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M. Ins. Co. 5 Ins. Law J. 858; Smith v. Lloyd, 26 Beav. 507; Trott v. City Ins. Co. 1 Cliff. 439; Millaadon v. Atlantic Ins. Co. 8 La. 557; Nute v. Hamilton Mut. Ins. Co. 6 Gray, 174; Cobb v. New Eng. M. M. Ins. Co. Id. 192; Amesbury v. Bowditch M. F. Ins. Co. Id. 596; Allegro v. Ins. Co. 6 Har. & J. (Md.) 413.

(2) The condition at most is a collateral condition, not a condition precedent. Cases supra; also, U. S. v. Robeson, 9 Pet. 326; Dawson v. Fitzgerald, 24 W. R. 773, (also 3 Cent. Law J. 477;) Scott V. Avery, 5 H. L. Cas. 811.

(3) A plea setting up an agreement to arbitrate is bad in an action at law. Tscheider v. Biddle, 4 Dill. 55. See, further, Liverpool, L. & G. Ins. Co. v. Creighton, 51 Ga. 95; Kill v. Hollister, 1 Wils. 129; Goldstone v. Osborn, 2 Car. & P. 550; Roper v. Lendon, 28 Law J. Q. B. 260; Alexander v. Campbell, 41 Law. J. Ch. 478; Robinson v. George's Ins. Co. 17 Me. 131; Tobey v. Co. of Bristol, 3 Story, C. C. 800.

(4) In a case like this, where the company refuses to make an as. sessment, the amount of recovery is the maximum amount named in the certificate. Lueders' Ex'r v. Hartford L. & A. Ins. Co. 12 FED. REP. 471. And the averments are made in the amended petition sufficiently distinct to bring it within the rule announced in Curtis y. M. B. L. Co. 48 Conn. 98.

(5) The prospectus is a part of the policy and both are to be construed together. Bliss, Life Ins. $$ 397-400; May, Ins. $$ 355, 356; Ruse 7. Mut. L. Ins. Co. 24 N. Y. 653; Cent. Ry. Co. v. Kisch, L. R. 2 H. L. Cas. 99; Wheelton v. Hardisty, 8 El. & Bl. 282; Wood v. Dwarris, 11 Exch. 493.

Davis & Davis and Newman & Blake, for defendant.

TREAT, J. A motion bas been filed to strike out parts of the answer to this amended petition, which motion raises the same question heretofore decided, varied, it is contended, by new averments. It is stated in the amended petition that defendant “guarantied” payment of the maximum stated in the policy; but there is nothing to sustain such an allegation; indeed, the whole tenor and scope of the policy is to the contrary. It is further averred that the defendant refused, as agreed, to make the stipulated assessments on policy-holders, whereby it became liable for the maximum amount, despite the positive terms of the contract; and liable also, in an action at law, regardless of the express agreement that resort should be had only to proceedings in equity to enforce assessments. In deciding the demurrer to the original petition, leave was given to the plaintiff to file a bill to compel an assessment; but, instead of filing a bill for that purpose, he has filed an amended petition at law, which leaves the case just as it was before, so far as legal propositions are involved. The contract of insurance was peculiar, as under its terms the respective persons insured were bound to contribute to death losses according to the shifting provisions mentioned; and the defendant bound itself merely to pay over what should be assessed and collected—nothing more; and to make it certain and definite that its obligation was not to extend further, it was expressly agreed that it should be liable only to the stipulated proceedings in equity.

It is contended that the restrictive clause as to the remedy is void, and many cases are cited in support thereof, supposed to be analogous. That question was previously before this court and involved in its decision on the demurrer, wlierein an adverse conclusion was reached; from which there in no reason to depart. Indeed, if the subject were driven to a full analysis it would appear that a different conclusion would involve many strange absurdities, The parties agreed, one with the other, to many rules for determining their respective obligations and liabilities, dependent on the number of persons assured, the amounts for which they were respectively assured, etc., and to make sure as to the obligations of the defendant, and the means of enforcing the same in the only just, feasible, and equitable manner, stipulated that only a suit in equity should be resorted to. How else could it be ascertained what was done to the plaintiffs? An assessment must be made, dependent on the shifting conditions mentioned in the policy, collections enforced, etc.; defendant being liable only for the amount of assessments collected. It did not agree to pay any fixed sum, but merely to pay the amount collected from assessments, not exceeding the sum limited; and therefore provided for appropriate proceedings in equity to adjust the dispute, if any, between the parties. It is not for the court to comment on the wisdom or folly of such contracts. If parties choose to enter into them, they are bound by their terms, in the absence of fraud, unless they are contra bonos mores.

