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Good v. Martin

ERROR to the Supreme Court of the Territory of Colorado.

This action was brought by Ida Martin, the defendant in error, in the District Court of Arapahoe County, Colorado Territory, against Parker B. Cheeney, William N. Shepard, and John Good, as joint makers of a certain promissory note executed there June 29, 1866, and payable sixty days thereafter to the order of Alexander Davidson, by whom it was, before maturity, indorsed to the plaintiff. The note was signed by the first two defendants, and, before its delivery to the payee thereof, indorsed in blank by Good.

Judgment by default was rendered against Cheeney and Shepard. Good appeared, and pleaded the general issue.

There was a judgment against all the defendants, which was affirmed by the Supreme Court of the Territory. Good sued out this writ of error.

As the other facts in the case, as well as the assignments of error, are fully set out in the opinion of the court, they are omitted here.

Mr. Richard T. Merrick and Mr. M. F. Morris for the plaintiff in error.

1. The rule of law is, that a party whose name appears on the back of a negotiable instrument, under circumstances like those connected with this note, is prima facie an indorser; that parol testimony is admissible to show in what character he signed, whether as surety, guarantor, or indorser; that the presumption of law does not arise to charge the party as surety, but favors his being regarded as an indorser; and that it is incumbent on the plaintiff who seeks to make him liable as a maker to rebut that presumption. The instruction of the court on this point was, therefore, erroneous. Rey v. Simpson, 22 How. 341; Story, Pr., sect. 133.

2. The exclusion of the defendants Good and Shepard as witnesses, because of their interest, was also erroneous.

The sixteenth section of the act of Congress of Feb. 28, 1861, 12 Stat. 176, organizing the Territory of Colorado, provides that all laws of the United States which are not locally inapplicable shall have the same force and effect within that Territory as elsewhere within the United States. The act of July 2, 1864, 13 id. 351, declaring that in the courts of the United States no witness shall be excluded in any civil action because he is a party to or interested in the issue tried, is not locally inapplicable; and the territorial court, though but a legislative court, is still a court of the United States, entirely liable to be controlled in all things by the laws of Congress. There is, therefore, no reason why the latter act should not have been applied to this case.

Again, it does not appear very plainly why the territorial act of 1870, rendering parties to suits competent witnesses, though passed after issue was joined in this case but before the trial took p ace, should not have governed. The legislative power may modify or change existing remedies without thereby impairing the rights of parties, and questions of practice are to be determined in accordance with the forms in force at the time of trial. Calder v. Bull, 3 Dall. 386; ''Baltimore, &c. Railroad Co. v. Nesbit'', 10 How. 395.

Mr. H. C. Alleman, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Good v. Martin


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Page:Syria, the land of Lebanon (1914).djvu/252

SYRIA, THE LAND OF LEBANON without any danger either to its own skull or to the other animals.

This ugly, noisy conveyance, which took us sixty miles in eleven hours, seemed quite out of place as a part of the Syrian landscape, and we noticed that it surprised the rest of the country as much as it had us. The camels were the most astonished. Along the road would be seen approaching a distant caravan, led by a white-bearded old man riding a ridiculously small donkey. Behind him, the long line of great animals walked and chewed in a slow rhythm, and looked out upon the world with a solemn gaze which made us flippant sons of a young republic feel like crawling away somewhere and hiding for a few thousand years until we had acquired a little mellowness.

But our mules represented the spirit of modern progress; on a down grade, it was progress at the dizzying speed of ten miles an hour. Now, viewed from the front, a camel looks like an overgrown chicken, and when he is startled he acts just like a flustered fowl. So we had the interesting experience of frightening half to death thirty of these great, clumsy creatures, who scampered and scattered over the road in every direction except the right one, ran into one another and knocked off carefully balanced loads, and tied up the connecting ropes into intricate knots which would challenge the genius of an Alexander to untangle, while a dozen or so stalwart [ 202 ]

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text: Talk:Good v. Martin

title: Talk:Good v. Martin


text:
Good v. Martin/Opinion of the Court

Decisions of a conflicting character exist as to the nature and legal effect of the obligation which a third person assumes who indorses his name in blank on a negotiable promissory note before the payee and before the instrument is delivered to take effect. Courts of justice, in some jurisdictions, hold that such a party is a second indorser, even though it be true that the payee may never indorse the instrument. Phelps v. Vischer, 50 N. Y. 69; Shafer v. Farmers' & Mechanics' Bank, 59 Penn. St. 144.

Even elementary rules show that he cannot be first indorser, for the reason that he is not payee; and it is well settled law that no one but the payee can sustain that relation to the maker, or put the note in circulation as a negotiable instrument. Essex Company v. Edmunds, 12 Gray (Mass.), 272; Moies v. Bird, 11 Mass. 436.

Three of the counts of the declaration are framed upon a promissory note, dated June 29, 1866, payable to Alexander Davidson or order sixty days after date, signed by the first two defendants; and the record shows that it was indorsed by Good, the other defendant, before it was indorsed by the payee, and before it was delivered to take effect as a negotiable instrument. His indorsement was in blank, and, of course, was without any written explanation as to its nature and intended effect.

Besides the three counts framed upon the promissory note, the declaration also contained the common counts, in which it was alleged that the defendants were indebted to the plaintiff in the sum of $2,000 for work and labor done and performed, and in the same sum for goods, wares, and merchandise sold and delivered, and in the same sum for money had and received, and other counts in indebitatus assumpsit.

Service was made; but the two defendants first named failed to appear, and were defaulted. Instead of that, Good appeared, pleaded the general issue, and went to trial. Evidence was introduced on both sides; and the verdict and judgment were for the plaintiff in the sum of $3,625.33. Exceptions were filed by Good; and he sued out a writ of error, and removed the cause into this court.

Only two of the exceptions are embodied in the assignment of errors, and those only will be re-examined: 1. That the court erred in instructing the jury that if they found from the evidence that the defendant wrote his name upon the back of the note before the delivery of the same to the payee, and that he did not then make any statement of his intention in so doing, he is presumed to have done so as the surety of the makers, and for their accommodation, to give them credit with the payee, and is liable for the payment of the note in this action, and that if that presumption is not rebutted by the evidence in the case, they must find for the plaintiff in the issue joined between her and Good. 2. That the court erred in excluding the testimony of the two defendants called as witnesses by Good.

Decided cases almost innumerable affirm the rule, that, if one not the promisee indorses his name in blank on a negotiable promissory note before it is indorsed by the payee, and before it is delivered to take effect as a promissory note, the law presumes that he intended to give it credit by becoming liable to pay it either as guarantor or as an original promisor. Bryant v. Eastman, 7 Cush. (Mass.) 111; Benthal v. Judkins, 13 Met. (Mass.) 265; Colbun v. Averill, 30 Me. 310.

Different courts, as remarked in that case, hold different views in respect to the question here involved; but all c ncur that such an act constitutes a contract which is to receive a reasonable and an available construction. Great conflict exists in the decided cases; but the better opinion is, that there are certain general rules and principles to be followed in the interpretation of such a contract, which, in the absence of other evidence, will lead to satisfactory results, even amid the conflicting decisions.

Beyond all doubt, the contract should be construed as it was at the time it was made. If made at the inception of the note, it is presumed to have been for the same consideration and a part of the original contract expressed by the note. If made subsequently to the date of the note and without a prior indorsement by the payee, it will be presumed that it was not made for the same consideration, and the party, if liable at all, will be regarded as a guarantor. Such a contract to guarantee the debt of a third person must be in writing, and there must be sufficient proof of the consideration. Brewster v. Silence, 8 N. Y. 207; Leonard v. Vredenburg, 8 Johns. (N. Y.) 29; Hall v. Farmer, 5 Den. (N. Y.) 484.

These remarks apply where the third person indorses the note before the payee; but, where such a person indorses the note after a prior indorsement by the payee, the law presumes it to have been done in aid of the negotiation of the note, and the party will be regarded as a subsequent indorser, the rule being, that, if the indorsement is without date, it will be presumed to have been made at the inception of the note. Ranger v. Cary, 1 Met. (Mass.) 369; Noxon v. De Wolf, 10 Gray (Mass.), 343; Collins v. Gilbert, 94 U.S. 753.

Irregularities of the kind in the execution of promissory notes are noticed by Judge Story in his work on Promissory Notes, and he says that the maker and such a party are both to be deemed original promisors, and the note a joint and several promissory note to the payee, although as between the maker and the other party they stand in the relation of principal and surety. Standard authorities, too numerous for citation here, are referred to by the author in support of the proposition. Story, Pr., sect. 58; Sylvester v. Downer, 20 Vt. 355; Lewis v. Harvey, 18 Mo. 74; 1 Parsons, Contr. (6th ed.) 243.

None will deny, it is presumed, that the cases cited sustain the proposition where the third person indorses his name in blank on the note at the time when it was made and before it was indorsed by the payee; and the same learned author admits that the rule would be otherwise if the party actually wrote his name at a subsequent period, unless it was done in compliance with an agreement made before the note was executed. Hawkes v. Phillips, 7 Gray (Mass.), 284; Leonard v. Wilder, 36 Me. 265; Champion v. Griffith, 13 Ohio, 228. Prior decisions of this court are to the same effect, as appears by the following citation. Rey et al. v. Simpson, 22 How. 341.

When a promissory note made payable to a particular person or order is first indorsed by a third person, such third person is held to be an original promisor, guarantor, or indorser, according to the nature of the transaction and the understanding of the parties at the time the transaction took place.

1. If he put his name in blank on the back of the note at the time it was made and before it was indorsed by the payee, to give the maker credit with the payee, or if he participated in the consideration of the note, he must be considered as a joint maker of the note. Schneider v. Schiffman, 20 Mo. 571; Irish v. Cutler, 31 Me. 536.

