text:
Babbitt v. Finn/Opinion of the Court

Notice to the opposite party is required in every case when a writ of error is sued out or an appeal is taken to remove a cause into an appellate court, except when the appeal is allowed in open court; and the provision is that every justice or judge signing the citation, except in certain cases not material to mention, shall take good and sufficient security that the plaintiff in error or appellant shall prosecute his writ or appeal to effect; and if he fail to make his plea good, that he shall answer all damages and costs where the writ is a supersedeas, or all costs only where it does not supersede the execution. Rev. Stat., sect. 1000.

It appears that the plaintiff as an assignee in bankruptcy recovered judgment in the District Court against Edward Burgess in the sum of $4,236.28 debt, and costs of suit. Exceptions were filed by the defendant, and he sued out a writ of error and removed the cause into the Circuit Court for the same district to reverse the judgment. Sureties to the bond were required to perfect the removal of the cause, and the defendants in the present suit signed the bond as sureties of the principal, who is the party that sued out the writ of error.

Sufficient appears to show that the bond was duly approved and the writ allowed, and that the cause was removed into the Circuit Court for trial. Due notice was given to the plaintiff, and it appears that the parties were there heard and that the Circuit Court affirmed the judgment of the District Court, with costs. Payment of the judgment having been refused, and it appearing that the debtor had no property wherewith to satisfy the execution, the judgment creditor, as plaintiff, instituted the present suit against the defendants as the sureties of the principal, counting on the said bond as the cause of action.

None of these facts are controverted, and it appears that the plaintiff in his declaration assigned as a breach of the bond that the principal in the same did not prosecute his writ of error to effect nor answer all or any damages or costs on failing to make his plea good. Service was made; and certain proceedings followed that it is not important to notice, subsequent to which the defendants filed an answer, in which they set up the defence that the defendant in that suit by writ of error removed the judgment of the Circuit Court into the Supreme Court, and gave a new supersedeas bond, with good and sufficient sureties, to prosecute the appeal to the last-named court to effect; and the defendants here aver that by force and effect of said last-named writ of error and bond the judgment of the Circuit Court was superseded, rendered inoperative, and vacated, and that the defendants in that bond thereby became released and discharged from any and all liability on the bond which they signed as sureties for their principal, it appearing that the sureties on the last-named bond are solvent, and that the bond is sufficient in amount to answer all damages and costs.

Responsive to those affirmative defences the plaintiff filed a demurrer to the affirmative defences set up in the answer, which was overruled by the court. Failing in that, the plaintiff filed a replication denying the new matters set up in the answer, and the court, on motion of the defendants, rendered judgment in their favor. Exceptions were filed by the plaintiff, and he sued out the present writ of error.

Three errors are assigned in this court: 1. That the Circuit Court erred in overruling the plaintiff's demurrer to the affirmative defences set up in the answer. 2. That the court erred in rendering judgment for the defendants. 3. That the court erred in not rendering judgment for the plaintiff.

Argument to show that the bond given in the District Court to prosecute the appeal to effect and answer all damages and costs was sufficient in form is unnecessary, as nothing is suggested to the contrary; nor is it necessary to enter into any discussion to prove that the omission of the names of the sureties in the introductory part of the bond does not affect its validity, inasmuch as it appears that each signed and sealed the instrument. Pequawkett Bridge v. Mathes, 7 N. H. 230; Martin v. Dorteh, 1 Stew. (Ala.) 479; Johnson & Cain v. Steamboat Lehigh, 13 Mo. 539; Brandt, Sureties, sect. 15; Cooke v. Crawford, 1 Tex. 9.

Judgment was affirmed in the Circuit Court, and the rule is universal that the affirmance of the judgment in the Appellate Court fixes the liability of the sureties, as it shows conclusively that the principal obligor did not prosecute his appeal to effect. Karthaus v. Owings, 6 Har. & Johns. (Md.) 134, 139.

Where the bond is given in a subordinate court to prosecute an appeal to effect in a superior court, the sureties become liable if the judgment is affirmed in the superior court; nor are they discharged in case the judgment of the superior court is removed into a higher court for re-examination and a new bond is given to prosecute the second appeal, if the judgment is affirmed in the court of last resort. Nothing will discharge the sureties given to prosecute the appeal from the court of original jurisdiction, but the reversal of the judgment in some court having jurisdiction to correct the alleged error. Dolby v. Jones, 2 Dev. (N. C.) L. 109; Ashby v. Sharp, 1 Litt. (Ky.) 156; Robinson v. Plimpton, 25 N. Y. 484; Smith v. Falconer, 11 Hun (N. Y.), 481; Gardner v. Barney, 24 How. (N. Y.) Pr. 467-469; Smith v. Crouse, 24 Barb. (N. Y.) 433.

Sureties in a bond for an appeal from the special term to the general term are fixed in their liability when the judgment rendered in the special term is affirmed at the general term, but such sureties are not liable for costs in the appeal from the general term to the Court of Appeals, as the costs of such an appeal are not within the undertaking of the sureties in a bond given prosecute the appeal from the special term to the general term, from which it follows that the sureties in the bond to prosecute the appeal from the general term to the Court of Appeals are alone responsible for such costs, without any claim for contribution from the sureties in the bond given to prosecute the appeal from the court of original jurisdiction to the general term. Hinckley v. Kreitz, 58 N. Y. 583, 587.

Viewed in the light of these suggestions, it is clear that the sureties in the bond given to prosecute the removal of the cause in this case from the District Court to the Circuit Court became fixed when the judgment rendered in the District Court was affirmed; nor did the removal of the judgment of affirmance rendered in the Circuit Court into the Supreme Court have any effect whatever to diminish the liability of those sureties. Certainly not, as the judgment rendered in the Circuit Court was affirmed in the Supreme Court.

Judgment having been rendered against the principal in the bond in the District Court, and the condition of the bond being that he, the principal, shall prosecute his appeal to effect and answer all damages and costs if he fail to make his plea good, it is difficult to see how it can be held that the sureties are discharged when it is held both in the Circuit Court and the Supreme Court that the judgment of the District Court is correct and that the judgment should be affirmed. Neither principle nor authority will support that theory, nor do they afford it any countenance whatever. Jordan v. Agawam Woollen Co., 106 Mass. 571.

Suppose that is so, still it is contended by the defendants that they are not liable in a suit on the bond because the plaintiff did not as a preliminary proceeding sue out an execution on the judgment and take proper steps to make the money. Without more, the condition of the bond is a sufficient answer to that defence, as it stipulates that if he, the principal, fails to make his plea good, the obligors, principal and sureties, shall answer all damages and costs, which is quite enough to show that it was not necessary that an execution should be sued out on the judgment before a right of action would accrue to the judgment creditors to enforce their remedy on the bond. As between the obligors and obligees all the obligors are principal debtors, though as between each other they may have the rights and remedies resulting from the relation of principal and surety.

It was the affirmance of the judgment that fixed the liability, and inasmuch as the defendants bound themselves that the principal should pay the judgment if he failed to make his plea good, no such preliminary step is required. Gillette v. Bullard, 20 Wall. 571, 575; Tissot v. Darling, 9 Cal. 278, 281; Smith v. Ramsay, 6 Serg. & R. (Pa.) 573; Brandt on Sureties, sect. 404.

It is not necessary in order to charge the sureties in an appeal bond that an execution on the judgment recovered in the Appellate Court should be issued against the principal. When they execute the bond they assume the obligation that they will answer all damages and costs if the principal fails to prosecute his appeal to effect and make his plea good, from which it follows that if the judgment is affirmed by the Appellate Court, either directly or by a mandate sent down to the subordinate court, the sureties proprio vigore become liable to the same extent as the principal obligor. Unless the bond contains some special provisions to that effect, the sureties in such a bond given in a common-law action do not become liable for the costs incurred in consequence of a new appeal to a still higher court; or, in other words, the sureties in a bond given in the District Court to indemnify the opposite party on an appeal to the Circuit Court are not liable for the costs incurred by a subsequent removal of the cause from the Circuit Court to the Supreme Court, the rule being that in that court the plaintiff in error or appellant must give a new bond; but it is equally well settled that such new appeal will not diminish or discharge the liability of his sureties on the bond given in the District Court, unless the judgment rendered in the District Court is wholly reversed.

Apply these suggestions to the case before the court and it is clear that the Circuit Court gave judgment for the wrong party.

The judgment will be reversed and the cause remanded with directions to sustain the demurrer of the plaintiff to the affirmative defences set up in the answer, and to render judgment in favor of the plaintiff, in conformity with this opinion.

So ordered.

title: Babbitt v. Finn/Opinion of the Court


text: Talk:Babbitt v. Finn/Opinion of the Court

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


text:
Bowditch v. Boston

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

The facts are stated in the opinion of the court.

Mr. George W. Morse for the plaintiff in error.

