text:
Patterson v. De La Ronde

ERROR to the Circuit Court of the United States for Louisiana.

The case was thus: In April, 1853, Pierre Hoa sold to one Mrs. McGee a plantation and several slaves attached thereto, in Louisiana, for the sum of ninety-five thousand dollars, and for a portion of the purchase-money took her seven promissory notes, two of which were payable, respectively, in five and six years from date. In the act of sale before the notary, which was subscribed by the parties, the officer, and the attending witnesses, the purchaser stipulated for a special mortgage on the property, as security for the payment of her notes; and it was declared that the vendor's mortgage and privilege should extend, not merely to the land and slaves, but to the appurtenances of the land and the improvements. The act of sale was duly recorded in the register's office of the parish.

Before the maturity of the last note given by Mrs. McGee on this purchase, and in July, 1858, she executed a mortgage upon the same property to one Patterson, to secure several notes made by her at the time, amounting to thirty-five thousand dollars. This mortgage was also duly recorded in the office of the register of the parish. In it reference is made to the previous mortgage given by Mrs. McGee in favor of her vendor, Hoa.

In October, 1865, Patterson brought a suit in the Circuit Court for the District of Louisiana upon these notes, and, in February, 1866, recovered judgment for their full amount and interest. Upon this judgment execution was issued, and the mortgaged property was sold by the marshal to the plaintiff, he being the highest bidder, for the sum of $26,200.

By the law of Louisiana, where property, which is susceptible of being mortgaged, is to be sold under execution, the sheriff is required to obtain, from the office of the register of mortgages in the parish, a certificate setting forth the mortgages and privileges inscribed against the property on the books of the office, and to read the certificate to the bystanders at the place of sale before he cries the property. (Code of Procedure, Art. 678.) The sheriff is also required to give notice at the sale that the property will be sold subject to all privileges and hypothecations, of every kind, with which it is burdened. The purchaser in such case is only obliged to pay to the officer so much of his bid as may exceed the amount of the privileges and special mortgages upon the property, and is allowed to retain in his own hands the amount required to satisfy them.

The law, in these particulars, was followed in the sale made on the execution in this case. The marshal states in his return that the sum bid by Patterson was retained in his hands-first, to pay the mortgage in favor of Hoa; and, second, to be applied on account of marshal's and clerk's fees, and the purchaser's own claim. And, in his deed to Patterson, the marshal recites his proceedings, at the sale; his announcement to the bidders of the subsisting mortgages on the property, of which the first was the mortgage of Mrs. McGee to Hoa; and the retention of the sum bid by the purchaser to satisfy the amount due thereon.

Soon after the sale, and before the return was made by the marshal, or the deed to the purchaser was executed, Hoa filed what is termed in Louisiana a petition of intervention and third opposition, a proceeding by which a third person is allowed to become a party to a suit between other persons, for the purpose, among other things, of enabling him to present any claim which he asserts on the proceeds or property seized and sold under the order or judgment of the court. The object of the intervention of Hoa was to obtain payment, out of the proceeds of the sale, of the amount due him of the purchase-money of the mortgaged premises. To the petition, Patterson, in the first instance, filed an answer, stating that, at the sale, he bought the property for the sum of $26,200; that out of this sum he undertook, according to law and the proclamation of the marshal, to pay whatever sum might be due to Hoa, alleged to be a creditor of McGee, with a mortgage and a vendor's privilege on the plantation superior to his own; but that the amount was uncertain and was not stated by the marshal, and did not appear by the register's certificate read by him at the sale. The answer then proceeds to detail certain transactions which he insisted resulted in a novation of the debt of McGee to Hoa, and to a forfeiture of Hoa's right, by virtue of his mortgage and privilege, to prior payment out of the proceeds of the sale.

No point was made in this court upon the sufficiency of the new matter thus set up, and no further reference to it need be made. Subsequently, and on the day set for the trial of the intervention, Patterson filed a peremptory exception to the demand contained in the petition, to the effect that the mortgage and priority of privilege of Hoa had been prescribed, and that his privilege had been lost by reason of the non-reinscription of the mortgage to him within the delay provided by law.

On the trial the peremptory exception was overruled, and the intervention and third opposition were sustained, and judgment was given for the representatives of Hoa (he having died during the pending proceedings) for $25,000 and interest, 'with preference and privilege in the proceeds of the plantation sold' superior to that of all persons, and particularly to that of Patterson, the plaintiff. A second trial granted by the court resulted in a similar judgment.

The 3333d section of the Civil Code of Louisiana, published by authority of the legislature of the State, in English and French, and in parallel columns, is as follows:

IN ENGLISH.

The registry preserves the evidences of mortgages and privileges during ten years, reckoning from the day of their date; their effect ceases even against the contracting parties if the inscriptions have not been renewed before the expiration of this time in the manner in which they were first made.

IN FRENCH.

Les inscriptions conservent l'hypoth eque et le privilege pendant dix ann ees a compter du jour de leur date; leur effet cesse m eme contre les parties contractantes, si ces inscriptions n'ont  et e renouvel ees avant l'expiration de ce delai de la m eme mani ere qu'elles ont  et e prises.

Mr. T. Durant, for the appellant:

Under the laws of most of the United States, a mortgage is perfectly good, as between the parties to it, whether it be recorded or not. Those States brought this principle of their jurisprudence from the country of their origin, England, in which country registries were not obligatory, nor ever made, except in special places. And while most of the States of our Union require registries, it is only in order that the rights of subsequent incumbrancers or purchasers bon a fide, and without notice of the prior privilege, may not be cut out by secret liens. As between the parties, the mortgage, though never recorded, but on the contrary kept secret, remains as in the land from which their people came and derive the body of their laws; that is to say, it remains valid.

But in Louisiana, the whole system of law springs from a source quite different from that whence most of the States derive theirs. The genius of the system is different, as different as are France and England, as the French codes and the common law. Great errors are made in the discussion of a question like this, by arguing from one system to the other Yet independently of the preconceived ideas natural to lawyers or judges bred wholly in the system of the Northern and Western States, and necessarily ignorant of the French system, there is no reason why it may not be enacted that a mortgage not registered every ten years shall not bind property against any one, as why it may not be enacted that unless so registered it shall not bind the property as against subsequent creditors or purchasers. Creditors and purchasers can examine registries after ten years have expired as well as before, and, in most of our States, do.

Now the enactment of the code, if we take the English side of it, settles this dispute at once. And it does but lead us to the same conclusion as does our argument, a priori. Why shall we not take that English side? The State of Louisiana, from which the French language has been departing ever since our purchase of it, and is now departing more and more, acknowledges, in the interpretation of its code, the supremacy of the language in which the Constitution of our country is indited and proclaimed; the English alone.

But if we take the French side of the column, what then? The question even then is, at most, but doubtful. The expression leur effet may refer to the two singulars, l'hypoth eque and 'le privilege,' it being a rule as old as grammar itself, that two singulars allow and sometimes require a plural verb or adjective. This is just what the English side declares is the true syntax. The English side-the authoritative side-is plain. The French side is capable of two meanings, one of them being that which is undeniably the meaning of the English side.

The recital in Patterson's deed is unimportant. Purchasers of property sold under ''fi. fa.'' in Louisiana, are required indeed to take it subject to real mortgages if they be recorded. But if upon investigation it is found that no real mortgages exist, the purchaser is not bound to take it subject to mortgages that, by the sheriff's blunder, are only imagined. Nor is there injustice in this. The amount of the non-existent mortgage retained is not necessarily so much gained by the purchaser if he does not pay the amount to the imaginary mortgage. For if the mortgage erroneously assumed to be a binding one, prove not to be so, then the purchaser owes the amount to the judgment debtor and must pay him.

Mr. Evarts, contra, having observed that the French side of the code, literally translated, reads thus:

'The inscriptions preserve the mortgage and the privilege during ten years, reckoning from the day of their date; their effect ceases, even against the contracting parties, if the inscriptions have not been renewed before the expiration of this time, in the manner in which they were first made'--

went into a critical examination of the whole system of inscriptions of privileges and mortgages, and their extinction by prescription, as regulated by the Louisiana code, arguing that, upon a right view of them, it was manifest that those same general principles, so familiar to us in their application to the recording acts of the other States and England, equally obtained in the law of Louisiana.

That inscription was of no application, in respect of the efficiency of the instruments between the parties to the contracts or their privies, in law or fact, or those brought by their own contract, into knowledge, or obligation of knowledge, of the privilege or mortgage in question.

That in those relations, it added nothing to the force or durability of the contract, and that its omission neither enervated nor curtailed the contract itself.

That it was solely to affect 'third parties,' within the definition of the code, with knowledge of what was lawfully inscribed, by giving them the opportunity of knowledge by inspection, and visiting the neglect of inspection upon them, and not upon the party who had made the required inscription.

