text:
Inbusch v. Farwell

Writ of error to the District Court of the United States for the district of Wisconsin.

James Buchanan, Henry Eastman, and Patten McMillan were partners trading under the firm of Buchanan, Eastman & Co. Charles B. Farwell was a creditor of the firm, and commenced an action in the District Court against all the partners by summons, with attachment. The marshal attached personal property of the partnership, and served the summons on Buchanan and McMillan. Afterwards, all three of the defendants appeared to the action. A bond was executed by James Buchanan, John G. Inbusch, and John D. Inbusch, referring to the action, reciting the attachment of the defendants' goods, and conditioned for the payment of the amount of the judgment that might be recovered against the defendants. On filing this bond an order was made to release the defendants' goods, which was done. Subsequently, it being made to appear that two of the defendants, Buchanan and Eastman, were citizens of Illinois, the plaintiff discontinued his action as to them for want of jurisdiction in the court. The death of the other defendant was suggested, and his administrator was substituted. The action proceeded against the administrator of McMillan to verdict and judgment.

The present suit is against John D. Inbusch and John G. Inbusch on the bond in which they were sureties, and on which the goods of Buchanan, Eastman & Co. were released from the custody of the marshal. The defence was that the plaintiff had not recovered judgment against the defendants, and therefore the condition of the bond was not broken. But the judge of the District Court refused so to charge the jury, and ruled that the suit would lie on the bond to recover the amount of the judgment rendered against the administrator of McMillan, one of the defendants. Verdict and judgment were accordingly given for the plaintiff, and the defendants took their writ of error.

Mr. Reverdy Johnson, of Maryland, for plaintiffs in error.

Mr. Hawley, of Illinois, and Mr. Stanbery, of Ohio, for defendants in error.

Mr. Justice CLIFFORD.

title: Inbusch v. Farwell


text: Talk:Inbusch v. Farwell

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

title: Talk:Inbusch v. Farwell


text:
Inbusch v. Farwell/Opinion of the Court

This is a writ of error to the District Court of the United States for the district of Wisconsin. As appears by the transcript, the suit was brought on the nineteenth day of October, 1859, by the present defendant, and the proceedings in the suit show that he had judgment in the court below, and that the original defendants sued out this writ of error. It was an action of debt, upon a bond signed by one James Buchanan, for and on behalf of himself, Henry Eastman, and Patten McMillan, as principlal, and John G. Inbusch and John D. Inbusch, as sureties. Process issued against all three of the obligors who signed the bond, but service was not made upon the principal, for the reason that he was out of the jurisdiction of the court.

Referring to the recitals of the bond, it will be seen that it was given for the discharge of certain personal property attached by the marshal, and held by him at the date of the bond, under a process of attachment duly issued by the District Court of the United States for the same district against said James Buchanan and the other two individuals, for and on whose behalf he professed to act in executing the instrument. They were co-partners in th lumbering business, under the firm-name and style of Buchanan, Eastman & Company, and in the course of their trade became indebted to Charles B. Farwell, the obligee of the before mentioned bond. He held against their firm two promissory notes, both dated October fifth, 1857, and made payable at the Galena Bank, with interest, at the rate of ten per cent. One was for the sum of two thousand dollars, payable in ninety days from date, and the other was for one thousand dollars, payable in four months, and both were signed in the name of the firm. Both notes being overdue and unpaid, the promisee, on the twelfth day of February, 1858, brought suit against the three partners to recover the amount. When he filed the praecipe he also filed a bond and affidavit for a summons with attachment, and the process duly issued in that form. Pursuant to the command of the precept, the marshal attached a large quantity of pine lumber belonging to the co-partnership, consisting of pine boards, shingles, and sawlogs.

Proceedings for the collection of debts in the District Court of the United States for that district are regulated by the laws of the State composing the district, in consequence of a rule to that effect adopted by the court. Accordingly the marshal made an inventory of the property attached, and caused the same to be appraised by two disinterested freeholders of the county. They appraised the property attached at the sum of six thousand four hundred and fifty dollars, as appears by their certificate appended to the return of the marshal. By his return, it also appears that, on the sixteenth day of the same month, he made due service of the process upon Buchanan and McMillan, two of the partners, by giving to each a certified copy of the process, and also of the inventory made by him of the property attached. All three of the defendants appeared, by attorney, on the first day of March following, and on their motion it was ordered by the court that the property attached be released, and the attachment discharged on the defendants filing a bond, with sureties, to pay the amount as ascertained by the inventory and appraisement. Ten days afterwards the marshal was furnished with a certified copy of the order of the court, and upon the defendants in that suit filing the bond on which the present suit was brought, he released the property and discharged the attachment.

Recurring again to the bond, it will be seen that it was framed upon the condition that if the defendants in this suit, 'or either of them, will, on demand, pay to the plaintiff in said action the amount of the judgment that may be recovered against the defendants in the action, not exceeding the recorded sum, then this obligation to be void; otherwise to be and remain in full force and effect.'

Two pleas were filed by the defendants in this suit: First, they alleged that the writing obligatory, on which the suit was brought, was not their deed. Secondly, they alleged, in effect, that the plaintiff in the attachment suit did not recover judgment against the defendants in that suit for any sum whatever, as by the record thereof, now remaining in the court, would more fully appear, and concluded with a verification.

To the second plea the plaintiff replied, specially setting forth all the proceedings in the attachment suit as already given, and averring in addition thereto that the defendants appeared in the case on the 24th day of March, 1858, and pleaded to the jurisdiction, alleging, that at the commencement of the suit they were citizens of the State of Illinois, and not citizens of the State of Wisconsin, as alleged in the declaration. They also alleged that two of the defendants afterwards, on the seventeenth day of November, in the same year, made and filed in the cause a suggestion of the death of the other defendant; and that on the 10th day of January, 1859, he, the plaintiff, filed a replication to their plea to the jurisdiction of the court, denying the matters therein alleged, and averring that some one or more of the defen ants were citizens of the State of Wisconsin, as was alleged in the declaration. That he, the plaintiff, thereafter, on the eighth day of April following, by leave of court, entered a discontinuance as to Buchanan and Eastman, because they were out of the jurisdiction, as alleged in their plea; and, that on the twenty-first day of the same month, the administrator of the deceased defendant, McMillan, appeared as a party defendant in the suit.

These allegations were also accompanied by others, to the effect that the suit was duly revived against the administrator of the deceased partner; that the parties went to trial on the issue tendered and joined, and that the jury returned their verdict in favor of the plaintiff, and that the cause was then, for the want of a plea in bar of the action, referred to the clerk to compute the damages, and upon his report coming in, judgment was entered for the plaintiff in the sum of three thousand three hundred and seventy dollars and forth cents. Whereupon the defendants filed a rejoinder, averring that all the facts set forth in their second plea were true, and repeating the denial that the plaintiff ever recovered judgment against the defendants named in the bond. Upon these several matters they tendered an issue to the country, and on that issue the parties went to trial. To maintain the issue on his part, the plaintiff intorduced the bond and a duly certified copy of the record in the attachment suit, and proved that he demanded payment of the amount before the suit was brought.

No testimony was offered by the defendants for the reason, doubtless, that their defence was, and still is, that the plaintiff failed to make out his case. They accordingly requested the court to instruct the jury that the record of the attachment suit showed that the plaintiff did not recover judgment against the defendants in that suit within the true intent and meaning of the bond, and, consequently, that there had been no breach of the condition therein set forth; but the court refused the prayer, and instructed the jury, substantially, that the suit would lie to recover the amount of the debt, interest, and costs of the judgment rendered in the attachment suit, and that the proofs introduced by the plaintiff showed a forfeiture and breach of the condition of the bond on the part of the defendants.

Exceptions were duly taken by the defendants, both to the refusal of the court to instruct the jury as requested, and to the instructions given, as more fully set forth in the transcript.

I. It is not denied that the defendants in the attachment suit were partners, as alleged in the declaration; and it is equally clear that the suit was brought to recover a debt due the plaintiff from the partnership, and that the property attached by the marshal was partnership property.

