text:
Beecher v. Wetherby

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

This was replevin by Beecher to recover from Wetherby, James, and Stille, saw-logs, cut and taken by them during the winter of 1872 and 1873, from section 16, township 28, range 14 east, in Wisconsin. The plaintiff asserts title to the land under patents from the United States bearing date Oct. 10, 1872; and the defendants, under patents from that State of Dec. 15, 1865, and Sept. 26, 1870.

Under the eighth article of the treaty of Aug. 19, 1825, 7 Stat. 272, the Menomonee lands were declared to be 'bounded on the north by the Chippewa country, on the East by Green Bay and Lake Michigan, extending as far south as Milwaukee River, and on the West they claim to Black River.' The lands in question are embraced in this tract.

A treaty concluded with the Menomonees Feb. 8, 1831, id. 342, confirming those boundaries, was ratified by the Senate with a proviso that two townships on the east side of Winnebago Lake should be ceded for the use of the Stockbridge and Munsee Indians.

By a treaty concluded Oct. 18, 1848, and ratified Jan. 23, 1849, 9 id. 952, the Menomonees agreed to cede to the United States all their lands in Wisconsin. The eighth article stipulated that they should be permitted to remain on the ceded lands for the period of two years, and until the President should notify them that the same were wanted.

The act to enable the people of Wisconsin Territory to form a Constitution and State government, and for the admission of such State into the Union, approved Aug. 6, 1846, id. 56, provides 'that section numbered 16 in every township of the public lands in said State, and, when such section has been sold or otherwise disposed of, other lands equivalent thereto, and as contiguous as may be, shall be granted to said State for the use of schools.'

The convention called to form a constitution, on the first day of February, 1849, accepted the proposition contained in the organic act. Rev. Stat. Wis. 1849, p. 45. By an act entitled 'An Act for the admission of the State of Wisconsin into the Union,' approved May 29, 1848, id. 233, such acceptance was assented to by Congress.

A joint resolution of the legislature of Wisconsin, approved Feb. 1, 1853, Gen. Laws of Wis. 1853, p. 110, gives the assent of that State 'to the Menomonee nation of Indians to remain on the tract of land set apart for them by the President of the United States, on the Wolf and Oconto Rivers, and upon which they now reside, the same being within the State of Wisconsin aforesaid, and described as follows, to wit: Commencing at the south-east corner of town 28 north, range 19, running thence west thirty miles, thence north e ghteen miles, thence east thirty miles, thence south eighteen miles to the place of beginning.'

On the 12th of May, 1854, 10 Stat. 1064, a treaty was made with the Menomonees, 'supplementary and amendatory' to that ratified Jan. 23, 1849, wherein it is recited that, 'upon manifestation of great unwillingness on the part of said Indians to remove to the country west of the Mississippi River, &c., which had been assigned to them, and a desire to remain in the State of Wisconsin, the President consented to their locating temporarily upon the Wolf and Oconto Rivers;' and, 'to render practicable the stipulated payments therein recited, and to make exchange of the lands given west of the Mississippi for those desired by the tribe, and for the purpose of giving them the same for a permanent home, these articles are entered into.' By the second article of said treaty, the following-described tract lying on Wolf River in the State of Wisconsin was ceded to the Indians to be held as Indian lands are held: 'Commencing at the south-east corner of town 28 N., R. 16 E., 4th principal meridian, running west twenty-four miles, thence north eighteen miles, thence east twenty-four miles, thence south eighteen miles to the place of beginning, the same being townships 28, 29, and 30 of ranges 13, 14, 15, and 16, according to public survey.'

Under an act of Congress approved Feb. 6, 1871, 16 Stat. 404, entitled 'An Act for the relief of the Stockbridge and Munsee tribe of Indians in the State of Wisconsin,' the two townships set apart for their use, including the section upon which the logs were cut, and forming a part of the Menomonee lands, were sold by the United States, and the plaintiff deraigns title under its patents.

The exterior lines of the township in which the land in question is situate were run in October, 1852, and the section lines in May and June, 1854.

There was a judgment for the defendants. The plaintiff then brought the case here.

Mr. Charles W. Felker for the plaintiff in error.

The act was in the nature of an executory agreement, and by its terms no title to sections numbered 16 could vest in the State until they were surveyed and designated on the plats filed in the surveyor-general's office. The sectional or subdividing lines of the township in question were not run prior to the treaty of May 12, 1854. The proviso to the act implies a reserved power in the government to sell or dispose of sections 16 while they remained a part of the public domain, and that treaty did not reserve any section, but appropriated the entire tract as a reservation, and vested the title thereto in the Indians. Meade v. United States, 2 Ct. of Cl. 224; United States v. Brooks, 10 How. 442. The State took title to none but public land. Land like that in question, continuously and rightfully in the occupation of an Indian tribe under authority of the government, is not 'public' within the meaning of the grant. Mr. Justice Davis, in Newhall v. Sanger, 92 U.S. 761, justly remarked, that the words 'public lands' 'are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws.' The treaty ratified Jan. 23, 1849, allowed the Indians to remain upon the lands for two years, and until the President should give notice that they were wanted. His subsequent act setting them apart as a reservation was a specific appropriation of them. Not having then been surveyed, no right of the State to sections 16 within the reservation vested, and they have never since become 'public lands.' Wilcox v. Jackson, 13 Pet. 498; Cooper v. Roberts, 18 How. 173; ''Leavenworth, &c. Railroad Co. v. United States, 92 U.S. 733; Spaulding et al. v. Martin'', 11 Wis. 262.

The cession to the United States of two townships in the reservation does not affect the principle contended for: they were in fact ceded for a reservation for the Stockbridge and Munsee Indians, and did not become a part of the publ c lands. Neither is it material that they were, by the act of Feb. 6, 1871, directed to be sold for the benefit of those Indians. The relation of the United States to the property is the same. 16 Stat. 404; ''Leavenworth, &c. Railroad Co. v. United States, supra''.

Cooper v. Roberts, 18 How. 173, is not in conflict with these views. There the lands had not been legally appropriated by the government before the title of the State vested.

The position that the title did not vest in the State until the lands were surveyed and the townships subdivided is not affected by the fact that the subdivision was made in June, 1854, before the treaty of May 12 was ratified by the Senate Aug. 2 of that year. The rights of no innocent third parties intervening, the treaty took effect by relation from the day of its date. United States v. Arredondo, 6 Pet. 691.

It cannot be claimed that the defendants are innocent purchasers. The patents under which they claim were issued, the one over eleven, and the other over sixteen years, after that treaty was made, and they bought with knowledge of it.

If it should be held, however, that the survey was made before that treaty was concluded, the eighth article of the treaty of Oct. 18, 1848, and the acts of the President subsequent thereto, were a legal impediment to the vesting of any title in the State.

But if the State ever had any interest, contingent or otherwise, in section 16 in each township of this Indian reservation, such interest was waived by the resolution of the legislature of Feb. 1, 1853. An estoppel is available against the State. Bigelow, Estoppel, 276, 277, and cases cited.

Mr. W. P. Lynde and Mr. Charles Barber, contra.

The act of Congress of Aug. 6, 1846, did not constitute a present grant, but was in the nature of an executory agreement. Rutherford v. Greene's Heirs, 2 Wheat. 196; Cooper v. Roberts, 18 How. 173; Schulenberg v. Harriman, 21 Wall. 44; ''Leavenworth, &c. Railroad Co. v. United States, 92 U.S. 733; Sherman v. Buick'', 93 id. 209; Heydenfeldt v. Daney Gold and Silver Mining Co., id. 634; 8 Opin. Atty.-Gen. 260; Houghton v. Higgins, 25 Cal. 255.

At the time of the survey in October, 1852, and the subdivision in May and June, 1854, no legal impediment existed to the complete investiture of the title of the State. Heydenfeldt v. Daney Gold and Silver Mining Co., supra.

The fee to the land was in the United States, subject, in respect to a part, to the right of occupancy by the Menomonees when Congress passed the enabling act of 1846. It was the obvious intention that the grant should be executed from time to time, as that right was extinguished and the surveys designated the sections.

From the origin of the government it had been settled that the United States might make a valid grant of lands to which the Indian right had not been extinguished, and that such a grant passed the title subject to that right. Fletcher v. Peck, 6 Cranch, 87; Clark v. Smith, 13 Pet. 195; The Cherokee Nation v. Georgia, 5 Pet. 1; Johnson v. McIntosh, 8 Wheat. 543; 8 Opin. Atty-Gen. 262; Veeder et al. v. Guppy, 3 Wis. 502.

The argument of the plaintiff, that the joint resolution of 1853 operated as a grant of the sixteenth section, is based upon the assumed fact that the title was then in the State. Even if this were correct, the joint resolution is for the following, among other, reasons unconstitutional and void: First, because in Wisconsin such a resolution is simply an expression of opinion binding on no one, and without the force of law. Const. of Wis., art. 4, sect. 1; Cooley, Const. Lim. 130, 131. Second, because it does not contain the enacting clause required by the Constitution of the State, and is not a bill. Const. of Wis., art. 4, sect. 17; Rev. Stat. Wis. 1858, p. 30.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Beecher v. Wetherby


text: Talk:Beecher v. Wetherby

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

title: Talk:Beecher v. Wetherby


text:
Beecher v. Wetherby/Opinion of the Court

This was an action of replevin brought by the plaintiff to recover two million feet of pine saw-logs of the estimated value of $25,000, alleged to be his property, and to have been wrongfully detained from him by the defendants. The complaint was in the usual form in such cases, and the answer consisted of a general denial of its averments. The logs were cut by the defendants from the tract of land in Wisconsin which constitutes section sixteen (16), in township twenty-eight (28), range fourteen (14), in the county of Shawano, in that State. The plaintiff claimed to be the owner of the logs by virtue of sundry patents of the land from which they were cut, issued to him by the United States in October, 1872. The defendants asserted property in the logs under patents of the land issued to them by the State of Wisconsin in 1870. The question for determination, therefore, is, which of these two classes of patents, those of the United States or those of the State, transferred the title. The logs were cut in the winter of 1872 and 1873; they were, therefore, standing timber on the land when all the patents were issued, and as such constituted a portion of the realty. Although when severed from the soil the timber became personalty, the title to it remained unaffected. The owner of the land could equally, as before, claim its possession, and pursue it wherever it was carried.

