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Fowler v. Rathbones/Opinion of the Court

Losses in a sea risk which give a claim to general average are usually divided into two great classes: (1) Those which arise from a sacrifice of part of the ship, or part of the cargo, purposely made to save the whole adventure from perishing. (2) Such as arise out of extraordinary expenses incurred, by one of the parties, in the course of the voyage, for the joint benefit of the ship and cargo.

Where two or more parties are engaged in the same sea risk, and one of them, in a moment of imminent peril, makes a sacrifice to avoid the impending danger, or incurs extraordinary expenses to promote the safety of all the associated interests, common justice requires that the sacrifice so made, or the extraordinary expenses to incurred, shall be assessed upon all the interests which were so exposed to the impending peril, and which were saved, by those means, from the threatened danger, in proportion to the share of each in the joint adventure.

1. Bound on a voyage from Calcutta to New York, the ship Oneiza, with a valuable cargo of linseed, gunny cloth, and other merchandise on board, on the sixteenth of January, 1867, arrived off the latter port in a heavy gale, and in the evening of that day came to anchor inside the lower bay, being unable to proceed to the upper harbor in consequence of ice. Securely anchored, she remained there until the twenty-first of the same month, surrounded by ice and unable to proceed to her port of destination, when those in charge of her procured two steamtugs and caused her to be towed up through the Narrows into the inner harbor, and at seven o'clock in the evening of that day she came to anchor near the quarantine ground, abreast of Staten Island, in ten fathoms of water, where she remained during the night.

Throughout the night the watch were ordered to sound the pumps every hour, and the record shows that they found no more water in the ship than is usual under the circumstances, until the steamtugs made fast to her for the purpose of towing her up to the harbor, when it was ascertained that she had twenty-six inches of water in the well, and it was observed, within half an hour from that time, that the head of the ship was settling. Report of that fact was made to the master and he immediately directed that the pumps should be tried, and it was soon found that the ship had six feet of water in the hold, and that she was in imminent danger of sinking.

Efforts were made to keep her free, but it was found to be impossible to do so by her own pumps, or by any other means at command. Holes had been cut in the hull by the ice, and the master, finding that he could not stop the leaks, decided to run the ship ashore, as the best means of saving life and property and as the only means of preventing the ship from sinking in deep water. Directions to that effect were accordingly given to those in charge of the steamtugs, and with their assistance the ship was stranded on Staten Island flats, and it appears that when she grounded she had ten feet of water in her hold, the tide still rising, and that at high tide the water in the hold increased in depth to twenty feet.

Prompt assistance was procured and the ship was lightened by discharging part of her cargo into lighters furnished by the wrecking company, and on the first day of February following they succeeded in making the ship float, and she was immediately towed to her port of destination and the residue of her cargo was discharged.

2. Much of the cargo was saved, and the owners of the ship insisted that the owners of the cargo were bound to contribute for the sacrifices made by the ship and the expenses incurred by her owners in saving the associated interests from the dangers of the impending peril. Investigations became necessary before the parties could adjust the claim, and with that view the owners, shippers, and consignees of the cargo executed to the agent of the ship an average bond in which they designated the persons to be employed as adjusters, and covenanted and agreed to pay their respective shares of such proportion of the losses and expenses incurred as constitute, by the usage of the port, a general average, provided such losses and expenses were stated and apportioned by the average adjusters therein specified in accordance with the established usage and laws of that State in similar cases.

Pursuant to the terms of that bound the persons therein named were designated as the average adjusters, and they, after having heard the parties, charged to the cargo belonging to the defendants the sum of eleven thousand three hundred and eighty dollars and seventy-eight cents as a general average contribution in favor of the owners of the ship.

Unquestionably they proceeded upon the ground that the stranding of the ship was voluntary, but the defendants denied that the fact was so and refused to pay the amount. Whereupon the plaintiff brought an action of assumpsit against them in the Circuit Court to recover the amount as adjusted, and the jury, under the instructions of the court, found a verdict in their favor for the whole amount charged by the adjusters to the owners of the cargo, with interest from the date of the adjustment. Exceptions were filed by the defendants to the refusals of the court to instruct the jury as requested, and also to the instructions given by the court to the jury, and the defendants sued out the writ of error and removed the cause into this court.

3. Complaint is made by the defendants that the question whether the evidence introduced in the case showed such a state of facts as entitled the owners of the vessel to claim a general average contribution from them, as the owners of the cargo, was not submitted to the jury under proper instructions.

Injuries, it is conceded by the defendants, had been received by the ship before the master determined to run her upon the flats, and it is equally clear that those injuries, or some of them, were plainly attributable to the direct action of the ice, as contended by the defendants. Certain portions of her sheathing about the bows had been torn off and several holes had been cut through her planking-two or more on her port bow and one on her starboard bow-which caused the ship to leak. Doubtless these injuries preceded the stranding of the ship, but she received many more and such as were of a more serious character, by that act or as a necessary consequence of it, as is fully proved by the survey and the other evidence exhibited in the record.

Courts, as well as text writers, at the present day, agree that where the ship is voluntarily run ashore to avoid capture, foundering, or shipwreck, and she is afterwards recovered so as to be able to perform her voyage, the loss resulting from the stranding is to be made good by general average contribution, as such a claim is clearly within the rule that whatever is sacrificed for the common benefit of the associated interests shall be made good by all the interests exposed to the common peril which were saved from the common danger by the sacrifice.

Authorities may be cited where it is held that if the ship is not saved an action for the claims cannot be maintained, but it is settled law in this court that the case is one for general average, although the ship was totally lost, if the stranding was designed for the common benefit and was voluntary, and it appears that the act of stranding resulted in saving the cargo.

Repairs rendered necessary to the vessel by the ordinary perils of navigation, to enable her to prosecute her voyage to her port of destination, it is admitted, must be borne by the owners of the vessel, but the question whether the sacrifice made by the ship in a case where the ship, cargo, and all on board were in imminent peril, and the ship was voluntarily stranded to save the whole adventure, constitutes a valid claim for a general average contribution, is not an open one in this court, if the cargo is saved by the sacrifice, and it is equally well settled that extraordinary expenses incurred in getting the ship off, if the effort is successful, fall within the same rule. Necessary repairs to complete the voyage are not within the rules as applied in this court, except to the extent that such repairs are required to replace such parts of the ship as were sacrificed to save the associated interests.

Viewed in that light, the claim of the owners of the ship rests upon the same foundation of justice and reason as that of the owner of the cargo, in a case where part of the cargo is thrown overboard to save the ship, cargo, and all on board. Decided cases may be referred to where the rule established by this court is questioned, but the rule, it is submitted, is both just and reasonable if it be correctly understood and properly applied.

4. Special reference must be made to the charge of the court, as it is insisted that several of the instructions given to the jury are erroneous.

Speaking to the principal question in the case, the judge told the jury that if they found that the ship and cargo were exposed to a common peril of sinking, and becoming submerged in deep water, and that the expense of raising and saving the ship and cargo from that place would have been greater than if stranded in shoal water, and that the master, to save the ship and cargo from such increased expenses, ran the ship on the flats and stranded her in shoal water, and thereby increased the peril to the ship and diminished the damages and expenses of saving the ship and cargo, then there was a voluntary stranding within the meaning of the commercial law, and the plaintiffs were entitled to recover, as general average, their just proportion of such damages and expenses.

Tested by the principles already explained it is quite obvious that the instruction is correct, and that the defendants have no just ground of complaint. They think otherwise, however, and insist that the ship was actually sinking at her anchorage from the direct effect of the accidental injuries she had received by the ice, and that her condition was such that there was no power to save her within the meaning of the law of general average.

Suppose that her condition was such that she would have sunk if she had remained where she was, still it is clear that her buoyancy was not overcome, as it appears that she still floated, that her position was changed, and that she was successfully stranded in much shoaler water, and the jury have found that the stranding was voluntary, and that the effect was to increase the peril to the ship and to diminish the damages and expenses of saving the ship and cargo.

Assume that the facts were as the jury have found them to be, and it is clear that the case is one for general average contribution, as appears by the repeated decisions of this court. Such being the finding of the jury the defendants are without any remedy in this court. Their remedy, if any, was by a motion for a new trial in the court below.

Minute description of the circumstances attending the disaster is given in the protest, and there was other evidence in the case upon the subject sufficient to have made it the duty of the court to submit the whole question to the jury in the form in which it was submitted in the instruction under consideration.

Facts found by a jury cannot be re-examined in this court, and of course it must be assumed, in the further examination of the case, that the ship and cargo, as the ship lay at her anchorage, were exposed to a common peril of sinking in deep water; that the expenses of raising and saving them, if the ship had sunk there, would have been greater than if stranded in shoal water; that the master, to save the ship and cargo from such increased expenses, ran the ship on the flats, and stranded her in shoal water, and that the effect of that act was to increase the peril of the ship and to diminish the damages and expenses of saving the ship and cargo.

5. Evidently this view of the finding of the jury disposes of the main question in the case and leaves nothing open for decision except the question whether the instructions in respect to the extent of the liability and the principles of the adjustment were correct.

