text:
Clarke v. Boorman's Executors

APPEAL from the Circuit Court for the Southern District of New York; the case being thus:

James R. Smith, a merchant of New York, died in June, 1817, leaving a will, which was duly proved on the 11th day of that month. By this will he appointed as his executors Hannah Smith, his widow, Andrew Foster, John Thomson, James Boorman, and Matthew St. Clair Clarke. All of them qualified as trustees except Foster, but before any of the transactions under the will which were the subject of the present suit took place, the acting executors were reduced to Boorman and Clarke. The testator authorized his executors to sell the whole or any part of his real estate in their discretion, and by a codicil he directed the disposition of that part of his estate destined for his children. Of these there were four, namely, Jeanet (then married to John X. Clarke), Hannah (married to Matthew St. Clair Clarke, one of the executors), Elizabeth (a minor, unmarried), and James (a minor, unmarried).

After providing for the payment of specific bequests, education and care of the minors, and declaring that the residue of his estate should be equally divided among these four children, share and share alike, and directing that his son James should not come into the full possession of his portion until he arrived at the age of twenty-five years, this paragraph of the twelfth clause of the codicil succeeds, which was the foundation of the present suit. It was verbatim, as follows:

'I further direct that my daughters Jeanet, Hannah, and Elizabeth, if she should arrive at the age of twenty-one years, shall have the privilege of expending and appropriating, by and with the consent of the executors, one-third part of their portion of my estate herein devised to them, in such manner as they may think proper, and over which, when so appropriated, they shall have absolute control; and the remaining two-thirds of the portions or shares of my daughters shall be held separate and distinct and not liable to the control, debts, or engagements of either of their husbands which they now have or may hereafter have, as well those who are married as she who may hereafter marry [giving, however, to the husbands of either or all of them in case the wife shall die first, either with or without issue, the income of said reserved part of my estate, as long as he shall live, arising from his wife's portion, and after his death then to the child or children of my said daughter so dying], and if either of my daughters shall die without lawful issue, or having issue which shall not attain the age of twenty-one years and [sic] without issue, then the share or portion of my said daughter after the death of her husband, or if there be no husband living at her death, shall go and be divided among my other children, share and share alike, and to their issue, in case of the death of either of them, share and share alike, such issue to take the portion that would have belonged to his, her, or their father or mother.'

The controversy concerned the interest here devised to Jeanet Clarke. At the time of the making of this codicil, and of the death of the testator, she had a son, George, born in 1815, who died in October, 1855. His father, John X. Clarke, died in 1824, and his mother, Jeanet, died in 1847. The complainants in this suit were the children of the said George, the grandchildren of Jeanet Clarke, mentioned in the codicil, and the great-grandchildren of the testator. They alleged that by the true construction of this codicil, as applied to the foregoing facts, Jeanet Clarke took but a life estate in the real property, or a life interest in the proceeds of sale so far as it might have been sold, and that their father, George, son of Jeanet, had a vested remainder or interest in the property so devised to Jeanet. They charged that the two executors, Boorman and Clarke, in violation of their duties as executors and trustees, and in fraud of the rights of said George, sold the real estate which was the chief part of the testator's property left to the operation of this codicil, and contrived that it should come to the hands of said Jeanet Clarke, divested of his interest or title in it; that settlements and arrangements were made with her by reason of undue influence of Matthew St. Clair Clarke, one of said executors, with whom she resided, by which the executors pretended to have been discharged from the obligations of their trust, and that said Clarke, in effect, reaped all the benefit of such arrangements at the expense of their ancestor, the said George.

The real estate having passed by these conveyances of the executors into the hands of innocent purchasers, divested of the trust in favor of said George, and Matthew St. Clair Clarke having long since died insolvent, and the said Boorman having also died in 1866, these complainants sought by the present bill against the executors of Boorman, to hold his estate responsible for the wrong done to their father by Boorman's participation in the violation of the trust, and the fraud upon his rights.

The transaction which was charged upon Boorman as a violation of his trust, and a fraud on the rights of George Clarke, was thus: In 1829, the minor son, James Smith, having arrived at majority, the debts and specific legacies left by the testator being paid, and the estate being settled except as respected the general residue, he, the three daughters, and the executors Boorman and Matthew St. Clair Clarke, proceeded to settle this residue. It was divided by them into four parts, agreed to be of equal value. One of these parts the executors and the three daughters conveyed, on the 15th of November, 1829, to James Smith, in fee, as his share under his father's will, and he accepted it in form as such. Conveyances were made on the same day in similar form, mutatis mutandis, to each of the daughters, of specific property agreed on and valued as one-third of their fourths, which thirds by the terms of the codicil were to be at their 'absolute control.'

Up to this point of what was done, no objection was taken in the present proceeding.

But there still remained, of course, in the hands of the executors two-thirds of three several one-fourths. The objection was as to what was now done with these, or rather with the two-thirds of the fourth devised for Mrs. Jeanet Clarke and her children, husband, &c. That part of the matter was thus:

On the 26th of December, 1829, the two executors, James Smith, and the three daughters, with their husbands, conveyed by deed-the executors reciting in it that they were acting in pursuance of the power contained in the will-the whole, in a body, of this remaining residue-the same being composed chiefly of lots of ground in the city and State of New York-to one Robert Dyson in fee for the consideration as expressed in the deed of $64,710.39, in cash paid to Matthew St. Clair Clarke, and which sum he acknowledged to have received. This conveyance included, of course, the two-thirds of Mrs. Clarke's fourth. In all this transaction Boorman seemed to have taken a passive rather than active part. In what he did, however, he acted under the advice of P. W. Radcliffe, Esq., of the New York bar, a gentleman well reputed at that bar for integrity, law-learning, and care in all that he either did or advised.

As a part of this arrangement, Matthew St. Clair Clarke, James Smith, Jeanet Clarke, and her sister Elizabeth, executed an instrument of indemnity to Boorman. It recited the provisions of the twelfth clause of the codicil, the conveyance of real estate to the son for his one-fourth share, the conveyance of other real estate for the one-third part of the share of each daughter, the conveyance to Dyson, the fact that no portion of the consideration of the sale to Dyson had been received by Boorman, but that it had, with the consent of all parties interested, gone exclusively into the hands of Matthew St. Clair Clarke, and the fact that Boorman had accounted for all the effects of the estate which had come to his hands, and had discharged himself of all the trusts reposed in him by the will and codicil, and then discharged Boorman from all moneys which he could have received in his trust, and from all claims concerning the estate of the testator, or any trust relating thereto, and agreed 'to indemnify him from all demands by reason of his having executed any of the conveyances thereinbefore mentioned, or by reason of any other thing by him done, committed, or suffered, concerning the estate of the testator, whether under the trusts in the will and codicil, or otherwise.'