Mr. J. P. Healy, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Bowditch v. Boston


text: Talk:Bowditch v. Boston

title: Talk:Bowditch v. Boston


text:
Bowditch v. Boston/Opinion of the Court

The plaintiff in error, who is the assignee of the estate of Charles H. Hall, a bankrupt, alleges and relies upon the following case:--

A great fire occurred in the city of Boston on the night of the 9th and 10th of November, 1872. Hall was then the lessee and occupant of the premises described in the declaration. The fixtures, merchandise, and tools belonging to him in the part of the building covered by the lease were of the value of $60,000, and his leasehold estate was of the value of $10,000. The fire did not first break out in his premises, but that part of the building and the contents were in danger from its progress. Three fire-engineers, then at a place of danger in the immediate vicinity, directed the building including his premises to be demolished, to arrest the spreading of the fire. The building was blown up and destroyed accordingly. This measure stopped the progress of the fire. The premises were left unfit for occupation, and his personal effects, before mentioned, were destroyed by the catastrophe. This action is brought by his assignee to recover what was thus lost to the bankrupt.

The claim is founded upon certain statutes of the State of Massachusetts, and an ordinance of the city of Boston. A brief reference to their provisions, material to be considered in this case, will be sufficient.

In cases of fire, any three of certain designated officers 'may direct any house or building to be pulled down or demolished when they may judge the same to be necessary in order to prevent the spreading of the fire.' Mass. Gen. Stat., c. 24, sect. 4.

'If such pulling down or demolishing of a house or building is the means of stopping the fire, or if the fire stops before it comes to the same, the owner shall be entitled to recover a reasonable compensation from the city or town; but when such building is that in which the fire first broke out, the owner shall receive no compensation.' Id., sect. 5.

The city of Boston was authorized to establish a fire department, to consist of so many engineers, &c., 'as the city council, by ordinance, shall from time to time prescribe.' Mass. Special Stats., 1850, c. 22.

Pursuant to the authority thus conferred, the city council, in the manner prescribed, created such a department, and declared that it should 'consist of a chief engineer and thirteen assistant engineers,' &c. Ordinances of Boston, ed. 1869, sect. 1.

It was provided that 'the chief engineer shall have the sole command at fires over all other engineers and officers and members of the fire department, and other persons who may be present at such fires,' &c. Id., sect. 6.

'Whenever it is adjudged at any fire, by any three or more of the engineers present, of whom the chief engineer, if present, shall be one, to be necessary, in order to prevent the spreading of the fire, to pull down or otherwise demolish any building, the same may be done by their joint order.' Id., sect. 11.

It appears that at the fire here in question the chief engineer and a number of the assistant engineers were present. Upon that subject there is no controversy.

The case was first tried in the District Court of the United States for that district.

The learned judge who presided at the trial directed the jury to render a verdict for the defendant, which was accordingly done.

The plaintiff in error excepted, and having embodied in the record all the evidence given on the trial, sued out a writ of error and removed the case to the Circuit Court.

There the judgment of the District Court was affirmed. A further writ of error has brought the case here for review.

It is now a settled rule in the courts of the United States that whenever, in the trial of a civil case, it is clear that the state of the evidence is such as not to warrant a verdict for a party, and that if such a verdict were rendered the other party would be entitled to a new trial, it is the right and duty of the judge to direct the jury to find according to the views of the court. Such is the constant practice, and it is a convenient one. It saves time and expense. It gives scientific certainty to the law in its application to the facts and promotes the ends of justice. Merchants' Bank v. State Bank, 10 Wall. 604, 637; Improvement Company v. Munson, 14 id. 442; Pleasants v. Fant, 22 id. 116.

The rule in the English courts is substantially the same. Ryder v. Wombwell, Law Rep. 4 Ex. 32; Giblin v. McMullin, Law Rep. 2 P. C. 335. In the latter case it was said: 'In every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party introducing it, upon whom the onus of proof is imposed.

At the common law every one had the right to destroy real and personal property, in cases of actual necessity, to prevent the spreading of a fire, and there was no responsibility on the part of such destroyer, and no remedy for the owner. In the case of the Prerogative, 12 Rep. 13, it is said: 'For the Commonwealth a man shall suffer damage, as for saving a city or town a house shall be plucked down if the next one be on fire; and a thing for the Commonwealth every man may do without being liable to an action.' There are many other cases besides that of fire,-some of them involving the destruction of life itself,-where the same rule is applied. 'The rights of necessity are a part of the law.' Respublica v. Sparhawk, 1 Dall. 357, 362. See also Mouse's Case, 12 Rep. 63; 15 Vin., tit. Necessity, sect. 8; 4 T. R. 794; 1 Zab. (N. J.) 248; 3 id. 591; 25 Wend. (N. Y.) 173; 2 Den. (N. Y.) 461.

In these cases the common law adopts the principle of the natural law, and finds the right and the justification in the same imperative necessity. Burlem. 145, sect. 6; id. 159, c. 5, sects. 24-29; Puffendorf, B. 2, c. 6.

The statute of Massachusetts, as far as it goes, gives as a bounty that which could not have been claimed before. How far the statute trenches upon the legal and natural right which every one possessed prior to its enactment, is a subject we need not consider.

All the questions arising in this case are questions of local law. It is our duty to consider the controversy as if we were a court of the State, and sitting there to apply her jurisprudence.

The subject was within her police power, and it was competent for her to legislate upon it as she might deem proper. It is wholly beyond the sphere of Federal authority.

Whether the statute is to be construed strictly, as being in derogation of the common law, or liberally, as being remedial in its character, are points within the exclusive cognizance of her tribunals. The jurisdiction of the District Court arose from the incidental fact that a claim in behalf of a bankrupt's estate was involved, and that his assignee was the plaintiff.

In order to charge the city, 'the remedy being given by statute only, the case must be clearly within the statute.'. . . 'The city is responsible by force of the statute only, and such responsibility is limited to the cases specially contemplated.' Taylor v. Plymouth, 8 Metc. (Mass.) 465.

The law of the case has been clearly laid down by the highest judicial court of the State, and we cannot do better than quote it at length.

'The plain intent of the statute is that no house or building shall be demolished unless it shall be judged necessary by three fire-wards, or by the other officers authorized to act in their absence, or where no fire-wards have been appointed. It is the united judgment of the officers to whom the power is given, acting upon the immediate exigency, and determining the necessity, which is contemplated by the statute. Its language is capable of no other reasonable interpretation. It is a joint authority expressly given to the officers designated, acting together, and cannot be exercised by a minority or by any one of them.

'It is not sufficient, therefore, that a general conclusion or judgment was arrived at by the three fire-wards or the other officers mentioned, that it was necessary to destroy some buildings in order to put a stop to the further extension of a fire. They must go further. They must determine upon the particular house or building which they shall adjudge necessary to be destroyed for the purpose. This cannot be left to the individual judgment of any one of the fire-wards.' Ruggles v. Inhabitants of Nantucket, 11 Cush. (Mass.) 433.

The validity of the ordinance creating the fire department was not questioned in the argument here, and we see no reason for doubt upon the subject. The statute which authorized the ordinance declared that 'the engineers or other officers,' appointed pursuant to the provisions of the latter, should be clothed with all the powers and duties 'conferred upon fire-wards by the Revised Statutes or special acts relating to the city of Boston now in force,' and that the city council might 'make such regulations in regard to their conduct and government' as it might see fit to ordain. For all the purposes of this case the engineers were fire-wards at and during the fire here in question. Several things were necessary to the validity of an order for the destruction of the tenement of the bankrupt:--

At least three engineers of the fire department-the chief engineer, if present, being one-must have consulted together touching the blowing up of that particular building.

They must all have arrived at the conclusion that it was necessary to destroy it in order to arrest the progress of the flames.

They must all jointly and specifically have ordered that building to be destroyed.

Upon looking carefully through the record, we have failed to find the slightest proof that any three of the fire engineers ever consulted in relation to destroying the building to which this controversy relates; that any three, jointly or severally, expressly or by implication, gave an order that it should be destroyed; or that this particular building was ever present to the minds of any three of the engineers in that connection.

The mayor was on the ground early after the commencement of the fire, and was there, actively engaged, until the next morning. He heard consultations as to the use of gunpowder, but his testimony is an entire blank as to the points here under consideration.

The chief engineer was called by the plaintiff and was fully examined.

He gave authority to numerous persons according to this formula:--

'Colonel Shepard will blow up buildings or remove goods as his judgment directs.

'J. S. DAMRELL, Chief Engineer.'

The utter nullity of such an instrument is too plain to require remark.

In the course of the chief engineer's testimony these questions and answers occur:--

'Q. You and the engineers did not direct the blowing up of any buildings in Boston by gunpowder?

'A. No, sir. Not when I was present. If any three engineers did so, when I was not present, I have yet to learn the fact.

'Q. Did you know that any three engineers directed the demolishing of any building by gunpowder?