2. Reasonable doubt of the correctness of that rule cannot be entertained; but if his indorsement was subsequent to the making of the note and to the delivery of the same to take effect, and he put his name there at the request of the maker, pursuant to a contract of the maker with the payee for further indulgence or forbearance, he can only be held as guarantor, which can only be done where there is legal proof of consideration for the promise, unless it be shown that he was connected with the inception of the note.

3. But if the note was intended for discount, and put his name on the back of the note with the understanding of all the parties that his indorsement would be inoperative until the instrument was indorsed by the payee, he would then be liable only as a second indorser, in the commercial sense, and as such would clearly be entitled to the privileges which belong to such an indorser.

Considerable diversity of decision, it must be admitted, is found in the reported cases where the record presents the case of a blank indorsement by a third party, made before the instrument is indorsed by the payee and before it is delivered to take effect, the question being whether the party is to be deemed an original promisor, guarantor, or indorser. Irreconcilable conflict exists in that regard; but there is one principle upon the subject almost universally admitted by them all, and that is, that the interpretation of the contract ought in every case to be such as will carry into effect the intention of the parties, and in most cases it is admitted that proof of the facts and circumstances which took place at the time of the transaction are admissible to aid in the interpretation of the language employed. Denton v. Peters, Law Rep. 5 Q. B. 475.

Facts and circumstances attendant at the time the contract was made are competent evidence for the purpose of placing the court in the same situation, and giving the court the same advantages for construing the contract which were possessed by the actors. Cavazos v. Trevino, 6 Wall. 773.

Courts of justice may acquaint themselves with the facts and circumstances that are the subjects of the statements in the written agreement, and are entitled to place themselves in the same situation as the parties who made the contract, so as to view the circumstances as they viewed them, and so to judge of the meaning of the words and of the correct application of the language to the things described. Shore v. Wilson, 9 Cl. & Fin. 352; Clayton v. Grayson, 4 Nev. & M. 602; Addison, Contr. (6th ed.) 918; 2 Taylor, Evid. (6th ed.) 1035.

Evidence to show that the indorsement of the defendant in this case was made before the instrument was indorsed by the payee or delivered to take effect was admitted without objection; but it is not necessary to rest the decision upon that suggestion, as it is clear that the evidence would have been admissible, even if seasonable objection had been made to its competency. Hopkins v. Leek, 12 Wend. (N. Y.) 105.

Like a deed or other written contract, a promissory note takes effect from delivery; and, as the delivery is something that occurs subsequently to the execution of the instrument, it must necessarily be a question of fact when the delivery was made. Parol proof is, therefore, admissible to show when that took place, as it cannot appear in the terms of the note. 2 Taylor, Evid. (6th ed.) 1001; Hall v. Cazenove, 4 East, 477; Cooper v. Robinson, 10 Mee. & W. 694.

Opposed to that the suggestion is, that, if a holder produces a note having a blank indorsement of one not the payee, the presumption is that it was made at the inception of the instrument. Childs v. Wyman, 44 Me. 433. Grant that, and still it is a mere presumption of fact, which may be rebutted and controlled by parol proof, that it was not there when the note was delivered, or that it was made at a subsequent date. Essex Company v. Edmunds, 12 Gray (Mass.), 273.

Third persons indorsing a negotiable promissory note before the payee, and before it is delivered to take effect, cannot be held as first indorsers, for the reason that they are not payees; and no party but the payee of the note can be the first indorser, and put the instrument in circulation as a commercial negotiable security. Such a third party may, if he chooses, take upon himself the limited obligation of a seco d indorser; but, if he desire to do so, he must employ proper terms to signify that intention, the rule being that a blank indorsement supposes that there are no such terms employed, and that he is liable either as promisor or guarantor.

Blank indorsements may be filled up to express the legal contract; and the true commercial rule is, that, when the blank is filled the instrument shall have the character of a written instrument, and not depend on parol proof to give it effect, nor be subject to be altered or contradicted by parol proof. Indorsements of the kind are or may be valid, as the law presumes that such an indorser intended to be liable in some form. It does not charge him as indorser, unless the terms employed are proper to express such an intent; but if any one not the payee of a negotiable note, or, in the case of a note not negotiable, if any party writes his name on the back of the note, at or sufficiently near the time it is made, his signature binds him in the same way as if it was written on the face of the note and below that of the maker; that is to say, he is held as a joint maker, or as a joint and several maker, according to the form of the note. Cases also arise where the signature of a third person is subsequent to the making and delivery of the note, and in that case the third person, as to the payee, is not a maker, but a guarantor, and his promise is void if without consideration; but the consideration may be the original consideration if the note was received at his request and upon his promise to guarantee the same, or if the note was made at his request and for his benefit. 1 Parsons, Contr. (6th ed.) 244.

Judge Story says that the interpretation ought to be just such as carries into effect the true intention of the parties, which may be made out by parol proof of the facts and circumstances which took place at the time of the transaction. If the party intended at the time to be bound only as guarantor of the maker, he shall not be an original promisor; and, if he intended to be liable only as a second indorser, he shall never be held to the payee as first indorser. Story, Pr., sect. 479.

Where the evidence on these points is doubtful, obscure, or totally wanting, courts of law adopt rules of interpretation as furnishing presumptions as to the actual intention of the parties. Difficulty in that regard can never arise where the indorsement is special, if it contains words proper to show that the party intended to be liable only as second indorser. Where the indorsement is in blank, if made before the payee, the liability must be either as an original promisor or guarantor; and parol proof is admissible to show whether the indorsement was made before the indorsement of the payee and before the instrument was delivered to take effect, or after the payee had become the holder of the same; and, if before, then the party so indorsing the note may be charged as an original promisor, but if after the payee became the holder, then such a party can only be held as guarantor, unless the terms of the indorsement show that he intended to be liable only as second indorser, in which event he is entitled to the privileges accorded to such an indorser by the commercial law.

Whether regarded as a second indorser or an original promisor, it is not necessary to allege or prove any other than the original consideration; but, if it be attempted to charge the party as a guarantor, a distinct consideration must appear. Essex Company v. Edmunds, 12 Gray (Mass.), 272; Brewster v. Silence, 7 N. Y. 207.

Viewed in the light of these suggestions, it is clear that the first assignment of error must be overruled.

Territorial courts are not courts of the United States, within the meaning of the Constitution, as appears by all the authorities. Clinton et al. v. Englebrecht, 13 Wall. 434; Hornbuckle v. Toombs, 18 Wall. 648. A witness in civil cases cannot be excluded in the courts of the United States because he or she is a party to, or interested in, the issue tried; but the provision has no application in the courts of a Territory where a different rule prevails. 13 Stat. 351; Bowman v. Noyes, 12 N. H. 302; Bridges et al. v. Armour et al., 5 How. 91; Bailey v. Knapp, 19 Penn. St. 192; Halz v. Snyder, 26 id. 511.

Suppose that is so, then the two defendants called as witnesses were rightly rejected as witnesses. 13 Stat. 351.

Special reference is made to the territorial act of the 11th of February, 1870, as inconsistent with the ruling of the court; but that act contains the following proviso: that the act 'shall not apply to cases pending at the passage thereof in the district courts, on appeals from justices of the peace, nor to cases at issue at the passage of the same in the district and probate courts.' Sufficient appears to show that the case before the court was at issue in the court below one whole year before the passage of that act.

Tested by these considerations, it is clear that the second assignment of error must also be overruled, and that there is no error in the record.

Judgment affirmed.

title: Good v. Martin/Opinion of the Court


text: Talk:Good v. Martin/Opinion of the Court


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Buffington v. Harvey

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

The facts are stated in the opinion of the court.

Mr. Thomas J. Henderson for the appellant.

No counsel appeared for the appellee.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Buffington v. Harvey


text: Talk:Buffington v. Harvey

title: Talk:Buffington v. Harvey


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Buffington v. Harvey/Opinion of the Court

This is an appeal from a decree sustaining a demurrer to a bill of review, and dismissing the bill, the effect of which is to leave the decree in the original cause in full force and effect. The only questions open for examination on this appeal are such as were open on the bill of review, and these, as shown in Whiting et al. v. The Bank of United States, 13 Pet. 6, and Putnam v. Day, 22 Wall. 60, were only such as arose upon the pleadings, proceedings, and decree, without reference to the evidence in the cause. The decision of the court upon the issues of fact, so far as they depend upon the proofs, are conclusive on a bill of review. It was error, therefore, to insert in the bill, as was done in this case, the evidence taken in the original cause. Had this error been specially assigned, the demurrer might have been sustained on that ground alone, or the evidence might have been stricken out of the bill as surplusage, on motion. But as the demurrer was a general one, if the bill of review showed any substantial error in the record, the demurrer should have been overruled, and the original decree should have been opened or reversed. 2 Smith, Ch. Pr. 56, 63. A general demurrer must be overruled if the pleading demurred to contain any good ground to support it. It was the duty of the court below, therefore, to inquire whether the record, exclusive of the evidence, contained any substantial error pointed out by the bill of review. 2 Smith, Ch. Pr. 57. The result to which the court came was that no such error existed; and therefore the demurrer was sustained, and the bill of review was dismissed.

The errors assigned to this decree are five: 1st, Because the court sustained the demurrer; 2d, because it entered a decree for the complainant; 3d, because it overruled a petition for a rehearing; 4th, because it found the issues for the complainant; 5th, because it overruled a motion to dissolve the injunction. The three last assignments are totally inadmissible. The granting of a rehearing is always in the sound discretion of the court, and, therefore, granting or refusing it furnishes no ground of appeal. Steines v. Franklin County, 14 Wall. 15. The granting or dissolution of a temporary injunction stands on the same footing. The granting of a permanent injunction is part of the final decree, and abides the fate of the decree itself. And as to the finding of the issues for the complainant, that, as we have seen, is not a matter that can be examined on a bill of review. The only assignm nt, therefore, which we can recognize, is the general one, that the court erred in sustaining the demurrer to the bill of review, and entering a decree for the complainant.

