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months limitation. The time of the con- thereafter, without notice to the appellee, firmation of the sale was uncertain, and, and on the single affidavit of appellant inasmuch as the six months, by the decree that the property was worth over $5,000, of March 18, 1886, was to run from the con- an appeal was allowed. Subsequently, firmation of the sale, the purchasers were and at the same term, the appellee filed in put upon inquiry to see that the terın of the circuit court a motion to set aside the six months was not varied by the decree order allowing an appeal, and, to sustaina of confirmation. If the purchasers bad her motion, the affidavits of 16 citizens* objected to the decree of confirmation be- of Hot Springs, among them the collector cause it destroyed the six-months limita- of taxes and sheriff and several real-estion, they could either have asked the tate brokers, showing that the value of court not to insert such a provision, and, the property was not to exceed $3,500, on its refusal, have appealed to this court, and probably not over $2,500. Upon this or have declined to be bound by the sale, testimony the circuitcourt made an order on the ground that the new terms varied setting aside and vacating the allowance from those contained in the decree of sale. of an appeal, with leave to the appellant It was within the discretion of the court to renew his motion therefor, and file ad. to abrogate the six-months limitation, ditional a fidavits as to the value of the the fund being substantially a fund in property. Appellant took no further accourt. Brooks v. Gibbons, 4 Paige, 374; tion. Prior, however, to the filing of Burchard v. Phillips, 11 Paige, 70; Grinnell this motion, the citation had been served v. Insurance Co., 16 N. J. Eq. 283; Lashley on appellee, and the record filed in this v. Hogg, 11 Ves. 602; Hurley v. Murrell, 2 court. The appeliee now moves to disTenn. Ch. 620. That being so, as the rec- miss the appeal on the ground that there ord does not show on what grounds the is not $5,000 involved in tbe controversy. court ucted, the presumption must be that A. H. Garland and H. J. May, for appelIt properly exercised its discretion. The lant. John McClure, fur appellee. first and third questions are answered in the affirmative, and the second question Mr. Justice Brewer, after stating the in the negative, and the judginent is af- facts as above, delivered the opinion of the firmed.

court. (141 U. S. 557)

The motion to dismiss the appeal must RECTOR v. LIPSCOMB.

be sustained. Upon the entire testimony

finalls presented to the circuit court and (November 16, 1891.)

transmitted in the record, original and APPEAL JURISDICTIONAL AMOUNT --How DETER- supplemental, to this court, the proof is MINED-AFFIDAVITS.

overwhelming that the value of the propA bill to declare a trust in land was dis

erty did not exceed $5,000; and this positive missed by the circuit court, and an appeal was allowed on complainant's affidavit that the prop

testimony is reinforced by all that appears erty was worth more than $5,000. After the rec.

in the case in respect to its situation and ord was filed in the supreme court, the appelle condition. There is little room for doubt moved the circuit court to set aside the order al. on this matter, notwithstanding the opinlowing the appeal, and fled numerous affidavits ion of appellant tbat the property is that the land was worth less than $5,000, and worth over $5,000. It is not in the power upon this evidence the motion was granted. Ap- of the circuit court to determine the expellant was present at the hearing, and made

tent and limits of our jurisdiction, for that no objection to the court's jurisdiction, and was given leave to file counter-affidavits. By stipu

is a matter which this court must finally lation these matters, including the affidavits,

decide for itself. The practice which is to were brought up by a supplemental record, and be pursued, and the rules which are tu & motion was made to dismiss the appeal. Held control, have beep clearly and fully stated that, although the case had passed from the cir- by the chief justice in the recent case of cuit court's jurisdiction, and its action was with.

Cattle Co. v. Needham, 137 U. S. 632, 11 out authority, yet the supreme court would con

Sup. Ct. Rep. 208, in which this court, sider the additional affidavits on the motion to dismiss.

while deciding that, where the value is

not definitely determined by the pleadAppeal from the circuit court of the ings or decree, it should generally be set. United States for the eastern district oftled in the first instance by the circuit Arkansas. Dismissed.