'A. I do not know the fact.'

The building was blown up by General Burt, the postmaster of Boston. He had a written paper from the chief engineer, and it was in his possession when he testified. The document is not in the record, and its contents are not shown. Upon the points here in question his testimony was as follows:--

'Q. Did you at any time consult with three of the engineers of the city, after you started the scheme of blowing up? 'A. I don't think we did. I had in my mind distinctly what to do, and we stuck to it until we got it done.

'Q. You used your own discretion entirely?

'A. I intended to. I intended to keep that line plumb up, if I could, and not to let it get into the new post-office building, and not get over into this part of the city.'

These witnesses are unimpeached and uncontradicted, and what they say is conclusive. It is unnecessary to refer particularly to the rest of the testimony. Nothing is to be found in it in conflict with the parts we have quoted. It affords no ground for a plausible conjecture that the facts were otherwise. The plaintiff not only failed to prove what he claimed, but his own testimony counter-proved it and established the negative. The proposition was vital to his case.

Judgment affirmed.

title: Bowditch v. Boston/Opinion of the Court


text:
Page:Folk-lore - A Quarterly Review. Volume 2, 1891.djvu/357

 Rh me give you another instance: a man whom I have already mentioned, saw at a farm nearer the centre of the island a live calf being burnt. The owner bears an English name, but his family has long been settled in Man. The farmer's explanation to my informant was that the calf was burnt to secure luck for the rest of the herd, some of which were threatening to die. My informant thought there was absolutely nothing the matter with them, except that they had too little to eat. Be that as it may, the one calf was sacrificed as a burnt-offering to secure luck for the rest of the cattle. Let me here also quote Mr. Moore's note in his Manx Surnamess, p. 184, on the place-name Cabhal yn Oural Losht, or the Chapel of the Burnt Sacrifice. "This name", he says, "records a circumstance which took place in the nineteenth century, but which, it is to be hoped, was never customary in the Isle of Man. A farmer", he goes on to say, "who had lost a number of his sheep and cattle by murrain, burned a calf as a propitiatory offering to the Deity on this spot, where a chapel was afterwards built. Hence the name." Particulars, I may say, of time, place, and person could be easily added to Mr. Moore's statement, excepting, perhaps, as to the deity in question; on that point I have never been informed, but Mr. Moore is probably right in the use of the capital d, as the sacrificer is, according to all accounts, a highly devout Christian.

One more instance: an octogenarian woman, born in the parish of Bride, and now living at Kirk Andreas, saw, when she was a "lump of a girl" of ten or fifteen years of age, a live sheep being burnt in a field in the parish of Andreas, on May-day, whereby she meant the first of May reckoned according to the Old Style. She asserts very decidedly that it was son oural, "as a sacrifice", as she put it, and "for an object to the public": those were her words when she expressed herself in English. Further, she made the statement that it was a custom to burn a sheep on old May-day for a sacrifice. I was fully alive to the interest of this evidence, and cross-examined her so far as her age allows of it, and


text: Talk:Bowditch v. Boston/Opinion of the Court


text: Missouri v. Lewis

title: Missouri v. Lewis


text: Talk:Missouri v. Lewis

title: Talk:Missouri v. Lewis


text:
Missouri v. Lewis/Opinion of the Court

ERROR to the Supreme Court of the State of Missouri.

This writ of error was brought by the State of Missouri, on the relation of Frank J. Bowman, to reverse the judgment of the Supreme Court of Missouri refusing to issue a mandamus to Edward A. Lewis, Charles S. Hayden, and Robert A. Bakewell, judges of the Saint Louis Court of Appeals. The object of the mandamus was to compel the latter court to grant his application for an appeal to the said Supreme Court from a judgment of said Court of Appeals, affirming a judgment of the Circuit Court of Saint Louis County, removing Bowman, a resident of that county, from the practice of law in the State, he having by the verdict of a jury been found guilty upon charges preferred against him by the committee of prosecution of the Bar Association.

Wagner's Missouri Statutes, c. 12, p. 198, title 'Attorneys-at-Law,' contain the following provisions:-- 'SECT. 6. Any attorney or counsellor at law who shall be  guilty of any felony or infamous crime, or improperly   retaining his client's money, or of any malpractice,   deceit, or misdemeanor in his professional capacity, may   be removed or suspended from practice, upon charges   exhibited and proceedings thereon had, as herein after   provided.

'SECT. 7. Such charges may be exhibited, and proceedings thereon had in the Supreme Court, or in the Circuit Court of the county in which the offence shall have been committed or the accused resides.

'SECT. 8. The court in which such charges shall be exhibited shall fix a day for the hearing, allowing a reasonable time, and the clerk shall issue a citation accordingly, with a copy of the charges annexed, which may be served in any county in this State.

'SECT. 9. The copy of the charges and citation shall be served in the same manner as a declaration and summons in civil actions, a reasonable time before the return-day thereof.

'SECT. 10. If the party served with citation shall fail to appear, according to the command thereof, obedience may be enforced by attachment, or the court may proceed ex parte.

'SECT. 11. If the charges allege a conviction for an indictable offence, the court shall, on the production of the record of conviction, remove the person so convicted, or suspend him from practice for a limited time, according to the nature of the offence, without further trial.

'SECT. 12. Upon charges other than in the last section specified, the court shall have power only to suspend the accused from practice, until the facts shall be ascertained in the manner hereinafter prescribed.

'SECT. 13. If the charge be for an indictable offence, and no indictment be found, or being found, shall not be prosecuted to trial within six months, the suspension shall be discontinued, unless the delay be produced by the absence or procurement of the accused, in which case the suspension may be continued until a final decision.

'SECT. 14. The record of conviction or acquittal of any indictable offence shall, in all cases, be conclusive of the facts, and the court shall proceed thereon accordingly.

'SECT. 15. When the matter charged is not indictable, a trial of the facts alleged shall be had in the court in which the charges are pending, which trial shall be by a jury; or if the accused, being served with process, fail to appear, or appearing, does not require a jury, by the court.

'SECT. 16. In all cases of conviction, the court shall pronounce judgment of removal or suspension according to the nature of the facts found.

'SECT. 17. In all cases of a trial of charges in the Circuit Court the defendant may except to any decision of the court, and may prosecute an appeal or writ of error in all respects as in actions at law.

'SECT. 18. Every judgment or order of removal or suspension, made in pursuance of this chapter by the Supreme Court, or by any circuit court, shall operate, while it continues in force, as a removal or suspension from practice in all the courts of this State.'

The Constitution of Missouri adopted Oct. 30, 1875, contains the following provisions, art. 6, title 'Judicial Department:'--

'SECT. 1. The judicial power of the State, as to matters of law and equity, except as in this Constitution otherwise provided, shall be vested in a supreme court, the Saint Louis court of appeals, circuit courts, criminal courts, probate courts, county courts, and municipal corporation courts.

'SECT. 2. The Supreme Court, except in cases otherwise directed by this Constitution, shall have appellate jurisdiction only, which shall be coextensive with the State, under the restrictions and limitations in this Constitution provided.

'SECT. 3. The Supreme Court shall have a general superintending control over all inferior courts. It shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, and other remedial writs, and to hear and determine the same.'

'SECT. 12. There is hereby established in the city of Saint Louis an appellate court, to be known as the Saint Louis Court of Appeals, the jurisdiction of which shall be coextensive with the city of Saint Louis, and the counties of Saint Louis, Saint Charles, Lincoln, and Warren. Said court shall have power to issue writs of habeas corpus, quo warranto, mandamus, certiorari, and other original remedial writs, and to hear and determine the same, and shall have a superintending control over all inferior courts of record in said counties. Appeals shall lie from the decisions of the Saint Louis Court of Appeals to the Supreme Court, and writs of error may issue from the Supreme Court to said court, in the following cases only: In all cases where the amount in dispute, exclusive of costs, exceeds the sum of $2,500; in cases involving the construction of the Constitution of the United States or of this State; in cases where the validity of a treaty or statute of, or authority exercised under, the United States is drawn in question; in cases involving the construction of the revenue laws of this State, or the title of any office under this State; in cases involving title to real estate; in cases where a county or other political subdivision of this State or any State officer is a party, and in all cases of felony.'

'SECT. 19. All cases which may be pending in the Supreme Court at Saint Louis at the time of the adoption of this Constitution, which, by its terms, would come within the find appellate jurisdiction of the Saint Louis Court of Appeals, shall be certified and transferred to the Saint Louis Court of Appeals, to be heard and determined by said court.'

'SECT. 21. Upon the adoption of this Constitution, and after the close of the next regular terms of the Supreme Court at Saint Louis, and Saint Joseph, as now established by law, the office of the clerk of the Supreme Court at Saint Louis and Saint Joseph shall be vacated, and said clerks shall transmit to the clerk of the Supreme Court at Jefferson City all the books, records, documents, transcripts, and papers belonging to their respective offices, except those required by sect. 19 of this article to be turned over to the Saint Louis Court of Appeals; and said records, documents, transcripts, and papers shall become part of the records, documents, transcripts, and papers of said Supreme Court at Jefferson City, and said court shall hear and determine all the cases thus transferred, as other cases.'

