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John T. Caine of Richards, Caine & Allen, Ogden, UT, for defendants-counter-claimants--appellants-cross-appellees.
Terry Ross of Keesal, Young & Logan, P.C., Long Beach, CA (Robert D. Feighner and Shannon L. McDougald of Keesal, Young & Logan, P.C., Long Beach, CA, Reid Lewis of Moyle & Draper, P.C., Salt Lake City, UT, with him on the brief), for plaintiff-counter-defendant--appellee-cross-appellant.
Before BALDOCK, HOLLOWAY and KELLY, Circuit Judges.
Defendants M & L Investments ("M & L"), Mike Strand ("Strand") and Lois Strand appeal the district court's restitution award of 40,000 shares of stock, 776 F.Supp. 1489 (D.Utah 1991). Plaintiff Shearson Lehman Brothers, Inc. ("Shearson") cross-appeals the district court's determination that Shearson's Regulation T violation, 12 C.F.R. Sec. 220.8, served as an affirmative defense against Shearson's breach of contract action for stock nonpayment. We have jurisdiction over the appeal and cross-appeal1 under 28 U.S.C. Sec. 1291.
M & L is a general partnership consisting of two partners, Strand and his wife, Lois. The Strands are Utah residents, and Mike Strand controlled all of the partnership's activities. He is a sophisticated stock market participant with substantial experience in securities trading who sometimes serves as a stock promotor. Shearson is a Delaware corporation with its principle place of business in New York.
In March 1986, Strand was approached by two individuals seeking to hire Strand to promote the stock issued by Atlantic Mining Corporation ("Atlantic Mining"). At that time, the stock was trading for substantially less than one dollar per share. Strand agreed to promote the stock, initially agreeing to raise its value to one dollar per share. Sometime in April 1986, Strand began buying and selling Atlantic Mining shares in an account held in M & L's name at Shearson. He successfully raised the value of the stock to one dollar per share within a few days by contacting acquaintances who were active in the stock market and touting the qualities of the stock.
Strand then agreed to raise the price to three dollars per share and later, to nine dollars per share. After the stock reached nine dollars per share, he continued promoting the stock but with no specific target price. By July 1986, the price of Atlantic Mining stock was at twelve dollars per share.
During the time Strand was promoting the stock, he purchased and sold the stock through the M & L account at Shearson. The M & L account was a "cash account," meaning that the customer must pay for any purchases made in the account at his direction within seven days. See 12 C.F.R. Sec. 220.8(b)(1)(i) (1991). The date on which payment is due is called the "settlement date."
Between April 21 and May 27, 1986, Strand purchased 72,000 shares of Atlantic Mining through his account at Shearson, of which he sold 2,800, giving him a net total of 69,200 shares. Though some of his payments were late, he had fully paid for the 69,200 shares by May 29, 1986.
Beginning in mid-May, Strand made frequent requests that Shearson deliver to him physical possession of the stock certificates representing the stock he had purchased. From what we can glean from the record, it appears that the transfer of physical possession takes some time to complete, usually between four and six weeks. Shearson placed Strand's request for the certificates, and on approximately June 22, 1986, Strand received two stock certificates which together represented 40,000 shares of Atlantic Mining stock. Although Strand continued to request physical possession of the certificates for the remaining 29,200 shares he had purchased through Shearson, Shearson never delivered these certificates.
From June 24 to 27, 1986, Strand placed an order or orders to buy 34,500 additional shares of Atlantic Mining stock through his Shearson account. Shearson purchased the shares for between eight and ten dollars per share, creating a debt of $318,886.41, which Strand failed to pay by the settlement date.
At the beginning of July, 1986, Shearson's Salt Lake office manager began discussing the M & L unpaid balance with Strand for the additional 34,500 shares. Strand represented to Shearson that he would soon pay his account balance, but payment was not received. The stock reached its peak value of nearly thirteen dollars per share at this time--i.e., near the beginning of July.
On approximately July 11, 1986, Shearson began liquidating the M & L account. This was approximately seven days after the settlement date--i.e., the date payment was due--for the ordered 34,500 shares. When Strand learned of the liquidation, he immediately ordered Shearson to stop and represented that he was arranging a loan to pay the outstanding balance. Based on Strand's representations, Shearson suspended the liquidation in mid-July, after it had been liquidating the account for approximately three business days and after only 4,500 shares had been sold.
At some point between mid-June and the end of July, Strand returned to Shearson the certificates he had previously received for the 40,000 shares of Atlantic Mining stock. Shearson contended at trial that Strand returned the certificates as a show of good faith on his overdue account. Strand asserts he returned the certificates for safe-keeping to await the arrival of the remaining certificates. When Strand returned the certificates, their market value was approximately $400,000.
Exercising diversity jurisdiction, the district court found that Shearson violated Regulation T by failing to promptly liquidate the M & L account after the seven-day settlement period had elapsed. Then, applying New York law, which was the parties' choice of law in their contract, the court held that Shearson's violation of Regulation T was an affirmative defense to Strand's breach. Thus, the court held that Strand did not have to pay the outstanding balance of $268,529.10. On Strand's claim for restitution of the stock certificates, representing the 40,000 shares for which he had already paid, the court ordered Shearson to return the certificates to Strand.
On appeal, Shearson asserts: (1) it did not violate Regulation T; (2) the parties waived reliance on New York law by relying exclusively on Utah and Tenth Circuit law in their representations to the district court; and (3) even if New York law applies, there is no affirmative defense for Regulation T violations under New York law. Therefore, Shearson argues, it is entitled to its damages for Strand's breach of contract. We address each argument in turn.
We first address Shearson's assertion that it did not violate Regulation T. With regard to cash accounts, Regulation T requires purchasers of stock to pay for the stock ordered within seven days of the day they placed the order for the stock. 12 C.F.R. Sec. 220.8. If the purchaser fails to make timely payment, Regulation T requires the holder of the account, in this case Shearson, to "promptly liquidate" the account. Id.3 Thus, the determination of whether Shearson violated Regulation T depends upon whether Shearson promptly liquidated Strand's account. We review de novo the legal interpretation of terms in a federal regulation. Brabson v. Metropolitan Life Ins. Co., 795 F.2d 897, 899 (10th Cir.1986).
We agree with the district court's determination that Shearson failed to promptly liquidate the account. While there might be some situations in which it would be a close question as to whether a liquidation was prompt, Shearson's liquidation of M & L's account is not one of them. Shearson did not attempt to sell the shares until one week after payment was due under Regulation T--i.e., seven days after the seven-day settlement period had elapsed--and then left the shares on the market for only three days after selling only 4,500 shares. Furthermore, Shearson did not attempt to liquidate the balance of the M & L account again for two more months, at which time Shearson was able to liquidate the account, albeit for a much lower price than it had paid for the stocks.4 Therefore, we hold that Shearson did not "promptly liquidate," thus violating Regulation T.5 See Pearlstein v. Scudder & German, 429 F.2d 1136, 1139-40 (2d Cir.1970) ("it seems reasonably clear that defendant violated [Regulation T] when it failed in each instance to sell the bonds after seven business days had expired without payment"), cert. denied, 401 U.S. 1013, 91 S.Ct. 1250, 28 L.Ed.2d 550 (1971).
To address Shearson's second argument--i.e., that the parties waived reliance on New York law by relying exclusively on Utah and Tenth Circuit law in their representations to the district court--we must first determine which law to apply to determine whether reliance on New York law was waived. We review choice of law determinations de novo. Mitchell v. State Farm Fire & Cas. Co., 902 F.2d 790, 792 (10th Cir.1990).
