text:
Fitch v. Creighton

THIS was an appeal from the Circuit Court of the United States for the northern district of Ohio.

It was a bill filed on the equity side of the court by Creighton, a citizen of Iowa, against Fitch, a citizen of Ohio, under the circumstances stated in the opinion of the court. The Circuit Court decreed against Fitch, who brought up this appeal.

It was submitted on printed arguments by Mr. Cooke for the appellant, and Mr. Swayne for the appellee.

The principal question in the case was whether the Circuit Court had jurisdiction of the case, which depended upon the facts involved in it. A particular statement of these would not be interesting to the profession generally, and therefore they are omitted. The propositions for which Mr. Cooke contended, in support of the demurrer below, were—

I. That the complainant does not show himself possessed of any right which he can enforce directly against this defendant or his property; and—II. That the liability of the defendant is not such an one as can be enforced against him in a court of equity, without the aid of the statute, which cannot confer jurisdiction upon the courts of the United States.

Mr. Swayne's points, in opposition to the above, were thus stated:

I. It seems to be conceded that, when the local statutes of a State give rights to an individual, the courts of the United States will enforce those rights in case where they have jurisdiction of the parties.

1. It is not pretended that the States can direct the remedy by which rights are to be enforced, which the Federal courts are bound to pursue.

2. But it is claimed that where the statute of a State creates a right which may be enforced by remedies already existing and resorted to in the latter courts, that these courts will enforce the right by their own known remedies and usages, in cases where they have jurisdiction, although the local state may direct a special mode of proceeding.

The General Smith, 4 Wheaton's Rep., 438.

II. By the statute and the contract with the city, the complainant acquired, by operation of law, rights which courts of equity, by their long-established rules and usages, will enforce.

Mr. Justice McLEAN delivered the opinion of the court.

title: Fitch v. Creighton


text: Talk:Fitch v. Creighton

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

title: Talk:Fitch v. Creighton


text:
Fitch v. Creighton/Opinion of the Court

This is an appeal from the Circuit Court of the United States for the northern district of Ohio. The bill was filed by Edward Creighton, a citizen of the State of Iowa, against John Fitch, a citizen of the State of Ohio.

By the act of March 11th, 1853, Swan's Statutes Ohio, it is provided, 'that the City Council shall have power to lay off, open, widen, straighten, extend, and establish, to improve, keep in order, and repair, and to light streets, alleys, public grounds, wharves, landing places, and market spaces; to open and construct, and put in order and repair, sewers and drains; to enter upon or take for such of the above purposes as may require it, land and material; and to assess and collect and charge on the owners of any lots or lands, through or by which a street, alley, or pulic highway shall pass, for the purpose of defraying the expenses of constructing, improving, and repairing, said street, alley, or public highway, to be in proportion either to the foot front of the lot or land abutting on such street, alley, or highway, or the value of said lot or land as assessed for taxation under the general law of the State, as such municipal corporation may in each case determine.'

Each municipal corporation may, either by a general or special law or ordinance, prescribe the mode in which the charge on the respective owners of lots or lands shall be assessed and charged to the owner, which shall be enforced by a proceeding at law or in equity, either in the name of the corporation or of any person to whom it shall be directed to be paid, but the judgment or decree was required to be entered severally; and a charge was required to be enforced for the value of the work or material on such lot or land; and where payment shall have been neglected or refused when required, the corporation shall be entitled to recover the amount assessed, and five per cent. from the time of the assessment. Swan's Stat., 963.

On the 7th of April, 1855, the city of Toledo entered into a contract with Creighton, and one Edward Connelly, who bound themselves to do certain work on the streets, for the sums named in the contract; and that so soon as the work was completed, the street commissioner should give them a certificate to the effect, and on the presentation of the same to the council, it would assess the cost and expenses of the improvement on the lots or lands made liable by law to pay the same, and make out and deliver to the contractors a certified copy of said assessments, and authorize them or assigns to collect the several amounts due and payable for the work and improvement.

Creighton purchased from Connelly his interest in the contract, and went on and performed the work under it, to the acceptance of the city. On the 14th July, 1856, the council made an assessment on the lots abutting on the improvement in Monroe street, to pay the expenses of that work, and directed that the owners of the lots make payment of the assessments to Creighton. Among the rest, lot 640, belonging to John Fitch, was assessed for this work $84.56.

On the 20th May, 1856, the council made an assessment upon the lots abutting on said improvement in Michigan street, to pay for the same, and also directed the owners of these lots to make payments of such assessments to Creighton. Among the lots so assessed were the following, owned by defendant, numbered 547, 538, 539, 544, 1,461; the assessments of the respective lots amounted to the sum of $1,791.76; and subsequently a further assessment was made on the contract of three lots, numbered 686, 751, and 855, which amounted to the sum of $266.47. The above sums were ordered to be paid to the complainant, with five per centum allowed by law.

The this bill the defendant demurred, which, on argument, was overruled. And the court ordered the above sums to be paid in ten days, or in default thereof that the lots be sold, &c.

From this decree an appeal was taken. On the part of the appellant it is claimed, that upon the facts of the case, the Circuit Court had no jurisdiction; that the equity jurisdiction of the courts of the United States depends upon the principles of general equity, and cannot, therefore, be affected by any local remedy, unless that remedy has been adopted by the courts of the United States.

By the 34th section of the judiciary act of 1789, it is declared, 'that the laws of the several States, except where the Constitution, treaties, or statutes of the United States shall require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States, in cases where they apply.' This section does not relate to the practice of our courts, but it constitutes a rule of property on which the courts are bound to act.

The courts of the United States have jurisdiction at common law and in chancery, and wherever such jurisdiction may be appropriately exercised, there being no objection to the citizenship of the parties, the courts of the United States have jurisdiction. This is not derived from the power of the State, but from the laws of the United States.

In Clark v. Smith, 13 Peters, 203, the court say 'the State Legislatures certainly have no authority to prescribe the forms and modes of proceeding in the courts of the United States; but having created a right, and at the same time prescribed the remedy to enforce it, if the remedy prescribed is substantially consistent with the ordinary modes of proceeding on the chancery side of the Federal courts, no reason exists why it should not be pursued in the same form as it is in the State courts.'

In the case above cited, the Legislature of Kentucky authorized a person who was in possession of land claimed by him, and some one else had a claim on the same land; the possessor was authorized to file a bill against the claimant to litigate his title and remove the cloud from it.

The statute authorizes a suit at law or in equity, but from the nature of the case it would seem that chancery was the appropriate mode.

There was no necessity to make Connelly a party in this case. He made the contract jointly with Creighton. But before the work was commenced Connelly relinquished his right to Creighton, who performed the whole work, and to whom the City Council promised payment. The assessments, too, were made to Creighton, and he was considered the only contractor with the city. No right was held under Connelly. By the statute the city makes an assessment which is to be paid by the owner personally, and it is also made a lien on the property charged. The charge may be collected and the lien enforced by a proceeding at law or in equity, either in the name of the city or its appointee. The complainant is the appointee for this purpose, and his right is too clear to admit of controversy.

This bill is not multifarious; the assessments were assessed on the lots by the foot front, and all against the same defendant.

Lord Cottenham, in Campbell v. Mackay, 7 Simon, 564, and in Mylne v. Craig, 603, says, to lay down any rule, applicable universally, or to say what constitutes multifariousness, as an abstract proposition, is, upon the authorities, utterly impossible. Every case must be governed by its circumstances; and as these are as diversified as the names of the parties, the court must exercise a sound discretion on the subject. Whilst parties should not be subjected to expense and inconvenience in litigating matters in which they have no interest, multiplicity of suits should be avoided by uniting in one bill all who have an interest in the principal matter in controversy, though the interests may have arisen under distinct contracts.

We think the statute of the State, and the municipal corporation of Toledo, authorize the assessment of the sums on the lots in question, and that the judgment in the Circuit Court must be affirmed.

title: Fitch v. Creighton/Opinion of the Court


text: Talk:Fitch v. Creighton/Opinion of the Court


text:
Page:Devonshire Characters and Strange Events.djvu/341

Rh third of the devil dancing in the middle of a ring of witches. He holds a candle in his right hand and a broomstick in the other. Black owls are flying about; and a black cat sits hard by looking on complacently. It has been reprinted by John Ashton in his Century of Ballads, London, 1887.

It is wretched doggerel. Here are some stanzas:—


text:
Phillips v. Page

THIS case was brought up by writ of error from the Circuit Court of the United States for the northern district of New York.

The principal question related to the construction of Page's patent for improvements in the construction of a portable circular saw-mill, the circumstances of which are stated in the opinion of the court. Under the instructions of the court below, the jury found a verdict for Page, with $50 damages, and $466.14 costs. The bills of exception are stated in the opinion of the court.

It was submitted on printed arguments by Mr. Keller for the plaintiff in error, and Mr. Reverdy Johnson and Mr. Latrobe for the defendant.

The arguments upon the points in the case are omitted, as not being likely to interest the profession generally.

Mr. Justice NELSON delivered the opinion of the court.

title: Phillips v. Page


text: Talk:Phillips v. Page

title: Talk:Phillips v. Page


text:
Phillips v. Page/Opinion of the Court

This is a writ of error to the Circuit Court for the northern district of New York.

