and secretary were authorized to issue to the
various stockholders certificates to the amount of $150,000 of the
capital stock of this company, in proportion to their respective
subscriptions, and as in full payment of the same."
The resolution adopted at the stockholders' meeting to increase
the capital stock from $150,000 to $300,000 was
Page 144 U. S. 107
also adopted at this meeting. Several months afterwards, the
capital stock was by another resolution increased from $300,000 to
$400,000.
The springs property was turned over to the corporation by
Stuart, though it was never formally conveyed to the corporation
until March 17, 1882, when a deed was executed by Stuart and his
wife for the expressed consideration of $390,194.44. It was
expressly covenanted in this deed that a lien should be retained
upon the property conveyed to secure the payment of the balance of
the purchase money remaining unpaid. The corporation assumed the
obligations of the co-partnership, and continued the business as
though no change had been made.
During the season of 1880, the co-partnership claimed to have
made $56,000 of profits, but the statement of the expert employed
by the commissioner to whom the case was referred showed a net
profit in that year of but $4,251.68, and this without taking into
consideration a large number of outstanding notes of the company.
During the season of 1881, the balance sheet of the company showed
a profit of a little less than $10,000, while on December 1, 1881,
there were outstanding notes of the company to the amount of
$114,294.39. This sum did not include the open accounts of the
company. On April 15, 1882, there were notes outstanding to the
amount of $172,046.18. The season of 1882 was a failure, and early
in the fall of that year, the company collapsed, owing, including
the vendor's lien, $891,862.16, as reported by the
commissioner.
On February 9, 1882 at a meeting of the board of directors, it
was ordered that coupon bonds to the amount of $200,000 be sold at
not less than fifty cents on the dollar, and also $100,000 of stock
be sold at par, the two, stock and bonds, to be sold together --
that is, each purchaser of $100 worth of stock at par to take bonds
to the amount of $200 at not less than fifty cents on the dollar,
and that said bonds be secured by a deed of trust on all the
property of the company. With the exception of a lot of not more
than two acres, near the depot. It was further ordered that the
president take the necessary steps to get in the legal title of the
company to the real estate, and that
"the present stockholders shall have the privilege of
Page 144 U. S. 108
taking said stock and bonds in amounts proportioned to the stock
now held by them, and, should any of the stockholders decline to
buy, then the others shall have the right to take their shares, and
only in the event that any of said stock and bonds are not taken by
the present stockholders they shall be sold to outside
parties."
On April 6, the stockholders met at White Sulphur Springs and
confirmed this action of the board, directed the president to
execute a deed of trust, to secure the bonds and interest, to
William W. Gordon and Isaac H. Carrington, trustees, and also fixed
upon May 1, 1882, as the date when the option to take the stock and
bonds reserved to the stockholders should expire. At a further
meeting of the hoard of directors on April 25, this option was
further extended to May 15. At a meeting on the following day, it
was further resolved that the president, at his earliest
convenience, place in the hands of John P. Branch $50,000 of the
coupon bonds of the company, and $25,000 of stock of the company,
and that
"he deliver to W. A. Stuart a like amount of the stock and bonds
of the company, to be placed or disposed of by them in accordance
with resolutions heretofore adopted."
Stuart received his $50,000 of bonds and $25,000 of stock, and
paid for them with $50,000 of the obligations of the company, upon
which he was individually bound as endorser, and which he had
purchased at fifty cents on the dollar.
This litigation began on April 10, 1883, by a bill filed by
Stuart against the Sulphur Springs Company and Gordon and
Carrington, trustees, to enforce a sale of the property covered by
the trust deed in satisfaction both of his own claim as holder of
$50,000 of the bonds secured by such deed and of such other claims
and demands against the company as might be proved, in the order of
their priority. He prayed for a reference to a commissioner to take
an account of all the property of the company and the liens
thereon, their amounts, character, and priority, the names of the
stockholders, the number of shares owned by each, the par value of
the same, and the amount due and unpaid by each of the
stockholders. He further prayed for a report of all the
unsecured
Page 144 U. S. 109
claims and demands against the company, for a sale of the
property, and that the proceeds be applied to the satisfaction of
the liens thereon, and for a receiver.
Subsequently, and on September 3, 1885, William Knabe & Co.
intervened in this suit by petition claiming an indebtedness
against the company of $518.63, and prayed to be allowed to contest
the validity of the deed of trust, and have the property thereby
conveyed subjected to the payment of all the debts of the company
without preference, except for the debt due for the purchase money
of the real estate, and that proper orders be made for the purpose
of securing the rights of the creditors against the stockholders in
respect to their subscriptions to the stock of the company.