We must look, then, at the bill of review, and see whether it points out and demonstrates any substantial error in the pleadings, proceedings, or decree, supposing the issues of fact to have been properly passed upon by the court. In order to understand the force and effect of this bill, however, it will be necessary to state the nature and objects of the original suit.

The bill in the original cause was filed on the 20th of March, 1872, by Harvey, the present appellee, as assignee in bankruptcy of one Isaac Fitzgerrel, against Titus Buffington, the appellant, to set aside a conveyance of real and personal property made by the bankrupt to Buffington on the thirtieth day of December, 1867. It is alleged that this conveyance was made by the bankrupt in contemplation of insolvency, to put his property out of his hands, so as to hinder and delay his creditors, and to defeat the operation of the bankrupt law; that it was a pretended sale, without any real consideration, though Buffington's notes were given therefor at long dates; and various circumstances with regard to the bankrupt remaining in possession of the property and using and disposing of it as his own, are detailed as evidence of the fraudulent intent.

To this bill the defendant filed an answer, in which he insisted on the bona fides of the transaction, endeavored to explain the circumstances charged in the bill as evidence of fraud, and alleged that, on a petition to have Fitzgerrel declared a bankrupt, an injunction had been issued against the defendant in April, 1868, prohibiting him from selling or disposing of the goods, but was afterwards dissolved, and he supposed the question of his title was settled. This answer being excepted to, a second and third answer were filed by the defendant, going more into detail of the circumstances of his connection with the property, and stating that the injunction against him was dissolved after a full hearing in June Term, 1868.

The plaintiff filed a general replication, the cause went to proofs, and a large amount of evidence was taken. A final decree was made on the 3d of February, 1873, by which the conveyances in question were set aside and vacated, and the defendant was directed to deliver up possession of the lands, and to pay the sum of $3,891.88 to the assignee, besides costs. A motion was made for a rehearing, and was refused, and the bill of review was filed in October, 1873.

As before stated, this bill not only sets forth the pleadings, proceedings, and decree in the original suit, but all the evidence taken therein. The only errors assigned in the bill relate to the facts as supposed to be evinced by the evidence. After stating the pleadings, evidence, and decree, the bill proceeds thus:--'Your orator would further represent unto your Honor that he believes that there is manifest error in finding the issues for the complainant on the foregoing evidence; that said evidence is insufficient to sustain the said decree because of want of proof to sustain the bill, and that the bill should have been dismissed; also, because the evidence shows that more than two years had elapsed from the making of the deed and before the bill was filed, and that, therefore, by the Statute of Limitations, the bill could not be sustained.

'And your orator would further assign for error the fact that the decree in this cause made gives a judgment against the defendant for a larger sum of money by over $1,000 than there are debts proven against the bankrupt.

'Also, the fact, shown by the evidence of Barkley and Forth, that they had known Fitzgerrel for more than ten years, and that they had no reason to suppose that he was insolvent or contemplated insolvency, corroborating the evidence of Buffington, that he had no reasonable cause to believe the said Fitzgerrel to be insolvent when he purchased the property.'

These are all the errors assigned in the bill. A bare statement of them is enough to show that the bill of review was totally misconceived. It attempted to review the decision of the court solely upon the facts as evinced by the evidence, which, as we have seen, is entirely inadmissible on such a bill.

The appellant, in his brief, insists upon the lapse of more than two years after the cause of action accrued before the original bill was filed, relying upon the period of limitation prescribed in the second section of the bankrupt law. Rev. Stat. 5057. But the record does not show, independently of the evidence (and we do not know that it appears even by that), when the cause of action did accrue. The bill shows, it is true, that the conveyance alleged to be fraudulent was made in December, 1867, and the bill was not filed till March, 1872; but that is not decisive of the question. The cause of action does not accrue to the assignee until his appointment; and when the assignee in this case was appointed does not appear. The bill says that the present assignee was appointed in 1871, which is within the time time of limitation. If there was a prior assignee, the time of his appointment is not shown. Besides, the defendant did not set up the Statute of Limitations in his answer. We hear of this defence for the first time in the bill of review.

The appellant also insists that the original bill was defective for want of parties in not making the bankrupt a party. This objection is not even made in the bill of review, and was not made in the original cause; and, if it had been made, in our judgment it would not have been a valid objection. The bankrupt had no interest to be affected except what was represented by his assignee in bankruptcy, who brought the suit. As to the bankrupt himself, the conveyance was good; if set aside, it could only benefit his creditors. He could not gain or lose, whichever way it might be decided.

To avoid misapprehension in what we have said with regard to the proceedings on a bill of review, it will be observed that in this case the bill is a pure bill of review, containing no new matter, such as an allegation of newly discovered evidence, or any thing else of an original character admissible in such a bill. What we have said is specially applicable to the case before us. Bills containing new matter, of course, are in the nature of original bills, so far forth as such new matter is concerned, and admit of an answer and a replication, and proceedings appertaining to an issue of fact; but only as it relates to the truth and sufficiency of such new matter, and the propriety of its admission for the purpose of opening the decree in the original cause. If decided to be founded in fact, sufficient to affect the decree, and properly admissible, the original decree will be opened, and, if necessary, a new hearing had; but, if not so found, the bill of review will be dismissed, and the original decree will stand. But even in this case, as well as in that of a pure bill of review, the evidence in the original cause cannot be discussed for the purpose of questioning the propriety of the original decree as based on such evidence. It can only be adverted to, if at all, for the purpose of showing the relevancy and bearing of the new matter sought to be introduced into the cause.

Decree affirmed.


text: Talk:Buffington v. Harvey/Opinion of the Court


text:
New Jersey v. Yard

ERROR to the Court of Errors and Appeals in and for the State of New Jersey.

The Morris and Essex Railroad Company was, by an act of the legislature of New Jersey, passed Jan. 29, 1835, created a corporation.

The fifteenth section of the charter enacted, that, as soon as the net proceeds of said railroad amounted to seven per cent on its costs, the corporation should pay to the treasurer of the State a tax of one-half of one per cent on the cost of said road, to be paid annually thereafter on the first Monday of January of each year; provided, that no other tax or impost should be levied or assess d upon the corporation.

The twentieth section reserved to the legislature the right to alter, amend, or repeal the act, whenever it should think proper.

A supplement to the charter, passed March 2, 1836, gave power to build a branch and lateral roads, and repealed the twentieth section of the original charter; but reserved the right of the legislature to alter or amend the supplement, or the act to which it is a supplement, whenever the public good may require it.

On the 14th of February, 1846, a general act relating to corporations was approved, which enacted that the charter of every corporation which should thereafter be granted by the legislature should be subject to alteration, suspension, and repeal, in the discretion of the legislature.

On March 28, 1862, a general tax act was approved, the eighth section of which enacts that all private corporations of the State, except those which, by virtue of any irrepealable contract in their charters or other contracts with the State, are expressly exempted from taxation, should be and were thereby required to be respectively assessed and taxed at the full amount of their capital stock paid in, and accumulated surplus.

Sect. 13 enacts that the real estate of private corporations situate within the State shall be assessed against said corporation in the township or ward in which it is located, in the same manner as the real estate of individuals; and the amount of such assessment shall be deducted from the amount of the capital stock, &c.

The twenty-first section repeals all acts and parts of acts, whether special or local, or otherwise, inconsistent with the provisions of the act.

Another supplement was approved on the 23d of March, 1865. It authorizes a branch road through Boonton and to Paterson; and for that purpose empowers the company to exercise all the powers and franchises given by the original act and supplements, subject, however, to all the restrictions, limitations, and conditions of said original act and supplements which may be applicable to the powers and franchises conferred by this supplement.

The third section enacts that the tax of one-half of one per cent, provided by the said original act of incorporation to be paid by said company to the State whenever the net earnings of the company amounted to seven per cent upon the cost of the road, shall be paid at the expiration of one year from the time when the road of the company shall be open nd in use to Phillipsburgh, and annually thereafter; which tax shall be in lieu and satisfaction of all other taxation or imposition whatsoever by or under the authority of the State, or any law thereof: provided, that the section shall not go into effect or be binding upon the company until it, by an instrument duly executed under its corporate seal and filed in the office of the secretary of State, shall have signified its assent hereto, which assent shall be signified within sixty days after the passage of the act, or the act shall be void.

The fifth section enacts that the act shall take effect immediately.

In due time, the company filed a paper under its seal, bearing date April 24, 1865, reciting said third section, and setting forth that the company had received a copy of the act, and had considered it. It then declares that, in consideration of the terms and conditions of the said supplement, and more especially of the third section thereof, the company has assented, and does thereby assent, to the said act; and has agreed, and does thereby agree, to be subject to the provisions of the said act, and to pay the tax therein named, as therein specified.

On the 5th of March, 1867, another supplement to the charter was approved, which, after reciting that the company had lately extended its railroad from Hackettstown to Phillipsburgh, gives power to increase its stock and straighten its road, and declares that the company for this purpose shall be invested with all the powers conferred by the charter and supplements, subject to the duties and liabilities hereby imposed. It enacts that no tax by or under the authority of the State shall be imposed upon any property purchased, held, or used by said company for the purposes of its charter, or any of the supplements thereto; except the tax of one-half of one per cent on the cost of its road, which, by the said charter and the supplement thereto approved on the twenty-third day of March, 1865, was required to be paid by said company in lieu of all other taxes, any act to the contrary notwithstanding.

No formal acceptance of this act was provided for or given.