The suit was brought in the court below by Page, the defendant in error, to recover damages for the infringement of a patent for certain improvements in the construction of the portable circular saw-mill. After describing minutely the different parts, and manner of constructing the machine, with drawings annexed, and also the use and operation of the respective parts, the patentee sets forth the particular portion of the construction which he claims as his own, as follows:

'I claim the manner of affixing and guiding the circular saw, by allowing end-play to its shaft, in combination with the means of guiding it (the saw) by friction rollers, embracing it near its periphery, so as to leave its centre entirely unchecked laterally. I do not claim the use of friction rollers, embracing and guiding the edge of a circular saw, as these have been previously used for that purpose; but I limit my claim to their use, in combination with a saw having free lateral play at its centre.'

Evidence was given on the part of the defendant, in the course of the trial, tending to prove that, long before the time of granting the plaintiff's patent, and before the date of his invention, machines for sawing shingles from short blocks of timber, and sawing lath and blinds for windows, with circular saws, varying in size from ten to thirty inches in diameter, had been in public use; in which machines the circular saw was guided by means of guide-pins, embracing it (the saw) near the periphery, and its shaft having end-play, and being entirely unchecked laterally; but it did not appear that such machines had been used in a saw-mill for sawing timber, or in a mill, or a machine of a size or character adapted to the sawing of ordinary logs, or other large unsawed timbers.

When the evidence closed, the defendant's counsel prayed the court to charge the jury, that according to the true construction of the patent, the claim is for the manner of affixing and guiding the circular saw, by allowing end-play to its shaft, in combination with the means of guiding it by friction rollers, embracing it near its periphery, so as to leave its centre entirely unchecked laterally.

But the court refused so to charge, and instructed the jury that the claim was limited to the manner of affixing and guiding the circular saw, by allowing end-play to its shaft, in combination with the means of guiding it by friction rollers, embracing it near its periphery, so as to leave its centre unchecked laterally, in a saw-mill capable of being applied to the sawing of ordinary logs.

And in refusing another prayer, the court charged, that in order to defeat the plaintiff's patent by the use of prior machines of this construction, they must have been machines for the purposes of sawing in mills of a size and character adapted to the sawing of ordinary logs.

There can be no doubt but that the improvements of the patentee in the manner of constructing the portable circular saw-mill described in his specification were designed to adapt it to the sawing of logs in a saw-mill, and which could be carried from place to place, and put into operation by the use of horse-power; and it may very well be, if he had set up in his claim the improvements or particular changes in the construction of the old machine, so as to enable him to adapt it to the new use, and one to which the old had not and could not have been applied without these changes, the patent might have been sustained. The utility is not questioned, and, for aught there appears in the case, such improvements were before unknown, and the circular saw-mill for sawing logs the first put in successful operation.

But no such claim is set up by the patentee; nor does he distinguish in the description of the parts of the machine, nor in any other way, the old from the new, or those parts which he has invented or added in its adaptation to the use of sawing logs, not before found in the old machine for sawing shingles, blinds for windows, and other light materials. On the contrary, his claim is for the precise organization of the old machine, namely, the manner of affixing and guiding the circular saw, by allowing end-play to its shaft, in combination with the means of guiding it by friction rollers, embracing it near to its periphery, so as to leave its centre entirely unchecked laterally. There is nothing new in this combination. It had long been known and used in the circular saw for sawing timbers of smaller dimensions than an ordinary saw-log. Nor does the enlargement of the organization of the machine compared with the old one, (the same being five feet in diameter, and the other parts corresponding,) afford any ground, in the sense of the patent law, for a patent. This is done every day by the ordinary mechanic in making a working machine from the patent model.

The patentee in the present case must carry his improvements farther, in order to reach invention; he must contrive the means of adapting the enlarged old organization to the new use, namely, the sawing of saw-logs, and claim, not the old parts, but the new device, by which he has produced the new results.

The learned judge, by interpolating the new purpose of the improvement, namely, the sawing of logs, not only inserted what was not specified in the claim; but, if it had been, it would not have helped out the difficulty, as it was in effect, upon the construction given, simply applying an old organization to a new use, which is not a patentable subject.

The defect here is both in the specification and in the claim. The former does not distinguish the new parts from the old, nor is there anything in the specification by which they can be distinguished; and the latter, instead of claiming the old parts, should have excluded them, and claimed the new, by which the old were adapted to the new use, producing the new result.

We are also of opinion the court below erred in rejecting the evidence of the witness as to the prior knowledge and use of the improvement of the patentee.

The 15th section of the patent law provides, that when the defendant relies in his defence on the fact of a previous invention, knowledge, or use of the thing patented, he shall give notice of the names and places of residence of those whom he intends to prove possessed the prior knowledge, and where the same was used.

In this case, the notice stated that Hiram Davis, who resides at Fitchburg, Massachusetts, had knowledge of the said improvement, and of the use thereof at that place, during the years 1836, 1837, 1838, &c., and that he resided there.

The court, on objection refused to allow a witness to prove the use of the improvement by Davis prior to the year 1836 at Fitchburg, holding that the notice limited it within that time.

Notice of the time when the person possessed the knowledge or use of the invention is not required by the act; the name of the person, and of his place of residence, and the place where it has been used, are sufficient.

The time, therefore, was not material; nor could it have misled the plaintiff, as he had the name and place of residence of the person, and also the place where the improvement had been used.

With this information of the nature and ground of the defence, the plaintiff was in possession of all the knowledge enabling him to make the necessary preparation to rebut that the defendant possessed to sustain it.

Judgment reversed and venire.

title: Phillips v. Page/Opinion of the Court


text: Talk:Phillips v. Page/Opinion of the Court


text: Almy v. California

title: Almy v. California


text: Talk:Almy v. California

title: Talk:Almy v. California


text:
Almy v. California/Opinion of the Court

THIS case was brought up by writ of error from the Court of Sessions for the city and county of San Francisco, in the State ofCalifornia.

It was a constitutional question entirely, and is stated in the opinion of the court.

It was argued by Mr. Blair for the plaintiff in error, and submitted on a printed argument by Mr. Benjamin for the defendants.

Mr. Blair placed his opposition to the law upon two grounds, viz: 1st, that it imposed a tax upon commerce; 2d, that it amounted to a tax upon exports. As the opinion of the court notices only the latter point, the arguments of the counsel on both sides will be confined to that point. Mr. Blair said:

The law in question is also in violation of the provisions of the Constitution prohibiting the States from taxing exports; and the reasoning of the court in Brown's case is equally applicable to this branch of the case.

The payment required for the license to enable an importer to sell his imports was declared to be a tax on such imports; the court saying that it was 'varying the form without varying the substance,' and 'treating a prohibition which is general as if it were confined to a particular mode of doing the forbidden thing.'

There is even less room for controversy here, as to the application of the prohibition, than in that case. Every export is taxed by an impost on the paper which represents it, and which is indispensable.

Upon this point Mr. Benjamin's argument was as follows:

II. Is a stamp tax on a bill of lading a duty on exports?

It is said to be an indirect tax on exports, because the jury have found 'that it is the usual and invariable custom to make and issue such bills of lading,' &c., and 'no vessel or steamer could practically fill up with, or obtain freight,' unless the matter executes one.

It is submitted that the argument proves quite too much, and if once admitted, would inaugurate a most dangerous system of construction, and under which all right of taxation might be taken away from a State, thus leaving it shorn of powers which were never intended to be abandoned, and which are absolutely indispensable to its existence.

Drays and carts are necessary for loading merchandise on board of ships. 'It is the usual and invariable custom to employ them.' 'No vessel could practically fill up without them.' Cannot a State tax drays and carts?

In Mobile harbor, and many others, large vessels cannot load at all without the aid of lighters. Is the State of Alabama without power to tax lighters?

This law taxes policies of insurance, as well as bills of lading. Scarcely an argument will apply to one class of these papers that will not apply to the other. If everything that operates indirectly to enhance the cost of conveying merchandise is a duty on exports, what State tax could not, by ingenious construction, be demonstrated to have that effect?

Nearly all the States tax foreign insurance agencies established within their borders; to pay their tax, rates of premium must be enhanced. Therefore, the ship-owner who pays this enhanced premium must charge a higher freight to the exporter, and it might hence be argued that the tax was unconstitutional. All such lines of argument are fanciful, dangerous, and subversive of the true meaning of the Constitution.

No man is by the law in question forbidden to ship his gold-dust. He may accompany it. He may send an agent to take care of it; he may make a valid parol contract for its delivery abroad, and take twenty witnesses, in order to retain the evidence of his contract; but, if he wishes to reduce it to writing within the State, he must put his writing on a paper on which the State of California has levied a stamp tax.

It is worthy of notice, that in the draft of the Constitution offered in Convention by Mr. Patterson, of New Jersey, there was an express authority in Congress to raise revenue 'by stamps on paper, vellum, or parchment.'

1 Elliott's Debates, 175.

Yet, notwithstanding the fact that the attention of the Convention was thus specially directed to this precise tax, no attempt was made to inhibit its exercise by the States.

Suppose a State should, as a source of revenue, establish in its own favor a monopoly of the retail traffic within the State in paper, vellum, and parchment, just as some foreign nations do with tobacco; it is obvious that it might thus fix on paper a price far exceeding its value in open market, and fully equal to a stamp tax, and thereby enhance the cost of all written contracts, including bills of lading, invoices, and marine policies; but in what just sense could this be called either a regulation of commerce between the States or a duty on exports?

The great cause of the present alarming crisis in public affairs is the disposition to which men are so prone of construing the Constitution, instead of reading it; of trenching on the rights of States by interpretation, instead of respecting as sacred all such as are not plainly and expressly prohibited.

Now, this power of taxation by a State is that which was most jealously watched, and apprehensions in relation to a check on its exercise formed the chief objection urged against the adoption of the Constitution. The history of all the State Conventions shows this.

