text:
Telegraph Company v. Davenport Telegraph Company/Opinion of the Court

Upon the facts stated there ought to be no question as to the right of the plaintiffs to have their shares replaced on the books of the company and proper certificates issued to them, and to recover the dividends accrued on the shares after the unauthorized transfer; or to have alternative judgments for the value of the shares and the dividends. Forgery can confer no power nor transfer any rights. The officers of the company are the custodians of its stock-books, and it is their duty to see that all transfers of shares are properly made, either by the stockholders themselves or persons having authority from them. If upon the presentation of a certificate for transfer they are at all doubtful of the identity of the party offering it with its owner, or if not satisfied of the genuineness of a power of attorney produced, they can require the identity of the party in the one case, and the genuineness of the document in the other, to be satisfactorily established before allowing the transfer to be made. In either case they must act upon their own responsibility. In many instances they may be misled without any fault of their own, just as the most careful person may sometimes be induced to purchase property from one who has no title, and who may perhaps have acquired its possession by force or larceny. Neither the absence of blame on the part of the officers of the company in allowing an unauthorized transfer of stock, nor the good faith of the purchaser of stolen property, will avail as an answer to the demand of the true owner. The great principle that no one can be deprived of his property without his assent, except by the processes of the law, requires in the cases mentioned that the porperty wrongfully transferred or stolen should be restored to its rightful owner. The maintenance of that principle is essential to the peace and safety of society, and the insecurity which would follow any departure from it would cause far greater injury than any which can fall, in cases of unlawful appropriation of property, upon those who have been misled and defrauded.

We do not understand that the counsel of the appellant controvert these views, but they contend that the mother of the plaintiffs, as their guardian, was chargeable with culpable negligence in the keeping of the certificates, and, therefore, that the plaintiffs are estopped from claiming them or their value from the company. The negligence alleged consisted in the fact that she intrusted her brother with the key to the box in which they were deposited when she knew that he was insolvent, and that he had used, without her authority, funds received by him on a previous sale of a portion of her property; and the further fact, that when, in the summer of 1871, before leaving for Europe, she sent for the box, she returned it to the bank without examining its contents. To have allowed her brother, when known to be insolvent, to have access to the box after he had, without her authority, appropriated to his own use her funds, and to have returned the box to the bank in 1871 without examining its contents, were, according to the contention of counsel, offences of such gravity as to estop her wards, the minor children, from complaining of the company for allowing their stock to be transferred on its books under a power of attorney which he had forged. We do not think it at all necessary to comment at any length upon this singular position; for even if it were possible, as it is not, to preclude the minor heirs from asserting their rights to property received from their father, by reason of any negligence of their guardian, we are unable to perceive any necessary connection between her brother's insolvency and misappropriation of her funds, and the forgery of the children's names, or between such forgery and her omission to open her box in 1871 and examine its contents. There is no circumstance here upon which an estoppel against the plaintiffs can be raised. To create an estoppel against them, there must have been some act or declaration indicating an authorization of the use of their names, by which the company was misled, or a subsequent approval of their use by acceptance of the moneys received with knowledge of the transfer. No act or declaration is mentioned, either of the guardian or her children, which tends in the slightest degree to show that any assent was given to the use of their names. But moreover, neither the guardian nor the children whilst they were minors, were competent, even by the most formal act, to authorize a transfer and sale of the property. Under the statute of Ohio, the intervention of the Probate Court was essential to any such proceeding. No inference could, therefore, be drawn from any negligence of theirs in support of a transfer of the property, where no order of that court authorizing a transfer had been made.

There are numerous decisions of the English and American courts in accordance with the views stated. They are cited by counsel in their briefs, and are given in a note to this opinion. We do not think it important to refer to them specially, for no number of adjudications can add to the force of a simple statement of the facts. The decree of the court below in each case must be affirmed; and it is

So ordered.


text: Talk:Telegraph Company v. Davenport Telegraph Company/Opinion of the Court

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


text:
Commissioners v. Bank of Commerce

ERROR to the Circuit Court of the United States for the District of South Carolina.

This was an action brought by the Bank of Commerce to recover the amount of sundry coupons which were formerly attached to bonds, purporting to be issued by the Board of County Commissioners of the County of Pickens, South Carolina, in aid of the Atlanta and Richmond Air-Line Railway Company. The complaint alleges that the said coupons are for different sums of money, depending on the size of the bonds, and are in the form following, to wit:--

'$7.00. The County of Pickens, State of South Carolina, will pay the bearer on the first day of January, 1874, seven dollars, at Pickens Court-house, for annual interest on bond No. 113.

'H. J. ANTHONY,

'Chairman of Board of County Commissioners.

'Receivable in payment of taxes.'

-and that the plaintiff is the bona fide holder of them for value, and that they, though due, have not been paid.

Judgment was rendered in favor of the bank. Several defences, interposed below, were abandoned here. The remaining facts and the assignment of error are mentioned in the opinion of the court.

Mr. William W. Boyce for the plaintiff in error.

The 'county of Pickens' not having been sued by its corporate name, no judgment on its contracts can be rendered against it in this suit. A corporation (unless empowered to sue and be sued in the name of its clerk or trustee) should sue and be sued by the name in which it is incorporated. Brown, Actions at Law, 115; 1 Saunders, Plead. and Evid. 387. The statutes of the State do not authorize a suit for the enforcement of a county liability to be brought against the persons who constitute the board of commissioners; and the present judgment against them as individuals must be reversed, because there is nothing on the record showing their personal liability. The plaintiff below must therefore fail, as against the county, because he has not sued it; he must fail against the defendants, because he asserts a claim for the payment of which they are not individually bound. The words 'county commissioners' added to their names are a descriptio personarum, and do not define or limit their liability.

The objection is not for misnomer, nor is it one of form. It is for a defect in matter of substance, apparent on the pleadings, for which error lies.

Mr. James Lowndes and Mr. W. E. Earle, contra.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Commissioners v. Bank of Commerce


text: Talk:Commissioners v. Bank of Commerce

title: Talk:Commissioners v. Bank of Commerce


text:
Commissioners v. Bank of Commerce/Opinion of the Court

The defendants are described in the complaint as H. J Anthony, Thomas R. Price, and William Smith, 'commissioners of the county of Pickens,' and the demand set forth in the complaint is against the county of Pickens. A trial upon the merits resulted in a judgment in favor of the plaintiff for $7,132. The defences set up in the answer, and upon which the case was tried in the Circuit Court, are abandoned; and the defendants seek to reverse the judgment, upon the allegation that there is a misdescription of the defendants. Judgment cannot be had against the county, it is said, because the county is not sued; nor against the commissioners named, because the cause of action is not against them, but against the county.

There is no foundation for this course of reasoning.

By art. 4, sect. 19, of the Constitution of South Carolina (of 1868), it is thus provided:--

'The qualified electors of each county shall elect three persons for the term of two years, who shall constitute a board of county commissioners, which shall have jurisdiction over roads, highways, ferries, bridges, and all matters relating to taxes, disbursements of money for county purposes, and in every other case that may be necessary to the internal improvement and local concerns of the respective counties: Provided, that in all cases there shall be the right of appeal to the State courts.'

By the Revised Statutes of that State, 147, the powers of these officers are defined at length. Among them are the following:--

'To examine, settle, and allow all accounts chargeable against such county, and draw orders on the county treasurer for the same; but the county commissioners shall not draw any order upon the county treasurer until after the monthly return of the treasurer shall have been made to the county commissioners of the amount of funds collected, nor unless he has the funds in the treasury to pay the same.'

The specification of the powers and duties of these officers extends over several pages of the statute. It may be said, in brief, that they are charged with the management of the internal affairs of the county, and occupy substantially the place held by boards of supervisors in many of the States.

The Constitution of the State of South Carolina (of 1868) does not declare the several counties of the State to be incorporations. In art. 2, sect 3, entitled 'Legislative Department,' it is ordained as follows:--

'The judicial districts shall hereafter be designated as counties, and the boundaries of the several counties shall remain as they are established, except,' &c. . . . 'Each county shall constitute one election district.'

By art. 9, sect. 8, it is provided:--

'The corporate authorities of counties, townships, school districts, cities, towns, and villages may be invested with power to collect taxes for corporate purposes.'

'SECT. 9. The General Assembly shall provide for the incorporation of cities and towns, and shall restrict their powers of taxation, borrowing money, contracting debts, and loaning their credit.'

It is assumed by these provisions that counties are or may be made corporations.

Accordingly, it was enacted by the legislature in the same year (Stat. 1868, 134), as follows:-- 'Each county shall be a body politic and corporate for the following purposes: to sue and be sued, purchase and hold for the use of the county personal estate and land lying within its own limits, and to make necessary contracts and do necessary acts in relation to the property and concerns of the county.'

Every county of the State was expressly authorized by the statute of Sept. 18, 1868, to make the contract out of which the present cause of action arose, and the pleadings concede that the county of Pickens did make it.

We do not find in the Constitution or statutes of South Carolina any direction as to the name by which a county shall be sued. We see no objection to the form adopted in the present case.

But if it be conceded that this action should have been brought against the county of Pickens, by the corporate name of the county of Pickens, the error is simply one of a misdescription of the parties defendant, a misnomer amendable at the trial if objected to, and to be disregarded, both at the trial and on appeal, when such objection is not taken.

The Revised Statutes of South Carolina provide (sect. 199) that 'the court shall in every stage of the action disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party, and no judgment shall be reversed by reason of such error or defect.'

