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Planters' Bank v. Union Bank/Opinion of the Court

'We think the proper character of the transaction was that of hostile seizure made, if not flagrante, yet, nondum cessante bello, and consequently the municipal court had no jurisdiction to adjudge upon the subject; but if anything had been done amiss, recourse could only be had to the government for redress.'

The right of the conqueror to acquire title to possess and alienate both immovable and incorporeal property is treated of by Dr. Phillimore. Speaking of the case of payment of a debt to a conqueror, subsequently to which the former sovereign is restored, he puts these questions:

'Has the restored government the right to demand of the debtor the payment which he has discharged during the interregnum? Does it follow that if this government had the right to exact the debt, it was the debtor's duty to pay it? Are the two propositions convertible? Or, if so, may not the original creditor demand a second payment?'

The author then quotes Bynkershoek, to the effect that the debt is satisfied and extinct; and this, he says, is unquestionably the opinion of the greater number of the most able jurists; the conclusion from the analogies to be drawn from the Roman law, and the international practice as shown by treaties.

The order of General Banks has been approved by his government; his receipts have of course been accounted for by him. If, in the exercise of his power, 'anything has been done amiss' (we use the language of Lord Tenterden), 'recourse could only be had to the government for redress.'

The government has passed laws protecting its military officers for acts done during the war. It has thus interposed itself in this case between the parties to the controversy. If the order was originally illegal, the government has protected the officer from suit. It has made his acts its own, and if wrong has been inflicted, the creditor can look only to the good faith of Congress.

The question whether private debts are properly subjected to seizure, has created much discussion. The case is often provided for by treaty. The 10th article of the treaty of 1794, with Great Britain, declares they shall not be 'confiscated or sequestered.' The articles of 'Camillus,' written by Hamilton in vindication of this article, show the violence with which the provision of t e treaty had been attacked.

His vindication of the principles involved proceeds on the ground that whenever a government grants permission to a foreigner 'to bring his property within its territory, it tacitly promises protection.' How, he asks, can it be reconciled with the idea of a trust, to take the property from its owner, when he has personally given no cause for the deprivation?

Again,

'Where the persons or goods of an enemy are found in our country, there is a reliance upon our hospitality and justice; there is an express or implied safe conduct; the individuals and their property are in the custody of our faith. To make them a prey is therefore to infringe every rule of generosity and equity; it is to add cowardice to treachery.'

The reason, therefore, for the denial of the right of such seizure between two independent governments on the breaking out of war, would seem to have no application to a war waged for the suppression of a rebellion, and we may further add that notwithstanding the strong language of 'Camillus,' the decisions of this court are decidedly in favor of the right, even as between foreign nations.

Payment to a usurped government such as that of the Confederates is held good on the principle of irresistible force.

This court lately decided that the United States could not recover against one of its officers who had paid over to the Confederate authorities the amount due to the former, for the payment had thus extinguished the debt.

In the case before us it can make no difference whether the defendant held the plaintiff's funds on special or general deposit; in other words, whether as bailee or debtor. The order was not directed to obtain any property or funds of the defendant, but to obtain the property or funds of the plaintiff. To enforce now by judicial sentence a second payment from the defendant, is to shield him intended to be wounded, and wound the party intended to be shielded.

2. The order for a remittitur entered on the application of the plaintiff, was a confession of record, that the amount thus renounced was not due by the defendant. It was in the nature of a judgment, and the court had no power after the lapse of the term at which it was entered to set it aside. It is like a judgment on retraxit, which is as complete a bar as a judgment on verdict.

3. It was equally erroneous to order an execution for a part of the first judgment rendered while the motion for a new trial was pending and undisposed of. The defendant was thus deprived of his writ of error and supersedeas, and was forced to pay the amount of this execution, as this was not a final judgment.

4. Can the dealing of these banks in Confederate notes and bonds, thus stimulating their circulation and enhancing their value, be the foundation of a valid contract enforceable in the courts of the United States?

The grounds of necessity which induced the court to declare that this currency constituted a sufficient consideration for a note in the case of Thorington v. Smith do not cover this case. There was certainly here no necessity for the purpose of maintaining social existence in the South, to deal in bonds given for the purpose of carrying on the rebellion, as there might have been in using the only money there, the Confederate notes.

Mr. T. J. Durant, for the Planters' Bank, and in support of its assignment of error:

The court below erred in charging the jury that the measure of indebtedness of the Union Bank to the Planters' Bank was the value of Confederate currency in National currency at the time the Planters' Bank demanded payment from the Union Bank, and not the value at the time the Union Bank received the Confederate currency and pass d the amount thereof on its books to the credit of the Planters' Bank.

The exact matter was decided by this court in Marine Bank v. Fulton Bank. There the latter bank, one of New York, had remitted to the former, a bank of Chicago, two notes for collection, which was made. About a year after the collection was made the New York bank made a demand of payment from the Chicago bank, which was refused unless the former bank would accept Illinois currency, at the time of demand of payment sunk in value to 50 per cent. below par.

In speaking of this collection, this court said:

'It was used by the bank in the same manner that it used the money deposited with it that day by city customers, and the relation between the two banks was the same as that between the Chicago bank and its city depositors. It would be a waste of argument to attempt to prove that this was a debtor and creditor relation.'

The features of this case are so analogous to the case now before us, and the reasoning of the court is so applicable throughout, that we only refer to other cases to the same effect.

Mr. Justice STRONG delivered the opinion of the court.

Whether the payment in Confederate notes, and the quartermaster's acceptance of them in discharge of the balance, was a satisfaction of the claim of the plaintiffs upon the defendants is a controlling question in the case. The Circuit Court instructed the jury that it was not, because payment was made to the quartermaster in Confederate notes, which the court was of opinion he had no authority to receive, though holding that the military authorities thus exacting payment were invested with all the rights of a creditor.

It might be difficult to maintain, if the military authorities were clothed with the rights of creditors, that is, if they had succeeded to the position and title of the plaintiffs, that they could not determine what funds they would receive in payment of the balance on the defendants' books to the credit of the plaintiffs. It is not perceived why they could not accept Confederate notes in discharge of a debt which had become due to them. But a grave question lies back of this. Did the order of General Banks justify any payment of the balance to the military authorities? If it did not, it is immaterial in what currency the payment was made. Payment in any currency was no protection to the debtors. The validity of the order is, therefore, the first thing to be considered. It was made, as we have seen, on the 17th of August, 1863. Then the city of New Orleans was in quiet possession of the United States forces. It had been captured more than fifteen months before that time, and undisturbed possession was maintained ever after its capture. Hence the order was no attempt to seize property 'flagrante bello,' nor was it a seizure for immediate use of the army. It was simply an attempt to confiscate private property which, though it may be subjected to confiscation by legislative authority, is, according to the modern law of nations, exempt from capture as booty of war. Still, as the war had not ceased, though it was not flagrant in the district, and as General Banks was in command of the district, it must be conceded that he had power to do all that the laws of war permitted, except so far as he was restrained by the pledged faith of the government, or by the effect of Congressional legislation. A pledge, however, had been given that rights of property should be respected. When the city was surrendered to the army under General Butler, a proclamation was issued, dated May 1st, 1862, one clause of which was as follows: 'All the rights of property of whatever kind will be held inviolate, subject only to the laws of the United States.' This, as was remarked in the case of The Venice i, 'only reiterated the rules established by the legislative and executive action of the National government in respect to the portions of the States in insurrection, occupied and controlled by the troops of the Union.' That action, it was said, indicated the policy of the government to be, not to regard districts occupied and controlled by National troops as in actual insurrection, or their inhabitants as subject, in most respects, to treatment as enemies.