On the same day that the conveyance abovementioned was made to Dyson, Dyson reconveyed to each of the three daughters one-third in specific lots of the whole, the consideration as expressed in the deeds being,

Jeanet,........................ $21,573 13

Hannah,......................... 21,614 56

Elizabeth,...................... 21,522 70

$64,710 39

The lots in New York City having increased in value, Mrs. Jeanet Clarke in 1843 advertised for sale at public auction all the lots conveyed to her, and they were so sold. She was at this time resident in Washington, and in the family of Matthew St. Clair Clarke, of that city, who, as already said, had married her sister Hannah. Her son George, already mentioned, who was born in 1815, and was therefore twenty-eight years old, and at the time about to marry, went to New York to attend to the matter of the sales. When he got there, he called upon L. B. Woodruff, Esq., then at the bar and now the Circuit judge for the Second Circuit of the United States, to obtain Mr. Woodruff's professional assistance in the preparation of the deeds, bonds, and mortgages, and generally to superintend the closing of the matter of the sale of the lots. The deeds having been prepared (five in number), George took them to Washington, where they were executed by his mother. The consideration-money was $7515. Soon after the deeds had been thus prepared and ready for delivery to the purchasers, Mr. Woodruff was called on by Mr. Andrew Thomson, Mr. Stephen Cambreleng, and Mr. Peter De Witt, members of the bar, who had been requested by different purchasers at the sale, to examine the title of the lots sold, and informed by them that they had doubts about the validity of the title which Mrs. Clarke proposed to convey, the doubts being founded on the language of her father's will. The question, as the same was now recalled by Mr. Woodruff after a lapse of twenty-seven years, was 'whether under the codicil Jeanet Clarke took an estate in fee; or whether her death without issue would devolve the title upon her brother and sisters or their issue, and, connected with that, whether on the birth of issue, which issue should attain twenty-one years, her estate became absolute; whether it was so before or not, and hence, if she had issue then living who was twenty-one years of age, whether his conveyance would not remove all chance of doubt.'

The will of Mr. Smith, the father, being put before Mr. Woodruff, the last-named gentleman endeavored to satisfy the objecting counsel that their doubts were unfounded. Two of them were apparently convinced; but they had already advised their clients to decline the title. Being however now informed that Mrs. Jeanet Clarke had a son-the said George, then in New York-it was finally agreed, if he would execute an instrument by way of release or confirmation of the sale, that the hesitating or declining purchasers would be satisfied. George, either 'by his presence at all or some of these interviews, or by direct and immediate communication' from Mr. Woodruff, 'was informed of the objection made in behalf of the purchasers by their counsel, and that they desired the execution by him of the release or grant,' such as is abovementioned. Extracts of the will were had in this discussion; whether a copy of it entire was before the parties did not so plainly appear.

George did accordingly execute a release or grant prepared by Mr. Woodruff, received what money was to be paid, and went home to Washington again. He was soon afterwards married, and long held the post of a clerk (not of the higher grades) in the Treasury. He died in 1855, that is to say, twelve years after these transactions, never having set up title to any of these lots then sold by his mother. His mother, as already said, had died in 1847, having been a widow since 1824.

The children of George-two infants, one aged fifteen and the other eighteen-now, April, 1869, filed this bill, as already said, against the executors of Boorman.

It appeared as part of the case, that in 1861 Boorman, as surviving executor, received the dividends in arrear on $50 worth of stock in a New York bridge company, and sold the stock itself; the produce of both transactions amounting in the whole to $115.

The defendants set up that Jeanet Clarke at the time of the conveyances which she made, A.D. 1829, had a fee simple estate in her two-thirds. They set up also in their answer the New York statutes of limitation, and long acquiescence by George, father of the complainants.

The statutes of limitation then in force were the New York Revised Statutes of 1830, and were as follows:

'ARTICLE FIRST.

'Of the time of commencing actions relating to real property.

'No action for the recovery of any lands, tenements, or hereditaments, or for the recovery of the possession thereof, shall be maintained, unless it appear that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the premises in question, within twenty years before the commencement of such action.'

'ARTICLE SIXTH.

'Of the time of commencing suits in courts of equity.

'Whenever there is a concurrent jurisdiction in the courts of common law and in courts of equity, of any cause of action, the provisions of this title limiting a time for the commencement of a suit for such cause of action in a court of common law shall apply to all suits hereafter to be brought for the same cause in the court of chancery.

'Bills for relief, in case of the existence of a trust not cognizable by the courts of common law, and in all other cases not herein provided for, shall be filed within ten years after the cause thereof shall accrue, and not after.

'Bills for relief, on the ground of fraud, shall be filed within six years after the discovery, by the aggrieved party, of the facts constituting such fraud, and not after that time.'

The complainants contended, as already said, that Jeanet Clarke's estate was one but for life, with remainder to her son. They also contended that the statutes set up did not apply for several reasons: First. Because the claim was for a breach of trust, which no lapse of time would bar. Secondly. Because the act of Boorman was a fraud, which no time would bar; and, thirdly, because George never discovered the fraud; was poor, wholly occupied in providing through the labors of his office for the day that was passing over his head, and subject to the control of Matthew St. Clair Clarke, one of the executors. They further contended that the peculiar remedy in equity against a concealed fraud before adverted to, was allowable against a party who by mistake committed or participated in injurious acts.

The defendants denied all fraud, and asserted full knowledge of the material facts on the part of George; notice of all material facts to him and ratification by him of the acts complained of as vesting in his mother full control over her reserved two-thirds. And they also denied the said allegations of control, undue influence, &c.

The court below considered that when Jeanet sold she had an estate in fee. This view rendered unimportant a consideration of any other parts of the case.

The court observed, however, in regard to the instruments of indemnity taken by Boorman:

'At the time the two-thirds of Jeanet Clarke's share of the estate was conveyed to her (1829) her son was but fourteen years old. So far, therefore, as her share was concerned, Mr. Boorman needed indemnity against the contingency that such son might die under the age of twenty-one years, and without issue, in which case the mother and sisters of Jeanet Clarke, or their issue, would come to take the two-thirds of her share.'

The case was elaborately argued on principle and on the authorities, by Messrs. P. Phillips and L. Janin, for the appellants; and by Mr. Charles O'Conor, contra.

Mr. Justice MILLER delivered the opinion of the court.

