text:
Barkley v. Levee Commissioners/Opinion of the Court

This was an application by Barkley to the court below for a mandamus, to be directed to the Board of Levee Commissioners of the parishes of Madison and Carroll, in the State of Louisiana, to compel such of said board as then survived to proceed to assess and collect a tax for the payment of a certain judgment alleged to have been recovered by the petitioner against the said board on the nineteenth day of June, 1872; or, if the court should be of opinion that the survivors have not such power, and cannot fill vacancies in their body, then that the police juries of said parishes of Madison and Carroll should perform that duty, and assess and collect sufficient tax to pay said judgment; or, if the court should be of opinion that it had not power to make either of said orders, then that it should order the United States marshal of the district to assess at once, or by instalments, from year to year, and collect sufficient taxes upon the property subject to taxation for levee purposes in said parishes, to pay said judgment debt, interest, and costs; and for general relief.

The petition, amongst other things, states that the suit in which the judgment sought to be enforced was rendered, was originally commenced on the 23d of August, 1867, in the District Court of the Thirteenth District of Louisiana, against the Board of Levee Commissioners of the parishes of Carroll and Madison, for money due on levee warrants or scrip, being evidences of debt for work and labor done upon the levees in the said parishes, for the payment of which the laws of Louisiana had provided the assessment and collection of taxes, and liens and privileges upon all taxable property in said parishes; that this suit was afterwards removed by the plaintiff (who was a citizen of Tennessee) into the Circuit Court of the United States, and the police juries of said parishes were made parties thereto; that judgment was entered against the Board of Levee Commissioners on the date before mentioned for over $100,000; that the said board, after having acted under prior statutes, was created a corporation by act of the legislature March 10, 1859; that in March, 1861, each of said parishes was made a separate levee district, but the power to assess and collect taxes to meet their indebtedness was continued in the old board; that, when the suit was commenced, William Sutton, president of the board, Samuel P. Chambloss, commissioner for Carroll, and the three commissioners for Madison, were living, but that Sutton and Chambloss have since died, and no vacancies have been filled by election or otherwise. The petition further states, that a writ of fieri facias has been issued on the judgment and returned unsatisfied, after demand made on the secretary and treasurer of the board, they, as well as the police juries of the parishes, pretending that the board was dissolved, and failing to point out any property belonging thereto. The petitioner further contends, that the two parishes are the really interested parties, and that, if the old Board of Levee Commissioners cannot act, it is the duty of the police juries to assess and collect sufficient taxes on the taxable property of the two parishes to pay the judgment.

A rule was taken on the surviving members of the Board of Levee Commissioners and on the police juries of the parishes of Madison and Carroll, to show cause why a mandamus should not issue as prayed.

The former, by exception and answer, set up various grounds of defence, the most important to note being that the corporation of levee commissioners was defunct by resignation and death, only three (who were not a quorum) remaining alive; also, that the judgment was void because no service of process had ever been made on the corporation.

The police juries answered that they were distinct corporations from that of the Board of Levee Commissioners, and were not vested with power to assess and collect the taxes in question.

After receiving evidence and hearing the parties, the court below refused the mandamus. Barkley sued out this writ of error.

We had occasion in the case of The Police Jury v. Britton, 15 Wall. 566, to explain the system of making and maintaining the levees in Louisiana, which formerly prevailed; which was, that the riparian proprietors were obliged to keep them up as one of the considerations on which they held their lands. This duty was executed under regulations made by the police juries of the several parishes (which are the administrative officers thereof), and under the direction of inspectors by them appointed. In some instances, by virtue of special statutes, the levees were managed by the parish itself, or by a district composed of several parishes, through proper officers appointed by the police juries, or otherwise, and the necessary expenses were raised by means of a tax levied upon the inhabitants. In 1852 the parishes of Carroll, Madison, and Catahoula (Catahoula, however, being soon after excluded) were constituted one levee district, which, in the following year, was limited to the alluvial lands in those parishes (Laws of 1852, p. 234; Laws of 1853, p. 44); and a tax was directed to be levied for the support of the levees within the district, the amount and mode of assessing which was from time to time changed. This tax was directed to be collected annually by the sheriffs of the respective parishes, or by collectors to be appointed by the commissioners. To carry out the act, three commissioners were appointed from each parish, and were styled the 'Board of Levee Commissioners,' with power to fill vacancies in the board, appoint officers, lay out the district into wards, with one inspector to each ward, and order the levees to be repaired and built. In 1853 these commissioners were made elective, three to be elected biennially in each parish by the qualified voters thereof residing in the district or cultivating any portion of the alluvial lands therein. In 1859 the board were authorized to divide each parish into three equal portions, each of which was authorized to elect one commissioner.

The warrants on which the judgment in question was founded were issued in 1859 and 1860; and the legal provisions then in force with regard to assessing taxes for supporting the levees and paying the general liabilities of the board are to be found in the act of March 18, 1858, as amended by the act of March 12, 1859. Laws of 1858, p. 128; Laws of 1859, p. 30. By these acts it was provided that, for the purpose of making and repairing levees in the district, the commissioners should be authorized to assess annually a specific tax of ten cents on each and every acre of alluvial lands situated between the base of the hills west of Bayou Macon and the levees on the Mississippi River, in the parish of Carroll, and between the levees and the western boundary, in the parish of Madison, including such alluvial lands only as had theretofore been held to be within said levee district; and the commissioners were further authorized to assess an annual ad valorem tax, at such a per cent on the State tax, including the mill tax, on all property assessed in said levee district (lands included), as might be necessary to build and repair the levees, or to meet and take up any or all outstanding liabilities of the said board, on account of levees theretofore erected or repaired. It would seem from these enactments, that the specific tax of ten cents on each acre was intended for current expenses of levees, and that the ad valorem tax was intended to meet any deficiency and to pay prior obligations incurred. These taxes were declared to be a first lien and privilege upon the property subject thereto; and, on return by the sheriff or collector that it had been demanded and not paid, the district judge might grant an order of seizure and sale.

Thus stood matters in 1860. But by acts passed in March, 1861 (Laws of 1861, pp. 96, 110, 118), the levee district of the parishes of Madison and Carroll was abolished by the creation of two new separate districts composed of the said parishes respectively; and since that time no election of members of the old board has ever been held, the term of office of the then existing member having expired in 1862; and the board has been functus officio, and has for over fifteen years past ceased to have any duties to perform, or any existence whatever, except for the purpose of discharging its old indebtedness. By the death of the president, and the other members from Carroll, only three members survive, and these were all elected from the parish of Madison. In 1866, at the close of the war, an entirely new system, uniform throughout the State, was adopted, by putting all the levees under the charge of a single board, called the Board of Levee Commissioners (Laws of 1866, pp. 34, 36), and afterwards under the Board of Public Works of the State (Digest of Statutes of La., vol. ii., p. 398, tit. Public Works); and this board has been finally superseded by a private corporation, called the Louisiana Levee Company, which performs the work by contract with the State.

The question is, whether, as matters now stand, a mandamus can be issued to compel the surviving commissioners of the old board, or the police juries of the parishes of Madison and Carroll, to assess a tax on the property in the former levee district of said parishes, to pay the judgments in question; or, if not, whether the Circuit Court of the United States can direct the marshal to assess such tax.

In our judgment, neither of these things can be done.

