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GOODMAN V. NIBLACK, 102 U. S. 556 (1880)

U.S. Supreme Court

Goodman v. Niblack, 102 U.S. 556 (1880)

Goodman v. Niblack

102 U.S. 556




1. A., who had a contract with the United States, agreed with B., in 1847, that the latter should perform it and that the profits should be equally divided between them. Thereupon they and C. executed an instrument in which the agreement was recited, and A., for the due fulfillment thereof, assigned the contract to C. as trustee. A controversy having arisen as to the amount due upon the contract, Congress, in 1870, authorized C. as such trustee to sue the United States therefor, and subsequently made an appropriation to pay the judgment which he recovered. Held that as the assignment was thus recognized by the government, the parties to the agreement and those claiming under them are precluded from setting up that the contract was not assignable.

2. A. made in 1860 an assignment for the benefit of his creditors, which included all his rights, credits, effects, and property of every description. Held that the assignment, although it covered whatever might be due to him under his contract with the government, was not within the prohibition of the Act of Feb. 26, 1853, 10 Stat. 170, reenacted in sec. 3477, Rev.Stat., nor in violation of public policy.

3. Spofford v. Kirk, 97 U. S. 484, and Erwin v. United States, 97 U. S. 392, cited and examined.

4. Where a bill is filed to enforce a claim or lien upon a specific fund within reach of the court, and such of the defendants as are neither inhabitants of nor found within the district do not voluntarily appear, the circuit court has jurisdiction to adjudicate upon their right to, or interest in, the fund, if they be notified of the pendency of the suit by service or publication, in the mode prescribed by sec. 738 of the Revised Statutes.

5. In such a case, where it appears by the bill that certain nonresidents are indispensable parties, and they are not made parties, the bill is bad on demurrer, and should be dismissed without prejudice.

Page 102 U. S. 557


The case is fully stated in the opinion of the Court.

MR. JUSTICE MILLER delivered the opinion of the Court.


The fourth section of the Act of Congress of March 3, 1847, chap. 62, 9 Stat. 187, directed the Secretary of the Navy to contract with Sloo for the transportation of the mails of the United States from New York to New Orleans, Charleston, Savannah, Havana, and Chagres and back twice a month, at a compensation not to exceed the sum of $290,000. The mail was to be carried in steam vessels of a character described in the act, not less than five in number, to be constructed under

Page 102 U. S. 558





Page 102 U. S. 559


The demurrer is first general and secondly special as regards the failure to make Cheever and Wiles parties.

The general demurrer is maintained on the ground that the assignments made by Sloo are void by reason of the provisions of sec. 3477 of the Revised Statutes. These provisions were enacted by Congress in 1853, 10 Stat. 170, and were therefore not in force when Sloo made his contract with the government or his agreement with Roberts, Law, and others. That agreement remains unaffected by them. They were in force, however, when he made the general assignment of all his effects to Cheever and Wiles, and as the complainant claims through it, and can probably succeed only in that way (because, as we are informed, the state court of Indiana has decided that the statute of limitations bars his claim as an ordinary debt), we must inquire whether that assignment is void under the act of Congress.

The statute has several times within the last few years received the consideration of this court. United States v. Gillis, 95 U. S. 407; Spofford v. Kirk, 97 U. S. 484; Erwin v. United States, 97 U. S. 392.

It is understood that the circuit court sustained the demurrer under pressure of the strong language of the opinion in Spofford v. Kirk. We do not think, however, that the circumstances of the present case bring it within the one then under consideration or the principles there laid down. That was a case of the transfer or assignment of a part of a disputed claim, then in controversy, and it was clearly within all the mischiefs designed to be remedied by the statute. Those mischiefs,

Page 102 U. S. 560




Both these considerations, as well as a careful examination of the statute, leave no doubt that its sole purpose was to protect the government, and not the parties to the assignment. Erwin v. United States, supra, decided at the same term as Spofford v. Kirk, is suggestive on this point. It was there held that the claim of a bankrupt against the United States passed by the assignment in the bankruptcy proceeding to his assignee, and that the latter, and not the original claimant, was the proper person to sue in the Court of Claims. "The passing of claims to heirs, devisees, or assignees in bankruptcy is not within the evil at which the statute aimed," said the Court. The language of the statute, "all transfers and assignments of any claim upon the United States, or of any part thereof, or any interest therein," is broad enough (if such were the purpose of Congress) to include transfers by operation of law or by will. Yet we held it did not include a transfer by operation of law, or in bankruptcy, and we said it did not include one by will. The obvious reason of this is that there can be no purpose in such cases to harass the government by multiplying the number of persons with whom it has to deal, nor any danger of enlisting improper influences in advocacy of the claim, and that the exigencies of the party who held it justified and required the transfer that was made. In what respect does the voluntary assignment for the benefit of his creditors, which is made by an insolvent debtor of all his effects, which must, if it be honest, include a claim against the government, differ from the assignment which is made in

Page 102 U. S. 561


It is also to be remarked that the government had recognized Sloo's original assignment of his contract to Roberts, Law, and McIlvaine, as trustees, by permitting them to perform the contract and receive the pay under it for years, and when a dispute arose as to the sum due under that contract, Congress, by the Act of July 14, 1870, very fully recognized the validity of that transfer.

That act is in these words:


This is still further recognized by the appropriation to pay this judgment "to Marshall O. Roberts and E. N. Dickerson, surviving trustees of A. G. Sloo," found in chapter 3 of the Second Session of the Forty-fifth Congress. 20 Stat. 7.

The first agreement of Sloo, therefore, is unassailable.


Page 102 U. S. 562






Page 102 U. S. 563


This is a proceeding in equity to enforce a lien on the fund which is within reach of the court, and as the trustees and complainant have the requisite citizenship, sec. 738 of the Revised Statutes provides a remedy for inability to serve process by an order of publication. If they appear, the suit will proceed as usual. If they do not appear, the decree, so far as it affects the fund in the hands of Niblack, will bind them, and that is all that is necessary to give the court jurisdiction to grant the relief prayed for by the complainant.

If the decree of the circuit court had dismissed the case without prejudice for want of proper parties, we should have been bound to affirm it. But standing as it does now, it is a decision on the merits of the case and a bar to any other suit. It must therefore be reversed and remanded to that court. If the complainant shall ask leave to amend his bill by making Cheever and Wiles defendants, he should be permitted to do so and proceed with his case. If he does not do this, a decree should be entered dismissing the bill for want of these parties and without prejudice to any other suit on the merits. Shields v. Barrow, 17 How. 130; Barney v. Baltimore City, 6 Wall. 280; House v. Mullen, 22 Wall. 42; Kendig v. Dean, 97 U. S. 423.


So ordered.

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