The plaintiffs assume, as the foundation of their bill, that by the true construction of the codicil as applied to the facts of the case, Jeanet Clarke took but a life estate in the real property of her father, or a life interest in the proceeds of the sale, so far as it may have been sold, and that their father, George Clarke, had a vested remainder or interest in the property so devised to Jeanet.

The first question, then, which naturally arises in the case as thus presented is, whether the construction which the plaintiffs place upon the codicil is the true one.

Very few classes of questions are more frequent or more perplexing in the courts than the construction of wills. If rules of construction laid down by the courts of the highest character, or the authority of adjudged cases, could meet and solve these difficulties, there would remain no cause of complaint on that subject, for such is the number and variety of these opinions that every form of expression would seem to be met. Especially is this true of the question whether a vested remainder in interest is created after a particular estate, or whether the first taker has a fee simple or full ownership of the property devised. And, in point of fact, when such a question arises the number of authorities cited by counsel, supposed to be conclusive of the case in hand, is very remarkable. Unfortunately, however, these authorities are often conflicting, or arise out of forms of expression so near alike, yet varying in such minute shades of meaning, and are decided on facts or circumstances differing in points, the pertinency of which are so difficult in their application to other cases, that the mind is bewildered and in danger of being misled. To these considerations it is to be added that of all legal instruments wills are the most inartificial, the least to be governed in their construction by the settled use of technical legal terms, the will itself being often the production of persons not only ignorant of law but of the correct use of the language in which it is written. Under this state of the science of the law, as applicable to the construction of wills, it may well be doubted if any other source of enlightenment in the construction of a will is of much assistance, than the application of natural reason to the language of the instrument under the light which may be thrown upon the intent of the testator by the extrinsic circumstances surrounding its execution, and connecting the parties and the property devised with the testator and with the instrument itself.

These remarks are well illustrated in the case under consideration. It has been argued fully by able counsel on each side. Extensive reference has been made to authorities, the result of careful labor; but, after a full consideration of these, we prefer to decide the case on a point which is equally conclusive of the whole matter, which has been equally well presented, and about which we have no doubt or hesitation.

The transaction which is charged upon Boorman as a violation of his trust and a fraud upon the rights of George Clarke occurred in 1829. The minor, James Smith, had reached the age of twenty-five; the debts of the testator had all been paid, and the specific bequests of his will carried into effect. It seemed desirable to distribute the assets on hand, consisting mainly of the unsold real estate, among the four children of the testator, for whom it was intended.

This was done first by the executors and the other three devisees conveying to James, in fee, certain real estate which was valued and agreed upon by the parties, and accepted by him as his full, equal one-fourth of the estate of his father under the will.

Similar deeds were made to the three female devisees of the property agreed upon as the one-third part of their respective shares, which was, by the will, to be placed at their unconditional control. These deeds left in the hands of the executors two-thirds of each one-fourth devised to the daughters, in regard to which alone the question of life interest or absolute interest or life estate and remainder arises. The deeds abovementioned are dated November 15th, 1829, and on the 26th day of December the two executors, Boorman and Clarke, and James Smith, Jeanet, Hannah, and Elizabeth, and their husbands, united in a conveyance of all the remaining real estate to Robert Dyson.

This deed recited on its face that it was made by the executors in pursuance of the power contained in the will, for the consideration of $64,710.59, paid by Dyson to Matthew St. Clair Clarke, one of the executors. On the same day Dyson, by conveyances to Jeanet, Hannah, and Elizabeth, conveyed to each of them parts of the real estate so conveyed to him, the three deeds covering it all, reciting the consideration at sums in each case as near one-third of the $64,710.59, the consideration of the deed to him, as could well be arranged. These were all deeds purporting to convey the title in fee; and the property has since passed into the hands of bon a fide holders for value. We do not see in these proceedings any reason to believe that either Boorman or Matthew St. Clair Clarke was governed by a fraudulent design. No money was received by either of them. The $64,710.59, recited in the deed to Dyson, as paid to Clarke, was evidently merely nominal, and was satisfied by his conveyances the same day, dividing the property conveyed to him between the three daughters of the testator. The title to all the property came to him, and the title to the specific portions of it passed to them without a dollar actually paid, and the whole of it was a plan carefully devised by a good lawyer, to close up the trust in the hands of the executors, and to partition the property among those supposed to be entitled to it. It does not appear that either Boorman or his lawyer ever believed that the son of Jeanet Clarke, then alive, had any vested interest in the property, and they could have had, therefore, no thought of defrauding him. It is said, in opposition to this view of the matter, that the executors required and received a bond of indemnity, with mortgages upon the property, to save them harmless in regard to this violation of their trust. But we think it sufficiently appears by the evidence that this indemnity had reference to possibilities under supposable doubtful constructions of the will, other than such as gave to the son, George, any interest, cut off or discharged by these transactions.

We do not enter into the question whether the trustees so far departed from their obligations to him under the will, as to make them legally or equitably liable to him for the injury arising from their misconduct; but we only mean to say, that we do not find in the record any evidence of positive, actual fraud with corrupt motive, nor of any effort to conceal what they did from him, or from any one else interested in the transaction.

The reason for not entering into the inquiry any further is, that the plaintiffs come too late.

Whether we look to the statutes of limitations of the State of New York, governing such cases in that State, and, of course, in this court; or to the more general and universal doctrines of courts of equity on the subject of the lapse of time, laches, and stale demands, we are of opinion that this suit cannot be maintained.

The limitation prescribed by the statutes of New York for the recovery of real estate is twenty years in an action at law.

Where there is a concurrent jurisdiction in the courts of common law and in courts of equity, the limitation prescribed by the court of law shall govern the court of equity.

Bills for relief in cases of trust, not cognizable by courts of law, are to be filed within ten years after the cause of action accrued.

Bills for relief on the ground of fraud, must be filed within six years after the discovery of the fraud.

If this were a suit to recover the real estate devised by the testator, the action would be barred at law by the statute, because the right of action of the plaintiffs' ancestor, George Clarke, accrued upon the death of his mother, in 1847, and this suit was commenced in 1869, more than twenty years afterwards. The bill of complaint does, in terms, ask this relief, that is, the possession of the property; and though this is impossible, because the property has passed beyond the control of the defendants, it would seem reasonable that when the plaintiffs ask, in the alternative, for such relief as the court can give instead of the property, the same rule of limitation should govern the courts of equity as would govern the courts of law; and such is the express declaration of the New York statute as regards concurrent remedies in courts of law and chancery.