By another section (196) it is provided that 'the court may, before or after judgment, in furtherance of justice and on such terms as may be proper, amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party or a mistake in any other respect, or by inserting other allegations material to the case, or when the amendment does not change substantially the claim or defence, by conforming the pleadings or proceedings to the facts proved.'

Where suit was brought against 'William H. Cockle, intendant, and John R. Schwab, Joseph Herndon, Robert Wright, and Edward Wheeler, wardens, the town council of Yorkville, in the State of South Carolina,' it was objected at the hearing on appeal that the suit was against the parties in their individual capacity, and not as the town council of Yorkville. The Supreme Court said, 'The defendants have failed to present the objection at the proper time and in the proper way, and can now claim no benefit from it.' MS.C.ase.

The statutes of the State of New York on the subject of amendments are almost verbatim, the same as those of South Carolina above quoted.

In the case of the Bank of Havana v. Magee (20 N.Y. 355), Charles Cook was an individual banker, transacting business under the name of the Bank of Havanna, there being in fact no corporation of that name. On the trial, a judgment in favor of the Bank of Havanna was offered in evidence, which was objected to on the ground that the plaintiff had not proved itself to be a corporation, which was overruled. In sustaining the ruling, the Court of Appeals, by Denio, J., said: 'But I am of the opinion that when it appeared on the trial that the plaintiff's attorney had fallen into the mistake of stating the name which Mr. Cook had given to his bank as the creditor of Wickham and as the plaintiff in the suit, instead of his own name, a plain case was presented for amendment, under sect. 173 of the Code.'

The error was disregarded.

So in Traver v. Eighth Avenue R. R. Co. (6 Abb. Pr. N. S. (N. Y.) 46), the Court of Appeals, Grover, J., delivering the opinion, cited the foregoing case with approval, and held that where an action was brought by a married woman in her maiden name it was a mere misnomer, and when not objected to at the trial would be disregarded on appeal.

There being no error of which we can take notice, the judgment must be affirmed; and it is

So ordered.


text: Talk:Commissioners v. Bank of Commerce/Opinion of the Court


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Work v. Leathers

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

The facts are stated in the opinion of the court.

Mr. Thomas Hunton, for the appellant, cited Spofford et al. v. Dodge et al., 14 Mass. 60; Havelock v. Geddes, 6 Rob. Adm. 10.

Mr. Charles B. Singleton, contra, cited Kimball v. Tucker et al., 10 Mass. 192; 3 Kent, Com. 205; Abbott, Shipp. 340; 1 Pars. Shipp. and Adm. 285, note (a); Devillers v. Schooner John Bell et al., 6 La. Ann. 544; Rathbone Neal, 4 id. 563; Talcot v. Commercial Insurance Co., 2 Johns. (N. Y.) 124; 2 Phillips, Ins., sect. 2079; Sneethen v. Memphis Insurance Co., 3 La. Ann. 474.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Work v. Leathers


text: Talk:Work v. Leathers

title: Talk:Work v. Leathers


text:
Work v. Leathers/Opinion of the Court

This is a case in admiralty. On the 31st of March, 1869, Work, the libellant and appellant, chartered to Leathers the steamer 'Vicksburg' for two months from that date. Leathers was to pay $1,750 per month. It is alleged by Work, but denied, that Leathers also stipulated to return the boat in as good condition as he received her, ordinary wear and tear excepted. Leathers took possession of the boat, and paid the sum agreed upon for the first month. He also paid $560 on account of the second month. During that month a shaft broke, and the cylinder-head of one of her engines was blown out. Leathers thereupon returned the boat, and refused to repair her. The libellant claims $1,850 for the repairs which he alleges Leathers was bound to make; $1,190, the balance of the stipulated compensation for the second month; and $5,000 for damages arising otherwise from the alleged breaches of the contract by the respondent. Leathers insists that the boat was utterly unseaworthy when he received her, that her timbers were rotten, that the shaft was too small and cracked, though the crack was not apparent; that the boilers were unsafe, that the shaft broke and the cylinder blew out when the boat was in smooth, deep water, carrying only one hundred and ten pounds of steam; that the sum of $560 paid for the second month was the amount due according to the time that had elapsed when the boat became disabled and he surrendered her to the owner.

Where the owner of a vessel charters her, or offers her for freight, he is bound to see that she is seaworthy and suitable for the service in which she is to be employed. If there be defects known, or not known, he is not excused. He is obliged to keep her in proper repair, unless prevented by perils of the sea or unavoidable accident. Such is the implied contract where the contrary does not appear. Putnam v. Wood, 3 Mass. 481; 3 Kent, Com. 205. The owner is liable for the breach of his contract, but the stipulation of seaworthiness is not so far a condition precedent that the hirer is not liable in such case for any of the charter-money. If he uses her, he must pay for the use to the extent to which it goes. 1 Pars. Adm. 265; 3 Kent, Com. supra; Abbott, Shipp. (5th Am. ed.) 340. If a defect without any apparent cause be developed, it is to be presumed it existed when the service began. Talcot v. Commercial Insurance Co., 2 Johns. (N. Y.) 124.

The facts set up in the answer, by way of defence, are fully established by the proofs. The current is all one way. There is no conflict. It could do no good in any wise to examine the evidence in detail. It is sufficient to announce our conclusion.

The decree of the court below dismissing the libel is

Affirmed.

title: Work v. Leathers/Opinion of the Court


text: Talk:Work v. Leathers/Opinion of the Court


text:
Burgess v. Salmon

ERROR to the Circuit Court of the United States for the Eastern District of Virginia.

The facts are stated in the opinion of the court.

Mr. Assistant-Attorney-General Smith for the plaintiff in error.

Mr. W. P. Burwell, contra.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Burgess v. Salmon


text: Talk:Burgess v. Salmon

title: Talk:Burgess v. Salmon


text:
Burgess v. Salmon/Opinion of the Court

The facts of this case, as agreed upon, were these: That Burgess was collector of internal revenue for the third collection district of Virginia, and in that capacity exacted from and received of Salmon & Hancock, and paid into the treasury of the United States, the sum of $377.80, as an additional tax of four cents a pound on a quantity of tobacco belonging to them. It was thus exacted on the third day of March, 1875, under the act of that date, which provides as follows:--

'That sect. 3368 of the Revised Statutes be amended by striking out the words 'twenty cents a pound,' and inserting in lieu thereof the words 'twenty-four cents a pound." . . . 'Provided, that the increase of tax herein provided for shall not apply to tobacco on which the tax under existing laws shall have been paid when this act takes effect.' 18 Stat. 339.

The act contains also the provision following, viz.:--

'Every person who removes from his manufactory tobacco without the proper stamp being affixed and cancelled. . . shall, for each offence, be fined not less than $1,000 and not more than $5,000, and be imprisoned not less than one year and not more than two years.' The tobacco in question was stamped, sold, and removed for consumption or use from the place of manufacture, and beyond the control of Salmon & Hancock, in the forenoon of March 3, 1875, and the above-named act of Congress was approved in the afternoon of that day, after the stamping and removal of this tobacco, which, when removed, had been stamped at twenty cents a pound. Payment of the additional four cents a pound was made under protest, and an appeal to the commissioner of internal revenue regularly taken and overruled.

The manufacturers brought suit to recover back the amount, and recovered judgment in the court below. The collector thereupon sued out this writ of error.

The case presents but a single point: Can a manufacturer be punished, criminally and civilly,-civilly here,-for the violation of a statute, when the statute was not in force at the time the act was done? In other words, Can a person be thus punished when he did not contravene the provisions of the statute? In still other words, Can one be punished for offending against the provisions of a statute from the effects of which he was expressly exempted?

We are relieved by the agreed statement, to which reference is made, from examining a question of importance, and perhaps of difficulty, respecting the punctum temporis when a statute takes effect. Does it, as the collector contends, have operation in the present instance on the third day of March, 1875, and cover the whole of that day, commencing at midnight of March the second? If the time may be inquired into, to ascertain at what hour or what fraction of an hour of the day the form of the law becomes complete, is it to be ascertained by the court as a question of law, or to be decided as an issue of fact?

It is agreed by the parties to the record that in fact the duty of twenty per cent had been paid on the tobacco in question, and it had been removed from the storehouse, before the act of March 3, 1875, took effect; and we content ourselves by acting upon that agreement.

We are of opinion that the government must fail, upon the facts agreed upon; to wit, that the duty of twenty per cent had been paid and the tobacco had been removed before the act had been approved by the President. The seventh section of article 1 of the Constitution of the United States provides that every bill which shall have passed the House of Representatives and the Senate shall, before it becomes a law, be presented to the President of the United States. If he approve he shall sign it, but if not he shall return it, with his objections, to that House in which it originated,. . . who shall proceed to reconsider it. . . . If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress, by their adjournment, prevent its return, in which case it shall not be a law.

In the present case, the President approved the bill; and the time of such approval points out the earliest possible moment at which it could become a law, or, in the words of the act of March 3, 1875, at which it could take effect.

In Lapeyre v. United States (17 Wall. 191), it was said obiter, 'The act became effectual upon the day of its date. In some cases it is operative from the first moment of that day. Fractions of the day are not recognized. An inquiry involving that subject is inadmissible.' The question involved in that case was whether a proclamation issued by President Johnson, bearing date of June 24, 1865, removing certain restrictions upon commercial intercourse, took effect on that day, or whether it took effect on the day it was published and promulgated, which was on the 27th of the same month. It was held by a majority of this court that it took effect from its date. The question was upon the 24th or the 27th of June, and the point of the portion of a day was not involved. While the general proposition may be true, that where no special circumstances exist, the entire day on which the act was passed may be included, there is nothing in that case to make it an authority on the point before us.