Extensive damage was done to the ship, but the defendants insist that it was not wholly done by the stranding, that it was partly caused by the swelling of the flaxseed, consequent upon its being wet, that the effect of the water upon the article was to swell it, causing a vertical strain upon the ship, pressing her decks and beams upwards and separating the beams from the stanchions. They accordingly requested the court to instruct the jury that there was no evidence in the case from which the jury could determine what repairs were rendered necessary by the stranding, and that inasmuch as it appeared that both of those causes concurred in producing the injuries to the ship they should assume that one-half was occasioned by each, which the court very properly declined to given, as there was not sufficient evidence in the case to warrant the jury in finding that the estimate made by the adjusters was incorrect.

Whether the cargo was damaged by the stranding or by the antecedent peril of the sea was certainly a question of fact for the jury, and upon that subject the jury were told that if they found that no water entered the ship, which reached and damaged the cargo, except what came through the holes cut in the bows by the ice, then the defendants were not entitled to be allowed anything as general average for the damage to their cargo by water, as in that state of the case the damage to the cargo was the result of the prior peril and not of the act of stranding. Such damages, it is conceded, are not the subject of general average, and as the jury found for the plaintiff further examination of that exception is unnecessary.

Objection was also taken by the defendants to the adjustment submitted by the persons designated in the average bond, and upon that subject the jury were told that if they found that the adjustment in respect to the contributive value of the freight, as made out by the adjusters, was according to the usage and custom of the port, and if they found that no more had been allowed for damages to the ship than was attributable to the stranding, then the plaintiffs were entitled to their verdict for the amount stated in the average adjustment, with interest from its date.

Framed as that instruction was in precise conformity with the stipulations of the average bond it is impossible to regard it as erroneous, which is a sufficient answer to the exception.

Suffice it to say, without giving a separate examination to each one of the numerous exceptions, that we are all of the opinion that there is no error in the record.

JUDGMENT AFFIRMED.


text: Talk:Fowler v. Rathbones/Opinion of the Court

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text:
Noonan v. Bradley, Administrator

ON motion. The facts were these:

Lee, domiciled in New York, sold and conveyed in 1855 to Noonan, domiciled in Wisconsin, a tract of land in the latter State, taking his bond and mortgage for the purchase-money. But there being at the time a question as to the validity of Lee's title, he agreed that if the title failed he would not enforce the bond.

Noonan having made default in his payment, Lee filed a bill in the Federal court for Wisconsin praying for a sale of the mortgaged premises, the payment of the mortgage debt, and for general relief. That court, on an issue made as to whether the title had failed or not, adjudged that it had not failed; and giving judgment in favor of Lee ordered a sale of the mortgaged premises, and if the mortgaged property did not satisfy the debt, that Noonan should pay the deficiency. From that decree Noonan appealed to this court, the appeal being the case known as Noonan v. Lee, and reported in 2d Black, 500. While that appeal was pending in this court, Lee died, and one Bradley having received from the proper authority in New York, letters of administration on his estate, made suggestion to this court of Lee's death, and asked to be made party on the record. The court granted the request, and ordered 'that the said administrator be and hereby is made appellee in the case.' The appeal coming on to be heard after this substitution of Bradley, the administrator, as the appellee, the decree was at the December Term, 1862, affirmed, except in so far as it ordered Noonan to pay any deficiency. On that minor point it was reversed on grounds of practice.

From the time of the substitution of Bradley on the record, he stood, of course, as the appellee in the case, and all the subsequent proceedings in it from that date were made accordingly.

After this substitution and this decree, this same Bradley, as administrator, sued Noonan personally on his bond, in the Circuit Court for Wisconsin. One Ogden had, however, after the date of the substitution and decree but before Bradley's suit on the bond, been appointed by the proper authority in Wisconsin, administrator in that State. And this appointment of an ancillary administrator, and his investiture accordingly as such administrator, with all Lee's assets in Wisconsin-among which, as of course, was the debt due by Noonan, domiciled there-Noonan now pleaded in bar to Bradley's suit, against him personally. The Circuit Court gave judgment for Bradley, the New York administrator, but on the matter coming here at December Term, 1869, in Noonan v. Bradley, administrator, reported in 9th Wallace, 394, on appeal from that judgment this court reversed the judgment; declaring very fully that Bradley, an administrator, appointed in New York, could not by virtue of his appointment there, enforce in Wisconsin an obligation due to his intestate by a resident of the latter State; there being in that State an existing administrator, with letters granted by its authority.

In consequence of this decision, Messrs. N. J. Emmons and J. S. Brown, in behalf of Ogden, administrator, as aforesaid, appointed in Wisconsin, now moved the court to set aside all the proceedings in the case of Noonan v. Lee (the case reported in 2d Black) subsequent to the suggestion of Lee's death, and for an order directing the clerk of this court, to certify to the court below, that the appeal of Noonan had abated, because Bradley, appointed administrator by a court of New York, was not the legal representative of the deceased as to the already mentioned bond and mortgage, and that Ogden was; and because the appellant, Noonan, did not take measures to compel the appearance of the said true representative, Ogden.

This motion the counsel argued followed as a corollary from the decision of this court in Noonan v. Bradley, administrator, in 9th Wallace, 394, for that the mortgage under which Bradley had finally had a decree, was assets in Wisconsin, and assets therefore to which, as was elaborately shown in the opinion given in the case just mentioned, Bradley, appointed by a foreign jurisdiction, could have no right whatsoever. It may, perhaps, be added that after the decision of this court in Noonan v. Lee, that Lee's title had not failed, Wisconsin courts decided that it had.

Mr. M. H. Carpenter, contra, after remarking that such a motion as the one made was without precedent, argued that it ought not to be granted, because,

I. The substitution of Bradley as administrator, was rightly enough made in the then condition of the case of Noonan v. Lee, inasmuch—

1st. No administration had been granted in Wisconsin when the substitution was made, and no opposition had been made by Noonan or any creditor or representative of Lee, at the time of the application to substitute Bradley.

2d. The appeal had been perfected by Lee in his lifetime, and Bradley had done nothing but come and support the decree below.

II. Even if the substitution had not been made with strict regularity at the time, the decree should not be set aside now. The decree had been made at December Term, 1862, near ten years ago. And it was perfectly settled that the court would not review its final judgments after the term at which they were given.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Noonan v. Bradley, Administrator


text: Talk:Noonan v. Bradley, Administrator

title: Talk:Noonan v. Bradley, Administrator


text:
Noonan v. Bradley, Administrator/Opinion of the Court

Particular reference to the nature of the controversy and the prior adjudications in respect to the same are indispensable in order that the motion and the effect of it, if granted, may be properly understood.

Noonan, on the first day of October, 1855, purchased of Lee certain real estate, situated in Wisconsin, by deed of warranty, and gave his bond for the purchase-money conditioned to pay four thousand dollars in four equal annual instalments, with interest, and gave a mortgage on the premises to secure the payments as specified in the bond, and the mortgage also contained a stipulation that upon any default on the part of the mortgagor in making the payments, including the interest and taxes as well as the principal, the whole of the mortgage debt, with interest, should, at the option of the mortgagee, become due and should be collectible on demand.

At the time the conveyances were executed the premises were in the possession of one John J. Orton, holding the same adversely to the grantor, in consequence of which the grantee required from the grantor an agreement to the effect that if the title failed the bond should not be enforced, and that if any incumbrances existed on the premises the amount of the same should be deducted from the stipulated consideration.

On the fourth of March, 1859, Lee filed a bill in equity in the District Court of the United States for that district, exercising Circuit Court powers, setting forth that the grantee and mortgagor had not paid either principal or interest of the mortgage debt; that he, the complainant, had notified the party that he claimed that the whole debt had become due, and praying for a sale of the mortgaged premises, the payment of the mortgaged debt, and for general relief.

Such proceedings were had in the cause that the court rendered a final decree in the same, the court finding that the sum of five thousand two hundred and sixty-seven dollars and twenty cents was due to the grantor and mortgagee of the said premises, and the decree also directed the sale of the premises, the payment of the mortgage debt, and that the surplus, if any, should be brought into court; that, if the moneys arising from the sale were insufficient to pay the mortgage debt, interest, and costs, the marshal, in his report of the sale, should specify the amount of the deficiency, and that the respondent should pay the deficiency with interest, 'and that the complainant may have execution therefor.'

From that decree the respondent appealed to this court, and at the December Term, 1862, the appeal was duly entered here on the calendar. When the cause was reached the parties were heard, and this court decided that the complainant, upon the proofs exhibited, was entitled to a decree for the whole amount of the mortgage debt by virtue of the special stipulation in the mortgage, although one of the instalments, according to the terms of the bond, was not due when the bill was filed. Pursuant to that decision the court affirmed that part of the decree, but the court also decided that in the absence of a rule of the court conferring such authority the court below could not enter a decree in such a case, that the complainant should have execution for the balance found to be due to him over and above the proceeds of the sale, and reversed that part of the decree.

Pending the appeal, however, and before the parties were heard in this court, to wit, on the seventh of February, 1862, the death of the respondent, John B. Lee, was suggested, and on motion leave was granted that the appearance of Alfred F. R. Bradley might be entered as administrator of the estate of the deceased, and he was admitted as appellee in the case. Doubts arising as to the validity of the title acquired by Noonan from his grantor, he commenced an action of ejectment in the State court against John J. Orton, the party in possession at the date of the conveyances, and gave notice to his grantor that he might appear and defend the title to the premises. Lee accordingly employed counsel, but the decision of the State court, rendered in January, 1863, was that the party in possession was seized in fee of the premises.