'SECT. 27. . . . The Saint Louis Court of Appeals shall have exclusive jurisdiction of all appeals from, and writs of error to, the Circuit Courts of Saint Charles, Lincoln, and Warren Counties, and the Circuit Court of Saint Louis County in special term, and all courts of record having criminal jurisdiction in said counties.'

The statutes of Missouri provide that 'every person aggrieved by any final judgment or decision of any circuit court, in any civil case, including cases of contested elections, may make his appeal to the Supreme Court.' Act of Feb. 28, 1871; Wagn. Mo. Stat., sect. 9, p. 159.

'In all cases of final judgment, rendered upon any indictment, an appeal to the Supreme Court [District Court] shall be allowed the defendant, if applied for during the term at which such judgment is rendered.' Gen. Stat. Mo., c. 215, sect. 1.

The act of Feb. 16, 1877, provides that,--

'SECT. 1. Every person aggrieved by any final judgment or decision of any circuit court, or the Saint Louis Court of Appeals, may make his appeal to the Supreme Court in any civil case.' Acts of Legislature of Missouri, session 1877.

Mr. Jeremiah S. Black, Mr. George F. Edmunds, and Mr. David Wagner for the plaintiff in error.

1. Bowman, the relator, having asserted his right to appeal from the Saint Louis Court of Appeals, on the ground that the provisions limiting appeals from that court were in violation of the [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]]]]]]]]]]]]]]]]]], and other articles of the Constitution of the United States, the jurisdiction of this court to review the judgment is clear (Slaughter-House Cases, 16 Wall. 36), and the case is properly here on a writ of error. Memphis v. Brown, 94 U.S. 715; Ward v. Gregory, 7 Pet. 633; Columbian Insurance Co. v. Wheelright, 7 Wheat. 534; Dove v. Ind. School Dist., 41 Iowa, 689.

2. Missouri denies to some of its citizens the equal protection of the laws, by forbidding that access to the department administering them, which other citizens enjoy.

The right of an unrestricted appeal to the Supreme Court, granted to those residing in one hundred and nine counties of the State, is, in like cases, withheld from those residing in either of four other counties, or in the city of Saint Louis.

It cannot be answered that a hearing before the Saint Louis Court of Appeals is equivalent to that before the Supreme Court; for the State Constitution recognizes the superiority of the wisdom and power of the latter tribunal, by investing it with superintending control over all subordinate courts, and in some instances by giving to parties the right of appeal from the Saint Louis Court of Appeals.

A State, under a republican form of government, is as imperatively bound to give equal remedial rights as it is to impose equal burdens and obligations. Vanzant v. Waddell, 2 Yerg. (Tenn.) 270; Walley's Heirs v. Kennedy, id. 552; State Bank v. Cooper et al., id. 621; Reynolds v. Baker, 6 Cold. (Tenn.) 221, 228.

An attorney residing in one of the privileged counties of the State could have appealed a similar cause to the Supreme Court, while Bowman, although forced, as a resident of Saint Louis, to contribute by payment of taxes to the expenses of that court, finds its doors barred against him.

A State, if she precluded a citizen by name from seeking redress before the same tribunals provided for the administration of justice to her other citizens, would violate the Federal Constitution; and a provision by which a resort to her Supreme Court is denied to those only who live in a particular district within her limits is equally objectionable and void.

We do not question the right of the State to establish, by constitutional provisions, intermediate appellate courts; but we submit that to allow to a large portion of her citizens the right of appeal to her Supreme Court, and deny, under the same circumstances and conditions, that right to other citizens is in plain violation of the fundamental principle of equality, recognized and guaranteed by the Constitution of the United States. Art. 4, sect. 4, Const. U.S.; Budd v. State, 3 Humph. (Tenn.) 490; 2 Yerg. (Tenn.) 270; State Bank v. Cooper, id. 599; Jones v. Perry, 10 id. 59.

3. If Bowman was of African descent, and the Constitution of Missouri prohibited a negro from appealing to the Supreme Court of the State for redress of his injuries, such a provision would be construed to be a denial of the 'equal protection of the laws,' and in violation of the [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]]]]]]]]]]]]]]]]]]. Slaughter-House Cases, supra.

In this case, the discrimination complained of is exercised against him and other citizens, who are as justly entitled to protection from wrongful discrimination, and to the full protection of their constitutional right of equality before all the courts of the State as if they were of African descent. If not, that amendment which sought to establish equality before the law establishes inequality, by giving preference to the rights of the colored race, and affording them superior protection.

The weight of authority and sound reason seem to establish, that while the immediate object sought by the adoption of the amendment was the protection of the negro, its provisions extend and inure to the common benefit of all.

4. By the fourth section of the fourth article of the Constitution of the United States a republican form of government is guaranteed to every State in this union.

'The equality of the rights of citizens,' says Mr. Chief Justice Waite, 'is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. The duty was originally assumed by the States, and it still remains there. The only obligation resting upon the United States is to see that the States do not deny that right.' United States v. Cruikshank et al., 92 U.S. 542, 555; Munn v. Illinois, 94 id. 125; Bank of Columbia v. Okeley, 4 Wheat. 244.

It is submitted that the provisions touching the organization of the Saint Louis Court of Appeals, which limit the right of appeal therefrom, are in violation of the Constitution of the United States, because,--

First, They violate a fundamental principle of a republican form of government,-equality before the law, and impartial administration of the law.

Second, They deny the 'equal protection of the laws' to citizens of the State and United States, and are therefore repugnant to, and inconsistent with, the provisions of the Federal Constitution.

Mr. Henry Hitchcock and Mr. Chester H. Krum, contra.

MR. JUSTICE BRADLEY delivered the opinion of the court.

By the Constitution and laws of Missouri an appeal lies to the Supreme Court of that State from any final judgment or decree of any circuit court, except those in the counties of Saint Charles, Lincoln, Warren, and Saint Louis, and the city of Saint Louis; for which counties and city the Constitution of 1875 establishes a separate court of appeal, called the Saint Louis Court of Appeals, and gives to said court exclusive jurisdiction of all appeals from, and writs of error to, the circuit courts of those counties and of said city; and from this court (the Saint Louis Court of Appeals) an appeal lies to the Supreme Court only in cases where the amount in dispute, exclusive of costs, exceeds the sum of $2,500, and in cases involving the construction of the Constitution of the United States or of Missouri, and in some other cases of special character which are enumerated. No appeal is given to the Supreme Court in a case like the present arising in the counties referred to, or in the city of Saint Louis; but a similar case arising in the circuit courts of any other county would be appealable directly to the Supreme Court.

The plaintiff in error contends that this feature of the judicial system of Missouri is in conflict with the [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]]]]]]]]]]]]]]]]]] of the Constitution of the United States, because it denies to suitors in the courts of Saint Louis and the counties named the equal protection of the laws, in that it denies to them the right of appeal to the Supreme Court of Missouri in cases where it gives that right to suitors in the courts of the other counties of the State.

If this position is correct, the [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]]]]]]]]]]]]]]]]]] has a much more far-reaching effect than has been supposed. It would render invalid all limitations of jurisdiction based on the amount or character of the demand. A party having a claim for only five dollars could with equal propriety complain that he is deprived of a right enjoyed by other citizens, because he cannot prosecute it in the superior courts; and another might equally complain that he cannot bring a suit for real estate in a justice's court, where the expense is small and the proceedings are expeditious. There is no difference in principle between such discriminations as these in the jurisdictions of courts and that which the plaintiff in error complains of in the present case.

If, however, we take into view the general objects and purposes of the [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]]]]]]]]]]]]]]]]]], we shall find no reasonable ground for giving it any such application. These are to extend United States citizenship to all natives and naturalized persons, and to prohibit the States from abridging their privileges or immunities, and from depriving any person of life, liberty, or property without due process of law, and from denying to any person within their jurisdiction the equal protection of the laws. It contemplates persons and classes of persons. It has not respect to local and municipal regulations that do not injuriously affect or discriminate between persons or classes of persons within the places or municipalities for which such regulations are made. The amendment could never have been intended to prevent a State from arranging and parcelling out the jurisdiction of its several courts at its discretion. No such restriction as this could have been in view, or could have been included, in the prohibition that 'no State shall deny to any person within its jurisdiction the equal protection of the laws.' It is the right of every State to establish such courts as it sees fit, and to prescribe their several jurisdictions as to territorial extent, subject-matter, and amount, and the finality and effect of their decisions, provided it does not encroach upon the proper jurisdiction of the United States, and does not abridge the privileges and immunities of citizens of the United States, and does not deprive any person of his rights without due process of law, nor deny to any person the equal protection of the laws, including the equal right to resort to the appropriate courts for redress. The last restriction, as to the equal protection of the laws, is not violated by any diversity in the jurisdiction of the several courts as to subject-matter, amount, or finality of decision, if all persons within the territorial limits of their respective jurisdictions have an equal right, in like cases and under like circumstances, to resort to them for redress. Each State has the right to make political subdivisions of its territory for municipal purposes, and to regulate their local government. As respects the administration of justice, it may establish one system of courts for cities and another for rural districts, one system for one portion of its territory and another system for another portion. Convenience, if not necessity, often requires this to be done, and it would seriously interfere with the power of a State to regulate its internal affairs to deny to it this right. We think it is not denied or taken away by any thing in the Constitution of the United States, including the amendments thereto.

