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

In our opinion the court of claims committed no error in allowing the claim of the contractor.

The language of the specifications is, perhaps, susceptible of two meanings. According to one, it is as if read that 'the foundations and the brick walls now standing,' so far as they 'were uninjured by the fire, will remain;' according to the other, that 'the foundations and brick walls now standing,'being such as 'were uninjured by the fire, will remain.' But, without going into any refinements of merely verbal interpretation, we think the meaning of the parties, explained by the circumstances attending the transaction, is sufficiently plain, and determines satisfactorily their relative rights and obligations.

It must be conceded, we think, that it was intended that the old portion of the work was to remain as part of the new structure only so far as it was, in fact, fit to do so, having reference to the character and uses of the building, and that the United States had the right to determine the fact of fitness. It was clearly its interest to do so, in advance of bidding, because if it reserved the right to make the determination at any stage in the progress of the work, or even at the time of final acceptance on its completion, the whole risk of the contingency would be thrown upon the contractor, who could only indemnify himself by an increase in the estimate of probable cost; and the government would thus be compelled to pay for an uncertainty which could as well be resolved in advance. The United States having a right to determine the fact, it would be reasonable, having regard merely to its own interests, to do so before letting the contract. It would be equally reasonable and just to the contractor that the decision should be made at the outset; and as the right to make it belongs to the proprietor, the duty follows to exercise it so that the contractor shall not be misled and injured.

Under the circumstances in the present case, and according to the terms of the specifications, we think it was the duty of the officers acting for the United States, the right performance of which the government assumed, to point out to the bidders the parts of the foundations and walls which were in fact so far uninjured as to enter into the new structure, and that this was actually done by dismantling and stripping the burnt building, so that upon inspection of what was left standing the proposing contractor would be able by measurement to ascertain precisely what new work he was to do, and be paid for. To require him to determine the fact for himself provisionally, subject at any time before completion of the work to have his judgment reversed, and to be required in consequence to perform work which he could not and did not provide for in his estimates, would be unreasonable and unjust. The inspection invited by the advertisement was not for the purpose of assisting the contractor to determine subject to such a condition the question of the fitness of the standing walls to remain, but was, as we think, that he might see, as part of the plan of the work, what the authorized agents of the United States had designated as intended to remain in the permanent structure. It was the duty of the United States to point out the work deemed to be sufficiently uninjured to remain, and this was performed by allowing it to stand, and by not directing it to be taken down. We lay no stress, as the court of claims did not, on what was said at the time to that effect by unauthorized subordinates. The foundation and walls themselves, as left standing by authority of the proper officers, constituted under the circumstances a representation on the part of the United States that they had been adjudged to be so far uninjured by fire that they were to remain, upon the faith of which the intending contractor was entitled to rely for the purpose of estimating the probable cost of the work to be done.

Judgment in favor of the appellee was rendered by the court of claims upon two other claims for small amounts, in respect to which we do not deem it necessary to say more than that it appears to us the allowance was proper. The defense by reason of the statute of limitations, also for the reasons alleged in the opinion of that court, was, in our opinion, properly overruled.

The judgment of the court of claims is accordingly affirmed.


text:
United States v. Davis

 * United States v. Davis (131 U.S. 36), (  ?? L.Ed.    ??? ), (  ?? S.Ct.  ??? )
 * United States v. Davis (132 U.S. 334), ( ?? L.Ed.    ??? ), (  ?? S.Ct.  ??? )
 * United States v. Davis (231 U.S. 183), ( ?? L.Ed.    ??? ), (  ?? S.Ct.  ??? )
 * United States v. Davis (243 U.S. 570), ( ?? L.Ed.    ??? ), (  ?? S.Ct.  ??? )
 * United States v. Davis (370 U.S. 65)
 * United States v. Davis (397 U.S. 301), ( ?? L.Ed.    ??? ), (  ?? S.Ct.  ??? )

 * listing incomplete

 * See Similar:
 * Davis v. United States (Disambiguation)

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

title: United States v. Davis


text:
Booth v. Tiernan

B. C. Cook and C. W. Needham, for plaintiff in error.

''Wm. Burry'', for defendant in error.

MATTHEWS, J.

title: Booth v. Tiernan


text: Talk:Booth v. Tiernan

title: Talk:Booth v. Tiernan


text:
Booth v. Tiernan/Opinion of the Court

This was an action of ejectment brought by the defendant in error against the plaintiffs in error to recover the title and possession of a tract of land in Grundy county, Illinois, described as the north-east quarter of section twenty-nine, (29,) in township thirty-two, (32,) north of the base line, and in range eight, (8,) east of the third principal meridian. By stipulation the intervention of a jury was waived by the parties, and the cause was submitted upon the evidence to the circuit court. One of the defenses relied on was the statute of limitations of Illinois, being section 4 of chapter 83 of the Revised Statutes of that state, providing that possession for seven years, by actual residence thereon by any person having a connected title in law or equity, deducible of record from the state or United States, etc., should be a bar to an action brought for the recovery of lands, etc. Evidence was introduced on the part of the defendant below, the ancestor of the plaintiffs in error, tending to prove, as was claimed, that he had possessed the premises in controversy, by actual residence, for seven years next preceding the commencement of the action; but the finding of the court was that he had not been possessed, by actual residence thereon, of the land in controversy for that period. This finding, although excepted to and alleged as error, is a conclusion of fact which we cannot review. No exceptions appear on the record to the rulings of the court upon any questions relating to the evidence upon this point, and it cannot be claimed that the evidence, as stated in the bill of exceptions, was not legally sufficient to justify the conclusion reached by the court. No error in law can therefore be predicated of this conclusion of fact.

On the trial it was admitted that Ibzan Lacey, the common source of title, derived title to the premises in controversy from the United States in 1839, and a power of attorney from Lacey and wife, dated April 20, 1839, to Joel Wicks, authorizing him to sell and convey the premises, was proved. It was further admitted that an original deed from Lacey and wife by Wicks, their attorney in fact, to Alva Newman, dated May 6, 1840, had been lost, and it was proved that it was not in the power of the plaintiffs to produce it, and that it had not been intentionally destroyed or disposed of for the purpose of introducing a copy thereof in place of the original.

The plaintiffs below then offered in evidence a certified copy from the proper recorder's office of the record of said original deed, which, however, described the land conveyed as the south-east quarter of section 29, etc., instead of the north-east quarter of that section; but counsel for the plaintiffs stated in connection with the offer that there would be offered other evidence tending to show that there was a clerical error in the description of the land as entered upon the record and contained in the copy, and that it should be the north-east instead of the south-east quarter of the section.

To the introduction of this certified copy objection was made, because it did not describe the land in controversy, and because no evidence was admissible to prove and correct any alleged mistake.

The ground of this objection is stated to be that the statute of Illinois, (Laws 1861, p. 174, § 1,) in force at the time, authorizing the record of a deed or a certified transcript from the record to be used as evidence on a trial in place of a lost original, provided that it might be read in evidence 'with like effect as though the original of such deed, conveyance, or other writing was produced and read in evidence,' and that, as in this case, if the original had been produced, no evidence would be admitted to prove and correct the alleged mistake in the description of the premises conveyed, none can be admitted to prove and correct such a mistake in the record or transcript.

The court overruled the objection and admitted the certified copy of the deed in evidence, reserving the question upon the subsequent evidence to be offered, for the purpose of proving and correcting the alleged mistake. Such evidence was, in the further progress of the trial, admitted, on which, as a conclusion of fact, the court found that the land actually described in the lost deed was that in controversy; and thereon judgment was given for the plaintiffs below. Exceptions were taken to the rulings of the court admitting the evidence subsequently offered as to the mistake in the description, upon the ground of its competency, which will be hereafter considered. The general question raised by the exception to the introduction of the certified copy from the record, is whether evidence of any description is admissible for such a purpose.

The ruling of the circuit court on this point was correct. The language of the statute was intended merely to declare that the record of a deed, or a transcript from the record, though a copy only, and therefore in its nature merely secondary evidence, should nevertheless have the same effect, when competent as evidence at all, as the original itself, if it had been produced, upon the determination of the issues to be tried. It was not intended to declare that the record or a copy from it should, in law, be an original instrument for all purposes. The presumption is that as public officers generally perform their prescribed duties accurately, that the record, and all certified transcripts from it, will be true copies of the original; but they are none the less copies on that account, and are made evidence only in lieu of the original, and on the grounds on which secondary evidence is permitted to be given. And there is nothing in the statute, either expressed or implied, which forbids the party from showing by extrinsic proof, otherwise legitimate, what the contents of the lost original really were, where it is shown that the record itself, or a copy from it, is not a true copy.