Substantial, complete, and permanent military occupation and control was held to draw after it the full measure of protection to persons and property consistent with a necessary subjection to military government. We do not assert that anything in General Butler's proclamation exempted property within the occupied district from liability to confiscation as enemies' property, if in truth it was such. All that is now said is that after that proclamation private property in the district was not subject to military seizure as booty of war. But admitting, as we do, that private property remained subject to confiscation, and also that the proclamation applied exclusively to inhabitants of the district, it is undeniable that confiscation was possible only to the extent and in the manner provided by the acts of Congress. Those acts were passed on the 6th of August, 1861, and on the 17th of July, 1862. No others authorized the confiscation of private property, and they prescribed the manner in which alone confiscation could be made. They designated government agents for seizing enemies' property, and they directed the mode of procedure for its condemnation in the courts. The system devised was necessarily exclusive. No authority was given to a military commandant, as such, to effect any confiscation. And under neither of the acts was the property of a banking institution made confiscable. Both of them had in view the property of natural persons who were public enemies, of persons who gave aid and comfort to the rebellion, or who held office under the Confederate government, or under one of the States composing it. In no one of the six classes of persons whose property was by the act of 1862 declared subject to confiscation was an artificial being included. It is, therefore, of little importance to inquire what, under the general laws of war, are the rights of a conqueror, for during the recent civil war the government of the United States asserted no general right in virtue of conquest to compel the payment of private debts to itself. On the contrary it was impliedly disclaimed, except so far as the acts of 1861 and 1862 asserted it. Those enactments declaring that private property belonging to certain classes of persons might be confiscated, in the manner particularly described, are themselves expressive of an intent that the rights of conquest should not be exercised against private property except in the cases mentioned, and in the manner pointed out. And it is by no means to be admitted that a conquering power may compel private debtors to pay their debts to itself, and that such payments extinguish the claims of the original creditor. It does indeed appear to be a principle of international law that a conquering state, after the conquest has subsided into government, may exact payment from the state debtors of the conquered power, and that payments to the conqueror discharge the debt, so that when the former government returns the debtor is not compellable to pay again. This is the doctrine stated in Phillimore on International Law, to which we have been referred. But the principle has no applicability to debts not due to the conquered state. Neither Phillimore nor Bynkershoeck whom he cites, asserts that the conquering state succeeds to the rights of a private creditor.

It follows then that the order of General Banks was one which he had no authority to make, and that his direction to the Union Bank to pay to the quartermaster of the army the debt due the Planters' Bank w s wholly invalid. This makes it unnecessary to consider in detail the exceptions taken by the defendants to the rulings of the Circuit Court, respecting the order and the alleged payment under it; for if the order was invalid, payment to the quartermaster did not satisfy the debt.

It is further assigned for error by the defendants, that the court allowed the plaintiffs to withdraw a remittitur entered by them of part of a verdict obtained on a former trial of the case. The only objection made in the court below to the allowance was, that the remittitur was an acknowledgment of record that the amount remitted was not due. There had been a former trial in which the plaintiffs had obtained judgment for $113,296.01, with five per cent. interest from November 25th, 1863. This was a larger amount of interest than the petition of the plaintiffs had claimed, and they entered on the judgment a remittitur of the excess, expressly reserving their rights to the balance of the judgment. Subsequently a new trial was granted, and it is now contended that the remittitur had the effect of a retraxit. As it was entered after judgment, such would perhaps be its effect if the judgment itself had not been set aside and a new trial had not been granted. But such cannot be its operation now. If it takes effect at all it must in its entirety, and the plaintiffs must hold their first judgment for the balance unremitted. As that judgment no longer exists, there is no reason for holding that the remission of a part of it is equivalent to an adjudication against them. This assignment of error is, therefore, not sustained.

Another error assigned by the defendants is, that the court ordered execution to issue on the judgment first recovered for the sum of $26,752.63, without prejudice to the plaintiffs' rights to recover the balance, that amount having been admitted to be due, and that this was done before the motion for a new trial was disposed of. It must be admitted that though there was a judgment in existence, the order of an execution at the time it was made was anomalous. But there does not appear to have been any objection to it, and it is not shown that the defendants have sustained any injury in consequence of its issue. It may fairly be presumed that the defendants assented to the order, and admitted that the sum for which the execution was directed was due. The new trial afterwards granted was limited to the controversy respecting the excess of the claim over $26,752.63, which, as the order stated, 'was admitted by the defendants to be due the plaintiffs.'

The only remaining errors assigned by the defendants which require notice, grow out of the refusal of the court to charge the jury as requested, that if they found the balance of account sued for was composed wholly or in part of direct remittances from the plaintiffs to the defendants of Confederate treasury notes, and of collections of drafts payable and paid in such notes, and if they found that the banks were necessary instruments of the Confederate government for putting its issues of Confederate notes in circulation and forcing them upon the country, and that the plaintiffs, as one of the banks, willingly lent itself as an instrument of that government, then the plaintiffs could not recover such amount of the balance thus composed of treasury notes and collections. The point, it will be observed, does not assume that the plaintiffs were willing agents, or agents at all of the Confederate government in putting into circulation the notes which went to make up the balance of account standing to their credit. It assumes only that they had, as such agents, put some of the issues of the government into circulation, at some time, in some transaction with some person, not necessarily the defendants. That assumption, had it been sustained by the finding of the jury, was wholly impertinent, and therefore the only relevant question presented by the point was, whether Confederate trea ury notes had and received by the defendants for the use of the plaintiffs were a sufficient consideration for a promise, express or implied, to pay anything. After the decision in Thorington v. Smith the point could not have been affirmed. A promise to pay in Confederate notes, in consideration of the receipt of such notes and of drafts payable by them, cannot be considered a nudum pactum or an illegal contract.

Nor should the court have charged that, in the circumstances of this case, no action would lie for the proceeds of the sales of Confederate bonds which had been sent by the plaintiffs to the defendants for sale, and which had been sold by them, though the proceeds had been carried to the credit of the plaintiffs and made a part of the accounts. It may be that no action would lie against a purchaser of the bonds, or against the defendants on any engagement made by them to sell. Such a contract would have been illegal. But when the illegal transaction has been consummated; when no court has been called upon to give aid to it; when the proceeds of the sale have been actually received, and received in that which the law recognizes as having had value; and when they have been carried to the credit of the plaintiffs, the case is different. The court is there not asked to enforce an illegal contract. The plaintiffs do not require the aid of any illegal transaction to establish their case. It is enough that the defendants have in hand a thing of value that belongs to them. Some of the authorities show that, though an illegal contract will not be executed, yet, when it has been executed by the parties themselves, and the illegal object of it has been accomplished, the money or thing which was the price of it may be a legal consideration between the parties for a promise, express or implied, and the court will not unravel the transaction to discover its origin. Thus, in Faikney v. Reynous, a plaintiff was allowed to recover in an action on a bond given by a partner to his copartner for differences paid in a stockjobbing transaction prohibited by act of Parliament. This was the case of an express agreement to pay a debt which could not have been recovered of the firm. Petrie v. Hannay was a similar case, except that the partner plaintiff had paid the differences by a bill on which there had been a recovery against him, and his action against his copartner for contribution was sustained. This was an action on an implied promise. Ex parte Bulmer goes much farther, and perhaps farther than can now be sustained. We are aware that Faikney v. Reynous and Petrie v. Hannay have been doubted, if not overruled, in England, but the doctrine they assert has been approved by this court. Lestapies v. Ingraham is full to the same effect. We think, therefore, the court was not in error in refusing to affirm the defendants' points.

No more need be said respecting the exceptions taken and errors assigned by the defendants below. None of them are sustained.

A single assignment of error made by the plaintiffs below remains to be considered. At the trial they asked for the following instruction: 'If the jury should find from the evidence that the defendants received Confederate currency on behalf of the plaintiffs, and entered it to the credit of the plaintiffs on the books of the bank, and used it in their general business, the defendants thereby became the debtors of the plaintiffs, and that the measure of the indebtedness was the value of Confederate currency in the lawful money of the United States at the time the credit was entered and the collections were made.' This instruction the court declined giving, but in lieu thereof charged the jury that the measu e of indebtedness for receipts, or collections, made by the defendants in Confederate currency and used by them in their general business, was the value of such currency at the date of demand of payment made by the plaintiffs, and not at the date when such currency was received and used by the defendants in their business. This refusal to instruct the jury as requested and the instructions actually given are now complained of as erroneous. We think, however, they were correct in view of the assumed and conceded fact. We do not controvert the position that generally a bank becomes a debtor to its depositor by its receipt of money deposited by him, and that money paid into a bank ceases to be the money of the depositor and becomes the money of the bank which it may use, returning an equivalent when demanded, by paying a similar sum to that deposited. Such is undoubtedly the nature of the contract between a depositor and his banker. So also a collecting bank ordinarily becomes the owner of money collected by it for its correspondent, and consequently a debtor for the amount collected, under obligation to pay on demand, not the identical money received, but a sum equal in legal value.

