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Page:United States Statutes at Large Volume 45 Part 1.djvu/1494

 SEVENTIETH CONGRESS. SEss. II. Cus. 444 146. 1929: 1443 incurred, any criminal or civil proceeding commenced, or any author- ity conferre d thereunder, except as he rein provided in connection with the liquidation of the remaining assets and the winding up of the af fairs of the said co rporati on, un til the Secret ary of the Tr easury shall find that such liquidation will no longer be advantageous to the United States and that all of its lawful obligations have been met, whereupon he shall retire any capital stock then out standing, pay into the Treasury as miscellaneous receipts the unused balance of the moneys belongi ng to the cor poration, and make the fina l report of the corporation to the Congress. Thereupon the corporation shall be deemed to be dissolved. Approved, March 1, 1929. Retirement of stock, etc ., and dissolution of corporation. March 1, 1929. CHAP. 445 .-An Act To consolidate or acquire alienated lands in Lassen 	[Hƒ. R. 11406 .] Volcanic National Park, in the State of California, by exchange. [Public, No. 896.] - Be it enacted by the Senate and House of Representatives of the Na- United States of America in Congress assembled, That, when the ti nals Park, Calif I va- public interests will be benefited thereby, the Secretary of the in by achangef lands Interior be and he is hereby authorized, in his discretion, to accept, on behalf of t he United Sta tes, title to any land with in exterior boundaries of Lassen Volcan ic National P ark which, in the opinion of the Director of the National Park Service, are chiefly valuable for forest or recreational and national-park purposes, and in exchange there for may paten t not to exce ed an equal va lue of such national-park land within the exterior boundaries of said national park; or the Secretary of the Interior may authorize the grantor eah3 nger al lowed in to cut and remove an equal value of timber in exchange therefor from certain designated areas within the exterior boundaries of said national park : Provided, That such timber shall be cut and removed rr«visa. from such designated area in a manner that will not injure the condition s' national park for recreational purposes and under such forestry re gulati ons as shall b e stip ulated, the va lues i n each case to be de ter- mined by the Secretary of the Interior. Lands conveyed to the Accepted land s added United States under this Act shall, upon acceptance of title, become to the Park. a part of Lassen Volcanic National Park. Approved, March 1, 1929. CHAP. 446 .-An Act To authorize the Secretary of the Interior to investigate [S. March 47 04 .] 1, 1929. and report to Congress on the advisability and practicability of establishing a [Public, No. 897.] national park to be known as the Tropic Everglades National Park in the State of Florida, and for other purposes. Be it ena cted by the Se nate and Hous e of Represen tatives of the United States of America in Congress assembled, That the Secretary Tropic Ever glades of th e Interior be, and he is he reby, directe d to investig ate and National Park ' and Inv est iga tio n re- report to Congress as to the desirability and practicability of estab- pe rt directed as to estab- lishing a national park, to be known as the Tropic Everglades advisability of estab- Na tional Park, in th e eve rglade s of D ade, Monroe, and Collie r Counties of the State of Florida, for the benefit and enjoyment of the people of the United States and to preserve said area in its natur al state, inc luding in his report full i nformation as to the ownership, value, estimated cost to acquire and character of the lands involved and his opinion as to whether such areas measure up to nati onal par k st anda rds. Any approp riations for the National do~ Pak fr o- Na- Park Service shall be available for the necessary expenses of such investigation. Approved, March 1, 1929.

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1495

 1444 SEVENTIETH CONGRESS. SEss. II. Cfis. 447, 448. 1929 . March 1, 1929. [H.R. 11722.] [Public, No. 898 .] Be it enacted by the Senate and House o f Representatives o f the Mar Battle of yl and . Monocacy, United States of America in Congress assembled, That for the Acquiring land, etc., purpos e of c ommemo ratin g the Battle of Mo nocac y Mary land, the authorized to com- memo rate. Secretary of W ar is authori zed and direc ted to (1) acq uire not to exceed one acre of land, free of cost to the United States, at the above-named battle field, (2) fence the parcel of land so acquired, (3) build an approach to such parcel of land, and (4) erect a suitable marker on such parcel of land. SEC. 2 . There is authorized to be appropriated the sum of $5,000, or so much thereof as may be necessary, to carry out the provisions of section 1 of this Act. SEC. 3 . The parcel of land acquired under section 1 of this Act shall be under the jurisdiction and control of the Secretary of War, and there is a uthorized to be appropriat ed for the mai ntenance of such parcel of land, fence, approach, and marker a sum not to exceed $250 per annum. Approved, March 1, 1929. Sum authorized. under control of Sec- retary of War. Maintenance. CHAP. 447.-An Act To provide for the commemoration of the Battle of Monoca cy, Ma rylan d. March 1, 1929. [S.J.Res. 196 .] CHAP. 448 .-Joint Resolution Authorizing and requesting the President of the [Pub. Res., No. 96. United States to take steps in an effort to protect citizens of the United States in their equitable titles to land embraced in territory to be transferred from the State of Oklahoma to the State of Texas and from the State of Texas to the State of Oklahoma as per decree of the S upreme Court of the U nited States in the case of Oklahoma against Texas (1926, 272 United States 21, page 38) and from the State of New Mexico to the State of Texas and from the State of Texas to the State of New Mexico as per decree of the Supreme Court of the United States in the case o f New Mexico against Texas (volume 276, p age 557, United States Suprem e Court Repo rts), and to give the con sent of Cong ress to said States to enter into compacts with each other and with the United States relating to such subject matter. Resolved by the Senate and Home of Representatives of the United States o f America in Congress assembled, That the President of the United States be authorized, and he is hereby requested, to confer with the Governor of the State of Oklahoma and with the Governor of the State of Texas to ascertain if negotiations will be entertained, to the end that an agreement may be reached between the United States, the State of Texas, and the State of Oklahoma, as to the terms upo n which said parties menti oned and in in terest will a ccept the land, if any, transferred or to be transferred to each said party by the authority of the final decree of the Supreme Court of the United States in the action styled Oklahoma against Texas (1926, 272 United States 21, page 38). SEC. 2. In the event the Governor of the State of Texas and the Governor of the State of Oklahoma, acting for their respective States, agree to confer with the United States relative to the subject mat ter mentioned and describe d in section 1 hereof the c onsent of Congress is hereby given to the said State of Texas and to the said Sta te of Oklahom a to negotiat e and enter in to a compact or agree- ment respecting the matter in this Act mentioned and the President is herein authorized and requested to proceed with such conference and to formulate and suggest a compact or agreement to be presented to the Congress and to the Le gislatures of the State of Texas and the State of Oklahoma for ratification and if, and when, ratified by each said contracting party, then each said party herein mentioned is hereby author ized to proce ed to comply w ith the oblig ations i n said compact or agreement assumed. Okla homa and Tex as. Conference requested with governors of, as to acce ptance of l ands transferred to the States by decree of Supreme Co urt. On acceptance of con- ference, consent given the States to negotiate compact, etc ., to be presented for ratifica- tion to Congress and the State Legislatures. Comp liance wi th obligations.

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text: 1911 Encyclopædia Britannica/Bloemen, Jan Frans van


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1496

 SEVENTIETH CONGRESS. SESS. II. CHS. 448, 449. 1929 . 1445 SEc. 3. That the President of the United States be authorized Texas and Now I Mexico . and he is hereby requested, to confer with the Governor of the State Conference requested of Texas and with the Governor of the State of New Mexico to with governors of, as to acceptance of lan ds ascert ain if ne gotiation s will be entertai ned to th e end tha t an agre e- tran sfer red t o the Sta tes b by decre e of Sup reme ment may be reached between the United States, the State of Texas, court. and the State of New Mexico, as to the. terms upon which said parties mentioned and in interest will accept the hand, if any, transferred or to be transferred to each said party by the authority of the final decree of the Supreme Court of the United States in the action styled New Mexico against Texas (volume 276, page 557, United States Sup reme Cou rt Repo rts). On acce ptanc e of con- SEC. 4. In the event the Governor of the State of Texas and the ference, consent given Governor of the State of New Mexico acting for their respective the states to negotiate g compact, etc ., to be pre- States, agree to confer with the United States relative to the subject sen ted for r atif icati on to Congress and the matter mentioned and described in section 1 hereof, the consent of state Legislatures. Congress is hereby given to the said State of Texas and to the said State of New Mexico to negotiate and enter into a compact or agreement respecting the matter in this Act mentioned, and the President is herein authorized and requested to proceed with such conference and to formulate and suggest a compact or agreement to be presented to the Congress and to the Legislatures of the State of Texas and the State of New Mexico for ratification and if, and when, rati fied b y each said contra cting p arty, then e ach sa id par ty lig Compliance with ob- herein mentioned is hereby authorized to proceed to comply with the obligations in said compact or agreement assumed. SEC. 5 . No such compact or agreement shall be binding or Ratification required of the compacts by the obligatory upon either of the parties herein mentioned unless and States and Congress. until such compact or agreement has been ratified by the legislatures of each of said States affected and mentioned herein and by the Congress of the United States. Approved, March 1, 1929. March 1, 1929. CHAP. 449 .-Joint Resolution To relieve Elizabeth Robins Pennell from neces- 	[s.J. Res. 5s.] sity of providing a surety on her bond for the benefit of the United States as [Pub. Res ., No. 97.] residuar y legatee and rem ainderman under the will of Jos eph Pennell. Whereas Joseph Pennell, of Philadelphia, Pennsylvania, by his en lnell beth Robins will dated January 7, 1919, and a codicil thereto dated September Preamble. 29, 1924, gave the residue of his estate to his wife, Elizabeth Robins Pennell, for life, and upon her death to the United States of America, for the division of prints of the Library of Congress, to be administered by the proper officers thereof upon the terms and conditions in his said will provided ; and Whereas the said Joseph Pennell died April 23, 1926, and Elizabeth Robins Pennell, executrix, filed her account of decedent's estate in the office of the register of wills, of Philadelphia County, Pennsylvania., and the same was adjudicated and can firmed abso- lutely by the orphans' court of the said county on the 6th day of May, 1927, and the balance shown by said account awarded to Elizabeth Robins Pennell, to be held as directed by decedent's will, upon the entry of security by her in the sum of $400,000, under section 23 of the fiduciaries act of Pennsylvania ; and Whereas the premium on a surety bond would have to be paid out of t he inc ome of deced ent's estate and th ereby greatl y redu ce the income which the said Elizabeth Robins Pennell would receive during her life ; and Whereas the said Elizabeth Robins Pennell has requested Congress to take such action as may relieve her from the necessity of pro- viding a surety on her bond (so conditioned) :

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Insurance Company of the Valley of Virginia v. Mordecai (63 U.S. 111)

THIS case was brought up by writ of error from the Circuit Court of the United States for the district of South Carolina.