By the very terms of the statute, the record of a deed is not original evidence, for it can be used only on proof of the loss of the original deed, or that the latter cannot be produced by the party offering the proof; and the object of the statute evidently was to require recording, in the first place, as notice to subsequent purchasers, and in the second, to supply a convenient statutory mode and instrument of secondary evidence. Its whole effect can be accomplished, without in any manner displacing or superseding the common-law principles which authorized other modes of proving the contents of lost deeds and other instruments. It is in this light that the statute has been viewed and treated by the supreme court of Illinois. Bowman v. Wettig, 39 Ill. 416. In Nattinger v. Ware, 41 Ill. 245, it was decided that a deed, properly executed and acknowledged, but recorded with a misdescription of the premises, would protect the grantee against subsequent purchasers and incumbrancers. But how could this be, unless the party were at liberty to prove the mistake in the record, either by the production of the original, or, in case of its loss, by other competent secondary evidence? This is what happened in Nixon v. Cobleigh, 52 Ill. 387. There the plaintiff in ejectment, to prove his title, relied on a deed, signed, as he claimed, 'Samuel H. Turrill.' The original not being in his power to produce, he offered a certified copy from the record. It purported, however, to be signed by 'James H. Turrill.' Against the objection of the defendant he was allowed to prove by parol evidence that the original was signed 'by the name of Samuel H. Turrill.' The court said: 'This renders it morally certain that the recorder made a mistake in transcribing the original upon his records.' The same construction was given to a statute of Alabama, the meaning of which cannot be distinguished from the statute of Illinois, by the supreme court of that state in Harvey v. Thorpe, 28 Ala. 250, where the very point was ruled that parol evidence was admissible to show that a deed was not correctly recorded. And the same principle was adjudged in Wisconsin, in Sexsmith v. Jones, 13 Wis. 631, and in New Hampshire, in Wells v. Iron Co. 48 N. H. 534.

The next question relates to the competency of the evidence admitted by the court to prove the mistake in the record of the deed, and the correct description of the property as contained in the original.

This was, in substance, as follows: First, the testimony of certain persons tending to prove that they had seen the original deed, and that it described the land conveyed as identical with that in controversy; second, a certified copy from an entry or file book, kept by the recorder of La Salle county, in which the land was situate at the time the conveyance was made by the attorney of Lacey to Newman, of a memorandum made by the recorder, showing the date of the receipt of the deed for record, the names of the grantor and grantee, the hour of its receipt, the nature of the conveyance, the date of its execution, and the location of the land conveyed, under which head the premises are described as the 'N. E. 1/4 S. 29, T. 32 N., R. 8 E., 3d P. M;' third, a transcript from the land-office at Springfield, Illinois, in which office was contained the records of the entry of the land in controversy, showing Jeddiah Wooley entered the N. E. 1/4 29, 32, 8, on August 8, 1935, and that he did not enter the S. E. 1/4 of said section; also a receipt from the land-office at Chicago, Illinois, in which office the land in controversy was sold, dated August 8, 1835, for $200, from Jeddiah Wooley, Jr., in full payment of the N. E. 1/4 section 29, township 32 N., range 8 E. of the third principal meridian, being the land in controversy, upon which receipt was a memorandum indorsed in the handwriting of Joel Wicks, who was dead at the time of the trial, as follows: 'Sold this to Alva Newman, May 6, 1840.' But it is recited in the bill of exceptions that the court did not decide that the last-mentioned memorandum and a memorandum on the copy of the deed of May 6, 1840, from Lacey to Newman, that 'this land was entered by Jeddiah Wooley, August 8, 1835,' were either of them competent evidence.

The evidence offered and objected to was, we think, competent. The testimony of witnesses who had read the original deed, as to their recollection of its contents, was direct evidence of the fact; and the copy of the registry of the deed, as entered in the file-book, was a copy of an official entry, made in a book of public records required to be kept by the recorder, and which constitutes the first step in the process of recording. The statute requires that every recorder shall keep 'an entry book, in which he shall, immediately on the receipt of any instrument to be recorded, enter, in the order of its reception, the names of the parties thereto, its date, the day of the month, hour, and year of filing the same, and a brief description of the premises, indorsing upon such instrument a number corresponding with the number of such entry.' Rev. St. Ill. 1845, p. 432, § 7; Laws 1847, p. 69, § 1; Laws 1869, p. 2, § 7.

All these items of evidence tended to prove the alleged mistake, and what was the correct description of the premises conveyed in the lost original deed, and were entitled to be considered, in connection with the certified copy of the record of the deed itself, as secondary evidence of its contents. In admitting and considering them the circuit court committed no error; what effect should be given to them, singly or together, was for that court, to whom the cause had been submitted, alone to determine.

We find no error in the record, and the judgment is affirmed.

title: Booth v. Tiernan/Opinion of the Court


text: Talk:Booth v. Tiernan/Opinion of the Court


text:
New Orleans Natational Banking Association v. Adams

'It is understood, as above stated, that the parties hereto do not by these presents impair, affect, or novate their existing claims, and that in case of non-payment they will be entitled to enforce the judgments which may be held by them; and furthermore, that the original mortgages and privileges remain in full force and effect, and are not hereby novated, and if need be, for the purpose of avoiding all doubts, the said privileges and mortgages are hereby recognized as operating on the said property in the proportions aforesaid, and to secure the debts stated as aforesaid with the rank above stated.'

This agreement was duly recorded in the office of the recorder of mortgages for the parish of La Fourche, on September 12, 1867.

After the making of this agreement, Cummings, without having paid the sums the payment of which was promised, thereby sold the property to a Mrs. Tucker, who conveyed an undivided half interest to one Thomas J. Daunis, and Mrs. Tucker and Daunis then executed a mortgage on the same to John I. Adams & Co., to secure certain notes made by Daunis to said firm, after which Mrs. Tucker conveyed her undivided half of the property to Daunis. Subsequently the Bank of New Orleans, now become the New Orleans National Banking Association, assuming that the agreement entered into by Cummings before Gourdain, the notary, on September 7, 1867, constituted a mortgage by which the balance found thereby to be due it from Cummings was secured, filed the bill in this case to foreclose the same. The bill made the firm of John I. Adams & Co. parties defendant, charging that said firm claimed to have a mortgage on the property covered by the alleged mortgage of the complainant, and that if said firm had any lien upon or interest in said premises it was subsequent to September 12, 1867, the date of the inscription of the complainant's alleged mortgage.

To this bill John I. Adams & Co. filed a plea and answer, in which they set up that they, being holders of certain notes secured by a mortgage on the property described in the bill of complaint, instituted a certain suit upon the same against Thomas J. Daunis, in the district court sitting for the parish of La Fourche, and obtained a writ of seizure and sale against said property, under and by virtue of which the same was seized by the sheriff, and in October, 1875, sold to John I. Adams, who claimed title thereto. They further alleged that the agreement dated September 7, 1867, set forth in the complainant's bill, being the agreement of Cummings with the Bank of New Orleans and other holders of liens upon the plantation sold to him, was not a mortgage, and if it were, it was proscribed, because it had not been reinscribed within 10 years from the date of the original inscription, on September 12, 1867, as required by the law of Louisiana.

Upon final hearing upon the pleadings and evidence, the circuit court dismissed the bill, and from its decree the complainant appealed.

''J. D. Rouse, Wm. Grant, and Thos. L. Bayne'', for appellant.

''Jos. P. Hornor and W. S. Benedict'', for appellees.

Woods, J.


text: Talk:New Orleans Natational Banking Association v. Adams


text:
New Orleans Natational Banking Association v. Adams/Opinion of the Court

It is conceded by counsel for complainant that the original mortgage made by Tucker Brothers, dated February 24, 1860, and the decree rendered thereon in favor of the Bank of New Orleans by the district court of the parish of La Fourche, in June, 1867, were both extinguished by the sale of the mortgaged premises to Cummings on September 7, 1867. But complainant insists that the agreement made by Cummings on the day last named, with the Bank of New Orleans and other parties entitled to the proceeds of the sale, constituted a mortgage, and that the same having, on September 12, 1867, been recorded in the office of the recorder of mortgages for the parish in which the lands were situate, secured them a lien and privilege on the premises from the date of said record. We are of opinion that this contention is not well founded. While it may be conceded that no precise form of words is necessary to constitute a mortgage, yet there must be a present purpose of the mortgagor to pledge his land for the payment of a sum of money, or the performance of some other act, or it cannot be construed to be a mortgage. Wilcox v. Morris, 1 Murph. 116; S.C.. 3 Amer. Dec. 678.