But it is to be observed this is the rule where money has been deposited, or collected, and when there has been no contract or understanding that a different rule should prevail. The circumstances of the present case are peculiar. It seems to have been conceded in the court below that the deposits were made in Confederate currency, and that the collections were made in like currency with the assent of the plaintiffs. The instructions asked of the court assume this. The Union Bank then became the agent of the plaintiffs to receive and to collect, not money, but Confederate notes, or promises, and the obligation it assumed was to pay Confederate notes when they should be demanded. The subject of the contract was a commodity, not money, and there was no default in the Union Bank until a demand was made and refused. And from the nature of the transaction it is to be inferred that the intent of the parties was that the one should impose and the other assume only a liability to return to the plaintiffs notes of the Confederate government like those received, or collected; notes promising to pay a like sum. And it is not perceived that the effect of the assumption is changed by the fact that the defendants used the notes received in their general business, if they did use them, prior to any demand for the fulfilment of their undertaking. Such use was in contemplation of the parties from the beginning. In Robinson v. Noble's Administrators, a promise to pay in Cincinnati at a certain time, 'in the paper of the Miami Exporting Company, or its equivalent,' was held by this court to impose upon the promisor only a liability to make good the damages sustained through his failure to pay at the day, and that those damages were measured by the market value of the paper at the time when payment should have been made. The promise was assimilated to an engagement to deliver a certain quantity of flour, or any other commodity, on a given day. A loan for consumption to be returned in kind contemplates a restoration not of the identical thing loaned, but of a similar article equal in quantity, and if no return be made, all that the lender can require is the value of the thing which should have been returned at the time when the contract was broken. The value at the time of the loan is not to be considered. Both parties take the risk of appreciation or depreciation. Why should not a similar rule be applied to the present case? Ought the plaintiffs to recover more than the damages they have sustained from the breach of the contract? Ought they to be placed in a better position than that they would occupy if the defendants had paid them the right quantity of Confederate notes when they were demanded? We think not. Clearly if the notes had appreciated after they were received by the defendants, and before the demand as made, the plaintiffs would have been entitled to the benefit of the appreciation. This is because of the nature of the transaction, and it would seem, for the same reason, the risk of depreciation was necessarily theirs.

This case differs very materially from Marine Bank v. Fulton Bank. There, it is true, the collecting bank received depreciated currency of the Illinois banks, and, it may be assumed, with the assent of its correspondent. But there were positive instructions to hold the avails of the collections subject to the order of the bank which had sent the notes for collection; and the proceeds of the collections were an authorized lawful currency. The two banks, therefore, stood to each other in the relation of debtor and creditor, and the collecting bank acknowledged that relation immediately on the payment of the notes which had been sent to it for collection. Not so here. The collections were not made in money, and it was not the understanding of the parties that money should be paid. We hold, therefore, that the Planters' Bank ought not to be permitted to recover more than the damages sustained by it in consequence of the defendant's failure to deliver Confederate notes when they were demanded, and those damages are measured by the value of those notes in United States currency at the time when the demand was made and when the notes should have been delivered; and in so holding we do not intend to deny or qualify the doctrine asserted in Marine Bank v. Fulton Bank, or in Thompson v. Riggs. It follows that the charge given to the jury was correct.

There is, then, nothing in the record complained of by either party which would justify our ordering a new trial.

JUDGMENT AFFIRMED.


text: Talk:Planters' Bank v. Union Bank/Opinion of the Court

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Page:Dictionary of National Biography volume 59.djvu/44

 admitted a student of the Middle Temple, and was called to the bar in Michaelmas term 1860. It was his intention to practise at the parliamentary bar, and he joined Messrs. Chadwick and Adamson; but the connection was soon dissolved, though he continued to give legal opinions on insurance questions.

About this time Walford became connected with the Accidental Death Insurance Company. Of its successor, the Accident Insurance Company, he was a director from 1866 until his death, and for a year or two he acted as manager. About 1862 he was a director of the East London Bank. In that year he was made manager of the Unity Fire and Life Office, but could not succeed in resuscitating it, and in 1863 the business was taken over by the Briton office, Walford being appointed its liquidator. In 1861 he paid the first of many visits to the United States of America. He brought out in 1870 an ‘Insurance Year Book.’ In the latter year he was appointed manager of the New York Insurance Company for Europe. His great literary labour was his ‘Insurance Cyclopædia,’ a compilation of immense labour, expected to occupy ten large octavo volumes. The first volume is dated in 1871; the fifth, and last complete, volume came out in 1878, and each of them contained about six hundred pages (see Times, 2 Jan. 1878). One further part only was issued, concluding with an essay on ‘Hereditary Diseases;’ but large materials were left for the remaining volumes.

In 1875 Walford became a fellow of the Historical Society; in 1881 he was elected a vice-president, and he was its vice-chairman during the quarrels that all but led to its disruption. From 1877 to 1881 he read papers before it—the most important of his contributions being an ‘Outline History of the Hanseatic League,’ reprinted from volume ix. in 1881 for private circulation. He continued his addresses to the Institute of Actuaries and the Statistical Society, two of his papers on ‘The Famines of the World Past and Present,’ which he read before the last society, being reprinted in 1879. The article on ‘Famines’ in the new edition of the ‘Encyclopædia Britannica’ was also from his pen. He was a member of the executive council of international law, and read papers to the members at their meeting in London in 1879.

Walford had projected in 1877 ‘A New General Catalogue of English Literature,’ and in that and succeeding years dangled the project before the Library Association. But the enterprise collapsed with the reprint of his paper on ‘Some Practical Points in its Preparation.’ An undertaking more feasible in scope was his proposed ‘Cyclopædia of Periodical Literature of Great Britain and Ireland from the Earliest Period,’ which he purposed compiling in conjunction with Dr. Westby-Gibson. In 1883 he issued an outline of the scheme. But no part of the collections was published.

In 1879 Walford issued a ‘History of Gilds,’ reprinted from volume v. of the ‘Insurance Cyclopædia,’ and in 1881 his paper before the Statistical Society on ‘Deaths from Accident, Negligence, &c.’ was published separately. He printed for private circulation in 1882 a treatise on ‘Kings' Briefs: their Purposes and History,’ and began in the same year in the ‘Antiquarian Magazine’ an expansion of his treatise on ‘Gilds.’ These papers were not finished at the time of his death, but the complete volume, entitled ‘Gilds: their Origin, Constitution, Objects, and Later History,’ was published by his widow in 1888. In 1883 he brought out a book on ‘Fairs Past and Present,’ and in 1884 ‘A Statistical Chronology of Plagues and Pestilences.’

Walford, who manifested a lifelong interest in shorthand, became, at the close of 1881, president of the newly founded Shorthand Society. In the autumn of 1884 he revisited, for his health's sake, the United States and Canada, and attended three shorthand conventions. In December 1884 he gained the Samuel Brown prize by his paper at the Institute of Actuaries on the ‘History of Life Insurance.’ He lived in London in two adjoining houses in Belsize Park Gardens, where he had gathered around him a large library, and he died there on 28 Sept. 1885, leaving a widow (his third wife) and nine children, three sons and six daughters, by his first and second wives. He was buried at Woking cemetery on 3 Oct. A catalogue raisonné of a portion of his library was printed in May 1886 for circulation among his friends (Notes and Queries, 5 June 1886, p. 460). His collections on insurance were purchased by the New York Equitable Life Insurance Company. The rest of his library and the manuscripts for the completion of his ‘Insurance Cyclopædia’ perished in a fire from lightning at his widow's house near Sevenoaks (Standard, 4 Sept. 1889).

[Memoir by Dr. Westby-Gibson in Shorthand, November 1885; In Memoriam, by his kinsman, Edward Walford [q. v.], in No. 15 of Opuscula of Sette of odd Volumes; Western Antiquity, v. 162; Literary World, Boston, xv. 197–8;


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Tweed's Case

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

The act of Congress of July 2d, 1864, in addition to that of a prior date, 'to provide for the collection of abandoned property and for the prevention of frauds in insurrectionary districts within the United States,' enacted in its 8th section that it should be lawful for the Secretary of the Treasury. . . 'to authorize agents to purchase for the United States any products of States declared in insurrection. . . at such prices as ay be agreed on with the seller, not exceeding the market value thereof at the place of delivery,' &c.

This statute being in force, Tweed, upon the 23d of January, 1866, entered into a contract with one Burbridge, then deputy general agent of the Treasury Department, in which, after reciting 'that it is represented that large quantities of cotton, which formerly belonged to the late so-called Confederate States, are now in possession of individuals in the Red River country, concealed from the knowledge of agents appointed to collect the same, and the marks by which said former ownership could have been proved have been destroyed, for the purpose of enabling the individuals holding it to convert it to their own use; and whereas, it is also represented that most of this cotton is held at places and in districts remote from military posts, so that, if it could be found and identified, it could not be brought forward by the agents, except by increasing the expense of obtaining military aid in its removal, and that the parties holding it dare not bring it within the reach of the civil or military authorities, for fear that its true character may be discovered, thereby causing its seizure; and whereas, it is also represented that a large portion of this cotton can be purchased from the holders at much less than its real value, if the purchaser will take the title at his own risk of seizure by government authorities,' it was agreed that Tweed was to furnish all money necessary to buy said cotton, together with all necessary assistance for the purpose of transportation, and to 'use all proper efforts to purchase as much of said cotton situated upon and near the Red River and its tributaries as can be purchased, prepared for shipment, and transported to and delivered at New Orleans, at a cost not exceeding three-fourths its market value there, and to deliver the same to said Burbridge, in New Orleans.' And, thereupon, Burbridge agreed to deliver to Tweed three-fourths of such cotton in full of his interest therein.

