text:
Jones v. McMasters

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

The case is stated in the opinion of the court.

It was argued by Mr. Hale for the plaintiffs in error, and by Mr. Hughes for the defendant.

The principal question in the case was, whether Catherine McMasters was a citizen of Mexico or of Texas. The arguments of the counsel upon this point were as follows:

Mr. Hale's first point was this:

The District Court should not have sustained the demurrer to the plea to the jurisdiction pleaded by John R. Tally. It appeared by the allegations of that plea that the plaintiff was, at the time of the institution of the suit, a citizen of the State of Texas. The Constitution of the Republic of Texas declared that 'all persons (Africans, the descendants of Africans, and Indians, excepted) who were residing in Texas on the day of the declaration of independence, shall be considered citizens of the Republic, and entitled to the privileges of such.' (Const. Rep. Gen. Prov., sec. 10; Hart. Dig., p. 38.) And the incorporation of the Republic of Texas into the Union, 'on an equal footing with the original States in every respect,' necessarily onverted the citizens of the Republic of Texas into citizens of the State of Texas and of the United States. (Joint Resolution for annexing Texas to the United States, March 1, 1845, 5 Stat. at L., 797; act of Dec. 29, 1845, 6 Stat. at L., 1.) It follows, that any person who, within the meaning of the Constitution of the Republic, resided in Texas at the time of the declaration of independence, and continued thus to be a citizen of the Republic until the period of annexation to the United States, became thereby a citizen of the State of Texas, and was not competent to bring a suit, in the District Court of the United States, against other citizens of the same State. The only point which presents any difficulty is in relation to the meaning of the phrase, 'who were residing in Texas,' used in the Constitution of the Republic. There can be little doubt, however, that the framers of the Constitution intended this phrase to be equivalent to the corresponding one, 'who had their domicil in Texas,' and did not design to deprive of their citizenship those who were physically absent from the country. Many of the most respectable and deserving residents of Texas were not, personally, within the limits of the Republic at the date of the declaration of independence. They had been forced to leave the country, temporarily, by the advance of the Mexican army; they had accompanied their suffering families to the refuge offered by the United States, on the eastern bank of the Sabine; they had been sent on missions by the General Council, to arouse the sympathies of the Western States; they had returned to their former homes, to bring their wives and children, left there during hostilities, to the country now redeemed by their arms. The history and legal annals of Texas are filled with examples. (Yoakum's History of Texas, vol. II, pp. 34, 36, 118, 125, 175, 181; Ordinances of Gen. Council, pp. 52, 55, 56, 58; Republic v. Young, Dallam, 464; The State v. Skidmore, 5 Tex., 469; Russell v. Randolph, 11 Tex., 464-'6.) It could not be intended by the Constitution of the new State, then in need of citizens, and anxious to attract them, to disfranchise such persons by a rigorous and literal application of the term 'resident.' And this conclusion is confirmed by the established meaning of this term. (Lambe v. Smith, 15 Mees. and W., 434; Hylton v. Brown, 1 Wash. C. C. R., 314; Blanchard v. Stearns, 5 Met., 303; Crawford v. Wilson, 4 Barb., 522.) It is true that in some instances, especially in cases arising under attachment laws, it has been said that residence and domicil were not always equivalent terms, and that a citizen domiciliated in one State, might have a temporary residence in another. But these decisions were based entirely upon the consideration of the object and intention of the particular statutes which were then to be interpreted, and do not deny that in other statutes, having a more enlarged purpose, the two terms would be regarded as identical. Strictly speaking, the more fact of inhabitancy does not constitute a domicil; the intention of remaining must also exist; but it follows, from this very rule, that a domicil implies and presupposes a residence, and that one who had his domicil in the Republic of Texas, necessarily resided there-legally, if not physically. The position here assumed is strengthened by the fact, that at the time of the declaration of independence of Texas, the western portion of the new Republic was filled with the military forces and political adherents of the invader. It would be the height of absurdity to suppose that the framers of the Constitution designed to convert the troops and the supporters of Santa Anna, then actually within Texas, and with a literal residence in the country, into citizens of the revolutionary Government.

