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 hearty, "I built this right where the old mill stood. How d'you like it?"

The judge fitted his big body into an armchair, and sipped. "I don't quite know yet. I've only come. How do you like it yourself, Mr. Scrope?"

Another dab at the forelock. "To tell the truth, I don't know either." He, too, drank before continuing. "Maybe because I've never had a place of my own before. And I've been used to working, always on the go with my paper—now I'm a little lost with all the slack time on my hands. You know how that is. But when I first saw the spot, with the ruined mill and all, stuck away here, I thought it was as nice a building site as I'd ever heard of."

"I've been told a little about the mill and its legend," ventured Pursuivant, rummaging a pocket for his pipe. At once his host began the tale, as Pursuivant had hoped:

"The place, I understand, was built before the War of Independence. It was owned and run by a man named Criley. He had a wife, a son and a daughter."

"Mind if I take notes?" asked Pursuivant, producing notebook and pen. "Go on, Mr. Scrope."

"Well, the war came. The miller and his son joined Washington's army. The British took New York, and there was a long, hard scrap to see whether they'd stop there or take the rest of the country, too."

nodded. He knew that dark, desperate phase of his nation's history. After the first disaster to American arms, the fighting had taken on the somber complexion of raids, ambuscades, betrayals. Considerable savagery on both sides. Nathan Hale and John Andre—two fine gentlemen—hanged like felons. Thousands of other tragedies. All the New York area—including this part of New Jersey—stock full of grim deeds, giving rise to creepy tales.

Scrope went on:

"New York had quite a few Hessian soldiers stationed around—hired to fight the Americans, you know."

Again Pursuivant nodded. His Virginian ancestor had followed Washington in the battle of Trenton. "The Hessians weren't very fierce fighters," he commented.

"There was an exception to that rule," Scrope declared pithily. "Still taking notes, Judge?—I can't tell you this particular Hessian's name, but it comes down in the story how he looked. Big as you, I figure. Burly. He was a famous hunter back home in Germany. Maybe a criminal, joining the army to escape—Anyway, he could beat the Americans at their own game of hunt and shoot."

"That's hard to believe," rejoined Pursuivant. "Some of Washington's men were hard-set old Indian fighters."

"This Hessian outdid the Indians. He'd strip naked—even in winter—and paint himself like a Mohawk and sally out to kill. He was a dead shot, and a devil with sword or hatchet or knife." Scrope paused to bite the end off a cigar. "He could track or stalk anything, and he'd fight two soldiers at a time. Sometimes more. He raided farms and murdered civilians, even women and children. Quite a score he ran up."

Scribbling in his book, the judge could see in his mind one of those fancy-portraits so often vivid—a naked colossus, streaked with red and black, a heavy-boned face, thick, pale brows over slitted eyes. A belt stuck full of weapons. Had the Hessian looked like that? Pursuivant filled his pipe and thrust it under his mustache. "Go on," he prompted.

"The two women left here at the mill hated and feared that Hessian. They plotted against him. Pretended to be British sympathizers, and scraped an acquaintance."

"That was nervy of them," commented the judge. His mind's eye showed him new


text: 1911 Encyclopædia Britannica/Emeritus

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

title: 1911 Encyclopædia Britannica/Emeritus


text:
Page:Triangles of life, and other stories.djvu/20

8 had been taken to England as a child, but remembered very little of it, and nothing of Billy. Billy showed no inclination to peel his potatoes, however, and during the evening, the It and the Voices not coming on, he told him all about it. How he had left home and run to London first, because it was gloomy at home, and there was always trouble. There was big trouble, not his, but he should 'a'stayed an' shared it. He had a right in it. He hoped, with a momentary loss of himself and a fluttering raising of uncertain fingers to his temples, that "Bob," the new man, wouldn't mention a word of it in Shepparton or anywheres. He was sick an' weak, or he wouldn't have talked on it. .... "And his poor old mother!—Poor mother!" He shed tears and his voice broke into the whine that no man likes to hear. "He'd left trouble that he had as much right in as any o' them. Left poor mother dyin' broken-hearted on it, and Tom t' fight it out. Poor old Tom! Good old Tom as he was allers havin' 'dry ' words with—an' all his own fault. ..."

The stranger, who treated him as a perfectly rational being, listened with seeming interest, sympathized, soothed, and assured Billy over and over again, with astonishing patience, that it was all going to be mended and fixed up, and that Billy was going home almost directly the job was done.

About here there came what some writers call a "diversion." It certainly diverted Bogan's dreams, if he dreamed. It diverted Jack Moonlight in his quiet way, and was probably a relief to the new-comer. He heard some one, or something, coming through the


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Rh scrub, then a silence (he heard that too), as if the man or animal had stopped, or was moving quietly. Then he fancied a shadow was bending over Bogan, but before he was sure there was a yell, and sounds like the sudden getting up of a dray horse that has been stumbled over in his sleep by a blundering old working bullock, and badly frightened. The shadows blended and went down; then one rose, and then the other, and there was bad language, then presently one shadow settled down again, and the language grumbled out on the night breeze. Bob was just going across with Billy to see, when he met Jack Moonlight, who seemed to have a "hiccup," or a catch, in his stomach.

"What's up?" asked Bob, with the adjectives necessary in new acquaintanceships.

"Oh, it's only Bogan," said Moonlight; "I dunno what the hell he wanted to play up like that for. I was coming from the fires, and I only bent over him and rubbed his head with my pipe bowl, to see if he was awake, and I told him to keep an eye out for God Forgive Billy."

Billy had a strong objection, connected with the earth's 'lectricity, to sleeping on his usual bed of boughs and blanket on the ground, and he had a horror of the tent. He said he'd got too much 'lectricity coming round the world, and that was what was the matter with him. He said he should never have come halfway round the world, which was correct, and having come so far he should have gone the other half and finished it—which was sane enough. So Bob made Bill's bed on the rough sapling bench or table, under


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10 the dead-bough shed, and persuaded him to lie down. The posts had been "puddled," or clay rammed, down hard round them, and the cavities kept filled with water, to keep the ants off the table, so Billy was isolated from them, if not from the earth's electricity. His friend told him he was, that the water and clay acted as perfect world insulator, and he seemed satisfied.

Almost before Bob was aware, he had commenced that long, quiet, calm, deceptive sleep, which so often cruelly raises hopes in the hearts of relatives and friends of such "cases" in the earliest stages, but which never deceives mental doctors or nurses. Bob sat on the sapling seat bench with his back against a corner upright, and commenced his watch of Billy—and of other things—

I. Childhood: Rows and scenes and scenes and rows, violent rows that frightened; father and mother separated; home a hell. Boy slavery and freedom,

II. Cheap boarding house, pretty, but hysterical, daughter; mother, step-father, and sisters; rows and scenes more violent than at home. Tale of ill-treatment. Last big row. Cab, box, and hurried, mad marriage at a "matrimonial bureau." Seven years of it.

III. Police court. Desertion. "Judicial separation." Maintenance order. Reconciliation—court—reconciliation—court. Summons for desertion, and maintenance. Summons, summons, summons, Darlinghurst. And the full knowledge of what sort of woman she was.


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Rh He shook it off, or lifted his mind from under it. He had gone through so much that he had this power: that he could do this at will almost. The moon rose over the scrub, and all things softened. It was cool, and even growing chilly, as drought nights do grow, and he drew the blanket up over Billy, who never stirred. Then he leaned back against the corner sapling, when he heard his voice called; the close, yet far away call, very distinct. "Robert!" His elbows jumped to his sides as he straightened, but he'd heard that voice before. Then, clear and distinct: "Read, Robert—read!"

At the first start he thrust out his hand towards Billy, and his hand touched Billy's hand, which lay, palm up, on the saplings; he was drawing back with a momentary sense of shame at his fear when Billy's fingers closed over his, as a sleeping child's might. Then he looked up, and across, and set his mind to read. Then gradually the "Four Lanes" took shape, and he saw the cool green, peaceful English scene, as Billy had. The ground mist was "coming up," and dusk coming on—dusking the moonlight at first—and he saw two figures coming, or seeming more to float toward him from the direction of Shepperton-on-Thames—as in a picture from the dawn of memory. Then suddenly the figures were close to him and plain—save the faces. The girl wore a dark jacket, such as worn in England five or six years ago, and a dark hat with much forward brim, held down to hide the face, which always gives a girl a more hang-dog and guilty look than any slouch hat worn any way can


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86 pictures. Probably the daughter made the overture—buxom, rosy-cheeked on a chill afternoon, she managed to encounter the man of blood on a country lane. The Hessian would be a heavy-handed gallant. His broad, tough face grinned admiringly. The rural beauty, trying not to tremble, would venture a return smile, a curtsey.

