author: Mr. Justice WOODBURY

text:
    The United States, Plaintiffs in Error, v. Horace Southmayd and Stephen C. Southmayd.
    The decision in the preceding case of Marriott v. Brqne affirmed. The fact, that the seller of sugars abroad takes :into consideration the probable-loss from drainage, does noyustify the collector in our ports in charging a duty upon ■the portion thus lost. The duty must be assessed upon what arrives in this country, and not upon what was purchased abroad.
    This case was brought up, by writ of error, from the Circuit Court, of the United States for the Southern District of New York.
    It involved the same question as the preceding case of Marriott v. Bruñe, viz. whether, in calculating the duties upon an importation of sugar, allowance should be made for leakage and drainage, with the additional fact in evidence, that the purchaser abroad takes into consideration the probable loss íe fixing the price to be paid.
    There was in this case only a single' importation, which was made from Porto Bico, in September, .1849., The weight of the sugar, according to the invoice, was 191,710 pounds Spanish, and its actual weight at the time of entry 180,713 pounds, the difference being 10,997 pounds. 1 he sugar' being, appraised, the appraisers added a quarter of a cent per pound to -the invoice, and upon the invoice price, thus increased, the duty amounted to $ 2,441.70. The defendants paid only $ 2,350, being the duty less the loss in weight from drainage. For the' difference, being $ 91.70, the United States brought suit against the importers. This course Was pursued in order that the case might be brought to this court, under the act of 31st May, 1844 (5 Stat. ait Large, 658). -
    In October, 1849, the cause came on for trial in the Circuit Court, when the jury, under the instructions of the court, which are set forth in the following bill of exceptions, found a verdict for the defendants.

      Bill of Exceptions.

    The counsel for the plaintiffs, to maintain the issue upon their part,- gave in evidence the following invoice and entry. (It is not necessary to recite them in extenso.)

    The counsel for the defendants then and there admitted, that ■the defendants were-partners, and imported and'entered at the custom-house in the city of New York the merchandise contained, in the said invoice and entry; that the invoice weight of the sugar, so imported and entered'as aforesaid, was 191,710 pounds Spanish, ,and that its actual weight at the time, of entry for the payment of duty was 180,713 pounds Spanish, and that the deficiency in the actual weight from the invoice weight was caused by drainage during the voyage of importation, and amounted to 10,997 pounds Spanish, and, at the rate at which the sugars in the invoice were appraised for the purposes of calculating the duty, was of the value of $ 335 in the currency of the invoice.
    The counsel for the defendants also admitted, that the duty upon the invoice weight of sugar at the valuation of the appraisers amounted to $2,441.70, and that they had paid only the sum of $¡ 2,350.
    The counsel for the plaintiffs then, admitted that the plaintiffs’ claim in thiq cause is only for the sum of $ 91.70, being the difference between the duty, if assessed according to the invoice weight, and the duty assessed. upon the actual weight when entered.
    The plaintiffs’ courisel then called witnesses, who, being severally duly sworn, testified- as follows: —
    ■ - Isaac Phillips. I am an assistant appraiser in the New York custom-house, and am principally engaged upon West India goods, — sugars and molasses. I have, been such appraiser since November 30, 1846. The invoice now shown me is the original invoice of the importation of sugars in question in this case, and there, is upon it a return in my handwriting showing that I added one quarter of a cent per pound to' the invoice value. The duty was made up upon (1..) the -invoice price; (2,) the charges of export duty and labor; (3.) usual commission; and (4.) the addition of á quarter of a cent a pound. This ad-1 dition amounted to $ 479.28 in the currency of the invoice.

      Moses Taylor. I am, and for more than twenty years pas.t have been, an importing ■ merchant in the city of Néw York, and am largely concerned in the importation of sugars, mostly from Havana. My own importations for the last two years were from thirty to forty millions of pourids. I imported about 11,000 hogsheads this' year, and about 14,000 last year; the rest of my importation was in boxes. The hogsheads in which sugar is imported are well drove, but not tight, like liquor-casks. The export weight of sugar does not generally hold out on arrival here.
    The deficiency is - about five per cent, on an average on Muscovado sugars ; by Muscovado we mean sugar not clayed or refined, — all sugars which come in hogsheads. This deficiency arises from drainage on the voyage. Never have been in the West India Islands. The fact of the loss by drainage is well- known to the trade, and generally enters into the calculations of the importing merchant; it enters into his calculations as to the cost of the article here. I always make such calculation.
    Thomas Tileston. I am an importing merchant in this city, and am largely'concerned in the West India trade, and constantly receiving sugars. Muscovadoes fall short on arrival, from the export weights, from three to seven per cent.; in the extreme to ten per cent., and on an average four and a half or five per cent. This deficiency is caused by drainage. What, passes off is syrup or molasses, and goes into the ship’s hold and' is a total loss. The casks are not made tight, because it is not necessary. Tight hogsheads, which would prevent the loss of weight by drainage, cost much more than those actually used. A rum-hogshead costs, twice as much as the usual sugar-hogshead, and the rougher casks answer as well. If the syrup or molasses were kept in by tight hogsheads, it would settle in the lower part of the hogshead, and it would cost, as much to extract it as it is worth. The effect of importing in tighter casks is not to improve the sugars. We all, who.are familiar with .the trade, understand that the sugars will fall short. We know when we ■buy that they will fall short in weight on arrival.
    Henry A. Coit. I am an importer of this city engaged in commerce with the West Indies. I have resided many years in Cuba, and have seen sugars manufactured and packed. They are packed in White-oak casks, very strong, to resist' pressure, but not so tight as to prevent drainage. The sugar is placed in the casks originally for the . purpose of drainage. After it is boiled it is first placed in vats for cooling, where it remains three or four hours; it is then put' into the hogsheads, and they are placed in the receiving-house, standing on their chines over a tank. The bottom cif the hogshead is perforated with three or four holes, one half or three quarters of an inch in diameter, to allow free drainage, .to let the molasses run into the tank. The next process is to put sugar-cane plugs into the holes, which stops the drainage partially but not entirely.. The sugar remains thus in the receiving-house three weeks, sometimes longer, for the purpose of drainage ; the casks are then filled up with sugar,, the heads put on, the, hoops driven, the casks turned upon their bilges, and rolled out,for exportation ; the holes are generally left' with the sanae stoppage of sugarcane. • The drainage continues until arrival, and after arrival, in New York, but hot through the holes in the heads of the hogsheads. The per centage of loss is more or less, according to th¿ perfection' of the first drainage and the length of the voyage ; the average is about five per cent. The fact that imported sugars 4o not hold out in weight is well known to the trade, and enters into’ the Calculation of the importer.
    Being Cross-examined by defendants’ counSel, the witness testified that the drainage after the hogsheads are rolled out is from the bilge between the staves, and from the lower heads, where the staves join the heads.
    Royal Phelps. I am a merchant in New York in the West India trade, and. deal in Porto Rico sugars. I have been in Porto Rico, and have seen sugars made there. There in no material difference between the mode of making sugar in Polto Rico and that in use in Cuba, as stated by the last witness. In Porto Rico they; use red-oak staves for the hogsheads, and' do not. usually drain the sugar So long, I think, as three weeks. Porto Rico sugars do not usually hold out on arrival to the export weight; drainage on the voyage is the general causé. I have known invoices overrun in weight on arrival, but in such cases I supposed. there was some error .in making up the invoices. • This' loss is well known to the trade, and enters into the calculations of the merchant; the average deficiency is five per cent., perhaps more.' Porto Rico usually loses more than Cuba sugar. I am of the firm of Maitland, Phelps, & Co.
    The plaintiffs* counsel thereupon rested1, and the defendants’ counsel thereupon called witnesses, who, being sworn, severally testified as follows : —
    Thomas Tileston, being further cross-examined by defendant’s counsel, testified: We have imported sugar more or less for more than twenty-five years; have bought and have received consignments. Of late years we have imported several thousand hogsheads each year. .1 have usually found the holes in the casks filled with sugar-cane, with the hard part’of the cane loosely put in and easily drawn out by a gimlet. The drainage on the voyage is from the bilge; it is not possible for it to dram from the heads, as the casks are stowed on the bilge. I think no party would be authorize'd to stow the casks on the chines good and ordinary stowage would be on the bilge. The^sügárcane is a soft substance, and is not put in with much careit is to keep the sugar from coming out of the holes, and is sufficient for that purpose. It is my impression, from my experience, that the drainage of the sugar produces a grayish color. The grocers like a sugar of a bright color, with a large, clear, transparent grain. The draining detracts from the liveliness of the sugar ; it produces a grayish color, which makes it of less value.
    ■ -Being cross-examined by the plaintiffs’ counsel, the witness testified: All Muscovado .sugars diminish above five per cent, on the average. The sugars that drain most are more likely to turn gray, and thus be affected as to their value, than those that drain little. It is difficult, perhaps impossible, for any one purchasing sugar in Cuba to tell how it will turn out in New York, either in respect to drainage or color. In deciding upon the quality of sugars, the judgment of merchants is frequently baffled. I cannot say how large a proportion of sugar turns out grayish or sick., I can say, as a general' thing, that draining on the voyage does not imprové, but, if any thing, deteriorates the sugar. The sugar generally changes, but does not improve on the voyage. The samples imported in air-tight tin cases (whether rightly sampled in Cuba I cannot say) are better than the sugars in bulk. I have never been in the countries of export, nor seen sugar made, or before it was exported ; I judge of the deterioration from what I know, as well as what is the general opinion.
    John W. Downes. I am a master of a vessel. I have become acquainted with the manufacture of sugar in Porto Rico. I resided there seventeen years, and was connected with the manufacture of sugar. The process in Porto Rico varies but a trifle from that described by the witness, Mr. Coit. The sugar is from fifteen to thirty days purging in the receiving-house, in the casks. The planters use rough-made casks, like rice tierces, only stronger, made of red-oak. The sugar, when placed in casks, is a sort of thick syrup. The holes are bored in the bottom head of the casks. When the drainage is completed, the casks are headed up and rolled out. The sellers never stop the holes up otherwise than as while draining with sugar-cane. Sometimes purchasers put in other plugs-; I do always, but as' a general rule it is not done. The casks are* stowed on the bilge, and the drainage is entirely from the bilge, not through the holes.
    Being cross-examined by the plaintiffs’ counsel, the witness testified : The casks are stowed on the bilge because they make better stowage for the vessel, and in every way.
    Being further examined by the counsel for defendants, the witness testified: I have seen sugar at Porto Rico, on the voyage, and here. Sugar is deteriorated on the voyage, but what effect drainage has on it in this respect I cannot say ; whether it is the steam, want of air, bilge-water, drainage, or what injures it, but I know the fact that generally it is injured.
    The defendants’ counsel then introduced in evidence the following return of the weigher at the custom-house in New York, which was read to the court and jury.