On the 24th of February, 1866, the Secretary of the Treasury wrote from Washington, D. C., a letter to the general agent of the Treasury Department at New Orleans, directing the termination of this contract. As hereafter stated, Tweed received notice of this revocation 'in March, 1866.'

Having obtained the contract above mentioned, Tweed bought from various owners, at a fair market price, in and about Shreveport, Louisiana, 495 bales of cotton; 463 bales of it were bought on or before the 1st of March, 1866 (50 of these 463 on the 5th of February preceding), and the rest upon the 5th and 8th of March.

On the 10th of March, 1866, Burbridge was succeeded in his office of deputy agent, &c., by one Flanders.

The cotton reached New Orleans March 23d, 1866, a part of it having been shipped from Shreveport on the 13th of the same month. Insurance on it was effected under an open policy of Burbridge, deputy agent, &c., and it came to New Orleans subject to adjudication by said Burbridge, &c.

On its arrival, Flanders, as successor of Burbridge, and the now deputy general agent of the United States, claimed one-fourth of it under the contract above stated, and accordingly delivered to Tweed the three-fourths, but refused to deliver the other fourth.

Hereupon Tweed filed a petition in the court below claiming the 123 bales which Flanders, a deputy general agent, retained. The petition alleged that no part of the cotton which he had bought in and about Shreveport was captured or abandoned property, and that the United States had no right, title, or interest in the same, or any part thereof; that the 123 bales retained were worth $17,500; and that he Tweed, feared that Flanders would, pending the suit, dispose of and remove them from the jurisdiction of the court. It prayed for a citation of Flanders, sequestration of the cotton until further orders, and that, after due proceedings, the cotton be redelivered. The citation was granted and the cotto sequestered, &c.

The answer of Flanders denied that Tweed owned the cotton, and asserted that it belonged to the United States; that he, Flanders, was in possession of it as an officer of the United States, by virtue of a contract between Tweed and the Treasury Department, and that the cotton being virtually in the custody of the United States was not liable to sequestration, and that all his, Flanders's, acts in reference to it were official, and not private; that, accordingly, the court had no jurisdiction over the matters complained of, but that such jurisdiction was exclusively in the Court of Claims.

The United States, intervening, stated that the cotton belonged to them as sole owners, and that Flanders was in possession merely as their agent.

The case was tried before a jury. The bill of exceptions showed that evidence was offered which conduced to show—

'That the cotton was raised in the northern part of Texas, by planters, and was possessed by them until the winter of 1865-66, and was sent to market or to Jefferson, Texas, as private property, and that it had never been captured by or surrendered to the army or any military authority of the United States, nor included in any surrender; that none of it was the property of the Confederate States, or had been destined for their use, but was private property; that the defendant testified that he had no evidence at all to affect it as captured or abandoned property; that while said cotton was deposited in the warehouse at Jefferson, Texas, one Turnbull, then an agent to collect abandoned and captured property, published a notice for claimants of cotton to make oath of their ownership, and failing to do this he would seize it as captured property. One of the parties whose property was seized had no notice of the order, and his property was taken and held by Turnbull, and other property was seized by said Turnbull upon protest of the same kind; and the testimony generally conduced to prove these facts, and that in the opinion of the witness his seizures were oppressive, causeless, and for the purpose of extortion.'

'That in March, 1866, the plaintiff went to Shreveport under his contract; that he discovered that there was no property of the kind described in the contract upon which it operated. He was also informed that the contract had been revoked by the Treasury Department. The supervising agent at Shreveport first gave him information to this effect. Thereupon he determined not to take any proceedings under it, and so notified the agent at Shreveport. During the months of February and March, he made purchases of cotton from the owners of the cotton that had been held and seized by Turnbull as aforesaid, and which was then in custody of the agents aforesaid by reason of the seizure. He was informed that no evidence had been produced to affect the claims of the owners and the purchases were safe. The supervising treasury agent at Shreveport, who held the cotton, so advised the plaintiff.'

THE PLAINTIFF asked the court to charge:

'If the cotton described in the petition was not captured by the army of the United States, nor surrendered to them, was not abandoned property, nor was ever property of the Confederate States, but was produced on plantations of private individuals, and was held and possessed as private property by them until the purchase of the same by the plaintiff; and if he purchased the same on his own account from such private owner, and the same was delivered to him, and the same was so held until the detention of the same by the defendant, who did not take, or hold, or possess it under color of any law or statute of the United States, or any authority of his office, or color of the same, but of his own will, the plaintiff is entitled to recover.'

This charge the court gave, and the defendants excepted.

THE DEFENDANT asked the court, to charge, in effect:

'1. That a writ of sequestration would not lie if the defendant held the cotton in question as deputy genera agent of the Treasury Department, under the acts of Congress relating to captured or abandoned property.

'2. That the Circuit Court had no jurisdiction by virtue of the writ of sequestration to direct the cotton to be taken from the possession of the defendant, if the same, at the time the writ issued, was in his possession as such agent, under color of the acts of Congress relating to captured and abandoned property.

'3. That the defendant, if he held the possession of the cotton, as such agent for the collection of captured or abandoned property, had the right to retain the same, and that the plaintiff could not recover the property except by suit in the Court of Claims.'

The court refused thus to charge; and the defendant excepted. The jury found for the plaintiff, and judgment went accordingly.

On the exceptions above stated, and on the refusal of the court on motion to arrest the judgment, the cases were now here on writs of error by both Flanders and the United States.

Mr. S. F. Phillips, Solicitor-General, with whom was Mr G. H. Williams, Attorney-General, for the plaintiff in error:

The case raises these questions:

1. How far one, who became an agent of the United States to purchase cotton of a certain description at a specified time and place, can show that cotton purchased by him at such a time and place is not within the scope of his agency?

2. Whether property held under the act of July 8th, 1864, section two, is liable to sequestration, pendente lite, in favor of an adverse claimant?

3. Whether the only remedy of the plaintiff below be not exclusively in the Court of Claims?

I. The error in the instruction requested by the plaintiff, and given by the court, is, that it takes for granted that Tweed as agent of the United States, under the contract, could, with regard to any cotton bought by him at the time and place that most if not all of this was, disclaim being an agent of the United States.

There was no evidence that Tweed's agency had been revoked by the first day of March, 1866. The letter authorizing such revocation was written at Washington on the 24th of February before, addressed to an officer at New Orleans, but Tweed first heard of it 'in March,' at Shreveport. The burden of showing when an existing agency terminated, is upon him who avers it, and, therefore, in this case, upon Tweed. All that he shows thereupon is that he first heard of it in March, without further specification. It may be assumed as a fact that Tweed had not heard of the revocation until several days after the 1st of March. It also appears that four hundred and sixty-three bales of this parcel of cotton were bought by Tweed on or before March 1st, and all of it by March 8th. Much the larger part of the cotton, therefore, was bought at the time when and the place where Tweed's agency operated; probably all of it was.

Will public policy allow him to suggest that such cotton was bought as principal, for his own individual advantage?

Tweed shows that the contract extended to only such Confederate cotton as was on Red River, and he alleges that this was not of that class.

Before proceeding further, we observe that, if any part of this cotton, no matter how small, was purchased by Tweed as agent, in this suit brought by him under an allegation that none of it was so purchased, the plaintiffs in error are entitled to the benefit of the doctrines in respect to the mingling and confusion by agents of their own and their principal's goods. The case shows that fifty bales were purchased on the 5th of February.

The contract was undoubtedly made at Tweed's promotion. This imposed upon him vigilance, activity, and the duty of having an eye single to the interest of his employer, to such extent that whilst agent he could not place himself in a position to become interested to allay or divert the suspicion of that employer as to any particular parcel of cotton. His bona fides in a particular case need not be questioned. Th question is whether an allowance of such liberty to an agent may not open a door to fraud in general. Will the relation of principal and agent admit of such liberty? We think not.

II. As respects the refusal of the court to give the first and second instructions asked by the defendant, we assign as ground of error that the court assumed the propriety of the writ of sequestration issued in this case. Concede that the plaintiff was entitled to recover in some action, yet during the pendency of his action the property in question could not be taken out of the hands of an agent of the United States by sequestration; because,

1st. The custody of the cotton by Flanders was the custody of the law. A thing in the keeping of an officer of the government, under color of a statute of the United States, upon trust for the benefit of the whole country, is in custody of the law, as much as if in the keeping of an officer of the government, under color of process from a court or magistrate, upon trust for the benefit of one or more citizens.

2d. The possession by Flanders was the possession by the United States.