There is nothing shown to void the agreement the parties voluntarily entered into, and hence this court adheres to the de. cision heretofore made in this case, viz., that redress must be sought in equity alone.

The views of this court in a case somewhat like that under consid. eration were limited, and suggestively, in the published opinion then given. Lueders' Ex'r v. Hartford L. & A. Ins. Co. 12 FED. REP. 465. It is not held that there may not be cases where resort can be had to a common-law remedy under contracts like that in question, but it is held, as expressed on demurrer in this case, that the clause in the contract as to the mode of ascertaining the rights of the parties is obligatory, (18 Fed. REP. 14,) with the possible exceptions suggested.

Suppose there was not a valid defense, as in the Lueders Case, and it was ascertained that a mortuary loss had occurred, how could the amount to be recovered be ascertained ? It was hinted that under the facts and circumstances of that case certain rules might obtain; but there was no question there raised as to a contract limitation with respect to the mode of ascertaining the amount of the liability. The mode prescribed in this case by the contract between the parties, considering their relations to each other, was the most practicable and equitable that could be adopted, and does not fall within any of the prohibitory rules stated in the many cases cited, as to ousting courts of jurisdiction, and enforcing or refusing to enforce agreements for arbitration. The answer sets up as a defense the clause in the contract commented upon, which this court has heretofore held, and still holds, to be a valid defense to this action at law.

The motion to strike out is overruled, and the plaintiff left, as heretofore held, to the remedy in equity to which he agreed sole resort. should be had.

MOCRARY, J., concurs.

BLAKE and others v. HAWKINS and others.'

(Circuit Court, E. D. North Carolina. November Term, 1883.)


Where money is paid to a clerk, under a judgment of court, he receives it,

not as the agent of either party, but as the agent of the law. 2. JUDGMENT_ORDER OF COURT.

A judgment is an order of court, within the meaning of section 828 of the Revised Statutes of the United States. 3. CLERK'S COMMISSIONS- Costs-Rev. St. 828.

A clerk who receives, keeps, and pays out money under a judgment is entitled to a commission of 1 per cent. on the amount so received, (Rev. St. $ 828,) to be paid by the defendant as part of the costs.

At June term, 1883, the complainants recovered a judgment against the defendants for $29,355, and costs. Thereupon, before an execution was issued, the defendants paid into the clerk's office the amount of the judgment and costs, except a commission of 1 per cent., which the clerk claimed under Rev. St. § 828; the defendants denying the right of the clerk to any commission, and claiming that, in any view, they were not liable for it.

E. G. Haywood, D. G. Fowle, Reade, Busbee & Busbee, Hinsdale & Devereux, for complainants.

Merrimon & Fuller, for defendants.

SEYMOUR, J. At June term a final judgment was rendered in the above case in favor of the plaintiffs and against the defendants. The defendants have paid the amount of the judgment to the clerk of this court, who has paid said amount to the plaintiffs; reserving, however, the question of his commissions, and the amount claimed by him, $293.55, which is retained by the plaintiff's attorneys, to await the decision of this court upon the question whether these commissions ought to be paid out of the recovery, or by the de

1 Reported by John W. Hinsdale, Esq., of the Raleigh, N. C., bar.


fendants. The question depends upon the construction to be put by the court upon section 828 of the Revised Statutes. The clause of the section in controversy reads:

“Clerk's Fees. * * For receiving, keeping, and paying out money, in pursuance of any statute or order of court, one per centum on the amount so received, kept, and paid.”