On the 2d of April, 1873, an act, entitled 'An Act to establish just rules for the taxation of railroad corporations, and to induce their acceptance and uniform adoption,' was passed. The preamble recites as follows:--

'Whereas, for the encouragement of railroad enterprise, laws creating and regulating railways in this State usually provide for the payment by them, in consideration of their chartered privileges, of a fixed rate upon the capital stock, or the cost of their works, in lieu of all other public impositions whatever; that it is nevertheless contended that the property of such corporations, being largely acquired for or through the growth and extension of their prosperity, should contribute to the charges and expenses essential for municipal and county purposes; that it is desirable, in order to the avoidance of litigation and future dissatisfaction, that such municipal and county taxation shall be authorized, and that the same shall be permanently fixed and regulated.'

Sect. 1 then enacts that all taxation upon all railroad companies occupying and using railroads in the State, whether as lessees or otherwise, shall hereafter be made as follows: First, Such companies shall pay upon the cost, equipment, and appendages of said railroads, respectively, a State tax after such rate of taxation as may have heretofore been fixed by law upon such companies, or, in default thereof, after the rate of one-half of one per cent upon such cost. Second, A tax of one per cent on the value of the corporations' real estate (except the track, roadbed and ten acres at the termini), for the benefit of the counties and municipalities in which it lies.

The ninth section makes the corporation liable for city improvements beneficial to such property, for the purposes for which it is used, except that made subject to State tax, but provides that the laws relating in other respects to such city improvements be not thereby altered.

The act then recites that 'whereas certain railroad corporations, owning or occupying railroads in this State, claim exemption from all taxation, whether State, county, or municipal, further than is provided for by their charters, or by special laws for their benefit now existing, which claims, even if legal, subject said corporations to public ill-will, and make it their interest to forego the same and agree to the scheme of taxation hereby established.'

Sect. 10 then enacts that any such railroad corporation may, within six months from the approval of the act, make and execute, under its common seal and the signature of its president, and file in the office of the secretary of State, a declaration, in writing, surrendering all claim to exemption from taxation by it heretofore had or made, and accepting the provisions of this act in lieu thereof.

Sect. 11 repeals all acts and parts of acts inconsistent with said act, and declares that the act shall take effect immediately.

Yard, the tax commissioner provided for in the act, made the statement and valuation required by it with respect to the Morris and Essex Railroad Company's real estate. By this it appears that its real estate, to the amount of $2,089,520, is subject to a tax of one per cent for the years 1873, 1874, and 1875, for the benefit of the counties and municipalities where it is situate.

This valuation was removed to the Supreme Court of New Jersey by certiorari; and the reasons assigned for setting it aside were four: 1st, The commis ioner had no power to make the valuation. 2d, The act of 1873 does not apply to the Morris and Essex Railroad Company. 3d, If it does apply, it impairs a contract between the State and the company. 4th, General illegality and violation of vested rights.

The contract was, it is alleged, created by the company's acceptance under its seal of the said third section of the supplement to its charter, approved March 23, 1865.

The Supreme Court rendered a judgment sustaining the assessment.

That judgment having been affirmed by the Court of Errors and Appeals, the State of New Jersey, on the prosecution of the company, brought the case here.

Mr. Frederick T. Frelinghuysen and Mr. J. G. Shipman for the plaintiff in error.

The supplements of 1865 and 1867, and the acceptance by the Morris and Essex Railroad Company, constitute an irrepealable contract between it and the State. State v. Miller, 30 N. J. L. 368; 2 Kent, Com. 306; Gordon v. Appeal Tax Court, 3 How. 333; Commonwealth v. Essex Company, 13 Gray (Mass.), 239; Miller v. The State, 15 Wall. 478; State v. James, 4 Mo. 570; Millin v. New York & Erie Railroad Co., 21 Barb. (N. Y.) 513; Commonwealth v. Canal Company, 66 Pa. 41; Zabriski v. Hackensack Railroad Co., 18 N. J. Eq. 178; Railroad v. Teazie, 39 Me. 587; City of Erie v. Erie Canal Co., 59 Pa. 174; Story v. Jersey & Bergen Point Railroad Co., 16 N. J. Eq. 13; State v. Person, 32 N. J. L. 134; Tomlinson v. Jessup, 15 Wall. 454; Fletcher v. Peck, 6 Cranch, 87; State v. Jersey City, 31 N. J. L. 576; The Home of the Friendless v. Rouse, 8 Wall. 430; Humphrey v. Pegues, 16 id. 244; McGee v. Mathias, 4 id. 156; Jefferson Branch Bank v. Skelly, 1 Black, 439; New Jersey v. Wilson, 7 Cranch, 164; State Bank of Ohio v. Knoop, 16 How. 369; Cooley, Const. Lim. 279-281; McGavisk v. The State, 34 N. J. L. 509.

If the contract be repealable, the legislature did not, by the act of 1873, in fact, repeal it; nor did it so intend. Erie Railway Co. v. The State, 31 N. J. L. 531; Constitution of New Jersey, art. 4, sect. 7; State v. Minton, 3 Zab. (N. J.) 529; State v. Brannin, 2 id. 485; Mechanics' & Traders' Bank v. Bridge and Boyer, 30 N. J. L. 113; State v. Miller, supra, and 31 N. J. L. 529; State v. Jersey City, supra.

Mr. Robert Gilchrist, contra.

The act of April 2, 1873, subjects to the new taxes the Morris and Essex Railroad Company, unless it has an irrepealable contract with the State. Proprietors of Bridges v. Hoboken Company, 2 Beas. 98; State v. Miller, 30 N. J. L. 368; 31 id. 529.

The act of 1865 and its acceptance do not create an irrepealable contract as to taxation; nor does that of 1867. The original act incorporating the company, and the subsequent amendments and supplements, are to be treated as one act of legislation; and the act of March 2, 1836, granting a supplement to the charter, which the company accepted, expressly reserved the right of amendment or repeal. Story and Washington, JJ., in 4 Wheat. 684; State v. Mayor, 31 N. J. L. 580; Newark City Bank v. The Assessor, 30 id 22; State v. Bergen, 34 id. 439; State v. Douglass, id. 84; State v. Person, 32 id. 134; Morris Canal v. State, 4 Zab. (N. J.) 70; Delaware & Raritan Canal and Camden & Amboy R. & T. Co. v. Raritan & Delaware Bay Railroad Co., 16 N. J. Eq. 321; Bank of Utica v. Magher, 18 Johns. (N. Y.) 344; Oleson v. Green Bay Company, 36 Wis. 389; Tomlinson v. Jessup, 15 Wall. 454; Tomlinson v. Branch, id. 460; Humphreys v. Peques, 16 id. 244; Walker v. Whitehead, id. 314; Trask v. Maguire, 18 id. 391; North Missouri Railroad v. Maguire, 20 id. 46; United States v. Herron, id. 251; Tucker v. Ferguson, 22 id. 527; Iron Bank v. Pittsburgh, 37 Pa. 349; Morgan v. Louisiana, 93 U.S. 217; West Wisconsin Railway Co. v. Supervisors, id. 595; Att'y-Gen. v. Lupton Board, 2 Jur. N. S. 180; Cooley, Const. Lim. 281.

Mr. JUSTICE MILLER delivered the opinion of the court.

title: New Jersey v. Yard


text: Talk:New Jersey v. Yard

title: Talk:New Jersey v. Yard


text:
New Jersey v. Yard/Opinion of the Court

This is a writ of error to the Court of Errors and Appeals of the State of New Jersey.

The plaintiff invokes the jurisdiction of this court, on the ground that an act of the legislature of that State, approved April 2, 1873, concerning taxation of railroad corporations, impairs the obligation of a contract between the State and the plaintiff, found in an act of March 23, 1865, and the written acceptance of that act by the company, dated April 24 of that year.

The third section of the act of 1865 reads as follows:--

'Be it enacted, that the tax of one-half of one per cent provided by their said original act of incorporation, to be paid by the said company to the State whenever the net earnings of the said company amount to seven per cent upon the cost of the road, shall be paid at the expiration of one year from the time when the road of the said company shall be open and in use to Phillipsburgh, and annually thereafter, which tax shall be in lieu and satisfaction of all other taxation or imposition whatsoever, by or under the authority of this State, or any law thereof: Provided, that this section shall not go into effect or be binding upon the said company until the said company, by an instrument duly executed under its corporate seal, and filed in the office of the secretary of State, shall have signified its assent hereto, which assent shall be signified within sixty days after the passage of this act, or this act shall be void.'

The act of 1873 imposed a more burdensome tax than this on all railroad companies not protected by irrepealable contracts; and the Court of Errors held that this statute was applicable to the plaintiff, because the contract of 1865, which had been formally accepted by the company, was repealable by the legislature of the State.

The single question, therefore, for our consideration is, whether the act of March 23, 1865, and its acceptance by the Morris and Essex Railroad Company, constituted a contract which could not be impaired by any subsequent legislation of the State.

The Court of Errors decided, that, while the act of 1865 was a contract, it must be taken in connection with other legislation of the State on that subject, by which the legislature reserved the right to alter and amend the contract, and that this right entered into and became a part of it; therefore, the exercise of this right did not impair its obligation.

The solution of the question here presented must depend, first, upon an inquiry into this supposed reservation of power; and, secondly, into the essential character of the contract of 1865.