"They invited him to dinner," Scrope continued. "He put on his best uniform—"

Strange that Hessian butcher would look in full dress—white small-clothes and gaiters modelling his brawny legs, the red coat with white facings and shiny buttons cramping his barrel torso. How out of place the powdered hair, the tall grenadier cap! But Scrope was getting on to the climax:

"When he sat down at the table, one of the women—mother or daughter, the stories disagree—stuck a serving knife into his back. They got rid of the body somehow—walled it up or buried it in the cellar. But the spirit returned."

"How many saw it?" demanded Pursuivant.

"Many. The mother died of fright, and the daughter of jumping from an attic window, before the year was out. The son committed suicide before he'd been long back from the war—nobody says anything about the father, I guess he was killed in some battle. Well, that disposed of the family. The mill went out of use. There's lots of newer yarns. A girl from Scott's Meadows yonder stayed one night ten years ago, on a dare. Next morning she was roaming around, too crazy to talk."

"And you bought the place?"

"Yes. Tore down the old mill house, and rebuilt on its foundations. Shouldn't that lay any ghosts, Judge Pursuivant?"

"Most rebuilders prefer to burn the haunted place entirely," said the judge. "However, that depends on how much they believe in ghosts. I take it that you don't laugh at these stories."

Scrope almost bit his cigar in two. "Would you laugh," he asked, "if two houseboys quit on you inside of six weeks? If something followed you all around your cellar, something cold and sneaky, that wasn't ever there when you turned around? If you fidgeted all the time, like at a play by Ibsen or a story by Poe? It's no laughing matter, Judge."

Pursuivant leaned forward. "You imagine disturbing sights and sounds?"

"Right. Never quite see or hear them—just a whisper, a shadow in dim places, when I'm all alone here. I wish," and Scrope grew somber, "that I belonged to some classical old church. A priest, with bell, book and candle, would be mighty comforting."

"Just so," agreed Pursuivant. "It so happens that I know an old formula of exorcism. I'm not a clergyman, but I offer it for what it's worth, as charm or psychological clearance."

Scrope frowned, then smiled. The subject was new to him. Pursuivant made haste to be logical: "I'm not trying to make an occult convert out of you, Mr. Scrope. But it seems that a symbol or ceremony might serve as rationalization—a psychological peg to hang your worries on and forget them entirely—"

"Right as a rabbit!" cried Scrope, almost explosively. "Go ahead. Judge. Do it."

Pursuivant set down glass and pipe, and stood up. Scrope also rose from his chair. In so doing he moved backward and stood almost by the darkened door that led to the rear of the house. Pursuivant began solemnly:

"All ye evil spirits, I forbid you this man's bed, his couch; I forbid you, in heaven's name, his house and home; I forbid you, in the name of God, his blood and flesh, his body and soul. Let all evil return from him and his, unto you and yours, in the name of the Trinity."


text: 1911 Encyclopædia Britannica/Enteritis

title: 1911 Encyclopædia Britannica/Enteritis


text: Talk:Home Insurance Company v. Morse/Opinion of the Court


text:
Sprott v. United States

APPEAL from the Court of Claims.

The act known as the Captured and Abandoned Property Act, passed March 12th, 1863, providing for 'the collection of abandoned property, &c., in the insurrectionary districts within the United States,' enacts that any person claiming to have been the owner of any such abandoned or captured property may, within a time specified in the act, prefer his claim to the proceeds thereof in the Court of Claims, and on proof to the satisfaction of the court: (1) of his ownership; (2) of his right to the proceeds thereof; and (3) that he has never given any aid or comfort to the rebellion, receive the residue of such proceeds, after deducting any purchasemoney which may have been paid, &c.

Under this act one Sprott, a resident of Claiborne County, Mississippi, filed a claim in the Court of Claims to the proceeds of certain cotton. That court made the following finding of facts:

At different times during the years 1864 and 1865, large quantities of cotton were purchased by the agents of the Confederate States for the treasonable purpose of maintaining the war of the rebellion against the government of the United States. Of cotton thus purchased by various agents in Claiborne County, Mississippi, three hundred bales were sold to the claimant by one agent, in March, 1865, for ten cents a pound, in the currency of the United States. The sale was made by the agent as of cotton belonging to the Confederate States, and it was understood by the claimant at the time of the purchase to be the property of the rebel government, and was purchased as such. The agent had been specially instructed by the Confederate government 'to sell any and all cotton he could for the purpose of raising money to purchase munitions of war and supplies for the Confederate army;' but the purpose of the sale was not disclosed to the claimant, whose purpose was not to aid the Confederate States, buying the cotton at its market value and regarding it as a mere business transaction of 'cotton for cash.' The cotton was delivered to him at the time when the money was paid, he then being a resident of Claiborne County, within the Confederate lines.

The cotton was captured in May, 1865, and the proceeds or some portion thereof are in the treasury.

And upon these facts the Court of Claims found, as conclusions of law—

1. That the government of the Confederate States was an unlawful assemblage, without corporate power to take, hold, or convey a valid title to property, real or personal.

2. That the claimant was chargeable with notice of the treasonable intent of the sale by the Confederate government, and that the transaction was forbidden by the laws of the United States, and wholly void, so that the claimant acquired no title to the property which was the subject of suit.

The court therefore decreed against the claimant, and from its decree he brought the case here.

Messrs. George Taylor and R. M. Corwine, for the appellant; Mr. C. H. Hill, Assistant Attorney-General, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Sprott v. United States


text: Talk:Sprott v. United States

title: Talk:Sprott v. United States


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

The Court of Claims, upon the facts which it found, decided as conclusions of law—

1. That the government of the Confederate States was an unlawful assemblage without corporate power to take, hold, or convey a valid title to property, real or personal.

2. That the claimant was chargeable with notice of the treasonable intent of the sale by the Confederate government, and that the transaction was forbidden by the laws of the United States, and wholly void, so that the claimant acquired no title to the property which is the subject of suit.

We do not think it necessary to say anything in regard to the first proposition of law laid down by that court. Whether the temporary government of the Confederate States had the capacity to take and hold title to real or personal property, and how far it is to be recognized as having been a de facto government, and if so, what consequences follow in regard to its transactions as they are to be viewed in a court of the United States, it will be time enough for us to decide when such decision becomes necessary. There is no such necessity in the present case.

We rest our affirmance of the judgment of the Court of Claims upon its second proposition.

It is a fact so well known as to need no finding of the court to establish it, a fact which, like many other historical events, all courts take notice of, that cotton was the principal support of the rebellion, so far as pecuniary aid was necessary to its support. The Confederate government early adopted the policy of collecting large quantities of cotton under its control, either by exchanging its bonds for the cotton, or when that failed, by forced contributions. So long as the imperfect blockade of the Southern ports and the unguarded condition of the Mexican frontier enabled them to export this cotton, they were well supplied in return with arms, ammunition, medicine, and the necessaries of life not grown within their lines, as well as with that other great sinew of war, gold. If the rebel government could freely have exchanged the cotton of which it was enabled to possess itself, for the munitions of war or for gold, it seems very doubtful if it could have been suppressed. So when the rigor of the blockade prevented successful export of this cotton, their next resource was to sell it among their own people, or to such persons claiming outwardly to be loyal to the United States, as would buy of them, for the money necessary to support the tottering fabric of rebellion which they called a government.

The cotton which is the subject of this controversy was of this class. It had been in the possession and under the control of the Confederate government, with claim of title. It was captured during the last days of the existence of that government by our forces, and sold by the officers appointed for that purpose, and the money deposited in the treasury.

The claimant now asserts a right to this money on the ground that he was the owner of the cotton when it was so captured. This claim of right or ownership he must prove in the Court of Claims. He attempts to do so by showing that he purchased it of the Confederate government and paid them for it in money. In doing this he gave aid and assistance to the rebellion in the most efficient manner he possibly could. He could not have aided that cause more acceptably if he had entered its service and become a blockade-runner, or under the guise of a privateer had preyed upon the unoffending commerce of his country. It is asking too much of a court of law sitting under the authority of the government then struggling for existence against a treason respectable only for the numbers and the force by which it was supported, to hold that one of its own citizens, owing and acknowledging to it allegiance, can by the proof of such a transaction establish a title to the property so obtained. The proposition that there is in many cases a public policy which forbids courts of justice to allow any validity to contracts because of their tendency to affect injuriously the highest public interests, and to undermine or destroy the safeguards of the social fabric, is too well settled to admit of dispute. That any person owing allegiance to an organized government, can make a contract by which, for the sake of gain, he contributes most substantially and knowingly to the vital necessities of a treasonable conspiracy against its existence, and then in a court of that government base successfully his rights on such a transaction, is opposed to all that we have learned of the invalidity of immoral contracts. A clearer case of turpitude in the consideration of a contract can hardly be imagined unless treason be taken out of the catalogue of crimes.