We might go still further, and say, with undoubted truth, that there is nothing in the Constitution to prevent any State from adopting any system of laws or judicature it sees fit for all or any part of its territory. If the State of New York, for example, should see fit to adopt the civil law and its method of procedure for New York City and the surrounding counties, and the common law and its method of procedure for the rest of the State, there is nothing in the Constitution of the United States to prevent its doing so. This would not, of itself, within the meaning of the [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]]]]]]]]]]]]]]]]]], be a denial to any person of the equal protection of the laws. If every person residing or being in either portion of the State should be accorded the equal protection of the laws prevailing there, he could not justly complain of a violation of the clause referred to. For, as before said, it has respect to persons and classes of persons. It means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place and under like circumstances.

The [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]]]]]]]]]]]]]]]]]] does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two States separated only by an imaginary line. On one side of this line there may be a right of trial by jury, and on the other side no such right. Each State prescribes its own modes of judicial proceeding. If diversities of laws and judicial proceedings may exist in the several States without violating the equality clause in the [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]]]]]]]]]]]]]]]]]], there is no solid reason why there may not be such diversities in different parts of the same State. A uniformity which is not essential as regards different States cannot be essential as regards different parts of a State, provided that in each and all there is no infraction of the constitutional provision. Diversities which are allowable in different States are allowable in different parts of the same State. Where part of a State is thickly settled, and another part has but few inhabitants, it may be desirable to have different systems of judicature for the two portions,-trial by jury in one, for example, and not in the other. Large cities may require a multiplication of courts and a peculiar arrangement of jurisdictions. It would be an unfortunate restriction of the powers of the State government if it could not, in its discretion, provide for these various exigencies.

If a Mexican State should be acquired by treaty and added to an adjoining State, or part of a State, in the United States, and the two should be erected into a new State, it cannot be doubted that such new State might allow the Mexican laws and judicature to continue unchanged in the one portion, and the common law and its corresponding judicature in the other portion. Such an arrangement would not be prohibited by any fair construction of the [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]]]]]]]]]]]]]]]]]]. It would not be based on any respect of persons or classes, but on municipal considerations alone, and a regard to the welfare of all classes within the particular territory or jurisdiction.

It is not impossible that a distinct territorial establishment and jurisdiction might be intended as, or might have the effect of, a discrimination against a particular race or class, where such race or class should happen to be the principal occupants of the disfavored district. Should such a case ever arise, it will be time enough then to consider it. No such case is pretended to exist in the present instance.

It is apparent from the view we have taken of the import and effect of the equality clause of the [[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|[[Additional amendments to the United States Constitution#Amendment XIV|Fourteenth Amendment]]]]]]]]]]]]]]]]]], which has been relied upon by the plaintiff in error in this case, that it cannot be invoked to invalidate that portion of the judicial system established by the Constitution and laws of Missouri, which is the subject of complaint. This follows without any special examination of the particular adjustment of jurisdictions between the courts of Missouri as affected by its Constitution and laws. Such a special examination, however, if it were our province to make it, would readily show that there is no foundation for the complaint which has been made. Bowman has had the benefit of the right of appeal to the full extent enjoyed by any member of the profession in other parts of the State. In the outside counties they have but one appeal, from the Circuit Court to the Supreme Court. In Saint Louis, he had the benefit of an appeal from the Circuit Court of Saint Louis County to the Saint Louis Court of Appeals. This is as much as he could ask, even if his rights of appeal were to be nicely measured by the right enjoyed in the outside counties. The Constitution of the State has provided two courts of appeal for different portions of its territory,-the Saint Louis Court of Appeals for one portion, and the Supreme Court for another portion. It is not for us, nor for any other tribunal, to say that these courts do not afford equal security for the due administration of the laws of Missouri within their respective jurisdictions. Where the decisions of the Saint Louis Court of Appeals are final, they are clothed with all the majesty of the law which surrounds those of the Supreme Court. If in certain cases a still further appeal is allowed from the one court to the other, this fact does not derogate in the least from the credit and authority of those decisions of the former which by the Constitution and laws of the State are final and conclusive.

But this special consideration is an accidental phase of the particular case. The true ground on which the case rests is the undoubted power of the State to regulate the jurisdiction of its own tribunals for the different portions of its territory in such manner as it sees fit, subject only to the limitations before referred to; and our conclusion is that this power is unaffected by the constitutional provision which has been relied on to invalidate its exercise in this case.

Judgment affirmed.

title: Missouri v. Lewis/Opinion of the Court


text: Talk:Missouri v. Lewis/Opinion of the Court


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Arthur v. Dodge

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

Between Aug. 28 and Oct. 18, 1874, Dodge and his partners, constituting the firm of Phelps, Dodge, & Co., imported into the port of New York sundry invoices of 'tin in plates,' 'terne plates,' and 'tagger's tin,' whereon Arthur, the then collector, imposed a duty of fifteen per cent ad valorem, which the firm paid under protest. The following is a copy of one of their protests, the others being substantially like it:--

'SIR,-We do hereby protest against the payment of fifteen per cent charged on sixteen hundred and fifty (1650) boxes tin plates of the dutiable value of $14,422, gold, contained in our entry made on the twenty-third day of September, 1874, per S. S. 'Algeria,' from Liverpool, England, in cases marked P. D. & Co., and various other marks, claiming that under existing laws said goods are only liable to a duty of ninety per cent of fifteen per cent or thirteen and one-half per cent, because title 33, sect. 2503, of the codification of the revenue laws provides certain rates of duty on articles which are mentioned in Schedule E of sect. 2504, with the provisions that all articles mentioned in 2503 shall have the benefit of ten per cent reduction-one of the provisions-on all metals not herein otherwise provided for, and on all manufactures of, &c., &c., includes tin plate, and pay the amount exacted in order to get possession of the goods, and look to you for refund of the same.'

The Secretary of the Treasury having, on appeal, affirmed the decision of the collector, the firm brought this suit to recover the difference between the amount paid and ninety per cent thereof.

There was a judgment for the plaintiffs. Arthur then sued out this writ of error.

The Solicitor-General for the plaintiffs in error.

Mr. John E. Parsons, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Arthur v. Dodge


text: Talk:Arthur v. Dodge

title: Talk:Arthur v. Dodge


text:
Arthur v. Dodge/Opinion of the Court

The principal question in this case is, whether, under sects. 2503 and 2504 of the Revised Statutes, 'tin plate' and 'terne tin' are dutiable at fifteen per cent ad valorem, or at ninety per cent of that rate. It is conceded that under the act of 1872 (17 Stat. 231, sects. 2, 4), which continued in force until the Revised Statutes went into effect, the duty was fifteen per cent ad valorem.

The sections of the Revised Statutes referred to, so far as they are material to the determination of the case, are as follows:--

'SECT. 2503. There shall be levied, collected, and paid upon all articles mentioned in the schedules contained in the next section, imported from foreign countries, the rates of duty which are by the schedules respectively prescribed: Provided, that on the goods, wares, and merchandise in this section enumerated and provided for, imported from foreign countries, there shall be levied, collected, and paid only ninety per centum of the several duties and rates of duty imposed by the said schedules upon said articles, severally, that is to say:

* *  *  *  *

'On all iron and steel, and on all manufactures of iron and steel, of which such metals, or either of them, shall be the component part of chief value, excepting cotton machinery.

'On all metals not herein otherwise provided for, and on all manufactures of metals of which either of them is the component part of chief value, excepting percussion-caps, watches, jewelry, and other articles of ornament: Provided, that all wire rope and wire strand, or chain made of iron wire, either bright, coppered, galvanized, or coated with other metals, shall pay the same rate of duty that is now levied on the iron wire of which said rope or strand or chain is made; and all wire rope and wire strand or chain made of steel wire, either bright, coppered, galvanized, or coated with other metals, shall pay the same rate of duty that is now levied on the steel wire of which said rope or strand or chain is made.'

'SECT. 2504. Schedule E. Metals.

* *  *  *  *

'Tin in plates or sheets, terne, and tagger's tin; fifteen per centum ad valorem. . . .'