The case before us differs from those in which, by the Constitution of some of the States, this right to alter, amend, and repeal all laws creating corporate privileges becomes an inalienable legislative power. The power thus conferred cannot be limited or bargained away by any act of the legislature, because the power itself is beyond legislative control. The right asserted in this case to amend or repeal legislative grants to corporations, being itself but the expression of the will or purpose of the legislature for one particular session or term of the State of New Jersey, cannot bind any succeeding legislature which may choose to make a grant or a contract not subject to be altered or repealed; or, if any succeeding legislature to that of 1846, which enacted that 'the charter of every corporation which shall hereafter be granted by the legislature shall be subject to alteration, suspension, and repeal in the discretion of the legislature,' shall grant a charter or amend a charter, declaring in the act that it shall not be subject to alteration and repeal, the former act is of no force in that ca e. So it can by a general law repeal this general reservation of the right to repeal, and all special reservations in separate charters. It follows that, unlike the constitutional provision in other States, it is in New Jersey a question, in every case of a contract made by the legislature, whether that body intended that the right to change or repeal it should inhere in it, or whether, like other contracts, it was perfect, and not within the power of the legislature to impair its obligation.

The Morris and Essex Railroad Company was chartered by an act of the legislature, Jan. 29, 1835. Sect. 16 enacts that, 'as soon as the net proceeds of said railroad shall amount to seven per cent (in any one year) upon its cost, the said corporation shall pay to the treasurer of the State a tax of one-half of one per cent on the cost of said road, to be paid annually thereafter on the first Monday of January of each year; provided, that no other tax or impost shall be levied or assessed.'

By sect. 20, 'the legislature reserve to themselves the right to alter, amend, or repeal this act, whenever they think proper.'

The next succeeding legislature, in a supplement to the charter, repealed sect. 20, and substituted this language: 'The legislature reserve to themselves the right to alter or amend this supplement, or the act to which this is a supplement, whenever the public good may require it.' It is this last clause which counsel insist became, by operation of law, a part of the contract of the act of 1865, concerning taxation, already quoted.

The argument is that the original charter, and all subsequent amendments and supplements, are to be treated merely as parts of one act, and that this reserve of the right to alter or amend became a part of every new law which has reference to that railroad company.

In support of this proposition, the cases of Newark City Bank v. The Assessor, 30 N. L. L. 22, and State v. Bergen, 34 id. 439, are cited.

They announce the general principle that a charter and its amendments are to be considered as acts in pari materia in construing them, and they do little more. The precise point held is, that a city charter, being declared to be a public act, supplements and amendments to it are also to be treated as public acts. But this falls short of establishing the principle that a reservation in a charter to a private corporation, of the right to repeal or amend it, shall extend to every subsequent amendment of the charter. It is not easy to see why such a provision should be extended beyond the terms in which it is expressed; and all the force which properly belongs to it is given when the exemption from the constitutional provision against impairing the obligation of contracts is extended as far as the language of the exemption justifies, and it should be extended no further by implication. The language in the statute we are construing covers the supplement of 1836 and the original act, and nothing more,-'the right to alter or amend this supplement, or the act to which this is a supplement,'-leaving future supplements to make the same reservation, if the legislature so intends.

Sect. 6 of the general act of 1846 is by its terms limited to charters of corporations granted after its passage; and it requires a very strong implication to make it applicable to amendments to charters in existence before its passage, though the amendments were executed subsequently.

But, as we have already said, since the legislature which passed the act of 1865 had the power to make a contract which should not be subject to repeal or modification by one of the parties to it without the consent of the other, the main question here is, Did they intend to make such a contract?

The principal function of a legislative body is not to make contracts, but to make laws. These laws are put into a form which, in all countries using the English language and inheriting the English common law, is called a statute.

Unless forbidden by some exceptional constitution l provision, the same authority which can make a law can repeal it. The Constitution of the United States has imposed such a limitation upon the legislative power of all the States, by declaring that no State shall pass any law impairing the obligation of a contract. The frequency with which this court has been called on to declare State laws void, because they do impair the obligation of contracts, shows how very important and far-reaching that provision is.

It may safely be said that in far the larger number of cases brought to this court under that clause of the Constitution, the question has been as to the existence and nature of the contract, and not the construction of the law which is supposed to impair it; and the greatest trouble we have had on this point has been in regard to what may be called legislative contracts,-contracts found in statute laws of the State, if they existed at all. It has become the established law of this court that a legislative enactment, in the ordinary form of a statute, may contain provisions which, when accepted as the basis of action by individuals or corporations, become contracts between them and the State within the protection of the clause referred to of the Federal Constitution.

The difficulty in this class of cases has always been to distinguish what is intended by the legislature to be an exercise of its ordinary legislative function in making laws, which, like other laws, are subject to its full control by future amendments and repeals, from what is intended to become a contract between the State and other parties when the terms of the statute have been accepted and acted upon by those parties. This has always been a very nice point; and, when the supposed contract exists only in the form of a general statute, doubts still recur, after all our decisions on that class of questions.

These doubts are increased when the terms of the statute relate to a matter which is in its essential nature one of exclusive legislative cognizance, and which at the same time requires money or labor to be expended by individuals or corporations. In such cases, the legislature may be supposed to be merely exercising its power of regulating the burdens which are to be borne for the public service, in which case it could be modified from time to time as legislative discretion might determine; or it might be a contract founded on a fair consideration moving from the party concerned to the State, and which in that case would be beyond the power of the State to impair. Statutes fixing the taxes to be levied on corporations, partake, in a striking manner, of this dual character, and require for their construction a critical examination of their terms, and of the circumstances under which they are created.

The writer of this opinion has always believed, and believes now, that one legislature of a State has no power to bargain away the right of any succeeding legislature to levy taxes in as full a manner as the Constitution will permit. But, so long as the majority of this court adhere to the contrary doctrine, he must, when the question arises, join with the other judges in considering whether such a contract has been made.

In the case now under consideration, it is conceded on all hands that the act of 1865 was a contract for a tax of one-half of one per cent per annum on the cost of the Morris and Essex Railroad, and no more. But counsel for defendant says the contract was repealable; that the legislature of its own volition could impose other and more burdensome taxes, at its discretion; that it was a contract so long as the legislature of New Jersey was satisfied with it, and no longer. It is conceded, also, that this construction of it cannot be sustained, unless we are bound to import into it either the reservation clause of the act of 1836, or what is called the interpretation act of 1846. We have already shown how little reason there is for doing this on general principles of construction. We think it still clearer that it cannot be done, because it § inconsistent with the legislative intent in passing the act of 1865.

1. The legislature was not willing to rest this contract in the usual statutory form alone, depending for its validity as a contract upon some action of the corporation under it to bind it to its terms; but they required of the company a formal written acceptance within sixty days, or else it became wholly inoperative. The company duly executed this acceptance. There was, then, the complete formal, written instrument evidencing this contract, signed by the presiding officers of the two houses of the New Jersey legislature, and the governor, for one party, and the president and secretary and seal of the railroad company, of the other party. It does seem as if the legislative intention was to make a contract in the same manner, and on the same terms of equal obligation, as other contracts are made, and not to pass a statute which it could repeal or amend the day after it was signed by the parties.

2. There was a well-understood subject of contract. The corporation wished authority to build a branch road or roads, with favorable route, and power to acquire right of way; and the State wished the vexed question of the right to tax the corporation to be settled. For the company denied the right of the State to tax them under their charter, until the road paid them a net income of seven per cent per annum on its cost.

The legislature said, If you will consent to pay the one-half of one per cent tax as originally agreed, and commence to do this within one year from the time the road shall be open and in use to Phillipsburgh, we will authorize an increase of ten millions of your capital stock and the franchises you seek as to the branch roads, and will agree that the tax shall be fixed at one-half of one per cent. Here was a subject of disagreement adjusted, additional rights granted, and the tax fixed, both as to its rate and the time of commencement.

Can it be believed that it was intended by either party to this contract that, after it was signed by both parties, one was bound for ever, and the other only for a day? That it was intended to be a part of the contract that the State of New Jersey was, at her option, to be bound or not? That there was implied in it, when it was offered to the acceptance of the company, the right on the part of the legislature to alter or amend it at pleasure? If the State intended to reserve this right, what necessity for asking the company to accept in such formal manner the terms of a contract which the State could at any time make to suit itself?

3. The language used by the legislature is inconsistent with the right claimed.

'Which tax (one-half of one per cent) shall be in lieu and satisfaction of all other taxation or impositions whatsoever by or under authority of this State, or any law thereof.' Is there here to be implied 'except such laws as may hereafter be enacted'? Such a provision would be to nullify the whole contract. How could the tax be in lieu and satisfaction of all other taxation, if other taxes might be imposed next day? or how can it be said to be in satisfaction of all taxes whatsoever under authority of the State, if the State could immediately impose another and more burdensome tax?

We admit the force of the doctrine, that, when it is asserted that a State has bargained away her right of taxation in a given case, the contract must be clear, and cannot be made out by dubious implications.

But of the existence of the present contract there is no doubt. Its meaning and its terms are clear enough, and, taken alone, no one denies but that it is a contract which would be protected by the Constitution of the United States. The implication is of a right to revoke it, and comes from the other quarter, and is one which we do not think exists by fair construction, and which we do not feel at liberty to import into the contract to defeat its manifest purpose.

Judgment reversed, and cause remanded for further proceedings in conformity to this opinio.

MR. JUSTICE BRADLEY took no part in the consideration of this case.

title: New Jersey v. Yard/Opinion of the Court


text: Talk:New Jersey v. Yard/Opinion of the Court


text:
Aetna Fire Insurance Company v. Boon

ERROR to the Circuit Court of the United States for the District of Connecticut.

This was an action commenced in September, 1868, to recover $6,000, the amount of a policy of insurance, bearing date Sept. 2, 1864, issued to the plaintiffs below by the AEtna Fire Insurance Company of Hartford, Conn., for one year, upon certain goods, wares, and merchandise then in their store at Glasgow, Mo., which were destroyed by fire Oct. 15, 1864.

By written stipulation, a jury was waived, and the issues of fact tried by the court.