If, then, the Constitution of the Republic of Texas conferred citizenship upon those who had their domicil in the country at the time of the declaration of independence, it will follow that Catherine McMasters was a citizen of the Republic. It appeared by the allegations of the plea that the domicil of her birth or origin was in Texas, at the town of Goliad, and that domicil certainly continues until another is acquired. (Somerville v. Somerville, 5 Vesey, 787; Monro v. Monro, 7 Cl. and Fin., 876; Mascard de Prob. concl. 85, No. 1.) To acquire another domicil, an intention to abandon the domicil of origin must exist. (Monro v. Monro, 7 Cl. and Fin., 891.) And an absence of fifteen or twenty years is not in itself, without proof of such intention, sufficient to forfeit the original domicil. (Merlin, Repert. Domicile, § 2; Dalloz, Dict. Gen. Domicile, § 1, Nos. 9-13.) In the case of Sanint Germain, absent in India for forty-five years, it was decided that such absence, without proof of his intention to abandon his residence in France, did not divest him of his domicil. (Dalloz, Jur. Gen., vol. 6, pp. 383-'4.) The intention or animus, thus essential to the acquisition of a new domicil, must be a legal and disposing will, and the voluntary act of a mind capable in law of acting. It can only be evinced by a person sui juris. (Somerville v. Somerville, 5 Ves., 787; Guier v. O'Daniel & Young, note to 1 Binn., 349, 352.) And, a fortiori, an infant or child cannot be capable of such as intention. Nam infans, et qui infanti proximus est, non multum a furioso distat. (Inst. III, 19, 10.) A minor, without parents or legal tutor, can therefore never lose or abandon proprio marte the domicil of origin. (Story Confl. Laws, § 46, 506, note; 1 Burge Comm. Col. Law, 38, 39; Pothier, Cout. d'Orleans, Ch. 1, sec. 1, Nos. 12-18; ed. de Brugnet, vol. 1, p. 5; Desduitz de St. Pierre v. Revel, Sirey, 35, p. 2, 556.) And this principle has been repeatedly recognised in the decisions of the Supreme Court of Louisiana-a court the most conversant with such questions. (Robbins v. Weeks, 5 Mart. N. S., 379; Succession of M. J. Robert, 2 Rob. La. R., 435-'6.) It is true that the surviving father or mother, that is to say, the natural tutor, may change, at will, the domicil of the minor, and transfer it to a different country; (Potinger v. Wightman, 3 Mer., 67, 79;) but this power does not extend to a mere friend, or to a person assuming, without the direct authority of law, the custody of the minor's person. (Robbins v. Weeks, 5 Mart. N. S., 379.) These rules are well explained by J. Voet, in his Commentaries on the Pandects, (Lib. V, tit. I, No. 100,) where he says, 'Ut enim haud difficiliter admittendum sit minorennem non magis posse domicilium mutare quam contrahendo se obligare; tamen quemadmodum contrahere auctore tutore permissum ei est, itaque et domicilium cum patre matreve, tanquam tutelae ejus aut saltem educationi praeposita, tutoribus caeteris non contradicentibus, mutare nihil vetat.' It is because the authority of the tutor supplies the defect of legal capacity or volition in the minor, that the latter acquires the domicil to which he accompanies the guardian; but as the authority of the delegated or appointed tutor ceases when he removes beyond the limits of the country, (Johnstone v. Beattie, 10 Cl. and Fin., 42, 87, 113, 148,) only the natural guardian-the parent of the minor, whose power remains unimpaired-can change the domicil of his ward to a new country. (School Directors v. James, 2 Watts and S., 568, 572.) These principles are substantially recognised in the case of Hardy v. De Leon. (5 Tex., 234-'8.) Sylvester De Leon resided in Texas at the date of the declaration of independence; in 1838, he was removed by the military authorities of the country to Louisiana, where his son, Francisco Santiago De Leon, was born; the wife of Sylvester died; the family then removed to Tamaulipas, and children were left in the care of their grandmother, while Sylvester returned to Texas; after a short visit, he again went to Tamaulipas, with the intention of returning to Texas with his children, but was killed on the road. Francisco, his youngest son, however, came to Texas, and lived at Goliad; and in a suit commenced in his name, it was pleaded by the defendants that he was an alien enemy. The Supreme Court of Texas held that the plaintiff's father, Sylvester De Leon, had never lost his citizenship in Texas; and if he had, or if his citizenship did not attach to his infant son, born in Louisiana, still the domicil of origin, acquired by the birth of Francisco in Louisiana, could not be forfeited by his removal, during minority, and without his own volition, to Mexico.

The case made by the present plea in abatement is stronger than that of Hardy v. De Leon. Catherine McMasters was a child, less than five years of age, at the time of her removal from the domicil of her parents and of her own birth, in Texas, to a foreign country. Her parents were both dead; she had had no recognised tutor, nor has she been emancipated by marriage; she was removed by the family of Manuel Sabriego, with which she has continued to reside; and it does not appear that the family, which she thus accompanied, had any legal authority whatever to control her course in life, or decide on her domicil. It was incumbent on the plaintiff to have repelled the legal presumption arising from these facts, by a replication to the plea, and the demurrer should have been overruled.

These views are confirmed by a recent decision of the Supreme Court of Texas, made at Tyler, in 1857, in the case of Wheeler v. Hollis. (See manuscript opinion.) In the course of this decision, after referring to the doubt as to the general authority of a guardian to change the domicil of his ward, the court states its conclusion to be, that a mother is not deprived, by her second marriage, of the natural right of controlling the person of her child, and determining its future home; but that this power does not extend to the mere legal guardian, after the death of both parents, nor authorize the mother, even as natural guardian, to change the domicil of the child, to the injury of its interests or the forfeiture of its property. 'When an infant has no parents, the law, it is true, remits him to his domicil of origin or to the last domicil of his parents. But when he has a surviving mother, it is difficult to perceive the justice or propriety there would be in not permitting her to make her domicil that of her children.' 'In other communities, it may not be unusual for children, who have parents, to have others appointed their guardians; and then it may be truly said that the ward is not naturally or necessarily a part of the guardian's family;' 'and so it may be said where the ward has no parent.' And the court cites the opinion of Ch. J. Gibson in School Directors v. James, 2 W. and S., 568, with approbation, and affirms the rule, that 'whatever may be the power of the guardian over the person and property of the ward, he cannot exercise it so as to injure the ward himself. The very end and purpose of his office is protection, and there is no imaginable case in which the law makes it an instrument of injury by implication.' It is evident, from this decision, that Sabriego had no power to remove the infant plaintiff from the domicil of origin for any reason, much less to make such removal when it would work a forfeiture of the minor's lands in Texas.