The insurance company had an agency established in Charleston, where their business appeared to be conducted by W. M. & J. C. Martin. The policy was not filled up or under the seal of the company, but the action was brought upon a written memorandum upon the policy, as follows:

Messrs. Mordecai & Co. are insured in the sum of four thousand dollars on the freight of the barque Susan, hence to Rio Janeiro and back, to any port of discharge in the United States.

$4,000 at 2 p. c., $80.

June 11, 1855.

The first above entry in the name of Mordecai & Co. should have been to M. C. Mordecai, and the amount insured was valued at the sum insured.

W. M. & J. C. MARTIN, Agents.

May 30, 1856.

The declaration went on to state that the barque Susan, while proceeding on her said voyage, and before her arrival at her port of destination or final delivery, was by the perils and damages of the sea, and by stormy and tempestuous weather, and the violence of the winds and waves, bulged, broken, damaged, and spoiled; that the said barque had to put back to Rio Janeiro, and was unable to proceed on her said voyage, &c., &c.

The defendants pleaded the general issue, and upon the trial the following bill of exceptions was taken, viz:

And on the trial of the issue aforesaid, the said M. C. Mordecai, by his counsel learned in the law, to maintain and prove the issue on his part, gave in evidence and proved that he was the owner of the barque Susan, and that he made an offer to the agents of the defendants in Charleston for insurance of four thousand dollars on the freight of said barque from Charleston to Rio Janeiro, and from thence to a port of discharge in the United States, at a premium of two per centum, and that the offer was accepted, and the premium paid, and that the policy, according to the usage of the said company, was in blank. But a memorandum was signed by the agent, in the terms following, viz: 'Mordecai & Co. are insured on freight of barque Susan, hence to Rio Janeiro, and from thence to a port of discharge in the United States.

Policy No. 209.

$4,000, at 2 p. c. $80.

June 11, 1855.

W. M. & J. C. MARTIN Agt's.'

That the vessel sailed from Charleston with a full cargo on the 11th day of June, 1855, when she was tight and strong, and arrived at the port of Rio Janeiro, where she discharged her outward lading, and took in a return cargo for the United States of thirty-eight hundred bags of coffee, at a freight of seventy-nine cents per bag, and on the 10th October, A. D. 1855, started on her return voyage, but by her want of strength and soundness was compelled to put back to Rio Janeiro, where she was condemned as unseaworthy and sold, and the whole freight of the return voyage was lost.

Whereupon the counsel for the defendant insisted that the policy was an open policy, and the insurers liable for only one thousand dollars; but the court ruled and so instructed the jury that the agreement proved was for a valued policy; and then the defendant insisted that the four thousand dollars having been insured on the round voyage, the insurers, from the evidence, were liable for only one-half of the sum insured, the other half being covered by the freight of the outward voyage, and prayed the court so to instruct the jury; which instruction his honor, the presiding judge, refused to give, but charged the jury that the loss of the freight on the return voyage was a total loss, and that upon the case as above stated the plaintiff was entitled to recover the whole amount underwritten by the defendants; to which last-mentioned instruction the defendant excepted; and the jury thereupon gave their verdict for the plaintiff as and for a total loss of the sum underwritten. to wit, for the sum of four thousand dollars and interest. Whereupon, the counsel for the said company, because the matter aforesaid doth not appear by the record of the verdict aforesaid, did allege their exception to the opinion of the said judge, and did require that he should put his seal to this bill of exceptions, and thereupon the said judge, at the request of the counsel of the said Insurance Company of the Valley of Virginia, did put his seal, at Columbia, this second day of December, in the year of our Lord one thousand eight hundred and fifty-seven.

A. G. MAGRATH, [SEAL.]

Whereupon, the jury found a verdict for the plaintiff for four thousand dollars, with interest and costs.

The case was argued by Mr. Robinson for the plaintiffs in error, and Mr. Phillips for the defendant.

Mr. Robinson contended that the plaintiff was not entitled to recover anything, but that the clause in the policy attached, which exempted the assurers from responsibility in case the vessel should be declared unseaworthy, and that she was not seaworthy when she sailed from Rio Janeiro. Upon this point he cited a number of authorities.

If the plaintiff was entitled to anything, his judgment is for too much, and his verdict is for too much.

The contract of insurance is one of indemnity.

Charleston Ins. and Trust Co. v. Corner, 2 Gill, 427, 428.

Franklin F. Ins. Co. v. Hamill, 6 ib., 95.

Here the bill of exceptions does not show a case of a valued policy, as in Davy v. Hallett, 3 Caines's Rep., 19; and Patapsco Ins. Co. v. Biscoe, 7 Gill and J., 294; but an open policy, as in Maitland v. Ins. Co., 3 Richardson, 332. No doubt the policy was for the whole voyage round, as in Columbian Ins. Co. v. Catlett, 12 Wheat., 386, 387. But treating the policy as open, the recovery could only be in respect of 3,800 bags of coffee, at a freight of seventy-nine cents per bag, amounting at most to $3,002.09. And then it might be a question whether from this there should not be a deduction in respect of the freight earned on the outward voyage from Charleston to Rio Janeiro.

Robertson v. Marjoribanks, 2 Stark., 573, 3 Eng. C. L., 480.

To avoid such deduction, the plaintiff has to insist that the freight insured is to be regarded as not on 'one entire voyage' from Charleston to Rio Janeiro, and thence to a port of discharge in the United States, but upon 'separate voyages' out and back, as in Rugg, &c. v. Augusta Ins. and Banking Co., 7 How., 610. This last position the appellants are not disposed to controvert; for treating the voyage from Rio Janeiro to a port of discharge in the United States as a 'separate voyage,' then, according to the opinion of Bosworth, J., in Van Valkenburgh v. Astor Mut. Ins. Co., 1 Bosworth, 66, the policy is, in effect, a distinct insurance for each separate voyage, and there is an implied warranty of the seaworthiness of the vessel, not only at the time of commencing the voyage from Charleston to Rio Janeiro, but also at the time of commencing the voyage from Rio Janeiro to a port of discharge in the United States.

Mr. Phillips called the attention of the court to the bill of exceptions, which showed that the court ruled, and so instructed the jury, that the agreement proved was for a valued policy, and that this ruling was not excepted to; nor was the question of the unseaworthiness of the vessel raised in the court below. The defendant having excepted only to the 'last-mentioned instruction,' as the bill states, there is but one question for review in this court, and that is the correctness of the 'last instruction.'

The second instruction, which was excepted to, raises only the question whether, on the assumption that the policy was a valued one, the amount insured was on the round voyage, or whether it was applicable to the risk of each voyage.

The defendant contended, and so asked the judge to instruct the jury, that the insurance was on the round voyage, and that they were therefore entitled to a deduction for the freight earned on the outward voyage. This was negatived in the charge, and to this 'last-mentioned instruction the defendant excepted.' This excludes with an emphasis any intention to except to the first instruction, which declared the policy to be a valued one.

The only question, therefore, is, whether this was a correct exposition of the law.

In the case of Hugg v. Augusta Insurance Company, 7 How., 610, the insurance was 'on freight of the barque Margaret Hugg, at and from Baltimore to Rio Janeiro, and back to Havana or Matanzas, or a port in the United States, &c., to the amount of $5,000,' &c.

It was insisted by defendants that the voyage insured was one entire voyage, and that they were entitled to a deduction of the freight earned on the outward cargo from Baltimore to Rio.

But this court said: 'We are of opinion that, upon a true construction of the policy, the insurance was upon every successive cargo that was taken on board in the course of the voyage out and home, and is to be applied to the freight at risk at any time, whether on the outward or homeward passage.'

Mr. Justice NELSON delivered the opinion of the court.


text: Talk:Insurance Company of the Valley of Virginia v. Mordecai (63 U.S. 111)


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1497

 1446 SEVENTIETH CONGRESS. SEss. I. CHs . 449,450,473,474 . 1929 . Resolved by the Senate and House of Representatives of the Cl aim of Un ited United States of America in Congress assembled, That the United States for security wa ived, under legacy States of America hereby waives any claim for security from the of Joseph Penn ell to Library of Congress. said Elizabeth Robins Pennell other than her own bond, for its benefit as residuary legatee and remainderman under the will of the said Joseph Pennell, and it is declared to be the opinion of Con- gress that such personal bond without surety would, if approved by the orphans' court, of Philadelphia County, adequately secure the interests of the United States under section 23 of the fiduciaries act of Pennsylvania. Approved, March 1, 1929. March 1, 1929. [S. J . Res.201.] [Pub. Res., No. 98.] Colorado River, etc. Water power permits upon , in design ated States, not to be issued until March 5, 19 30. Vol .41,p. 1063. Allowed if Boulder Dam Act effective. Ante, p. 1057. March 2, 1929. [S. 2901.] [Public, No. 899 .] Natio nal Prohibit ion Ac t. Punishment for vio- lation of, etc . Vol. 41, p. 307; Vol . 42, p. 222. Proviso. Discrimination in- tended between casual violations and habitual sales, etc . M ini mum penalties not repealed, etc. March 2, 1929. [H. R . 14472 .] [Public, No. 900 .] Mississippi River. T ime extended for bridging, at Vicksburg, Miss. CHAP. 450 .-Joint Resolution Restricting the Federal Power Commission from issuing or approving any permits or licenses affecting the Colorado River or any of its tributaries, except the Gila River. Resolved by the Senate and House of Representatives of the United States o f America in Congress assembled, That the Federal Power Commission is hereby directed not to issue or approve any permits or licenses under the provision of the Act of Congress approved June 10, 1920 (Forty-first Statutes, page 1063, known as the Federal Water Power Act), upon or affecting the Colorado River or any of its tributaries, except the Gila River and its tribu- taries, in the States of Colorado, Wyoming, Utah, New Mexico, Nevada, Arizona, and California, until the 5th day of March, 1930, unless prior thereto the Act approved December 21, 1928, known as the Boulder Canyon Project Act, becomes effective as therein provided. Approved, March 1, 1929. CHAP. 473 .-An Act To amend the N ational Prohibit ion Act, as amen ded and supplemented. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That wherever a penalty or penalties are prescribed in a criminal prosecution by the National Prohibition Act, as amended and supplemented, for the illegal manufacture, sale, transportation, importation, or expor- tation of intoxica ting liqu or, as de fined by section 1, Title I I, of the National Prohibition Act, the penalty imposed for each such offense shall be a fine not to exceed $10,000 or imprisonment not to exceed five years, or both : Provided, That it is the intent of Congress that the court, in imposing sentence hereunder, should discriminate be tween casual or sl ight v iolati ons an d habit ual sa les of intox icat- ing liquor, or attempts to commercialize violations of the la 1w. SEc. 2 . This Act shall not repeal nor eliminate any minimum pen- alty for the first or any subsequent offense now provided by the said National Prohibition Act. Approved, March 2, 1929. CHAP. 474.-An Act To extend the time for completing the construction of a bridge across the Mississippi River at the city of Vicksburg, Mississippi. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the time for complet ing th e cons tructi on of a brid ge acro ss the Missi ssippi River at the city o f Vick sburg, Missi ssippi, autho rized by the Act o f Con-

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Insurance Company of the Valley of Virginia v. Mordecai (63 U.S. 111)/Opinion of the Court

This is a writ of error to the Circuit Court of the United States for the district of South Carolina.