      Weighmaster’s Return, Import per Brig John Colby, Ponce.

    H. Southmayd & Sons.
    Matilda, 76 hogsheads of sugar T 4() (« a . J 24 “ “ •Quemada, 21 “ “ L M 10 “ “ 90,916 47,808 30,820 26,340 12,428 10,909 5,736 3,698 3,160 1,491 80,007 42,072 27,122 20,575 10,937
    180,713
    New York, September 29, 1849.
    Darius Ferry,

      United States Weigher.

    Invoice weight ........... 19l,7101bs. Actual weight in New York......'180,713 Difference ............. 10,9971bs.
    The defendants’ counsel then offered to prove that the drawback upon reexportation was always calculated upon the actual weight of the sugar at the time of reexportation, as shown by the' weigher’s return. To this proof the plaintiffs’ counsel objected, but the court overruled the objection, and admitted the testimony, and to such ruling the plaintiffs’ counsel then and there excepted..
    The defendants’ counsel then proved that, upon reexportation of sugars, tne drawback was calculated upon the actual weight, as sfibwn by the weigher’s return at the time of reexportation.
    The defendants’ counsel then rested ; whereupon the court charged the jury, that: the United States were not entitled to collect any more duties on the defendants’ sugars than upon the appraised value per pound, calculated upon the quantity actually entered, as shown by the weigher’s return, and that they should find a verdict for the defendants.
    To this charge of his honor, the judge, and every part thereof, the plaintiffs’ counsel then and there excepted.
    Upon this exception the case came up to this court.
    It was argued by Mr. Johnson (Attorney-General), for the plaintiffs in error, and Mr. Butler, for the defendants in error..

      Mr. Johnson, for the plaintiffs in error,
    made the following' points: —
    1st. That the .duties were properly assessed upon the amount of the invoice, under the eighth section of the Tariff Act of 1846.
    2d. That by the sixteenth and seventeenth sections of the Tariff Act of 1842, which are in force, the decision, of the appraisers is final, unless appealed from to two merchants, whose decision is also final. 5 Stat. at Large, 563, 564.
    3d. That if it were not, the duties were properly assessed, the loss of the sugars from drainage entering into the estimation of their value at the ..time _of purchase, and their cost to the importer at the time of landing in this country.
    4th. That the evidence introduced to show that drawback upon reexportation was always calculated upon the actual weight of the sugar at the time of reexportation was improperly allowed.

      Mr. Butler, for the defendants in error,
    made the following ’ points: —
    I. It is conclusively shown; by the facts given in evidence upon the trial, that the difference between the invoice weight at the port of shipment, and the actual weight in New York (10,9971bs. Spanish); was caused by drainage during, the voyage of importation.'
    II. There being no question of fact to be submitted to the jury, the whole case resolved itself into a question of law, that is, the construction to be given to the- proviso in the eighth section of the Tariff Act of July 30, 1846 (Acts and Resolutions 1st Sess. 29th Cong., authorized pamphlet ed., pp. 69, 70), declaring, “that under no circumstances shall the duty be assessed upon an amount Jess than the. invoice value, any law of Con gf ess to the contrary; not withstanding.”
    In the interpretation of this clause, it is submitted that the following rules should be observed : —
    1st. If the words of the proviso be bbscure, the intent of its makers is to be resorted to, in order to discover their meaning. 6 Bac. Abr., tit. Statute, 1.§ 6, pp. 384 — 386 ; Dwarris on Statutes, 688 - 690.
    2d. This intent is to be collected from the context; from the occasion, spirit, and reason of the law; from other acts in pari materia yet in force ; and from the general course of -legislation on the subject. 1 Bl. Com. 60, 61, 87, 88; 6 Bac. Abr., tit. Statute, 1 §§ 2, 3, pp. 380, 382; 1 Kent’s Com. pp. 461-464; The Sloop Elizabeth, 1 Paine, C. C. 11; Bend v. Hoyt, 13 Peters, 270-273; Lawrence v. Allen, 7 Howard, 793.
    3d. While such a construction should be given to the proviso as will remedy the mis-, hief which led to its enactment, the words should not be -extended to. embrace cases not within such mischief. Authorities above cited; Reniger v. Fogossa, Plowden, 1, 20; Zouch v. Stowell, Plowden, 365, 366; 2 Coke’s Inst. 386; Williams v. Pritchard, 4 T. R. 2.
    4th. Nor, if the words of the proviso can be otherwise satisfied, should they be so construed as to produce a consequence repugnant to reason or justice, even though such a consequence be within their literal meaning. Authorities above cited.
    6th. Repeals by implication are not favored (6 Bac. Abr., tit. Statute, D. p. 373; 2 Dwarris, 673, 674); and therefore a construction which will involve such a repeal of provisions heretofore always treated as an essential part of the revenue laws, and not plainly repugnant to the new statute, should be avoided.
    6th. A thing which, by the sound application of the foregoing rules, is found not to be within the intent of Congress, is not within the statute, even though embraced by its letter. The generality of the clause must,, in this case, be so restrained in its interpretation as to conform to the intent of its framers. Authorities above cited.
    7th. If, after applying all other rules, it be found that the clause equally admits of two constructions, the one imposing, and the other omitting to. impose, a burden on the importer, the former of these constructions is to be - preferred as the true one. Dwarris on Statutes, 743; Hubbard v. Johnston, 3 Taunt. 177, 220, 221; Adams v. Bancroft, 3 Sumner, 387; Bend v. Hoyt, 13 Peters, 270, 273, 278.
    III. The claim of the United States, to collect duties on the invoice weight of the sugars in question, is founded on a construction of the proviso which makes it include the quantity as well as . the cost or value of the goods mentioned in the invoice. If this be its true construction, the following results are unavoidable : —