The State asserted title to the land under the compact upon which she was admitted into the Union. The act of Congress of Aug. 6, 1846, authorizing the people of the Territory of Wisconsin to organize a State government, contained various propositions respecting grants of land to the new State, to be submitted for acceptance or rejection to the convention which was to assemble for the purpose of framing its constitution. Some of the proposed grants were to be for the use of schools, some for the establishment and support of a university, some for the erection of public buildings, and some were to be of lands containing salt springs. They were promised on condition that the convention should provide by a clause in the Constitution, or by an ordinance irrevocable without the consent of the United States, that the State would never interfere with the primary disposal of the soil within it by the United States, nor with any regulations Congress might find necessary for securing the title in such soil to bona fide purchasers; that no tax should be imposed on lands the property of the United States; and that in no case should non-resident proprietors be taxed higher than residents. And the act provided that if the propositions were accepted by the convention, and ratified by an article in the Constitution, they should be obligatory on the United States. The first of these propositions was 'that section numbered sixteen (16) in every township of the public lands in said State, and where such section has been sold or otherwise disposed of, other lands equivalent thereto, and as contiguous as may be, shall be granted to said State for the use of schools.'

The convention which subsequently assembled accepted the propositions, and ratified them by an article in the Constitution, embodying therein the provisions required by the act of Congress as a condition of the grants. With that Constitution the State was admitted into the Union in May, 1848. 9 Stat. 233. It was, therefore, an unalterable condition of the admission, obligatory upon the United States, that section sixteen (16) in every township of the public lands in the State, which had not been sold or otherwise disposed of, should be granted to the State for the use of schools. It matters not whether the words of the compact be considered as merely promissory on the part of the United States, and constituting only a pledge of a grant in future, or as operating to transfer the title to the State upon her acceptance of the propositions as soon as the sections could be afterwards identified by the public surveys. In either case, the lands which might be embraced within those sections were app opriated to the State. They were withdrawn from any other disposition, and set apart from the public domain, so that no subsequent law authorizing a sale of it could be construed to embrace them, although they were not specially excepted. All that afterwards remained for the United States to do with respect to them, and all that could be legally done under the compact, was to identify the sections by appropriate surveys; or, if any further assurance of title was required, to provide for the execution of proper instruments to transfer the naked fee, or to adopt such further legislation as would accomplish that result. They could not be diverted from their appropriation to the State.

In Cooper v. Roberts, 18 How. 173, this court gave construction to a similar clause in the compact upon which the State of Michigan was admitted into the Union, and held, after full consideration, that by it the State acquired such an interest in every section 16 that her title became perfect so soon as the section in any township was designated by the survey. 'We agree,' said the court, 'that, until the survey of the township and the designation of the specific section, the right of the State rests in compact,-binding, it is true, the public faith, and dependent for execution upon the political authorities. Courts of justice have no authority to mark out and define the land which shall be subject to the grant. But, when the political authorities have performed this duty, the compact has an object upon which it can attach, and, if there is no legal impediment, the title of the State becomes a legal title. The jus ad rem, by the performance of that executive act, becomes a jus in re, judicial in its nature, and under the cognizance and protection of the judicial authorities, as well as the others.' In this case, the township embracing the land in question was surveyed in October, 1852, and was subdivided into sections in May and June, 1854. With this identification of the section the title of the State, upon the authority cited, became complete, unless there had been a sale or other disposition of the property by the United States previous to the compact with the State. No subsequent sale or other disposition, as already stated, could defeat the appropriation. The plaintiff contends that there had been a prior reservation of the land to the use of the Menomonee tribe of Indians.

It is true that, for many years before Wisconsin became a State, that tribe occupied various portions of her territory, and roamed over nearly the whole of it. In 1825, the United States undertook to settle by treaty the boundaries of lands claimed by different tribes of Indians, as between themselves, and agreed to recognize the boundaries thus established, the tribes acknowledging the general controlling power of the United States, and disclaiming all dependence upon and connection with any other power. The land thus recognized as belonging to the Menomonee tribe embraced the section in controversy in this case. Subsequently, in 1831, the same boundaries were again recognized. But the right which the Indians held was only that of occupancy. The fee was in the United States, subject to that right, and could be transferred by them whenever they chose. The grantee, it is true, would take only the naked fee, and could not disturb the occupancy of the Indians: that occupancy could only be interfered with or determined by the United States. It is to be presumed that in this matter the United States would be governed by such considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race. Be that as it may, the propriety or justice of their action towards the Indians with respect to their lands is a question of governmental policy, and is not a matter open to discussion in a controversy between third parties, neither of whom derives title from the Indians. The right of the United States to dispose of the fee of lands occupied by them has always been recognized by this court from the fou dation of the government. It was so ruled in Johnson v. McIntosh, 8 Wheat. 543, in 1823; and in United States v. Cook, 19 Wall. 591, in 1873. Other cases between those periods have affirmed the same doctrine. Clark v. Smith, 13 Pet. 195. See also Jackson v. Hudson, 3 Johns. (N. Y.) 375; Veeder et al. v. Guppy, 3 Wis. 502; and 8 Opin. Atty.-Gen., pp. 262-264. In United States v. Cook, the United States maintained replevin for timber cut and sold by Indians on land reserved to them, the court observing that the fee was in the United States, and only a right of occupancy in the Indians; that this was the title by which other Indians held their land, and that the authority of Johnson v. McIntosh on this point had never been doubted. But, added the court, 'the right of the Indians to their occupancy is as sacred as that of the United States to the fee, but it is only a right of occupancy. The possession, when abandoned by the Indians, attaches itself to the fee without further grant.'

In the construction of grants supposed to embrace lands in the occupation of Indians, questions have arisen whether Congress intended to transfer the fee, or otherwise; but the power of the United States to make such transfer has in no instance been denied. In the present case, there can hardly be a doubt that Congress intended to vest in the State the fee to section 16 in every township, subject, it is true, as in all other cases of grants of public lands, to the existing occupancy of the Indians so long as that occupancy should continue. The greater part of the State was, at the date of the compact, occupied by different tribes, and the grant of sections in other portions would have been comparatively of little value. Congress undoubtedly expected that at no distant day the State would be settled by white people, and the semi-barbarous condition of the Indian tribes would give place to the higher civilization of our race; and it contemplated by its benefactions to carry out in that State, as in other States, 'its ancient and honored policy' of devoting the central section in every township for the education of the people. Accordingly, soon after the admission of the State into the Union, means were taken for the extinguishment of the Indian title. In less than eight months afterwards the principal tribe, the Menomonees, by treaty, ceded to the United States all their lands in Wisconsin, though permitted to remain on them for the period of two years, and until the President should give notice that they were wanted. 9 Stat. 952.

It is true that subsequently, the Indians being unwilling to leave the State, the President permitted their temporary occupation of lands upon Wolf and Oconto Rivers, and in 1853 the State gave its assent to the occupation; and in May, 1854, the United States, by treaty, ceded to them certain lands for a permanent home, the treaty taking effect upon its ratification in August of that year; and afterwards a portion of these lands was, by another treaty, ceded to the Stockbridge and Munsee tribes. But when the logs in suit were cut, those tribes had removed from the land in controversy, and other sections had been set apart of their occupation.

The act of Congress of Feb. 6, 1871, authorizing a sale of the townships occupied by the Stockbridge and Munsee tribes, must, therefore, be held to apply only to those portions which were outside of sections 16. It will not be supposed that Congress intended to authorize a sale of land which it had previously disposed of. The appropriation of the sections to the State, as already stated, set them apart from the mass of public property which could be subjected to sale by its direction.

It follows that the plaintiff acquired no title by his patents to the land in question, and, of course, no property in the timber cut from it.

Judgment affirmed.


text: Talk:Beecher v. Wetherby/Opinion of the Court


text:
United States v. The Grace Lothrop

APPEAL from the Circuit Court of he United States for the District of Massachusetts.

This is an information against the brig 'Grace Lothrop' for a violation of the act of June 7, 1872, 17 Stat. (262), as amended by the act of Jan. 15, 1873, id. 410.

The grounds of the information are, that on the 18th of December, 1873, at Boston, one Atwood, while master of that vessel, did knowingly receive and accept, to be entered on board, five seamen who had been theretofore engaged for a voyage from Boston to a port in the West Indies, by agreements in writing that had not been signed in the presence of a shipping commissioner, &c.

The answer of Atwood, the claimant, admits the facts as alleged, but denies that engagements for voyages to the West Indies are within the statutes referred to.

The court having dismissed the information, the United States appealed here.

The Solicitor-General for the appellant.