The suit was brought in the court below on a policy of insurance, for $4,000, on the freight of the barque Susan, on a voyage from Charleston to Rio Janeiro, and from thence to a port of discharge in the United States.

The vessel sailed with a full cargo on the 11th June, 1855, when she was stanch and strong, and arrived at the port of Rio Janeiro, where she discharged her outward lading, and took in a return cargo, and on the 10th October, 1855, started on her return voyage, but was compelled, for want of strength and soundness, to put back to the port of departure, where she was condemned as unseaworthy, and sold, and the whole freight of the return voyage lost.

The counsel, upon this state of facts, which is all that appears in the bill of exceptions, insisted that the policy was an open one, and the insurers liable for only one thousand dollars; but the court instructed the jury that the agreement proved was for a valued policy.

The counsel then insisted, that the four thousand dollars having been insured on the round voyage, the insurers, from the evidence, were liable only for one-half the sum insured-the other half being covered by the freight of the outward voyage; but the court charged, that the loss of the freight on the return voyage was a total loss, and that, upon the case as it appeared, the plaintiff was entitled to the whole amount underwritten. To this last instruction, the counsel for defendants excepted.

The counsel for the plaintiff in error, on the argument, referred to the clause in the policy by which 'it is also agreed, that if the above-named vessel, upon a regular survey, shall be declared unseaworthy, by reason of her being unsound or rotten, or incapable of prosecuting her voyage on account of her being unsound or rotten, then the assurers shall not be responsible on this policy;' and insisted that the condemnation of the vessel as unseaworthy, after returning back to the port of Rio Janeiro, brought the case within it.

But the answer to this position is, that no such question was made on the trial, or presented to the court for decision, and therefore cannot be entertained here; neither does the evidence in the case enable the counsel to raise any such question, as it does not appear that the condemnation proceeded from the causes specified in this clause of the policy. 7 Wh., 610; 10 ib., 418. It is enough, however, to say, that the question, for aught that appears in the bill of exceptions, was not raised on the trial.

As it respects the question whether the policy was an open or valued one, no exception was taken to the ruling that it was a valued one. The point was not pressed, probably; as we see, from a memorandum of the agents of the company in the case, that it was intended by the agreement to be a valued policy.

The remaining question, and indeed the only one presented in the bill of exceptions, is, whether the voyage insured is one entire voyage from Charleston to Rio Janeiro, and back to the port of discharge in the United States, and consequently the underwriters entitled to a deduction of the freight earned on the outward voyage?

The court is of opinion, upon the true construction of the policy, the insurance was upon the freight of each successive voyage, and is to be applied to the freight at risk at any time, whether on the outward or homeward voyage, to the amount of the valuation.

The case, in this respect, is not distinguishable from Hugg v. the Augusta Insurance and Banking Company, (7 How., 595.) See, also, 3 Caines, 16; 7 Gill. and John., 293; 2 Phillips on Insurance, 31, 34.

Judgment of the court below affirmed.


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1498

 SEVENTIETH CONGRESS. SEss. II. CHs. 474-477 . 1929 . 1447 gress entitled "An Act granting the consent of Congress to the Vicks- burg Bridge and Terminal Company to construct, maintain, and operate a bridge across the Mississippi River at or near the city of Vicksburg," approved May 3, 1926, be, and the same is hereby, extended to May 3, 1930. SEC. 2 . The right to alter, amend, or repeal this Act is hereby expressly reserved. Approved, March 2, 1929. Vol. 44, p. 388. Amen dment. March 2, 1929. CHAP. 475 .-An Act Authorizing the acceptance by the United States [II. R. 15330.] Government, from the Woman's Relief Corps, auxiliary to the Grand Army of [Public, No. 901 .1 the Republic, of proposed gift of bronze tablets to be placed in Andersonville National Cemetery in Georgia. Be it enacted by the Senate and House of Representatives of the United States o f America in Congress assembled, That the Secretary of War be, and he is hereby, authorized and directed to accept from the Woman's Relief Corps, auxiliary to the Grand Army of the Republic, a gift of bronze tablets, containing Lincoln's Gettysburg Address, and Logan's Memorial Day Order Numbered 11, to be placed on the grounds of the Andersonville National Cemetery in the State of Georgia, all expenses incident to the erection to be paid by the Woman's Relief Corps. Approved, March 2, 1929. Anders onvil le Na- tional Cemetery, Ga. Bronze tablets to be placed in, may be accepted . Inscriptions. March 2, 1929. CHAP. 476.-An Act To extend the times for commencing and completing 	[n .R. 15714.] the construction of a bridge across the Ocmulgee River at or near Fitzgerald, [Public, No. 902 .1 Georgia. Be it enacted by the Senate and House of Representatives of the United States o f America in Congress assembled, That the times for commencing and completing the construction of a bridge across the O cmulg ee Ri ver at or near Fit zgera ld, G eorgi a, a uthor ized to be built by J. E. Turner, his heirs, legal representatives, or assigns, Ante, p.403. by the Act of Congress approved April 4, 1928, are hereby extended one and three years, respectively, from April 4, 1929. SEC. 2 . The right to alter, amend, or repeal this Act is hereby expressly reserved. Approved, March 2, 1929. Ocmulgee River. Time extended for bridging, at Fitzgerald, Ga. Amendment. March 2, 1929. CHAP. 477 .-A n Act Aut horizing the Bainb ridge Isl and Chamb er of Com-	[x.R. 15850 .1 merce, a corporation, its successors and assigns, to construct, maintain, and operate a bridge across Agate Pass connecting Bainbridge Island with the main- land in Kitsap County, State of Washington. Be it enacted by the Senate and House of Representatives of the Agate Pass. United States of America in Congress assembled, That in order to Bainb ridge Islan d promote interstate commerce, improve the postal service, and pro- Chamber of Commerce may bridge, connecting vide for military and other purposes, Bainbridge Island Chamber Bainbridge Island with mainland in Kitsap of Commerce, a corporation, its successors and assigns, be, and is County, wash. hereby, authorized to construct, maintain, and operate a bridge and approaches thereto across Agate Pass connecting Bainbridge Island with the mainland in Kitsap County, State of Washington, at a point suitable to the interests of navigation, in accordance with the provi- sions of the Act entitled " An Act to regulate the construction of bridges over navigable waters," approved March 23, 1906, and sub- ject to the conditions and limitations contained in this Act. [Public, No. 903.1 Construction. Vol.34,p.84.

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text: Talk:Insurance Company of the Valley of Virginia v. Mordecai (63 U.S. 111)/Opinion of the Court


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 1448 SEVENTIETH CONGRESS. SEss. II. Cii. 477 . 1929 . Acqu isiti on anther- SEC. 2. After the completion of such bridge, as determined by the ized, after completion, by Washington, etc ° Secretary of War, either the State of Washington, any political subdi- vision thereof within or adjoining which any part of such bridge is located, or any two or more of them jointly, may at any time acquire and take over all right, title, and interest in such bridge and its approaches, and any interest in real property necessary therefor, Condemnation pro - by purchase or by condemnation or expropriation, in accordance ceedings. with the laws of such State governing the acquisition of private Compensation if ac- property for public purposes by condemnation or expropriation. If quired by condemna- tion. at any time after the expiration of ten years after the completion of such bridge the same is acquired by condemnation or expropriation, the amount of damages or compensation to be allowed shall not include good will, going value, or prospective revenues or profits Limitations, but shall be limited to the sum of (1) the actual cost of constructing such bridge and its approaches, less a reasonable deduction for actual depreciation in value ; (2) the actual cost of acquiring such interests in real property ; (3) actual financing and promotion cost, not to exceed 10 per centum of the sum of the cost of constructing the bridge and its approaches and acquiring such interests in real pr o pe rt y ; and (4) ac tual expendit ures for nece ssary improvem ents. Tolls und er s tate, SEC. 3. If such bridge shall at any time be taken over or acquired etc ., opera tion , by the State of Washington, or :-by any municipality or other political subdivision or public agency thereof, under the provisions of sec- Rates applied to op- tion 2 of this Act, and if tolls are thereafter charged for the use eration, sinking fund, thereof, the rates of toll shall be so adjusted as to provide a fund etc° sufficient to pay for the reasonable cost of maintaining, repairing, and operatin g the bridge and its appro aches under ec onomical man- agement and to provide a sinking fund sufficient to amortize the amount paid th erefor, inclu ding reasonabl e interest an d financing Maintenance as free cost, as soon as possible under reasonable charges, but within a period bridge, etc., after amor- of not to exceed twenty years from the date of acquiring same. After tizing costs, a sinking fund sufficient for such amortization shall have been so pro vided, such b ridge shall t hereafter be m aintained and operated free of tolls, or the rates of toll shall thereafter be so adjusted as to provide a fund of not to exceed the amount necessary for the proper R ecord of expe ndi- maintenance, repair, and operation of the bridge and its approaches tures and receipts. under economical management. An accurate record of the amount paid for acquiring the bridge and its approaches, the actual expedi- tures for maintaining, repairing, and operating the same, and of the daily tolls collected shall be kept and shall be available for the infor- mation of all persons interested. Sworn statement of SEC. 4. The Bainbridge Island Chamber of Commerce, a corpora- construction costs, etc ., to be flied after con- Lion, its successors and assigns, shall within ninety days after the pletion. com pletion of su ch bridge fil e with the Sec retary of War and with the highway department of the State of Washington, a sworn item- jzed statement showing the actual original cost of constructing the bridge and its approaches, the actual cost of acquiring any interest in real property necessary therefor, and the actual financing and pro- Examination by sec- motion costs. The Secretary of War may, and at the request of the rotary of War. highway department of the State of Washington shall, at any time within three years after the completion of such bridge, investigate such costs and determine the accuracy and the reasonableness of the costs alleged in the statement of costs so filed and shall make a find- ing of the actual and reasonable costs of constructing, financing, and promoting such bridge. For the purpose of such investigation the said Bainbridge Island Chamber of Commerce, a corporation, its Finding s of secretary successors and assigns, shall make available all of its records in con- conclusive. nection with the construction, financing, and promotion thereof. The findings of the Secretary of War as to the reasonable costs of the con-