In the first place, we think that the corporation of the Board of Levee Commissioners of the parishes of Madison and Carroll is no longer in existence as a matter of fact. It is true, that the acts of 1861, abrogating the district, and creating two separate districts, one for each parish, did not in terms abolish the old corporation, but reserved to it the power to levy taxes in order to meet its outstanding indebtedness. But the creation of the new districts, providing (as was done) for the election of new and separate commissioners in the parish of Carroll, the placing of the levees in the parish of Madison under the charge of the police jury, and substituting an entire new system of levee management in the parishes, superseded all the functions of the old board and all provisions for their continuance by election, except so far as may have been saved by express reservation. Nothing, however, was thus saved, except their power to assess taxes to meet their outstanding indebtedness. And, in fact, no elections for members of the board have ever been held since that time. The term of office of the commissioners expired in November, 1862, and no provision was made in the laws constituting the board, that the members should hold over until the election of their successors. It is true, a general act had been passed in 1856, declaring that all State and parish officers should, after the expiration of their term of service, continue to perform the duties of their office until their successors should be inducted into office. But the members of this board were neither State nor parish officers, and the laws for electing others in their stead had ceased to have operation. And although, in ordinary cases, where an election has been omitted, officers may continue to act as officers de facto beyond their regular term (though not compellable to do so), and their acts will bind the corporation which they represent; yet, where, as in this case, no further provision is made for any further election, and the functions of the corporation have been abrogated or superseded, we do not think that any implied power to continue in office beyond the prescribed period exists. Our attention, however, is called to the act passed by the provisional legislature in 1867 (Laws 1867, pp. 264-272), by which the corporation is assumed to be in existence, and is authorized to make and issue certain bonds; and for that purpose it is declared (sect. 10), that 'the Board of Levee Commissioners shall continue in office, with the power of filling vacancies in said board, until their successors shall be duly elected and qualified according to law; and all powers granted to said Board of Levee Commissioners by any of the acts aforesaid, or by any other acts, shall and may be exercised by the members of the board now in office and any members appointed or elected as above described.' This provision is evidently based upon a false suggestion. It supposes that 'successors' could be 'elected and qualified,' when there was no law then in existence for any such purpose. A different system was in operation, and had taken the place of that which provided for the election of these commissioners. The act also declares that the Board of Levee Commissioners shall continue in office; taking for granted that they were in office, when, in fact, as we have seen, they were not. Furthermore, this act was one of the acts expressly excepted from the operation of the one hundred and forty-ninth article of the constitution of 1868, which validated all laws passed since the ordinance of secession in 1861. This express exception is undoubtedly equivalent to a repeal of the act.

Our conclusion from the whole case, therefore, is, that the corporation in question no longer exists, and that no mandamus can be issued to it or to the surviving persons who were formerly members of the board.

The prayer for a mandamus against the police juries of the parishes of Madison and Carroll clearly cannot be granted. Those bodies never had any power to assess the levee tax in question. There is no law authorizing them to do so. They do not act in concert, which they would have to do, in order to assess a uniform tax on the whole district; and there is no privity of duty, interest, or succession between them and the extinct board.

The remaining prayer, for an order directing the marshal to assess the tax, is equally inadmissible. It is true, that, in the case of The Supervisors of Lee County v. Rogers, 7 Wall. 175, we held that the Circuit Court acting in that case, after having issued a mandamus to the supervisors of the county, commanding them to levy a tax, and they having refused to obey the writ, was authorized, under the Code of Iowa, which provided for such a proceeding, to issue a writ to the marshal commanding him to levy and collect the taxes required. But we have never gone beyond this case, which depended on the special law referred to. The marshal is the executive officer of the court, and can only execute its process; and the court, without some such special authority as that contained in the Iowa Code, cannot enforce its judgments for the recovery of a debt in any other way than by seizing and selling the property of the judgment debtor, or (where imprisonment for debt is authorized) by seizing and detaining his person. Where the debtor is a corporation, it cannot seize the property of its members. This it would do if it should issue a writ to the marshal commanding him to levy a tax upon the inhabitants of a municipal corporation, or upon their private property. The court has no more authority, in point of law, to seize the property of citizens for the debt of the corporation in which they reside (except in some of the Eastern States, where a different system prevails) than it has to seize the property of another corporation. Its power to issue a mandamus to compel municipal officers to perform their duty of levying a tax is a distinct power, which extends to all ministerial acts which officers are legally bound and refuse to perform. In the recent case of Rees v. The City of Watertown, 19 Wall. 107, we decided that the court has no general power to commission the marshal to levy taxes for the purpose of satisfying a judgment, and we refer to that case for a more full explanation of our views on this subject.

Much reliance is placed by the counsel of the petitioner on the fact that the taxes directed to be imposed by the acts of 1858 and 1859 were made a first lien and privilege upon the property liable thereto. We do not see how this can affect the present application. Liens for taxes are very generally created throughout the country; but it is never supposed that the public creditors, to whom the money raised by tax is to be paid, have the benefit of such lien. It is created for the benefit of the public authorities, to enable them with greater certainty and facility to collect the taxes, without the embarrassment of other pretended claims against the property taxed.

The truth is, that a party situated like the present petitioner is forced to rely on the public faith of the legislature to supply him a proper remedy. The ordinary means of legal redress have failed by the lapse of time and the operation of unavoidable contingencies. It is to be presumed that the legislature will do what is equitable and just; and in this case legislative action seems to be absolutely requisite.

Judgment affirmed.


text: Talk:Barkley v. Levee Commissioners/Opinion of the Court

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


text:
Broughton v. Pensacola

APPEAL from the Circuit Court of the United States for the Northern District of Florida.

Argued by Mr. P. Phillips and Mr. Thomas G. Jones for the appellant.

Submitted on printed arguments by Mr. C. C. Yonge for the appellee.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Broughton v. Pensacola


text:
Page:Haiti- Her History and Her Detractors.djvu/378

The principal impression produced by many books on Haiti is that honest men are in the minority in the country and that the great majority of the Haitians, from the highest to the lowest classes, are corrupt, their chief occupation consisting in plundering the treasury. There have been Presidents, Ministers, and other minor officials who have betrayed the trust placed in them by the people. In the management of public funds some of them have been oblivious of the primal rules of right and honesty; they have not always had present in their minds the fact that every cent unlawfully drawn from the treasury was like stealing a portion of the scanty earnings of the producer who, by the taxes which he has to pay upon his coffee, cocoa, etc., is made the principal victim of their corrupt dealings. These dishonest actions are to be regretted and deserve the severest condemnation. But it is unjust beyond measure to hold a whole nation responsible for the action of a few of her citizens. In every country wrong goes side by side with right; and in order to establish an average one must find out which prevails over the other. Those dishonest men who accumulate wealth at the expense of the people seem at first glance to be more numerous, the display of their ill-gotten wealth making them conspicuous. They attract by these means more attention than the great majority of honest citizens who perform their


text: Talk:Broughton v. Pensacola

title: Talk:Broughton v. Pensacola


text:
Broughton v. Pensacola/Opinion of the Court

By an act passed on the 2d of March, 1839, by the then Territory, now State, of Florida, the city of Pensacola, at the time a pre-existing corporation, was rechartered, and its powers were vested in a mayor and board of aldermen, who were, at all times, to continue 'to act in their respective functions' until the election and qualification of their successors in office. Among the powers conferred by the charter was the power to borrow money, not exceeding $5,000 a year, and to levy taxes and provide for their collection, with a limitation of the amount to be levied upon real estate to three-fourths of one per cent.

In December, 1850, by an amendatory act, these limitations were repealed, and a larger loan and a greater rate of taxation upon real estate were allowed. By a further amendatory act, passed on the 3d of January, 1853, the mayor and aldermen, with the consent of a majority of the corporation, were authorized to subscribe, in the name of the city, any amount of money which they might deem necessary to any railroad leading from the city; and, for the purpose of procuring the amount of the subscription, were empowered to borrow the same, and impose a tax upon real estate within its limits, not exceeding two percent on the assessed value of the property. By another act, passed in the same month, the Alabama and Florida Railroad Company was chartered to construct a railroad from some point on Pensacola Bay (the city being the point afterwards selected) northward to the boundary line of Florida and Alabama, and there to connect with another line of road to be constructed from the city of Montgomery, Ala.

Under the act of Jan. 3, 1853, the city of Pensacola subscribed $250,000 to the capital stock of this railroad company, and in payment of the same executed and delivered to the company five hundred bonds of $500 each, payable twenty years after date, with interest at the rate of seven per cent per annum, payable semi-annually on the first days of January and July, at such bank in the city of New York as the treasurer might direct, on the surrender of the coupons for such interest attached to the bonds.