But it is insisted by the defendants that the judgment recovered in that case was not in terms a judgment such as is described in the bond, and that they, the present defendants, being sureties, have a right to stand upon the letter of their contract. On the other hand, it is insisted by the plaintiff that the suit was well prosecuted, under the circumstances stated, against the administrator of the deceased defendant, and that the judgment, although against but one of the partners, yet being a judgment upon a partnership debt in a case where the other partners were out of the jurisdiction of the court, the effect of the judgment was to bind the property attached by the marshal, so that it would have been his duty, if no bond had been given, to have sold the same, and appropriated the proceeds to the payment of the execution issued upon such judgment.

Jurisdiction in the Federal courts is not defeated by the suggestion that other parties are jointly liable with the defendants, provided it appears that such other parties are out of the jurisdiction of the court; but it is expressly provided by the act of the 28th of February, 1839, that the judgment or decree rendered in the case shall not con lude or prejudice other parties not regularly served with process, or not voluntarily appearing to answer. 5 Stat. at Large, 32; D. Arcy vs. Ketchum et al., (11 How., 165;) Clearwater vs. Meredith et al., (21 How., 492.)

Under that law, therefore, without more, it is clear, that if Buchanan and Eastman had not been made parties to the suit, it might have been regularly prosecuted against the other defendant in his lifetime, and after his decease might have been revived and prosecuted against his administrator; and it is equally clear, that by the law of the State, and the rule of the court adopting the same, it was competent for the plaintiff, under the circumstances, to discontinue as to Buchanan and Eastman, and proceed against the administrator of the other partner. Sess. Laws, 1856; see Code, Sec. 25, p. 10.

It is not questioned that the administrator voluntarily appeared in the case, and the record shows that the proceeding reviving the suit was regular and according to law. These considerations lead necessarily to the conclusion, that the judgment against the estate of the deceased partner was a valid judgment, and that the only question of any importance in the case is as to its effect upon the rights of those parties.

II. Some light will be shed upon the question by referring more definitely to the course of proceeding under which the bond was given, and the property attached released. By the law of the State, it is provided, that whenever the defendant shall have appeared in the action, he may apply to the officer or to the court for an order to discharge the attached property; but to secure that right, he must deliver to the court or officer an undertaking executed by at least two sureties, residents and freeholders in the State, approved by such court or officer, to the effect that the sureties will, on demand, pay to the plaintiff the amount of the judgment that may be recovered against the defendant in the action, not exceeding the sum specified in the undertaking.

Appearance was accordingly entered in the case by the attorney of the defendants in compliance with that requirement, and for the purpose of procuring the discharge of the property held by the marshal. Attachments are made for the benefit of creditors, but the provision for the discharge of the property attached is made for the benefit of debtors. They may demand as matter of right, on complying with the requirements of the law in that behalf, to have their property discharged from attachment, and that a bond with sureties be accepted in its place. Under those circumstances, it is quite obvious that the bond becomes a substitute for the property released; and where there are no special circumstances to render the case an exceptional one, it must be held that any judgment that would have bound the property, if it had remained under attachment in the hands of the marshal, will bind the obligors of the bond in a case like the present, where the suit was commenced against the partnership upon a partnership contract, and the property attached was partnership property.

Discontinuance as to the partners, not within the jurisdiction of the court, was properly allowed under the law of the State and the practice of the court. Beyond question, therefore, it was a valid judgment upon a partnership debt; and although it was against the estate of but one of the partners, still, if the property attached had not been released, it would have been the duty of the marshal, under the law of the State and the practice of the court, to have sold the same, and appropriated the proceeds to the payment of the execution issued upon the judgment. Rev. Stat. Wis., 1849, Sec. 41, p. 539.

Although the other partners were not prosecuted to judgment, because they were out of the jurisdiction of the court, still the judgment was rendered upon a partnership debt, to which it would be the duty of the marshal to apply partnership property in preference to the debts of the individual partners. Sureties in the bond were sureties for the partnership for the purpose therein described, and if compelled to pay the amount they clearly have a right of action against all who composed the firm at the time they assumed the liability. Gay vs. Johnson et al., (32 N. H., 167;) Story on Part., Sec. 375; Collier on Part., 3d ed., Sec. 713, p. 630; Benedict vs. Stevens, (25 Conn., 392.)

Judgment was recovered, therefore, in this case for the partnership debt, and if the property attached had not been discharged it must have been appropriated to liquidate the judgment, and we think the bond must be regarded as a substitute for the property, and consequently that the rulings and instructions of the District Court were correct.

Judgment of the District Court affirmed.

title: Inbusch v. Farwell/Opinion of the Court


text: Talk:Inbusch v. Farwell/Opinion of the Court


text: Dictionary of National Biography, 1885-1900/Vennar, Richard


text:
Propeller Commerce

Appeal from the Circuit Court of the United States for the southern district of New York.

This was a libel filed in the District Court by Henry Fitzhugh, De Witt C. Little, John Peck, and James Peck, against the steam propeller Commerce, (claimed by the Commercial Transportation Company as owners,) averring a collision on the Hudson river with the libellants' lake boat, the Isabella, by which the latter vessel was sunk, causing an injury to boat and cargo of $17,000. The cargo, it seems, did not belong to the libellants, but was in their custody as common carriers.

The allegations of the libel, the defence set up in the answer, the facts of the case as they appeared in evidence, and the points of law raised in the argument, are stated in so much fulness by Mr. Justice Clifford, that they need not be repeated here.

The libel was dismissed by the District Court; but on appeal to the Circuit Court, a decree was passed in favor of the libellants for $11,443 15, and thereupon the claimants appealed to this court.

Mr. Benedict, of New York, for claimants.

Mr. Grant, of New York, for libellants.

Mr. Justice CLIFFORD.

title: Propeller Commerce


text: Talk:Propeller Commerce

title: Talk:Propeller Commerce


text:
Propeller Commerce/Opinion of the Court

This was a libel in admiralty in a cause of collision, civil and maritime, and the case comes before the court on appeal from the decree of the Circuit Court of the United States for the southern district of New York.

Recurring to the transcript, it will be seen that the libel was in rem against the steam propeller 'Commerce,' and that the suit was instituted by the appellees, as the owners of the lake boat Isabella; but the record shows, that after the process was issued, and the vessel was taken into custody, the appellants, on motion, had leave to appear, and having waived publication of notice and entered into stipulation, with sureties, both for costs and value, the vessel was discharged by consent, the stipulators agreeing, that in case of default or contumacy of the claimants, execution might issue for the amount of the stipulation against their goods, chattels, and lands. No change, however, was made in the form of the libel, and the whole proceedings in the suit were as in rem against the vessel. Reference will only be made to such portions of the pleadings as seem to be indispensable to a full understanding of the several questions presented for decision. Among other things, the libellants alleged, that the Isabella left the port of New York on the nineteenth day of August, 1852, for the port of Albany, fully laden with merchandise; that she, with certain other boats and barges, was in tow of the steam-tug Indiana during the voyage, and at the time the collision occurred; that the steam-tug was well manned, tackled, apparelled, and furnished, and in all respects competent for the business in which she was engaged; and that the craft composing the tow had on board the proper complement of officers and men for their protection and management. Two of the barges were attached to the steam-tug, one on the larboard and the other on the starboard side; and to show that there was no fault in the arrangement of the tow, they alleged that the Isabella was securely attached to the larboard side of another barge, and that both were towed astern of the steam-tug, at the usual and proper distance, by means of a hawser; and, in respect to the immediate circumstances of the collision, they alleged that the Isabella, in the evening of the following day, while ascending the river, in tow of the steam-tug as aforesaid, and when about ten or eleven miles below the port of her destination, was met by the propeller, coming down the river, and bound on a voyage from the port of Albany to the port of Philadelphia; and they aver, that at the time of such meeting, the steam-tug, with all the boats and barges in tow of her, was on the eastern side of the channel, and in the usual and proper place for such craft when so ascending the river; but that the propeller, after she had passed the steam-tug in perfect safety, suddenly and improperly sheered to the eastward, and, through the negligence of those in charge of her, ran against the larboard bow of the Isabella, stove the bow from the stem, broke all the lines by which she was attached to the barge, and so damaged her that, in a few minutes, she sunk in the river, with all her cargo on board. As alleged in the libel, her cargo consisted of groceries and other merchandise, together with a steam-engine; and the libellants alleged, that the whole amount of the loss, including the damage to the cargo, was seventeen thousand dollars. When the libel was filed, the propeller was in the port of New York, and, as the libellants alleged, within the jurisdiction of the District Court. Accordingly, they prayed process, in due form of law, as in cases of admiralty and maritime jurisdiction, and it was issued and duly served upon the vessel. On the other hand, the claimants denied the allegation that the steam-tug was well manned and equipped, or that the boats and barges in tow of her had a full complement of officers and men for their protection and management, or that the tow was properly made up, and especially that the Isabella was at no greater distance astern of the steam-tug than was usual and proper. They admitted, however, that the propeller passed the steam-tug in safety, and met the Isabella at the time alleged, but denied that the steam-tug, or the boats and barges in tow of her, were on the eastern side of the channel, or in a proper place for such craft when ascending the river.

