1. The court again decides that where a corporation is adjudged
a bankrupt, the proper district court of the United States, in
order to provide means for the payment of the debts of the
corporation, may direct an assessment upon the unpaid balance due
on stock held by the several stockholders.
2. A person is presumed to be the owner of stock when his name
appears on the books of a company as a stockholder, and when he is
sued as such, the burden of disproving that presumption is cast
3. The record of a district court of the United States is not
within the Act of Congress approved May 29, 1790, 1 Stat. 122,
prescribing the mode in which the records and judicial proceedings
of the state courts shall be authenticated, but is, when duly
certified by the clerk under its seal, admissible as evidence in
every other court of the United States.
The facts are stated in the opinion of the Court.
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Stockholders in the bankrupt company were made liable by the act
of incorporation "in all cases of losses exceeding the means of the
corporation," each to the amount of the stock which he held, and
the record shows that the defendant, at the time of the alleged
loss, held fifty shares of the stock, eighty percent of which was
Sufficient also appears to show that the insurance company, on
the 9th of October, 1871, met with losses by fire which exhausted
all their funds and effects, and that the corporation, on the 14th
of November of the next year, was duly adjudged bankrupt by the
District Court for the Northern District of Illinois, the insurance
company having its principal place of business at Chicago, in that
Page 95 U. S. 419
Due notice was given of the adjudication, and the creditors, at
their first meeting, chose the plaintiff below the assignee of the
estate and effects of the bankrupt company. No opposing interest
appearing, the register, by an instrument under his hand, assigned
and conveyed to the assignee all the estate, real and personal, of
the bankrupt company.
Regular proceedings followed, and the bankrupt court, on the 4th
of February, 1873, entered a decree that a call or assessment of
sixty percent upon the stock of the stockholders was necessary for
the purpose of raising funds to pay losses incurred by the bankrupt
company in its insurance business, and ordered and directed the
assignee to proceed to make the assessment.
Pursuant to that decree, the assignee made the assessment, and
filed in the bankrupt court due proof that he had given the notices
prescribed in the decree. Payment being refused by the defendant,
the plaintiff instituted the present suit in the District Court for
the District of Maryland to recover the amount of the assessment on
the fifty shares held by the defendant. Service was made and the
defendant appeared and pleaded that he never promised. Other
proceedings took place which it is not necessary to notice, and at
the next term the parties went to trial, and the verdict and
judgment were in favor of the plaintiff. Exceptions were duly taken
by the defendant, and he sued out a writ of error and removed the
cause into the circuit court, where the parties were again heard,
and the circuit court affirmed the decree of the district
Cases of the kind may be reexamined here as well as in the
circuit court upon the bill of exceptions filed in the district
court, and the defendant accordingly sued out a writ of error and
removed the cause here for reexamination.
Nine bills of exception are set forth in the transcript,
covering forty-eight pages of the same, all of which were allowed
in the district court. Bills of exceptions are required in order
that the matters to which they relate may be made a part of the
record and that it may appear that the questions involved were
raised in the subordinate court. Such a proceeding constitutes a
proper foundation for a writ of error, but
Page 95 U. S. 420
it does not remove the cause into the appellate court without a
writ of error, and whenever a cause is removed into this Court, the
requirement is that there shall be an assignment of errors setting
"out separately and specifically each error asserted and intended
to be urged," and
"when the error alleged is to the charge of the court, the
specification shall set out the part referred to totidem
whether it be the instruction given or instruction
Argument to show that the assignment of errors in this cause is
not a compliance with that rule is unnecessary, as it is obvious
that it is materially defective both in form and substance.
Three errors are set forth in a single assignment:
1. That the court erred by admitting in evidence the several
matters set forth in exceptions Nos. 1 to 8.
2. That the court erred in rejecting the prayers for instruction
presented by the plaintiff, Nos. 1 to 9.
3. That the court erred in the instruction given to the jury,
which covered the whole case.
Assignments of error are required to be more specific and
definite, but inasmuch as the defendant has reduced the several
exceptions to a summary statement, the material questions will be
Two principal allegations were required to be proved by the
plaintiff in order to maintain the action, which was assumpsit to
recover the assessment made by the order of the bankrupt court:
1. That the defendant was a stockholder in the company, and that
he owned fifty shares of the capital stock.
2. That the assessment had been made by the assignee, as alleged
in the declaration.
During the trial, the plaintiff offered evidence to prove that
the defendant was a stockholder, as follows:
1. He offered the books of the corporation, in which the name of
the defendant was entered as the owner of fifty shares.