That reinscription, or its omission, was of no more consequence between parties and privies to these contracts, in regard to the efficacy of the contracts, than original inscription; the whole measure of its application being to 'third parties,' within the definition of the code, and only in limitation of the period of time for which they were affected by the opportunity of inspection, and the consequences of its neglect.

That Patterson was, by the force of his own contracts with Hoa's vendee, held to the knowledge and the maintenance of Hoa's vendor's privilege, and to knowledge of and submission to his mortgage.

That, as mortgagee, he took, in terms and in equity, a security only on what estate his mortgagor had, and, on the face of the mortgage to him, had limited her estate to, to wit: the estate over and above the vendor's privilege for the unpaid purchase-money.

That, as purchaser, at the marshal's sale, he was affected as a bidder by the announcement of this vendor's privilege and mortgage; obtained his deed from the marshal only upon assenting to assume the satisfaction of the debt to the vendor remaining unpaid; and assumed, in the deed, the payment of the amount so due to Hoa.

That the whole defence was rested, not upon any equity or right on his part; nor on any defect of right or equity on the part of the defendant in error; nor upon any policy or principle of the inscription law of Louisiana; but solely upon some literal obstruction of all this right, equity, policy, and principle, found, it is argued, in article 3333 of the code. But that, even this support failed him upon a correct interpretation of the article, and the authorities founded on it.

Mr. Justice FIELD, after stating the case, delivered the opinion of the court, as follows:

title: Patterson v. De La Ronde


text: Talk:Patterson v. De La Ronde

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/

title: Talk:Patterson v. De La Ronde


text:
Patterson v. De La Ronde/Opinion of the Court

The only error alleged in the action of the Circuit Court lies in its ruling upon the peremptory exception. It is contended here, as in that court, that the mortgage and vendor's privilege of Hoa were prescribed, and that the prescription resulted from the failure to reinscribe the mortgage within ten years from the date of the first inscription.

It is supposed that support for this position is found in article 3333 of the Civil Code of Louisiana; and such would be the case if, in the construction of the article, we were confined to its language, as given in English, in the printed volume published by authority of the legislature of the State. It would seem from its reading, as thus given, that the omission to reinscribe a mortgage within the time designated, was intended to have the effect of defeating and annulling its operation. But, upon examining the language of the article as given in French, in the same volume (the English and French being printed in parallel columns), this construction becomes impossible. Read in the light thus afforded its meaning is obvious. It was intended to declare the effect of the inscription in preserving the evidence of mortgages and privileges, and the effect of the omission to renew the inscription in destroying such evidence. It declares that the inscription preserves such evidence for ten years, and that its effect ceases if not renewed before the expiration of that period. It is the effect of the inscription when not renewed, which ceases, not the effect of the mortgage. The object of requiring reinscription is to dispense with the necessity of searching for evidence of mortgages more than ten years back.

Besides, the object of all registry laws is to impart information to parties dealing with property respecting its transfers and incumbrances, and thus to protect them from prior secret conveyances and liens. It is to the registry, therefore, that purchasers, or others desirous of ascertaining the condition of the property, must look, and if not otherwise informed, they can rely upon the knowledge there obtained. But if they have notice of the existence of unregistered conveyances and mortgages, they cannot, in truth, complain that they are, in any respect, prejudiced by the want of registry. In equity, and in this country generally at law, they are not permitted to defeat, under such circumstances, the rights of prior grantees or incumbrancers, but are required to take the title or security in subordination to their rights. The general doctrine is that knowledge of an existing conveyance or mortgage is, in legal effect, the equivalent to notice by the registry. And such is the law of Louisiana as expounded by the decisions of her highest court. Thus, in Robinett v. Compton, that court said: 'The doctrine is now well settled, that the actual knowledge by a purchaser of an existing mortgage or title is equivalent to a notice resulting from the registry. The formality of recording is for the benefit of the public, and for the purpose of giving notice to individuals. But if a party have knowledge of that of which it is the purpose of the law to notify him, by causing an act, instrument, or lien to be recorded, the effect is the same, and he is as much bound by his personal knowledge as if his information was derived from an inspection of the record.'

The cases of Planters' Bank of Georgia v. Allard, Bell v. Haw, Rachal v. Normand, and Swan v. Moore, are to the same effect.

In the case at bar, Patterson had knowledge of the mortgage and vendor's privilege of Hoa. They are stated in the mortgage to himself, which he placed on record. If, therefore, the act of sale, stipulating for the special mortgage and acknowledging the vendor's privilege, had not, in fact, been recorded, he would have been bound by his knowledge of their existence. He could not have urged the want of inscription to defeat Hoa's priority, and, for like reasons, he cannot urge the want of reinscription.

Prescription of the mortgage and vendor's privilege did not follow from the omission to reinscribe the act of sale. From its nature, prescription could not have begun to run until the debt secured had matured.

But there is a further answer to the objection founded on the want of reinscription. By the terms upon which Patterson purchased the property at the marshal's sale, and the stipulations contained in the marshal's deed accepted by him and placed on record, he assumed to pay the amount due on Hoa's mortgage. He cannot now avoid compliance with his contract, in this respect, on the ground that Hoa's mortgage had, in fact, at the time, lost its priority by not being reinscribed before the expiration of ten years from its first inscription.

JUDGMENT AFFIRMED.


text: Talk:Patterson v. De La Ronde/Opinion of the Court


text:
The Carroll

THIS was a case of collision between the schooner Loon and the steamer Carroll, which occurred on the waters of Chesapeake Bay. The collision happened about two o'clock at night; the night was bright, and the weight of the testimony was, that each vessel was provided with the necessary lookouts and lights. The schooner was in her proper course down the bay to James River, in Virginia, while the steamer was on her way from New York to the port of Baltimore, which the schooner had left the previous afternoon; and it was certain that the lookout of the steamer saw the schooner at least fifteen minutes before the accident happened. There was no dispute about the state of the wind nor of the respective speed of the boats; and that there was fault by one vessel or the other, was conceded by both parties. The officers of the steamer charged the fault to the schooner, because at the moment before the collision she changed her course, while those in command of the schooner asserted that this change of course was taken to avoid a greater danger, and only made when a collision was inevitable, and that if the officers of the steamer had been attentive to their duty the misfortune could have been averted. The only question was, therefore, which vessel was in fault? The witnesses on the part of the schooner were her captain, one Edmonson, and two common seamen, Travis and Henry. The chief ones for the steamer, were Ashcom, her mate, and one Jordan, her lookout. The testimony of all these witnesses was given at length, and went chiefly to questions of the exact times when particular manoeuvres were ordered or resorted to, and of the distances of the respective vessels at those times. Going thus to questions of fact merely, no sufficient advantage would be gained by setting it out; more particularly since the important parts of it on both sides are so largely recapitulated in the opinion of the court, as to make sufficiently intelligible the principles of law meant to be established by the judgment.

The evidence in the case was limited in extent, and not as contradictory as the evidence generally is where vessels collide. As usual, the effort of each boat was to relieve itself, and cast the blame on the other; but there was no good reason to think that any witness had intentionally sworn falsely.

The court below decided in favor of the schooner, and the owners of the steamer appealed.

The case was ably argued in this court, on the evidence and law, by Mr. J. H. Latrobe, for the appellant, and by Messrs. Schley and Waters, contra:

Mr. Justice DAVIS delivered the opinion of the court.

title: The Carroll


text: Talk:The Carroll

title: Talk:The Carroll


text:
The Carroll/Opinion of the Court

The only difficulty in cases of the kind brought by this appeal before the court, arises out of the almost necessarily conflicting character of the evidence; but if the court is able to reconcile it, or if this cannot be done, can see, notwithstanding this conflict, how the matter really occurred, then a conclusion is easily reached; for the rules of navigation which are applicable, have not only been settled by repeated adjudication, but are now embodied in the statute law of the United States.

If the two vessels in this case were approaching each other in opposite directions, so as to involve risk of collision, the duty of each was plainly marked out by law. The steamer was required to keep out of the way, slack her speed, or, if necessary, stop and reverse, while the schooner was required to maintain her course, and was not justified in changing it, unless obliged to do so to avoid a danger that immediately threatened her. As the steamer did not keep out of the way, and as the collision did occur, the steamer is prim a facie liable, and can only relieve herself by showing that the accident was inevitable, or was caused by the culpable negligence of the schooner.

It is manifest from those facts which are not disputed that, with proper precautions, these vessels should not have collided, and that there was blame somewhere.

Edmonson, captain of the schooner, says, that when opposite 'Point-no-Point' he saw the steamer coming up the bay, about a quarter of a mile distant. The schooner was steering south by east, her proper course, and the steamer's bearing from the schooner was about a point westward from the schooner's course. The schooner held her course until about the time of the collision, when, as it seemed inevitable, directions were given to starboard the helm in order to ease the blow; in consequence of which change, the blow of the steamer was received forward of the fore-rigging instead of in the middle of the vessel, which would have been the case if the schooner had continued on her course.

