text:
The Vanderbilt

APPEAL from the Circuit Court for the Southern District of New York.

On the morning of May 16th, 1863, the steam-tug Hubbard was slowly descending the west side of the Hudson River, here one thousand or more feet wide. She was about one hundred and seventy-five feet from the shore, and had in tow four canal-boats, of which the Canisteo was one. She was now opposite the lower part of Troy, a city on the east side of the river. At the same time the Vanderbilt, a large steamer, regularly plying on the stream, was coming up it, and was making for her dock about a mile off, in the upper part of Troy. But she was on the west side of the channel also, and had been sailing on that side of it. The morning had been clear, but a fog-bank settling itself at that part of the river, both vessels as they entered it were unable to see ahead. Running each on its course, they suddenly discovered one another, the two in immediate proximity. There was apparently no exception to be taken to the manoeuvres of navigation of either vessel in the circumstances. But coming thus, unawares, on each other, the Vanderbilt, in spite of all efforts made at so late a moment, struck the Canisteo, and being much the larger vessel, sunk her at once. No difficulty had existed as to sea room for the steamer to pass to the right and east of the descending tow. The owner of the Canisteo now libelled the Vanderbilt in the District Court for the Southern District of New York, where a decree was given for the libellant; that court considering that the Vanderbilt was 'disproportionately out of the channel toward the west shore.' On reference to a commissioner, the damages were fixed at $7020. An appeal was taken to the Circuit Court; no exception being taken in either court to the amount of damages. On the appeal the following opinion was delivered by

NELSON, J. The point pressing on the steamer is that she was too far to the west of the channel of the river, and, therefore, out of her proper course. This view was taken by the court below, and upon it a decree was rendered for the canal-boat. We are inclined to concur in this result. The west side is the natural and ordinary track for descending vessels, and the Vanderbilt, we think, was bound to take notice of this fact, and to have kept nearer to the middle of the river. She had no right to act upon the idea that, the descending boat would take that course, and expect her to pass to the left or starboard, between her and the west shore. What makes the case more marked in this respect, is the fact that the steamer's dock was on the east shore, some mile above the place of collision.

DECREE AFFIRMED.

The case being now here for review, was submitted by Mr. Charles Jones, for the appellant, who contended that the decree was wrong in general result, and by Mr. S. P. Nash, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: The Vanderbilt


text: Talk:The Vanderbilt

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

title: Talk:The Vanderbilt


text:
The Vanderbilt/Opinion of the Court

The libel was filed in the District Court by the owner of the canal-boat called the Canisteo against the steamer C. Vanderbilt in a cause of collision, civil and maritime. Employment of the Vanderbilt was to transport passengers and freight between the cities of New York and Troy, upon the Hudson River, and the libel alleges that the canal-boat was employed in transporting freight between the former city and dive s ports and places on the same river and the Erie Canal. Allegations of the libel are, that the collision occurred on the sixteenth day of May, 1863, on the west side of the river, nearly opposite the arsenal at Troy. Lading of the canal-boat was corn and flour, and the proofs showed that she was sunk by the collision, and that the boat and cargo became a total loss. Charge in the libel is, that the disaster and loss were wholly occasioned by the carelessness and negligent and unskilful management of those intrusted with the navigation of the steamer.

Parties were fully heard in the District Court, and the district judge being of the opinion that the charge in the libel was true, entered a decree for the libellant, and sent the cause to a commissioner to ascertain the amount of damages.

Subsequently the commissioner made his report, and neither party excepting to the same, it was confirmed by the court, and a final decree entered for that amount in favor of the libellant. Appeal was taken by the claimants to the Circuit Court, where the parties were again heard upon the same evidence, and the circuit judge being of opinion that there was no error in the record, affirmed the decree, and thereupon the claimants appealed to this court.

1. When the collision took place the canal-boat, with there others, was in tow of the steam-tug O. C. Hubbard, and she was proceeding down the river, having left her berth, at Troy, on the west side of the river, at six o'clock in the morning. None of the boats in tow carried any motive power, and the testimony shows that the Canisteo was lashed to the larboard side of the steam-tug, with one of the other three fastened to her larboard side, and the other two were arranged in the same way on the starboard side of the steamtug, which constituted the necessary motive power. Berth of the Vanderbilt, at Troy, was on the cast side of the river, and she was on her return trip, from Albany, with passengers and freight.

Although there was some fog when the tug, with the four canal-boats in tow, left the wharf in the morning, yet the witnesses testify that objects could be seen at the same time on both sides of the river, and that it was good weather. Heavy rains had caused the water to rise eight or ten feet above the ordinary low water in summer, which very much increased the breadth of navigation, as the largest vessels could safely pass close to the shore. Speed of the steam-tug as she was proceeding down the river on the western side was not much greater than the current of the river, which did not exceed four or five miles an hour. Usual pathway of steamers ascending the river is on the east side of the centre of the channel, but the Vanderbilt came up on the western side in the usual pathway of descending boats and vessels, and the testimony proves that she was moving through the water at nearly double the rate of the steam-tug with the tows. Length of the canal-boats was much greater than that of the steam-tug; and the proofs show that the Vanderbilt struck the Canisteo on her starboard bow six or eight feet from the stem. Plain inference from the position and character of the blow is, that the steamer had ported her helm, and when the collision occurred was steering towards the east side of the river.

Just before the collision took place both vessels passed into a dense fog, which rested on the water, and the appellants contend that the state of the weather was such that the steam-tug, with her tows, ought not to have left her berth and started down the river. But the weight of the evidence shows that the proposition involved in the defence is not well founded. On the contrary, it is quite clear from the evidence that the indications as to the weather at the time those in charge of the tug and tows decided to start on the trip, fully justified their determination. Suggestion is made that the tow was a large one, but it was well arranged, and the boats, two on each side of the steam-tug, being well over on the western side of the channel, w re proceeding slowly down the river in their proper pathway. Ample room was left for the steamer to have gone to the right, as the river there, at that stage of the water, is nearly a thousand feet wide. Steamers may doubtless ascend on either side of the river in the daytime when the view is not obstructed or obscured by fog, but it was a fault in the steamer, when she found she was approaching a fog-bank, that she did not port her helm and leave the accustomed pathway of descending boats and vessels. Witnesses on board the steamer testify that the whistle was blown to warn desconding boats, and that orders were given to stop and back as soon as the steam-tug and tows were discovered, but it is quiet evident that all these precautions were too late, as the collision was then inevitable. Precautions not seasonably taken afford no defence against the charge of negligence in cases of collision where it appears that the disaster might have been prevented by earlier action. Steamers approaching each other from opposite directions are required by the general rules of navigation, as well as by the recent act of Congress, to port their helms and pass to the right, but it is obvious that one or both may omit to comply with the requirement until their proximity is so close that a compliance is wholly inadequate to accomplish any valuable purpose.

Proofs in this case show that the Vanderbilt ported her helm, but the change of her course was so late that it insured the collision which might, perhaps, have been avoided if she had made an effort to pass the descending boats on the starboard side next to the western shore. The great fault was that she did not change her course and pass to the eastern side of the channel before entering the fog-bank, as all the witnesses agree she might have done without danger or serious inconvenience. Electing, as she did, to continue her course up the river on the western side, where those in charge of her navigation knew she was liable to meet descending boats, she was bound to exercise great care and caution; and it is clearly proved that she failed to comply with requirement until it was too late to prevent the disaster.

Objection is made to the amount of the damages awarded, but the objection cannot prevail, as no exceptions were taken to the commissioner's report in the District Court. Such objections will not be entertained in this court unless the claimant gave notice of the same in the court below by appropriate exceptions to the commissioner's report. Parties should present their objections at the stage of the litigation when the errors, if any, may be corrected without inconvenience and unnecessary expense; and if they fail to do so without just excuse, they must be understood as having acquiesced in the decision of the court.

DECREE AFFIRMED WITH COSTS.

title: The Vanderbilt/Opinion of the Court


text: Talk:The Vanderbilt/Opinion of the Court


text:
Mason v. Eldred

On certificate of division between the judges of the Circuit Court for Wisconsin. A statute of Michigan, known as 'the Joint Debtor Act,' thus enacts:

1. 'In actions against two or more persons jointly indebted upon any joint obligation, contract, or liability, if the process issued against all of the defendants shall have been duly served upon either of them, the defendant so served shall answer to the plaintiff, and in such case the judgment, if rendered in favor of the plaintiff, shall be against all the defendants, in the same manner as if all had been served with process.

2. 'Such judgment shall be conclusive evidence of the liabilities of the defendant who was served with process in the suit, or who appeared therein; but against every other defendant, it shall be evidence only of the extent of the plaintiff's demand, after the liability of such defendant shall have been established by other evidence.'Other sections provide that execution shall be issued in form against all of the defendants; that the exec tion shall be levied on the sole property of the defendant served, or on the joint property of all the defendants, and that the plaintiff may sue out a scire facias against the defendants not served to show why the plaintiffs ought not to have execution against them, the same as if they had been served with the process by which the suit was commenced.

With this statute in force in Michigan, Mason sued, in the Circuit Court for Wisconsin, Anson Eldered, Elisha Eldred, and one Balcom, trading as partners, upon a partnership note of theirs. Process was served on Anson Eldred alone, who alone appeared, and pleaded non assumpsit. On the trial, the note being put in evidence by the plaintiff, Eldred offered the record of a judgment in one of the State courts of Michigan, showing that Mason had already brought suit in that court on the same note against the partnership; where, though Elisha Eldred was alone served and alone appeared, judgment in form had passed against all the defendants for the full amount due upon the note.

The evidence being objected to by the plaintiff, because not admissible under the pleadings, and because it appeared on the face of the record that there was no judgment against either of the defendants named except Elisha Eldred, who alone, as appeared also, was served or appeared, and because it was insufficient to bar the plaintiff's action, the question whether it was evidence under the issue in bar of, and to defeat a recovery against Anson Eldred, was certified to this court for decision as one on which the judges of the Circuit Court were opposed.

Mr. G. W. Lakin, for the plaintiff:

1. The record offered was inadmissible under the plea of non assumpsit. That plea puts the plaintiff to the proof of all that he alleges. It makes no allusion to a 'former recovery,' nor to any claim that the supposed original liability has assumed a higher form. It is also at variance with the rule, that a matter of defence, which admits the facts stated in the declaration, but avoids them, should be specially pleaded.