Both parties concede that Lee, when he died, was domiciled in New York, and that Bradley was duly appointed administrator by the proper tribunal in that State. When Lee died he also had effects of value in Wisconsin, and in February, 1865, the party who filed the motion, Thomas L. Ogden, was duly appointed administrator of those effects by the proper tribunal having jurisdiction of the matter in that State. On the sixth day of September, 1866, Bradley as administrator of the estate of John B. Lee, deceased, commenced an action of debt against Josiah A. Noonan, counting on the before-mentioned bond given by the latter to the decedent, for the purchase-money of the said real estate, as more fully set forth in the record.

Three defences were set up by the defendant to the suit: (1) That the plaintiff was not and never had been administrator of the estate of the deceased. (2) That the deceased, at the time of his death, had effects in that State, among which was the bond in suit, and that the defendant was duly appointed administrator of those effects, and that the letters issued to the plaintiff, as applied to the cause of action in the declaration mentioned, were void and of no effect. (3) That the title to the premises had failed, the plea setting up the judgment in the ejectment suit rendered in the State court.

To the several pleas the plaintiff demurred, and judgment was rendered against the defendant for the sum of seven thousand five hundred and eighty-nine dollars and seventy-five cents, and the defendant appealed to this court, where the judgment of the Circuit Court was reversed, the court holding that an administrator appointed in one State cannot, by virtue of such an appointment, maintain an action in another State, in the absence of a statute of the latter State giving effect to that appointment, to enforce an obligation due his intestate.

Based on the conclusion announced in that case the proposition of the party submitting the motion is that all the proceedings in the case first mentioned, subsequent to the time when the death of the respondent in that suit was suggested, were irregular, that the administrator appointed by the tribunal of the jurisdiction where the intestate had his domicile at his decease was improperly admitted as appellee, and that the final decree in the case should be set aside and that a decree or order should be entered that the suit abated at the death of the appellee in the appeal, and that the clerk here should be directed to transmit a certificate to that effect to the court below.

Apart from the novel character of the motion and the grave doubts which arise whether the proposed certificate, even if the party is entitled to a remedy, is an appropriate process to be sent from an appellate to a subordinate tribunal, the court is of the opinion that the relief sought in the case cannot be granted, and that the motion must be denied upon three grounds, either of which is a complete and satisfactory answer to the application. They are as follows:

1. That the administrator of the domicile where the intestate resided at his decease was properly admitted as the appellee in the case, because, at that time, no ancillary administration had been granted in the State of Wisconsin.

Admitted as he was, without objection from the appellant, it may well be doubted whether the appellant in this case, inasmuch as his appointment bears date subsequent to those proceedings, can be permitted to intervene, in the absence of fraud, for the purpose of setting aside what had passed in rem judicatam before he was appointed, but the court is not inclined to rest its decision upon that ground, as the statute of the State authorizes foreign executors and administrators to sue in the courts of the State, in cases where no executor or administrator of the estate of the decedent has been appointed in the State.

Responsive to that it may be suggested that the right so conceded is subject to the condition that such representative party has filed in the Probate Court an authenticated copy of his appointment, but it is a sufficient answer to that suggestion in this case to say that nothing appears in the record to show that the condition, if it be one, was not fulfilled, and the court is of the opinion that a compliance, under the circumstances of this case, must be presumed, as the record shows that this court passed an order that the appearance of the administrator be entered and 'that the said administrator be and he hereby is made the appellee in this case.'

2. Grant that an administrator appointed in one State cannot, by virtue of such an appointment, maintain an action in another State unless so authorized by statute, still it does not follow that the proceedings in this case were irregular, as the suit was commenced by the appellee in his lifetime and was prosecuted by him in the court below to a final decree, and from that decree the respondent appealed to this court. All these proceedings took place while the intestate was in full life, and it appears that the appeal was pending in this court at the time that his death was suggested, and that the administrator appointed in the jurisdiction of the decedent's domicile was admitted as the appellee by the order of the court, as before explained. He did not commence the suit, and as he was the only administrator appointed, the court is of the opinion that he was a competent party to appear and support the decree.

3. Suppose, however, that neither of those propositions is correct, still the court is of the opinion that the motion must be denied, as this court, subsequent to the term when a judgment or decree is rendered, possesses no power to review its own final judgments or decrees. Where the merits of a case are decided in the Circuit Court and the decree on appeal is reversed in this court and the mandate of the court is sent down directing the court below to execute the decree, it is well-settled law that it is too late to call in question the jurisdiction of the subordinate court. Repeated decisions of this court have established the rule that a final judgment or decree of this court is conclusive upon the parties, and that it cannot be re-examined at a subsequent term, as there is no act of Congress which confers any such authority. Second appeals or writs of error are allowed, but the rule is universal that they bring up only the proceedings subsequent to the mandate, and do not authorize an inquiry into the merits of the original judgment or decree. Rehearings are never granted where a final decree has been entered and the mandate sent down, unless the application is made at the same term, except in cases of fraud. Appellate power is exercised over the proceedings of subordinate courts and not on those of the appellate court, and the express decision of this court in several cases is that the 'court has no power to review its decisions, whether in a case at law or in equity, and that a final decree in equity is as conclusive as a judgment at law. Other cases to the same effect might be referred to, but it does not seem to be necessary, as the views of the court from its organization to the present time appear to have been uniform and consistent, as is sufficiently exemplified by the cases to which reference is made.

MOTION DENIED.


text: Talk:Noonan v. Bradley, Administrator/Opinion of the Court


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Mail Company v. Flanders

APPEAL from the Circuit Court for the Eastern District of Louisiana; the case being this:

The act of March 12th, 1863, known as the Abandoned or Captured Property Act, directed that property abandoned or captured within the region lately in insurrection, should be turned over to agents of the Federal treasury, and by them sold at auction, and the proceeds paid into the treasury of the United States, &c. The act goes on to say:

'Any person claiming to have been the owner of any such abandoned or captured property may prefer his claim to the proceeds thereof in the Court of Claims; and on proof to the satisfaction of said court (1) of his ownership of said property, (2) of his right to the proceeds thereof, and (3) that he has never given any aid or comfort to the present rebellion, receive the residue of such proceeds.'

No special jurisdiction in the matter was given by this statute to the Circuit Courts, which if they had jurisdiction at all after the above-quoted provision from the statute, had it only under the Judiciary Act of 1789, which gives them (§ 11) jurisdiction where 'the suit is between a citizen of the State where the suit is brought and a citizen of another State.'

With these statutes in force, the New Orleans Mail Company, a corporation of Louisiana, filed a bill in the nature of a bill in equity, in the court below, against B. F. Flanders, a treasury agent, and one Fernandez, an auctioneer, both defendants, as appeared on the face of the pleadings, being citizens of Louisiana, setting forth that Flanders, pretending to proceed under the said Captured and Abandoned Property Act, had seized two steamboats, the one named Laurel Hill, the other Iberville, and that Fernandez, as auctioneer, was now about to sell them; and praying an injunction against the sale; praying also a writ of sequestration to the marshal, commanding him to keep the boats until the further order of the court. A preliminary injunction and a writ of sequestration were granted accordingly.

The defendant, Flanders, filed an 'answer and plea to the jurisdiction,' setting up that the steamers were captured property; that as such they had been delivered by the military authorities to him, as special agent of the treasury, under the act of Congress; and that he held the boats, and had advertised their sale, in his official capacity. He denied that the Circuit Court had any jurisdiction of the case made in the petition, on the ground that, by the act of March 12th, 1863, the Captured and Abandoned Property Act, the entire jurisdiction of that case was vested in the Court of Claims. He therefore prayed that the petition be dismissed.

The court entered a judgment thus:

'For reasons orally assigned, it is ordered that the injunction herein sued out be made perpetual so far as the steamer Iberville is concerned, and that said steamer be restored to the plaintiffs.

'But as regards the steamer Laurel Hill, considering that the court is without jurisdiction, it is further ordered that the injunction and sequestration be set aside and dismissed with costs, and that said steamer be turned over to B. F. Flanders, agent of the treasury department, as captured property.'

As this judgment was rendered 'for reasons orally assigned,' the grounds of this discrimination between the cases of the two vessels did not appear, nor the ground on which the court supposed it had any jurisdiction whatever of the suit against the Iberville more than against the other.

From the judgment, in respect to the Laurel Hill, the mail company took this appeal. Of course, as the other vessel was restored to them by the judgment of the court, they had no ground of complaint against the decree in respect to her, and the other side not appealing, there could be no question as to the judgment given in respect to that vessel.

The case was submitted; Mr. Evarts declining to press the case for the appellant, as being a plain one against him.

Mr. Hoar, for the United States, represented here by the appellees.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Mail Company v. Flanders


text: Talk:Mail Company v. Flanders

title: Talk:Mail Company v. Flanders


text:
Mail Company v. Flanders/Opinion of the Court

Authority was conferred upon the Secretary of the Treasury, by the act of the twelfth of March, 1863, to appoint special agents to receive and collect abandoned or captured property in any State or Territory designated as in insurrection, by the proclamation of the President issued on the first day of July in the preceding year. Such property, so received or collected, may be appropriated to public use on due appraisement and certificate thereof, or may be forwarded for sale within the loyal States as the public interest may require; and the further provision is that all sales of the property shall be at auction to the highest bidder, and that the proceeds thereof shall be paid into the treasury.