Petitioner also prayed that the trust deed be declared null and
void and the property subjected to the payment of the debts of the
company.
By consent of parties, the two cases were heard together, the
deed of trust was decreed to be null and void, and the bill filed
by Stuart dismissed. No appeal was taken from this order of
dismissal. The court further ordered, upon the report of the
special commissioner, the payment by Camden of $9,495.12, and by
Stuart of $18,937.08, as of December 30, 1880, to the Sulphur
Springs Company, as the unpaid subscriptions to the capital stock
of such company. From this decree, both parties appealed to this
Court.
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The single question involved in these appeals is whether the
defendants, Stuart and Camden, can be called upon to pay in their
proportions of unpaid subscriptions to the capital stock of the
White Sulphur Springs Company.
Page 144 U. S. 110
The capital stock of this company was fixed at $150,000, and the
certificate of in corporation of December 3, 1880, stated that
$50,000 had been "paid in on said subscriptions."
(1) As to defendant Stuart.
Stuart's answer in this connection avers that
"it is true, as stated in the application for the charter, that
$50,000 of said capital stock had then been paid in, but in making
said statement, it was not intended to say that no more than that
amount had been paid in, the fact being that prior to the date of
said application (3d December, 1880), there had been paid up in
cash, on account of the subscriptions to said capital stock at
least the sum of $70,000. Your respondent is under the impression
that it was from $75,000 to $80,000. He knows that he had himself
paid at least $17,500 on account of his own subscription, and the
same amount on account of the subscription of his codefendant,
George L. Peyton, for whom he advanced the money, and he has no
reason to doubt that the other stockholders put in like proportion
on account of their subscriptions."
He denied that any part of the subscription remained unpaid, and
averred that full-paid shares had been legally and properly issued
to the subscribers.
Mr. Gallaher, the master to whom the case was first referred,
reported upon this point as follows:
"Mr. Stuart states that between $75,000 and $80,000 had been
paid in. Mr. Peyton states that on each 1/4, there had been paid in
about $17,500, or $70,000 in all. Mr. Stuart and Mr. Peyton state
that the profits of the season of 1880 were, as shown upon the
books, to have been $56,000. The theory was, these amounts having
been paid in, together with the $4,000, making in all, cash,
$130,000, according to Mr. Peyton's calculation, and about $140,000
according to Mr. Stuart, the incorporators considered that they had
a property with a paying and earning capacity of $56,000 the first
year of their venture. The property had been improved, enlarged,
and was enhanced in value and reputation as a springs resort. They
estimated that their time, labor, and talents were worth something,
and they determined to increase the stock $150,000 more, making it
in all $300,000, and, as the witness Stuart states, were
negotiating
Page 144 U. S. 111
for such increased stock. They estimated another element of
value,
viz., the long time their vendor had given them on
the deferred payments. They estimated their assets as worth
$150,000, and started business. It seems to me it was worth it at
the time. The creditors seem also to have thought so when they
dealt with them Without further comment, I report that all of the
$150,000 original stock was paid up."
Upon the argument of exceptions to this report, it was ordered
that it be referred to Mr. Leake, another master, residing at
Richmond, who reported upon the same subject as follows:
"Prior to the formation of the company, the corporators had paid
into the business of the 'Greenbrier White Sulphur Springs
Company,' as it did business in 1880, the sum of $50,000, and this
money had been expended in permanent improvements and furniture,
etc., and composed a part of the assets of the concern at the end
of the year 1880. . . . On December 30, 1880, a call was made for
$5,000 from Stuart, Peyton, Mathews, Thompson, and Camden, jointly,
and they paid these calls at once, except as to H. M. Mathews, who
only paid $4,000, thus making in all $69,000, or money, or money's
worth, actually paid in on account of said stock subscription."
He then recites the resolution of December 30, calling upon the
stockholders to pay in their proportions of the $4,000, heretofore
agreed to be paid in full of the capital stock of $150,000, and
that authorizing the president and secretary to issue certificates
for that amount, and says:
"These resolutions were based upon an erroneous balance sheet or
statement of the business of the parties called the 'Greenbrier
White S. S. Co.' for the year 1880, by which it was made to appear
that there had been made a profit of $80,000 by said business
during that year, which, with the $70,000 paid in said business and
to be paid into the company, would have made an input of $150,000,
the amount of said stock."