In making choice of law determinations, a federal court sitting in diversity must apply the choice of law provisions of the forum state in which it is sitting. Klaxon Co. v. Stentor Electric Mfg., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941); Tucker v. R.A. Hanson Co., Inc., 956 F.2d 215, 217 (10th Cir.1992). This is true even when choice of law determinations involve the interpretation of contract provisions. See Devery Implement Co. v. J.I. Case Co., 944 F.2d 724, 727 (10th Cir.1991). Therefore, we apply Utah law to determine whether the contract provision, which specified application of New York law for contract disputes, was controlling.
[t]he law of the state chosen by the parties to govern their contractual rights and duties will be applied ... unless either (a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties [sic] choice, or (b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue which ... would be the state of the applicable law in the absence of an effective choice of law by the parties.
Restatement (Second) of Conflict of Laws, Sec. 187 (1971 & 1988 Revisions). See also Ferdie Sievers and Lake Tahoe Land Co., Inc. v. Diversified Mortgage Investors, 95 Nev. 811, 603 P.2d 270, 273 (1979); Jim v. CIT Financial Services Corp., 87 N.M. 362, 533 P.2d 751, 753 (1975); Schulke Radio Productions Ltd. v. Midwestern Broadcasting Co., 6 Ohio St.3d 436, 6 OBR 480, 453 N.E.2d 683, 686 (1983); Carmack v. Chemical Bank New York Trust Co., 536 P.2d 897, 899 (Okl.1975). Shearson's principle place of business is New York, so there is a reasonable basis for applying New York law. Furthermore, we can find no fundamental policy in the state of Utah6 to dictate against the application of New York law in this case. Therefore, we hold that the parties' stipulation to New York law must be enforced absent waiver.
At this point, in order to determine conclusively whether New York law applies, we would normally address the status of Utah law with regard to waiver. However, we cannot address this issue because Shearson's appendix provides no evidence from which we can determine whether waiver even occurred. In its brief, Shearson cites us to no briefings to the district court nor to any portions of the transcript in which the parties cited Utah and Tenth Circuit law rather than New York law, and our own careful examination of the appendix uncovered none of these documents. It is counsel's responsibility to file an appendix "sufficient for consideration and determination of the issues on appeal and the court is under no obligation to remedy any failure of counsel to fulfill that responsibility." 10th Cir.R. 30.1 (as amended Oct. 25, 1990). Therefore, we decline to address the waiver issue and hold that New York law applies.
We now turn to New York law to determine whether Shearson's Regulation T violation provides Strand with an affirmative defense to Shearson's breach of contract claim. We review de novo the district court's determination of state law. Salve Regina, 499 U.S. at 231, 111 S.Ct. at 1221.
The district court determined that Shearson's Regulation T violation provided Strand with an affirmative defense to breach of contract, relying on Thomson McKinnon Securities, Inc. v. Hornung, 69 A.D.2d 118, 419 N.Y.S.2d 526 (1st Dept.1979). In so holding, the district court rejected a line of New York cases, which included Billings Assoc., Inc. v. Bashaw, 27 A.D.2d 124, 276 N.Y.S.2d 446 (4th Dept.1967). The court rejected Bashaw because it had not been cited in subsequent New York cases, unlike Hornung, which had been "cited favorably by at least one recent appellate decision"-- i.e., Berliner Handels-Und Frankfurter Bank v. Coppola, 172 A.D.2d 369, 568 N.Y.S.2d 751 (1st Dept.1991). However, the district court failed to observe that the Hornung and Berliner cases were both decided by the First Department of New York's intermediate appellate court while the Bashaw case was decided by the Fourth Department of New York's intermediate appellate court. Despite the chronology of the decisions, both the Hornung/ Berliner line of cases and the Bashaw case remain good law in New York, depending upon which department dictates a court's precedent. See N.Y. Statutes Sec. 72 (McKinney 1971 & Suppl.1993) ("[p]recedents do not lose their force by age alone," and "a decision of an appellate term of one judicial department is not binding on ... another department which has decided to the contrary"); see also Stewart v. Volkswagen of America, Inc., 181 A.D.2d 4, 584 N.Y.S.2d 886, 889 (2d Dept.1992) (per curiam) (appellate division department is free to decide contrary to another appellate division), rev'd on other grounds, 81 N.Y.2d 203, 597 N.Y.S.2d 612, 613 N.E.2d 518 (1993); Ross Bicycles, Inc. v. Citibank, NA, 149 A.D.2d 330, 539 N.Y.S.2d 906, 907 (1st Dept.1989) (same); People v. Finkelstein, 12 A.D.2d 457, 207 N.Y.S.2d 389, 389-90 (1st Dept.1960) (per curiam) (decision of Appellate Division Second Department is not controlling on the First Department because it is not decision of highest state court), rev'd on other grounds, 9 N.Y.2d 342, 214 N.Y.S.2d 363, 174 N.E.2d 470 (1961); Brown v. Village of Albion, 128 Misc.2d 586, 490 N.Y.S.2d 958 (Sup.1985) (if appellate division rulings conflict, trial court must apply law of its own appellate division); People v. Reshes, 39 Misc.2d 723, 242 N.Y.S.2d 416 (Crim.Ct.1963) (same). Therefore, the district court erroneously determined that New York law required it to follow the Hornung case. Because New York law regarding an affirmative defense under Regulation T remains unsettled, we must now decide which rule of law New York's highest court would apply. See Salve Regina, 499 U.S. at 236, 111 S.Ct. at 1224.
The relatively few courts that have addressed this issue, with the exception of New York's Appellate Division First Department, have held that there is no affirmative defense to breach of contract for Regulation T violations. See Bache Halsey Stuart, Inc. v. Killop, 509 F.Supp. 256, 259 (E.D.Mich.1980); Gregory-Massari, Inc. v. Purkitt, 1 Cal.App.3d 968, 82 Cal.Rptr. 210 (1969); Shearson Hayden Stone, Inc. v. Feldman, 109 Misc.2d 403, 439 N.Y.S.2d 975, 977 (Civ.Ct.1980); Styner v. England, 40 Wash.App. 386, 699 P.2d 234, 238 (1985). Because this rule of law is most consistent with the policy behind Regulation T and other regulations which protect the market in general, we believe New York's highest court would adopt the rule which does not allow an affirmative defense to breach of contract for Regulation T violations.
Regulation T and other such regulations were enacted to protect the general economy from the infusion of prohibited credit. Bache, 509 F.Supp. at 259. Thus, the purpose of Regulation T is to benefit the market in general, not to benefit individual investors. Styner, 699 P.2d at 238. Similar regulations govern the actions of clients, placing an equal burden for complying with margin requirements on both brokers, such as Shearson, and clients, such as Strand. Id. at 239 (citing Regulation X, 12 C.F.R. Sec. 224, which prohibits any person from obtaining credit when to do so would cause the creditor to violate Regulation T, and also citing 15 U.S.C. Sec. 78g(f), which declares it illegal for any person to obtain, receive or enjoy the extension of credit in connection with the purchase of securities contrary to the Federal Reserve System regulations); see also Feldman, 439 N.Y.S.2d at 977. Thus, because the regulations place the burden of margin requirement compliance equally upon broker and client, it is inconsistent to place the entire burden of compliance upon brokers in contract disputes. Cf. Bennett v. United States Trust Co. of New York, 770 F.2d 308 (2d Cir.1985) (holding that there is no private cause of action against a broker under Regulation T because both client and broker are equally responsible for violating margin requirements), cert. denied, 474 U.S. 1058, 106 S.Ct. 800, 88 L.Ed.2d 776 (1986); Stern v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 603 F.2d 1073 (4th Cir.1979) (same); Utah State University v. Bear, Stearns & Co., 549 F.2d 164 (10th Cir.) (same), cert. denied, 434 U.S. 890, 98 S.Ct. 264, 54 L.Ed.2d 176 (1977). Clients, who have necessarily violated their own regulations if their broker has violated Regulation T, should not be allowed to benefit from their broker's violation. Feldman, 439 N.Y.S.2d at 977. Thus, while Shearson's violation of Regulation T might affect the amount of damages it can recover for Strand's alleged breach, see id. at 978, it is not an affirmative defense to Shearson's breach of contract claim.