This part of the case, however, can be put upon higher ground. The principles of the Spanish law, and not the law of nations or of nature, controlled the political rights of persons under both the Republics of Mexico and of Texas. The jurisprudence of Spain in relation to questions of citizenship was stirctly and perhaps too exclusively national in its spirit. It admitted of no divided allegiance; it suffered no expatriation from the native soil. The domicil of the origin fixed the political rights and duties of the subject and citizen forever. 'By law, no one can denaturalize himself.' (Part. II, 18, 29; Part IV, 24-'5.) And Aguila y Roxas, in his excel lent notes to his grandfather's treatise on the conflict of laws in relation to entailments, sums up the whole doctrine in this paragraph: 'Originarius hujus Regni, qui in aliud se transtulit, non amittit originem, quia quemadmodum patrem mutare non possumus, ita nec patriam: pro qua videndi qui hanc sententiam sequuntur, Bart. in L. Assumptio in princ. ff. ad Muncipal; Sozin. in cap. licet ratione ult. num. 52, de for. compet; Sanchez de Matrim lib. 3, disp. 23, num. 4; Barbos. in L. Haeres absens § Proinde n. 24 and 5, 26, 41, 87, 102, and 130, cum seq. 7, Judic.; Menoch. cons. 1076 a num. 3, and cons. 600, num. 7, and cons. 80, num. 10, and seq. and cons. 112, n. 61; Pasc. de vir. pat. potest. 3. cap. 2, n. 31; Peregrin. cons. 55; Manuel Barbos. ad Ordin. Portugal, lib. 2, tit. 56, in prine. num. 2; Ciarlin. Controv. for. cap. 149, ubi elegans ratio ibi: quia statim atque natus est patria, illi hypothecatus est; ''Vid. D. Amaya'' in L. 7 c. in col. num. 32 and seq.; Carleval. de Judic. tit. 1, disp. 2, num. 124; Surd. cons. 560, num. 5; ''Cald. Pereyra'' in Resp. pro D. Joan. de Tassis n. 9.' (See Aguila y Roxas, Additae Quaest, P. III, ch. 1, no. 8; Notes of Greg. Lopez to Part. IV, 24-'5.) The political existence of Catherine McMasters was attached to the soil, and, in the language of Ciarlina above cited, she was mortgaged to it as her country. She might lose her rights of property by absence, or her civil privileges by disuse; but the Republic of Texas could not suffer her to sacrifice the political duties which wedded her to the country of her birth-much less allow a self-appointed guardian to sever this infant, without power or freedom of choice, from her natural mother.

Mr. Hughes:

I. This plea shows that plaintiff below did not reside in Texas at the day of the declaration of independence, but was then residing in Matamoras, or elsewhere in Mexico. And we would say that this settles the question, for a prima facie case, to say the least, is made, showing that she was not a citizen of the Republic.

The declaration of the Constitution of the Republic is, 'All persons (Africans excepted, &c.) who were residing in Texas on the day of the declaration of independence, shall be considered citizens of the Republic, and entitled to all the privileges of such.'-Const. of Rep., Gen. Prov., sec. 10, Hart. Dig., p. 38.

But, to avoid the effect of this provision, it is contended that the word 'residing,' in the connection it is found, should be construed the same as 'domicil;' and to show that there might be a domicil, without a continued actual residence, numerous authorities will no doubt be referred to-all of which, as before stated, will be admitted to be good law; but they do not meet the case. For it is manifest that the Convention which framed the Constitution did not intend to indicate 'domicil' by the language used; and the error, if error there be, in the premises or conclusions of counsel, is in supposing that only by virtue of the provision of the Constitution cited, was it declared who were citizens of Texas and who were not. We suppose the provision inserted was so inserted for the purpose of providing for a class of persons who, upon general principles, might not be citizens of the new Republic. There were and could not have been otherwise than great numbers of persons, within the limits of Texas, who had not become citizens, and all such it was intended to make citizens. This will appear from an examination of the other provisions of the same 10th section and other sections of the Constitution. But, again, had the word 'domicil' been used instead of 'residing,' there would have been something in the argument. Domicil does not necessarily indicate residence, for the authorities show, that though domicil may be accompanied with residence, it is not always so; but there may be domicil without actual residence. Residence does not always indicate domicil.

If it had been the intention to make a declaration which was to determine as to all persons who should be citizens of the Republic, some other term would have been used; but the use of the expression inserted shows that there might be other persons who were citizens, besides those provided for-those, for instance, who had been, and up to the day of the declaration of independence continued to be, citizens of the State of Coahuila and Texas, residing in Texas, but who might be temporarily absent from the State, on business of the country, &c.

Transient persons, however, were not provided for, as they should not have been. The Mexican army in the west spoken of, who came to subjugate Texas, being all transient, could not come within the language 'residing.'

This question will now be viewed in its true character, not as a mere question of domestic domicil, but in that more important, as a question of national character.

The plea shows that Catherine McMasters was, from the time of her birth up to about the age of four years, domiciled in Goliad, the place of her birth, but removed therefrom by those under whose charge she was, to Matamoras, before the declaration of independence. She then was a native Mexican, owing allegiance to the Republic of Mexico. When she was removed, a revolution had commenced, and was subsequently perfected by the declaration of independence. It will not be questioned, it is presumed, that after the close of the revolution, those who had participated in the struggle on either side, by reason of their adherence to Texas or to Mexico, were either Mexicans or Texans, as they adhered to the one side or the other. But how was it with others, who by no act of adherence had made an election? It has been contended for plaintiff in error, that this was settled by the domicil of each individual: if within Texas, then they were Texans; if in Mexico, then they were Mexicans. And in this particular, Catherine McMasters, being a minor, and incapable of will, though removed beyond the limits of Texas before independence was declared, did not forfeit the domicil of her birth, that of her parents, and was a Texan. When reasoning as to domicil, this may all be well enough; but, as before intimated, we are speaking of national character, under particular circumstances; and this, in the circumstances in which Catherine McMasters stood, depended on election. If she had remained in Texas, she would have been regarded as a Texan citizen. But having been removed to Mexico, she thereby adhered to Mexico, though she had no will on the subject; but being a minor, not having power to make an election, she had time until majority to make such election; and when made, she would be a citizen of that State to which she adhered; but in the mean time she could be considered in no other light than a citizen of Mexico. These principles have been recognised in this court, and applied to a case occurring during our revolution.