2. He offered the stock book of the company, with a duplicate of
the stock certificate issued to the defendant, showing that he was
the owner of the same number of the shares of the capital
3. He introduced testimony to prove that the certificate was
sent to the agents of the company, to be delivered to the defendant
when he paid twenty percent of the shares, and that he made the
4. He also introduced a receipt signed
Page 95 U. S. 421
by the defendant, showing that the company paid the defendant a
dividend upon his stock.
Separate objection was made by the defendant to each of the
offers of proof, which were admitted by the court, and the
Taken as a whole, it is clear that the evidence offered was
amply sufficient to warrant the jury in finding that the defendant
was a stockholder as alleged. Where the name of an individual
appears on the stock book of a corporation as a stockholder, the
presumption is that he is the owner of the
stock in a case where there is nothing to rebut that presumption,
and, in an action against him as a stockholder, the burden of
proving that he is not a stockholder or of rebutting that
presumption is cast upon the defendant. Hoagland v. Bell,
36 Barb. (N.Y.) 57; Plank Road v. Rice,
162; Turnpike Road v. Van Ness,
2 Cranch C.C. 451;
Mudgett v. Horrell,
33 Cal. 25; Coffin v.
17 Me. 440; Merrill v. Walker,
Specific objection was also made to the admissibility of the act
of incorporation of the company, on account of a verbal variance
between the name of the company as given in the act from that set
forth in the declaration; but the objection is without merit, as it
presents no obstacle to a right understanding of the matter.
Dodge v. Barnes,
31 Me. 290; Chadsey v. McCreery,
27 Ill. 253; Ken. Seminary v. Wallace,
15 B.Mon. (Ky.)
Satisfactory proof having been exhibited that the company was
duly incorporated and organized, it follows that the receipt of a
dividend upon the shares standing upon the book of the company in
the name of the defendant, when taken in connection with the other
evidence introduced by the plaintiff, is conclusive to show that
the assignment of error in that regard should be overruled.
Upton v. Hansbrough,
10 N.B.R. 369; In re Bank,
12 N.Y. 17; Alder v. Bank,
13 Wis. 61; Ward v. Manuf.
16 Conn. 593.
Suppose that is so, still it is insisted by the defendant that
the court below erred in admitting the record of the bankrupt
proceedings in the Bankrupt Court for the Northern District of
Illinois. Several objections were taken to the admissibility of
Page 95 U. S. 422
that record, the principal one of which was that the copy of the
record was not properly authenticated.
Proceedings in bankruptcy are deemed to be matters of record,
but they are not required to be recorded at large. Instead of that,
the requirement is that they shall be filed, kept, and numbered in
the office of the clerk of the court, a short memorandum thereof
being kept in books provided for the purpose, and the express
provision of the act of Congress is that "copies of such records,
duly certified under the seal of the court, shall in all cases be
evidence of the facts therein stated." 14
Stat. 535; Rev.Stat., sec. 4992.
Records and the judicial proceedings of the courts of any state,
the act of Congress provides, shall be proved or admitted in
evidence in any other court within the United States, by the
attestation of the clerk and the seal of the court annexed, if
there be a seal, together with a certificate of the judge, chief
justice, or presiding magistrate, as the case may be, that the said
attestation is in due form. 1 Stat. 122; Mills v.
7 Cranch 481; Christmas
5 Wall. 290.
Both the Constitution and the act of Congress and limited in
terms to the records and judicial proceedings of the state courts.
Much discussion of that proposition is unnecessary, as it has long
since been established by judicial decisions of high authority.
Adams v. May,
33 Conn. 419; Conk.Treat. (5th ed.) 393;
Pepoon v. Jenkins,
2 Johns. (N.Y.) Cas. 119; Williams
14 Pa.St. 228.
Beyond all doubt, the certificate of the clerk and the seal of
the court is a sufficient authentication of the record of a
judgment rendered in a state court, when offered in evidence in the
circuit court sitting within the same state where the judgment was
rendered. Mewster v. Spalding,
6 McLean 24. Held also that
such an authentication would be sufficient in the state court, and,
if so, that it would also be good in the circuit court.