The precise point in this case seems to be covered by the very language of the Chief Justice in the passenger cases. Speaking of the State, he says:

'They are expressly prohibited from laying any duties on imports or exports, except what may be absolutely necessary for executing their inspection laws. So far their taxing power over commerce is restrained, but no farther. They retain all the rest; and if money demanded is a tax upon commerce, or the instrument or vehicle of commerce, it furnishes no objection to it, unless it is a duty on imports, [or exports,] or a tonnage duty, for these alone are forbidden.'

7 Howard, 480.

The argument on this whole subject, however, has been so completely exhausted in the various adjudications of this court, with which its members are thoroughly familiar, that nothing more could be required than the simple reference to them already made; and on them the State of California rests her case.

Mr. Chief Justice TANEY delivered the opinion of the court. The only question in this case is upon the constitutionality of a law of California, imposing a stamp tax upon bills of lading.

By an act passed by the Legislature of that State to provide a revenue for the support of the Government from a stamp tax on certain instruments of writing, among other instruments mentioned in the law, a stamp tax was imposed on bills of lading for the transportation from any point or place in that State, to any point or place without the State, of gold or silver coin, in whole or in part, gold-dust, or gold or silver in bars or other form; and the law requires that there shall be attached to the bill of lading, or stamped thereon, a stamp or stamps, expressing in value the amount of such tax or duty.

By a previous law upon the same subject it was made a misdemeanor, punishable by fine, to use any paper without a stamp, where the law required stamped paper to be used.

After the passage of these acts, Almy, the plaintiff in error, being the master of the ship Ratler, then lying in the port of San Francisco, and bound to New York, received a quantity of gold-dust for transportation to New York, for which he signed a bill of lading upon unstamped paper, and without having any stamp attached to it. For this disobedience to the law of California he was indicted in the Court of Sessions for a misdemeanor, and at the trial the jury found a special verdict setting out particularly the facts, of which the above is a brief summary; and upon the return of the verdict the counsel for the defendant moved for a judgment of acquittal, upon the ground that the law of California was repugnant to the Constitution of the United States. But the court decided that the State law was not repugnant to the Constitution of the United States, and adjudged that Almy should pay a fine of $100 for this offence. And the Court of Sessions being the highest court of the State which had jurisdiction of the matter in controversy, this writ of error is brought to revise that judgment.

We think this case cannot be distinguished from that of Brown v. the State of Maryland, reported in 12 Wheat., 419. That case was decided in 1827, and the decision has always been regarded and followed as the true construction of the clause of the Constitution now in question.

The case was this: The State of Maryland, in order to raise a revenue for State purposes, among other things required all importers of certain foreign articles and commodities enumerated in the law, or other persons selling the same by wholesale, before they were authorized to sell, to take out a license, for which they should pay $50; and in case of refusal or neglect, should forfeit the amount of the license tax, and pay a fine of $100, to be recovered by indictment.

Brown, who was an importing merchant, residing in Baltimore, refused to pay the tax, and was thereupon indicted in the State court, which sustained the validity of the State law, and imposed the penalty therein prescribed. This judgment was removed to this court by writ of error, and it will be seen by the report of the case that it was elaborately argued on both sides, and the opinion of the court, delivered by Chief Justice Marshall, shows that it was carefully and fully considered by the court. And the court decided that this State law was a tax on imports, and that the mode of imposing it, by giving it the form of a tax on the occupation of importer, merely varied the form in which the tax was imposed, without varying the substance.

So in the case before us. If the tax was laid on the gold or silver exported, every one would see that it was repugnant to the Constitution of the United States, which in express terms declares that 'no State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws.'

But a tax or duty on a bill of lading, although differing in form from a duty on the article shipped, is in substance the same thing; for a bill of lading, or some written instrument of the same import, is necessarily always associated with every shipment of articles of commerce from the ports of one country to those of another. The necessities of commerce require it. And it is hardly less necessary to the existence of such commerce than casks to cover tobacco, or bagging to cover cotton, when such articles are exported to a foreign country; for no one would put his property in the hands of a ship-master without taking written evidence of its receipt on board the vessel, and the purposes for which it was placed in his hands. The merchant could not send an agent with every vessel, to inform the consignee of the cargo what articles he had shipped, and prove the contract of the master if he failed to deliver them in safety. A bill of lading, therefore, or some equivalent instrument of writing, is invariably associated with every cargo of merchandise exported to a foreign country, and consequently a duty upon that is, in substance and effect, a duty on the article exported. And if the law of California is constitutional, then every cargo of every description exported from the United States may be made to pay an export duty to the State, provided the tax is imposed in the form of a tax on the bill of lading, and this in direct opposition to the plain and express prohibition in the Constitution of the United States.

In the case now before the court, the intention to tax the export of gold and silver, in the form of a tax on the bill of lading, is too plain to be mistaken. The duty is imposed only upon bills of lading of gold and silver, and not upon articles of any other description. And we think it is impossible to assign a reason for imposing the duty upon the one and not upon the other, unless it was intended to lay a tax on the gold and silver exported, while all other articles were exempted from the charge. If it was intended merely as a stamp duty on a particular description of paper, the bill of lading of any other cargo is in the same form, and executed in the same manner and for the same purposes, as one for gold and silver, and so far as the instrument of writing was concerned, there could hardly be a reason for taxing one and not the other.

In the judgment of this court the State tax in question is a duty upon the export of gold and silver, and consequently repugnant to the clause in the Constitution hereinbefore referred to; and the judgment of the Court of Sessions must therefore be reversed.

title: Almy v. California/Opinion of the Court


text: Talk:Almy v. California/Opinion of the Court


text: Meehan v. Forsyth

title: Meehan v. Forsyth


text: Talk:Meehan v. Forsyth

title: Talk:Meehan v. Forsyth


text:
Meehan v. Forsyth/Opinion of the Court

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

The case is stated in the opinion of the court.

It was argued by Mr. Ballance for the plaintiffs in error, and by Mr. Williams for the defendant.

Mr. Justice CAMPBELL delivered the opinion of the court. This is an action of ejectment commenced in the Circuit. Court for the recovery of a part of two lots of land in the city of Peoria by the defendant in error against the plaintiffs in error.

The title of the plaintiff in the Circuit Court (Forsyth) originated in the claim of Antoine Lapance, an inhabitant within the purview of the act of Congress, approved March 3d, 1823, entitled 'An act to confirm certain claims to lots in the village of Peoria, in the State of Illinois,' which was surveyed the first of September, 1840, by the surveyor of public lands, and for which a patent issued on the first day of February, 1847. The plaintiff produced from the surveyor general's office a certified copy of the survey, according to which the location of the claim was made. This testimony was objected to, but was received by the court, and we think properly. An original of the plan of survey is retained in the office of the surveyor general, and a copy given by that officer, who is required to keep it, upon general principles is admissible in evidence. United States v. Percheman, 7 Pet., 51.

It was agreed on the trial, that the defendant Ballance, and those under him, had been in possession of the premises more than ten years before the commencement of the suit. This possession was shown by the facts, that he had cultivated a portion of the quarter section described in his patent for more than twenty years, and had resided on the quarter section for twelve years, and had paid taxes upon this parcel of land as a part of the said quarter section, but not as a separate subdivision. The plaintiff had not paid any of the taxes during that period. The defendant Ballance made an entry of the quarter section, of which the lot in controversy forms a part, in 1837, and a patent issued to him in 1838, by which the United States gave and granted to him and his heirs, subject to the rights of any and all persons claiming under the act of Congress of 3d March, 1823, before referred to.

The defendant moved the court to instruct the jury, that if they believe from the evidence that said Ballance has had the actual possession by residence on the land in controversy for more than seven years, under the title he has exhibited, the plaintiff cannot recover; and that the words in the patent of Ballance of January 28, 1838, 'subject, however, to the rights of all persons claiming under the act of Congress of March 3d, 1823, entitled 'An act to confirm certain claims to lots in the village of Peoria, in the State of Illinois,' cannot operate as to lessen the estate vested by the granting part of the deed.'

The court declined to give these instructions, but charged the jury: 'That to constitute an adverse possession against the French claimants by the possession of another portion of the quarter section by the defendant, as his tenant, entry and possession must have been under a claim of title inconsistent with that of the French claimants. If the entry and possession were subject to the rights of the claimants existing under the acts of Congress, then such possession as stated could not be adverse, so long as that possession did not actually extend to the lot sued for.'

The court further instructed the jury: 'That when the defendant made application for a pre-emption, he stated it was made subservient to these French claims; and when the patent was issued by the Government to him for this fractional quarter, it was made subject to these claims; therefore, the grant made by the Government, as contained in the patent, did not necessarily operate as a conveyance of the entire quarter section to the grantee, but the clause inserted in the patent had the effect of excluding from the operation of the grant that portion of the quarter covered by these French claims; consequently, if at the time of the grant to Ballance there was any one capable of taking lot 63, under the acts of Congress of 1820 and 1823, then lot 63 was excluded by law and by the terms of the grant, and was excepted, (in other words, lot 63 was not granted to Ballance,) and he took his title subject to such exclusion or exception.'