2. There is a distinction between copartnership promissory notes, or contracts, and ordinary joint notes, or contracts. The former are in effect several, as well as joint.

3. A judgment against one joint debtor, is no bar to a suit against the other, even though pleaded. In Sheehy v. Mandeville & Jamesson, in this court, the plea interposed by Mandeville, was, in substance, that, in a former suit, judgment had been rendered in favor of Sheehy, against Jamesson (his partner) on the same note. The note had been signed, 'Robert B. Jamesson.' In the first action it was treated as the note of Jamesson alone, and judgment rendered against him. In the second as the note of Mandeville & Jamesson, trading under the name of 'Robert B. Jamesson.' There was a judgment against Jamesson, and this court decided it to be proper to give judgment against the other partner. This is the point presented in the case at bar. There have been many attempts in State courts, to overturn this decision, and sometimes, in the Federal courts, to evade it, by getting up and drawing fancied distinctions, but it stands, because founded in good reason. 'In point of real justice,' says Marshall, C.J., 'there can be no reason why an unsatisfied judgment against Jamesson should bar a claim upon Mandeville.' In Dennett v. Chick, a case in Maine, the same doctrine was held.

4. The statute of Michigan, correctly construed, negatives the conclusion that the judgment against Elisha Eldred is a bar to an action against Anson Eldred.

Mr. J. W. Cary, contra, contended:

1. That under the general issue, anything was admissible that showed that no cause of action existed at t e time of bringing the suit.

2. That whether Sheehy v. Mandeville, was, or was not analogous in all its features to the case at bar, it had, as generally understood, never been well received; and that numerous cases establishing a better principle were arrayed against it.

3. That the statute of Michigan affirmed the conclusion, that the judgment in Michigan was a bar to an action against Anson Eldred in Wisconsin. Why else did it permit the joint property of the defendants to be bound by this judgment?

Mr. Justice FIELD, after stating the case, delivered the opinion of the court, as follows:

title: Mason v. Eldred


text: Talk:Mason v. Eldred

title: Talk:Mason v. Eldred


text:
Mason v. Eldred/Opinion of the Court

The counsel of the plaintiff suggests that the question presented by the certificate of the judges of the Circuit Court is divisible into two parts: 1st. Whether the record of the judgment recovered in Michigan was admissible under the pleadings; and, 2d. Whether, if admissible, the judgment constituted a bar to the present action. We think, however, that the admissibility of the record depends upon the operation of the judgment.

If the note in suit was merged in the judgment, then the judgment is a bar to the action, and an exemplification of its record is admissible, for it has long been settled that under the plea of the general issue in assumpsit evidence may be received to show, not merely that the alleged cause of action never existed, but also to show that it did not subsist at the commencement of the suit. On the other hand, if the note is not thus merged, it still forms a subsisting cause of action, and the judgment is immaterial and irrelevant.

The question then for determination relates to the operation of the judgment upon the note in suit.

The plaintiff contends that a copartnership note is the several obligation of each copartner, as well as the joint obligation of all, and that a judgment recovered upon the note against one copartner is not a bar to a suit upon the same note against another copartner; and the latter position is insisted upon as the rule of the common law, independent of the joint debtor act of Michigan.

It is true that each copartner is bound for the entire amount due on copartnership contracts; and that this obligation is so far several that if he is sued alone, and does not plead the non-joinder of his copartners, a recovery may be had against him for the whole amount due upon the contract, and a joint judgment against the copartners may be enforced against the property of each. But this is a different thing from the liability which arises from a joint and several contract. There the contract contains distinct engagements, that of each contractor individually, and that of all jointly, and different remedies may be pursued upon each. The contractors may be sued separately on their several engagements or together on their joint undertaking. But in copartnerships there is no such several liability of the copartners. The copartnerships are formed for joint purposes. The members undertake joint enterprises, they assume joint risks, and they incur in all cases joint liabilities. In all copartnership transactions this common risk and liability exist. Therefore it is that in suits upon these transactions all the copartners must be brought in, except when there is some ground of personal release from liability, as infancy or a discharge in bankruptcy; and if not brought in, the omission may be pleaded in abatement. The plea in abatement avers that the alleged promises, upon which the action is brought, were made jointly with another and not with the defendant alone, a plea which would be without meaning, if the copartnership contract was the several contract of each copartner.

The language of Lord Mansfield in giving the judgment of the King's Bench in Rice v. Shute, 'that all contracts with partners are joint and several, and every partner is liable to pay the whole,' must be read in connection with the facts o the case, and when thus read does not warrant the conclusion that the court intended to hold a copartnership contract the several contract of each copartner, as well as the joint contract of all the copartners, in the sense in which these terms are understood by the plaintiff's counsel, but only that the obligation of each copartner was so far several, that in a suit against him judgment would pass for the whole demand, if the non-joinder of his copartners was not pleaded in abatement.

The plea itself, which, as the court decided, must be interposed in such cases, is inconsistent with the hypothesis of a several liability.

For the support of the second position, that a judgment against one copartner on a copartnership note does not constitute a bar to a suit upon the same note against another copartner, the plaintiff relies upon the case of Sheehy v. Mandeville & Jamesson, decided by this court, and reported in 6 Cranch, 254. In that case the plaintiff brought a suit upon a promissory note given by Jamesson for a copartnership debt of himself and Mandeville. A previous suit had been brought upon the same note against Jamesson alone, and judgment recovered. To the second suit against the two copartners the judgment in the first action was pleaded by the defendant, Mandeville, and the court held that it constituted no bar to the second action, and sustained a demurrer to the plea.

The decision in this case has never received the entire approbation of the profession, and its correctness has been doubted and its authority disregarded in numerous instances by the highest tribunals of different States. It was elaborately reviewed by the Supreme Court of New York in the case of Robertson v. Smith, where its reasoning was declared unsatisfactory, and a judgment rendered in direct conflict with its adjudication.

In the Supreme Court of Massachusetts a ruling similar to that of Robinson v. Smith was made. In Wann v. McNulty, the Supreme Court of Illinois commented upon the case of Sheehy v. Mandeville, and declined to follow it as authority. The court observed that notwithstanding the respect which it felt for the opinions of the Supreme Court of the United States, it was well satisfied that the rule adopted by the several State courts referring to those of New York, Massachusetts, Maryland, and Indiana-was more consistent with the principles of law, and was supported by better reasons.

In Smith v. Black, the Supreme Court of Pennsylvania held that a judgment recovered against one of two partners was a bar to a subsequent suit against both, though the new defendant was a dormant partner at the time of the contract, and was not discovered until after the judgment. 'No principle,' said the court, 'is better settled than that a judgment once rendered absorbs and merges the whole cause of action, and that neither the matter nor the parties can be severed, unless indeed where the cause of action is joint and several, which, certainly, actions against partners are not.'

In its opinion the court referred to Sheehy v. Mandeville, and remarked that the decision in that case, however much entitled to respect from the character of the judges who composed the Supreme Court of the United States, was not of binding authority, and it was disregarded.

In King v. Hoar, the question whether a judgment recovered against one of two joint contractors was a bar to an action against the other, was presented to the Court of Exchequer and was elaborately considered. The principal authorities were reviewed, and the conclusion reached, that by the judgment recovered the original demand had passed in rem judicatam, and could not be made the subject of another action. In the course of the argument the case of Sheehy v. Mandeville was referred to as opposed to the conclusion reach d, and the court observed that it had the greatest respect for any decision of Chief Justice Marshall, but that the reasoning attributed to him in the report of that case was not satisfactory. Mr. Justice Story, in Trafton v. The United States, refers to this case in the Exchequer, and to that of Sheehy v. Mandeville, and observes that in the first case the Court of Exchequer pronounced what seemed to him a very sound and satisfactory judgment, and as to the decision in the latter case, that he had for years entertained great doubts of its propriety.

The general doctrine maintained in England and the United States may be briefly stated. A judgment against one upon a joint contract of several persons, bars an action against the others, though the latter were dormant partners of the defendant in the original action, and this fact was unknown to the plaintiff when that action was commenced. When the contract is joint, and not joint and several, the entire cause of action is marged in the judgment. The joint liability of the parties not sued with those against whom the judgment is recovered, being extinguished, their entire liability is gone. They cannot be sued separately, for they have incurred no several obligation; they cannot be sued jointly with the others, because judgment has been already recovered against the latter, who would otherwise be subjected to two suits for the same cause.

If, therefore, the common law rule were to govern the decision of this case, we should feel obliged, notwithstanding Sheehy v. Mandeville, to hold that the promissory note was merged in the judgment of the court of Michigan, and that the judgment would be a bar to the present action. But, by a statute of that State the rule of the common law is changed with respect to judgments upon demands of joint debtors, when some only of the parties are served with process. The statute enacts that 'in actions against two or more persons jointly indebted upon any joint obligation, contract, or liability, if the process against all of the defendants shall have been duly served upon either of them, the defendant so served shall answer to the plaintiff, and in such case the judgment, if rendered in favor of the plaintiff, shall be against all the defendants in the same manner as if all had been served with process,' and that, 'such judgment shall be conclusive evidence of the liabilities of the defendant who was served with process in the suit, or who appeared therein; but against every other defendant it shall be evidence only of the extent of the plaintiff's demand, after the liability of such defendant shall have been established by other evidence.'

Judgments in cases of this kind against the parties not served with process, or who do not appear therein, have no binding force upon them, personally. The principle is as old as the law, and is of universal justice, that no one shall be personally bound until he has had his day in court, which means until citation is issued to him, and opportunity to be heard is afforded. Nor is the demand against the parties not sued merged in the judgment against the party brought into court. The statute declares what the effect of the judgment against him shall be with respect to them; it shall only be evidence of the extent of the plaintiff's demand after their liability is by other evidence established. It is entirely within the power of the State to limit the operation of the judgment thus recovered. The State can as well modify the consequences of a judgment in respect to its effect as a merger and extinguishment of the original demand, as it can modify the operation of the judgment in any other particular.