Mr. Seth J. Thomas, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: United States v. The Grace Lothrop


text: Talk:United States v. The Grace Lothrop

title: Talk:United States v. The Grace Lothrop


text:
United States v. The Grace Lothrop/Opinion of the Court

Persons other than a shipping commissioner are in certain cases forbidden to perform or attempt to perform the duties usually required of such an officer, as prescribed by the acts of Congress.

Atwood, the respondent, as the information charges, was the master of the brig 'Grace Lothrop;' that he, on the 18th of December, 1873, as such master, did knowingly receive and accept to be shipped on board of the brig five seamen engaged and supplied for the purpose contrary to the act authorizing the appointment of shipping commissioners to superintend the shipping and discharge of seamen, and that the seamen were so engaged and accepted by an agreement in writing not signed by them in the presence of a shipping commissioner.

Due monition was issued and served by seizing the vessel, and the master appeared an filed an answer. Among other things, he admitted that the brig when arrested was bound on a voyage to a port in the West Indies, that he shipped the five seamen for that voyage, and that the shipping agreement was not signed by the seamen in the presence of such a commissioner; but he denies that he has incurred any penalty by shipping the seamen named in the libel without the presence of such an officer. Hearing was had in the Circuit Court where the libel was filed, and the decree of the Circuit Court was in favor of the respondent, dismissing the libel, and from that decree the United States appealed to this court.

Errors assigned are as follows: 1. That the court erred in holding that the act of Congress providing for the appointment of such commissioners does not require that the agreement to be signed by seamen in voyages between the ports of the United States and the West Indies shall be signed in the presence of a shipping commissioner. 2. That the court erred in holding that the information is defective in not negativing the suggestion that the master of the brig himself acted as shipping commissioner. 3. That the court erred in dismissing the information.

Before proceeding to examine the errors assigned, it should be observed that the appellants contend that the wrongful act charged, if punishable at all, is punishable under the Revised Statutes, which, as they insist, went into operation eighteen days before the alleged wrongful act was perpetrated. Rev. Stat., sect. 5601.

Masters of every vessel bound from a port in the United States to any foreign port, other than such as are therein excepted, are required by those statutes, before they proceed on such a voyage, to make an agreement in writing or in print with every seaman whom they carry to sea as one of the crew, in the manner the act prescribes, which shall be as near as practicable in the form therein directed, to be dated at the time of the first signature, and to be signed by the master before any seaman signs the instrument.

Vessels excepted from those requirements are all such as are engaged in trade between the United States and the British North American possessions or the West India Islands or the Republi of Mexico; nor do those requirements apply to masters of vessels where the seamen are by custom or agreement entitled to participate in the profits or result of a cruise or voyage, nor to masters of coastwise or of lake-going vessels that touch at foreign ports, but they do apply without qualification to vessels of seventy-five tons burden or upward bound from a port on the Atlantic to a port on the Pacific, or vice versa; the vessels bound on such voyages being subject in that regard to the same rules as those bound on a voyage from a domestic port to a foreign port. Rev. Stat., sect. 4511.

Detailed specification of the stipulations and regulations which such an agreement shall contain are also set forth in the same section: and the succeeding section provides to the effect that every such agreement, except where it is otherwise provided, shall be signed by each seaman in the presence of a shipping commissioner; that when the crew is first engaged the agreement shall be signed in duplicate, and that one part shall be retained by the commissioner, and that the other part shall contain a special place or form for the description and signatures of persons engaged subsequently to the departure of the ship, and that it shall be delivered to the master; and that every such agreement so made shall be acknowledged, and certified under the hand and seal of the commissioner, and that the certificate shall be appended to the agreement in the form therein prescribed.

Argument to show that vessels engaged in trade between the United States and the West India Islands are not subject to the regulations enacted with respect to vessels employed in foreign commerce not falling within the exceptions contained in the section, is quite unnecessary, as it is as clear as language can make it that vessels engaged in trade between the United States and the British North American possessions and the West India Islands and the Republic of Mexico are excepted from the operation of the clause made applicable to vessels bound from a port of the United States to any foreign port, by the words 'other than;' which clearly and to a demonstration exclude the voyages subsequently described from the category of those previously mentioned in the preceding part of the section.

Concede that the Revised Statutes do support that theory, still it may be suggested that, inasmuch as the case was adjudged in the court below as if it was controlled by the previous acts of Congress, it ought to be determined here in view of the same statutory provisions. Suppose that it is so, still it is certain that it will not benefit the libellants, as it is obvious that the antecedent legislation of Congress, when properly understood, must lead to the same conclusion.

Power to appoint shipping commissioners was conferred by the act of the 7th of June, 1872; and the act provides that the general business of such a commissioner shall be as follows: 1. To afford facilities for engaging seamen, by keeping a register of their names and characters. 2. To superintend their engagement and discharge in the manner prescribed. 3. To provide means for securing the presence of the men so engaged on board at the proper times. 4. To facilitate the making apprenticeships to the sea service, and to perform such other duties relating to merchant seamen and ships as the powers conferred by the act require. 17 Stat. 262.

Where no such appointment has been made, the whole or any part of such business may be conducted by the collector or deputy-collector of such place or port.

Appended to that section is a proviso that nothing in the act shall be so construed as to prevent the owner or consignee or master of any vessel, except such as are described in sect. 12 of that act, from performing himself, so far as the ship is concerned, the duties of shipping commissioner under the act. Id. 263.

Sect. 12 of the same act provides that the master of every ship bound from a port in the United States to any foreign port, or of any ship of the burden of § venty-five tons or upward bound from a port on the Atlantic to a port on the Pacific, or vice versa, shall, before he proceeds on such voyage, make an agreement in writing or in print with every seaman whom he carries to sea as one of the crew, in the manner particularly set forth in the act, which shall be dated at the time of the first signature thereof, and shall be signed by the master before any seaman signs the same.

Agreements of the kind, subject to certain exceptions not necessary to be noticed, must be signed by each seaman in the presence of a shipping commissioner; and, when the crew is first engaged, the agreement must be signed in duplicate, one part being retained by the commissioner, and the other part to contain a place or form for the description and signature of persons engaged subsequently to the departure of the ship.

Annexed to sect. 12 is a proviso equivalent to what is enacted in the Revised Statutes, that the section shall not apply to masters of vessels when the seamen are, by custom or agreement, entitled to participate in the profits or results of a cruise or voyage, nor to masters of coastwise vessels or of lakegoing vessels that touch at foreign ports.

Congress, on the 15th of January, 1873, added another proviso to sect. 12 of the original act, to the effect that the section shall not apply to masters of vessels when engaged in trade between the United States and the British North American possessions or the West India Islands or the Republic of Mexico. Id. 410.

Explicit as that provision is, it may well be contended that it applies only to the twelfth section of the original act; but Congress, in the month of June, 1874, passed another amendatory act, by which it is provided that none of the provisions of the original act shall apply to sail or steam vessels engaged in the coastwise trade, except the coastwise trade between the Atlantic and Pacific coasts, or in the lake-going trade touching at foreign ports or otherwise, or in the trade between the United States and the British North American possessions, or in any case where the seamen are by custom or agreement entitled to participate in the profits or result of a cruise or voyage. 18 id. 64.

Though the act last referred to is subsequent in date to the supposed wrongful acts of the respondent, as alleged in the libel, yet the language of the act is in terms an explicit declaration that Congress never intended that the original act should apply to vessels engaged in any part of the coasting trade, except that between the Atlantic and Pacific coasts. Nor is it necessary to refer to that act to support that decree below in this case, as the prior act expressly provides that sect. 12 of the original act shall not apply to masters of vessels when engaged in trade between the United States and the British North American possessions or the West India Islands or the Republic of Mexico, which affords a demonstration that the decree below, whether tested by the provisions of the Revised Statutes or by the previous legislation of Congress, is correct.

Masters of vessels bound from the port of a State to a port in any other than an adjoining State were required by an early act of Congress, before the vessel proceeded on her voyage, to make an agreement in writing or print with every seaman of the crew, declaring the voyage and the term of time for which such seaman was shipped. 1 id. 131. Attempt is now made to support the theory of the libel, by invoking the provisions of that act, and blending the same with the provisions of the act creating the shipping commissioners; but the attempt cannot be successful in the case before the court, as the amendment to the last-mentioned act provides that the twelfth section of the prior act shall not apply to the masters of vessels when engaged in trade between the United States and the West India Islands.

Beyond all doubt, that amendment and the twelfth section of the original act must be read together in disposing of the present case, as the ame ded act was passed before the supposed wrongful act of the respondent was committed. When those two provisions are read together, it is an easy matter to specify the cases in which shipping commissioners must act, or in which the agreement of the seaman is required to be signed in the presence of such a commissioner. They are as follows: 1. Where the ship is bound from a port in the United States to a foreign port, not including the ports of the British provinces or the ports of the West India Islands or the Republic of Mexico, or lake-going vessels touching at foreign ports. 2. Ships of seventy-five tons burden or upward bound from a port on the Atlantic to a port on the Pacific, or vice versa.

Provision was made by the second proviso in sect. 12 of the original act that that section should not apply to masters of vessels where the seamen are by custom or agreement entitled to participate in the profits or result of a cruise or voyage, nor to masters of coastwise voyages or masters of lakegoing vessels which, as before explained, touch at foreign ports. Three other exceptions to the operation of the twelfth section of the original act were added to the preceding list by the amendatory act, which provides that the twelfth section of the act shall not apply to masters of vessels when engaged in trade between the United States and the British North American possessions or the West India Islands or the Republic of Mexico.