Travis and Henry, seamen on board the schooner, corroborate this testimony.

It is true they manifestly err when speaking of time and distance, but they were inexperienced seamen, and not very intelligent men, and there is no good reason for discrediting their testimony, which, in other respects, is reliable, because they do not testify with accuracy about distance on the water, and err in computations of time. It may well be doubted, whether Edmonson was not mistaken in the distance he said he was from the steamer when he first saw her; but in view of the testimony furnished from the steamer, the point is not material.

Ashcom, the mate of the steamer, in command at the time, and Jordan, the lookout, are the only witnesses on the part of the steamer who testify as to the state of the case prior to the collision, and they do not agree in their account of the transaction. Ashcom says, as soon as he made the schooner's light to be a port light, he gave the order to port the wheel, and it was done; while Jordan says he saw the schooner about fifteen minutes before the steamer struck her, and reported the fact to the mate, and that the course of the steamer was not changed until four or five minutes before the collision. At the speed the vessels were then running they could not have been more than a mile apart, and Ashcom admits, when he first saw the schooner, she was four or five miles off.

It is highly probable that Jordan is right as to the point of time when the change was made, but be this as it may, the steamer cannot escape condemnation, unless she is able to show that there was no risk of collision, or that she adopted suitable measures to avoid it, and that the disaster was the result of misconduct on the part of the schooner. The fact that the vessels did collide, explodes the theory that there was no risk of collision, and besides, why did the mate port his helm if in his judgment there was no risk of it? He says this was done as soon as he saw the schooner. If so, he believed at the time the relations of the vessels to each other were such that they might collide, and the possibility of it is all that is required to charge the steamer, unless she can establish that she was without fault. There is no evidence to show that the schooner changed her course until the peril was imminent, but the natural inquiry arises, which boat was blamable for producing this peril? The schooner was not, because she was obliged to keep her course. She could not choose, because the law had chosen for her. It is otherwise with the steamer. She could go to the right or left, and change as often as there was, in the apprehension of her officers, a necessity for change.

The steamer is, therefore, to blame for suffering this peril to occur; for if it be conceded that the schooner was wrong in starboarding her helm, this cannot affect her right to recover, as she was in other respects without fault, because the steamer, having the right of way, put her in this predicament, and must answer for the consequences. #fn-s-s

It is obvious that the officers of the Carroll were either unaware of the nature and extent of the nautical rules which govern vessels approaching each other in opposite directions, or were unmindful of them. These rules were established in the interest of commerce-for the protection of life and property, and must be observed. They require, where a steamship and sailing vessel are approaching from opposite directions, or on intersecting lines, that the steamship, from the moment the sailing vessel is seen, shall watch with the highest diligence her course and movements, so as to be able to adopt such timely measures of precaution as will necessarily prevent the two boats coming in contact. This the Carroll, on this occasion, failed to do. Porting the helm a point, when the light of the schooner was first observed, and then waiting until the collision was imminent before doing anything further, does not satisfy the requirements of the law. The safeguards against danger, in order to be effectual, must be seasonably employed, and in this case they were not used until the danger was threatening. If there was fault on the part of the schooner, the steamer committed a far greater fault in suffering the vessels to get in such dangerous proximity at the moment preceding the collision, and as she has furnished no excuse for this misconduct, is chargeable with all the damages resulting from this collision.

DECREE AFFIRMED, WITH INTEREST.

MILLER, J., having been absent on the argument, took no part in the judgment.

title: The Carroll/Opinion of the Court


text: Talk:The Carroll/Opinion of the Court

title: Talk:The Carroll/Opinion of the Court


text:
The Lucy

MOTION to dismiss an appeal from the District Court for the Southern District of Florida, condemning the schooner Lucy, the case being this:

An act of Congress of 1803 prescribes the circumstances under which appeals are allowed from the District to the Circuit Courts, and from these last to this court. This act being in force and governing the appeals mentioned, an act of February, 1847, established the District Court for the Southern District of Florida, with the jurisdiction and powers of a District and Circuit Court of the United States; and appeals were allowed from its decrees in the same manner, and under the same regulations as appeals from a Circuit Court.

On the 15th of July, 1862, Congress passed an act establishing a Circuit Court for a circuit which included the Southern District of Florida, and repealing the former act conferring upon the District Court Circuit Court jurisdiction.

In this state of the law, on the 4th of August, 1862, that is to say, nineteen days after this last statute was enacted, the District Court passed a decree condemning the schooner Lucy, and on the 15th, allowed an appeal to this court.

The record was, in the October following, filed in the Circuit Court for the district 'by reason of the act of Congress, approved July 15th, 1862, establishing a Circuit Court in said district.'

Afterward, to wit, May 1st, 1867, the cause was transferred to the Supreme Court of the United States by consent of all parties in interest, and the case so came up here from the Circuit Court. The record was filed December 24th, 1867.

The Attorney-General and Mr. Ashton, special counsel of the United States, citing The Alicia, argued in support of the motion to dismiss:

1. That the appeal allowed in August must have been so granted in ignorance that the act establishing a District Court with Circuit Court powers had been repealed in July; that the transfer into the Circuit Court in the absence of statutory authority, and the transfer by consent to this court was a nullity.

2. That independently of this, the cause must be dismissed because the record was not filed before the end of the term succeeding the allowance of the appeal, nor before the end of the term succeeding the passage of the act of June 30th, 1864.

Mr. Durant, contra, distinguishing the case from The Alicia, contended, that the act of filing the transcript of the record in the Circuit Court of Florida was a mere error of the clerk, which could prejudice no one, and gave that court no jurisdiction; that the agreement between the parties, that the appeal taken and allowed in this case be taken to the Supreme Court of the United States, operated as a waiver of the irregularity existing, in the fact that the appeal had not been filed in the Supreme Court of the United States during the December Term, 1862, and as a consent that it should be filed at the next term after the agreement, which was done; that an irregularity in the return of a writ of error or appeal might be cured by consent, whether implied from appearance or otherwise shown, and that good faith required that the agreement made by the United States below should be kept here, since no law forbade its observance in the present instance.

The CHIEF JUSTICE delivered the opinion of the court.

title: The Lucy


text: Talk:The Lucy

title: Talk:The Lucy


text:
The Lucy/Opinion of the Court

At the time when the District Court for the Southern District of Florida was established, the act of 1803 governed appeals from the District to the Circuit Courts, and from the Circuit Courts to this court. No appeal in admiralty could be taken directly from the District Court to this court, except when, as in the case of the Southern District of Florida, the District Court exercised the jurisdiction of the Circuit Court as well as that of the District Court.

If this state of the law had undergone no change at the date of the decree of condemnation in this case, the allowance of an appeal to this court would have been quite regular.

But the effect of the act of July, 1862, was to vest in the Circuit Court for that circuit the whole appellate jurisdiction exercised by other Circuit Courts in respect to decrees in admiralty. It left the original jurisdiction in admiralty of the District Court, untouched.

It was in virtue of this original jurisdiction that the District Court had cognizance of the case of the Lucy. The appellate jurisdiction of the case was vested by the act in the Circuit Court.

It follows that, when the decree was pronounced in August, no appeal could be taken to this court, but only to the Circuit Court, and that the allowance of an appeal to this court was a nullity.

This objections to the jurisdiction is decisive; but, if it were otherwise, the fact that no transcript of the record was filed at the next term, would be fatal to the appeal.

No consent of counsel can give jurisdiction. Appellate jurisdiction depends on the Constitution and the acts of Congress. When these do not confer it, courts of the United States cannot exercise it.

We cannot take cognizance of a case not brought before us in conformity with the law.

The case at bar, therefore, must be DISMISSED.

title: The Lucy/Opinion of the Court


text: Talk:The Lucy/Opinion of the Court

title: Talk:The Lucy/Opinion of the Court


text:
Mandelbaum v. The People

ERROR to the Supreme Court of the Territory of Nevada.

The suit was brought by the Territory against Mandelbaum and Klauber, in a District Court, to recover from them the amount of certain taxes, which the county assessor had assessed upon property alleged to be theirs, to wit: upon goods in a store in Carson City, of the assessed value of $70,000; upon twenty tons of hay, at $800; upon goods in store at Kinkead & Harrington's, at $6500; upon timber for a barn, at $600; and upon one hundred tons of hay in Mr. Ormsby's storehouse, at $4000, the property of the defendants-the whole amounting to $81,900. The different kinds of tax, nd the amount of the assessment were specified.

