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Reynolds v. United States (98 U.S. 145)/Opinion of the Court

The assignments of error, when grouped, present the following questions:--

1. Was the indictment bad because found by a grand jury of less than sixteen persons?

2. Were the challenges of certain petit jurors by the accused improperly overruled?

3. Were the challenges of certain other jurors by the government improperly sustained?

4. Was the testimony of Amelia Jane Schofield, given at a former trial for the same offence, but under another indictment, improperly admitted in evidence?

5. Should the accused have been acquitted if he married the second time, because he believed it to be his religious duty?

6. Did the court err in that part of the charge which directed the attention of the jury to the consequences of polygamy?

These questions will be considered in their order.

1. As to the grand jury.

The indictment was found in the District Court of the third judicial district of the Territory. The act of Congress 'in relation to courts and judicial officers in the Territory of Utah,' approved June 23, 1874 (18 Stat. 253), while regulating the qualifications of jurors in the Territory, and prescribing the mode of preparing the lists from which grand and petit jurors are to be drawn, as well as the manner of drawing, makes no provision in respect to the number of persons of which a grand jury shall consist. Sect. 808, Revised Statutes, requires that a grand jury impanelled before any district or circuit court of the United States shall consist of not less than sixteen nor more than twenty-three persons, while a statute of the Territory limits the number in the district courts of the Territory to fifteen. Comp. Laws Utah, 1876, 357. The grand jury which found this indictment consisted of only fifteen persons, and the question to be determined is, whether the section of the Revised Statutes referred to or the statute of the Territory governs the case.

By sect. 1910 of the Revised Statutes the district courts of the Territory have the same jurisdiction in all cases arising under the Constitution and laws of the United States as is vested in the circuit and district courts of the United States; but this does not make them circuit and district courts of the United States. We have often so decided. American Insurance Co. v. Canter, 1 Pet. 511; Benner et al. v. Porter, 9 How. 235; Clinton v. Englebrecht, 13 Wall. 434. They are courts of the Territories, invested for some purposes with the powers of the courts of the United States. Writs of error and appeals lie from them to the Supreme Court of the Territory, and from that court as a territorial court to this in some cases.

Sect. 808 was not designed to regulate the impanelling of grand juries in all courts where offenders against the laws of the United States could be tried, but only in the circuit and district courts. This leaves the territorial courts free to act in obedience to the requirements of the territorial laws in force for the time being. Clinton v. Englebrecht, supra; Hornbuckle v. Toombs, 18 Wall. 648. As Congress may at any time assume control of the matter, there is but little danger to be anticipated from improvident territorial legislation in this particular. We are therefore of the opinion that the court below no more erred in sustaining this indictment than it did at a former term, at the instance of this same plaintiff in error, in adjudging another bad which was found against him for the same offence by a grand jury composed of twenty-three persons. 1 Utah, 226.

2. As to the challenges by the accused.

By the Constitution of the United States (Amend. VI.), the accused was entitled to a trial by an impartial jury. A juror to be impartial must, to use the language of Lord Coke, 'be indifferent as he stands unsworn.' Co. Litt. 155 b. Lord Coke also says that a principal cause of challenge is 'so called because, if it be found true, it standeth sufficient of itself, without leaving any thing to the conscience or discretion of the triers' (id. 156 b); or, as stated in Bacon's Abridgment, 'it is grounded on such a manifest presumption of partiality, that, if found to be true, it unquestionably sets aside the. . . juror.' Bac. Abr., tit. Juries, E. 1. 'If the truth of the matter alleged is admitted, the law pronounces the judgment; but if denied, it must be made out by proof to the satisfaction of the court or the triers.' Id. E. 12. To make out the existence of the fact, the juror who is challenged may be examined on his voire dire, and asked any questions that do not tend to his infamy or disgrace.

All of the challenges by the accused were for principal cause. It is good ground for such a challenge that a juror has formed an opinion as to the issue to be tried. The courts are not agreed as to the knowledge upon which the opinion must rest in order to render the juror incompetent, or whether the opinion must be accompanied by malice or ill-will; but all unite in holding that it must be founded on some evidence, and be more than a mere impression. Some say it must be positive (Gabbet, Criminal Law, 391); others, that it must be decided and substantial (Armistead's Case, 11 Leigh (Va.), 659; Wormley's Case, 10 Gratt. (Va.) 658; Neely v. The People, 13 Ill. 685); others, fixed (State v. Benton, 2 Dev. & B. (N. C.) L. 196); and, still others, deliberate and settled (Staup v. Commonwealth, 74 Pa. St. 458; Curley v. Commonwealth, 84 id. 151). All concede, however, that, if hypothetical only, the partiality is not so manifest as to necessarily set the juror aside. Mr. Chief Justice Marshall, in Burr's Trial (1 Burr's Trial, 416), states the rule to be that 'light impressions, which may fairly be presumed to yield to the testimony that may be offered, which may leave the mind open to a fair consideration of the testimony, constitute no sufficient objection to a juror; but that those strong and deep impressions which close the mind against the testimony that may be offered in opposition to them, which will combat that testimony and resist its force, do constitute a sufficient objection to him.' The theory of the law is that a juror who has formed an opinion cannot be impartial. Every opinion which he may entertain need not necessarily have that effect. In these days of newspaper enterprise and universal education, every case of public interest is almost, as a matter of necessity, brought to the attention of all the intelligent people in the vicinity, and scarcely any one can be found among those best fitted for jurors who has not read or heard of it, and who has not some impression or some opinion in respect to its merits. It is clear, therefore, that upon the trial of the issue of fact raised by a challenge for such cause the court will practically be called upon to determine whether the nature and strength of the opinion formed are such as in law necessarily to raise the presumption of partiality. The question thus presented is one of mixed law and fact, and to be tried, as far as the facts are concerned, like any other issue of that character, upon the evidence. The finding of the trial court upon that issue ought not to be set aside by a reviewing court, unless the error is manifest. No less stringent rules should be applied by the reviewing court in such a case than those which govern in the consideration of motions for new trial because the verdict is against the evidence. It must be made clearly to appear that upon the evidence the court ought to have found the juror had formed such an opinion that he could not in law be deemed impartial. The case must be one in which it is manifest the law left nothing to the 'conscience or discretion' of the court.

The challenge in this case most relied upon in the argument here is that of Charles Read. He was sworn on his voire dire; and his evidence, taken as a whole, shows that he 'believed' he had formed an opinion which he had never expressed, but which he did not think would influence his verdict on hearing the testimony. We cannot think this is such a manifestation of partiality as to leave nothing to the 'conscience or discretion' of the triers. The reading of the evidence leaves the impression that the juror had some hypothetical opinion about the case, but it falls far short of raising a manifest presumption of partiality. In considering such questions in a reviewing court, we ought not to be unmindful of the fact we have so often observed in our experience, that jurors not unfrequently seek to excuse themselves on the ground of having formed an opinion, when, on examination, it turns out that no real disqualification exists. In such cases the manner of the juror while testifying is oftentimes more indicative of the real character of his opinion than his words. That is seen below, but cannot always be spread upon the record. Care should, therefore, be taken in the reviewing court not to reverse the ruling below upon such a question of fact, except in a clear case. The affirmative of the issue is upon the challenger. Unless he shows the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality, the juror need not necessarily be set aside, and it will not be error in the court to refuse to do so. Such a case, in our opinion, was not made out upon the challenge of Read. The fact that he had not expressed his opinion is important only as tending to show that he had not formed one which disqualified him. If a positive and decided opinion had been formed, he would have been incompetent even though it had not been expressed. Under these circumstances, it is unnecessary to consider the case of Ransohoff, for it was confessedly not as strong as that of Read.

3. As to the challenges by the government.

The questions raised upon these assignments of error are not whether the district attorney should have been permitted to interrogate the jurors while under examination upon their voire dire as to the fact of their living in polygamy. No objection was made below to the questions, but only to the ruling of the court upon the challenges after the testimony taken in answer to the questions was in. From the testimony it is apparent that all the jurors to whom the challenges related were or had been living in polygamy. It needs no argument to show that such a jury could not have gone into the box entirely free from bias and prejudice, and that if the challenge was not good for principal cause, it was for favor. A judgment will not be reversed simply because a challenge good for favor was sustained in form for cause. As the jurors were incompetent and properly excluded, it matters not here upon what form of challenge they were set aside. In one case the challenge was for favor. In the courts of the United States all challenges are tried by the court without the aid of triers (Rev. Stat. sect. 819), and we are not advised that the practice in the territorial courts of Utah is different.

4. As to the admission of evidence to prove what was sworn to by Amelia Jane Schofield on a former trial of the accused for the same offence but under a different indictment.

The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by his own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away. The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated.