In the Matter of Howes (21 Vt. 619), it appeared that the Bankrupt Act was repealed March 3, 1843. Howes presented his petition on that day, and it was held that he was too late, that on questions of that nature there can be no divisions of a day.

In the Matter of Welman (20 id. 653), the question was the same, and decided in the same way. While stating the general rule as above, the court say they agree with Lord Mansfield in Coombs v. Pitt (4 Burr. 1423), that in particular cases the very hour may well be shown when it need and can be done.

Arnold v. United States (9 Cranch, 104) is in affirmance of the same general principle. The act of July 1, 1812, there discussed, provided 'that an additional duty of one hundred per cent upon the permanent duties now imposed by law. . . shall be levied and collected on all goods, wares, and merchandises which shall, from and after the passage of this act, be imported into the United States from any foreign port or place.' The goods were brought into the collection district of Providence on the first day of July, 1812. The court say, 'The statute was to take effect from its passage, and it is a general rule that, where the computation is to be made from an act done, the day on which the act is done is to be included.'

See the case of Richardson (2 Story, 571), decided by the same judge, sustaining the view just taken.

In the present case, the acts and admissions of the government establish the position that the duties exacted by law had been fully paid, and the goods had been surrendered and transported before the President had approved the act of Congress imposing an increased duty upon them.

To impose upon the owner of the goods a criminal punishment or a penalty of $377 for not paying an additional tax of four cents a pound, would subject him to the operation of an ex post facto law.

An ex post facto law is one which imposes a punishment for an act which was not punishable at the time it was committed, or a punishment in addition to that then prescribed. Carpenter et al. v. Commonwealth of Pennsylvania, 17 How. 456.

Had the proceeding against Salmon & Hancock been taken by indictment instead of suit for the excess of the tax, and the one was equally authorized with the other, the proceeding would certainly have fallen within the description of an ex post facto law.

In Fletcher v. Peck (6 Cranch, 87), it was decided that an act of the legislature by which a man's estate shall be seized for a crime which was not declared to be an offence by a previous law, was void.

In Cummings v. Missouri (4 Wall. 277), it was held that the passage of an act imposing a penalty on a priest for the performance of an act innocent at the time it was committed, was void.

To the same purport is Pierce v. Carskaden, 16 id. 234.

The cases cited hold that the ex post facto effect of a law cannot be evaded by giving a civil form to that which is essentially criminal. Cummings v. Missouri, supra; Potter's Dwarris, 162, 163, note 9.

Judgment affirmed.

title: Burgess v. Salmon/Opinion of the Court


text: Talk:Burgess v. Salmon/Opinion of the Court


text:
Pettigrew v. United States

ERROR to the Circuit Court of the United States for the Western District of Tennessee.

The facts are stated in the opinion of the court.

Mr. W. Y. C. Humes for the plaintiff in error.

Mr. Assistant-Attorney-General Smith, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Pettigrew v. United States


text: Talk:Pettigrew v. United States

title: Talk:Pettigrew v. United States


text:
Pettigrew v. United States/Opinion of the Court

The judgment in this case is for $1,354.35, and a question is raised as to the jurisdiction of this court, because it does not exceed $2,000.

If it is an action to enforce a revenue law of the United States, we have jurisdiction without regard to amount. Rev. Stat., sect. 699. If it is not such an action, we have not.

The counts in the original complaint are very clearly counts on a contract of bailment and for money had and received. But a demurrer to the declaration was sustained, and the case was tried on an amended declaration.

The amended declaration sets forth the seizure, while in possession of the defendants, of ninety caddies of tobacco as forfeited to the United States, on account of false and fraudulent stamps and inspection marks found there by Rolf S. Sanders, a collector of internal revenue; that said Sanders and defendants having entered into an unlawful and unauthorized agreement that defendants should sell the tobacco and hold the proceeds of the sale subject to the decision of the proper court, in proceedings to be instituted therein for the condemnation of the tobacco, said agreement was void; by reason whereof the defendants became liable to the United States for the value of the tobacco, which they have refused to pay. This is repeated in the second count, and the third is for money had and received. The substance of this is, that the tobacco being forfeited for a violation of the revenue law, and a seizure made, and the goods left with the defendants, the contemporaneous agreement is void, and the defendants are proceeded against in personam for the value of the goods so left with them, which cannot now be found. It would be a very narrow and technical definition of the pharse 'enforcement of any revenue law' which did not recognize this action as one brought for that purpose. If there had been no revenue law which made this tobacco liable to seizure, the complaint would be bad on demurrer. The foundation of the action is the right which the revenue law vests in the United States to this property, and it is the enforcement of this right that is sought in this action. This was clearly the view which the court took of the matter, and in that view of it instructed the jury as follws:--

'That if they believed the tobacco caddies had upon them counterfeit stamps or brands, that such fact forfeited it to the government.

'And if the proper officer seized it as forfeited, and the defendants sold the same by direction of the officer seizing it, and received the money, and had not paid it, or any part thereof, to the government, they remained liable for the amount so received by them, and they should find a verdict for the plaintiffs.'

The judge evidently understood that he was enforcing the revenue law against a person unlawfully dealing with property which had been found in his possession forfeited to the government by reason of a violation of that law. We think this court has jurisdiction, under the section of the Revised Statutes cited.

The third plea of the defendants sets out the facts that, up to the time the goods were seized, they held them on sale for commission for Glazier, Luko, & Co., of St. Louis, and knew nothing of the causes of the alleged seizure; that at the request of Sanders, the officer who made the seizure, they consented to sell the goods, and hold the proceeds subject to proceedings in court to condemn them; that defendants were directed by Sanders to sell the tobacco, because it would become worthless if detained until the end of the suit; that they did sell the tobacco, and while the proceeds were in their hands a suit was commenced against them for the money, which was defended by Glazier, Luko, & Co., and dismissed by the district attorney after plea filed; that after retaining the money for nearly four years, and no other suit being brought for the money, or other proceedings against the tobacco, or any demand of them, they paid over the money to the parties from whom they had received the tobacco. To this plea a demurrer was filed and overruled, and issue was taken on it. The bill of exceptions shows that testimony was offered tending to sustain every allegation of the plea; but by giving the instruction copied above, the court, in effect, held that, if the jury believed the plea to be sustained by the evidence, it was no defence.

In this we think the court erred.

The defendants were bailees of Glazier, Luko, & Co. when the officer made the seizure. They were not charged with any offence against the revenue laws, and they were in no danger of loss, since they did not own the tobacco. It was a matter of indifference to them, in a pecuniary sense, what the officer did with the tobacco. It was his own convenience, therefore, and the interest of the government, that induced them to take charge of it, and sell it to prevent loss; and they did so, holding the proceeds subject to judicial proceedings, to be instituted to determine the right of the government to those proceeds. We see nothing in this to condemn. The agreement made was the best that could have been made, both for the government and the owner of the goods, and was one in which the defendants were to remain bailees under the changed condition of affairs.

Undoubtedly, the officer could have required them, as a condition of leaving the property where he found it, to pay the money it sold for to him, or into the treasury, or into the registry of the court. But he did not. And we see no reason to hold that it was not competent for the defendants to retain the property on the terms which he proposed. If he had required them to sell it as property of the United States, and pay them the proceeds, they might have relieved themselves of all trouble by refusing. The officer may not have performed his duty. It was probably his duty when he made seizure of the property to deliver it to some other officer of the government, and have it libelled at once, and a warrant of seizure issued. But this neglect of his duty did not make void the promise of the defendants to take suitable care of the property, and hold it ready for such order as the court which might take jurisdiction of the proceeding should make.

If the contract of defendants was obligatory on them, as we think it was, the evidence shows that they did all that it required of them. They sold the property, and held the money until a suit was instituted against them for it. The right to the money could as well have been decided in that suit as in this; but after the owners of the tobacco had taken the defence of the suit on themselves, and filed a plea, the suit was dismissed by the attorney for the United States. The defendants still held the money for nearly four years, awaiting any further legal proceedings, or any order from Sanders or from the government. In the absence of any thing of the kind, they felt it to be their duty to pay the money to the parties from whom they had received the tobacco. And we think they were right. They took the goods as bailees, to hold subject to a proceeding for condemnation. Such a suit, in effect, was commenced and dismissed. They were only bound to hold after this for a reasonable time; and when that was passed, their duty under the agreement was ended, and their obligation to Glazier, Luko, & Co. revived.

This is the honest and fair view of the subject, and we think it conflicts with no rule of law.