In an amended complaint, it was declared that the tax was assessed between the first Monday of August, 1862, and the last Saturday in October of the same year; that the property had not been assessed in the regular list of assessments; and that it was entered in the tax list of the county under the head of subsequent assessments.

The answer of the defendants set forth, that the property described in the complaint was fraudulently and wrongfully assessed, and was not subject to taxation for the year 1862, because, as they say, the hay so described was a part of a growing crop for the year, produced from their ranche in Douglas County; and was not cut or removed from this county until after the first Monday in August of that year; and long after they had been duly assessed for all their taxable property in this county, including said ranche, which was taxed at a valuation of between nine and ten thousand dollars, and taxes upon which had been fully paid.

The answer further set forth, that of the said extra amount of goods, some seven or eight thousand dollars in value constituted their stock of goods at Genoa, in Douglas County, and was included in the assessment and payment of taxes in that county, and had been brought and added to their stock in their store in Ormsby County; that the remainder of said extra amount of goods mentioned in the complaint was not the property of the defendants, nor was the same within the county of Ormsby until long after they were assessed and taxed, and the taxes paid, in said county; that said extra goods were purchased from the proceeds of their business houses in the counties of Ormsby and Douglas, the sale of their goods and other property, and proceeds of their business generally; all of which had been assessed in said counties, and the taxes paid for the year 1862, long before the making of the pretended assessment in the complaint; that the timbers and lumber for a barn were not the property of the defendants, until after the assessment and taxes paid for the year 1862; and were obtained in the course of their business after this assessment.

This answer was verified under oath.

The next step in the cause, as appeared from the record, was that, on the motion of the plaintiff, the court struck out so much of the answer as had no relation to the payment of the taxes on the seven or eight thousand dollars of property described in the complaint, and which was alleged in the answer to have been taxed in Douglas County. This, in effect, struck out the defence set up to all the property assessed and taxed as charged in the complaint, except the item above specified. The issue left was then tried by the court, which held that the defendants had proved payment of a tax on $5800 worth of property; and gave judgment in favor of the tax to the amount of $1522 and costs of suit. To all which the defendant's counsel excepted.

The court found the following facts: 'That the allegations in the complaint are true; also, that as to the property assessed, as set forth in the complaint, the defendants were assessed in Douglass County for the sum of $5800 on property in the year 1862, and paid taxes on the same, for which they are entitled to a credit.'

The case was then carried to the Supreme Court of the Territory, where the judgment was affirmed.

By the statutes of the Territory of 29th November, 1861, the regular or annual assessment of taxes is made between the first Monday of March and the first Monday of August in each year; and the tax list is to be completed on or before the last-named day. Then the assessor annexes his warrant to it, and delivers the same with a may of the tax to the clerk of the board of commissioners.

It is also provided in the same act that the assessor, at any time subsequent to the first Monday of August and prior to the last Saturday in October, may assess any property which shall not be on the regular list; and he shall enter such assessment in a separate portion of the tax list, under the head of 'subsequent assessments.'

Messrs. W. S.C.ox and N. Wilson, for the plaintiff in error:

The striking out of the principal part of defendant's answer was erroneous.

1. Because the proceeding was ex parte, without notice to the other side, and unwarranted by any principle of law.

2. And principally because the answer set forth a valid defence. The act of 1861 authorizes the assessor, after the first Monday of August, to assess property which shall not be on the regular list. This refers to property in existence and taxable, but omitted from the regular list from accident or other similar cause. It does not apply to property newly acquired, and newly brought into the county after the regular assessment has been made. Still less does it apply to property which is the product or proceeds of that already assessed and taxed; otherwise parties would be subject to double tax. Yet the answer in the case averred as to the property charged, that it was all the yield, product, or proceeds of property and business heretofore regularly assessed and paid for, and was also acquired, made, manufactured, or realized after the regular legal assessment of all the defendant's property was made, and the taxes paid on it. The act of striking out the answer was equivalent to a judgment on demurrer to the answer in favor of the plaintiffs, and was erroneous, if the defence was valid.

No opposing counsel.

Mr. Justice NELSON delivered the opinion of the court.

title: Mandelbaum v. The People


text: Talk:Mandelbaum v. The People

title: Talk:Mandelbaum v. The People


text:
Mandelbaum v. The People/Opinion of the Court

It will be seen by reference to the statutes of the Territory of the 29th November, 1861, that the assessor is only authorized to make subsequent assessments upon the property of a citizen or inhabitant, which was subject to taxation at a regular or annual assessment, and had escaped the tax from mistake, or otherwise, and which is a very common provision in every system of taxation. And, if this was the question presented to the court below, upon the pleadings or proofs, there could be no doubt as to the correctness of the decision. But the question presented by the answer was not one of this description, but of double taxation; for, if the facts were true as set forth, the property had been taxed either at the regular assessment, or had been purchased or procured by the defendants after this assessment; and, therefore, not the subject of a subsequent tax within the meaning of the statute. On this ground the answer presented a perfect defence to the action.

The court below, however, on motion of the plaintiff, struck out this defence as to all the property except one item of seven or eight thousand dollars in value, which stood in the answer in the same category with all the rest of the property. This singular mode of meeting a legal defence set up in the pleadings had not been explained by any counsel representing the plaintiff; and in the absence of such explanation, we can only apply to it the usual and customary principles governing pleadings in like cases, and hold that it was an error which entitled the party aggrieved to a reversal of the judgment.

If any authority was needed for so obvious a proposition, we refer to the case of Hozey v. Buchanan.

The court there say that it would be as novel as it would seem to be unjust to strike out of the answer, on motion of the plaintiff, that which constitutes a good defence, and on which the defendant may chiefly rely.

JUDGMENT REVERSED AND REMITTED TO COURT BELOW.


text: Talk:Mandelbaum v. The People/Opinion of the Court


text:
Gibson v. Chouteau (75 U.S. 314)

ON motion to dismiss a writ of error to the Supreme Court of Missouri. The case purported to be brought here, under the 25th section of the Judiciary Act, which gives this court jurisdiction to review judgments in the highest court of a State, where there has been drawn in question the validity of an authority exercised under the United States, and the decree is against such validity, or where there is drawn in question the construction of any statute of, or commission exercised under the United States, and the decree is against the title, right, or privilege, or exemption specially set up; OR, where there is drawn in question the validity of a statute of, or an authority exercised under any State on the ground of their being repugnant to the laws of the United States, and the decision is in favor of such their validity.

The record showed that the plaintiff below, who was also plaintiff here, filed his petition in the Land Court of St. Louis, to recover of the defendants a tract of sixty-four acres of land. The petitions stated that Mrs. Mary McRee was, prior to August 20th, 1862, invested with the title by the United States, and that on the day mentioned, she conveyed the same to him.

The defendant's answer denied the plaintiff's right to the possession, denied that he had the title, denied Mrs. McRee's title, set up the statute of limitations, and alleged, that the title acquired by the plaintiff was so acquired as agent of the defendants, and in fraud of their rights. To this, the plaintiff filed two or three replications, going into a minute history of the transaction in which the fraud was supposed to have originated, and denying it wholly.

On these pleadings, the case was tried by the court without a jury, and the issue was found for plaintiff, his damages assessed at six hundred dollars, and judgment rendered for that sum, and for the possession of the land. A bill of exceptions, which, in the record, made eighty printed pages, was signed, filled with surveys, deeds, decrees, and testimony of witnesses, some of which was evidently directed to the questions of fraud made in the pleadings. It also contained some ten or twelve prayers for instructions by the plaintiff, which were refused by the court, as rulings of law, which relate to the validity of plaintiff's title; also, an instruction given by the court to the effect, that the patent of the United States to Mrs. McRee invested her with the title which her deed transferred to the plaintiff, and that the patent having issued within the ten years next preceding the commencement of the suit, the statute of limitations could not be relied on as a bar.

On this record, the case was carried to the Supreme Court of the State, where it was 'affirmed in all things' on December 3d, 1866. There days after this, a motion for rehearing was filed. This was, in fact, an argument of counsel. It cited decisions and urged reasons to show, that the statute should be regarded as a bar; decisions and reasons which it alleged that the court had not sufficiently weighed. The motion for rehearing was granted on the 10th day of the same month, and the judgment of affirmance set aside, and the cause ordered to be docketed for a rehearing. This rehearing was had in March, 1867, and in April, the following judgment was entered:

'Now, again come the parties aforesaid, by their respective attorneys, and the court being now sufficiently advised of and concerning the premises, doth consider and adjudge that the judgment rendered herein by the said St. Louis Land Court be reversed, annulled, and for naught held and esteemed; that the respondent take nothing by his suit in this behalf, but that the appellants go thereof without day, and recover of the said respondents their costs and charges herein expended, and have execution therefor. Opinion filed.'

It is proper to state that, by the code of practice in the State courts of Missouri, an equitable defence may be set up in a common law action, there being no separate chancery jurisdiction in those courts.