Officers or privates in the army, and officers, sailors, or marines in the navy, are required by the sixth section of the act to turn over to an agent appointed under that act, all property taken or received from persons in such insurrectionary districts, or which they have under their control; and the same section also provides that the agent receiving such property shall give a receipt for the same to the person from whom it was received.

Two steamboats, to wit, the Laurel Hill and the Iberville, were captured by our military and naval forces at New Orleans, in the month of May, 1862, shortly after our military occupation of the city became complete. Carefully examined the proofs show that the Laurel Hill was captured on the eighth of May of that year, in Bayou Jacquot, a small bayou connected with Bayou Plaquemines, situated in the parish of Iberville, on the right bank of the river Mississippi, one hundred miles above the city of New Orleans, and at that time within the military lines of the Confederate army. Our military occupation of the city became complete on the sixth of May of that year, and the proofs show the Iberville was captured on the twenty-second of the same month while lying at Greenville, which is situated on the left bank of the river, four and a half miles above the city, but below Camp Parapet, and was at that time within our military lines.

Captured under the circumstances explained, the two steamboats remained in the custody or subject to the control of our military authorities until the twenty-first day of December, 1865, when the proper officer in charge of the same turned the captured steamers over to the respondent, B. F. Flanders, as the agent of the Treasury Department appointed under the first section of the before-mentioned act of Congress. Pursuant to authority conferred by the second section of the act, the respondent, Flanders, employed the other respondent as an auctioneer to sell the steamboats, and the latter, by virtue of his employment, advertised the same for sale at public auction.

Based on these facts the complainants and appellants, on the ninth of January, 1866, filed their bill of complaint in the Circuit Court of the United States, and alleged that they were the lawful owners of the respective steamboats; that the respondents had no right, interest, or claim in the same, and that a sale of the same as proposed would be a violation of their rights as such owners. They brought the suit to prevent the sale of the steamboats as proposed in the advertisement, and they accordingly prayed for an injunction to that effect, and they also prayed for a writ of sequestration, to be directed to the marshal, commanding him to take the steamboats into his possession and to safely keep the same until the further order of the court. Accompanying the bill of complainant was an affidavit of merits, and the record shows that both writs were granted as prayed, the complainants giving bond to the respondents to pay all such damages as should be adjudged against them if the processes were wrongly obtained.

Service having been made, the respondent, Flanders, appeared and filed an answer. He alleged that the steamers were captured by our military and naval forces, as before explained, and that he held the same as special agent of the Treasury Department. Besides pleading to the merits as aforesaid, he denied the jurisdiction of the court, and also prayed that the injunction might be dissolved and that the bill of complaint might be dismissed. Testimony was taken, but further reference to it is unnecessary, as all the facts proved which are material in this investigation have already been stated. None of the other proceedings in the suit are of any importance in the present state of the controversy, except the final decree, which was to the effect as follows: (1) That the injunction in respect to the steamer Iberville be made perpetual, and that the steamer be restored to the complainants. (2) That the orders granting the writs of injunction and sequestration in respect to the steamer Laurel Hill be set aside, with costs, and that the steamer be restored to the respondent, Flanders, as the special agent of the Treasury Department.

Probably the decision in the matter of the steamer Iberville was placed upon the ground that the steamer was captured within our military lines subsequent to the publication of the proclamation issued by the commanding general at the headquarters of the army, announcing that 'all the rights of property, of whatever kind, will be held inviolate, subject only to the laws of the United States.'

Much difficulty, to say the least, would have arisen in sustaining that part of the decree if the respondents had appealed to this court, as the presiding justice held that the Circuit Court had no jurisdiction of the case, but inasmuch as that part of the decree was in favor of the appellants, and the respondents did not appeal, the error, if it be one, cannot not be corrected. Correction of the error is not sought by the appellants, and it is well-settled law that no oue but an appellant can be heard in an appellate court for the reversal of a decree rendered in the subordinate court. Appellees may be heard in support of the decree, but not for reversal, as it is the privilege of both parties to appeal if they see fit and comply with the conditions prescribed by law.

Captured as the steamer Laurel Hill was, within the military lines of the Confederate army, the proclamation of our commanding general, before referred to, afforded no support to that part of the claim of the complainants, but the presiding justice being of the opinion that the Circuit Court had no jurisdiction of the case, did not examine the merits of the controversy. Both parties, as appears on the face of the pleadings, are citizens of the same State, and upon that ground this court is of the opinion that the bill of complaint was properly dismissed for want of jurisdiction.

Where the Circuit Court is without jurisdiction it is in general irregular to make any order in the cause except to dismiss the suit, but that rule does not apply to the action of the court in setting aside such orders as had been improperly made before the want of jurisdiction was discovered. Prior to that the court, on motion of the complainants, had granted an injunction and issued a writ of sequestration, on which latter writ the marshal had taken possession of the steamer and held it subject to the order of the court. Evidently those writs were improvidently issued, and the court having come to that conclusion set them aside and ordered the steamer restored to the custody in which it was when the writ of sequestration was served.


text: Talk:Mail Company v. Flanders/Opinion of the Court


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The Eutaw

MOTION to dismiss an appeal; the case being thus:

In March, 1867, Harris, Howell & Co. libelled the steamer Eutaw, in the District Court at New York, for repairs, supplies, advances, and labor and services to the vessel, at Wilmington, N. C. The answer denied generally the allegations of the libel. A reference was made by consent to a master to ascertain and report the amount due; 'the same proof of the payment and propriety of payment of bills to be made as if before the court.' The master, after admissions or proofs heard, found $4140.94; one item of this sum being $1000 for 'commissions at 2 1/2 per cent.,' and this item being allowed on an allegation of a custom of maritime countries, and of which, as prevalent at Wilmington, specific proofs were given or attempted, in the shape of affidavits from commission merchants of that place, and otherwise in more formal shape. This item, unlike most of the charges, was apparently not admitted, though it was not attempted specifically to be dis-proved, it being left to be judged of on the record and the law. The respondents not excepting, so far as the record seemed to show, to this item of $1000, or to any other item found in the report, nor moving any correction nor objecting to confirmation, the report was confirmed in May, 1868, by the District Court. From that decree the respondents appealed in about two years afterwards (March 19th, 1870), to the Circuit Court, assigning error in a general allegation, 'that the said decree is erroneous inasmuch as the said libellants were not entitled to the damages claimed in the premises;' and in the prayer for an appeal stating that on the appeal the appellant 'intended to make new allegations and introduce the same and new and further proofs.' In the Circuit Court, no new allegations being made of record, nor further proofs introduced, the case was argued and taken into advisement. As was said in the briefs of one side, and not contradicted in those of the other, the court on one hearing (before Nelson, J.), set aside the report or decree, though afterwards, on reargument (before Woodruff, J.), affirmed it. Nothing of this difference of view between the judges appeared on the record.

title: The Eutaw


text: Talk:The Eutaw

title: Talk:The Eutaw


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The Eutaw/Opinion of the Court

From this decree, made March 19th, 1870, the case was brought here by appeal two months afterwards and now stood No. 403, a number quite far on upon the list, and making the case, if left to be heard in ordinary course, not likely to be reached for a considerable time.

'In all cases where a writ of error shall delay the proceedings on the judgment of the inferior court, and shall appear to have been sued out merely for delay, damages shall be awarded at the rate of 10 per centum per annum on the amount of the judgment, and the said damages shall be calculated from the date of the judgment in the court below until the money is paid.'

Mr. C. Donohoe, in support of his motion to dismiss:

No exception was taken to the proceedings or proof before the commissioner and none before the court against the report. No definite defence is set up in the answer. In order to allow an appeal or hearing on it, the appealing party should point out specifically what the defence is, and what he objects to.

To adopt any other rule would be to allow a party to let a decree go against him, in fact stand by and tacitly admit the claim, and then, when he had misled the court and counsel, attempt on some defect of evidence, or, in fact, on evidence not returned or accidentally omitted, to raise points not raised before. The court will not even hear by consent points not raised on the record.

The appeal being evidently for delay, and there being no point really taken on the record, the case should be affirmed for want of a point to argue, or dismissed with costs. The ten per cent. damages given by the 22d rule for such appeals, while in part a punishment to the appellant, do not pay the appellee in what he suffers by them. He has to pay counsel and be out of his money. Such appeals, on the contrary, are disastrous to business men.

The reference required 'the same proof of payment, and propriety of payment of bills to be made, as if made before the court.'

It is not necessary to take an exception to the report of the commissioner.

The appeal to the Circuit Court does point out an error, 'in saying that the decree of the District Court is erroneous, inasmuch as the libellants were not entitled to the damages claimed in the premises.' The error will appear from an examination of the record.

The court will not, on this motion, examine the merits of the case. That there is good ground for appeal is evident from the fact that two judges of the Circuit Court differed in opinion. The record will show that some of the payments were not legally proved, and that payment of some of the bills was not proper, and that therein the report did not conform to the order of reference. The item for commission on the cargo, amounting to $1000, is among the class of which we speak. It was not properly proved and is not a legal charge. On this point the appellant has a right to be heard by this court. It would not now be proper to make an argument nor would the court hear it on this motion.