court upon notice and testimony, and Suit by Henry M. Rector against Matil- | not upon additional testimony here, also da Lipscomb to declare a trust in lands, held that the showing made in that case and to secure a conveyance thereof. Bill in the circuit court by affidavits was not dismissed, and plaintiff appeals. Heard sufficient to establish a value in excess on motion to dismiss the appeal,

of $5,000, and therefore dismissed the writ The facts of the case fully appear in the of error. In this case, by a like showing, following statement by Mr. Justice Brew- the value clearly did not exceed $5,000, ER:

and therefore we have no jurisdiction. On April 29, 1884, appellant filed his billThis is not like the case of Gage v. Pumin the circuit court of the United States for pelly, 108 U. S. 164, 2 Sup. Ct. Rep. 390, the eastern district of Arkansas, alleging where the affidavits left the matter doubtthat he was the equitable owner of lot 10, ful, and therefore we declined to dismiss in block 125, in the town of Hot Springs, | the appeal which had been allowed by the Ark.; that the legal title stood in the circuit court. Nor is it sufficient answer name of defendant; and praying that she to this that the circuit court had no powbe adjudged a trustee for his benefit, and er to set aside the order allowing aii apordered to convey the premises to him. / peal after the appeal had been perfected On the final hearing a decree was entered, and the record filed here, (Keyse. v. Farr, dismissing the bill. Nearly two years | 105 U. S. 265;) for, under the circumstances,

•560

It is no more than right that we should companied by a statement that the insured would consider these subsequent affidavits. The

make further claim for the expense of raising appellant was present at the hearing of

the vessel. After a conference between the this motion. It does not appear that he

owner and a committee of the insurance com

panies, a paper was signed reciting that the loss raised any question as to the power of and damage by fire which occurred to the vessel the court to entertain it, and he was giv. was adjusted for $15,364.78, (the exact sum coven leave to file additional affidavits if he ered by the proofs already furnished,) "payadesired. All tbese matters, including the ble, without discount, upon presentation of the affidavits, are presented to this court by policies to the several companies by the assured, a supplemental record brought up by stip

etc. In accordance therewith the sum was paid ulation of parties. While the order set

nearly two months before actually due by the

terms of the policies, and receipts in full were ting aside the allowance of an appeal may

given to the companies, respectively. Held, have been ineffectual because the case had that parol evidence was admissible to show that passed out of that into this court, yet this settlement referred only to the damage to these affidavits of value, one by the plain- the vessel, and that the expense of raising her tiff and sixteen by the witnesses of the de- was left open for future adjustment. fendant, were all filed in that court, filed 2. Although the payment of one-half the lia

bility before it was due was a sufficient consid. for the purpose of determining the right

eration for releasing the claim to the remainder, to an appeal, and have all come regularly

if so intended by the parties, yet parol evidence before us, and are presented for our consid. was admissible to show that it was not so ineration. Although, in a doubtful case, tended, but was a mere waiver by the insurance we shall not disturb the ruling of a cir- companies. cuit court granting or vacating an appeal, 3. A clause in the receipts reciting that the yet, when we are fully satisfied that the policies were thereby surrendered and canceled, amount in controversy is not sufficient to

and all claims thereunder forever waived, was give us jurisdiction, we ougiit not to at

not a contract, which would take the instrument

out of the rule which admits parol evidence to tempt an inquiry into the merits of the

show that a receipt expressed more than was incase which is sought to be appealed. Un- tended, when such clause was inserted in pursuless we exercise a supervising power over ance of a provision in the policies that the in. these matters, many cases might be thrust surer might, at its option, terminate the same upon our consideration through the in- upon notice to the insured, in which case the attention of the trial court, or the mistake

latter was entitled to a ratable proportion of the or wrong of the defeated party, which are

premiums for the unexpired term. not, in fact, within our jurisdiction. Up- In error to the circuit court of the Unite on the testimony which is called to our ed States for the eastern district of Michi. attention by the action of the circuit court gan. Affirmed. and the certificate of the circuit clerk in Action by John W. Wickham, Jr., and such manner that we cannot shut our others against the Fire Insurance Assoeyes to it, it is obvious that the amount ciation, Limited, upon a policy of fire inin controversy is not sufficient to give us surance. The question arises on a certifijurisdiction. Under the circumstances, cate of division of opinion between the it would be sacrificing substance to form, circuit and district judges as to the adand assuming a jurisdiction which we do missibility of certain parol evidence. The not huve, to hold that because this testi. evidence was admitted at the trial, and mony did not get before the trial court verdict and judgment were rendered for in time for its primary action it must be plaintiffs. Defendant brings error. wholly ignored by us. It reaches us be- The other facts in the case fully appear fore we are called upon to act, and comes in the statement by Mr. Justice BROWN: to us from that court. We hold that, un. * This case was brought before the court: der all the showing that is presented, the upon a certificate of division of opinion amount in controversy is not sufficient to between the circuit and district judges. give us jurisdiction, and there'ore the ap- The action was begun in November, 188+, peal must be and is dismissed.