Duties are assigned to shipping commissioners which all other persons are forbidden to perform, under the penalty therein prescribed; but the same section provides that nothing in the act shall be so construed as to prevent the owner or consignee or master of any ship, except such as are described in 534 sect. 12 of the act, from performing himself, so far as the ship is concerned, the duties of shipping commissioner under the act.

Tested by these considerations, it follows that the provision requiring the agreements of seamen to be signed in the presence of a shipping commissioner refers only to the agreements described in sect. 12 of the original act; nor does it include those which are excepted from the operation of sect. 12 by the second proviso to the same section, nor either of the three cases excepted out of the operation of the same section by the amendatory act subsequently adopted.

Penalties are imposed for shipping seamen contrary to the regulations which the original act prescribes; but it is clear that the clause imposing the penalty does not refer to seamen who have agreed to make a voyage other than one of the two classes within the operation of sect. 12, as modified by the amendatory act subsequently adopted. 17 id. 410.

Where the voyage to be made does not fall within the operation of sect. 12 as amended by the subsequent act, the owner or consignee or master of the ship may himself perform, so far as the ship is concerned, the duties of shipping commissioner which the act prescribes, as the same is expressly authorized by the proviso to the eighth section of the act.

Shipping articles, called agreements in the original act under consideration, are to be made in writing or in print with every seaman shipped for the voyage before the ship proceeds from the port of shipment; and if the voyage is a foreign one in the sense already explained, or one from a port of the Atlantic to a port of the Pacific, or from a port of the Pacific to a port of the Atlantic, in a vessel of the burden of seventy-five tons or upward, the agreement must be signed in presence of a shipping commissioner, unless it appears that the shipment was made in a port or place in which no shipping commissioner has been appointed, in which event the whole or any part of the business of such a commissioner may be conducted by the collector of the customs or his deputy at the port or place of shipment.

Such agreements with each and every seaman must be made before the ship or vessel proceeds for the port of destination in all the other voyages mentioned in the act which are not excep ed out of the operation of the twelfth section. Conclusive support to that proposition is found in the first clause of the fourteenth section of the original act, which provides that if any person shall be carried to sea as one of the crew on board of any ship making a voyage hereinbefore specified, without entering into an agreement with the master of said ship in the form and manner and at the place and times hereby in such cases required, the ship shall be held liable, and shall incur the penalty therein provided. Where it is not required that such agreements shall be signed in the presence of a shipping commissioner, or that the business of such a commissioner shall be conducted by the collector of the customs or his deputy, the owner or consignee or master of the ship, so far as the ship is concerned, may himself perform the duties of shipping commissioner under the act, by virtue of the provisos contained in the eighth and twelfth sections of the original act.

Ships may be liable to the penalty prescribed by the fourteenth section of the act in case a seaman is carried to sea as one of the crew on board, though making a voyage excepted out of the operation of sect. 12, if it appears that the ship proceeded on such voyage before the master made the required agreement with the seamen in writing or in print, provided the charge in the information covers such a delinquency; but the sole charge in the libel in this case is, that the agreement was not signed by the seamen in the presence of a shipping commissioner. It contains no allegation that the agreement was not in due form, nor that it was not signed in presence of the owner or consignee, or of the master of the ship.

Enough has already been remarked to show that the voyage was one excepted out of the operation of the twelfth section of the act, and that it was one where the owner or consignee, or the master of the ship himself, might lawfully perform the duties of shipping commissioner. Nothing being alleged to the contrary, it must be presumed that the required agreement was made in due form, and that it was properly signed by the seamen in the presence of some one of the three persons authorized by the act to perform that duty, before the ship proceeded on the described voyage.

Examined in the light of these suggestions, it is clear that the decree dismissing the libel is correct. Different conclusions, we are aware, have been reached by other judges; but it must suffice to say, that we are not able to concur in the reasons given in support of those decisions.

Decree affirmed.


text: Talk:United States v. The Grace Lothrop/Opinion of the Court


text:
United States v. Smith (95 U.S. 536)

CERTIFICATE of division in opinion between the judges of the Circuit Court of the United States for the District of Massachusetts.

This is an information under the act of June 7, 1872, 17 Stat. 262, against the defendant Smith, for that he, not being a shipping commissioner, did ship and engage one John Riley as a seaman, to go on board a certain American vessel called the 'Proteus,' and make a voyage from Boston, in Massachusetts, to Philadelphia, in Pennsylvania, said Smith not then and there being the owner, consignee, or master of said vessel.

The defendant demurred; and the judges were opposed in opinion on the following question: Whether said act applies to the shipping of seamen upon vessels engaged only in and for voyages coastwise between Atlantic ports of the United States, as was the vessel described in the information.

The Solicitor-General for the United States.

No opposing counsel.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: United States v. Smith (95 U.S. 536)


text: Talk:United States v. Smith (95 U.S. 536)


text:
United States v. Smith (95 U.S. 536)/Opinion of the Court

Shipping commissioners are vested with certain powers and are charged with the performance of certain duties in engaging seamen for the merchant service; and the act of Congress providing for their appointment forbids other persons, in certain cases, from performing the duties with which such commissioners are charged by the provisions of that act.

Penalties are enacted for the violation of such prohibitions; and the information in this case charges that the defendant, on the 5th of September, 1872, not being a shipping commissioner, at Boston, in the district of Massachusetts, did then and there ship and engage one John Riley as a seaman, to go on board a certain vessel, and make a voyage from Boston to Philadelphia, the defendant not being then and there the owner, consignee, or master of the vessel, contrary to the statute in such case made and provided.

Service was made; and the defendant appeared and demurred to the information, and assigned for cause that the libel does not set forth any acts to impeach him touching or concerning the matters whereof he is accused. Joinder in due form was filed by the district attorney, and the parties were duly heard.

By the record it appears that the question, whether the act providing for the appointment of shipping commissioners applies to the shipping of seamen upon vessels engaged only in and for voyages coastwise between the Atlantic ports, was raised and argued by counsel, and that the judges being opposed in opinion, the question in difference, together with the pleadings in the case, was certified to this court pursuant to the act of Congress.

Discussion of the question whether a vessel engaged in a coastwise voyage from one Atlantic port to another on our coast falls within the operation of the body of sect. 12 of the act providing for the appointment of shipping commissioners is wholly unnecessary, as the court has just affirmed the negative of that proposition, and now refers to the reasons given in the prior case in support of the decree in that case. Such voyages are not mentioned in the body of the twelfth section; and they are expressly excluded from the operation of that part of the section by the second proviso annexed to the same, which provides in effect that the same shall not apply to coastwise voyages not to voyages of lake-going vessels that touch at foreign ports. 17 Stat. 262.

Seamen, however, for such a voyage must be regularly shipped; and the master, before he proceeds on the voyage, must make with each seaman whom he carries to sea as one of the crew an agreement in writing or in print, in the manner and form required by that act. Voyages of the kind not being within the operation of the body of sect. 12, the agreement is not required to be signed in the presence of such a commissioner. Instead of that, the owner or consignee or the master of the ship, so far as the ship is concerned, may himself in such a case perform the duties of such a commissioner; but third persons possess no such authority in any case.

Suppose that is so, still it is not charged in the information, nor does it appear in any other way, that the defendant attempted to perform any such duty. It is said that he engaged the seamen; but it is not alleged that he attempted to perform any act which a commissioner is required to perform in cases falling within the operation of the body of sect. 12 of the act prescribing the duties of such a commissioner, nor that he attempted to perform any duty which the proviso to the eighth section allows to be performed in such a case by the owner or consignee or by the master of the ship, where the voyage is one excepted out of the operation of the body of sect. 12 in the same act. All that is charged against the defendant is that he engaged the seamen, which is an act that any one may lawfully perform, provided the seaman is subsequently lawfully shipped in the manner and form required in the act providing for the appointment of shipping commissioners. Nothing being alleged to the contrary, it must be presumed that the required agreement was duly executed if the seamen went to sea at all, which is not alleged in the libel of information.

Tested by these considerations, it is clear that no legal offence is properly charged against the defendant, from which it follows that it must be certified to the court below that the act in question does not apply to coast ise voyages from one port to another on our Atlantic coast.


text: Talk:United States v. Smith (95 U.S. 536)/Opinion of the Court


text:
Clark v. United States (95 U.S. 539)

APPEAL from the Court of Claims.

This is a claim against the United States for the value of a steamer lost in the government service in September, 1865, and for her use for eight days before the loss occurred, at $150 per day.

The Court of Claims found the following facts:--

1. In September, 1865, at Brownsville, Texas, the claimant and Major O. O. Potter, an officer in the Quartermaster's Department, entered into an oral agreement, with the approval of General Steele, commanding the western division of Texas. The agreement was that the Quartermaster's Department should pay the claimant $150 a day for the use of the steamer 'Belle;' but no specific contract was made, or to be made, as to time, until she had made a trial trip from Brownsville to Ringgold Barracks and return, to prove her ability to perform the service for which the Quartermaster's Department needed a steamer; and, if she made a satisfactory trial trip, the parties were then to enter into a formal written contract for her future use at the same price per day. It was also at the same time agreed orally that the Quartermaster's Department was to run the steamer on her trial trip at the expense of the government, and that if she were lost on her trial trip the government should pay for her whatever three disinterested men should estimate her value to be.

2. Under this agreement the claimant delivered the steamer to the Quartermaster's Department, at Brownsville. The quartermaster then put his own captain and crew on the vessel, and sent her to Ringgold Barracks. On her voyage, while thus in the service of the government, she was wrecked, and proved a total loss. Three disinterested persons were then agreed upon and requested by Major Potter and the claimant to appraise the value of the vessel. They so acted, and, by a written award, found the vessel to be of the value of $60,000. The claimant has also proved by evidence other than the award that $60,000 was the reasonable value of the vessel. The steamer was in the service of the government before her loss eight days. The United States has not paid for the value of the vessel nor for her service.