A similar statute exists in the State of New York, and the highest tribunals of New York and Michigan, in construing these statutes, have held, notwithstanding the pecial proceedings which they authorize against the parties not served to bring them afterwards before the court, if found within the State, that such parties may be sued upon the original demand.

In Bonesteel v. Todd, an action of covenant was brought against two parties to recover rent reserved upon a lease. One of them was alone served with process, and he appeared and pleaded the general issue, and on the trial, as in the case at bar, produced the record of a judgment recovered against himself and his co-defendant under the joint debtor act of New York, process in that State having been served upon his co-defendant alone. The court below held the judgment to be a bar to the action. On error to the Supreme Court of the State this ruling was held to be erroneous. After referring to decisions in New York, the court said, 'No one has ever doubted the continuing liability of all parties. We cannot, therefore, regard the liability as extinguished. And, inasmuch as the new action must be based upon the original claim, while, as in the case of foreign judgments at common law, it may be of no great importance whether the action may be brought in form upon the judgment, or on the previous debt, it is certainly more in harmony with our practice to resort to the form of action appropriate to the real demand in controversy. While we do not decide an action in form on the judgment to be inadmissible, we think the action on the contract the better remedy to be pursued.'

In Oakley v. Aspinwall, the Court of Appeals of New York had occasion to consider the effect of a judgment recovered under the joint debtor act of that State upon the original demand. Mr. Justice Bronson, speaking for the court, says: 'It is said that the original demand was merged in, and extinguished by the judgment, and consequently, that the plaintiff must sue upon the judgment, if he sues at all. That would undoubtedly be so if both the defendants had been before the court in the original action. But the joint debtor act creates an anomaly in the law. And for the purpose of giving effect to the statute, and at the same time preserving the rights of all parties, the plaintiff must be allowed to sue on the original demand. There is no difficulty in pursuing such a course; it can work no injury to any one, and it will avoid the absurdity of allowing a party to sue on a pretended cause of action, which is, in truth, no cause of action at all, and then to recover on proof of a different demand.'

Following these authorities, and giving the judgment recovered in Michigan the same effect and operation that it would have in that State, we answer the question presented in the certificate, that the exemplification of the record of the judgment recovered against the defendant, Elisha Eldred, offered by the defendant, Anson Eldred, is not admissible in evidence in bar of, and to defeat, a recovery against the latter.

title: Mason v. Eldred/Opinion of the Court


text: Talk:Mason v. Eldred/Opinion of the Court


text:
Georgia v. Grant

THIS court having some time since dismissed a bill filed by the State of Georgia against Mr. Stanton, Secretary of War, General Grant, and others, on the ground that it called for a judgment on a question political in its nature, Messrs. Black and Sharkey, in behalf of the same State, asked leave to file a bill by it against Generals Grant, Meade, and others; it being stated that the bill was not open to objection from the causes which it was decided made the one dismissed objectionable.

Mr. Carpenter, in behalf of the persons named as defendants, desired to know whether it would be regular for him to oppose this motion for leave if he should, on seeing and considering the bill, desire to do so.

The CHIEF JUSTICE delivered the opinion of the court.

title: Georgia v. Grant


text: Talk:Georgia v. Grant

title: Talk:Georgia v. Grant


text:
Georgia v. Grant/Opinion of the Court

The court has adopted no rules governing suits in cases of original jurisdiction. In cases of equity, however, it has been the sual practice to hear a motion in behalf of the complainant for leave to file the bill, and, leave having been given, subsequent proceedings have been regulated by orders made from time to time as occasion required. The motion for leave has been usually heard ex parte; except at the last term, when leave was asked in behalf of the State of Mississippi to file a bill against the President of the United States. Under the peculiar circumstances of that case it was thought proper that argument should be heard against the motion for leave. We perceive no reason for making such an exception in the case of the present motion. It will be heard, therefore, on the regular motion day, and only on the part of the complainant; and the court will require that ten printed copies of the bill be filed with the clerk before the hearing.

The practice now observed may be regarded as that which will hereafter be adopted in all cases of original equity jurisdiction.

title: Georgia v. Grant/Opinion of the Court


text: Talk:Georgia v. Grant/Opinion of the Court


text:
The Sea Witch

APPEAL from the District Court of the United States for the Eastern District of Louisiana.

The schooner Sea Witch was captured in the Gulf of Mexico on the 31st of December, 1864, by the United States war steamer Metacomet, for alleged breach of the blockade of the Texas coast, then established by our government.

The schooner was a neutral vessel, with a neutral cargo, coffee, druge, &c., regularly cleared from Vera Cruz for New Orleans, under a license granted by the vice-consul of the United States, in pursuance of the proclamation of the President, opening the port of New Orleans to trade, and of the regulations of the Secretary of the Treasury. But at the time of the capture she was out of the ordinary and most direct line of a voyage from Vera Cruz to New Orleans, and somewhat along the coast and in a position to go to Galveston, Texas, then blockaded. She had encountered heavy weather before the capture and was somewhat damaged; and it was alleged by the master that he had abandoned the voyage to New Orleans, and was about returning to Vera Cruz. Having been brought into New Orleans and libelled as prize in the District Court, restitution was decreed and a certificate of reasonable cause given the captors. The United States appealed.

Mr. Ashton, special counsel of the United States, contended that the case exhibited but the ordinary sinuous devices of blockade-runners; simulating one voyage, purposing another. The vessel was just where she would have been had she been going to Galveston, and where she would not have been if going to New Orleans.

Moreover at this time, as is matter of public history, New Orleans had been but recently opened to trade, and of course was glutted with the articles which this vessel carried. Coffee was higher in Vera Cruz than in New Orleans; and as for drugs, it was shipping 'coals to New Castle,' to take them to the last-named port. Galveston, on the other hand, closely blockaded, was in extreme necessity of both.

Mr. Marvin, contra.

The CHIEF JUSTICE delivered the opinion of the court.

title: The Sea Witch


text: Talk:The Sea Witch

title: Talk:The Sea Witch


text:
The Sea Witch/Opinion of the Court

The only ground of suspicion that a violation of the blockade was intended is the fact that the vessel, when captured, was out of the most direct regular course to New Orleans, and in a part of the gulf where she would very probably have been had her real destination been Galveston. But we think this is sufficiently accounted for by the weather, and by the probability that such a vessel, really bound for New Orleans, would prefer to keep at no greater distance from the shore than the blockade would require, rather than take the more direct course across the gulf.

It was stated in the argument that the cargo of the vessel would not command at New Orleans so good a price as at Vera Cruz; and this circumstance, if proved, would be entitled to great weight. But there is no evidence of that sort in the record.

On the whole, therefore, we think that the decree f the District Court was correct, and shall order that it be

AFFIRMED.

title: The Sea Witch/Opinion of the Court


text: Talk:The Sea Witch/Opinion of the Court

title: Talk:The Sea Witch/Opinion of the Court


text:
McClane v. Boon

ERROR to the Supreme Court of the State of Oregon.

On motion. Boon filed a bill in a State court of Oregon against McClane, to enjoin him from prosecuting an action at law to recover the possession of a lot of land, for which a patent had been issued to McClane by the United States, and praying that the same might be held by McClane as trustee for the benefit of him, Boon. The court dismissed the bill. On an appeal to the Supreme Court, that court reversed the decree, and rendered one for the plaintiff. McClane, the defendant, sued out a writ of error from this court to the Supreme Court of Oregon, returnable December Term, 1863, which was dismissed at the December Term, 1866.

A second writ of error was issued July 29th, 1867, returnable at the next term of the Supreme Court of the United States. On the 15th June, 1864, pending the first writ of error, Boon, the defendant in error, died.

Mr. Lander now made a motion, having for its object to revive the writ of error, by suggesting the death of Boon, and substituting the widow and heirs-at-law as parties to the record.

The parties described in the present writ of error, it will be observed, were the parties to the original suit, and the writ, therefore, was issued in the name of a dead man.

Mr. Lander, in support of his motion, argued, that being a chancery suit, the death of the plaintiff had not abated but only suspended it; that the writ of error was a continuation of the original litigation; that this being so, the plaintiff in error had made the suggestion in the only court open to him.

Mr. Williams, contra: That the motion was against proper practice; that the remedy, if any, was in the court below.

Mr. Justice NELSON delivered the opinion of the court.

title: McClane v. Boon


text: Talk:McClane v. Boon

title: Talk:McClane v. Boon


text:
McClane v. Boon/Opinion of the Court

We think the counsel for the plaintiff in error has mistaken the proper practice under the peculiar circumstances of the case. Application should have been made to the court below for the purpose of reviving the suit in the name of the widow and heirs of the deceased; and then a writ of error could have regularly issued.

If the court should refuse, then it would become necessary to issue it in the name of these representatives, in the usual way, serving on them the citation to appear at the next term.

The case of Kellogg et al. v. Forsyth, is an authority for issuing the writ in the name of the widow and heirs, and, also, for the appearance of these parties on the citation, and make objections to these proceedings if they see fit.

As the case now stands, the parties to the suit described in the writ, and in whose names it was issued, are McClane, plaintiff in error, and Boon, defendant, deceased, and the citation is issued and served on parties, not parties to the record, which, of itself, is error.

WRIT OF ERROR DISMISSED.

title: McClane v. Boon/Opinion of the Court


text: Talk:McClane v. Boon/Opinion of the Court


text: Agricultural Company v. Pierce County

title: Agricultural Company v. Pierce County


text: Talk:Agricultural Company v. Pierce County


text:
Agricultural Company v. Pierce County/Opinion of the Court

ERROR to the Supreme Court of Washington Territory.

The writ of error bore date January 20th, 1862. It was on its face made returnable on the second Monday of December next after its date, when it should have been the first Monday of that month, which is by law the day on which the terms of this court commence each year.

For this cause (Mr. Justice MILLER, announcing the order), the writ of error was dismissed under the authority of the cases of Carroll v. Dorsey, Insurance Company v. Mordecai, and Porter v. Foley, heretofore decided by this court.

Messrs. Lander and Carlisle, for the plaintiff in error; no o posite counsel appearing nor having entered their appearance of record.


text: Talk:Agricultural Company v. Pierce County/Opinion of the Court


text:
Mayor v. Cooper

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

The Constitution of the United States ordains, that 'the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish,' and that this power 'shall extend to all cases, in law and equity, arising under this Constitution and the laws of the United States.'