upon two policies of fire insurance written

by the Fire Insurance Association, deiendMr. Justice Bradley and Mr. Justice ant, upon the propeller St. Paul, of which Gray did not hear the argument or take defendants in error wereo o wners, one of part in the decision of this case.

such policies being for $3,500, and the other

for $1,500. On the same day actions were (141 U. S. 564)

begun against six other insurance compa. FIRE INSURANCE Ass'n, Limited, v. WICK

nies upon their policies on the same vesHAM et al.

sel, and an order was subsequently made

that all the actions so commenced should (November 16, 1891.)

abide the event and final determination of PAROL EVIDENCE-COMPROMISE-RECEIPTS — FIRE

the one which the plaintiffs should elect INSURANCE.

to try. The following facts appeared upon 1. A fire broke out in the hold of a vessel,

the trial: In 1883 the plaintiffs, who were and, in order to save her and her cargo, she was

the owners of the propeller St. Paul, en. scuttled and supk. She was afterwards raised at gaged in navigating the Great Lakes, oban expense of about $15,000, and the damage to tained upon her fire insurance policies in the vessel and furnishing was found to be about 10 companies, to the amount of $10,000. the same in amount. An agreement was entered Plaintiffs also had $45,000 of insurance by into between the owner and the insurance agents for adjusting the loss, which provided that such

marine policies on the same vessel at the adjustment related only to the damage to the

saine time. In all of these policies save property covered, and did not apply to "any

one, it was provided that, in case of loss question that may arise for saving boat and

by fire, the loss should be payable in 60 Proofs of loss made out on this basis days after proofs of loss had been filed were forwarded to the different companies, ac- with the company. On November 10, 1883,

cargo.”

while on a voyage from the lower lakes to not been paid any part of the cost of rais. Lake Superior, a fire broke out in the holding and saving the vessel; that before the of the vessel, and to save her and her car commencement of this suit they demanded go she was scuttled and sunk, and the fire payment thereof, which was refused, the thus extinguished. She was subsequently insurers denying liability therefor; ando raised, and brought to Detroit for repairs, that the same remained unpaid. where she arrived on the 19th of Novem The defendant claimed that the payment ber, and immediately began to discharge of the cost of repairs was made by way her cargo. A few days thereafter, and of accord and satisfaction of the plaintiffs' while her cargo was being unloaded, an entire claim, and offered in evidence the other fire broke out in her hold, and she following receipts: was again sunk for the purpose of saving “$1.344.42.

January 19, 1881. ber, and was afterwards raised at consid “Received from the Fire Insurance Asso. erable expense. On the 15th of December ciation of London, England, thirteen hun& written agreement was entered into be- dred and forty-four 42-100 dollars, it being tween the plaintiffs and the adjusting in full of all claims and demands for loss agents of the several insurance companies or damage by tire which occurred on the for the purpose of appraising the amount 10th and 24th days of November, 1883, to of loss caused by these fires, with a stipu- property insured by poliry No. 180,617, lation that the agreement should be “of Buffalo, New York, agency, and in conbinding effect only as far as regards the sideration of said payment said policy is actual cash value of or damage to such hereby canceled and surrendered to said property covered by policies of said com company, and all further claims by virtue panies issued at their various agencies. of said policy forever waived. It was further added that “the property [Signed] John W. WICKHAM, Jr., on which loss or damage is to be estimat

“Managing Owner. ed and appraised is the hull of the pro

* W. B. COMSTOCK. peller St. Paul, including the tackle, a wil

“Per WICKHAM, Jr.” ings, furniture, engine, and boiler connec There was also a receipt indorsed upon tions, and appurtenances thereto belong the policy No. 180,617, as follows: ing;” with a further memorandum, follow