3. The steamer 'Belle' was previously owned by, and in the military possession of, the Confederate government. The claimant acquired his title to her about the year 1863, taking her in part payment of a claim he held for supplies furnished by him to the Confederate Quartermaster's Department. At the time she was chartered by Major Potter, as set forth in the first finding, she was in the claimant's possession as alleged owner, and she was also in Mexican waters, beyond the jurisdiction of the United States.

Upon these facts the claim was dismissed.

The claimant then brought the case here.

Mr. Enoch Totten for the appellant.

The Solicitor-General, contra.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Clark v. United States (95 U.S. 539)


text: Talk:Clark v. United States (95 U.S. 539)


text:
Clark v. United States (95 U.S. 539)/Opinion of the Court

The first objection made to the claim is, that the contract was not in writing, as required by the act of June 2, 1862, entitled 'An Act to prevent and punish fraud on the part of officers intrusted with the making of contracts for the government.' 12 Stat. 411. This act provides:--

'SECT. 1. That it shall be the duty of the Secretary of War, of the Secretary of the Navy, and of the Secretary of the Interior, immediately after the passage of this act, to cause and require every contract made by them severally on behalf of the government, or by their officers under them appointed to make such contracts, to be reduced to writing, and signed by the contracting parties with their names at the end thereof, a copy of which shall be filed by the officer making and signing the said contract in the 'returns office' of the Department of the Interior (hereinafter established for that purpose), as soon after the contract is made as possible, and within thirty days, together with all bids, offers, and proposals to him made by persons to obtain the same, as also a copy of any advertisement he may have published inviting bids, offers, or proposals for the same; all the said copies and papers in relation to each contract to be attached together by a ribbon and seal, and numbered in regular order numerically, according to the number of papers composing the whole return.'

The act further provides that the officer shall affix an affidavit to his return, and makes it a misdemeanor to neglect making his return, and directs the heads of departments to furnish printed instructions and forms of contracts, &c.

It is contended on the part of the government that this act is mandatory and binding both on the officers making contracts and on the parties contracting with them; whilst the claimant insists that it is merely directory to the officers of the government, and cannot affect the validity of contracts actually made, though not in writing. The Court of Claims has heretofore held the act to be mandatory, and as requiring all contracts made with the departments named to be in conformity with it. The arguments by which this view has been enforced by that court are of great weight, and, in our judgment, conclusive. The facility with which the government may be pillaged by the presentment of claims of the most extraordinary character, if allowed to be sustained by parol evidence, which can always be produced to any required extent, renders it highly desirable that all contracts which are made the basis of demands against the government should be in writing. Perhaps the primary object of the statute was to impose a restraint upon the officers themselves, and prevent them from making reckless engagements for the government; but the considerations referred to make it manifest that there is no class of cases in which a statute for preventing frauds and perjuries is more needed than in this. And we think that the statute in question was intended to operate as such. It makes it unlawful for contracting officers to make contracts in any other way than by writing signed by the parties. This is equivalent to prohibiting any other mode of making contracts. Every man is supposed to know the law. A party who makes a contract with an officer without having it reduced to writing is knowingly accessory to a violation of duty on his part. Such a party aids in the violation of the law. We are of opinion, therefore, that the contract itself is affected, and must conform to the requirements of the statute until it passes from the observation and control of the party who enters into it. After that, if the officer fails to follow the further directions of the act with regard to affixing his affidavit and returning a copy of the contract to the proper office, the party is not responsible for this neglect.

We do not mean to say that, where a parol contract has been wholly or partially executed and performed on one side, the party performing will not be entitled to recover the fair value of his property or services. On the contrary, we think that he will be entitled to recover such value as upon an implied contract for a quantum meruit. In the present case, the implied contract is such as arises upon a simple bailment for hire; and the obligations of the parties are those which are incidental to such a bailment. The special contract being void, the claimant is thrown back upon the rights which result from the implied contract. This will cast the loss of the vessel upon him. A bailee for hire is only responsible for ordinary diligence and liable for ordinary negligence in the care of the property bailed. This is not only the common law, but the general law, on the subject. See Jones, Bailm., p. 88; Story, Bailm., sects. 398, 399; Domat, Lois Civiles, lib. 1, tit. 4, sect. 3, pars. 3, 4; 1 Bell, Com., pp. 481, 483, 7th ed.

As negligence is not attibuted to the employees of the government in this case, the loss of the vessel, as before stated, must fall on the owner.

Of course, the claimant is entitled to the value of the use of his vessel during the time it was in the hands of the government agents, which, as shown by the findings, was the period of eight days. This value, in the absence of any other evidence on the subject, may be fairly assumed at what was stipulated for in the parol contract. Though not binding or conclusive, it may be regarded as admissible evidence for that purpose. Neither party thought fit to adduce any other. The cases bearing on this subject are collected in Browne's Treatise on the Statute of Frauds, sects. 117-130; but they mostly refer to the question whether the contract, though void by the Statute of Frauds, can be regarded as conclusive evidence of the quantum meruit. Whether or not it is admissible as some evidence, though not conclusive on either party, is apparently not much discussed; though it seems to us that it may fairly be deduced from the tenor of the cases that the evidence is admissible. At all events, that is our view. As a declaration of the parties, it is entitled to some credence.

The stipulation in this case, as appears by the findings, was for $150 per day. This would make the amount of the claim $1,200. For this amount the claimant is entitled to a decree.

If objected that the petition contains no count upon an implied contract for quantum meruit, it may be answered, that the forms of pleading in the Court of Claims are not of so strict a character as to preclude the claimant from recovering what is justly due to him upon the facts stated in his petition, although due in a different aspect from that in which his demand is conceived.

The other objection relied on by the government in this case is, that the claimant had no valid title to the steamer as against the United States, having obtained her from the Confederate government, in 1863, in payment for supplies furnished to the Quartermaster's Department of that government. This objection cannot be sustained. When the contract was made with the claimant, the vessel was in Mexican waters, and not subject to the jurisdiction of the United States. The claimant was applied to for its use. It was agreed that he should be compensated. No question was made about his title, and it is not suggested that he was guilty of any concealment or suppression of the truth in regard to it. Under these circumstances, it would be bad faith on the part of the government, after getting possession of the steamer and getting it within its jurisdiction, under pretence of hiring it of the claimant, to set up that he had no title to it. This is so obviously in accordance with the justice of the case, that we deem it unnecessary to make any further observations on the subject.

The decree of the Court of Claims must be reversed, and the cause remanded with directions to enter a judgment in accordance with this opinion; and it is

So ordered.

MR. JUSTICE MILLER, with whom concurred MR. JUSTICE FIELD and MR. JUSTICE HUNT, dissenting.


text: Talk:Clark v. United States (95 U.S. 539)/Opinion of the Court


text:
Clark v. United States (95 U.S. 539)/Dissent Miller

MR. JUSTICE MILLER, with whom concurred MR. JUSTICE FIELD and MR. JUSTICE HUNT, dissenting.

While I agree to the reversal of the judgment in this case, and to so much of the opinion as gives compensation for the use of the vessel before she was destroyed, I cannot agree to the more important part of the opinion, which holds the contract void because it was not reduced to writing.

The act of June 2, 1862, which is interpreted by the court to be a statute of frauds, making all contracts of the Departments of War, Navy, and Interior void which are not reduced to writing and signed by the parties, is not, in my judgment, properly construed.

It cannot be doubted that it was conpetent for Congress to impose upon the officers of these departments the duty of having all their contracts made in writing and filed in the proper office, without making absolutely void a parol contract made on a fair consideration and within the scope of their authority. In other words, Congress had a right to give such directions to those officers as would secure a statement in writing of the contract itself, for the use of the proper officers of the government, without making it obligatory on the individual contracting with the government, so that his contract, otherwise valid, would be void for want of that formality.

Looking at sect. 1 of the statute, as it is cited in the opinion of the court, it will be found wanting in the essential words of all known statutes of fraud.

There is no declaration that a parol contract shall be void, or that it shall not be enforced, or that no suit may be sustained on it.

There is no language in it addressed to the party contracting with the government. It is obvious that the primary purpose of the statute-in my judgment, the only one-is to secure authentic and perfect statements of such contracts, and of the proposals, advertisements, bids, and all the papers relating to them, to be filed in an office at Washington, where they can be inspected by any one having an interest, and especially by those superior officers whose approval or rejection may affect their validity. The statute seems in terms to apply to contracts in existence when it was passed as well as to those to be made in future. Returns of all contracts are to be made and filed in the office created for that purpose, within thirty days, together with bids, advertisements, &c.

The second section requires the officer making these returns to verify them by affidavit; and the object of this undoubtedly was to have evidence on which the government could rely, of the precise nature of the contract, and of the circumstances under which it was made.

The third section imposes a penalty on the officer for failing to make returns to the proper office, as required by the statute, by a fine; but no penalty for making a contract not in writing and signed by the parties.

In short, I cannot conceive, looking to the whole statute, that Congress intended any thing more than to regulate the conduct of its own officers, in compelling them to furnish all the evidence in their power of the contract and the circumstances attending its negotiation; and it seems to me to be going a long way to hold that it was the purpose to establish an entirely new rule as to the validity of contracts, at variance with any law heretofore known in this country, or, perhaps, any other.