With this provision in force as fundamental, Congress, having in 1789 established Circuit Courts, inferior to the Supreme Court, passed, during the late rebellion, to wit, March 3d, 1863, 'An act in relation to habeas corpus and regulating judicial proceedings in certain cases,' and on the 11th May, 1866, another amendatory of it.

The statutes provided, in respect to all acts done or omitted to be done, 'under any law of Congress,' or 'by virtue of any order, written or verbal, general or special, issued by the President or Secretary of War, or any military officer of the United States holding command' of the place where such act or omission occurred, that such authority should be a defence in all courts for all concerned, to any civil action or criminal prosecution therefor.

And provided further for the removal, in a manner prescribed, of all such cases, before or after final judgment, from the State courts to the Circuit Courts of the United States.

In this state of law, constitutional and statutory, Cooper sued the mayor and aldermen of Nashville, and with them one Smith, in the Circuit Court of Davidson County, in that State; his declaration alleging trespasses upon real estate, and the asportation and conversion of chattels. The mayor and aldermen pleaded the general issue.

Both parties defendant presented petitions verified by affidavit to the court in which the suit was pending, praying for a removal, under the statutes of 1863 and 1866 just named, of the causes to the Circuit Court of the United States for that district.

The petition of Smith set forth that the trespasses complained of, if committed, were committed during the rebellion by authority of the President of the United States, under an order issued by General G. H. Thomas, an officer of the United States, holding command of the district within which the trespasses are alleged to have occurred, which order was approved by Andrew Johnson, then an officer of the United States, and the military governor of the State of Tennessee.

That of the mayor and aldermen alleged, that at the time of the commission of the alleged trespasses their co-defendant Smith was the acting mayor of Nashville, and that he and the persons acting with him as aldermen and councilmen held their positions as mayor, aldermen, and councilmen as the appointees and agents of the government of the United States, appointed under the authority of the President of the United States, by the then military governor of Tennessee, to serve the lawful military purposes of the said President of the United States, as the commander-in-chief of the forces thereof, in suppression of the rebellion, and that all the acts complained of, if done, were done under the authority and for the benefit of the United States and the army thereof; and that the said acting mayor and aldermen, at the time when the trespasses are alleged to have been committed, had received military orders from the said military governor, under the authority of the Secretary of War of the United States, and also orders from the military officers of the United States having command of the district, to do all the things which were done, or are alleged to have been done by the defendants.

The cause was removed to the Circuit Court of the United States according to the prayer of the defendants.

A motion was made there to dismiss the suit upon the ground tha the court had no jurisdiction of the cause. No allegation, apparently, was made against the regularity in point of form of the proceedings by which the case had been removed from the State court, or that the case was not within the acts of Congress of 1863 and 1866. The motion to dismiss was sustained by the court. The court held that the defence had 'failed to show that they are entitled to have this cause removed from the Circuit Court of Davidson County, Tennessee, to this court for hearing under the provisions of the act of Congress of March 3d, 1863, and the act amendatory thereof, passed May 11th, 1866, and that the said acts of Congress, so far as they authorize and provide for the removal of causes from the State to the Federal courts in cases where the petitioner shall show that the acts complained of were done under the order of the President or Secretary of War, or of a military commander, or otherwise than under an act of Congress, are unconstitutional and void.' It was accordingly ordered and adjudged 'that said cause be dismissed and remanded to the Circuit Court of Davidson County, ''and that the defendants. . . pay all the costs incurred in this court, for which execution may issue''.'

This writ of error was prosecuted to reverse that judgment.

Mr. R. L. Caruthers, by brief, for the plaintiff in error, contended that the matter having arisen on motion to dismiss, presented a question of jurisdiction purely; that at such a stage of the case, no question could be raised as to the validity of the defence which the statutes authorized to be set up; that even if the defence authorized was invalid and unconstitutional, still that under the provisions of the Constitution which extended the jurisdiction of the Circuit Court-an 'inferior court,' undoubtedly ordained and established by Congress-to all cases in law and equity, arising under the laws of the United States, that court was bound to entertain and in some way adjudge it; that the case should therefore be remanded.

No opposing counsel appeared; nor was any copy of the opinion of the court below contained in the record.

Mr. Justice SWAYNE delivered the opinion of the court.

title: Mayor v. Cooper


text: Talk:Mayor v. Cooper

title: Talk:Mayor v. Cooper


text:
Mayor v. Cooper/Opinion of the Court

It does not appear that any question was raised in the court below as to the regularity of the proceedings by which the case was removed from the Circuit Court of the State to the Circuit Court of the United States. Nor does it appear to have been denied that the acts of Congress referred to embraced the case, and if valid, gave the right to have the transfer made. We are therefore relieved from the necessity of considering those subjects. We have found nothing in the record, and nothing in the statutes which, as we think, authorizes a doubt or objection as to either point.

The judgment of the court proceeded entirely upon the ground of the constitutional invalidity of the provisions in the acts referred to, which relate to the subject.

We have not had an opportunity to see the opinion of the court, and no argument has been submitted to us in behalf of the defendant in error. We are therefore at a loss to imagine what train of reasoning conducted the learned judge to the conclusion announced in the order, and hence are constrained to examine the subject without reference to the particular views which controlled the decision.

Before adverting to the constitutional question, there is another feature of the order which calls for remark. The court held that it had no jurisdiction whatever of the case, and yet gave a judgment for the costs of the motion, and ordered that an execution should issue to collect them. This was clearly erroneous. If there were no jurisdiction, there was no power to do anything but to strike the case from the docket. In that view of the subject the matter was as much coram non judice as anything else could be, and the award of costs and execution was consequently void. Such was the necessary result of the conclusions of the court.

This court has t e power to declare an act of Congress to be repugnant to the Constitution, and therefore invalid. But the duty is one of great delicacy, and only to be performed where the repugnancy is clear, and the conflict irreconcilable. Every doubt is to be resolved in favor of the constitutionality of the law.

The question before us relates to the 4th and 5th sections of the statute of 1863, and the 1st, 3d, 4th, and 5th sections of the statute of 1866.

They provide, in respect to the acts specified, and all acts done or omitted to be done, 'under any law of Congress,' or 'by virtue of any order, written or verbal, general or special, issued by the President or Secretary of War, or any military officer of the United States holding command' of the place where such act or omission occurred, that such authority shall be a defence in all courts for all concerned, to any civil action or criminal prosecution for the acts or omissions complained of.

They provide further for the removal, in the manner prescribed, of all such cases, before or after final judgment, from the State courts to the Circuit Courts of the United States.

The Constitution provides, that 'the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish,' and that this power 'shall extend to all cases, in law and equity, arising under this Constitution and the laws of the United States.' The other particulars of the grant of power it is not necessary in this case to consider.

The power here under consideration is given in general terms. No limitation is imposed. The broadest language is used. 'All cases' so arising are embraced. None are excluded. How jurisdiction shall be acquired by the inferior courts, whether it shall be original or appellate, or original in part and appellate in part, and the manner of procedure in its exercise after it has been acquired, are not prescribed. The Constitution is silent upon those subjects. They are remitted without check or limitation to the wisdom of the legislature.

The sixth article declares that 'the Constitution and the laws of the United States, which shall be made in pursuance thereof,'. . . 'shall be the supreme law of the land.' The grant of the judicial power contains no such qualification. It is declared to extend 'to all cases arising under the Constitution and laws of the United States,' without distinction or discrimination as to the latter; nor is there any restriction as to the tribunals-State or Federal-in which they may arise. Wherever found, they are within the reach of this authority, and subject, for its exercise, to the law-making power of the nation.

As regards all courts of the United States inferior to this tribunal, two things are necessary to create jurisdiction, whether original or appellate. The Constitution must have given to the court the capacity to take it, and an act of Congress must have supplied it. Their concurrence is necessary to vest it. It is the duty of Congress to act for that purpose up to the limits of the granted power. They may fall short of it, but cannot exceed it. To the extent that such action is not taken, the power lies dormant. It can be brought into activity in no other way. Jurisdiction, original or appellate, alike comprehensive in either case, may be given. The constitutional boundary line of both is the same. Every variety and form of appellate jurisdiction within the sphere of the power, extending as well to the courts of the States as to those of the nation, is permitted. There is no distinction in this respect between civil and criminal causes. Both are within its scope. Nor is it any objection that questions are involved which are not all of a Federal character. If one of the latter exist, if there be a single such ingredient in the mass, it is sufficient. That element is decisive upon the subject of jurisdiction. 'A case in law or equity consists of the right of the one party as well as the other, and may be truly said to arise under the Constitution or a law of the United States whenever its correct decision depends upon the right construction of either.'

The rule applies with equal force where the plaintiff claims a right, and where the defendant claims protection, by virtue of one or the other.

It is the right and the duty of the national government to have its Constitution and laws interpreted and applied by its own judicial tribunals. In cases arising under them, properly brought before it, this court is the final arbiter. The decisions of the courts of the United States within their sphere of action, are as conclusive as the laws of Congress made in pursuance of the Constitution. This is essential to the peace of the nation, and to the vigor and efficiency of the government. A different principle would lead to the most mischievous consequences. The courts of the several States might determine the same questions in different ways. There would be no uniformity of decisions. For every act of an officer, civil or military, of the United States, including alike the highest and the lowest, done under their authority, he would be liable to harassing litigation in the State courts. However regular his conduct, neither the Constitution nor laws of the United States could avail him, if the views of those tribunals and of the juries which sit in them, should be adverse. The authority which he had served and obeyed would be impotent to protect him. Such a government would be one of pitiable weakness, and would wholly fail to meet the ends which the framers of the Constitution had in view. They designed to make a government not only independent and self-sustained, but supreme in every function within the scope of its authority. The judgments of this court have uniformly held that it is so.

The jurisdiction here in question involves the same principle, and rests upon the same foundation with that conferred by the twenty-fifth section of the Judiciary Act of 1789. The constitutionality of that provision has been uniformly sustained by the unanimous judgment of this court whenever the subject has been presented for adjudication. The twelfth section of the act of 1789, and the third section of the act of the 2d March, 1833, relating to revenue officers, present the same question. We are not aware that a doubt as to the validity of either has ever been expressed by any Federal court. The acquiescence is now universal.