The agreement of September 7, 1867, does not, on its face or by its terms, profess to create a lien in favor of the Bank of New Orleans on the premises in question, but it recites that the parties thereto do not thereby impair, affect, or novate their existing claims; that the original mortgages and privileges remain in full force and are recognized as operating on said property 'to secure the debts stated as aforesaid with the rank above stated.' The agreement is not of doubtful meaning. Its purpose is to recognize the old mortgage made by Tucker Brothers in 1860, and to preserve its lien on the mortgaged premises from the date of its inscription. The contention of complainant is not that the agreement is a mortgage to secure the notes made by Tucker Brothers, but to secure from Cummings the price which he bid for the premises at the sale made to satisfy the mortgage executed by Tucker Brothers. The bill of complainant is framed upon this theory; but the fault of this theory is that the agreement does not profess, of its own force, to secure the money due from Cummings, but excludes the idea that such is its purpose by declaring that the original mortgages are recognized as operating on said property to secure the sums due from Cummings. It is perfectly clear, therefore, that the agreement of September 7, 1867, was not intended by the parties as a new mortgage to take effect at that date, but as a recognition of the old mortgage, and that its purpose was to keep it alive and to preserve its lien as of the date of its inscription. In other words, Cummings, by this agreement, undertakes to keep alive and in full force a mortgage made by another party after it had been foreclosed, the mortgaged property sold, and the mortgage and the decree rendered thereon extinguished. It was not in his power to do this. It follows that the effect of the agreement of Cummings of September 7, 1867, is simply as a contract to pay the parties entitled to it the purchase money of the premises bought by him, and creates no lien or privilege on the premises sold. In other words, it is not a mortgage. This view is supported by the decision of the supreme court of Louisiana in the case of Adams v. Daunis, 29 La. Ann. 315. This was the proceeding by Adams to cause to be erased the mortgages anterior to his purchase of the premises in question. The agreement of Cummings of September 7, 1867, was put in evidence in that case, and this court held it to be no mortgage.

It results from this view that the decree of the circuit court dismissing the bill of complaint was right, and must be affirmed.


text: Talk:New Orleans Natational Banking Association v. Adams/Opinion of the Court


text: Matthews v. Densmore

title: Matthews v. Densmore


text: Talk:Matthews v. Densmore

title: Talk:Matthews v. Densmore


text:
Matthews v. Densmore/Opinion of the Court

This is a writ of error to the supreme court of the state of Michigan. The plaintiff in error was marshal of the United States for the eastern district of that state, and under a writ of attachment from the circuit court levied on a stock of goods which was the subject of controversy. The defendants in error, who were not the parties named in the writ of attachment, sued Matthews, the marshal, in trespass, on the ground that they were the owners of the goods, and that the goods were not liable to the attachment under which the marshal acted. To this action the defendant pleaded the general issue, with notice that he should rely on the writ of attachment, and should prove that the goods were subject to be seized under it. When the defendant, who was admitted to be the marshal, as he had alleged, offered in evidence the writ of attachment, the court refused to receive it, on the ground that it did not appear by the affidavit on which it was issued that the debt claimed by the plaintiff in the writ was due. As the plaintiffs in the present action were in possession of the goods when they were seized under the writ, this ruling of the court was decisive of the case, for, however fraudulent might have been that possession, the defendant here, in the absence of any valid writ, was a mere trespasser, and could have no right to contest the lawfulness of that possession. The whole case turned, therefore, on the trial in the local state court, as it did on the writ of error in the supreme court, which affirmed the judgment of the lower court, on the question of the validity of the writ of attachment in the hands of the marshal, and its sufficiency to protect him if the property seized under it was liable to be attached in that suit.

Don M. Dickinson and Julien G. Dickinson, for plaintiff in error.

O. M. Barnes, for defendants in error.

It is to be observed that this does not present a case where the validity of the writ is assailed by any proceeding in the court which issued it, either by a motion to set it aside as improvidently issued, or to discharge the levy and return the property, or by appeal to a higher court of the same jurisdiction to correct the error of issuing it on in insufficient affidavit, but it is a proceeding in a court of another jurisdiction to subject an officer of the United States to damages as a trespasser for executing a writ of the court to which he owes obedience.

The supreme court of Michigan, whose judgment we are reviewing, says of this writ, in answer to the argument that, being regular on its face, it should protect the officer:

'No doubt the writ in this case must be regarded as fair on     its face. Under the general law relating to attachments,     where the suit is begun by that writ, the affidavit is      attached to and in legal effect becomes a part of it; and if      then the affidavit is void the writ is void also. But under     an amendatory statute passed in 1867, which permits the issue      of the writ in pending suits, the affidavit is filed with the      clerk, and the officer of whom the writ is issued is supposed      to know nothing of it. Comp. Laws, § 643. It was under the     amendatory statute that the writ in this case was issued, and      an inspection of its provisions shows that the writ contains      all the recitals that the statute requires.' 5 N. W. Rep. 671.

Here, then, we have a writ which is fair on its face, issued from a court which had jurisdiction both of the parties and of the subject-matter of the suit in which it was issued, and which was issued in the regular course of judicial proceeding by that court, and which the officer of the court in whose hands it was placed is bound to obey, and yet by the decision of the Michigan court it affords him no protection when he is sued there for executing its mandate. We do not think this is law. Certainly it is not the law which this court applies to the processes and officers of the courts of the United States, and of other courts of general jurisdiction.

It had been supposed by many sound lawyers, after the case of Freeman v. Howe, 24 How. 450, that no action could be sustained against a marshal of the United States in any case in a state court where he acted under a writ of the former court; but in Buck v. Colbath, 3 Wall. 334, where this class of cases was fully considered, it was held that though the writ be a valid writ, if the officer attempt to seize property under it which does not belong to the debtor against whom the writ issued, the officer is liable for the wrongful seizure of property not subject to the writ.

In the present case the officer is sued for that very thing, and offered to prove that the property attached was the property of the defendant in the attachment, and was liable to be seized under that writ, and that plaintiff in the present suit had no valid title to it, at least no title paramount to the mandate of the writ, but the state court refused to permit him to make that proof. The ground of this ruling is that because there is a defect in the affidavit on which the attachment issued, that writ is absolutely void, and the officer who faithfully executed its commands stands naked before his adversary as a willful trespasser. It would seem that the mandatory process of a writ of general jurisdiction, with authority to issue such a process and to compel its enforcement at the hands of its own officer, in a case where the cause of action and the parties to it are before the court and are within its jurisdiction, cannot be absolutely void by reason of errors or mistakes in the preliminary acts which precede its issue. It may be voidable. It may be avoided by proper proceedings in that court. But when in the hands of the officer who is bound to obey it, with the seal of the court and everything else on its face to give it validity, if he did obey it, and is guilty of no error in this act of obedience, it must stand as his sufficient protection for that act in all other courts.

The precise point as to the validity of this writ of attachment was under consideration in this court in the case of Cooper v. Reynolds, 10 Wall. 308, in which the effect of an insufficient affidavit for a writ of attachment was set up to defeat the title to land acquired by a sale under the attachment. The case has been often quoted since, and is conclusive in the federal courts in regard to the validity of their own process when collaterally assailed, as in the present case.

The court, after discussing the nature of the jurisdiction in cases of attachment, their relation to suits in rem and in per- sonam the court in that class of cases depend? answers it thus:

'It seems to us that the seizure of the property, or that     which in this case is the same in effect, the levy of the      writ of attachment on it, is the one essential requisite to      jurisdiction, as it unquestionably is in a proceeding purely      in rem. Without this the court can proceed no further; with     it the court can proceed to subject that property to the      demand of plaintiff. If the writ of attachment is the lawful     writ of the court, issued in proper form under the seal of      the court, and if it is by the proper office levied upon      property liable to the attachment, when such writ is returned      into the court the power of the court over the res is      established. The affidavit is the preliminary to issuing the     writ. It may be a defective affidavit, or possibly the     officer whose duty it is to issue the writ may have failed in      some manner to observe all the requisite formalities, but the      writ being issued and levied, the affidavit has served its      purpose; and though a revising court might see in some such      departure from the strict direction of the statute sufficient      error to reverse the judgment, we are unable to see how that      can deprive the court of the jurisdiction acquired by the      writ levied upon the defendant's property.'

See Voorhies v. Bank of U.S. 10 Pet. 449; Grignon's Lessee v. Astor, 2 How. 319.

If in a case where the title to land is to be divested by a proceeding in which its owner is not within the jurisdiction, and is never served with process nor makes any appearance, the writ on which the whole matter depends is held valid, though there be no sufficient affidavit to support it, how much more should the writ be held to protect the officer in a case where the defendant is in court and makes no objection to it, nor seeks to set aside to correct it, and where the court before it issues the writ has jurisdiction of the parties to the suit?

We think that when the writ is offered in a collateral suit against the officer who executed it as evidence of the authority of the court to command him to attach the property of defendant in that suit, it is not void, though it might be avoided on a proper proceeding; and in the contest for the value of the goods seized, with a stranger who claims them, it is sufficient to raise the issue of the liability of those goods to the exigency of the writ.