Art. 4, sec. 1, of the Constitution provides that full faith and
credit shall be given in each state to the public acts, records,
and judicial proceedings of every other state, and that Congress
may, by general laws, prescribe the manner in which such records
shall be proved, and the effect thereof. Congress
Page 95 U. S. 423
has exercised that power, and provided in effect that they shall
be authenticated by the attestation of the clerk under the seal of
the court, with the certificate of the judge that the attestation
is in due form. Bissell v. Briggs,
9 Mass. 461; Bank
of the United States v. Merchants' Bank of Baltimore,
Records of state courts, in order that they may be admissible in
the courts of other states, must be authenticated as required in
that provision; but the act of Congress does not apply to the
courts of the United States, nor to the public acts, records, or
judicial proceedings of a state court to be used as evidence in
another court of the same state. Conclusive support to that
proposition is found in many decided cases in addition to those to
which reference has already been made. Jenkins v. Kinsley,
3 Johns. (N.Y.) Cas. 474; Adams v. Lesher,
(Ind.) 241; Murray v. Marsh,
2 Hayw. (N.C.) 290.
Circuit and district courts of the United States certainly
cannot be considered as foreign in any sense of the term, either in
respect to the state courts in which they sit, or as respects the
circuit or district court of another circuit or district. On the
contrary, they are domestic tribunals, whose proceedings all other
courts of the country are bound to respect, when authenticated by
the certificate of the clerk under the seal of the court, the rule
being that the circuit court of one circuit or the district court
of one district is presumed to know the seal of the circuit or
district court of another circuit or district, in the same manner
as each court within a state is presumed to know and recognize the
seal of any other court within the same state. Womack v.
7 Port. (Ala.) 513.
Attempt was made in the Supreme Court of Massachusetts to
exclude the record of a conviction in the criminal court, upon the
ground that it was not duly authenticated, it appearing that it was
certified by the clerk under the seal of the court without the
certificate of the Chief Justice; but the Supreme Court held, Shaw,
C.J., giving the opinion, that the copy of the proceedings of any
court of record in that state, certified to be a true copy of the
record of such court by the clerk of such court, under the seal
thereof, is competent evidence of the existence of such record in
every other judicial tribunal
Page 95 U. S. 424
in the commonwealth. Commonwealth v. Phillips,
(Mass.) 30. Since that time, it has been held by that court that it
is not necessary, in order to render a copy of a record of a court
in that state competent evidence in another court of the state,
that it should be an exemplified copy under the seal of the court,
if it is duly certified by the clerk as a true copy of the record.
Chamberlin v. Ball,
15 Gray (Mass.) 352; Ladd v.
4 Mass. 402.
Three-quarters of a century ago, it was decided by the supreme
court of New York that a record of a judgment rendered in the
Circuit Court of the United States for the District of
Massachusetts was admissible in evidence, it appearing that it was
authenticated in the ordinary method practiced in the courts of
that commonwealth, and they placed their decision upon two grounds:
1. that the record was the record of a federal court; 2. that the
act of Congress requiring exemplification did not apply in such a
case. Jenkins v. Kinsley,
Col. & C. (N.Y.) Cas.
Viewed in the light of these authorities, to which many more
might be added, we are all of the opinion with the Supreme Court of
Connecticut, that it is not absolutely necessary that the record of
a judgment should be authenticated in the mode prescribed by the
act of Congress referred to, to render the same admissible in the
courts of the United States; that the district court of the United
States, even out of the state composing the district, is to be
regarded as a domestic and not a foreign court, and that the
records of such a court may be proved by the certificate of the
clerk under the seal of the court, without the certificate of the
judge that the attestation is in due form. Adams v. Way,
33 Conn. 419; Michener v. Payson,
13 N.B.R. 50; Mason
1 Cranch C.C. 190.
Bankruptcy proceedings are in all cases deemed matters of
record, and are to be carefully filed and numbered; but they are
not required to be recorded at large. Short memoranda of the same
shall be made in books provided for the purpose, and kept in the
office of the clerk, and the provision is that the books shall be
open to public inspection. Copies of such records, duly certified
under the seal of the court, shall in all cases
Page 95 U. S. 425
be prima facie
evidence of the facts therein stated. 14
Suffice it to say, that the records of the bankruptcy
proceedings admitted in evidence by the court below were
authenticated in exact conformity with the directions of the
Bankrupt Act, and were, in the judgment of the court, properly
admitted in evidence, which is all that need be said in response to
the fifth exception.
Exceptions were also taken to the rulings of the court in
refusing to instruct the jury as requested by the defendant, and to
the instruction given to the jury; but it is not necessary to give
those exceptions a separate examination, for the reasons that the
material questions involved are substantially the same as those
presented in the exceptions to the rulings of the court, already
sufficiently considered. Even suppose the assignment of errors
presents all the questions involved in the exceptions, still it is
clear that there is no error in the record.