The plaintiff is the holder of sixteen hundred and ninety of these coupons, now past due, and alleges that the city has never made any provision for their payment at any bank in the city of New York, or at any other place; that, until about the 1st of January, 1871, the city received the coupons in payment of taxes, although the taxes assessed were never sufficient to absorb the coupons as they matured, but that since that time the city has refused, and still refuses, to recognize its obligation to pay them. Several judgments have been recovered by other parties upon coupons of the same kind against the city; but executions issued thereon have been returned wholly unsatisfied, because the city possessed no property out of which they could be made.

The constitution of Florida, adopted in 1868, provided that the legislature should 'establish a uniform system of county, township, and municipal government.' In pursuance of this requirement, the legislature, in 1868 and 1869, passed acts 'to provide for the incorporation of cities and towns, and to establish a uniform system of municipal government' in the State. These acts authorized the establishment of a municipal government, with corporate powers and privileges by the voluntary action of the male inhabitants of any hamlet, village, or town in the State, not less than one hundred in number; and also provided for the reorganization of existing municipal corporations under their provisions. Under these acts the charter of the city was surrendered, and attempts were made to reorganize its government; but these attempts failed, because the reorganization was not made within the periods prescribed. In consequence of such failure, and because the acts provided for the cessation of corporate authority in case the reorganization was not effected within the periods designated, the citizens residing within the limits of the city proceeded to establish a municipal government with corporate authority, under the act of 1869, as citizens not having any existing corporation were authorized to do. Such establishment or reorganization of government having been effected, the plaintiff applied to its officers for the payment of the coupons held by him; but the payment was refused, they insisting that they were officers of a new and distinct corporation from the one which issued the bonds and coupons mentioned, and that the present corporation was not responsible for them. The plaintiff thereupon filed the present bill, asking for a decree for the amount of the coupons held by him against the city of Pensacola, and that the city be compelled to levy a tax upon real and personal property within its limits sufficient to satisfy such decree and costs, and for general relief. Upon demurrer, the bill was dismissed; and, on appeal, the case is brought here for our consideration.

The ancient doctrine, that, upon the repeal of a private corporation, its debts were extinguished, and its real property reverted to its grantors, and its personal property vested in the State, has been so far modified by modern adjudications, that a court of equity will now lay hold of the property of a dissolved corporation, and administer it for the benefit of its creditors and stockholders. The obligation of contracts, made whilst the corporation was in existence, survives its dissolution; and the contracts may be enforced by a court of equity, so far as to subject, for their satisfaction, any property possessed by the corporation at the time. In the view of equity, its property constitutes a trust fund pledged to the payment of the debts of creditors and stockholders; and, if a municipal corporation, upon the surrender, or extinction in other ways, of its charter, is possessed of any property, a court of equity will equally take possession of it for the benefit of the creditors of the corporation. In this case, it is averred in the bill that the city of Pensacola, upon the surrender of its original charter, did not possess any property.

It is not necessary, however, in the view we take of the proceedings for the reorganization of the city government, to consider the effect of an absolute repeal of the charter of a municipal corporation upon its obligations. It is sufficient that here, in our judgment, there was a continuation of the corporation of Pensacola, with its original rights of property and obligations, not a new and distinct creation of corporate capacity and liability.

The constitution of 1868 only designed to secure uniformity in county, township, and municipal government. It contemplated no change in existing liabilities. The acts of 1868 and 1869, passed to carry into effect the constitutional provision, aimed solely to secure this uniformity. They do not even allude to previous liabilities. Although a municipal corporation, so far as it is invested with subordinate legislative powers for local purposes, is a mere instrumentality of the State for the convenient administration of government, yet, when authorized to take stock in a railroad company, and issue its obligations in payment of the stock, it is to that extent to be deemed a private corporation, and its obligations are secured by all the guaranties which protect the engagements of private individuals. The inhibition of the Constitution, which preserves against the interference of a State the sacredness of contracts, applies to the liabilities of municipal corporations created by its permission; and although the repeal or modification of the charter of a corporation of that kind is not within the inhibition, yet it will not be admitted, where its legislation is susceptible of another construction, that the State has in this way sanctioned an evasion of or escape from liabilities, the creation of which it authorized. When, therefore, a new form is given to an old municipal corporation, or such a corporation is reorganized under a new charter, taking in its new organization the place of the old one, embracing substantially the same corporators and the same territory, it will be presumed that the legislature intended a continued existence of the same corporation, although different powers are possessed under the new charter, and different officers administer its affairs; and, in the absence of express provision for their payment otherwise, it will also be presumed in such case that the legislature intended that the liabilities as well as the rights of property of the corporation in its old form should accompany the corporation in its reorganization. That such was the intention of the State of Florida in the present case, we have no doubt; to suppose otherwise would be to impute to her an insensibility to the claims of morality and justice, which nothing in her history warrants.

The principle which applies to the State would seem to be applicable to cases of this kind. Obligations contracted by its agents continue against the State, whatever changes may take place in its constitution of government. 'The new government,' says Wheaton, 'succeeds to the fiscal rights, and is bound to fulfil the fiscal obligations, of the former government. It becomes entitled to the public domain and other property of the State, and is bound to pay its debts previously contracted.' Inter. Law, 30. So a change in the charter of a municipal corporation, in whole or part, by an amendment of its provisions, or the substitution of a new charter in place of the old one, should not be deemed, in the absence of express legislative declaration otherwise, to affect the identity of the corporation, or to relieve it from its previous liabilities.

In a case recently decided by the Circuit Court of the United States for the Northern District of Florida, Milner's Administrator v. City of Pensacola, 2 Woods, 632, the effect of the legislation of the State upon the corporate existence of the city of Pensacola was examined. The court held and sustained its conclusion in an able and well-considered opinion, that the reorganization of the city, under the act of 1869, was simply the assumption by the city of the new powers and privileges which the act conferred, and was not the creation of a new corporation,-a conclusion which accords with our judgment.

It follows, from the views we have expressed, that the remedy of the plaintiff was not by a suit in equity, but by an action at law against the present corporation upon the coupons; and, if judgment be recovered thereon and be not paid, then by mandamus upon its officers to compel them to raise the requisite funds for its payment in the manner prescribed by its charter.

Decree affirmed, without prejudice to the plaintiff's right to proceed at law.

NOTE.-Jones v. Pensacola, appeal from the Circuit Court of the United States for the Northern District of Florida, was argued at the same time and by the same counsel as the preceding case.

MR. JUSTICE FIELD delivered the opinion of the court.

This case is similar in all essential particulars to that of Broughton v. Pensacola; and, upon the authority of the decision therein rendered, the decree is affirmed. without prejudice to the plaintiff's right to proceed at law.


text: Talk:Broughton v. Pensacola/Opinion of the Court


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Dalton v. Jennings

APPEAL from the Circuit Court of the United States for the Southern District of New York.

This was a bill filed for an account, and for an injunction restraining the defendant from infringing Dalton's letters patent. Upon the final hearing of the cause the court below dismissed the bill, and Dalton appealed here.

Mr. J. Vansantvoord for the appellant.

Mr. Arthur v. Briesen for the appellee.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Dalton v. Jennings


text: Talk:Dalton v. Jennings

title: Talk:Dalton v. Jennings


text:
Dalton v. Jennings/Opinion of the Court

On the fifth day of March, 1872, there was issued to the complainant below, and appellant here, John Dalton, a patent, No. 124,340, for a new and useful improvement in ladies' hairnets, in which he claims as new 'a head or hair net composed of a main set of meshes fabricated of coarse thread, combined with an auxiliary set or sets of meshes fabricated of fine thread, substantially as described.' In his specification, he says that the nets in use before his invention were composed of coarse threads so far apart that the meshes or interstices were too large and permitted the hair to protrude through them, and that his invention consists in combining with these coarse threads and larger spaces a finer thread crossing these spaces as often as is necessary to confine the hair, which thread, from its fineness, is mainly invisible. He gives directions for the use of this finer thread in making the meshes, in which there is nothing he claims to be new. His claim is not for the process of making the net, but for the new product made in the manner prescribed.

The defendant relies on want of novelty, produces some fifteen or sixteen specimens of fabrics and designs which he alleges to be anticipations of plaintiff's production, and refers to as many persons who were making or selling fabrics which are identical with that patented by plaintiff.

