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Guaranty Company v. Board of Liquidation/Opinion of the Court

The Federal question which this case involves rests on the following facts:--

On the 8th of March, 1869, the General Assembly of the State of Louisiana, passed act No. 116, of 1869, to authorize an issue of negotiable State bonds to aid in the construction of the Mississippi and Mexican Gulf Ship Canal. Special provision was made in the act for taxation to meet any liability that might be incurred in this way. Bonds to the amount of $480,000 were put out, purporting on their face to have been issued under the authority thus granted, and the New York Guaranty and Indemnity Company, for all that appears to the contrary, became the bona fide holder of $250,000 of this amount.

On the 24th of January, 1874, act No. 3, of 1874, was passed, to provide for funding the obligations of the State by an issue, if necessary, of $15,000,000 of 'consolidated bonds of the State of Louisiana.' To accomplish this a 'board of liquidation' was created, with power to execute the new bonds and exchange them for old at the rate of sixty cents of the new for one dollar of the old. If the board rejected any bond offered for exchange, the holder could apply by petition to some proper court for relief, and if on that petition final judgment should be rendered in his favor against the board, he would be entitled, on giving up his old bond, to get one of the new on the terms proposed.

On the 14th of March, in the same year, 1874, act No. 55, of 1874, was passed, which purported to prohibit all State officers from levying or collecting any tax to pay the principal or interest falling due after Jan. 1, 1874, of any of the State debt, unless such levy and collection were specially authorized by some law of the State subsequently adopted, and also prohibiting the setting apart of any funds in the treasury for any such payment. The same law purported to take away from the courts of the State all power or jurisdiction to arrest or impede its operation by mandamus, injunction, or otherwise.

On the 17th of March, 1875, act No. 11, of 1875, was passed, to prohibit the board of liquidation from funding, under act No. 3, of 1874, questionable and doubtful obligations of the State, 'until said bonds. . . shall first, by final decree of the Supreme Court of the State of Louisiana, have been declared legal and valid obligations against the State of Louisiana, and that the same were issued in strict conformity to law, and not in violation of the Constitution of this State or of the United States, and for a valid consideration.' In this act the bonds issued in aid of the Mississippi and Mexican Gulf Ship Canal Company were specially designated as questioned and of doubtful validity.

After this act was passed, the New York Guaranty and Indemnity Company, being desirous of funding its bonds under the provisions of act No. 3, filed its petition in the Fifth District Court of the Parish of Orleans, praying that the bonds 'be decreed to have been issued in strict conformity to law, and not in violation of the Constitution of this State or of the United States, and that they be declared legal and valid obligations against the State of Louisiana, and issued for a valid consideration.' No other judgment was asked than such an one as was necessary under act No. 11, of 1875, to secure the benefit of act No. 3, of 1874,-the funding act. This petition got in due course of procedure to the Supreme Court of the State, and it was there decided that the suit thus begun was not one for the recovery of the money due on the bonds, but was rather in the nature of an inquisition to determine whether the bonds in question were of the class which the State had determined to include in its funding scheme. For this reason the court held that for the purposes of such an inquiry the petitioner, as a bona fide holder, occupied no better position than the first taker. Because of this ruling the present writ of error has been brought by the company.

This statement of the case is sufficient, as we think, to show that the question below was not whether, in an action against the State, properly authorized, to recover the amount due upon the bond, act No. 11 permitted the State to prove, as against a bona fide holder, that the bond was invalid, but whether the bona fide holder of an invalid bond was entitled to the benefit of the scheme of compromise which the State had offered to the holders of its securities that were valid in the hands of the first taker. Such being the case, no obligation of the original contract has been impaired. Every legal right which the original taker acquired when the bond was put out still remains. The Guaranty Company may enforce all such rights o w in any appropriate manner. All the court below has said is, that as between the State and the first taker the bonds were not valid obligations, and that, consequently, they are not entitled to the privileges of the funding laws. The obligation of the State to pay the bonds in money to the bona fide holders in accordance with the original promise still remains. The judgment, which has been rendered, and which we are now reviewing, is no bar to any proper proceeding for that purpose. The suit which was authorized, and the suit which was actually begun, only related to the right of the holder to come into the compromise which the State offered to certain classes of its creditors. The judgment is that the bonds do not belong to any of the designated classes. The question here is, not whether, if that inquiry were open to us, we should be of the same opinion, but whether the obligation the State is under to the company has been impaired by act 11, of 1875, as thus construed. We think the State had the right to say, when it proposed a scheme for the compromise of its debts, what creditors should be included. That, in our opinion, is all that has been done.

It follows that the Federal question was decided right below, and the judgment is consequently

Affirmed.

MR. JUSTICE BLATCHFORD did not sit in this case, nor take any part in deciding it.


text: Talk:Guaranty Company v. Board of Liquidation/Opinion of the Court

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Leathers v. Blessing

APPEAL from the Circuit Court of the United States for the District of Louisiana.

The case is stated in the opinion of the court.

Mr. John G. Carlisle for the appellants.

Mr. Charles W. Hornor for the appellee.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

title: Leathers v. Blessing


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 to be removed. It is evident from the nature of vibratory motions, that the medullary substance will not, immediately upon the removal of this object, return to its natural state N, but will remain, for a short space of time, in the preternatural state A, and pass gradually from A to N. Suppose the same object to be impressed again and again, for a sufficient number of times, and it seems to follow, that the medullary substance will be longer in passing from A to N, after the second impression than after the first, after the third impression than second, &c. till, at last, it will not return to its natural original state of vibration N at all, but remain in the preternatural state A, after the vibrations have fallen to a diminutive pitch, their kind and place, or chief seat, and their line of directions, continuing the same. This state may therefore be fitly denoted by a, and, being now in the place of the natural state N, it will be kept up by the heat of the medullary substance, and the pulsation of its arteries. All this seems to follow from the above-mentioned disposition of animal bodies to accommodate themselves to, and continue in, almost any state that is often impressed; which is evident from innumerable both common and medical observations, whatever be determined concerning the manner of explaining and accounting for these facts. For the alterations which habit, custom, frequent impression, &c. make in the small constituent particles, can scarce be any thing besides alterations of the distances, and mutual actions, of these particles; and these last alterations must alter the natural tendency to vibrate. We must, however, here resume the supposition made in the last paragraph, viz. that the several regions of the brain have such a texture as disposes them to those specific vibrations, which are to be impressed by the proper objects in the events of life. And this will much facilitate and accelerate the transition of the state N into a; since we are to suppose a predisposition to the state A, or a.