The fourth and fifth sections of the act of 1863, are copied largely from the eighth section of the act of February 4th, 1815. That act expired by its own limitation at the close of the then existing war. The section referred to, was continued in force for one year in the sixth section of the act of March 3d, 1815. See also the third section of the act of March 3d, 1817.

We entertain no doubt of the constitutionality of the jurisdiction given by the acts under which this case has arisen.

The validity of the defence authorized to be made is a distinct subject. It involves wholly different inquiries. We have not had occasion to consider it. It has no connection whatever with the question of jurisdiction.

The order of the court below is REVERSED. An order will be remitted that the cause be REINSTATED, and that the court proceed in it according to law.

title: Mayor v. Cooper/Opinion of the Court


text: Talk:Mayor v. Cooper/Opinion of the Court


text:
Andrews v. Hensler

ERROR to the Circuit Court for the Eastern District of Louisiana.

In March, 1859, the plaintiff purchased four slaves of the defendant at New Orleans, giving a draft payable at a future day for the payment. The slaves proving, as was now alleged by the purchaser, to have been afflicted with various i curable diseases, &c., he brought suit for a rescission of the sale, the restitution of the price, and for damages; a sort of suit called, in the language of the code of Louisiana, a redhibitory action; Redhibition, by the code, being defined to be 'the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect that it must be supposed that the buyer would not have purchased it had he known of the vice.'

The petition alleged that the plaintiff purchased the slaves, with full warranty against all the vices and maladies prescribed by law; that they were, however, at the time afflicted with various specified vices and maladies; that these were unknown to the plaintiff, but were known to the defendant; that they were of such a grave character as to render the slaves 'absolutely useless, or their use so inconvenient and imperfect' that the plaintiff would not have purchased them had he known at the time of the defects; and that from the vices and maladies two of the slaves had died since the sale.

It further alleged that after the sale the plaintiff tendered the slaves back to the defendant and demanded the return of the draft, and the avoidance of the sale, in consequence of the redhibitory defects, but that the defendant refused to receive the slaves, to cancel the sale, or to return to petitioner the draft, and to pay him his damages.

It concluded with a prayer that the sale might be annulled, and the defendant condemned to return the draft, and to pay the costs that the plaintiff had incurred for the care and medical treatment in consequence of the sale, and false representations.

The first answer of the defendant to the petition consisted of a general denial. An amended answer, filed by permission of the court, averred in substance that the auctioneer, who sold the slaves for the defendant, declared at the time, at his request, that they must be examined by the physician of the purchaser previous to their delivery, but that the plaintiff was in such haste to obtain possession of the slaves purchased, that he removed them without examination, before the act of sale was passed; and hence insisted that if any loss had occurred to the plaintiff it had been through his own negligence and disregard of the terms of sale, for which the defendant is not responsible.

On the trial, the plaintiff contended that the special defence set up in this amended answer, was a waiver of the general denial, and that it admitted the liability of the defendant to refund the price of the slaves for the defects stated in the petition, and placed his discharge from such liability upon the neglect or disregard by the plaintiff of the terms of the sale, and requested the court to instruct the jury to that effect. The court refused to give the instruction and the plaintiff excepted.

A question having arisen at the trial as to the term within which it was necessary for the plaintiff to tender or offer to return the slaves to enable him to avoid the sale, and maintain a suit for its rescission, the court charged 'that in order to a complete rescission of the contract, the tender should have been made in a reasonable time; and if the jury found that it was not made in a reasonable time, the plaintiff was only entitled to recover for the damages he had sustained by the slaves being defective.'

To this instruction the plaintiff excepted, contending that he had a year in which to return them; the code of Louisiana, as it then existed, providing that actions for the rescission of contracts for the sale of slaves on account of redhibitory defects must be brought within one year from the date of the sale.

The correctness of the views of the court below was now the matter for examination here.

Mr. Soule, for the plaintiff in error; Mr. Stansbury, contra.

Mr. Justice FIELD, after stating the case, delivered the opinion of the court as follows:

title: Andrews v. Hensler


text: Talk:Andrews v. Hensler

title: Talk:Andrews v. Hensler


text:
Andrews v. Hensler/Opinion of the Court

Treatin the amended answer as an answer in addition to the general denial, we do not perceive any error in the refusal of the court below to instruct the jury, as requested, with respect to its effect. The rule which prevails in Louisiana on the subject of general and special pleas, as declared in the decisions of her courts, is that they may be presented together, if consistent with each other. Inconsistent or contradictory pleas alone are forbidden. #fn-s-s

The amended answer amounts only to the averment of a fact which, if established, would tend to show that the warranty alleged in the petition was not given in the absolute form there averred. It only specifies a particular fact in aid of the general denial.

The second exception is to that part of the charge which relates to the period within which it was necessary for the purchaser to tender back or offer to return the slaves. The court charged, 'that in order to a complete rescission of the contract, the tender should have been made in a reasonable time; and if the jury found that it was not made in a reasonable time, the plaintiff was only entitled to recover for the damages he had sustained by the slaves being defective.' The civil code of Louisiana, when the action was commenced, limited to one year the time in which actions could be brought for the rescission of sales of slaves on account of redhibitory defects, and hence it is contended, that the purchaser had the same period within which to offer to return the slaves to the vendor.

The rule that he who seeks to rescind a contract of sale, must first offer to return the property received, and place the other party in the position he formerly occupied, so far as practicable, prevails equally at the civil and the common law. It is a rule founded in natural justice, and requires that the offer shall be made by the purchaser to his vendor upon the discovery of the defects for which the rescission is asked. The vendor may then receive back the property, and be able by proper care and attention to preserve it, or he may have recourse upon other parties, the remedies against whom might be lost by delay. He must be permitted to judge for himself what measures are necessary for his interest and protection, and if the purchaser by delay deprives him of the opportunity of thus protecting himself, he cannot demand a rescission of the contract.

The purchaser must use reasonable diligence to apprise his vendor of the defects alleged, and to make the tender; and what is reasonable diligence is a question of fact, to be decided by the jury according to the special circumstances of each case. #fn-s-s-s

JUDGMENT AFFIRMED.

title: Andrews v. Hensler/Opinion of the Court


text: Talk:Andrews v. Hensler/Opinion of the Court


text:
Millingar v. Hartupee

ERROR to the Supreme Court of the State of Pennsylvania.

On motion to dismiss the writ for want of jurisdiction.

Hartupee brought an action against Millingar as garnishee of Gearing, in one of the courts of Alleghany County, Pennsylvania; the object of the suit having been to subject certain moneys of Gearing, alleged to be in the hands of Millingar, to the satisfaction of a judgment recovered by Hartupee against Gearing in that court.

The controversy related to the ownership of certain cotton, captured for breach of blockade, and libelled as prize in the District Court for the Northern District of New York. This cotton, before the hearing of the cause of prize, had been released to Millingar by an order of the court upon the consent and application of the district attorney, and with the consent, also, of the counsel for the captors.

In the suit in the State court it was alleged on the part of the plaintiff, Hartupee, that the cotton when captured was the property of Gearing, and remained such when relieved by the release from liability to condemnation for violation of the blockade. He demanded, therefore, that the cotton or its proceeds in the hands of Millingar the cotton having been sold by Millingar, and the question being upon the liability of the proceeds for the debts of Gearing-should be subjected to the satisfaction of his judgment against Gearing.

On the other hand, it was asserted by the defendant, Millingar, that the cotton at the time of capture belonged to him and not to Gearing, and if this were otherwise that the order of release transferred the title to him.

The controversy resulted in a judgment against Millingar in favor of Hartupee for the amount of the judgment of the latter against Gearing.

From this judgment a writ of error was taken to the Supreme Court of Pennsylvania, by which court the judgment of the District Court was affirmed.

One of the questions requiring the judgment of the Supreme Court was, whether the order of the District Court releasing a portion of the captured cotton from the custody of the marshal, and ordering that it be delivered to Millingar, vested in him any title of ownership; and the decision of the court was that it did not.

Millingar then brought the case here on error, assuming it to be one within the twenty-fifth section of the Judiciary Act, which provides 'that a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity. . . may be re-examined and reversed or affirmed in this court upon a writ of error.'

The correctness of this assumption was the point now raised, by the motion to dismiss.

Messrs. N. P. Chipman and Thomas Wilson, in support of the motion:

The District Court did not pass in any way upon Millingar's title. That court did no more than to except the cotton which constituted the cause of the action in the State court, from the operation of its decree, and to order its release upon the written consent of the district attorney of the United States, and of the counsel of the captors. It went no further than to decide that the United States and the captors had no right to the cotton. Millingar thus held it with no less and no greater title than if there had been no capture; and of course open to any one to assert his own ownership to it.

Mr. Black, contra:

In the District Court Millingar asserted himself to be owner, and proved his title to the complete satisfaction of all opposing parties. The order or decree of the District Court accordingly gave the cotton to him; no trust for Gearing nor the least reference to him being made in any way whatever. Under this 'authority'-exercised, of course, under a court of the United States-he acted as owner. The Supreme Court of Pennsylvania says that the order gave him no authority to act as owner; in other words, decides 'against the validity' of the authority set up. This brings the case within the twenty-fifth section

At all events, in a case not clear this court will not dispose of the case on motion, apart from the question of merits, and in advance of regular hearing.

The CHIEF JUSTICE delivered the opinion of the court.

title: Millingar v. Hartupee


text: Talk:Millingar v. Hartupee

title: Talk:Millingar v. Hartupee


text:
Millingar v. Hartupee/Opinion of the Court

It is insisted in behalf of the defendant in error that the question raised and decided by the Supreme Court of Pennsylvania, does not bring the case within either of the classes of which this court has jurisdiction under the twenty-fifth section of the Judiciary Act; and this must be admitted unless it can be maintained that the question was upon the validity of an authority exercised under the United States, and that the decision was against its validity.

It is clear that the case does not come under any other of the descriptions of the twenty-fifth section.

It seems equally clear that the authority of the District Court to direct the release was not drawn in question.

Was, then, the authority of Millinger over the cotton an authority exercise under the United States in virtue of the release so directed?