      1st. The operation of the clause cannot be limited to Muscovado sugars, the article now in question, but must equally apply to all other imported articles, the cost or value of which is stated in the invoice in- reference to, and by the computation of, the quantity .of such article.,
    2d. The merchant will be compelled to pay duties on the quantity mentioned in his invoice, how much soever it may exceed the quantity actually imported, and no matter to what cause the difference may be referrible.
    3d. As the eleventh section of the act of 1846 (pamphlet ed., p. 70) repeals all acts and parts of acts repugnant to its provisions, the construction claimed by the government, if adopted, must of necessity involve the repeal of all former laws making allowances for damage, deficiency, or loss occurring, by whatever cause, during the ;voyage of importation.
    4th. It will also render nugatory many acts still required of •the importer, and of the officers of the customs.
    IV. The proviso in the eighth section of the Tariff Act of July 30th, 1846, under which the United States claim to collect duties on the invoice weight of the sugars in question, does not, on its fair and true construction, warrant such claim. It relates merely to the cost or value of the goods mentioned in the invoice ; it leaves the quantity of such goods to be ascertained according to the preexisting laws; and in cases where quantity enters into the valuation, it forbids the assessment of the duty upon an amount less than that, produced by calculating the true quantity of the' goods actually imported, according to the price or value stated in the invoice,; but it does not require or authorize the collection of duties on goods which, though described in the invoice, are never brought into the country.
    V; The proof given on the trial, that the. loss in weight on Muscovado sugars, by drainage during the voyage of importation, is well known to the importing merchants, and enters into their calculations, has no bearing whatever on the construction of the act of Congress, nor can it invalidate the construction given to it by the Circuit Court. Nor is the fact, in any other respect, material or relevant to the,decision of this cause.
    VI. The fact, that the government appraisers, on their examination of the sugar, added to its cost or value one quarter of a cent per pound, amounting, on the invoice weight, to $ 479.28 in the currency of the invoice (Macuquino currency, 87\ cents to the dollar, Invoice and Entry, Record, pp. 6, 7), and that this appraisement was submitted to by the defendants, has no bearing whatever on the questions presented by the record.
   Mr. Justice WOODBURY

delivered the opinion of the court.

This case was an importation of both sugar and molasses, under circumstances raising no question, except one, which has not been settled in the preceding case of Marriott v. Bruñe et al.

The additional point here arises on the evidence of several witnesses,, that, when sugars of this .kind are purchased abroad, the buyer usually takes into-consideration in fixing the price, that the drainage or waste in weight will probably equal near five per cent, on the whole. It is argued, that the price abroad is, therefore, lower in this proportion on this account; and hence, that no deduction should be made here for what is taken into consideration there.

But the first answer to this position is, that if the price is fixed too low there, or lower than-it should be on the quantity likely to be saved and to arrive here, it is the duty of the appraisers to raise the price ;. and it must be presumed they would raise it, if required by all the facts.

In the next place, this calculation by the .merchant abroad in fixing the price is a mere speculative or commercial one, Connected with profit and loss, and not with a view to the duties to be assessed here.

Again, the duty here is regulated by law, and not by any es-* timates of such a character by men of business; and by law it is imposed on the quantity entered here, and not the quantity shipped abroad; and on the true price abroad as estimated by the appraisers, and not necessarily as estimated by the owners.

Again, if the owner was benefited by this drainage in the improved quality of the sugars or molasses left, and to the extent of the- loss in weight, there might be some equity in considering him liable for the weight abroad. But, as explained in the preceding case, such does not seem to be the current' of the evidence,

There are cases, likewise, of imports here, made by the producers of the article abroad. ' In those, this supposed element in the price to prevent the justice of a reduction in the weight here could hardly existías there is no sale abroad ; and this shows the incongruity and want of applicability of such a fact to constitute a rule, in any case’, for estimating ad valorem duties.

■ There is another-objection in the argument of this case, that some matters of fact were not submitted to the jury; But as no request was made on that point below, and the questions seem, by ácqúiesc.ence on both sides, to have been ruled on the law only, so as to be reconsidered here, it is too late, we think, for objections like those.

Judgment affirmed.

Order.

This cause came on to be heard on the transeript of the record from the Circuit Court of the United States for. the Southern District of New York, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed.


source: Caselaw Access Project

author: Mr. Justice NELSON Mr. Justice DANIEL

license: Public Domain

text:
    The State of Pennsylvania, Complainant, v. The Wheeling and Belmont Bridge Company, William Ottersan, and George Croft.
    In a -cause depending in this, court in the exercise of original jurisdiction, wherein the State of Pennsylvania complained of the erection of a bridge across the Ohio River at Wheeling, the cause was referred to a commissioner, for the purpose of taking further proof, with instructions to report to the court by the first day of the next stated term.
    This case was transferred to this court by an ordet of Mr. Justice Grier, one of the judges of the Supreme Court of the United States, under the following circumstances.
    On the 16th of August, 1849, at the coprt-room of. the Circuit Court of the United States, in the city of Philadelphia, before Mr. justice Grier, one of the judges of the Supreme Court Of the United States, Mr. Stanton appeared to move for an injunction in behalf of the State of Pennsylvania, at the instance of her Attorney-General, against the Wheeling and Belmont Bridge Company, and their agents, William Ottersan and George Croft..
    Notice of the motion was given on the 28th of July. At the same time, a copy of the bill was served upon the defendants. The bill stated, among other things,

      “ That the Ohio River, being one of the navigable waters leading into the. Mississippi, is, .and for .a long time hath been, an ancient navigable public riirer, and common highway, free, to be navigated by the citizens of the. State of Pennsylvania, as well as by all other , citizens of the United States. That heading at. Pittsburg, in the State of Pennsylvania, arid running through that State for the.distance of fifty miles, navigable for its Whole extent from. Pittsburg to .its mouth, many citizens of that State long have been, and of right were, and still are, accustomed to navigate said river, to pass and repass along its course and channel unobstructed and at pleasure, with their steamboats, transporting passengers in great numbers, carrying large quantities of freight, and conducting a valuable trade and commerce between the city of Pittsburg, in the State of Pennsylvania, and the ports of Cincinnati, Louisville, St. Louis, New Orleans, and many'other places on the Ohio and Mississippi Rivers, and their branches.
    “ That the defendants are erecting a bridge one hundred miles' below Pittsburg, across the channel of the Ohio River, between Zane’s Island and the main Virginia shore or bank at Wheeling. That this bridge will hinder and prevent the passage of citizens of the State of Pennsylvania along said river under said bridge, with their steamboats, as they are commonly accustomed to do, and will obstruct the navigation of the Ohio River. That it will interrupt, hinder, and disturb the citizens of the State of Pennsylvania in their lawful use and enjoyment of the Ohio River as a common highway, in passing and re-passing the same, will increase the difficulty, hazard, and expense of navigating it with their steamboats carrying passengers and freight as they have been accustomed, and are now doing, and have right to do j and will interrupt, diminish, and greatly disturb the trade, commerce, and business of the citizens of Pennsylvania over and upon said river, and between the city of Pittsburg and other ports on the Ohio and Mississippi Rivers and their branches; to the great damage and common nuisance of the citizens of Pennsylvania, as well as of other citizens of the United States, and to their irreparable injury.”
    It also stated that the bridge was erected'under color of an . act of the Virginia General Assembly, which provides, “If the said bridge, mentioned in the eighth section of this act, shall be so erected as to obstruct the navigation of the Ohio River in the usual manner, by such steamboats and other crafts as are now commonly accustomed to navigatá the same, when the river shall be as high as the highest floods heretofore known, then, unless, upon such obstruction being found to exist, such obstruction shall be immediately removed or remedied, the said last-mentioned bridge may be treated as a public nuisance, and abated accordingly.” That steamboats were accustomed to navigate the river requiring a space of eighty feet above the water surface, and thát the flood of 1832 was 44J feet above low-water level, usual spring floods being 35 feet, and that the bridge was to be only 93| feet above' low-water level at its eastern end; and 62 feet at the west end.
    It was also stated, by way of amendment, that the State of Pennsylvania owned and possessed.certain valuable public improvements of canals and railways fpr the transportation of pas-, sengers and goods, constructed at a great expense, for channels of commerce, to connect the waters of the Delaware River with the Ohio' at Pittsburg, and the waters of Lake Erie with the Ohio at Beaver. That from the transportation of passengers and goods along these works, she was accustomed to receive large tolls and revenue. That these works terminated at, and are constructed with direct reference to the free- navigation of, the Ohio River. That the goods and passengers transported to and from those ports upon her improvements were accustomed to arrive and depart in steamboats along the Ohio River ; and that the Wheeling Bridge would so obstruct the navigation of the river as to cut off the trade and business along the public works of Pennsylvania, impair and diminish her tolls and revenue, and render her improvements useless.
    The bill prayed injunction and general relief.
    With the bill'were filed exhibits, viz.: —
    1. The Act of Incorporation by the General Assembly of Virginia, under which defendants claim right to erect the bridge.
    The charter contains this clause : —
    “ If the said bridge, mentioned in the eighth section of this act, shall be so erected as to obstruct the navigation of the Ohio River in the usual manner, by such steamboats and other crafts as are now commonly accustomed to navigate the same, when the river shall.be as .high as -the highest floods heretofore known, then, unless, upon such obstruction being found to exist, such obstruction shall be immediately removed or remedied, the said last-mentioned bridge may be treated as a public nuisance,and abated accordingly.”
    2. A Report of the Engineer of the Bridge Company, accompanied by a diagram.
    In this report, the bridge is represented to be 92 feet, at the water’s edge, above.the low-water line on the Wheeling side, and on the island side 62 feet, deflecting from the water’s edge at Wheeling to the island at the rate of 4 feet in 100.
    The report also states, that the flood of 1832 was 44J. feet above the low-water level.
    . A supplemental bill was also'exhibited by complainant’s counsel, setting forth that, sinee the preparation of the original bill and service of notice, the defendants had proceeded with their work, and had stretched iron cables across the channel • of the river so as to obstruct navigation. It prayed that .these might be abated, and for relief, as in the original bill.
    The complainant’s counsel then read añidavits to show, among other things : -w