It will somewhat illustrate and confirm this reasoning, to remark, that musical strings always accommodate themselves to, and lean towards the state into which they were last put. Thus the tone of a musical string either rises or falls upon altering its tension, according as the preceding tension was greater or less than its present tension. Now the small component parts of a musical string must recede from, and approach to, each other, i.e. must oscillate lengthways, during every transverse oscillation of the string. And this must arise from the mutual influences of the component particles tending to their last superinduced state. Let us suppose something analogous to this to take place in the component molecules of the brain, the molecules of the molecules, &c. and it will follow, that A may overpower N, and a become the natural state. Now, since the human body is composed of the same matter as the external world, it is reasonable to expect, that its component particles should be

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Leathers v. Blessing/Opinion of the Court

This is an appeal by the respondents in a suit in admiralty in personam from the decree therein. Leathers was the master of the steamboat 'Natchez,' and he and the other respondent were the owners of that vessel. The suit was brought in the District Court to recover damages for personal injuries received by Blessing, the libellant, on board of that vessel, and he had a decree in that court against the respondents in personam, and as owners of the vessel, and in solido, for $5,758.50, with five per cent interest from judicial demand till paid, and costs of suit. The respondents appealed to the Circuit Court. That court found the following facts: '1. That on the twenty-sixth day of December, A. D. 1873, the defendant therein, Thomas P. Leathers, was the master, and he and Mary Meeha, wife of Anthony Pauly, were the owners of the steamboat 'Natchez.' 2. That about 1 o'clock P. M. of said day the said steamboat 'Natchez' was lying at the wharf on the Mississippi, near the foot of Canal Street, in the city of New Orleans, securely moored to said wharf, and with at least one of her gangplanks out and resting on the shore, which afforded ingress and egress between the lower deck of said steamboat and the wharf. 3. That on the day and at the hour above mentioned the said steamboat had recently arrived at the port of New Orleans from a trip up the Mississippi River, having on board a large number of bales of cotton, and that the trip of said steamboat was completed, but her cargo was still to be discharged. 4. That a part of said cargo of cotton was stowed on the forward deck several tiers high, and a passageway was left from the end of the gang-plank to the foot of the stairs. This passageway was covered with bales of cotton piled on the bridging, and persons on shore who desired to go to the cabin or office of the steamboat could only do so by going along this passageway to the stairs, and up the stairs to the cabin and office. 5. That, after the landing of said boat, and after her gang-plank had been run ashore, so that persons could go from shore to said steamboat, the libellant went aboard of said steamboat, along said gang-plank, with the purpose of going up into her cabin or to her office. 6. That the master and officers of said steamboat were accustomed top ermit persons expecting to find on said steamboat freight consigned to them, as soon as she had landed, and her gang-plank was out, to go aboard of her to examine the manifest or transact any other business with her master or officers. 7. That the libellant had business on said steamboat when he went aboard of her as aforesaid, he was expecting a consignment of cotton-seed by said steamboat, and went aboard to ascertain whether it had arrived. 8. That, when libellant was going through said passageway, and when near the foot of the stairs, on his way to the cabin or office of said steamboat, a bale of cotton fell from the upper part of said passageway against and upon the leg and ankle of libellant, causing a compound fracture of the bones of his ankle and leg. 9. That said bale of cotton was carelessly and negligently stowed, and was left in such a position that it was liable to fall upon persons going along said passageway to the foot of the stairs of said steamboat, and its position was known to the master of said steamboat. 10. That libellant was in no manner negligent or in fault, whereby he contributed to his said injury. 11. That the fracture of libellant's leg and ankle was such as to render amputation of his leg necessary, and his leg had to be and was amputated in consequence of the injury sustained by him as aforesaid. 12. That at the time of his injury the libellant was thirty-eight years of age, and was earning in his business, which was buying cotton-seed, as agent for the Louisiana Oil Company, the sum of $750 per year. 13. That, at the time of said injury, the libellant was in good health, with a good character for sobriety and integrity. 14. That, in consequence of the injury sustained by him as aforesaid, the costs and expenses incurred by libellant for treatment, surgical services, and in and about his care and cure, amounted to the sum of seventeen hundred and seven dollars and fifty cents. 15. That the other damage resulting to libellant from said injury, consequent upon loss of time and the permanent disability caused by the loss of his leg, amounted to the sum of four thousand dollars.' As a conclusion of law from the foregoing facts, the court found that the libellant ought to recover from the respondents the aggregate amount of said costs, expenses, and damage, with interest thereon, as additional damage, from the date of judicial demand, and it gave a decree in favor of libellant against the respondents for the said sum of $5,707.50, with interest at the rate of five per cent per annum from the date of judicial demand till paid, and costs of suit. From that decree this appeal was taken by the respondents.

The only question raised by the appellants is as to whether the suit was one of admiralty jurisdiction in the District Court. They maintain that jurisdiction of the case belonged exclusively to a court of common law. Attention is directed to the facts that the Circuit Court did not find that the libellant was an officer, seaman, passenger, or freighter, or that he had any connection with the vessel or any business upon her or about her, except that when he went on board of her he was expecting a consignment of cotton-seed by her, and went on board to ascertain whether it had arrived; and that the vessel had fully completed her voyage and was securely moored at the wharf at the time the accident occurred. It is urged that the case is one of an injury received by a person not connected with the vessel or her navigation, through the carelessness or neglect of another person, and that the fact that the person guilty of negligence was at the time in control of a vessel which had been previously engaged in navigating waters within the jurisdiction of the admiralty courts of the United States, cannot give jurisdiction to such courts.

Although a suit might have been brought in a common-law court for the cause of action sued on here, the District Court, sitting a admiralty, had jurisdiction of this suit. The vessel was water-borne in the Mississippi River at the time, laden with an undischarged cargo, having just arrived wit it from a voyage. The findings sufficiently show that her cargo was to be discharged at the place where she was moored. Therefore, although the transit of the vessel was completed, she was still a vessel occupied in the business of navigation at the time. The facts, that she was securely moored to the wharf, and had communication with the shore by a gang-plank, did not make her a part of the land or deprive her of the character of a water-borne vessel.

The findings state that the master and officers of the vessel were accustomed to permit persons expecting to find on the vessel freight consigned to them, as soon as she had landed and her gang-plank was out, to go on board of her to examine the manifest or transact any other business with her master or officers; that the libellant had business on her when he went on board of her under the circumstances set forth in the findings; that he was expecting a consignment of cotton-seed by her; and that he went on board to ascertain whether it had arrived. These findings show that not only did the libellant go on board for a purpose proper in itself, so far as he was concerned, but that he went substantially on the invitation of those in control of the vessel. It is not found that he knew of the custom referred to, but it is found that he was acting in accordance with such custom, and it is not found that he did not know of such custom. With the added fact that his business was that of buying cotton-seed, it is properly to be inferred that he went on board to inquire whether the vessel had brought the cotton-seed which he was expecting, because he knew of such custom. This makes the case one of invitation to the libellant to go on board in the transaction of business with the master and officers of the vessel, recognized by them as proper business to be transacted by him with them on board of the vessel at the time and place in question. Under such circumstances, the relation of the master and of his co-owner, through him, to the libellant, was such as to create a duty on them to see that the libellant was not injured by the negligence of the master. On the facts found there was a breach of that duty by the negligence of the master, constituting a maritime tort, of which the District Court had jurisdiction in this suit. Not only does the jurisdiction of courts of admiralty in matters of tort depend entirely on locality, but since the case of Waring v. Clarke (5 How. 441, 464), the exception of infra corpus comitatus is not allowed to prevail. Nor is the term 'tort,' when used in reference to admiralty jurisdiction, confined to wrongs or injuries committed by direct force, but it includes wrongs suffered in consequence of the negligence or malfeasance of others, where the remedy at common-law is by an action on the case. ''Phila., Wil., & Balt. Railroad Co. v. Phil. & Havre de Grace Steam Towboat Co.'', 23 id. 209, 214, 215.

The decree of the Circuit Court will be affirmed, with costs and interest on the principal sum of $5,707.50 decreed by the Circuit Court, to be computed at the rate of five per cent per annum from the date of judicial demand in the District Court, till paid; and it is

So ordered.