Reply. Nothing should be on the calendar that does not contain points to argue. It misleads parties lower on the calendar and will render uncertain the date of argument of cases having merits; for no one but the appellant, in cases like the present one, can tell whether it is intended to argue them or not when called. The class will increase when once tolerated, and the thing will end in the calendar of this tribunal being put, like the calendars of some of our State courts now are, beyond the control of the court.

The only reason the case was before two judges below was, that neither before the first nor the second judges did the appellant in the circuit submit any points or make any argument; he simply submitted his record, as he did in the district, and left the court, as he does here, to find an excuse for non-payment.

Mr. Justice CLIFFORD delivered the opinion of the court.

Cases regularly on the calendar, whether brought here by writ of error or appeal, if within the jurisdiction of the court are required to be heard when reached in the regular call of the docket, and they cannot be heard before they are reached except when they are advanced by the order of the court.

Where the case is one not within the jurisdiction of the court the writ of error or appeal may be dismissed on motion, and certain defects in removing the cause from the subordinate court into this court entitle the party who prevailed in the court below to the same remedy.

Motions to dismiss are non-enumerated motions, and they may be filed by leave of court in any case on the calendar before the case is reached in the regular call of the docket, and they are entitled to preference on Friday in each week during the sitting of the court, as provided in the twenty-seventh rule, but they do not give either party any right to be heard upon the merits of the controversy.

On the ninth of March, 1867, the appellees filed the libel in the District Court against the appellants, as the owners of the steamer Eutaw, her engine, tackle, apparel, &c., in a cause of action founded upon contract civil and maritime. By the second article of the libel it is alleged that the steamer belonged to the port of New York, that she was engaged in the coasting trade, that in the months of November and December prior to the filing of the libel she was in the port of Wilmington, North Carolina, and that she was in need of supplies, repairs, advances, and necessaries for her voyage; that the master of the steamer applied to the libellants to make such repairs and to furnish such supplies and advances, and that they, the libellants, complied with the request, and that there is due to them for such repairs, supplies, and advances, the sum of four thousand dollars. They also alleged that the repairs, supplies, and advances were necessary and proper to render the steamer seaworthy and fit to perform her intended voyage, and that the same were furnished on the credit of the steamer as well as of the master and owners.

Process was served and the first-named respondent appeared and filed an answer, in his own behalf and in behalf of the other respondent with whom he was impleaded, denying all the allegations of the libel. Subsequent to the filing of the answer an order was passed referring the cause to a master to ascertain and report the amount due to the libellants. Testimony was taken on both sides and the parties were heard and the master reported that there was due to the libellants the sum of four thousand one hundred and forty dollars and ninety-four cents for the repairs, supplies, and advances made and furnished, as alleged in the libel. No exceptions were taken by either party to the report of the master, and on the ninth of May, 1868, the District Court confirmed the report and entered a final decree in favor of the libellants for that amount.

Dissatisfied with the decree, the respondent appealed to the Circuit Court, where the parties were again heard upon the same testimony. Apparently they were heard without any new reference of the cause and upon the general allegation of the appellant that the decree was erroneous and that the libellants were not entitled to the damages claimed in the libel and decree. Different conclusions, however, were formed by the circuit judge, as he adjudged that the decree of the District Court should be affirmed with costs, and it is from that decree that the original respondent appealed to this court.

Referring to the record, it appears that the decree in the Circuit Court was entered on the nineteenth of March, 1870, and the appeal was taken to this court on the nineteenth of May following. Such an appeal is not a supersedeas, but it cannot be dismissed, because no question is raised or presented in the record for the decision of this court.

Appeals are subject to the same rules, regulations, and restrictions as are prescribed in law in case of writs of error, and it is well-settled law that it is no sufficient cause to dismiss a writ of error that the record does not present any question of law for the revision of this court, as the writ of error when sued out under the twenty-second section of the Judiciary Act brings up the whole record, and it is the right of the plaintiff in error to be heard and have an opportunity to show, if he can, that there is error in any part of the record.

When a cause is brought here upon a writ of error sued out under that section, and all the proceedings are regular and correct, the judgment of the Circuit Court must be affirmed, but the cause cannot be dismissed although there is no question presented in the record for revision.

Apply that rule to the case before the court and it is clear that the motion must be denied, and it is equally clear that appeals in that respect are subject to the same rules, regulations, and restrictions as are prescribed in law in case of writs of error. Appeals of the kind are usually regarded as brought for delay, and it may become necessary to amend the second article of the twenty-third rule so that ten per cent. damages shall be allowed in addition to the interest provided for in the first article of that rule.

MOTION DENIED.

title: The Eutaw/Opinion of the Court


text: Talk:The Eutaw/Opinion of the Court

title: Talk:The Eutaw/Opinion of the Court


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Bigler v. Waller (79 U.S. 142)

MOTION to dismiss for want of jurisdiction an appeal from the Circuit Court for the District of Virginia; the case being thus:

James Bigler filed a bill in the court below against William Waller and Robert Saunders. Pending the suit, Saunders died, and his death being suggested, a scire facias to revive the cause was issued, and returned executed on one Harrell, his administrator. The death of the defendant, Waller, was also afterwards suggested, and one W. G. Waller, administrator on his estate, moved for leave to appear and defend the suit. The court, accordingly, on the 3d of June, 1870, ordered that the suit should proceed against the said Harrell, and the said W. G. Waller, administrators, as already mentioned. In this state of the cause it was heard, and a decree given that Bigler, the complainant, pay to the said W. G. Waller, administrator of William Waller, a sum of money specified, and to the several defendants thier costs. From that decree Bigler took an appeal to this court; the appeal being taken in assumed conformity to the second section of the Judiciary Act, which gives an appeal from the Circuit Court to this court, 'the citation being signed by a judge, &c., and the adverse party having at least thirty days' notice.' And which further says:

'And every justice of judge signing a citation, &c., shall take good and sufficient security that the plaintiff in error shall prosecute his writ.'

By the already mentioned Judiciary or other acts of Congress, the appeal, if taken within a time limited (security being given in like manner), operates as a supersedeas. Prefixed to the appeal bond which Bigler, the appellant, gave in this case, were these words: 'SUPREME COURT OF THE UNITED STATES.

James Bigler

v.

William Waller and Robert Saunders.

Bond on appeal.'

The bond itself purported to be 'given to the above-named William Waller and Robert Saunders in the sum of $20,000,' and was with a condition, reciting that 'the above-named James Bigler had prosecuted an appeal to the Supreme Court of the United States to reverse the decree rendered in the above entitled suit by the Supreme Court of the United States.' The condition of the bond was, that 'the above-named James Bigler shall prosecute his said appeal to effect, and answer all damages and costs if he shall fail to make good his plea.'

The citation was directed 'to William Waller and Robert Saunders,' and imported that they were to appear pursuant to an appeal, 'wherein James Bigler is plaintiff and you are defendants.' On the citation was this indorsement:

'I hereby acknowledge service of the within citation.

'JAMES ALFRED JONES,

'Counsel for the defendants in this cause in the Circuit Court of the United States for the District of Virginia.'

In this court the appearance had been special.

Mr. Conway Robinson, in support of the motion:

1. There has been no proper citation to the 'adverse party.' It was directed 'to William Waller and Robert Saunders,' and therefore was without effect; for both of the parties cited were dead, and appeared by the record to be dead before the decree. Nor has there been any waiver; the indorsement by Mr. Jones, who had been counsel for those who were defendants in the Circuit Court, not being intended as waiver, nor amounting to such; and there being no waiver by the counsel in the Supreme Court, where the appearance was, but a special one.

2. Neither had 'good and sufficient security' been taken, for the instrument was void by the common law, since both the persons named as obligees were dead, and appeared by the record to be dead before the decree.

After Catlett v. Brodie, it was in one case said that 'the mode of taking the security, and the time of perfecting it, are matters of discretion to be regulated by the court granting the appeal.' But subsequently where it appeared 'that no appeal bond was taken or approved by the judge signing the citation,' the appeal was dismissed. Other cases support this conclusion, where the appeal operates as a supersedeas. In 1853, the court referring to the language above quoted from the Dos Hermanos said:

'This cannot apply to a case where the appeal operates as a supersedeas. It must be brought strictly within the provisions of the law.'

3. Even if the appeal be not dismissed, it should not be allowed to operate as a supersedeas when there has not been taken 'good and sufficient security' by a proper bond. Such terms should be imposed on the appellant as under the circumstances appear proper. There should at least be an order for the dismissal of the appeal, unless within such time as the court may prescribe there be given a proper bond with good and sufficient security.