The judgment of the supreme court of Michigan is reversed, with directions for further proceedings in conformity to this opinion.


text: Talk:Matthews v. Densmore/Opinion of the Court


text:
Board of Liquidation of the City Debt v. Louisville Nothern Railroad

Henry C. Miller and R. T. Merrick, for appellant.

''Thos. L. Bayne and John L. Cadwalader'', for appellee.

WAITE, C. J.


text: Talk:Board of Liquidation of the City Debt v. Louisville Nothern Railroad


text:
Board of Liquidation of the City Debt v. Louisville Nothern Railroad/Opinion of the Court

Prior to the year 1820 disputes had arisen between the city of New Orleans and certain proprietors of riparian estates as to the ownership of the batture or alluvion in front of the city on the Mississippi river. In compromise of these disputes the proprietors surrendered to the city all their claims to property within certain boundaries.

In 1869 the legislature of Louisiana undertook, by act No. 26 of 1869, to grant to the New Orleans, Mobile & Chattanooga Railroad Company, now by change of name the New Orleans, Mobile & Texas Railroad Company, 'the right to locate, construct, maintain, and use a passenger depot, with offices and apartments suitable for its legitimate business, upon that part or portion of the levee or streets and grounds in the city of New Orleans bounded by Canal, Delta, and Poydras streets, and a line parallel to and 150 feet easterly from Delta street; and for the construction of a freight depot, and for other purposes of its legitimate business, to inclose and occupy the blocks of grounds, parts of streets, and portion of levee in said city bounded by Girod, Water, and Calliope streets and a line parallel to and 290 feet easterly from Water street, provided said company shall not inclose or occupy that part or portion of the blocks of ground within said last limits which is the private property of individuals until said company has acquired the title thereto; and said company shall thereafter, if requested by said city, extend the wharf in front thereof equal with the present wharf in front of the northerly corner of the outer block within said limits, recently sold by said city and now owned by said company.

The validity of this act was disputed by the city, and suits were brought by the company in a state court to establish the grant. These suits resulted in judgments, which, as the company claimed, confirmed its title. The city denied that such was the effect of the judgments, and attempted to tear down and destroy the fences and other structures of the company. Thereupon the company, on the eighth of July, 1874, brought another suit to enjoin the city. This suit resulted in a decree by the circuit court of the United States for the district of Louisiana on the eleventh of June, 1878, allowing the injunction prayed for. From that decree the city, on the thirtieth of July, 1878, appealed to this court, and the appeal was docketed on the sixteenth of December following.

During the pendency of the suit in this court the legislature of Louisiana passed act No. 133 of 1880, creating a board of liquidation of the city debt, 'for the purpose of liquidating, reducing, and consolidating the debt of the city of New Orleans.' By this act it was provided that the board thus created should 'have exclusive control and direction of all matters relating to the bonded debt of the city of New Orleans,' and authority to issue new bonds of the city, to be exchanged for old at the rate of fifty cents of new for one dollar of old. Section 5 of that act is as follows:

'Sec. 5. That it shall be the duty of the city authorities,     as soon as possible, after the organization of the board of      liquidation of the city debt, to turn over and transfer to      the said board all the property of the city of New Orleans,      both real and personal, not dedicated to public use; and the      board of liquidation shall be, and is hereby, empowered and      authorized to dispose of said property on such terms and      conditions as may be deemed favorable; the proceeds of such      sale or sales to be deposited with the fiscal agents of the      board at credit of 'city debt fund."

No new bonds were ever issued by the board of liquidation under his authority, and the city never actually transferred to the board any of the batture property. Neither did the board ever assume control of such property. A reason given for this by the president of the board, and suggested by the counsel for the appellant in his argument, is that fears were entertained that if property not dedicated to public uses should be actually separated and set apart from that which was, judgment creditors of the city might levy their executions and subject such as was thus shown not to be required for public use to the payment of their judgments.

On the twenty-third of June, 1882, act No. 20 of 1882 was passed by the legislature of Louisiana, 'to incorporate the city of New Orleans, provide for the government and administration of the affairs thereof, and to repeal all acts inconsistent and in conflict with its provisions.' Sections 8, 28, and 78 of this act are as follows:

'Sec. 8. The council shall also have power * *  * to authorize      the use of streets for horse and steam railroads, and to      regulate the same; to require and compel all lines of railway      or tramway in any one street to run on and use one and the      same track and turn-table; to compel them to keep conductors      on their cars, and compel all such companies to keep in      repair the street bridges and crossings through or over which      their cars run; to lay off and sell in lots or squares so      much of the batture, from time to time, as may not be      required for public purposes; but the right of accretion or      to future batture shall never be sold.

'Sec. 28. That all the rights, titles, and interest of the     city of New Orleans, as now existing, in and to all lands,      tenements, hereditaments, bridges, ferries, streets, roads,      wharves, markets, stalls, levees, and landing places,      buildings, and other property of whatever description, and      wherever situated, and with all goods, chattels, moneys,      effects, debts, dues, demands, bonds, obligations, judgments      and judgment liens, actions and rights of actions, books,      accounts, and vouchers, be, and they are hereby, vested in      the city of New Orleans, as incorporated by this act.

'Sec. 78. All laws in conflict, inconsistent, or contrary to     the provisions of this act, be, and the same are hereby,      repealed.'

By act No. 58 of 1882, passed June 30, 1882, entitled 'An act to authorize the city of New Orleans to renew and extend payment of her outstanding bonds, other than premium bonds, to provide the rate of interest on the bonds as reduced or extended, and authorize the levy of a tax to pay the same,' the board of liquidation was 'authorized and empowered to extend the bonded indebtedness of said city, other than premium bonds, outstanding at the passage and promulgation of this act, for the period of forty years from January 1, 1883, at a rate of interest not exceeding six per cent.'

On the fifth of July, 1882, act No. 81 of 1882 was passed and approved, a copy of which is as follows:

'Act No. 81 of 1882, entitled an act to authorize the city of     New Orleans, in the sale or lease of franchise or right of      way for street railroads, or other privilege, to apply the price paid      for the same in the performance of works of public      improvements of a permanent character, such as paving      streets, embellishing parks, etc.

'Whereas, notice as required by article 48 of the     constitution has been given of the intention to apply for the      passage of this act; therefore,

'Section 1. Be it enacted by the general assembly of the     state of Louisiana, that hereafter, whenever the city of New      Orleans, through the proper authorities, shall contract with      private corporations or individuals for the sale or lease of      public privileges or franchises, such as the rights of way      for street railroads, or for other public undertakings within      her legal power and control, the price paid for the sale or      lease of public privileges or franchises shall be applied by      said city in the performance of works of public improvement      of a permanent character, such as paving streets,      embellishing park, etc.

'Sec. 2. Be it further enacted, that all laws or parts of     laws, and especially so much of section 10 of act No. 31,      acts of 1876, known as the premium-bond act, and by section 5      of act No. 133, acts of 1880, as may be in conflict herewith,      be, and the same are hereby, repealed.'

Such being the legislative authority of the different departments of the city government, a resolution was passed by the city council on the eleventh of October, 1882, accepting a proposition of the railroad company to compromise and settle all the matters in controversy in the suit pending in this court on appeal, by which the company was to pay the city $40,000, and the city was to dismiss its appeal and acquiesce in the decree of the circuit court. The negotiations which resulted in this compromise began as early as August 1, 1882, when the council appointed a committee to confer with the railroad company on the subject. The money stipulated for in the compromise was paid on the eleventh of October, 1882, and on the same day an agreement of compromise, dismissing the appeal and acquiescing in the decree appealed from, was duly signed and executed by the mayor of the city under the authority of the council. On the next day the board of liquidation notified the city authorities that it claimed the fund realized from this settlement. On the thirteenth of October, a resolution of the board was adopted to the effect 'that the $40,000 now in the hands of the administrator of finance be enjoined, and the attorney be directed to institute legal proceedings at once.' On the seventeenth of October, the resolution of the thirteenth was so far modified as 'to authorize the attorney of the board to take such steps as, in his judgment, are requisite to set aside the agreement of compromise; * *  * to oppose the dismissal of the appeal, and to hold the fund decreed from said compromise so as to restore it if the compromise is annulled, or to claim it for the board if said compromise becomes a finality.'