If the netting patented by appellant had been produced by him for the first time, it would be difficult to find in it or in the process by which it is made any thing deserving the name of invention within the meaning of the patent law. If the spaces between the threads of the netting were too large, thereby permitting the escape of the hair, there is nothing new in the idea that making them smaller would remedy the evil. If the size of the threads then in use was too large for beauty, neither discovery nor invention were necessary to reduce it. There is nothing new in the number of these threads, in their size, nor in the manner in which they are crossed and connected. Where, then, is the invention? Is it in the fact that some of the threads are coarser and some of finer size? This can hardly be invention, since gauze and netting have been made with threads or cords of unequal size time out of mind, and with varying and equal or unequal spaces between them.

Turning from this view of the subject, the evidence and the exhibits produced by defendant show a number of fabrics long in use, in which the meshes are made by larger cords or threads crossing each other at various angles, with smaller threads filling up the space and making the interstices smaller.

Defendant's exhibit No. 16 is a piece of lace with spaces separated and bounded by a larger thread or cord, which are subdivided into much smaller spaces by a smaller thread, that is proved to be fifteen years old, and may have been fifty.

Exhibit No. 12 is a tidy with very large cords, like floss, with spaces between each, and across these spaces diagonally are four threads dividing that space into four smaller ones. It is proved that from this Dalton tried to get a workman to get up a pattern for his hair-nets.

Exhibit No. 11 is a mosquito bar, long in use, with large cords crossing each other about an inch or more apart, and smaller threads crossing this space each way, so as to make the interstices too small for the mosquito to get through, just as Dalton's net prevents the hair from escaping. It is the same device to remedy the same defect: only one is for mosquitoes and the other for hair.

Exhibit No. 6 is a hair-net consisting of larger cords crossing each other at equal distances, with finer threads passing over or around them, and filling up the space so as to reduce the size of the interstices. This was used and sold openly in New York in 1871.

Exhibit No. 2 is a hair-net made twenty years ago, in which the larger cords are knotted together at their crossing at regular intervals, and smaller threads between, so as to make the meshes smaller. We can see in this case no difference between this and exhibit of plaintiff, unless it be in the shape of the spaces large and small, and the manner in which the threads are connected. Neither of these is claimed by appellant as any part of his invention or as new, for he says this is a matter well known to lace-makers.

In the lace, in the mosquito bar, in the tidy, the fabric presents in each case the precise arrangement described in the plaintiff's patent. These have been long in use, and are well known.

In exhibits Nos. 2 and 6 we have the same fabric as appellant's, applied to the same use. It is impossible to call the hair-net or netting, for which appellant claims a patent, a new invention, or any invention of his.

Decree affirmed.

title: Dalton v. Jennings/Opinion of the Court


text: Talk:Dalton v. Jennings/Opinion of the Court


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Windsor v. McVeigh

ERROR to the Corporation Court of the city of Alexandria, Va.

Ejectment for a tract of land situate in the city of Alexandria, Va. Finding and judgment for the plaintiff. The defendant sued out this writ of error. The facts are stated in the opinion of the court.

Argued by Mr. S. F. Beach, for the plaintiff in error, and by Mr. Philip Phillips and Mr. John Howard, contra.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Windsor v. McVeigh


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Page:Haiti- Her History and Her Detractors.djvu/379

Rh daily duties in an unpretentious manner; and this great majority are thoroughly trustworthy. Far from approving of unscrupulous and corrupt officials, the bulk of the people are always ready to give their support to any man of whose integrity they are convinced and who is determined to cause the public funds to be respected; and the delinquents, when brought to trial, are punished with a degree of severity which they have merited by their actions. The public have never failed to show their gratitude to the statesmen who have served them with honesty and fidelity. Such men may have gone through severe trials; for the cause of right, like that of civilization or progress, has its martyrs. But sooner or later those who have not swerved from their duty receive their just reward. It is not right that one should judge by a few individual cases when there is question of forming an estimate of the characteristics of a people. A few functionaries have disgraced their names; but the others, after occupying high positions for years, retire with their integrity unquestioned and in possession of the esteem of their fellow-citizens when they relinquish their authority. These are the men who are in the majority, but pass unnoticed by the foreigners, because they do not noise their honesty abroad, but content themselves with the inward satisfaction of having been faithful in the performance of their duties. In Haiti there are to be found a great number of statesmen, former Ministers, Deputies, Senators, etc., whose moral soundness is equal to that of the best statesmen of the countries which ceaselessly endeavor to slander us.

One must bear in mind that the salary of the President of Haiti is $24,000 a year and that his traveling expenses amount to $15,000. Yet if we stop to consider some facts of recent occurrence which can be easily verified, we find that after nine years of Presidency General Salomon has left his heirs in very modest circumstances; and that the inventory of the estate of General Hyppolite, who died in the sixth year of his Presidency, was a great surprise to many, and proved


text: Talk:Windsor v. McVeigh

title: Talk:Windsor v. McVeigh


text:
Windsor v. McVeigh/Opinion of the Court

This was an action of ejectment to recover certain real property in the city of Alexandria, in the State of Virginia. It was brought in the corporation court of that city, and a writ of error from the court of appeals of the State to review the judgment obtained having been refused, the case was brought here directly by a writ of error from this court. Authority for this mode of procedure will be found stated in the case of Gregory v. McVeigh, reported in the 23d of Wallace.

The plaintiff in the corporation court proved title in himself to the premises in controversy, and consequent right to their immediate possession, unless his life-estate in them had been divested by a sale under a decree of condemnation rendered in March, 1864, by the District Court of the United States for the Eastern District of Virginia, upon proceedings for their confiscation. The defendant relied upon the deed to his grantor executed by the marshal of the district upon such sale.

The proceedings mentioned were instituted under the act of Congress of July 17, 1862, 'to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes.'

In July, 1863, the premises in controversy were seized by the marshal of the district, by order of the district-attorney, acting under instructions from the Attorney-General. In August following, a libel of information against the property was filed in the name of the United States, setting forth that the plaintiff in this case was the owner of the property in question; that he had, since the passage of the above act, held an office of honor and trust under the government of the so-called Confederate States, and in various ways had given aid and comfort to the rebellion; that the property had been seized in pursuance of the act in compliance with instructions from the Attorney-General, and, by reason of the premises, was forfeited to the United States, and should be condemned. It closed with a prayer that process of monition might issue against the owner or owners of the property and all persons interested or claiming an interest therein, warning them at some early day 'to appear and answer' the libel; and, as the owner of the property was a non-resident and absent, that an order of publication in the usual form be also made. Upon this libel the district judge ordered process of monition to issue as prayed, and designated a day and place for the trial of the cause, and that notice of the same, with the substance of the libel, should be given by publication in a newspaper of the city, and by posting at the door of the court-house. The process of monition and notice were accordingly issued and published. Both described the land and mentioned its seizure, and named the day and place fixed for the trial. The monition stated that at the trial all persons interested in the land, or claiming an interest, might 'appear and make their allegations in that behalf.' The notice warned all persons to appear at the trial, 'to show cause why condemnation should not be decreed, and to intervene for their interest.'

The owner of the property, in response to the monition and notice, appeared by counsel, and filed a claim to the property and an answer to the libel. Subsequently, on the 10th of March, 1864, the district-attorney moved that the claim and answer and the appearance of the respondent by counsel be stricken from the files, on the ground that it appeared from his answer that he was at the time of filing the same 'a resident within the city of Richmond, within the Confederate lines, and a rebel.' On the same day the motion was granted, and the claim and answer ordered to be stricken from the files. The appearance of the respondent was by his answer. The court immediately entered its sentence and decree, condemning the property as forfeited to the United States, reciting that, the usual proclamation having been made, the default of all persons had been duly entered. The decree ordered the issue of a venditioni exponas for the sale of the property, returnable on the sixteenth day of the following April. At the sale under this writ the grantor of the defendant became the purchaser.