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 SEVENTIETH C ONGRESS. SEss. IT. Cxs. 477, 478. 1929 . 1449 struction, financing, and promotion of the bridge, shall be conclusive for the purposes mentioned in section 2 of this Act, subject only to review in a court of equity for fraud or gross mistake. SEC. 5 . The right to sell, assign, transfer, and mortgage all the co Right d to se ll, etc., rights, powers, and privileges conferred by this Act is hereby granted to the Bainbridge Island Chamber of Commerce, a corporation, its successors and assigns ; and any corporation to which or any person to whom such rights, powers, and privileges may be sold, assigned, or transferred, or who shall acquire the same by mortgage foreclosure or otherwise, is hereby authorized and empowered to exercise the same as fully as though conferred herein directly upon such corporation or person. SEC. 6 . All contracts made in connection with the construction of Construction con- SEC. to be let to lowest the bridge authorized by this Act and which shall involve the expen- biddere diture of more than $5,000, shall be let by competitive bidding . Such Advertising ., e tc. contracts shall be advertised for a reasonable time in some newspaper of general circulation published in the State in which the bridge is located and in the vicinity thereof ; sealed bids shall be required and the contracts shall be awarded to the lowest responsible bidder. Verified copies or abstracts of all bids received and of the bid or bids accepted shall be promptly furnished to the highway department contracts void for of the State in which such bridge is located. A failure to comply in violations. good faith with the provisions of this section shall render null and void any cont ract made in violation thereof, and the Secretary of War may, after hearings, order the suspe nsion of all work upon such bridge until the provisions of this section shall have been fully complied with. SE C. 7. The right to alter, amend, or repeal this Act is hereby Amendment . expressly reserved. Approved, March 2, 1929. CHAP. 478 .-An Act To enable the Postmaster General to make contracts for the transportation of mails by air from possessions or Territories of the United States to foreign countries an d to the United Stat es and between such possessions or Territories, and to authorize him to make contracts with private individuals and corporations for the conveyance of mails by air in foreign countries. March 2, 1929. Eli. R. 16131 .] [Public, No. 904.] Be it enacted by the Senate and Home o f Representatives o f the United States o f America in Congress assembled, That the Act of Ante,p. 248. amend- March 8, 1928, entitled "An Act to grant authority to the Postmaster ed . General to enter into contracts for the transportation of mails by air to foreign countries and insular possessions of the United States for periods of not more than ten years and to pay for such service at fixed rates per pound or per mile, and for other purposes," be, and the same is hereby, amended to read as follows : cG Ten-year contracts SucT iox 1. When in his judgment the public interest will be authorized for air mail promoted thereby the Postmaster General is authorized to enter service between United Sta tes and poss essi ons, into contracts for air-mail service on routes between the United and foreign countries, States and possessions or Territories of the United States, between etc ., both ways. possessions or Territories of the United States, between the United States or possessions or Territories of the United States and foreign countries, and in and between foreign countries, for the trans- portation of mails of the United States and its possessions or Ter- ritories both was over the routes and in addition thereto mails Mails of other coun- t' tries on outbound and of other countries on the outbound or the inbound flights under inbound flights, arrangements he may make with such countries, for periods of not more than ten and to pay for such service at fixed Payment at pound or rates per pound and years, or er mile ; and the Postmaster General is mile rates.

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1501

 1450 SEVENTIETH CONGRESS. SESS. II. CHs. 478, 479 . 1929 . Awards to lowest re- hereby authorized to award such contracts to the bidders that he sponsible bidders. shall find to be the lowest responsible bidders that can satisfactorily perform the service required to the best advantage of the Go ver n- o ' . ment : Provided That the rate to be aid for such service for the Rate s specified. , p load of mails provided by the Postmaster Genera l to be carried in a plane shall not in any case exceed $2 per mile each way. plus not exceeding $1 per pound per thousand miles, or pro rata thereof for gre ater or less mileage, for any mails requ ired to be carried in the same plane in excess of the specified load, and that, at the request of the Postmaster General, domestic mail shall be conveyed without additional charge on that part of the route in the United Arra ngements wi th States to the border of the United States and to intermediate points air-mail concessionaires Provided further, That the Postmaster General may make arrange- in fore ign countries. m ents wit h co nces sion aire s op erat ing air- mail service in foreign co untries for tran sportati on by th eir serv ice of m ails of the Unit ed States and its possessions or Territories : And provided further, Decisio n of P•stmas ' T ter General final. hat in the award and interpretation of the contracts herein author- ized the decision of the Postmaster General shall be final and not subject to review by any officer or tribunal of the United States Rules, etc ., to be except by the President and the Federal courts. issued. SEC. 2. The Postmaster General shall make and issue such rules and regulations as may be necessary to carry out the provisions of this Act. Con trac ts u nder for - a SEC. 3. All contracts heretofore made by the Postmaster General mer Act, may be amended, under section 1 of the Act of March 8, 1928, entitled 'An Act to grant authorit y to the Postmaster General to enter int o contracts for the transportation of mails by air to foreign countries and insular possessions of the United States for periods of not mo re than ten years and to p ay for such service at fixed rates per p ound or per mile, and fo r other purposes ,' as ori ginally enacted, may be amended Provision for paces- mails, and transporta- under agreement of the parties thereto so as to provide for the trans- tion not covered by portation of excess mails and for transportation not covered by the existing contracts. existing contract of mails of the United States and its possessions Limitation, or Territories or of foreign countries, at not exceeding the contract rate per mil e and no t exceed ing the r ates per pound p rovided in sec- tion 1 hereof for excess mails ." Approved, March 2, 1929 . March 2, 1929 . [H. R. 16612.] CHAP. 479.-An Act Granting the consent of Congress for the construction [Public, No . 905.] o f dam or dams in Neches River, Texas . Be it enacted by the Senate and House o f Representatives o f the Neches River. United States o f America in Congress assembled, That the consent Construction of dam or dams across, above of Congress is hereby granted to the Neches Canal Company, Neches Beau mont, by desig- nated parties, author- Water Company, Beaumont Irrigating g Com p an y, the cit y of Beau- ized. mont, Texas, or the city of Port Arthur, Texas, or any one or more of them, to construct a dam or dams across the Neches River, at points suitable to the interests of navigation, above the city of Provisos . Beaumont Texas : Provided, That the work on such dam or dams App ro val of plans 7 ~ regnirea l shall not be c ommenced until t he plans therefo r have b een file d with and approved by the Secretary of War and the Chief of Engineers not authorized . power, of the United States Army : And provided further, That this Act shall not be construed to authorize the use of such dam to develop water power or generate hydroelectric energy. Amendmen t. SEC. 2 . That the right to alter, amend, or repeal this Act is hereby expres sly rese rved. Approved, March 2, 1929.

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text: Brewster v. Wakefield

title: Brewster v. Wakefield


text: Talk:Brewster v. Wakefield

title: Talk:Brewster v. Wakefield


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1502

 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the consent of cMaiv er. nr° Congress is hereby granted to the Camp Manufacturing Company, bgage co mpany may a corporation of the State of Virginia, its successors and assigns, to County, N.C. He rtrd construct, maintain, and operate a railroad bridge and approaches thereto across the Meherrin River, at a point suitable to the interests of navigation, at a point distant in a northwesterly direction along the center of said river about four and six-tenths miles from the confluence of said Meherrin River with the Chowan River, in Hert- ford County, in the State of North Carolina, in accordance with the provisions of an Act entitled "An Act to regulate the construction of brid ges over navig able wate rs," appro ved March 23, 1906 . SEC. 2. The right to sell assign, ttransfer, and mortgage all the Right to sell, etc., > b t, conferred. rights, powers, and privileges conferred by this Act is hereby granted to the Camp Manufacturing Company, a corporation of the State of Virginia, its successors and assigns; and any corporation to which or any person to whom such rights, powers, and privileges may be sold, assigned, or transferred, or which shall acquire the same by mortgage foreclosure or otherwise, is hereby authorized to exercise the same as fully as though conferred herein directly upon such corporation. SEC. 3. The right to alter, amend, or repeal this Act is hereby expressly reserved. Approved, March 2, 1929. Be it enacted by the Senate and House of Representatives of the United States o f America in Congress assembled, That the times for commencing and completing the construction of the bridge across the Mississippi River, at or near Tiptonville, Tennessee, authorized to be built by J. T. Burnett, his heirs, legal representatives, and assigns, by the Act of Congress approved May 14, 1928, are hereby extended one and three years, respectively, from May 14, 1929 . SEC. 2 . The right to alter, amend, or repeal this Act is hereby expres sly re served. Approved, March 2, 1929. Constru ction. Vol.34,p.84. Amendme nt. March 2, 1929. CHAP. 481 .-An Act To extend the times for commencing and completing 	[H. R.16959 .] the const ruction of a bridge acro ss the Missis sippi River at or near T iptonville, Tennessee. [Public, No. 907 .] Mississippi River. Time ext ended for bridging, at Tipton. ville, Te nn. Ante, p. 507 . Amendment . March 2, 1929. CHAP. 482 .-An Act To increase the membership of the National Advisory	[S. 5544 .] Committee for Aeronautics. [Public, No. 908 .] Be it enacted by the Senate and House of Representatives of the United States o f America in Congress assembled, That the mem- bers hip of the Nati onal Adv iso ry C ommi ttee for Ae rona utic s is hereby increased from twelve members to fifteen members
 * Provi ded,

That the three additional members to be appointed by the President shall be acquaint ed with t he needs of aeron autical s cience, e ither civ il or military, or skilled in aeronautical engineering or its allied sciences, and shall serve as such without compensation . Approved, March 2, 1929. 54835•-29-PT 1-95 National Advisory Committee for Aero- nau tic s. Membership in. cre ase d. Vol . 38, p. 930, amend- ed. Proviso. Qualifications. SEVENTIETH CONGRESS. SEss. II. Crrs. 480-482 . 1929. 1451 CHAP. 480 .-An Act Granting the consent of Congress to the Camp Manu- March 2, 1929. facturing Company to construct, maintain, and operate a railroad bridge across the Meherrin River, in Hertford County; North Carolina. [H. R. 16955.1 [Public, No. 906.]