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 subjected to the same subtle laws. And the exquisite structure of animal bodies in so many other respects, makes it easier to conceive, that the organ of organs, viz. the medullary substance, should be endued with a proper subtle ultimate structure, for the purpose of retaining a state that is frequently impressed. One may guess also, that it is better suited to this purpose during its growth, i.e. in passing from infancy to adult age, than afterwards; as this would be very agreeable to the phænomena.

Fourthly, Suppose now the vibrations A, B, C, D, &c. belonging to each of the senses, to be excited, and repeated in such order and manner as usually happens to the new-born infant upon its entrance into this new scene of things. It is evident, that these will have a greater power to overrule the natural state N, than the vibrations A from one single object could have: for A affected only one region of the medullary substance primarily; whereas A, B, C, D, &c. affect all the regions primarily in their turn. It is evident also, that the secondary vibrations, or those which are propagated from the region of the medullary substance primarily affected into the rest, will be overruled, in great measure, in each region, by the primary vibrations peculiar to that region. Lastly, It is evident, that of the vibrations which are excited in each region, no one can prevail over all the rest, but each must leave an effect, in proportion to its strength and frequency. We may conceive, therefore, that each region of the medullary substance will have a tendency generated in it to vibrate with vibrations of the same frequency (but weaker in degree) as those which the several appropriated objects impress upon it respectively; and that diminutive vibrations resembling them will rise in succession in each region. For each region may easily be conceived to lean sometimes to the vibrations from one object, sometimes to those from another, according to the strength, frequency, and novelty of the impression, the then present disposition of the nervous system, association (of which in the two next propositions), and other such-like causes. And for the same reason, as in every sense the idea of some one object of that sense must prevail over all the rest, we may conclude, that sometimes the ideas belonging to one sense, sometimes those belonging to another, will prevail over the rest.

Or thus: Some vibrations there must always be in the medullary substance, on account of its heat, and the pulsation of the arteries which pass through it. These cannot be the natural ones N, because they will soon be overruled by the great force and variety of impressions made on the new-born infant, which must also dispose each region of the brain to lean to some or other of those vibrations which are excited in it primarily. Hence we may conceive, that a very complex set of vibrations, arising from the mixture and combinations of degree, kind, place, and line of direction, exists always in the medullary substance, being kept up by its heat, and the pulsation of its arteries, when

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The Potomac (105 U.S. 630)

APPEAL from the Circuit Court of the United States for the District of Louisiana.

The case is stated in the opinion of the court.

Mr. Timothy D. Lincoln for the appellant.

Mr. William Wirt Howe, contra.

MR. JUSTICE GRAY delivered the opinion of the court.

title: The Potomac (105 U.S. 630)


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 other causes are wanting, almost in the same manner as in a concert of music the air is agitated by vibrations of a very complex kind. But then, as in a concert, some one instrument generally strikes the ear more than the rest, so of the complex vibrations which exist in the medullary substance, some one part will prevail over the rest, and present the corresponding idea to the mind. Some region must be disposed, at each instant, to vibrate stronger than the rest; and of the specific vibrations which are generally impressed upon this region, some one will have a more favourable concurrence of circumstances than the rest. And thus it will follow, according to the terms of the proposition, that sensory vibrations, by being sufficiently repeated, will beget a disposition to miniature vibrations corresponding to them respectively; or, using the appellations above assumed, that A, B, C, &c. will beget a, b, c, &c.

If we allow the proof of this proposition thus deduced from the nature of vibratory motions, and of an animal body, the foregoing proposition will follow from it, and hold equally, in respect of the senses of feeling, taste, and smell, as of sight and hearing. Or, in other words, if we allow that original impressed vibratory motions leave a tendency to miniature ones of the same kind, place, and line of direction, it will follow, that sensations must beget ideas, and that not only in the senses of sight and hearing, where the ideas are sufficiently vivid and distinct, but in the three others, since their sensations are also conveyed to the mind by means of vibratory motions. We may also perhaps discover hereafter, from the nature of vibratory motions, and of the human brain, compared with the circumstances of life, why the ideas of one sense are more vivid and distinct than those of another.

may be said to be associated together, when their impressions are either made precisely at the same instant of time, or in the contiguous successive instants. We may therefore distinguish association into two sorts, the synchronous, and the successive.

The influence of association over our ideas, opinions, and affections, is so great and obvious, as scarcely to have escaped the notice of any writer who has treated of these, though the word association, in the particular sense here affixed to it, was first brought into use by Mr. Locke. But all that has been delivered by the ancients and moderns, concerning the power of habit, custom, example, education, authority, party-prejudice, the

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The Potomac (105 U.S. 630)/Opinion of the Court

This is a libel in admiralty for collision, filed by the owner of the steamboat 'Robert E. Lee' against the steamboat 'Potomac.' In the District Court, and in the Circuit Court on appeal, both vessels were found to have been in fault, and therefore, according to the settled rule in admiralty, affirmed and established by this court in The Catherine (17 How. 170), the amount of the damages to each vessel, being $19,411.27 to the 'Robert E. Lee,' and $7,330.52 to the 'Potomac, was equally divided between the two. The Circuit Court having found and stated the facts, and stated its conclusions of law, its finding of the facts is conclusive, and the questions of law so stated upon the record are open for revision in this court upon appeal, without any bill of exceptions. Stat. Feb. 16, 1875, c. 77, 18 Stat. 315; ''The S.C.. Tryon, ante, 267; The Francis Wright, ante'', 381.

Both the questions of law presented by the record relate to the amount of the damages that the libellant is entitled to recover.

One question is as to the sum to be allowed for the detention of his vessel while repairing the injuries suffered by the collision. The rules of law governing this question are well settled, and the only difficulty is in applying them to the peculiar facts of the case.

In order to make full compensation and indemnity for what has been lost by the collision, restitutio in integrum, the owners of the injured vessel are entitled to recover for the loss of her use, while laid up for repairs. When there is a market price for such use, that price is the test of the sum to be recovered. When there is no market price, evidence of the profits that she would have earned if not disabled is competent; but from the gross freight must be deducted so much as would in ordinary cases be disbursed on account of her expenses in earning it; in no event can more than the net profits be recovered by way of damages; and the burden is upon the libellant to prove the extent of the damages actually sustained by him. Williamson v. Barrett, 13 How. 101; Sturgis v. Clough, 1 Wall. 269; The Cayuga, 2 Benedict, 125; 7 Blatchf. 385; 14 Wall. 270; The Gazelle, 2 W. Rob. 279; s. c. 3 Notes of Cases, 75; The Clarence, 3 W. Rob. 283; s. c. 7 Notes of Cases, 579.

The report of the commissioner, which was approved in this respect by both courts below, states that the 'Robert E. Lee' was engaged in a certain, permanent, and lucrative trade, making weekly trips on the Mississippi River between New Orleans and Vicksburg and intermediate ports; and states one item of the damage to her thus: 'Demurrage allowed for loss of three trips in her established trade, being the profits which, according to the average of her whole business for the season, she would have realized on said trips, $7,173.48.' The reason given by the Circuit Court for allowing such profits, instead of the charter value of the vessel during the time of her detention, was that 'being engaged in a regular established line, and being peculiarly fitted for that line, her charter value could not be satisfactorily ascertained; and other vessels which could be procured to supply her place were not equally fitted for the service.' The commissioner's report, and the deposition of the clerk of the boat, which was made part of that report, show that the amount allowed was ascertained by taking the average of the profits of the trips performed by her within six and a half months next before the collision, deducting only the expenses as ascertained at the end of each trip, and deducting nothing for insurance, or for wear and tear, or for necessary repairs at the end of the season. But as the clerk testified that she was in no need of repair at the time of the collision, and there was neither suggestion nor evidence before the commissioner that the premiums of insurance were lessened while she was laid up for repairs, a majority of the court is of opinion that it cannot be said, as matter of law, that the sum allowed for her detention was excessive.