We think that the Circuit Court erred in its interpretation of this patent. The patent recites that 'full payment' had been made by the grantee for the southwest fractional quarter of section nine, in township eight north, of range eight east, containing one hundred and forty-seven 43-100ths acres, according to the official plat of the survey of said lands returned to the General Land Office by the surveyor general; which said tract has been purchased by Charles Ballance. It proceeds to declare that the United States had given and granted the said tract above described, to have and to hold the same to him and his heirs, subject, however, to the rights of any and all persons claiming, &c., &c. This saving clause was designed to exonerate the United States from any claim of the patentee, in the event of his ouster by persons claiming under the acts referred to, and cannot be construed as separating any lots or parcels of land from the operation of the grant, or as affording another confirmation of titles existing under the acts of Congress described in it. The possession of Ballance, under this patent, was adverse to that of the claimants under the acts of 1820 and 1823, in every case in which their claim was not specifically admitted by him. He was in no sense their tenant, nor did the saving in the act create any fiduciary relation between him and any other person, so as to prevent the operation of the statute of limitations. The patent does not impose upon him any duty to recognise these claims. It only requires him to accept the title of the United States with knowledge that such claims exist, and that they do not intend to deny or to destroy them, nor to defend his title against them.

The case of Bryan v. Forsyth, 19 How., 334, involved a controversy for a lot in the city of Peoria, similarly situated as that which forms the subject of this suit. The court, in that case, said that a patent with a saving like that we are considering was a fee-simple title in its face, and is such a title as will afford protection to those claiming under it, either directly or having a title connected with it, with possession for seven years, as required by the statute of Illinois.

The act of limitations of Illinois (Revised Statutes, 349, sec. 8) protects the claim of a person for lands, which has been possessed by actual residence thereon, having a connected title in law or equity, deducible of record from that State or the United States.

The title of the defendant, and the possession which he was admitted to have had, fulfilled the requisitions of the law, and the court should have given the instructions asked for, and erred in giving the instructions submitted to the jury.

Judgment reversed and cause remanded.

title: Meehan v. Forsyth/Opinion of the Court


text: Talk:Meehan v. Forsyth/Opinion of the Court


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Gregg v. Forsyth (65 U.S. 179)

THIS case, like the preceding, of which it was a branch, was also brought up by writ of error from the Circuit Court of the United States for the northern district of Illinois, and was argued together with it by the same counsel.

Mr. Justice CAMPBELL delivered the opinion of the court.

title: Gregg v. Forsyth (65 U.S. 179)


text: Talk:Gregg v. Forsyth (65 U.S. 179)

title: Talk:Gregg v. Forsyth (65 U.S. 179)


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Gregg v. Forsyth (65 U.S. 179)/Opinion of the Court

This was an action of ejectment for a lot of land in the city of Peoria, in the State of Illinois, commenced by the defendant in error against the plaintiffs in error.

The title of the plaintiff in the Circuit Court is shown by a patent of the United States in favor of the legal representatives of Antoine Lapance, who was an inhabitant or settler within the purview of the act of Congress approved 3d March, 1823, entitled 'An act to confirm certain claims to lots in the village of Peoria, in the State of Illinois,' which patent bears date the first day of February, 1847, and is founded upon an official survey of the first of September, 1840. The plaintiff deraigned his title from the patentees. In tracing his title he read a document relevant to the cause from a volume of American State Papers, Public Lands, selected and edited under the authority of the Senate of the United States, by its Secretary, and printed by Duff Green. This was objected to, and the question reserved by the defendants. The volumes of the American State Papers, three of which were published by Duff Green, under the revision of the Secretary of the Senate, by order of the Senate, contain authentic papers which are admissible as testimony without further proof.

Watkins v. Holman, 16 Pet., 25. The plaintiff read a copy of a deed from the the public records, the original of which was not in the possession of the plaintiff, and which, upon inquiry of the persons with whom it had been deposited, he was informed had been lost. This testimony authorized the admission of the copy as evidence. The deed in question had been regularly recorded. No suspicion attached to the instrument, and there was no reason to suppose that the better testimony was fraudulently withheld or could have been obtained by further inquiry. Minor v. Tillotson, 7 Pet., 99.

He also read in evidence a record of a suit of partition in the Circuit Court of Peoria county, which resulted in a decree of sale of the interests of a number of the parties, under which the plaintiff derived his title as a purchaser. The defendants objected to the record and deed of sale, because the sale had not been conducted with regularity, and the decree of sale had been rendered against infants, by default, and because it did not prescribe the manner of the sale. These, with other objections, were properly overruled by the Circuit Court. The defendants were strangers to these proceedings, and cannot be allowed to object to a result of which the parties to the decree have not complained.

The title of the defendants consisted of a patent from the United States to the defendant, Ballance, in January, 1838, for a fractional quarter section of land that includes the lot in controversy, and containing a saving of the rights of any and all persons claiming under the act of Congress of 3d March, 1823, entitled 'An act to confirm certain claims to lots in the village of Peoria, in the State of Illinois.' He made proof that he had resided on this quarter since 1844, and had cultivated portions of it for a long time previously, and had before and since that date let other portions of it to tenants who occupied it under him, and that the particular lot in controversy had been occupied by one of these tenants, who had upon it a distillery. Among other instructions, the defendants requested the court to charge the jury, 'that if they should believe from the evidence that said Ballance, being in possession under the title he has exhibited, leased the particular spot of ground in controversy to Almiron S.C.ole more than seven years before the commencement of this suit, and that said Cole took possession thereof, and built a steam distillery and other fixtures thereon more than seven years before the commencement of this suit, and that said Cole held possession thereof, and occupied it as a place of business, until he sold said establishment to Sylvanus Thompson, and that Sylvanus Thompson and his son-in-law, Richard Gregg, the defendant, occupied the same until the death of Thompson, and that said Gregg occupied the same until the commencement of this suit, the plaintiff is not entitled to recover in this suit; that it was not necessary for this defence that either the said Cole, Thompson, or Gregg, should have had his dwelling-house on the particular lot; it is sufficient if they lived in the vicinity and occupied the lot in controversy as their place of business.' The Circuit Court refused to give these instructions, but charged the jury, 'that if Ballance had his house on one part of the quarter, and his improvement extended over and included the lot in controversy, so as to be connected with his residence, and to form part thereof, or it was used in connection therewith, that would, within the meaning of the law, constitute actual residence. If Ballance built on one part of the quarter, and this lot was left vacant and unoccupied and unimproved, that would not, as to that lot, constitute an actual residence.

If Ballance, his tenants, or those holding under him, actually resided on a lot adjoining lot 63 for seven years immediately preceding the commencement of this suit, and during all that time occupied lot 63 as a place of business, as part and parcel of the premises so resided on by them, that would constitute an actual residence within the meaning of the law, as to this lot in controversy. It is proper for the jury to consider the circumstances of the subdivision of the land into lots and blocks by Ballance, in April, 1846, and whether a severance of the holding as to the particular lots and blocks so subdivided was thereby enacted. When ground is subdivided in that manner under our law, there can be no doubt that different lots and blocks may be so occupied as to constitute an actual residence in them all; but ordinarily, in case of subdivision, the construction of a house on a separate lot or block, and a residence therein, without any connection with adjoining or neighboring lots or blocks, does not constitute an actual residence as to the whole. It is for the jury to determine whether the facts and circumstances stated by the defendant, Ballance, or those claiming under him, made them actual residents of the lot in controversy, for seven years before the commencement of this suit. If they did, then the defendants are within the protection of the statute; otherwise not.'

This court, in the cases of Bryan v. Forsyth, 19 How., 334, and again in Meehan v. Forsyth, at this term, have decided that the saving in the patent under which the defendants claim did not create any fiduciary relation between the claimants under the act of Congress of 1823, referred to in it, and the patentee; and that the possession of Ballance, under his patent, was an adverse possession, unless another relation had been created by contract between them subsequently to the issuing of the patent. The present inquiry is, by what evidence must the actual residence on the land be supported to enable the patentee to have the benefit of the act of limitations for seven years? And it has been generally held, that the residence and possession of land for seven years by a tenant inures to the benefit of the landlord, so as to secure for him the protection of the act; and that this protection is not confined to the particular close upon which the claimant resides, but also extends to the entire parcel of land of which the legal possession has been maintained as a consequence of his actual possession and residence.

Poage v. Chinn, 4 Dana Ky. R., 50.

The case of Williams v. Ballance, 23 Ill., 193, involved a controversy similar to that before the court.

The inquiry there was as to the validity of the residence and possession of Ballance to support his defence of the statute of limitations, it being the residence and possession established by the testimony in this suit. The Supreme Court of Illinois inquires whether Ballance occupied the premises described in the patent since 1844, by actual residence thereon. 'The fact,' says the court, 'is that he did, but he did not reside upon every square yard of the premises, nor upon the particular lot. Nor was this necessary. He resided upon the legal subdivision described in the patent, the evidence of his title, and possessed and occupied it by himself and tenants. We think the laying out the land into town lots did not deprive him of the benefit of the statute of limitations of 1835, as to all the fractional quarter, except the particular lot upon which his house stood. He had a right to divide it into as many lots, or portions, or divisions, as he pleased, and put a separate tenant on each, and their occupation would be his possession: and the law only required him to possess and reside upon the premises claimed by his title-papers, but the law does not say upon what portion he should reside, and, above all, it does not declare that he should reside upon every portion of it.' The instructions of the Circuit Court are inconsistent with the law as thus laid down by the Supreme Court. In our opinion, the possession established by Ballance in this case was such as placed him under the protection of the statute.

Judgment reversed and cause remanded.


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Ballance v. Forsyth (65 U.S. 183)

THIS was an appeal from the Circuit Court of the United States for the northern district of Illinois.