On the tenth of October, 1882, the suit pending in this court was continued at the request of the parties, but at a later day in the term the railroad company appeared, and presenting a stipulation for the dismissal of the appeal, signed by the city attorney of New Orleans, pursuant to the terms of the compromise, asked to have the appropriate order entered upon that stipulation. Thereupon the board of liquidation came and resisted the entry of any such order on the ground that during the pendency of the appeal authority over the subject-matter of the controversy had been transferred from the city council to the board, and that the compromise which had been effected was not binding. The board also asked leave to prosecute the appeal in the name of the city. It was conceded that the city council made the compromise which was claimed, and that the railroad company was entitled to a dismissal of the appeal if the council had authority to do what was done, and the compromise was fair. This court thought the dispute as to the authority of the council presented questions too important to be settled summarily on motions, and ordered the motions to be continued until the present term, when the appeal would be dismissed in accordance with the stipulation, unless the board should begin and prosecute without unnecessary delay, in some court of competent jurisdiction, an appropriate suit to set aside the compromise. This suit was brought for that purpose, and the circuit court for the eastern district of Louisiana, on full consideration, entered a decree dismissing the bill. To reverse that decree this appeal was taken, and the single question to be decided is whether, upon these facts, the board of liquidation is entitled to the relief it has prayed for.

There is no pretense of fraud either on the part of the city council or the railroad company. So far as appears the negotiations were carried on by both parties openly and without any attempt at concealment. The board of liquidation does not even allege that it was ignorant of what was being done.

The whole case, therefore, turns on the legislative authority of the city council to bind the city by a compromise of the suit, and about this we have no doubt. Under act No. 133 of 1880 the city authorities were only required to turn over to the board such property as was not dedicated to public use. It was substantially conceded on the argument that if the railroad was removed, the property between Poydras and Canal streets would immediately be put to such use, and it is by no means certain that this may not be true of some or all the rest. All except that between Poydras and Canal streets has been formed into squares, but the control of it was never assumed by the board. The fact that fears were entertained that if such control should be assumed the property would be levied on and sold under executions against the city, is very persuasive evidence to show that it was apparently property dedicated to public use, though occupied to some extent by the railroad company for its tracks, and passenger and freight stations.

But, however this may be, we are entirely satisfied that under the legislation of 1882 the city council had full authority to bind the city by a compromise of the pending suit. Confessedly, no bonds were ever issued, or obligations incurred, by the board of liquidation under act No. 133 of 1880, and on the twenty-third of June, 1882, the city council was, in express terms, authorized to lay off and sell, in lots or squares, so much of the batture, from time to time, as might not be required for public purposes. Then, on the fifth of July, only a few days later, the city was authorized, through its proper authorities, to contract with private corporations for the sale or lease of public privileges or franchises, such as rights of way for street railroads, or for other public undertakings within her legal power and control; the price paid to be applied by the city 'in the performance of works of public improvements of a permanent character.' All this is entirely inconsistent with the provisions of section 5 of act No. 133 of 1880; at least, so far as the control and disposition of batture property are concerned. The repealing sections of these acts, therefore, operated directly on the powers of the board over the subject-matter of this compromise, and left the city council free to act in the premises.

It must be borne in mind that all the legislation involved relates to the distribution of the powers of the city government among the different departments. As the question is presented to us no contract rights need protection. Whether the board of liquidation is a corporation that can sue in its own name or be sued is not at all important, for, even if it be a corporation, it is in effect nothing more than one of the departments of the city government charged with the duty of controlling and directing matters relating to the bonded debt. Even though the effect of section 5 of the act of 1880 was to pledge the property of the city not dedicated to public use to secure the payment of the public debt, there was nothing to prevent the legislature from revoking the pledge until contract rights had in some way intervened. It is agreed that no new bonds were ever issued by the board under the authority or upon the faith of the act of 1880, before the new charter was granted, and act No. 81 of 1882 was passed before anything was done in the way of extending or renewing bonds under act No. 58 of the same year.

The result of the whole legislation is, therefore, that in 1880 the board of liquidation was created and given power to dispose of and sell the property of the city not dedicated to public uses, and out of the proceeds pay the public debt; but, before any new rights had accrued under this power, the control and disposition of batture property not needed for public purposes was withdrawn from the board and given to the city council, and the proceeds of the sales and leases of public privileges and franchises were appropriated to the payment of the expenses of public improvements which were permanent in their character. Whether the money realized from this compromise is to be applied to the payment of the public debt or to make permanent improvements, we do not undertake to decide, but that the compromise itself was within the departmental authority of the city council, and not subject to the control of the board of liquidation, is to our minds clear.

It follows that the circuit court was right in refusing to set aside the compromise, and its decree to that effect is affirmed.


text: Talk:Board of Liquidation of the City Debt v. Louisville Nothern Railroad/Opinion of the Court


text:
County Court of Knox County Missouri v. United States

v.

HUIDEKOPER, Relator.

BAKER, Treasurer, etc.,

v. UNITED STATES ex rel. DAVIS.

November 12, 1883.

James Carr and ''Geo. G. Reynolds'', for Knox county, and Baker, treasurer.

James Carr, for Macon county.

T. K. Skinker, for Harshman.

''Geo. H. Shields'', for Davis and Wells & French Co.

Joseph Shippin, for Huidekoper.

WAITE, C. J.


text: Talk:County Court of Knox County Missouri v. United States


text:
County Court of Knox County Missouri v. United States/Opinion of the Court

In U.S. v. County of Clark, 96 U.S. 211, it was decided at the October term, 1877, that bonds of the character of those involved in the present suits were debts of the county, and that for any balance remaining due on account of principal or interest after the application of the proceeds of the special tax of one-twentieth of 1 per cent. the holders were entitled to payment out of the general funds of the county. This, we all agree, means that the payment of this balance is demandable out of funds raised by taxation for ordinary county uses. The mandamus applied for in that case was one 'requiring the county court and the justices thereof to direct the clerk of the county to draw a warrant on the county treasurer for the balance of the judgment remaining unpaid, so that he might be enabled, on its presentation, to have it paid in its order out of the county treasury,' and there was no fund out of which the payment could be made, except that raised by taxation for ordinary county uses. By the judgment of this court, such a mandamus was awarded. At the next term, in 1878, the point thus decided was explicitly stated in U.S. v. County of Macon, 99 U.S. 589; and in Macon Co. v. Huidekoper, Id. 592, a majority of the court adhered to the decision, and ordered judgment accordingly. It was conceded on the argument that all the judgments now under consideration must be affirmed, unless these cases are overruled. This a majority of the court are unwilling to do, and judgments of affirmance are consequently ordered.


text: Talk:County Court of Knox County Missouri v. United States/Opinion of the Court


text:
Ex parte Mead Executrix

Petition for Mandamus. F. W. Hackett and H. J. Scudder, for petitioner.

WAITE, C. J.

title: Ex parte Mead Executrix


text: Talk:Ex parte Mead Executrix

title: Talk:Ex parte Mead Executrix


text:
Ex parte Mead Executrix/Opinion of the Court

James C. Mead, in his life-time, filed with a register in bankruptcy proof of his claim against the estate of Abraham Mead, a bankrupt. Mary E. Travis, a creditor of the bankrupt, applied for a re-examination, and, upon consideration, the claim was rejected by the district court. Pending the proceedings James C. Mead died, and the petitioner, his executrix, appeared in his stead. After the rejection of the claim the executrix took an appeal to the circuit court, and did all that was necessary to perfect such an appeal, except giving notice to the assignee within 10 days after the entry of the decision. This she did not do, but she did give notice to the objecting creditor within the prescribed time. The circuit court, on the application of the assignee, refused to entertain the appeal because of the failure of notice to him. The petitioner now seeks by mandamus to require the circuit court to take the case and proceed therewith.

By section 4980 of the Revised Statutes 'appeals may be taken from the district to the circuit courts in all cases in equity' arising under the bankrupt act; * *  * 'and any supposed creditor, whose claim is wholly or in part rejected, or an assignee who is dissatisfied with the allowance of a claim, may appeal from the district court to the circuit court for the same district;' but by section 4981 no such appeal can be allowed, unless, among other things, notice thereof be give 'to the assignee or creditor, as the case may be, or to the defeated party in equity, within 10 days after the entry of the decree or decision appealed from.'

If a supposed creditor takes an appeal from an order rejecting his claim he must, under the provisions of section 4984, file in the clerk's office of the circuit court 'a statement in writing of his claim, setting forth the same, substantially, as in a declaration for the same cause of action at law, and the assignee shall plead or answer thereto in like manner, and like proceedings shall be thereupon had in the pleadings, trial, and determination of the cause, as in actions at law commenced and prosecuted in the usual manner in the courts of the United States.'