In United States v. Bowen (100 U.S. 508), we held that the Revised Statutes must be treated as a legislative declaration by Congress of what the statute law of the United States was Dec. 1, 1873, on the subjects they embrace, and that when the meaning was plain, the courts could not look to the statutes which have been revised to see if Congress erred in that revision. Looking, then, to this case, we find that Congress has declared the law to be that only ninety per cent of the rates of duty imposed by the schedules in sect. 2504 shall be collected on all metals not otherwise provided for in sect. 2503, and on all manufactures of metals of which either of them is the component part of chief value, and on iron and all manufactures of iron of which that metal shall be a component part of chief value. In this there seems no ambiguity, and if 'tin plates' and 'terne tin' are metal or manufactures of metal, or if they can be classed as iron or manufactures of iron in which iron is the component part of chief value, there cannot be a doubt that they come within the ninety per cent clause. They are classified in the schedules as metals. All the elements of which they are composed are metals. Their manufacture consists in the combination of the several component parts. The tin is still tin, and the iron still iron. There has been no substantial chemical change. All their metallic qualities still remain. They are what they purport to be, manufactures of iron, tin, and sometimes lead, and the result is a new article of commerce, of which metals, as metals, form the component parts. Although they have, when combined, a particular name, it is a name applicable to the element in the combination, whose use it was intended in this way to secure. Percussion-caps, watches and jewelry, and other articles of ornament, made of metal, must have been considered as manufactures of metal, or it would not have been necessary to except them by name from the operation of the reduction clause.

Without pursuing the subject further, it is sufficient to say that we are clearly of the opinion that the articles in question were dutiable only at ninety per cent of the rate of fifteen per cent ad valorem.

An objection is made to the sufficiency of the protest. The claim is that it was not so distinct and specific as to apprise the collector of the nature of the objection made to the duty imposed. 'Technical precision,' says Mr. Justice Clifford, for the court, in Davies v. Arthur (96 U.S. 148, 151), 'is not required; but the objection must be so distinct and specific, as, when fairly construed, to show that the objection taken at the trial was at the time in the mind of the importer, and that it was sufficient to notify the collector of its true nature and character, to the end that he might ascertain the precise facts, and have an opportunity to correct the mistake and cure the defect, if it was one that could be obviated.' We have had no difficulty in reaching the conclusion that the protest in this case fully meets the requirements of this rule. No one could have any doubt of the nature and character of the claim that was made.

Judgment affirmed.

title: Arthur v. Dodge/Opinion of the Court


text: Talk:Arthur v. Dodge/Opinion of the Court


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The Florida

APPEAL from the Supreme Court of the District of Columbia.

On the night of the 7th of October, 1864, the United States steamer 'Wachusett,' under the command of Commander Collins, captured the rebel steamer 'Florida,' in the port of Bahia, in the empire of Brazil. The 'Florida' had gone there to supply herself with provisions and for the repair of her engine. She was anchored under cover of a Brazilian vessel of war, on the side next to the shore, and Commander Collins was notified that if he attacked her he would be fired upon by a neighboring fort and by the war vessels of the empire then present. The commander, availing himself of the darkness of the night, approached and fired upon the 'Florida,' received her surrender, attached a hawser to her extending from his vessel and towed her out to sea. He was pursued by a Brazilian war vessel, but escaped with his prize by superior speed. The steamers reached the United States at Hampton Roads. There the 'Florida' was sunk by a collision, and lies where she went down. The American consul at Bahia was on board of the 'Wachusett' at the time of the attack and incited it, and participated in the seizure. He returned to the United States with Commander Collins.

The Brazilian government demanded the return of the vessel and other reparation by the United States. The latter disavowed the capture, and the matter was amicably adjusted.

The commander libelled the 'Florida' as prize of war. The court below dismissed the case, and he appealed to this court.

The case was argued by Mr. Benjamin F. Butler and Mr. Frank W. Hackett for the appellant.

The following points are taken from Mr. Hackett's brief:--

The captors are entitled to have the question of prize or no prize judicially determined. Act June 30, 1864, 13 Stat. 306. The adjudication is essential to their protection against her former owner, and, if in their favor, gives them also the right to proceed against the colliding vessel, if through its negligence the prize was sunk. The 'Florida's' hull, guns, &c., are of some determinable value, and the question of ownership therein must be decided.

There is a res in existence. The ship is sunk in a river. The court will not inquire whether it will pay to raise her.

The executive has no right to instruct the judicial branch of the government as to the disposition of this libel, nor should its wishes have any force whatever in a tribunal sitting as a high court of prize.

In The Elsebe (5 Rob. 173), where Sir William Scott decided that the power of the crown to direct the release of property seized as prize, before adjudication and against the will of the captors, was not taken away by any grant of prize conferred in the Order of Council, the Proclamation, or the Prize Act, orders had been given by the Lords of Admiralty to release the ships before the question was raised in the prize court. In the case at bar, no such order was ever given or promised to Brazil.

For the views of Mr. Wheaton on the subserviency of Sir William Scott to the orders of the crown, see Lawrence's Wheaton, 973; Roberts, Adm. & Prize, 480, 519.

In Great Britain, the issue of peace or war is lodged in the crown. The jus persequendi in capture being conveyed only in the Orders in Council, and all claims of the captor subordinated to the right of the crown to make such disposition as it pleases of the captured property, the Queen may control the conduct of a prize suit from the beginning. She has supreme power, with the advice of her council, to relax her belligerent rights, and so far to make law for the prize court. The Phenix, 1 Spink, 306.

The right to capture in the name of the United States comes not from the Executive, but from Congress. Until condemnation, no property vests in the sovereign or the captor. 10 Op. Att.-Gen. 519. Should the government desire immediately to make use of the captured vessel, an appraisement is made, and her value, in case of a subsequent condemnation, represents the prize fund. Act March 3, 1863, sect. 2.

The act of June 30, 1864 (supra), although modelled upon the English prize acts, presents certain features essentially distinct from them. In England, the prize court exercises, in time of war only, a peculiar but extraordinary jurisdiction, specially conferred by Parliament. Roberts, Adm. & Prize, 444. In this country, the prize courts are ever open to prize causes. Their jurisdiction extends not only to cases specially provided for by Congress, but to limits recognized by international law, or the custom and usage of nations. Id. 445. The captors themselves are authorized, under certain circumstances, to commence proceedings, a right unknown to the English prize law.

The question here is not, as in the 'Elsebe,' whether in time of war the Executive can give up to a foreign nation a captured vessel without making reparation to the captors, but whether, after having gained jurisdiction, and the custody of the vessel, a prize court, sitting in the United States in time of peace, will be controlled by the wishes of the Executive in determining whether the vessel be or be not good prize. The act makes it the duty of the district attorney, upon report of the prize-master, to file a libel against the property, and to 'proceed diligently to obtain a condemnation and distribution thereof.' Rev. Stat., sect. 4618. The Attorney-General, by opposing this libel and asking its dismissal, is asserting a power not granted by the act.

The alleged violation of the neutrality of Brazil is no defence to this libel. This is an objection which the neutral nation alone can interpose. The Lilla, 2 Sprague, 177; The Sir William Peel, 5 Wall. 517; The Adela, 6 id. 266.

A capture made within neutral waters is, as between enemies, deemed to all intents and purposes rightful; it is only by the neutral sovereign that its legal validity can be called in question, and as to him, and him only, is it to be considered void. The Anne, 3 Wheat. 435. It was there held that even a consul, unless specially authorized by his government, cannot interpose a claim of violated sovereignty. The Sancta Trinita, cited in a note to The Anne, shows that the French law is like the English and American in this respect. See 3 Phillimore, Int. Law, p. 453, where The Anne is approvingly cited. 1 Kent, Com. (12th ed.) 117, note 1; id. 121; The Etrusco, 3 C. Rob. 162, note.

It is objected that the capture of the 'Florida' was in direct violation of the orders of the Secretary of the Navy, and therefore illegal and void; and that the distribution of the proceeds of her sale as prize would be a reward to officers for disobedience.

Those orders are nothing more than regulations for the discipline of the navy. Their violation subjects the offender to a court-martial. 'If the sovereign should, by a special order, authorize the capture of neutral property for a cause manifestly unfounded in the law of nations, it would afford a complete justification of the captors in all tribunals of prize.' Maisonnaire v. Keating, 2 Gall. 325. The orders of the Secretary can go no further than international law itself in stamping the capture with illegality. Commander Collins was, by a court-martial, found guilty of disobeying the orders of the Secretary, but the sentence of dismissal was not approved.

Nor can it be urged that the capture was not for the use and benefit of the United States. It is a matter of public record that this government lodged before the tribunal of arbitration at Geneva claims for direct losses to our merchant marine inflicted by the 'Florida,' amounting to over $4,000,000.