The case is not relieved of its harsh features by the finding of the court that the claimant did not intend to aid the rebellion, but only to make money. It might as well be said that the man who would sell for a sum far beyond its value to a lunatic, a weapon with which he knew the latter would kill himself, only intended to make money and did not intend to aid the lunatic in his fatal purpose. This court, in Hanauer v. Doane, speaking of one who set up the same defence, says: 'He voluntarily aids treason. He cannot be permitted to stand on the nice metaphysical distinction that, although he knows that the purchaser buys the goods for the purpose of aiding the rebellion, he does not sell them for that purpose. The consequences of his acts are too serious to admit of such a plea. He must be taken to intend the consequences of his own voluntary act.' This case, and the succeeding one of Hanauer v. Woodruff, are directly in point in support of our view of the case before us.

The recognition of the existence and the validity of the acts of the so called Confederate government, and that of the States which yielded a temporary support to that government, stand on very different grounds, and are governed by very different considerations.

The latter, in most, if not in all, instances, merely transferred the existing State organizations to the support of a new and different national head. The same constitutions, the same laws for the protection of property and personal rights remained, and were administered by the same officers. These laws, necessary in their recognition and administration to the existence of organized society, were the same, with slight exceptions, whether the authorities of the State acknowledged allegiance to the true or the false Federal power. They were the fundamental principles for which civil society is organized into government in all countries, and must be respected in their administration under whatever temporary dominant authority they may be exercised. It is only when in the use of these powers substantial aid and comfort was given or intended to be given to the rebellion, when the functions necessarily reposed in the State for the maintenance of civil society were perverted to the manifest and intentional aid of treason against the government of the Union, that their acts are void.

The government of the Confederate States can receive no aid from this course of reasoning. It had no existence, except as a conspiracy to overthrow lawful authority. Its foundation was treason against the existing Federal government. Its single purpose, so long as it lasted, was to make that treason successful. So far from being necessary to the organization of civil government, or to its maintenance and support, it was inimical to social order, destructive to the best interests of society, and its primary object was to overthrow the government on which these so largely depended. Its existence and temporary power were an enormous evil, which the whole force of the government and the people of the United States was engaged for years in destroying.

When it was overthrown it perished totally. It left no laws, no statutes, no decrees, no authority which can give support to any contract, or any act done in its service, or in aid of its purpose, or which contributed to protract its existence. So far as the actual exercise of its physical power was brought to bear upon individuals, that may, under some circumstances, constitute a justification or excuse for acts otherwise indefensible, but no validity can be given in the courts of this country to acts voluntarily performed in direct aid and support of its unlawful purpose. What of good or evil has flowed from it remains for the consideration and discussion of the philosophical statesman and historian.

JUDGMENT AFFIRMED.

Mr. Justice CLIFFORD and Mr. Justice DAVIS expressed their concurrence in the judgment of the court above announced, solely upon the ground that the purchase of the cotton and the payment of the consideration necessarily tended to give aid to the rebellion, and that all such contracts were void, as contrary to public policy. They stated that all such portions of the opinion as enforced that view had their concurrence, but that they dissented from the residue of the opinion as unnecessary to the conclusion.


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


text:
Titus v. United States

ERROR to the Circuit Court for the Southern District of Georgia. The case was thus:

On the 2d December, 1862, the executors of the will of C. J. McDonald, being fully authorized, sold and conveyed to the Confederate government certain land in Bibb County, Georgia, to be used (through the agency of certain laboratories built upon it for the preparation of ammunition) in promoting the rebellion against the government of the United States. This land remained the property of the Confederate government, and was used in aid of the rebellion, until the final surrender of the Confederate armies, when it was taken possession of and held by the military forces of the United States. On the 17th July, 1866, while it remained so in the possession of the military forces, one Titus filed with the district attorney an information against it under the act of August 6th, 1861, known as the Confiscation Act. This act provides, in substance, that if, during the (then) present or any future insurrection against the government of the United States, any person should, after the prescribed proclamation, purchase or acquire, sell or give, any property, of whatsoever kind or description, with intent to use or employ the same, or suffer the same to be used or employed, in aiding or abetting or promoting such insurrection; or if any person, being the owner of such property, should knowingly use or employ, or consent to the use or employment of, the same for such purpose, all such property should be lawful subject of prize and capture wherever found, and the President was required to cause it to be seized, confiscated, and condemned. The proceedings for condemnation were to be had in the courts of the United States having jurisdiction of the amount, or in admiralty in any district in which such 'prizes and capture' might be seized, or into which they might be taken and proceedings first instituted. The Attorney-General, or the district attorney of the United States for the district in which the property might at the time be, was authorized to institute the proceedings of condemnation, and, in such case, they were to be wholly for the benefit of the United States; or any person might file an information with such attorney, and then the proceedings were to be for the use of an informer and the United States in equal parts.

The district attorney, in pursuance of the information filed by Titus, as already mentioned, and prosecuting 'for the United States and informant,' on the 15th January, 1867, commenced proceedings in the District Court of the Southern District of Georgia for the condemnation and sale of the property, alleging the conveyance to and use by the Confederate government, and averring that, by the surrender of the Confederate armies, it had become the property of the United States. No person appeared in the action to defend, or offered to claim the property, and, on the 26th February, the formal judgment of forfeiture and sale under the act was entered. A warrant of sale was issued on the 25th March, 1867, to which the marshal, on the 21st November, returned that, on the 8th May, he had postponed the sale upon the order of the district attorney. On the 17th June Titus filed a petition in the cause, asking to be made a party, and for a judgment, asserting his right to one-half the proceeds of the sale and directing its payment to him. The prayer of this petition was granted on the 8th April, 1868, and, on the 20th January, 1870, the marshal made a second return to the warrant of sale, to the effect that he had sold the property for $19,542.75, and had paid the purchase-money into the registry of the court. On the 19th April following, the Commissioner of the Freedmen's Bureau asked for and obtained an order for the payment to him of one-half the net proceeds of the sale.

The reader will perhaps recall that the act establishing the Freedmen's Bureau, passed March 3d, 1865, provides—

'That the commissioner, under the direction of the President, shall have authority to set apart for the use of loyal refugees and freedmen such tracts of land within the insurrectionary States as shall have been abandoned or to which the United States shall have acquired title by confiscation, or sale, or otherwise, and to every male citizen, whether refugee or freedman as aforesaid, there shall be assigned not more than forty acres of such land,' &c.

After providing that he shall be protected in the occupancy thereof, at an annual rental for the period of three years, the act concludes thus:

'At the end of said term, or at any time during said term, the occupants of any parcels so assigned may purchase the land and receive such title thereto as the United States can convey, upon paying therefor the value of the land, as ascertained and fixed for determining the annual rent aforesaid.'

The twelfth section of the act of July 16th, 1866, continuing the said bureau, also provides—

'That the commissioner shall have power to seize, hold, use, lease, or sell, all buildings and tenements, and any lands appertaining to the same or otherwise, formerly held under color of title by the late so-called Confederate States, and not heretofore disposed of by the United States, and any buildings or lands held in trust for the same by any person or persons, and to use the same, or appropriate the proceeds derived therefrom, to the education of the freed people,' &c.

The district attorney, on the 2d May, filed a motion to set aside the judgment in favor of Titus, and, that motion being refused, took a writ of error to the Circuit Court, where the judgment was reversed. The case was here for a review of this action of the Circuit Court.

Mr. J. A. Wills, for the plaintiff in error:

I. The United States had certainly, as one ground of title to the property in question, that arising under the Confiscation Act of August 6th, 1861. Even conceding that they had a title arising by conquest, or by the surrender of the Confederate States on the field of battle, represented by the Commissioner of the Freedmen's Bureau, under the twelfth section of the act of July 16th, 1866, still they had a right to elect, and by the concurrent action of their several officers did elect to rely upon and assert their title and to enforce and dispose of it by the proceedings in confiscation. They are accordingly bound by all the legal consequences and incidents of that election.

The proceeding in confiscation, in which the judgment in favor of the informer was rendered by the District Court, was a valid legal unit; and, therefore, the judgment in favor of the informer was an integral, necessary, and logical sequence, or part of the confiscation proceedings, which, considered as such, cannot be maintained in part and set aside in part; in short, the whole must stand or fall together.

The land was confiscable under the Confiscation Act of August 6th, 1861.