"January 19, 1884. ing the signature of Wickham, but “In consideration of four 47-100 dollars preceding those of the insurance compa return premium, the receipt of which is nies, that “this agreement does not apply hereby acknowledged, this policy is can. to or cover any question that may arise celed and surrendered to the Fire Ipsur. for saving boat and cargo. The adjust ance Association, Limited, of England. ment under this agreement of the direct [Signed] “John W. WICKHAM, Jr., loss by fire was completed December 26th,

"Managing Owner. and formal proofs of loss were also sent

“ W. B. CONSTOCK. to the several insurance companies in New

“Per WICKHAM, Jr." York, and were received in due course of A similar receipt for $576.18 was given mail. The amount of the loss, according by the plaintiffs to the defendant, in form to the report of the appraisers, exclusive precisely like the first, (except as to the of the expense of raising and saving the number of the policy and the amount,) on vessel and cargo thus adjusted, aggregat account of the second policy issued by the ed $15,364.78, and the amount propor-association. Similar receipts, all of the tioped to the plaintiffs in error was $1, same date, except two, which*were a few 920.60. The adjusting agent, in sending days later, were given to the other comproof of loss to the companies, accompa- panies concerned, all of wbich were put in nied the same with the following letter to evidence by the defendant. The receipt each of such companies :

to the Mechanics'Fire Insurance Company “Buffalo, January 12, 1884. was expressed to be "in full satisfaction “Gentlemen: I inclose herewith proofs, of all claims and demands upun said comJohn W. Wickham, Jr., managing owner, pany for loss and dumage by fire,” etc.; for lors and damage prop. St. Paul, which and “in consideration thereof said comI trust will be found satisfactory:

pany is hereby discharged forever from The claim as made covers only the loss

all further claims by reason of suid fire, and damage by fire and water, as per

loss, and damage, and said policy of inagreement, on the tackle, awnings,

surance is hereby assigned, with all claim apparel, furniture, etc., of..

$ 1,735 08 thereunder, to said company, and said And the appraisers' award on bull, en

policy is hereby canceled in full, and surgines, mach'y, etc., of ...... 13,629 70 rendered to said company.

The receipt Aggregating in all............ $15,364 78

to the Loudon & Liverpool & Globe Insur

ance Company was for a sight draft, “The assured will make further claims “which, when paid, will be in full comfor expenses of raising the propeller, and promise and pasment of all claims and de. is not preparing the statement of such ex mands upon said company for loss and penses to submit with his subsequent damage by fire,” etc. The receipts to the claim. Yours, truly,

other companies did not differ materially “W. D. ALLEX, Adjuster.' from those given to the defendant com. At the trial it was admited that the cost pang. of raising and saving the vessel was also The defendant also put in evidence the opwards of $15,000. The plaintiffs admit following paper, signed by the plaintiffs, ted that they had been paid the cost of marked “Exhibit QQ:" repairing the vessel, as set forth in the

“New York. January 19th, 1884. proofs of loss prepared and forwarded to “This is to certify that the loss and the companies, but claimed that they had damage by fire which occurred on the 23rd

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day of November, 1883, to the steamer St. "Exhibit PP,"stating to him that the Paul, is this day adjusted for the sum of same was a record of the proceedings of fifteen thousand three bundred and sixty- the meeting at which they were appointfour and 78-100 dollars, ($15,364.78,) pay- ed such committee, and that their author. able without discount upon presentation | ity was limited by the terms of the resoluof the policies to the several companies tion adopted atsuch meeting and set forth interested by the assured, and appor- in said exhibit, and that they could not go tioned among the several companies as beyond it, or consider this claim for raisfollows, viz. :

ing and saving the vessel, even if they were Insures. Pays.

disposed to do so. Continental,

The paper referred to is as follows: of New

“Exbibit PP. York.... $7,500 00 $2,880 90

“Board Rooms, January 18, 1884. London & Liverpool &

“Meeting of the companies interested in Globe.... 6,000 00 2,304 70-Paid.

loss of propeller St. Paul. Present: Fire Insur

Continental...

$7,500 00 ance Asso

Fire (usurance Association..

5,000 00 ciation...... 3,500 00 1,344 42-Paid.

Queen's...

7,000 00 Queen's, of

Exchange..

2,500 00 England.... 7,000 00 2,668 84-Paid.

Mechanics', New York..

2,500 00 Fire Ins.

Greenwich....