Because we find no affirmative defense for Regulation T violations under New York law, we reverse the district court's dismissal of Shearson's breach of contract claim and remand to the district court for further proceedings.
Defendants M & L and the Strands assert only one argument on appeal-- i.e., that the district court erred in determining that they were entitled only to the return of the 40,000 shares they had given to Shearson, rather than return of the shares plus damages in the amount of the difference between the shares' value in late July (when Strand asserts he would have sold them) and their value when Strand received the shares at the close of trial. However, in their complaint, Defendants' only requested relief with regard to the 40,000 shares was "delivery to [M & L and the Strands] of the certificates representing the 40,000 shares of Atlantic Mining stock," "court costs and reasonable attorney's fees," and "any other relief the court deems just and proper." Because Defendants failed to assert their damages claim below and because we do not think that the district court was required to guess that Defendants desired damages under their "just and proper" relief request, we decline to award such relief on appeal. See Blondo v. Bailar, 548 F.2d 301, 305 (10th Cir.1977) (relief not requested below cannot be asserted for the first time on appeal).
We AFFIRM the district court's decision to award restitution of the stock certificates representing 40,000 shares of stock, we REVERSE the court's dismissal of Shearson's breach of contract claim, and we REMAND for further proceedings consistent with this opinion.
M & L filed a timely notice of appeal on November 25, 1991, and Shearson filed its notice of appeal on December 9, 1991, within 14 days of M & L's notice. However, the district court clerk did not enter Shearson's notice on the docket sheet until December 13, 1991. Because the date the clerk received the notice of appeal is the date we use to determine timeliness, see Fed.R.App.P. 25(a), we conclude that Shearson timely filed its notice of appeal, giving us jurisdiction over its cross-appeal.

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§ 1-2 Effective date; repealer.
§ 1-3 Legislation saved from repeal.
§ 1-5 Copies of file.
§ 1-6 Changes in previously adopted legislation.
§ 1-7 Definitions and word usage.
There is hereby adopted by the Board of Supervisors that certain Code entitled the "Code of Buchanan County, Virginia," containing certain ordinances of a general and permanent nature as revised, compiled, consolidated and codified in Chapters 1 to 90, both inclusive.
The provisions of such Code shall be in force on and after the effective date of this ordinance, and all ordinances of a general and permanent nature enacted on or prior to the effective date of this ordinance and not contained in such Code are hereby repealed from and after the effective date of this ordinance, except as hereinafter provided.
Any ordinance levying or imposing taxes.
Any ordinance providing for any public improvement.
Any ordinance making any assessment.
Any ordinance opening, relocating, closing, altering or naming any streets or alleys.
Any ordinance relative to salaries, wages or compensation or bonds of county officers and employees or to members or employees of county boards or commissions.
Any ordinance relative to annexation of territory to the county or relative to the change, expansion or contraction of the corporate boundaries of the county.
Any ordinance adopted subsequent to January 1, 1997.
It is hereby declared to be the intention of the Board of Supervisors that the sections, paragraphs, sentences, clauses and phrases of this ordinance and of the Code are severable, and if any phrase, clause, sentence, paragraph or section of this ordinance or such Code shall be declared unconstitutional or invalid by the valid judgment or decree of a court of competent jurisdiction, such unconstitutionality or invalidity shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this ordinance or of such Code.
Three copies of the Code shall be filed in the office of the County Administrator and be made available on premises to persons desiring to examine the same.
In compiling and preparing the ordinances for publication as the Code of Buchanan County, no changes in the meaning or intent of such ordinances have been made, except as provided in Subsection B hereof. In addition, certain grammatical changes and other minor nonsubstantive changes were made in one or more of said pieces of legislation. It is the intention of Buchanan County that all such changes be adopted as part of the Code as if the ordinance had been previously formally amended to read as such.
In addition, the certain amendments and/or additions are made herewith and are hereby adopted by reference, to become effective upon the effective date of this ordinance. The chapters, articles, sections or subsections which have been amended or added have been noted using an Editor's Note stating "Amended (Added) at time of adoption of Code; see Ch. 1, General Provisions, Art. I."
Gender. See Code of Virginia, § 1-13.7.
Computation of time. See Code of Virginia, § 1-13.3.
Number. See Code of Virginia, § 1-13.15.
"Or" and "and." The word "or" may be read "and" and the word "and" may be read "or" if the sense requires it.
"Preceding" and "following." See Code of Virginia, §§ 1-13.6 and 1-13.23.
"State" and "commonwealth." The words "state" and "commonwealth" shall be construed as if the words "of Virginia" followed.
Other words. The rules of construction given in §§ 1-13.1 to 1-15.1 of the Code of Virginia shall govern, so far as applicable, the construction of all other words not defined in this section.
The Board of Supervisors of the County of Buchanan, Virginia.
The County of Buchanan in the Commonwealth of Virginia.
See Code of Virginia, § 1-13.13.
See Code of Virginia, § 1-13.16.
When applied to a building or land, includes any part owner, joint owner, tenant in common, tenant in partnership, joint tenant or tenant by the entirety of the whole or a part of such building or land.
See Code of Virginia, § 1-13.19.
Includes a mark when a person cannot write.
Includes public streets, avenues, boulevards, highways, roads, alleys, lanes, viaducts, bridges and the approaches thereto and all other public thoroughfares in the county and shall mean the entire width thereof between abutting property lines. It shall be construed to include a sidewalk or footpath, unless the contrary is expressed or unless such construction would be inconsistent with the manifest intent of the Board of Supervisors.
See Code of Virginia, § 1-13.28.
See Code of Virginia, § 1-13.33.

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This is a writ or error from this court to the surrogates' court of the county and state of New York, to review a judgment entered in that court in pursuance of an order of the court of appeals of that state. The judgment assessed a succession tax upon the personal estate of Albert Tilt, deceased, upon the ground that he was, at the time of his death, a resident of the state of New York. Before the assessment of the tax the estate of Tilt, who died testate, was fully administered in [207 U.S. 43, 44] the courts of New Jersey, where the will was probated. In the course of the administration all the personal property, after paying debts, taxes, and charges of administration, was distributed by the executors to the beneficiaries under the will. A reversal of the judgment of the surrogates' court is sought for the reason that it did not give full faith and credit to the judicial proceedings of the state of New Jersey, as required by the Constitution and laws of the United States.
Mr. William G. Wilson for plaintiffs in error.
[207 U.S. 43, 45] Mr. George M. Judd for defendant in error.
In the disposition of this case we are somewhat embarrassed by our ignorance of the reasons which controlled the decision of the highest court of the state. The opinion of the surro- [207 U.S. 43, 47] gate was very brief. His judgment was affirmed upon appeal successively by the supreme court and the court of appeals,-in each court without an opinion and with two judges dissenting. The record shows the following facts: Albert Tilt was engaged in business as a silk manufacturer in Paterson, New Jersey, until the time of his death. Until 1888 he was a resident and citizen of Paterson. In that year he removed to New York city, became a resident and citizen of New York, and remained such until some time in the year 1899. He died in New York on May 2, 1900. His residence and citizenship at the time of his death was in dispute. For many years he had owned a house in New York City, where he lived during the greater part of the year, and another house in Roxbury, New Jersey, where he lived during the summer and early autumn. It is contended by the executors of his will, the plaintiffs in error, that in the last year of his life he changed his domicil from New York City to Roxbury, and that at the time of his death he was domiciled in New Jersey. On the other hand it is contended by the comptroller of New York, the defendant in error, that his domicil continued until his death to be in New York. Upon this question the evidence was conflicting.