      1. The amount of steamboat trade and commerce of the ■Ohio, between Pittsburg and the ports of Cincinnati, Louisville, St. Louis, New Orleans, and other places on the Ohio and Mississippi Rivers.
    2. That a large portion of the steamboats engaged in this trade are owned and navigated, in whole or in part, by citizens of Pennsylvania.
    3. That the principal steamboats engaged, in this trade require for free passage from sixty to eighty feet space above the water surface, and, as now constructed, cannot, on high Water, pass the .bridge at Wheeling.
    4. That the present diameter and height of their chimneys have been found by experience to be essential to their speed and capacity, and cannot be reduced without impairing the fitness of the boats for profitable and useful trade and.commerce.

      5. That their chimneys cannot be lowered, so as to pass the bridge at Wheeling on high water, without changing their construction, at a great expense; and the process of lowering and hoisting will always be attended with expense, delay, and imminent hazard to the safety of the boat, its crew and passengers, — chimneys being six feet in diameter, and over forty feet above the hurricane deck.
    6. Thát the Pittsburg packets,' and other boats of the largest class, have been accustomed to navigate the river to and from Pittsburg,. at • their present height, arid no boats lower their chimneys except when compelled by the state of water in the river to pass through the canal around' the falls at Louisville.. .
    7. That the boats accustomed to lower at Louisville are built ■with reference to passing through the canal, and are much smaller in size and capacity than'the Pittsburg packets, and other boats accustomed to navigate the rivers in high waters.
    8. Thaf, in the opinion of many practical men, it is impossible to reduce or lower the chimneys of such boats as áre engaged in the packet trade. And .that the bridge at Wheeling will so obstruct their navigation at high water, for which they are specially adapted,- as in a great measure to exclude them from business and diminish their valuef there being seven packets, tostiag each from thirty to.forty thousand dollars.
    9- That the bridge at Wheeling will so obstruct navigation that a large ’ portion of trade hitherto accustomed to pass and repass to ■ and from Pittsburg will be. excluded from that port and other ports ofOhio and Pennsylvania above Wheeling.
    10. That, in the opinion of competent engineers, a bridge might be so erected as not to obstruct navigation.
    The defendants then filed to the. original bill their answer, in which it was set forth,

      .That by the statutes of Virginia, -referred to in the bill, the defendants are the delegates and trustees of certain franchises, part of the eminent domain of that State, exercisable within. her territory.
    That, the sovereignty of Virginia over the place in which this erection' is to be made has never been ceded or surrendered. That the clause of the Ordinance' of 1787 which declared that “the navigable waters leading into the Mississippi and St. Lawrence, &c.; shall be common highways, and for ever free to the citizens of thé'United States,”'&c., was not intended-to -operate within the reserved territory-and sovereignty of Virginia.
    That a free navigation is not to be understood as one free from such partial or incidental obstacles as the best interests of society may render necessary, and does not prevent States from constructing in or over such rivers such beneficial bridges or useful improvements of navigation as may not materially obStruct them as highways.
    - That Congress, in 1806, ordered a road to be constructed froth Cumberland to th,e Ohio, and afterwards provided for its continuation from the westérn bank of Ohio to the-Muskingum River and Zanesville, and so on through the States of Ohio, Indiana, and Illinois.- That this ro^d was- afterwards surrendered to the States through which it passed.
    That the passage by ferry between Wheeling, and Zane’s Island was found dilatory and precarious by day, ahd ordinarily useless by night, being frequently impassable on account of ice, &c.
    That, á bridge being much, desired by the people of Ohio and Virginia, acts were passed in 1816 by those States, authorizing a bridge across the river at Wheeling, but which provided that, if such bridge should.be so constructed as to injure the navigation of the said river, it should be treated as a public nuisance, and be liable to abatement as other public nuisances. And ten years were allowed for completion of the bridge.
    That, by an act of Virginia of 1836, certain facilities for the reorganization of the said company were conferred, and the time, by-consent of Ohio, extended ten years longer; that this ¿ompany constructed a bridge from Zane’s Island to the Ohio, or western shore.
    That on the 14th of March, 1847, the Legislature of Virginia passed an act reviving and continuing certain parts of the" former acts, and providing for the reorganization of the corporation “with power to erect and keep a.wire suspension• toll-bridge eh and from Zahe’s Island' to and upóla the main Virginia shore or bank at the city of Wheeling.”

      That this act had the following proviso: —- “ That if the said hr dge shall be so erected as to obstruct the navigation of the Ohio River in the usual manner, by such steamboats and other crafts as are now accustomed to navigate- the same, when the river shall be as high as the highest flood therein heretofore known, then, unless, up'on such obstruction being found- to exist, such obstruction shall be immediately removed or remedied, the said last-mentioned bridge may be treated as a public nuisance, and abated accordingly.”
    That .respondents were organized under this act in May, 1847, and an engineer appointed in July, 1847, who reported a. plan, which was published and extensively, circulated, -and made contracts for its erection in September, 1847.
    That the elevation of the bridge at the highest point over the channel is over 934 feet above low-water surface.
    That for eighteen months past it has been “ steadily and notoriously-progressed with” ; that the persons at whose suggestion these proceedings are instituted must have known it, and yet, while all this expensive work was being done, no objections were made, but the work' quietly permitted to progress until nearly the whole cost of the bridge was expended, the first wires drawn over, and the bridge on the eve of completion.
    The arfswer insists on the following grounds of objection to the proceedings: —
    1st. That if the evils imputed to this bridge were true, the persons injured might' have remedy in the courts of. Virginia, and her Attorney-General is ready to institute proceedings by quo warranto or indictment.
    2d. That the complainant has no corporate capacity to become a party to a suit in the Supreme Court, to protect or vindicate the rights of her citizens, and pi-ays that this part of their answer may stand for a demurrer or plea, as well as answer.
    3d. The defendants admit that the citizens of Pennsylvania,, in common with the citizens of the whole United States, are entitled to the use of the Ohio as a. common or public highway, but claim that their bridge is not an obstruction, and is. itself a connecting line of a great public highway, as important,as a means of intercommunication, as the navigation of the-Ohio, and “ claim the principle of concession and compromise, which enters so largely into the structure of our government.” That -this bridge will be very beneficial to the people of the neighbouring States.
    4th." That the State of Pennsylvania herself has. set the example of authorizing bridges to be constructed across this stream no higher .than this.