The instructions of the judge were in conflict with this view, and the judgment must, therefore, be reversed, and a new trial granted; and it is

So ordered.


text: Talk:Pettigrew v. United States/Opinion of the Court


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Nauvoo v. Ritter

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

This was an action of debt by George A. Ritter, a citizen of Missouri, against the city of Nauvoo, a corporation existing under the laws of Illinois, on four bonds and the coupons thereto attached, issued by that city in 1854, in part payment of its subscription to the capital stock of the Warsaw and Rockford Railroad Company. The declaration contained, besides the common counts, a count upon each of the bonds; and there was filed with it a copy of one of the bonds and coupons sued on. It averred that the other bonds and coupons differed from said copy in number and date only. The bonds recite on their face that they are 'issued under authority of an ordinance entitled 'An ordinance authorizing subscription to the Warsaw and Rockford Railroad Company, and for other purposes,' passed Dec. 17, 1853, by the city council of the city of Nauvoo, a copy of which is hereto attached.' The ordinance referred to in the recital, and which is printed on the back of the bonds, after referring to the act of the legislature of Illinois, entitled 'An Act supplemental to an act entitled 'An Act to provide for a general system of railroad incorporation,' approved Nov. 6, 1849,' and setting forth its provisions, contains the following:--

'And whereas, by virtue of the powers granted to counties and cities by the above-recited provisions of said supplemental act, the common council of the city of Nauvoo did, on the 4th of June, A.D. 1853, make an order submitting it to the legal voters of said city, at an election to be held at the usual place of holding elections in said city, on the thirtieth day of July, A.D. 1853, to ascertain the wishes of the people of said city in reference to the subscription by the common council of said city to the capital stock of the Warsaw and Rockford Railroad Company to the amount of $25,000, to be paid in bonds of said city, having tweenty years to run, and bearing an annual interest of eight per cent, payable semiannually.

'And whereas said election was held agreeably to said order, thirty days' previous notice having been given, as required by said act aforesaid, and the returns of said elections in due form made to the city council, who canvassed at the regular meeting held on the first day of August, A.D. 1853, when it appeared there had been cast for subscription a large majority of the votes of said city, the number of votes given for subscription being a large majority of all the votes polled at the last general election in said city, and a much larger vote than that required by the act aforesaid to authorize said subscription.'

Then follow sections authorizing the mayor to make the subscription, and providing for the execution and delivery of the bonds and coupons.

The defendant interposed six pleas. 1. The general issue. 2. That the bonds were issued without authority of law. 3. That the common council of the city did not, at any time prior to the issue of the bonds, order an election to be held for the purpose of submitting to the qualified voters the question whether or not the subscription should be made, as provided by law. 4. That the city council did not on June 4, 1853, make such an order, submitting such question to the legal voters at an election to be held at the usual place of holding elections in said city, July 13, 1853. 5. That the thirty days' notice of the election was not given. 6. That no election was held prior to the issue of the bonds, at which a majority of the qualified voters-taking as a standard the number of votes cast at the last general election prior thereto-voted for such subscription, as stated in the ordinance referred to in the bonds, and printed on the back of each of them.

The plaintiff demurred to the second, third, fourth, and fifth pleas, and the demurrer was sustained. There was neither a replication nor a demurrer to the sixth plea.

The case was tried by the court without a jury, and judgment rendered for the plaintiff, whereupon the city sued out this writ of error.

Mr. J. B. Henderson for the plaintiff in error.

No counsel appeared for the defendant in error.

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

title: Nauvoo v. Ritter


text: Talk:Nauvoo v. Ritter

title: Talk:Nauvoo v. Ritter


text:
Nauvoo v. Ritter/Opinion of the Court

By a statute of Illinois 'in regard to practice in courts of record,' passed Feb. 22, 1872, the plaintiff in a suit upon a written instrument is required to file with his declaration a copy of the instrument sued upon. Rev. Stat. Ill. (1874), c. 110, p. 777, sect. 18. In obedience to this statute, the plaintiff in this case filed with his declaration copies of the bonds and coupons declared upon. In this way, we think, the bonds became a part of the pleadings in the case.

The bonds upon their face refer to the ordinance of the city council authorizing their issue, printed on the back; and in the ordinance it is distinctly recited that the election required by law was held pursuant to notice given in accordance with the provisions of the act authorizing a subscription, and that upon a canvass of the votes 'it appeared that there had been cast for subscription a large majority of the votes of said city, the number of votes given being a large majority of all the votes polled at the last general election in said city, and a much larger vote than that required by the act aforesaid to authorize said subscription.' With this recital, in effect, upon the face of the bonds in the hands of an innocent holder, it was certainly not error in the court below to sustain a demurrer to the second, third, fourth, and fifth pleas, which simply tendered an issue as to the authority of the city to issue the bonds, and as to the fact of the election.

The record does not show that there was either a demurrer or replication to the sixth plea. In Laber v. Cooper (7 Wall. 565), we held that such an objection came too late after a trial and verdict below as if the pleadings had been perfect in form.

Judgment affirmed.

title: Nauvoo v. Ritter/Opinion of the Court


text: Talk:Nauvoo v. Ritter/Opinion of the Court


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Erwin v. United States

APPEAL from the Court of Claims.

In January, 1873, the appellant brought suit in the Court of Claims, under the Captured and Abandoned Property Act, to recover the proceeds of two hundred and eighty-three bales of cotton, alleged to have belonged to him, and to have been seized and taken from his possession in Savannah, in February, 1865, by the military forces of the United States, and to have been sold by the agent of the Treasury Department, and the proceeds paid into the treasury. After issue had been joined in the suit, and evidence on behalf of the claimant had been taken, but before a hearing was had, Haycraft v. United States (22 Wall. 81) was decided by this court; in which it was held that the Court of Claims had no jurisdiction to hear and determine any claim arising under the provisions of that act, unless suit upon the same was commenced within two years after the suppression of the rebellion. It had been previously decided that, within the meaning of the act, the rebellion was to be considered as suppressed throughout the whole of the United States on the 20th of August, 1866, the day on which the President, by his proclamation, had declared it suppressed in Texas, the last of the States in insurrection. United States v. Anderson, 9 Wall. 56.

Upon learning of the decision mentioned, the appellant petitioned Congress for relief; and, in compliance with his petition, a statute was passed, which became a law in February, 1877, authorizing the Court of Claims to take jurisdiction of his claims under the Captured and Abandoned Property Act; 'which claims,' said the statute, 'were, by accident or mistake of his agent or attorney, and without fault or neglect on his part, as is claimed, not filed within the time limited by said act.' 19 Stat. 509.

After its passage, the appellant filed in the Court of Claims an amended petition, setting forth the act, and averring that Congress intended by it to confer upon the court jurisdiction to hear and determine his claims, as stated in his original petition.

It appears from the findings of the Court of Claims that in December, 1864, the appellant was possessed of the cotton described in his petition; that it was taken from his possession by the military forces of the United States and sold, and the proceeds thereof paid into the treasury; that in December, 1868, he was a member of the firm of Erwin & Hardee, of Savannah; that during this month that firm became insolvent, and presented a petition in bankruptcy to the District Court in Georgia; that in due course of proceedings the partners were adjudged bankrupts; that an assignee of their estate was appointed, and that their property was passed to the assignee. The schedule of the individual property of the appellant annexed to the petition set forth among his assets 'a claim on the United States government for three hundred and eighty-two bales of cotton, captured by General Sherman, in Savannah, in December, 1864.' In March, 1872, the assignee presented a petition to the judge of the District Court, stating that he had in his possession a great many outstanding debts and demands belonging to the estate of the bankrupts, which could not be collected without inconvenient delay, and praying for leave to sell at auction certain notes and accounts mentioned, among which was this item: 'All uncollected open accounts on the books.' The court gave the assignee leave to sell at auction 'such notes, accounts, and other debts' due to the estate as in his judgment would be for the interest of the creditors of the bankrupts; but as he and the creditors afterwards came to the conclusion that the property, if sold as proposed, would bring a mere nominal amount, no such sale was made, and in December, 1872, he accepted an offer of $2,500, made by the appellant, for the assets, exclusive of the notes of one Henry Schaben. The assets, with that exception, were accordingly sold to him, and a memorandum given to him by the assignee, acknowledging the receipt of the money 'in full for all the remaining assets of the late firm of Erwin & Hardee.' It also appears from the findings that the copy of the bankrupts' schedules, prepared by the register in bankruptcy for the use of the assignee, contained a sheet setting forth as an asset the claim mentioned against the United States for three hundred and eighty-two bales of cotton; but that the sheet was removed by some person unknown, and that the assignee had no personal knowledge that such an asset existed when he made this sale to the appellant.

The Court of Claims dismissed the petition, and from its decision Erwin appealed to this court.

Mr. John J. Weed and Mr. Enoch Totten for the appellant.

Mr. Assistant-Attorney-General Smith, contra.

MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court.

title: Erwin v. United States


text: Talk:Erwin v. United States

title: Talk:Erwin v. United States


text:
Erwin v. United States/Opinion of the Court

The purpose of the statute passed for the relief of the appellant, as is manifest on its face, was to remove the bar of the Captured and Abandoned Property Act, which had arisen without his fault, or rather to confer jurisdiction upon the Court of Claims over his case, which otherwise would not have existed. It was not intended to enlarge or affect his title to the claim, or to change his position in court from what it would have been had he instituted his suit within the two years prescribed by that act. His claim must, therefore, be considered like the claims of other suitors, both with respect to its original validity as a demand against the government and with respect to his title. If the proof fail in either of these particulars, no recovery can be had.

There is no question made as to the appellant's ownership of the cotton at the time of its seizure, or as to its proceeds being in the treasury of the United States; nor is any point raised against his status in court from his former connection with the rebellion as an officer in the Confederate army, the disability thus created having been removed by the President's proclamation of pardon and amnesty.

The point in dispute relates to the validity of his title. His contention is, 1st, that his claim against the United States for the proceeds of the cotton never passed to the assignee in bankruptcy; and, 2d, that if it did thus pass, he afterwards became the owner of it by purchase of the assets at the sale mentioned.