The matter which, on this case, the plaintiff conceived to have been decided against him in the Supreme Court of Missouri, and which, as he assumed, gave this court jurisdiction, was, that the statute of limitations of Missouri ran against the title of the plaintiff, while the same was in the United States, and before it had been transferred by the patent of 1862 to Mrs. McRee. And the question which was before this court, on review for its consideration, was, whether it appeared from this record, either by express words or by necessary legal intendment, that the court did decide that proposition. If it did, then this court had jurisdiction under the already quoted 25th section of the Judiciary Act.

Messrs. McPherson and Gibson, for the plaintiff in error, contended that it did, sufficiently and to a reasonable intent, so appear; a matter made even more plain, as they argued, by reference to the opinion of the court and by the motion for rehearing.

Messrs. Glover and Hill, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Gibson v. Chouteau (75 U.S. 314)


text: Talk:Gibson v. Chouteau (75 U.S. 314)

title: Talk:Gibson v. Chouteau (75 U.S. 314)


text:
Gibson v. Chouteau (75 U.S. 314)/Opinion of the Court

The record presented to the Supreme Court questions the validity of Mrs. McRee's title, the transfer of her title to plaintiff, the trust asserted by which plaintiff's title enured to the benefit of defendants, and the statute of limitations. On all these the court below must have found for plaintiff, for such a finding was essential to his recovery. The first judgment of the Supreme Court affirming the judgment of the Land Court must also have found all these issues for the plaintiff.

We are asked now to hold that the second judgment of the Supreme Court, which reversed that of the Land Court, was founded on the question of limitation. If we look to the language used in the judgment of the court in setting aside its judgment of affirmance and granting a rehearing, or in the final judgment of reversal, we can see nothing to justify that inference.

This court has decided, in the case of Rector v. Ashley, following Williams v. Norris, that the opinion of the court cannot be resorted to for the purpose of showing that a question of Federal cognizance was decided by the State court. In the present case it is said that the application for a rehearing was based exclusively on the question of the statute of limitation. That which is here called a motion for a rehearing is merely an argument of counsel setting forth numerous decisions of the courts, and many reasons of counsel why the statute should be held to be a bar; and it insists that this question had not received sufficient attention at the hands of the court. It is not easy to see how this argument can be regarded as a part of the record of the case. It can have no better claim to be so regarded than the opinion of the court, which accompanies the record.

If, however, it could be treated as part of the record, it affords no conclusive evidence that the rehearing was granted on that ground.

But if we could infer that the rehearing was granted because the court was of opinion that it had not well considered that question, it is to be remembered that the reargument took place four months afterwards, that there is nothing to show what might then have been presented by counsel on either side, or what might have been considered by the court, for the case was fully opened, by setting aside the former judgment, to every consideration which could rightfully influence the decision. It is hardly a reasonable inference, under these circumstances, that the court did decide the case on the question of the statute of limitation, and certainly it does not appear that the case was necessarily decided on that question, or that the proposition was essential to the judgment.

It is our opinion, therefore, that under the repeated decisions of this court, this record presents no case of which we have jurisdiction. The writ of error is therefore

DISMISSED.


text: Talk:Gibson v. Chouteau (75 U.S. 314)/Opinion of the Court


text:
The Lady Franklin

APPEAL from the Circuit Court for the Northern District of Illinois, in which court King & Co. had libelled the propeller Lady Franklin, for non-delivery of certain flour.

The libel alleged, that the libellants, in the month of November, 1863, by their agent, Edward Sanderson, delivered at Milwaukee, to the steamer Lady Franklin, 340 barrels of flour, to be transported to Port Sarnia, on the St. Clair River, for which shipment they received a bill of lading, but that 290 barrels of the flour were never delivered. As a consequence, they claim a maritime lien on the vessel for the value of the flour.

The answer denied that the flour in controversy was ever delivered to the master, or shipped on board of the steamer.

The case was this:

There was, in 1863, a line of steamers engaged in the lake service from Milwaukee to Port Sarnia, and running in connection with the Grand Trunk Railway. The Lady Franklin was one of them. But each boat had separate owners, and there was no joint undertaking that any one of the boats should be responsible for the breach of a contract or misconduct of another. This line of steamers had a particular warehouse in Milwaukee, at which they stopped, and which was used to receive and store freight for them; one Courtenay was the agent of this warehouse, and he also acted as agent for the boats in engaging and shipping freight. The cargo of flour in dispute, which was owned by the libellants, and of which they were the real shippers, was received by Courtenay for them, through Sanderson, their agent, with an agreement to ship it for them on one of this line of steamers; and, in point of fact, 50 barrels were shipped on the Antelope, one of the line, and received by the libellants. The remaining 290 barrels, for which the lien is claimed on the Franklin, were also shipped on the 7th of November by the Water Witch, another boat in the same line, and consigned to the libellants, but were not received by them, the boat having foundered at sea. Notwithstanding these shipments, a clerk in the warehouse, under Courtenay, in the absence of Courtenay, in ignorance that the flour had been previously shipped on the Antelope and Water Witch, but supposing it still in the warehouse for shipment, by mistake gave to Sanderson, the agent of the libellants, a bill of lading.

Attaching the bill to a draft upon the libellants, for the value of the flour, Sanderson soon afterwards drew on them for this value, and they paid the draft. The flour never arriving, they libelled the Lady Franklin,

Mr. Robert Rae, for the appellants: of the district, attaching this bill of lading to their libel.

The District Court dismissed the libel, and the Circuit Court having affirmed the decree, the case was now here for review.

Mr. Robert Raw, for the appellants:

1. The signing of the bills of lading by the authorized agent of the vessel, after delivery of the property into his possession and control, binds the vessel, and has the same force and effect as if signed by the master.

2. The owner of the vessel is estopped as against a consignee of the bill of lading, when either has taken it for a valuable consideration upon the faith of the acknowledgments which it contains, to deny the truth of the statements to which he has given credit, by the signature of his agent, so far as these statements relate to matters which are, or ought to be, within his knowledge.

In this case, the consignee advanced on the faith of the bill of lading.

3. Parol testimony cannot be received in courts of admiralty, any more than in courts of law, to contradict the terms of a bill of lading. Nor can courts of admiralty exercise chancery powers to reform maritime contracts.

4. When a written contract is attacked on the grounds of containing some material mistake, the evidence of mistake must be very strong. Lord Hardwicke says, that in such a case, he would require 'the strongest proof possible,' which words Lord Eldon observes, 'leave a weighty caution to future judges.'

And in Shelburne v. Inchiquin, Lord Thurlow demanded 'strong irrefragable evidence.'

Mr. Goodwin, contra:

1. A maritime contract of affreightment, which shall bind the vessel to the merchandise, for the due performance of the contract, commences only with the delivery of the goods on board, or on a lighter or barge, belonging to and controlled by the boat, or into the custody of some officer of the boat, to be carried on board. No such delivery of the flour is shown in this case. It never was received on board the Lady Franklin, or into the custody of any officer or agent of the boat, to be carried on board. Courtenay was the warehouseman, and received the flour in store as such. He held it as such warehouseman, not as agent for any, or either, or all of the different boats running in that line, but like any forwarding merchant, pro hac vice, the agent of the shipper to forward the merchandise by some of the boats of that line. In fact, he had forwarded this flour by the Antelope and Water Witch.

2. It is now well settled, both in English and American law, that so far as the fact of the receipt of the goods, or the quantity received, is concerned, the bill of lading is in the nature of a receipt, not conclusive between the shipowner and shipper, but open to explanation and evidence of the real facts. A false bill of lading, whether by mistake or fraud, is beyond the power of the master or other agent of the shipowner, and cannot be made to bind the vessel, especially under the circumstances of this case.

3. There is, really, no question of an innocent purchase for value in this case.

Mr. Justice DAVIS delivered the opinion of the court.

title: The Lady Franklin


text: Talk:The Lady Franklin

title: Talk:The Lady Franklin


text:
The Lady Franklin/Opinion of the Court

The attempt made in the prosecution of this libel, to charge this vessel for the non-delivery of a cargo, which she never received, and, therefore, could not deliver, because of a false bill of lading, cannot be successful, and we are somewhat surprised that the point is pressed here.