In Wood v. Bailey, 21 Wall. 640, it was decided that the omission to give notice to an assignee of an appeal from a decree in his favor in a suit in equity was fatal to the appeal. The effect of the ruling in that case is that the statute makes the notice within the prescribed time 'a condition of the right of appeal' under section 4980. That seems to us conclusive of the present case. Proceedings under section 5081 for the re-examination of a claim filed against a bankrupt's estate are in the nature of a suit against the assignee for the establishment of the claim. A creditor may move for the re-examination, and, under general order in bankruptcy No. 34, may be required to form the issue which is to be certified to the district court for determination, but the assignee alone can appeal from an order of allowance; and if the supposed creditor appeals, the assignee must defend in the circuit court, where the proceedings are against him. Hence the necessity for notice to him in such cases; and, in our opinion, the words 'to the assignee or creditor, as the case may be,' in section 4981, mean to the assignee if the appeal is by the supposed creditor, and to the supposed creditor if it is by the assignee.

As upon the petitioner's own showing the circuit court properly refused to entertain his appeal, the rule asked for is denied and the petition dismissed.


text:
Ex parte Royall

 * Ex parte Royall (112 U.S. 181), ( 28 L.Ed.    690 ), (   5 S.Ct.   98 )
 * Ex parte Royall (117 U.S. 241), ( 29 L.Ed.    868 ), (   6 S.Ct.  734 )
 * Ex parte Royall (117 U.S. 254), ( 29 L.Ed.    872 ), (   6 S.Ct.  742 )
 * Ex parte Royall (125 U.S. 696), ( 31 L.Ed.    855 ), (   8 S.Ct. 1392 )

* is William L. Royall

title: Ex parte Royall


text:
Alabama Gold Life Insurance Company v. Nichols

P. Phillips and W. Hallett Phillips, for plaintiff in error.

''Jos. H. Bradley and A. B. Duvall'', for defendant in error.

WAITE, C. J.


text: Talk:Alabama Gold Life Insurance Company v. Nichols


text:
Alabama Gold Life Insurance Company v. Nichols/Opinion of the Court

In this case a verdict was rendered against the plaintiff in error for $6,610, and a judgment entered thereon December 9, 1879. In the verdict was included, for damages, $600; attorney's fees, $500; and interest, $510,-in all, $1,610. The next day, December 10, 1879, the defendants in error appeared in open court and 'entered a remittitur' of these amounts, 'leaving the amount of said judgment to be for the amount of five thousand dollars and costs of suit.' Upon this being done a new judgment was entered 'that the plaintiffs have and recover from said defendant the sum of five thousand dollars, and also all costs about this suit incurred as of the date of said judgment, and have execution therefor, instead of the sum of six thousand and six hundred and ten dollars, and also all costs about this suit incurred, as in said judgment is recited.' This writ of error was brought on the eighth of January, 1880, to reverse the judgment so entered. The defendant in error now moves to dismiss the writ because the value of the matter in dispute does not exceed $5,000. The judgment as it stands is for $5,000 and no more. The entry of the tenth of December is equivalent to setting aside the judgment of the ninth and entering a new one for the amount remaining due after deducting from the verdict the sum remitted in open court. There was nothing to prevent this being done during the term and before error brought. The judgment of the tenth is therefore the final judgment in the action.

In Thompson v. Butler, 95 U.S. 696, it was said:'Undoubtedly the trial court may refuse to permit a verdict     to be reduced by a plaintiff upon his own motion; and if the      object of the reduction is to deprive an appellate court of      its jurisdiction in a meritorious case, it is to be presumed      the trial court will not allow it to be done. If, however,     the reduction is permitted, the errors in the record will be      shut out from our reexamination in cases where our      jurisdiction depends on the amount in controversy.'

Articles 1351 and 1352 of the Revised Statutes of Texas are as follows:

'Art. 1351. Any party in whose favor a verdict has been     rendered may in open court remit any part of such verdict,      and such remitter shall be noted on the docket and entered in      the minutes, and execution shall thereafter issue for the      balance only of such judgment, after deducting the amount      remitted.

'Art. 1352. Any person in whose favor a judgment has been     rendered may in open court remit any part of such judgment,      and such remitter shall be noted on the docket and entered in      the minutes, and execution shall thereafter issue for the      balance only of such judgment, after deducting the amount      remitted.' Rev. St. Texas, 1879, pp. 211, 212.

Without deciding what effect these statutes will have on our jurisdiction in cases coming up from that state, if the amount is remitted after judgment without any action thereon by the court other than noting on the docket and entering on the minutes what has been done, we are of opinion that it is within the discretion of a court of the United States, sitting in that state, if a plaintiff appears in open court and remits a part of a verdict in his favor, to make the proper reduction and enter judgment accordingly. That was the effect of what was done in this case, and the rule established in Thompson v. Butler, supra, applies.

The motion to dismiss is therefore granted.


text: Talk:Alabama Gold Life Insurance Company v. Nichols/Opinion of the Court


text:
Lamar v. McCay

E. N. Dickerson, for appellant.

S. Shellabarger, J. M. Wilson, and J. K. Herbert, for appellee.

BLATCHFORD, J.

title: Lamar v. McCay


text: Talk:Lamar v. McCay

title: Talk:Lamar v. McCay


text:
Lamar v. McCay/Opinion of the Court

The appellee, who was the plaintiff below, seeks to recover from the executor of Gazaway B. Lamar a sum of money, on the allegation that the testator received that money from the United States as the proceeds of 136 bales of upland cotton which belonged to the assignor of the plaintiff. Lamar recovered in the court of claims, on the first of June, 1873, a judgment against the United States for $579,343.51, as the proceeds of 3,184 bales of upland cotton and 91 bales of Sea island cotton, which Lamar owned in Savannah, Georgia, in December, 1864, at the time that city was captured by the military forces of the United States, and all of which bales were captured by said forces and shipped to the agent of the treasury department at New York, and there sold by him, and the proceeds paid into the treasury of the United States. The amount of the judgment was paid to Lamar in April, 1874. This bill was filed in August, 1879. It alleges that the 136 bales were shipped by the plaintiff's assignor to C. A. L. Lamar, now deceased, (the son of G. B. Lamar,) who received and held them as the property of such assignor; that, after the death of C. A. L. Lamar, G. B. Lamar came into possession of the 136 bales and retained such possession as the agent and fiduciary of such assignor; that the suit in the court of claims was brought for the recovery of the 136 bales, with other cotton; and that the proceeds of the 136 bales were included in said judgment, and were received by G. B. Lamar. The circuit court entered a decree in favor of the plaintiff for the agreed amount of the avails of the 136 bales, and the defendant has appealed to this court.

On the question as to whether the 136 bales were embraced in Lamar's recovery, the circuit court found that they were. We are not able to concur in this conclusion. The question is one altogether of fact. It has involved the examination of the pleadings and proofs and other proceedings in the suit in the court of claims, besides a consideration of the effect of the provisions in the will of G. B. Lamar, and of an advertisement he published, and of entries he made in his books, in regard to the 136 bales, after he had received the amount of the judgment. It would not conduce to any good end to review the propositions discussed by the respective counsel, consisting largely of arithmetical calculations, in elucidation of their respective contentions. It must suffice to say that the record and proceedings of the court of claims do not show that the 136 bales were embraced in the final petition of G. B. Lamar in that court, or in the 3,275 bales for which judgment was awarded. There is not in the proofs before the court of claims any testimony in regard to the 136 bales. It may very well be that they passed into the possession of G. B. Lamar, and were seized and sent to New York and sold, and that their proceeds are now in the treasury. But the evidence before the court of claims was entirely sufficient to show that G. B. Lamar was entitled to recover the proceeds of the 3,275 bales for which he did recover, without including the 136. Every bale of the 3,275 is traced, in that evidence, into the hands of G. B. Lamar, and identified as cotton which he had purchased and paid for, as a buyer of it. The 136 bales were no part of it.

The will was made in September, 1872, nearly eight months before the final petition was filed in the court of claims. That petition omitted to mention the 136 bales, they having been specially mentioned in the amended petition filed April 16, 1872, which was the petition pending when the will was made. The final petition states that it is filed 'in lieu of and as a substitute for all other petitions and amendments thereto heretofore filed in this cause.'

The 136 bales, with other cotton, having been taken from the possession of G. B. Lamar and sold, he made, as he states in his will, 'claims upon the government of the United States for payment for such cotton,' which claims, the will says, ' are now before the court of claims, and also before the committee on claims of the congress of the United States.' The will directs his executors to press the claims, and gives a list of the cotton, and specifies, among it, the 136 bales, as 'belonging to a gentleman in Richmond, Virginia,' and as being cotton on which C. A. L. Lamar made advances. G. B. Lamar did, in his amended petition filed in the court of claims, April 16, 1872, make a specific claim for the proceeds of that cotton. But he dropped that claim in his final petition, and had no recovery for it. He did not receive his money till more than 10 months after he obtained judgment. The impression was on his mind that he had recovered for the 136 bales, and, under that erroneous belief, he advertised in a newspaper in Richmond for the rightful owner of the cotton to come forward and prove his ownership, and pay advances and expenses of collection, and receive the balance due. The advertisement stated that the cotton was placed in the possession of C. A. L. Lamar, and stored in Lamar's warehouse; that advances were made on it, and there were charges for storage, compressing, and cartage; that the cotton was taken by the United States; and that he had received payment for it from the treasury. He also, in April, 1874, made entries in his books stating that he had received so much money from the United States for the 136 bales, 'of which the owner is unknown, and is advertised for in Richmond, Virginia.'