The fact that it had been conveyed by its former owners, directly, 'to the Confederate States,' and had been used and employed by them in aid of the rebellion, did not render it any the less nor any the more confiscable, under those laws, than it would have been if the title had remained in its former owners. In either case it would have been equally 'used and employed in aiding, abetting, and promoting' the rebellion. The title of those who now hold the land under the decree and order of sale in the proceedings in confiscation against it, rests upon the truth of this proposition; and, indeed, this seems to be admitted on all sides, since no writ of error has been sued out by any one to call in question the validity of those proceedings, so far as they relate to the judgment of condemnation, and to the sale of the land confiscated.

By the act of August 6th, 1861, it was made 'the duty of the Attorney-General, or of the district attorney of the United States for the district in which said land was situated, to institute the proceedings of condemnation, and in such case it is declared they shall be wholly for the benefit of the United States, or any person may file an information with such attorney, in which case the proceedings shall be for the use of such informer and the United States in equal parts.'

The information filed by the informer with the district attorney which led to the seizure of the property in this case, was filed July 17th, 1866. He also furnished the evidence used in the trial of this case for the condemnation thereof. Now, if the district attorney had had all the information and evidence necessary to secure a condemnation of the said property, before or at the time the information of the informer was filed with him, it was his duty by law to proceed on his own information and evidence. But he did not so proceed. Presumptively, indeed evidently, because he could not.

When the two general facts are established in this case first, that the land informed against was confiscable, and was actually confiscated and sold under a judgment of the District Court, and second, that the proceedings in confiscation were instituted in the beginning and carried on to enforce the law, at the instance of the plaintiff in error, an informer, whose relation as such has been admitted and proved-the courts of the United States in such confiscation proceedings have no right to disregard the third section of the act of August 6th, 1861, which declares expressly that 'in such case the proceedings shall be for the use of such informer and the United States in equal parts.'

The statute of March 3d, 1865, giving the rights acquired be conquest to the Freedmen's Bureau, shows that the only title proposed to be given to the freedmen for any such property was a 'quit-claim.' Hence in the insurrectionary States but little value was attached, in point of fact, to property held by the title of conquest, while the fullest confidence was given to a title acquired by judicial proceeding under the confiscation laws; and that, therefore, the Commissioner of the Freedmen's Bureau acted wisely in this case by electing to assert the title of the United States in and by the proceedings in confiscation. The half that he did get was better than the whole which he might have had.

What, then, was the legal effect of his election?

This question was submitted to Mr. Stanbery, when attorney-general, in regard to the Macon armory property. He was asked—

'If, in your opinion, a complete title to that property is not already vested in the United States, to direct such proceedings to be instituted as may be necessary for the purpose of having the title perfected.'

Under date of October 5th, 1866 (after the information in this case had been filed), that distinguished lawyer says:

'The United States is in possession of the property, I understand, and in so far as the operation of the law of war may be concerned, the title is as perfect now as it can become.

'The property, however, may be liable to confiscation under the act of August 6th, 1861, &c. In respect to the institution of proceedings under that statute, the first objection that occurs to me is, that it waives the claim of title by conquest. Furthermore, on the filing of the information, the property would pass at once into judicial custody, and continue in such custody until the determination of the cause, &c. I do not think that I can safely direct judicial proceedings against the property, &c. I mention that law [of August 6th, 1861] as it is the only one known to me under which an allegation of forfeiture could probably be framed.'

II. At any time before the information was filed, and at all times afterwards and before the sale of this property, it was in the power of the Commissioner of the Freedmen's Bureau, under the act of March 3d, 1866, to have elected to claim title by conquest alone, and through the law officers of the United States to have discontinued the confiscation proceedings, and to have relied on the title by conquest alone. But that was not done. In addition to his passive acquiescence, he came forward, and by his application to the court for his half of the proceeds of the sale of the property, he directly and positively ratified and approved the confiscation proceedings, and the claim of the informer to the other half of the proceeds under them.

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

The CHIEF JUSTICE delivered the opinion of the court.

title: Titus v. United States


text: Talk:Titus v. United States

title: Talk:Titus v. United States


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Titus v. United States/Opinion of the Court

In war the public property of an enemy captured on land becomes, for the time being at least, the property of the conqueror. No judicial proceeding is necessary to pass the title. Usually the ultimate ownership of real property is settled by the treaty of peace, but so long as it is held and not surrendered by a treaty or otherwise it remains the property of the conqueror.

This well-settled principle in the law of war was recognized by this court in United States v. Huckabee, as applicable to the late civil war. At the close of that war there was no treaty. When the insurrection was put down the government of the insurgents was broken up, and there was no power to treat with. Hence the title to all captured property of the Confederate government then became absolute in the United States.

Titus, however, claims as an informer under the act of 1861. This act provided, in substance, that if, during the (then) present or any future insurrection against the government of the United States, any person should, after the prescribed proclamation, purchase or acquire, sell or give, any property of whatsoever kind or description, with intent to use or employ the same, or suffer the same to be used or employed, in aiding or abetting or promoting such insurrection; or if any person, being the owner of such property, should knowingly use or employ, or consent to the use or employment, of the same for such purpose, all such property should be lawful subject of prize and capture wherever found, and the President was required to cause it to be seized, confiscated, and condemned. The proceedings for condemnation were to be had in the courts of the United States having jurisdiction of the amount, or in admiralty in any district in which such 'prizes and capture' might be seized, or into which they might be taken and proceedings first instituted. The Attorney-General, or the district attorney of the United States for the district in which the property might at the time be, was authorized to institute the proceedings of condemnation, and, in such case, they were to be wholly for the benefit of the United States; or any person might file an information with such attorney, and then the proceedings were to be for the use of an informer and the United States in equal parts.

Clearly this act was intended for private, not public property-for such property of persons as required, under the laws of war, a judicial sentence of condemnation to divest the title of its owner,-not such property of a hostile government as had already been captured by an army and subjected to the complete and undisputed dominion and ownership of the conquering power. It applies, as will be seen, to all property, personal as well as real. Not only to a laboratory in which ammunition is prepared, but to the ammunition itself; not to armories simply, but to their product. If the laboratory, owned by the hostile government, when captured in the progress of the war and held by the army, can be informed against and condemned for the benefit of the informer and the United States, so also can the ammunition prepared therein and captured in battle. If the armory, then the gun. Once incorporate this statute, with such a construction, into the law of war, and the attention of the soldier in battle will be divided between the capture of arms, ammunition, and stores on the field, and the search for a district attorney with whom to lodge a statutory information, and demand, as a matter of right, a proceeding in the court for its condemnation on the joint account of himself and the government in whose service he is. We doubt if the counsel for the informer in this case, who has so earnestly and so ably advocated the cause of his client here, would be willing to enlist himself in behalf of such a claim, and yet it is difficult to see how, if he succeeds in this, he might not in that.

An informer, to entitle himself to the statutory reward for his service, must inform against property which is the subject of judicial condemnation. There can be nothing to divide if there is nothing to condemn. In this case the land, when informed against, was already the property of the United States. The title had passed by the completed conquest. There was nothing to reach by judicial process. Information, in the statutory sense, could do no good. The property had been devoted to the war and followed its fortunes. The capture was the result of many battles, but it was none the less, on that account, captured property, needing no judicial sentence of forfeiture to make it absolutely the property of the United States.

But it is claimed that the United States are estopped by the proceedings of condemnation instituted, as they were, in behalf of itself and an informant, from denying, as against the informer, that the property in question was the subject of forfeiture on joint account under the act. There is no pretence that there was any claim, adverse to the title of the United States as conqueror, that was, or could be, cut off by the judgment of the court. It will hardly be contended, we think, that if, after the close of the war, an information had been filed with the district attorney against the Charleston custom-house, and he had proceeded to have it condemned under the act, the United States would be estopped from objecting to the claim of an informer, for one-half its value, and yet the custom-house, although owned by the United States before the war, was no more its property at the close than was the laboratory informed against in this case, if the statements in the record are true. The very libel of information, filed by the district attorney, shows upon its face that the title of the United States was then complete, and the fair inference from the petition of Titus to be made a party to the cause is, that the case made by the libel is the same as that he presented to the attorney for proceedings. Certainly the United States are not prohibited from asserting, as against the informer, that the case he brought to its consideration, and upon which it acted, was not one in which he could be interested.

But it is further claimed that there is an estoppel in favor of this informer because the Commissioner of the Freedmen's Bureau omitted to appear and resist the judgment of condemnation, and, after the sale was made, applied for and received from the court one-half the proceeds.

The act of July 16th, 1866, gave the commissioner of that bureau the control and management of property of the character proceeded against, for certain purposes specified, but in this he was only the agent of the United States. His bureau was the department of the government authorized to manage the trust to which the property had been devoted. He is not estopped if the United States are not, and his neglect to appear and defend against the proceedings can certainly have no more effect against the United States than the institution of the original proceedings.