In Lord Morley's Case (6 State Trials, 770), as long ago as the year 1666, it was resolved in the House of Lords 'that in case oath should be made that any witness, who had been examined by the coroner and was then absent, was detained by the means or procurement of the prisoner, and the opinion of the judges asked whether such examination might be read, we should answer, that if their lordships were satisfied by the evidence they had heard that the witness was detained by means or procurement of the prisoner, then the examination might be read; but whether he was detained by means or procurement of the prisoner was matter of fact, of which we were not the judges, but their lordships.' This resolution was followed in Harrison's Case (12 id. 851), and seems to have been recognized as the law in England ever since. In Regina v. Scaife (17 Ad. & El. N. S. 242), all the judges agreed that if the prisoner had resorted to a contrivance to keep a witness out of the way, the deposition of the witness, taken before a magistrate and in the presence of the prisoner, might be read. Other cases to the same effect are to be found, and in this country the ruling has been in the same way. Drayton v. Wells, 1 Nott & M. (S.C..) 409; Williams v. The State, 19 Ga. 403. So that now, in the leading text-books, it is laid down that if a witness is kept away by the adverse party, his testimony, taken on a former trial between the same parties upon the same issues, may be given in evidence. 1 Greenl. Evid., sect. 163; 1 Taylor, Evid., sect. 446. Mr. Wharton (1 Whart. Evid., sect. 178) seemingly limits the rule somewhat, and confines it to cases where the witness has been corruptly kept away by the party against whom he is to be called, but in reality his statement is the same as that of the others; for in all it is implied that the witness must have been wrongfully kept away. The rule has its foundation in the maxim that no one shall be permitted to take advantage of his own wrong; and, consequently, if there has not been, in legal contemplation, a wrong committed, the way has not been opened for the introduction of the testimony. We are content with this long-established usage, which, so far as we have been able to discover, has rarely been departed from. It is the outgrowth of a maxim based on the principles of common honesty, and, if properly administered, can harm no one.

Such being the rule, the question becomes practically one of fact, to be settled as a preliminary to the admission of secondary evidence. In this respect it is like the preliminary question of the proof of loss of a written instrument, before secondary evidence of the contents of the instrument can be admitted. In Lord Morley's Case (supra), it would seem to have been considered a question for the trial court alone, and not subject to review on error or appeal; but without deeming it necessary in this case to go so far as that, we have no hesitation in saying that the finding of the court below is, at least, to have the effect of a verdict of a jury upon a question of fact, and should not be disturbed unless the error is manifest.

The testimony shows that the absent witness was the alleged second wife of the accused; that she had testified on a former trial for the same offence under another indictment; that she had no home, except with the accused; that at some time before the trial a subpoena had been issued for her, but by mistake she was named as Mary Jane Schobold; that an officer who knew the witness personally went to the house of the accused to serve the subpoena, and on his arrival inquired for her, either by the name of Mary Jane Schofield or Mrs. Reynolds; that he was tole by the accused she was not at home; that he then said, 'Will you tell me where she is?' that the reply was 'No; that will be for you to find out;' that the officer then remarked she was making him considerable trouble, and that she would get into trouble herself; and the accused replied, 'Oh, no; she won't, till the subpoena is served upon her,' and then, after some further conversation, that 'She does not appear in this case.'

It being discovered after the trial commenced that a wrong name had been inserted in the subpoena, a new subpoena was issued with the right name, at nine o'clock in the evening. With this the officer went again to the house, and there found a person known as the first wife of the accused. He was told by her that the witness was not there, and had not been for three weeks. He went again the next morning, and not finding her, or being able to ascertain where she was by inquiring in the neighborhood, made return of that fact to the court. At ten o'clock that morning the case was again called; and the foregoing facts being made to appear, the court ruled that evidence of what the witness had sworn to at the former trial was admissible.

In this we see no error. The accused was himself personally present in court when the showing was made, and had full opportunity to account for the absence of the witness, if he would, or to deny under oath that he had kept her away. Clearly, enough had been proven to cast the burden upon him of showing that he had not been instrumental in concealing or keeping the witness away. Having the means of making the necessary explanation, and having every inducement to do so if he would, the presumption is that he considered it better to rely upon the weakness of the case made against him than to attempt to develop the strength of his own. Upon the testimony as it stood, it is clear to our minds that the judgment should not be reversed because secondary evidence was admitted.

This brings us to the consideration of what the former testimony was, and the evidence by which it was proven to the jury.

It was testimony given on a former trial of the same person for the same offence, but under another indictment. It was substantially testimony given at another time in the same cause. The accused was present at the time the testimony was given, and had full opportunity of cross-examination. This brings the case clearly within the well-established rules. The cases are fully cited in 1 Whart. Evid., sect. 177.

The objection to the reading by Mr. Patterson of what was sworn to on the former trial does not seem to have been because the paper from which he read was not a true record of the evidence as given, but because the foundation for admitting the secondary evidence had not been laid. This objection, as has already been seen, was not well taken.

5. As to the defence of religious belief or duty.

On the trial, the plaintiff in error, the accused, proved that at the time of his alleged second marriage he was, and for many years before had been, a member of the Church of Jesus Christ of Latter-Day Saints, commonly called the Mormon Church, and a believer in its doctrines; that it was an accepted doctrine of that church 'that it was the duty of male members of said church, circumstances permitting, to practise polygamy;. . . that this duty was enjoined by different books which the members of said church believed to be of divine origin, and among others the Holy Bible, and also that the members of the church believed that the practice of polygamy was directly enjoined upon the male members thereof by the Almighty God, in a revelation to Joseph Smith, the founder and prophet of said church; that the failing or refusing to practise polygamy by such male members of said church, when circumstances would admit, would be punished, and that the penalty for such failure and refusal would be damnation in the life to come.' He also proved 'that he had received permission from the recognized authorities in said church to enter into polygamous marriage;. . . that Daniel H. Wells, one having authority in said church to perform the marriage ceremony, married the said defendant on or about the time the crime is alleged to have been committed, to some woman by the name of Schofield, and that such marriage ceremony was performed under and pursuant to the doctrines of said church.'

Upon this proof he asked the court to instruct the jury that if they found from the evidence that he 'was married as charged-if he was married-in pursuance of and in conformity with what he believed at the time to be a religious duty, that the verdict must be 'not guilty." This request was refused, and the court did charge 'that there must have been a criminal intent, but that if the defendant, under the influence of a religious belief that it was right,-under an inspiration, if you please, that it was right,-deliberately married a second time, having a first wife living, the want of consciousness of evil intent-the want of understanding on his part that he was committing a crime-did not excuse him; but the law inexorably in such case implies the criminal intent.'

Upon this charge and refusal to charge the question is raised, whether religious belief can be accepted as a justification of an overt act made criminal by the law of the land. The inquiry is not as to the power of Congress to prescribe criminal laws for the Territories, but as to the guilt of one who knowingly violates a law which has been properly enacted, if he entertains a religious belief that the law is wrong.

Congress cannot pass a law for the government of the Territories which shall prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation. Religious freedom is guaranteed everywhere throughout the United States, so far as congressional interference is concerned. The question to be determined is, whether the law now under consideration comes within this prohibition.

The word 'religion' is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted. The precise point of the inquiry is, what is the religious freedom which has been guaranteed.

Before the adoption of the Constitution, attempts were made in some of the colonies and States to legislate not only in respect to the establishment of religion, but in respect to its doctrines and precepts as well. The people were taxed, against their will, for the support of religion, and sometimes for the support of particular sects to whose tenets they could not and did not subscribe. Punishments were prescribed for a failure to attend upon public worship, and sometimes for entertaining heretical opinions. The controversy upon this general subject was animated in many of the States, but seemed at last to culminate in Virginia. In 1784, the House of Delegates of that State having under consideration 'a bill establishing provision for teachers of the Christian religion,' postponed it until the next session, and directed that the bill should be published and distributed, and that the people be requested 'to signify their opinion respecting the adoption of such a bill at the next session of assembly.'

This brought out a determined opposition. Amongst others, Mr. Madison prepared a 'Memorial and Remonstrance,' which was widely circulated and signed, and in which he demonstrated 'that religion, or the duty we owe the Creator,' was not within the cognizance of civil government. Semple's Virginia Baptists, Appendix. At the next session the proposed bill was not only defeated, but another, 'for establishing religious freedom,' drafted by Mr. Jefferson, was passed. 1 Jeff. Works, 45; 2 Howison, Hist. of Va. 298. In the preamble of this act (12 Hening's Stat. 84) religious freedom is defined; and after a recital 'that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty,' it is declared 'that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.' In these two sentences is found the true distinction between what properly belongs to the church and what to the State.

In a little more than a year after the passage of this statute the convention met which prepared the Constitution of the United States.' Of this convention Mr. Jefferson was not a member, he being then absent as minister to France. As soon as he saw the draft of the Constitution proposed for adoption, he, in a letter to a friend, expressed his disappointment at the absence of an express declaration insuring the freedom of religion (2 Jeff. Works, 355), but was willing to accept it as it was, trusting that the good sense and honest intentions of the people would bring about the necessary alterations. 1 Jeff. Works, 79. Five of the States, while adopting the Constitution, proposed amendments. Three-New Hampshire, New York, and Virginia-included in one form or another a declaration of religious freedom in the changes they desired to have made, as did also North Carolina, where the convention at first declined to ratify the Constitution until the proposed amendments were acted upon. Accordingly, at the first session of the first Congress the amendment now under consideration was proposed with others by Mr. Madison. It met the views of the advocates of religious freedom, and was adopted. Mr. Jefferson afterwards, in reply to an address to him by a committee of the Danbury Baptist Association (8 id. 113), took occasion to say: 'Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions,-I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion or prohibiting the free exercise thereof,' thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties.' Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.

Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void (2 Kent, Com. 79), and from the earliest history of England polygamy has been treated as an offence against society. After the establishment of the ecclesiastical courts, and until the time of James I., it was punished through the instrumentality of those tribunals, not merely because ecclesiastical rights had been violated, but because upon the separation of the ecclesiastical courts from the civil the ecclesiastical were supposed to be the most appropriate for the trial of matrimonial causes and offences against the rights of marriage, just as they were for testamentary causes and the settlement of the estates of deceased persons.

By the statute of 1 James I. (c. 11), the offence, if committed in England or Wales, was made punishable in the civil courts, and the penalty was death. As this statute was limited in its operation to England and Wales, it was at a very early period re-enacted, generally with some modifications, in all the colonies. In connection with the case we are now considering, it is a significant fact that on the 8th of December, 1788, after the passage of the act establishing religious freedom, and after the convention of Virginia had recommended as an amendment to the Constitution of the United States the declaration in a bill of rights that 'all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience,' the legislature of that State substantially enacted the statute of James I., death penalty included, because, as recited in the preamble, 'it hath been doubted whether bigamy or poligamy be punishable by the laws of this Commonwealth.' 12 Hening's Stat. 691. From that day to this we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal. In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests. Professor, Lieber says, polygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy. Chancellor Kent observes that this remark is equally striking and profound. 2 Kent, Com. 81, note (e). An exceptional colony of polygamists under an exceptional leadership may sometimes exist for a time without appearing to disturb the social condition of the people who surround it; but there cannot be a doubt that, unless restricted by some form of constitution, it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion.

In our opinion, the statute immediately under consideration is within the legislative power of Congress. It is constitutional and valid as prescribing a rule of action for all those residing in the Territories, and in places over which the United States have exclusive control. This being so, the only question which remains is, whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?

So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.

A criminal intent is generally an element of crime, but every man is presumed to intend the necessary and legitimate consequences of what he knowingly does. Here the accused knew he had been once married, and that his first wife was living. He also knew that his second marriage was forbidden by law. When, therefore, he married the second time, he is presumed to have intended to break the law. And the breaking of the law is the crime. Every act necessary to constitute the crime was knowingly done, and the crime was therefore knowingly committed. Ignorance of a fact may sometimes be taken as evidence of a want of criminal intent, but not ignorance of the law. The only defence of the accused in this case is his belief that the law ought not to have been enacted. It matters not that his belief was a part of his professed religion: it was still belief, and belief only.

In Regina v. Wagstaff (10 Cox Crim. Cases, 531), the parents of a sick child, who omitted to call in medical attendance because of their religious belief that what they did for its cure would be effective, were held not to be guilty of manslaughter, while it was said the contrary would have been the result if the child had actually been starved to death by the parents, under the notion that it was their religious duty to abstain from giving it food. But when the offence consists of a positive act which is knowingly done, it would be dangerous to hold that the offender might escape punishment because he religiously believed the law which he had broken ought never to have been made. No case, we believe, can be found that has gone so far.

6. As to that part of the charge which directed the attention of the jury to the consequences of polygamy.

The passage complained of is as follows: 'I think it not improper, in the discharge of your duties in this case, that you should consider what are to be the consequences to the innocent victims of this delusion. As this contest goes on, they multiply, and there are pure-minded women and there are innocent children, innocent in a sense even beyond the degree of the innocence of childhood itself. These are to be the sufferers; and as jurors fail to do their duty, and as these cases come up in the Territory of Utah, just so do these victims multiply and spread themselves over the land.'

While every appeal by the court to the passions or the prejudices of a jury should be promptly rebuked, and while it is the imperative duty of a reviewing court to take care that wrong is not done in this way, we see no just cause for complaint in this case. Congress, in 1862 (12 Stat. 501), saw fit to make bigamy a crime in the Territories. This was done because of the evil consequences that were supposed to flow from plural marriages. All the court did was to call the attention of the jury to the peculiar character of the crime for which the accused was on trial, and to remind them of the duty they had to perform. There was no appeal to the passions, no instigation of prejudice. Upon the showing made by the accused himself, he was guilty of a violation of the law under which he had been indicted: and the effort of the court seems to have been not to withdraw the minds of the jury from the issue to be tried, but to bring them to it; not to make them partial, but to keep them impartial.

Upon a careful consideration of the whole case, we are satisfied that no error was committed by the court below.

Judgment affirmed.

MR. JUSTICE FIELD.

I concur with the majority of the court on the several points decided except one,-that which relates to the admission of the testimony of Amelia Jane Schofield given on a former trial upon a different indictment. I do not think that a sufficient foundation was laid for its introduction. The authorities cited by the Chief Justice to sustain its admissibility seem to me to establish conclusively the exact reverse.

NOTE.-At a subsequent day of the term a petition for a rehearing having been filed, MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

Since our judgment in this case was announced, a petition for rehearing has been filed, in which our attention is called to the fact that the sentence of the court below requires the imprisonment to be at hard labor, when the act of Congress under which the indictment was found provides for punishment by imprisonment only. This was not assigned for error on the former hearing, and we might on that account decline to consider it now; but as the irregularity is one which appears on the face of the record, we vacate our former judgment of affirmance, and reverse the judgment of the court below for the purpose of correcting the only error which appears in the record, to wit, in the form of the sentence. The cause is remanded, with instructions to cause the sentence of the District Court to be set aside and a new one entered on the verdict in all respects like that before imposed, except so far as it requires the imprisonment to be at hard labor.


text: Talk:Reynolds v. United States (98 U.S. 145)/Opinion of the Court

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County of Schuyler v. Thomas

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

The facts are stated in the opinion of the court.

Mr. George W. McCrary for the plaintiff in error.

Mr. A. J. Baker and Mr. F. T. Hughes, contra.

MR. JUSTICE HUNT delivered the opinion of the court.

title: County of Schuyler v. Thomas


text: Talk:County of Schuyler v. Thomas

title: Talk:County of Schuyler v. Thomas


text:
County of Schuyler v. Thomas/Opinion of the Court

Thomas, the plaintiff below, recovered a judgment for the amount of certain bonds and coupons held by him, which were issued in the year 1871 by the county of Schuyler, in the State of Missouri. He was an honest purchaser of the bonds, without knowledge of vice or defect in their issue.

The following is a copy of one of the bonds:--

'Know all men by these presents, that the county of Schuyler, in the State of Missouri, acknowledges itself indebted to the Missouri, Iowa, and Nebraska Railway Company, a corporation existing under and by virtue of the laws of the States of Missouri and Iowa, formed by consolidation of the Alexandria and Nebraska City Railroad Company (formerly Alexandria and Bloomfield Railroad Company), of the State of Missouri, and the Iowa Southern Railway Company, of the State of Iowa, in the sum of $1,000, which sum the said county hereby promises to pay to the said Missouri, Iowa, and Nebraska Railway Company, or bearer, at the Farmers' Loan and Trust Company, in New York, on the first day of September, A.D. 1891, together with interest thereon from the thirty-first day of December, 1871, at the rate of eight per cent per annum, which interest shall be payable annually in the city of New York, on the thirty-first day of December in each year, as the same shall become due, on the presentation of the coupons hereto annexed. This bond being issued under and pursuant to orders of the county court of said Schuyler County, for subscription to the stock of the Missouri, Iowa, and Nebraska Railway Company, as authorized by an act of the General Assembly of the State of Missouri, entitled 'An Act to incorporate the Alexandria and Bloomfield Railroad Company,' approved Feb. 9, 1857.

'In testimony whereof, the said county of Schuyler has executed this bond by the presiding justice of the county court of said county, under the order of said court, signing his name hereto, and the clerk of said court, under the order thereof, attesting the same and affixing thereto the seal of said court.

'This done at the town of Lancaster, in the county of Schuyler, in the State of Missouri, this first day of September, A.D. 1871.

'WILLIAM CASPER,

'Presiding Justice of the County Court of Schuyler County,     Missouri.

'Attest: D. T. TRUITT,

SEAL SCHUYLER COUNTY COURT, MISSOURI.

'Clerk of the County Court of Schuyler County, Missouri.

'Countersigned and delivered this seventeenth day of May, 1872.

'M. BAKER, Trustee.'

The legality of the bonds is denied.

1st, It is contended by the county of Schuyler that there was no authority in the company, as incorporated in 1857, to locate its track through or in the county of Schuyler; that as the authority to subscribe and issue bonds depended on the power to locate, there was no authority to subscribe for stock or issue the bonds of the county.

The act to incorporate the Alexandria and Bloomfield Railroad Company, approved Feb. 9, 1857, contained the following provisions:--

'It shall be lawful for the county court of any county, in which any part of the route of said railroad may be, to subscribe to the stock of said company,. . . and issue the bonds of said county to raise funds to pay the stock thus subscribed.'