If that was the purpose, it is hard to see why contracts in the three departments mentioned are selected for the operation of the rule, while the far more numerous and equally important contracts of the Post Office, the Attorney-General's Office, the Treasury and the State Departments are left to be controlled by the law as it stood before.

If there is any branch of the public service where contracts must often be made speedily, and without time to reduce the contract to writing, it is in that of the army. Sudden occasions for supplies, for the occupation of buildings, for the transportation of food and munitions of war, are constantly arising, and in many of them it is impossible to do more than demand what is wanted, and agree to pay what it is worth. Did Congress intend to say that the patriotic citizen, who said 'take of mine what is necessary,' is to lose his property for want of a written contract, or be remitted to the delays of an act of Congress?

It seems to me that if Congress had been intending to enact a statute of frauds, they would have made some limitation of its operation to cases of future delivery of property or future performance of service, and would not have passed a statute like this, which, if its effect is such as the court declares, renders void all contracts for compensation for the thousand small services and supplies which are daily needed by those in the employment of the government for its use.

I think the construction given by the court unwarranted and unfortunate, and of sufficient importance to record my dissent from it.


text: Talk:Clark v. United States (95 U.S. 539)/Dissent Miller


text:
Insurance Companies v. Thompson

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

The facts are stated in the opinion of the court.

Mr. Charles W. Jones and Mr. J. Hubley Ashton for the plaintiffs in error.

Mr. G. C. Wharton, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Insurance Companies v. Thompson


text: Talk:Insurance Companies v. Thompson

title: Talk:Insurance Companies v. Thompson


text:
Insurance Companies v. Thompson/Opinion of the Court

The defendants in error recovered in the Circuit Court of the United States for the District of Kentucky a joint judgment for $3,317.58 on a policy of insurance issued by The Germania Fire Insurance Company, The Hanover Fire Insurance Company, The Niagara Fire Insurance Company, and The Republic Fire Insurance Company, on whiskey in a distiller's bonded warehouse. The distillery and the warehouse were owned and conducted by George H. Dearen, but the spirits were distilled for and owned by the defendants in error at the time the policy was issued. They were also sureties on Dearen's distillery bond to the United States, and as such were liable for the tax on the whiskey if not paid by Dearen, or made out of the whiskey. It will be thus seen that Thompson & Walston had two distinct interests in the whiskey; namely, the general ownership of it, and their liability for the tax on it which Dearen had assumed to pay, and which, if he did not pay, might fall upon them in either of two ways,-to wit, by a seizure and sale of the whiskey for the tax by the government, or by a suit on the bond on which they were sureties. The policy, which was manifestly designed to protect both these interests of the assured from loss or damage by fire, was for what reason peculiar and special in its provisions. By its terms the companies bind themselves to 'insure Messrs. Thompson & Co. against loss or damage by fire to the amount of $8,000, for the term of one year, upon whiskey, their own or held by them on a commission, including government tax thereon for which they may be liable, contained in the log bonded warehouse of G. H. Dearen.'

After the whiskey was burned, these companies paid their share with others of the loss on the value of the whiskey apart from the tax; but by the receipt which they took it was stated that the claim for liability on account of tax remained undecided. Thompson & Co. were sued on their bond with Dearen for this tax; and they notified the insurance companies of the suit, and asked them to defend it, which was declined. Judgments were obtained in each case on the bonds, and Thompson & Co. replevined the judgments. By this is meant that they gave bail which operated as a stay of execution for the period which the law of Kentucky allowed in such cases. The present action was brought by Thompson & Walston to recover the amount of these judgments.

On the trial, evidence was given tending to show that before the fire Walston had sold to his partner, Thompson, all his interest in the partnership, and that Hite Thompson had become interested with the other Thompson in the business to the extent of one-fifth. And, on the hypothesis that the jury believed this, the counsel for the companies asked the court in several forms to instruct the jury that plaintiffs could not recover. This proposition was based on a provision in the policy that it should be void 'if the property be sold, or transferred, or any change take place in title or possession, whether by legal process, or judicial decree, or voluntary transfer or conveyance.'

The refusal of the court to do so, and the charge of the court to the effect that this change in regard to the ownership, if true, did not defeat the right to recover the amount of the judgments against plaintiffs for taxes, are the errors on which a reversal is asked.

The argument of counsel on the effect of a mere change in the title by one partner selling to another his interest in the property insured, and the authorities presented on both sides, are very able and full, and the decisions are conflicting. So, also, the effect of the introduction of a new part-owner, in a case like the present, where the possession and care of the goods remain unchanged, are well considered; but in the view we take of the case it is not necessary that this court should decide these q estions.

We are of opinion that a careful consideration of the facts of this case, in their relation to some of the most elementary principles of the contract of insurance, will enable us to dispose of it without much difficulty.

It is to be observed, that, whether insurance be against fire, or marine loss, or loss of life, it is neither the property nor the life that is insured. Nor does the contract propose or intend to say that there shall be no destruction of the property or loss of life. In point of fact, the obligation of the insurer is designed to come into operation after the loss either of property or life has occurred, and to give compensation to some one interested in the life or the property, for the loss of that life or injury to the property.

In regard to property this compensation is intended by the fundamental principles of insurance to bear a direct relation to the moneyed value of the interest which the party insured had in the property. Where the only interest of the assured is the full and perfect ownership of the property, that is the interest insured; and the amount to be recovered on the policy of insurance is that full value or such sum less than that as the insurer stipulates to be liable for.

But it often occurs that the interest of the party insured is not that of full ownership. His interest may be that of a trustee, or executor, or some other representative character, in which case the recovery will be in accordance with the nature of the contract. The policy before us is a striking illustration of this. The interest of the plaintiffs in the whiskey which is insured is threefold,-their own, or held on a commission, and the government tax, for which they may be held liable. If the makers of this policy intended to insure no other interest of Thompson & Co. in the whiskey than their proprietary interest, the interest which at the time of the loss they had as owners of the whiskey, the enumeration of the two other interests was useless and misleading. The facts already stated show that they had another interest; and, since they insured it, it must be presumed that it was known to the insurers. The whiskey which they owned was liable to the government for a tax; and this Dearen was primarily liable for and had promised to pay, but, if he did not, the whiskey could be sold for it. They had also become bound with him on his bond for the payment of this tax. In the event of the whiskey being destroyed by fire, the danger of their personal liability was greatly increased. They were, therefore, right in wishing to be secured against this loss also, if the whiskey was burnt. It is impossible to give any other construction to the policy than that the company agreed to furnish this indemnity. The language, when brought into relation with the conceded facts of the case, admits of no other.

This interest was an insurable interest, as much as freights at sea or profits in an adventure. The whiskey stood between them and their loss. The whiskey when in the warehouse was loaded with this tax. It would sell for as much less as the tax, unless the tax was paid. So long as it was in the warehouse, plaintiffs were not liable for the tax. The moment it was lost they became liable. This was a fair subject of insurance. Fireman's Fire Insurance Co. v. Powell, 13 B. Mon. (Ky.) 311; Gordon v. Massachusetts Fire & Marine Insurance Co., 2 Pick. (Mass.) 249; Rohrbach v. Germania Fire Insurance Co., 62 N. Y. 47.

In regard to this interest, Walston had never parted with it. His sale of the partnership interest did not release him from his liability on Dearen's bonds; nor did the subsequent purchase of Hite Thompson of one-fifth interest in the whiskey have that effect, or destroy Walston's interest to that extent in the whiskey. As to him, it is very clear that he had the strongest interest that the whiskey should be secure from fire until the tax on it was paid, since its continued existence was his best, if not his only, security against liability n the bonds.

It is to be observed that no other interest of Thompson & Co. is in issue in this suit. They never held the whiskey on commission, and the loss in regard to the proprietary interest had been paid by the companies. This was another and a different interest in the same property. A man might insure his interest in property as an executor, and his interest as a legatee. His removal from the office of executor by the proper court might, within the terms of this policy, prevent his recovering in that character; but if his interest in the property as legatee was one-sixth, would the change of executorship bar his recovery as legatee? This would hardly be asserted by any one.

It is objected further to a recovery that plaintiffs have not actually paid the judgment. The answer to this, if any were necessary, is that by the law of Kentucky the replevin bond is a satisfaction of the judgment. It is as to this obligor a debt discharged. It is said that, in case of a loss like this, the government cannot collect the tax from the bondsmen. The answer is, that the government has sued and obtained judgment for the tax; and defendants were asked to defend that suit, and declined to do so.

Judgment affirmed.


text: Talk:Insurance Companies v. Thompson/Opinion of the Court


text:
Morrow v. Whitney

ERROR to the Supreme Court of the States of Wisconsin.

This is an action of ejectment brought in the Brown County Circuit Court, Wisconsin, by Whitney and Baker, for the possession of a tract of land, consisting of ninety-four acres and a fraction of an acre, situated in the borough of Fort Howard, in that county and State. On the trial, the plaintiffs deraigned title to the premises from one Pierre Grignon, to whom a patent of the United States was issued June 2, 1870. The defendant Morrow set up an adverse possession of the premises in himself, and parties through whom he derived his interest, for more than forty years, under a claim of title founded upon a written instrument as a conveyance of the premises. On the trial he relied upon a legislative confirmation of a claim under the act of Congress of Feb. 21, 1823, of one Alexis Gardapier, from whom he traced his title.

Judgment was rendered in favor of the plaintiffs, and, it having been affirmed by the Supreme Court of the State, Morrow sued out this writ of error. The additional facts are stated in the opinion of the court.

Mr. Timothy O. Howe for the plaintiff in error.