Neither was an estoppel created by the receipt of the purchase-money. The order in favor of the informer was made on the 8th April, 1868, and the property remained unsold until December 7th, 1869. On the 19th April, 1870, the commissioner made his application to the court for the money. One-half the proceeds was all he could ask for, so long as the judgment in favor of the informer remained in force. This he applied for and received, and on the 2d May the proceedings now under consideration were commenced to set aside that judgment. Certainly, under these circumstances, it cannot be said that, even if he had the power to do so, the commissioner has yielded the claim of the government to the money which had been adjudged to the informer.

Very different questions, and very different principles of estoppel, will have to be considered if the United States or the commissioner shall ever attempt to assert title against the purchasers at the sale. They claim under the sale, and have paid their money in consequence of the offer of the United States to sell in that way. The informer stands in no such position. He has parted with nothing he ever had. He stands upon the original title. If, when he informed, the United States had no title, and through his information one was acquired, he is entitled to the statutory reward for his service. But if the United States had then a perfect title and nothing could be added to it by reason of his information, he has done nothing for which the statute has provided a reward. Whether he should be paid for furnishing the government with information by which it has been able to make its conquest available, is a question we are not called upon to consider. We deal with him only as an informer under the statute, and as such he has no standing in court.

In the view we have taken of the case it is not necessary to consider whether the District Court erred in permitting Titus to become a party to the proceedings after the judgment of condemnation had been entered, and all chances of liability for costs had been resolved in his favor.

JUDGMENT AFFIRMED.


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


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Boley v. Griswold

ERROR to the Supreme Court of the Territory of Montana.

The Civil Practice Act of the Territory of Montana thus enacts:

'In an action to recover possession of personal property, judgment for the plaintiff may be for the possession or the value thereof, in case a delivery cannot be had, and damages for the detention of them.'

This act being in force, Griswold sued Boley in one of the District Courts of Montana for the recovery of the possession of certain cattle. The jury found as follows:

'For the return of the cattle to the plaintiff, and in case a return of the same could not be had, $3000, the value thereof; and $800 damages for the detention.'

On this verdict the court entered a judgment that plaintiff recover from defendant the sum of $3800, with interest, &c.

No alternative judgment, as provided by the Practice Act, for the possession or return of the property, was rendered upon the verdict by the District Court.

The defendant took the case to the Supreme Court, which affirmed the judgment of the District Court. Thereupon he brought the case here.

Messrs. J. Hubley Ashton and N. Wilson, for the plaintiff in error:

The section of the Civil Practice Act of Montana, on which this case depends, appears to be identical with section 277, of the New York Code, which prescribes the form of judgment to be taken in actions to recover the possession of personal property. Upon that code the Court of Appeals of New York has decided that neither a plaintiff nor a defendant, in an action to recover the possession of such property, can take judgment for the value of property, except as an alternative; and that if a judgment is taken for the value alone, and no alternative judgment is entered for the return of the property, it will be erroneous, and that for such error the judgment for the value will be reversed by an appellate court.

This seems a rational view of the case, and comes before this court with the support of a tribunal particularly conversant with the general principles of the Civil Practice Act under consideration.

Mr. Robert Leech, contra.

The CHIEF JUSTICE delivered the opinion of the court.

title: Boley v. Griswold


text: Talk:Boley v. Griswold

title: Talk:Boley v. Griswold


text:
Boley v. Griswold/Opinion of the Court

It is true that under the Civil Practice Act of Montana there can be no judgment for the value if there can be a delivery of the property, but it is not true that a judgment is necessarily erroneous if the alternative is not expressed upon its face. The court must be satisfied that the delivery cannot be made before it can adjudge absolutely the payment of money. But, if so satisfied, it may so adjudge. A special finding to that effect is not necessary. An absolute judgment for the money is equivalent to such a finding.

In one part of this record it appears that the verdict was for the return of the property, or, in case that could not be made, for $3000, the value, and $800 damages for the detention. The judgment was for the money, and the presumption is, in the absence of anything in the record to the contrary, that before it was rendered the court had become judicially satisfied that the property could not be returned. In a court of error every presumption is in favor of the validity of the judgment brought under consideration. Error must appear affirmatively before there can be a reversal.

JUDGMENT AFFIRMED.

title: Boley v. Griswold/Opinion of the Court


text: Talk:Boley v. Griswold/Opinion of the Court


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Hearne v. Marine Insurance Company

APPEAL in equity from the decree of the Circuit Court for the District of Massachusetts. Hearne filed a bill in the court below against the New England Mutual Marine Insurance Company to reform a contract of insurance, he alleging that the policy as made out did not conform to the agreement of the parties, taking that agreement with the usage or custom which he insisted entered into and formed a part of it.

The case was thus:

On the 7th of May, 1866, Hearne made his application by letter to the company for insurance. He said:

'The bark Maria Henry is chartered to go from Liverpool to Cuba and load for Europe, via Falmouth for orders where to discharge. Please insure $5000 on this charter valued at $16,000, provided you will not charge over 4 per cent. premium.'On the 9th of that month the company through its president replied:

'Your favor of the 7th is at hand. As requested we have entered $5000 on charter of bark Maria Henry, Liverpool to port in Cuba and thence to port of advice and discharge in Europe, at 4 per cent.'

The policy was made out on the same day and described the voyage as follows:

'At and from Liverpool to port in Cuba and at and thence to port of advice and discharge in Europe.'

Thereafter the policy was delivered to the assured and received without objection. The vessel was loaded with coal at Liverpool and proceeded thence to St. Iago de Cuba. There she discharged her outward cargo. She went thence to Manzanillo, another port in Cuba, where she took on board a cargo of native woods. On the 13th of September, 1866, she sailed thence for Europe, intending to go by Falmouth for orders. Upon the 18th of that month, on her homeward voyage, she was lost by perils of the sea. Due notice was given of the loss, and it was admitted to have occurred as alleged in the bill. The company refused to pay, upon the ground that the voyage from St. Iago de Cuba to Manzanillo was a deviation from the voyage described in the policy, and, therefore, put an end to the liability of the insurers.

On the 7th of December, 1868, two years after the loss occurred, Hearne brought an action at law against the company. The court held that he was not entitled to recover by reason of the deviation before stated. He failed in the suit. On the 16th of January, 1871, he filed the bill in this case, and prayed therein to have the contract reformed so as to cover the elongated voyage from St. Iago to Manzanillo.

The bill averred that at the time of chartering the bark, and at the time of the issuing of the policy, there existed at Liverpool a general and uniform usage of trade, that all vessels chartered at said port for a round voyage from said port to the island of Cuba, and thence to return to Europe, carrying coal as their outward cargo to Cuba, and bringing a return cargo thence to Europe, should visit one port in the said island for the purpose of discharging the outward cargo, and that they should then proceed to another port for the purpose of shipping a return cargo, and further that this usage was well known to all merchants, and others engaged in the trade between Liverpool and Cuba.

Evidence was introduced to establish the usage. It showed that about four-fifths of the vessels which go laden with coal to Cuba, take their return cargo elsewhere on the island than at the port of discharge, and that a few used the same port for both purposes. But it appeared also that the contract in both cases was expressed according to what the parties purposed.

The court below dismissed the bill, and from its action Hearne took this appeal.

Mr. Walter Curtis, for the appellant; Mr. H. C. Hutchins, contra.

Mr. Justice SWAYNE, having stated the case, delivered the opinion of the court.

title: Hearne v. Marine Insurance Company


text: Talk:Hearne v. Marine Insurance Company

title: Talk:Hearne v. Marine Insurance Company


text:
Hearne v. Marine Insurance Company/Opinion of the Court

The reformation of written contracts for fraud or mistake is an ordinary head of equity jurisdiction. The rules which govern the exercise of this power are founded in good sense and are well settled. Where the agreement as reduced to writing omits or contains terms or stipulations contrary to the common intention of the parties, the instrument will be corrected so as to make it conform to their real intent. The parties will be placed as they would have stood if the mistake had not occurred.

The party alleging the mistake must show exactly in what it consists, and the correction that should be made. The evidence must be such as to leave no reasonable doubt upon the mind of the court as to either of these points. The mistake must be mutual and common to both parties to the instrument. It must appear that both have done what neither intended. A mistake on one side may be a ground for rescinding, but not for reforming, a contract. Where the minds of the parties have not met there is no contract, and hence none to be rectified.

This jurisdiction is applied, where necessary and proper, to the reformation of contracts of insurance.