2,000 00 Ass'n, 2 a policy....... 1,500 00 576 18-Paid.

$26,500 00 Security, of

New Haven 2,500 00 960 30-Will remit. * Organized by Mr. Wellman, chairman. Exchange, of

“Communication from John M. Murray, Now York..

2,500 00 960 30-Paid 1, 19, '84. adjuster, at Detroit, in relation to exMechanics', of

penses incurred in saving propeller St. New York.. 2,500 00 960 30—Paid 1, 19,'84. Paul. German, of Pa...... 2,500 00 960 30-Will remit.

“On motion, duly secondedPrescott In

That the request of the assured to help surance Co. 2,500 00 960 30—Remitted. him out is not granted, but the companies Greenwich, of

are recoin mended to pay the amount of New York.. 2,000 00 768 24-Paid 1, 19,'84. claim as set forth in the proofs of loss.

Carried. $40,000 00 $15,364 78

"Meeting adjourned. (Signed] “John W. WICKHAM, Jr.,

[Signed] “G. W. MONTGOMERY. "Managing Owner. On motion, the action of the meeting "W. B. COMSTOCK.

be referred to a committee of two for the "Per John W. WICKHAM, Jr. purpose of conference with the owner. “John K. OAKLEY,

Carried. "J. H. WELIMAN,

“Chair appointed Mr. Oakley and Mr. “Committee.'

Wellmau.” The defendant having rested, the plain. A part of this paper was in the handtits, in rebuttal, offered evidence tending writing of Weitman. to show that in January, 1894, Wickham Plaintiff offered evidence tending to show went to New York, and that on the 18th that the committee further stated that the of January a meeting of the companies in companies were satisfied with the adjustterested in the loss was held at the board ment and proofs of loss, and were ready rooms in New York, at which meeting and willing to pay the cost of making a Messrs. Wellman and Oakley were ap- the repairs to the steamer, necessitated dipointed a cummittee to confer with the rectly* by the fire, without discount, and plaintiffs in regard to such loss. Of this would waive any rights they might have meeting Wickham bad no notice, and was under the policies making the loss payable not present. That on the following day in 60 days from the time the proofs were Wickham met Wellman and Oakley, and furnished. The plaintiffs were never rewas notified by them that they were ap- quested to compromise or release their pointed as such committee, and that the claim for the expense of raising and saving companies were ready and willing to pay the vessel, nor was the release or comprothe expenses of making the repairs occa- mise of such claim spoken of except by sioned by the fire, as set forth in proofs of Wickham when he offered to settle, as loss hereinbefore mentioned.

hereinbefore stated, which offer was deThat Wickham called attention to the clined by the committee, as above stated, claim for raising and saving the vessel, upon the ground that they had no austating that he expected to get a contri- thority to consider the matter. bution to such expense from the owners of Plaintiffs also offered evidence to show the cargo of the vessel upon a general that, at such interview, Mr. Oakley, in bearerage, and for the sake of settlement half of the Mechanics’ Insurance Com. offered to share the balance of such ex- pany, gare to Wickham a check for the pense with the fire insurers in the propor- amount of the loss adjusted as aforesaid tion that the uninsured interest in the against the company, being $960.30, and steamer bore to the amount insured. Wickham then signed the aforesaid re Thut the committee replied that the com- ceipt for that aniount to the company; panies were not liable for such expense, and, after the receipts were signed and deand that they had no authority whatever livered, the paper (Exhibit QQ) was preto consider the claim for raising and sav. pared under the direction of Oakley, and ing the steamer, and thereupon gave to given to Wickham to exhibit to the repreWickham the following paper, marked sentatives of other companies to show the

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held the question to have been improper. 128 U. S. 426, 9 Sup. Ct. Rep. 113.

C. I. Walker, for plaintiff in error. H. Canfield and Jos. H. Choate, fur defendants in error.

673

amount of the adjusted loss which had been apportioned against the companies respectively.

The defendant objected to the introduction of this parol testimony as tending to contradict the receipts and drafts given in evidence and the certificate of January 19th, (Exhibit QQ,) showing the apportiopment of the loss to be paid by the several companies, upon the ground that such eridence was not admissible in the absence of fraud, misrepresentation, and mistake. These objections were overruled by the presiding judge, and the evidence was received and submitted to the jury.