'SECT. 8. Said company shall have full power to survey, locate, and construct a railroad from the city of Alexandria, in the county of Clark, in the direction of Bloomfield, in the State of Iowa, to such point on the northern boundary line of the State of Missouri as shall be agreed upon by said company, and a company authorized on the part of the State of Iowa, to construct a railroad to intersect the road authorized to be constructed by the provisions of this act, at the most practicable point on said State line,. . . and may select such route as may be deemed most advantageous.'

Bloomfield, as we learn by the maps in evidence, lies in a northwesterly direction from Alexandria.

Schuyler County is also in a direction from Alexandria northwesterly as to a portion of it, and more nearly northerly as to another portion of it. As a matter of fact, an inspection of the maps furnishes evidence (and they make a part of the record on which our judgment is to be formed) that there is authority to include a portion of Schuyler County in the description of a course northwesterly from Alexandria and in the direction of Bloomfield. These maps and the geography of the State inform us that this road could be so located as to reach the immediate vicinity of Bloomfield, with but little less variation from a direct course than the line through Luray and Upton, which was first adopted.

But a straight line is not required by the statute, nor a line having the fewest curves or angles, nor is the point of crossing the State line fixed or prescribed. The most practicable and advantageous line is to be adopted, depending upon all the elements entering into the economy, productiveness, and local advantages which would be sought by prudent men in determining such a question.

This subject was discussed in County of Callaway v. Foster, 93 U.S. 567. As there intimated, we are of the opinion that the legislature, by the expression, 'any county in which any part of the route of said railroad may be,' used as it was with reference to a road not yet surveyed or located, intended to give a broad latitude, and to embrace all the counties through or into which it was possible that the said road could be located. These statutes are to be construed as they were intended to be understood when they were passed, twenty years since. The after-wisdom, obtained by unfortunate results, cannot justly be applied in their interpretation. A construction may now be sought which will avoid the payment of the debts contracted for building the road. Then every inducement was presented to make subscriptions and obtain the money. Little respect would have been paid to the careful legislator or the strict interpreter of the law, who, twenty years ago, had doubted the power of these counties to make the subscription in question.

We see nothing in the law or in the necessary facts of the case, affecting the power in the first instance of the county of Schuyler to subscribe to the stock of the Alexandria and Bloomfield Railroad Company, and to issue its bonds to raise the funds to pay such subscription.

2d, It is further alleged that in the year 1866 the Alexandria and Bloomfield road was permanently located through the towns of Luray and Upton to the north boundary line of Missouri, and that no part of the line thus located was in or through the county of Schuyler, and that the same was continued into the State of Iowa by another company organized in that State; that the name of said Alexandria and Bloomfield road was in that year changed by an act of the legislature to that of Alexandria and Nebraska City Railroad, and that in its second section that act provided 'that said railroad company may extend said road from a point at or near Luray to Nebraska City, in Nebraska Territory, on the most practicable and direct route by way of or near Rockport, in Atchison County, Missouri; that the name was again changed to that of the Missouri, Iowa, and Nebraska Railroad Company; that the road was thereupon and by virtue of said act constructed through Schuyler County into the State of Iowa, and that this is the only line thus constructed through Schuyler County. It is then added, that when Schuyler County made its subscription and issued its bonds, as set forth in the complaint, to aid in the construction of this road, it was done without a submission of the same to a popular vote, and that the same was made without the previous assent of a majority of two-thirds of the voters of the said county, and it is contended that such subscription is void.

The question on this branch of the case arises upon art. 2, sect. 14, of the Constitution of the State of Missouri, which took effect in July, 1865, and yet remains of force. It is in these words:--

'The General Assembly shall not authorize any county, city, or town to become a stockholder in or to loan its credit to any company, association, or corporation, unless two-thirds of the qualified voters of such county, city, or town, at a regular or special election to be held therein, shall assent thereto.'

By the terms of the charter of the Alexandria and Bloomfield Railroad Company, the counties upon the route on which it might be located, and of which Schuyler is one, were authorized in the year 1857 to subscribe to its stock, and issue their bonds in payment therefor.

It has been repeatedly held by the Supreme Court of Missouri, as well as by this court, that the constitutional provision referred to was prospective only in its effect. The General Assembly was not permitted thereafter to authorize any county or city to make subscriptions and to issue its bonds, except upon the terms prescribed. But what it had previously authorized remained unaffected. The authority given to Schuyler County eight years before the Constitution took effect remained of the same force as if the Constitution had never been adopted. County of Scotland v. Thomas, 94 U.S. 682, and cases cited.

It is also established by the same authority that the consolidation of one railroad company with another company does not extinguish the power of a county to subscribe, or the privilege of the company to receive subscriptions; and this although the consolidation be made by authority given after the Constitution took effect, and although the subscription be made to the stock of such newly organized company, and the bonds be issued after the same period. These are held to be features constituting alterations merely of the charter, and not affecting the rights or powers of the companies to receive subscriptions or of counties to issue their bonds.

Much weight is given in argument to the allegation that the route of the Alexandria and Bloomfield road, as first established and partly built, did not touch any portion of the county of Schuyler. It is contended that, when the route was selected and the terminal point fixed at Upton, the power of the company was exhausted, and the line was fixed, as certainly as if it had been described in the charter. Without considering that general proposition, we are of opinion that it does not govern the present case.

The legislature, in terms, retained the authority to alter or amend each one of these railroad charters. It did amend the charter of the Alexandria and Bloomfield road and its successors so as to authorize a location extending entirely through Schuyler County. It deemed this addition important to the interest of the public, and its exercise changed what may be termed the ordinary rule, that a location once fixed and a road partly constructed could not be changed. That this was within the reserved power of the legislature, if assented to by the company, and that it was a legitimate exercise of the power of amendment, whereby the original charter, with its powers and privileges, was continued and extended, the cases of Callaway and Scotland County sufficiently establish.

It is said, also, that this subscription was rendered void by the act of 1861, prohibiting such subscription. The case of ''State, ex rel. Wilson, v. Garoute'' is cited from the 'Central Law Journal' to sustain this proposition.

We do not think it necessary to discuss the question. It was fully considered in Smith v. County of Clark (54 Mo. 58), and the validity of the bonds, so far as this statute affected them, was sustained. In the subsequent case of State v. Garoute, one judge expressed a contrary opinion. The other judges expressed no approbation of the doctrine, and a deliberate opinion of the court cannot thus be disturbed.

The questions in the County of Scotland v. Thomas (supra) arose upon the same charter of the Alexandria and Bloomfield Railroad Company, the same consolidation forming the Missouri, Iowa, and Nebraska Railway Company, with the same original location through Luray and Upton, the same extension and change thereof through the counties of Scotland and Schuyler, and the issue of the same form of bonds at about the same time to the same company to build the same extension of the road as in the case before us.

The court, in delivering its opinion in that case, says: 'The amending act, therefore, which authorized a consolidation with the Iowa Southern Railway Company, and thereby constituted the Missouri, Iowa, and Nebraska Railway Company, was in perfect accord with the general purpose of the original charter of the Alexandria and Bloomfield Railroad Company; and if the other rights and privileges of the latter company passed over to the consolidated company, we do not see why the privilege in question should not do so, nor why the power given to the county to subscribe to the stock should not continue in force.'

We are of the opinion that the Scotland County case and the Callaway County case were well decided, and that they dispose of the present case. It is neither necessary nor wise to repeat a review of the authorities there discussed. We are satisfied with the cases as they stand.

The county of Schuyler was authorized to make a subscription by virtue of its original charter, and no submission of the question to a popular vote was necessary. That the company might establish a location, and change it by authority of the legislature. That it might be authorized to build a branch or extension in furtherance of its general object as originally chartered. That this might be and was accomplished by a new organization, to which, as the transferee of the original privileges, the right to receive and of the county to make subscriptions pertained. That these powers were legitimately exercised is plain, upon the authorities cited.

The judgment of the court below was in accordance with these views; and without going through the several questions in detail, we answer them in the affirmative, and direct that the judgment of the Circuit Court be affirmed.

Judgment affirmed.

Mr. JUSTICE MILLER, Mr. JUSTICE FIELD, and Mr. JUSTICE HARLAN dissented.


text: Talk:County of Schuyler v. Thomas/Opinion of the Court


text:
Orvis v. Powell

APPEAL from the Circuit Court of the United States for the Northern District of Illinois.

The facts are stated in the opinion of the court.

The case was argued by Mr. O. D. Barrett for the appellant, and by Mr. Edward S. Isham and Mr. George L. Paddock for the appellee.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Orvis v. Powell


text: Talk:Orvis v. Powell

title: Talk:Orvis v. Powell


text:
Orvis v. Powell/Opinion of the Court

This is a suit in chancery to foreclose a mortgage executed by Henry H. Walker and Samuel I. Walker to Nathan Powell, the appellee, covering forty acres of land in Cook County, Illinois. The mortgage was given April 8, 1869, to secure the payment of the sum of $40,500. The amount due at the date of the decree had been reduced by payments to $14,853.33. As they were made, releases had been executed as to part of the land; and before the suit was brought, all the land had been conveyed, in distinct parcels, at different times, to various parties, and among them to Emerson G. Orvis, the appellant. The court, in its decree, ordered that these parcels should be sold separately, and in the inverse order of the dates of the conveyances made by the Walkers, until the amount due, as ascertained by the decree, was satisfied, so that the parcels first sold should be the last subjected to the satisfaction of the debt. The decree made no provision for redemption after sale, as required by the statute of Illinois.