Here the application was to insure on a charter 'from Liverpool to Cuba, and load for Europe, via Falmouth,' &c. This was indefinite as to Cuba, and may have been regarded by the company as ambiguous. The answer was, as 'requested, we have entered $5000 on charter to port in Cuba, and thence to port of advice and discharge in Europe.' This answer shows clearly two things: (1.) How the company understood the proposition. (2). That they agreed to insure according to that understanding, and not otherwise.

There was no mistake nor misapprehension on their part. The circumstances show there could be none.

The correspondence between the parties constituted a preliminary agreement. The answer to Hearne's proposal was plain and explicit. It admitted but of one construction. He was bound carefully to read it, and it is to be presumed he did so. In that event there was as little room for misapprehension on his part as on the part of the company. Such a result was hardly possible. There is nothing in the evidence which tends to show that any occurred. The inference of full and correct knowledge is inevitable. It is as satisfactory to the judicial mind as direct evidence to the same effect would be.

So far, the complainant's case is as weak in equity as it was at law.

But it is said there was a usage that vessels going to Cuba might visit at least two ports-one for discharge and the other for reloading. It is insisted that this usage authorized the voyage to Manzanillo; that the voyage was not a deviation; that it in no wise affected the liability of the company in equity; and that hence, the contract of the parties in this particular should be reformed accordingly.

It is not necessary that the usage relied upon in cases like this should have been communicated or known to the assurers. Lord Mansfield said: 'Every underwriter is presumed to be acquainted with the practice of the trade he insures, and if he does not know it, he ought to inform himself.'

Usage is admissible to explain an ambiguity, but it is never received to contradict what is plain in a written contract. If the words employed have an established legal meaning, parol evidence that the parties intended to use them in a different sense will be rejected, unless if interpreted according to their legal acceptation, they would be insensible with reference to the context or the extrinsic facts. If no such consequence is involved, proof of usage is wholly inadmissible to contradict or in any wise to vary their effect. In no case can it be received where it is inconsistent with, or repugnant to, the contract. Otherwise it would not explain, but contradict and change the contract which the parties have made-substituting for it another and different one, which they did not make. To establish such inconsistency it is not necessary that it should be excluded in express terms. It is sufficient if it appear that the parties intended to be governed by what is written and not by anything else.

The principle of the admission of such testimony is that the court may be placed, in regard to the surrounding circumstances, as nearly as possible in the situation of the parties-the question being, what did they mean by the language they employed? What is implied is as effectual as what is expressed. The expression and the implication in this case are equally clear. It is expressed that the vessel should proceed to a port in Cuba, and thence to Europe. It is implied that she should visit no other port in Cuba. Expressum facit tacitum cessare. Under these circumstances, usage can have no application, and proof of its existence is inadmissible. But the usage relied upon is not sustained by the evidence.

It appears that a large proportion of the vessels, perhaps four-fifths, which go laden with coal to Cuba, take on their return cargo elsewhere on the island than at the port of discharge. A few use the same port for both purposes. But the proof is also that the contract in all such cases is expressed according to the intent. There is no proof that where the policy is upon a voyage to one port and back, the vessel may proceed to another port before her return, and that by usage or otherwise, the latter voyage as well as the former shall be deemed to be within the policy.

Viewing the case in this aspect, we find nothing that would warrant the interposition of a court of equity.

We are asked, if we decline to reform the contract, to decree the return of the premium. This we cannot do. We regard the case as one of mere deviation. It is essentially of that character. In that class of cases, the law annuls the contract as to the future, and forfeits the premium to the underwriter. Here equity must follow the law. We cannot apply a different rule.

DECREE AFFIRMED.


text: Talk:Hearne v. Marine Insurance Company/Opinion of the Court


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Equitable Insurance Company v. Hearne

APPEAL from the Circuit Court for the District of Massachusetts.

The controversy in this case grew out of a contract of insurance upon the same charter-party as in the preceding case, though here the insurance was by a different company from the insurance there. The present case was thus:

On the 2d of May, 1866, Hearne addressed a letter to the Equitable Insurance Company as follows:

'Insure $4000 on the charter-party of the bark Maria Henry, valued at $16,000, if you will not charge me more than 3 per cent.; voyage from Liverpool to Cuba, and to Europe via Falmouth, for orders where to diseharge. She will take her registered tonnage of coal.'

On the 4th of the same month the company replied:

'We cannot write the charter of the bark Maria Henry at your rate, viz., 3 per cent., including coals, from Liverpool to Cuba. Our rate will be 4 per cent. for the voyage, to include coals.'

On the 7th of the month Hearne answered, arguing against the rate proposed, and offered '3 per cent., or 4 per cent., 1 1/2 per cent. to be returned if no loss.'

On the day following the company responded:

'We will write upon the charter of the bark Maria Henry as proposed by you-Europe to Cuba and back to Europe-at 3 1/2 per cent. net. It is worth something, you know, to cover the risk at the port of loading in Cuba.'

On the next day Hearne wrote:

'I accept your proposition in reference to the insurance of the bark Maria Henry. Please insure $4000, at 3 1/2 per cent., on the charter valued at $16,000, at and from Liverpool to Cuba, and to Europe via a market port, for orders where to discharge.'

The contract, as expressed in the policy, was for—

'Four thousand dollars on charter of bark Maria Henry, at and from Liverpool to port of discharge in Cuba, and at and thence to port of advice and discharge in Europe.'

The facts of the case were the same in all respects, down to the close of the litigation at law between the parties, inclusive, as those in the case immediately preceding, where the controversy was with the other company. That case is referred to for the particulars. Hearne having been defeated in his action at law, filed this bill for the reformation of the contract, as stated in the policy. The Circuit Court decreed in his favor. The company brought the case here for review.

Mr. J. C. Dodge, for the appellant; Mr. Walter Curtis, contra.

Mr. Justice SWAYNE, having stated the case, delivered the opinion of the court.

title: Equitable Insurance Company v. Hearne


text: Talk:Equitable Insurance Company v. Hearne


text:
Equitable Insurance Company v. Hearne/Opinion of the Court

It is not denied that the correspondence between the partise constituted a preliminary agreement. Such clearly was its effect. The policy was intended to put the contract in a more full and formal shape. The assured was bound to read the letters of the company in reply to his own with care. It is to be presumed he did so. He had a right to assume that the policy would accurately conform to the agreement thus made, and to rest confidently in that belief. It is not probable that he scanned the policy with the same vigilance as the letters of the company. They tended to prevent such scrutiny, and, if it were necessary, threw him off his guard.

The principles upon which a court of equity will exercise the jurisdiction invoked by the appellee were considered in the case which precedes this. What was there said need not be repeated. In this case Hearne's proposition to the company was to insure upon the charter, 'voyage from Liverpool to Cuba, and to Europe vi a Falmouth.' The company's response, as before stated, was: We will insure 'as proposed by you-Europe to Cuba-at 3 1/2 per cent. It is worth something, you know, to cover the risk at port of loading in Cuba.' This is the language of the parties, and it is the essence of the correspondence. Suppose the language of these sentences had been incorporated in the policy in this form: This company hereby insures $4000 upon the charter of the bark Maria Henry, as proposed by the assured, from 'Europe to Cuba and back to Europe, at 3 1/2 ''per cent. net,'-the premium is enhanced 'to cover the risk at port of loading in Cuba'','-what would have been the legal result? Can it be doubted that the policy would be held to cover alike the voyage to a port of discharge in Cuba, a voyage thence, if necessary, to a port of loading in Cuba, and a voyage from the latter to Europe? The 'port of loading' is the only one mentioned in the letter. It seems to have been uppermost in the mind of the writer. The risk is referred to as a distinct and separate one. The implication is that the port might be one other than the port of unloading. The right to go to both rests upon the same foundation, and it is not more clear as to one than the other. What is implied is as effectual as what is expressed. The intent of the parties, as manifested, is the contract. Upon any other construction the important language as to 'the port of loading' would be insensible and without effect. No other interpretation, we think, can reasonably be given to it.

In Dickey v. The Baltimore Insurance Co., the policy insured the vessel upon a voyage 'from New York to Barbadoes, and at and from thence to the Island of Trinidad, and at and from Trinidad back to New York.' This court held that the words 'at and from' protected the vessel in sailing from one port to another in Trinidad to take in a part of her cargo. Marshall, Chief Justice, said: 'It is the settled doctrine of the courts of England that insurance at and from an island, such as those in the West Indies, generally insures the vessel while coasting from port to port for the purpose of the voyage insured.' He refers to Bond v. Nutt, and to Thellusson v. Fergusson. The case of Cruikshank v. Jansen is to the same effect. These authorities fully sustain the proposition laid down. We are not aware that their authority has been questioned. They show the just liberality of construction which obtains where contracts of insurance are involved.

In this controversy the clear terms of the preliminary agreement warranted the court below in overruling the departure from it found in the policy.