But, as we have already shown, this is a bill for relief, if any relief can be granted in a case of trust not cognizable in a court of law. It is not for land in possession of the defendant, nor for money in his possession received for the use of the plaintiffs' ancestor, nor for such money which ought to be in his possession, but it is for a well-defined violation of trust by which plaintiffs' ancestor lost the title to property which would otherwise have come to him on the death of his mother, and in failing to secure to him his reversionary interest, when they conveyed it as trustees. It is, therefore, a case falling within the limitation of ten years of the New York statute; because it is a bill for relief in a case of trust not cognizable at law.

It is insisted, however, that in cases of fraudulent violation of trust no length of time will operate as a bar to a suit in equity; and some general expressions found in the language of the courts are much relied on.

These authorities are all based upon the proposition of actual intentional fraud practiced upon a cestui que trust by his trustee. We have already said such is not the case before us.

The statute we have referred to as governing this case makes no such exception, though it is, in terms, applicable alone to cases of trust and to suits in equity.

That statute does, however, contain an exception to the general rule of limitation of ten years, which it prescribes. It is that bills for relief on the ground of fraud must be filed within six years after the discovery of the fraud. The plaintiffs contend that their case comes within the protection of this clause.

We are favored by learned counsel, in answer to this construction, with a very forcible argument in support of the proposition that the provision above recited is only applicable to a case of fraud intentionally concealed by the party committing it, from the knowledge of the party injured, until the ordinary remedies would be barred by the statute. The argument and authorities cited in its favor are of great weight, and we are not prepared to say the proposition is unsound. We think, however, we are relieved from the necessity of deciding it by the facts in the case before us.

We are of opinion that the record shows that George Clarke had such knowledge or notice of his rights under the will, and of the transactions of the trustees now complained of, as precludes his heirs from setting up ignorance of these transactions.

It appears that as agent for his mother in the year 1843, when he must have been twenty-eight years old, he went to New York to complete the sale of five different parcels of the land conveyed by Dyson to his mother. At his request L. B. Woodruff acted as counsel, and prepared the conveyances to the purchasers. These conveyances he carried to Washington, where they were executed by his mother, and by Matthew St. Clair Clarke as trustee, and were witnessed by him, and carried back by him to New York for delivery. At least two of the purchasers declined to complete the purchase on the ground of a defect of title growing out of the construction of the clause of the will of his grandfather, which is here in dispute. This difficulty was explained to Woodruff, his mother's counsel, and to him. It had relation to his own connection with the will, and it related directly to the question whether, under the circumstances, that he was then in existence, and had attained the age of twenty-one years, his mother's interest in the property was a life estate or a fee simple title. Counsel for purchasers advised their clients to accept the title, if George would execute a deed of grant or release to the lots, and he did so, warranting the title. It is not clear whether the will of his grandfather was present during these discussions. But it is clear that extracts from the will were used. That he was fully informed that he was referred to in the will in such a manner as made prudent counsel require a conveyance of his rights before they would advise their clients to pay for and accept the title conveyed by his mother, and by Mattew St. Clair Clarke, the executor of that will. The will itself, with all the deeds on which the title depended, was of record, and accessible to him without difficulty. The value of the property conveyed by the five deeds which he witnessed, and in regard to which he acted as his mother's agent in delivering them, and receiving the money, was considerable. The consideration of the five deeds amounted to $7515.

This money passed through his hands, and he signed deeds parting with his interest to perfect the title in the only cases in which he was asked to do so. At this time both Boorman and Matthew St. Clair Clarke were alive. He lived twelve years after this, during eight years of which time, after his mother's death, all his rights were perfect, and his cause of action against them free from obstruction. But during all this time he asserted no claim. If he had rights he was content to waive them. There was nothing to prevent his fullest investigation into all the transactions now complained of. His attention had been called to his interest under the will, to the nature of his mother's title, to the fact that able lawyers considered him as having an interest in the property under that will, yet he lived for more than eight years after his mother's life interest had expired and asserted no claim. His children cannot now, twenty years after this, be heard to say that he was in such ignorance of his rights that the curative influence of statutes of repose shall not operate against him and them.

We think it is equally clear, upon the general principles by which courts of equity are governed in regard to lapse of time as a bar to relief, that plaintiffs come too late. The acts of the trustees, of which complaint is made, were completed in 1829, forty years before the suit is commenced for a redress of the wrong then done to plaintiffs' father. During twenty-two years of that time his right and the right of his children to bring suit was without obstruction or hindrance. Within that time the party injured, the party who committed the wrong, and all others engaged in the transaction, died. The testator of defendants, the persons whose estate is to be charged if plaintiffs recover, was the last of these to depart, and it would almost seem as if the delay until he who could best explain all that needed explanation, and could most effectually defend his own part in the transaction, had passed away, was intentional.

The fact that these transactions had relation to a trust does not in this instance take the case from within the influence of those salutary principles intended to give protection against stale claims.

It may be conceded that, so long as a trustee continues to exercise his powers as trustee in regard to property, that he can be called to an account in regard to that trust. But when he has parted with all control over the property, and has closed up his relation to the trust, and no longer claims or exercises any authority under the trust, the principles which lie at the foundation of all statutes of limitation assert themselves in his favor, and time begins to cover his past transactions with her mantle of repose. Such is the case before us. With the transfer of the title of the property in 1829, Mr. Boorman intended to, and did, terminate his trust relation to that property. If there was any claim against him after that, which could be asserted by plaintiffs' father, it was a claim for a wrong then done him, and not a claim as of an existing relation of trustee and cestui que trust. The act of Mr. Boorman, many years after, in disposing, as executor of the will, of fifty dollars of corporation stock discovered to belong to the estate, neither waived nor recognized as existing any such relation. Every principle of justice and fair dealing, of the security of rights long recognized, of repose of society and the intelligent administration of justice, forbids us to enter upon an inquiry into that transaction forty years after it occurred, when all the parties interested have lived and died without complaining of it, upon the suggestion of a construction of the will different from that held by the parties concerned, and acquiesced in by them through all this time.

DECREE AFFIRMED.

2 Revised Statutes of New York, 1st ed., A.D. 1830, p. 293, § 5.

Michoud v. Girod, 4 Howard, 504; Prevost v. Gratz, 6 Wheaton, 481; Bowen v. Evans, House of Lords Cases, 281.

title: Clarke v. Boorman's Executors


text: Talk:Clarke v. Boorman's Executors

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title: Talk:Clarke v. Boorman's Executors


text: Clarke v. Boorman's Executors/Opinion of the Court


text: Talk:Clarke v. Boorman's Executors/Opinion of the Court


text:
Bean v. Beckwith

ON certificate of division of opinion between the judges of the Circuit Court for the District of Vermont; the case being thus:

An act of March 3d, 1863, entitled 'An act relating to habeas corpus, and regulating judicial proceedings in certain cases,' enacts that 'any order of the President or under his authority,' shall be a defence to any actions, & c., for any search, seizure, or arrest, &c., made, &c., under and by virtue of such order, or under color of any law of Congress.