Suppose that immediately on the arrival of the 'Florida' at Hampton Roads the Southern Confederacy had collapsed, Brazil would have demanded reparation, but not the return of the vessel. Would not she in that event have been decreed good prize? What difference between this supposed state of things, and that where, after the war was over and the honor of Brazil had been satisfied, the wrecking company had raised the 'Florida,' pumped her out, and she had been sold, and the proceeds held as a prize fund? In neither case could the United States set up the invasion of neutral rights as against the claim of the captors to have the ship declared good prize.

Besides, the objection that neutrality was violated is completely removed by the seventh section of the act of 28th July, 1866 (14 Stat. 322), which enacts 'that the Secretary of the Navy be, and he is hereby, authorized to dispose of the property saved from the rebel steamer 'Florida,' and distribute the proceeds thereof as other prize-money is required by law to be distributed.' In accordance with this provision, the sum of $20,399.43 was distributed as prize-money to the captors, being, as between them and the United States, the value of certain property captured on board. Congress, therefore, sanctioned the capture as lawful.

The Solicitor-General, contra.

MR. JUSTICE SWAYNE, after stating the facts, delivered the opinion of the court.

title: The Florida


text: Talk:The Florida

title: Talk:The Florida


text:
The Florida/Opinion of the Court

The legal principles applicable to the facts disclosed in the record are well settled in the law of nations, and in English and American jurisprudence. Extended remarks upon the subject are, therefore, unnecessary. See Grotius, De Jure Belli, b. 3, c. 4, sect. 8; Bynkershoek, 61, c. 8; Burlamaqui, vol. ii. pt. 4, c. 5, sect. 19; Vattel, b. 3, c. 7, sect. 132; Dana's Wheaton, sect. 429 and note 208; 3 Rob. Ad. Rep. 373; 5 id. 21; The Anne, 3 Wheat. 435; La Amistad de Rues, 5 id. 385; The Santissima Trinidad, 7 id. 283, 496; The Sir William Peel, 5 Wall. 517; The Adela, 6 id. 266; 1 Kent, Com. (last ed.), pp. 112, 117, 121.

Grotius, speaking of enemies in war, says: 'But that we may not kill or hurt them in a neutral country, proceeds not from any privileges attached to their persons, but from the right of the prince in whose dominions they are.'

A capture in neutral waters is valid as between belligerents. Neither a belligerent owner nor an individual enemy owner can be heard to complain. But the neutral sovereign whose territory has been violated may interpose and demand reparation, and is entitled to have the captured property restored.

The latter was not done in this case because the captured vessel had been sunk and lost. It was, therefore, impossible.

The libelland was not entitled to a decree in his favor, for several reasons.

The title to captured property always vests primarily in the government of the captors. The rights of individuals, where such rights exist, are the results of local law or regulations. Here, the capture was promptly disavowed by the United States. They, therefore, never had any title.

The case is one in which the judicial is bound to follow the action of the political department of the government, and is concluded by it. Phillips v. Payne, 92 U.S. 130.

These things must necessarily be so, otherwise the anomaly would be possible, that, while the government was apologizing and making reparation to avoid a foreign war, the offending officer might, through the action of its courts, fill his pockets with the fruits of the offence out of which the controversy arose. When the capture was disavowed by our government, it became for all the purposes of this case as if it had not occurred.

Lastly, the maxim, 'ex turpi causa non oritur actio,' applies with full force. No court will lend its aid to a party who founds his claim for redress upon an illegal act.

The Brazilian government was justified by the law of nations in demanding the return of the captured vessel and proper redress otherwise. It was due to its own character, and to the neutral position it had assumed between the belligerents in the war then in progress, to take prompt and vigorous measures in the case, as was done. The commander was condemned by the law of nations, public policy, and the ethics involved in his conduct.

Decree affirmed.

title: The Florida/Opinion of the Court


text: Talk:The Florida/Opinion of the Court

title: Talk:The Florida/Opinion of the Court


text:
National Bank v. Hall

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

The facts are stated in the opinion of the court.

Submitted by Mr. William McFadon for the plaintiff in error, and by Mr. J. A. Sleeper and Mr. J. K. Whiton for the defendants in error.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: National Bank v. Hall


text: Talk:National Bank v. Hall

title: Talk:National Bank v. Hall


text:
National Bank v. Hall/Opinion of the Court

This is an action of tort growing out of a contract. The bill of exceptions is well drawn, and reflects clearly the points in issue between the parties. A brief statement of the case, as it appears in the record, will be sufficient for the purposes of this opinion.

During the years 1874, 1875, and up to April 1, 1876, a firm under the name of Hall, Patterson, & Co. had existed at Chicago. It consisted of S. Frank Hall, Frank D. Patterson, and Augustus L. Patterson, three of the five defendants in error. Their business was selling live-stock on commission at the Chicago stock-yards. William G. Melson was their agent at Quincy. To secure consignments at that point to his principals it was frequently necessary to make advances there. Hall, Patterson, & Co. arranged with The First National Bank of Quincy to cash Melson's drafts on them for this purpose. The drafts were numerous, and were all payable at sight. Penfield was the cashier of the bank. A draft for $125 was returned to the bank unpaid. This gave rise to some controversy between the bank and the drawees, but the matter was satisfactorily adjusted. Thereafter Hall, Patterson, & Co. addressed a letter to the cashier, which was as follows:--

'CHICAGO, Jan. 15, 1876.

'U.S. PENFIELD, Cashier, Quincy, Ill.:

'DEAR SIR,-Hereafter we will pay drafts only on actual consignments. We cannot advance money a week in advance of shipment. The stock must be in transit so as to meet dr'ft same day or the day after presented to us. This letter will cancel all previous arrangement of letters of credit in reference to G. W. Melson. Please acknowledge receipt of this, and oblige,

'Yours respectfully,

'HALL, PATTERSON, & Co.

Penfield replied as follows:--

'QUINCY, ILL., Jan. 17, 1876.

'MESSRS. HALL, PATTERSON, & Co., Chicago:

'DEAR SIR,-Your favor of the 15th received. I note what you say. We have never knowingly advanced any money to Melson on stock to come in. Have always supposed it was in transit. Have always taken his word. After this we shall require ship'g bill.

Very truly yours,

'U.S. PENFIELD, Cashr.'

This letter closed the correspondence.

On the 1st of April, 1876, two of the defendants in error, Frazee and Greer, were added as partners to the firm of Hall, Patterson, & Co., as it had before existed. They had previously been employed as clerks, and knew of the writing of the letter to Penfield of the 17th of January, 1876. The new firm continued to do business under the name of Hall, Patterson, & Co., until after this suit was commenced. Melson acted as the agent of the new firm as he had acted for the old one. Between the 1st of April, 1876, and the happening of the loss out of which this controversy has arisen, he, as such agent, drew thirty-one drafts on his principals, amounting in the aggregate to $50,000. They were all at sight, were cashed by the bank, and were duly accepted and paid by Hall, Patterson & Co. There was no communication personally or by letter between any officer of the bank and any member of the firm, from the date of the cashier's letter of the 17th of January, 1876, until after the loss before mentioned. In the mean time, the bank was wholly ignorant of the change which had been made in the firm, and the drafts were cashed without such knowledge.

On the 7th of December, 1876, Melson drew drafts as follows:

'$2,505.

QUINCY, ILL., Dec. 7, 1876.

'Pay to the order of U.S. Penfield, Cas., twenty-five hundred and five dollars on account Jos. Hunnele 5 l'ds stock.

'W. G. MELSON.

'TO HALL, PATTERSON, & Co., Stock-yards, Chicago, Ills.' '$2,004.00.

QUINCY, ILLS., Dec. 7, 1876.

'Pay to the order of U.S. Penfield, Cas., two thousand and four dollars on account S.C.. Fooley 4 l'ds hogs and cattle.

'W. G. MELSON.

'TO HALL, PATTERSON, & Co., Stock-yards, Chicago, Ills.'

Both these drafts were cashed by the bank on the day of their date, and the proceeds were paid to Melson. They were taken in the usual course of business and in entire good faith. The cashier testified that by 'ship'g bill,' in his letter of the 17th of January, 1876, he meant bill of lading, but that no bill of landing was taken by the bank after the date of that letter, and that all Melson's drafts-being thirty-one after the 1st of April, and ten or twelve between January 17 and April 1 of that year-were paid by Hall, Patterson, & Co. without bills of lading being attached, and without inquiry by the bank or its cashier concerning such securities. When the two drafts last mentioned were cashed the cashier had no knowledge whether they were drawn against stock or not. It was a rule of the bank, understood by all the stock agents doing business there, that no draft should be drawn unless the stock was in transit. Agents, when drawing, were, therefore, not usually questioned upon the subject. Their compliance with the rule was assumed by the bank. The two drafts last mentioned were indorsed and transmitted by the cashier to his correspondent in Chicago for collection. They were accepted and paid by Hall, Patterson, & Co., and the plaintiff in error received the money. No stock was forwarded by Melson. The transaction was a fraud on his part. Upon receiving the proceeds of the frafts he fled the country. He was diligently sought for, but could not be found. Hall, Patterson, & Co. brought this suit against the bank to recover the amount they had paid. A verdict and judgment were rendered in their favor in the court below, and the bank has brought the case here for review.