Something more than a bare assertion of such an authority seems essential to the jurisdiction of this court. The authority intended by the act is one having a real existence, derived from competent governmental power. It a different construction had been intended, Congress would doubtless have used fitting words. The act would have given jurisdiction in cases of decisions against claims of authority under the United States.

In respect to the question we are now considering, 'anthority' stands upon the same footing with 'treaty' or 'statute.' If a right were claimed under a treaty or statute, and on looking into the record, it should appear that no such treaty of statute existed, or was in force, it would hardly be insisted that this court could review the decision of a State court, that the right claimed did not exist.

In the case before us Millingar claimed authority under an order of the District Court. On looking at the order, we find that it does not purport to confer any authority whatever upon him. It simply relieved the cotton from the claim of the government. He claimed to be owner of it, and the order allowed him to take possession. But the court did not pass on the question of ownership or right of possession.

It left him, in these respects, precisely where he would have been, if the cotton had come into his possession without capture, and without any proceeding on the part of the government to subject it to forfeiture.

In that case he would certainly have had no 'authority under the United States.' We think he had as little through the proceedings of the court.

In many cases the question of the existence of an authority is so closely connected with the question of its validity that the court will not undertake to separate them, and in such cases the question of jurisdiction will not be considered apart from the question upon the merits, or except upon hearing in regular order. But where, as in this case, the single question is not of the validity but of the existence of an authority, and we are fully satisfied that there was, and could have been, no decision in the State court against any authority under the United States existing in fact, and that we have, therefore, no jurisdiction of the cause brought here by writ of error, we can perceive no reason for retaining it upon the docket.

The motion for dismissal must therefore be allowed. #fn-s-s


text: Talk:Millingar v. Hartupee/Opinion of the Court


text:
The Flying Scud

APPEAL from a decree of the District Court of the United States for the Eastern District of Louisiana.

The Scud and her cargo were captured during the late rebellion, by the United States Steamer Princess Royal, at the mouth of the Rio Grande, on the 12th August, 1863, and brought into New Orleans for condemnation.

The Rio Grande, as is known, separates Texas, then in rebellion against the United States, from Mexico, then a neutral country; the position of the stream between the neutral and rebel regions having allowed, of course, great opportunities to illicit trade with Texas, under the guise of lawful trade with Mexico.

The proofs in the case showed that the vessel was a British vessel, and had left Nassau in January, 1863, laden with a cargo of timber, tin, iron, powder, and horseshoes, and was destined ostensibly for Matamoras, Mexico (a place separated from Texas and the commercial town of Brownsville it it only by the dividing river). She arrived at Matamoras, that is to say, at the mouth of the Rio Grande (where, on account of a bar, vessels of any size are obliged to anchor), on the 1st of March; after remaining there a week or ten days, she sailed for Brazos Santiago, a port of Texas about nine miles from the mouth of the Rio rande, where her cargo was discharged, and carried to Point Isabel, also in Texas. The vessel remained at Santiago till some time in May, when she returned to the mouth of the Rio Grande. While here at anchor she was, on the 15th July, 1863, chartered by one B. Caymari, a subject of Spain, doing business at Matamoras, as a merchant there, to carry a cargo of cotton from Matamoras to Havana. She continued at anchor at the mouth of the Rio Grande till the cargo of cotton was put on board in July and August, with which she was laden when captured. All the cotton was purchased at Matamoras, that is to say, in Mexico, and was brought from storehouses from Bagdad, the port of entry of Matamoras, or Boca del Rio, in Mexico, not far off, down the river, in lighters, to the Scud, which was anchored outside of the bar, and there loaded. There were some fifty or sixty merchant vessels at the mouth of the river at the time of the capture, and had been from the time of the Scud's first arrival there.

Hart, the owner of the vessel, and who was a British subject, put in a claim for the vessel.

Caymari, already mentioned, put in a claim, as owner of one hundred and thirty-seven bales of the cotton; Jules Aldige, a subject of France, but, like Caymari, doing business as a merchant at Matamoras, a claim for thirty-eight bales; and Lopez and Santos Coy, citizens of Matamoras, in Mexico, but who, some years before the capture, had removed to Brownsville, in Texas, a claim for thirty bales.

The court below condemned the vessel and cargo as prize of war. There was no appeal by the owner of the vessel, so that the only question here was in regard to the cotton.

Messrs. Dunning and Donohue, for the appellants, claimants of the cotton:

All trade between neutral ports in time of war is valid except (1) to blockaded ports, and (2) with contraband. The mouth of the Rio Grande was not and could not be blockaded so as to prevent trade with Matamoras, which is in a neutral country.

All the cotton was purchased at Matamoras, in this neutral country. The only circumstance militating against our claim is that the vessel did once land a cargo in Texas. But the case does not show that any one of the claimants had anything to do with that voyage or even ever heard of it. Neutrals themselves, they found a neutral vessel outside the bar ready to carry their cotton to a neutral port, and they chartered her. The vessel was lying at anchor for weeks, of course in sight of the blockading fleet; and the captors seize her only after she is loaded. The claimants of the cotton had a right to suppose that she would be unmolested. They were misled by this lying by of the captors; and even if guilty, their cargo ought to be restored.

Mr. Ashton, special counsel of the United States, contra:

A person carrying on trade in time of war in a region so exceedingly suspicious as from its geographical character was the mouth and lower part of the Rio Grande, must show a case above all suspicion. The outward voyage, which undoubtedly was meant for Texas, and was criminal, involves the present one in grave suspicion.

As to the claim of Lopez and Santos, having been merchants in a hostile country, the fact that they shipped the cotton from a neutral one, can't save it. It was enemies' property, and as such confiscable.

Mr. Justice NELSON delivered the opinion of the court.

title: The Flying Scud


text: Talk:The Flying Scud

title: Talk:The Flying Scud


text:
The Flying Scud/Opinion of the Court

The proofs are full and uncontradicted, that each of the claimants purchased the cotton in question from different houses in Matamoras, and were merchants doing business there, with the exception of Lopez and Santos, who had removed to Brownsville, Texas, some year before the capture, from Matamoras, and were established in business there. It further appears from the proofs that the cotton was in the warehouses at Boca del Rio, or Bagdad, which is the port of entry for Matmoras, was carried in lighters rom thence to the schooner, and taken on board. These proofs, and the greater portion of those which make the case, were produced on an order for further proofs. The transaction appears free from all doubt or obscurity. The claimants, for aught that is shown, had no connection whatever with the cargo shipped from Nassau, and discharged at Brazos, or with the voyage or with the vessel, until it was chartered by Caymari to carry a cargo of cotton from Matamoras to Havana, which is dated the 15th day of July, 1863. The argument, therefore, founded on the suspicion that the claimants were connected with the breach of blockade at Brazos, in the cruise of the inward voyage, is without any foundation.

The decree below must be reversed, except as to the thirty bales claimed by Lopez and Santos. Although they are Mexican citizens, yet being established in business in the enemies' country, must be regarded according to settled principles of prize law, as enemies, and their cotton as enemies' property.

The decree below affirmed as to the thirty bales, and reversed as to the thirty-eight(38) and the one hundred and thirty-seven(137), and case remitted, with directions to enter decree for claimants, Jules Aldige and B. Caymari, restoring their cotton with costs.

DECREE ACCORDINGLY.

title: The Flying Scud/Opinion of the Court


text: Talk:The Flying Scud/Opinion of the Court


text:
Translation:Forme Ǣrendgeƿrit Iohannes

1e Hēafodƿeard
1. Þæt ƿæs fram þǣm onginne, þætte ƿē habbaþ gehīered, þæt ƿē habbaþ þurh ēagan geseƿen, þæt ƿē behēoldon and ūre handa hnigon, ymb þæt Ƿord līfes;

2. and þæt līf ƿæs ætīeƿed; and ƿē habbaþ geseƿen and beraþ ƿitnesse and cȳðaþ ēoƿ þæt ēcelīce līf, þe ƿæs mid þǣm Fæder and ƿæs ætīeƿed ūs;

3. þæt ƿē habbaþ and habbaþ gehīered, ƿē gecȳðaþ ēac ēoƿ sƿā þæt gē fēolāgscipe ƿiþ ūs hæbben. And sōþlīce is ūre fēolāgscipe mid þǣm Fæder and his Suna Iesus Crīste.

4. And þās þing ƿrītaþ ƿē sƿā þæt ūre ƿynn sīe fulfyled.

5. And þis is þæt ǣrend þætte ƿē habbaþ fram Him and þæt ƿē gecȳðaþ ēoƿ, þæt god is lēoht and þǣr nis nān þystru on Him.

6. gif ƿē secgen þæt ƿē hæbben fēolāgscipe wiþ Him and ƿē gangen in þǣre þystre, ƿē lēogaþ and ne dōþ þæt sōþ;

7. ac gif ƿē gangen on lēohte, þonne habbaþ ƿē fēolāgscipe ǣlc ƿiþ ōðre and þæt blōd Iesus clǣnsaþ ūsic fram ūrre synne.

8. gif ƿē secgen þæt ƿē sīen leahterlēase, þonne ƿē ūsic dƿellen and þæt sōþ nis on ūs.

9. gif ƿē andetten ūrum synnum, hē is trēoƿ and rihtƿīs, þæt hē forgiefe ūs ūra synna and clǣnsie ūsic fram eallum gālscipe.

10. gif ƿē secgen þæt ƿē næbben gylted, ƿē hāten Hine lēasiend and his ƿord nis on ūs.

2 Hēafodƿeard
1. Mīn lȳtlan cildren, Ic ƿrīte ēoƿ þās þing sƿā þæt gē ne gylten. gif hƿā gylte, þonne ƿē habbaþ geþeahtere mid þǣm Fæder, Hælend Crīst þone rihtƿīsan.

2. And hē is þæt gebētende lāc ūrra synna, ac ne ūrra synderlīce, ac ēac þǣre fullan ƿorulde.

3. Þus cunnon ƿē oncnāƿan gif ƿē cnāƿen hine: gif ƿē healden his bodu.