In the third instruction refused, the court below assumed a jurisdiction which was exclusively in the Court of Claims.

Mr. T. D. Lincoln, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Tweed's Case


text: Talk:Tweed's Case

title: Talk:Tweed's Case


text:
Tweed's Case/Opinion of the Court

Cotton in bales to a large amount was purchased by the plaintiff from different owners of the same, for which he paid a fair market value, as appears by the bills of sale exhibited in the record, amounting in the whole to four hundred and ninety-five bales; [?] that he shipped the same for his own account, to his own agents in New Orleans, and that he paid the freight on the same, and the other expenses and insurance. Testimony was also introduced by the plaintiff showing that the cotton was raised by planters in an adjoining State, and that they continued to possess it until it was sent to market; that the cotton had never been captured by, or surrendered to our army; that none of it was the property of the Confederate States, nor had it ever been destined for their use.

Prior to those transactions a contract had been made between a supervising special agent of the Treasury Department and the plaintiff, that the plaintiff should engage in the business of collecting captured and abandoned cotton in that district. By that instrument it was agreed between the parties that the plaintiffs should furnish all money necessary to purchase the cotton, and all the assistance required for the purpose, and all the requisite transportation, and that he should use all proper efforts to make the purchases and to transport and deliver the same to the other party, at the port of New Orleans, in good shipping order, with receipted bills of sale from the holders, at a cost not exceeding three-fourths of its market value, and free and discharged of all cost of purchase and expense of transportation. In consideration of which the other party agreed to pay and deliver to the plaintiff three-fourths of the cotton, of average quality, as compensation in full for his services, and all costs and expenses. Efforts were made by the plaintiff to make such purchases, but it appears that he soon found that there was no cotton of that description within the said district, and having learned that the contract had been revoked by the Treasury Department, he determined to proceed no further under that agreement.

Property of the kind, however, was seized by another party, to whose transactions it becomes necessary to advert, in order to a full understanding of the present controversy. He, the said other party, published a notice for the claimants of cotton to appear and make oath of their ownership, stating that if they failed to do so he would seize it as captured property. Such property was seized by that party, claiming to be an agent to collect captured and abandoned property, but the evidence introduced tended to prove that his seizures were causeless and oppressive. Some of the cotton seized under those circumstances, and which remained in the hands of the agents of the party making the seizures, the plaintiff admits he purchased, from the owners of the same, having been previously informed by a supervising treasury agent that no evidence had been produced to affect the claims of the owners, and that it was safe to make the purchases, and it appears that the cotton was shipped to New Orleans with his other shipments. All of these transactions took place while the other party to the written agreement was a supervising special agent, but he was soon after superseded, under the instructions of the Treasury Department, and the defendant in the present suit was appointed in his place.

Enough is remarked to show the origin of the controversy, as the defendant insisted that the written agreement between his predecessor and the plaintiff was applicable to all the cotton which the plaintiff had purchased and shipped, and that he, as the successor of the other party to that agreement, was entitled to hold one-fourth of the cotton so purchased and shipped, for the United States.

Pursuant to that claim the defendant made a division of the cotton, and delivered three-fourths of the same to the plaintiff and retained one-fourth of the whole amount. Demand of the other one-fourth having been refused, the plaintiff instituted the present suit to recover the residue of the cotton, being one hundred and twenty-three bales, valued at the sum of $17,500. Service was made, and the defendant appeared and made defence.

Proceedings in the meantime took place under the last paragraph of the petition, in which the plaintiff prayed that a writ of sequestration might be issued, directed to the marshal, requiring him to take the cotton in question into his possession, and to hold the same subject to the order of the court, and he also prayed for judgment decreeing that the cotton is his property, and that the same be delivered to him, or that he have judgment for the value, with interest from judicial demand, and with privilege upon the property sequestered. Process of sequestration was accordingly issued by the court, and it appears that it was duly served and executed by the marshal.

Exceptions to the proceeding were filed by the defendant, in which he alleged: (1.) That the cotton is captured property, and that it was at the time the writ of sequestration was issued, and that the property, as such, was in his possession and custody for the use and benefit of the United States. (2.) That the Circuit Court is without jurisdiction of the case, as the property sequestered is de facto and de jure captured property under the acts of Congress, and that it should be dealt with as the law provides.

He also filed an answer, in which he denied that the plaintiff was the owner of the property, and set up the same defence as in his preliminary exceptions. Subsequently the district attorney intervened, and alleged that the United States were the sole owners of the cotton, and prayed that their claim might be allowed and adjudged good, and that the proceedings instituted by the plaintiff may be disallowed and dismissed. Application was made by each party to bond the property, but the application of the plaintiff was granted and that of the defendant was denied.

Unsuccessful in that, the defendant next filed a peremptory exception to the right of the plaintiff to recover in the suit, in which he alleged that the plaintiff was not and never was the owner of the property; that he never owned but a two-thirds interest in the same; that the other third interest is, and throughout has been in another party. Hearing was had and the court overruled the peremptory exception and entered a decree recognizing the plaintiff as the lawful owner of the property. Whereupon the defendant sued out a writ of error and the cause was transferred to this court, where the judgment was reversed becaus the record did not contain any stipulation in writing waiving a trial by jury, and the cause was remanded for further proceedings.

Pursuant to the directions of the mandate the cause came in order for further proceedings, and leave was granted to the defendant to amend his answer, which he did by setting up, in a more formal manner, the defences mentioned in his preliminary exception and in his former answer. Evidence was introduced by both parties, and the jury, under the instructions of the court, returned their verdict in favor of the plaintiff.

Four exceptions were taken at the trial, and the questions which those exceptions present are the only questions open in the case for re-examination. They relate to the instruction given by the court to the jury, and the three requests for instruction presented by the defendant which the court refused to give.

By the bill of exceptions it appears that the court instructed the jury, in substance and effect, as follows: That if the jury believe that the cotton was not captured by the army, nor surrendered to the national forces; that it was not abandoned property nor ever the property of the Confederate States, but that it was raised on the plantations of private individuals and that it was held and possessed by the owners as private property until the purchase of the same by the plaintiff; that the plaintiff purchased the same on his own account from such private owners, and that he held the same until it was taken by the defendant, and that the defendant did not take, hold, or possess it under color of any law or statute of the United States or any authority of his office or color of the same, but of his own will, then the plaintiff is entitled to recover.

Reasonably viewed it is clear that the instruction given covered every allegation of the claim and every ground of defence set up both in the preliminary exception and in the amended answer. Instructions given by the court at the trial are entitled to a reasonable interpretation, and if the propositions as stated are correct they are not, as a general rule, to be regarded as the subject of error on account of omissions not pointed out by the excepting party, as the party aggrieved, if he supposes the instructions given are either indefinite or not sufficiently comprehensive, is always at liberty to ask that further and more explicit instructions may be given, and if he does not do so he is not entitled to claim a reversal of the judgment for any such supposed error. Courts are not inclined to grant a new trial merely on account of ambiguity in the charge of the court to the jury, where it appears that the complaining party made no effort at the trial to have the point explained. Where the court charge the jury correctly upon all the ingredients of the cause of action and upon all the matters of the defence, it is not error in the court to refuse to instruct as requested by either party, even though the proposition presented is correct as an abstract proposition.

Beyond all doubt evidence was introduced by the plaintiff tending to prove every proposition involved in that instruction, and it is equally clear that the evidence was of a character to warrant the finding of the jury. Suppose that is so, still it is insisted by the defendant that the instruction is erroneous, because it assumes that the plaintiff, notwithstanding the written agreement to which he was a party, could make such purchases on his own account, but the bill of exceptions shows that there was no property to be purchased of the kind specified in the written agreement, and that the plaintiff, having ascertained that the authority of the other party had been revoked, determined not to act under the agreement; that the plaintiff purc ased the cotton on his own account, and paid the whole of the purchase-money, and that none of the cotton had ever been captured by our army or surrendered to our military authorities, and that none of it was the property of the Confederate States or had ever been abandoned by the owners.

Tried, as the case was, by a jury, it was certainly proper that the court should submit the whole evidence to their determination; and it is clear that the jury by their finding have affirmed every proposition involved in the instruction in favor of the plaintiff. Such being the fact, the rule is that where the instructions given to the jury are sufficient to present the whole controversy to their consideration, and the instructions are framed in clear and unambiguous terms, it is no cause for the reversal of the judgment to show that one or more of the prayers for instruction presented by the losing party, and not given by the court, were correct in the abstract, as the refusal of the court to give the instructions as requested under those circumstances could not work any injury to the party making the request, and therefore cannot be regarded as error. What more the defendant could properly have it is difficult to see, as the court submitted every inquiry of fact involved in the instruction to the judgment of the jury, and they, having returned their verdict for the plaintiff, it follows that the theory of fact assumed in the instruction is established as true, unless a new trial is granted by the court which tried the cause, or by the direction of this court for error of law. Taken together, the charge and the verdict, as perfected by the judgment, afford a presumption that the theory of fact assumed in the instruction is true, unless the contrary is stated in the bill of exceptions, or it appears that there was no sufficient evidence to warrant the court in submitting the questions to the jury.