Mr. W. F. Mattingly, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Bigler v. Waller (79 U.S. 142)


text: Talk:Bigler v. Waller (79 U.S. 142)

title: Talk:Bigler v. Waller (79 U.S. 142)


text:
Bigler v. Waller (79 U.S. 142)/Opinion of the Court

The record shows that the appellant, on the fourteenth of June, 1866, instituted a suit in equity in the Circuit Court against William Waller and Robert Saunders, for the cause of action set forth in the bill of complaint. Amoug other things he alleged that he entered into an agreement in writing with William Waller for the purchase of certain real estate lying in the county of York and State of Virginia; that the said respondent, on the 10th of May, 1853, executed to the complainant a deed of the said real estate, and that the complainant, on the same day, made the cash payment as stipulated in the agreement, and gave to the respondent, at the same time, his obligation to pay the balance of the purchase-money at the times therein specified; that on the twenty-second of June, in the same year, the complainant executed to the other respondent a trust deed of the premises to secure the balance of the consideration which he agreed to pay for the real estate, as stipulated in that obligation; that he went into possession, made valuable improvements, and continued to make the stipulated payments until April, 1861, when the war broke out, and he was compelled to leave the State; that after he left the State, Waller authorized the other respondent, as such trustee, to make sale of the real estate, and the complainant alleges that the trustee effected the sale without publishing the notice required by the terms of the deed of trust, and that he satisfied the said obligation out of the proceeds of the sale, and has failed to account to the complainant for the balance of the proceeds; that Waller became the purchaser of the real estate at that sale; that he immediately took possession of the same, together with certain personal property of great value belonging to the complainant; that he sold the same and converted the proceeds to his own use, and applied the same to the payment of the balance due on the said obligation; that he also rented the real estate and received large sums of money as rents; that he, the complainant, subsequently succeeded, through the aid of our military authorities, in recovering possession of the real estate, but that he found it in a ruinous condition; that since that time, to wit, on the eleventh of November, 1865, Waller instituted a suit against him on the said obligation in the Supreme Court of the City and County of New York, to recover what he claims to be due thereon; that subsdquently the other respondent posted up, in the county where the real estate is situated, a notice 'that he would, at the request of said Waller, in a few weeks, sell said real estate.'

Based on these and other similar allegations the charge is made that Waller may induce the trustee so to act in regard to the sale of the premises as to cheat and defraud the complainant; therefore he prays that the trustee may be enjoined from selling the said real estate, and that the said Waller may be enjoined from assigning his interest in the said obligation until the suit in the Supreme Court of the City and County of New York is determined, and for an account, and that the respondents may be required to deliver up all deeds and papers in their possession concerning said sale.

Suffice it to say, without entering into details, that such proceedings were had that a decree was entered that the appellant should pay to William G. Waller, administrator of William Waller, deceased, the sum of seventeen thousand three hundred and seventy-seven dollars in coin, and costs, to the defendants.

Dissatisfied with that decree the complainant appealed to this court, which is the case involved in the motion.

Pending the suit here the appellees have appeared specially and filed a motion to dismiss the appeal upon two grounds: (1) Because the citation is addressed to the original parties, one or both of whom deceased before the final decree. (2) Because the bond given to prosecuted the appeal is executed to a deceased respondent and not to the administrator in whose favor the decree was entered.

Undoubtedly the citation is irregular, as it should be addressed to the actual parties to the suit at the time the appeal was allowed and prosecuted. Where a party dies before the appeal is allowed and prosecuted the suit should be revived in the subordinate court, and the citation, as matter of course, should be addressed to the proper party in the record at that time.

Notice is required by law, and where none is given and the failure to comply with the requirement is not waived, the appeal or writ of error must be dismissed, but the defect may be waived in various ways, as by consent or appearance or the fraud of the other party. Service of the citation may be made upon the attorney of record of the proper party.

Unquestionably the attorney of record may also waive service, and acknowledge notice on the citation, as in that behalf he represents the party.

On the citation in this case is the following indorsement: 'I hereby acknowledge service of the within citation. James Alfred Jones, counsel for the defendants in this cause in the Circuit Court of the United States for the District of Virginia.'

Viewed in any reasonable light it seems to the court that the attorney knew that the appeal was allowed by the court and was prosecuted by the appellant, which is the only purpose intended to be effected by the citation. Having been counsel in the cause the party signing that certificate must have known that the suit had been revived, as that proceeding took place before the final decree was entered. Such a service would be sufficient beyond all doubt if there had been no error in the form of the citation, and as that objection is merely a formal one we are all of the opinion that it must be considered as waived by the circumstantial language of the certificate signed without objection by the attorney of record in the Circuit Court.

2. Appeals from decrees of the Circuit Court to this court are allowed where the matter in dispute, exclusive of costs, exceeds the sum of value of two thousand dollars, and the provision is that such appeals shall be subject to the same rules, regulations, and restrictions as are prescribed in law in case of writs of error.

Good and sufficient security must be taken by every justice or judge who signs the citation, that the plaintiff in error shall prosecute his writ to effect and answer all damages and costs if he fail to make his plea good; and in order that the writ of error may operate as a supersedeas and stay execution the writ must be served by a copy thereof being lodged for the adverse party, in the clerk's office where the record remains, within ten days, Sundays exclusive, after the judgment was rendered or the decree was passed. Such a service is not required in an appeal, but the requirement is that the appeal must be taken and allowed, in cases where it is required to be allowed, within the same period of time, and in both cases, that is whether the cause is removed by writ of error or by appeal, the plaintiff in error or the appellant must give the required security within the ten days, Sundays exclusive, in order that the writ of error or appeal may operate as a supersedeas. 'What is necessary is that the security be sufficient, and when it is desired to make the appeal a supersedeas the security must be given within ten days from the rendering of the decree.' Unless taken within the ten days an appeal cannot be made to operate as a supersedeas, but a party appealing within that time may not desire that the appeal shall have that effect, and in that event all that can be required of him is that he shall give good and sufficient security for costs, including 'just damages for delay.'

Argument to show that the bond in this case is irregular and defective is unnecessary, as it is clear that it should be given to the opposite party or parties in the suit, but it does not follow, by any means, that the appeal must be dismissed. On the contrary, it is the constant practice of the court to allow such defects to be obviated by granting leave to the appellant or plaintiff in error to file a new bond within a reasonable time, to be fixed by the court, in view of all the circumstances when the application is made.

Even if the appeal is not dismissed it is suggested by the appellees that it should not be allowed to continue to operate as a supersedeas, because the appeal bond or the required 'good and sufficient security' was not given within the ten days from the date of the decree, but it is a sufficient answer to that suggestion at this time to say that no such question is before the court. Such a question may arise hereafter, but the decision of the court at present is that the motion to dismiss must be granted unless the appellant file a sufficient appeal bond in the usual form within ten days in the same sum as that required by the Chief Justice who allowed the appeal.

Leave is granted to the appellees to file such a bond, but the court does not decide what the effect will be nor that it is or is not competent for this court in such a case to grant a supersedeas, as no such application is before the court.


text: Talk:Bigler v. Waller (79 U.S. 142)/Opinion of the Court


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Baker v. Morton

APPEAL from the Circuit Court for the District of Nebraska; the case was this:

In the spring of 1857 there existed, near Omaha, in the then Territory of Nebraska, an organization known as the Omaha Claim Club. The object and purpose of the club was to nullify the land laws of the United States, to the end that the members of the club, who were engaged in land speculations, might hold and control the public lands in the vicinity of Omaha to the exclusion of actual settlers. The club numbered from 100 to 200 men. It made laws and promulgated decrees to suit its purposes, and enforced their observance with revolvers, guns, bayonets, ropes, and other appliances. It was regularly officered. The sheriff of the county, secretary of the Territory, mayor of the city, and register and receiver of the land office, all held high positions in the club. It had stated meetings, and when any supposed exigency should arrive the band would assemble at an hour's notice and be ready for business. It drove actual settlers from their claims, burned down their cabins, and marched the settlers, surrounded by armed men, to the land office of the United States, and compelled them to withdraw their applications for land. If the subject was obstinate, he was taken to the Missouri River, and, with a rope around his neck, thrown in and pulled out, and thrown in again, and the operation repeated as often as might be necessary in order 'to bring the subject to his senses, so he would agree to abide the law of the land.' The character and objects of the club, while it lasted, were notorious.

In this state of things Baker, in the spring of 1857, settled upon and improved a quarter of a section of land near Omaha; erected a house and continued to occupy it until August 10th, 1857, when he entered the land under the provisions of the pre-emption laws of the United States. Having acquired title, and being thus in possession, one Pierce, at that time a member of this club and a man of influence in it, though then and subsequently a citizen of New York, claimed the land by virtue of its laws and regulations, and taking several members of the club with him, went to Baker's house and demanded a deed of the land. Baker, on the 10th of August, 1857, executed to him such a deed; Pierce, however, suffering Baker to remain in possession either of this or of an adjoining tract (which he had got in the same way that he did this), under some sort of lease. Pierce being thus invested with a paper title, Morton, a respectable banker of New York, where, as already said, Pierce resided, lent him money, and the debt not being paid sued him and got judgment.

In this state of things Baker, in September, 1860, still residing in Nebraska, filed a bill in the Territorial court of that Territory against Pierce as grantee, and Morton as claiming an interest, to set aside the deed as obtained by duress and without consideration. It set forth the respective residences of himself in Nebraska, and of Pierce and Morton in New York; the demand for the deed by Pierce, and execution of it by Baker to him. It alleged that when Pierce and his company demanded the deed, they threatened to take Baker's life by hanging or drowning him if he did not comply with the demand; that the club had posted handbills calling the members together to take action against Baker; and that he made the deed knowing all this, and in actual fear of his life, or of great bodily harm; that he received no consideration whatever for the deed.