After the death of Mr. Tilt, his will was admitted to probate by the surrogate of Morris county, New Jersey, who by law had jurisdiction to do this if the testator resided in the county at the time of his death. The petition for probate described the testator as 'late of the township of Roxbury, in said county,' and the letters testamentary granted on May 23, 1900, by the surrogate, described him as 'late of the county of Morris, deceased.' An order was made fixing a time within which creditors must prove claims against the estate. On the expiration of this time a further order was made, that all creditors who had neglected to bring in their claims and demands should 'be forever barred from their action therefor against the executors of said deceased.' Succession taxes, imposed by the law of New Jersey and the law of the United [207 U.S. 43, 48] States, and all debts, were paid. The executors presented their accounts to the orphans' court of the county, and that court, acting within its jurisdiction, on June 20, 1901, allowed the accounts and directed the distribution of the estate, according to the terms of the will. The executors made the distribution in conformity with the court's order, thereby parting with all the property of the testator which had been in their hands. After the distribution had been accomplished, the state of New York for the first time made known its claim for a transfer tax. The comptroller of the state filed his petition with the surrogate of the county of New York. In response to this petition, on August 16, 1901, Robert Mazet was appointed by the surrogate as appraiser, to fix the fair market value of the property of Albert Tilt, deceased. This was done with the view of ascertaining the amount of a transfer tax due under a section of a statute providing for such a tax 'when the transfer is by will or by the intestate laws of this state from any person dying seised and possessed of the property while a resident of the state.' On March 6, 1903, Mazet filed his report in the surrogate's court. The material part of this report was: First, that the net personal property of the deceased 'subject to tax herein' was, at the time of his death, of the fair market value of $ 1,056,951.22; second, that Tilt was a resident of New York City at the time of his death; third, that he left a will which had been 'duly admitted to probate in the surrogate's court of the county of Morris, state of New Jersey;' fourth, after stating the disposition of his property made by the testatory by this will, the report appraised the estate 'subject to tax herein' at its fair market value at the amount already stated. On June 15, 1903, the surrogate entered an order adopting the value of the property reported by the appraiser and assessing the amount of the transfer tax specifically on each bequest contained in the will. The total tax amounted to about $13,000. On August 10, 1903, a paper, entitled 'Appeal to the Surrogate,' was filed by the executors. This paper gave notice of an [207 U.S. 43, 49] appeal to the surrogate from the appraisement, assessment, and determination of the transfer tax, and from the surrogate's own order of June 15. The only ground of appeal which need be stated here is the fifth, which alleged 'that the right to assess or impose a tax under the laws of the state of New York upon the transfer of the property of the testator, if there ever was any such right, was barred before the commencement of this proceeding, by a decree of the orphans' court of Morris county, New Jersey, a court of competent jurisdiction, made on the 25th day of February, 1901, barring all claims against the said testator or his estate which had not been presented and proved to said executors, pursuant to public notice heretofore given and published, as prescribed by the laws of the state of New Jersey; and by the further decree of the same court, made on the 20th day of June, 1901, directing the distribution of the estate of said testator in the hands of said executors, according to the terms of the will of the said Albert Tilt, deceased; in obedience to which the said executors, without any notice or knowledge of any claim or liability for the payment of a transfer tax under the laws of the state of New York, distributed the said estate, so that there was not, at the time of the commencement of this proceeding, and is not now, any property of the said estate in the hands of said executors.' It was then agreed by counsel that the surrogate should determine on affidavits whether or not Albert Tilt was a resident of New York at the time of his death. Pending the consideration of this question the executor requested in writing certain findings of facts and conclusions of law, of which only two need be stated here. They are as follows: (2) 'Under the Constitution of the United States full faith and credit must be given to the probate of said will and codicil of said Albert Tilt in the state of New Jersey, and to the accounting and distribution made by his executors under the decree of the orphans' court of Morris county, in said state, of the estate of said Albert Tilt as a resident of New Jersey at the time of his death.' (3) 'None of the personal [207 U.S. 43, 50] estate of said Albert Tilt is subject to the payment of a transfer tax under the laws of the state of New York, excepting only such of his personal estate as was actually within the state of New York at the time of his death.' These requests were refused by the surrogate, who, in a short opinion, found as a fact that Tilt was a resident of New York at the time of his death, and ruled that his personal estate, wherever situated, was subject to the payment of a transfer tax under the laws of New York. An order was accordingly entered affirming the order of June 15. Thereupon the executors filed exceptions, the last two of which were as follows: (20) 'To the refusal of the said surrogate to find, as a conclusion of law, that, under the Constitution of the United States, full faith and credit must be given to the probate of said will and codicil of said Albert Tilt in the state of New Jersey, and to the accounting and distribution made by his executors under the decree of the orphans' court of Morris county in said state, of the estate of said Albert Tilt as a resident of New Jersey at the time of his death. (21) To the refusal of the said surrogate to find, as a conclusion of law, that none of the personal estate of said Albert Tilt is subject to the payment of a transfer tax under the laws of the state of New York, excepting only such of his personal estate as was actually within the state of New York at the time of his death.' An appeal was then taken, and, as already stated, the action of the surrogate was affirmed by the supreme court and the court of appeals. The proceedings before the surrogate are somewhat fully set forth, because it is contended that no Federal question was properly and seasonably raised in the state courts. We think, however, that a right under the Constituion of the United States was specially set up and claimed by the executors, as required by 709 of the Revised States (U. S. Comp. Stat. 1901, p. 575), and denied by the highest court of the state, and that therefore we have authority to re-examine the decision. It appears clearly in the paper entitled 'Appeal to the Surrogate' that the executors relied upon the judicial proceedings in New Jersey as a defense to the assessment of [207 U.S. 43, 51] the New York tax. They 'specially set up and claimed' a right under those proceedings, though it was not in terms stated to be a right claimed under the Constitution. This, in the case of a judgment of the court of another state, has been held to be a sufficient compliance with the statute. Great Western Teleg. Co. v. Purdy, 162 U.S. 329 , 40 L. ed. 986, 16 Sup. Ct. Rep. 810; Bell v. Bell, 181 U.S. 175 , 45 L. ed. 804, 21 Sup. Ct. Rep. 551; Andrews v. Andrews, 188 U.S. 15 , 47 L. ed. 366, 23 Sup. Ct. Rep. 237; and see the remark of the Chief Justice in Mutual L. Ins. Co. v. McGrew, 188 U.S. 291 , at page 311, 47 L. ed. 480, at page 485, 63 L.R.A. 33, 23 Sup. Ct. Rep. 375. Moreover, while the surrogate still had the appeal under consideration and undecided, requests in writing were made to him which clearly and specifically set up the claim that the full faith and credit due, under the Constitution, to the judicial proceedings of the state of New Jersey, forbade the assessment of the tax. These requests were entertained and the claim denied by the surrogate and an exception taken. Upon the record thus made an appeal was taken, and in the disposition of the appeal the Federal question was necessarily passed upon by the highest court of the state, whose decision, therefore, we may re-examine.