Their theory was, that the lower barge, with the boat of the libellants attached, was on the western side of the channel, and they accordingly alleged that the tow was out of the usual and proper place; and they expressly denied that the propeller, after passing the steam-tug, sheered at all, or so moved towards the eastern side of the channel as to cause the collision. Witnesses were examined on both sides in the District Court, and, after a full hearing, a decree was entered dismissing the libel, and the libellants appealed to the Circuit Court. Additional testimony was taken on the appeal, and the Circuit Court reversed the decree of the District Court, and entered a decree in favor of the libellants. Whereupon the claimants appealed to this court, and now seek to reverse the last named decree.

It appears from the evidence that the steam-tug, when she started from New York, had seven boats and barges in tow, but the number, although she left one at Kingston, was increased to ten in the early part of the trip. On arriving at Athens, the master, as he had been accustomed to do, rearranged the tow, in order to make it narrower for the residue of the voyage. Briefly stated, the arrangement was as follows: Two of the craft were lashed, as before, to the sides of the steam-tug; but they had two others at their stern, which were connected with them by lines put out from the stem of the boat in the rear, and attached to the stern of the boat ahead. Four of the residue, arranged abreast and lashed together, were connected with the steam-tug by a hawser about two hundred feet long, and the barge to which the boat of the libellants was attached was some three or four hundred feet astern of the whole, and was also connected with the steam-tug by a hawser. With the tow arranged in the manner described, the steam-tug proceeded slowly up the river, and passed Mull island in perfect safety. Shortly after passing the island, the master of the steam-tug, who was standing in the wheel-house, discovered two steamers coming down the river, and as they were not far distant, he went aft to see to the tow. They proved to be the propeller and the steamer Oregon, and the former, in a few minutes, passed the steam-tug some fifty or a hundred feet to the westward-so far to the west, that a schooner under mainsail and foresail, and with her main boom out, was between the propeller and the steam-tug at the time the former passed the latter. Seeing the schooner coming up, the Oregon stopped until the schooner passed out of the way, but the propeller proceeded on her course, without any abatement of her speed, and after passing the steam-tug, and the four boats arranged abreast, sheered to the eastward, and struck the stem of the libellants' boat, and, as the witnesses state, drove it into the cabin, and parted all the lines which attached the boat to the barge. Some conflict exists in the testimony as to the precise locality where the collision occurred; but the clear inference from the whole evidence is, that it took place just after the barge, with the boat of the libellants attached, passed the point of Mull island, and it is conceded that the island is within the northern district of New York, and within the body of one of the counties of that State. Want of jurisdiction was not suggested, either in the District or Circuit Courts; but it is now insisted that the case was not cognizable in the District Court, for three reasons: First, because it did not appear that the propeller or the boat of the libellants was engaged in foreign commerce, or in commerce between the States, and, therefore, was not a case cognizable in the admiralty; second, because the collision occurred within the body of a county, and, therefore, was exclusively cognizable at common law; thirdly, because, assuming it to be a case of admiralty and maritime jurisdiction, still it was properly cognizable in the northern district of New York, and not in the southern, where the decree was rendered.

1. But the first objection could not be sustained, even if it were admitted, on the theory of fact assumed, that it was correct, for the plain reason that it is alleged in the libel, and not denied in the answer, that the propeller was bound on a voyage from the port of Albany to the port of Philadelphia, and one of the witnesses of the claimants testified that she was employed in her second trip, and that, notwithstanding the collision, she completed her voyage.

Admiralty jurisdiction, however, was conferred upon the Government of the United States by the Constitution, and in cases of tort it is wholly unaffected by the considerations suggested in the proposition. Such certainly were the views expressed by this court in the case of the Genesee Chief, 12 How., 452, where the court say: 'Nor can the jurisdiction of the courts of the United States be made to depend on regulations of commerce. They are entirely distinct things, having no necessary connection with one another, and are conferred in the Constitution by separate and distinct grants.' When the District Courts were organized, they were authorized by Congress to exercise exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation, or trade of the United States, where the seizures are made on waters which are navigable from the sea by vessels of ten or more tons burden, within their respective districts, as well as upon the high seas. That provision of the judiciary act remains in full force and unrestricted as applied to the navigable waters of the Hudson and all the other navigable waters of the Atlantic coast which empty into the sea, or into the bays and gulfs that form a part of the sea. All such waters are, in truth, but arms of the sea, and are as much within the admiralty and maritime jurisdiction of the United States as the sea itself. It is not denied that the admiralty has jurisdiction of torts committed on such navigable waters, nor is it denied that the waters of the Hudson, where the collision in this case occurred, are within the admiralty and maritim jurisdiction of the United States; but it is insisted that something more is wanting in order to bring the case within the cognizance of the admiralty. Our reply to that suggestion is, that locality, by all the authorities, is the test, in cases of tort, by which to determine the question whether the wrongful act is one of admiralty cognizance; and if it appears, as in cases of collision, depredations upon property, illegal disposition of ships, or seizures for breaches of revenue laws, that it was committed on navigable waters, within the admiralty and maritime jurisdiction of the United States, then the case is one properly cognizable in the admiralty. 1 Cur. Com., p. 33, Sec. 37.

2. It is assumed, in the second place, that the jurisdiction must be denied, because it appears that the collision occurred on the Hudson river within the body of a county; but the objection presents a question that has long since been settled by this court. It was first presented in the case of Waring et al. vs. Clark, (5 How., 452,) where this court held that the question of jurisdiction was unaffected by the fact that the locality of the collision was infra corpus comitatus, provided it occurred in waters where the tide ebbed and flowed, which is a rule sufficiently comprehensive to control this case. Thiat decision, however, preceded the case of the Genesee Chief, 12 How., 443, where the same rule was declared to be applicable to the lakes and the navigable waters connecting the same, although not affected by the ebb and flow of the tide. Similar views were also expressed by this court in the case of The Magnolia, (20 How., 298;) and in the case of The Philadelphia, Wilmington and Baltimore Co. vs. The Philadelphia and Haure de Grace Co., (23 How., 215,) it was emphatically said, that since the case of Waring et al. vs. Clark, (5 How., 464,) the exception of infra corpus comitatus is not allowed to prevail. Taken together, these three decisions, we think, ought to be regarded as decisive of the point under consideration, and may well excuse us from any extended argument upon the subject.