Upon the question of the admissibility of this testimony, however, there was a difference of opinion between the circuit and the district judges; and the following question was certified for the opinion of this court: “On the facts stated in the foregoiog record, was the parol testimony offered in evidence by the plaintiffs admissible to vary and contradict the certificate of January 19th, (Exhibit QQ,) and the receipts and drafts hereinbefore set forth?”

T'bis testimony having been introduced, the defendant offered evidence tending to contradict the same, and to show that the*whole matter arising out of the loss was intended to be compromised and settled by what took place between the par. ties at the meeting in New York. There was no evidence that the agreement, (Ex. hibit QQ,) or the receipts and discharges executed by the plaintiffs, were obtained by any fraud or misrepresentation of the defendants or their agents. The amount thus paid to the plaintiffs upon the settlement in New York was the exact amount claimed in the proofs of loss, but it was paid about 55 days before the same was due and payable, as by the terms of all the policies, eare one, the amount of the loss was not payable until 60 days after the prnofs of the loss were furnished to the insurance companies, and this was not earlier than January 14th. In the charge to the jury, the court instructed them that this payment before the amount became due was a good consideration for the settlement and discharge of the whole claim, if such settlement were actually made, and if it was so understood and agreed by the parties. The defendant claimed that the certifcate and apportionment of January 19th, together with the receipts and drafts, as a matter of law, showed a full settlement of the entire claim, and an accord and satisfaction thereof. The plaintiffs claimed that the settlement related solely to the loss covered by the proofs of loss, and was not intended to, and did not, embrace the claim for raising the vessel and cargo, and saving the same.

The question what the parties intended by said settlement was submitted to the jury under the charge of the court, and upon such parol testimony and papers a verdict was rendered for the plaintiffs for the sum of $2,297.65, and a judgmeat for this amount was accordingly entered. A second question was certified, as to whether the defendant was entitled to a verdict under the facts in said record therein set forth; but, upon a motion to dismiss, this court

* Mr. Justice Brown, after stating the facts as above, delivered the opinion of the court.

As we held in this case, on the motion to dismiss, (Association v. Wickham, 128 U. S. 426, 9 Sup. Ct. Rep. 113,) that the second question was improperly certified, and could not be answered, the only question now presented for decision is the first, namely: "On the facts stated in the foregoing record, was the parol testimony offered in evidence by the plaintiffs admissible to rary and contradict the certificate of January 19th, (Exbibit QQ,) and the receipts and drafts hereinbefore set forth?

We have no disposition to overrule or qualify in any way the general and familiar doctrine enforced by this court in repeated decisions, from the case of Hunt v. Rousmanier's Adm’rs, 8 Wheat. 174, (decided in 1823.) to that of Seitz v. Refrigerativg Mach.Co., 12 Sup. Ct. Rep. 46,(decided at the present term,) that parol testimony is not admissible to vary, contradict, add to, or qualify the terms of a written instru. ment. The rule, however, is subject to numerous qualifications, as well established as the general principle itself, ainong which are that such testimony is admissible to show the circumstances under which the instrument was executed, or that it was in fact without consideration.

It was not seriously contended in this case that the defendant was not legally liable upon its policies for the expenses, clearly incidental to the fire, of raising and saving the vessel, as well as for the direct injury to the vessel in consequences of the fire, and if the plaintiffs were in. duced to settle their claims for one-hall the amount that was due them, and there was no consideration for the relinquishment of the other half, this suit will lie for the recovery of the amount. The rule is well established that where the facts show clearly a certain sun to be due from one person to another, a release of the entire sum upon payment of a part is without consideration, and the creditor may still sue and recover the residue. If there he a bona fide dispute as to the amount due, such dispute may be the subject of a compromise and payment of a certain sum as a satisfaction of the entire claim; but where the larger sum is admitted to be due, or the circumstances of the case show that there was no good reason to donbt that it was due, the release of the whole upon payment of part will not be considered as a compromise, but will be treated as without consideration and void. As was said by Chief Justice WAITE in U. S. v. Bostwick, 94 U. S. 53, 67: “Pryment by a debtor of a part of his debt is not a satisfaction of the whole, except it be made and accepted upon some new consideration;" although it was subsequently held in Baird v. U. S., 96 U. S. 430, that if the debt be unliquidated, and the amount uncertain, this rule does not apply. “In such cases the question is

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