We have examined the case only in the light of its own inherent facts. We have not found it necessary to consider the usage alleged to exist at Liverpool touching voyages in the trade from that port to Cuba. It seems clear to us that the judgment below does not need further support. We, therefore, forbear to remark upon that subject.

DECREE AFFIRMED.


text: Talk:Equitable Insurance Company v. Hearne/Opinion of the Court


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Rubber-Tip Pencil Company v. Howard

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

On the 23d of July, 1867, J. B. Blair, an artist, alleging himself to be the original and first inventor of 'a new and useful rubber head for lead-pencils,' received a patent for his invention. His specification and claim were as follows:

'Be it known that I, J. B. Blair, of the city of Philadelphia, &c., have invented a new and useful cap or rubber head to be applied to lead-pencils, & c., for the purpose of rubbing out pencil-marks; and I do hereby declare the same to be fully described in the following specifications and represented in the accompanying drawings, of which—

'Figure 1 is an external view of a pencil as provided with a rubber or elastic erasive head, constructed in accordance with my invention.

'Figure 2 is a longitudinal section of the same.

'Figure 3 shows the head, as made, in a somewhat modified form, or with its upper end terminating in a cone.

'The nature of my invention is to be found in a new and useful or improved rubber or erasive head for lead-pencils, &c., and consists in making the said head of any convenient external form, and forming a socket longitudinally in the same to receive one end of a lead-pencil or a tenon extending from it.

'In the said drawings, A denotes a lead-pencil, and B one of my erasive heads applied thereto. The said head may have a flat top surface, or its top may be of a semicircular or conical shape, or any other that may be desirable. Within one end of the said head I form a cylindrical or other proper-shaped cavity. This socket I usually make about two-thirds through the head, and axially thereof; but, if desirable, the socket or bore may extend entirely through the said head. The diameter of the socket should be a very little smaller than that of the pencil to be inserted in it. The elastic erasive head so made is to fit upon a lead-pencil at or near one end thereof, and to be so made as to surround the part on which it is to be placed, and be held thereon by the inherent elasticity of the material of which the head may be composed. The said head is to be composed of india-rubber, or india-rubber and some other material which will increase the erasive properties of the head.

Drawings, attached to the specification. TAI TABLE

'The drawings exhibit the elastic head so made as to cover the end as well as to extend around the cylindric sides of the pencil, but it is evident that the contour of the said head may be varied to suit the fancy or the taste of an artist or other person; and I do not limit my invention to the precise forms shown in the drawings, as it may have such or any other convenient for the purpose, so long as it is made so as to encompass the pencil and present an erasive surface about the sides of the same.

'A head made in my improved manner and applied to a pencil as above set forth is of great practical utility and advantage to bookkeepers, accountants, and various other persons. The pointed form of the head, as shown in Figure 3, will be found very useful for draughtsmen in erasing lines from their drawings when it may be desirable not to erase other lines in close proximity to that which it is desirable to erase. The elastic or rubber pencil-head, made as above set forth, may be applied not only to lead-pencils, but to ink-erasers and other articles of like character.

'I claim as a new article of manufacture an elastic erasive pencil-head, made substantially in manner as described.

'J. B. BLAIR.'

This patent having become the property of the Rubber-Tip Pencil Company, and one Howard having made, as the company alleged, rubber-tipped pencils like those covered by the patent, the company filed a bill to enjoin him, & c.

He set up, among other defences, that the article of manufacture claimed as an invention was not patentable as such.

And of this view was the court below. It construed the invention claimed to be 'broadly any form which would enable the rubber to encompass a pencil, ink-eraser, or other articles of like character.' It said that the additional words, 'and present an erasive surface about the sides of the same,' added nothing to the description, because 'it was impossible to have a piece of rubber encompass a pencil, ink-eraser, or other article of similar character, without presenting an erasive surface about the sides of the same.'

It said further, that the article was not the subject of a patent, because the elastic and erasive properties of india-rubber were known to all; 'and that no person knowing the elastic quality of rubber could be wanting in the knowledge that a piece of rubber could be made to encompass and adhere to a pencil by making a hole in it; nor could any one be deficient in the skill requisite to make such a hole.'

From a decree accordingly the company took this appeal.

Mr. J. S. Washburn, for the appellant:

1. The construction by the court below of the specification and claim is illiberal and contrary to the just rule laid down in many cases in this court, including especially a recent one, that patents for invention are to receive a liberal interpretation, and are, if practicable, to be so construed as to uphold and not destroy the right of the inventor.

There exists in the present case no necessity which compels an illiberal construction. Indeed, such construction can be sustained only by rejecting the substantial effect of the language of the specification, as explained by the drawings.

The claim is for 'an elastic, erasive pencil-head, made substantially in manner described.' The claim immediately following the description of the invention must be construed in connection with the explanations contained in the specifications.

Now, the specification describes the invention as an 'improved' rubber, or erasive head for lead-pencils, and shown in the specification and drawings to be a solid, elastic, socketed, erasive head, 'so made as to fit upon a lead-pencil at or near the end thereof, and to be so made as to surround the part on which it is to be placed, and to be held thereon by the inherent elasticity of the material of which the head may be composed,' and having the projecting, working erasive surfaces shown in the drawings, which it is stated are 'constructed in accordance with my invention,' and by which drawings the invention is stated to be 'represented.'

It is true that the specification says—

'The drawings exhibit the elastic head, so made as to cover the end as well as to extend around the cylindric sides of the pencil, but it is evident that the contour of said head may be varied to suit the fancy or the taste of an artist or other person; and I do not limit my invention to the precise forms shown in the drawings, as it may have such, or any other convenient for the purpose, so long as it is made so as to encompass the pencil, and present an erasive surface about the sides of the same.'

And from this language the court below assumed that the head might be of any external form whatever, so long as it encompasses the pencil, and that the words 'and present an erasive surface about the sides of the same' were without any meaning.

But this is a misconception. The language relied on by the court below, and above quoted, should be taken in connection with the language preceding:

'The said head may have a flat top surface, or its top may be of a semicircular or conical shape, or any other that may be desirable. Within one end of the said head I form a cylindrical or other proper-shaped cavity. This socket I usually make about two-thirds through the head, and axially thereof; but, if desirable, the socket or bore may extend entirely through the said head.'The statement in the first above-quoted paragraph, that the contour may be varied, and that the inventor does not limit himself to the precise forms shown in the drawings, is made with reference to the 'end' of the pencil being covered or uncovered, and is subject to the express condition that the forms shall be 'convenient for the purpose,' and the implied condition to be fairly derived from the use of the word 'precise,' that they must correspond substantially with the drawings. There is certainly nothing from which it can be fairly derived that he intended to disclaim the features which are clearly portrayed in the drawings, upon which its practical value as an eraser depends; and the use of the words 'to suit the fancy or the taste of an artist or other person,' confines the meaning of the inventor to a matter of simple style, and indicates that he does not limit himself to a precise contour as a matter of ornamental configuration. This is further indicated by the fact that, in the drawings, while the top of the head is varied and the contour of the projecting erasive working surfaces about the sides may be varied from hexagon to square or circular, the projecting, working surfaces themselves are always retained.

It is also evident from the context that the words 'and present an erasive surface about the sides of the same' mean such erasive surface as is portrayed in the drawings, and as is 'convenient for the purpose.'

The court below therefore disregarded the drawings. But it is well setted that the drawings constitute a part of the specification, and are to be resorted to to aid a specification, which would otherwise be imperfect; to help out the description; to furnish clearer information respecting the invention described in the specification; to show the nature, character, and extent of the claim, as well as make a part of the description; and to add anything to the specification which is not specifically contained or mentioned therein.

The fact that the construction placed upon the language in the present case is inconsistent with what the drawings establish, is enough to show it to be a misconstruction.

2. There are certain leading facts, known to everybody, which answer the concluding remarks of the court below, and are of themselves enough to decide this case.

Lead-pencils have very long-longer than any living man remembers-been used to make marks. India-rubber has very long longer than any living man remembers-been used to rub them out. But never until lately was india-rubber used for this purpose except in a form disconnected from the pencil. But on a summer's morning of 1867, one Blair, a poor artist of Philadelphia, seeing that it will be more convenient to use it on his pencil than off, puts in a certain way, a piece of a certain shape, on the pencil, and finding a great advantage in thus using such a piece, shows what he has done. Behold! thousands, hundreds of thousands and millions of rubber-tipped pencils at once appear. Very rich companies, like the Rubber-Tip Pencil Company, are incorporated. Great capital is invested in the matter, and rubber-tipped pencils become a manufacture of the nation. How can it be said that there is no invention here? So far as the patent laws are concerned, utility, as ascertained by the consequences of what is done, is the test of invention, and when utility is proved to exist in any great degree, a sufficiency of invention to support the patent must be presumed. In such a case it is vain to talk about the small amount of ingenuity shown or to say that the arrangement and application are so simple and obvious that anybody could see them.