''Mr. Matt. H. Carpenter, contra''.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Morrow v. Whitney


text: Talk:Morrow v. Whitney

title: Talk:Morrow v. Whitney


text:
Morrow v. Whitney/Opinion of the Court

The act of Feb. 21, 1823, 3 Stat. 724, after reviving and continuing in force certain previous acts for the adjustment of land claims in the Territory of Michigan, which them included Wisconsin, provided, in its fifth section, that every person who, on the 1st of July, 1812, was a resident at Green Bay, or at other places named, and had then occupied and cultivated a tract of land within either of those settlements, or had occupied a tract of land formerly cultivated by him, and had continued to submit to the authority of the United States, should be confirmed in the tract thus occupied and cultivated. The section did not in terms require the commissioners created under the previous acts, and continued in authority with reference to other claims, to report to Congress their action upon the new claims arising under this section; but we think it was the intention of Congress to place such claims on a similar footing with those to which the previous acts referred; and that with respect to them the commissioners should be invested with similar powers and be subject to similar duties. And upon that idea the commissioners acted. They considered the claims presented under the fifth section, and the evidence to bring the claims within its provisions, and they reported the result of their labors to the Secretary of the Treasury. The report stated what claims they had confirmed, and what claims they had rejected, with the evidence upon which their deci ion was based. Among the claims considered and confirmed by them was one presented by Alexis Gardapier, and one presented by Pierre Grignon. The claim of Gardapier was to a certain tract situated on the west bank of Fox River, at Green Bay, described 'as being a vacant strip lying between tract number one, confirmed to Jacques Porlier, on the north, and tract number two, confirmed to Louis Grignon, on the south, commencing at low-water mark and running west eighty arpents, and in width three arpents on the aforesaid river.' American State Papers, Public Lands, vol. iv. p. 272. The commissioners decided that the tract claimed be confirmed to Gardapier, provided it did not interfere with a previous confirmation.

The claim of Pierre Grignon was to a tract of land near Fort Howard, on the west side of Fox River, at Green Bay, immediately below the first creek that emptied into the river, being about fifteen acres in front on the river, and extending back indefinitely. The commissioners decided that this claim be confirmed, provided it did not interfere with the confirmation previously made to Jacques Porlier, or with the one made by them to Alexis Gardapier. The commissioners gave their decision upon both of these claims on the same day, Nov. 21, 1823. Their report was presented to the Secretary of the Treasury, and by him referred to Congress; and, on the 17th of April, 1828, Congress passed an act confirming the claims 'purporting to be confirmed, or recommended for confirmation,' by the commissioners. 4 Stat. 260. The act required the Secretary of the Treasury to adopt such measures as might be necessary to give full effect to the reports of the commissioners, but with a proviso, among other things, that the confirmations should not be so construed as to extend to any lands occupied by the United States for military purposes. The act, also, made it the duty of the register of the land-office at Detroit to issue to the claimants whose claims were confirmed patent certificates, upon which patents were to be granted by the Commissioner of the General Land-Office.

If the land claimed by Gardapier were not occupied at the time by the United States for military purposes, there was no impediment to the immediate operation of the act upon his title. Whether there was any evidence of such occupation we shall presently consider. Assuming now that there was no such occupation, the effect of the act was not doubtful. It recognized the validity of the claim of Gardapier, and operated to transfer to him the interest of the United States as effectually as a grant or quitclaim could have done. A confirmation is a conveyance of an estate or right in lands to one who has the possession or some estate therein. The tract confirmed appears to have had clearly defined boundaries, or to have been at least capable of identification; and, if such were the case, the confirmation perfected the claimant's title. A subsequent patent would only have served as documentary evidence of that title.

From the earliest period in the history of the country, claims to tracts of land, upon which persons have settled and made improvements in advance of the public surveys, and before the lands have been offered for sale, sometimes upon the express invitation of the public authorities, and sometimes upon their supposed acquiescence, have been presented for the equitable consideration of the government. Such claims in great numbers have arisen under other governments from which we have acquired territory, with treaty stipulations for their protection. Sometimes such claims have been submitted to boards of commissioners for approval or rejection; sometimes they have been referred to the judicial tribunals for determination, and sometimes they have been directly acted upon by Congress. In the settlement of these claims the law has generally provided that a patent of the United States should be issued to the claimant when his claim has been recognized as valid or entitled to confirmation. The patent in such cases, as we have recently had occa ion to observe, operates in two ways. 'It is a conveyance by the government, when the government has any interest to convey; but where it is issued upon the confirmation of a claim of a previously existing title, it is documentary evidence, having the dignity of a record, of the existence of that title or of such equities respecting the claim as justify its recognition and confirmation. The instrument is not the less efficacious as evidence of previously existing rights because it also embodies words of release or transfer from the government.' Langdeau v. Hanes, 21 Wall. 521.

In this case, the patent would have been of great value to the claimant. It would have enabled him, without other proof, to maintain his title in the tribunals of the country. Founded as it would have been upon a survey by the government, it would have removed the doubt as to the boundaries of the tract, which always arises where their establishment rests in the uncertain recollection of witnesses as to an ancient possession. It would thus have proved to its possessor an instrument of quiet and security, but it would not have added any thing to the interest vested by the confirmation. Ryan et al. v. Carter et al., 93 U.S. 78.

If, then, there was no military occupation of the premises when the confirmatory act passed, as we have thus far assumed, the title of Gardapier became perfect by force of the confirmation. His claim, in our judgment, embraced the entire tract lying between tract number one, confirmed to Jacques Porlier, on the north, and tract number two, confirmed to Louis Grignon, on the south, commencing on the river and running back eighty arpents. If there were a mistake, as alleged, in the statement of the distance the tract extended along the river, it was one which must yield to the clearly designated northern and southern boundaries. Metes and bounds in the description of premises control distances and quantities when there is any inconsistency between them. This is a familiar rule, and is founded upon the principle that those particulars are to be regarded in which error is least likely to occur. Gardapier might easily have been mistaken as to the length of his frontage on the river; but he could not well have been mistaken as to the land bordering on each side of his small tract, or as to whom it was confirmed. His tract was sufficiently identified by the boundaries named; and in such cases it is immaterial if a false or mistaken circumstance be added to the description.

The question, therefore, which was vital to the case, was whether the land claimed by Gardapier was occupied for military purposes on the passage of the confirmatory act. There is no evidence in the record that there was at that time any such occupation, and the record purports to state all the testimony given. It was nearly a year after the confirmation before the general of the army recommended, and the President ordered, the reservation for military purposes of a tract which embraced within its limits the land claimed by Gardapier. It was then too late to affect his title. It is true the recommendation of the commanding general was accompanied with a description of the land ordered to be reserved, and a statement that the land had been previously occupied for military purposes; but that statement does not mention when such occupation commenced, or how long it existed. The statement could only be evidence of the representation upon which the President acted; it was not competent evidence of any other fact. And the order of the President, effectual to create the reservation if the land had continued the property of the United States, was of course inoperative if the title had passed to Gardapier.

The military occupation was a fact to be established by parol proof; it was not a matter of record, like the order of the President directing the reservation, to be shown by the production of a copy. And the defendants offered in various forms to prove, by witnesses produced for that purpose, that the tract was not thus occupied on the passage of the act of Congress, and had not been thus occupied previous to that date. They also offered to prove that from the year 1824 down to the commencement of this action, a period of nearly forty-nine years, the land had been in the actual, open, notorious, and exclusive possession of Gardapier and parties claiming under him, and that during this time it had been fenced, cultivated, improved, and built upon without interruption, objection, or dispute on the part of any one. But the court refused to admit the proof, and also refused an instruction to the jury asked by the defendants, that in order to find a verdict for the plaintiff they must be satisfied from the evidence that the land in controversy was occupied by the United States for military purposes on April 17, 1828, or was reserved for military purposes at that time, or was treated by the government as thus reserved.

So far as the proof offered related to the occupation at the passage of the confirmatory act and previously, it was competent and should have been received, and the instruction asked for was proper and should have been given. The refusal of the court to receive the proof, and also to give the instruction, was error, for which the judgment must be reversed and a new trial had. The proof as to subsequent possession was immaterial, if military occupation existed at that date. If such occupation then existed, the confirmation did not apply to the land, and it continued as before the property of the United States. Occupation of the public lands can never be adverse to the government so as to defeat or affect in any way the title subsequently conferred by its grant or patent. In such cases, the doctrine declared in Gibson v. Choteau, 13 Wall. 92, applies.

Judgment reversed, and cause remanded with direction to order a new trial.

title: Morrow v. Whitney/Opinion of the Court


text: Talk:Morrow v. Whitney/Opinion of the Court


text:
West St. Louis Savings Bank v. Shawnee County Bank

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

Parmelee, cashier of the Shawnee County Bank, made his individual note for $3,000, payable to the order of the West St. Louis Savings Bank, indorsed it 'G. F. Parmelee, cashier,' and gave as collateral security a certificate of stock in the Shawnee County Bank, issued to and owned by him. The consideration of the note was money lent to him by the payee, who was advised that he intended to use it to pay for his stock in the Shawnee County Bank. He failed to pay the note; whereupon this suit was commenced by the payee against him as maker, and the Shawnee County Bank as indorser, of the note.

The court passed a decree against Parmelee, but dismissed the bill so far as it asked relief against the Shawnee County Bank.

The complainant then brought the case here.

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

Mr Henry Hitchcock for the appellant.

No counsel appeared for the appellee.