      5th. That the report of certain, engineers of the United States to Congress, in 1848, recommended a wire bridge, and gave as their opinion, that “ by an elevation of ninety feet every imaginable danger of obstructing or endangering the navigation would be avoided.” Also, that certain reports of committees in Congress recognized the necessity, of a bridge at Wheeling, and recommended an appropriation, stating that a. bridge can be erected that will not offer the slightest obstruction to the navigation.
    6th. That the objections to the bridge are only to the insufficiency of headway for steamboats, and they aver that the headway left is amply sufficient; that the highest usual rise of the river Ohio does not exceed thirty-eight and a half feet, but will not average thirty-five feet for spring floods, nor much exceed twenty-nine feet; that the flood of 1832 was an extraordinary flood, which rose forty-four and a half feet above low water at Wheeling, on the 11th of February, 1832 ; that landings and warehouses were under water, and the river too high for navigation, or, if navigated, that .boats might have passed over Zane’s Island.
    7th. That for all useful purposes the pipes of steamboats need not exceed forty-seven feet above the water, and if the draft should not be sufficient at that height, that blowers might be added.. That chimneys might have hinges on them, so that they could be lowered without much inconvenience. That the bridge over the canal at Louisville does not give a headway of over fifty-six feet, and chimneys of greater height usually have hinges to. accommodate themselves to it, and steamboats made with high chimneys and without hinges should conform, “ because the height of chimneys of steamboats above a certain limit involves secondary considerations of contingent and relative expediency or convenience, rather than such as are of absolute importance or necessity in connection with the material or indispensable purposes of navigation.”
    8th. That the bridge will not be an appreciable inconvenience to boats of the average class, whose height, they aver, will not average over fifty-two feet, and not sixty-five feet, as stated in the bill; but it is admitted that there are boats whose chimneys are of greater height, which is asserted to be unnecessary; or, if necessary, they should be provided with hinges ; that these high chimneys have been but lately brought into use, are of “ extravagant and unnecessary ”. height, and “ got up ” by commercial rivals, who promote these proceedings “ in the name of a sovereign State, to destroy a useful and necessary work.”

      9th and lastly. That the bridge will not diminish or destroy trade between Pittsburg and other ports, or do irreparable injury to the citizens of Pennsylvania.
    Affidavits were also read to support the answer.
    After argument by counsel, Mr. Justice Grier delivered an opinion, which concluded ^s follows : —
    “ The application of the principles I have stated to the facts of this case will result in refusing, without prejudice, an injunction before the sitting of the Supreme Court, for the following reasons—
    “ 1st. Because the question pf the plaintiffs right to prosecute this is new, and involves the jurisdiction of the court. For if the State of Pennsylvania is not entitled to prosecute such an action, the Supreme Court can have no original jurisdiction in the Case.

      “ 2d. The injury threatened is- not imminent and certain, but contingent. It may or may hot happen before the final hearing of this cause, or before this application may be renewed before the court. In the mean while, this cause may be brought to a final hearing, the cause being now at issue, and having preference on the list. And- on the first Monday of December next the plaintiff Will have an opportunity of moving the court for an injunction on the bill and answer, when the question of jurisdiction can be finally decided. Nor is there any evidence to justify the supposition, that in the mean time the ihcome of the Pennsylvania improvements will be materially affected.

      “ 3d, The injury will not be irremediable if any should occur; as the owner of every boat which may' be' hindered or delayed in the mean time from passing along the river by this obstruction will have a clear - remedy at law, to recover damages against the company and the individuals engaged in its erection. ' -
    “ 4th. If the defendants proceed in the mean timé to complete the bridge, they will gain no equity thereby; but if judgment be obtained against them, they will be compelled to abate the nuisance at their own expense.
    “ It is therefore ordered, that said bill and supplemental bill, . answers, and exhibits here read, be filed.in the'clerk’s office of the Supreme Court of the United States, and that the defendants answer the amendment and supplemental bill within thirty days, and that on the first day of the next terrñ of the Supreme-Court of. the United States'-the complainant have leave to move for an injunction, as prayed for in said original and supplemental bills, and that this order and notice be entered by the clerk on the' docket of said court”

      Pursuant to. this order, the bill, supplemental bill, and answers were filed in the office of the clerk of the Supreme Court, at Washington, on the 6th of September, 1849.
    On the 7th of October, 1849, the Wheeling and Belmont Bridgp Company filed, their answer to the amended and supplemental bills, reiterating the grounds of defence assumed in the first answer, and suggesting others which had not been previously noticed.
    On the 12th of November, 1849, the plaintiff served on the defendant a notice of her intention to apply to the Supreme Court for an injunction, as prayed for in the original and supplemental bills, on other grounds which were set forth in a second supplemental bill, a copy of which accompanied the notice. This second supplemental bill averred that .the defendants had erected their bridge over the channel of the Ohio in such a manner as to hinder, and obstruct, and prevent the passage of steamboats, owned- and navigated by citizens of Pennsylvania, to and from her ports, over and along said river, and from passing from Pittsburg to other ports in Ohio and Kentucky below said bridge. It charges, that on the 10th day of November, 1849, the steamboat Messenger', owned and navigated by citizens of Pennsylvania, engaged in the carrying trade between Pitts-burg, a port of entry in Pennsylvania, and Cincinnati, a port of entry in Ohio, and intermediate ports, duly licensed, equipped, and enrolled according to the acts of Congress, cleared from the said port of Pittsburg with a large cargo of freight and pas-, sengers for the port of Cincinnati and other intermediate ports, and while on her voyage along the channel of said river, On the night of the 10th of November, at a usual stage of water, to wit, twenty-one feet, was hindered and obstructed from passing along said channel, and obliged to stop by reason of said bridge, and with great trouble and danger to the officers and crew, and expense and loss of time to her owners, was compelled to have seven and a half feet of her chimneys cut off in order to pass said bridge.
    It is further alleged that the Hibernia, another boat ow™ed arid navigated by citizens of Pennsylvania, on a voyage from Cincinnati to Pittsburg, on the 11th day of November, 1849,. was hindered by skid bridge from prosecuting her voyage, and obliged to stop at Wheeling, a port of entry in Virginia, and there discharge her passengers and cargo: •
    The bill further charges, that, since the filing of said original bill, sundry, citizens of Pennsylvania have contracted for, and are engaged in, the construction of ships and sea-going vessels, • to be propelled by wind- and steam, and desire to continue in said business. That the building of such vessels is . a profitable branch of business, and that any obstruction to the navigation of the Ohio River at high stages of water will interfere with and destroy said branch of business, and prove alike detrimental to the revenues of the Commonwealth of Pennsylvania and to the interests of her citizens. It is further charged, that the Wheeling Bridge will produce this result, and practically give a preference to the port of Wheeling and other ports, lower down the river, to the great injury of the citizens' and State of Pennsylvania. The plaintiff, therefore, prays that the defendants may be enjoined from keeping said bridge across said river, and be required to abate the same.
    On the 2d’of February, 1850, the defendants filed their answer to the second supplemental bill.
    It stated,’ “ that, since the filing of their former answers, in this case, the Legislature of the State of Virginia have passed an actamendatory and explanatory of the various acts which had been previously passed by that body, (and which taken together constituted the charter under which your respondents erected their' .bridge,) and more particularly of the fourteenth section of the act passed March 19, 1847. This amendatory and-explanatory act declares in substance, that, whereás the Wheeling and Belmont Bridge Company, by virtue of an act passed March 19', 1847, entitled' ‘ An act to revive and amend an act, entitled an act incorporating a company to r erect a toll-bridge over the Ohio River at Wheeling, passed February 10, 1836,’ had erected across and over ’the main channel of the Ohio River, from the main Virginia shore to Záne’s Island, at the city of Wheeling, in Ohio County, a wire suspension-bridge, consisting of a single . span of one thousand and ten feet from centre to. centre of the supporting towers, the height'of which is ninety feet at the eastern abutment, ninety-three and’a half feet at the highest point, and sixty-two feet at the western abutment, above the low-water level; and whereas the fourteenth section of the said act of March 19,1847, provided, among other things, that the said wire suspension-bridge should be so erected as noc ‘ to obstruct the navigation of the Ohio River in the usual manner, by such steamboats and other' crafts as were then commonly accustomed to navigáte the same, whén the river should be. as high" as. the highest floods therein heretofore known ’; and whereas doubts had arisen, as to the true construction or meaning of the said fourteenth, section,’ and it was desirable to remove such doubts, and more clearly to express and declare the true intention and meaning of the aforesaid section, it was by said adt declared and enacted, that the-said wire suspension-bridge, so erected across tita Ohio River, at Wheeling, as aftJre-. said, at the height of ninety feet at the eastern. abutment, ninety-three and a half feet at the highest point, and sixty-tWo feet at the western abutment, above the low-water level of the Ohio River, be, and the same thereby was, declared to be of lawful height, and in conformity with the intent and meaning of the said fourteenth section of the act of March 19, 1847.
    “ A copy of which said act of the General Assembly of Virginia, passed January 11, 1850, and duly authenticated, is herewith exhibited, and prayed to be taken, received, and read,-as a part of this answer.
    “ Your respondents further say, that said act above exhibited furnishes a full and complete answer to all the.objections urged by the complainant to your respondents’ bridge, on the ground that it has not been constructed in conformity with the requisitions of the charter of the company.
    “ Your respondents, therefore, rely on said act of Assembly of Virginia for that and for all other purposes for which it may legally avail, and pray that they may be allowed the benefit of all defences arising under said act, in the same manner, and to the same extent, as if specially pleaded.
    . “ Having fully answered, your respondents pray to be hence dismissed, with their costs by them in this behalf unjustly exr pended.”
    Numerous depositions were filed on behalf of the complainant and respondents, which it is not expedient further to refer to, as the order of the court is merely interlocutory.
    The cause was opened by Mr. Darragh and Mr. Stanton, for the complainant, and concluded upon the same side by Mr. Walker. For the respondents, it was argued by Mr. Stuart and Mr: Johnson (Attorney-General).
    A report of the arguments of the counsel is deferred until the final decision of the case-
   Mr. Justice NELSON