Three principal errors are assigned here:--

1. That the decree should have subjected all the property on which the mortgage was a lien equally, and without regard to priority of conveyances by the mortgagors.

2. That the court erred in determining the order of these priorities.

3. That the decree made no provision for redemption after sale.

As regards the question raised by the first of these assignments, we are relieved from any discussion of what is the true, equitable rule on the subject, because we consider that when such rule is adopted it is, within the decisions of this court, a rule of property affecting the title to real estate, and as such is to be governed, in its application in this court, by the law of the State where the land lies. In a case where no statute of the State makes provision on the subject, and no decisions of the State court have established a rule, it would be our duty to inquire what is the doctrine of the equity courts on the subject.

The Supreme Court of the State of Illinois having, in Iglehart v. Crane (42 Ill. 261), announced on very full consideration the rule which was followed by the Circuit Court, there was no error in that court in following it.

In regard to the order in which the parcels of the land are subjected to sale, it is to be observed that no one can complain but Orvis, because he is the only party who has appealed from the decree.

So far as Orvis is concerned, the only error assigned which seems worthy of notice is that block 18 should have been subjected to plaintiff's debt first, because Walker, the mortgagor, was still owner of an equitable interest in it. This does not appear by any written instrument, but so far as it is established at all, it is by Walker's parol testimony. It thus appears, however, that Colbaugh and Powell held the title in trust to secure money advanced by them on a sale which had been rescinded, and it was by virtue of this rescission that Walker had any interest in it. What the amount of the sum is for which Colbaugh and Powell held it is not shown, nor is the value of the lot. But appellant's witness, Walker, states that the debt due these parties is more than the lot is worth, after paying some liens on it prior to theirs. As the title of Walker had passed from him to this lot long before that claimed by Orvis, we do not believe that the court was bound to prosecute an inquiry, through all the ramifications of Walker's dealing with this lot, dependent solely on conflicting oral testimony, to ascertain if Walker had a possible ultimate interest in it. Nor does it consist with the general course of equity practice to order a public sale of a very doubtful contingent interest, the value of which is incapable of estimation, and where any price given might do great injustice to the purchaser or to the party whose interest is sold, and which would lead to further expensive litigation. Besides, if in the end appellant has to pay any part of this mortgage, there is nothing to prevent his pursuing this equity of Walker's so far as may be necessary to indemnify him in an independent suit, where that matter may be fully investigated without further delaying the present plaintiff.

On the whole, we see no error to the prejudice of appellant in the order of sale adopted by the decree.

But we decided in Brine v. Insurance Company (96 U.S. 627) that a decree of foreclosure in the Circuit Court of the United States for the District of Illinois, which gave no time for redemption after the sale, was erroneous and must be reversed. The larger part of the briefs of several counsel in this case is devoted to a consideration of the question there decided. It is sufficient to say that we are satisfied with the soundness of the opinion given in that case, and it must govern the one now before us.

The result of those considerations is, that the decree of the Circuit Court ascertaining the sum due the plaintiff, and fixing the order in which the various parcels of land shall be sold, and in fact all of said decree, will be affirmed, except so far as it fails to give a time for redemption; and the case will be remanded to that court with directions to amend the decree so as to allow redemption of each parcel which may be sold, as provided by the statute of Illinois on that subject. As appellant had to take this appeal to obtain correction of the error in this respect, he must recover costs.

So ordered.

NOTE.-At a subsequent day of the term, Orvis, the appellant, was granted a reargument because the question of the order in which lands mortgaged, and sold subsequently by the mortgagor, to different parties at different dates should be subjected to the satisfaction of the mortgage debt, was a new one in this court, and because the subsequent sales on which the court had to pass in the case were numerous and, as presented by the record, a little perplexing.

The reargument was had by printed briefs submitted by Mr. Benjamin F. Butler, Mr. O. D. Barrett, and Mr. Melville W. Fuller for the appellant, and by Mr. Julius Rosenthal and Mr. A. M. Pence, contra.

MR. JUSTICE MILLER delivered the opinion of the court, ordering that the same decree be entered that was made on the former hearing.

title: Orvis v. Powell/Opinion of the Court


text: Talk:Orvis v. Powell/Opinion of the Court


text: McKnight v. United States

title: McKnight v. United States


text: Talk:McKnight v. United States

title: Talk:McKnight v. United States


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

APPEAL from the Court of Claims.

This was a suit by William S. McKnight and James W. Richardson, assignees of Simeon Hart, to recover from the United States the sum of $9,000. The United States interposed a counter-claim and set-off for $21,675.68.

The court below found the following facts:--

1. On the 6th of January, 1873, the Second Comptroller of the Treasury certified to the Secretary of War a balance arising on an account settled by the Third Auditor, as follows:--

'No. 6611.]

'TREASURY DEPARTMENT,

'SECOND COMPTROLLER'S OFFICE,

'Jan. 6, 1873.

'I certify, in conformity with law, that there is due from the United States to William S. McKnight and James W. Richardson, composing the firm of McKnight & Richardson, assignees of Simeon Hart, a government contractor, a balance of thirty thousand six hundred and seventy-five and 68/100 dollars:

'Which amount is allowed in pursuance of the decision of the Second Comptroller, made Dec. 14, 1872, being for the value, at contract rates, of 51,920 lbs. of flour, delivered at Albuquerque, New Mexico, May 13, 1861, at 20 1/2 cts. per lb. $10,643.

'May 23, 1861, 49,800 lbs. of flour, delivered at Fort Stanton, at 18 1/2 cts. per lb. 9,213.

'May 26, 1861, 52,776 lbs. flour, delivered at Albuquerque, at 20 1/2 cts. per lb. 10,819.

'A report in favor of the payment of said balance having been made by the Judge-Advocate-General, and approved by the Secretary of War, Feb. 28, 1872, and the allowance being in conformity with the opinion of the Attorney-General, dated Dec. 5, 1872.

'Payable out of the appropriation for subsistence of the army prior to July 1, 1870.

'To the claimant assignees, McKnight & Richardson.

'In the care of H. D. Cook, attorney of record, present.

'J. M. BRODHEAD,

'Comptroller.

'HON. WM. W. BELKNAP,

'Secretary of War.'

2. Subsequently the following requisition, with memorandum attached, was signed and recorded:--

'Settlement Requisition, No. 2254.

'WAR DEPARTMENT, Jan. 31, 1873.

'To the Secretary of the Treasury:

'SIR,-Please to cause a warrant for thirty thousand six hundred and seventy-five dollars and sixty-eight cents to be issued in favor of William S. McKnight and James W. Richardson, composing the firm of McKnight & Richardson, assignees of Simeon Hart, a government contractor, care of H. D. Cook, attorney of record, present; due on settlement as per certificate of Second Comptroller, No. 6611. To be charged in the undermentioned appropriations.

'Given under my hand this seventh day of January, 1873.

'$30,675.68.

'WM. W. BELKNAP,

'Secretary of War.

'Countersigned Jan. 7, '73.

'J. M. BRODHEAD,

'Second Comptroller.

'Registered Jan. 7, '73.

'ALLEN RUTHERFORD,

'Third Auditor.

'Appropriations:

'Subsistence of the army prior to July 1, 1870. $30,675.

'Of this amount the sum of nine thousand dollars ($9,000) will be paid to the Treasurer of the U. States, to be by him deposited in the Treasury, on 'general account,' on account of a debt due the U. States by Simeon Hart as surety on a bond given by Lieut.-Col. John B. Grayson, Com'y of Subs., to await the final adjustment and decision of Grayson's accounts.

'J. M. BRODHEAD, Compt.'3. Thereupon the following warrant was drawn, signed, and recorded:--

'WAR-SETTLEMENT WARRANT No. 409. $30,675.68.

'Special.

'J. H. SEVILLE,

'Chief Clerk.

'71. Subsistence of Army, $30,675.68,

'It is directed that of the amount of this warrant the sum of nine thousand dollars ($9,000) be paid to the Treasurer of the United States, to be by him deposited in the Treasury, on 'general account,' on account of a debt due the U.S. by Simeon Hart, as surety on a bond given by Lieut.-Colonel John B. Grayson, commissary of subsistence.

'GEO. S. BOUTWELL,

'Secretary.

[SEAL]

'Rec'd draft No. 615.

'H. D. COOK.'

'TREASURY DEPARTMENT.

'To the TREASURER OF THE

'UNITED STATES, greeting:

'Pay to William S. McKnight and James W. Richardson, firm of McKnight & Richardson, assignees of Simeon Hart, care of H. D. Cook, att'y of record, present, or order, to be charged to the appropriations named in the margin, thirty thousand six hundred and seventy-five dollars and sixty-eight cents, due Simeon Hart on settlement, pursuant to a requisition, No. 2254, of the Secretary of War, dated Jan. 7, 1873, countersigned by the Second Comptroller of the Treasury and registered by the Third Auditor. And for so doing this shall be your warrant.