A subsequent act, that of March 2d, 1867, and entitled 'An act to declare valid and conclusive certain proclamations of the President, and acts done in pursuance thereof, or of his orders, in the suppression of the late rebellion against the United States,' enacts:

'All acts, proclamations, and orders of the President of the United States, or acts done by his authority or approval after the 4th of March, 1861, and before the 1st of July, 1866, respecting martial law, military trials by courts martial or military commissions, or the arrest, imprisonment, and trial of persons charged with participation in the late rebellion against the United States, or as aiders or abettors thereof, or as guilty of any disloyal practice in aid thereof, or of any violation of the laws or usages of war, or of affording aid and comfort to rebels against the authority of the United States; and all proceedings and acts done or had by courts martial or military commissions, or arrests and imprisonments made in the premises by any person, by the authority of the orders or proclamations of the President, made as aforesaid, or in aid thereof, are hereby approved in all respects, legalized, and made valid, to the same extent and with the same effect as if said orders and proclamations had been issued and made, and said arrests, imprisonments, proceedings, and acts had been done under the previous express authority and direction of the Congress of the United States, and in pursuance of a law thereof, previously enacted and expressly authorizing and directing the same to be done. And no civil court of the United States, or of any State, or of the District of Columbia, or of any district or Territory of the United States, shall have or take jurisdiction of, or in any manner reverse, any of the proceedings had or acts done as aforesaid, nor shall any person be held to answer in any of said courts for any act done or omitted to be done in pursuance or in aid of any of said proclamations or orders, or by authority or with the approval of the President within the period aforesaid, and respecting any of the matters aforesaid, and all officers and other persons in the service of the United States, or who acted in aid thereof, acting in the premises shall be held prim a facie to have been authorized by the President; and all acts and parts of acts heretofore passed, inconsistent with the provisions of this act, are hereby repealed.'

Between the date of these two acts, that is to say, in August, 1865, Andrew Bean sued Daniel Beckwith and Gilman Henry, in trespass, for an alleged assault and battery upon him, and false imprisonment. The declaration averred that the defendants, in November, 1864, at Newbury, in the county of Orange, in the State of Vermont, assaulted and seized the plaintiff and carried him against his will to Windsor, in that State, and forced him into the State prison in that place, and confined him in a cell constructed for thieves and burglars and other convicts, for the space of seven months; and that by these means his health was destroyed, and he himself subjected to great distress and anguish of mind, and injured in his business, for which destruction of his health, distress, injuries, &c., he claimed damages from the defendants.

The defendants pleaded two pleas precisely alike with the exception of the form of their commencement. One of them averred that the plaintiff ought not to have and maintain his action by reason of the matters stated; the other averred that the cause by reason of these matters ought to be dismissed. The difference was of no consequence upon the questions presented for the consideration of the court.

Both pleas set up that at the time of the commission of the alleged grievances, and long previously, a rebellion existed against the laws and government of the United States, and that the public safety was greatly imperilled; that it became necessary to raise troops to suppress the rebellion and insure the public safety, and for that purpose troops were raised in the Northern States, and especially in the military district embracing the Second Congressional District of Vermont; that the defendant Henry was at the time a military officer of the United States, namely, a provost marshal within and for that district, and the defendant Beckwith was an assistant provost marshal within the same district; that in November, 1864, at Newbury, in the county of Orange, in the State of Vermont, the plaintiff was charged with having been guilty of disloyal practices in aid of the rebellion, and of affording aid and comfort to the rebels, to wit, with enticing soldiers, in June previous, to desert from the army of the United States; that the defendants thereupon arrested the plaintiff 'on the charges aforesaid,' and delivered him to the keeper of the State prison for safe custody, until he could be brought before the civil tribunals of the United States upon those charges; that the plaintiff was there detained until May 1st, 1865, when he was brought before the United States commissioner and held to bail for his appearance before the Circuit Court on the fourth Tuesday of July following, to answer those charges; and that from his arrest until this last date, there was no session of the Circuit Court, nor any grand jury in attendance upon any court of the United States within the district.

The pleas also averred that in making the arrest, imprisonment, and detention, the defendant Henry acted in his military capacity of provost marshal, and the defendant Beckwith acted as his aid; that the arrest, imprisonment, and detention were made without unnecessary force and violence, 'under the authority and by the order of the President of the United States, Abraham Lincoln, since deceased, whose orders as commander in chief of the armies of the United States, by the rules and regulations of the army, the defendants were bound to obey;' and that the arrest, imprisonment, and grievances in the declaration mentioned, were the same arrest, imprisonment, and detention thus set forth; concluding with an absque hoc as to the violence and other circumstances of aggravation and cruelty with which the original imprisonment and subsequent confinement are charged to have been accompanied.

To these pleas the defendants demurred generally, and the judges being divided in opinion as to their sufficiency, the question on certificate of division was, whether either was sufficient.

Mr. E. J. Phelps, for the plaintiff, argued:

1st. That the averments in the pleas did not bring the case within the terms of the statutes in question, or either of them.

2d. That if those statutes were to receive such a construction as would comprehend this case, then they were in contravention of the Constitution of the United States, and especially of articles four, five, and six of its amendments.

3d. That in any event both pleas were bad, as being pleaded to and assuming to answer the whole declaration, while the provisions of the statutes, even if applicable and constitutional, would afford a defence to only a part of it.

Mr.S. F. Phillips, Solicitor-General, contra:

1st. The facts set up amount to justification, and we rely on them as a justification under the first plea. They show that the plaintiff was guilty of a felony. All private persons had a right to arrest him, and the defendants did not lose their right by being military officers.

2d. The defendants are entitled to the benefit of the indemnity given by the act of 1867, and this they claim under the second plea.

The act is constitutional. As it concerns itself only in indemnifying United States officers against liabilities incurred in the colorable discharge of their duties as such, no objection can be made to it as being outside of the enumerated powers of the General government.

Mr. Justice FIELD, having stated the case, delivered the opinion of the court, as follows:

title: Bean v. Beckwith


text: Talk:Bean v. Beckwith

title: Talk:Bean v. Beckwith


text:
Bean v. Beckwith/Opinion of the Court

There is no averment in the pleas that at the time the plaintiff was arrested any rebellion existed in the State of Vermont, against the laws or government of the United States; or that any military operations were being carried on within its limits; or that the courts of justice were not open there, and in the full and undisturbed exercise of their regular jurisdiction; or that the plaintiff was in the military service of the United States, or in any way connected with that service.