3. But it is insisted that the case was not cognizable in the District Court for the southern district of New York. Judging from the course of the argument, it would seem that the error on this point arises from a misapplication of the established rule, that jurisdiction in the admiralty, in cases of tort, depends upon locality. Whether a wrongful act, committed upon the person or property of another, was of a character to be denominated a marine tort, and, consequently, to be regarded as the proper foundation of a suit cognizable in the admiralty, undoubtedly depends upon the locality where the wrongful act was committed, as already explained. But marine torts are in the nature of trespasses upon the person or upon personal property, and they may be prosecuted in personam in any district where the offending party resides, or in rem wherever the offending thing is found to be within the jurisdiction of the court issuing the process.

Process in rem is founded on a right in the thing, and the object of the process is to obtain the thing itself, or a satisfaction out of it, for some claim resting on a real or quasi proprietary right in it. Consequently, the court, through its process, arrests the thing, and holds possession of it by its officers, as the means of affording such satisfaction, and in contemplation of law it is in the possession of the court itself. Bened't's Adm., p. 241 Sec. 439. Unless, therefore, the suit in rem can be prosecuted in the district where the property is found, it cannot be prosecuted at all, which would defeat the right of the injured party to a very beneficial remedy. Libels in rem, in instance causes, civil or maritime, says Mr. Greenleaf, shall state the nature of the cause, as, for example, that it is a cause civil and maritime, of contract, of tort or damage, of salvage, or possession, or otherwise, as the case may be; and if the libel is in rem, that the property is within the district, and if in personam, the names and place of residence of the parties. 3 Greenl. Ev., 401. It is plain that the suit in rem cannot be maintained without service of process upon the property, and we hold it may be prosecuted in any district where the property is found; and such undoubtedly must have been the opinion of this court in Nelson et al. vs. Leland et al., (22 How., 48,) which, indeed, is decisive of the point under consideration. See also Monro vs. Almeida, (10 Wheat., 473.)

It is clear, therefore, on authority, that the third objection to the jurisdiction cannot be sustained; and, after a careful consideration of the evidence, we think the decision of the Circuit Court was correct upon the merits. Considerable conflict exists in the evidence on the point, whether the lower barge, with the boat of the libellants attached, was or was not on the eastern side of the channel when the collision occurred; but we think the weight of the evidence shows that the tow, as well as the steam-tug, was east of the centre of the channel. Full proof was exhibited that the steam-tug was as near the eastern side as it was safe for her to go, and the proof of that fact goes very far to sustain the entire theory of the libellants, especially as all or nearly all the witnesses who were on the several craft composing the tow concur in the statement that the propeller made a sheer to the eastward after she passed the steam-tug, and the four boats arranged abreast.

Objections were also made to the computation of the damages, but none of them can be sustained.

One of the objections was, that the court erred in allowing damages for the injury to the cargo as well as to the boat; but the point has been so often ruled that the carrier, who is responsible for the safe custody and due transportation of the goods, may recover in cases of this description, that we do not think it necessary to do more than to express our concurrence in the rule adopted by the Circuit Court.

The decree of the Circuit Court is therefore affirmed, with costs.

title: Propeller Commerce/Opinion of the Court


text: Dictionary of National Biography, 1885-1900/Venner, Thomas


text: Talk:Propeller Commerce/Opinion of the Court


text:
Silliman v. Hudson River Bridge Company Coleman

Both these cases came up on certificates of the judges of the Circuit Court that they were divided in opinion on certain points raised at the trial.

The questions on which the judges divided in the court below are mentioned in the opinion of Mr. Justice Nelson. The arguments of counsel here were mainly on the merits of the cause; but this court being also divided, nothing was determined except the points of practice noted at the head of this report.

Mr. Beach, of New York, and Mr. Reverdy Johnson, of Maryland, for complainants.

Mr. Pruyn, of New York, for defendants.

Mr. Justice NELSON.


text: Talk:Silliman v. Hudson River Bridge Company Coleman


text:
Silliman v. Hudson River Bridge Company Coleman/Opinion of the Court

These were suits in equity, in which the bills were filed in October, 1856, to obtain a decree for an injunction perpetually restraining the defendant from erecting a bridge across the Hudson river, at Albany, authorized by an act of the Legislature of the State of New York, passed on the 9th day of April, 1856. The defendant answered both bills, to which general replications were filed and proofs taken, and the causes brought on for hearing, and heard together, upon pleadings and proofs.

And upon the hearing of each of the said causes, the following questions occurred, to wit:

First. Whether or not th court, under the Constitution and laws of the United States, has the power perpetually to restrain the erection of the bridge across the Hudson river, at Albany, proposed to be erected by the defendants in the manner provided for or authorized by the acts of the Legislature of the State of New York, mentioned in the pleadings and proofs herein, in case the plaintiff, being the owner of vessels holding coasting licenses, shows, to the satisfaction of the court, that such bridge, if erected, will materially obstruct, delay, or hinder such vessels in the navigation of said river, while engaged in commerce between said State of New York and other States.

Second. Whether or not the evidence in this case shows that the bridge in controversy will, if erected, constitute a material obstruction and impediment to the navigation of the Hudson river for the vessels of the plaintiff, mentioned in the pleadings and proofs.

Third. Whether or not the defendant is entitled to a decree dismissing the bill, on the ground that the complainant has an adequate remedy at law for all injury he may sustain by reason of the erection of the said bridge, should the same be erected as proposed.

On which several questions the opinions of the judges were opposed.

Whereupon, on motion of the defendants, by their counsel, that the points on which the disagreements hath happened may, during the said term, be stated under the direction of the judges, and certified under the seal of the court to the Supreme Court of the United States, to be finally decided—

It is ordered that the said points of disagreement, together with the pleadings and proofs herein, be, and they hereby are, certified, according to the request of the defendants, as aforesaid, and of the act of Congress in that case made and provided.

This court, after hearing the arguments of counsel for the respective parties, and upon consideration of the first question, are equally divided in opinion, and, consequently, no instructions can be given to the court below concerning it. And, being thus divided on the first question, which involved the jurisdiction of the court below over the subject-matter of the suits, no opinion can be properly expressed upon the two remaining questions. These two questions can become material only, or be inquired into, after jurisdiction has been entertained in the cases, and the court bound to proceed to a final disposition of them.

We may add, also, that the second question is one which, according to a decision of this court, is not properly certified here, the question being one of fact. 8 How., 258.

This being the condition and posture of the cases, it becomes proper and necessary to remit them to the court below, for the purpose of enabling that court to take action upon them, and such further proceedings as the rules of the court or principles of law may require. The rights and interests of both parties call for such a disposition of the cases here; for, as the judges of the court below were divided in opinion upon the question of jurisdiction, when the cases go down, as they must, for final disposition in that court, the bills in the two cases, according to the established rule of proceeding, under the circumstances stated, are to be dismissed, and a decree to that effect entered, so that the parties aggrieved may, if they think proper, bring up the questions on appeal for review from the final decree.


text: Talk:Silliman v. Hudson River Bridge Company Coleman/Opinion of the Court


text:
Pindell v. Mullikin

Appeal from the Circuit Court of the United States for the district of Missouri.

This was a bill in equity brought in the Circuit Court of the United States for the district Missouri, by Richard Pindell, of Kentucky, against Napoleon B. Mullikin, Jerome B. Mullikin, Charles B. Wiggins, and Virginia, his wife, John R. Shepley, William H. McPherson, P. Dexter Tiffany, Samuel Willi, James Clements, jr., and David H. Armstrong, citizens of the State of Missouri.

The complainant prayed to have decre d to him fifty arpents of land in the neighborhood of St. Louis, and deduced his title from John R. Sloan, the sole heir and legal representative of one John Sloan, to whom the land claimed was alleged to have been conveyed by David Musick. The defendants had been in possession of it for more than twenty years before the filing of the bill.

John Sloan, the father of the plaintiff's grantor, died in 1818, without having recorded any deed from the previous owner to himself. It was supposed to have been lost as early as the death of Sloan. No steps were taken for forty years to assert any claim under it. According to the allegations of the bill, the representatives of Sloan knew all the time of his title to the land, yet-they commenced no suit at all, and their assignee only after a lapse of forty years. J. R. Sloan, the son under whom appellant claimed title, came of age in 1834, and knew as early as 1838 that Mullikin claimed portions of the tract in controversy. It was alleged that he took professional advice on the subject in 1838, but it was not until twenty years after that time, and twenty-four years after he came of age, that any suit was instituted.