'Given under my hand and the seal of the Treasury Department this thirty-first day of January, in the year of our Lord one thousand eight hundred and seventy-three, and of Independence the ninety-seventh.

[SEAL] 'J. F. HARTLEY,

'Ass't Secretary.

'Countersigned 31st.

'R. W. TAYLER,

'First Comptroller.

'Registered 31st.

'J. A. GRAHAM,

'Ass't Register.'

4. Upon said warrant the following draft was issued to said McKnight & Richardson, delivered to H. D. Cook, attorney, indorsed by claimants, and paid by defendants:--'Draft No. 615 on Warrant No. 409, p't, Series of 1870, c.

'TREASURY OF THE UNITED STATES,

'WASHINGTON, D. C., Jan. 31, 1873.

'Pay to William S. McKnight and James W. Richardson, firm of McKnight & Richardson, assignees of Simeon Hart, or order, twenty-one thousand six hundred and seventy-five 68/100 dollars.

'L. R. TUTTLE,

'$21,675 68/100.

Asst. Treasurer of the United States.

'Registered Jan. 31, 1873.

'JOHN ALLISON,

'Register of the Treasury.'

And at the same time the following draft was issued to the Treasurer, by him indorsed, and the amount therein specified deposited in general account as ordered; and the same has never been paid out of the Treasury of the United States:--

'Draft No. 616 on War-warrant No. 409, p't, Series of 1870, d.

'TREASURY OF THE UNITED STATES,

'WASHINGTON, D. C., Jan. 31, 1873.

'Pay to Treasurer of the U.S., to be deposited in 'general account,' on account of a debt due the U.S. by Simeon Hart, as surety on a bond given by Lt.-Col. John B. Grayson, Comm'y of Sub., or order, nine thousand dollars.

'L. R. TUTTLE,

'$9,000.

Asst. Treasurer of the United States.'

5. Said certificate of the Second Comptroller, requisition of the Secretary of War, and warrant of the Secretary of the Treasury, were founded upon the alleged voluntary indorsement, order, or assignment by Simeon Hart, of a voucher filed in the Treasury Department, alleged to have been issued by Lieut.-Col. John B. Grayson, Commissary of Subsistence of the United States Army, for flour delivered by him in May, 1861, under contracts; but the claimants did not prove, or offer to prove, at the trial in this court, the genuineness of said voucher, or the indorsement, order, or assignment thereof, or the delivery of the flour therein mentioned.

6. The following is a copy of the voucher upon which said account was settled, as transmitted by the Secretary of the Treasury to this court:--"The United States to Simeon Hart, Dr.

"1861.

"May 13.  To 51,920 lbs. flour, delivered at Albuquerque,

under the contracts of 3d and 10th November,

"   23. To 49,800 lbs. flour, delivered at Fort Stanton,

under the contract of 10th November, 1860, at

"   26.   To 52,776 lbs. flour, delivered at Albuquerque,

under the contracts of 3d and 10th November,

"   30.   To 500 lbs. flour, delivered at Albuquerque,

contracts of 3d and 10th November, 1860,

at 20 1/2 cts.102,

-

$30,778.

'I certify that the above is correct and just; that the services were rendered as stated, and necessary for the public service.

'I certify, on honor, that the above account is correct and just; that this flour has been faithfully issued; that I have accounted for this flour by the receipts of officers duly qualified to receive the same; that it was purchased at the prices mentioned and contracted for (see contracts of 3d and 10th November, 1860); and that Judge Hart is entitled to the amount specified on the face of this account; and I have not paid this account, owing to the order of the Secretary of War, through the Commissary-General, of 11th May, 1861.

'JNO. B. GRAYSON,

'Brv't Lt.-Col., C'ry S'e.

'Received _____ 186 _, of _____, U.S. Army, thirty thousand seven hundred seventy-eight dollars and eighteen cents, in full of the above account.

'S. HART.'

7. No assignment or power of attorney to collect the claim was executed or delivered by Simeon Hart or his personal representatives after the settlement warrant set forth in the third finding was drawn and signed.

The court below entered a judgment dismissing the petition of the claimants, and also the counter-claim of the United States, whereupon both parties appealed here.

Mr. Enoch Totten for McKnight.

Mr. Assistant Attorney-General Smith for the United States.

MR. JUSTICE SWAYNE delivered the opinion of the court.

These are cross-appeals in the same case. The sum of $30,675.68 was awarded by the proper accounting officers to McKnight & Richardson, as assignees of Simeon Hart, a government contractor, for furnishing army supplies. The assignment was made by parol, and the delivery to the assignees of a receipt signed by Hart, with a blank for the amount that might be paid by the United States, to be filled in accordingly. Upon the allowance of the claim as stated a treasury warrant was issued to McKnight & Richardson for $21,675.68. The remaining $9,000 was retained in the treasury 'on account of a debt due the United States from Simeon Hart, as surety on a bond given by Lieut.-Col. Jno. B. Grayson, Com. of Subs., to await the final settlement of said Grayson's accounts.' This reservation of the $9,000 was made by order of the Second Comptroller and the Secretary of the Treasury. McKnight & Richardson sued in the Court of Claims to recover this sum. The United States thereupon set up a counter-claim, and insisted upon their right to recover back the $21,675.68 which had been paid already to the petitioners.

The Court of Claims adjudged against both parties, and both appealed to this court.

The claim of the United States cannot be sustained. According to the settled usages and practice of the department, the evidence in the record was sufficient to warrant the allowance of the amount found due to Hart. Lieut.-Col. Grayson, as a commissary of subsistence, was charged with the duty of receiving and inspecting the articles delivered, and of certifying the quantities and the prices to be paid. The voucher which he gave is explicit upon these points, and presupposes full knowledge on his part of what is set forth. His fidelity in the discharge of this duty was secured by his honor as a soldier, his commission, and his bond. It does not appear that any fraud was ever suspected, or that there is the slightest ground for such an imputation. It is true the assignment was contrary to law, and therefore a nullity, but there was nothing contrary to good morals or conscience in the payment or receipt of the money. The facts were all known. There was no indirection, concealment, or improper purpose on either side. Although the petitioners had no claim against the United States, they had a valid claim against Hart. The money was received in payment of his debt, and discharged it to that extent. He is estopped by his receipt from setting up any claim against the government. It does not appear that he has ever complained. Under the circumstances, it is quite clear that if the controversy were between private parties, there could be no recovery. 1 Story, Contracts, sect. 541.

With a few exceptions, growing out of considerations of public policy, the rules of law which apply to the government and to individuals are the same. There is not one law for the former and another for the latter.

There are also fatal objections to the case of the petitioners.

The assignment, as we have already said, was wholly void. Spofford v. Kirk, 97 U.S. 484. It conferred no right that the United States was bound to regard. The payment of a part was not a waiver of this objection as to the residue. An agreement to that effect, express or implied, looking to the future, would have been without validity. There could have been no consideration for it, and no one had authority to make it. The statute is conclusive upon the subject. In the view of the law, the claim is as if the facts of which it is predicated were not.

It was also competent for the United States to set off the amount due to Hart under his contract, so far as was necessary to meet his liability as surety on the bond of Grayson, and the Court of Claims was bound to adjudge accordingly. Rev.Stat. 1059; Gratiot v. United States, 15 Pet. 336.

Judgment affirmed.


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


text:
Stewart v. Sonneborn

ERROR to the Circuit Court of the United States for the Middle District of Alabama.

This was an action brought by Meyer Sonneborn, the plaintiff below, against A. T. Stewart & Co., to recover damages for an alleged wrongful and malicious institution of proceedings in bankruptcy against him. The record shows that in the years 1865 and 1866 Sonneborn was a member of the firm of E. Leipzeiger & Co., in New York, and that while he was thus a member the firm bought goods on credit from A. T. Stewart & Co. Some time in 1866 he withdrew from the firm; but no notice of his withdrawal was published, and the firm continued business in its old name without any apparent change. In the spring of 1867 the defendants sold other goods on credit to E. Leipzeiger & Co., as they allege, without any notice that Sonneborn had previously withdrawn from the firm. On the other hand, he alleges that he did give personal notice of his withdrawal to one of the clerks in the defendants' store before the purchases of 1867 were made. No payment for these latter purchases having been made, the defendants in 1869 sued the plaintiff to recover the debt in the Circuit Court for Barbour County, Alabama, and after trial a verdict and judgment were given against them. This was at the August Term, 1871. From the verdict and judgment the defendants prosecuted an appeal to the Supreme Court of the State, where the judgment was reversed and a new trial was ordered. On the 12th of May, 1873, before the case came on for a second trial, one Jonas Sonneborn, a brother of the plaintiff, brought suit against him in the Eufaula city court, and one month afterwards recovered a judgment by default for $6,944.43 (the present plaintiff having made no resistance), and thereupon an execution was issued and levied. This proceeding having come to the notice of A. T. Stewart & Co. (and they having been advised by legal counsel that an act of bankruptcy had thereby been committed by Sonneborn), on the 15th of August, 1873, they filed their petition in the District Court, praying that he might be declared a bankrupt, and that a warrant might issue to take possession of his estate. They represented themselves to be creditors for the sales made to E. Leipzeiger & Co. in 1867, of which firm they averred Sonneborn was a member; and the act of bankruptcy alleged was that on the 12th of June, 1873, he suffered and permitted a judgment to be recovered against him by default in favor of Jonas Sonneborn, in the city court of Eufaula, upon which an execution had issued, whereon a levy had been made. Upon this petition a rule to show cause, &c., was awarded, an injunction issued, and a warrant for provisional seizure granted, which on the 19th of August, 1873, was executed. Such was the situation when the case of the defendants against the plaintiff came on for the second trial in the Barbour County Circuit Court. The result of that trial in November, 1873, was a judgment for Sonneborn, which was subsequently affirmed by the Supreme Court of the State at its June Term, 1874. It thus having been determined that the defendants were not creditors of Sonneborn, the proceedings in bankruptcy were dismissed and the present suit was brought, alleging that they had been prosecuted maliciously and without probable cause.