Three requests for instructions were made by the defendant, to the effect following:

1. That a writ of sequestration would not lie if the defendant held the cotton in question as deputy general agent of the Treasury Department, under the acts of Congress relating to captured or abandoned property.

Sufficient has already been remarked to show that there was no evidence in the case to warrant the court in submitting such a question to the jury as an independent instruction, and the exception is accordingly overruled.

2. That the Circuit Court had no jurisdiction by virtue of the writ of sequestration to direct the cotton to be taken from the possession of the defendant, if the jury find that the same, at the time the writ issued, was in his possession as such agent, under color of the acts of Congress relating to captured and abandoned property.

But the defendant had no right to seize the cotton in question, as the evidence showed that it had never been captured nor abandoned, and that the title to the same had become vested in the plaintiff by purchase from the private owners. Proof to show that the theory of the defence in that behalf is correct was entirely wanting. On the contrary, the defendant himself testified that he had no evidence at all to affect it as captured or abandoned property at the time the suit was instituted, which is certainly sufficient to show that the instruction requested was properly refused, as it is settled law that it is error in the court to give an instruction when there is no evidence in the case to support the theory of fact which it assumes.

3. That the defendant, if he held the possession of the cotton, as such agent for the collection of captured or abandoned pr perty, had the right to retain the same, and that the plaintiff could not recover the property except by suit in the Court of Claims.

Throughout the several propositions of the defence, the theory of fact is constantly interwoven that the defendant held the cotton under color of the acts of Congress relating to captured and abandoned property, but it is clear that a party cannot be held to have acted under color or by virtue of an act of Congress which did not confer any authority upon him, or any other person, to perform the act which is in controversy. Neither an officer nor an agent can properly be said to have acted under color of a law which neither gave him nor any other person authority to do the act in question, nor can an officer be said to have acted under the authority of his office unless he has some appearance of right to it and is in possession and acting in that capacity, as the acts of a mere intruder or usurper of an office, without any colorable title, are undoubtedly wholly void both as to individuals and the public. Whenever a person sued sets up a defence that he was an officer or an employ e of the government acting under color of law, it plainly devolves upon him to show that the law which he invokes authorized the act in question to be done, and that he acted in good faith; but nothing of the kind is shown in this case. Instead of that he admits in his own testimony that he had no evidence at all to affect the cotton as captured or abandoned property.

Apart from that defence the theory is also constantly set up that the plaintiff during that period could not purchase cotton of the owners even though it was neither captured nor abandoned property, as he was, by virtue of that agreement, an agent of the United States, to which two answers may be made, either of which is sufficient to show that the theory is unfounded and without merit: (1.) Because the agreement does not contain any stipulation that the plaintiff should devote his whole time to the business of the agency, nor any other of a character to prohibit him from purchasing cotton from the private owners if the same was not included in the category of the cotton described in the written agreement. (2.) Because the written agreement never in fact became operative, as the plaintiff, not finding any such cotton in the district specified, never made any such purchases.

Nothing need be added in respect to the ruling of the court in denying the motion in arrest of judgment, as the motion raises the same questions as those involved in the prayers for instruction presented by the defendant and which were refused by the court.

Mention has already been made of the fact that the United States intervened in the suit, and the record shows that their claim was subsequently dismissed and that they also sued out a writ of error and removed the whole proceeding into this court, which is number 136 on the calendar.

All that is necessary to add upon the subject is, that the principal suit having been decided in favor of the plaintiff, the proceeding in intervention must necessarily fall with the defence set up by the defendant in that suit.

JUDGMENT IN EACH CASE AFFIRMED.

Mr. Justice BRADLEY, with whom concurred Mr. Justice DAVIS, dissenting.

title: Tweed's Case/Opinion of the Court


text: Talk:Tweed's Case/Opinion of the Court

title: Talk:Tweed's Case/Opinion of the Court


text:
Tweed's Case/Dissent Bradley

Mr. Justice BRADLEY, with whom concurred Mr. Justice DAVIS, dissenting.

I dissent from the opinion of the court in these cases. Tweed, the defendant in error, repaired to the Red River region to purchase cotton, under a written engagement with a government agent to purchase and pay for the same, and to deliver one-fourth part to the government, upon the express consideration stated in the agreement, that it was well known that a great deal of cotton belonging to the Confederate government was in th t district, but could not be identified, and was kept back by the parties having it in possession for fear of its being seized. Tweed was to have the prestige of government protection; was to purchase any cotton he could find for sale, without any questions; was to send it to the government agent at New Orleans, and there three-fourths of it were to be set apart to his use and one-fourth to the use of the government. This was the general purport and effect of the agreement. There cannot be a doubt, from the evidence in the case, that he derived great advantage from his semi-official character. But having made his purchases, he concluded that it would be a better speculation to have all the cotton than only three-fourths of it; and, therefore, he sets up the pretence that he did not act under the agreement, but on his own independent account. The cotton, however, went forward, protected by the general policy of insurance taken out by the government agent, and arrived at New Orleans. The government agent, Flanders, took possession of it, and gave up to Tweed his three-fourths, according to the agreement. The balance he retained for the government, against Tweed's consent, and was sustained in his action by the Secretary of the Treasury.

Tweed sued out a sequestration (a writ in the nature of the common-law replevin) from the United States Circuit Court of Louisiana, and by virtue of that writ one-fourth part of the cotton held by Flanders, the government agent, for the government, was taken out of his possession, and the court held that this was a lawful exercise of the judicial authority.

Now, on the merits of the case, I cannot concur in the opinion that Tweed could, under the circumstances, repudiate his agreement; but I think he was bound by it and by his acts, and was estopped from asserting an independent purchase of the cotton on his own account; and that the charge of the court should have been to that effect, and that the charge given and the refusal to charge as requested were erroneous.

I also hold that this was a suit against the government itself. Flanders did not hold the cotton on his own account, but on government account; and his acts were sanctioned and adopted by the Treasury Department. He was acting for the government, and his possession was the government's possession. Whether he was acting lawfully or unlawfully was a question which the court could not decide by an adverse proceeding in a suit brought for the recovery of the cotton.

This is a very different case from that of a replevin brought by the owner of goods unlawfully taken by a sheriff upon execution against another person. Goods in the custody of the law, seized for the benefit of a private party, in satisfaction of a judgment or to meet an asserted claim, may be replevied by the true owner; but goods claimed by the government itself, as its own goods, and held by its agents in possession, cannot be reclaimed in this manner. They can only be reclaimed by application to Congress, or, in certain cases, to the Court of Claims.

Nor is the case governed by that class of cases in which a mandamus will lie against a government officer to compel him to perform a ministerial duty. Such a writ is issued, or is supposed to be issued, by the government itself, to compel its officials to do their duty to its citizens.

title: Tweed's Case/Dissent Bradley


text: Talk:Tweed's Case/Dissent Bradley

title: Talk:Tweed's Case/Dissent Bradley


text:
Steamboat Company v. Chase

ERROR to the Supreme Court of Rhode Island.

A statute of the State just named, passed in October, 1853, and relating to common carriers by means of steamboats, enacts:

'SECTION 16. If the life of any person crossing upon a public highway with reasonable care, shall be lost by reason of the negligence or carelessness of such common carriers, or by the unfitness or negligence or carelessness of their servants or agents, in this State, such common carriers shall be liable to damages for the injury caused by the loss of life of such person, to be recovered by action on the case, for the benefit of the husband or widow and next of kin of the deceased person.

'SECTION 21. In all cases in which the death of any persons ensues from injury inflicted by the wrongful act of another, and in which an action for damages might have been maintained at the common law had death not ensued, the person inflicting such injury shall be liable to an action for damages for the injury caused by the death of such person, to be recovered by action on the case for the use of his or her husband, widow, children, or next of kin,' &c.

These statutory provisions being in force in Rhode Island, but no such right enforceable through the admiralty having been given by Congress, a steamer owned by the American Steamboat Company, common carriers upon Narraganset Bay (a public highway, and tidal waters running between Providence and Newport, both within Rhode Island), negligently ran over one George Cook crossing upon that bay with reasonable care, in a sailboat, and killed him. Thereupon Chase, administrator of Cook, brought suit against the steamboat company in one of the State courts of Rhode Island. The company set up that the court had not jurisdiction of the cause of action on the ground that under the Constitution of the United States-which ordains that

'The judicial power of the United States shall extend to ALL cases of admiralty and maritime jurisdiction'--

And under the ninth section of the Judiciary Act approved September 24th, 1789, which section says that

'The District Courts shall have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy when the common law is adequate to give it'--

exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction was vested in the District Courts; that the courts of common law had only such jurisdiction of marine torts as was conferred by the saving clause in the ninth section of the act, and that actions for damages for loss of life did not come within the clause.