4. Mann þe sægþ, "Ic cnāƿe hine," and ne healdeþ his bodu, is lēasiend, and þæt sōþ nis on him.

5. Ac hƿā healdeþ his ƿord, sēo lufu godes geƿisslīce is on im fulfyled. Þus oncnāƿaþ ƿē þæt ƿē on Him sind:

6. Hē þe sægþ þæt hē abītt on Him scolde self æfter Him gangan.

7. gebrōðru, ic ne ƿrīte ēoƿ nīƿe bod, ac eald bod þe ge hæfdon siþþan þǣm onginne. Þæt ealde bod is þæt ƿord þætte gē habbaþ siþþan þǣm onginne gehīered.

8. Eft, ic ēoƿ nīƿe bod ƿrītan, þe is on him and on ēoƿ sōþ; for þȳ þe sēo þystru agangeþ, and þæt sōðe lēoht nū scīnþ.

9. Hē þe sægþ þætte hē sīe on þǣm lēohte and hataþ his brōðor, is gīet on þǣre þystre.

10. Hē se his brōðor lufaþ abītt on þǣm lēohte, and þǣr nis nǣnig speornung on him.

11. Ac hē þe hataþ his brōðor is on þǣre þystre, and gangeþ on þǣre þystre, and ne cnāƿeþ þider hē gǣþ, for þȳ þe sēo þystru hæfþ ablended his ēagan.

12. Ic ēoƿ ƿrīte, lȳtlu cildru, for þȳ ēoƿ sind þīna synna forgifen for His naman.

13. Ic ēoƿ ƿrīte, fæderas, for þȳ gē cnāƿaþ hine se þe fram þǣm onginne ƿæs. Ic ēoƿ ƿrīte, cnihtas, for þȳ gē habbaþ oferƿunnen þne yfelan. Ic ēoƿ ƿrīte, lȳtlu cildru, for þȳ gē cnāƿaþ þone Fæder.

14. Ic hæbbe ēoƿ geƿriten, fæderas, for þȳ gē cnāƿaþ þone is fram þǣm onginne is fram þǣm onginne. Ic hæbbe geƿriten ēoƿ, cnihtas, for þȳ gē sind strange, and þæt ƿord godes abītt on ēoƿ, and gē habbaþ oderƿunnen þone yfelan.

15. Ne lufa þā ƿorulde, ne þā þing þā sind on þǣre ƿorulde. gif hƿā lufie þā ƿorulde, þæs Fæder lufu nis on him.

16. For þȳ eall þe is on þǣre ƿorulde, se gālscipe þæs flǣscges, se gālscipe þāra ēagan, and se gelp līfes, nis þæs Fæder, ac is þǣre ƿorulde.

17. Sēo ƿoruld agangeþ mid hire gālscipum, ac hē þe dēþ þone ƿillan godes abītt.

18. Lȳtlu cildru, þās sind þā endetīman, and gē habbaþ gehīered þæt se Wiðercrīst cymþ, ac efne hēr nū habbaþ manige ƿiðercrīstas arisen. For þissum cnāƿaþ ƿē þæt hit ƿierþ se æftermesta tīma.

19. Hīe ēodon ūt fram ūs, ac hīe ne gelumpon ūs; for þȳ þe gif hīe hæfden gelumpen ūs, þonne hīe scolden hīe gīet gangan mid ūs. Ac hīe forþēodon, sƿā þæt hīe mihten ƿesan ætīeƿed þæt hoera nǣnig gelimpþ ūs.

20. gē habbaþ smirƿunge fram þǣm Hālgan, and gē cnāƿaþ eall.

21. Ic næbbe geƿriten ēoƿ for þȳ þe gē ne cnāƿaþ þæt sōþ, ac for þȳ þe gē cnāƿaþ hit, and for þȳ þe nān lēasung is þæs sōðes.

22. Hƿā is se lēasiend būton him þe ne andetteþ þæt Iesus is se Crīst? Þes is se Ƿiðercrīst, hē þe ne andetteþ þone Fæder and þone Sunu.

23. Hƿā ne andetteþ þone Sunu, ilca nafaþ þone Fæder. Hē se þe andetteþ þone Fæder þone Sunu ēac hæfþ.

24. Þæs þæt ge habbaþ gehīered siþþan þǣm onginne lǣtaþ abīdan on ēoƿ. gif þæt gē habbaþ gehīered siþþan þǣm onginne gē on ēoƿ abīdan lǣten, gē ēac abīdaþ on þǣm Suna, and on þǣm Fæder.

25. Þis is þæt hāt þe hē ūs abēad: þæt ēcelīce līf.

26. Þās þing hæbbe ic ēoƿ geƿriten ymb þā þe ƿoldon ēoƿic āmirran.

27. And gē, sēo smirƿung sēo þe gē feng from him abītt in ēoƿ, and gē ne þurfon þæt ǣnig mann tǣce ēoƿ. Ac for þȳ þe ilce smirƿung tǣceþ ēoƿ be eallum, and is sōþ, and nis lēagung, and efne sƿā hēo tōhte ēoƿ, gē sculon abīdan on him.

28. Nū, lȳtlu cildru, abīdaþ on him, sƿā þæt þǣr Hē cymþ, ƿē hæbben bealdnesse, and gē ne ƿesen ǣƿiscmōde ætfōran him on his tōcyme.

29. gif gē cnāƿen þæt hē is rihtƿīs, þonne gē cnāƿaþ þæt ǣghƿā þe dēþ rihtƿīsnesse is geboren fram him.

3e Hēafodƿeard
1. Efne, sƿelce grēate lufe hæfþ se Fæder ūs forgiefen, sƿā þæt ƿē bēon cildru Godes! For þissum ne cnāƿaþ sēo ƿoruld ūsic, for þȳ hēo ne cnēoƿ Hine.

2. Lēofas, nū sind ƿē cildru godes, and ƿē gīet niton þæt ƿē bēoþ. Ac ƿē cnāƿaþ þæt ƿē bēoþ gelīce Him þǣr hē ƿierþ ætīeƿed; for þȳ ƿē geseoþ Hine, sƿā Hē sīe.

3. gehƿā hopaþ þis clǣnsaþ hine, sƿā sƿā Hē is clǣne.

4. gēhƿā gylteþ dēþ ēac unlage. Synn is unlagu.

5. gē ƿiton þæt Hē ƿearþ ætīeƿed tō animenne ūra synna, and nis þǣr nǣnig synn on Him.

6. Hƿā bītt on Him ne gylteþ. Hƿā gylteþ næfþ Hine geseƿen, ne Hine cnāƿeþ.

7. Cildru, ne lǣtaþ nān mann merran ēoƿic. Hē se dēþ rihtƿīsnesse is rihtƿīs, sƿā sƿā Hē is rihtƿīs.

8. Hē se þe gylteþ is þæs Dēofles, for þȳ se Dēoful hæfþ gylted ā siþþan þǣm onginne. For þissum se Godes Sunu ƿæs ætīeƿed, sƿā þæt hē forcƿelle þā ƿeorc þæs Dēofoles.

9. Hƿā is geboren fram Gode ne dēþ gylt, for þȳ His sǣd abītt on him; and hē ne cann synnan, for þȳ hē is fram Gode geboren.

10. Þurh þis ƿurdon þā Godes cildru ætīeƿed, and ēac þā cildru þæs Dēofles. Hƿā ne dēþ rihtƿīsnesse nis Godes, nis hē þe ne lufaþ his brōðor.

11. For þȳ þis is þæt ǣrend þe gē siþþan þǣm onginne gehīered habbaþ, þæt gē lufien ǣlc ōðer,

12. ungelīc Caine, þe ƿæs þæs yfelan, and ofslēah his brōðor. Hƿȳ ofslēah hē hine? For þȳ his ƿeorc ƿǣron yfel, ac þā his brōðor ƿǣron rihtƿīsness.

13. Ne ƿundriaþ, mīne gebrōðru, gif sēo ƿoruld hatie ēoƿic.

14. Ƿē cnāƿaþ þæt ƿē habbaþ acumen fram dēaðe tō līfe, for þȳ ƿē lufiaþ þā brōðor. Hē se þe ne lufaþ his brōðor abītt on dēaðe.

15. Hƿā hataþ his brōðor is morðorƿyrhta, and gē cnāƿaþ þæt nān morðorƿyrhta hafaþ ēcelīc līf abīdende on him.

16. Þurh þis cnāƿaþ ƿē lufe, for þȳ hē alegde his līf ūs. And ƿē scoldon alecgan ūre līf ūrum brōðrum.

17. Ac hƿā hafaþ þǣre ƿorulde ƿara, and siehþ his brōðor þurfende, and belȳcþ his heortan miltse ƿiþ hine: Hū abītt sēo lufu godes on him?

18. Mīn cildru, nuton lufian synderlīce þurh ƿord, ne synderlīce þurh tungan, ac þurh dǣda ond sōþ.

19. And þæs cnāƿaþ ƿē þæt ƿē sīen þæs sōðes, and gelǣraþ ūra heortan ætfōran Him,

20. for þȳ gif ūre heorte dēme ƿiþ ūsic, God is māra þonne ūre heorte; and hē cnāƿeþ eall.

21. Lēofas, gif ūra heortan ne dēmen ƿiþ ūsic, þonne habbaþ ƿe bealdnesse tō Gode;

22. and hƿæs ƿē abiddaþ, ƿē andfōþ fram Him, for þȳ ƿē healdaþ His bodu and dōþ þā þing on His sihþ þe Him līcaþ.

23. Þis is His bod, þæt ƿē scoldon gelīefan on þǣm naman his Suna Hælendes Crīstes, and lufian ǣlc ōðer, sƿā sƿā Hē abēad.

24. Se þe healde His bodu abītt on Him, and Hē on him. Þæs cnāƿaþ ƿē þæt Hē abīde on ūs, þurh þone gāst þone Hē ageaf ūs.

4e Hēafodƿeard
1. Lēofas, ne gelīefaþ ealle gāstas, ac costniaþ þā gāstas, gīf hē sīe of Gode, for þȳ manige lēase ƿītegan habbaþ agangen on þā ƿorulde.