A native-born American, resident in New York, united himself to the English forces in possession of New York, and adhered throughout the struggle to the British side, and went off with the British forces, and died in the British dominions. His son, born in New York, was taken with him, and continued under his charge. This son afterwards claimed an estate by descent, and it was determined that he was an alien, and could not take by descent; and in delivering the judgment of the court, Mr. Justice Thompson says: 'John Inglis, if born before the declaration of independence, must have been very young at that time, and incapable of making an election for himself; but he must, after such a lapse of time, be taken to have adopted and ratified the choice made for him by his father, and still to retain the character of a British subject, and never to have become an American citizen, if his father was to be so considered. He was taken from this country by his father before the treaty of peace, and has continued ever since to reside within the British dominions, without signifying any dissent to the election made for him; and this ratification as to all his rights must relate back, and have the same effect and operation as if the election had been made by him at that time.'

Again: 'The British doctrine therefore is, that the American ante nati, by remaining in America after the treaty of peace, lost their character of British subjects. And our doctrine is, that by withdrawing from the country and adhering to the British Government, they lost, or perhaps, more properly speaking, never acquired, the character of American citizens.'-Inglis v. The Sailors' Snug Harbor, 3 Peters, 122-'3.

And this is the case which shows the distinction between mere questions of domestic domicil and the more important questions as to national character. In the former, the question of domicil of a minor is settled by that of his father, or the last of the father, when he is dead; while in the latter, the national character depends upon election, whether the party be adult or minor, though the act of the father making his election may operate an election for the son, if his dissent be not made in due time.

But did Catherine McMasters either show a dissent or an election to become a Mexican, instead of a Texan? It will be seen, by an examination of the plea in question, that she was about four years of age when she was removed by Manuel Sabriego to Matamoras, before the declaration of independence, in March, 1836; she was therefore of age eighteen years afterwards, in the year 1853. We have no evidence of a dissent to the act of removal by Sabriego, or of an election to become a citizen of Texas; and upon the principles established in the case referred to in this court, it must be presumed that she ratified the act of her friend, and remained a citizen of Mexico, and was so by relation from the time of removal and the declaration. But the plea is contradictory in regard to the age of Catherine McMasters, for after the statement of her age before the declaration of independence, it is in another part alleged that she was a minor at the time of filing said plea in 1854. This matter of the age is material; and if the contradiction is to have effect at all, one averment destroys the other, and then there is no good plea, for the want of material averments.

Mr. Justice NELSON delivered the opinion of the court.

title: Jones v. McMasters


text: Talk:Jones v. McMasters

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

title: Talk:Jones v. McMasters


text:
Jones v. McMasters/Opinion of the Court

This is a writ of error to the District Court of the United States, possessing Circuit Court powers, held in and for the district of Texas.

This suit was brought in the court below by Catherine McMasters, to recover the possession of a tract of land lying in the county of Goliad, in the forks of the San Antonio river and the Cabaza creek, containing four leagues of land. Four of the defendants put in a plea of not guilty. At a subsequent day, John R. Tally was allowed to come in and defend as landlord of Lott, one of the defendants. Whereupon, he put in a plea to the jurisdiction of the court, upon the ground the plaintiff was a citizen of the State of Texas. The plea states that she was born at Goliad, then in the State of Coahuila and Texas, when it was a part of the Republic of Mexico; that the domicil of her father and mother were at this place at the time of her birth, and continued there till their deaths. That the plaintiff was removed from the Territory of Texas to Matamoras, west of the Rio Grande, in Mexico, when she was about four years of age, during the revolutionary movements in Texas, and before the declaration of independence, which was on the 2d March, 1836. That she was removed in the family of M. Sabriego, in which she had lived in Texas, and with whom she has continued to reside since in Mexico. There was a demurrer to this plea, which was allowed, and the defendant required to answer over. The defendant then put in a plea of not guilty, and also a special plea in bar of alienage, and limitation of nine years before suit brought, founded upon a statute of the State of Texas.

There was a demurrer to this plea, but undisposed of for aught that appears on the record, when the parties went down to the trial of the issues of fact.

On the trial, the plaintiff proved a title in due form, under date of the 16th July, 1833, to the land in controversy, in her grandmother, Maria de Jesus Ybarba Trejo, followed by the official survey and judicial possession; also, that her grandmother died in possession of the premises, leaving the plaintiff's mother, her only child, at the death of her mother and father. Her grandmother and mother died about the year 1834. Her father was killed in the same year.

The defendants claimed under patents from the State of Texas, one dated 15th September, 1849, for three hundred and twenty acres; the other, the 20th of February, 1847, for like number; which covered the possessions on the tract in dispute of two of the defendants.

When the evidence closed, the counsel for the defendants prayed the court to charge the jury, that if the plaintiff, as a Mexican citizen, had continued to reside out of Texas from a period before the declaration of Texan independence, the action could not be sustained; which was refused, and a charge given, that her right remained as it was before the revolution, both according to general principles and by force of the treaty of Guadalupe Hidalgo; and that if she had a right of property, that gave her the right to sue here.

The counsel also prayed the court to charge, that if the jury should believe, from the evidence, that the survey and grant under which the plaintiff claims title extends so as to include a large area out of the limits prescribed by law, as dated in the decree No. 190, of the laws of Coahuila and Texas, and that the error did not arise from mistake of quantity, but from intention to depart from the legal mode of survey, then the jury might consider the grant void as to such area as might be out of the limits prescribed by law, and also that the grant itself would be void in such cases for want of legal survey. Which prayer was refused.

The counsel also requested the court to charge, that if the jury should believe, from the evidence, that the survey and grant under which the plaintiff claimed extended so as to include a large area as aforesaid, and that the grant and survey were so made by fraudulent procurement on the part of the grantee, by an agent in that behalf, then the jury might consider the grant as entirely void.