Messrs. F. W. Betts and S. W. Kellogg, contra.

The CHIEF JUSTICE delivered the opinion of the court.

title: Rubber-Tip Pencil Company v. Howard


text: Talk:Rubber-Tip Pencil Company v. Howard


text:
Rubber-Tip Pencil Company v. Howard/Opinion of the Court

The question which naturally presents itself for consideration at the outset of this inquiry is, whether the new article of manufacture, claimed as an invention, was patentable as such. If not, there is an end of the case and we need not go further.

A patent may be obtained for a new or useful art, machine, manufacture, or composition of matter, or any new and useful improvement thereof. In this case, as has been seen, Blair's patent was for 'a new manufacture,' being a new and useful rubber head for lead-pencils. It was not for the combination of the head with the pencil, but for a head to be attached to a pencil or something else of like character. It becomes necessary, therefore, to examine the description which the patentee has given of his new article of manufacture, and determine what it is, and whether it was properly the subject of a patent.

It is to be made of rubber or rubber and some other material which will increase its erasive properties. This part of the invention alone could not have been patented. Rubber had long been known, and so had rubber combined with other substances to increase its naturally erasive qualities.

It is to be of any convenient external form. It may have a flat-top surface, or its top may be of a semicircular or conical shape, or any other that may be desirable. This would seem to indicate clearly that the external form was not a part of the invention. It was, however, urged upon the argument, that the invention did consist in the projecting surfaces extending out from the head, and which appear, as is claimed, in the drawings attached to the specifications. It is true, that in two out of the three drawings projecting surfaces are indicated, but such is not beyond question the case with the third. The shape there shown is conical, extending to a point, and evidently intended to represent the form mentioned as specially adapted to the use of draughtsmen in erasing lines from their drawings. It was the end of such a pencil, not the sides, that was to furnish the particular advantage of form. But although drawings do accompany the specification and are referred to, it is evident that this reference is for the purpose of illustration only, because the patentee is careful to say that 'he does not limit his invention to the precise forms shown, as it may have such or any other convenient for the purpose, so long as it is made so as to encompass the pencil and present an erasive surface upon the sides of the same.' Certainly words could hardly have been chosen to indicate more clearly that a patent was not asked for the external form, and it is very evident that the essential element of the invention as understood by the patentee was the facility provided for attaching the head to the pencil. The prominent idea in the mind of the inventor clearly was the form of the attachment, not of the head. If additional proof of this is required, it may be found in the further statement in the specifications, which locates the head for use at or near the end of the pencil, and so made as to surround the part on which it is to be placed and be held thereon by the inherent elasticity of the material of which it is to be composed. If intended for use at any other place than on the end of the pencil, the projections could not be essential, as any form that would surround the part would present the requisite erasive surface.

Again, the head is to have in it longitudinally, a socket to receive one end of a lead-pencil or a tenon extending from it. This socket is to be cylindrical or of any other proper shape. Usually, the inventor says, he made it so as to extend part way through the head, but if desirable, it might be extended entirely through. It must be within one end, but any particular location at the end is not made essential. This clearly is no more than providing that the piece of rubber to be used must have an opening leading from one end into or through it. This opening may be of any form and of any extent longitudinally. The form, therefore, of the inside cavity is no more the subject of the patent than the external shape. Any piece of rubber with a hole in it is all that is required thus far to meet the calls of the specifications, and thus far there is nothing new, therefore, in the invention. Both the outside and inside may be made of any form which will accommodate the parties desiring the use.

But the cavity must be made smaller than the pencil and so constructed as to encompass its sides and be held thereon by the inherent elasticity of the rubber. This adds nothing to the patentable character of the invention. Everybody knew, when the patent was applied for, that if a solid substance was inserted into a cavity in a piece of rubber smaller than itself, the rubber would cling to it. The small opening in the piece of rubber not limited in from or shape, was not patentable, neither was the elasticity of the rubber. What, therefore, is left for this patentee but the idea that if a pencil is inserted into a cavity in a piece of rubber smaller than itself the rubber will attach itself to the pencil, and when so attached become convenient for use as an eraser?

An idea of itself is not patentable, but a new device by which it may be made practically useful is. The idea of this patentee was a good one, but his device to give it effect, though useful, was not new. Consequently he took nothing by his patent.

AFFIRMED.


text: Talk:Rubber-Tip Pencil Company v. Howard/Opinion of the Court


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Atchison v. Peterson

APPEAL from the Supreme Court of the Territory of Montana.

Atchison and others filed a bill in the District Court of the Territory just named, for an injunction to restrain Peterson and others from carrying on certain mining operations on a creek in the county of Clark and Lewis, in the said Territory, known as the Ten-Mile Creek. The bill alleged that the water, diverted by the complainants from the stream for mining purposes, was deteriorated in quality and value. It appeared from the evidence that the complainants were the owners of two ditches or canals, known respectively as the Helena water-ditch and the Yaw-Yaw ditch, by which the creek mentioned was tapped and the water diverted and conveyed a distance of about eighteen miles to certain mining districts, known as the Last Chance and Dry Gulches, and there sold to miners. The parties through whom the complainants derived their interests, asserted a claim to the waters of the creek in November, 1864, and during that year commenced the construction of the ditches and continued work thereon until August, 1866. The work was then suspended, for want of means by the parties to continue it, until the following year, when it was resumed, and in 1867 the ditches were completed and put into operation. Their cost was $117,000.

Whilst this work was progressing, and in the summer of 1865, there was some mining on the Ten-Mile Creek about fifteen miles above the point where the ditches of the plaintiffs tap the stream, but there was no continued mining at that place until 1867. From that period until the present time the defendants had been working and were still working mining ground situated at that point on the creek. In that work they in some places washed down the earth from the side of the hills bordering on the stream; in other places they excavated the earth and threw such portions as were supposed to contain gold into sluices upon which the water was turned. The earth from the washing on the hillsides and from the sluices, designated in the vocabulary of miners as 'tailings,' and the water mixed with it was carried into the creek and affected its whole current, which at that point has a volume of only about two hundred inches, according to the measurement of miners, filling the water with mud, sand, and sediment, and impairing its value at that point for further mining.

The bill alleged that the 'tailings' thus thrown into the current were carried down the stream into the ditches of the complainants, thereby obstructing the flow of the water through the ditches, and injuring it in quality and value; and they insisted that as prior appropriators of the waters of the stream, they were entitled to its use without such deterioration; and for the protection of their rights, they asked an injunction to restrain the defendants from the further commission of the alleged grievances.

The evidence showed that the volume of water in the creek, which at the point where the defendants worked their mining claims was, as above said, only about two hundred inches, according to the measurement of miners, was increased at the point where the ditches of the complainants tapped the creek, by intervening tributary streams of clear water, to about fifteen hundred inches. Of this water the Helena ditch diverted about five hundred inches, and took it about eighteen miles, to the places where it was sold to miners. The water as it entered the ditch was in some degree muddied and affected with sand, and the evidence was conflicting as to the influence of the mud and sand upon the value of the water. The great preponderance of the evidence, however, was to the effect that the injury in quality from this cause was so slight as not, in any material extent, to impair the value of the water for mining, nor render it less salable to the miners at the places where it was carried. A majority of the witnesses testified that it was first-class water for mining purposes, and some of them that it was good water even for domestic uses.

Persons who had cleaned out the Helena ditch and examined it, testified that there were no tailings or sediment of consequence in it, and that the most that there was ran into the ditch from the hillsides along the ditch and stream. A preponderance of the evidence also showed that no extra labor was required on the ditch on account of the muddy character of the water, or at most only the additional labor of one person for a few minutes each day, and that a sandgate was necessary at the head of the ditch whether or not there was mining above on the stream.

With respect to the water diverted by the Yaw-Yaw ditch, it was shown that its deterioration, so far as the deterioration exceeded that of the water in the Helena ditch, was caused by sand and sediment brought by a tributary which entered the creek below the head of the Helena ditch.

The mining claims of the defendants were shown to be worth from $15,000 to $20,000 each, and it appeared that the defendants were responsible and capable of answering for any damages the complainants might sustain.

The District Court denied the injunction, and the Supreme Court of the Territory affirmed its decree. From the latter court an appeal was taken to this court.

Mr. Robert Leech, for the appellants; Mr. G. G. Symes, contra.

Mr. Justice FIELD delivered the opinion of the court.

title: Atchison v. Peterson


text: Talk:Atchison v. Peterson

title: Talk:Atchison v. Peterson