Courtenay was a warehouseman in Milwaukee, and, although he acted as agent for the different steamers of the Grand Trunk line, he did not receive the flour to be sent by one particular steamer in preference to another. His engagement had this meaning, and nothing more: to forward the flour with all practicable expedition, by the first suitable steamer of the line which arrived in port that would carry it. Having actually shipped it in good condition in advance of the arrival of the Franklin in port, by seaworthy steamers, against which nothing is alleged, he discharged his obligations to the libellants. It would be strange, indeed, if the owners of the Franklin were made to suffer, because the common agent of all the boats had, through inadvertence, given a receipt for merchandise not on the boat, or in the warehouse even, but which was then on board other boats, on its way to its destination. The case is not embarassed by any question of a bon a fide purchase on the strength of the bill of lading, for the libellants themselves were the real shippers. Such is the claim of the libel, and it is supported by the evidence, for Sanderson swears the flour belonged to the libellants, on its delivery at the warehouse. In so far as a bill of lading is a contract, it cannot be explained by parol; but if a contract, it is also a receipt, and in that regard, it may be explained, especially when it is used as the foundation of a suit between the original parties to it-the shippers of the merechandise, and the owner of the vessel.

The principle is elementary, and needs the citation of no authority to sustain it.

In this case the bill of lading acknowledges the receipt of so much flour, and is prim a facie evidence of the fact. It is, however, not conclusive on the point, but may be contradicted by oral testimony.

The doctrine that the obligation between ship and cargo is mutual and reciprocal, and does not attach until the cargo is on board, or in the custody of the master, has been so often discussed and so long settled, that it would be useless labor to restate it, or the principles which lie at its foundation. The case of the Schooner Freeman v. Buckingham, decided by this court, is decisive of this case. It is true the bill of lading there was obtained fraudulently, while here it was given by mistake; but the principle is the same, and the court held in that case that there could be no lien, notwithstanding the bill of lading.

The court say, 'There was no cargo to which the ship could be bound, and there was no contract for the performance of which the ship could stand as security.'

JUDGMENT AFFIRMED.

title: The Lady Franklin/Opinion of the Court


text: Talk:The Lady Franklin/Opinion of the Court


text: A Dictionary of Artists of the English School/Note


text:
United States v. Gilmore (75 U.S. 330)

THIS was an appeal from the Court of Claims, in which court a suit was instituted by Gilmore, an ex-colonel of the army, for a sum alleged to be due him as allowance for servants' pay, beyond the sum actually allowed him for that purpose by the Comptroller of the Treasury, in settlement of his accounts; Gilmore claiming the same sum ($16) per month for such pay, as was allowed by act of Congress of June 20th, 1864, to private soldiers, and the Comptroller of the Treasury considering that under acts of Congress, regulating the matter, he was not entitled to so large a sum. Judgment was given in favor of Gilmore by the Court of Claims, and the United States appealed.

The sum in controversy, in the particular case, was insignificant, but the principle involved extended to numerous claims and large amounts.

Mr. Chipman, for the appellant; Mr. Dickey, Assistant Attorney-General, contra.

The CHIEF JUSTICE delivered the opinion of the court.

title: United States v. Gilmore (75 U.S. 330)


text: Talk:United States v. Gilmore (75 U.S. 330)


text:
United States v. Gilmore (75 U.S. 330)/Opinion of the Court

It was for many years the practice in the army to detail enlisted men as personal servants of officers, and the practice had the sanction of law.

In 1812, with a view undoubtedly to the discouragement of this practice, it was provided by the act of July 6th, that 'officers who shall not take waiters from the line of the army shall receive the pay, clothing, and subsistence allowed to a private soldier, for as many waiters as they may actually keep, not exceeding the number allowed by existing regulations.'

In 1816, the practice was absolutely prohibited except to company officers, and it was again provided, by the act of April 24th, almost in the terms of the act of 1812, that 'all officers be allowed for each private servant actually kept in service, not exceeding the number authorized by existing regulations, the pay, rations, and clothing of a private soldier, or money in lieu thereof, on a certificate setting forth the name and description of the servant in the pay account.'

At the time of the passage of the last act, the pay of a private was five dollars a month, with rations and clothing of certain money value in addition. The effect of the act was precisely the same as if the money value of the whole had been ascertained, and the amount had been inserted as the allowance or emolument to be paid to the officer in addition to his own regular pay.

There is nothing in the act which expresses any intention on the part of Congress that, whenever the pay of the private should be thereafter increased, the emolument of the officer should be proportionably augmented, without further legislation. But this construction was given to the act by the accounting officers, and the emolument of officers were thus indirectly increased from time to time until 1861. Whenever the pay, clothing, and rations of private soldiers were advanced in amount or value, the emoluments of officers were increased proportionably, not by legislation to that effect, but by departmental construction.

In 1854, by the act of August 4th, the pay of privates was increased to eleven dollars a month, and the allowance of officers for servants was also increased in like manner.

At length, when, in 1861, by the act of August 3d, the pay of privates was augmented to thirteen dollars a month, and the army ration was increased, and the emoluments of the officers were also augmented by the construction referred to, the subject attracted the attention of Congress, and by the act of July 17th, 1862, it was provided that 'the first section of the act, approved August 6th, 1861, entitled 'An act to increase the pay of privates in the regular army and in the volunteers in the service of the United States,' shall not be so construed, after the passage of this act, as to increase the emoluments of the commissioned officers of the army.'

This act virtually gave the legislative sanction to the construction which had heretofore prevailed at the departments, in respect to the past acts; but virtually, also, prohibited its future application. It expressly forbid its application to the increase of pay provided for by the act of August, 1861; the departmental officers conformed their action to its directions, and thenceforth limited the emoluments of officers in respect to servants' pay to the allowances made under the act of 1854.

In 1864, another act was passed on the 20th of June, by which the pay of privates was still further increased to sixteen dollars a month, without any mention of officers' emoluments; and it is under this act that the claim under consideration is made. It is not denied that the action of the accounting officers, under the act of 1862, is correct, but it is insisted that the act of 1864 must be construed as were the acts of 1861 and the former acts increasing pay, until the prohibitory act of 1862.

But it by no means follows, from the silence of the act of 1864, in respect to the emoluments of officers, that the old construction must be applied to it. The contrary inference, we think, is better warranted.

We have already said that the correctness of the original interpretation of the earlier acts increasing pay was at least doubtful. Constructive allowances are not entitled to favor. And it is certain, though the allowances in question, so far as made prior to the act of July, 1862, were confirmed by that act, that its prohibition of that construction in future, as applied to the act of 1861, must be taken, at least, as a legislative disapproval of the construction itself. It cannot, then, be assumed, that when the act of 1864 was passed, Congress intended that this disapproved construction should be applied to it.

We conclude, on the contrary, that the indirect effect, claimed for the act of 1864, of increasing the emoluments of officers, was not contemplated by the legislature, and cannot properly be given to it.

The construction contended for was not given to that act by the accounting officers, and we cannot say that, in rejecting it, these officers committed any error.

We agree with the counsel for the appellee that no effect can be given in this case to the act of March 3d, 1865, which declares that 'the measure of allowance for pay for an offocer's servant is the pay of a private soldier, as fixed by law at the time.' In prior acts, this allowance had extended to the pay, clothing, and subsistence of a private. The intention of this act seems to be that the allowance shall be limited to the pay. But whatever the intention, the act can have no retrospective operation.

JUDGMENT REVERSED, and the cause remanded for further proceedings.

IN CONFORMITY WITH THIS OPINION.


text: Talk:United States v. Gilmore (75 U.S. 330)/Opinion of the Court


text:
Wood-Paper Company v. Heft

ON motion to dismiss an appeal from the Circuit Court for the Eastern District of Pennsylvania. The case was thus:

In August, 1865, the American Wood-paper Company filed a bill in the court below to enjoin Heft, Dixon, and other defendants, against infringing certain patents owned by the company for improvements in paper-making; these patents, including one to Watt & Burgess, granted on the 2d July, 1854, the other to M. A. Miller, on the 26th May, 1857.

The answer of the defendants set up, among other defences: 1st. The want of novelty; and, 2d, that they manufactured paper under inventions and patents of Dixon, one of the defendants. Proofs were taken on both sides, and, after the hearing of counsel on the 22d November, 1867, the bill was dismissed; and the case was subsequently brought here by appeal.

Pending this appeal, one Meach asked leave to intervene by consel, upon an allegation that, since the decree below, the case had been settled, and that it was now carried on without the appellees having any further interest in the defence, and for the purpose of obtaining the decree of this court in favor of the complainants to influence suits pending in the circuits in their favor and against strangers to this suit, and in which the same questions are involved; and that the intervenor was a defendant in one of these suits. The application of Meach being allowed, a commission issued to take proofs in the matter, and these being before the court, the motion to dismiss came on to be heard. It appeared, as this court assumed, from the proofs under the commission, that at the time when the original bill was filed, to wit, in August, 1865, the Dixon patents, which were set up as one of the defences to the suit, were owned, twothirds by one Harding and one-third by Dixon, the inventor; the two-thirds having been conveyed in December, 1864, the co-defendants of Dixon having no interest therein, except working under them in the manufacture of paper. It further appeared that in the autumn of 1868, about one year after the decree dismissing the bill, Harding and Dixon sold and transferred all their interest in the Dixon patents to the complainants, and received for the same eighteen hundred shares of the stock of their company at par value, which was $100 per share, nominally $180,000, and this for one-half the interest in the patents; for the other half the complainants confirmed the licenses that had been granted under the Dixon patents.