The court so instructed the jury; but with the addition, that unless the alcalde commissioner was informed, at the time he gave possession and issued the title, of the fact that the survey had been extended so as to include a large area, &c., the grant would not be void; that the fraudulent procurement of the survey alone would not vitiate the grant.

The counsel also requested the court to charge, that the grant under which the plaintiff claimed is one of the class that might be forfeited for non-performance of conditions. That ordinarily a law of the Legislature, and judicial action under it, would be necessary to avoid such a grant. Yet that claimant might act so as to supersede the necessity of such a judicial determination; and if conduct of plaintiff amounted to an admission of the forfeiture, she could not afterwards set up the right, especially against a person who had, in the mean time, acquired a grant from the State; and that it was a question for the jury to determine, whether the conduct of the plaintiff amounted to an admission of forfeiture.

The court gave the instruction, with the addition, that it was a question as to the actual intention of the plaintiff; and the jury should be satisfied, considering the infancy and all other circumstances, that such was in fact her intention, or they should find for the plaintiff.

The jury found a verdict for the plaintiff.

As the practice in the court below permits pleas of whatever nature or description to be put in as a defence to the suit at the same time, and without regard to the order of pleas, as known to the system of the common law, it will be necessary in the first place to examine the question raised on the demurrer to the plea to the jurisdiction. It is insisted that the plaintiff is a citizen of the State of Texas, according to the facts as stated in the plea and admitted by the demurrer; and if so, as she is not a citizen and resident of a different State, but a resident of Texas, the suit cannot be maintained within the 11th section of the judiciary act. We think the objection not well founded.

The plaintiff was born under the dominion of the Mexican Republic, and has lived under it ever since her birth, and beyond all question, therefore, is a citizen of that Government, owing it allegiance, which has never been interrupted or changed. There has been no act of hers, or of any one competent to represent her, or to determine her election, indicating an intention to throw off this allegiance, and to attach herself to the new sovereignty of Texas. Having been born and having always lived under the old Government, the burden rested upon the defendants, who claimed that she was a citizen of the new one, to establish the fact of the change of her allegiance. (2 Cranch, 280; 4 ib., 209; 1 Dallas, 53; 20 Johns. R., 313; 3 Peters R., 99, 122, 123; 2 Kent C., 40, 41.) The facts set up in the plea prove the contrary. According to these, the plaintiff was nineteen years old when this suit was commenced, and between twenty-two and twenty-three years when the plea was put in to the jurisdiction. If she was competent to make an election while a minor, but after she had arrived at mature years, as to the Government to which she would owe allegiance, the presumption, upon the facts, is, that she has made it in favor of the one under which she has lived since her birth. If she was incompetent to make it during her minority, then the allegiance due at her birth continued, and existed at the time of the commencement of the suit.

We do not enter upon the question of the domicil of a minor discussed on the argument, nor express any opinion upon it, as the question here is one of national character, and does not stand upon the mere doctrines of municipal law, but upon the more general principles of the law of nations. (3 Peters, 242; 2 J. Cas., 29.)

Assuming that the plaintiff is an alien, and not a citizen of Texas, the next question is, whether or not she is under any disability that would prevent her from the assertion of her title to the premises in question; in otherwords, whether her absence and alienage worked a forfeiture of the estate. The general principle is undisputed, that the division of an empire works no forfeiture of a right of property previously acquired. Kelly v. Hamson. (2 J. Cases, 29; 7 Pet., 87.) And, consequently, the plaintiff's right still exists in full effect, unless the new sovereignty created, within which the lands are situate, have taken some step to abrogate it. The title remains after the revolution, and erection of the new Government, the same as before. The 10th section of the Constitution of the Republic of Texas, adopted the 17th March, 1836, provided that 'no alien shall hold land in Texas, except by title emanating directly from the Government of this Republic.'

By the 20th section of the 7th article of the present Constitution of the State, it is provided 'that the rights of property and of action which have been acquired under the Constitution and laws of the Republic of Texas shall not be divested; nor shall any rights or actions which have been divested, barred, or declared null and void, by the Constitution and laws of the Republic of Texas, be reinvested or reinstated by this Constitution; but the same shall remain precisely in the situation which they were before the adoption of this Constitution.' And by the 4th section of the 13th article, it is provided 'that all fines, penalties, forfeitures, and escheats, which have accrued to the Republic of Texas under the Constitution and laws, shall accrue to the State of Texas; and the Legislature shall, by law, provide a method for determining what lands may have been forfeited or escheated.'

It is understood that the Legislature of Texas has not yet passed any law providing for the steps to be taken to give effect to escheats for alienage, or otherwise; at least, no such law has been referred to, or relied on, in the argument; and the course of decision in the courts of Texas appears to be, that, until some act of the Legislature is passed on the subject, effect cannot be given to the plea of alienage, or, at least, that some proceeding must be had, on the part of the Government, divesting the estate for this cause, before effect can be given to it. 15 Texas R., 495.

The defence of alienage, therefore, was properly overruled by the court below.

The counsel for the defendants insist that the estate of the plaintiff became forfeited under the Mexican laws, by her removal from the State of Coahuila and Texas to Matamoras, while under the Mexican Government, and a permanent residence taken up there.

But the removal that worked a forfeiture under Mexican colonization laws, and divestiture of the title without judicial inquiry, was a removal out of the Republic of Mexico, and settlement in a foreign country. The principle has no application in this case. 18 How., 235, (McKenny v. Sarvego.) The remaining questions in the case relate to those arising upon the survey and location of the premises in question. This survey and location were made by the Government surveyor, under the direction of the alcalde and land commissioner of the municipality, who was deputed by the Governor to cause the land to be surveyed, and to convey the title in due form. The counsel for the defendants claimed the right to inquire into the regularity of this survey and location, and also into the bona fides of the transaction.