Nor is there any averment in the pleas as to the manner in which, or the parties by whom the charges of disloyal practices were made. It is not alleged that they were stated in writing or supported by oath.

Nor do the pleas, whilst asserting that the acts, which are the subject of complaint, were done under the authority and by the order of the President, set forth any order, general or special, of the President directing or approving of the acts in question.

For this last omission all the judges are agreed, without expressing any opinion upon the other omissions, that the pleas are defective and insufficient. It is an old rule of pleading, which, in the modern progress of simplifying pleadings, has not lost its virtue, that whenever one justifies in a special plea an act which in itself constitutes at common law a wrong, upon the process, order, or authority of another, he must set forth substantially and in a traversable form the process, order, or authority relied upon, and that no mere averment of its legal effect, without other statement, will answer. In other words, if a defendant has cause of justification for an alleged trespass, and undertakes to plead it, he must set it forth in its essential particulars, so that the plaintiff may be apprised of its nature and take issue upon it if he desires, and so that the court may be able to judge of its sufficiency.

The defendants intended by their pleas to rest the justification of their conduct upon the provisions of the act of March 3d, 1863, entitled 'An act relating to Habeas Corpus, and regulating judicial proceedings in certain cases,' and of the act of March 2d, 1867, entitled 'An act to declare valid and conclusive certain proclamations of the President, and acts done in pursuance thereof, or of his orders, in the suppression of the late rebellion against the United States.'

These statutes were enacted, among other things, to protect parties from liability to prosecution for acts done in the arrest and imprisonment of persons during the existence of the rebellion, under orders or proclamations of the President, or by his authority or approval, who were charged with participation in the rebellion, or as aiders or abettors, or as being guilty of disloyal practices in aid thereof, or any violation of the usages or the laws of war. Assuming for this case that these statutes are not liable to any constitutional objection, they do not change the rules of pleading, when the defence is set up in a special plea, or dispense with the exhibition of the order or authority upon which a party relies. Nor do they cover all acts done by officers in the military service of the United States simply because they are acting under the general authority of the President as commander in chief of the armies of the United States. They only cover acts done under orders or proclamations issued by him, or under his authority; and there is no difficulty in the defendants setting forth such orders or proclamations, whether general or special, if any were made, which applied to their case.

The views thus expressed render it unnecessary to consider any other objections taken by the plaintiff to the pleas before us.

The questions certified must be ANSWERED IN THE NEGATIVE, and the cause

REMANDED FOR FURTHER PROCEEDINGS.

title: Bean v. Beckwith/Opinion of the Court


text: Talk:Bean v. Beckwith/Opinion of the Court


text: Chaffee v. United States

title: Chaffee v. United States


text: Talk:Chaffee v. United States

title: Talk:Chaffee v. United States


text:
Chaffee v. United States/Opinion of the Court

ERROR to the Circuit Court for the Southern District of Ohio; the case being thus:

The forty-eighth section of the act of June 30th, 1864, 'To provide internal revenue to support the government,' &c., thus enacts:

'All goods, wares, merchandise,. . . on which duties are imposed by the provisions of law, which shall be found in the possession or custody, or within the control of any person. . . for the purpose of being sold or removed by such person. . . in fraud of the internal revenue laws, or with design to avoid payment of said duties, may be seized by any collector. . . who shall have reason to believe that the same are possessed, had, or held for the purpose or design aforesaid, and the same shall be forfeited to the United States.

'And also all articles of raw materials found in the possession of any person. . . intending to manufacture the same for the purpose of being sold by them in fraud of said laws, or with design to evade the payment of said duties, and also all tools, implements, instruments, and personal property whatsoever, in the place or building, or within any yard or inclosure where such articles on which duties are imposed, as aforesaid, and intended to be used by them in the fraudulent manufacture of such raw materials, shall be found, may also be seized by any collector or deputy collector, as aforesaid, and the same shall be forfeited as aforesaid.

'''And any person who shall have in his custody or possession any such goods, wares, merchandise,. . . subject to duty as aforesaid, for the purpose of selling the same with the design of avoiding payment of the duties imposed thereon, shall be liable to a penalty of $500, or not less than double the amount of duties fraudulently attempted to be evaded, to be recovered in any court of competent jurisdiction.''

'And the goods, wares, merchandise, which shall be so seized by any collector, may, at the option of the collector, during the pendency of such proceedings, be delivered to the marshal of said district, and remain in his care and custody and under his control until final judgment in such proceeding shall be rendered.'

This statute being in force, Sidney Chaffee, Highland Chaffee, and Rue Hutchins, trading as Chaffee & Co., were distillers, at Tippecanoe, a small town upon the Miami Canal, a canal which traverses the State of Ohio from Cincinnati on the south line of the State, by a course north and south, to Toledo in the north. The custom of Chaffee & Co. was to ship whiskies in both directions; that is to say, northward towards Toledo and southward to Cincinnati. Going north such whiskies had to pass through a place called Piqua, which was the first place on the canal at which toll was payable when the vessel was going from Tippecanoe in the direction named. Going south, towards Cincinnati, the whiskies had to pass through Dayton, the first place at which toll was payable when the vessel was going from Tippecanoe south. There was no other distillery at Tippecanoe. There were, however, in the whole distance between Piqua and Dayton three others.

The Miami Canal, on which these whiskies were transported, had been made and for some years was managed by the State of Ohio. And a statute for 'the regulation of the navigation thereof and for the collection of tolls,' enacted that no boat should be permitted to pass on it unless the master had first obtained a clearance for each voyage from the collector of tolls, which clearance the collector nearest to the place at which the boat began her voyage was required to issue. To enable the collector to issue clearances that should truly represent what cargo was on board, the act made it obligatory on the master to exhibit to the collectors 'a just and true account or bill of lading' of 'each and every article of property on board,' when the boat should depart on her voyage, or which should be taken on board afterwards; and further, to insure accuracy, every collector receiving a bill of lading might require the master to verify it by his oath. The knowingly delivering any false bill was made an indictable offence, punishable with fine in three times the value of the property omitted or falsely stated in the bill. The bill of lading thus required was to be exhibited to the collector where any portion of the cargo should be unladen. The act proceeded:

'It shall be the duty of every collector to whom bills of lading are required to be presented, in order to obtain a clearance for any voyage, to make out from such bill or bills of lading, in a book, a certificate, containing a pertinent description of the articles composing the cargo of the boat, for which clearance is about to be issued, properly classified and designated with reference to the rates and amount of tolls chargeable thereon; which certificate shall be signed by the master, who shall also attest on oath or affirmation to the correctness thereof, if required by the collector, before the clearance shall be issued.