On April 28, 1874, the court filed a written opinion declaring their finding of facts upon the evidence, with their conclusions of law thereon, and rendered judgment accordingly for the plaintiffs. No other findings of fact were had, nor was a bill of exceptions tendered at that time. On the 13th of July following, the defendant applied to the circuit judge in vacation for a rule on the plaintiffs to show cause why the findings of fact and the conclusions of law thereon should not be stated by the court, and a bill of exceptions signed and filed nunc pro tunc. Leave for that purpose having been granted, execution of the judgment was stayed. August 22, the parties stipulated in writing that the rule should be heard before the district judge at chambers. Upon the hearing, he, on the twenty-fourth day of that month, granted the rule. At the September Term of the court, the findings of fact and conclusions of law thereon were duly entered nunc pro tunc as of the April Term, and the bill of exceptions was signed by both judges. The findings, so far as they involve any question argued by counsel here, are as follows:--

'That the policy, which was duly executed by the defendant and delivered to the plaintiffs, contained the following express provisions, annexed to the agreement of insurance and in the body of the policy, namely:--

'Provided always, and it is hereby declared, that the company shall not be liable to make good any loss or damage by fire which may happen or take place by means of any invasion, insurrection, riot, or civil commotion, or of any military or usurped power, or any loss by theft at or after a fire.'

That the facts and circumstances showing the cause of the fire are as follows, namely: At and before the time of the fire in question, the city of Glasgow, within which the said store of the plaintiffs was situated, was occupied as a military post of the United States, by the military forces and a portion of the army of the United States engaged in the civil war then, and for more than three years theretofore, prevailing between the government and the citizens of several Southern States who were in rebellion and seeking to establish an independent government, under the name of the Confederate States of America. As such military post, the said city of Glasgow was made the place of deposit of military stores for the use of the army of the United States, which stores were in a building called the city hall of the said city of Glasgow, situated on the same street, on the same side of the street, and about one hundred and fifty feet distant from the plaintiffs' said store, three buildings, nevertheless, being located in the intervening space, not, however, in actual contact with either. Colonel Chester Harding, an officer of the United States government, and in command of the military forces of the United States, held the possession of the said city, and had lawful charge and control of the military stores aforesaid. On the fifteenth day of October, 1864, an armed force of the rebels, under military organization, surrounded and attacked the city at an early hour in the morning, and threw shot and shell into the town, penetrating some buildings, and one thereof penetrating the said store of the plaintiffs, but without setting fire thereto or causing any fire therein, and some of said shell illing soldiers and citizens. The city was defended by Colonel Harding and the military forces under his command, and battle between the loyal troops and the rebel forces continued for many hours. The citizens fled to places of security, and no civil government prevailed in the city. The rebel forces were superior in numbers, and, after a battle of several hours, drove the forces of the government from their position, compelled their surrender, and entered and occupied the city.

During the battle, and when the government troops had been driven from their exterior lines of defence, it became apparent to Colonel Harding that the city could not be successfully defended, and he thereupon, in order to prevent the said military stores from falling into the possession of the said rebel forces, ordered Major Moore, one of the officers under his command, to destroy them.

In obedience to this order to destroy the said stores, and having no other means of doing so, Major Moore set fire to the said city hall, and thereby the said building, with its contents, was consumed. Without other interference, agency, or instrumentality, the fire spread along the line of the street aforesaid to the building next adjacent to the city hall, and from building to building through two other intermediate buildings to the store of the plaintiffs, and destroyed the same, together with its contents, including the goods insured by the defendant's policy aforesaid. During this time, and until after the fire had consumed such goods, the battle continued, and no surrender had taken place, nor had the forces of the rebels, nor any part thereof, obtained the possession of or entered the city.

It was conceded that the order of Colonel Harding was, in the exigency, a lawful and discreet use of the military authority vested in him.

The court declared, as conclusions of law upon the facts found, that the defendant was not exempted by virtue of the said proviso from liability to the plaintiffs under said policy, and that the plaintiffs were entitled to judgment for $6,000, the value of the property destroyed, with interest thereon from July 1, 1865, and costs of suit.

On the 7th of October, 1874, the defendant sued out this writ of error.

Mr. Francis Fellowes for the defendants in error, in support of the judgment below.

The record presents no question which can be reviewed here, as the court below had no jurisdiction of the cause after the close of the term at which the judgment was rendered. Sheppard v. Wilson, 6 How. 275; Turner v. Yeates, 16 id. 14; Walton v. United States, 9 Wheat. 657; Muller v. Ehlers, 91 U.S. 249; Phillip's Practice, 122, 123, 127; 3 Bl. Com. 275, 316; Petersdorff's Abridgment, tit. Amend. 504; Albers v. Whitney, 1 Story, 310; Brush v. Robins, 3 McLean, 487; Carman v. Roberts, 3 Wheat. 591; Bank of The United States v. Massachusetts, 6 How. 31.

But, if the findings can be considered a part of the record, it is submitted the loss in question must be attibuted to its proximate cause, Gen. Mutual Insurance Co. v. Sherwood, 14 How. 352; Insurance Company v. Tweed, 7 Wall. 44; Welts v. Conn. Mutual Life Insurance Co., 48 N. Y. 34; and that is the cause next preceding the effect, and capable of producing it. In this case, this cause was clearly the act of Colonel Harding in setting fire to the city hall; and no other cause 'intervened between this act and the fact accomplished.' Invaders, persons in insurrection, riot, or civil commotion, did not set the fire, nor have any part in the destruction of the insured property. The destruction was adverse to their interest. They took the town, but destroyed nothing.

The so-called military necessity is not named in the contract as a cause of exception. Besides, it had, in itself, no causal power. Furnishing a motive for, and in this sense an antecedent to, the act of Colonel Harding, it had nothing to do with causation.

His act as not that of a military or usurped power. Power, in itself, means simply power, not lawful authority. Military power is not lawful military authority, but rests upon mere force of arms, and must, therefore, of necessity be usurped. The word 'or' in the proviso of the policy is used as conjunctive, not as disjunctive. It means both military and usurped. It is used to express equivalents. Thus, the exceptions signify that any loss happening by means of any military power, or, which is the same thing, of any usurped power, shall be excepted. Or is often so used. Thus we say a thing is a square, or a figure under four equal sides and angles. And the policy says, loss or damage, goods or merchandise, happen or take place, military or usurped.

This construction is sustained by the implied antithesis.

Military has its antithesis in civil; military power, in civil power.

The words 'military or usurped power' were first introduced into policies of insurance in Great Britain soon after the Rebellion of 1715. They referred to the power of the Pretender, and not to any lawful military authority or power of the realm. Ellis, Ins. 41; Park, Ins. 657; Marsh. Ins. 791. Prior to that time, the exceptions were 'fire occasioned by invasion and foreign enemy.' The framers of them seem to have considered either invasion or foreign enemy as a military power, and then, lest they might not be comprehensive enough to embrace domestic rebels, like the Pretenders and their followers, 'any military or usurped power whatsoever' was added. Manifestly, 'military' and 'usurped' were synonymous. 1 Bell, Com. 672. The courts of Great Britain and of this country treat them as signifying rebellion conducted by authority. Drinkwater v. The London Assurance Co., 2 Wilson, 363; Langdale v. Mason, 2 Marsh. Ins. 791; City Fire Insurance Co. v. Corlies, 21 Wend. (N. Y.) 367; Sprull v. ''North Carolina Mut. Life Insurance Co., 1 Jones (N. C.), 126; Harris v. York Insurance Co.'', 50 Penn. 341. And the parties to the contract are bound by the settled judicial construction of the words. City Fire Insurance Co. v. Corlies, supra.

The maxim noscitur a sociis furnishes, in this case, the true rule of interpretation. Every other cause of exception named in the proviso, 'invasion, insurrection, riot, civil commotion,' being unlawful, the words 'military power,' in the same category, signify an unlawful military power, not the lawful military authority of the country. This observation derives especial force from the fact that 'military' stands here in such close fellowship with 'usurped.' Military or usurped is the expression. Breasted v. The Farmers' Loan & Trust Co., 8 N. Y. 304; Harper's Adm'rs v. Phoenix Insurance Co., 19 Mo. 506; Cluff v. ''Mut. Benefit Life Insurance Co.'', 13 Allen (Mass.), 308.

The act of Colonel Harding, so far from being the act of a military or usurped power, was an act of civil jurisdiction, whereby he asserted, in behalf of the nation, their paramount title to the property, by virtue of the right of eminent domain. Mitchell v. Harmony, 13 How. 113; Grant v. United States, 1 Ct. Cl. p. 41; Wiggin's Case, 3 id. p. 412; Harris v. York Insurance Co., 50 Penn. 341.

This, however, does not exempt the insurers from liability. But, on paying the loss, they are substituted to the rights of the insured.

If the destruction of the goods was not the intended consequence of the act of Colonel Harding, and, therefore, not a taking of private property for public use, but was accidental, it was one of those accidents the peril of which the insurers assumed. It was not thereby converted into the act of rebels, nor did it, therefore, happen by means of invasion, insurrection, riot, civil commotion, or of any military or usurped power.

The underwriters made their own exceptions, and the onus of proving the loss to be within the exceptions is on them. If, therefore, t ere is any ambiguity in the words employed, or any doubt as to the loss being within the exceptions, the principle of fortius contra proferentem furnishes the rule.

The obvious natural import of the words employed designates plainly the unlawful character of the causes excepted; the history of their first introduction into policies of insurance shows the nature of the risks intended to be excluded; and the subsequent adjudications of the meaning of the words render it certain that the words 'military or usurped power' have no reference to acts of constitutional sovereignty, but are limited to acts of rebellion. The act of Colonel Harding, which caused the loss, was not an act of rebellion. The loss was not, therefore, excepted by the proviso.