It must be remembered that this is a suit at law to recover the possession of the land in dispute; and that, although it may be the course of practice in the courts of the State of Texas, in a suit of this description, to blend in the proceeding the principles of law and equity, in the Federal courts sitting in the State, the two systems must be kept distinct and separate. This principle is fundamental in these courts, and cannot be departed from. The court, therefore, in a suit at law, should exclude the hearing and determination of all questions that belong appropriately and exclusively to the jurisdiction of a court of equity. In a case calling for the interposition of this court, and turning upon equitable considerations, relief should be sought by bill in equity. Many of the cases at law coming up from the District Court of this State are greatly complicated and embarrassed, from the want of the observance of this distinction in the proceedings before it. In respect to the survey and location in the case before us, we perceive no ground that could warrant the court in going behind them in a suit at law. They were made by the Government that granted the title, and there is no ground, or even pretence, for saying that they were made without authority; and hence, altogether void. If voidable, for irregularity or other cause, the question was not one for a court of law in an action to recover possession, but for a court of equity to reform any error or mistake. (9 Peters, 632; 13 ib., 368-'9; 3 Wh., 212, 221; 7 How., 844.) We think a satisfactory answer might be given to the several objections taken to the survey and location; but we prefer to place it upon the ground above stated.

The judgment of the court below affirmed.

title: Jones v. McMasters/Opinion of the Court


text: Talk:Jones v. McMasters/Opinion of the Court


text:
Bacon v. Howard

THIS case was an appeal from the District Court of the United States for the district of Texas.

The case is stated in the opinion of the court.

It was argued by Mr. Hale for the appellants, and Mr. Hughes for the appellee.

Mr. Justice GRIER delivered the opinion of the court.

title: Bacon v. Howard


text: Talk:Bacon v. Howard

title: Talk:Bacon v. Howard


text:
Bacon v. Howard/Opinion of the Court

The complainants are assignees of a judgment obtained by the Planters' Bank against the defendant, in the State of Mississipi. The charter of the bank has been forfeited. The complainants, as equitable owners of the judgment, demand payment by their bill. The judgment claimed by them is dated on the 19th of October, 1840, and their bill was filed on the 22d of October, 1850. Anticipating the defence of the statutes of limitation of Texas, the bill avers 'that, at the time of passage of the act of Congress of the Republic of Texas, approved June 28th, 1845, entitled 'An act to authenticate foreign judgments, and to limit suits thereon,' the defendants resided in San Antonio, Texas, and the complainants in Philadelphia-more than 2,000 miles apart; and that complainants could not, according to the regular course of the mails, and with any reasonable diligence, have learned the passage of said act, and caused suit to be instituted upon the judgment within sixty days after its passage.' The respondent has demurred to the bill, and assigns as a cause of demurrer, among other reasons, 'That the complainants, by their own showing, are barred by the first section of an act entitled 'An act of limitations,' approved February 4, 1841, and also by the fourth section of the act referred to in the bill.'

If this allegation be found correct, it will be unnecessary to notice the others.

On the 10th of January, 1841, the Legislature of the Republic of Texas enacted, 'That no suit, proceeding, judgment, or decree, shall be brought, prosecuted, or sustained, in any court or judicial magistracy of this Republic, on any judgment or decree of any court or tribunal of any foreign nation, State, or Territory,' &c. 'But this provision is in no degree to affect the validity or obligation of contracts, engagements, or pecuniaryliabilities, originating abroad, or the original evidence, testimony, or proof, to establish the same,' &c.

On the 5th of February, 1841, 'An act of limitations' was passed, the first section of which, after prescribing shorter limitations for other causes of action, declares that 'all actions of debt grounded on any contract in writing shall be commenced and sued within four years next after the cause of such action, and not after.'

Without criticising the peculiar expressions used in these acts, it is obvious that their policy and object was to bar the prosecution of any claim for money or property at farthest in four years from the time when the right of action first accrued.

Now, the original cause of action, on which the judgment in question was obtained, must have existed or accrued at the latest on the 19th of October, 1840, when judgment was entered thereon in the court of Mississippi. Counting from the date, the action would have been barred on the 19th of October, 1844. But assuming that the time did not commence to run till the 17th of March, 1841, when the act of 5th February, 1841, is said to have taken effect, the action was barred on the 17th of March, 1845.

On the 23d of June, 1845, the Congress of the Republic gave their consent to the annexation of Texas to the United States, and the Convention which formed the Constitution of the State met on the 4th of July of the same year.

It would seem that doubts and apprehensions were entertained that, when Texas became a State of the Union, that section of the Constitution of the United States which prescribed that full faith and credit should be given to the judicial proceedings of each State might have the effect of reviving the claims of creditors in other States, on which judgments had been obtained. To obviate this anticipated difficulty, an act was passed on the 28th of June, 1845, 'To prescribe the mode of authenticating foreign judgments, and to limit suits thereon.' The fourth section of this act provides: 'That all foreign judgments, decrees, and adjudications, upon which suit shall be brought in the courts of this Republic, should the same be of four years' standing and upwards, shall be forever barred and prescribed, unless sued on in sixty days from and after the passage of this act; those under four and over two years, unless sued on in six months; and those under two years, unless sued on in one year: Provided, the original cause of action shall remain unimpaired, and may be sued on at the election of the creditor, subject to prescription.'

At first view, this act might be accused of making a very curt limitation, and to be retrospective in its operation. But when it is recollected that it gives a new form of remedy before denied, and that it only continues the rule of limitation to which the cause of action was already subject, and in fact gave a further grace to the creditor, he has no right to complain.