It was a sequel to the case of Ballance v. Forsyth, reported in 13 Howard, 18. After the mandate went down from this court, Ballance filed a bill on the equity side of the court, setting forth the same titles that were involved in the suit at law, and praying relief upon certain special grounds, which it is not necessary to enumerate.

It was argued by the same counsel as the two preceding cases.

Mr. Justice CAMPBELL delivered the opinion of the court.

title: Ballance v. Forsyth (65 U.S. 183)


text: Talk:Ballance v. Forsyth (65 U.S. 183)

title: Talk:Ballance v. Forsyth (65 U.S. 183)


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Ballance v. Forsyth (65 U.S. 183)/Opinion of the Court

This is a bill filed by the plaintiff to enjoin the execution of a judgment in the Circuit Court, upon which a writ of error had been taken to this court and affirmed.

The cause in this court was between the same parties, and the decision of the court is reported in 13 How. S.C.. R., 18.

The plaintiff sets forth the claims of the respective parties, and insists that his is the superior right, and that he is entitled to have the property. But it is not allowable to him to appeal from the judgment of the Circuit Court and Supreme Court to a court of chancery upon the relative merit of the legal titles involved in the controversy they had adjudicated.

He further objects to the title of his adversaries. He insists, that in the location of their claim under the acts of May, 1820, and March, 1823, referred to in the report of the case as the source of their title, there was an erroneous location and survey, and that a larger extent of ground was conceded to them than they were entitled to; that the plan of survey did not conform to the requirement of Congress, and that their proofs were not filed in time. If either of these objections is of sufficient force to invalidate the title and to render it void, it should have been urged upon the trial at law, and it is too late after judgment upon the title to employ it to contest the issuing of the execution. But if they are mere irregularities, the court of chancery has no jurisdiction to notice them. It is the settled doctrine of this court, that in the location and survey of claims arising under the acts of Congress like those of May, 1820, and March, 1823, the Executive Department of the Government has, in general, exclusive jurisdiction, and that all questions arising upon their location and survey are administrative in their nature, and must be disposed of in the Land Office.

The plaintiff was aware of the existence of these claims, and of the jurisdiction to which their adjustment was confided.

His patent contains an explicit reservation of the rights of any and all persons claiming under the act of Congress of 3d March, 1823, entitled 'An act to confirm certain claims to lots in the village of Peoria, in the State of Illinois.' If he pretermitted his opposition to their location and survey before the General Land Office, he is concluded by his laches. If his opposition was made unsuccessfully, the decision of that department upon his objections is binding upon him.

Besides these objections, the plaintiff has introduced into the record a claim for the improvements upon the lots recovered by the judgment of the Circuit Court. It is not at all clear that the amendments to the bill in which this claim is contained were filed with leave, and form any part of the bill. It is not charged in them that the plaintiffs in the suits at law have opposed any obstruction to his removal of the improvements, and the entire statement of the bill concerning them is vague and unsatisfactory. We are unable to find in them any ground upon which the suspension of the execution of the judgment can be justified.

The decree of the Circuit Court is affirmed.


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Kellogg v. Forsyth (65 U.S. 186)

THIS was a branch of the three preceding cases, coming up from the same court.

Mr. Williams, counsel for the defendant in error, moved to dismiss the writ for the following reasons, viz:

That it is manifest by the record filed in this court in the said cause that the said writ of error was issued on the 15th day of July, 1859.

That the clerk's return thereto was filed with the clerk of this court on the 3d day of October, 1859.

That said return contains nothing but affidavits of the death, &c., of the original defendant, the writ of error, a bond to prosecute the same, a citation and acknowledgment of the service thereof.

That the detached record filed by the plaintiff, with the said return, was certified by the clerk of the Circuit Court on the 25th day of October, 1856, and is not attached to said return, or in any way referred to therein.

And therefore, he says, for said irregularities in the said proceedings patent on the face of the record of said cause, the said writ of error ought to be dismissed.

See Rules, Nos. 8 and 9.

Mr. Justice CAMPBELL delivered the opinion of the court.

title: Kellogg v. Forsyth (65 U.S. 186)


text: Talk:Kellogg v. Forsyth (65 U.S. 186)

title: Talk:Kellogg v. Forsyth (65 U.S. 186)


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Kellogg v. Forsyth (65 U.S. 186)/Opinion of the Court

The defendant in error recovered a judgment in ejectment in the Circuit Court of the United States for the northern district of Illinois against William Kellogg, deceased, as tenant in possession of a parcel of land in that district. After the judgment, the defendant died. The attorney of the decedent, who was also his landlord, and who had conducted the suit on behalf and in the name of the tenant, with his consent, sued out a writ of error to this court in the name of the heirs of said Kellogg. The bond for the prosecution of the writ, and the stipulation for costs in this court, have been supplied by the said attorney. One of the heirs of Kellogg objects to the prosecution of the writ of error, and alleges, on behalf of himself and his coheirs, that it is prosecuted without authority, and that they have no desire that it should be maintained, and authorize the attorney of the defendant in error to move for its dismissal. It appears to the court that the attorney of the deceased defendant is a bona fide claimant of the land, and that he is prosecuting the writ of error in good faith. That he is responsible for the costs and damages that may arise from the use of the names of the plaintiffs in error. The statutes of Illinois require that the declaration in ejectment shall be served upon the actual occupant, and the practice of the courts of that State authorizes the appearance of the landlord, and his defence of the suit, either in his own name or that of the tenant, with his consent. Williams v. Brunton, 3 Gilman R., 600.

And when a landlord has undertaken the defence of a suit in the name of the tenant, with his consent, the tenant cannot interfere with the cause to his prejudice. Doe v. Franklin, 7 Taun., 9. We think it was competent to the landlord to use the names of the plaintiffs to prosecute his writ of error upon his engagement to bear all the costs and expenses of the suit. Should the judgment be reversed, and the cause remanded to the Circuit Court for further proceedings, he may apply in that court for leave to become defendant, instead of the heirs of the tenant.

Motion to dismiss overruled.


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Richardson v. City of Boston (65 U.S. 188)

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

It was an action for the continuance of an alleged nuisance from 13th September, 1850, to 15th April, 1852. It will hereafter appear why the first of these dates was named.

The nuisance charged is described in two preceding cases, viz: City of Boston v. Lecraw, 17 How., 426, and Richardson v. City of Boston, 19 How., 263. Without noticing at present the first-named case, it may be proper to give the history of the present one.

The action was brought by Richardson in the Circuit Court of Massachusetts to October term, 1850.

1851, March. General issue pleaded, and special plea; plaintiff demurs to special plea.

1851, April. Plaintiff has leave to amend his declaration by adding two counts.

1851, May. A statement of facts submitted.

1851, October. Agreement of counsel that the case should be carried to the Supreme Court.

1852, May. Plaintiff has leave to amend declaration.

1852, October. Boston files petition to remove the case, because Mr. Justice Curtis had been counsel, and Judge Sprague was interested; removed to Rhode Island.


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Richardson v. City of Boston (65 U.S. 188)/Opinion of the Court

1853, June. Argued before Judge Pitman on the agreed statement of facts; verdict guilty; damages and costs, $2,026.87 up to 13th September, 1850; judgment on sixth count; motion for new trial; pending which, the case of Lecraw v. City of Boston was decided by this court, as reported in 17 How.; case continued by agreement.

1855, June. New trial granted; plaintiff amends writ and declaration by adding a count, which is the subject of comment by this court in the present opinion; verdict not guilty; plaintiff sues out writ of error, and brings the case up to this court to December term, 1855.

1856, December term of this court. Case tried, and reported in 19 How., 263; judgment reversed.

1857, November term of Circuit Court. Mandate from this court presented; new trial ordered.

1858, June term. Plaintiff amends writ and declaration by striking out the words constituting the ad damnum in said writ, as the same now stands, and inserting in lieu thereof the words following, viz: 'ten thousand dollars.'

By S. BARTLETT, his Attorney.

And now, by agreement of parties, and with the leave of the court here, plaintiff amends the several counts of his declaration by striking therefrom such parts thereof as claim damages for the injury to the ends of his wharves by material deposition near the same, by means of the structure complained of.

The case then went on to trial before Mr. Justice Clifford and Judge Pitman. Under the instructions which were given by the court, the jury found a verdict for the defendant, and the plaintiff again brought the case up to this court by a writ of error.

The bill of exception was very long, and included the record of the former case, together with a vast quantity of other matter. The instruction of the court, admitting this record in evidence, was as follows:

'That the record of the former verdict and judgment is admissible in evidence; but inasmuch as it appears that the verdict was found by the jury under an erroneous instruction given by the court, the judgment is entitled to very little weight upon the question of the right to recover in this case, and none whatever upon the question whether the supposed way or dock before described was duly laid out and established by the town of Boston, or the authorities thereof, pursuant to law, either as a public highway, town way, or public way, for the access of boats and vessels to high water, or the egress therefrom to the sea, as is alleged in the seventh count of the plaintiff's declaration.'

The record above referred to was in a case decided by me upon an agreed statement of facts, which was excluded in this case. It was therein admitted by the defendant that the place between the said wharves was 'an ancient public dock or highway.' This fact, and the case having been submitted to Judge Sprague, and decided by him in favor of the plaintiff before the case was sent to the Rhode Island district, I was disposed to decide the same way, unless I saw it was manifestly erroneous. It was to be determined under the law of Massachusetts, with which I believed he was much better acquainted than myself. I did not, therefore, so critically examine the documents in the case, and their legal effect, as I have since done. Since the decision of the Supreme Court of the United States in the case of Lecraw v. City of Boston, I have considered the opinion erroneous which I then delivered, and the judgment as entitled to no weight for that reason as evidence to a jury, and therefore I excluded the judgment from the consideration of the jury in the former trial. I am now of the opinion that it is entitled to no weight, though it be admissible.