No counsel appeared for appellant.

Mr. Shepley, of Missouri, for appellees. Laches, much less flagrant than this, will prevent a court of equity from granting relief even in a clear case. 2 Story Eq. Jur., (7th ed.,) Sec. 1520, p. 889, note 4, and cases there cited; Holt vs. Rogers, (8 Peters, 420 et al.;) Patte vs. Carroll, (8 Cranch, 471;) Moore vs. Blake, (1 Ball & P., 69;) Boone vs. Missouri Iron Co., (17 How., 340.)

Mr. Justice CATRON.

title: Pindell v. Mullikin


text: Dictionary of National Biography, 1885-1900/Venner, Tobias


text: Talk:Pindell v. Mullikin

title: Talk:Pindell v. Mullikin


text:
Pindell v. Mullikin/Opinion of the Court

Pindell filed his bill against the respondents and others, to have decreed to him, as assignee of John R. Sloan, fifty acres of land adjoining the city of St. Louis. The respondents rely on the act of limitations as a defence, (among others,) alleging that they have been in adverse possession of the land for which they are used for more than twenty years before the suit was brought.

John R. Sloan became of age in 1834; the bill so alleges. The land was confirmed to the father of the respondents, under whom they claim as heirs, by the act of Congress of July 4th, 1836, and the bill was filed in January, 1857, more than twenty years after the legal title was vested by the confirmation.

The bill admits that Mullikin's heirs hold the legal title, and they prove that a division of the land confirmed took place among various owners, and that about ten arpents of it were allotted to Mullikin, the ancestor. This occurred in 1836; that immediately after the partition, Mullikin took possession of the land allotted to him, and he and his heirs have held it in possession ever since.

The claim set up by the bill is barred by twenty years' adverse possession. If, however, this defence was not conclusive of the controversy, our opinion is, that no sufficient evidence that the contract alleged to have once existed is proved; and that the decree below dismissing the bill was also proper for want of proof to sustain its allegations.

Decree of the Circuit Court affirmed.


text: Talk:Pindell v. Mullikin/Opinion of the Court


text:
Sherman v. Smith

Writ of error to the Supreme Court of New York.

Oliver Lee & Company's Bank, at Buffalo, was organized in January, 1844, under the act of the Legislature to authorize banking, passed 18th April, 1838. Watts Sherman was one of the shareholders. In the articles of association it was agreed that the shareholders should not be liable, individually, for the debts of the bank, and this was in accordance with the act of 1838, under which the association was organized, and which declared that no shareholder should be liable unless the articles of association signed by himself made him so. But this act contained a provision that the Legislature might at any time alter or repeal it. In 1846 a change was made in the constitution of the State which imposed ind vidual liability on the stockholders of banks, and in 1849 the statute was passed under which this proceeding was commenced and carried on to enforce that responsibility.

In 1857 Henry B. Gibson, one of the stockholders, presented his petition, agreeably to the act of 1849, to a judge of the Supreme Court of the State, setting forth that this bank was insolvent, and praying that it might be declared so and a receiver appointed, and such other relief given as might be required. The proceeding thus begun ended in a judgment of the Supreme Court, affirmed by the Court of Appeals, making Watts and the other stockholders liable in their individual capacity for an amount of the debts equal to their stock. James M. Smith, the defendant in error, was appointed receiver.

The question argued here was, whether the constitution of 1846 and the statute of 1849 were or were not in conflict with that provision in the Federal Constitution which forbids the States to make any law impairing the obligation of contracts. The point was raised below, but was decided against the stockholders in every court to which the cause was carried, including the highest.

Mr. Peck, of New York, (with whom was Mr. Porter and Mr. John Van Buren,) for the plaintiff in error, cited: 1 Parsons on Contracts, 399; Miller vs. N. Y. & Erie R. R. Co., (21 Barbour, 513, 519;) Ham vs. McClairs, (1 Bay., 93;) Calder and Wife vs. Bull and Wife, (2 Dall., 398;) Bennett vs. Boggs, (1 Bald., 74;) Schuyler et al. vs. McCrea, (1 Har. & J., 249;) Commonwealth vs. McCloskey et al., (2 Rawle, 374;) Allen vs. McKean, (1 Sumner, 302, 303;) State Bank of Ohio vs. Knoop, (16 How., 385;¢ The L. & C. Co. vs. Town, (1 N. H., 44;) Winter vs. Muscogee R. & Co., (11 Georgia, 438;) Kean vs. Johnson et al., (1 Stockton, 401;) Ex parte Johnson, (31 Eng. L. & Eq.;) 21 Barbour, 519, supra; Livingston vs. Lynch et al., (4 Johnson Chy., 573, 582, 595-598;) 1 Sumner, 314; Laws of 1849, 340, Sec. 3; Hartford R. R. Co. vs. Crosswell, (5 Hill, 383, 386;) Green vs. Biddle, (8 Wheaton, 2, 92;) Dodge vs. Woolsey, (18 Howard, 331, 359;) Piqua Bank vs. Knoop, (16 Howard, 369;) Allen vs. McKean, (1 Sumner, 278, 313, 314;) Livingston vs. Lynch et al., (4 Johnson Chy., 573, 582, 595-598;) R. vs. M. & I. R. R. Co. and P. & I. R. R. Co., (21 Howard, 442;) Mason vs. Finch, (2 Scam., 223;) McFarland vs. State Bank, (1 Pike, 410;) State vs. Williams, (2 Strobh., 474;) Town Ottawa vs. County La Salle, (12 Ill., 339;) 2 Roll. Abr., 409; Taylor vs. Homersham, (4 M. & S., 426;) 2 Parsons on Contracts, p. 13, N. r, and cases there cited; Lyman vs. Clark, (9 Mass., 235;) ''Jackson ex dem. Stevens vs. Stevens, (16 Johnson, 110;) Covington vs. McNickle, (18 B. Monroe, 262;) Jackson vs. Stackhouse, (1 Cowan, 122;) Torrence vs. McDougald'', (18 Georgia, 526;) 7 Bar. and Cross., 643, Bu. and Brandling; Townley vs. Gibson, (2 Tenn., 701;) 1 Coke, 68, Alton Woods; Plowden, 365, Duke of Norfolk's case; 5 Greenleaf's Crim., 19, Sec. 44; 5 Greenleaf's Crim., Tit. Private Acts and King's Grants, pp. 1-53; 4 Greenleaf's Crim., 174, Sec. 26-300, Sec. 8-303, Sec. 15-345, Sec. 62, note 1; Mitchell vs. Doggett, (1 Branch, 356;) Henry vs. Tilson, (17 Verm., 479;) City of St. Louis vs. Russel, (9 Miss., 507;) Fletcher vs. Peck, (6 Cran., 87;) Dash vs. Van Kleek, (7 Johnson, 417;) People vs. Clark, (3 Selden, 385;) Gilmore vs. Shuter, (2 Mod.;) Couch vs. Jeffries, (4 Burr., 2460;) Sayer and Wife vs. Wisner, (8 Wendel, 661;) 1 Harr., 285, supra; 1 Branch, 356, supra; Hooker vs. Hooker, (10 S. & M., 599;) Bruce vs. Schuyler, (4 Gilm., 221;) Morlot vs. Lawrence, (1 Blatch. Ct. Ct., 608;) United States vs. Cases Cloths, (Crabbe, 356;) 4 Pike, 410, supra; Tow Ottawa vs. County La Salle, (12 Ill., 339;) Brown vs. County Comm's, (21 Penn.;) Sackett vs. Andross, (5 Hill, 527,) elaborate opinion of Brown, J.; Quackenbush vs. Danks, (1 Denin, 128;) Dewart vs. Purdy, (29 Penn., 113;) U.S. vs. Stane, (1 Hemp., 469;) Aurora and L. T. Co. vs. Holdhow, (7 Ind., 50;) Brown vs. Fifield, (4 Mich., 322;) People vs. C. Comm's, (3 Scam., 153;) Barnes vs. Mayor Mobile, (19 Ala., 707;) Bruce vs. Schuyler, (4 Gilm., 221;) Brown et al. vs. Lever, Sheriff, &c., (5 Hill, 221.)Mr. Ganson, of New York, contra, cited 21 N. Y. Rep., 9; 22 N. Y. Rep., 9; 1 Rev. St., 600; Pl. R. Co. vs. Thatcher, (1 Kernan, 102;) R. R. Co. vs. Dudley, (4 Kernan, 336;) Northern R. R. Co. vs. Miller, (10 Bach., 260;) White vs. R. R. Co., (14 Bach., 559;) Stanley vs. Stanley, (26 Maine R., 191;) Charles River Bridge vs. Warren Bridge, (11 Pet., 549;) ''Ohio Ins. & Tr. Co. vs. Debolt, (16 How., 416;) Bank of Columbia vs. Attorney General'', (3 Wend., 588.)