Mr. G. W. Parsons and Mr. R. D. Hubbard, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Aetna Fire Insurance Company v. Boon


text: Talk:Aetna Fire Insurance Company v. Boon


text:
Aetna Fire Insurance Company v. Boon/Opinion of the Court

Preliminary to any consideration of the assignments of error is the question whether the bill of exceptions and the special finding of facts can be considered as a part of the record. The issues formed by the pleadings were tried by the court, without the intervention of a jury, in September, 1873, and judgment for the plaintiffs was ordered at April Term, 1874. It does not appear that any exceptions were taken to the rulings of the court during the progress of the trial, and that which is now claimed to be a bill of exceptions has no reference to any such rulings. It relates only to the judgment given on the findings of the issues of fact. The act of Congress which authorizes trials by the court, 13 Stat. 500, sects. 649, 700, Rev. Stats., has enacted that the finding of the court upon the facts, which may be either general or special, shall have the same effect as the verdict of a jury; and that, when the finding is special, the review by the Supreme Court upon a writ of error may extend to the determination of the sufficiency of the facts found to support the judgment. No bill of exceptions is required, or is necessary, to bring upon the record the findings, whether general or special. They belong to the record as fully as do the verdicts of a jury. If the finding be special, it takes the place of a special verdict; and, when judgment is entered upon it, no bill of exceptions is needed to bring the sufficiency of the finding up for review. But there must be a finding of facts, either general or special, in order to authorize a judgment; and that finding must appear on the record. In this case, there was no formal finding of facts when the judgment was ordered. It is to be inferred, it is true, from the judgment and from the entry of the clerk, that the issue made by the pleadings was found for the plaintiffs, but how, whether generally or specially, does not appear. There was, therefore, a defect in the record, which it was quite competent for the court to supply by amendment; and such an amendment was made. After the close of the April Term, and in the vacation next following, the judge of the court, on application of the defendants, granted an order upon the plaintiffs to show cause why the defendants should not have leave inter alia to make and serve a case or bill of exceptions, containing the evidence given at the trial, special findings of fact and law, and such exceptions thereto as the defendants might desire to make, and why such case or bill of exceptions when made and settled should not be filed, nunc pro tunc, as of the term when the judgment was entered. Upon this rule both parties were heard; and the result was an order that 'a finding of facts in the cause, with the conclusions of the court thereupon, conformably to the opinion of the court theretofore filed,' be prepared, to be approved by the court at the next following term (September); that the defendants have leave to prepare a bill of exceptions to be allowed and signed at said term, and that 'said special finding of facts' and bill of exceptions should be made, allowed, and entered of record, nunc pro tunc, as of the pril Term, 1874, of the court. Such a special finding was accordingly prepared, and at the September Term signed by both the judges of the Circuit Court, the order made in vacation was made the order of the court, and the separate findings of fact and conclusions of law, together with the bill of exceptions, also signed, were ordered to be filed, nunc pro tunc, as of April Term, 1874, and made part of the record of the cause. Had the court power to make such an order respecting a special finding, and, if it had, does the order have the effect of making the special finding a part of the record? It is not necessary to inquire whether the court, at a term subsequent to the judgment, could lawfully allow and sign a bill of exceptions not noted at the trial. It may be admitted that a court has no such power; but, as already remarked, no bill of exceptions was needed to bring any thing upon the record. If the special finding of facts was properly there, or was rightfully supplied, the judgment of the court is subject to review independently of any bill of exceptions, the only office of which is to bring upon the record rulings that without it would not appear. It remains, therefore, to consider whether the court could at the September Term, by an order, correct the record by incorporating into it, nunc pro tunc, a special finding of the facts upon which the judgment had been rendered. It is familiar doctrine that courts always have jurisdiction over their records to make them conform to what was actually done at the time; and, whatever may have been the rule announced in some of the old cases, the modern doctrine is that some orders and amendments may be made at a subsequent term, and directed to be entered and become of record as of a former term. In Rhoads v. The Commonwealth, 35 Penn. St. 276, Gibson, C. J., said: 'The old notion that the record remains in the breast of the court only till the end of the term has yielded to necessity, convenience, and common sense. Countless instances of amendment after the term, but ostensibly made during it, are to be found in our own books and those of our neighbors.' Even judgments may be corrected in accordance with the truth. It has been held by this court that, at a subsequent term, when a judgment had before been arrested, an amendment may be made to apply the verdict to a good count, if another be bad, and the minutes of the judge show that the evidence sustained the good one. Matheson's Adm'r v. Grant's Adm'r, 2 How. 282. And this has been repeatedly held elsewhere. Generally, it may be admitted that judgments cannot be amended after the term at which they were rendered, except as to defects or matters of form; but every court of record has power to amend its records, so as to make them conform to and exhibit the truth. Ordinarily, there must be something to amend by; but that may be the judge's minutes or notes, not themselves records, or any thing that satisfactorily shows what the truth was. Within these rules, we think, was the order made at September Term, that the special finding of facts and conclusions of law be signed by the judges and allowed, conformably to the opinion of the court theretofore filed, and that it, together with the order, should be filed nunc pro tunc as of April Term, and made part of the record. It was but an amendment or correction of form, the form of the finding, not of its substance, and there was enough to amend by. The opinion, which was filed concurrently with the entry of the judgment, contained substantially, almost literally, the same statement of facts, and relied upon it as the foundation of the judgment given. True, that opinion is no part of the record, any more than are a judge's minutes; but it was a guide to the amendment made, and it seems altogether probable it was intended to be itself a special finding of the facts. The order of September, 1874, recites that the court had at April Term filed, announced, and declared their findings of facts, with their conclusions of law thereupon, which indings and conclusions were embodied in the opinion of the court announced and filed in the cause. And all that was wanting to make it a sufficient special finding was that it was not entitled 'finding of facts.' The amendment or correction, therefore, contradicts nothing in the record as made at April Term, and it is in strict accordance with the truth. We conclude, then, that the order of September Term was within the discretion of the court, and that by it the special finding returned became a part of the record of the cause, and that the judgment founded upon it is subject to review in this court without any bill of exceptions.

In so holding, we do not depart from any thing we have ever decided respecting the power of a court to make up a case, after the expiration of a term, for bills of exceptions not claimed at the trial. This is not a case of that kind. It is the case of a correction of the record, not merely an allowance of exceptions never taken, and necessary to have been taken, to bring an interlocutory ruling upon it. We hold now, as we have always holden, that when bills of exceptions are necessary to bring any matter upon record so that it can be reviewed in error, it must appear by the record that the exception was taken at the trial. A judge cannot afterwards allow one not taken in time. Could he allow it, the record would be made to speak falsely.

Coming, then, to the merits of the case, the main question is, whether the fire which destroyed the plaintiff's property 'happened or took place by means of any invasion, insurrection, riot, or civil commotion, or of any military or usurped power.' If it did, the loss was excepted from the risk taken by the insurers.

The policy contains this express stipulation: 'Provided always, and it is hereby declared, that the company shall not be liable to make good any loss or damage by fire which may happen or take place by means of any invasion, insurrection, riot, or civil commotion, or of any military or usurped power, or any loss by theft at or after a fire.' The general purpose of this proviso is clear enough, but there is controversy respecting the extent of the exemption made by it. It has been very strenuously argued that the words 'military or usurped power' must be construed as meaning military and usurped power; that they do not refer to military power of the government, lawfully exercised, but to usurped military power, either that exerted by an invading foreign enemy, or by an internal armed force in rebellion, sufficient to supplant the laws of the land and displace the constituted authorities. There is, it must be admitted, considerable authority, and no less reason, in support of this interpretation. In our view of the present case, however, we are not called upon to affirm positively that such is the true meaning of the words in the connection in which they were used in the policy now under review; for, if it be conceded that it is, we are still of opinion that the fire which destroyed the premises of the plaintiffs below 'happened,' 'took place,' or occurred by means of a risk excepted in the policy. In other words, it was caused by invasion, and the usurped military power of a rebellion against the government of the United States, as the contracting parties understood the terms 'invasion' and 'military or usurped power.'

Policies of insurance, like other contracts, must receive a reasonable interpretation consonant with the apparent object and plain intent of the parties. This is entirely consistent with the rule that ambiguities should be construed most strongly against the underwriters, and most favorably to the assured. Manhattan Insurance Co. v. Stein, 5 Bush (Ky.), 652. It was well said recently by the New York Court of Appeals, that, in construing contracts, words must have the sense in which the parties understood them. And, to understand them as the parties understood them, the nature of the contract, the objects to be attained, and all the circumstances must be considered. Cushman. United States Life Insurance Co., 6 Law Jour., p. 601.

Apply, now, these principles to the present case. The policy was issued in 1864, while the country was convulsed by a civil war. The property insured was in a State bordering upon sections, the people of which were in insurrection against the general government, and confederated as a usurping power. The State had been the theatre of civil commotion and of armed invasion during the struggle between the confederated States and the Federal government, a struggle not then ended. It was quite possible that new invasions might be made and new destruction of property might be caused by the military or usurped power then in rebellion. It is evident that the insurers were willing to assume only ordinary risks, and that, to guard against more extended liability, the excepting clause was introduced into the policy. The provision must have been intended to be a protection to the company against extraordinary risks, attendant upon the condition of things then existing. Invasion involved, of necessity, resistance by the constituted authorities of the government, and the employment of its military force. Destruction of property by fire was quite as likely to be caused by resistance to the usurping military power as by the direct action of that power itself. This must have been foreseen and considered when the insurance was effected. It is difficult, therefore, to believe that the parties intended to confine the stipulated exemption within the limits to which the assured would not confine it. That the destruction of the plaintiff's property by fire was a consequence of the attack of the organized rebel military forces upon the forces of the United States holding possession of Glasgow, the special finding of facts clearly shows. Glasgow was a military post, and a place of deposit for the military stores of the United States, which were in the city hall. The city was guarded and defended by a military force under the command of Colonel Harding.