The only other question argued at the bar is whether certain sums paid to the libellant by underwriters on his vessel should be deducted from the damages which he is entitled to recover in this suit. The determination of this question depends upon the effect of the following facts:--

At the time of the collision, the 'Robert E. Lee' was insured in various sums, amounting to $50,000 in all, against perils of the sea, river, and fire, by concurrent policies in diffee nt insurance companies, each of which valued her at $75,000, and contained this provision: 'Whenever this company shall pay any loss, the assured agrees to assign over to said company all right to recover satisfaction therefor from any other person or persons, town or other corporation, or the United States government, or to prosecute therefor at the charge and for account of the company, if requested. And the said company shall be entitled to such proportion of said damages recovered as the amount insured by them bears to the valuation of said vessel.'

The insurance companies paid to the libellant in the aggregate, for the loss sustained by his vessel by the collision, the sum of $7,429.52, which was arrived at by assuming the damage to her at $14,347.34, including about $2,000 for wages and expenses during her detention, instead of profits lost, then deducting one-third of the repairs, new for old, amounting to $3,203.06, and charging the assured with one-third of the balance, as his portion of the risk assumed, not covered by the insurance.

After the filing of this libel in the District Court, the insurance companies executed and delivered to the claimants an instrument in writing, by which, after reciting the collision, the payment of the insurance money, and that they had never authorized the bringing or prosecution of this suit, and desired no suit brought on their account, they released, discharged, and set over to the owners and master of the 'Potomac' 'any and all right which they have in and to any damage, or claim of damage, if any there be, whether legal or equitable, growing out of the said collision, and authorize them to use the same, by way of defence or otherwise, in and to the said suit.' There was no evidence that the insurance companies had ever authorized this suit to be brought, or that the claimants had paid any consideration for the release and assignment.

The claimants, under apt allegations in their answer and cross-libel, contended that the amount so paid by the insurance companies should be deducted from the libellant's damages, before bringing them into account with him. The District Court so held, and deducted the whole of that amount from the moiety of the damages to the 'Robert E. Lee' which the libellant was entitled to recover against the 'Potomac.' The Circuit Court, on the other hand, held that no part of that amount should be deducted. This court is of opinion that neither of these decisions was correct.

The mere payment of a loss by the insurer does not indeed afford any defence, in whole or in part, to a person, whose fault has been the cause of the loss, in a suit brought against the latter by the assured. But upon familiar principles, often recognized by this court, the insurer acquires by such payment a corresponding right in any damages to be recovered by the assured against the wrong-doer, or other party responsible for the loss, and may enforce this right by action at common law in the name of the assured, or, when the case admits of proceeding in equity or admiralty, by suit in his own name. Hall & Long v. Railroad Companies, 13 Wall. 367; Comegys v. Vasse, 1 Pet. 193; Fretz v. Bull, 12 How. 466; The Monticello, 17 id. 152; Garrison v. Memphis Insurance Co., 19 id. 312. See also The Sarah Ann, 2 Sumn. 206; The Ann C. Pratt, 1 Curt. C. C. 340; Clark v. Wilson, 103 Mass. 219; Yates v. Whyte, 5 Scott, 640; s. c. 4 Bing. N. C. 272; 1 Arnold, 85; Simpson v. Thomson, 3 App. Cas. 279.

This right of the insurer is not contingent upon the loss having been total, or upon its having been followed by an abandonment, but rests upon the ground that his contract is in the nature of a contract of indemnity, and that he is therefore entitled, upon paying a sum for which others are primarily liable to the assured, to be proportionally subrogated to his right of action against them. Phil. Ins., sect. 1723; Hall & Long v. Railroad Companies, 13 Wall. 367, 371; White v. Dobis on, 14 Sim. 273; Quebec Assurance Co. v. St. Louis, 7 Moo. P. C. 286; Dickenson v. Jardine, Law Rep. 3 C. P. 639, 644; Simpson v. Thomson, 3 App. Cas. 284, 293; Darrell v. Tibbitts, 5 Q. B. D. 560.

By the express terms of each of the policies upon the 'Robert E. Lee,' the insurers, upon payment of a loss, were entitled to demand from the assured an assignment of his right to recover damages against the 'Potomac' for the loss so paid for, or to bring suit for such damages in his name, and to hold to their own use such proportion of those damages as the amount insured bore to the valuation of the 'Robert E. Lee' in the policy. And that valuation is conclusive in respect of all rights and obligations arising upon the policy of insurance. North of England Insurance Association v. Armstrong, Law Rep. 5 Q. B. 244.

The amount which, by the effect of the contract of insurance, and of the payment of a loss under it, the insurers had the right to recover to their own use from the 'Potomac' and her owners, they had the right to release and assign, if they saw fit, to those owners. The claim of the latter to a deduction on this account from the damages to be recovered against them does not arise out of any right of their own, but out of the right so derived from the insurers. The Circuit Court therefore erred in holding that no part of this amount should be deducted from the libellant's damages.

But the insurers are entitled only to damages to be recovered for an injury for which they have paid, and to such proportion only of those damages as the amount insured bears to the valuation in the policies. As the amount insured was only two-thirds of the valuation, leaving the owner to stand his own insurer for the remaining third, and as the damages to be recovered in this suit are for the injury to his whole interest, whether insured or uninsured, it is quite clear that the insurers has no right to more than two-thirds of the damages so recovered.

Besides, the insurance applied to all injuries caused to the insured vessel by collision, whether the collision was owing to unavoidable accident, or to negligence on the part of the other vessel, or to negligence of the master and crew of the vessel insured. Phil. Ins., sects. 1049, 1099; General Mutual Insurance Co. v. Sherwood, 14 How. 351. The insurers therefore, within the limit of their policies, were responsible to the assured for the entire damage to his vessel, and not merely for the moiety thereof, which, because of the fault on her part as well as on the part of the other vessel, was all that he could recover against the latter; and the sum paid to him by the insurers is equally applicable to that portion of the damage for which he cannot recover against the other vessel and her owners, as to that portion for which he can so recover.

The necessary consequence is, that only one-half of two-thirds, or one-third, of the sum paid to the libellant by the insurers can be treated as paid on account of the damages which he can recover in this suit, and, therefore, under the claim made in the answer and at the argument, that third only can be deducted from those damages.

The result is, that the decree of the Circuit Court, awarding to the libellant the sum of $6,040.37, being one-half of the excess of the damages sustained by the 'Robert E. Lee' over the damages sustained by the 'Potomac,' must be reversed, in so far as to deduct from that sum the sum of $2,476.51, being one-third of the sum paid to him by the insurance companies, and must in other respects be affirmed; and it is

So ordered.


text: Talk:The Potomac (105 U.S. 630)/Opinion of the Court


text:
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 manner of learning the manual and liberal arts, &c. goes upon this doctrine as its foundation, and may be considered as the detail of it, in various circumstances. I here begin with the simplest case, and shall proceed to more and more complex ones continually, till I have exhausted what has occurred to me upon this subject.