This was the account of the sale given by Dixon, who was examined as a witness under the commission. One Hay, the general agent of the complainants, testified that the purchase was made with Harding, and that stock to the amount of two thousand shares was given, and that two certificates with blank vouchers of attorney were made out, and delivered to Harding, one for eighteen hundred, and the other for two hundred shares. Dixon stated that Harding transacted the business with the complainants for him, and with his concurrence.

The evidence, it should be added, tended to show that Dixon had agreed to keep Heft and the other defendants harmless.

Mr. B. F. Butler, in support of the motion, argued that on the case presented the appellant had become the sole party in interest; that the controversy was thus a fictitious one; and on the authority of both English and American precedents ought to be dismissed.

Mr. Jenkes, contra, contended that the evidence rightly viewed did not present such a case as opposite counsel assumed from it; that a fictitious case was not to be supposed, but, on the contrary, required clear proof; and that, even if now late in the controversy, the appellant had, without the knowledge of counsel, become the dominus litis on both sides, still that the question of damages for infringement on the bill remained to be adjusted, and that this required a settlement of the merits as they originally stood.

Mr. Justice NELSON delivered the opinion of the court.

title: Wood-Paper Company v. Heft


text: Talk:Wood-Paper Company v. Heft

title: Talk:Wood-Paper Company v. Heft


text:
Wood-Paper Company v. Heft/Opinion of the Court

The case, as it now stands, is this: The complainants having purchased in the partents under which the suit was defended, own both sides of the subject-matter of this litigation; and, further, the owners of the Dixon patents having taken, in consideration for the sale, stock in the complainants' company, their interest has been transferred to the side of the complainants.

It is said, notwithstanding all these negotiations, exchanges, and transfers, the damages for the alleged infringement in the bill have not been compromised. But, before that question can be reached, as the bill was dismissed below, this court must hear and determine the question on the merits, whether or not the defences set up in the answer are sustained upon the proofs. If the court should determine they were not, then the question of damages would arise; if otherwise, not. Now, upon this question of merits, the complainants own both sides of the litigation, and control them; and, in the language of the Chief Justice, in the case of Lord v. Veazie, #fn-s-s 'the plaintiff and defendant have the same interest, and that interest adverse, and in conflict with the interest of third persons, whose rights would be seriously affected, if the question of law was dicided in the manner that both parties to this suit desire it to be.' And, for this reason, the case should not be heard by this court.

If anything further was necessary to show that the litigation is no longer a real one, even if the suit should proceed, and the question of damages be reached, there would be the same interest on both sides, Dixon, one of the defendants, since the sale of his patents, having a large interest on the side of the complainants, and, as defendant, would be subject to his payment of part, or the whole amount, of the damages recovered. Indeed, the weight of the proofs is, that he has bound himself to keep his co-defendants harmless.

The motion to dismiss the case, for the reasons above given, must be

GRANTED.


text: Talk:Wood-Paper Company v. Heft/Opinion of the Court


text:
Alviso v. United States (75 U.S. 337)

THIS was an appeal from a decree of the District Court of California, approving a survey of a confirmed Mexican land claim. There were two grants issued by the Mexican government to the claimant.

The original grant, issued in September, 1835, described the land ceded as known by the name of Milpitas, and as being one league in length, from north to south, and oneself a league in width, from east to west, and being in extent equal to half a square league, as shown by the accompanying map. The second grant, issued in October following, added a half league to the original quantity on the west, so as to make the entire tract ceded a square league. The second of these title-papers, merely adding to the quantity originally granted, the two are spoken of in the opinion, as constituting one concession or grant.

Neither of the title-papers gave any boundaries of the land, or referred to any documents by which the boundaries could be ascertained, except the map mentioned. This map was a rude and imperfect sketch, indicating only the general locality of the land, without fixing, with any precision, its exterior limits.

The decree of the District Court upon the claim of the grantee did not give the boundaries of the claim. It adjudged the claim to be valid, to the extent and quantity of one square league, provided that quantity be contained 'within the boundaries called for in the grants,' and the map to which they referred; and if there were less than that quantity, then the confirmation was to be restricted accordingly. But no boundaries were, in fact, stated in the grants. The decree also declared the tract confirmed to be the land 'of which the possession was proved to have been long enjoyed' by the claimant. The proof here mentioned, only showed that the claimant had been, for many years, in possession of some of the land granted to him, without mentioning any boundaries of the land, or indicating that any were established.

Three surveys of the claim were made by different surveyors, and submitted to the District Court for examination and approval; and in relation to each of them, testimony was taken and counsel were heard, either upon the intervention of the United States, or of the claimant, or of adjoining proprietors.

The first two surveys were set aside, and the questions presented arose upon the third survey. One Higuera owned a tract on the north, and it appeared, from the evidence, that the boundary line between him and Alviso, at one time in dispute, was settled and fixed, under the Mexican government. On the west, one White owned a tract, as confirmee of a grant known as Rincon de los Esteros, and a creek, known as Penetencia Creek, was the boundary between him and Alviso. The questions on this case related to the southern boundary of the tract of the claimant, and upon this the evidence was conflicting and irreconcilable. One Berrysea claimed the land on the south; and he intervened in the proceedings upon the survey in the District Court, by leave of the court. In his petition for permission to intervene, he alleged that he was the owner of the rancho on the south of the claim of the claimant, as surveyed under title derived from the Mexican government; that the creek Milpitas was the boundary between his rancho and the rancho confirmed to the claimant, and that the survey of the claimant's claim included about fifteen or eighteen hundred acres of land belonging to him. There was no other evidence in the record that Berrysea had any grant.

The appeal was by the claimant.

Mr. Bradley, for the appellant; Mr. Wills, contra.

Mr. Justice FIELD, after stating the case, delivered the opinion of the court, as follows:

title: Alviso v. United States (75 U.S. 337)


text: Talk:Alviso v. United States (75 U.S. 337)


text:
Alviso v. United States (75 U.S. 337)/Opinion of the Court

In the case of Higueras v. United States, this court speaks of concessions or grants of public lands, made by Mexican governors, as being of three kinds: 1st. Grants by specific boundaries, where the donee was entitled to the entire tract; 2d. Grants by quantity, as of one or more leagues of land situates in a larger tract, described by out-boundaries, where the donee was entitled only to the quantity specified; and 3d. Grants of a certain place or rancho by some particular name, either with or without specific boundaries, where the donee was entitled to the tract, according to the boundaries, if given, and if not given, according to the limits of the tract, as shown by the proofs of settlement and possession.

The grant in the case before us, partakes of the two latter classes. It is a grant by quantity, and the claimant is entitled to the amount specified, if that amount can be obtained without encroachment upon the prior rights of adjoining proprietors. It is also a grant of a certain place by name, and as the boundaries are not given, its extent and limits must be shown by the settlement and possession of the grantee.

The correctness of the ruling of the court in setting asside the first survey is not questioned; and the appellant himself united with adjoining proprietors in excepting to the second survey. The testimony taken established, with sufficient distinctness, the northern and western boundaries, as fixed by the third and approved survey. It showed that the northern boundary, between Alviso and Higueras-at one time, a matter of dispute between them-was settled and fixed under the Mexican government, and that the Penetencia Creek was the dividing line on the west, between Alviso and White, the confirmee of the grant of Rincon de los Esteros.

But as to the southern boundary-the boundary between Alviso and Berrysea-the testimony was conflicting and unsatisfactory. Indeed, it is impossible to reconcile the different statements of the witnesses as to the extent of the occupation of either party, south of Milpitas Creek. Some of them testified that the possession of Alviso extended far south of it, whilst others asserted that the creek itself was recognized, both by him and Berrysea, as the boundary between them. The contradictions are so flat that the counsel of the appellant is forced to state that the mind is left in uncertainty whether there was any exclusive occupation of the land by either of the parties. Under these circumstances, there being great doubt as to which side the weight of evidence inclines, we should not be justified, under any rules governing our action upon such cases, in interfering with the decision of the District Court.