I did not decide that the supposed way was laid out as a way for boats and vessels by the town of Boston or its authorities. I instructed the jury that the plaintiff was entitled to recover upon the sixth count of his declaration, the one on which he rested his case, and they found a verdict accordingly.

JOHN PITMAN, District Judge U.S., R. Island District.

SEPTEMBER 16, 1858.

The case was argued in this court by Mr. Badger and Mr. Carlisle for the plaintiff in error, and Mr. Cushing and Mr. Chandler for the defendant.

The arguments of the counsel upon the construction of the previous decisions of this court and upon the admissibility of the indictments, (a question reserved in the course of the trial,) and also upon the powers and acts of the town council as far back as 1635, are considered to be so local in their application as to justify the reporter in omitting them.

Mr. Justice GRIER delivered the opinion of the court.

This is the third time in which this claim to have damages from the city of Boston, for erecting drains and sewers on their own land for the preservation of the health of the city, has come before us.

The plaintiff is the owner of two wharves, called Bull's wharf and Price's wharf, running from high-water to low-water mark. The space between these two wharves belongs to the city of Boston, being situated at the foot of Summer street; and as it was but thirty feet wide, it became, by the mere accident of its position, a very convenient dock, or slip, for plaintiff, so long as the city did not see fit to reclaim their land. Formerly, the drains and sewers which ran under Summer street discharged at the end of that street at high-water mark; but, as the city increased, this discharge of drainage became pestilential, and a nuisance to the neighborhood. To remedy this evil, the city was compelled to extend their drains out to low-water mark, and this is the nuisance complained of in this and the other suits.

The case of Lecraw v. Boston (to be found in 17th Howard, 426) first introduced this controversy to this court. Lecraw was tenant of Richardson, and his title consequently the same. It was claimed that the city of Boston, by not wharfing out their land at the end of Summer street, had dedicated it to the public, or rather to the private use of Richardson, to whose wharves it afforded a most convenient dock or slip. This claim was declared by this court to be wholly without foundation; and that 'whether it was called 'town dock' or 'public dock,' it would furnish no ground to presume that the city had parted with their right to govern and use it in the manner most beneficial to the citizens.'

It is not our purpose to again discuss this question, or again repeat the arguments and principles on which our judgment was founded. The correctness of that decision has not been impugned or denied, and it needs no interpretation.

During the pendency of this suit of Lecraw, the tenant, and before its decision in this court, Richardson had brought a suit for damage to his reversion by the same alleged nuisances, and the verdict and judgment being for less than two thousand dollars, the city could not have a writ of error to reverse it, as in the other case. When the present case came on for trial, the decision of this court in the Lecraw case being known, in order, if possible, to avoid the effect of that decision, a new count was added to the declaration, drawn with great ingenuity and subtlety, charging that 'there had been A HIGHWAY, or TOWN WAY, or PUBLIC WAY, to the sea or low water, duly laid out and established pursuant to law;' and that the drains made by the city had 'caused mud, earth, and other materials, to be thrown and deposited upon and near the said wharves.'

The report of our decision on this case will be found in 19th Howard, 263.

We then decided that a former verdict and judgment in an action on the case for continuance of the same nuisance was not conclusive evidence, but is permitted to go to the jury as persuasive evidence. We stated in what cases it ought to have weight, and in what it could have little or none, as where the former verdict was the result of an erroneous instruction on the law by the court.

As the additional count, on which the plaintiff relied, was rather equivocal or ambiguous, as to what was meant by a 'highway or town way' to the sea or low-water mark, we decided that public officers of a town have no power to lay out a town way between high water and the channel of a navigable river. A board of pilots may mark by buoys the best channel for vessels in a bay; but this would hardly be called a 'town way on the ocean.' Indeed, it did not seem to be seriously contended on the argument that the selectmen in 1683 had assumed or intended to extend a street or town way by water over the great ocean highway. But as the city of Boston was owner of the soil between high and low-water mark, it had equal right to reclaim the land as other owners; and having done so, a street or 'town way' might be established thereon.

The court decided that, if the land was so reclaimed, and a highway laid out on it, the right to use it as a street or highway on land becomes appurtenant to the property of the adjoiners, who might well maintain an action for a nuisance on such street or highway.

The plaintiff had alleged in this count that he had received damage to his wharf by accretions of mud, &c., below low-water mark, and there was some evidence to support the allegation. The court decided that this fact should have been submitted to the jury. It was a question entirely distinct and separate from a claim of right of highway in the dock.

With this history of the antecedents of this case, there can be no difficulty in disposing of the exceptions.

The first exception is to the admission of the bills of indictment against the city. They constituted part of the history of the case, and were referred to in the testimony of the plaintiff, and were, therefore, not wholly irrelevant. They tended to show 'that the conduct of the city,' as disclosed by the evidence, did not 'tend to oppression,' as has been charged in the argument in this court.

The next exception is to the charge of the court in their instruction, that the former verdict and judgment, though admitted in evidence, should have little or no weight on the decision of the case, because it was founded on erroneous instructions on the law. This instruction was in exact conformity with the ruling of this court. The verdict was on an agreed statement of facts, not now disputed, on which the court gave an opinion, since decided by this court to be a mistake. Like many other matters given in evidence to support a case, this verdict was received as not irrelevant, although the proof on the other side might show it to be worthless.

The last exception is to the charge of the court, 'that there is not any evidence in the case which will authorize the jury to find that the supposed way or dock between the plaintiff's wharves, from high to low-water mark, for the free egress and ingress of boats and vessels to and from the same, as alleged and described in the seventh count in his declaration, was ever dedicated by the town or city of Boston to the public use, either as a public highway, town way, dock, or public way, for the access of boats and vessels between said wharves to high-water mark, or the egress therefrom to the sea. That there is not any evidence in the case which will authorize the jury to find that the supposed way or dock between the plaintiff's wharves, from high to low-water mark, for the egress and ingress of boats and vessels to and from the same, as alleged and described in the seventh count in his declaration, was ever duly laid out and established by the town of Boston, or the authorities thereof, pursuant to law, either as a public highway, town way, or public way, for the access of boats and vessels between said wharves to high-water mark, or the egress therefrom to the sea.'

This instruction is in entire conformity with the previous decisions of this court on this subject.

There was nothing, in the opinion of this court, which should subject it to the misconstruction of having decided that a 'town way' for boats and vessels could be laid out on the high seas, or of imputing to the town officers such an obliquity of understanding as the assumption of such a power would argue; on the contrary, the court decided that the public officers had no such power; but that the city, after it reclaimed the land to high-water mark, might continue Summer street as a highway on land, for a nuisance, to which the plaintiff might sustain an action; and this case was remanded in order to give the plaintiff an opportunity to have the verdict of the jury on this subject; and also for any injury he might have sustained by the drains causing an accumulation of matter at the outer end of the plaintiff's wharves. The record shows that the plaintiff abandoned any claim for damages for either of these causes, and he was, of course, left without any case to be submitted to the jury.

Judgment of the Circuit Court is therefore affirmed, with costs.


text: Talk:Richardson v. City of Boston (65 U.S. 188)/Opinion of the Court


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Nations v. Johnson

THIS case was brought up by writ of error from the District Court of the United States for the western district of Texas.

All the facts in the case, and also the proceedings of the court below, are set forth in the opinion of this court.

It was argued by Mr. Paschal for the plaintiffs in error, no counsel appearing for the defendants.

Mr. Paschal commenced his argument by stating it as a general principle, that a judgment obtained by publication and without personal service cannot be the foundation of an action in another State, nor, indeed, in the State where the suit is brought; that all suits are either in personam or in rem; that when in personam, there must be personal service to give jurisdiction; when in rem, the remedy is exhausted when the res is disposed of. Amongst other authorities, he cited 3 Howard, 336, and 11 Howard, 437. He then considered the effect of the statute of Mississippi, which he said did not change the principle. When the suit was dismissed, it was a final judgment, a discharge of the defendants, who had no longer a day in court. A writ of error is an original writ.

2 Tidd's Practice, 1134.

Coke Littleton, 298 b.

2 Wm. Sand, 5 Ed., 100.

And a writ of error, like a scire facias, is considered a new action, and, therefore, upon bringing it, the defendant in the original action may change his attorney, without obtaining a judge's order therefor.

2 Tidd's Practice, 1141.

Batchellor v. Ellis, 7 Dunford and East., 337.

Mr. Paschal then proceeded to examint the authorities as to the nature of a writ of error.