Upon the first point, the argument of the appellant is substantially this: That the claim, at the time the petition in bankruptcy was filed, did not constitute an enforceable demand against the government, and was not, therefore, in its nature assignable property; and that if the claim constituted a demand against the government in the nature of property, it was incapable of assignment, under the act of Congress of Feb. 26, 1853 (10 Stat. 170), and the decision of this court in United States v. Gillis, 95 U.S. 407; and that in either view the appellant stands in his original position before proceedings in bankruptcy were instituted, with his rights or equities respecting such claim unaffected by them.

This argument is unsound. When the appellant filed his petition in bankruptcy, his claim against the government was property, though of uncertain value. It was a claim for the proceeds of goods which once belonged to him, and of the possession of which he has been deprived by the action of the government. Whether this was done rightfully or wrongfully does not affect the character of the claim as property, though it may affect its validity and value. Claims for compensation for the possession, use, or appropriation of tangible property constitute personal estate equally with the property out of which they grow, although the validity of such claims may be denied, and their value may depend upon the uncertainties of litigation, or the doubtful result of an appeal to the legislature. A demand of a bankrupt, which is outlawed, must go to the assignee; for contingencies may arise in many ways which will give value to it. Demands against the government, if based upon considerations which would be valid between individuals, such as services rendered or goods taken, are property, although there be no court to investigate and pass upon their validity, and their recognition and payment may depend upon the caprice or favor of the legislature.

In Comegys v. Vasse, reported in 1 Peters, this court said, speaking through Mr. Justice Story, that it might, in general, be affirmed that vested rights ad rem and in re, possibilities coupled with an interest, and claims growing out of and adhering to property, will pass by assignment; and it was there held that a claim against the Spanish government, by a bankrupt, for damages arising from the capture of vessels and cargoes, of which he was the underwriter, and which were abandoned to him, passed to his assignee in bankruptcy. 'The right,' said the court, 'to indemnity for an unjust capture, whether against the captors or the sovereign, whether remediable in his own courts, or by his own extraordinary interposition and grants upon private petition, or upon public negotiation, is a right attached to the ownership of the property itself, and passes by cession to the use of the ultimate sufferer;' and is in its nature capable of assignment to others. The Bankrupt Act of 1800, under which the case arose, provided that 'all the estate, real and personal, of every nature and description, to which the bankrupt might be entitled, either in law or equity,' should go to his assignee; and the court held that the words were broad enough to cover every description of vested right and interest attached to and growing out of property; that under them the whole property of a testator would pass to his devisee, and whatever an administrator could take in case of intestacy would go to him. The language of the act under which the appellant here filed his petition in bankruptcy is equally comprehensive as to the property of a bankrupt which shall go to his assignee. It declares that all his estate, real and personal, and all his rights in equity and choses in action, shall vest in the assignee; and the terms are broad enough to embrace any claim the party may have against the government for property taken belonging to him. Rev. Stat., sects. 5044, 5046.

The act of Congress of Feb. 26, 1853, to prevent frauds upon the treasury of the United States, which was the subject of consideration in the Gills Case, applies only to cases of voluntary assignment of demands against the government. It does not embrace cases where there has been a transfer of title by operation of law. The passing of claims to heirs, devisees, or assignees in bankruptcy is not within the evil at which the statute aimed; nor does the construction given by this court deny to such parties a standing in the Court of Claims.

Upon the second point, that the claim in controversy was purchased by the appellant at the private sale of the assignee, we think the evidence insufficient. It appears from the copy of the schedules of the bankrupts' property, prepared by the register for the use of the assignee, that the sheet showing the calim against the United States for three hundred and eighty-two bales of cotton had, in some unexplained way, been removed, so that he had no knowledge of the existence of the claim when he sold the remaining assets to the appellant. The receipt given by him shows that he considered that he was selling the assets of the firm only, and not of either of the separate partners. We are clear that it was not his intention to sell the claim against the government. There was a want of concurrence of minds to any such transaction, which was essential to give it validity.

Judgment affirmed.


text: Talk:Erwin v. United States/Opinion of the Court


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Kihlberg v. United States

APPEAL from the Court of Claims.

This is an appeal by Kihlberg from the judgment of the Court of Claims, in a suit upon a contract made Jan. 31, 1870, between the United States and him, for his transportation of military, Indian, and government stores and supplies from points on the Kansas Pacific Railway to posts, depots, and stations in portions of Kansas, Colorado, Texas, Indian Territory, and New Mexico, and to such other depots as might thereafter be designated within the States and Territories named.

The following are portions of the contract the construction of which is involved in this suit:--

'ART. 2. That the said Kihlberg agrees and binds himself. . . to transport, under this agreement, from and to the posts, depots, or stations named in art. 1, or from and to any other posts, depots, or stations that may be established within the district described in said article, any number of pounds of military, Indian, and government stores and supplies, from and between one hundred thousand pounds and ten millions of pounds in the aggregate.

'ART. 5. The military, Indian, and government stores and supplies which shall be transported under this agreement shall be consigned to their respective destinations, and receipts on bills of lading shall be given by the officer of the quartermaster's department serving at the place of consignment, for the full quantity of stores that shall be delivered, and upon such receipts payments shall be made to the said Kihlberg, as hereinafter provided.

'ART. 7. . . . Upon the arrival of the train at the place of destination or delivery, the officer of the quartermaster's department at the point of delivery shall indorse the bill of lading in accordance with the finding of a board of survey, as hereinafter provided, stating the quality and condition of the stores delivered, upon which indorsement payment shall be made as per contract, deducting the amount of any payment or payments previously made, and also for any articles missing, lost, destroyed, or damaged, and which the board of survey may find to be properly chargeable to the contractor, at the rate specified in art. 8 of this agreement.

'ART. 8. In all cases when stores have been transported by the said Kihlberg under this agreement, a board of survey, to be applied for in writing by the contractor or his agent (one member of which board shall be, if practicable, an officer on duty in the subsistence department), shall be called without delay, on their arrival at the point of destination or delivery, to examine the quantity and condition of the stores transported, and in cases of loss, deficiency, or damage, to investigate the facts and report the apparent causes, assess the amount of loss, deficiency, or damage, and state whether it was attributable to neglect or want of proper care on the part of the contractor or to causes beyond his control, and these proceedings, a copy of which shall be furnished to the contractor, shall be attached to the bill of lading, and shall govern the payments to be made on it.

'For loss of weight, due to shrinkage, and for leakage of vinegar, molasses, or other liquids, the contractor shall not be held liable if the packages are delivered in good order and condition, and the board of survey shall be satisfied that such shrinkage or leakage did not arise from neglect or want of care on the part of the contractor or his agent. For loss, deficiency, or damage, attributable to the contractor, he shall pay double the cost at the point where he receives the articles, which cost shall be determined by taking the cost price at place of purchase and adding thereto the cost of transportation to the point where the stores were turned over to the contractor; and no freight whatever shall be paid on stores deficient. In case of damage, freight shall be deducted in proportion to the quantity damaged. Should no board of survey be called when requested by the contractor, through failure on the part of the quartermaster's department or other military authority to have one convened, it shall be considered that the contractor has delivered all the stores as specified in the bill of lading in good order and condition, and he shall be paid accordingly. But before such payment is made, the fact must be shown that the contractor or his agent did make application in writing to the quartermaster for a board of survey. If the amount of loss, deficiency, or damage exceeds the value of the bill of lading, it shall be deducted from any after payment that may become due.

'Transportation to be paid in all cases according to the distance from the place of departure to that of delivery, the distance to be ascertained and fixed by the chief quartermaster of the district of New Mexico, and in no case to exceed the distance by the usual and customary route. Where, however, stores are taken from trains before reaching their destination by competent military authority, the contractor will be allowed an increase of pay of five per cent on contract rates to points of actual delivery; Provided, that in no case more than the regular rates for the whole distance are paid.

'ART. 17. For and in consideration of the faithful performance of the stipulations of this agreement, the said Kihlberg shall be paid at the office of the depot quartermaster at Fort Leavenworth, Kansas, in the legal currency of the United States, according to the distance supplies are transported, and agreeably to the rates specified in the tabular statement hereunto annexed, signed by the parties to this agreement.'

General Easton, on the 16th of June, 1870, issued an order addressed to the depot quartermaster at Fort Leavenworth, Kansas, stating the distances by which he was to be governed in making settlements under the contract. The distances thus given were less than by air line, or by the usual and customary route.

There was a further contention in the case as to whether the contractor was entitled, under the contract, to compensation according to the weight of the supplies when received for transportation, or their weight when delivered.

The Court of Claims held that the contractor was bound by the distances named by the chief quartermaster, and was not entitled to compensation except upon the basis of the number of pounds actually delivered.

Mr. Harvey Spalding for the appellant.

The Solicitor-General, contra.