The court, however, sustained the jurisdiction; and verdict and judgment having been given for the plaintiff in $12,000, and the Supreme Court of the State having affirmed that judgment, the cause was removed to this court.

Messrs. J. A. Gardner and B. F. Thurston, for the plaintiff in error:

The question is, can a court of common law exercise jurisdiction, and give a remedy to a suitor for a consequential injury growing out of a marine tort, when no remedy for such injury exists in the admiralty?

Or, assuming that under the general jurisdiction of courts or admiralty cognizance of such action could be entertained by a district court of the United States, can a suitor have a remedy in a court of common law, when the right to such action is created by a State statute, passed subsequent to September 24th, 1789?

The obvious purpose of the Constitution and of the ninth section of the Judiciary Act, was to create a maritime court for the purpose of administering the universal law of the seas upon the basis of the civil system, known to maritime states, in distinction from a court familiar only with the limited jurisprudence of the common law system. Indeed, there is an obvious propriety in excluding the courts of common law from adjudicating upon subjects which are, from their nature, of admiralty cognizance, except to the extent recognized and permitted by the acts of Congress. A jury of landsmen unfamiliar with the rules and necessities of navigation, is imperfectly qualified to administer justice in a case, the turning-point in which, on the question of liability, can be settled only after a skilled and intelligent weighing of acts done by the respective parties in the exercise of a science requiring special knowledge and aptitude to understand.

As the grant of admiralty jurisdiction to the district courts embraces all subjects which from their natu e belong to the admiralty, and is exclusive in its general character, it follows that the Federal and the State courts of common law have no other jurisdiction over the same subjects than that which is conferred by the saving clause of the ninth section of the act of 1789, which is in the words, 'saving to suitors in all cases the right of a common-law remedy, where the common law is competent to give it.'

Now a statutory action for damages for loss of life resulting from a collision on navigable waters was unknown to both the common law and the admiralty in 1789. It has not been since, by legislation of Congress, given to the admiralty. It, therefore, cannot have been saved to the common-law courts, either directly or by implication. Neither was such remedy saved if known to the admiralty and unknown to the common law. Not only are the remedies which are saved confined to common-law remedies, but only such concurrent remedies are saved as the common law was then competent to give. In The Hine v. Trevor, this court remarked:

'It could not have been the intention of Congress by the exception in that section, to give the suitor all such remedies as might afterwards be enacted by State statutes, for this would have enabled the States to make the jurisdiction of their courts concurrent in all cases, by simply providing a statutory remedy for all cases. Thus the exclusive jurisdiction of the Federal courts would be defeated. In the act of 1845, where Congress does this, the language expresses it clearly. There is added 'any concurrent remedy which may be given by the State laws, where such steamer or other vessel is employed."

It is not to be presumed that it was the intention of Congress, at the moment that it was given to the Federal courts the exclusive cognizance of civil causes of admiralty jurisdiction, to save to the common-law courts any greater right than it conferred upon the admiralty courts. It is an existing common-law remedy which is saved to suitors for rights recognized by the admiralty.

It is important to observe that the privilege is a personal one to suitors. It is not a jurisdiction conferred on courts, or a power vested in State legislatures to create new rights of action, affecting subjects coming within the law of the sea. Nowhere have the courts intimated that claims founded on marine torts, where the right of the party to proceed in rem, or in personam, in the admiralty to enforce such claims is not recognized, he can pursue such claims under a right given by State laws, in the common-law courts.

A suit to recover damages for loss of life resulting from a collision of two vessels on the seas is in its nature proper for admiralty cognizance. The suit is founded on the collision itself, a subject exclusively cognizable in the admiralty; and by the act of 1789, the derivative suit, if cognizable anywhere, should be exclusively cognizable in the admiralty. If, from an omission by Congress to create by a new statute a right to maintain it there, such a suit cannot be so proceeded in, then there still exists the same but no greater hardship on suitors than yet exists in several States, which have never, up to this day, in derogation of the common law, enacted statutes giving an action for damages where death results from a tort.

We insist, therefore, that the courts of common law have only the right to exercise a concurrent jurisdiction over such subjects of admiralty cognizance as they nder the Constitution and the acts of Congress are permitted to deal with at all. With respect to subjects of recognized admiralty cognizance at the time of the passage of the act of 1789, the State legislatures could provide common-law remedies, and may by subsequent legislation enlarge or modify these remedies: preserving always the distinctive characteristics of common law procedure. But the case is different with respect to subjects not of recognized admiralty cognizance. And as yet no civil remedy to next of kin for damages consequent on an injury resulting in the loss of life of their relative is as yet known to the admiralty, Congress not yet having given any.

Mr. W. P. Sheffield, contra:

The words 'extend to' in the provision of the Federal Constitution, that the judicial power shall extent to all cases of admiralty and maritime jurisdiction, do not imply that the nation shall exhaust this jurisdiction.

In addition, the saving clause of the 9th section of the Judiciary Act 'saves to suitors in all cases the right of a common-law remedy, when the common law is competent to give it.' Yet 'the clause was inserted,' says this court, 'probably from abundant caution, lest the exclusive terms in which the power is confirmed in the District Court might be deemed to have taken away the concurrent remedy which had before existed.' The same right would have existed had no such clause been inserted. Indeed, the State must have the same right to exercise the reserved powers over her waters, to the extent that they are reserved, as she has to exercise the reserved powers of government over the land, and to have the same power to provide a remedy for injuries committed on tide-waters, within her limits, that she has to punish the like injuries committed on land by railroad companies who carry the mails over post routes; and have the same right to exercise a police authority generally to protect her citizens upon the water, as she has to exercise this authority to protect them upon land. The fact that the Federal government has the power to carry out the objects of the Federal government over water or land, does not abrogate the power of a State to protect her citizens. If indeed a State should legislate so as to obstruct the Federal authorities in attaining the ends for which the Federal government was created, such legislation would be void. So if this injury had been inflicted upon the high seas, or beyond the State jurisdiction, the State statute would not have applied to it. The jurisdiction of the States to enact laws punishing offences committed within the counties of States, upon waters, has been affirmed in numerous cases in this court.

The Federalist (No. 45) says, 'The powers reserved to the several States will extend to all objects which in the ordinary course of affairs concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.' The object of Rhode Island in passing this statute plainly was but to protect the lives of her citizens. It relates exclusively to persons, and does not apply to things which are generally the subject of admiralty jurisdiction. As it applies to the case at bar, it in no way interferes with any exercised power of the Federal government, to regulate commerce between the States or with foreign nations. It provides that the right of action which Cook would have had against the steamboat company, had they not killed him, should survive to his administrator, and provides nothing more. The effect of it is simply to take from careless persons that immunity from punishment which the common law tolerates, if carelessness destr ys its victims. If Cook had been injured, no matter how much, so long as had not been killed, no question would have been made here, that an action at common law could have been maintained by him under a State statute, for then the remedy at common law and the common-law remedy would have coincided. The statute providing that the right of action with the common-law remedy shall survive, cannot change the jurisdiction.

Reply: The grant of jurisdiction by the Constitution to the Federal courts of 'all cases of admiralty and maritime jurisdiction,' and the broad declaration by the act of 1789, that such jurisdiction is 'exclusive' of all State and Federal courts of common law, is poorly satisfied by the declaration that all that is thus exclusively vested is a right to proceed in rem, and that the common-law courts are only prohibited from making an inanimate object a defendant. If a form of procedure respecting a subject, and not the subject itself, is all that distinguishes the exclusive jurisdiction of courts of admiralty from courts of common law, then much learning and zeal in argument have been wasted before this court and by the bench, in the effort to define and settle the limits of these two ancient conflicting jurisdictions.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Steamboat Company v. Chase


text: Talk:Steamboat Company v. Chase

title: Talk:Steamboat Company v. Chase


text:
Steamboat Company v. Chase/Opinion of the Court

Remedies for marine torts, it is conceded, may be prosecuted in the admiralty courts, even though the wrongful act was committed on navigable waters within the body of a county, as the exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction is conferred upon the District Courts by the ninth section of the Judiciary Act. Repeated attempts were made in our early judicial history to induce the court to hold otherwise, but the court refused to adopt any other theory, and held that the entire admiralty power of the Constitution was lodged in the Federal courts; that Congress intended by the ninth section of the Judiciary Act to invest the District Courts with that entire power, as courts of original jurisdiction, employing the phrase 'exclusive original cognizance' to express that purpose, and that it was intended that the power should be exclusive of the State courts as well as the other Federal courts.