11 Howard, 165, 437.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Nations v. Johnson


text: Talk:Nations v. Johnson

title: Talk:Nations v. Johnson


text:
Nations v. Johnson/Opinion of the Court

This case comes before the court upon a writ of error to the District Court of the United States for the western district of Texas. It was a petitory suit, commenced by the present defendants, and was founded upon a certain final decree rendered at the April term, 1854, by the district chancery court, held at Carrollton, in the State of Mississippi, for the northern district of that State. Among other things, the petitioners allege that Nancy A. Johnson, then Nancy A. Alvis, and a minor, by her next friend, brought a suit by bill of complaint in that court against the present plaintiffs to recover three slaves belonging to her, together with hire for the same for a specified time; that she subsequently intermarried with James Johnson, who was admitted with her to prosecute the suit; that the cause was afterwards submitted to the court for a final hearing, and a decree entered dismissing the bill of complaint at the cost of the petitioners. They also allege that they prosecuted a writ of error to the high court of erros and appeals in that State, and that the decree of the district court of chancery was there reversed, and a decree entered in their favor. That decree, as set forth in the petition, shows that the appellate court was of the opinion that the slaves in controversy were the property and separate estate of the first-named complainant. Wherefore it was considered by the court that the decree of the vice chancellor ought to be reversed, and it was so ordered, adjudged, and decreed; and the court proceeding to pronounce such a decree as the subordinate court should have rendered, entered a decree that the complainants do have and recover of the respondents the slaves then in controversy, for the sole and separate use and right of the first-named complainant, and requiring the respondents to restore the slaves and deliver the possession of the same to the said complainant, or her authorized agent. It is also recited in the decree that the court was of the opinion that the complainant was entitled to recover hire for the slaves from the time they were taken from her possession by the respondents. To carry out the directions of the court, it was further ordered, adjudged, and decreed, that the cause be remanded to the subordinate court, and that an account be taken of the hire of the slaves, and for such other and further proceedings as may be required in the premises. After the mandate went down, the cause was sent to a commissioner to carry into effect the directions of the appellate court. He made a report, showing that on the fourth day of February, 1854, the reasonable hire for the slaves amounted to the sum of twenty-two hundred dollars; and he also reported that the hire of the slaves was reasonably worth two hundred dollars per annum. That report was confirmed by the court, and on the fourteenth day of April of the same year a decree was entered in favor of the complainants, that they do have and recover of the respondents the said sum of twenty-two hundred dollars with interest; and also, that they do have and recover of the respondents at the rate of two hundred dollars per year for the hire of the slaves, from the date of the report until they shall be surrendered up according to the decree in the cause. As a part of the decree, it was also ordered and directed that execution issue, as at law, for the amount awarded to the complainants, together with the costs of suit. Plaintiffs also allege in their petition or declaration, that those decrees or judgments were in full force, and that they have never in any manner been annulled, reversed, satisfied, or discharged, either in whole or part. Process was duly served upon the defendants in this case, and on the fifth day of December, 1854, they appeared and made answer to the suit. From the minutes of the clerk it would seem that the suit was entered, in the first place, as a suit at law, and it was certainly so treated by the defendants in their first answer. Those proceedings, however, are of no importance in this investigation, because the record states, that on the fourth day of December, 1856, the cause was docketed on the chancery side of the court; and on the second day of June, 1857, the defendants again appeared and filed their answer to the petition, without objection to the transfer which had been made of the cause. To that answer the plaintiffs excepted on various grounds, and after a full hearing the exceptions were sustained, and the answer was stricken out by the order of the court. Both parties again appeared before the court, sitting in chancery, on the 11th day of June, 1857, when, as the record states, 'upon motion, and merits examined by the court, it was ordered that the cause be transferred to the law docket.' No objection was made to that order by either party, and for aught that appears to the contrary, the transfer was made by consent. Leave was subsequently granted to the plaintiffs to amend their petition, and on the twenty-sixth day of January, 1858, they filed an amendment to the same, alleging that they were citizens of the State of Tennessee, and that the defendants were citizens of the State of Texas. They also alleged in their amended petition, that the slaves in controversy were of the value of three thousand two hundred dollars, and prayed judgment in their favor for the recovery of the slaves, and in default of the delivery of the possession of the same, they also prayed judgment for their value, and 'for general relief.'

Exceptions were filed by the defendants to the amended petition, but the exceptions were overruled by the court. At the same time the defendants filed an additional answer to the petition, denying all the allegations and charges therein contained, and also pleaded the statute of limitations in two forms, as set forth in the transcript. Afterwards, on the sixth day of February, 1858, the defendants had leave to plead nul tiel record to the respective decrees set forth in the plaintiffs' petition. On that issue the court found for the plaintiffs, and overruled the plea, and the parties went to trial upon the plea denying all the allegations and charges contained in the plaintiffs' petition, and upon the pleas setting up the statute of limitations. To support the issue on their part, the plaintiffs introduced duly certified copies of the two records and decrees set forth in their petition, and proved by competent witnesses the value of the slaves at the time of the trial. By that testimony it appeared that one of the slaves was of the value of eight hundred dollars, and that the other two were each of the value of nine hundred dollars. Defendants offered to prove that they removed from Mississippi on the twentieth day of January, 1850; that they became citizens of Texas, and were domiciliated there on the twenty-first day of February of that year, and that they had ever since resided there as citizens of that State. That testimony was excluded by the court upon the objection of the plaintiffs, and the defendants excepted to the ruling. They offered no other evidence, and under the instructions of the court the jury returned their verdict for the plaintiffs. At the trial, the defendants requested the court to instruct the jury that—

1. The transcript from the record to the high court of errors and appeals, and the chancery court for the northern district of the State of Mississippi, is not evidence sufficient to entitle the plaintiffs to recover.

2. That that portion of the decree of the chancery court fixing the hire of the negroes at two hundred dollars a year, from and after the date of that decree, is no evidence of the value of the hire of said negroes; and unless the plaintiffs have introduced some evidence independent of that record, proving the value of the hire, the jury cannot allow hire from the date of the judgment rendered by the vice chancellor.

But the court refused so to instruct the jury, and did instruct them that the record was conclusive proof that the title of the slaves was in the plaintiffs, and of the value of their hire up to the fourth day of February, 1854, as shown by the record; and the jury were also instructed to return a verdict in favor of the plaintiffs for the additional hire, at the rate of two hundred dollars per annum, from the date of the decree. Instructions were also given to the jury as to the other matters of claim set forth in the petition; but inasmuch as they are not now made the subject of complaint, we shall pass the exceptions over without remark, except to say that they are evidently without merit.

On this state of the case three questions are presented for decision:

1. It is insisted by the plaintiffs in error that the court erred in charging the jury that the record offered in evidence was conclusive proof as to the title of the slaves in controversy, and of the value of their hire to the date of the decree. That theory is based upon certain facts which are apparent in the record of that suit, and the question is raised both by the instructions given to the jury and by the refusal of the court to charge as requested. It appears from the record of the suit, that the bill of complaint was filed in the district chancery court for the northern district of Mississippi on the twenty-sixth day of November, 1846, and that the respondents entered their appearance on the twenty-third day of November, 1847, and made answer to the suit. Testimony was taken on both sides, and the respondents continued to prosecute their defence to the suit until the eleventh day of April, 1850, when, upon final hearing, the bill of complaint was dismissed at the cost of the complainants. Respondents' attorney then withdrew his appearance; but the record states that the complainants, on the same day, prayed an appeal, which was granted, upon their giving bond for costs in ninety days, 'and by consent it is agreed' that the appeal be taken directly to the high court of errors and appeals. Complainants, however, failed to prosecute the appeal within the appointed time, and consequently were obliged to prosecute the appeal by writ of error. It is not now questioned that a writ of error, under the circumstances of the case, was the proper process, by the law of that State, for the removal of the cause into the appellate court; but it is insisted that the subsequent decrees are void, because the respondents were not legally notified of the pendency of the writ of error. Personal service was not made on either of the respondents, and they never appeared in the appellate court. On the contrary, it appears that the attorney of the complainants, on the eighteenth day of January, 1852, filed an affidavit in the cause, that the defendants in error were not residents of the State, and that they had no attorney of record on whom process could be served. Provision, however, is made by the law of that State for service by publication in cases of this description. By the act of the twenty-ninth of January, 1829, it is provided, that 'whenever a cause shall be removed to the Supreme Court by writ of error, and the court is satisfied that the defendant in error is a non-resident, and has no attorney of record within this State, it shall be the duty of said court to cause notice of the pendency of said cause to be published for three weeks in some public newspaper, the first of which shall be at least three months before the sitting of the next term of the court in which the case is pending, within this State; on proof of which publication, the court shall proceed to hear and determine said cause, in the same manner as if process had been actually served upon the said defendant.' Hutchison's Dig., p. 931.