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Brewster v. Wakefield/Opinion of the Court

THIS was an appeal from the Supreme Court of the Territory of Minnesota.

The facts of the case are fully stated in the opinion of the court.

It was argued for the appellant by Mr. Stevens, upon a brief filed by Mr. Brisbin and himself, and for the appellee by Mr. Bradley.

1. It is submitted that the court below erred in allowing to the plaintiff interest at the rate specified in the notes, after their maturity. That the legal and correct mode of estimating the amount due the plaintiff was to estimate the interest at the rates specified in the notes, respectively, up to the time of their maturity, (July 14th, 1855,) and from that time to the date of the decree at the rate of seven per cent. per annum.

Our statutes (vide Rev. Stat. of Minnesota, p. 155, chap. 35) fix the legal rate of interest at seven per cent. per annum, in all cases where no other rate is agreed upon by the parties, in writing.

The appellant agreed in writing to pay a certain sum, at a certain time, with interest thereon at a certain rate (or a certain other sum at interest) at the same time. His contract to pay interest did not extend beyond the time at which he agreed to pay it; the plaintiff, therefore, although entitled to interest upon his demand until the same is satisfied, is not so entitled by virtue of the defendant's contract to pay it, but by virtue of the law which allows interest upon all liquidated demands from the time they become due until they are paid.

Suppose the defendant, Brewster, had, at the maturity of the notes, paid the amount of interest then due, and taken the receipt of the plaintiff in full of such interest, would not his contract to pay interest have been thereby fully performed and discharged, and could the plaintiff have recovered interest thereafter upon the principal remaining unpaid at any greater rate than that fixed by law, upon all liquidated demands where the rate is not agreed upon by the parties?The rate of interest specified in the notes, it is submitted, is qualified and limited by the time therein specified for its payment, and there being no express agreement to pay interest after the maturity of the notes, it can be recovered from that time only as damages for the non-payment of principal when due. This is the true and only construction of the notes in this case; they contain upon their face no agreement, except to pay a certain sum with certain interest at a certain time. If the parties intended, that in default of payment of the notes at maturity, the same rate of interest should continue until paid, they should have expressed that intention by the use of appropriate words, such as 'and at the rate till paid;' or if the notes as drawn do not express the actual agreement which was made between the parties at the time the notes were given, the plaintiff should apply to a court of equity to reform them, and make them correspond with such agreement.

Bander v. Bander, 7 Barb. S.C.. Rep., 560, and cases there cited.

2. Authorities directly in point upon the question raised in this case are not numerous.

In Macomber v. Dunham, (8 Wend., 550,) it was held that a loan company, which was authorized by its charter to charge interest for a full month where the loan was for a period over fifteen days and less than one month, was not entitled, where a loan made for twenty days remained unpaid, to demand interest at the same rate for any subsequent time. The loan had remained unpaid for several months after it was due, and it was contended, on the part of the company, that an implied agreement was to be presumed that the interest was to be charged according to the terms upon which the loan was originally made, but the court say (page 553:) 'The true and only rational interpretation of this transaction is, that the loan which was made in December, in pursuance of the charter, not being renewed when it became due, the interest upon the debt then due, like the interest upon every other debt which has fallen due, is to be regulated by the general law of the State on that subject,' that is, seven per cent. per annum. This case establishes the principle, that where the rate of interest reserved by the contract is higher than the rate fixed by the statute, such higher rate continues only until the debt becomes due by the terms of the contract, and that after that the interest is recoverable only at the statute rate. This is precisely the principle contended for by the appellant.

In U.S. Bank v. Chapin, (9 Wend., 471,) it is held that a bank, which by law is limited to six per cent. interest upon all discounts, is entitled to recover at the rate of seven per cent. from the time the debt becomes due; that the clause in the charter limiting the rate of interest to six per cent. referred only to discounts in the ordinary course of business, and that the contract with the bank having been broken, the defendant was liable to pay the rate of interest fixed by the lex loci from the time the debt became due. In this case, the same principle was applied. By it, the lower rate (six per cent.) fixed by the law of the contract was increased to the statute rate, (seven per cent.,) after the debt became due. It operates both ways, simply because it is a principle.

The case of Ludwick v. Huntsinger, (5 Watts and Serg., 51, 60,) it seems to us, is directly in point. In that case it was held that 'a note payable at a future day with three per cent. interest from the date, carries that interest till the day of payment, and after that, carries lawful interest.'

This case is cited in a note to Chitty on Bills, (11 Am., from 9th Lond. ed.,) 682, marginal paging.

There are several cases in the Reports of the State of Alabama.

The first is the case of Clay v. Drake, (Minor, 164,) in which it is held, that where the rate of interest is not expressed in a contract, only the statute rate can be recovered in an action on such contract.

Another is the case of Henry v. Thompson, (Minor, 209,) and is as follows: 'In Alabama, a contract to pay interest at a rate exceeding eight per cent. per annum (the statute rate) must be in writing, signed by the party to be charged, and express that it is for the loan of money, &c.; and such interest is recoverable only for the stipulated time of forbearance.'

See, also, Kitchen v. Branch Bank of Mobile, 14 AlabamaIt is submitted that, upon principles of justice and of public policy, such extravagant and ruinous rates of interest as those specified in the notes in question should not be encouraged, but that on the contrary they should be discountenanced by the courts. Such contracts ought to receive a strict, rigid, and literal construction. If 'so nominated in the bond,' give 'the pound of flesh,' but 'no jot of blood.'

'The policy of all usury laws in modern times is to protect necessity against avarice, and to fix such a rate of interest as will enable industry to employ with advantage a borrowed capital, and thereby to promote labor and national wealth.' Per Ch. J. Best, in the House of Lords, (3 Bing., 193;) and his Lordship might have added, with equal truth, that the policy of these laws is to check the spirit of wild and extravagant speculations.

Mr. Bradley. Two preliminary questions arise on the face of this record:

1. Can the case be brought to this court by appeal?

2. Can Brewster alone take the appeal, and without making the other defendants parties?

As to the first: The case is somewhat anomalous. The proceeding certainly is not in a court of equity, or of admiralty and maritime jurisdiction, but a court of law created by statute which has abolished the distinction of law and equity. It is a final judgment in a civil action other than in a case of equity, or of admiralty and maritime jurisdiction, and as such is by statute the subject of a writ of error.

Act 24 Sept., 1789, sec. 22, 1 Stat., 83.

3 March, 1803, sec. 2, 2 Stat., 244.

Courts of equity are distinct in their forms and modes of proceeding, as well as their jurisdiction, from courts of common law, and they are peculiarly placed under the direct control of this court; with this limitation, they are understood to be governed by the principal usages and rules of the English courts of chancery at the time of the Revolution.

See 1 Stat., 276.

4 Stat., 278.

5 Stat., 499.

Vattier v. Hinde, 7 Pet., 274.

Their jurisdiction, rules of decision, and remedies, are the same in all the States.

Boyle v. Zacharie, 6 Pet., 658.

Neves v. Scott, 13 How., 268.

From any other court except a court of equity or admiralty jurisdiction, a case can be brought to this court by writ of error only.

The San Pedro, 2 Wheat., 132.

McCollum v. Eager, 2 How., 61.

Parish v. Ellis, 16 Pet., 451.

As to the second question: It is a case in which there are several defendants claiming in the same right immediately or derivatively, against whom the same joint decree has passed, finally settling their rights, and the appeal is prayed by one only.

An appeal will not lie in such a case by one only.

Owings and others v. Kincannon, 7 Peters, 399.

Todd and others v. Daniel, 16 Peters, 521.

It is submitted the case ought to be dismissed.

If the case is properly before this court, the points following will be relied on by the defendant in error upon its merits:

I. The rate of interest having been agreed on by the parties, and reduced to writing, the contract is authorized by the statute.

Rev. Stat. Min., p. 155, ch. 35.

II. The contract being in writing, it is the province of the court to interpret and carry it into effect according to the intention of the parties.

Story on Con., p. 556, sec. 633, 634.

7 Barb. S.C.., 560.

III. If the terms are ambiguous, or the intention is doubtful, they are to be taken most strongly against the promissor.

The maxim, 'verba chartarum fortius accipiuntur contra proferentem,' (Co. Litt., 36 a,) is as applicable to contracts not under seal as to those of greater solemnity.

Mayer v. Isaacs, 6 Mees. and Wels., 612.

Hargrave v. Smee, 6 Bing., 248.

Stephens v. Pell, 2 Cr. and M., 710.

Edis v. Bury, 6 B. and C., 433.

IV. Interest is a compensation for the use or detention of money, and is regulated by contract, express or implied, or given by law. The latter should more fitly be called damages. They rest on different principles, the one arising from the assent of the parties, the other from a duty created by law. This is an express contract for the use of the money. The terms import a continuance of the same rate for its detention.

1. It uses the words 'interest;' 'interest from date.'

These words have a definite signification. They show that it was made with reference to an understood compensation, the right to which would continue until the payment of the principal sum, with all the accumulated interest, or until judgment recovered, when the statutory interest would begin and run on the gross sum of principal and interest to that date; for if an amount equal to the principal debt should be paid, that would be applied first to the payment of the interest, and the residue would still bear interest. Nor could the promissor have paid the debts, or either of them, before the appointed time, so as to stop the interest; for the time is a part of the contract, and of the consideration on which the money was lent, and was made so for the benefit of the creditor.