"But said statement was far from correct. Instead of a profit of
$80,000, the real profit for the said year 1880 was only $4,251.68.
"
Page 144 U. S. 112
"I report therefore that the original subscribers to the stock
have paid in and owe still the following sums:"
1. Wm. A. Stuart subscribed for 375 shares . . . .
$37,500.00
Paid in old business . . . . . . . . $12,500.00
" company. . . . . . . . . . . 5,000.00
His fourth of profits. . . . . . . . 1,062.92
---------- 18,562.92
----------
Balance due by him . . . . . . . . . $18,937.08
2. Geo. L. Peyton, for like sum . . . . . . . . . 18,937.08
3. H. M. Mathews, for like sum, and an additional
$1,000, as he only paid $4,000 on the $5,000
called . . . . . . . . . . . . . . . . . . . 19,937.08
4. J. N. Camden, on his 180 shares, paid in like
proportion, and owes in like manner . . . . 9,495.12
5. W. P. Thompson, on his 187 shares, paid in
like manner, and owes in like manner . . . . 9,441.96
----------
Total indebtedness . . . . . . . . . $76,748.32
"And this should bear interest from Dec. 30, 1880, when it was
held out to the world as having been paid in."
"Each of the original subscribers is bound for the unpaid part
of his subscription. The capital stock was afterwards increased
under the resolutions under which the deed of trust of April 6,
1882, to Carrington and Gordon, trustees, was executed, but I have
already reported in regard to the stock issued thereunder."
It will be observed in connection with these reports that the
two masters to whom these cases were referred agreed substantially
in holding that about $70,000 was paid in on the capital stock,
Stuart's proportion of which would be $17,500, and that their
divergence of opinion arose over the alleged subsequent payments.
Mr. Gallaher reported in regard to these that the $56,000 of
profits of the season of 1880 should be treated as a part of the
capital stock, and this, with the $4,000 and the $70,000 originally
paid in, would make $130,000 cash subscriptions, and upon that
theory found that
Page 144 U. S. 113
the entire capital stock had been paid in. Before the second
report was made, the question of this $56,000 of profits was
referred to an expert accountant, who reported that the real
profits of the year 1880 were only $4,251.68, Stuart's proportion
of which was $1,062.92.
It is very difficult to ascertain from the mass of figures and
testimony upon this subject the exact status of this company at the
close of the year 1880, when the corporation was organized. It
does, however, appear very clear that, conceding that $70,000 in
money had been paid into the capital stock of the company, and
$56,000 of profits had also been realized, there was less than
$1,200 in money remaining December 31st, and, in addition thereto,
there was a large increase of indebtedness during that year.
Indeed, from the beginning of the business in the spring of 1880 to
its close in the autumn of 1882, there was a constantly increasing
indebtedness.
Assuming that there was $70,000 paid in before the corporation
was formed, which is $20,000 more than was claimed in the articles
of incorporation to have been paid in, it is evident that if it
were paid in cash, it was immediately paid out for furniture,
permanent improvements, etc., and that there was little, if any,
money left at the end of the season. There is, then, a
prima
facie liability on the part of the defendants to pay each his
proportion of the remaining $80,000, and the real question in this
case is whether this has ever been paid or accounted for in such a
manner as to operate as a satisfaction of the claim. In view of our
decisions in
Sawyer v.
Hoag, 17 Wall. 610,
Scoville v. Thayer,
105 U. S. 143, and
the numerous cases arising out of the failure of the Great Western
Insurance Company, it is manifest that the resolution adopted at
the directors' meeting of December 29, 1880, that, upon payment of
$4,000, or their proportions of the same, the capital stock of
$150,000 should be deemed to be fully paid, was wholly ineffectual
as against the creditors of the company. It is the settled doctrine
of this Court that the trust arising in favor of creditors by
subscriptions to the stock of a corporation cannot be defeated by a
simulated payment of such description, nor by any device short of
an actual payment in good faith, and
Page 144 U. S. 114
while any settlement or satisfaction of such subscription may be
good as between the corporation and the stockholders, it is
unavailing as against the claims of the creditors. Nothing that was
said in the recent cases of
Clark v. Bever, 139 U. S.
96,
Fogg v. Blair, 139 U.
S. 118, or
Handley v. Stutz, 139 U.
S. 417 was intended to overrule or qualify in any way
the wholesome principle adopted by this Court in the earlier cases,
especially as applied to the original subscribers to stock. The
later cases were only intended to draw a line beyond which the
Court was unwilling to go in affixing a liability upon those who
had purchased stock of the corporation, or had taken it in good
faith in satisfaction of their demands.
