Goesele et al. v. Bimeler et al.

the society has the means of perpetuating its existence, it may be said to depend for its continuance, on the will of a majority of its members.

As the law now stands in England, a conveyance by executory devises, to be good, cannot extend beyond a life or lives in being, and twenty-one years and the fraction of another year, to reach the case of a posthumous child. Atkinson v. Hutchinson, 3 P. Wms. 258; Long v. Blackall, 7 Term, R. 100.

There are many depositions in the case, taken in behalf of the complainants, by persons who have been expelled from the society, or, having left it, show a strong hostility to Bimeler. They represent his conduct as tyrannical and oppressive to the members of the association, and as controlling its actions absolutely. And several instances are given to impeach his moral character and his integrity. Two of the witnesses say that he drives a splendid carriage and horses.

In regard to the carriage, it is proved to be a very ordinary one, worth about three hundred dollars, one of his horses worth about twenty dollars and the other thirty or forty. By respectable persons out of the society, Bimeler's character is sustained for integrity and morality, and several instances are given where, even in small matters, he deferred to the decision of the trustees against his own inclination. And many facts are proved wholly inconsistent with the charge of oppression.

That Bimeler is a man of great energy and of high capacity for business, cannot be doubted. The present prosperity of Zoar is evidence of this. There are few men to be found any where, who, under similar circumstances, would have been equally successful. The people of his charge are proved to be moral and religious. It is said that, although the society has lived at Zoar for more than thirty years, no criminal prosecution has been instituted against any one of its members. The most respectable men who live near the village say, that the industry and enterprise of the people of Zoar have advanced property in the vicinity ten per cent.

Bimeler has a difficult part to act. As the head and leader of the society, his conduct is narrowly watched, and often misconstrued. Narrow minds, in such an association, will be influenced by petty jealousies and unjust surmises. To insure success these must be overcome or disregarded. The most exemplary conduct and conscientious discharge of duty may not protect an individual from censure. On a full view of the evidence we are convinced that, by a part of the witnesses, great injustice is done to the character of Bimeler. On a deliberate consideration of all the facts in the case, we think there is no ground to authorize the relief prayed for by the

Deacon v. Oliver et al.

complainants. The decree of the Circuit Court is therefore affirmed.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Ohio, and was argued by counsel. On consideration whereof it is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby, affirmed with costs.

JOHN DEACON, APPELLANT, V. CHARLES OLIVER AND ROBERT M. GIBBES, EXECUTORS OF ROBERT OLIVER, deceased.

Under the attachment laws of Maryland. a share in the Baltimore Mexican Company, which had fitted out an expedition under General Mina, was not, in 1827, the subject of an attachment under a judgment, whether such share was held by the garnishee under a power of attorney to collect the proceeds, or under an equitable assignment to secure a debt.

The answers of the garnishce to interrogatorics filed, were literally correct. He had not in his hands any "funds, evidences of debt, stocks, certificates of stock," belonging to the debtor, nor "any acknowledgment by the Mexican government," on which an attachment could be laid.

THIS was an appeal from the Circuit Court of the United States for the District of Maryland, sitting as a court of equity.

The bill was filed by John Deacon, the surviving partner of Baring, Brother & Company, of London, under the following circumstances:

In 1821, Baring, Brother & Company obtained a judgment, in the Circuit Court of the United States for the District of Maryland, against one Lyde Goodwin for $60,000, upon a bill of exchange, to be released on payment of $41,005.58, with interest and costs. Goodwin was at this time the owner of one ninth share in the Mexican Company, the history of which is given in the report of the case of Gill v. Oliver's Executors, 11 How. 529. This judgment was kept alive until the issuing of the attachment hereafter spoken of, in 1826.

On the 19th of July, 1823, the government of Mexico passed a decree, declaring that General Mina, amongst other persons, was a benefactor of his country; and on the 28th of June, 1824, another decree, acknowledging the debts contracted by the Generals declared to have been benefactors.

On the 11th of January, 1825, Lyde Goodwin addressed a

Deacon v. Oliver et al.

letter to Mr. Oliver, which is too long to be inserted, but which was of the following tenor. He states the claim to have been acknowledged by Mexico; that the amount of his original proportion of the claim, exclusive of interest, was twenty thousand dollars; that his object in proposing to assign his interest therein was, 1st, to secure to Oliver the sum he already owed him; and 2d, to obtain barely the means of support for the present, and that the additional sum he would acquire, should not exceed $2,000.

Between this date and June, 1825, Oliver paid to Goodwin $2,000, and received an assignment of the share from Brown, the trustee in insolvency of Goodwin.

On the 22d of March, 1825, the company appointed Oliver their attorney to prosecute the claim, and informed him that Goodwin was entitled to a commission of five per cent. in addition to his one ninth share.

On the 28th of October, 1826, an attachment under the act of Maryland, of 1715, was issued upon the judgment against Goodwin, and laid in the hands of Oliver, as garnishee. At the same time, the following interrogatories were filed, which the garnishee was required to answer.

Interrogatory 1. Had you, at the time of laying the attachment in the above cause, in your hands, or at any other time, and when, any funds, evidences of debt, stocks, certificates of stock, belonging to Lyde Goodwin, or any acknowledgment of aubt due by the government of Mexico to the said Lyde Goodwin?