This proposition, or first and simplest case of association, is manifest from innumerable common observations. Thus, the names, smells, tastes, and tangible qualities of natural bodies, suggest their visible appearances to the fancy, i.e. excite their visible ideas; and, vice versâ, their visible appearances impressed on the eye raise up those powers of reconnoitring their names, smells, tastes, and tangible qualities, which may not improperly be called their ideas, as above noted; and in some cases raise up ideas, which may be compared with visible ones, in respect of vividness. All which is plainly owing to the association of the several sensible qualities of bodies with their names, and with each other. It is remarkable, however, as being agreeable to the superior vividness of visible and audible ideas, before taken notice of, that the suggestion of the visible appearance from the name is the most ready of any other; and, next to this, that of the name from the visible appearance; in which last case, the reality of the audible idea, when not evident to the fancy, may be inferred from the ready pronunciation of the name. For it will be shewn hereafter, that the audible idea is most commonly a previous requisite to pronunciation. Other instances of the power of association may be taken from compound visible and audible impressions. Thus the sight of part of a large building suggests the idea of the rest instantaneously; and the sound of the words which begin a familiar sentence, brings the remaining part to our memories in order, the association of the parts being synchronous in the first case, and successive in the last.

It is to be observed, that, in successive associations, the power of raising the ideas is only exerted according to the order in which the association is made. Thus, if the impressions A, B, C, be always made in the order of the alphabet, B impressed alone will not raise a, but c only. Agreeably to which it is easy to repeat familiar sentences in the order in which they always occur, but impossible to do it readily in an inverted one. The reason of this is, that the compound idea, c, b, a, corresponds to the compound sensation C, B, A; and therefore requires the impression of C, B, A, in the same manner as a, b, c, does that of A, B, C. This will, however, be more evident, when we come to consider the associations of vibratory motions, in the next proposition.

It is also to be observed, that the power of association grows feebler, as the number either of synchronous or successive impressions is increased, and does not extend, with due force, to more than a small one, in the first and simplest cases. But, in

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text:
Venable v. Richards

ERROR to the Circuit Court of the United States for the Eastern District of Virginia.

The facts are stated in the opinion of the court.

Mr. William P. Burwell for the plaintiffs in error.

The Solicitor-General for the defendant in error.

MR. JUSTICE HARLAN delivered the opinion of the court.

title: Venable v. Richards


text: Talk:Venable v. Richards

title: Talk:Venable v. Richards


text:
Venable v. Richards/Opinion of the Court

Section 643 of the Revised Statutes provides, among other things, for the removal into the Circuit Court for the proper district, upon petition by defendant to that court, without bond, and without reference to the amount in dispute, of any civil suit, or criminal prosecution, 'commenced in any State court against an officer appointed under or acting by authority of any revenue law of the United States, now or hereafter enacted, or against any person acting under or by authority of any such officer, on account of any act done under color of his office, or of any such law, or on account of any right, title, or authority claimed by such officer or other person under such law; or is commenced against any person holding property or estate by title derived from any such officer, and affects the validity of such revenue law.' Similar provisions are to be found in sect. 67 of the act of July 13, 1866, c. 184, and in sect. 3 of the act of March 2, 1833, c. 57. 14 State. 171; 4 id. 633.

The present suit-commenced in one of the courts of the Commonwealth of Virginia, and thence removed, in the mode prescribed by the above section, into the Circuit Court of the United States for the Eastern District of Virginia-is clearly embraced by the terms of that section. Its object is to recover from the defendant, Richards, certain sums, aggregating more than $5,000, which, it is alleged, he, as a collector of internal revenue, illegally exacted and collected, as taxes, upon snuff manufactured by the plaintiffs, Venable & Son. The court below denied a motion to remand the cause to the State court. Its action, in that particular, is now assailed, upon the assumption that the act of March 3, 1875, c. 137, at least as to all cases removable under it, superseded sect. 643 of the Revised Statutes. The present suit, is, undoubtedly, one arising under the laws of the United States, and as the matter in dispute, exclusive of costs, exceeds the sum of $500, it could, consistently with the language of that act, have been removed before or at the term at which it could have been first tried, upon petition filed in the State court, accompanied by the required bond. But it does not follow that a removal of suits, described in sect. 643 of the Revised Statutes, could not be effected in some other mode than that defined in the act. The latter, neither in terms nor by necessary implication, abrogates previous laws providing for the removal of causes from the State courts. It repeals only such acts and parts of acts as are in conflict therewith. We fail to perceive any necessary conflict between the two enactments. Sect. 643 provides for the removal of both civil and criminal prosecutions of a limited class, arising under the laws of the United States, without regard to the amount involved, while the act of 1875 provides for the removal of all civil suits arising under the laws of the United States, where the matter in dispute exceeds the sum or value of $500. Certainly so much of the section as relates to criminal prosecutions is unaffected by the act. And the same thing may be said of civil suits, of the class described in the section, where the matter in dispute, exclusive of costs, is less than the sum of $500. But looking at the policy which underlies all the legislation providing for the removal from State courts of civil suits against officers, appointed under, or acting by authority of, any revenue law of the United States, we cannot suppose that Congress intended to deny to such officers, when sued for amounts exceeding $500, exclusive of costs, the benefit of the liberal provisions which are confessedly accorded to them when sued for less than that sum. 'If by any reasonable construction the two statutes can stand together, they must so stand. If harmony is impossible, and only in that event, the former law is repealed in part or wholly, as the case may be.' State v. Stoll, 17 Wall. 425, 431. We are of opinion that effect will be given to the intention of Congress by holding, as we now do, that sect. 643 of the Revised Statutes, not being in conflict with the act of 1875, is in full force as to all cases embraced by its terms; and, consequently, that the act, so far as it embraces suits, arising under the laws of the United States, does not preclude a removal of a suit of the class defined and in the mode prescribed by that section.

This brings us to a consideration of the case upon its merits. The amounts which the plaintiffs claim were illegally exacted as taxes upon snuff manufactured by them were paid from August, 1872, to May, 1875, both inclusive. During all that period they were assessed, upon snuff, at the rate of thirty-two cents per pound, which was, as they contend, in excess of the rate established by law.

We are of opinion that the snuff manufactured by the plaintiffs was taxable at the rate of thirty-two cents per pound. A careful examination of sect. 61 of the act of July 20, 1868, c. 186, sect. 31 of the act of June 6, 1872, c. 315, sect. 3368 of the Revised Statutes, and sect. 2 of the act of March 3, 1875, c. 127, will show that during the period in question the tax upon snuff of all descriptions, when prepared for use, and manufactured of tobacco or any substitute of tobacco, was thirty-two cents per pound. The only basis for a different construction of the statutes exists in the fact that the act of 1872, substituted for the third and fourth paragraphs of sect. 61 of the act of 1868, a single paragraph which, among other things, prescribes a tax of twenty cents per pound upon granulated tobacco. The substituted paragraph was carried into the Revised Statutes, and is the second paragraph of sect. 3368. The conclusion attempted to be drawn from these facts has no foundation whatever upon which to rest. The act of 1872 left untouched the same paragraph of sect. 61 of the act of 1868, which expressly provided that 'upon tobacco and snuff which shall be manufactured and sold, or removed for consumption or use, there shall be assessed and collected the following taxes: On snuff manufactured of tobacco, or any substitute of tobacco, ground, dry, damp, pickled, scented, or otherwise, of all descriptions, when prepared for use, a tax of thirty-two cents per pound. And snuff flour, when sold, or removed for use or consumption, shall be taxed as snuff, and shall be put up in packages and stamped in the same manner as snuff.'