2. Þurh þis gē cnāƿaþ þone gāst Godes: ǣlc gāst þe andeteþ þæt se Hælend Crīst hæfþ gecomen on þǣm flǣsce is fram Gode,

3. and ǣlc gāst þe ne andeteþ þæt se Hælend Crīst hafaþ gecomen on þǣm flǣsce nis fram gode, and þes is se gāst þæs ƿiðercrīstes, ymb þone þe gē habbaþ gehīered þæt hē cume. Nū is hit ǣr on þǣre ƿorulde.

4. gē sind Godes, cildru, and habbaþ oferƿunnen hīe; for þȳ māra is Hē se is on ēoƿ þonne hē se þe on þǣre ƿorulde is.

5. Hīe sind þǣre ƿorulde. Þæs hīe sprecaþ ymb þā ƿorulde, and sēo woruld hīerþ hīe.

6. Ƿē sind Godes. Hē þe cnāƿeþ God hlystneþ ūs. Hē þe nis Godes ne hlystneþ ūs. Þurh þis cnāƿaþ ƿē þone gāst sōðes, and þone gāst ƿōges.

7. Lēofas, uton lufian ǣlc ōðer, for þȳ lufu is Godes; and gehƿā lufaþ is fram Gode geboren, and cnāƿeþ God.

8. Hē se ne lufaþ ne cnāƿeþ God, for þȳ God is lufu.

9. Þurh þis ƿæs sēo lufu Godes ūs ætīeƿed, þæt God sende his āna Suna in þā ƿorulde sƿā þæt ƿē mihten libban þurh Hine.

10. Lufu is þus: ne þæt ƿē lufien God, ac þæt Hē lufode ūsic, and gesende his Sunu tō þǣm bētendan lāce ƿiþ ūra synna.

11. Lēofas, gif God lufode ūsic þus, ƿē ēac sƿā scoldon lufian ǣlc ōðerne.

12. Nān hæfþ geseƿen God næfre. gif ƿē lufien ǣlc ōðerne, þonne God abītt on ūs, and his lufu is geƿorden fulfyled on ūs.

13. Þurh þis ƿē cnāƿaþ þæt ƿē abīden on Him and Hē on ūs, for þȳ þe Hē hæfþ ūs of His gāste gifen.

14. Ƿē habbaþ geseƿen and acȳðaþ þæt se Fæder hafaþ gesent þone Sunu tō þǣm hǣliende eallre þǣre ƿorulde.

15. Hƿā andeteþ þæt se Hælend is se Sunu Godes, on him abītt God, and hē on Gode is.

16. Ƿē cnāƿaþ and habbaþ gelīefed þā lufe þā ūs geaf God. God lufu is, and hē se abītt on lufe abītt on Gode, and on him abītt God.

17. On þissum is lufu geƿorden fulfyled ongemang ūre, þæt ƿē mihten byldo on þǣm dōmdæge habban, for þǣm þē sƿā hē is, sƿā sind ƿē on þisre ƿorulde.

18. Þǣr nis nǣnig drǣd on lufe; ac fulfyled lufu adrīfeþ drǣd, for þȳ drǣd hafaþ hearmsceare. Hē þe drǣdeþ nis on lufe fulfyled gemacod.

19. Ƿē lufiaþ Hine, for þǣm hē ǣrost ūsic lufode.

20. gif mann secge, "Ic lufie God," and hatie his brōðor, hē is lēasiend; for þȳ þe hē þe ne lufaþ his brōðor þone hē geseƿen hafaþ, hū cann hē God lufian, þe hē nafaþ geseƿen?

21. Þis bod habbaþ ƿē fram Him, þæt hē þe lufaþ God his brōðor ēac lufian scolde.

5e Hēafodƿeard
1. Hƿā gelīefþ þæt Iesus is se Crīst is geboren fram gode. Hƿā lufaþ þone Fæder ēac lufaþ þæt cild fram Him geboren.

2. Þurh þis oncnāƿaþ ƿē þæt ƿē lufien þā cildru godes, þā þā ƿē lufiaþ god and healdaþ His bodu.

3. For þȳ þe is þis sēo lufu godes, þæt ƿē healdaþ His bodu. His bodu ne sind hefigtīmu.

4. For þǣm þe hƿæt of gode geboren is oferƿinneþ þā ƿorulde. Þis is se sige se hafaþ oferƿunnen þā ƿorulde: þīn gelēafa.

5. Hƿā is hē se oferƿinnþ þā ƿorulde, būton him se þe gelīefþ þæt Iesus is se Sunu godes?

6. Þes is Hē se cƿōm þurh ƿæter and blōd, Iesus Crīst: ne synderlīce þurh ƿæter, ac mid þǣm ƿætere and þǣm blōde. Se gāst self andeteþ, for þȳ se gāst is þæt sōþ.

7. For þȳ þǣr sind þrīe þā andettaþ:

8. se gāst, þæt ƿæter, and þæt blōd: and þā þrēo ānrǣdaþ sƿā ān.

9. gif ƿē andfōn þā geƿitnesse manna, þonne is sēo geƿitness godes māre; for þȳ þe þēos is godes gecȳþness þe hē gecȳðde ymb his Sunu.

10. Hē se gelīefþ on þǣm Suna godes hafaþ þā gecȳþnesse selfes. Hē þe ne gelīefþ god hafaþ Hine tō lēasiende geset, for þǣm hē nafaþ gelīefed þǣre gecȳþnesse sēo god hafaþ gifen ymb his Sunu.

11. Sēo gecȳtness is þus, þæt god geaf ūs ēcelīc līf, and þis līf is His Sunu.

12. He se hafaþ þone Sunu hafaþ līf. Hē se þe nafaþ godes Sunu næfþ þæt līf.

13. Þās hæbbe ic geƿriten ēoƿ þā þe gelīefaþ on naman þæs Suna godes, sƿā þæt gē cnāƿen þæt gē habbaþ þæt ēcelīce līf, and þæt gē gelǣstende gelīefen on þǣm naman þæs Suna godes.

14. Þēos is sēo byldo þe ƿē habbaþ ƿiþ Hine, þæt gif ƿē abidden āƿihtes æfter His ƿillan, þonne hlystneþ hē ūs.

15. And gif ƿē cnāƿen þæt hē hlystneþ ūs, þēah hƿæs ābidden ƿē, ƿē cnāƿaþ þæt ƿē habbaþ þā ascunga þā ƿē fram Him abǣdon.

16. gif hƿā sēo his brōðor dōnde synne þe ne lǣdeþ tō dēaðe, hē sceal ascian, and god giefþ him līf for þǣm þā synnaþ ne lǣdende tō dēaðe. Þǣr is synn lǣdende tō dēaðe. Ic ne secge þæt hē scoldie ascian ymb þis.

17. Eall unrihtƿīsness is synn, and þǣr is synn ne lǣdende tō dēaðe.

18. Ƿē cnāƿaþ þæt hƿā of gode geboren is ne gylteþ, ac hē se þe ƿæs geboren fram gode healdeþ selfne, and se Yfela ne hnīgþ hine.

19. Ƿē cnāƿaþ þæt ƿē sind godes, and sēo fulle ƿoruld ligþ on þǣm geƿealde þæs Yfelan.

20. Ƿē cnāƿaþ þæt se Sunu godes gecomen hæfþ, and hafaþ gegifen ūs andgiet, sƿā þæt ƿē cnāƿaþ Hine þe sōþ is, and ƿē sind on Him se sōþ is, on His Suna Iesus Crīste. Þes is se sōða god, and ēcelīc līf.

21. Cildru, healdaþ ēoƿic selfe fram godgyldum.

title: Translation:Forme Ǣrendgeƿrit Iohannes


text:
The Adela

APPEAL from a decree of the District Court for the Southern District of Florida, condemning the Adela and her cargo as prize to the Quaker City, a war steamer of the United States during the blockade established by the Federal government of its southern coast during the late rebellion. The ship and cargo were apparently neutral property. The condemnation was for attempted breach of blockade.

Mr. Ashton, special counsel for the United States; Mr. A. F. Smith, contra.

The CHIEF JUSTICE delivered the opinion of the court.

title: The Adela


text: Talk:The Adela

title: Talk:The Adela


text:
The Adela/Opinion of the Court

It is claimed that the capture took place in British waters. It was made, in fact, near Great Abaco Island, which belongs to Great Britain; but the evidence is by no means convincing that it was made within three miles from the land. On the contrary, while it is not, perhaps, certain that the Adela was was without the line of neutral jurisdiction when first required to lay to by the Quaker City, it cannot be doubted that she had passed beyond it when she was actually captured. If, however, the capture had been actually made in neutral waters, that circumstance would not, of itself, prevent condemnation, especially, in a case of capture made in good faith, without intent to violate neutral jurisdiction, or knowledge that any neutral jurisdiction was in fact infringed, and in the absence of all intervention or claim on the part of the neutral government. 'It might,' as was observed in the case of The Sir William Peel, 'constitute a ground of claim by the neutral power whose territory had suffered trespass, for apology or indemnity. But neither an enemy, nor a neutral acting the part of an enemy, can demand restitution on the sole ground of capture in neutral waters.'

We come, then, to the grounds of condemnation in the District Court.

The evidence of neutral destination in the preparatory proof was contradictory. The master and several other witnesses declared that her destination was Nassan, and that they knew of no ulterior destination. The credibility of their statements was much impaired by their evasive character. The master, particularly, professed himself entirely ignorant of the nature of ownership of the cargo; declared that he had no bill of lading, or any other document relating to the merchandise on board, and knew nothing of the ownership of the vessel except what he derived from the ship's register. He was appointed master by one Burns, of Liverpool, who shipped the goods, whether for himself or as agent for other parties, and on whose real account, r sk, and profit, he did not know.

On the other hand, the chief officer stated distinctly that the Adela was intended to run the blockade, and would have entered Nassau as her first port, and, as he believed, Charleston as her next.

The character of her cargo, of which much the largest part consisted of Enfield rifles and other goods clearly contraband of war, and the destination of the letters found on board, many of which were directed to Charleston, Savannah, and neighboring places, strongly confirm the testimony of the chief officer.

Upon the whole evidence we are satisfied that the Adela and her cargo were, in fact, destined for a blockaded port, and that the decree of the District Court was correct. It is therefore.

AFFIRMED.

title: The Adela/Opinion of the Court


text: Talk:The Adela/Opinion of the Court

title: Talk:The Adela/Opinion of the Court