The question for determination is, whether the decree of condemnation thus rendered, without allowing the owner of the property to appear in response to the monition, interpose his claim for the property, and answer the libel, was of any validity. In other words, the question is, whether the property of the plaintiff could be forfeited by the sentence of the court in a judicial proceeding to which he was not allowed to appear and make answer to the charges against him, upon the allegation of which the forfeiture was demanded.

There were several libels of information filed against the property of the plaintiff at the same time with the one here mentioned. They were identical in their allegations, except as to the property seized, and the same motion to strike from the files the appearance, claim, and answer of the respondent was made in each case, and on the same day, and similar orders were entered and like decrees of condemnation. One of these was brought here, and is reported in the 11th of Wallace. In delivering the unanimous opinion of this court, upon reversing the decree in the case, and referring to the order striking out the claim and answer, Mr. Justice Swayne said: 'The order in effect denied the respondent a hearing. It is alleged he was in the position of an alien enemy, and could have no locus standi in that forum. If assailed there, he could defend there. The liability and right are inseparable. A different result would be a blot upon our jurisprudence and civilization. We cannot hesitate or doubt on the subject. It would be contrary to the first principles of the social compact and of the right administration of justice.' 11 Wall. 267.

The principle stated in this terse language lies at the foundation of all well-ordered systems of jurisprudence. Wherever one is assailed in his person or his property, there he may defend, for the liability and the right are inseparable. This is a principle of natural justice, recognized as such by the common intelligence and conscience of all nations. A sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal.

That there must be notice to a party of some kind, actual or constructive, to a valid judgment affecting his rights, is admitted. Until notice is given, the court has no jurisdiction in any case to proceed to judgment, whatever its authority may be, by the law of its organization, over the subject-matter. But notice is only for the purpose of affording the party an opportunity of being heard upon the claim or the charges made; it is a summons to him to appear and speak, if he has any thing to say, why the judgment sought should not be rendered. A denial to a party of the benefit of a notice would be in effect to deny that he is entitled to notice at all, and the sham and deceptive proceeding had better be omitted altogether. It would be like saying to a party, Appear, and you shall be heard; and, when he has appeared, saying, Your appearance shall not be recognized, and you shall not be heard. In the present case, the District Court not only in effect said this, but immediately added a decree of condemnation, reciting that the default of all persons had been duly entered. It is difficult to speak of a decree thus rendered with moderation; it was in fact a mere arbitrary edict, clothed in the form of a judicial sentence.

The law is, and always has been, that whenever notice or citation is required, the party cited has the right to appear and be heard; and when the latter is denied, the former is ineffectual for any purpose. The denial to a party in such a case of the right to appear is in legal effect the recall of the citation to him. The period within which the appearance must be made and the right to be heard exercised, is, of course, a matter of regulation, depending either upon positive law, or the rules or orders of the court, or the established practice in such cases. And if the appearance be not made, and the right to be heard be not exercised, within the period thus prescribed, the default of the party prosecuted, or possible claimants of the property, may, of course, be entered, and the allegations of the libel be taken as true for the purpose of the proceeding. But the denial of the right to appear and be heard at all is a different matter altogether.

The position of the defendant's counsel is, that, as the proceeding for the confiscation of the property was one in rem, the court, by seizure of the property, acquired jurisdiction to determine its liability to forfeiture, and consequently had a right to decide all questions subsequently arising in the progress of the cause; and its decree, however erroneous, cannot, therefore, be collaterally assailed. In supposed support of this position, opinions of this court in several cases are cited, where similar language is used respecting the power of a court to pass upon questions arising after jurisdiction has attached. But the preliminary proposition of the counsel is not correct. The jurisdiction acquired by the court by seizure of the res was not to condemn the property without further proceedings. The physical seizure did not of itself establish the allegations of the libel, and could not, therefore, authorize the immediate forfeiture of the property seized. A sentence rendered simply from the fact of seizure would not be a judicial determination of the question of forfeiture, but a mere arbitrary edict of the judicial officer. The seizure in a suit in rem only brings the property seized within the custody of the court, and informs the owner of that fact. The theory of the law is, that all property is in the possession of its owner, in person or by agent, and that its seizure will, therefore, operate to impart notice to him. Where notice is thus given, the owner has the right to appear and be heard respecting the charges for which the forfeiture is claimed. That right must be recognized and its exercise allowed before the court can proceed beyond the seizure to judgment. The jurisdiction acquired by the seizure is not to pass upon the question of forfeiture absolutely, but to pass upon that question after opportunity has been afforded to its owner and parties interested to appear and be heard upon the charges. To this end some notification of the proceedings, beyond that arising from the seizure, prescribing the time within which the appearance must be made, is essential. Such notification is usually given by monition, public proclamation, or publication in some other form. The manner of the notification is immaterial, but the notification itself is indispensable.

These views find corroboration in the opinion of Mr. Justice Story, in the case of Bradstreet v. Neptune Insurance Co., 3 Sumn. 601. In that case, the action was upon a policy of insurance upon a vessel, the declaration alleging its loss by seizure of the Mexican government. The defendants admitted the seizure, but averred that it was made and that the vessel was condemned for violation of the revenue laws of Mexico, and to prove the averment produced a transcript of the record of the proceedings of the Mexican court against the vessel, and of the decree of condemnation. Among the questions considered by the court was the effect of that record as proof of the laws of Mexico, and of the jurisdiction of the court and the cause of seizure and condemnation. After stating that the sentence of a foreign court of admiralty and prize in rem was in general conclusive, not only in respect to the parties in interest, but also for collateral purposes and in collateral suits, as to the direct matter of title and property in judgment, and as to the facts on which the tribunal professed to proceed, Mr. Justice Story said, that it did not strike him that any sound distinction could be made between a sentence pronounced in rem by a court of admiralty and prize, and a like sentence pronounced by a municipal court upon a seizure or other proceeding in rem; that in each the sentence was conclusive as to the title and property, and, it seemed to him, was equally conclusive as to the facts on which the sentence professed to be founded. But the learned judge added, that it was an essential ingredient in every case, when such effect was sought to be given to the sentence, that there should have been proper judicial proceedings upon which to found the decree; that is, that there should have been some certain written allegations of the offence, or statement of the charge for which the seizure was made, and upon which the forfeiture was sought to be enforced; and that there should be some personal or public notice of the proceedings, so that the parties in interest, or their representatives or agents, might know what the offence was with which they were charged, and might have an opportunity to defend themselves, and to disprove the same. 'It is a rule,' said the learned judge, 'founded in the first principles of natural justice, that a party shall have an opportunity to be heard in his defence before his property is condemned, and that charges on which the condemnation is sought shall be specific, determinate, and clear. If a seizure is made and condemnation is passed without the allegation of any specific cause of forfeiture or offence, and without any public notice of the proceedings, so that the parties in interest have no opportunity of appearing and making a defence, the sentence is not so much a judicial sentence as an arbitrary sovereign edict. It has none of the elements of a judicial proceeding, and deserves not the respect of any foreign nation. It ought to have no intrinsic credit given to it, either for its justice or for its truth, by any foreign tribunal. It amounts to little more, in common sense and common honesty, than the sentence of the tribunal which first punishes and then hears the party, castigatque, auditque. It may be binding upon the subjects of that particular nation. But, upon the eternal principles of justice, it ought to have no binding obligation upon the rights or property of the subjects of other nations; for it tramples under foot all the doctrines of international law, and is but a solemn fraud, if it is clothed with all the forms of a judicial proceeding.'

In another part of the same opinion the judge characterized such sentences 'as mere mockeries, and as in no just sense judicial proceedings;' and declared that they 'ought to be deemed, both ex directo in rem and collaterally, to be mere arbitrary edicts or substantial frauds.'