And this provision was reproduced in sect. 3368 of the Revised Statutes, of which the paragraph prescribing a tax of twenty cents on granulated tobacco is also a part. The plaintiffs concede that the article which was taxed in their hands was commonly known as snuff, but they insist that snuff is granulated tobacco within the meaning of the act of 1872, and of the Revised Statutes. If so, it results that, while granulated tobacco was subject, since the passage of the act of 1872, and up to March 3, 1875, to a tax of twenty cents per pound, and, by the act of the latter date, to twnety-four cents per pound, THERE WAS IN Force, during the same period, another provision specifically taxing snuff, manufactured of tobacco or any substitute for tobacco, of all descriptions, at the rate of thirty-two cents per pound. Any such construction of the statute is inadmissible. The bill of exceptions stated that there was no evidence to show that the term 'snuff' was synonymous with 'granulated tobacco,' and that while the plaintiffs' witnesses knew what was meant by snuff, they did not know what granulated tobacco was, in the trade in Virginia, nor what the statute meant by that phrase. It will not, therefore, be expected that this court will judicially know what granulated tobacco is, or in what respect, if in any, it resembles snuff. All that we decide is, that the article manufactured of tobacco, or any substitute for tobacco, known in the trade and prepared for use as snuff, is, within the meaning of the statute, snuff upon which, when sold or removed for consumption or use, was imposed, during the period in question, a tax of thirty-two cents per pound.

Judgment affirmed.


text: Talk:Venable v. Richards/Opinion of the Court


text:
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 complex cases, or the associations of associations, of which the memory, in its full extent, consists, the powers of the mind, deducible from this source, will be found much greater than any person, upon his first entrance on these inquiries, could well imagine.

proposition may be deduced from the foregoing, in the same manner as the ninth has been from the eighth.

But it seems also deducible from the nature of vibrations, and of an animal body. Let A and B be two vibrations, associated synchronically. Now, it is evident, that the vibration A (for I will, in this proposition, speak of A and B in the singular number, for the sake of greater clearness) will, by endeavouring to diffuse itself into those parts of the medullary substance which are affected primarily by the vibration B, in some measure modify and change B, so as to make B a little different from what it would be, if impressed alone. For the same reasons the vibration A will be a little affected, even in its primary seat, by the endeavour of B to diffuse itself all over the medullary substance. Suppose now the vibrations A and B to be impressed at the same instant, for a thousand times; it follows, from the ninth proposition, that they will first overcome the disposition to the natural vibrations N, and then leave a tendency to themselves, which will now occupy the place of the original natural tendency to vibrations. When therefore the vibration A is impressed alone, it cannot be entirely such as the object would excite of itself, but must lean, even in its primary seat, to the modifications and changes induced by B, during their thousand joint impressions; and therefore much more, in receding from this primary seat, will it lean that way; and when it comes to the seat of B, it will excite B’s miniature a little modified and changed by itself.

Or thus: When A is impressed alone, some vibration must take place in the primary seat of B, both on account of the heat and pulsation of the arteries, and because A will endeavour to diffuse itself over the whole medullary substance. This cannot be that part of the natural vibrations N, which belongs to this region, because it is supposed to be overruled already. It cannot be that which A impressed alone would have propagated into this region, because that has always hitherto been overruled, and converted into B; and therefore cannot have begotten a tendency to itself. It cannot be any full vivid vibration, such as B, C, D, &c. belonging to this region, because all full vibrations require the actual impression of an object upon the corresponding external

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text:
Upton v. McLaughlin

ERROR to the Supreme Court of the Territory of Wyoming.

The facts are fully stated in the opinion of the court.

Mr. Homer Cook for the plaintiff in error.

Mr. William R. Steele for the defendant in error.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

title: Upton v. McLaughlin


text:
Page:Observations on Man 1834.djvu/78

 organ. And of miniature vibrations belonging to this region, such as b, c, d, &c. it is evident, that b has the preference, since A leans to it a little, even in its own primary seat, more and more, in receding from this, and almost entirely, when it comes to the primary seat of B. For the same reasons B impressed alone will excite a; and, in general, if A, B, C, &c. be vibrations synchronically impressed on different regions of the medullary substance, A impressed alone will at last excite b, c, &c. according to the proposition.

If A and B be vibrations impressed successively, then will the latter part of A, viz. that part which, according to the third and fourth propositions, remains, after the impression of the object ceases, be modified and altered by B, at the same time that it will a little modify and alter it, till at last it be quite overpowered by it, and end in it. It follows therefore, by a like method of reasoning, that the successive impression of A and B, sufficiently repeated, will so alter the medullary substance, as that when A is impressed alone, its latter part shall not be such as the sole impression of A requires, but lean towards B, and end in b at last. But B will not excite a in a retrograde order; since, by supposition, the latter part of B was not modified and altered by A, but by some other vibration, such as C or D. And as B, by being followed by C, may at last raise c; so b, when raised by A, in the method here proposed, may be also sufficient to raise c; inasmuch as the miniature c being a feeble motion, not stronger, perhaps, than the natural vibrations N, requires only to have its kind, place, and line of direction, determined by association, the heat and arterial pulsation conveying to it the requisite degree of strength. And thus A impressed alone will raise b, c, &c. in successive associations, as well as in synchronous ones, according to the proposition.

It seems also, that the influence of A may, in some degree, reach through B to C; so that A of itself may have some effect to raise c, as well as by means of b. However, it is evident, that this chain must break off, at last, in long successions; and that sooner or later, according to the number and vigour of the repeated impressions. The power of miniature vibrations to raise other miniatures may, perhaps, be made clearer to mathematicians, by hinting, that the efficacy of any vibration to raise any other, is not in the simple ratio of its vividness, but as some power thereof less than unity; for thus b may raise c, a weaker vibration than b, c may raise d, &c. with more facility than if the efficacy was in the simple ratio of the vividness, and yet so that the series shall break off at last.

If the ninth proposition be allowed, we may prove this in somewhat a shorter and easier manner, as follows. Since the vibrations A and B are impressed together, they must, from the diffusion necessary to vibratory motions, run into one vibration; and consequently, after a number of impressions sufficiently

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text: Talk:Upton v. McLaughlin