It is, however, claimed that during the season of 1880, in
addition to the real estate already purchased, there was furniture
contributed to the amount of $53,834.78, and permanent improvements
made to the amount of $42,000, making a total of over $95,000,
which should be added to the $50,000 represented by the certificate
of incorporation to have been paid into the company. No claim of
this kind is made in Stuart's answer, and in view of the $70,000
which is said to have been paid in cash, it may be safely assumed
that if this money were paid at all, of which there seems to be
some doubt, it went in this direction, and that, having been once
credited to the subscribers in the form of money, it cannot be
credited again in the form of assets for which this money was
paid.
So far as concerns the profits of $56,000 claimed to have been
made during the season of 1880, the evidence is very
unsatisfactory. These profits were stated at this sum by the
bookkeeper of the concern under an instruction of the manager to
make out as good a showing as he could for them, to aid in the
appreciation of the stock of the new corporation, a method of
estimating profits which throws very considerable doubt upon the
accuracy of the result. An expert accountant, acting under the
direction of the commissioner, after a careful examination of the
books, found these profits to amount to $4,251.68, which was
allowed by the master in computing the amount due by the several
parties upon their subscriptions.
Page 144 U. S. 115
A suggestion is made in the brief of Mr. Camden's counsel that
the expert erred in charging certain items to the account of
expenses; but in view of Rule 21 of this Court, which requires
that
"when the error alleged is to a ruling upon the report of a
master, the specification shall state the exception to the report
and the action of the court upon it,"
we do not feel called upon to examine into the minor details of
this report. There is a presumption of its correctness which
overrides any effort that has been made to show an error in this
particular.
The experience and goodwill of the partners, which it is claimed
were transferred to the corporation, are of too unsubstantial and
shadowy a nature to be capable of pecuniary estimation in this
connection. It is not denied that the goodwill of a business may be
the subject of barter and sale as between the parties to it, but in
a case of this kind, there is no proper basis for ascertaining its
value, and the claim is evidently an afterthought. The same remark
may be made with regard to the contract of January 30, and the loss
of time and trouble to which the parties were subjected, which are
now claimed to be elements of value in the property contributed to
the corporation, but of which no account was made at the time.
(2) As to defendant Camden.
The answer of Camden to the bill or petition of Knabe & Co.
averred that
"the total cost of improvement, betterments, and new furniture
amounted to a large sum, of which there was paid in cash by the
parties interested in said purchase about $70,000;"
that the business yielded a not profit of about $56,000 for the
season, which amount was also appropriated and devoted to the
improvement and enhancement in value of the said property, the
parties in interest having all given largely of their time and
attention to the development of the said property without charge
for the time, expenses, and labor in connection with the same;
"that the whole transaction was made in good faith, and, as he
considered, a plain, legitimate business transaction; that the
parties had full right to sell the property to the corporation at a
fair and reasonable price to be agreed upon by respondent, and his
co-purchasers
Page 144 U. S. 116
under the said contract were so advised by able counsel, and the
resolution passed by the board of directors of said company making
such purchase was prepared by John K. Cowen, their legal adviser,
and was adopted and ratified by the said company in full directors'
meeting and ordered to be spread upon the records of said
company."
Annexed to his answer was a copy of this resolution, the
original of which, he said, was filed with his deposition in a
chancery suit in the Circuit Court of Augusta County, Virginia. By
this instrument it appears to have been resolved:
"1. That in consideration of the transfer to this company of the
contract with said W. A. Stuart, and also of all the improvements,
furniture, and personal property of all descriptions placed by said
J. N. Camden and his associates upon said premises, this company do
agree, for the consideration aforesaid, to accept the same in full
payment of the unpaid balances by said J. N. Camden, and on their
several subscriptions to the capital stock of this company, as set
forth in the certificate of incorporation."
"2. Resolved that when said transfer of the contract and
property aforesaid is duly made to this company, there shall be
issued to the parties named in the foregoing resolution
certificates of fully paid up stock for the amount which they have
respectively subscribed, as set forth in the certificate of
incorporation aforesaid."
This resolution was annexed to the sworn answer of Camden, but
is not shown to have been actually passed, is not made an exhibit
in the case, and does not appear in the additional record
stipulated into the case, which purports to contain a copy of the
minutes of all the meetings of said company, and of the board of
directors thereof.