At an early hour of the morning of the fifteenth day of October, 1864, an armed force of the rebels, under military organization, surrounded and attacked the city and threw shot and shell into it, penetrating some buildings, and one thereof penetrating the store of the plaintiffs, but without setting fire thereto or causing any fire therein, and some of the shell killing soldiers and citizens. The city was defended by Colonel Harding and the military forces under his command, and a battle between the loyal troops and the rebel forces continued for many hours. The citizens fled to places of security, and no civil government prevailed in the city. The rebel forces were superior in number, and drove the forces of the government from their position, compelled their surrender, and entered and occupied the city.

During the battle, and when the government troops had been driven from their exterior lines of defence, it became apparent to Colonel Harding that the city could not be successfully defended, and he thereupon, in order to prevent the said military stores from falling into the possession of the rebel forces, ordered Major Moore, one of the officers under his command, to destroy them.

In obedience to this order to destroy the said stores, and having no other means of doing so, Major Moore set fire to the city hall, and thereby the said building, with its contents, was consumed. Without other interference, agency, or instrumentality the fire spread along the line of the street aforesaid to the building next adjacent to the city hall, and from building to building through two other intermediate buildings to the store of the plaintiffs, and destroyed the same, together with its contents, including the goods insured by the defendant's policy aforesaid. During this time, and until after the fire had consumed such goods, the battle continued; and no surrender had taken place, nor had the forces of the rebels, nor any part thereof, obtained the possession of or entered the city.

In view of this stat of facts found by the court, the inquiry is, whether the rebel invasion or the usurping military force or power was the predominating and operative cause of the fire. The question is not what cause was nearest in time or place to the catastrophe. That is not the meaning of the maxim causa proxima, non remota spectatur.

The proximate cause is the efficient cause, the one that necessarily sets the other causes in operation. The causes that are merely incidental or instruments of a superior or controlling agency are not the proximate causes and the responsible ones, though they may be nearer in time to the result. It is only when the causes are independent of each other that the nearest is, of course, to be charged with the disaster. A careful consideration of the authorities will vindicate this rule. Mr. Phillips, in his work on Insurance, sect. 1097, in speaking of a nisi prius case of a vessel burnt by the master and crew to prevent its falling into the hands of the enemy, Gordon v. Rimmington, 1 Camp. 123, says, the 'maxim causa proxima spectatur affords no help in these cases, but is, in fact, fallacious; for if two causes conspire, and one must be chosen, the more scientific inquiry seems to be, whether one is not the efficient cause, and the other merely instrumental or merely incidental, and not which is nearer in place or time to the consummation of the catastrophe.' And again, in sect. 1132: 'In case of the concurrence of different causes, to one of which it is necessary to attribute the loss, it is to be attributed to the efficient predominating peril, whether it is or is not in activity at the consummation of the disaster.' In Brady v. North-western Insurance Co., 11 Mich. 425, Martin, C. J., in delivering the opinion of the court, said: 'That which is the actual cause of the loss, whether operating directly or by putting intervening agencies, the operation of which could not be reasonably avoided, in motion, by which the loss is produced, is the cause to which such loss should be attributed.' In St. John v. American Mutual Insurance Co., 11 N. Y. 519, the insurance was against fire, but the policy exempted the insurers from any loss occasioned by the explosion of a steam-boiler. A fire occurred, caused by an explosion, which destroyed the insured property. The court, regarding the explosion, and not the fire, as the predominating cause of the loss, held the insurers not liable. Decisions are numerous to the same effect. Policies of insurance do not protect an assured against his voluntary destruction of the thing insured. Yet in Gordon v. Rimmington, supra, it was held that, when the captain of a ship insured against fire burned her to prevent her falling into the hands of the enemy, it was a loss by fire within the meaning of the policy. It was because the fire was caused by the public enemy. The act of the captain was the nearest cause in time, but the danger of capture by the public enemy was regarded as the dominating cause. Vide also Emerigon, tom. i. p. 434. And we find the same principle followed in common practice. Often, in case of a fire, much of the destruction is caused by water applied in efforts to extinguish the flames. Yet it is not doubted all that destruction is caused by the fire, and insurers against fire are held liable for it. In Lynd v. Tynsboro', 11 Cush. (Mass.) 563, where it appeared that a traveller had been injured by leaping from his carriage, exercising ordinary care and prudence, in consequence of a near approach to a defect in a highway, the town was held liable, though the carriage did not come to the defect. The defect was regarded as the actual, the dominating, cause. And in this court similar doctrine has been asserted. Insurance Company v. Tweed, 7 Wall. 44, the principle of which case, we think, should rule the present. There it was, in effect, ruled that the efficient cause, the one that set others in motion, is the cause to which the loss is to be attributed, though the other causes may f llow it and operate more immediately in producing the disaster.

In Butler v. Wildman, 3 B. & A. 398, may be found a case where the captain of a Spanish ship, in order to prevent a quantity of Spanish dollars from falling into the hands of an enemy by whom he was about to be attacked, threw them into the sea. The suit was upon a policy insuring the dollars, and judgment was given for the plaintiff. Bayley, J., said, 'It was the duty of the master to prevent any thing which could strengthen the hands of the enemy from falling into their possession. Now, as money would strengthen the enemy, it was the duty of the master to throw it overboard; and the sacrifice of the money was, therefore, ex justa causa. It seems to me, therefore, this is a loss by jettison. But it is not a loss by jettison: it is a loss by enemies. It clearly falls within the principle stated by Emerigon, in the case of the destruction of a ship by fire; and I think the enemy was the proximate cause of the loss.' Holroyd, J., said, 'It seemed to him it was a loss by enemies, for the meditated attack was the direct cause of the loss.' A similar doctrine was asserted in Barton v. The Home Insurance Co., 42 Mo. 156; and in Marcy v. Merchants' Mutual Insurance Co., 19 La. Ann. 388. It is a doctrine resting upon reason, and in accord with the common understanding of men. Applying it to the facts found in the present case, the conclusion is inevitable, that the fire which caused the destruction of the plaintiffs' property happened or took place, not merely in consequence of, but by means of, the rebel invasion and military or usurped power. The fire occurred while the attack was in progress, and when it was about being successful. The attack, as a cause, never ceased to operate until the loss was complete. It was the causa causans which set in operation every agency that contributed to the destruction. It created the military necessity for the destruction of the military stores in the city hall, and made it the duty of the commanding officer of the Federal forces to destroy them. His act, therefore, in setting fire to the city hall, was directly in the line of the force set in motion by the usurping power, and what that power must have anticipated as a consequence of its action. It cannot be said that was not anticipated which military necessity recognized. And the insurers and the assured must have looked for such action by the Federal forces as a probable and reasonable consequence of an overpowering attack upon the city by an invading rebellious force. Having excepted from the risk undertaken responsibility for such an attack, they excepted with it responsibility for the consequences reasonably to be anticipated from it.

The court below regarded the action of the United States military authorities as a sufficient cause intervening between the rebel attack and the destruction of the plaintiffs' property, and therefore held it to be the responsible proximate cause. With this we cannot concur.

The proximate cause, as we have seen, is the dominant cause, not the one which is incidental to that cause, its mere instrument, though the latter may be nearest in place and time to the loss. In Milwaukee & Saint Paul Railway Co. v. Kellogg, 94 U.S. 469, we said, in considering what is the proximate and what the remote cause of an injury, 'The inquiry must always be whether there was any intermediate cause disconnected from the primary fault, and self-operating, which produced the injury.' In the present case, the burning of the city hall and the spread of the fire afterwards was not a new and independent cause of loss. On the contrary, it was an incident, a necessary incident and consequence, of the hostile rebel attack on the town,-a military necessity caused by the attack. It was one of a continuous chain of events brought into being by the usurped military power,-events so linked together as to form one continuous whole. The case is, therefore, clearly within the doctrine asserte by Emerigon, and held in Butler v. Wildman, and in the other cases we have cited. Hence it must be concluded that the fire which destroyed the plaintiffs' property took place by means of an invasion or military or usurped power, and that it was excepted from the risk undertaken by the insurers.

Judgment reversed and record remitted, with instructions to enter judgment for the defendant below.


text: Talk:Aetna Fire Insurance Company v. Boon/Opinion of the Court


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Movius v. Arthur

ERROR to the Circuit Court of the United States for the Southern District of New York.

This is an action by Joseph Movius, surviving partner of the firm of F. Wigand & Co., to recover $172.39 being the amount of certain import duties alleged to have been unlawfully demanded and collected from them by the defendant in error, as the collector of the port of New York.

Between Aug. 1 and Dec. 31, 1872, Wigand & Co. imported from foreign countries into the port of New York, and duly entered at that custom-house, several invoices of 'varnished calf-skins,' and a further invoice of goods, designated therein as 'varnished cow-skins.'

The collector of customs, under the classification of 'patent, japanned, or enamelled leather or skins of all kinds,' in the acts of March 2, 1861, sect. 22, and July 14, 1862, sect. 13, imposed and collected on all the said goods a duty at thirty-five per cent, granting thereon the reduction of ten per cent, provided by sect. 2 of the act of June 6, 1872, for 'leather not otherwise herein provided for.' Wigand & Co., claiming that the goods were dutiable at twenty per cent only under the provisions of sect. 1 of the act of June 6, 1872, for 'upper leather of all other kinds, and dressed and furnished skins of all kinds not herein otherwise provided for,' duly protested, and appealed to the Secretary of the Treasury, who sustained the decision of the collector. This action was then brought.

The court below found for the collector, whereupon the case was removed here.

Mr. Edward Hartley for the plaintiff in error.

The Solicitor-General, contra.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Movius v. Arthur