That regulation, by a subsequent act passed on the second day of March, 1833, is made applicable to the high court of errors and appeals, and it was conceded at the argument that the publication was made under that provision. On the filing of the affidavit, showing that the defendants in that suit were non-residents of the State, it was ordered by the court, that unless they appeared on the third Monday of October, 1853, 'the court will proceed to hear and determine the cause in the same manner as if process had been actually served; and it was further ordered that a copy of the order be published in a certain public newspaper published at the capital of the State, once a week for three weeks.' Publication was accordingly made, as appears by the decree in the cause, and on the twenty-third day of January, 1854, the decree was entered reversing the decree of the subordinate court; and the question is, whether the notice was sufficient to give the appellate court jurisdiction of the case and the parties. That the subordinate court had full jurisdiction is admitted. Both of the respondents appeared in that suit, and litigated the merits for the period of three years. From the evidence in the case, it appears that they got possession of the slaves in Tennessee, in violation of the rights of the first-named complainant, and removed them to the State of Mississippi. Suit was brought against them in a subordinate court of the latter State, and after three years' litigation, and when they had succeeded in dismissing the bill of complaint, they removed to Texas, carrying the slaves with them, although they knew the complainants intended to seek a revision of the decree in the appellate court. All of the equities of the case are therefore with the present defendants. Where a court has jurisdiction it has a right to decide every question which occurs in the cause; and whether its decision be correct or otherwise, its judgment, until reversed, as a general rule, is regarded as binding in every other court. Whenever the parties to a suit, and the subject-matter in controversy between them, are within the regular jurisdiction of a court of equity, the decree of that court is to every intent as binding as would be the judgment of a court of law. Accordingly, it was held by this court, in Pennington v. Gibson, 16 How., 65, that in all cases where an action of debt can be maintained upon a judgment at law to recover a sum of money awarded by such judgment, the like action may be maintained upon a decree in equity, provided it is for a specific amount, and that the records of the two courts are of equal dignity and binding obligation. Had the decree, therefore, been rendered in the subordinate court before the appeal, the right of the plaintiffs below to recover in this suit would have been beyond question, unless there is some other error in the record. Courts of general jurisdiction are presumed to act by right, and not by wrong, unless it clearly appears that they have transcended their powers. Gregnon's Lessee v. Astor, 2 Howard, 319; Voorhees v. the Bank of U.S., 10 Pet., 449. Notice to the defendant, actual or constructive, however, is essential to the jurisdiction of all courts, and it was held by this court, in Webster v. Reid, 11 How., 46460, that when a judgment is brought collaterally before the court as evidence, it may be shown to be void on its face by want of notice to the person against whom it is entered. Numerous cases, also, are cited by the counsel of the present plaintiffs, applicable to the judgments or decrees of a court exercising original jurisdiction, which assert the general rule that no man shall be condemned i his person or property without notice, and an opportunity to make his defence. And some of them go much further, and lay down the rule as applicable to the inception of the suit, that notice by publication, is insufficient to support the judgment in any jurisdiction, except in the courts of the State where it was rendered. Boswell's Lessee v. Otis et al., 9 How., 350; Oakley v. Aspinwall, 4 Comst., 513. None of these cases, however, precisely touch the question under consideration. Personal service was made upon the defendants in this case by due process of law in the court of original jurisdiction, and the question here is, whether a party duly served with notice in a subordinate court, after he has appeared and answered to the suit, and secured an erroneous judgment in his favor, may voluntarily absent himself from the jurisdiction of the appellate tribunal, so as to render it impossible to give him personal notice of an appeal, and still have a right to complain that notice was served by publication, pursuant to the law of the jurisdiction from which he has thus voluntarily withdrawn. We think not. To admit the proposition, would be to deprive the other party of all means of removing the cause to the appellate tribunal, and would enable a party, who knew he had wrongfully prevailed in the court below, to secure the fruits of an erroneous judgment, by defeating the jurisdiction of the appellate court. Actual notice ought to be given in all cases where it is practicable, even in appellate tribunals; but whenever personal service has been rendered impossible by thehe removal of the appellee or defendant in error from the jurisdiction, service by publication is sufficient to give the appellate tribunal jurisdiction of the subject and the person, provided it appears in the record that personal notic was given in the subordinate court, and that the party there appeared, and litigated the merits of the controversy. Contrary to the views of the counsel for the present plaintiffs, we think there is some distinction between the notice required to be given to an appellee or defendant in error and the service of process in the original suit. A writ of error is said to be an original writ, because, at common law, it was issued out of the court of chancery; but its operation is rather upon the record, than the person. Under the judiciary act, says Marshall, Ch. J., the effect of a writ of error is simply to bring the record into court, and submit the judgment of the inferior tribunal to re-examination. It does not in any manner act upon the parties; it acts only on the record, by removing the record into the supervising tribunal. Suits cannot, under the judiciary act, be commenced against the United States; and yet writs of error, accompanied by citations, have uniformly issued for the removal of judgments recovered in favor of the United States into this court for re-examination. Such cases are of daily occurrence, and the judgments are here reversed or affirmed, as they are with or without error; and it has never been supposed that the writ of error in such cases, though sometimes involving large amounts, was a suit against the United States. Plainly, therefore, there is a distinction between a writ of error and the original suit. According to the practice in this court, it is rather a continuation of the original litigation than the commencement of a new action; and such, it is believed, is the general understanding of the legal profession in the United States. Cohens v. Virginia, 6 Pet., 410; Clark v. Matthewson, 12 Pet., 170.

No rule can be a sound one which, by its legitimate operation, will deprive a party of his right to have his case submitted to the appellate court; and where, as in this case, personal service was impossible in the appellate court, through the act of the defendant in error, it must be held that publication, according to the law of the jurisdiction, is constructive notice to the party, provided the record shows that process was duly served in the subordinate court, and that the party appeared and litigated the merits. Constructive notice, says Mr. Justice Baldwin, in Hollingsworth v. Barbour et al., 4 Pet., 475, can only exist in the cases coming fairly within the provisions of the statutes authorizing the courts to make orders for publication, and providing that the publication, when made, shall authorize the courts to decree. Regina v. Lightfoot, 26 Eng. L. and Eq., 177.

As stated by this court in Harris v. Hardeman et al., 14 How., 339, a judgment upon a proceeding in personam can have no force as to one on whom there has been no service of process, actual or constructive, and who has had no day in court or notice of any proceeding against him. Judgment in that case had been rendered without any sufficient notice, either actual or constructive, and of course it was held to be irregular; but the opinion of the court clearly recognises the principle that constructive notice in certain cases may be sufficient to bind the party. Every person, as this court said in the case of the Mary, 9 Cran., 444, may make himself a party to an admiralty proceeding, and appeal from the sentence; but notice of the controversy is necessary, in order to enable him to become a party. When the proceedings a e against the person, notice is served personally, or by publication; but where they are in rem, notice is served upon the thing itself. Common justice requires that a party, in cases of this description, should have some mode of giving notice to his adversary; and where, as in this case, the record shows that the defendant appeared in the subordinate court, and litigated the merits there to final judgment, it cannot be admitted that he can defeat an appeal by removing from the jurisdiction, so as to render a personal service of the citation impossible. On that state of facts, service by publication, according to the law of the jurisdiction and the practice of the court, we think, is free from objection, and is amply sufficient to support the judgment of the appellate court. Mandevilleet al. v. Riggs, 2 Pet, p. 489; Hunt et al. v. Wickliffe, 2 Pet., 214.

2. It is insisted, in the second place, by the counsel of the plaintiffs, that the court erred in allowing the decree to go to the jury as evidence of the value of the hire of the slaves subsequently to the fourth day of February, 1854. That theory overlooks the fact, that testimony had been introduced by the present defendants showing the value of the slaves at the time of the trial; and that the decree was to be taken in connection with the parol testimony, showing that the slaves were still living, and in the possession of the parties originally charged with their abduction. No evidence had been offered by the defendants, and, in view of the circumstances, we think the charge was correct, and that the prayer for instruction was properly refused.

3. While the cause was pending on the chancery side of the court, on motion of the plaintiffs, the court struck out the answer of the defendants, and it is now insisted that the action of the court in that behalf was erroneous. All we think it necessary to say, in reply to this objection, is to remark that the cause was subsequently transferred to the law docket without objection, and that a bill of exceptions does not bring into this court any of the prior proceedings for revision. Whatever may be the practice in the State courts, counsel must bear in mind that there is a broad distinction between a suit at law and a suit in equity, and must understand that this court cannot and will not overlook that distinction.

The judgment of the District Court is affirmed, with costs.

title: Nations v. Johnson/Opinion of the Court


text: Talk:Nations v. Johnson/Opinion of the Court


text:
Sampson v. Welsh

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

It was a case of libel under the circumstances which are stated in the opinion of the court, and was submitted on printed arguments by Mr. Wharton and Mr. Kane for the appellants, and Mr. Fallon and Mr. Serrill for the appellees.

The arguments of the counsel were directed to the merits of the case, which it is not necessary to state under the view taken of it by the court.

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

title: Sampson v. Welsh


text: Talk:Sampson v. Welsh

title: Talk:Sampson v. Welsh


text:
Sampson v. Welsh/Opinion of the Court

This case is brought up by an appeal from the Circuit Court of the United States for the eastern district of Pennsylvania.

A libel was filed in the District Court for that district by S. & W. Welsh, the appellees, against the ship Sarah, (of which Sampson & Tappan, the appellants, are the owners,) to recover compensation for damages sustained by a cargo of coffee shipped on board the Sarah, at Rio, and consigned to the libellants; and also to recover compensation for sundry disbursements made by the libellants for the payment of wages and provisions for the ship.

The ship-owners appeared, and answered; but it is unnecessary to state more particularly the facts in controversy between the parties, because the final decree of the Circuit Court was for less than two thousand dollars, and consequently no appeal from its decree will lie to this court.

At the hearing in the District Court the libel was dismissed; but upon an appeal to the Circuit Court this decision was reversed, and a decree passed by the Circuit Court in favor of the libellants for the sum of $2,302.78, with leave to the respondents to set off the balance due them for freight, if they should elect to do so. Afterwards, the respondents appeared in court, and elected to set off this balance against the sum decreed against them, which reduced the amount to $1,071.27. But in making this election, the proctors for the respondents stated in writing, and filed in the court, that the election to set off was made without any waiver of their right to appeal from the decree. After this election was made, the court, on the 31st of August, 1858, passed its decree in favor of the libellants for the above-mentioned sum of $1,071.27, with interest from July 20, 1858. This was the final decree of the court, and the one from which the appeal is taken; and, as it is below $2,000, no appeal will lie under the act of Congress. And neither the reservation of the respondents in making their election, nor even the consent of both parties, if that had appeared, will give jurisdiction to this court where it is not given by law.

The appeal must therefore be dismissed for want of jurisdiction.

title: Sampson v. Welsh/Opinion of the Court


text: Talk:Sampson v. Welsh/Opinion of the Court