announced that the court had passed the following interlocutory order.

The court having heard the counsel bn the part of the complainant, and also on the part of the respondents, on ,the motion for an injunction in this cause to remove the obstruction of the navigation of the Ohio River, as charged in the original, amended, and supplemental bills of the complainant, by means of the erection of the suspension bridge in said bills mentioned, and which said obstruction is denied in the answers put in thereto by the respondents; and on due deliberation being had thereon, and upon the pleadings and the proofs before us, it is ordered, that the cause be referred to the Honorable R. Hyde Walworth, late Chancellor of- the State of- New York, as a commissioner of the court, hereby appointed, to take' such further' proofs in the cause as the counsel for the respective' parties may see fit to produce before him, at such time or times, and at such place or places, as he may appoint, on the application of the counsel of either party; due notice being given of the time and place of the taking of the said proofs.

1. Upon the question, whether or not the' bridge aforesaid, mentioned in the pleadings aforesaid, is or is not an obstruction of the free navigation of the said Ohio River at the place where it is erected across the same, by vessels propelled by steam or sails, engaged, or which may be engaged, in the commerce or navigation of said riv,er; and if an obstruction,^as aforesaid, shall be made to appear, what change or alteration in the construction and existing condition of the said bridge, if any, can be made, consistent with the continuance of the same across said river, that will remove the obstruction to the free navigation by the vessels aforesaid, engaged in the commerce and navigation of said river as aforesaid; .and,

2. That the said commissioner shall report to this court by the-first day of the next stated term thereof, upon the "questions hereby referred to him, together with the proofs which shall ,have been produced before him by the respective parties. And that all other questions in the-said cause shall be reserved' until the coming in of the said report of the commissioner, and the further hearing of counsel upon the matters therein; and,

3. That the said commissioner shall have the power, if deemed necessary by him in the course of the hearing of the said cause, to appoint a competent engineer, whose duty it shall be to take the measurement of said bridge, its appendages and appurtenances and localities in connection therewith, under the direction and instructions' of -said commissioner, and tp make a report to him on the same, which report shall be annexed to the report of the said commissioner to this court.

The said commissioner is hereby authorized to appoint a clerk to assist him in the execution of this commission.

The compensation to be allowed to the said commissioner for his time and services, for his clerk.and engineer that may be appointed, and all other necessary expenses by him incurred in said commission, upon the coming in of the report of the commissioner, will be ascertained and fixed and' awarded against the parties, as the court may -deem right and prdper, .upon the principles of-equity and justice.

And that the parties shall each advance to the said commissioner two hundred and fifty dollars, before or at the time he enters upon the execution of . the commission.

The clerk will send a certified copy of this order to the commissioner.

To this order

Mr. Justice DANIEL

dissents. It is his opinion, that the case is not presented to this court between such parties in interest as can give jurisdiction to this court. The only legitimate. ground of jurisdiction in this case, under the Constitution, would be the fact of such a direct interest or right on the part of Pennsylvania as a State as would authorize her to become a party in this controversy. The interest of the State of Pennsylvania in this case, if indeed any such is shown, is that which she may have in the competition which may or which does exist between works of public improvement ’erected by herself, and rival works erected by other States within their own territory. No direct interest on the part of the State of Pennsylvania is shown in the vessels or steamboats which navigate the rivers Ohio and Mississippi, nor in any question connected with the rights of that State separate and apart from the individual interests of the owners of steamboats, or other private citizens of the State of Pennsylvania. Again, the. question of nuisance or. ho nuisance is one proper for the cognizance of a court of law, to be determined by a jury upon the testimony of witnesses confronted and cross-examined before a jury in open court, and under its supervision. In this view of the question, it would seem to be irregular to determine it upon affidavits and by a court of equity, and without the interposition of a'jury, and in the absence of the witnesses. The • order now made in. this cause seeming to lead to the latter mode of settling the question of nuisance, it is therefore hereby formally objected' to.


author: Mr. Justice NELSON

text:
    APPENDIX.
    Br some untoward accident, the following dissentient opinions were omitted in the reports of the cases to which they apply, and are therefore published in an Appendix.
    Withers v. Greene.
    (p. 213.)
   Mr. Justice NELSON

dissented.

I am obliged to dissent from the judgment of the court in this case. I agree to the principles of law, generally, as expounded in the opinion delivered; but cannot agree to the ap-. plication that has been given to them in deciding the case.

The defence turns lipón the effect of the pleas, as there is a demurrer to each of them.

The first sets up fraud in the sale of the fillies in two particulars ; namely, first, in representing that, they were raised by the vendor and were sound, .when, in fact, they were not raised by- him, and were knowingly unsound. ' Second, that they were of a particular pedigree, which is set forth, when in fact they were not, and that well known to the vendor. The plea further avers, that the fillies were purchased upon the faith of these representations, and then concludes that the sealed note given for the purchase-money was obtained, by fraud, and is void in law.

The second plea is like the first, with the addition of an attempt to account for the omission to return, or to offer to return,. the fillies on the discovery of the fraud. To this end it is averred, that the vendee resided some three hundred miles distant ; that the defendant did not discover the extent of the unsoundness until the fall after the purchase (which was made in February, 1839), and that he did not learn their pedigrees till the fell of 1839, or winter of 1839 - 40; that from the time of the discovery of the fraud he was ready and willing, and desirous, to return the fillies, if he had had an opportunity, which he had not; and that from the discovery of the fraud down to their death, which happened in the winter and spring of 1840, he was ready and willing to return them.

Now-, there were two lines of defence to this action for the purchase-money, either of which it. was competent for the defendant to avail himself of by proper pleadings, as has been fully shown in the opinion of my brother Daniel, and need not be' repeated; namely, first, a rescindment of the contract of sale, and, second, a failure of consideration in whole or in part. Either of these grounds was available against the action, if fraud had been committed in the sale. But they stand on different principles, and depend upon a different state of facts.

As to the first, the rescindment, which, of course, goes to the whole cause of action, as the contract is avoided altogether, it is indispensable that the-defendant should return, or tender a return, of the property, within a reasonable time after the discovery of the fraud. And in this respect the law holds him to a strict compliance with the rule ; he is not permitted to wait, and speculate upon the chances whether it would be best to return the property, and avoid the contract entirely, or to affirm it, and seek indemnity by way of damages. He must make his election at once.

Now which of these grounds of defence has the.defendant sought to maintain by his pleas ? Clearly, a rescindment of the contract. Thé first relies upon the fraud itself as an avoidance, — the second, the fraud, with an attempt to account for the omission of the offer to return. The first seeks to avoid the contract, and still keep the property ; the' second superadds a willingness to return.. Both are defective, for want of the element essential to this .line of defence, namely, a return, or an offer to return, the property. The first .omits the averment, entirely, .and the. averment in the second is altogether defective.