Common carriers of passengers, whether by railroad or steamboat, in case the life of a passenger in their care is lost, or the life of any person crossing upon a public highway is lost in that State, by reason of the negligence or carelessness of such common carrier, or by the unfitness, negligence, or carelessness of their servants or agents, are made liable by the statute law of the State to damages for the injury caused by the loss of the life of such person, to be recovered by action on the case for the benefit of the husband or widow and next of kin of the deceased person.

Provision is also made by another section of the same statute that in all cases in which the death of any person ensues from injury inflicted by the wrongful act of another, and in which an action for damages might have been maintained at the common law had death not ensued, the person inflicting such injury shall be liable to an action for damages for the injury caused by the death of such person, to be recovered by an action on the case for the use of his or her husband, widow, children, or next of kin.

Undisputed as the facts are in this case it is not necessary to refer to them with much particularity. By the pleadings it appears that the defendants are common carriers of passengers over the waters of the Narraganset Bay, one of the public highways within the State, between the ports of Newport and Providence in the same State, and that the plaintiff is the administrator of the estate of George Cook, late of Portsmouth in that State, deceased. He was passing over the waters of the bay in a sailboat and lost his life on the 29th of June, 1869, by means of a collision between the steamboat of the defendants and the sailboat in which he was passing, and which was caused, as the plaintiff alleges, while the decedent was in the exercise of due care and wholly through the unfitness, negligence, and carelessness of the master of the steamboat. Damages are claimed by the plaintiff for the benefit of the widow and children of the deceased. Judgment was rendered for the plaintiff in the Supreme Court of the State in the sum of $12,000; and the defendants sued out a writ of error and removed the cause into this court.

Two errors are assigned: (1.) That the common-law courts cannot exercise jurisdiction and give a remedy for a consequential injury, growing out of a marine tort, where no remedy for such an injury exists in the admiralty courts. (2.) That a suitor cannot have a remedy in such a case in a common-law court, even if the admiralty courts have jurisdiction, as the right of action was created by a State statute enacted subsequent to the passage of the Judiciary Act.

Where no remedy exists for an injury in the admiralty courts the fact that such courts exist and exercise jurisdiction in other causes of action leaves the State courts as free to exercise jurisdiction in respect to an injury not cognizable in the admiralty as if the admiralty courts were unknown to the Constitution and had no existence in our jurisprudence. Jurisdiction to enforce maritime liens by proceedings in rem is exclusive in the admiralty courts. State courts, therefore, are incompetent to afford a remedy in such a case, as they do not possess the power to issue the appropriate process to enforce the lien and give effect to the proceeding. Vested exclusively as such power is in the admiralty courts, it is settled law that the State legislatures cannot authorize State courts to exercise jurisdiction in such a case by a proceeding in rem.

Exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction was conferred upon the District Courts by the ninth section of the Judiciary Act, including all seizures under the laws of impost, navigation, or trade of the United States, where the seizures are made on waters which are navigable from the sea by vessels of ten or more tons burden, within their respective districts as well as upon the high seas.

Admiralty jurisdiction was conferred upon the United States by the Constitution, and inasmuch as the power conferred extends to all cases of admiralty and maritime jurisdiction, it is clear and undeniable that a remedy for a marine tort may be sought in the admiralty courts, and if the injured party had survived no doubt is entertained that he might have sought redress for his injuries in the proper admiralty court, wholly irrespective of the State statute enacting the remedy there given and prescribing the form of action and the measure of damages, as the wrongful act was committed on navigable waters within the admiralty and maritime jurisdiction conferred upon such courts by the Constitution and the laws of Congress.

Doubts, however, may arise whether the action survives in the admiralty, and if not, whether a State statute can be regarded as applicable in such a case to authorize the legal representatives of the deceased to maintain such an action for the benefit of the widow and children of the deceased. Undoubtedly the general rule is that State laws cannot extend or restrict the jurisdiction of the admiralty courts, but it is suggested that the action may be maintained in this case, without any departure from that principle, as the only practical effect allowed to the State statute is to take the case out of the operation of the common-law maxim that personal actions die with the person. Most of the common-law cases deny that the action is maintainable in the name of the legal representatives, and several text writers have expressed the same opinion. Judge Sprague also applied the same rule in the case of Crapo v. Allen, but in a later case he left the question open, with the remark that it cannot be regarded as settled law that an action cannot be maintained in such a case.

Statutes have been passed in many of the States giving a remedy in such cases, and in the case of Hiner v. The Sea Gull, the Chief Justice held in a case where the suit was brought by the husband to recover damages to himself for the death of his wife, occasioned by the fault of the defendant, that the suit was maintainable.

Difficulties, it must be conceded, will attend the solution of the question, but it is not necessary to decide it in the present case, as the jurisdiction of the State court may be supported, whether such a suit may or may not be maintained in the admiralty courts.

Sufficient has already been remarked to show that the State courts have jurisdiction if the admiralty courts have no jurisdiction, and a few observations will serve to show that the jurisdiction of the State courts is equally undeniable if it is determined that the case is within the jurisdiction of the admiralty courts. Much discussion of that topic cannot be necessary, as several decisions of this court have established that rule as applicable in all cases where the action in the State court is in form a common-law action against the person, without any of the ingredients of a proceeding in rem to enforce a maritime lien. Where the suit is in rem against the thing, the original jurisdiction is exclusive in the District Courts, as provided in the ninth section of the Judiciary Act; but when the suit is in personam against the owner, the party seeking redress may proceed by libel in the District Court, or he may, at his election, proceed in an action at law, either in the Circuit Court if he and the defendant are citizens of different States, or in a State court as in other cases of actions cognizable in the State and Federal courts exercising jurisdiction in common-law cases, as provided in the eleventh section of the Judiciary Act. He may have an action at law, in the case supposed, either in the Circuit Court or in a State court, because the common law in such a case is competent to give him a remedy, and wherever the common law in such a case is competent to give a party a remedy, the right to such a remedy is reserved and secured to suitors by the saving clause contained in the ninth section of the Judiciary Act.

Suitors may have a common-law remedy in all cases where the common law is competent to give it, but the defendants insist that a suitor cannot have redress in a common-law court in such a case, even if the admiralty courts have jurisdiction, as the right of action was created by a State statute enacted subsequent to the passage of the Judiciary Act.

Attempt is made to deny the right to such a remedy in this case, upon the ground that the operation of the saving clause must be limited to such causes of action as were known to the common law at the time of the passage of the Judiciary Act, and the argument is that the cause of action alleged was not known to the common law at that period, which cannot be admitted, as actions to recover damages for personal injuries prosecuted in the name of the injured party were well known, even in the early history of the common law. Such ac ions, it must be admitted, did not ordinarily survive, but nearly all the States have passed laws to prevent such a failure of justice, and the validity of such laws has never been much questioned.

Questions of the kind cannot arise in suits in rem to enforce maritime liens, as the common law is not competent to give such a remedy, and the jurisdiction of the admiralty courts in such cases is exclusive. Such a question can only arise in personal suits where the remedy, in the two jurisdictions, is without any substantial difference. Examined carefully it is evident that Congress intended by that provision to allow the party to seek redress in the admiralty if he saw fit to do so, but not to make it compulsory in any case where the common law is competent to give him a remedy. Properly construed a party under that provision may proceed n rem in the admiralty, if a maritime lien arises, or he may bring a suit in personam in the same jurisdiction, or he may elect not to go into admiralty at all, and may resort to his common-law remedy in the State courts, or in the Circuit Courts of the United States if he can make proper parties to give the Circuit Court jurisdiction of his case.

Different systems of pleading and modes of proceeding, and different rules of evidence prevail in the two jurisdictions, but whether the party elects to go into one or the other, he must conform to the system of pleading and to the rules of practice, and of evidence, which prevail in the chosen forum. State statutes, if applicable to the case, constitute the rules of decision in common-law actions, in the Circuit Courts as well as in the State courts, but the rules of pleading, practice, and of evidence in the admiralty courts are regulated by the admiralty law as ultimately expounded by the decisions of this court. State legislatures may regulate the practice, proceedings, and rules of evidence in their own courts, and those rules, under the 34th section of the Judiciary Act, become, in suits at common law, the rules of decision, where they apply, in the Circuit Courts.

All these are familiar principles, and they are sufficient to dispose of the case and to show that there is no error in the record.

JUDGMENT AFFIRMED.


text: Talk:Steamboat Company v. Chase/Opinion of the Court