'In every case where a certificate is required to be made out and signed, the collector shall enter upon the clearance a correct list or statement of all articles of lading contained in such certificate, properly classified and designated, with the amount of tolls charged and received thereon, and shall sign his name thereto.

'On the arrival of any boat at the place of destination, or at any place in the course of the voyage where there is a collector's office, the master thereof shall immediately present to the collector the bill or bills of lading together with the clearance.

'No boat shall proceed on its voyage until the bill or bills of articles of lading on board thereof, together with the clearance and list of passengers, shall have been presented to the collector, nor until all necessary examinations and comparisons of such bills of lading, clearance, and cargo, shall have been made, nor until all tolls payable at such office shall have been paid; and the collector may detain both the bills of lading and clearance until the necessary entries shall be made on such clearance, and until all the requisitions of this section shall be complied with.

'No part of the cargo of any boat shall be unladen at the termination of any voyage until the clearance, together with the bill or bills of lading of the whole cargo, shall have been presented to the proper collector, and a permit obtained from such collector for such unlading, which permit such collector is hereby required to grant, after a reasonable time shall have elapsed for the examination of such clearance, bills of lading and cargo, and on the payment of all tolls which shall remain due.'

Though, as already said, the canal had been originally managed by the State, it was not so managed at the time when the whiskies of Chaffee & Co. were transported. The State had leased it, the lease containing this provision:

'Such rights, privileges, and franchises now exercised by the State as may be necessary to manage, control, and keep in repair the public works, and collect collect tolls for the navigation of the same, together with the right to appoint superintendents, collectors, &c., who shall have and exercise the same power and authority in the collection of tolls and water rents, and the levy of fines, as can now by law be exercised by similar officers and agents appointed by the State; and said lessee or lessees shall be governed by the rules and regulations for navigating the canals now in force, subject to such alterations and additions as may hereafter be established by law,' &c.

The purpose of the company, which had now leased the canal, apparently was to follow the rules about clearances that the statute had prescribed. But whether the rules had been followed with statutory rigor was less clear. Captains would come, it appeared, to the collector's office and report for a clearance; the collectors generally, though not always, knowing them. The bills of lading were usually produced, but occasionally a captain would happen to have left his bills behind, and in such case, if he was a person known to the collector, and a person whose word the collector thought he could safely take as to what was on board the boat, he would sometimes dispense with the production of the bills, and make out the clearance from the captain's verbal report; though this would not be done ordinarily with any master, and never in the case of 'new men' whom the collectors did not know. Captains were never interrogated upon their oaths; nor did the collector ever overhaul and make personal inspection of cargoes, or in this way or in any way have actual and personal knowledge whether the representation of the captains or of the bills was strictly accurate. But however made, the captain would always certify the representation on which the clearance was granted to be true. When, however, arriving at its destination, the boat came to be unladen, it was testified 'to be the duty of the collector at such place of unlading to see, when the boat is unloading, that the captain has given in his freight correctly; and if he sees any freight that is not on the clearance, he then brings the captain to an account for it.'

The certificates which the captains signed on the books of the collector would be in this form:

'COLLECTOR'S OFFICE,

DAYTON, December 2d, 1865.

'I, H. U. French, master of the boat A. Hopkins, do certify that the following is a full and true statement of all the cargo taken on board said boat for transportation on her present passage, and that I have paid toll thereon as follows, to wit, to Piqua, for original cargo, on clearance No. 893, viz.:

The Boat. From. To. Miles. Tolls.

900 bushels barley    "     " 43,200 " 21

To Dayton.

50 barrels high wines, Tippecanoe. Cincinnati 18,000 ... 7

1645.29 bushels oats,    Troy. " 51,314 86 18


text: Talk:Chaffee v. United States/Opinion of the Court


text:
Boyce v. Tabb

ERROR to the Circuit Court for the District of Louisiana; the case being thus:

The thirty-fourth section of the Judiciary Act of 1789 enacts:

'That the laws of the several States. . . shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply.'

This provision of law being in force, Boyce, on the 13th of February, 1861, gave to Tabb a promissory note, as the consideration for the sale of certain slaves. At the time the note was given, as ever before in Louisiana since it had been settled by the whites, slavery existed, and the sale of slaves was lawful. But in 1865 an amendment, the 13th, to the Constitution of the United States was adopted, in these words:

'Neither slavery nor involuntary servitude. . . shall exist within the United States or any place subject to their jurisdiction.'

And in 1867 the Supreme Court of Louisiana adjudged it to be a principle of jurisprudence in that State that contracts for the sale of persons were void, and should not be enforced in their courts. After this decision, that is to say, in July, 1868, Tabb sued Boyce on the note. Boyce pleaded that the consideration of the note was the sale of slaves, and that the decisions of the Supreme Court of Louisiana had fully and unequivocally established that all obligations thus contracted were void and of no effect.

The court thus charged:

'It is not a legal defence to a suit brought on a promissory note executed in this State on the 13th of February, 1861, by the holder against the maker thereof, to allege and prove that such note was given as the price, or a part of the price, of slaves sold to the maker.

'That such sale was at the time lawful and valid in the said State is a sufficient consideration for a note, and the obligation cannot be impaired by laws of a State passed subsequently to the date thereof.

'No law of the United States has impaired such obligation.'

Verdict and judgment having gone for the plaintiff, the defendant brought the case here.

Mr. P. Phillips, for the plaintiff in error, relied on the decisions of the Supreme Court of Louisiana, already referred to, and the thirty-fourth section of the Judiciary Act of 1789, above quoted.

Mr. L. L. Conrad, contra.

Mr. Justice DAVIS delivered the opinion of the court.

title: Boyce v. Tabb


text: Talk:Boyce v. Tabb

title: Talk:Boyce v. Tabb


text:
Boyce v. Tabb/Opinion of the Court

If, when the note in question was executed, slavery existed in Louisiana under the protection of law, and contracts relating to it were enforceable in the courts, which is conceded to be the case, the defendant cannot be released from his obligation to pay it by anything which the State has done subsequently. This subject received the careful attention of this court in White v. Hart, and we are satisfied of the soundness of the views there presented. The case of Osborne v. Nicholson is also decisive of the last point in the charge. In that case it was held that contracts relating to slaves, valid when made, were not impaired by the thirteenth amendment to the Constitution, and it would serve no useful purpose to restate the argument by which that decision was supported. It is sufficient to say that we have seen no reason to question the correctness of the interpretation given to that amendment in its application to that case.