This language, it is true, is used with respect to proceedings in rem of a foreign court, but it is equally applicable and pertinent to proceedings in rem of a domestic court, when they are taken without any monition or public notice to the parties. In Woodruff v. Taylor, 20 Vt. 65, the subject of proceedings in rem in our courts is elaborately considered by the Supreme Court of Vermont. After stating that in such cases notice is given to the whole world, but that from its nature it is to the greater part of the world constructive only, and mentioning the manner in which such notice is given in cases of seizure for violation of the revenue laws, by publication of the substance of the libel with the order of the court thereon specifying the time and place of trial, and by proclamation for all persons interested to appear and contest the forfeiture claimed, the court observed, that in every court and in all countries where judgments were respected, notice of some kind was given, and that it was just as material to the validity of a judgment in rem that constructive notice at least should appear to have been given as that actual notice should appear upon the record of a judgment in personam. 'A proceeding,' continued the court, 'professing to determine the right of property, where no notice, written or constructive, is given, whatever else it might be called, would not be entitled to be dignified with the name of a judicial proceeding. It would be a mere arbitrary edict, not to be regarded anywhere as the judgment of a court.'

In the proceedings before the District Court in the confiscation case, monition and notice, as already stated, were issued and published; but the appearance of the owner, for which they called, having been refused, the subsequent sentence of confiscation of his property was as inoperative upon his rights as though no monition or notice had ever been issued. The legal effect of striking out his appearance was to recall the monition and notice as to him. His position with reference to subsequent proceedings was then not unlike that of a party in a personal action, after the service made upon him has been set aside. A service set aside is never service by which a judgment in the action can be upheld.

The doctrine invoked by counsel, that, where a court has once acquired jurisdiction, it has a right to decide every question which arises in the cause, and its judgment, however erroneous, cannot be collaterally assailed, is undoubtedly correct as a general proposition, but, like all general propositions, is subject to many qualifications in its application. All courts, even the highest, are more or less limited in their jurisdiction: they are limited to particular classes of actions, such as civil or criminal; or to particular modes of administering relief, such as legal or equitable; or to transactions of a special character, such as arise on navigable waters, or relate to the testamentary disposition of estates; or to the use of particular process in the enforcement of their judgments. Norton v. Meador, Circuit Court for California. Though the court may possess jurisdiction of a cause, of the subject-matter, and of the parties, it is still limited in its modes of procedure, and in the extent and character of its judgments. It must act judicially in all things, and cannot then transcend the power conferred by the law. If, for instance, the action be upon a money demand, the court, notwithstanding its complete jurisdiction over the subject and parties, has no power to pass judgment of imprisonment in the penitentiary upon the defendant. If the action be for a libel or personal tort, the court cannot order in the case a specific performance of a contract. If the action be for the possession of real property, the court is powerless to admit in the case the probate of a will. Instances of this kind show that the general doctrine stated by counsel is subject to many qualifications. The judgments mentioned, given in the cases supposed, would not be merely erroneous: they would be absolutely void; because the court in rendering them would transcend the limits of its authority in those cases. See the language of Mr. Justice Miller, to the same purport, in the case of Ex parte Lange, 18 Wall. 163. So it was held by this court in Bigelow v. Forrest, 9 id. 351, that a judgment in a confiscation case, condemning the fee of the property, was void for the remainder, after the termination of the life-estate of the owner. To the objection that the decree was conclusive that the entire fee was confiscated, Mr. Justice Strong, speaking the unanimous opinion of the court, replied: 'Doubtless a decree of a court, having jurisdiction to make the decree, cannot be impeached collaterally; but, under the act of Congress, the District Court had no power to order a sale which should confer upon the purchaser rights outlasting the life of French Forrest (the owner). Had it done so, it would have transcended its jurisdiction.' Id. 350.

So a departure from established modes of procedure will often render the judgment void; thus, the sentence of a person charged with felony, upon conviction by the court, without the intervention of a jury, would be invalid for any purpose. The decree of a court of equity upon oral allegations, without written pleadings, would be an idle act, of no force beyond that of an advisory proceeding of the Chancellor. And the reason is, that the courts are not authorized to exert their power in that way.

The doctrine stated by counsel is only correct when the court proceeds, after acquiring jurisdiction of the cause, according to the established modes governing the class to which the case belongs, and does not transcend, in the extent or character of its judgment, the law which is applicable to it. The statement of the doctrine by Mr. Justice Swayne, in the case of Cornell v. Williams, reported in the 20th of Wallace, is more accurate. 'The jurisdiction,' says the justice, 'having attached in the case, every thing done within the power of that jurisdiction, when collaterally questioned, is held conclusive of the rights of the parties, unless impeached for fraud.' 20 Wall. 250.

It was not within the power of the jurisdiction of the District Court to proceed with the case, so as to affect the rights of the owner after his appearance had been stricken out, and the benefit of the citation to him thus denied. For jurisdiction is the right to hear and determine; not to determine without hearing. And where, as in that case, no appearance was allowed, there could be no hearing or opportunity of being heard, and, therefore, could be no exercise of jurisdiction. By the act of the court, the respondent was excluded from its jurisdiction.

Judgment affirmed.

MR. JUSTICE MILLER, MR. JUSTICE BRADLEY, and MR. JUSTICE HUNT dissented.

NOTE.-Gregory v. McVeigh, also in error to the Corporation Court of the city of Alexandria, Va., was argued at the same time and by the same counsel as was the preceding case.

MR. JUSTICE FIELD delivered the opinion of the court.

This case is similar to that of Windsor v. McVeigh, and, upon the authority of the decision in that case, the judgment below is affirmed.

MR. JUSTICE MILLER, MR. JUSTICE BRADLEY, and MR. JUSTICE HUNT, dissented.

title: Windsor v. McVeigh/Opinion of the Court


text: Talk:Windsor v. McVeigh/Opinion of the Court


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Bigelow v. Berkshire Life Insurance Company

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

This is an action on two policies issued by the defendant on the life of Henry W. Bigelow. Each contained a condition in avoidance, if the insured should die by suicide, sane or insane; and in such case the company agreed to pay to the party in interest the surrender value of the policy at the time of the death of Bigelow. The defendant pleaded that Bigelow died from the effects of a pistol-wound inflicted upon his person by his own hand, and that he intended by this means to destroy his life. To this the plaintiffs replied, that Bigelow, at the time when he inflicted the pistol-wound upon his person by his own hand, was of unsound mind, and wholly unconscious of the act. A demurrer to this replication was sustained by the court below, and the plaintiffs bring the case here for review.

Argued by Mr. Thomas Hoyne for the plaintiff in error.

An act of self-destruction has never been held to avoid a policy of life insurance, when the insane person has been so unsound of mind as to be unconscious of the act he was committing. Borradaile v. Hunter, 5 Mann. & Gr. 639; Hartman v. ''Keystone Ins. Co., 21 Penn. 466; Dean v. Mutual Life Ins. Co., 4 Allen, 96; Cooper v. Mass. Life Ins. Co.'', 102 Mass. 227; Eastbrook v. ''Union Ins. Co.'', 54 Me. 224; Breasted v. Farmers' Loan and Trust Co., 4 Hill, 73; 4 Seld. 299; 2 Bigelow, Life Ins. Cas. 4; Bliss, Life Ins., sect. 243, p. 415; Pierce v. ''Travellers' Ins. Co.'', 3 Ins. Law J. 422; Van Zandt v. ''Mutual Benefit Life Ins. Co.'', 55 N. Y. 177.

In all cases, sane or insane, the law allows the plaintiff to show that death was not intended by the deceased; but that it was an involuntary act, or a result of mental disease. Borradaile v. Hunter, supra; Hopps' Case, 31 Ill. 392.

The decided cases all establish that only persons capable of discriminating the particular act are to be held in law accountable. Van Zandt v. ''Mutual Benefit Life Ins. Co., supra; Bliss, Life Ins., supra; Pierce v. Travellers' Ins. Co., supra; Breasted v. Farmers' Loan and Trust Co., supra; Life Ins. Co. v. Terry'', 15 Wall. 580, and cases there cited.

A suicide, 'sane or insane,' is a connection of words without meaning, if taken apart from their literal signification, or out of the context. Their real meaning as they stand connected with the other words of the proviso is, that, if the insured be sane or insane at the time he intentionally commits suicide, i.e., self-murder, the policy is to be void and of no effect.

Even if it be conceded that a death self-inflicted, whether a suicide or not, is within the terms of the policy, yet the fact that the death was not intentional, by reason of the insured's mental unconsciousness of his act, would clearly render the company liable.

Mr. H. G. Miller, contra.