MR. JUSTICE HARLAN delivered the opinion of the court.

title: Kihlberg v. United States


text: Talk:Kihlberg v. United States

title: Talk:Kihlberg v. United States


text:
Kihlberg v. United States/Opinion of the Court

The contract which is the foundation of this action provides that transportation shall be paid 'in all cases according to the distance from the place of departure to that of delivery.' But no specific rule is prescribed for the ascertainment of distances. The contract is silent as to whether they shall be estimated by an air line, or by the route usually travelled by contractors in conveying government stores, or by the road over which troops ordinarily marched when going from one post or station to another. The parties, however, concurred in designating a particular person the chief quartermaster of the district of New Mexico-with power not simply to ascertain, but to fix, the distances which should govern in the settlement of the contractor's accounts for transportation. The written order of General Easton to the depot quartermaster at Fort Leavenworth was an exertion of that power. He discharged a duty imposed upon him by the mutual assent of the parties. The terms by which the power was conferred and the duty imposed are clear and precise, leaving no room for doubt as to the intention of the contracting parties. They seem to be susceptible of no other interpretation than that the action of the chief quartermaster, in the matter of distances, was intended to be conclusive. There is neither allegation nor proof of fraud or bad faith upon his part. The difference between his estimate of distances and the distances by air line, or by the road usually travelled, is not so material as to justify the inference that he did not exercise the authority given him with an honest purpose to carry out the real intention of the parties, as collected from their agreement. His action cannot, therefore, be subjected to the revisory power of the courts without doing violence to the plain words of the contract. Indeed, it is not at all certain that the government would have given its assent to any contract which did not confer upon one of its officers the authority in question. If the contract had not provided distinctly, and in advance of any services performed under it, for the ascertainment of distances upon which transportation was to be paid, disputes might have constantly arisen between the contractor and the government, resulting in vexatious and expensive and, to the contractor oftentimes, ruinous litigation. Hence the provision we have been considering. Be this supposition as it may, it is sufficient that the parties expressly agreed that distances should be ascertained and fixed by the chief quartermaster, and in the absence of fraud or such gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment, his action in the premises is conclusive upon the appellant as well as upon the government. The contract being free from ambiguity, no exposition is allowable contrary to the express words of the instrument.

The tabular statement of rates appended to the contract, and attested by the signatures of the parties, shows that the appellant was to be paid for the transportation of supplies by the pound. The appellant claims that he was entitled to compensation according to the number of pounds received for transportation, in all cases where the loss in weight, occurring during transportation, was without neglect upon his part. The government contends that the quantity delivered determined the amount of compensation. We are of opinion that the latter is the better construction of the contract. By the fifth article of the agreement, it is made the duty of the quartermaster, at the place of delivery, to give to the contractor receipts on the bill of lading 'for the full quantity of stores that shall be delivered, and, upon such receipts, payment shall be made.' By the eighth article, provision is made for a board of survey, if requested by the contractor, 'to examine the quantity and condition of stores transported, and in cases of loss, deficiency, or damage, to investigate the facts, report the apparent causes, assess the amount of loss, deficiency, or damage, and state whether it was attributable to neglect or want of proper care on the part of the contractor, or to causes beyond his control; and these proceedings, a copy of which shall be furnished to the contractor, shall be attached to the bill of lading, and shall govern the payments to be made on it.' The previous article makes it the duty of the quartermaster at the point of delivery to 'indorse the bill of lading, in accordance with the finding of a board of survey,. . . stating the quantity and condition of stores delivered; upon which indorsement payment shall be made as per contract,' deducting the value of articles missing, lost, destroyed, or damaged, by neglect of the contractor, if the board of survey has found that there was such neglect. The contract further exempts the appellant from responsibility for loss of weight due to shrinkage, and for leakage of liquids, where the same has not occurred from his neglect. These provisions, taken together, show that while the contractor is not to be charged for the value of any loss, deficiency, or damage which, without his fault, occurred during transportation, the government agreed to pay him transportation at a fixed rate per pound, according to the weight of supplies when delivered at the place of destination. There are other portions of the contract, not referred to in the briefs of counsel, which seem to fortify this conclusion. In the eighth article, after providing that the contractor shall pay double the cost at the point of departure of articles in reference to which there was 'a loss, deficiency, or damage,' attributable to him, the contract declares: 'and no freight whatever shall be paid on stores deficient.' If in the progress of transportation the stores were reduced in weight, by reason of shrinkage or leakage, there would seem to be a deficiency in stores, within the meaning of the contract, for which deficiency no freight could be charged. The contractor took care to guard against responsibility for loss of weight, arising from causes beyond his control, but failed to stipulate for payment of transportation beyond the quantity or weight of supplies at the place of destination. The language employed indicates an understanding between the parties that the payment of transportation was to be regulated by the weight actually delivered, not by the weight received for delivery.

The views expressed lead to an affirmance of the judgment; and it is

So ordered.


text: Talk:Kihlberg v. United States/Opinion of the Court


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Four Packages v. United States

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

This was an information filed by the United States in the District Court, May 8, 1873, for the condemnation and forfeiture of four packages, seized by the collector of customs for the port of New York as the property of Hugo Seitz and Carl Breidbach, composing the firm of Hugo Seitz & Co., for a violation of sects. 24, 46, and 50 of the act of Congress approved March 2, 1799 (1 Stat. 627), entitled 'An Act to regulate the collection of duties on imports and tonnage,' and sect. 4 of the act of July 18, 1866 (14 id. 178), entitled 'An Act further to prevent smuggling, and for other purposes.' The first count of the information alleges that on April 25, 1873, the collector of the port of New York 'seized on land the property described as four packages containing human hair and other articles, which he now has within said Southern District of New York, as forfeited to the United States,' having been unladen and delivered from the steamship 'Hansa,' 'within said port and collection district, without a permit from the collector and naval officer for such unlading or delivery,' contrary to the fiftieth section of the act of March 2, 1799.

To maintain the issue on its part, the United States introduced evidence to show that the 'Hansa' arrived at New York from Bremen, April 23, 1873, and that the claimants came in her as steerage passengers, and brought with them the said packages; that on her arrival she proceeded to her dock or pier at Hoboken, N. J., and commenced landing her passengers and their baggage on the dock; that two inspectors, specially detailed by the collector of customs for the port of New York for the examination of the baggage of steerage passengers, found said packages on the dock, they having been there unladen and delivered from said vessel, and claimed by the claimants as their property; that Seitz and Breidbach went to Germany in March, 1873, having in contemplation the establishment, on their return, of a partnership in the business of hair-dressing and the manufacture and sale of switches; that the human hair found in said packages was purchased in Germany for use in the manufacture of said switches, and that the other articles were fancy goods bought for and at the request of the father of Briedbach, who was a dealer therein in New York, and were intended to be delivered to him for sale. It was also proved that said packages were produced to the officers of the 'Hansa' by the claimants, on engaging passage, as their baggage, and that they, with the baggage of other steerage passengers in said vessel, were put upon the dock at Hoboken by her officers, without any knowledge on their part of the contents thereof; that said packages having been subsequently examined on the pier by the inspectors, and found to contain dutiable articles, were so marked, in order to identify them at Castle Garden, where the proper officers were detailed for the purpose of collecting the duty, the baggage of steerage passengers being landed or delivered at that place, and the duties never being paid or collected on the pier at Hoboken; it was also proved that neither of said packages nor its contents was entered upon the manifest of the 'Hansa,' and that no permit or document in the nature of a permit, either in terms or legal effect, for the unlading or delivery of said packages or their contents had been granted by the collector of the port of New York; and that said packages having been sent to Castle Garden, were there seized and sent to the seizure-room at the custom-house in the city of New York. There was also evidence tending to show that the claimants imported said merchandise with the intent to secure its landing and delivery without paying the lawful duties thereon. The claimants thereupon offered in evidence the following papers as and for permits for the unlading and delivery of their goods:--

'CUSTOM HOUSE,

'NEW YORK, April 19, 1873.

'The inspector on board the steamer 'Hansa,' from Bremen, will examine the baggage of all the passengers, and if nothing be found but personal baggage, permit the same to be landed, and send all other articles not permitted, in due time, to the public store, 119 Greenwich Street and 24 Trinity Place.

THO'S G. BAKER, ''Dep. Collector''.

'E. MANNING, Naval Officer.' 'General Order.

'CUSTOM HOUSE, PORT OF NEW YORK,

'COLLECTOR'S OFFICE, April 24, 1873.

'The inspector on board the German steamship 'Hansa,' Brickenshime, master, from Bremen via Southampton, will send to the _____ public store, No. ___ Hoboken, _____ all packages, when landed, and for which no permit or order shall have been received by him contrary to this direction, except perishable articles, gunpowder, new hides, explosive substances not permitted for consumption, which you will retain on board, and send notice of to this office. The usual weighing, gauging, and measuring to be done before sending goods under this order.

'R. WYNKOOP, ''Dep. Collector''.

'J. N. P., Hoboken.'

The plaintiff admitted that said papers came from the official records of the office of the collector of the port of New York, but claiming that they were issued in connection with the landing of passengers and their baggage on the arrival of the 'Hansa,' and not as the permits required by law for unlading or delivering the goods, wares, and merchandise in suit, objected to their admission in evidence. The court sustained the objection and excluded the papers, whereupon the claimants excepted. The claimants also gave evidence tending to show their innocence of any intent to secure the unlading or delivery of the goods without paying the duties thereon. They thereupon requested the court to charge the jury to find for them on the ground that no seizure of the goods in question had been proved within the jurisdiction of the court; but the court declined so to charge, and the claimants excepted. The court thereupon directed the jury to return a verdict of condemnation of the goods, wares, and merchandise, in that the same were unladen and delivered from the 'Hansa' without a permit, contrary to the fiftieth section of the act of March 2, 1799. The claimants requested the court to charge the jury that the plaintiff could not recover under the fiftieth section of the act of 1799; that no law of the United States forbids steerage passengers from bringing dutiable articles to this country with their personal effects as baggage, and that there is no law for forfeiting goods so brought; that the goods in question were not landed without a permit; that, having been landed under the direction and supervision of the officers of the customs, or under a baggage or general order permit, they were not forfeited under the fiftieth section of the act of 1799; that upon the facts in the case the claimants did not land the goods; and that in the absence of fraudulent intent on their part in the importation of the goods the government could not recover.