The evidence derived from the advertisement, and the entries in the books, is of no force except to show Mr. Lamar's own belief at the time, and cannot avail to control the internal evidence afforded by the record from the court of claims, that the 136 bales were not included in the recovery in that court.

This conclusion makes it unnecessary to consider any of the other questions raised. The decree of the circuit court is reversed, and the case is remanded to that court, with direction to dismiss the bill of complaint.

title: Lamar v. McCay/Opinion of the Court


text: Talk:Lamar v. McCay/Opinion of the Court


text:
Arnson v. Murphy (109 U.S. 238)

Lewis Sanders, for plaintiff in error.

''Sol. Gen. Phillips'', for defendant in error.

MATTHEWS, J.

title: Arnson v. Murphy (109 U.S. 238)


text: Talk:Arnson v. Murphy (109 U.S. 238)

title: Talk:Arnson v. Murphy (109 U.S. 238)


text:
Arnson v. Murphy (109 U.S. 238)/Opinion of the Court

This action was brought May 8, 1879, by the plaintiffs in error, in the supreme court of New York, to recover money alleged to have been illegally exacted by the collector for customs duties, and was removed by the defendant by writ of certiorari to the circuit court of the United States for that district. On the trial it appeared that the several amounts alleged to have been illegally exacted were paid under protest, duly made, on various dates from April 26, 1871, to November 29, * 871; that within 90 days from the date of each payment an appeal from the decision of the collector had been duly taken to the secretary of the treasury, and that no decision by that officer, in any of the cases, had been rendered prior to the commencement of this action; and that this suit was not brought until after 90 days had elapsed from the date of the latest appeal, and not until after the lapse of more than six years from the expiration of that period. The defendant pleaded in bar, besides other defenses, that the cause of action sued upon did not accrue within six years before the commencement thereof, that being the limitation prescribed by the statute of New York, then in force, for actions upon contracts, obligations, or liabilities, express or implied, other than those upon judgments or decrees of courts of the United States, or of courts of any state or territory within the United States, and those upon sealed instruments. The court thereupon directed a verdict in favor of the defendant, to which exception was duly taken, and for that alleged error the judgment thereon is now brought into review.

The cause of action arose under the act of June 30, 1864, (13 St. 202,) the fourteenth section of which is now section 2931 of the Revised Statutes. It distinctly provides that on the entry of any merchandise, the decision of the collector of customs at the port of importation and entry, as to the rate and amount of duties to be paid on such merchandise, and the dutiable costs and charges thereon, shall be final and conclusive against all persons interested therein, unless the owner, importer, consignee, or agent of the merchandise shall, within 10 days after the ascertainment and liquidation of the duties by the proper officers of the customs, give notice in writing to the collector on each entry, if dissatisfied with his decision, setting forth therein, distinctly and specifically, the grounds of his objections thereto, and shall, within 30 days after the date of such ascertainment and liquidation, appeal therefrom to the secretary of the treasury. The decision of the secretary on such appeal shall be final and conclusive, and such merchandise shall be liable to duty accordingly, unless suit shall be brought within 90 days after the decision of the secretary of the treasury on such appeal, for any duties which shall have been paid before the date of such decision on such merchandise, or costs or charges, or within 90 days after the payment of duties paid after the decision of the secretary. 'No suit shall be maintained in any court for the recovery of any duties alleged to have been erroneously or illegally exacted, until the decision of the secretary of the treasury shall have been first had on such appeal, unless the decision of the secretary shall be delayed more than ninety days from the date of such appeal in case of an entry at any port east of the Rocky mountains, or more than five months in case of an entry west of those mountains.'

The common-law right of action to recover back money illegally exacted by a collector of customs as duties upon imported merchandise, rested upon the implied promise of the collector to refund money which he had received as the agent of the government, but which the law had not authorized him to exact; which had been unwillingly paid, and which, before payment to his principal, he had been notified he would be required to repay; and involved a corresponding right on his part to withhold from the government, as an indemnity, the fund in dispute. The manifest public inconveniences resulting from this situation induced congress, by the act of March 3, 1839, c. 82, (5 St. 348, § 2,) to alter the relation between these officers and the United States by requiring them peremptorily to pay into the treasury all moneys received by them officially, without regard to claims for erroneous and illegal exactions. It was provided, however, therein, that the secretary of the treasury himself, on being satisfied that, in any case of duties paid under protest, more money had been paid to the collector than the law required, should refund the excess out of the treasury. The legal effect of this enactment, as was held in Cary v. Curtis, 3 How. 236, was to take from the claimant all right of action against the collector by removing the ground on which the implied promise rested. Congress, being in session at the time that decision was announced, passed the explanatory act of February 26, 1845, which, by legislative construction of the act of 1839, restored to the claimant his right of action against the collector, but required the protest to be made in writing at the time of payment of the duties alleged to have been illegally exacted, and took from the secretary of the treasury the authority to refund conferred by the act of 1839, (5 St. 349, 727.) This act of 1845 was in force, as was decided in Barney v. Watson, 92 U.S. 449, until repealed by implication by the act of June 30, 1864, (13 St. 214.) The fourteenth section of the act last mentioned is, as already cited, in substance, the present section 2931 of the Revised Statutes, providing for the appeal to the secretary of the treasury, and the sixteenth section, being the present section 3012 1/2, Rev. St., restores to the secretary of the treasury the authority to refund moneys paid under protest and appeal, which he shall be satisfied were illegally exacted, originally conferred upon him by the act of 1839. And the provision of the act of 1845, which construed the act of 1839 so as to restore to the claimant the right of action, judicially declared in Cary v. Curtis, supra, to have been taken away by the latter, now appears as section 3011 of the Revised Statutes. It was in force when the present action was brought, and is as follows:

'Any person who shall have made payment, under protest and in     order to obtain possession of merchandise imported for him,      to any collector or person acting as collector of any money      as duties, when such amount of duties was not, or was not      wholly, authorized by law, may maintain an action in the      nature of an action at law, which shall be triable by jury,      to ascertain the validity of such demand and payment of      duties, and to recover back any excess so paid. But no     recovery shall be allowed in such action unless a protest and      appeal shall have been taken as prescribed in section      twenty-nine hundred and thirty-one.'

By reference to the fourteenth section of the act of 1864, now section 2931, Rev. St., it will appear that the written protest must be made within 10 days, and the appeal to the secretary of the treasury within 30 days, from the ascertainment and liquidation of the duties by the proper officer. The decision of the secretary on such appeal shall be final and conclusive, unless, within 90 days after it is made, suit is brought; and no suit shall, in the mean time, pending the appeal, be brought unless the decision by the secretary shall be delayed more than 90 days from the date of appeal, if arising upon an entry at any port east of the Rocky mountains.

It appears to us quite plain, from the reading of the statute, that no action arises to the claimant, in such cases, until after a decision against him by the secretary of the treasury; and that his suit against the collector is barred unless brought within 90 days after and adverse decision upon his appeal; but with the proviso that if such decision is delayed more than 90 days after the date of his appeal, it is at the claimant's option either to sue pending the appeal, treating the delay as a denial, or to wait until a decision is in fact made, and then sue within 90 days thereafter. It cannot be that he is obliged, in case for any reason a decision at the treasury department is delayed beyond the appointed time, to treat the delay as an adverse decision, and to bring his suit while the matter is still sub judice. There is no language in the act requiring such a conclusion; it is inconsistent with the terms actually employed, and is not founded on any sufficient reason. The right to sue at all, before the final decision of the appeal, is merely inferred from the form of the exception, and in its nature is permissive and not peremptory. The right to sue at any time, within 90 days after the decision on the appeal, is clearly given in the terms which declare that such decision shall not be conclusive if suit is brought thereafter within that period; and the prohibition against suing before such decision is rendered, is express, with the saving only of the right on the part of the claimant to sue before final decision is rendered, if such decision is delayed for more than 90 days after the date of the appeal. But there is nothing which requires him to sue until after such decision has been rendered. The whole purpose of the saving in his favor evidently is, that he shall not be required to wait longer than 90 days after his appeal for an adjudication. There is nothing to forbid his waiting, without suit, as long as he has reason to expect a favorable decision upon his appeal.