That re-examination, however, must be confined to the single question whether, by the assessment of the tax, full faith and credit has been denied to the judicial proceedings of the state of New Jersey, in violation of article 4, 1, of the Constitution. In the consideration of this question, the first inquiry which presents itself is whether the adjudication of the New Jersey court, that Tilt was, at the time of his death, a resident of New Jersey, was conclusive upon the state of New York, a stranger to the proceedings. If it was, that is the end of the case; because then New York could not take the first step necessary to bring the estate within the provision of the tax law of that state. But, upon principle and authority, that adjudication, though essential to the assumption of jurisdiction to grant letters testamentary, was neither conclusive on the question of domicil, nor even evidence of it in a collateral proceeding. Thormann v. Frame, 176 U.S. 350 , 44 L. ed. 500, 20 Sup. Ct. Rep. 446; [207 U.S. 43, 52] Overby v. Gordon, 177 U.S. 214 , 44 L. ed. 741, 20 Sup. Ct. Rep. 603; Dallinger v. Richardson, 176 Mass. 77, 57 N. E. 224, and see Mutual Ben. L. Ins. Co. v. Tisdale, 91 U.S. 238 , 23 L. ed. 314; De Mora v. Concha, L. R. 29 Ch. Div. 268, Affirmed in L. R. 11 App. Cas. 541; Brigham v. Fayerweather, 140 Mass. 411, 5 N. E. 265. The difference in the effect of a judgment on the res before the court and of the adjudication of the facts on which the judgment is based is pointed out by Mr. Justice Holmes in the last case. In an opinion holding that a decree of a probate court admitting a will to probate was not, on an issue between parties, one of whom was not a party to the probate proceedings, competent evidence of the testator's mental capacity, he said: 'A judgment in rem is an act of the sovereign power; and, as such, its effects cannot be disputed; at least, within the jurisdiction. If a competent court declares a vessel forfeited, or orders it sold free of all claims, or divorces a couple, or establishes a will, . . . a paramount title is passed, the couple is divorced, the will is established as against all the world, whether parties or not, because the sovereign has said that it shall be so. . . . But the same is true when the judgment is that A recover a debt of B. The public force is pledged to collect the debt from B, and no one within the jurisdiction can oppose it. And it does not follow in the former case any more than in the latter, nor is it true, that the judgment, because conclusive on all the world in what we may call its legislative effect, is equally conclusive upon all as an adjudication of the facts upon which it is grounded. On the contrary, those judgments, such as sentences of prize courts, to which the greatest effect has been given in collateral proceedings, are said to be conclusive evidence of the facts upon which they proceed only against parties who were entitled to be heard before they were rendered. . . . We may lay on one side, then, any argument based on the misleading expression that all the world are parties to a proceeding in rem. This does not mean that all the world are entitled to be heard; and, as strangers in interest are not entitled to be heard, there is no reason why they should be bound by the [207 U.S. 43, 53] findings of fact, although bound to admit the title or status which the judgment establishes.' We think that this quotation expresses the correct rule and that it is sustained by the decisions of this court. Applying it here, it follows that the full faith and credit due to the proceedings of the New Jersey court do not require that the courts of New York shall be bound by its adjudication on the question of domicil. On the contrary, it is open to the courts of any state, in the trial of a collateral issue, to determine, upon the evidence produced, the true domicil of the deceased.
Thus, executors appointed by a court having, upon the face of the record, authority to make the appointment, had accounted for the property which had come into their hands to the court having jurisdiction, under the laws of the state, to pass on the accounts, and, without knowledge of any claim by the state of New York, had, by the direction of the court, acting within its jurisdiction, paid out the whole estate to those who were entitled to it by the will. All that was done by the executors, and all that was received by the beneficiaries in the disposition of the estate, was done and received by orders of court, duly entered in the course of judicial proceedings. For the purpose of enabling the executors to distribute the estate with safety to themselves, in accordance with a common practice in the settlement of the estate of deceased persons, and under authority conferred by the laws of the state, court, prior to the distribution, had decreed that all those who had neglected to bring in their claims should be 'forever barred from their action therefor against the executors of the deceased.' Upon these facts, does the assessment of this [207 U.S. 43, 55] transfer tax by the state of New York, by whose laws the tax thus assessed is made a lien on the property transferred and a personal obligation of the transferee and the executors (Laws of 1896, chap. 908, 222), give the full faith and credit to which these judicial proceedings are entitled? The answer to this question depends upon the nature of the proceedings and their effect upon the rights of those persons who were not parties or privies to them. If they are binding upon such persons, the state of New York may not levy a tax upon property which has been transferred free from the burden, and impose a personal liability on the executors, who have been declared forever exempt from all demands against the estate. The enforcement of the claim for such a tax against the property, against the distributees of the property, and against those who have distributed it, under the direction of the court, and with its assurance that no claims against them shall longer exist, is plainly inconsistent with the judicial proceedings of which the property has been administered. Is, then, the nature of the proceedings such that they are binding not only upon those who were parties or privies to them, but upon all others as well?
When the owners of property die, that property, under the conditions and restrictions of the law applicable, is transmitted to their successors named by their wills or by the laws regulating inheritance in cases of intestacy. For a suitable time it is essential that the property should remain under the control of the state, until all just charges against it can be discovered and paid, and those entitled to it as new owners can be ascertained. It is in the public interest that the property should come under the control of the new owners, after such delays only as will afford opportunity for investigation and hearing to guard against mistake, injustice, or fraud. It is the duty of the sovereign to provide a tribunal, under whose direction the just demands against the estate may be determined and paid, the succession decreed, and the estate devolved to those who are found to be entitled to it. Sometimes this duty is [207 U.S. 43, 56] performed by conferring jurisdiction upon a single court and sometimes by dividing the jurisdiction among two or three courts. The courts may be termed ecclesiastical, probate, orphans', surrogate, or equity courts. The jurisdiction may be exercised exclusively in one, or divided among two or more, as the sovereign shall determine. But somewhere the power must exist to decide finally, as against the world, all questions which arise in the settlement of the succession. Mistakes may occur and sometimes do occur, but it is better that they should be endured than that, in a vain search for infallibility, questions shall remain open indefinitely. As was said by Mr. Justice Bradley, speaking on this subject in Broderick's Will ( Kieley v. McGlynn) 21 Wall. 503, p. 519, 22 L. ed. 599, p. 605: 'The world must move on and those who claim an interest in persons and things must be charged with knowledge of their status and condition and of the vicissitudes to which they are subject. This is the foundation of all judicial proceedings in rem.' It is therefore within the power of the sovereign to give to its courts the authority, while settling the succession of estates in their possession, through their officers, the executors or administrators, to determine finally, as against the world, all questions which arise therein. Grignon v. Astor, 2 How. 319, 11 L. ed. 283, per Baldwin, J., p. 338; Beauregard v. New Orleans, 18 How. 497, 15 L. ed. 469; Foulke v. Zimmerman, 14 Wall. 113, 20 L. ed. 785; Board of Public Works v. Columbia College, 17 Wall. 521, 21 L. ed. 687; Broderick's Will ( Kieley v. McGlynn) 21 Wall. 503, 22 L. ed. 599; Simmons v. Saul, 138 U.S. 439 , 34 L. ed. 1054, 11 Sup. Ct. Rep. 369; Byers v. McAuley, 149 U.S. 608 , 37 L. ed. 867, 13 Sup. Ct. Rep. 906; Goodrich v. Ferris, 145 Fed. 844; Loring v. Steineman, 1 Met. 204; Kellogg v. Johnson, 38 Conn. 269; State v. Blake, 69 Conn. 64, 36 Atl. 1019; Exton v. Zule, 14 N. J. Eq. 501; Search v. Search, 27 N. J. Eq. 137; Harlow v. Harlow, 65 Me. 448; Ladd v. Weiskopf, 62 Minn. 29, 69 L.R.A. 785, 64 N. W. 99.