There is no question but that the clerk received, kept, and paid out the sum upon which he claims his 1 per cent. It is, however, contended by the defendants that he did not do so “in pursuance of any statute or order of the court.” The controversy depends upon whether or not the clerk received the money under an order of this court. This seems too plain for discussion. The order of the court was its judgment. That was, that the defendants pay to the plaintiffs the amount to which they were entitled. It was under that order that the defendants paid the sum recovered to the clerk. They might have awaited an execution, or, if the money were in the hands of a trustee or officer who would be controlled by the order of the court, an order directing such officer or trustee to pay as should be ordered. But it was safe for them to pay the clerk. The judgment and his official bond, one or both, were their protection. Had there been no “order of the court,” they could not have safely paid him. He would have been only their agent, or the agent of the plaintiffs. The judgment under which, and under which alone, they paid the money, made him the agent of the law, and threw around the payment the security of the bond which the statute requires. If the clerk had failed to pay the amount of the judgment to the plaintiffs, it could not have been again collected from the defendants.

The question, then, becomes simply one of who shall pay the costs. That has been already determined; the costs, which include those of the execution, or whatever means of collecting the amount of the judgment take its place, must be paid by the defendants. This opinion has the support of that of Judge Dillon in the eighth circuit, (In re Goodrich, 4 Dill. 230,) and of Judge Dick in the fourth circuit, (Kitchen v. Woodfin, 1 Hughes, 340.) If the amount paid is not sufficient to satisfy the decree and the commissions of the clerk, the judgment opens to include such commissions. Peyton v. Brooke, 3 Cranch, 92; Kitchen v. Woodfin, supra.



Letters patent No. 208,541, granted to William Roemer, October 1, 1878, for “improvemeut in locks for satchels," held valid, and infringed by the lock-case sold by defendant.

In Equity. On bill, etc.
F. C. Lowthorp, Jr., for complainanı.
A. Q. Keasbey & Sons, for defendant.

Nixon, J. The bill is filed against the defendant for infringing letters patent No. 208,541, granted to complainant, October 1, 1878, for “improvement in locks for satchels." The answer denies (1) the infringement, and (2) that the complainant was the original and first inventor of the improvements claimed in said letters patent. The patentee, in his specification, states that the principal object of the invention is to reduce the expense of the lock-case, and to render the same more practical in form and construction, and that it consists principally in forming the body of the lock-case into open ends, and in combining the same with cast blocks or end-pieces, which are separately made.

(1) A satchel marked Exhibit D, for complainant, was produced, and also a witness who swore that he purchased the same at defendant's store in Broadway, New York. The slightest inspection shows that the lock-case thereon infringes the claims of the complainant's patent. (2) A number of exhibits are put in by the defendant to prove that the claims of the complainant's patent were anticipated.

After a careful examination of these I deem it necessary to advert to only two of them, to-wit, Exhibit D 1. and Exhibit D 3. There is nothing in the patent sued on which is not fairly embraced in these, and if the defendant has shown that they were in public use before the date of the complainant's invention, the patent must be held void for want of novelty. The testimony is very meager. The defendant offered only one witness to prove their prior use.

Charles Kupper testified that he was a manufacturer of bag frames and locks; that he had made locks like Exhibit D 3, and had sold them to defendant; that the first he sold to him was on March 31, 1878, and that the first he ever made was a month or two before Christmas, in the year 1877.

When asked about locks like Exhibit D 1, he replied: "I made them a long time after Exhibit D 3, but I cannot say when.”

There was no other testimony on the subject of public prior use. The complainant's patent was issued October 1, 1878. He was called to prove the date of his invention, and was asked:

Question. “When did you first conceive this lock in its present practical form ?" Answer. “I made the invention in the early part of 1876, but made the first model in January, 1878, after which I constructed the lock. My idea was to make a lock that would, when finished, resemble a lock I invented a few months before, and which I would be able to make of cheaper material.” Q. “Was that model of which you speak similar to the lock patented by you?” A. “It was the same thing."

Such are his statements, and his only statements, on the subject. They are not clear, but they show that the invention antedates the proof of the time of any prior use. There was no cross-examination

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