Giving the complainant in this case the most favorable construction of the act of limitations of 1841, his cause of action was barred on the 17th of March, 1845. The act of June, 1845, took away no existing right, but extended the time till the 27th of August of the same year. It is, therefore, not retrospective in its operation. It confers a favor, though it be a small one. The complainants may have failed to take advantage of it, for the reasons set forth in the bill. But the Legislature has not seen fit to make any saving in the act in favor of distant creditors, and the court cannot interpolate it. The Republic of Texas had the power to prescribe such rules to its own courts as best suited their condition, and their policy cannot be mistaken. Its accession to the Union had no effect to annul its limitation laws, or revive rights of action prescribed by its previous laws as an independent State. It is true, any legislation which denied that full faith and credit which the Constitution of the United States requires to be given to the judicial proceedings of sister States would be ipso facto annulled after the annexation, on the 29th of December, 1845. Thereafter, the authenticity of a judgment in another State, and its effect, are to be tested by the Constitution of the United States and acts of Congress. But rules of prescription remain, as before, in the full power of every State. There is no clause in the Constitution which restrains this right in each State to legislate upon the remedy in suits on judgments of other States, exclusive of all interference with their merits. The case of McIlmoyle v. Cohen (13 Peters, 312) leaves nothing further to be said on this subject.

The 20th section of the 7th article of the Constitution of the State of Texas exhibits the extreme solicitude of her citizens to prevent any misconstruction of their cherished policy on this subject.

It declares that 'the rights of property and of action which have been acquired under the Constitution and laws of the Republic of Texas shall not be divested; nor shall any rights or actions which have been divested, barred, or declared null and void, by the Constitution and laws of the Republic of Texas, be reinvested, revived, or reinstated, by this Constitution, but the same shall remain precisely in the situation which they were before the adoption of this Constitution.'

The complainant's cause of action had been twice barred before annexation, and this section of the new Constitution leaves no room to question the policy of their laws as to a revival of rights once forfeited by laches.

In a case like the present, where the complainant has been compelled to have recourse to a court of chancery, because the Union Bank no longer exists, in whose name the action of law could be sustained, he is, of course, subject to the same rules of prescription as if he were in a court of law.

We are of opinion, therefore, that complainant's cause of action is barred by the statutes of Texas, and that the matters set forth in the bill to avoid their effect are insufficient.

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

title: Bacon v. Howard/Opinion of the Court


text: Talk:Bacon v. Howard/Opinion of the Court


text:
Christ Church in the City of Philadelphia v. County of Philadelphia

THIS case was brought up from the Supreme Court of the State of Pennsylvania, by a writ of error issued under the 25th section of the judiciary act.

As the decision of the court was, that the record did not show any ground of jurisdiction under the 25th section of the judiciary act, it will be proper to state what that record was.

The acts of 1833 and 1851 are recited in the opinion of the court, and need not be repeated.

The rector and church wardens were assessed for taxes upon several pieces of property, amongst which was the following:

Lower Delaware ward, No. 8 Cherry street, Hospital lot, &c., $126.

They paid the tax upon the whole assessment, including the above, under protest, and then brought an action in the State court to recover the amount so paid. The court decided in favor of the defendants. Upon being carried to the Supreme Court of the State, that court reversed the judgment of the court below, so far as respected the tax upon the Hospital lot. The rector and church wardens, believing that the whole of the property ought to be exempted from taxation, brought the case to this court. The question which they intended to raise was, whether or not the act of 1833 was a contract, irrepealable except with their consent. But the record presented only the following state of facts.

March Term, 1853, No. 145. Docket Entries.

The Rector, Church Wardens, and Vestrymen, of Christ Church, in the City of Philadelphia, in trust for Christ Church Hospital,

v.

The County of Philadelphia.

H. M. WATTS.

145.

W. D. BAKER.

Summons case ret'ble the first Monday of June, 1853, exit 11th May, 1853.

'Service accepted.'

March 3d, 1854.-Case stated in the nature of a special vervict filed.

April 1, 1854.-Judgment entered without argument for defendants by the court. By writing filed, it is agreed that the above case may be removed by the plaintiffs to the Supreme Court, without any recognizance being given by them. Eo die assignments of errors filed.

April 4, 1854.-Argued.

December 27, 1854.-Reargued.

March 12, 1855.-Opinion by C. J. Lewis, judgment reversed, and judgment in favor of the plaintiffs in error for the sum of one hundred and twenty-six dollars, with costs. Eo die opinion filed.

The case was submitted on a printed argument, by Mr. Watts and Mr. Meredith for the plaintiffs in error, and Mr. Porter for the defendants.

The arguments proceeded upon the ground that the question of impairing the obligation of a contract was raised by the record; but, as the court decided that no such question was properly involved in the discussion, it is thought unnecessary to report the arguments.

Mr. Justice CAMPBELL delivered the opinion of the court.


text: Talk:Christ Church in the City of Philadelphia v. County of Philadelphia


text:
Christ Church in the City of Philadelphia v. County of Philadelphia/Opinion of the Court

This is a writ of error to the Supreme Court of Pennsylvania, under the 25th section of the judiciary act of the 24th September, 1789.

These parties, without any pleadings, stated a case, in the nature of a special verdict to the Supreme Court of the State of Pennsylvania, upon which a final judgment was rendered. It appears from the case, that in April, 1833, the Legislature of Pennsylvania enacted: 'That Christ Church Hospital, having for many years afforded an asylum to numerous poor and distressed widows, who would probably else have become a public charge, and that, in consequence of the decay of the buildings of the hospital estate, and the increasing burden of the taxes, its means are curtailed and its usefulness limited; therefore, that the real property, including ground rents now belonging and payable to Christ Church Hospital, in the city of Philadelphia, so long as the same shall continue to belong to the hospital, shall be and remain free from taxes.'