In respect to the settlement of the successions to property on death the states of the Union are sovereign and may give to their judicial proceedings such conclusive effect, subject to the requirements of due process of law and to any other constitutional limitation which may be applicable. [207 U.S. 43, 57] But though a state may attach to the judicial proceedings of the courts through which the devolution of the estates of deceased persons is accomplished, the conclusive effect which has been described, it may not choose to do so, or may choose to do so only in respect of part of the adjudications made in the course of the settlement of the succession. It may, for instance, choose to regard the probate of a will or the grant of letters of administration as conclusive on all, and, on the other hand, to regard an order of distribution as open to attack in a collateral proceeding by those who were not parties to it. The extent to which such proceedings shall be held conclusive is a matter to be determined by each state according to its own views of public policy. The variation in practice in the different states is considerable and no good purpose would be served by considering them. It is enough to instance that in the states of Connecticut and Massachusetts, according to the cases just cited, a decree of distribution is binding upon all, while in the state of New York it appears not to be binding on one who was not a party to it. Re Killan, 172 N. Y. 547, 63 L.R.A. 95, 65 N. E. 561.
When, therefore, we come to consider what faith and credit must be given to these judicial proceedings of New Jersey, we must first ascertain what effect that state attaches to them. The statute enacted to carry into effect the constitutional provision provided that they should have, in any court within the United States, such faith and credit 'as they have by law or usage in the courts of the state from which they are taken.' Act May 26, 1790 [1 Stat. at L. 122, chap. 11], now 905, Rev. Stat. (U. S. Comp. Stat. 1901, p. 677). They can have no greater or less or other effect in other courts than in those of their own state. Cheever v. Wilson, 9 Wall. 108, 19 L. ed. 604; Board of Public Works v. Columbia College, 17 Wall. 521, 21 L. ed. 687; Robertson v. Pickrell, 109 U.S. 608 , 27 L. ed. 1049, 3 Sup. Ct. Rep. 407; Hancock Nat. Bank v. Farnum, 176 U.S. 640 , 44 L. ed. 619, 20 Sup. Ct. Rep. 506. In ascertaining, on a writ of error to a state court, what credit is given to these judicial proceedings by the laws and usages of the state of New Jersey, we are limited to the evidence on that subject before the court whose judgment we are reviewing. Hanley v. Donoghue, 116 U.S. 1 , 29 L. ed. 535, 6 Sup. Ct. Rep. 242; [207 U.S. 43, 58] Chicago & A. R. Co. v. Wiggins Ferry Co. 119 U.S. 622 , 30 L. ed. 522, 7 Sup. Ct. Rep. 398. The only evidence upon this point was in an affidavit of an attorney and counselor at law of that state. The evidence is meagre and not entirely satisfactory and conclusive. It was, however, uncontradicted. It tended to show that the surrogate had jurisdiction to probate the will and issue letters testamentary, and that the probate and issue of letters could not be impeached in a collateral proceeding; that the surrogate had 'under the laws of New Jersey full and competent jurisdiction' to make the order limiting the time for creditors of the estate to bring in their demands, and the subsequent order that all who had neglected to do so 'should be forever barred from their action therefor against the executors of said deceased;' that the acts of the surrogate cannot be impeached collaterally, and that the orphans' court had jurisdiction under the laws of New Jersey 'to direct final distribution of the estate of said testator,' and it cited four cases from the New Jersey reports (Re Coursen, 4 N.J. Eq. 408; Quidort v. Pergeaux, 18 N. J. Eq. 472; Ryno v. Ryno, 27 N. J. Eq. 522; and Re Straub, 49 N. J. Eq. 264, 24 Atl. 569). In relying upon evidence of this kind we are quite aware that we may not ascertain with the precision which might be desired the credit which the state of New Jersey attaches to these judicial proceedings. But it is all that we can have. We think that we may safely infer from it that the order of the surrogate barring all creditors who had failed to bring in the demand from any further claim against the executors was binding upon all. It was an order which he had 'full and competent authority to make,' and it was one of the acts which could not be impeached collaterally. We think, also, that the jurisdiction to direct a final distribution means a distribution which shall be final, so far, at least, as any person having a demand against the estate is concerned. If we have discerned correctly the effect which New Jersey gives to these judicial proceedings, it is obvious that the assessment of this tax renies them full faith and credit in two respects: First, in seeking a part of an estate [207 U.S. 43, 59] which has been finally distributed to those who were entitled to it under the will; and, second, in fixing a personal responsibility for the tax upon the executors who had been conclusively exonerated from such a liability.
Up to this point it has been assumed that the New Jersey court had jurisdiction to probate the will and administer the estate, and what has been said upon the effect of the judicial proceedings has been based upon that assumption. When, however, full faith and credit is demanded for a judgment in the courts of other states, an inquiry into the jurisdiction is always permitted, and if it be shown that the proceedings relied upon were without the jurisdiction of the court, they need not be respected. Thompson v. Whitman, 18 Wall. 457, 21 L. ed. 897; Thormann v. Frame, 176 U.S. 350 , 44 L. ed. 500, 20 Sup. Ct. Rep. 446, and cases cited.
The defendant in error, acting upon this well-settled rule, might have attacked the jurisdiction of the New Jersey courts, and thus brought forward for consideration many important questions which, in the view we take of the case, need not even be stated. But there was no attempt, except in argument here, to deny the right of the New Jersey court to act upon the paper writing, purporting to dispose of the estate of Tilt, and, by admitting it to probate, to convert it into an operative will. It is true that, as a basis of assessing transfer taxes, it was proved that Tilt was a resident of New York at the time of his death,-a fact which would be relevant to the question of jurisdiction. But that fact was not proved or used for the purpose of invalidating the proceedings taken in probating the will and administering the estate. On the contrary, the taxes were based upon the provisions of the instrument, which derived all its authenticity as a will and all its capacity to transmit property from the judicial proceedings in New Jersey. It appears conclusively from the action taken in the New York surrogate court that there was no attempt to declare the New Jersey proceedings void because they were taken without jurisdiction. In the appraiser's report it is said that the deceased had left a will 'which was duly admitted to probate in [207 U.S. 43, 60] the surrogate's court of the county of Morris, state of New Jersey, and that letters testamentary were issued by said surrogate court.' The specific legacies and the disposition of the residue of the estate were then stated. The surrogate, in assessing the taxes, assessed them specifically on the beneficiaries, giving their respective names and the values of the property they respectively took under the will. Two life estates and several remainders, created by the will, were valued appropriately and the taxes assessed accordingly. All this is utterly inconsistent with an attack upon the jurisdiction, and we need not consider whether it could have been made with success.
For the foregoing reasons we think that the judgment below denied to the New Jersey proceedings the full faith and credit to which they were entitled by the Constitution and laws of the United States, and accordingly it is reversed.

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Known best by his pseudonym of Petroleum V. Nasby, David Ross Locke was born in upstate New York near Binghamton to a poor family. According to his biographer, John Harrison, Locke had "little formal education." (5) Instead, Locke built his career off his own hard work and ingenuity, starting from a very young age. When he was 12, Locke became an apprentice at a Cortland newspaper called the Democrat, a position that lasted for seven years. He then went to the Pittsburgh Chronicle, before starting another newspaper, the Plymouth (OH) Advertiser, with one of his friends, Jim Robinson (Pierpaoli Jr. 1148-9; Harrison 26). At the start of the Civil War, Locke was the editor and publisher of the Bucyrus Journal. Harrison argues that it was during his time here that Locke first began to develop the figure of Petroleum Vesuvius Nasby, which would first appear as a pseudonym at the Ohio Jeffersonian on March 21, 1861 (Harrison 66).