Mr. Justice NELSON.

title: Sherman v. Smith


text: Talk:Sherman v. Smith

title: Talk:Sherman v. Smith


text:
Sherman v. Smith/Opinion of the Court

This is a writ of error to the Supreme Court of the State of New York.

The proceeding was instituted under an act of the Legislature of the State of New York, to enforce the responsibility of stockholders in certain banking corporations or associations.

The judge before whom the proceedings were instituted declared the bank insolvent, and appointed Smith, the defendant in error, the receiver to take charge of its assets, and to perform such other duties as the law imposed.

The case was afterwards referred to Judge Hall, as a referee, to apportion the debts and liabilities of the bank which had been contracted after the first day of January, 1850, and remained unsatisfied among the stockholders, ratably in proportion to their stock, according to the principles declared by an act passed April 5, 1849, and report to the court. Judge Hall reported that the capital of the bank was $170,000, and its indebtedness $502,944 22; and further, that the assets in the hands of the receiver, and an assessment upon the stockholders of an amount equal to the capital of the bank, would be insufficient to discharge its debts and liabilities, and hence apportioned upon each of the stockholders an amount equal to the amount of stock held by them respectively in the bank. The sum of $7,000 was assessed upon the plaintiff in error.

The referee further reported, that this bank was an association formed 23d April, 1844, under the general banking law of the State, passed 18th April, 1838; and inserted in his report a copy of the articles of association, among which is one that declares: 'The shareholders of this association shall not be liable in their individual capacity for any contract, debt, or engagement of the association.'

The counsel for the plaintiff in error appeared before the referee and objected to the assessment, on the ground, among others, that the clause in the articles of association above referred to, and which were authorized by the general banking act of 1838, constituted a contract; that the stockholders were not to be made individually liable for the debts of the association, which was protected by the Constitution of the United States; and that the provision of the constitution of the State of New York, of 1846, imposing upon them individual liability, and the act of the Legislature of 1849 carrying it into effect, were inoperative and void. The counsel further objected, that a reservation by the State, in express terms, of a power to impair by subsequent laws the obligation of contracts between individual citizens, lawful at the time it was made, would be in conflict with the Federal Constitution.

Numerous other objections were taken to the assessment before the referee, but the above are the only ones material to notice in this court.

The referee overruled these objections, and the report was afterwards confirmed by the judge.

Thi judgment, confirming the report, was appealed from to the Supreme Court of the State, which affirmed it. An appeal was afterwards taken to the Court of Appeals, the highest court in the State of New York, in which the judgment in the Supreme Court was affirmed, and the record remitted to that court to have the judgment carried into execution.

As this case comes before us under the 25th section of the judiciary act, the only question involved is, whether or not the court below erred in denying a right set up by the plaintiff in error under the Constitution of the United States; in other words, whether the constitution of the State of New York of 1846, or the act of the Legislature of 1849, or both, which subjected the stockholders of the bank to personal liability for its debts accruing after the first day of January, 1850, impaired the obligation of any contract with the stockholders in its charter?The general banking law of 1838, under which this bank was organized, provided in the 23d section, that 'no shareholder of any such association shall be liable in his individual capacity for any contract, debt, or engagement of such association, unless the articles of association by him signed shall have declared that the shareholder shall be liable.'

The 15th section provided, that 'any number of persons may associate to establish offices of discount, deposit, and circulation, upon the terms and conditions, and subject to the liabilities, prescribed in this act.'

One of the articles of association, as we have already seen, provided, that the shareholders should not be liable in their individual capacities for any contract, debt, &c.

The 32d section of the general banking act provided, that 'the Legislature may at any time alter or repeal this act.'

The argument on the part of the plaintiff is, that this stipulation of the stockholders in the articles of association from exemption from all personal liability for the debts of the institution, constitutes a contract within the authority of the act under which it was organized, that cannot be legally impaired by the provision in the constitution of New York, or by the act of 1849, which seeks to change the obligation, and impose upon them personal liability; that, in respect to this bank, the provision in the constitution and the law are void as against the Constitution of the United States.

Now, in the first place, it is to be observed, that the article of association relied on is but an affirmation of the principle contained in the 23d section of the act of 1838, and can be entitled to no greater effect or operation than the law itself, unless, indeed, by incorporating it into the articles, it can be made permanent or perpetual. The section expressly exempts the individual liability of the stockholder, but confers the privilege upon the association to subject him to personal liability if they think fit. It was competent for the stockholders to avail themselves of this privilege in their articles of association, and thus, perhaps, increase public confidence in the credit of the institution. But we can discover no authority in the section or any necessity or propriety on the part of the association, for incorporating the law itself into their articles. Certainly, in so doing they cannot change it, or make it more or less effectual.

In the second place, we remark, that this article of association is not within any authority conferred on the stockholders by any provision of the general banking law.

By the 15th section, any number of persons may associate to establish offices, &c., upon the terms and conditions, and subject to the liabilities, prescribed by the act. These terms and conditions, as it respects the personal liability of the stockholders, are found in the 23d section, which exempts them, unless they see fit to impose it upon themselves. It is not in their power to change the rule of liability except as specified in the section, and that they have not attempted.

This article of association, therefore, be ng a mere attempt to re-enact a provision of the law, and this even without and authority in the general charter, cannot be regarded as a contract in any legal sense of the term, and, of course, not within the protection of the provision of the Constitution of the United States.

Another view of this question, even assuming that the stipulation of the stockholders in the article of association amounted to a contract, is equally conclusive against the stockholder.

According to the 15th section, the association was authorized to establish a bank of discount, deposit, and circulation, 'upon the terms and conditions, and subject to the liabilities, prescribed in this act.' It was not competent for the association to organize their bank upon any other terms or conditions, or subject to any other liabilities, than those prescribed in the general charter. Now, the 32d section, which reserved to the Legislature the power to alter or repeal the act, by necessary construction, reserved the power to alter or repeal all or any one of these terms and conditions, or rules of liability, prescribed in the act. The articles of association are dependent upon, and become a part of, the law under which the bank was organized, and subject to alteration or repeal, the same as any other part of the general system.

The saving clause in the constitution of the State of New York has been referred to, which provided, that 'nothing contained in this constitution shall affect any grants or charters to bodies politic or corporate made by this State, or by persons acting under its authority. This provision saved the charter of the bank in this case and all others organized under the general banking law, as well as all those created by special charters, but it saved each of them as a whole, as an entirety; the charters remained after the adoption of the constitution the same as before, with all their privileges and disabilities intact. We do not perceive that this provision has any bearing upon the question in the case.