Ellis v. Craig, 7 Johns. Ch., 7.

2. The interest is to run from the date of the notes in the one case at the rate of twenty per cent. per annum; in the other, at the rate of two per cent. per month. Language could with difficulty be found more clearly to import that the parties contemplated the possibility of the non-payment of the debts at their maturity, and intended in that event to fix the rate of interest to be allowed and paid for its detention. They do not say the debt is to be paid at the expiration of twelve months, with twenty per cent. in the one case, and twenty-four in the other, added. But the notes are to bear interest from their date, at certain fixed rates. Without such agreement, the rate of interest would have been seven per cent. That would have run either from the time the debt became due, or such other time as the parties specified in writing. When, then, they in terms say the interest shall be at certain rates agreed upon by them in writing, they can intend neither more nor less than that rate shall take the place of the statutory rate with all its incidents. It is but substituting, in the terms allowed by the statute, the conventional interest agreed upon by themselves.

V. It is to be construed as every other contract, to make compensation for the use of another man's property. The hire of labor, the rent of a house or machinery, stand on the same principle. If there is no contract, the owner is entitled to recover whatever the jury may find he should reasonably receive. But if there is a contract for a definite period, at a certain rate, and the relation of the parties continues unchanged, the rate of compensation likewise continues. So here the hire of this money and the rate of compensation being fixed by agreement, the rate must continue so long as the money is detained in the use or employment of the borrower. The statute does not come to the relief of the party who has made his own law.

It is therefore submitted that there is no error in the decree of the court below.

Mr. Chief Justice TANEY delivered the opinion of the court.

This case comes before the court upon appeal from the judgment of the Supreme Court of the Territory of Minnesota, before its admission into the Union as a State.

It appears that a suit was instituted in the District Court, in the county of Ramsey, by Wakefield, the appellee, against the appellant and others, in order to foreclose a mortgage made by the said Brewster and his wife, of certain lands, to secure the payment of three promissory notes mentioned in the proceedings. The notes are not set out in full in the transcript, but are stated by the complainant in his petition, or bill of complaint, to have been all given by Brewster on the 11th of July, 1854, whereby, in one of them, he promised to pay, twelve months after the date thereof, to the order of Wakefield, the appellee, the sum of five thousand five hundred and eighty-three dollars and twenty-five cents, with interest thereon at the rate of twenty per cent. per annum from the date thereof, for value received; and in another, promised to pay to the order of the said Wakefield the further sum of two thousand dollars, twelve months after the date thereof, with interest thereon at the rate of two per cent. per month from the date; and by a third one, promised to pay to the order of the said Wakefield, six months after date, the further sum of one thousand dollars, with interest at the rate of two per cent. per month. This last-mentioned note is admitted to have been paid, and these proceedings were instituted to recover the principal and interest due on the two first.

No defence appears to have been made by the appellant, and the notes were admitted to be due. But when the court was about to pass its decree for the sale of the mortgaged premises, and ascertain and determine the sum due, the appellant, by his counsel, appeared and objected to the allowance of more than the legal rate of interest (seven per cent.) after the notes became due and payable. Wakefield, on the contrary, claimed that interest should be allowed at the rate mentioned in the notes, up to the time of the judgment or decree for the sale. And of this opinion was the court, and by its decree, dated June 20th, 1855, adjudged that the sum of $10,670.77 was then due and owing for principal and interest on the said two notes, and ordered the mortgaged premises, or so much thereof as might be necessary, to be sold to raise that sum.

This decree or judgment was carried by writ of error, according to the practice in the Territory, before the Supreme Territorial Court; and was there, on the 29th of January, 1857, affirmed, with ten per cent. damages, and also legal interest on the sum awarded by the District Court, amounting altogether to the sum of twelve thousand five hundred and thirty-eight dollars and nine cents. For the payment of that amount, with costs, the mortgaged premises were ordered to be sold.

From this last-mentioned decision an appeal was taken to this court.

There is no question as to the validity of the notes or mortgage; gage; and it is admitted that no and it is admitted that no paid. The question in controversy between the parties is, whether, after the day specified for the payment of the notes, the interest is to be calculated at the rates therein mentioned, or according to the rate established by law, when there is no written contract on the subject between the parties. The question depends upon the construction of a statute of the Territory, which is in the following words:

'Sec. 1. Any rate of interest agreed upon by the parties in contract, specifying the same in writing, shall be legal and valid.

'Sec. 2. When no rate of interest is agreed upon or specified in a note or other contract, seven per cent. per annum shall be the legal rate.'

Now, the notes which formed the written contracts between the parties, as we have already said, are not set out in full in the record. We must take them, therefore, as they are described by the complainant, as his description is not disputed by the appellant; and, according to that statement, the written stipulation as to interest, is interest from the date to the day specified for the payment. There is no stipulation in relation to interest, after the notes become due, in case the debtor should fail to pay them; and if the right to interest depended altogether on contract, and was not given by law in a case of this kind, the appellee would be entitled to no interest whatever after the day of payment.

The contract being entirely silent as to interest, if the notes should not be punctually paid, the creditor is entitled to interest after that time by operation of law, and not by any provision in the contract. And, in this view of the subject, we think the Territorial courts committed an error in allowing, after the notes fell due, a higher rate of interest than that established by law, where there was no contract to regulate it. The cases of Macomber v. Dunham, 8 Wend., 550; United States Bank v. Chapin, 9 Wend., 471; and Ludwick v. Huntsinger, 5 Watts and Serg., 51, 60, were decided upon this principle, and, in the opinion of this court, correctly decided.

Nor is there anything in the character of this contract that should induce the court, by supposed intendment of the parties or doubtful inferences, to extend the stipulation for interest beyond the time specified in the written contract. The law of Minnesota has fixed seven per cent. per annum as a reasonable and fair compensation for the use of money; and where a party desires to exact, from the necessities of a borrower, more than three times as much as the Legislature deems reasonable and just, he must take care that the contract is so written, in plain and unambiguous terms; for, with such a claim, he must stand upon his bond.

A question has been raised by the appellee, as to the jurisdiction of this court. The laws of the Territory have abolished the distinction between cases at law and cases in equity, and both are blended in the same proceeding, without any regard to the forms and rules of proceeding, either at law or in equity, and a case cannot be removed from an inferior to an appellate Territorial court, except by writ of error. And it is urged that this case, under the laws of Minnesota, ought to be regarded as a case at law, and removable to this court by writ of error only, and not by appeal.

But the case presented by the record is not a case at law, according to the meaning of those words, in courts which recognise the distinction between law and equity. On the contrary, it is a proceeding in the nature of a bill in equity to foreclose a mortgage, in which the facts as well as the law are to be decided by the court; and an appeal, and not a writ of error, was the appropriate mode of bringing the case before this court. The laws or practice of the Territory cannot regulate the process by which this court exercises its appellate power. Nor, indeed, can there be any such thing as a suit at law, as contradistinguished from a suit in equity, in the courts of the Territory, where legal rights and equitable rights must be blended together and prosecuted in the same suit, without any regard to the rules and practice of courts of common law or courts of equity.

Nor was it necessary that the parties who acquired liens on the mortgaged premises subsequent to the mortgage in question should join in the appeal. They were not necessary parties in a proceeding in equity to foreclose the mortgage, and none of them have appeared to the suit to contest the claim of Wakefield. And if it had been otherwise, yet the question in controversy here is the amount of the debt due from the appellant; and in the case of Forgay v. Conrad, 6 How., 201, this court decided that a defendant in equity, whose interest is separate from that of the other defendants, may appeal without them.

We have no doubt of the jurisdiction of the court upon this appeal; and the judgment and decree of the Supreme Court of the Territory must be reversed, for the error above mentioned.


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1503

 1452 SEVENTIETH CON GRE SS. SEss. II. CH. 483. 1929 . March 2, 1929. [H. R. 16714.] [Public, No. 909.] CHAP. 483 .-An Act Making appropriations for the Navy Department and the naval service for the fiscal year ending June 30, 1930, and for other purposes. Be it enacted by the Senate and House o f Representatives o f the United States o f America in Congress assembled, That the following sums are appropriated, out of any money in the Treasury not other- wise appropriated, for the Navy Department and the naval service for the fiscal year ending June 30, 1930, namely Na val Est ablish- ment. NAV AL EST AB LIS HME NT Secretary's Office. OFFICE OF THE SECRETARY Pay, miscellaneous. PAY, MISCEL LANEOU S Exp enses design ated. For commissions and interest; transportation of funds, including the cost of insurance on shipments of money by registered mail when Attendance at meet- necessary; exchange; for traveling expenses of civilian employees; ings. and not to exceed $5,000 for the expenses of attendance, at home and abroad, upon meetings of technical, professional, scientific, and other similar organizations when, in the judgment of the Secretary of the Navy, such attendance would be of benefit in the conduct of the work of the Navy Department; not to exceed $2,000 for the part time or intermittent employment in the District of Columbia or else- where of such experts and a t such rates o f compensatio n as may be contracted for by and in the discretion of the Secretary of the Navy actual expenses of officers and midshipmen while on shor e pa trol duty, including the hire of automobiles when necessary for the use of shore patrol detachments; hire of launches or other small boats in Asiatic waters; for rent of buildings and offices not in navy yards; expenses of courts-martial, including law and reference books, prisoners and prisons, and courts of inquiry, boards of inspection, examining boards, with clerks, and witnesses' fees, and traveling expenses and costs; expenses of naval defense districts; stationery Advertising, etc. and recording; religious books; newspapers and periodicals for the naval service; all advertising for the Navy Department and its bureaus (except advertising for recruits for the Bureau of Naviga- tion); copying; ferriage; tolls; costs of suits; relief of vessels in distress; recovery of valuables from shipwrecks; quarantine expenses; reports; professional investigation; cost of special instruction at abroad, rmction from home and abroad, including maintenance of students and attaches; information from abroad and at home, and the collection and classifi- cation thereof; all charges pertaining to the Navy Department and its bureaus for ice for the cooling of drinking water on shore (except at naval hospitals), and not to exceed $170,000 for telephone rentals Interned prisoners of and tolls, telegrams and cablegrams; postage, foreign and domestic, war, etc. and post-office box rentals; for necessary expenses for interned per- sons and prisoners of war under the jurisdiction of the Navy Depart- ment, includ ing fu neral expen ses fo r s uch in terned perso ns or Damages claims. prisoners of war as may die while under such jurisdiction, and for Vol. 41, p. 132. payment of claims for damages as provided in the Act making U. S. C.,p.1127. appropriations for the naval service for the fiscal year 1920, approved Provisos. July 11, 1919 (U. S. C., p. 1127, sec. 600); and other necessary and Restriction on use in incidental expenses; in all, $1,500,000 : Provided, That no part of nav al districts, this appropriation shall be available for the expense of any naval district unless the commandant thereof shall be also the commandant of a navy yard, naval training station, or naval operating base Clerical, etc ., services Provided further, That the sum to be paid out of this appropriation, at yards and stations. under the directin of the Secretary of the Navy, for clerical, inspec- ti on, and messe nger service i n navy yards and naval sta tions, for the fiscal year ending June 30, 1930, shall not exceed $517,000.