title: Talk:Upton v. McLaughlin


text:
Upton v. McLaughlin/Opinion of the Court

This suit was brought in the District Court of the First Judicial District of the Territory of Wyoming, in and for Laramie County, by the assignee in bankruptcy of the Great Western Insurance Company, to recover from Daniel McLaughlin the sum of $800, with interest at twelve per cent, from the fifteenth day of August, 1872, as the amount due and unpaid on a subscription for ten shares of the capital stock of the company, owned by McLaughlin. The company was a corporation of the State of Illinois. In February, 1872, it was adjudicated a bankrupt by the District Court of the United States for the Northern District of Illinois, and on the 11th of April, 1872, the plaintiff was appointed its assignee; and an assignment of all its property was executed to him. On the 5th of July, 1872, the bankruptcy court made an order that the entire amount unpaid of the capital stock of the company be paid to him on or before the 15th of August, 1872, at his office in Chicago, and that, in default thereof, he proceed to collect the same. The amount claimed in this suit is eighty per cent on $1,000, being on ten shares of $100 each. The suit was commenced by a petition filed April 8, 1876. McLaughlin put in an answer consisting of four several defences. The fourth defence set up, as a cause of action against the company, and as a set-off to the claim on which the suit was brought, that the company, before it was adjudged bankrupt, was indebted to him on a balance due upon an account, in a specified sum, which was still due, and for which sum he prayed judgment against the plaintiff. The plaintiff demurred, by one demurrer, to the second, third, and fourth defences. The District Court overruled the demurrer as to the second and third defences, and sustained it as to the fourth defence. To such ruling against the defendant he excepted. The case was tried by a jury, and a verdict rendered for the plaintiff, assessing his damages at $1,008. Thereupon a judgment was entered that the assignee recover from McLaughlin $1,008, and the costs of the action. McLaughlin, by a petition in error to the Supreme Court of the Territory, alleging thirty-two several errors made by the District Court, prayed for a reversal of the judgment. The Supreme Court entered a judgment that the judgment of the District Court must be reversed and held for naught, and then stating, that 'the court, further proceeding to render such judgment as the said District Court ought to have rendered, find that said court bad no jurisdiction of said cause,' and that it should have rendered judgment in favor of McLaughlin and against the assignee, and that judgment be rendered in favor of McLaughlin and against the assignee, and that McLaughlin recover from the assignee $59.25 costs, and that such judgment be remanded to the District Court for execution, and that a special mandate be sent to said court therefor. The assignee has brought the case into this court by a writ of error to the Supreme Court of the Territory of Wyoming.

The grounds on which the court proceeded in holding that the District Court had no jurisdiction, and in reversing the judgment of that court, are shown by its opinion, which is found in the record. The opinion proceeds upon the view that, because of the provisions of sect. 5057 of the Revised Statutes of the United States, the District Court had no jurisdiction of the suit. That section is as follows: 'No suit, either at law or in equity, shall be maintainable in any court, between an assignee in bankruptcy and a person claiming an adverse interest, touching any property or rights of property transferable to or vested in such assignee, unless brought within two yearsf rom the time which the cause of action accrued for or against such assignee. And this provision shall not in any case revive a right of action barred at the time when an assignee is appointed.' The view taken in the opinion is, that this statute is not a statute merely limiting the remedy, but imposes an absolute limit; that, after two years, the assignee can neither sue nor be sued, but his office, for the purpose of commencing any suit, must be regarded as having expired; that no court has power to admit him to a status within the court; and that such want of power is want to jurisdiction. The opinion delivered by Mr. Justice Miller in Bailey v. Glover (21 Wall. 342), is cited and interpreted as holding that the statute (then sect. 2 of the act of March 2, 1867, c. 176, 14 Stat. 518) is an absolute jurisdictional limitation, and thus, as an adjudication of the question, furnishing the rule which governs this case. This is an entire misconception of that decision. It established the contrary proposition. It was a suit in equity, in which the assignee, more than three years after the date of his appointment, filed a bill against three relatives of the bankrupt, to set aside conveyances made to them by the bankrupt of all his estate in fraud of his creditors. It alleged that the bankrupt and the defendants kept secret their fraudulent acts, whereby the assignee and the creditors were prevented from obtaining any sufficient knowledge or information thereof until within two years before the filing of the bill. The defendants demurred to the bill, on the ground that the suit was not brought within two years from the appointment of the assignee. The demurrer was sustained by the Circuit Court. The plaintiff appealed to this court. The report of the case shows that the defendants contended here that the case was not one of an ordinary statute of limitation, but that the statute was imperative and admitted of no exceptions as to any tribunal. If such contention had been regarded as correct, the decision of the Circuit Court would necessarily have been affirmed. But this court held that the statute in question was a statute of limitation, and one of such a character as not to set up an absolute bar of two years from the mere lapse of that time, but to require the application to it of the principle that where there has been no negligence or laches on the part of a plaintiff in coming to the knowledge of the fraud which is the foundation of the suit, and when the fraud has been concealed, or is of such a character as to conceal itself, the statute does not begin to run until the fraud is discovered by, or becomes known to, the party suing or those in privity with him. On this view this court reversed the decree below. This was a plain decision that the statute in question does not impose an absolute limit of two years after the appointment of the assignee, in respect to transactions which occurred before such appointment, and that there is no want of power in the court to entertain a suit after such two years have elapsed. This view was recognized and applied in Gifford v. Helms (98 U.S. 248), although there it was held that, on the facts, the assignee's right of action commenced at the time of his appointment. It is, therefore, clear that no support for the decision below is to be drawn from Bailey v. Glover. The question is not to be treated as one of power or jurisdiction, but as one dependent on the principles applicable to statutes of limitation generally.

This being so, the record shows that no question as to the application of the statute to the case was raised in the District Court of The Territory by the defendant, either in pleading or on the trial, or before judgment. It is too late for a defendant who does not take, prior to a judgment against him, the point that the action is barred by a statute of limitation, to raise the point for the first time in an appellate court. This principle is always applied to questions which are not questions of jurisdiction. Storm v. United States, 94 U.S. 76, 81.

It is, however, contended by the defendant that the question of the bar by the statute was presented in the Supreme Court of the Territory, by the record from the District Court, because the petition did not state facts sufficient to constitute a cause of action, and could have been demurred to for that cause. Sect. 85 of the Code of Civil Procedure of the Territory provides that the defendant may demur to the petition when it appears upon its face either that the court has no jurisdiction, or that the petition does not state facts sufficient to constitute a cause of action. Sect. 87 provides that the objection to the jurisdiction of the court, and the objection that the petition does not state the facts sufficient to constitute a cause of action, shall not be deemed to be waived by not taking them by either demurrer or answer. It is contended that a petition which shows upon its face that the cause of action is barred by a statute of limitation, is a petition which does not state facts sufficient to constitute a cause of action; and that that objection, though not taken by demurrer or answer, may be taken at any time. But we are of opinion that the statutory provisions referred to cannot properly be construed as allowing the defence of a bar by a statute of limitation to be raised for the first time in an appellate court, even though the petition might have been demurred to as showing on its face that the cause of action is so barred, and thus as not stating facts sufficient to constitute a cause of action.

The petition in this case sets out facts which show that the cause of action sued on accrued to the assignee more than two years before the bringing of the suit. Assuming the suit to be such a suit as is mentioned in sect. 5057, it is held by the Supreme Court of Wyoming, in Bonnifield v. Price (1 Wy. 172), that the rule is well established in that Territory, that where from the face of the petition it is apparent, without any further showing, that the claim is barred by a statute of limitation, a defendant may take advantage of such bar by a special demurrer to the petition. The same rule prevails in Ohio, Sturges v. Burton (8 Ohio St. 215); McKinney v. McKinney (id. 423); in Kansas, Zane v. Zane (5 Kan. 134); and in Nebraska, Peters v. Dunnells, 5 Neb. 460. The rule is founded on the view that in such a case the petition does not state facts sufficient to constitute a cause of action. But if, in the court of original jurisdiction, the defence of a statute of limitation is not raised by either demurrer or answer, and is not brought to the attention of the court which tries the cause, by some objection taken in a proper manner, before judgment, it cannot, under sect. 87 of the Code of Wyoming, be raised for the first time in an appellate court. The effect of that section is only to permit the defendant to make the objection after demurrer or answer, and before judgment. Under such a statutory provision it has been held that at the trial, and even after the evidence is all in, the objection may first be made, Coffin v. Reynolds (37 N. Y. 640); Zane v. Zane (5 Kan. 134); and that it may be made by stating it distinctly as a ground of objection to the introduction of evidence. Zane v. Zane, ubi supra. But unless it appeared by the record which was before the Supreme Court of Wyoming in this case, that the objection had been taken in some proper manner in the District Court, the Supreme Court could not notice it. That court has power (Code, sect. 513) to reverse a judgment of the District Court for errors appearing on the record, and the petition in error (sect. 514) must set forth the errors complained of. Neither in the bill of exceptions, nor in the twenty-eight errors specified in the motion for a new trial in the District Court, nor in the thirty-two errors specified in the petition in error, is there any allusion to the statute of limitation.