2. Did not the said Lyde Goodwin transfer to you some certificate of stock, or evidence of debt due by the said Mexican government to Goodwin, or some document of that character, and when did such transfer take place?

3. Had you not a claim against said Goodwin, secured by a transfer or pledge of some certificate of stock, or document of a public character, showing that Goodwin was entitled to receive some funds from the Mexican government? If so, what was the amount of your claim so secured, and what was the security; was, or was not, the balance or remaining credit, under your control at the time of laying the attachment? State particularly how your claim was secured.

4. Do you know any other matter or thing that may be of advantage to the plaintiffs, in the above cause? If so, state it as fully as if you were particularly interrogated thereto.

In December, 1827, Oliver filed the following answers:

1. To the first interrogatory he answers: That he had not, at the time of laying the attachment in the above cause in his hands, nor at any other time, any funds, evidences of debt,

Deacon v. Oliver et al.

stocks, or certificates of stocks, belonging to Lyde Goodwin, or any acknowledgment of debt due by the government of Mexico, but that he had a power of attorney signed by said Lyde Goodwin, in conjunction with several other persons, claimants of a debt alleged to be owing by the Mexican government, and authorizing him to claim and receive the same for the benefit of said Goodwin's assignees and others.

2. To the second interrogatory he answers: That the said Goodwin did not transfer to him any certificates of stock or evidences of debt due by the Mexican government, or documents of that character, unless the before-mentioned power of attorney may be called one.

3. To the third interrogatory he answers: That he had, and still has, a large claim against said Goodwin for money lent him from time to time; that he is not secured for this debt, and never has been secured, by a transfer or pledge of some certificate of stock, or document of a public character, showing that Goodwin was entitled to receive.some funds from the Mexican government, unless the aforesaid power of attorney be deemed such, Lut which he does not admit it to be.

4. To the fourth interrogatory he answers: That he knows nothing.

On the 10th of January, 1829, the counsel for the Barings caused the following entry to be made upon the docket, relative to the attachment: "Discontinued without costs."

On the 30th of May, 1829, Oliver obtained from Goodwin the following paper:

"Being indebted to Robert Oliver, of Baltimore, upwards of nine thousand dollars, I hereby assign, transfer, and make over to the said Robert Oliver, in payment of my debt to him, the following objects, which were assigned to him many years ago, to secure the payment of the said debt due by me, to wit, all my undivided ninth part, and right, title, and interest of every kind whatsoever, in the claim on the government of Mexico for supplies furnished, and advances made, to the late General Mina, or the proceeds thereof, and which claims are under the control of the said Robert Oliver and his agent, John Mason, Jr., now in Mexico; also a claim on a certain Louis Merwin, who died some years ago in Havana. The object and intention of this assignment, is to make a full and complete transfer to the said Robert Oliver of all my right, title, and interest, as aforesaid, for which said Robert Oliver has agreed to balance my account on his books, and to consider the same as satisfactorily settled; and I hereby authori and order all my agents, or those holding any powers of atto ey or instructions from me

Deacon v. Oliver et al.

relative to the aforesaid property, to account with the said Robert Oliver for the same, or the proceeds thereof.

"Baltimore, May 30, 1829. "Witness-JOHN THOMAS.

"I confirm the above agreement.

"L. GOODWIN.

ROBERT OLIVER."

This claim was prosecuted under the treaty between the United States and Mexico, with the following result:

On the 11th of April, 1850, there were paid to Oliver's executors (he having died in 1834) the following sums, being net proceeds:

On account of Goodwin's commissions

22,143.12 35,110.47

$57,253.59

In November, 1850, Deacon filed his bill against the executors, alleging that the answers of Oliver were untrue and evasive, by means of which deception the attachment had been discontinued; that at the time when it was laid, Oliver had under his control the evidences of debt due by the Mexican government; that so far from having a mere power of attorney from Goodwin to collect the debt, he had a transfer of the claim for the purpose of security, which, being irrevocable, was, by the laws of Maryland, the subject of an attachment, &c.

The executors of Oliver answered, and upon a hearing of the cause, the Circuit Court dismissed the bill, when the complainant appealed to this court.

It was argued by Mr. Davis and Mr. Howard, for the appellant, and Mr. Campbell and Mr. Johnson, for the appellees.

As the decision rested mainly upon one point of the case, namely, that, at the time of laying the attachment, Oliver had no interest which was attachable, many of the arguments of counsel upon other points, are omitted.

The following extract from the brief of Mr. Davis contains his view of the leading points of the case.

1. That a debt due by a foreign or domestic government is assignable, passing, by insolvency, to executors or administrators, and liable for debts of claimant, and liable to all the incidents of other debts, excepting that it cannot be enforced by suit. Comegys v. Vasse, 1 Pet. 193, 215, 217; Sheppard v. Taylor, 5 Pet. 675; Plater v. Scott, 6 Gill & Johns. 116; Gorgier v. Mieville, 3 Barn. & Cress. 45; 10 E. C. L. R. 16.

2. That the Court of Appeals of Maryland have decided,