There was a verdict for the plaintiff for $21,000 and costs; and judgment having been entered thereon, Stewart & Co. sued out this writ of error. So much of the charge of the court below as was excepted to by the defendants, and also the instructions requested by them and refused, are set forth in the opinion of the court.

Mr. Roscoe Conkling for the plaintiffs in error.

This action cannot be maintained without averring and proving malice. Benson & Co. v. McCoy, 36 Ala. 710; McKellar v. Couch, 34 id. 336; McLaren, Ragan, & Co. v. Bradford, 26 id. 616; Lindsay v. Larned, 17 Mass. 191; McCullough v. Grishobber, 4 Watts & Serg. (Pa.) 201; Stone v. Swift, 4 Pick. (Mass.) 389; Garrard v. Willett, 4 J. J. Marsh. (Ky.) 630; White v. Dingley, 4 Mass. 433; Turner v. Walker, 3 Gill & Johns. (Md.) 377; Morris v. Corson, 7 Cow. (N. Y.) 281; Ives v. Bartholomew, 9 Conn. 309; Marshall v. Betner, 17 Ala. 832; Tatum v. Morris, 19 id. 302; Vandryen v. Linderman, 10 Johns. (N. Y.) 106; De Medina v. Grove, 10 Ad. & Ell. N. S. 152; Churchill v. Liggers, 3 Ell. & Bl. 937; Olinger v. McChesney, 9 Leigh (Va.), 660.

The mere wrongful resort to legal process affords no ground of action. It is damnum absque injuria, the costs being cast upon the unsuccessful party, 'as a satisfaction to the defendant for the inconvenience of being held to defend a groundless suit.' McKellar v. Couch, supra.

The misuse of legal process must have been both wrongful and malicious; but the whole charge of the court ignores the essential requisite of proof of malice, while those particular portions of it to which exception was taken assert Sonneborn's right to recover actual damages, although the misuse of legal process against him was not malicious.

Costs are the only damages allowed to the successful defendant in a civil suit, when there is no malice on the part of the plaintiff; except where other damages are expressly allowed by special statute,-such as in suits on attachment, injunction, detinue, and other bonds.

Counsel fees expended by the plaintiff in prosecuting or defending his cause cannot be allowed as part of the damages. Arcambel v. Wiseman, 3 Dall. 306; Day v. Woodworth et al., 13 How. 363; Teese et al. v. Huntingdon et al., 23 id. 2; Whittemore v. Cutter, 1 Gall. 429; Blanchard Gun-stock Turning Factory v. Warner, 1 Blatchf. 258; Pacific Insurance Co. v. Conard, Baldw. 138; Simpson v. Leiper, 2 Whart. Dig. 414; Stimpson v. The Railroads, 1 Wall. Jr. 164; Oelrichs v. Spain, 15 Wall. 211.

Mr. Philip Phillips, contra.

The judgment of the State court in favor of Sonneborn is conclusive that Stewart & Co. were not his creditors. They had, therefore, no probable cause for instituting proceedings in bankruptcy against him. What constitutes probable cause is a question of law, and the want of it implies legal malice.

Malice in fact differs from malice in law in this: the former denotes ill-will to an individual; the latter, a wrongful act, intentionally done, without just cause. Bronage v. Prosser, 4 Barn. & Cress. 321; Watson v. Moore, 2 Cush. (Mass.) 140.

The law implies malice when there is not proof to extenuate an act which has been rashly and indiscreetly done. Long v. Rodgers, 19 Ala. 321.

It results from this distinction: that when the malice is only such as in inferred from a groundless act, and there is no proof of actual malice, none but compensatory damages are allowed; and they include actual injury to property, loss of time, pecuniary expenses, counsel fees, and any other loss suffered. Burnett v. Reed, 51 Pa. St. 190.

In all cases, unless the trespass was caused by inevitable accident, the party in default must respond in damages, the intent being only material in aggravation or mitigation of them. Sedgwick, Damages, 660; Tracy v. Swartwout, 10 Pet. 80; Bates v. Clark, 95 U.S. 204.

The court, having limited the counsel fees to those incurred in resisting the proceeding in bankruptcy, was not required to instruct that they should not be allowed in another and different proceeding.

The court thus disposed of that question fairly and distinctly, and was not bound to charge the jury in the manner that counsel might suggest. ''Indianapolis, &c. Railroad Co. v. Horst, 93 U.S. 291; Railroad Company v. McCarthy'', 96 id. 258.

MR. JUSTICE STRONG, after stating the case, delivered the opinion of the court.

title: Stewart v. Sonneborn


text: Talk:Stewart v. Sonneborn

title: Talk:Stewart v. Sonneborn


text:
Stewart v. Sonneborn/Opinion of the Court

The errors now assigned are exclusively to the charge given by the court to the jury. The instruction given was (inter alia) as follows: 'But if they (the defendants) had no legal claim or demand against the complainant (Sonneborn), then, whether they had probable cause or not, they had no right to institute the proceedings (in bankruptcy). They cannot go back and allege that, though they had no legal claim against him, they thought they had; in other words, that they had probable cause to believe that they had such a demand. Unless they had a debt, they cannot allege probable cause for proceeding in bankruptcy at all. Their defence cannot stand on two probable causes, one on top of the other. . . . As it has been adjudicated by the Circuit Court of Barbour County, and affirmed by the State Supreme Court, that the defendants never had a legal claim against the plaintiff, and therefore had no right to institute proceedings in bankruptcy against him, the plaintiff is entitled to recover in this action the damages he has sustained by those unlawful proceedings. The court therefore rules that the defence in this case cannot be sustained by proving that the defendants had probable cause to believe that the plaintiff had committed an act of bankruptcy; but it being shown by judicial determination that they had no legal claim or debt against the plaintiff, and had, therefore, no right to institute bankruptcy proceedings, they are liable for the damages sustained by the plaintiff thereby, and the only question for the jury will be the amount of the damages, under the circumstances of the case. . . . We charge you, therefore, that the plaintiff is entitled to recover his actual damage, or the loss he has actually sustained at all events.'. . . And again: 'The actual damages sustained by the complainant, that you will give him a verdict for at all events.'

This construction, we think, was erroneous, and emphatically so in view of the facts which appeared in evidence. It ignores totally the question whether the conduct of the defendants had been attended by malice, though the plaintiff's declaration charged malice, and it denied all importance to the necessary inquiry, whether they had probable cause for their action. More than this, it disregarded entirely evidence of facts which have been determined to be in law a perfect defence to an action for a malicious prosecution. The jury were positively instructed to return a verdict for the plaintiff independently of any consideration of malice in the institution of the bankruptcy proceedings, or want of probable cause therefor. If the charge was correct, then every man who brings a suit against another, with the most firm and reasonable belief that he has a just claim, and a lawful right to resort to the courts, is responsible in damages for the consequences of his action, if he happens to fail in his suit. His intentions may have been most honest, his purpose only to secure his own, in the only way in which the law permits it to be secured; he may have had no ill-feeling against his supposed debtor, and may have done nothing which the law forbids. Such is not the law. It is abundantly settled that no suit can be maintained against an unsuccessful plaintiff or prosecutor, unless it is shown affirmatively that he was actuated in his conduct by malice, or some improper or sinister motive. Malice is essential to the maintenance of any such action, and not merely (as the Circuit Court thought) to the recovery of exemplary damages. Notwithstanding what has been said in some decisions of a distinction between actions for criminal prosecutions and civil suits, both classes at the present day require substantially the same essentials. Certainly an action for instituting a civil suit requires not less for its maintenance than an action for a malicious prosecution of a criminal proceeding. Nicholson v. Coghill, 4 Barn. & Cress. 21; Webb v. Hill, 3 Carr. & P. 485; Burhams v. Sanford, 19 Wend. (N. Y.) 417; Cotton v. Huidekoper, 2 Pa. 149.