MR. JUSTICE DAVIS delivered the opinion of the court.


text: Talk:Bigelow v. Berkshire Life Insurance Company


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Page:A short history of social life in England.djvu/295

Rh ducked three times into the muddy water, to cool "their choler and heat."

Added to these were the pillory, the branks or scold's bridle, the drunkard's cloak, the pruning knife for the excision of a culprit's ears, scissors for slitting his nostrils, thumbscrews and other extreme penalties. Every village had its whipping-post, for men and women were alike whipped at the "cart's tail" all over the country. Taken from prison, they were tied to the back of a cart, which was driven slowly through the streets, followed by a noisy crowd, while the miserable culprit was whipped till the skin was broken. And this was but i6o years ago. Notwithstanding all these most degrading punishments, pauperism continued to grow apace. It was not due to want of employment: there was work for all in the Georgian days.


text:
Bigelow v. Berkshire Life Insurance Company/Opinion of the Court

There has been a great diversity of judicial opinion as to whether self-destruction by a man, in a fit of insanity, is within the condition of a life policy, where the words of exemption are that the insured 'shall commit suicide,' or 'shall die by his own hand.' But since the decision in ''Life Ins. Co. v. Terry'', 15 Wall. 580, the question is no longer an open one in this court. In that case the words avoiding the policy were, 'shall die by his own hand;' and we held that they referred to an act of criminal self-destruction, and did not apply to an insane person who took his own life. But the insurers in this case have gone further, and sought to avoid altogether this class of risks. If they have succeeded in doing so, it is our duty to give effect to the contract; as neither the policy of the law nor sound morals forbid them to make it. If they are at liberty to stipulate against hazardous occupations, unhealthy climates, or death by the hands of the law, or in consequence of injuries received when intoxicated, surely it is competent for them to stipulate against intentional self-destruction, whether it be the voluntary act of an accountable moral agent or not. It is not perceived why they cannot limit their liability, if the assured is in proper language told of the extent of the limitation, and it is not against public policy. The words of this stipulation, 'shall die by suicide (sane or insane),' must receive a reasonable construction. If they be taken in a strictly literal sense, their meaning might admit of discussion; but it is obvious that they were not so used. 'Shall die by his own hand, sane or insane,' is, doubtless, a more accurate mode of expression; but it does not more clearly declare the intention of the parties. Besides, the authorities uniformly treat the terms 'suicide' and 'dying by one's own hand,' in policies of life insurance, as synonymous, and the popular understanding accords with this interpretation. Chief Justice Tindall, in Borradaile v. Hunter, 5 Mann. & Gr. 668, says, 'The expression, 'dying by his own hand,' is, in fact, no more than the translation into English of the word of Latin origin, 'suicide." Life insurance companies indiscriminately use either phrase, as conveying the same idea. If the words, 'shall commit suicide,' standing alone in a policy, import self-murder, so do the words, 'shall die by his own hand.' Either mode of expression, when accompanied by qualifying words, must receive the same construction. This being so, there is no difficulty in defining the sense in which the language of this condition should be received. Felonious suicide was not alone in the contemplation of the parties. If it had been, there was no necessity of adding any thing to the general words, which had been construed by many courts of high authority as not denoting self-destruction by an insane man. Such a man could not commit felony; but, conscious of the physical nature, although not of the criminality, of the act, he could take his own life, with a settled purpose to do so. As the line between sanity and insanity is often shadowy and difficult to define, this company thought proper to take the subject from the domain of controversy, and by express stipulation preclude all liability by reason of the death of the insured by his own act, whether he was at the time a responsible moral agent or not. Nothing can be clearer than that the words, 'sane or insane,' were introduced for the purpose of excepting from the operation of the policy any intended self-destruction, whether the insured was of sound mind or in a state of insanity. These words have a precise, definite, well-understood meaning. No one could be misled by them; nor could an expansion of this language more clearly express the intention of the parties. In the popular, as well as the legal, sense, suicide means, as we have seen, the death of a party by his own voluntary act; and this condition, based, as it is, on the construction of this language, informed the holder of the policy, that, if he purposely destroyed his own life, the company would be relieved from liability. It is unnecessary to discuss the various phases of insanity, in order to determine whether a state of circumstances might not possibly arise which would defeat the condition. It will be time to decide that question when such a case is presented. For the purposes of this suit, it is enough to say, that the policy was tendered void, if the insured was conscious of the physical nature of his act, and intended by it to cause his death, although, at the time, he was incapable of judging between right and wrong, and of understanding the moral consequences of what he was doing.

Insurance companies have only recently inserted in the provisos to their policies words of limitation corresponding to those used in this case. There has been, therefore, but little occasion for courts to pass upon them. But the direct question presented here was before the Supreme Court of Wisconsin in 1874, in Pierce v. The Travellers' Life Insurance Company, 34 Wis. 389, and received the same solution we have given it. More words were there used than are contained in this proviso; but the effect is the same as if they had been omitted. To say that the company will not be liable if the insured shall die by 'suicide, felonious or otherwise,' is the same as declaring its non-liability, if he shall die by 'suicide, sane or insane.' They are equivalent phrases. Neither the reasoning nor the opinion of that court is at all affected by the introduction of words which are not common to both policies.

It remains to be seen whether the court below erred in sustaining the demurrer. The replication concedes, in effect, all that is alleged in the plea; but avers that the insured at the time 'was of unsound mind, and wholly unconscious of the act.' These words are identical with those in the replication to the plea in Breasted v. Farmers' Loan and Trust Company, 4 Hill, 73; and Judge Nelson treated them as an averment that the assured was insane when he destroyed his life. They can be construed in no other way. If the insured had perished by the accidental discharge of the pistol, the replication would have traversed the plea. Instead of this, it confesses that he intentionally took his own life; and it attempts to avoid the bar by setting up a state of insanity. The phrase, 'wholly unconscious of the act,' refers to the real nature and character of the act as a crime, and not to the mere act itself. Bigelow knew that he was taking his own life, and showed sufficient intelligence to employ a loaded pistol to accomplish his purpose; but he was unconscious of the great crime he was committing. His darkened mind did not enable him to see or appreciate the moral character of his act, but still left him capacity enough to understand its physical nature and consequences.

In the view we take of the case, enough has been said to show that the court did not err in holding that the replication was bad.

Judgment affirmed.


text: Talk:Bigelow v. Berkshire Life Insurance Company/Opinion of the Court


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Sawin v. Kenny

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

Kenny and Foley, the plaintiffs below, sued Sawin and the Little Rock, Pine Bluff, and New Orleans Railroad Company, upon a contract which on its face appeared to have been executed by and to bind only Sawin, of the one part, and Kenny and Foley, of the other. A copy of the contract was attached to and made part of the complaint; which alleged that, although executed in the name of Sawin, it was, in fact, the contract of the railroad company, and that Sawin, by signing it, became liable jointly with the company for the performance of its obligations. The averment was then made, that the 'railroad company, by virtue of said contract, and the said Daniel C. Sawin, by signing the same and making himself party thereto,. . . were indebted to said plaintiffs for work and labor done, and materials furnished, under said written contract, in the principal sum of $8,816.08;' for which, with interest, a judgment was asked.

The defendants answered separately; the railroad company denying the execution of the contract and all liability under it. Sawin also denied the execution of the contract by the railroad company, and claimed that he alone was bound by it. He then set out his defence to the claim as made against him, and, among other things, said, 'It is not true that the said railroad company and this defendant, or either of them, were. . . indebted to the said plaintiffs in the sum of $8,816.08, for materials furnished, or work done, by said plaintiffs; and this defendant avers, that the entire sum due from this defendant to said plaintiffs, at the time of the commencement of this suit for said materials furnished and work done under said contract, was the sum of $2,500, for which this defendant hereby offers to let judgment go against him.'

A trial was then had to a jury upon the issues joined, which resulted in a verdict in favor of the railroad company, but against Sawin, for $9,131.98. After the verdict, Sawin moved an arrest of judgment against himself; assigning for cause:--

1. That the said plaintiffs did not by their said complaint state facts sufficient to constitute a cause of action; and—

2. That said plaintiffs have not by their said complaint stated or shown any right or cause of action against the defendant.