The figure of Nasby allowed Locke to "further a cause in which [he] believed passionately," which he did through a series of letters authored by the imaginary character (Harrison 4). Harrison contends that "the Nasby letters are not a collection of humorous sketches but parts of a series of campaigns Locke carried on...with zeal and determination" (5). Counting Abraham Lincoln among his admirers, Locke continued to write Nasby letters until the end of his life. On the night of the 1864 election, as Lincoln awaited the returns, the following scene occurred: "Going to the War Department in the evening, Lincoln amused the company by reading some of Petroleum V. Nasby’s amiable nonsense while the returns trickled in" (L. Starr 333). He later used these letters as a forum for his support of the prohibitionists. The Nasby letters were collected and published in book-form as The Nasby Papers (1864). Locke also wrote longer works like The Morals of Abou Ben Adhem (1875) and the political novel The Demagogue (1891). Though he was offered political appointments by both Lincoln and Grant, Locke refused and instead served as an alderman in Toledo, an office he held until his death (J. Estes).
Nasby's exact connection to Pfaff's is uncertain. Pfaff’s visitor and caricaturist Thomas Nast would later create an accompanying caricature for Locke's imaginary persona of Nasby, but there are no sources that directly link Nasby to Pfaff's or note that he was a visitor to the establishment (Harrison 168-70). The only source that provides any sort of reference to Nasby and Pfaff's is A. L. Rawson's article, "A Bygone Bohemia." On one of the pages of the article, Rawson includes an image entitled "Three American Humorists, in the Pfaffian Days." The three men pictured are: Josh Billings, Mark Twain, and Petroleum V. Nasby (Rawson 98). The article, though, does not place the image in any sort of context or discuss any of the the men pictured in the image to any great detail. Consequently, this vague reference that alludes to Pfaff's does not serve as adequate evidence to establish a concrete connection between Nasby and Pfaff's.
Estes, J. A. "David Ross Locke." Dictionary of American Biography . Base Set. American Council of Learned Societies, 1928-1936. Reproduced in Biography Resource Center . Farmington Hills, Mich.: Thomson Gale, 2006. http://www.galenet.com/servlet/BioRC.
The biography discusses Locke's life and his creation of the "Petroleum V. Nasby" character to support the causes of abolitionism and prohibition.
Nasby "Harangued" May 24, 1870, on "Wimmin's Rights" a week after Elizabeth Cady Stanton spoke at Apollo Hall (669). Nasby also lectured at Town Hall (Queens?) Feb. 9, 1870, on "Stuggle with the Woman Question" (690).
There is an illustration in Rawson of Josh Billings, Mark Twain, and Petroleum V. Nasby, where the three men are identified as "Three American humorists, in the Pfaffian Days" (99).
On the night of the 1864 election, as Lincoln awaited the returns, he read some of Nasby's work aloud (333).
Twain, Mark. The Autobiography of Mark Twain . Ed. Charles Neider. New York: HarperCollins, 2000.
Locke, David Ross (Petroleum V. Nasby). Swingin Round the Cirkle . Ill. Thomas Nast. Boston: Lee and Shepard, 1867.

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A common question under Section 2 of the Sherman Act, which proscribes unlawful monopolization, is whether a company with market power engages in “exclusionary conduct” by choosing not to deal with a competitor. Although the general rule is that an alleged monopolist, like any other company, has no duty to deal with anyone, there are exceptions, the scope of which are frequently debated and litigated.
Since 1970, the U.S. Supreme Court has addressed an alleged monopolist’s duty to deal with competitors in five seminal decisions: Otter Tail Power Co. v. United States2 in 1973; Aspen Skiing Co. v. Aspen Highlands Skiing Corp.3 in 1985; Eastman Kodak Co. v. Image Technical Services, Inc.4 in 1992; Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP5 in 2004; and Pacific Bell Telephone Co. v. Linkline Communications, Inc.6 in 2009. Neither of the latter two cases, which each held that the defendant had no duty to deal, overruled the earlier three, which reached (or at least implied) the opposite conclusion for reasons that are difficult to reconcile with the latter two.
Notwithstanding those three emerging lines of cases, many courts will likely remain reluctant to hold that companies may be liable for refusing to deal with competitors in circumstances dissimilar to those in Aspen Skiing. But companies would be well-advised to be aware of their emergence and monitor whether lower courts expand their reasoning to find potential refusal to deal liability in other contexts in the future.

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Such examination and audit shall be conducted in conformity with generally accepted auditing standards applied on a consistent basis and shall develop the county's financial condition, the condition of each county fund, and the disposition of all money collected or received. Such examination and audit shall be a full and complete audit of the cash receipts and disbursements and shall reflect in supplementary schedules the state of each county fund from which the respective claims are payable.
Source:Laws 1893, c. 15, § 2, p. 148; R.S.1913, § 5646; C.S.1922, § 4973; C.S.1929, § 26-1310; Laws 1937, c. 57, § 2, p. 232; C.S.Supp.,1941, § 26-1310; R.S.1943, § 23-1609; Laws 1979, LB 414, § 2; Laws 2000, LB 692, § 7.


This Article shall provide State and private remedies against motor vehicle manufacturers for persons injured by new motor vehicles failing to conform to express warranties.
(1) "Consumer" means the purchaser, other than for purposes of resale, or lessee from a commercial lender, lessor, or from a manufacturer or dealer, of a motor vehicle, and any other person entitled by the terms of an express warranty to enforce the obligations of that warranty.
(2) "Manufacturer" means any person or corporation, resident or nonresident, who manufactures or assembles or imports or distributes new motor vehicles which are sold in the State of North Carolina.
(3) "Motor vehicle" includes a motor vehicle as defined in G.S. 20-4.01 which is sold or leased in this State, but does not include "house trailer" as defined in G.S. 20-4.01 or any motor vehicle with a gross vehicle weight of 10,000 pounds or more.
(4) "New motor vehicle" means a motor vehicle for which a certificate of origin, as required by G.S. 20-52.1 or a similar requirement in another state, has never been supplied to a consumer, or which a manufacturer, its agent, or its authorized dealer states in writing is being sold as a new motor vehicle.
§ 20-351.2. Require repairs; when mileage warranty begins to accrue.
(a) Express warranties for a new motor vehicle shall remain in effect at least one year or 12,000 miles. If a new motor vehicle does not conform to all applicable express warranties for a period of one year, or the term of the express warranties, whichever is greater, following the date of original delivery of the motor vehicle to the consumer, and the consumer reports the nonconformity to the manufacturer, its agent, or its authorized dealer during such period, the manufacturer shall make, or arrange to have made, repairs necessary to conform the vehicle to the express warranties, whether or not these repairs are made after the expiration of the applicable warranty period.
(b) Any express warranty for a new motor vehicle expressed in terms of a certain number of miles shall begin to accrue from the mileage on the odometer at the date of original delivery to the consumer.
§ 20-351.3. Replacement or refund; disclosure requirement.
(4) Any incidental damages and monetary consequential damages.
c. Any incidental and monetary consequential damages.
(2) To the lessor, a full refund of the lease price, plus an additional amount equal to five percent (5%) of the lease price, less eighty-five percent (85%) of the amount actually paid by the consumer to the lessor pursuant to the lease. The lease price means the actual purchase cost of the vehicle to the lessor.
In the case of a refund, the leased vehicle shall be returned to the manufacturer and the consumer's written lease shall be terminated by the lessor without any penalty to the consumer. The lessor shall transfer title of the motor vehicle to the manufacturer as necessary to effectuate the consumer's rights pursuant to this Article, whether the consumer chooses vehicle replacement or refund.
(c) Refunds shall be made to the consumer, lessor, and any lienholders as their interests may appear. The refund to the consumer shall be reduced by a reasonable allowance for the consumer's use of the vehicle. A reasonable allowance for use is calculated from the number of miles used by the consumer up to the date of the third attempt to repair the same nonconformity which is the subject of the claim, or the twentieth cumulative business day when the vehicle is out of service by reason of repair of one or more nonconformities, whichever occurs first. The number of miles used by the consumer is multiplied by the purchase price of the vehicle or the lessor's actual lease price, and divided by 120,000.