Tfie fillies were kept several months, as is admitted in the plea, after the discovery of the fraud ; and as to the distance of the vendor from the defendant; apd difficulties, in his way of tendering a return, the answer is, the rule of law imposes all that burden upon him, as a condition of rescindment. And if he is unable to comply with it, it is his misfortune, so far, at least, as it may compel him to resort to some other ground of defence. Certainly, it will afford no reasonable ground for avoiding the eentract, and, at the same time, keeping the property

A return, or an offer to return, on the discovery of the fraud, is an indispensable element of the rule, and without which there can be no rescindment. A willingness to return, or a desire to return, uncommunicated to the vendor, will not do, and has.no authority in the law.

The defence, then, must rest upon the failure of consideration, and which, I agree,, is available to the defendant, whether it goes to the whole or in part, according to the law of Alabama, as well as the laws of most of the States, and latterly in the English courts.

But the question here is, not whether this is' a good defence to the action,' but whether the defence is that ■ set ■ up. by the pleas. The only questions here arise upon them. We are confined to the grounds of defence as there set forth, and' as there to be found, and to no others. And, gs I think I have already shown, these place the defence upon the- principle of the right to rescind the contract, to repudiate it altogether, denying any and every obligation under it.

The other ground of defence admits the contract, but seeks to diminish the extent or amount of the liability for the want of, or for a defect in, the ’• consideration upon which it is founded. There is an appropriate plea for a defence of this description, and it is settled in the courts of Alabama that, unr der a plea of failure, of consideration, a partial failure may be. proved in abatement of the purchase-money. There are several cases to this effect. 1 Stewart & Porter, 71, 226, 242 ; 3 ib. 98; 3 Stewart, 169, 170.

If the defendant intended to rely upon a failure of consideration as a ground of defence, there was a plea at hand according to the practice of the courts of that State. He need only have put in that plea, and given evidence of a total or partial failure. But the truth is, this is not the defence set up, or intended to be set up, but one going to .the root of ,the contract itself, —a rescindment of it. And what I object is, haying failed to maintain his pleas in that aspect, for want of a sufficient averment of an offer to return the property, that they shall be converted into pleas of failure of consideration ; thus, in effect, holding them good in form for either line of defence — an avoidance of the contract by a return, or offer to return, or failure of consideration —in all cases of fraud, in the sale of property.. A plea defective as a rescindment of the contract, in a single par-, ticular, namely, the offer to return, is transmuted, into a good plea of want of failure of consideration.1

I fear the decision will tend to unsettle principles and confound well established rules of pleading, so essential to the trial of causes understandingly, and in the orderly and methodical administration of justice..

For these reasons, I have felt compelled to enter my dissent to the judgment of the court.


author: Mr. Justice CATRON.

text:
    Lytle et al. v. The State of Arkansas et al.
    (p. 614.)
   Mr. Justice CATRON.

The complainants allege -that they have the superior equity to the fractional quarter-section No. 2, and to the other lands claimed by the bill, by virtue of an entry under a preference right; and that the respondents purchased and took their legal title with full knowledge of such, existing equity in the complainants.

1. The defendants claiming section No. 2 (or part of it) deny that any such equity exists under the legislation of Congress. 2. That they purchased and took title without any knowledge of the claim set up; and being innocent purchasers, no equity exists as to them for this reason also, regardless of any thing alleged against them. 3. That they expended lárge sums on the lánds purchased, and made highly, valuable improvements thereon, without- any objection, being made by complainants, or notice of their claim being given to respondents, and therefore a Court of equity cannot interfere with their existing rights.

The bill was dismissed, without any particular, ground having been stated in the decree why it was made for respondents; and in this condition of the record the cause is brought here by writ of error under the twenty-fifth, section of the Judiciary Act,

The case made on the face of the bill was rejected, and the inquiry on such general decree must be, whether the claim set "up sought protection under an act of Congress, or an authority-exercised under one, so-as to draw, either in question, no matter whether the claim was well founded or not; and the fact being found that such case was made, then jurisdiction must be assumed to examine the decree; and, this being -clearly true in the present instance, jurisdiction must be taken, and the equity claimed on part of complainants reexamined. '

If, however, the decree had proceeded on the second-or third grounds of. defence, regardless of the first, and had so' .declared, then this court would not have jurisdiction to interfere, as-no act of Congress, or an authority exercised under it, would have been drawn in question.

In regard to the lands claimed, except the fractional quarter-section No. 2, we are agreed that the bill should be dismissed. So far, the controversy is ended ; and as to section No. 2, I think the bill should be dismissed also.

The proof of occupancy and cultivation was made in April, 1831, under the act of 1830, pursuant to an instruction from the Commissioner of the General Land-Office having reference to that act. The act itself, the instruction given under its authority, and the proofs taken according to the. instruction, expired and came to ah end on the 29th of May, 1831. After that time, the matter stood as if neither had ever existed ; nor had Cloyes 'more claim to enter, from May 29, 1831, to July 14; 1832, than any other villager in Little Rock.

July 14,1832, another preemption law was passed, providing, among other things, that when an' entry could not be made under the act of 1830, because the public surveys were not returned to the office of the register and receiver before the expiration of that act (29th May, 1831), then an occupant who cultivated the land in 1829, and was. in actual possession when the act of 1830 was passed, should be allowed to enter under the act of 1832 the quarter-section he occupied; and also adjoining lands to which the improvement extended, in legal subdivisions, so as- to increase his entry to a quantity not exceeding 160 acres. Under the act of 1832, the entry in controversy was offered, and afterwards allowed, for the purpose of letting in complainants, so that a, court of justice might investigate their claim, although it had been pronounced illegal at the department of public lands, the officers there acting under the advice of the Secretary of the Treasury.

The act of 1830, and the circular under it, having expired, the commissioner issued a new circular (28th July, 1832, 2 Land Laws and Opinions, 509), prescribing to registers and receivers the terms on which entries should be allowed under the act of 1832, by which circular proof was required of cultivation in 1829, and residence on the 29th of May, 1830; and that this proof should be made after the legal surveys were returned to the office of the register and receiver; and the right to make the proof, and to enter, should continue for one year after the surveys were returned, unless the lands were sooner offered at public sale; and that then the entry should be made before the public sale took place.

The necessity of .this new proceeding is manifest. By the act of April 5, 1832, all actual settlers at this date (5th April, 1832) were ■ authorized to enter, within six months thereafter, one half quarter-section, including their respective improvements. Such rights stood in advance of claimants under the act of July 14, 1832. In the mutations of a new country, the fact was well known that improvements passed from hand to hand with great frequency by sale of the possessions;. and one in possession (April 5, 1832) could well enter an improvement cultivated in 1829, and held on the 29th of May, 1830, he having purchased such possession. If Cloyes, therefore,-had sold out to another before the act of April 5th was passed, then that other occupant, and not Cloyes, would have, had the right to enter section No. 2; and therefore it, was highly necessary to know who had the best right to a preemption at the time each entry was offered. A still greater necessity existed for new proof. Until the surveys were returned, it was usually improbable for the register and receiver to know what subdivision had been occupied, or to what land, or how much, the preemption right extended : and as all those who had a right of entry on lands not surveyed and legally recognized as surveyed were provided for by the act of 14th July, 1832, and the act required them to make proof, and to enter, within one ■ year after the surveys were returned, by legal subdivisions according "to the surveys, it is hardly possible to conceive what other course could have been adopted at the land-office than that which was pursued, as the surveys were the sole guide at the local offices where entries were made. But it is useless to speculate why the new circular was issued; the commissioner had positive power to do so, .and the act, when done, bound every enterer. Nor could a legal entry be made under the act of 14th July., 1832, without the new proof, and an adjudication by the register and receiver, founded on such proof, that the right of entry existed; and as no such proof was offered by the complainants, they had no -right to enter even the SO'/gV acres, and certainly not the lOS^o acres. That an entry could not be lawfully made, without new proof to warrant it, for. the lesser quantity, is our unanimous opinion ; and in this we concur with those conducting the General Land-Office.