This motion was overruled, and judgment entered on the verdict. The case coming here upon writ of error, the only error assigned is the refusal of the court to arrest the judgment.

Submitted, on printed arguments, by Mr. Quinton Corwine for the plaintiff in error, and by Mr. A. H. Garland for the defendant in error.

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

title: Sawin v. Kenny


text: Talk:Sawin v. Kenny

title: Talk:Sawin v. Kenny


text:
Sawin v. Kenny/Opinion of the Court

We think the court below decided correctly. By the Code of Practice of Arkansas, which was in force when this judgment was rendered, it was provided, that, 'Where two or more persons are jointly bound by contract, the action thereon may be brought against all or any of them, at the plaintiff's option' (sect. 4480, Gantt's Dig., 1874); that 'judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants' (sect. 4701); and that, 'though all the defendants have been summoned, judgment may be rendered against any of them severally, where the plaintiff would be entitled to judgment against such defendants if the action had been against them alone' (sect. 4704). This, under the act of June 1, 1872 (17 Stat. 187, sect. 5; Rev. Stat. 914), furnished a rule of practice for the courts of the United States in that State. Clearly, in this case, if the action had been brought against Sawin alone, judgment could have been entered against him on this verdict. He, in his answer, acknowledged his liability upon the contract, which is the foundation of the action, and offered to confess judgment for $2,500. After that, as between him and the plaintiffs, the only question was one of amount. Substantial justice has, therefore, been done between these parties; and, by the operation of these remedial provisions of the code, the sacrifice of substance to mere form and mode of proceeding has been prevented.

Judgment affirmed.

title: Sawin v. Kenny/Opinion of the Court


text: Talk:Sawin v. Kenny/Opinion of the Court


text:
Indianapolis and St. Louis Railroad Company v. Horst

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

This was an action by the defendant in error against the Indianapolis and St. Louis Railroad Company for injuries received while travelling on a cattle-train, and resulted in a verdict against the company for $8,000; whereupon it brought the case here. The facts are stated, and the assignment of errors referred to, in the opinion of the court.

Argued by Mr. W. A. Brown and Mr. John T. Dye for the plaintiff in error.

1. It was error for the court to instruct the jury that a person taking a cattle-train is entitled to the highest possible degree of care and diligence, regardless of the kind of train he takes. Railroad Co. v. Lockwood, 17 Wall. 357; Unger v. ''Forty-second St., &c. R. R. Co., 51 N. Y. 502; Hegeman v. Western R. R. Corporation'', 13 id. 9; Lebanon v. East Boston Ferry Co., 11 Allen, 515; Ford v. London & South-western Railway Co., 2 Fost. & Find. 830; Warren v. Fitchburg R. R. Co., 8 Allen, 230; Simmons v. New Bedford, Vineyard, & Nantucket Company, 97 Mass. 368; Galena & Chicago Union Railway Co. v. Fay, 26 Ill. 568; Fuller v. Talbott, 23 id. 357; ''Pitt., Cin. & St. L. R. R. Co. v. Thompson'', 56 id. 168; Dunn v. Grand Trunk Railway Co., 58 Me. 187; Chicago, B. & Q. R. R. Co v. Hazzard, 26 Ill. 376.

2. The court erred in refusing to instruct the jury that their investigation as to the negligence of defendant should be confined to the charges alleged in the declaration.

The defendant had a right to a trial, according to law, of the issues joined. The question of its liability for damages should not have been left to depend upon the general conclusion of a jury, that it had not exercised the highest possible degree of care in his transportation, unrestrained by the pleadings.

3. The court erred in permitting the plaintiff to prove the manner of changing cabooses at Mattoon, after the injury, to show the 'wrongfulness of their (defendants') conduct' at the time of the accident. Gahagan, Adm'r, v. Boston & Lowell R. R. Co., 1 Allen, 189.

4. The evidence did not show any negligence of the defendant in the particulars mentioned in the complaint.

On the contrary, plaintiff's evidence showed that the accident resulted from his own negligence. The defendant was therefore entitled to a verdict. Todd v. Old Colony & Fall River R. R. Co., 3 Allen, 21; Jeffersonville R. R. Co. v. Hendricks, 26 Ind. 231; Bridges v. North London Railway Co., 6 Law Rep. Q. B. 384; Smer v. G. W. Railway Co., 4 Law Rep. Ex. 117; Adams v. L. & Y. Railway Co., 4 Law Rep. C. P. 742; Penn. R. R. Co. v. Aspell, 23 Penn. St. 149.

5. Although plaintiff's evidence showed that the accident resulted from plaintiff's negligence, the court charged that 'the burden of proving contributory negligence rests on defendant; and it will not avail the defendant, unless it has been established by a preponderance of the evidence.' This was error. Chicago, B. & Q. R. R. Co. v. Hazzard, supra; Butterfield v. Forester, 11 East, 60; Button v. Hudson River R. R. Co., 18 N. Y. 253; Mayo v. Boston & Maine R. R. Co., 104 Mass. 140; Johnson v. Hudson River R. R., 20 N. Y. 60.

6. It was error for the court to refuse the motion of defendant to instruct the jury to find specially upon particular questions of fact involved in the issues, in the event they should find a general verdict. Osborn v. United States Bank, 8 Wheat. 366; Butler v. Young, Chicago Legal News, vol. v. p. 146; ''Republican Ins. Co. v. Williams'', id. p. 97; Sage v. Brown, 24 Ind. 469; Barnes v. Williams, 11 Wheat. 415; Prentice v. Zane's Adm'r, 8 How. 487; ''Livingston Mar. Ins. Co., 6 Cranch, 280; Peterson v. United States'', 2 Wash. C. C. 36; Butler v. Hooper, 1 id. 499; Bellows v. ''Directors, &c. of Hallowell and Augusta Bank'', 2 Mason, 31.

Mr. A. G. Porter for the defendant in error.

The passenger was entitled to the highest degree of care and diligence. Philadelphia & Reading R. R. Co. v. Derby, 14 How. 486; Steamboat New World v. King, 16 How. 469.

The burden of proving contributory negligence rested on the defendant. Railroad Company v. Gladman, 15 Wall. 401; Whart. on Neg., sect. 423.

The refusal of the court to submit the interrogatories of the defendant below to the jury was correct. Nudd et al. v. Burrows, Assignee, 91 U.S. 426.

MR. JUSTICE SWAYNE delivered the opinion of the court.


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Page:Haiti- Her History and Her Detractors.djvu/380

344 that tie could not be considered to have been a wealthy man. General Boisrond Canal, who was at three different times at the head of the administration of his country, lived on the pension granted him and on the products of his plantation up to the time of his death, which occurred in 1905, upon which Congress granted a pension to his widow. Ex-President Légitime's sole income is the pension which the country grants to its former rulers.

Those who charge all the Presidents of Haiti and the Haitian people at large with being dishonest and corrupt are merely propagating slanders in more or less good faith.

At times there are grave scandals in France; nevertheless, no impartial-minded person will infer from this that the French people are corrupt, for their probity is proverbial; a whole nation cannot be made to suffer for the faults or the failings of a few of its citizens.

In the United States the administration of some important cities—unnecessary to name here—has often been in the hands of very unscrupulous men who have enriched themselves at the expense of the people. Even among the members of a body as deserving of respect and as justly esteemed as is the Senate of the United States there have been some men who have forgotten the duty they owe to themselves and to the States which placed their trust in them. Does it follow that because a few men have transgressed the rigid code of honor, that the Americans are as a whole a corrupt people, or that the Senate is undeserving of the universal respect it enjoys? Most assuredly not. The foreigner who, in making use of a few particular cases in generalizing, makes the whole nation or all Congress responsible for the misconduct of a few individuals, the "black sheep" among them, would be guilty of gross slander toward the United States in thus misrepresenting the solid qualities and virtues of a thoroughly honest people. When there is question of the Senate, its tradition and its reputation place it so high in the public opinion that it does not suffer by the failings of any of its members.


text: Talk:Indianapolis and St. Louis Railroad Company v. Horst