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text: Talk:Brewster v. Wakefield/Opinion of the Court


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1504

 SEVENTIETH CONGRESS. SEss. II. CH. 483 . 1929 . 1453 CON TIN GEN T, NAV Y Fo r all emerge ncies and ex traord inary expense s, exc lusive of pe r- sonal services in the Navy Department or any of its subordinate bureaus or offices at Washington, District of Columbia, arising at home or abroad, but impossible to be anticipated or classified, to be expended on the approval and authority of the Secretary of the Navy, and for such purposes as he may deem proper, and for exami- nation of estimates for appropriations in the field for any branch of the naval service, $40,000. TEMPORARY GOVERNMENT FOR WEST INDIAN ISLANDS Contin gent, N avy. Virgin Islands. For exp enses incide nt to the oc cupati on of t he Vir gin Is lands and meaTemporary govern- to the execution of the provisions of the Act providing a temporary government for the West Indian Islands acquired by the United States from Denmark, and for other purposes, approved March 3, Vol.39,p.1132. 1917 (U . S . C ., p. 1643, sec . 1391), to be applied under the direction Hurricane u. cp. 1ma. damage re- of the President, $314,000, of which $49,000 may be expended for pairs, etc. public works projects damaged or deferred by reason of the hurri- cane which occurred during September, 192 8, and in addition thereto expended bala pen ded ba nces un- ces - such an amount (not in excess of $20,000) as may be equivalent to Ante, p. 625. (a) the t otal o f the unobli gated balanc es of t he rev enues collec ted and paid into the treasuries of such islands during the fiscal year 1929, and of the appropriation " Temporary Government for West Indian Islands, 1929," plus (b) the sum by which the revenues col- nn From insular reve- lected and paid into the treasuries of such islands during the fiscal Precise. Of ficia ls ho lding al- year 1930 exceed the sum of $265,000 : Provided, That no part of any legiances to an y other appropriation contained in this Act shall be paid to anyone holding countom excluded pay office in the Colonial Councils of the Virgin Islands or other public office under the government of said islands who owes allegiance to any country other than the United States of America. STATE MARINE SCHOOLS, ACT MARCH 4, 1911 Marine schools. To reimburse the State of New York, $25,000 ; the State of Massa- Reimbursing New > York, Massa chusett s, chusetts, $25,000 ; and the State of Pennsylvania, $25,000, for and Pennsylvania for. expenses incurred in the maintenance and support of marine schools in such States as provided in the Act authorizing the establishment Vol. 36, p. 1353. of marine schools, and so forth, approved March 4, 1911 (U . S. C ., U.S. Code, p.1150. p . 1150, sec . 1121) ; in all, $75,000. CARP, OF LEPERS, AND SO FORTH, ISLAND OF GUAM Naval station, island of Guam. For maintenance and care of lepers, special patients, and for other purposes, including cost of transfer of lepers from Guam to the island of Culion, in the Philip- pines, and their maintenance, $22,000 ; for educational purposes, $13,000 ; in all, $35,000. NAVAL RES EARCH LA BORATORY Lepers, etc Care, etc., Culion, P.I. Research laboratory. For laboratory and research work and other necessary work of seWce . •f, for naval the naval research laboratory for the benefit of the naval service, including operation and maintenance of a laboratory, additions to equipment necessary properly to carry on work in hand, maintenance of buildings and grounds, temporary employment of such scientific civilian assistants as may become necessary, and subscriptions to technical periodicals, to be expended under the direction of the Provisos. Secretary of the Navy, $222,350 : Provided, That $15 .000 of this atc Temporary scientists, . app ropri atio n sha ll be ava ilabl e for the temp orary empl oyme nt of

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1505

 1454 Technical, etc., serv- ices. Bureau of Naviga- tion. Recreation for en- listed men. Proviso. Pap r estr ictio n. Contingent. Gunnery and engi- neering exercises. Badges, ranges, etc. Equipment supplies, etc. Proviso. Clerical, etc ., se rv - ices. SEVENTIETH CONGRESS. SEss. II. Cfi. 483 . 1929 . civilia n scientists and technicist s required on special probl ems : Provided further, That the sum to be paid out of this appropriation for technical, drafting, clerical, and messenger service shall not exceed $100,000 in addition to the amount authorized by the preced- ing proviso. BUREAU OF NAVIGATION RECREATION FOR ENLISIED MEN, NAVY For the recr eation, amuse ment, comfort, contentment, and health of the Navy, to be e xpended in the discretion of the Secretar y of the Navy, under such regulations as he may prescribe, $400,000 : Prov ided, That the amo unt paid fro m th is a ppro pria tion for per sona l services of field employees, exclusive of temporary services, shall not exc eed $35, 000. CONT ING ENT , BUREAU OF N AVI GAT ION For continuous-service certificates, commissions, warrants, diplo- mas, discharges, good-conduct badges, and medals for men and boys; purchase of gymnastic apparatus; transportation of effects of deceased officers, nurses, and enlisted men of the Navy, and of officers and men of the Naval Reserve who die while on duty; books for training apprentice seamen and landsmen; packing boxes and materials; books and models; stationery; and other contingent expenses and emergencies arising under cognizance of the Bureau of Navigation, unforeseen and impossible to classify, $10,000. GUNNERY AND ENGINEERING EXERCISES, BUREAU OF NAVIGATION For trophies and badges for excellence in gunnery, target practice, engineering exercises, an d for economy in fuel consu mption, to be awarded under such rules as the Secretary of the Navy may formu- late; for the purpose of recording, classifying, compiling, and publishing the rules and results; for the establishment and mainte- nance of shooting galleries, target houses, targets, and ranges hiring established ranges, and for transporting equipment to and from ranges; entrance fees in matches for the rifle team, and special equi pmen t th eref or, $46, 950. IN STRUMENT S AND SUP PLIES, B UREAU OF NAVIGATI ON For supplies for seamen's quarters; and for the purchase of all otner articles of equipage at home and abroad; and for the payment of labor in equipping vessels therewith and manufacture of such articles in the several navy yards; all pilotage and towage of ships of war; canal tolls, wharfage, dock and port charges, and other necessary incidental expenses of a similar nature; services and mate rial s in rep airi ng, corr ecti ng, adju stin g, a nd t esti ng c ompa sses on shore and on board ship; nautical and astronomical instruments and repairs to same; libraries for ships of war, professional books, schoolbooks, and papers; maintenance of gunnery and other training classes; compasses, compass fittings, including binnacles, tripods, and other appendages of ship's compasses; logs and other appliances for measuring the ship's way and leads and other appliances for sound- ing; photographs, photographic instruments and materials, printing outfit and materials; music and musical instruments; and for the necessary civilian electricians for gyrocompass testing and inspec- tion; in all, $592,000 : Provided, That the sum to be paid out of this appropriation under the direction of the Secretary of the Navy for clerical, drafting, caretaker (chronometer), and messenger service for the fiscal year ending June 30, 1930, shall not exceed $8 .400.
 * for

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Page:United States Statutes at Large Volume 45 Part 1.djvu/1506

 SEVENTIETH CONGRESS. SEss. II. CII. 483 . 1929. 1455 OCEAN AND LAK E SURVEYS , BUREAU OF NAVI GATION For hydrographic surveys, including the pay of the necessary veOO can and l alre sur- hydrographic surveyors, cartographic draftsmen, and recorders, and for the purchase of nautical books, charts, and sailing directions, $85,800. NAVAL TRAINING STATIONS, BUREAU OF NAVIGATION Training stations. Fo r main tenanc e, inc luding labor and m aterial, heat , ligh t, wat er, Main tenanc e, etc. general care, repairs, and improvements ; schoolbooks ; and all other incidental expenses for the naval training stations that follow San Die go, Ca liforn ia, $1 80,000 ; California. Newport, Rhode Island, $235,000 ; Rhode Island. Great Lakes, Illinois, $279,000 ; minis. Hampt on Ro ads, Virg inia, $230 ,000 ; Virginia. Provided, That the amount to be paid out of each of the foregoing Clerical, etc ., service. sums under the direction of the Secretary of the Navy for clerical, drafting, inspection, and messenger service for the fiscal year ending June 30, 1930, shall not exceed S12,600, except for Great Lakes and Newpo rt, wh ich sh all no t exce ed $13 ,750 an d $14, 000, r espect ively. NAVAL RESERVE Naval Reserve. For expenses of organizing, administering, and recruiting the organizin g, recruit- ing, etc., expenses. Naval Reserve and Naval Militia ; pay and allowances of officers and Pay, etc., on active enlisted men of the Naval Reserve when employed on authorized duty' training duty ; mileage for officers while traveling under orders to and from trai ning duty ; tr anspor tation of en listed men t o and f rom training duty, and subsistence and transfers en route, or cash in lieu thereof ; subsistence of enlisted men during the actual period of training duty ; subsistence of officers and enlisted men of the Fleet Fleet Naval Reserve, train ing subsistence. Nava l Re serve whil e pe rform ing a uthor ized trai ning or o ther duty without pay ; pay, mileag e, and allow ances of off icers o f the Naval Pa y, etc° Reserve and pay, allowances, and subsistence of enlisted men of the Nava l Re serve when ord ered to ac tive duty in c onnec tion with the instruction, training, and drilling of the Naval Reserve ; pay of officers and enlisted men of the Fleet Naval Reserve for the per- formance of drills or other equivalent instruction or duty, or appro- priate duties, and administrative duties, exclusive, however, of pay, allowances, or other expenses on account of members of any class Flight training. of the Naval Reserve incident to their being given flight training unless, as a condition precedent, they shall have been found by such agency as the Secretary of the Navy may designate qualified to perform combat service as pilots of naval air craft, $4,740,000, of which amo unt no t more than $170,0 00 sha ll be availab le for maint enance and etA Armo ries, wharfage, ren tal of ar mories, i ncluding pay of ne cessary j anitors, and for w harf- age, not mor e than $7 8,011 sha ll be ava ilable fo r clerica l and mes senger serv ices f or Nav al Res erve a dminis tration in na val st ations and d is- tricts for the fiscal year ending June 30, 1930, not more than $882,931 shall be available, in addition to other appropriations, for aviation Aviation expenses. material, equipment, fuel, and rental of hangars, and not more than $754,816 shall be available, in addition to other appropriations, for F uel, etc, fue l and the transpor tation th ereof, an d for all other ex penses in con- nection with the maintenance, operation, repair, and upkeep of vessels assigned for training the Naval Reserve. NAVA L RESE RVE OFF ICERS' TRAINI NG CORP S Naval Reserve Offi- cers' Training Corps. For the procurement, maintenance ., and issue, under such regula- Procuring supplies, tions as may be prescribed by the Seretary of the Navy, to institu- etc ., for units of. tions at which one or more units of the Naval Reserve Officers' Train-

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text:
Roach v. Chapman

THIS was an appeal from the Circuit Court of the United States for the eastern district of Louisiana, sitting in admiralty.