From this review of the legislation and judicial history of the subject it is apparent that the common-law action recognized as appropriate by the decision in Elliott v. Swartwout, 10 Pet. 137, has been converted into an action based entirely on a different principle,-that of a statutory liability, instead of an implied promise,-which, if not originated by the act of congress, yet is regulated, as to all its incidents, by express statutory provisions. And among them are the conditions which fix the time when the suit may begin, and prescribe the period at the end of which the right to sue shall cease. Congress having undertaken to regulate the whole subject, its legislation is necessarily exclusive. For any inconveniences that may result to outgoing collectors or the representatives of those who have deceased, by the unavoidable delays in deciding appeals in the treasury department, and the absence of a definite period of time beyond which no suit shall be brought, it is for congress alone to apply the needful remedy,

It follows that in such cases, of which the present is one, the limitation laws of the state in which the cause of action arose, or in which the suit was brought, do not, under section 721, Rev. St., furnish the rule of decision, and that it was therefore an error in the circuit court to apply, as a bar to the action, the limitation prescribed by the statute of New York.

For that error the judgment is accordingly reversed, and the cause remanded with instructions to grant a new trial; and it is so ordered.


text: Talk:Arnson v. Murphy (109 U.S. 238)/Opinion of the Court


text:
Louisville v. Palmes

This is a writ of error bringing into review a decree of the supreme court of Florida, dismissing a bill in equity filed by the plaintiff in error, which sought to enjoin the defendant, a collector of revenue under the laws of Florida for the county of Escambia, from collecting, by a sale of property levied on for that purpose, certain taxes claimed by him to be due from the complainant

The ground of our jurisdiction is, as stated and shown in the record, that in the cause wherein the decree complained of was rendered there was drawn in question the validity of a statute of the state of Florida, to-wit, 'An act entitled an act for the assessment and collection of revenue,' approved March 5, 1881, wherein and whereby certain taxes for state and county purposes were imposed upon the line of railroad extending from the city of Pensacoia, in the state of Florida, to the northern boundary of the state of Florida, in the direction of Montgomery, Alabama, of which railroad the plaintiff in error is in possession and is owner; the validity of this statute being questioned on the ground that it was repugnant to the constitution of the United States, in that it impaired the obligation of a contract, and the decision of the supreme court of Florida being in favor of its validity.

The contract, the obligation of which it is alleged has been thus impaired, and of which the plaintiff in error claims the benefit, is asserted to arise as follows:

The general assembly of the state of Florida passed an act, which took effect January 6, 1855, entitled 'An act to provide for and encourage a liberal system of internal improvements in this state,' the preamble to which recites that—

'The constitution of the state declares 'that a liberal     system of internal improvements, being essential to the      development of the resources of the country, shall be      encouraged by the government of this state, and it shall be      the duty of the general assembly, as soon as practicable, to      ascertain by law proper objects of improvements in relation to roads, canals, and navigable      streams. and to provide for a suitable application of such     funds as may be appropriated for such improvements."

The act then proceeds to create an internal improvement fund to aid in the construction of certain described railroads, and other works of internal improvement, by means of corporations organized or to be chartered for that purpose; and the eighteenth section provides as follows:

'That the capital stock of any railroad company accepting the     provisions of this act shall be forever exempt from taxation,      and the roads, their fixtures and appurtenances, including      workshops, warehouses, vehicles, and property of every      description, needed for the purpose of transportation of      freight and passengers, or for the repair and maintenance of      the roads, shall be exempt from taxation while the roads are      under construction, and for the period of thirty-five years      from their completion, and that all the officers of the      companies, and servants and persons in the actual employment      of the companies, be and are hereby exempt from performing      ordinary patrol or militia duty, working on public roads, and      serving as jurors.'

By an act of the general assembly of Florida, approved December 14, 1855, it was enacted—

'That a line of railroad to be constructed from the city of     Pensacola, or any other point or points on the waters of      Pensacola bay or the waters of St Andrew's bay, to the north      line of the state, leading in the direction of Montgomery,      Alabama, shall be considered proper improvements to be aided      from the internal improvement fund in the manner provided      for, or may hereafter be provided for, in 'An act to provide      for and encourage a liberal system of internal improvements      in the state,' approved January 6, 1855.'

The Alabama & Florida Railroad Company, by an act approved January 8, 1853, had been incorporated to build a railroad falling within that description, to extend from some point on the bay of Pensacola to some point on the boundary line between the states of Florida and Alabama, to meet and connect with a railroad leading thence to the city of Montgomery. This company, it is alleged in the bill, built and for a time operated the line of railroad contemplated by its charter, and became entitled to the benefits and privileges of the internal improvement act of 1855, by accepting its provisions and complying with its conditions. Its line of railroad was completed about January 1, 1860.

By virtue of a decree of foreclosure and sale at the suit of trustees of a first mortgage, to satisfy the bonds secured thereby, the railroad of the Alabama & Florida Railroad Company, and all the rights, privileges, and franchises of the said company, were sold and conveyed on August 7, 1872, to one A. E. Maxwell, his heirs and assigns, in trust, and by him were sold and conveyed on December 10, 1872, to the Pensacola & Louisville Railroad Company, a corporation created by the laws of Florida.

The original act incorporating the last-named company was passed July 16, 1868, but it appears to have been reorganized by an amendatory act which took effect February 4, 1872, the eighteenth section of which is as follows:

'That the Pensacola & Louisville Railroad Company, having     become the assignee of the Alabama & Florida Railroad, of      Florida, and the franchises of the said corporation, and      being in possession of and operating the said line of road,      which corporation was exempt from taxation for a limited      period, the said Pensacola & Louisville Railroad Company and      its property, now owned or hereafter to be acquired, shall      also be exempt from taxation during the remainder of said      period.'

On May 6, 1878, in pursuance of a decree of the circuit court of the state of Florida, sitting in Leon county, a sale and conveyance was made transferring the title of the Pensacola & Louisville Railroad Company in and to its road and other property, 'together with all the franchises, rights, privileges, easements, and immunities' of that company, to the Pensacola Railroad Company. This company was a corporation of the state of Florida, created by an act of the general assembly which took effect February 27, 1877. The second section of that act is as follows: 'Sec. 2. Be it further enacted, that the said Pensacola     Railroad Company be, and it is hereby, authorized and      empowered to acquire by purchase and assignment all the      property, rights, franchises, privileges, and immunities of      the Pensacola & Louisville Railroad Company, a corporation      created by an act of the general assembly of the state,      approved July 16, A. D. 1868, whether the same were acquired      under the laws of the states of Florida or Alabama, or the      laws of the United States, or as the assignee and successor      of the Alabama & Florida Railroad Company; and upon      completion of the said purchase and assignment, the said      Pensacola Railroad Company shall be deemed in law and equity      to be fully invested with and entitled to all the said      property, rights, franchises, privileges, and immunities of      said Pensacola & Louisville Railroad Company, as though the      same were originally granted to or acquired by the said      Pensacola Railroad Company.'

By the thirteenth section of the act of 1872, amending the charter of the Pensacola & Louisville Railroad Company, it was provided that 'it shall be lawful for said company to purchase, lease, acquire an interest in, to unite or consolidate with, lease or sell to, any other railroad company in or out of the state, and to make the same one company, with a consolidated stock and property, and with one board of directors,' etc.

The right under this section to sell and transfer its property and franchises to a corporation of another state, it is claimed, passed from the Pensacola & Louisville Railroad Company to the Pensacola Railroad Company; and accordingly, on October 20, 1880, the Pensacola Railroad Company conveyed to the Louisville & Nashville Railroad Company, the plaintiff in error, its railroad from its junction with the Mobile & Montgomery Railway, to its terminus in Pensacola bay, its property, real and personal with certain exceptions, all its franchises, except the franchise to be and exist as a corporation, rights, privileges, easements, and immunities, by virtue of which conveyance the plaintiff in error claims in the bill that it became entitled to all the rights, property, privileges, franchises, and immunities of the Alabama & Florida Railroad Company, the Pensacola & Louisville Railroad Company, and the Pensacola Railroad Company, under the various acts incorporating these companies, and acts amendatory of the same.

The plaintiff in error, the Louisville & Nashville Railroad Company, is a corporation of Kentucky, and by an amendment to its charter, which took effect March 6, 1878, reciting that its stockholders had become largely interested in the commerce and railroad business between the states of Kentucky and Tennessee and the southeast, and the several railroad connections in that part of the country, by an extension of its system, was enabled 'to operate, lease, or purchase, upon such terms or in such manner as they deem best, any railroad in any other state or states deemed necessary for the protection of the interest of the stockholders.'

John L. Cadwalader, for plaintiff in error.

[Argument of Counsel from pages 249-250 intentionally omitted]

E. A. Perry, for defendant in error.

MATTHEWS, J.

title: Louisville v. Palmes


text: Talk:Louisville v. Palmes

title: Talk:Louisville v. Palmes