It is unimportant to inquire into the effect of this provision of the constitution of the State of New York, or of the act of 1849, when applied to the personal liability of the stockholder for debts of the bank existing at the adoption of the one or the passage of the other, as no such question is presented in the case. The constitution imposed the liability only in respect to all debts contracted after the first day of January, 1850, and the act of 1849 simply carries the provision into execution. Neither do we inquire whether or not this constitutional provision applied to existing banks, as that question has been determined by the State court, to which it belonged. Our inquiry has been, assuming this to be the true construction, whether or not any contract in the charter of the bank with the State has been impaired within the meaning of the Constitution of the United States, and we are perfectly satisfied that the answer must be in the negative.

Judgment of the State court affirmed.

title: Sherman v. Smith/Opinion of the Court


text: Talk:Sherman v. Smith/Opinion of the Court


text: Page:The Unconquered Air, Coates, 1912.djvu/3


text:
Glasgow v. Hortiz

Writ of error to the Supreme Court of Missouri.

This action was commenced in the St. Louis Land Court, by William Milburn, William Glasgow, Jr., and William C. Taylor, against Jean Baptiste Hortiz. The petition of the plaintiff set forth that they are commissioners appointed under a law of the State, and as such entitled to the possession of the land described as section sixteen, township forty-five north, range seven east, and the defendants have taken and unlawfully hold about ten acres thereof, for which suit is brought. The defendant answered, admitting his possession of a tract containing 4 22-100 arpents, and denied the plaintiff's right of possession.

On the trial the p aintiffs showed their appointment as commissioners, and their right under the law of Missouri to possession of the sixteenth section. The defendant admitted that the land he was on was part of the sixteenth section, but showed that he held it by a title from Fran ois Bequette, who had occupied and cultivated it, claiming it to be his own prior to December 20, 1803; and that it is situated in the vicinity of the ancient village of St. Louis, of which Bequette was an inhabitant.

The defendant asserted that those facts, coupled with the act of Congress passed in 1812, confirming to the inhabitants of St. Louis and other villages such out-lots, common-field lots, and commons, as were inhabited, cultivated, or possessed by them previous to December 20, 1803, gave him a legal title to the land in dispute. To this the plaintiffs replied that a survey of the St. Louis commons, out-lots, &c., was made by the Surveyor General in 1840. He exhibited the map of that survey, and showed that the land occupied by the defendant was not within the out-boundaries there laid down.

The court refused to instruct the jury that the survey was binding upon all parties claiming under the confirmation of 1812, but charged, that if the land in dispute was one of a series of lots lying together in the vicinity of St. Louis village, and used by the inhabitants as a common-field prior to December, 1803-if the land sued for was cultivated by Bequette before that time-if Bequette was an inhabitant of the village-and if his title was vested in the defendant-then the verdict ought to be for the defendant.

The verdict and judgment were in favor of the defendant. The judgment was affirmed in the Supreme Court of the State The plaintiff took this writ of error.

Mr. Bates, Attorney General, for plaintiffs in error. It appears that the land in question lies outside of the out-boundary as surveyed under the act of 1812, and outside of the limits of the corporation, as designated in 1809; yet the defendant, while this is obvious to the eye upon the map, and admitted upon the record, still insists that the land he claims, though clearly not within nor adjoining the town, did, nevertheless, belong to the town. If that were so, it was for him to show it. The jury, even, did not find it as a fact. Indeed they could not so find it; for the phrase 'belonging to the town,' as used in the act of 1812, does not imply ownership or proprietary right, but jurisdiction and governmental control. Neither did the court find it as matter of law. There is no such finding by court or jury in the case.

This question of out-boundary has never been passed upon by this court, and never by the Supreme Court of Missouri, except in this very case, as reported in 23 Mo., 532. And so, the supposition of adverse counsel, that this case is covered and controlled by the case of Guitard vs. Stoddard, (16 How., 507,) is a clear mistake. That case did not touch this question. In that case the question was not of locality-whether within or without the boundary-but a question of the time and manner of proving up the claim. The Circuit Court held that it could not be proven then, at the trial, but that the claimant ought to have made his proof before the recorder, under the act of May 26, 1824. And that was the point upon which this court reversed the judgment of the court below.

As the claimant, to make himself a beneficiary of the act, must needs show himself within the scope of the general grant, which does not name him, nor specify his land, let us consider the necessity of a survey of his private claim.

It is said that the claimants, in these cases of confirmation by the act of 1812, stand in no need of a survey to perfect their title by identifying their lands. I answer, if that be so, it is not because the law does not require in that case, as in all others, special locality and exact boundary, but because there are other easy and convenient means of precise description.

The act gran s only lots, not large tracts of land-lots in, adjoining, and belonging to towns, not lands in the wilderness lots to which the persons had a right, title, or claim in Spanish times-lots which were actually inhabited, cultivated, or possessed as long ago as 1803-lots, therefore, capable of definite proof. And if no other law required that proof, the act of May 26, 1824, (4 Stat., 65, Ch. 184,) makes it the duty of every claimant, who seeks to get the recorder's certificate of confirmation, to make proof 'of the fact of inhabitation, cultivation, or possession, together with the boundaries and extent' of his claim-(not of his right, title, or claim, for that was supposed to be already in the recorder's office, as was the fact in very many cases, proved by the reports of the recorder, which were confirmed by the act of April 29, 1816, Ch. 159.)

Besides, the act of April 29, 1816, Ch. 151, (3 Stat., 325,) after directing the survey of the public lands, proceeds to say: 'And also, it shall be the duty of the surveyor to cause to be surveyed the lands in the said Territories, the claims to which have been, or hereafter may be, confirmed by any act of Congress, which have not already been surveyed according to law.'

From the general tenor of our land laws, it is manifest that the Government intended that all private claims should be surveyed; and this particular act enjoins upon the surveyor to survey all lands confirmed, or to be confirmed, by any act of Congress. But how can he perform that duty in regard to confirmations of claims which exist only in the secret memories of the claimants and their witnesses-claims which have no record or other written basis, nothing in the public offices to which he can resort for information, and nothing upon the land itself to intimate a confirmation, or even a claim?

The possession of Hortiz of his little scrap-4.22 arpents-is only coeval with this action, (September 15, 1853,) so far as appears in this record, and yet he claims a confirmation then more than forty years old!

The surveyor, as in duty bound, went on, under the said act of 1816, to survey the public lands and such private confirmations as were made known to him. But the claim of Bequette (or Hortiz) was not made known to him, neither by record evidence, nor even oral pretension. He could not, therefore, survey it, for he could not know of its existence. And hence, when, in 1818, (two years after the passage of the act,) he was surveying township forty-five, both public and private lands, he could do no otherwise than treat section sixteen as public land, and survey it accordingly. And it was public land-so treated by both the nation and the State; and, therefore, if Bequette ever had any inchoate right to the land, he justly lost it by his laches.

Mr. Hill and Mr. Polk, of Missouri, for defendants. The survey was not a condition of the grant made by the act of 1812. The confirmation contained in the first section gave a free title, proprio vigore, to the inhabitants of the villages. Vasseur vs. Benton, (1 Mo., 296;) Janis vs. Gonno, (6 Mo., 380;) Page vs. Scheivel, (11 Mo., 167;) Carondelet vs. St. Louis, (25 Mo., 460;) Harrison vs. Page, (16 Mo., 182;) Kissel vs. Schools, (16 Mo., 553;) Gamache vs. Piquinot, (17 Mo., 310;) Soulard vs. Clark, (19 Mo., 583;) City of St. Louis vs. Tony, (21 Mo., 243;) Carondelet vs. St. Louis, (24 Mo., 31;) Guitard vs. Stoddard, (16 How., 494;) Gamache vs. Piquinot, (16 How., 451;) Savignac vs. Garrison, (18 How., 136.)

Mr. Justice GRIER.

title: Glasgow v. Hortiz


text: Talk:Glasgow v. Hortiz

title: Talk:Glasgow v. Hortiz


text:
Glasgow v. Hortiz/Opinion of the Court

This case depends upon the solution of a single question, touching the construction of the act of Congress of 13th June, 1812, entitled 'An act making further provision for settling the claims to land in the Territory of Missouri.'