The court refused so to charge, and also to submit to the jury as questions of fact whether the goods had been landed without a permit in violation of said fiftieth section, or whether they were imported contrary to law.

The jury thereupon returned a verdict condemning the goods, and judgment of forfeiture was entered thereon; and that judgment having been affirmed by the Circuit Court, the claimants then brought the case here.

Mr. S. G. Clarke for the claimants.

The information is defective in not alleging a seizure on land within the Southern District of New York, and is not cured by the allegation that the collector 'now has them within the district.'

Non constat, but that the seizure was in New Jersey, and the goods then brought within the district.

This is a jurisdictional fact, and necessary to be averred and proved. Act of 1789, sect. 9, 1 Stat. 77; Keene v. United States, 5 Cranch, 304; Act of March 2, 1799, sect. 89; The Washington, 4 Blatchf. 101; The Fideleter, 1 Abb. (U.S.) 577.

Where the jurisdiction does not appear on the face of the record, it may be taken advantage of in arrest of judgment or on error. Donaldson v. Hogen, Hemp. 423; The Washington, supra.

The evidence shows that, in point of fact, the seizure was made in the district of New Jersey. It was there that the customs officers took charge of the goods, and deprived the claimants of their possession. It is said, however, that having given a stipulation for the value of the goods proceeded against, we have admitted the jurisdiction of the court.

But consent cannot give jurisdiction to the Federal courts. Bobyshall v. Oppenheimer, 4 Wash. 482; Dred Scott v. Sandford, 19 How. 393. Or to any court of limited jurisdiction, proceeding ''in rem. The Montague'', 4 Blatchf. 461; United States v. Shares of Stock, 5 id. 231; United States v. Ninety-two Barrels, 8 id. 480.

The proceedings being in rem, they are void, if it appears that the court is without jurisdiction.

The taking of the stipulation was as much a void act as any thing else, unless the seizure was made in the district; the court had no jurisdiction to do any thing.

As soon as the want of jurisdiction appeared, proceedings should have been stayed. Fisk v. Union Pacific Railroad, 6 Blatchf. 362; Rhode Island v. Massachusetts, 12 Pet. 657.

The evidence offered and excluded was competent to show a sufficient permit for placing the packages upon the dock. United States v. Ninety-five Boxes, 19 Int. Rev. Rec. 101.

The goods were not unladen and delivered from the steamship without a permit. United States v. Ninety-five Boxes, supra; Caldwell v. United States, 8 How. 366.

If the placing of the packages on the dock with all the other baggage on board the steamship for examination did not forfeit them, then it is clear that they are not forfeited under the first count of the information. Six Hundred and Fifty-one Chests of Tea v. United States, 1 Paine, 499; Peisch v. Ware, 4 Cranch, 347.

The fact that the goods were merchandise and not personal effects can have no bearing upon this question of landing without permit. The penalty of forfeiture is imposed upon goods as well as merchandise, and the personal effects are certainly goods; the fact that they might not be dutiable makes no difference. The Elizabeth, 2 Mason, 407.

Therefore, if these packages were forfeited by being put over the side of the vessel, so were all the trunks which came over in the same manner, and likewise the vessel herself.

Mr. Assistant-Attorney-General Smith, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Four Packages v. United States


text: Talk:Four Packages v. United States

title: Talk:Four Packages v. United States


text:
Four Packages v. United States/Opinion of the Court

Goods imported in any ship or vessel from any foreign port or place are required by the act of Congress to be landed in open day, and the express provision is, that none such shall be landed or delivered from such ship or vessel without a permit from the collector and naval officer, if any, for such unlading and delivery. 1 Stat. 665; Gen. Reg. (1857), 145.

Persons violating that regulation are subjected to penalties; and the further provision is, that all goods, wares, and merchandise so unladen or delivered shall become forfeited, and may be seized by any of the officers of the customs.

Four imported packages containing human hair and other dutiable articles were seized on land by the collector; and the information alleges that the goods were brought into the port of New York in the steamer therein named, from a foreign port, and that the four packages were unladen and delivered from the steamer in which they were imported into the port without a permit from the collector and naval officer for such unlading and delivery. Seasonable appearance was entered by the claimants, and they pleaded the general issue, that the goods did not become forfeited as alleged, which was duly joined.

Pursuant to the issue between the parties, they went to trial before the district judge and a jury. Evidence to prove the allegations of the information was introduced by the district attorney, showing that the steamer arrived at the port from a foreign port at the time alleged, and that the claimants then and there came in the vessel as steerage passengers, and that they brought with them the said four packages containing the described goods; that on the arrival of the steamer within the port she proceeded to the dock or pier at Hoboken, N. J., owned by the Bremen line of steamships, to which she belonged, and commenced the landing of her passengers and their baggage on the dock; that two inspectors of customs, especially detailed by the collector of the port for the examination of the baggage of the steerage passengers, in the execution of their duty found the said four packages upon the said dock, the same having, without the knowledge of the inspectors, been there unladen and delivered on said dock from the vessel by the officers of the vessel or their employees, and having been then and there claimed by the claimants as their property; that the said four packages were each in a wooden box or case similar to boxes or cases used for the package of merchandise, with a cover connected therewith by hinges; that in each box were some articles of wearing-apparel and other personal effects not dutiable, but there was besides such articles a large quantity of dutiable merchandise.

Testimony was also introduced which showed that the claimants, being residents and in business in New York City, went together from there to Germany the month previous; that they then had in contemplation, on their return, the establishment of a partnership with each other to carry on the business of hairdressing and the manufacturing of switches, and that the father of the junior partner is a dealer in fancy goods in New York City; that the human hair found in the packages was purchased in Germany to be used in the manufacture of switches for sale; and that the residue of the merchandise contained in the packages was fancy goods bought for and at the request of the father of the said junior partner, to be brought and delivered to him for sale in his said business.

Proof was also introduced by the district attorney showing that the packages were produced to the officers of the steamer by the claimants when they engaged their passage, as their baggage, and that the packages were unladen by the officers of the steamer and put upon the dock at the place of landing as such, without knowledge of their contents by the officers, with other baggage of the steerage passengers.

Two of the packages were opened and examined at the place where they were unladen; and it being found that each contained dutiable goods not on the manifest, the inspectors placed upon each of the four packages the usual marks to show that they had not been passed, but were to be sent to Castle Garden for further inspection and for the collection of the duties to which the same were subject; that no permit or document in the nature of a permit, either in terms or legal effect, for the unlading or delivery of the goods had been granted by the collector and naval officer of the port, otherwise than as set forth in the two exhibits offered in evidence by the claimants.

Those two exhibits were offered in evidence by the claimants as the permits required by law for the unlading and delivery of the four packages in question; but the district attorney objected to the admission of the same as not being the permits which the act of Congress requires in such a case; and the court sustained the objection and excluded the same, to which ruling the claimants excepted. Exceptions were also taken to the charge of the court. The verdict and judgment were for the plaintiffs; and the defendants sued out a writ of error and removed the cause into the Circuit Court, where the judgment of the District Court was affirmed. Though defeated in both of the subordinate courts, the respondents removed the cause into this court by the present writ of error.

Three principal errors were assigned, which will be separately considered: 1. That the seizure of the goods in question was not made at a port within the jurisdiction of the District Court. 2. That the court erred in refusing to admit in evidence the exhibits offered by the claimants as permits for the unlading and delivery of the goods. 3. That the court erred in directing the jury to find a verdict in favor of the plaintiffs.

Much discussion of the first assignment of error is unnecessary, as it is clear that the seizure of the four packages was made at Castle Garden, where the goods were sent by the inspectors present on the wharf, for final examination. Sufficient appears to show that the duties in such cases are never collected on the wharf; that the examination made is only for the purpose of passing the baggage which does not contain any dutiable articles, and that the baggage which does contain dutiable goods is uniformly sent to Castle Garden for the collection of the duties, or to be dealt with as the law directs. Suffice it to say that no seizure was made on the wharf where the goods were landed, and that the proceeding in sending the goods to the place where the seizure was made was in all respects correct and in accordance with the usage of the port. The Propeller Commerce, 1 Black, 574; 3 Greenl. Evid. (8th ed.), sect. 395; The Slavers (Kate), 2 Wall. 350.

Due seizure was made in this case at Castle Garden, and consequently the first assignment of errors must be overruled.

Nor does the second assignment of error require any considerable examination, as it is too clear for argument that neither of the exhibits offered in evidence was a permit for landing and delivering any package which contained dutiable merchandise. Opposed to that is the suggestion of the respondents, that two of the inspectors were present on the wharf when the officers of the steamer unloaded the packages and placed them with the other baggage for examination; but it is wholly immaterial whether the inspectors were present or absent at the moment the packages were landed from the steamer, as it clearly appears that as soon as the inspectors discovered that the packages contained dutiable merchandise, they ordered the same to be sent to the proper place for further inspection.

Taken as a whole, the evidence fully proved that the packages were unladen and delivered without the permit required by the act of Congress; and inasmuch as there was no opposing testimony, the direction of the court to the jury to return a verdict for the plaintiffs was entirely correct. Improvement Company v. Munson, 14 Wall. 442; Ryder v. Wombwell, Law Rep. 4 Ex. 39; Law Rep. 2 P. C. 235.