The counsel of the appellant objects that there is no evidence in the record that Berrysea had any grant, or if he had any, that it was ever confirmed, and insists that no weight should therefore be given to his possession against the claim of the appellant. This objection cannot be made for the first time in this court. The right of Berrysea to contest the survey originally made, and the nature of his interest, were determined by the District Court on his application to intervene. The act of June 14th, 1860, provides for the return into court of surveys for examination and adjudication upon the application of parties who, in the judgment of the District Court or judge, have such interest in the survey and location as to render it proper for them to intervene for its protection. It enacts that where objections are advanced by the United States, the application shall be made by the district attorney, and be 'founded on sufficient affidavits,' and that when the application is made by 'other parties claiming to be interested in, or that their rights are affected' by the survey and location, there shall be a preliminary examination into the fact and nature of such alleged interest. 'The court or judge in vacation,' says the statute, 'shall proceed summarily, on affidavits or otherwise, to inquire into the fact of such interest, and shall, in its discretion, determine whether the applicant has such an interest therein as, under the circumstances of the case, to make it proper that he should be heard in opposition to the survey, and shall grant or refuse the order to return the survey and location as shall be just.' When the interest of the applicant is shown and the order is made, those who claim under the United States, whether by 'pre-emption settlement or other right or title,' must intervene in the name of the United States, and be represented by the district attorney and counsel employed by them acting with him. All other parties not claiming under the United States and allowed to intervene, must necessarily claim under cessions more or less perfect of the former Mexican government. In the case at bar, when the original survey was made, Berrysea applied for and obtained an order for its return into court. In his petition he set forth that he was the owner of the rancho south of the claim surveyed, under title derived from the Mexican government, that the creek Milpitas was the boundary between his rancho and the rancho confirmed, and that the survey included about fifteen or eighteen hundred acres of land belonging to him. The order of the court made thereon necessarily involved under the statute a determination that he possessed such interest, derived from the former government, as to render it proper that he should be heard in opposition to the survey. His right to contest the survey, founded upon the interest alleged, was then settled. The claimant might, perhaps, have subsequently insisted that the intervenor had no such interest as to give him a right to object to the survey, and have asked on that ground for a revocation of the order. But not having taken any such course, he cannot now object to the position of the intervenor as a contestant. As contestant, the intervenor could, of course, show his own occupation of the land in dispute to meet and overthrow the pretensions of the claimant founded upon his asserted possession of the premises.

As to the eastern boundary of the approved survey, we are not entirely satisfied that it is correct. There is much force in the position that this boundary should run along the base of the hills, and not embrace any portion of their sides. But the United States, who might have interposed an objection of this character, have not appealed from the decree approving the survey in its present form. They cannot, therefore, raise any objection to its correctness now. #fn-s-s

Upon the whole case, we are satisfied that the survey approved, is as favorable to the appellant as any which the evidence would justify. The decree sustaining that survey must therefore be

AFFIRMED.


text: Talk:Alviso v. United States (75 U.S. 337)/Opinion of the Court


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Express Company v. Kountze Brothers

ERROR to the Circuit Court for the District of Nebraska. The case, which involved two distinct subjects, one of jurisdiction and the other of merits, was thus:

I. As to the matter of jurisdiction. This again involved two different points.

An act of 1847 provided, that in all cases of Federal character and jurisdiction commenced in the Superior Courts of the Territory of Florida, and the Court of Appeals of that Territory, after the 3d of March, 1845, 'in which judgments or decrees were rendered, or which are claimed to have been since pending there, in the records and proceedings thereof, and the judgment and decrees therein, are hereby transferred to the District Court of the United States for the District of Florida.' The provisions of the act were made at the time applicable to cases pending in the then new State of Michigan, and by an act of 1848, were afterwards extended to courts of the then new State of Iowa. Neither Florida, Michigan, nor Iowa were, at the time of becoming States, attached to any judicial circuit of the United States.

This last act, the act of 1848, declares that the provisions of the act of 1847 shall apply to all cases which may be pending in the Supreme, or other Superior Court of any Territory of the United States which may be admitted as a State, at the time of its admission. With these acts in force, Kountze Brothers brought suit in a District Court of the Territory of Nebraska against the United States Express Company. The declaration described the plaintiffs as 'an association of persons not incorporated, formed for the purpose of carrying on the banking business at Omaha, Nebraska, and who were, at the time the cause of action arose, and still were engaged in said business at Omaha,' and described the defendants as 'a foreign corporation formed under and created by the laws of the State of New York.'

The answer and a replication being filed prior to the 3d of July, 1867, the proceedings while thus in fieri, were on that day Nebraska having now become a State of the Union-brought and filed by the plaintiffs in the Circuit Court of the United States for the District of Nebraska.

Nebraska, as a Territory, was, at the time of her admission to the Union, attached to the eighth judicial circuit of the United States.

II. As to the merits. The suit was brought to recover from the Express Company, as common carriers, the value of certain gold dust which they had undertaken to forward from Omaha to Philadelphia.

The dust had been delivered to the company, for the transportation just mentioned, on the 29th of September, 1864, and was one of regular series of consignments, running through a term of more than eighteen months. The receipt given for it was the ordinary receipt of the company. It set forth, that it had been expressly agreed, that the company should not be liable 'for any loss or damage by fire, the acts of God, or the enemies of the government, mobs, riots, insurrections, or pirates, or from any of the dangers incident to a time of war.'

There were two routes used by the company to convey their property. One was across the State of Iowa, and the other to St. Joseph, Missouri, and thence across that State by the Hannibal Railroad. The latter route was the most expeditious, but the former was the safest, as the rebellion was in progress at this time, and Missouri, although adhering to the Union, was infested with predatory rebels, as well as with more regular bodies of the Confederate troops.

The gold dust was conveyed by the St. Joseph route, and the company was robbed of it, by a band of armed men, while it was in transit across the State.

On the trial, the plaintiffs testified that they gave notice to the agent of the company not to send their gold dust by the St. Joseph route; though there was testimony, also, that tended to prove that this notice was not until after the robbery of this particular gold.

No exception was taken, on the trial, to the admission or rejection of evidence, and the only subject for review here was the charge given by the court to the jury. The court instructed the jury only on a single point, that of negligence. The jury were told substantially that, although the contract was legally sufficient to restrict the liability of the defendant as a common carrier, yet, if the defendant was guilty of actual negligence, it was responsible. and that it was chargeable with negligence, unless it exercised the care and prudence of a prudent man in his own affairs. The Express Company requested the court to charge the jury that it was not liable, unless grossly negligent.

The jury having found for the plaintiffs, and the judgment having gone accordingly, the present writ of error was taken.

The case being thus, here the grounds asserted for reversal were:

I. As to jurisdiction.

1. Because there was no statutory authority for removal into the Circuit Court.

2. Because there was no such averments of citizenship as to bring the case within the provision of the Constitution and Judiciary Act of 1789. [This second point, however, not being taken in the court below.]

II. Because the court had not charged that the company was not liable, unless grossly negligent.

Mr. Ashton, for the Express Company, plaintiff in error:

I. As to the jurisdiction. There was no authority for the transfer of this case into the Circuit Court of the United States for the District of Nebraska. The case, if it fell within the provision at all, went to the District Court, and not to the Circuit Court. The act of 1847 is explicit that the cases in the enumerated courts of the Territory of Florida should be transferred to the District Court of the United States; and, if the act of February, 1848, authorized the transfer of this case into any Federal court, it required its transfer to the District Court of Nebraska. There would seem to be no answer to this suggestion whatever.

Again: It is settled that where a plaintiff asserts a right to prosecute a suit in the Circuit Court of the United States, on the ground of the citizenship of the parties, the pleadings must distinctly aver and show that they are citizens of different States, and that one of them in a citizen of the State where the suit is brought; and, if he omit to do this, and a judgment is rendered in his favor, by the Circuit Court, this court, on a writ of error or appeal, will reverse the judgment for want of jurisdiction in the court below.

This doctrine is equally applicable to cases instituted in State courts, which may be the subjects of removal into the Circuit Court, on the ground of the citizenship of the parties.

The declaration describes the plaintiffs as 'an association of persons carrying on the banking business in Omaha, Nebraska.' 'This court does not hold,' says Curtis, J., 'that either a voluntary association of persons, or an association into a body politic, created by law, is a citizen of a State within the meaning of the Constitution.' Moreover, where the jurisdiction of the Circuit Court depends on the character of the parties, and such party, either plaintiff or defendant, consists of a number of individuals, each one must be competent to sue in the courts of the United States, or jurisdiction cannot be entertained.

The averments of the petition referred to are not equivalent to an averment that the plaintiffs are citizens of Nebraska. They may have been aliens, or citizens of New York, or some other State, doing business at Omaha. No legal inference that they were citizens of Nebraska can be drawn from any of the facts averred.

The description of the Express Company as a 'foreign corporation, formed under and created by the laws of the State of New York,' is not a sufficient or proper description of the defendants to bring them within the jurisdiction of the Circuit Court.

The petition fails to aver that the corporation defendant has its principal place of business in New York, and is therefore defective, under the opinion of Chief Justice Taney in the last case in Covington Drawbridge Co. v. Shepherd.

title: Express Company v. Kountze Brothers


text: Talk:Express Company v. Kountze Brothers