It is urged on the part of the plaintiff in error, as the highest court in Louisiana has, on grounds of public policy, refused to enforce contracts like this since the abolition of slavery, that the thirty-fourth section of the Judiciary Act of 1789 obliges this court to follow that rule of decision. This is an erroneous view of the obligation imposed by that section on this court, as our decisions abundantly show. The provisions of that section do not apply, nor was it intended they should apply, to questions of a general nature not based on a local statute or usage, nor on any rule of law affecting titles to land, nor on any principle which had become a settled rule of property. The decisions of the State courts, on all questions not thus affected, are not conclusive authority, although they are entitled to, and will receive from us, attention and respect.

JUDGMENT AFFIRMED.

title: Boyce v. Tabb/Opinion of the Court


text: Talk:Boyce v. Tabb/Opinion of the Court

title: Talk:Boyce v. Tabb/Opinion of the Court


text:
Tacey v. Irwin

ERROR to the Circuit Court for the Eastern District of Virginia; the case as found by that court being thus:

Under an act of Congress approved June 7th, 1862, and entitled 'An act for the collection of the direct tax in insurrectionary districts,' &c., certain direct taxes which had been laid by former law, were specifically charged on every parcel of land in the rebellious States, according to divisions and valuations in the act prescribed. And in default of payment of the tax the statute ordered the land to be advertised for sale and sold. The act, however, allowed the owner or owners of the land to pay the tax to certain tax commissioners mentioned, and to take a certificate therefor, by virtue of which the lands should be discharged of the tax.

In 1864, one Irwin owned a piece of land, subject to this statute, in Alexandria, Virginia, he himself being away. The taxes on it being unpaid, the commissioners gave notice that they would be at then office in Alexandria at certain times named, to receive the direct tax assessed and fixed by law on the lots and tracts of land in Alexandria, under and by virtue of the act of Congress abovementioned. But the commissioners adopted a rule not to receive the taxes due on property advertised for sale, unless tendered by the owner in person. This rule was adopted in pursuance of instructions from some officer of the Treasury Department, and was so rigidly enforced that neither friend, relative, nor agent was allowed to pay for the absent owner; their applications to pay and save the property from sale being uniformly refused by the commissioners, under the operations of the rule in question. After the premises belonging to Irwin were advertised for sale, one of his relatives went to the office of the commissioners to see after the payment of the tax on the property, but made no formal offer to pay because it was in effect waived by the commissioners; they declining to recognize any tender, unless made by the owner in person. The land was accordingly sold by the commissioners as land on which the taxes had not been paid, and was bought by one Tacey. Hereupon Irwin brought suit against him to recover it, and by judgment of the court upon the preceding case, did recover it. To reverse that judgment this writ of erorr was taken.

Mr. Willoughby, in support of the ruling below, relied on Bennett v. Hunter, where a tenant of the owner went and tendered payment of the tax on certain lands sold, the owner being away, which tender was held by this court in the case cited to be sufficient.

Mr. S. F. Beach, contra, sought to distinguish this case from that, since here there had been no tender at all; and no specific refusal.

Mr. Justice DAVIS delivered the opinion of the court.

title: Tacey v. Irwin


text: Talk:Tacey v. Irwin

title: Talk:Tacey v. Irwin


text:
Tacey v. Irwin/Opinion of the Court

The case is not distinguishable in principle from that of Bennett v. Hunter. In that case it was insisted in support of the tax deed, that the right to pay the tax before sale was limited to the owner in person, and could not be exercised by the tenant in possession who had offered to pay it. This position was not sustained, but the court held that the payment of the tax which the act requires to be made by the owner, need not, necessarily, be made by him in person. It is enough, if it be made by any person for him, on the ground that an act done by one for the benefit of another is valid if ratified, either expressly or by implication, and that such ratification will be presumed in furtherance of justice.

It is difficult to see how, upon the case as found here, the sale can be sustained. The law does not require the doing of a nugatory act, as would have been a formal tender of payment, after the action of the commissioners, declining to receive the taxes from any person in behalf of the owner. Bennett v. Hunter decides that the owner has the right to pay, either in person or through any one not disavowed by him, who is willing to act for him. This right the commissioners, by the rule which they established and the uniform practice under it, effectually denied. The friends and agents of absent owners were informed that it was useless to interpose in their behalf, and that unless the owner appeared in person and discharged the tax, the property would be sold. This was equivalent to saying that a regular tender by any other person would be refused. While the law gave the owner the privilege of paying by the hands of another, the commissioners confined the privilege to a payment by the owner himself. This was wrong, and was a denial of the opportunity to pay accorded to the owner by the act, and the lands were, therefore, not delinquent when they were sold.

If an offer in a particular case to pay the tax before sale, to the admission or rejection because not made by the owner in person, renders a subsequent sale by the commissioners void, surely a general rule announced by the commissioners, that in all cases such an offer would be refused, must produce the same effect. Such a rule of necessity dispenses with a regular tender in any case. In the absence of any proof to the contrary, it is a legal presumption that the tax in this case, though not actually offered, would have been offered and paid before sale but for the known refusal of the commissioners to accept any offer when not made by the owner in person.

If so, the commissioners were not authorized to make the sale in controversy, and the judgment must be

AFFIRMED.

title: Tacey v. Irwin/Opinion of the Court


text: Talk:Tacey v. Irwin/Opinion of the Court


text: Town of Ohio v. Marcy

title: Town of Ohio v. Marcy


text: Talk:Town of Ohio v. Marcy

title: Talk:Town of Ohio v. Marcy


text:
Town of Ohio v. Marcy/Opinion of the Court

ERROR to the Circuit Court for the Northern District of Illinois.

Marcy brought assumpsit in the court below against the town of Ohio, in Illinois, on the interest warrants of certain bonds which the said town had issued, and which warrants it neglected to pay. The parties waived a jury in writing and submitted the case to the court. The finding of the court was general, namely, 'That upon the matters submitted, the court finds the issue for the plaintiff, and assesses his damages at the sum of $4286.60.' Judgment was rendered for this sum.

A bill of exceptions embodied all the testimony in the case, but no exception was taken to the dismission or rejection of evidence, or to any ruling of the court on the trial. The town brought the case here on error. No question was raised on the pleadings.

Messrs. M. T. Peters and J. B. Hawley, for the plaintiff in error; Messrs. Paddock and Ide, contra.

Mr. Justice MILLER announced the judgment of the court, AFFIRMING THE JUDGMENT below, because, upon the case as above given, there was nothing in the record which raised any question of law which this court could consider.


text: Talk:Town of Ohio v. Marcy/Opinion of the Court


text: Case of the Sewing Machine Companies

title: Case of the Sewing Machine Companies


text: Talk:Case of the Sewing Machine Companies