The steamer Capitol was libelled in the District Court of the United States for the eastern district of Louisiana, by Roach & Long, residing at Louisville, in Kentucky. The libel was filed under the general admiralty law and the law of the State of Kentucky for $2,347.48, part of the price of the engine and boilers of the steamer Capitol, furnished at Louisville. The District Court sustained the claim, but the Circuit Court reversed the decree, and dismissed the libel for want of jurisdiction. The libellants appealed to this court.

The case was argued for the appellants by Mr. Benjamin, no counsel appearing for the appellees.

Mr. Benjamin made the following points:

1. As to the existence of a lien in favor of the builder, under the general maritime law, the adverse opinion of the Circuit Court will not be called in question, as the decision of this court in the case of the People's Ferry Co. of Boston v. Beers et al., 20 Howard, 393, must be considered as conclusive on this point.

2. But a lien in this case was given both by the law of the State of Kentucky, where the boat was built, and by that of the State of Louisiana, where she was intended to be employed, and where the libel was filed.

Revised Statutes of Kentucky, 143, sec. 2.

La. Civ. Code, 3204.

This lien, under the law of Kentucky, where the contract for the work was made, was available for one year only from the time the cause of action accrued, as against a purchaser without actual notice, or such constructive notice as is afforded by endorsement on the enrolment.

The libel was filed before the adoption of the new twelfth rule in admiralty, which took effect only on the 1st May, 1859.

21 Howard's Rep., 4.

The cause of action accrued on the 5th January, 1855, and the libel was filed within the year, viz: on the 15th December, 1855.

3. The District Court, sitting in admiralty, had jurisdiction to enforce this lien.

Read v. the hull of a new Brig, 1 Story, 244.

Davis v. a new Brig, Gilpin's R., 473, 536.

The Young Mechanic, 2 Curtis, 402.

The Richard Busteed, 21 Law Reporter, 601.

1 Parsons on Mar. Law, 501, 499, note.

2 Parsons on Mar. Law, 504, 505, 639, and seq.

The Steamboat Superior, 1 Newberry, 176.

The Propeller Chs. Mears, 1 Newberry, 197.

4. The lien thus created was not divested by the departure of the vessel from the port of Louisville, nor by any subsequent change of ownership, nor by virtue of any provision of the law of Louisiana, if asserted within a reasonable period, and without laches.

Liens of material men follow the vessel into whatever hands it passes.

1 Parsons on Mar. Law, 500, note.

Sheppard v. Taylor, 5 Peters, 675.

The Sloop Canton, 21 Law Rep., 473.

The Barque Chusan, 2 Story, 456.

But in the present case there has been no bona fide change of ownership.

The vessel really belongs to the party to whom the engines were furnished. This being the case, there is no conflict with the law of Louisiana, as supposed by the circuit judge. Such conflict could only exist if the rights of third persons were involved.

5. The taking of drafts for the unpaid balance of the price of the engines was no waiver of the lien. The drafts were offered to be surrendered at the hearing in the District Court.

The Brig Nestor, 1, Sumner, 73.

The Barque Chusan, 2 Story, 455.

Leland v. Ship Medora, 2 Woodb. and Minot, 92.

Raymond v. Schr. Ellen Stewart, 5 McLean, 269.

Sutton v. the Albatross, 2 Wallace, 327.

Ramsey v. Allegre, 12 Wheaton, 611.

Mr. Justice GRIER delivered the opinion of the court.

title: Roach v. Chapman


text: Talk:Roach v. Chapman

title: Talk:Roach v. Chapman


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Page:United States Statutes at Large Volume 45 Part 1.djvu/1507

 1456 ing Corps are established, of such means of transportation, books, supplies, tentage, equipment, and uniforms as he may deem necessary, and all other miscellaneous items, including cleaning and laundering of uniforms and clothing at camps or on board ship ; and to pay com- mutation in lieu of uniforms at a rate to be fixed annually by the Secretary of the Navy ; for transporting supplies and equipment from place of issue to the several institutions, training camps, and ships Expenses of instruc- and return of same to place of issue when necessary ; for the estab- tion camps and ship lishment and maintenance of camps of instruction, and schools on schools. ships for the further practical instruction of members of the Naval Reserve Offi cers' Trainin g Corps, and for transporti ng members of such corps to and from camps, ships, or other designated places of instruction, and to subsi st them while traveling to and from such camps or ships and while remaining therein so far as appropriations will permit or, in lieu of transporting them to and from such camps Commutation of or ships and subsisting them while en route, to pay them travel allow- travel allowance. ance at the rate of 5 cents per mile for the distance by the shortest usually traveled route from the places from which they are authorized to proceed to the camp or ship and for the return journey thereto, and to pay the return travel pay in advance of the actual performance of the travel ; for pay for students attending advanced camps or Sub sis ten ce com mu- advanced schools on ships at the rate prescribed for enlisted men of tatio n to senio r div is- the seventh pay grade ; for the payment of commutation of sub- ion. sistence to members of the senior division of the Naval Reserve Medical etc., treat- Officers' Training Corps, at a rate not exceeding the cost of the com- ment. muted ration of the Navy ; for medical and hospital treatment, sub- sist ence unt il f urni shed tra nspo rtat ion, and tra nspo rtat ion when fit for travel to their homes of members of the Naval Reserve Officers' B urial expe nses, etc. Training Corps injured in line of duty while at camps of instruction or on ships ; and for the cost of preparation and transportation to their homes and burial expenses of the remains of the members of the Naval Reserve Officers' Training Corps who die while attending camps of instruction or on ships ; and for the cost of maintenance, repair, and operation of motor-propelled passenger-carrying vehicles, $105, 000 : Provided, That uniforms and other equipment or material issued to the Naval Reserve Officers' Training Corps in accordance with law may be furnished from surplus or reserve stocks of the Navy without payment from this appropriation, except for actual expenses Price current to gov. incurred in the manufacture or issue : Provided further, That in no case shall the amount paid from this appropriation for uniforms, equipment, or material furnished to the Naval Reserve Officers' Train- ing Corps from stocks under the control of the Navy be in excess of the price current at the time the issue is made. Provisos. Uniforms, etc ., from Na vy stoc k. ern payments. Naval War College. Maintenance. Proviso. Clerical etc .,services. Naval Home. Pay of employees. SEVENTI ETH C ONG RES S. SEss. II. CH. 483. 1929. NAVAL WAR COLLEGE, BUREAU OF NAVIGATION For maintenance of the Naval War College on Coasters Harbor Island, including care of grounds, $10 5,000 ; services of a professor of international law, $2,000 ; services of civilian lecturers, rendered at the War College, $2,000 ; care and preservation of the library, including the purchase, bin ding, and repa ir of books o f reference and periodicals, $5,000 ; in all, $114,000 : Provided, That the sum to be paid out of this appropriation under the direction of the Secretary of the Navy for clerical, inspection, drafting, and messenger service for the fiscal year ending June 30, 1930, shall not exceed $72,030. NAVAL H OME, PH ILA DEL PHI A, PENNSYLVANIA For pay of employees at rates of pay to be fixed by the Secretary of the Navy, $86,065.

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text:
Roach v. Chapman/Opinion of the Court

The libellants claim to have a lien on the steamboat Capitol, for a balance due them for machinery furnished in her construction. The boat was built at Louisville, Kentucky, and the libellants furnished the boilers and engines. Payments were made as the work progressed, and bills of exchange taken for the balance due after the vessel was completed. These were not paid. The boat left the port and the State, and was afterwards sold, and became the property of the claimants.

Among other things, the claimants pleaded to the jurisdiction of the court. This plea was sustained by the Circuit Court.

A contract for building a ship or supplying engines, timber, or other materials for her construction, is clearly not a maritime contract.

Any former dicta or decisions which seemed to favor a contrary doctrine were overruled by this court, in the case of the People's Ferry Co. v. Beers, (20 How., 400.)

It is said here, that the law of Kentucky creates a lien in favor of the libellants; and that, as this case originated before the adoption of our rule, which took effect on the first of May, 1859, it may, upon the principles recognised by this court in Peyroux v. Howard, (7 Peters, 343,) be enforced in the admiralty. But (to quote the language of the court in Orleans v. Phoebus, 11 How., 184) 'that decision does not authorize any such conclusion. In that case, the repairs of the vessel, for which the State laws created a lien, were made at New Orleans, on tide waters. The contract was treated as a maritime contract, and the lien under the State laws was enforced in admiralty, upon the ground that the court, under such circumstances, had jurisdiction of the contract, as maritime; and then the lien, being attached to it, might be enforced according to the mode of administering remedies in the admiralty. The local laws can never confer jurisdiction on the courts of the United States.'

It is clear, therefore, that the judgment of the Circuit Court, dismissing the libel for want of jurisdiction, must be affirmed, without noticing other questions raised by the pleadings.

title: Roach v. Chapman/Opinion of the Court