This act declares 'that the rights, titles, and claims to town or village lots, out-lots, c mmon-field lots and commons, in, adjoining, and belonging to the several towns and villages, (named in the act, and including St. Louis,) which lots have been inhabited, cultivated, or possessed prior to the 20th of December, 1803, shall be, and they are hereby, confirmed to the inhabitants of the respective towns and villages aforesaid, according to their several right or rights in common thereto.'

It provides, also, for a survey of the out-boundary lines of the villages, so as to include the common lots and commons thereto respectfully belonging, and donates to the town, for the use of schools, all unappropriated pieces of land within such out-boundary.

Surveys were made of the common-fields called the Barrier de Noyer, the St. Louis common, and a portion of the Cul de Sac field, which were claimed by the village or town of St. Louis as early as 1820, when a township plat was returned. But no map had been constructed, which purported to be a compliance with the duty imposed on the Surveyor General by act, till the year 1840, when the Surveyor General constructed a map, (known in the courts as map X,) exhibiting the out-boundary lines; but for some reason, or by mistake perhaps, the common-fields just mentioned were omitted.

The lots claimed by the several defendants are parts of these excluded common-fields.

The jury have found, in each case, that the lot in question was a common-field lot of the village of St. Louis; that it was inhabited, cultivated, or possessed prior to the 20th of December, 1803, by the persons under whom the several defendants claim.

Does the admitted fact, that these same commons are not included within the out-boundary map X, affect the titles claimed under the act?

The term common-field is of American invention, and adopted by Congress to designate small tracts of ground of a peculiar shape, usually from one to three arpents in front by forty in depth, used by the occupants of the French villages for the purposes of cultivation, and protected from the inroads of cattle by a common fence. The peculiar shape of the lot, its contiguity to others of similar shape, and the purposes to which it was applied, constituted it a common-field lot. It could not be confounded with lots or tracts of land of any other character. Under the Spanish and French authorities, that species of thespassers designated by the American term squatter was wholly unknown. Villagers did not venture to take possession of lots, either for cultivation or inhabitation, without a formal license from the lieutenant governor.

When Congress, in fulfilment of our treaty obligations, came to legislate on the subject of these claims and possessions, they chose to except them from the provisions made by previous enactments, (of 1806 and 1807,) requiring proof of some concession, requ ete, or survey, under the former Government, to be submitted to commissioners to have surveys made, and a favorable report by them, before the claims were confirmed. The claims of these old villages to their common-field lots, and the peculiar customs regarding them, were well known. Congress, therefore, did not require that any documentary evidence should be filed, nor a report of commissioners thereon. A survey was considered unnecessary, because the several boundaries of each claimant of a lot, and the extent of his possession, was already marked by boundaries, well known among themselves. They required no record in the land office, to give validity to the title. The act is certainly not drawn with much regard to technical accuracy. It is without that certainty, as to parties and description of the property granted, which is required in formal conveyances. But a title by statute cannot be thus criticised. It sufficiently describes the lands intended to be granted, and the class of persons to whom it is granted. Besides, it is not a donation, or mere gift, requiring a survey to sever it from other lands of the donor; but, rather, a deed of confirmation to those who are admitted to have just cl ims. It passes a present title, proprio vigore, of the property described to the persons designated; a patent to another afterwards, for any of these lands, would be void, because the Government had already released all title and claim thereto. If Congress could not grant them to another, much less could the arbitrary edict, or imperfect performance of a neglected duty by a ministerial officer, operate to divest a clear title by statute.

The construction of this act of 1812 has been so often before the courts of Missouri and this court, that it would be tedious to refer to the cases. The case of Guitard vs. Stoddard (16 How., 508) need only be cited, as it contains a review of previous decisions.

We there decide, 'That the act of 1812 is a present operative grant of all the interest of the United States in the porperty described in the act; and that the right of the grantee was not dependent on the factum of a survey under the Spanish Government. That the act makes no requisition for a concession, survey or permission to settle, cultivate, or possess, or for any location by public authority, as the basis of the right, title, or claim upon which its confirmatory provisions operate. No board was appointed to receive evidence, or authenticate titles, or adjust contradictory pretensions. All these questions were left to be decided by the judicial tribunals.'

We have decided, also, that notwithstanding the act of 1824 makes it the duty of claimants to proceed within eighteen months to designate their lots, by proving the fact of inhabitation, and their boundaries and extent, &c., so as to enable the Surveyor General to distinguish the private from the vacant lots, yet that this act imposes no forfeiture for non-compliance. The confirmee, by a compliance, obtained a recognition of his boundaries; but the Government did not, by that act, impair the effect of the act of 1812.

Now, it is true that this court have not decided directly as to the effect of this map X upon the title to lots excluded by the out-boundaries there traced; but it was only because the question was not involved in the cases decided, and not from any peculiar difficulty in the question itself; for its decision is but a corollary from the principles already established by this court. If our decision be correct, that no act of the Surveyor General was necessary to give validity to the titles confirmed by this act, a multo fortiori, it could not operate to defeat them.

The evident purpose and object of this survey of the out-boundary, required by the act, was to distinguish the private from vacant lots, so that the donation of the remnants to the public schools might be ascertained. This duty was neglected by the Government officers for twelve years, when the act of 1824 was passed. At this time, the fences which surrounded these common-fields, and designated their boundaries, had rotted down, and the boundaries were difficult to ascertain. The act of 1824 was an attempt to remedy this long neglected duty of the Surveyor General. But it was found ineffectual; and after sixteen years more have elapsed, and the lots, whose titles were confirmed by the act of 1812, may have descended to the second or third generations, the Surveyor General seems to have waked up to the performance of his duty. It was purely a ministerial function. His neglect could not suspend the vesting of the titles granted, much less his blunders forfeit them. If these verdicts be true, (and we must assume they are,) the Surveyor General has never yet performed the task imposed upon him, of making a survey and map of the outboundary, including out-lots, common-field lots, &c., belonging to the village, now city, of St. Louis.

The map X may be conclusive, as between the Government and the schools; but as it was not necessary, even if correct, to confirm the titles under which the defendants claim, its want of correctness cannot now be a reason for their forfeiture.

Judgment of the Supreme Court of Missouri affirmed.

title: Glasgow v. Hortiz/Opinion of the Court


text: Talk:Glasgow v. Hortiz/Opinion of the Court


text:
Page:Devonshire Characters and Strange Events.djvu/523

Rh wound. In a word his disguises, his rascalities were endless.

Many attempts were made by his family to reclaim him, by Lord Clifford who was his first cousin, but all in vain.

He died in obscurity in 1758, at the age of fifty-five, at Bickleigh, where he is buried. It is not known what became of his daughter, the only child he had.


text: Dictionary of National Biography, 1885-1900/Venning, John


text:
Conway v. Taylor's Executor

Appeal from the Court of Appeals for the State of Kentucky.

James Taylor, executor of James Taylor, deceased, and Robert Air, filed their bill in equity in the Circuit Court of Campbell county, Kentucky, against Peter Conway, John J. Simmons, John Sebree, Ernest Klinschmidt, Bernard Delmar, John Schenburg, Thomas Dodsworth, Daniel Wolff, and the Common Council of the city of Newport. The prayer of the bill was, that defendants might be enjoined from invading certain ferry rights claimed by plaintiffs as set forth in their bill. An account was also prayed for, and a decree against the fefendants, in respect of the moneys received by them in violation of the rights of complainants. The defendants filed answers to the bill, and after the taking of much testimony and hearing of the cause, a decree was passed for plaintiffs in accordance with the prayer of their bill. From this decree defendants appealed to the Court of Appeals of the State of Kentucky, where an order was entered modifying the decree of the court below, but still adverse to defendants. The cause was then removed to the Supreme Court of the United States upon a writ of error under the 25th section of the judiciary act.

All the leading facts of the case are stated in the opinion of Mr. Justice Swayne.

title: Conway v. Taylor's Executor


text: Talk:Conway v. Taylor's Executor

title: Talk:Conway v. Taylor's Executor