In Farmer v. Darling (4 Burr. 1791,) one of the earliest reported cases, if not the earliest, Lord Mansfield instructed the jury that 'the foundation of the action was malice,' and all the judges concurred that 'malice, either express or implied, and the want of probable cause, must both concur.' From 1766 to the present day, such has been constantly held to be the law, both in England and this country. See a multitude of cases collected in Vol. 8, U.S. Digest, first series, 942, pt. 95. And the existence of malice is always a question exclusively for the jury. It must be found by them, or the action cannot be sustained. Hence it must always be submitted to them to find whether it existed. The court has no right to find it, nor to instruct the jury that they may return a verdict for the plaintiff without it. Even the inference of malice from the want of probable cause is one which the jury alone can draw. Wheeler v. Nesbit et al., 24 How. 545; Newell v. Downs, 8 Blackf. (Ind.) 523; Johnson v. Chambers, 10 Ired. (N. C.) L. 287; Voorhees v. Leonard, 1 N. Y. Sup. Ct. 148; Schofield v. Ferrers, 47 Pa. St. 194. In Mitchell v. Jenkins (5 Barn. & Adol. 588), Lord Denman said: 'I have always understood the question of reasonable or probable cause on the facts found to be a question for the opinion of the court, and malice to be altogether a question for the jury.' He added, that inasmuch as in that case the question of malice had been wholly withdrawn from the jury, there ought to be a new trial. In the case we have in hand, the question was withheld from the jury, and nothing was submitted to them but an estimate of damages.

There was also error in the charge in so far as it took away from the defendants the protection of probable cause for their instituting the proceedings in bankruptcy. The court ruled that the defence could not be sustained by proving they had probable cause for believing the plaintiff had committed an act of bankruptcy, because, after the proceedings had been commenced, it was established by a verdict and a judgment thereon that the plaintiff was not indebted to them, and consequently that they had no right to institute bankruptcy proceedings against him. It was further charged that 'if they had no legal claim or demand against the plaintiff, then whether they had probable cause or not, they had no right to institute the proceedings. They cannot go back and allege that though they had not a legal claim or debt against him, they thought they had, or that they had probable cause to believe they had such a demand. Unless they had a debt they cannot allege probable cause for proceeding in bankruptcy at all.' To this we cannot assent. The existence of a want of probable cause is, as we have seen, essential to every suit for a malicious prosecution. Both that and malice must concur. Malice, it is admitted, may be inferred by the jury from want of probable cause, but the want of that cannot be inferred from any degree of even express malice. Sutton v. Johnstone, 1 T. R. 493; Murray v. Long, 1 Wend, (N. Y.) 140; Wood v. Weir & Sayre, 5 B. Mon. (Ky.) 544. It is true that what amounts to probable cause is a question of law in a very important sense. In the celebrated case of Sutton v. Johnstone, the rule was thus laid down: 'The question of probable cause is a mixed question of law and of fact. Whether the circumstances alleged to show it probable are true, and existed, is a matter of fact; but whether, supposing them to be true, they amount to a probable cause, is a question of law.' This is the doctrine generally adopted. McCormick v. Sisson, 7 Cow. (N. Y.) 715; Besson v. Southard, 10 N. Y. 236.

It is, therefore, generally the duty of the court, when evidence has been given to prove or disprove the existence of probable cause, to submit to the jury its credibility, and what facts it proves, with instructions that the facts found amount to proof of probable cause, or that they do not. Taylor v. Willans, 2 Barn. & Adol. 845. There may be, and there doubtless are, some seeming exceptions to this rule, growing out of the nature of the evidence, as when the question of the defendants' belief of the facts relied upon to prove want of probable cause is involved. What their belief was is always a question for the jury.

The Circuit Court thought in the present case, and so charged, that the fact after the institution of the bankruptcy proceedings a judgment was given in the Barbour Circuit Court against the defendants, thus determining that the plaintiff was not indebted to them, precluded them from setting up that they had probable cause for their action. That was giving undue effect to the judgment. The conduct of the defendants is to be weighed in view of what appeared to them when they filed their petition in the bankrupt court,-not in the light of subsequently appearing facts. Had they reasonable cause for their action when they took it? Not what the actual fact was, but what they had reason to blieve it was. Faris v. Starke, 3 B. Mon. (Ky.) 4, 6; Raulston v. Jackson, 1 Sneed (Tenn.), 128.

In every case of an action for a malicious prosecution or suit, it must be averred and proved that the proceeding instituted against the plaintiff has failed, but its failure has never been held to be evidence of either malice or want of probable cause for its institution; much less that it is conclusive of those things. Cloon v. Gerry, 13 Gray (Mass.), 201; 1 Hilliard, Torts, and cases there collected. The final judgment in the Circuit Court of Barbour County did not, therefore, justify the court in charging either that there was no probable cause for the bankruptcy proceedings, or that the presence or absence of such cause was immaterial. If when they filed their petition to have the plaintiff declared a bankrupt, the defendants believed, and had reasonable cause to believe, that the plaintiff was indebted to them for the goods sold to E. Leipzeiger & Co. in 1867, and had reasonable cause to believe that he had committed an act of bankruptcy, there was probable cause for their action, and the plaintiff was not entitled to recover. That they had reasonable cause to believe an act of bankruptcy had been committed must be conceded in view of the manner in which the judgment of Jonas Sonneborn against him had been obtained on the 12th of June, 1873, and in view of the decision of this court in Buchanan v. Smith, 16 Wall. 277. If, therefore, they had an honest and reasonable conviction that the plaintiff was their debtor, that he was liable to them for the bills of goods sold by them in 1867 to E. Leipzeiger & Co., they had probable cause for instituting the proceedings in bankruptcy, and their defence was complete. The jury should have been so instructed.

We think, also, there was error in refusing to charge the jury as requested in the defendants' first point, which was as follows: 'If the jury believe, from all the evidence, that A. T. Stewart & Co. acted on the advice of counsel in prosecuting their claim against Sonneborn in the Circuit Court of Barbour County, and upon such advice had an honest belief in the validity of their debt, and their right to recover in said action; and in the institution of the bankruptcy proceedings acted likewise on the advice of counsel, and under an honest belief that they were taking and using only such remedies as the law provided for the collection of what they believed to be a bona fide debt, they having first given a full statement of the facts of the case to counsel,-then there was not such malice in the wrongful use of legal process by them as will entitle the plaintiff to recover in this form of action.' This the court refused to affirm, 'except as contained and qualified in the preceding charge.' An examination of the charge, however, reveals that the instruction was not contained in it, nor alluded to. The defendants, we think, had a right to have it affirmed as presented. There was enough in the evidence to justify its presentation. It was proved that, before they commenced their suit in the Circuit Court of Barbour County, the defendants were advised by an eminent lawyer of Alabama, of twenty-five years' standing in the profession, respecting their legal right to recover the debt from the plaintiff, that, in his opinion, the plaintiff was liable therefor. It was further testified that the same lawyer advised them that, in his opinion, the plaintiff had rendered himself liable to involuntary bankruptcy proceedings by suffering his brother's judgment to go against him by default, and by advertising his entire stock of goods at and below New York cost. It was not until after this advice had been given that the petition in bankruptcy was prepared and filed.

That the facts stated in the point proposed, if believed by the jury, were a perfect defence to the action; that they constituted in law a probable cause, and being such, that malice alone, if there was such, was insufficient to entitle the plaintiff to recover,-is, in view of the decisions, beyond doubt. snow v. Allen, 1 Stark. 502; Ravenga v. Mackintosh, 2 Barn. & Cress. 693; Walter v. Sample, 25 Pa. St. 275; Cooper v. Utterbach, 37 Md. 282; Olmstead v. Partridge, 16 Gray (Mass.), 381. These cases, and many others that might be cited, show that if the defendants in such a case as this acted bona fide upon legal advice, their defence is perfect.

The remaining exceptions to the charge require but brief notice. They relate to the assessment of damages, under the positive instruction to find for the plaintiff. Of these but a single one need be noticed. The court was asked to charge that the jury, if they found for the plaintiff, could not, in estimating the damages, consider the fees of counsel in prosecuting the case. The instruction was not given. It was refused, and erroneously, as we think. The fees of counsel in prosecuting this case were no part of the consequences naturally resulting from the action of the defendants in suing out the decree and warrant in bankruptcy. They were not what the defendants ought to have foreseen. That such fees are not recoverable, and why they are not, was clearly shown in Good v. Mylin, 8 Pa. St. 51; vide also Alexander v. Herr, 11 id. 537; Stopp v. Smith, 71 id. 285; Hicks v. Foster, 13 Barb. (N. Y.) 424. The rule asserted in these cases we think is correct, and it should have been given to the jury in the present case. The defendants were the more injured by the refusal to give it, because evidence was given of the cost of prosecuting the suit calculated immensely to influence the damages,-evidence which should not have been offered or received.

The other exceptions to the charge require no notice.

The judgment of the Circuit Court will be reversed, and the case remanded with instructions to award a venire de novo; and it is

So ordered.

MR. JUSTICE BRADLEY dissenting.


text: Talk:Stewart v. Sonneborn/Opinion of the Court