Pierce did not appear to the bill, which was taken pro confesso against him, and decree rendered accordingly.

Morton answered, alleging that he had no knowledge as to the circumstances under which the deed had been procured and that he could not answer to the charge, on belief or otherwise; but upon information he denied the same and alleged that the deed was freely and voluntarily made, and that Pierce was the true and lawful owner of the premises, free from all claim.

The cause was heard on pleading and proofs in the District Court for Nebraska Territory, by the then Chief Justice, who rendered a decree dismissing the bill. It was then carried by appeal to the Supreme Court of the Territory, where it was pending when Nebraska was admitted into the Union. Thereupon, owing to the citizenship of the parties-the complainant in the State of Nebraska, and the defendants in New York-and according to the usual rule by which cases that by reason of the character of the parties, belong most naturally to the Federal courts are transferred into those courts, and those which cannot be taken into them are transferred to the State courts, this case was removed into the Circuit Court of the United States. Here it was heard again and a decree given dismissing the bill. The complainant appealed to this court.

The reader who has read and remembers the case of Brown v. Pierce, which came before this court two terms ago and is reported in 7th Wallace, 205, will have seen, of course, that the case is identical in principle and scarcely at all variant in fact from that one.

The facts alleged by the bill being considered by the court, here as there, fully proved by the evidence, the only questions which remained were:

1. Whether a deed executed without any consideration and only because the party making it is put in fear of his life, or of great bodily harm, may be avoided?

2. Whether the case made was one for relief as against Morton, whose good faith in lending his money was not to be questioned.

Messrs. Redeck and Briggs, for the appellant; Mr. Woolworth, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Baker v. Morton


text: Talk:Baker v. Morton

title: Talk:Baker v. Morton


text:
Baker v. Morton/Opinion of the Court

Territorial courts are created by an act of Congress, and they usually possess jurisdiction of controversies of a civil nature, without regard to the inquiry whether the controversies, if they had arisen in a State, would have been cognizable in the tribunals of the State or in the Federal courts.

By the organic act creating the Territory of Nebraska the judicial power of the Territory was vested in a Supreme Court and certain district courts, and the provision was that the jurisdiction of those courts should be as prescribed and limited by law.

Whenever a Territory is admitted into the Union as a State the cases pending in the Territorial courts of a Federal character or jurisdiction are transferred to the proper Federal court, but all such as are not cognizable in the Federal courts are transferred to the tribunals of the new State. Pending cases, where the Federal and State courts have concurrent jurisdiction, may be transferred either to the State or Federal courts by either party possessing that option under the existing laws.

On the seventh of September, 1860, the appellant filed his bill of complaint in one of the district courts of the Territory against Roswell G. Pierce and the appellee, in which he alleged that he, the appellant, under the laws of the United States, settled, improved, and entered as a pre-emptor the southwest quarter of section eight, township fifteen north, range thirteen east, in the county of Douglas; that the first-named respondent claimed to own the tract so settled, improved, and entered as a pre-emption right by the complainant; that the said respondent made claim to the same, not by virtue of any law of the United States, but by virtue of the rules and regulations of what was known at the time as the Omaha Claim Club, an organization composed of one or two hundred men, the object of which was to protect every claimant, whether resident or non-resident, in holding three hundred and twenty acres of land as a claim upon the public lands of the United States; that a few days before he, the complainant, entered the land the said Pierce and his agent and a few other persons, members of the said club, came to the house of the complainant, and that the said Pierce, as the leader of the party, assured the complainant that unless he would agree to deed the tract, in case he preempted the same, to the said Pierce, that he, the said Pierce, with the assistance of the said claim club, would take his life by hanging or drowning him, or in such other manner as the agents of the club might think fit and proper to employ; that on the tenth of August, 1857, he entered the tract under the pre-emption laws of the United States, when the said Pierce, his agents, and certain members of that club again came to him and repeated the threats before used, and assured him that unless he immediately conveyed the tract to the said Pierce they would carry their threats into execution, and that he, by means of those threats and through fear that the threats would be carried into effect if he refused to convey the land, on the same day conveyed the tract to the said Pierce by deed in the usual form, which was duly acknowledged.

Based upon these allegations the complainant charges that the conveyance made by him was procured by threats and through fear of death and without consideration. Morton, the appellee, was also made a party to the bill of complaint, because he was a judgment creditor of the other respondent, and claimed an interest in the land by virtue, as he alleged, of a lien created by his judgment. Wherefore the complainant prayed that the conveyance of the tract he made to the said Pierce may be decreed to be inoperative and void and that the said Pierce may be decreed to reconvey the premises to the complainant.

Service was made by publication, as the respondents were non-residents, and the respondents failing to appear and plead, answer, or demur to the bill of complainant, they were duly defaulted, and a decree was entered that the bill of complaint be taken as confessed.

Testimony was taken and the cause was submitted to the court and the court found that the conveyance was obtained by the said Pierce from the complainant through threats of personal violence made by the said Pierce and his agents, and without consideration, and a decree was entered ordering that the conveyance should be cancelled, and requiring the respondent to reconvey the premises to the complainant, as prayed in the bill of complaint.

Pursuant to a motion, however, subsequently filed by the appellee, it was ordered by the court that the decree as to him should be vacated, and that he have leave to appear and make defence. He accordingly filed an answer, in which he admitted that the complainant entered the land as alleged in the bill of complaint, and that he, the complainant, had been in the possession of the same from that time to the present, but alleged that the complainant occupied the same as tenant of the other respondent. Responsive to the charge made that the deed was procured from the complainant by threats, the appellee alleged that he had no knowledge upon the subject, that he could not answer to the charge as to his belief or otherwise, but upon information he denied the same and alleged the fact to be that the deed was the free and voluntary act of the complainant, and that the other respondent was the true and lawful owner in fee of the premises, divested of all the claims set forth in the bill of complaint; that he, the appellee, loaned to the other respondent the sum of five thousand dollars, and that the borrower failing to make payment as stipulated he brought suit against him and recovered judgment for the amount, of which two thousand five hundred dollars remained due and unpaid, and that his judgment was a lien on the land described in the pleadings. Wherefore he insisted that his judgment ought in equity to be held a better claim on the land than the claim made by the complainant.

Defects exist in the record, arising from the loss of some portion of the minutes and files of the clerk, but it is conceded that the usual replication was filed, and the record shows that proofs having been taken by both parties the cause was heard and the District Court of the Territory entered a decree dismissing the bill of complaint and awarded costs to the respondent. From which decree the complainant appealed to the Supreme Court of the Territory.

Pending the appeal in the Supreme Court of the Territory, to wit, on the ninth of February, 1867, Nebraska was admitted into the Union upon an equal footing with the original States.

Undermined as the appeal was at that date, and it appearing in due form that the parties were citizens of different States, the cause was transferred to the Circuit Court of the United States for the District of Nebraska, and the parties having been again heard the Circuit Court determined that the deed made by the complainant to the other respondent was not made while he, the complainant, was in duress, and that the appellee, by reason of his judgment, has a better equity in the premises than the complainant, and entered a decree dismissing the bill of complaint. Whereupon the complainant appealed to this court, and now insists that the decree of the Circuit Court ought to be reversed.

Much examination of the evidence or of the law applicable in the decision of the case is unnecessary, as the facts are substantially the same as in a case between the same parties which was recently heard and determined by the court after mature deliberation.

By the bill of complaint a complete title is set up by the complainant to the land under the pre-emption laws of the United States, and the answer admits that he held such a title at the date of the deed he made to the other respondent. Argument upon that topic, therefore, is unnecessary, and the complainant charges that he was induced to execute the deed by threats and from fear of death or great bodily harm, and the respondent concedes that he is not able to deny that allegation from any personal knowledge upon the subject, and he even goes further and says that he cannot answer concerning the same, because he has no information or belief upon the subject. Such an answer does not make it necessary for the complainant to introduce more than one witness to overcome the defence, but the court is not inclined to place the decision upon any technical ground, as the proofs in the case show to the entire satisfaction of the court that all the matters alleged in the bill of complaint are true, and that the same are fully established, even if the allegations of the answer be regarded as denials made by a respondent in respect to matters within his own knowledge. Some conflict undoubtedly exists in the proofs, but the weight of the evidence is so decidedly with the complainant that the court feels no hesitation in saying that the allegations of the bill of complaint are fully proved.

Complete incipient title was acquired by the complainant under the pre-emption laws of the United States, and on the same day the defaulted respondent, through threats to take his life if he refused, compelled him to convey the same to that party, and the settled law of this court is that such acts amount to legal duress, and that a deed, or other written obligation or contract, procured by such means, is inoperative and void, and that rule is applied in all jurisdictions where the principles of the common law prevail.

Actual violence is not necessary to constitute duress even at common law, as understood in the parent country, because consent is the very essence of a contract, and if there be compulsion there is no consent, and it is well-settled law that moral compulsion, such as that produced by threats to take life or to inflict great bodily harm, as well as that produced by imprisonment, is sufficient to destroy free agency, without which there can be no contract, as in that state of the case there is no consent.

Where a party enters into a contract for fear of loss of life, or for fear of loss of limb, or fear of mayhem, or for fear of imprisonment, the contract is as clearly void as when it was procured by duress of imprisonment, which is where there is an arrest for an improper purpose without just cause, or where there is an arrest for a just cause but without lawful authority, or for a just cause but for an unlawful purpose, and the rule is that in either of those events the party arrested, if he was thereby induced to enter into a contract, may avoid it as one procured by duress.