For another reason, I think their claim should be rejected. Little Rock was the seat of the Territorial government, at which certain public buildings were -necessary; and on the 15th of June, 1832, an act was passed, that there be. thén granted to the Territory of Arkansas a quantity of land,hot exceeding-one thousand acres, “contiguous to and adjoining” the town of Little Rock, for the erection of a court-house'and jail in said town, which ‘ lands shall be selected-by the Governor of the Territory, and he disposed of as the Legislature shall direct, and the proceeds be applied towards building said courthouse and jail.

On the 30th of January, 1833, the Governor selected the land, and filed his entry in the land-office at Little Rock, which entry was received and forwarded to the General Land-Office at Washington, and there ratified. The entry included the fractional quarter-section No. 2 now claimed by the heirs of Nathan Oloyes.

By the act of March 2,1833, the .Govern or of .the Territory was required to furnish to the Secretary of the Treasury a description of the boundaries of the thousand acres, and the Secretary was. required to cause to be issued a patent therefor to the Governor, in trust, &c. And the Governor was directed to lay off in town lots, as part of the town of Little Rock, so much of the grant as he might deem advisable; and. said Governor was authorized to sell said lots, and to dispose of the’residuebf said thousand-acre grant, and which sale was to be at auction, as regarded the town lots and the residue of the land. And he was also - authorized to select and lay off three suitable squares, within this addition to the town, on which might bé erected a State-house, a court-house, and a jail, — one square for eaqh building, — for the use thereof, for ever, and for no other use. ,

The sales were to be for cash., and the Governor was directed to make deeds to purchasers when the purchase-money ■ was paid. A patent issued to Governor John Pope for the- land. In October, 1833, he proceeded to sell at auction, in lots and blocks, the fraction No. -2, in part, to Ambrose H. Sevier, under whom most of - the defendants on No. 2 claim. Those who have answered deny that they had any knowledge of the claim of Oloyes when they purchased and took title ; and that complainants stood by, permitted the purchase, and saw great city improvements made, and .large - sums of money expended, without objection, or any intimation being.'given that they intended'to bring forward any such' claim as the one-now set up. But, as remarked in the outset, this court has no jurisdiction of these matters,i and must therefore leave them to the State courts for adjudication and final settlement.

How, then, did the claim of the complainants stand when the city Jots were , sold in 1833? Oloyes never offered, to enter fraction No. 2 alone; he offered to enter, says the bill (28th May, 183Í), with the register--at Batesville, sectional quarter No.. 2 for 30-]^ acres ; northeast- fractional quarter for 42-r¡r0- acres;, and northwest and northeast. fractional quarters of section No. 1, containing 35-^$ acres; making iii all 108iVo acres. .The proof máde was, that.he fesided on No. 2 for 30-rro acres. This entry was refused, on a ground not open to controversy. By the act of 1830, only that quarter-section on which the • improvement was could be entered, no matter what quantity it contained. In this we are unanimous now; and also, that .the entry.allowed is void for all but the fraction No. 2. Here was an offer to enter in 1831 that could not bé lawfully done at that time ; then a-refusal to receive the entry was proper. The claim to enter 108iVo acres wás adhered' to, throughout, by Cloyes and his heirs. The offer to-enter the whole quantity of 108-iVo' acres was again made in 1834; and we agree in opinion that the entry could not be lawfully received at the latter period for this larger quantity ; less than the whole was never claimed,

As already stated, the entry that was admitted in 1834 was made to enable the party to litigate his rights, if any existed, as against the city title ;'not because the claim to enter was lawful, in .the estimation of the Secretary of the Treasury and the Commissioner of the General Land-Office, for they had decided against its validity. The offer to enter being illegal, and the entry as received .being, illegal, it is not perceived on what ground. a court of equity can uphold the claim even in part, and thereby overthrow a patent of the United States, and oust purchasers who relied on such patent.

In the next place, when the act of June 15,1832, was passed, authorizing the Governor of Arkansas Territory to locate the thousand acres, the act of 1830 had expired; no right of entry existed in Cloyes. The land appropriated to public use was to be taken “ contiguous to and adjoining the town of Little Rock ”; all the land adjoining was reserved by the act, subject to a selection by the Governor, as a public agent; the grant was a present grant of the thousand acres, without limitation. Cloyes had no .claim to interpose at that time; and on the selection being made, it gave precision to the land granted, and the title attached from the date of the act. In the language of this court, in Rutherford v. Greene’s Heirs (2 Wheat. 206), the grant which issued to Governor Pope in pursuance of the act of June 15,-1832, “relates to the inception of his title.” That also was a present grant of 5,000 acres to General Greene, made by an act of the Legislature of North Carolina, but unlocated by the act of Assembly. It was granted in the military district generally, and ordered to be surveyed by certain commissioners. Soon afterwards it was located by survey, and the question presented to this. court was, as to what time the title had . relation for the land selected ; when it was held, that the grant was made by the act directly, and gave date to the title, and of necessity overreached all intervening claims for the land selected.

This case is far stronger than that. Here the act of 1830, was made part of- the act of July 14, 1832 ; they stood ás one act, and took date on the 14th of July. The act provides, That no entry or sale should be made, under the provisions of this act, of lands which shall have been reserved for the use of the United States, or' either of the States. The land, to the quantity of one thousand, acres, adjoining the then town of Little Rock, had been expressly reserved by the act of the 15th of June, and stood so reserved when the act of July 14th was passed, subject to selection in legal subdivisions. The act of June 15th had no exception ; the object was of too much importance to allow of any. If this villager could claim a preemption, so might any other, and the act of June would have been without value, as the whole grant might have been defeated by occupant claims, and the seat of government transferred to private owners. This is manifest-. Cloyes was a tinner, carrying on his trade in the edge of the town, and next his dwelling ; adjoining to his house and shop he cultivated a garden, and on this occupancy and cultivation his claim was founded. Others, no doubt, were similarly situated. The seat of government was located on the, public lands, then unsnrveyed ; and if the act of July 14, 1832, conferred an equity on Cloyes to take 160 acres, so it did on others in his situation all around the then town, and adjoining thereto. If the occupant could take the land adjoining, how was it possible for the Gov-, ernor to add lots and squares to the seat of government ? The intention of Congress manifestly contemplated that the right of selection should extend to all lands adjoining the then town; and that these were reserved for public iise is, in my judgment, hardly open to controversy, .on the, face of the act of July 14th. But' when wé take into' consideration the fact,- that General Greene’s title had been upheld on the principle that it took date with the act making the grant, and that the grant, made in trust to Governor' Pope depended on the same principle, and equaky overreached all • intervening claims, no doubt; it would seem, couldwell be entertained, either' at the General Land-Office of by purchasers, that this occupant had no -just- claim, and could not interfere1’and overthrow titles derived under the act óf June 15, 1832. '

' And this is deemed equally true for another and similar reason. If this preference of entry for public use could be overthrown by a- subsequent preemption law, so may every, other made to secure locations for county seats and jniblic works. The reservation was quite as definite as where salt springs and lead mines were reserved, or lands on which ship-timber existed. In such cases the President determines that the lands shall be reserved from sale, and this, is always done after the surveys are executed and returned and certainly, had such power been vested in him to reserve lands adjoining the seat of government of Arkansas, for the usé thereof, he could have lawfully made the selection; and authority to do so having been conferred by Congress on the Governor, his power was equal to that of. the President in similar cases, where lands are reserved for public use by general laws.

For these reasons, I think the deciee ought to be affirmed ; and I have the inore confidence, in these views, because they correspond with the accumulated intelligence and experience of those engaged in administering the Department of Public Lands, and with the practice pursued at the General Land-Office, from the date of the act of July 14, 1832, to this time.


author: Mr. Justice CATRON

text:
    Tayloe v. Merchant’s Fire Ins. Co.
    (p. 390.).
   Mr. Justice CATRON

stated from the bench, that he objected to a decree being made by this court on the bill, because, the cause came here by a transfer from the Circuit Court, never having been heard there. It was only prepared for. hearing, and, is now presented and heard as an original cause in this court. We have appellate and not original jurisdiction in such cases, both by the Constitution and by the Judiciary Act of 1789. Before an appeal can be prosecuted., something must be ¡adjudged to appeal from. And in the second place, if it be once established that causes can be sent here by. mere transfer,, nothing having been décided below, we must be overwhelmed, by stich causes, there being now thirty courts and more that may send them up; This is one evil intended to be avoided by the framers of the Constitution, when ihe Supreme Court was excluded from the exercise of original jurisdiction in cases like the present.