(2) The defect or condition or series of defects or conditions which substantially impaired the value of the motor vehicle to the consumer. Any subsequent purchaser who purchases the motor vehicle for resale with notice of the return, shall make the required disclosures to any person to whom he resells the motor vehicle.
It is an affirmative defense to any claim under this Article that an alleged nonconformity or series of nonconformities are the result of abuse, neglect, odometer tampering by the consumer or unauthorized modifications or alterations of a motor vehicle.
(2) The vehicle was out of service to the consumer during or while awaiting repair of the nonconformity or a series of nonconformities for a cumulative total of 20 or more business days during any 12-month period of the warranty, provided that the consumer has notified the manufacturer directly in writing of the existence of the nonconformity or series of nonconformities and allowed the manufacturer a reasonable period, not to exceed 15 calendar days, in which to correct the nonconformity or series of nonconformities. The manufacturer must clearly and conspicuously disclose to the consumer in the warranty or owners manual that written notification of a nonconformity is required before a consumer may be eligible for a refund or replacement of the vehicle and the manufacturer shall include in the warranty or owners manual the name and address where the written notification may be sent. Provided, further, that notice to the manufacturer shall not be required if the manufacturer fails to make the disclosures provided herein.
(b) The consumer may prove that a defect or condition substantially impairs the value of the motor vehicle to the consumer in a manner other than that set forth in subsection (a) of this section.
(c) The term of an express warranty, the one-year period, and the 20-day period shall be extended by any period of time during which repair services are not available to the consumer because of war, strike, or natural disaster.
§ 20-351.6. Civil action by the Attorney General.
Whenever, in his opinion, the interests of the public require it, it shall be the duty of the Attorney General upon his ascertaining that any of the provisions of this Article have been violated by the manufacturer to bring a civil action in the name of the State, or any officer or department thereof as provided by law, or in the name of the State on relation of the Attorney General.
§ 20-351.7. Civil action by the consumer.
A consumer injured by reason of any violation of the provisions of this Article may bring a civil action against the manufacturer; provided, however, the consumer has given the manufacturer written notice of his intent to bring an action against the manufacturer at least 10 days prior to filing such suit. Nothing in this section shall prevent a manufacturer from requiring a consumer to utilize an informal settlement procedure prior to litigation if that procedure substantially complies in design and operation with the Magnuson-Moss Warranty Act, 15 USC § 2301 et seq., and regulations promulgated thereunder, and that requirement is written clearly and conspicuously, in the written warranty and any warranty instructions provided to the consumer.
b. The party instituting the action knew, or should have known, the action was frivolous and malicious.
No authorized dealer shall be held liable by the manufacturer for any refunds or vehicle replacements in the absence of evidence indicating that dealership repairs have been carried out in a manner substantially inconsistent with the manufacturers' instructions. This Article does not create any cause of action by a consumer against an authorized dealer.
§ 20-351.10. Preservation of other remedies.
This Article does not limit the rights or remedies which are otherwise available to a consumer under any other law.


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On the given stage of motorization level development and increase of traffic flow intensity, with increasing frequency apply to the implementation of intelligent automated systems of traffic control. The quality of their work depends foremost from study of the primary factors of road users, their behavior, including the factor of a person as movement operator, geometric parameters of communication routes, road conditions as movement environment. Such study is held by methods of field research, documentary research and mathematical modelling. Considering transport system, it is necessary to have in mind that we are concerned with the large array of stochastic indicators which, during its normal operation, comply with the normal law of distribution. If the process of traffic flows movement control, including their attachment to the roadway, parameters of which are clearly regulated by standards, is studied relatively in detail, then regularities in pedestrian flows are underexplored only due to the fact that their behavior quite frequently is regulated.
However, enough amounts of mathematical methods of description the different stochastic systems have appeared, based on which it is possible to perform the simulation of road users’ behavior, in particular pedestrians.
In this work it is undertaken experimental research on pedestrians’ behavior on signaled pedestrian crossings in Lviv city for different functional zones and in different time of day, and also it is investigated dynamic factors in traffic flow with the aim of determination the rational (by duration) regimes of traffic light control, during which the amount and duration of delays in traffic flows and the possibility of accidents commission is reduced, which are the consequence of road users behavior.
The backgrounds of these negative phenomena are: fluctuation of traffic flow intensity, when pedestrian during longtime restrictive signals can start to move on restrictive signal of traffic light, what is unexpected for vehicle driver, especially in nighttime when blinding appears; observation only the demands of normative documents during designing the communication routes what is not always adequate for different functional areas of settlements; absence of distinct regulation of range of traffic light control parameters which would create its optimal regimes considering traffic and pedestrian flows behavior.
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Leon J. Setty, (“Petitioner”), incarcerated at the Muskegon Correctional Facility in Muskegon, Michigan, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 [docket entry. In his pro se application, petitioner challenges his conviction for four (4) counts of third-degree criminal sexual conduct (“CSC III”), Mich. Comp. Laws § 750.520(1)(b). For the reasons stated below, the Court will deny petitioner's application.
[T]he victim testified that over the course of her stay in defendant Bennett's cabin, both defendants committed repeated acts of physical abuse, repeatedly uttered threats of death or physical harm toward her, her family members, and others, and that the threats kept the victim from leaving the cabin and kept her from disclosing or seeking help to escape defendants' physical and sexual abuse.
With respect to the intent element, given the consistent nature of both defendants' physical abuse of the victim, threats of death and physical harm to the victim and others, and repeated acts of penetration of the victim (separately and together) in the cabin's mostly open space, the juries could reasonably find that at the time defendants gave aid and encouragement, they knew that their codefendant intended to unlawfully sexually penetrate the victim.
People v. Bennett, No. 299829, 2012 WL 6097317, at *2-3 (Mich. App. Dec. 6, 2012). Petitioner's conviction was affirmed on direct appeal. Id.; lv. den. 832 N.W.2d 235 (Mich. 2013).
Petitioner filed a post-conviction motion for relief from judgment, which was denied. People v. Setty, No. 10-230357-FH (Oakland Cty. Cir. Ct., June 17, 2014). The Michigan appellate courts denied petitioner leave to appeal. People v. Setty, No. 324955 (Mich. Ct. App. Mar. 12, 2015); lv. den. 873 N.W.2d 563 (Mich. 2016).
I. Mr. Setty's Fourteenth Amendment right to due process of law was violated where the prosecution did not present sufficient evidence to prove beyond a reasonable doubt that Mr. Setty was guilty of aiding and abetting criminal sexual conduct.
II. The trial court should not have instructed on the theory of aiding and abetting. The prosecution never raised that claim until after the proofs were in. From the day of his arrest until after the proofs were closed, Mr. Setty was notified and defended against a charge that he directly committed the offense of criminal sexual conduct third degree. This instruction resulted in a compromise verdict where the jury convicted Mr. Setty because he was merely present.
III. The prosecutor's argument violated Mr. Setty's Fourteenth Amendment right to due process of law because it encouraged the jury to convict him based on sympathy for the alleged victim rather than to return a verdict based on the evidence presented at trial.
IV. Mr. Setty was denied effective assistance of trial counsel where his counsel failed to call as a witness a woman named Carol, who would have supported the defense theory that alleged victim [J. G.] should not be believed.
V. Mr. Setty was denied effective assistance of counsel on appeal where appellate counsel failed to investigate and raise on appeal the claim of ineffective assistance of trial counsel.
A state-court decision is “contrary to” clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” occurs when “a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case.” Id. at 409. A federal habeas court may not “issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 410-11.