2. Judgments were not liens at common law, but Congress, in adopting the modes of process prevailing in the States at the time the judicial system of the United States was organized, made judgments recovered in the Federal courts liens in all cases where they were so by the laws of the States, and a later act of Congress has provided that judgments shall cease to have that operation in the same manner and at the same periods in the respective Federal districts as like processes do when issued from the State courts.

Such a lien confers a right to levy on the land to the exclusion of other adverse interests acquired subsequently to the judgment, but the lien constitutes no property or right in the land itself, as it is merely a general lien securing a preference over subsequently acquired interests in the property.

For these reasons we are of opinion that the Circuit Court erred in entering a decree for the appellee.

DECREE REVERSED with costs, and the cause remanded with directions to enter a decree for the appellant,

IN CONFORMITY WITH THE OPINION OF THIS COURT.

title: Baker v. Morton/Opinion of the Court


text: Talk:Baker v. Morton/Opinion of the Court


text:
Miller v. The State (79 U.S. 159)

MOTION to advance a cause, &c.

Seven persons, asserting themselves to be the true directors of the Rochester and Genesee Railroad Company, a corporation created by the State of New York, brought suit in one of the courts of that State in the nature of a quo warranto-using the name of The People of the State of New York as plaintiff with their own names as relators-against one Miller and several others, who also asserted themselves to be directors, charging that these last had unlawfully usurped the office of directors, from which they, the relators, had been unlawfully ousted.

The case being transferred from the special term of the court to which it was brought to the general term, the names of the seven relators were dropped, and the matter proceeded in the name of 'The People of the State of New York' alone. Judgment being finally given in the case thus entitled, by the Court of Appeals in New York, the case came here from that court on error; and now, standing low down on the docket, a motion was made by Mr. T. Bacon, for the plaintiff in error, Mr. J. C. Cochrane in behalf of the other side, favoring the same, and having himself made a similar motion, to advance the cause and hear it at such time as the court should direct.

The motion was made under the act of 30th June, 1870, which provides:

'That in all suits. . . now pending or which may hereafter be brought in any of the courts of the United States, whether original suits in the courts of the United States, or brought into said courts by appeal or writ of error,. . . wherein a State is a party,. . . or where the execution of the revenue laws of any State may be enjoined or stayed by judicial order or process. . . it shall be the duty of any court in which such case may be pending, on sufficient reason shown, to give to such cause the preference and priority over all other civil causes pending in such court between private parties.

'And the State or party claiming under the State the execution of whose revenue laws in enjoined or suspended shall have a right to have such cause heard at any time after such cause is docketed in such court, in preference to any other civil cause pending in such court between private parties.'

It was stated at the bar, in support of the motion under this statute, that in addition to the suit being by the State of New York, and so within the statute on that ground, the State named was interested in a fiscal point of view in the successful operation of the road, now greatly interfered with and almost arrested by the quarrels between the different bodies asserting themselves to be its true board of directors; that the revenue laws of the State and her receipts from the road were in fact suspended until the road was put into quiet and successful operation; that is to say, were suspended by the judicial order or process granting a writ of error in the case, until the disposition of which in some way the road could not be put into the sort of operation spoken of.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Miller v. The State (79 U.S. 159)


text: Talk:Miller v. The State (79 U.S. 159)

title: Talk:Miller v. The State (79 U.S. 159)


text:
Miller v. The State (79 U.S. 159)/Opinion of the Court

The motion is that the cause be advanced, and that it be heard at such time as the court shall direct, in preference to civil causes between private parties.

Founded as the motion is, upon the act of Congress of the thirtieth of June, 1870, it becomes necessary to inquire and determine whether the case is within the terms of that act, as if it is the motion should be granted, and the cause set for hearing as there directed.

Provision is there made to the effect that in all suits and actions now pending, or which may hereafter be brought, in a Federal court, whether the suit is original or brought into said courts by appeal or writ of error or by removal from a State court, wherein a State is a party, or where the execution of the revenue laws of any State may be enjoined or stayed by judicial order or process, it shall be the duty of any court in which such case may be pending, on sufficient reason shown, to give such cause the preference and priority over all other civil causes pending in such court between private parties.

Reliance, however, is placed, in support of the motion, upon the next clause of the act, which provides that the State, or the party claiming under the laws of the State, the execution of whose revenue laws is enjoined or suspended, shall have a right to have such cause heard at any time after such cause is docketed in such court in preference to any other civil cause pending in such court between private parties, as provided in the last phrase of the preceding clause.

No objection to the motion is made by the defendants. Instead of that they have filed one to the same effect, but such motions are not granted as of course, even when both parties concur, as such an order, if improperly made, would prejudice the rights of other parties in the calendar, and in view of that consideration it becomes necessary to determine whether the case is one where the parties, or either of them, are entitled to such preference, and to enable us to determine that point we have examined the record, and are satisfied that the motion must be denied.

The action was one in the nature of a quo warranto to try the title of the defendants, as directors of the Rochester and Genesee Valley Railroad, a corporation created by the laws of the State of New York, and doing business in that State, and the real controversy is between two sets of directors as to which set is entitled to manage and control the affairs of the corporation.

Both parties assume in argument that the suit is in the name of the State, or the people of the State alone, and it is upon that ground that it is claimed that the motion ought to be granted; and if the fact was so it may be conceded that the cause ought to be advanced. Such, however, is not the fact. On the contrary, the suit was brought not only in the name of the People of the State of New York, but also in the name of seven persons claiming to be directors of the railroad company, and that they, as such, are entitled to manage and control its affairs or to participate in such management and control; and they charge that the defendants, without any legal authority, right, or warrant whatsoever, have usurped and entered upon said offices of directors of the said corporation, and that they still unlawfully hold and exercise those rights and franchises. Subsequently, when the cause was transferred to the general term, the names of the seven directors joined as plaintiffs in the court of original jurisdiction were dropped in the title of the case, but the whole proceedings in the case in all the courts of the State where the case was litigated were upon the declaration as originally filed, without any amendment in that behalf. Evidently the suit is one in the name of the State, on the relation of the seven persons who charge that the defendants have unlawfully usurped the offices of directors from which they have been unlawfully ousted, or to which they are justly entitled by a legal election. Suggestion may be made that the State is the only party plaintiff named in the writ of error, but it is the duty of the court in such a case to open the record and ascertain whether the case in point of fact is one where the parties are entitled to be heard in preference to other civil causes between party and party pending on the calendar. Such a case is not within the act of Congress, and the

MOTION IS DENIED.


text: Talk:Miller v. The State (79 U.S. 159)/Opinion of the Court


text:
Ward v. Maryland

ON motion to advance this cause, one in error to the Court of Appeals of the State of Maryland.

An act of Congress, passed June 30th, 1870, and quoted also in the preceding case, enacts:

'That in all suits and actions. . . now pending, or which may hereafter be brought, in any of the courts of the United States, whether original suits in courts of the United States or brought into said courts by appeal or writ of error,. . . wherein a State is a party, or where the execution of the revenue laws of any State may be enjoined or stayed by judicial order or process, it shall be the duty of any court in which such case may be pending, on sufficient reason shown, to give such cause the preference and priority over all other civil causes pending in such court between private parties.

'And the State, or the party claiming under the laws of the State, the execution of whose revenue laws is enjoined or suspended, shall have a right to have such cause heard at any time after such cause is docketed in such court in preference to any other civil cause pending in such court between private parties.'

And the 30th rule of this court prescribes:

'All cases on the calendar, except cases advanced as hereinafter provided, SHALL be heard when reached in the regular call of the docket, and in the order in which they are entered.'

'Criminal cases may be advanced, by leave of the court, on motion of either party.'

With this enactment and this rule in force on Ward had been convicted, in one of the inferior State courts of Maryland, on an indictment for trading without having a license, as required by the laws of that State, and the judgment was affirmed in the Court of Appeals. It appeared that Ward was not in jail. The case being now here on writ of error this motion was made to advance the hearing of it.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Ward v. Maryland


text: Talk:Ward v. Maryland

title: Talk:Ward v. Maryland


text:
Ward v. Maryland/Opinion of the Court

Motion to advance the cause filed by the plaintiff in error. Indictment. The parties agreed that the defendant on the day and at the place named in the indictment did sell the articles of merchandise therein named without obtaining a license, as required by the laws of the State. Plea not guilty. Issue tried by court. Finding for the State. He moves the court to advance the cause.

Clearly the motion is not within the act of Congress of the thirtieth of June, 1870, as the motion is not filed by the State, nor by a party claiming under the laws of the State.

Probably it is made under the thirtieth rule of the court, which provides that criminal cases may be advanced by leave of the court on motion of either party. Under that rule the motion is addressed to the discretion of the court, and inasmuch as it appears that the defendant is not in jail, the court fails to see any reason for granting the motion.

MOTION DENIED.

title: Ward v. Maryland/Opinion of the Court


text: Talk:Ward v. Maryland/Opinion of the Court


text: Merchants' Insurance Company v. Huchbergers


text: Talk:Merchants' Insurance Company v. Huchbergers