Repeated requests for instruction were presented by the respondents, all of which were refused. Some of the rulings of the court in refusing these requests are also assigned for error, but it is wholly unnecessary to examine those assignments, as the instructions given disposed of the case.

Judgment affirmed.


text: Talk:Four Packages v. United States/Opinion of the Court


text:
United States v. Mora

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

This is a suit by the United States on a bond dated and executed March 4, 1863, exacted by the collector of the port of New York, as a condition precedent to granting a clearance to the vessel 'Sarah Marsh,' laden with a cargo of merchandise, bound to the port of Matamoras, in Mexico.

To support the issues on its part, the plaintiff proved that on the twenty-third day of May, 1862, the then Secretary of the Treasury had instructed the then collector of customs at the port of New York as follows:--

'TREASURY DEPARTMENT,

'WASHINGTON, D. C., May 23, 1862.

'SIR,-In pursuance of the provisions of the proclamation of the President modifying the blockade of the ports of Beaufort, Port Royal, and New Orleans, and of the regulations of the Secretary of the Treasury relating to trade with those ports, no articles contraband of war will be permitted to enter at either of said ports, and you will accordingly refuse clearance to vessels bound for those ports, or either of them, with any such articles on board.

'Until further instructed, you will regard as contraband of war the following articles; viz., cannons, mortars, fire-arms, pistols, bombs, grenades, fire-locks, flints, matches, powder, saltpetre, balls, bullets, pikes, swords, sulphur, helmets, or boarding-caps, sword-belts, saddles and bridles (always excepting the quantity of the said articles which may be necessary for the defence of the ships and of those who compose the crew), cartridge-bag material, percussion and other caps, clothing adapted for uniforms, resin, sail-cloth of all kinds, hemp and cordage, masts, ship timber, tar and pitch, ardent spirits, military persons in the service of the enemy, despatches of the enemy, and articles of like character with those specially enumerated.

'You will also refuse clearance to all vessels which (whatever the ostensible destination) are believed by you, on satisfactory ground, to be intended for ports or places in possession or under control of insurgents against the United States; or that there is imminent danger that the goods, wares, and merchandise, of whatever description, laden on such vessels, will fall into the possession or under the control f such insurgents; and in all cases where, in your judgment, there is ground for apprehension that any goods, wares, or merchandise shipped at your port will be used in any way for the aid of the insurgents or the insurrection, you will require substantial security to be given that such goods, wares, or merchandise shall not be transported to any place under insurrectionary control, and shall not, in any way, be used to give aid or comfort to such insurgents.

'You will be especially careful, upon application for clearances, to require bonds with sufficient sureties, conditioned for fulfilling faithfully all the conditions imposed by law or departmental regulations from shippers of the following articles, to the ports opened, or to any other ports from which they may easily be, and are probably intended to be, reshipped in aid of the existing insurrection; namely, liquors of all kinds, coals, iron, lead, copper, tin, brass, telegraphic instruments, wires, porous caps, platina, sulphuric acid, zinc, and all other telegraphic materials, marine engines, screw propellers, paddlewheels, cylinders, cranks, shafts, boilers, tubes for boilers, fire-bars, and every article, or any other component part of an engine or boiler, or any article whatever which is, can, or may become applicable for the manufacture of marine marine machinery, or for the armor of vessels.

'I am, &c.,

S. P. CHASE,

'Sec't'y of the Treasury.

'HIRAM BARNEY,

'''Coll. of N. York''.'

That the following bond was taken by the said collector of customs, as the condition upon which he had granted a clearance to the 'Sarah Marsh' to proceed from the port of New York to the port of Matamoras, in Mexico:--

'Know all men by these presents, that we, Leon Haas, Jr., as principal, and Foster Mora and W. M. Congreve, all residing and owning real estate in the city of New York, are held and firmly bound unto the United States of America in the sum of twenty-one thousand eighty-one 74/100 ($21,081.74) dollars, lawful money of the United States of America, to be paid to the said United States of America or their assigns, for which payment, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, firmly by these presents; sealed with our seals, dated the fourth day of March, one thousand eight hundred and sixty-three.

'Now, the condition of this obligation is such that if the ship or vessel called the 'Sarah Marsh,' laden with various packages of merchandise, value $10,540.87, enumerated in the shipper's manifest of said Leon Haas, Jr., shall proceed from the port of New York to Matamoras, in Mexico, and shall land the same at the last-mentioned port of Matamoras for consumption, and if the same shall be consumed within the republic of Mexico, and if the said shippers shall, within seven months from the date hereof, produce satisfactory proof to the collector of the port of New York, by consular certificate or otherwise, that the same has been landed and entered for consumption, and actually converted to domestic use, within the republic of Mexico, and the duties thereon paid, and if all laws and departmental regulations shall be strictly obeyed; and if all the conditions of the clearance of said merchandise shall be performed, and specially if said merchandise or any part thereof shall not be transported to any place under insurrectionary control, and if none of said merchandise shall be used in any way, with the consent or knowledge of the shippers or their agents, to give aid or comfort to parties now in rebellion against the United States, then this obligation to be void; otherwise to be and remain in full force and virtue.'

The plaintiff having offered in evidence a partial manifest of the cargo of the 'Sarah Marsh' relative to the goods represented by the bond,-which manifest showed the portion of the cargo in question to be of the value of $10,540.87, and also proved that she was a general ship, and that other parts of her cargo were owned by others than the principal and sureties on the bond in question,-offered to prove that the 'Sarah Marsh' proceeded out of the port of New York toward Matamoras, which was conceded by the defendant. The plaintiff then offered to prove that that part of her cargo referred to in the bond, and marked ??, value stated at $10,540.87, enumerated in the shipper's manifest of Leon Haas, Jr., was carried in her in March or April, 1863, to the mouth of the Rio Grande; that it was not landed at Matamoras for consumption, nor consumed within the republic of Mexico; that the shippers did not, within seven months from the date of said obligation, produce satisfactory proof to the collector of the port of New York, by consular certificate, or in any manner whatever, that said merchandise had been landed and entered for consumption and actually appropriated to domestic use within said republic, or that the duties thereon had been paid; that the laws and departmental regulations in respect to non-intercourse with portions of the United States in rebellion, and particularly in respect to Texas, were not strictly, or in any manner, obeyed in respect to said goods, and that none of the conditions of the clearance were performed, and especially that said merchandise, and large parts thereof, were transported by the principal in the bond, and by his authorized agents, directly to places under insurrectionary control, and were used with his consent and knowledge, and with the consent and knowledge of his agents, to give aid and comfort to parties then in rebellion against the United States, and specially that part of the cargo represented by the bond was sold to the military authorities of the so-called Confederate States in Brownsville, Texas, some time in the month of April, 1863; but the defendant objected, the objection was sustained, and the plaintiff excepted.

Upon motion of the defendant, the court then directed a verdict for the defendant, to which direction the plaintiff excepted.

Thereupon the jury rendered a verdict for the defendant, and the plaintiff sued out this writ.

The statutes bearing on the question of the collector's authority to require the bond are referred to in the opinion of the court.

Mr. Assistant-Attorney-General Smith for the plaintiff in error.

Under the act of May 20, 1862 (12 Stat. 404), the collector of the port of New York had not only authority to require a bond before granting the clearance, but to refuse a clearance altogether. Bas v. Steele, 3 Wash. 395; Hickey v. Huse, 56 Me. 496; United States v. Eliason, 16 Pet. 291; United States v. Freeman, 3 How. 556.

The bond in suit certainly falls within the 'reasonable security' which, by the third section of that act, the Secretary of the Treasury can require, and it is justified by the regulations which that section authorized him to make. When made, those regulations had themselves the force of law. Gratiot v. United States, 4 How. 80.

The bond is governed by the rules of the common law. Cox v. United States, 6 Pet. 172. Given by the owner of the goods as his own obligation, and accepted by the collector as such, it was a voluntary undertaking, good and enforceable at law. United States v. Hodson, 10 Wall. 395; Hamilton v. Dillin, 21 id. 73; United States v. Woollen Goods, 1 Paine, 435, and cases cited.

A bond, although not in exact conformity with the statute, may be good at common law. Any part of it not required by statute may be rejected. United States v. Tingey, 5 Pet. 115; Kavanagh v. Sanders, 8 Me. 422.

Mr. F. R. Coudert, contra.

The bond sued on, being executed in double the amount of the value of the goods, was not authorized by the act of May 20, 1862. Even if the pleadings averred that it was taken under the regulations which the Secretary of the Treasury, by the third section of the act, was authorized to make, and those regulations were admissible in evidence, they could not go beyond the provisions of the second section, authorizing the requirement of a bond from the master or owner of the vessel in a penalty equal to the value of the cargo, nor create a liability, nor impose a burden not contemplated by the law itself.

The bond sued on is in no sense a voluntary one. Dickinson v. United States, 1 Brock. 177; Taber v. United States, 1 Story, 1; United States v. Gordon, 7 Cranch, 287; United States v. Morgan, 3 Wash. 10.

Where a statute prescribes the condition of a bond, its provisions must be strictly complied with, or the bond will be void. Barnard v. Viele, 21 Wend. (N. Y.) 88. The bond in suit, being highly penal, must be strictly construed.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: United States v. Mora


text: Talk:United States v. Mora

title: Talk:United States v. Mora