The defendant contends that as the District Court sustained the demurrer to the fourth defence in the answer, and the defendant excepted to the ruling, the question as to whether the petition was sufficient as a pleading was thereby brought up, because the District Court ought to have given judgment against the party which committed the first fault in pleading. But we are of opinion that the record must show that the question as to whether it appeared by the petition that the action was barred by the statute was distinctly presented to and raised before the District Court. This does not appear, as before stated.

The defendant also contends that various objections and exceptions taken by him to the admission of evidence, and to instructions to the jury, and various grounds of error stated in the motion for a new trial, raised the question referred to. It is sufficient to say that the objections to the admission of evidence merely state that the evidence is incompetent, immaterial, and irrelevant, without suggesting the question of the statute of limitation; and that the exceptions to the instructions to the jury and the grounds of error set forth in the motion for a new trial make no allusion to that question, nor is there any allusion to it in the record sent from the District Court. Under such circumstances the question cannot be raised in the appellate court. Mays v. Fritton, 20 Wall. 414, and cases there cited; Beaver v. Taylor, 93 U.S. 46; Wheeler v. Sedgwick, 94 id. 1.

Because the Supreme Court of Wyoming held that the District Court had no jurisdiction of this suit, it did not examine any of the questions raised by the defendant in the bill of exceptions taken by him. As it improperly reversed the judgment of the District Court, its judgment must be reversed; and as it passed on no other question but the jurisdiction of the District Court, the case must, under the provisions of sects. 701 and 702 of the Revised Statutes, be remanded to it, with directions to hear and determine the questions raised by the petition in error, and to take such further proceedings as may be in conformity with law and not inconsistent with the opinion of this court; and it is

So ordered.

NOTE.-Upton v. Kent, error to the Supreme Court of the Territory of Wyoming, was submitted at the same time as the preceding case, and was argued by the same counsel for the plaintiff in error, and by Mr. Samuel Shellabarger and Mr. Jeremiah M. Wilson for the defendant in error.

MR. JUSTICE BLATCHFORD, in delivering the opinion of the court, remarked that the facts and the questions raised were essentially the same in both cases. The same judgment was entered in this case as in Upton v. McLaughlin.


text: Talk:Upton v. McLaughlin/Opinion of the Court


text:
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 repeated, will leave a trace, or miniature, of themselves, as one vibration, which will recur every now and then, from slight causes. Much rather, therefore, may the part b of the compound miniature a + b recur, when the part A of the compound original vibration A + B is impressed.

And as the ninth proposition may be thus made to prove the present, so it ought to be acknowledged and remarked here, that unless the ninth be allowed, the present cannot be proved, or that the power of association is founded upon, and necessarily requires, the previous power of forming ideas, and miniature vibrations. For ideas, and miniature vibrations, must first be generated, according to the eighth and ninth propositions, before they can be associated, according to the tenth and this eleventh. But then (which is very remarkable) this power of forming ideas, and their corresponding miniature vibrations, does equally presuppose the power of association. For since all sensations and vibrations are infinitely divisible, in respect of time and place, they could not leave any traces or images of themselves, i.e. any ideas, or miniature vibrations, unless their infinitesimal parts did cohere together through joint impression, i.e. association. Thus, to mention a gross instance, we could have no proper idea of a horse, unless the particular ideas of the head, neck, body, legs, and tail, peculiar to this animal, stuck to each other in the fancy, from frequent joint impression. And, therefore, in dreams, where complex associations are much weakened, and various parcels of visible ideas, not joined in nature, start up together in the fancy, contiguous to each other, we often see monsters, chimeras, and combinations, which have never been actually presented.

Association seems also necessary to dispose the medullary substance to this or that miniature vibration, in succession, after the miniatures of a large number of original vibrations have been generated.

Nor does there seem to be any precise limit which can be set to this mutual dependence of the powers of generating miniatures, and of association upon each other: however they may both take place together, as the heart and brain are supposed to do, or both depend upon one simple principle; for it seems impossible, that they should imply one another ad infinitum. There is no greater difficulty here than in many other cases of mutual indefinite implication, known and allowed by all. Nay, one may almost deduce some presumption in favour of the hypothesis here produced, from this mutual indefinite implication of its parts so agreeable to the tenor of nature in other things. And it is certainly a presumption in its favour, that a less power of generating miniatures will be a foundation for a larger of association, and vice versâ, till, at last, the whole superstructure of ideas and associations observable in human life may, by proceeding upwards according to analysis, and downwards according

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text:
Ex Parte Boyd

PETITION for a writ of habeas corpus.

The facts and the statutes bearing upon the question involved are set out in the opinion of the court.

Mr. Royer M. Sherman for the petitioner.

The Solicitor-General for the United States.

MR. JUSTICE MATTHEWS delivered the opinion of the court.

title: Ex Parte Boyd


text: Talk:Ex Parte Boyd

title: Talk:Ex Parte Boyd


text:
Page:Observations on Man 1834.djvu/80

 to synthesis, be built upon as small a foundation as we please. Thus we may observe, that neither does this eleventh proposition necessarily require the ninth, in its full extent, not vice versâ, for their demonstration. The least miniatures, with the feeblest cohesions of their parts, will, by degrees, run into larger, with stronger cohesions, from the same principles; nor are there any visible limits to the influence and extent of these powers, supposing the natural faculties of the being under consideration sufficiently extended.

Let me add, that the generation of sensible ideas from sensations, and the power of raising them from association, when considered as faculties of the mind, are evident and unquestionable. Since therefore sensations are conveyed to the mind, by the efficiency of corporeal causes of the medullary substance, as is acknowledged by all physiologists and physicians, it seems to me, that the powers of generating ideas, and raising them by association, must also arise from corporeal causes, and consequently admit of an explication from the subtle influences of the small parts of matter upon each other, as soon as these are sufficiently understood; which is farther evinced from the manifest influences of material causes upon our ideas and associations, taken notice of under the second proposition. And as a vibratory motion is more suitable to the nature of sensation than any other species of motion, so does it seem also more suitable to the powers of generating ideas, and raising them by association. However, these powers are evident independently, as just now observed; so that the doctrine of association may be laid down as a certain foundation, and a clew to direct our future inquiries, whatever becomes of that of vibrations.

order to explain and prove this proposition, it will be requisite to give some previous account of the manner in which simple ideas of sensation may be associated together.

Case 1. Let the sensation A be often associated with each of the sensations B, C, D, &c. i.e. at certain times with B, at certain other times with C, &c. it is evident, from the tenth proposition, that A, impressed alone, will, at last, raise b, c, d, &c. all together, i.e. associate them with one another, provided they belong to different regions of the medullary substance; for if any two, or more, belong to the same region, since they cannot exist together in their distinct forms, A will raise something intermediate between them.

Case 2. If the sensations A, B, C, D, &c. be associated together, according to various combinations of twos, or even threes, fours, &c. then will A raise b, c, d, &c. also B raise a, c, d, &c. as in case the first.

title: Page:Observations on Man 1834.djvu/80