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


text: Talk:West St. Louis Savings Bank v. Shawnee County Bank


text:
West St. Louis Savings Bank v. Shawnee County Bank/Opinion of the Court

The testimony in this case satisfies us beyond all doubt that the liability of the Shawnee County Bank, if any liability exists, is that of an accommodation indorser or surety for Parmelee, its cashier, and that this was known to the St. Louis Bank when it made the discount. The note itself bears upon its face the most unmistakable evidence of this fact. It is made payable directly to the St. Louis Bank, and the Shawnee Bank appears only as an indorser in blank of a promissory note before indorsement by the payee and while the note is in the hands of the maker. Such an indorsement by a bank is, to say the least, unusual, and sufficient to put a discounting bank upon inquiry as to the authority for making it.

But we are not left in this case to inquiry or presumption. Both the correspondence and the testimony of the cashier of the St. Louis Bank show conclusively that this was the understanding of the parties. Parmelee, in transmitting the note for dis ount, wrote for himself, and not as cashier. He spoke of his own note, and authorized a draft upon himself personally for the interest. He pledged his own stock for the payment of the note. Wernse, the St. Louis cashier, says the negotiations opened with an application by Parmelee for a loan to enable him to pay for his stock in the Shawnee Bank, upon the pledge of the stock as collateral. There is not a single circumstance tending in any manner to prove that the transaction was looked upon as a rediscount for the Shawnee Bank, except the entries in the books of the St. Louis Bank, and these are far from sufficient to overcome the positive testimony as to what the agreement actually was.

This being the case, the question is directly presented as to the liability of the Shawnee County Bank upon such an indorsement. It is certain from the testimony that no indorsement of the kind was ever expressly authorized by the bank. None of the officers, except Parmelee, and Hayward, the vicepresident, ever knew that it had been made until long after the last discount had been obtained. The books of the Shawnee Bank contained no evidence of such a transaction, and the accounts of the St. Louis Bank, as rendered, gave no indication of the actual character of the paper discounted.

Ordinarily, the cashier, being the ostensible executive officer of a bank, is presumed to have, in the absence of positive restrictions, all the power necessary for such an officer in the transaction of the legitimate business of banking. Thus, he is generally understood to have authority to indorse the commercial paper of his bank and bind the bank by the indorsement. So, too, in the absence of restrictions, if he has procured a bona fide rediscount of the paper of the bank, his acts will be binding, because of his implied power to transact such business; but certainly he is not presumed to have power, by reason of his official position, to bind his bank as an accommodation indorser of his own promissory note. Such a transaction would not be within the scope of his general powers; and one who accepts an indorsement of that character, if a contest arises, must prove actual authority before he can recover. There are no presumptions in favor of such a delegation of power. The very form of the paper itself carries notice to a purchaser of a possible want of power to make the indorsement, and is sufficient to put him on his guard. If he fails to avail himself of the notice, and obtain the information which is thus suggested to him, it is his own fault, and, as against an innocent party, he must bear the loss.

Decree affirmed.


text: Talk:West St. Louis Savings Bank v. Shawnee County Bank/Opinion of the Court


text:
Eddy v. Dennis Dennis

APPEALS from the Circuit Court of the United States for the Northern District of New York.

This is a suit by Paul Dennis against Daniel Eddy, Walden Eddy, and Abram Reynolds, doing business as Eddy & Co., for an infringement of reissued letters-patent No. 1515, granted to the complainant Aug. 4, 1863, being a reissue of original letters No. 19,412, which bear date Feb. 23, 1858. The specification and drawings of the reissue are as follows:--

'To all whom it may concern:

'Be it known that I, Paul Dennis, of Bemis Heights, in the county of Saratoga, and State of New York, have invented a new and improved shovel-plow, and I do hereby declare that the following is a full, clear, and exact description of the same, reference being had to the accompanying drawings, making a part of this specification, in which Fig. 1 is a side view of my invention; Fig. 2, a back view of the same; Fig. 3, a plan or top view of the same. Similar letters of reference indicate corresponding parts in the several figures.

'This invention consists in a peculiar manner of constructing or forming the upper edge of the mould-board, with recesses, so that the earth, as the implement is drawn along, will pass over the top of the mould-board and drop into the furrow behind it, and partially or wholly fill the same, there leaving the earth in a level and also in a loose, light, or pliable state, permeable to air and moisture, and at the same time preventing earth, sods, stone, &c., being cast against the growing plants by the mould-board, a contingency of frequent occurrence in using the ordinary plows.

'The invention further consists in the employment or use of a gauge applied to the implement in such a manner as to admit of the mould-board penetrating the soil at a greater or less distance, as may be desired.

'To enable those skilled in the art to fully understand and construct my invention, I will proceed to describe it.

'A represents a metallic bar, which is curved so that the front part will form the beam of the implement, and the back part an inclined portion to which the mould-board B is firmly attached. The form of the bar A is clearly shown in Fig. 1.

'To the bar A, near the centre of its curve or bend, the lower ends of handles c c are attached by a bolt, as shown at a. These handles are braced by a V-shaped support, D, the lower end of which is secured to the bar, A, as shown at b.

'The mould-board B is of shovel form, and is much like those usually made, with the exception that its upper edge or part is scalloped out so as to form a recess c at each side of the bar A, as shown clearly in Figs. 2 and 3, said recesses extending down nearly or about one-half the length of the mould-board. The mould-board may be constructed of malleable cast-iron.

'E is the point or share, which is constructed of steel, the lower end being pointed, and its sides slightly rounded or curved, so that the form of the mould-board and point or share, when connected together, will closely approximate to those which are cast in one piece, the recesses c being excepted. The point or share E may be attached to the mould-board B by bolts d, which are attached to the under side of the point or share, and pass through a projecting plate, e, at the under side of the mould-board. (See Figs. 1 and 2.)

'F is an adjustable metallic roller, which is attached to the bar A, just back of the mould-board B. The axis of the roller F is fitted or has its bearings in arms f f, which project obliquely from a plate g, said plate being slotted longitudinally, so that the bolts h h, which secure the mould-board to the bar, may pass through said slot, the bolts h having each a nut i on them, by screwing up which the plate g, and consequently the roller F, may be secured higher or lower, as desired.

'From the above description it will be seen that the point or share E and mould-board B may be made to penetrate the soil at a greater or less depth, as may be desired, by adjusting the roller F and draught-chain, said roller serving as a gauge or guide, and the draught-chain being adjusted at the end of the beam so that the draught may aid the roller, and the point or share be made to have a tendency to penetrate the soil or otherwise. This will be understood by referring to Fig. 1, in which it will be seen that, by depressing or lowering the roller on the bar, the mould-board will be less inclined, and, consequently, if the draught-chain or whiffletree be properly adjusted at the end of the beam, the point or share will have a greater tendency to penetrate the earth than if the roller were higher up on the bar, the roller always bearing upon the earth.

'The mould-board B does not cast the earth from either side as usual, but the earth, in consequence of the recesses c c, will pass over the top of the mould-board and drop behind it, so that no furrow will be formed or left behind the mould-board, but the soil will be left in a loose, light state, permeable to air and moisture, and all grass, weeds, roots, and the like perfectly cut up. The mould-board, by operating in this manner, does not, of course, cast earth, sods, or stones upon the growing plants, as is frequently the case in using the ordinary shovel-plows, which cast the earth from either side of them. This is an important feature of the invention.

'The point or share E, also, in consequence of being made separate, of steel, and attached to the mould-board, may be readily detached and sharpened; and, when much worn, a new one may be attached to the mould-board. The plow is, therefore, not only rendered far more durable, but it may always be kept in perfect order; for the mould-board will last an indefinite period of time, if not being subjected to much wear, and the plow will always be in order, provided the point or share is kept in proper condition. By my improvement this can be done; but it cannot be done when the mould-board and share are cast in one piece.

'The ordinary shovel-plows cannot be regulated by the draught-chain so as to regulate the depth of the furrow, for they have no guide, the point or share merely penetrating the soil. The roller F in my improvement diminishes friction, and serves as a more perfect guide than the land-side of ordinary plows.

'Having thus described my invention, I wish it distinctly understood that I do not claim broadly the idea of passing a portion of the earth over the mould-board into the furrow behind, as I am aware that this has before been done.

'Neither do I claim applying a movable mould-board to one of the outer edges of the share, as described in an application of J. Drummond, rejected Oct. 25, 1844.

'Neither do I claim the use of projecting blades at the outer ends of the share, as described in the patent of B. Langdon, granted June 22, 1842, and others; but,

'Having thus described my invention, what I claim as new therein and desire to secure by letters-patent is—

'1st, The inclined shovel mould-board B, formed and mounted substantially as described, and constructed highest at its outer edges, so as to form on each side of the standard A a recess, c, through which recesses a portion of the earth may, after rising upon the mould-board, descend into the furrow in the rear of the plow.

'2d, The combination with the beam A and mould-board B of the adjustable wheel F, arranged and operating substantially as and for the purposes specified.

'PAUL DENNIS.'

The court below, upon hearing, was of opinion that the defendants had infringed the first claim of the specification, but not the second. An injunction was thereupon issued against the defendants; and they were decreed to pay the complainant $596.50 damages, on account of gains and profits resulting from the infringement. Both parties appealed to this court: Eddy & Co. from so much of the decree as held them to be infringers, and Dennis from that part limiting his damages to the amount awarded him.

Mr. Esek Cowen for Eddy & Co.

Mr. E. F. Bullard for Dennis.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Eddy v. Dennis Dennis


text: Talk:Eddy v. Dennis Dennis

title: Talk:Eddy v. Dennis Dennis