It is somewhat singular, too, that this resolution, which Camden
avers to have been adopted at the directors' meeting at Barnum's
Hotel, in Baltimore, was not set up or proved by Stuart, to whom it
was equally available, and did not make its appearance until
December, 1887, more than four years after this suit was begun,
after all the testimony had been taken, and within a few days
before the case was finally submitted
Page 144 U. S. 117
to the court for adjudication. It is absolutely inconsistent
with the resolution adopted by the board on the same day (December
29, 1880) calling upon the stockholders to pay in their proportions
of the $4,000 agreed to be paid in full of the capital stock, and,
under the circumstances, nothing can be claimed in virtue of
it.
Defendant Camden also claims the right to set off as against his
indebtedness upon the stock the sum of $10,284.56, paid by him in a
suit against him and Stuart to recover the price of furniture in
the hotel, of which the company received the benefit, and which
furniture is a part of the property contributed to the corporation.
This payment, however, added nothing to the assets of the company.
The furniture itself was a part of such assets, and was taken into
consideration when the valuation of December 3, 1880, was made, and
it was held correctly by the court below that, "as he has already
been allowed the value of that furniture in his original payment,
to allow this claim would be to credit him twice for the same
thing." If a person should buy upon credit a certain piece of
property, such, for instance, as a steamboat, and should turn it
over to a corporation, and receive certificates of stock
representing its value, it would scarcely be claimed that when he
paid his original vendor, he should receive additional stock to the
amount of such payment. In this case, Camden purchased the
furniture, turned it over to the company, and is presumed to have
received stock proportioned to his contribution.
We have been much embarrassed in the consideration of this case
by the want of the assignment of errors required by Rev.Stat. sec.
997, and the twenty-first rule of this Court, and should have felt
ourselves justified upon that ground in refusing to take cognizance
of the case. We have, however, examined the evidence so far as it
bears upon the question of these defendants' liability upon their
stock subscriptions, and have found it confusing and
unsatisfactory. Indeed, the vital question whether the capital
stock of this corporation was ever paid in money or money's worth
is so covered up and obscured by a multiplication of figures and an
entanglement of details that it is almost impossible to arrive
at
Page 144 U. S. 118
the exact truth. From this testimony, however, one thing clearly
appears,
viz., that the company was incorporated with a
capital stock of $150,000, and that the stockholders were content
to put a valuation of $50,000 upon what had been put in at the time
the company was formed. As there was apparently no motive for
underestimating this value, in the absence of clear proof to the
contrary, the Court would be justified in accepting it as the
correct valuation of the property turned over to the company.
Coit v. Gold Amalgamating Co., 119 U.
S. 343. But in view of the finding of the masters that
$70,000 had been paid in, we are content to accept this as the true
amount. As no further assessments or calls appear by the minutes of
the corporation to have been made, except the $4,000, which was to
be in full of the balance of the subscription, the burden of proof
is upon the defendants to show how, if at all, the residue of this
subscription was paid. The other fact, that the call of $4,000 was
made for the purpose of completing the subscription of $100,000,
and to be in full thereof, indicates that the directors considered
their entire duty in regard to the payment of the capital stock to
have been discharged. We have already held that this payment of
$4,000 was unavailing as against the creditors' claims. If any
further payments were made, defendants should make it appear
clearly and satisfactorily. They failed to satisfy the master to
whom the case was referred. They failed to satisfy the court below.
They have failed to convince us. In lieu of the evidence which the
nature of the case required, they have presented us a complicated
mass of testimony, and have asked us to evolve from it sufficient
to support their theory that, in some manner, of which apparently
they have no clear comprehension, these subscriptions were
paid.
In cases of this kind, referred to a master to state an account,
depending, as they do, upon an examination of books, upon the oral
testimony of witnesses, and perhaps, as in this case, upon the
opinions of an expert,
"his conclusions have every reasonable presumption in their
favor, and are not to be set aside or modified unless there clearly
appears to have been error or mistake on his part."
This was the rule laid down
Page 144 U. S. 119
by this Court in
Tilghman v. Proctor, 125 U.
S. 136, and approved in
Callaghan v. Myers,
128 U. S. 617,
128 U. S. 666,
and in
Kimberly v. Arms, 129 U. S. 512.
See also Dean v. Emerson, 102 Mass. 480;
McDonough v.
O'Neil, 113 Mass. 92. We see no reason for departing from it,
and think this is a proper case for its application.
Upon the whole we agree with the circuit court upon the points
involved in these appeals, and the decree of that court is
therefore
Affirmed.