The bill of exceptions contains all the evidence given upon the trial. It discloses nothing which affords the slightest ground for any imputation against the bank or its officers with respect to their good faith and fair dealing in the transaction out of which this controversy has arisen. The defendants in error claimed nothing in that respect in the court below, and they have made no such claim here.

The counsel for the bank has assigned twenty-seven errors. Some of them are repetitions of the same objections in different forms. None of them are frivolous, and many of them, if the exigencies of the case required it, would be entitled to grave consideration by this court.

The two letters between the parties, of the 15th and 17th of January, 1876, are the heart of the controversy. The stress of the case is upon their construction and effect. Passing by the other points raised in the record, we shall first give our attention to this subject, and our remarks will be confined to that and one other of the errors assigned.

By this letter Hall, Patterson, & Co. advised the bank: 1. That thereafter they would pay drafts only on actual consignments of stock; 2. That they would not pay money a week in advance of shipments; 3. That the stock must be in transit, so as to meet the draft the same day or the day after it was presented to them; 4. That this letter was to cancel all previous letters of credit as to W. G. Melson; 5. They asked an acknowledgment of the receipt of the letter.

These terms were clear and explicit. What was the reply of the bank?

The cashier answered: 1. That the letter of the other party was received; 2. That its contents were noted; 3. That the bank had never knowingly advanced money to Melson on stock to come in; 4. That the cashier had always taken Melson's word; 5. That thereafter the bank would require a 'ship'g bill,' meaning a bill of lading. This letter Hall, Patterson, & Co. never answered.

What was its effect as to them? It certainly did not accept their proposition, nor accede to their terms, that 'the stock must be in transit to meet the draft on the same day or the day after presented.' They made this expressly the condition of their accepting. The letter made no allusion to the requirement, and was wholly silent on the subject. Upon this point the parties were as wide asunder as if the letters had not been written.

For whose benefit was the shipping bill mentioned by the cashier to be taken?Prima facie the point is left in uncertainty. Here again the cashier is silent. But the interpretation is reasonable that Hall, Patterson, & Co., having in advance refused to accept, except upon the condition mentioned, the bank notified them in reply that it would thereafter take a bill of lading, not for their protection, but for its own. This view is strengthened by the conduct of the defendants in error, and the practical construction which they seem to have thus given to the clause. They did not say in reply that they understood the shipping bill was to be for their benefit, and that they should expect it to accompany the draft. No such bill was ever required by them or sent by the bank. They went on accepting and paying in silence exactly as before. The large number of drafts so accepted and paid by them has been already stated. If they relied on the shipping bills their conduct is inexplicable: If the understanding of the cashier had been different from what we have suggested, it is hardly to be supposed he would, from the date of his letter, have constantly disregarded his promise. Such conduct would have been worse than negligence. It would have been a gross breach of good faith to the other party. If, on the other hand, he meant by the clause that the bill of lading, if taken, was to be solely for the security of the bank, then it was for the bank to determine whether it should be required or not. If the cashier had confidence in Melson, and chose to exercise it, he exposed the bank to the hazard of the consequences; but there was certainly no responsibility to Hall, Patterson, & Co.

It is a remarkable feature of the case that, when the loss occurred, the defendants in error attached no importance to their own letter, but fell back upon the letter of the cashier which they had not answered, and which they had not before in any manner recognized as concerning them, much less as constituting a contract by the bank for their protection and benefit. To give it that effect, early and explicit notice to the bank was necessary. The afterthought of Hall, Patterson, & Co., when the loss occurred, came too late, and cannot avail them. Adams v. Jones, 12 Pet. 207; McCollum v. Cushing, 22 Ark. 540; White v. Corlies, 46 N. Y. 467; Story, Contr., sect. 1130.

The minds of the parties, as shown by these letters, moved on parallel, not on concentric lines. There was not the meeting of minds and the mutuality of assent to the same thing, which are necessary to create a contract. It is not pretended that the bank ever agreed to the proposition-if it may be considered such, and not the mere announcement of a purpose-contained in the letter of Hall, Patterson, & Co., and there is no evidence that the proposition of the bank-if the letter of the cashier can be regarded in that light-was ever accepted and acted upon by the parties to whom it was addressed. We are satisfied, however, that no proposition or promise was intended to be made by the bank, and that this was the understanding of the defendants in error. Their letter revoked the letter of credit they had before given to Melson. The bank announced, in reply, the manner in which it should thereafter do business with him. Thereafter, each occupied a position independent of the other. If the bank discounted drafts for Melson, the defendants in error, like any other drawees, had the option to accept or not, and in the latter event the bank could have had no redress against them, whether it had, or had not, taken a bill of lading. The destruction of the stock, after the bank took such a bill, would not have changed the relations of the parties. In our view, it was a thing with which the defendants ine rror had nothing to do.

If it be said they were obliged to accept if the bank took a shipping bill, it may be asked in reply, Where is the evidence of such an understanding on their part? There is nothing in the record that gives the slightest support to such an assumption. If they were not bound, where is the consideration for the alleged promise of the bank? The true view of the subject is that neither was in anywise bound or liable to the other.

The defendants in error notified the bank that thereafter they would accept only on the condition specified. The cashier answered, that the bank would protect itself. This is the sole effect of the letters. Thereupon the correspondence of the parties ceased, because there was nothing left for either to add.

Where there is a misunderstanding as to the terms of a contract, neither party is liable in law or equity. Baldwin v. Mildeberger, 2 Hall (N. Y.), 176; Coles v. Bowne, 10 Paige (N. Y.), 526; Utley v. Donaldson, 94 U.S. 29.

Where a contract is a unit, and left uncertain in one particular, the whole will be regarded as one inchoate, because the parties have not been ad idem, and, therefore, neither is bound. Appleby v. Johnson, Law Rep. 9 C. P. 158.

A proposal to accept, or acceptance upon terms varying from those offered, is a rejection of the offer. Baker v. Johnson County, 37 Iowa, 186. See also Jenness v. Mount Hope Iron Co., 53 Me. 20; The Chicago & Great Eastern Railway Co. v. Dane, 43 N. Y. 240; and Suydam v. Clark, 2 Sandf. (N. Y.) 133.

The learned judge who tried the case below instructed the jury that the letters constituted a binding contract, and that if the bank cashed any bills not based on actual consignments to the plaintiffs, and the plaintiffs sustained any injury by such failure, the bank is responsible.

This instruction was erroneous.

In making a contract, parties are as important an element as the terms with reference to the subject-matter. Mutual assent as to both is alike necessary. If, in fact, there were here, as claimed, a contract with reference to the latter, it was made on the 17th of January, 1876, with Hall and the two Pattersons, then constituting the firm known as Hall, Patterson, & Co. The change of the firm on the 1st of April following, by taking in Frazee and Greer as new members, without the knowledge or consent of the bank, put an end to the contract as to the latter. The proof is conclusive that the bank had no knowledge of the change until after commencement of this suit. The alleged cause of action arose more than eight months after the new partnership was formed, and nearly a year after the date of the letters by which the contract is claimed to have been made. There was no privity between the bank and the new firm. There was no binding acquiescence by the bank. There could be none without knowledge, and it is not claimed or pretended that such knowledge existed. A new party could no more be imported into the contract and imposed upon the bank without its consent, than a change could be made in like manner in the other pre-existing stipulations. The bank might have been willing to contract with the firm as it was originally, but not as it was subsequently. At any rate, it had the right to know and to decide for itself. Without its assent a thing was wanting which was indispensable to the continuity of the contract. Barns et al. v. Barrow, 61 N. Y. 39; Grant v. Naylor, 4 Cranch, 224; Bleeker v. Hyde, 3 McLean, 279; Taylor v. Wetmore, 10 Ohio, 490; Taylor v. McClung, 2 Houst. (Del.) 24; Hunt v. Smith, 17 Wend. (N. Y.) 179; Cremer v. Higginson, 1 Mas. 323; Russell v. Perkins, id. 368.

The court refused an instruction asked for in accordance with this view of the subject. This, also, was an error.

The judgment will be reversed, and the cause remanded to the court belwo with directions to proceed in conformity to this opinion; and it is

So ordered.


text: Talk:National Bank v. Hall/Opinion of the Court


text:
Manufacturing Company v. Trainer

APPEAL from the Circuit Court of the United States for the Eastern District of Pennsylvania.

The facts are stated in the opinion of the court.

Mr. George M. Dallas and Mr. James E. Gowen for the appellant.

Mr. Samuel Dickson, contra.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Manufacturing Company v. Trainer


text: Talk:Manufacturing Company v. Trainer

title: Talk:Manufacturing Company v. Trainer