That in April, 1851, the Legislature of the same State enacted, 'that all property, real and personal, belonging to any association or incorporated company, which is now by law exempt from taxation, other than that which is in the actual use and occupation of such association or incorporated company, and from which an income or revenue is derived by the owners thereof, shall hereafter be subject to taxation, in the same manner and for the same purposes as other property is now by law taxable; and so much of any law as is hereby altered and supplied be, and the same is hereby, repealed: Provided, That nothing herein contained shall be construed to exempt cemetery companies from taxation.'

It further appears, in the case stated, that the county of Philadelphia, in the year 1852, caused certain real estate and ground rents of the plaintiffs in the city of Philadelphia, and which were possessed by the plaintiffs before the date of the act first mentioned, to be valued and assessed for taxes, and that the taxes were subsequently paid to the officers of the county, under protest, by them. The Supreme Court of Pennsylvania determined that the plaintiffs were entitled to recover only for so much of the taxes assessed and paid which were levied for property in the actual occupancy of the plaintiff for hospital purposes.

It does not appear, either by express averment or by a necessary intendment from any matter stated in the case, nor does any entry on the record of the cause in the Supreme Court of Pennsylvania show, that any of the questions of which this court is entitled to take cognizance, under the terms of the 25th section of the judiciary act, arose in the cause, and were actually decided by that court. Therefore, in conformity with the established doctrine of this court, (Armstrong v. The Treasurer of Athens county, 16 Pet., 282; Smith v. Hunter, 7 How. S.C.. R., 738,) the writ of error must be dismissed.


text: Talk:Christ Church in the City of Philadelphia v. County of Philadelphia/Opinion of the Court


text:
Doswell v. De La Lanza

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

The case is stated in the opinion of the court.

It was argued by Mr. Hale for the plaintiff in error, and Mr. Merriman for the defendant.

Mr. Justice McLEAN delivered the opinion of the court.

title: Doswell v. De La Lanza


text: Talk:Doswell v. De La Lanza

title: Talk:Doswell v. De La Lanza


text:
Doswell v. De La Lanza/Opinion of the Court

This case is brought before us by a writ of error to the Cir cuit Court for the district of Texas.

In his petition, the plaintiff claims two leagues of land, worth twenty-five thousand dollars, in Nueces county, San Patricio district, on the bay of Corpus Christi, and west of the Nueces; and he alleges that the defendants, on or about the 4th day of October, 1849, entered into the possession of one-fourth of the above premises, and ejected the petitioner, &c.

The defendants pleaded the general issue, and, by leave of the court, filed an amended answer, containing six pleas in bar. The first plea alleged an adverse possession of more than ten years by Enrique Villareal. The second, that he had peaceable and adverse possession for more than three years after the right accrued to the person under whom the plaintiff claims; and that he did not make entry or commence an action to try title to the land before the 16th of June, 1842; and that after that day, Henry L. Kinney, being seized of the land from Villareal, held adverse and uninterrupted possession, without entry or action by plaintiff, up to the commencement of this suit. Third, that Villareal, and those claiming under him, held adverse and peaceable possession on the 17th of March, 1841, and up to the commencement of the action.

In the fourth plea, ten years' adverse possession was alleged; and in the fifth, an adverse possession of three years. The sixth plea avers that each of the defendants, and those under whom they claim, had adverse, peaceable, and continuous possession of the land for more than three years, under color of title, before the commencement of the action.

Special demurrers were filed to these pleas, except the sixth, on which issue was joined. The demurrers were sustained to the first and fourth pleas, but overruled by the court as to the third and fifth. The issues before the jury were upon the plea of not guilty, and the second, third, fifth, and sixth pleas of prescription.

On the trial before the jury, two patents issued by the Republic of Texas, dated the 10th of April, 1849, to Levi Jones, were given in evidence by the plaintiff. One of these patents purported to be issued to Levi Jones, as assignee of Miguel Basquez, for one league of land in the San Patricio district, survey No. 20, on the west side of the Nueces, on Corpus Christi bay, by virtue of head-right certificate No. 288.

The other patent was issued to Levi Jones, assignee of Jose Ma. Bargas, for a league of land in the same district, known as survey No. 21, on the west side of Corpus Christi bay, adjoining survey No. 20, by virtue of head-right certificate 499.

To show the position and outlines of the two leagues of land, the plaintiff gave in evidence a part of Grammont's map, duly certified by the land office.

The plaintiff also gave in evidence a deed of conveyance of the land by Levi Jones to him, dated the 2d of October, 1849. It was proved that the town of Corpus Christi is included in the surveys, and is situated on the shore of the bay. Felix A. Butcher, a witness, came to Corpus Christi first in the year 1846. He knows all or most of the defendants were in possession of the land at least one year prior to the 8th of October, 1849; and at that time the lots upon which the defendants resided were worth about ten dollars each; now they are worth one hundred dollars each, in the best localities. The occupants have made valuable improvements on the lots.

The defendants then offered to read certified copies of two patents from the record, issued by the State of Texas on the 11th of July, 1845, one to Kelsey H. Douglass, and the other to John S. Thorn, assignee, &c., for the land claimed by plaintiff. Both of these patents on the record book had written upon them a memorandum: 'This patent cancelled, April 10th, 1848.'

It was proved that these patents had been inadvertently issued to Douglass and Thorn, when the field-notes of the surveys had been returned in the name of Levi Jones, assignee, &c. They were cancelled on the advice of the Attorney General. The plaintiff objected to the introduction of the above copies; but the objection was overruled, and the papers admitted.

Proof was then made that Enrique Villareal held possession of a tract of ten leagues, including the land in controversy, from the year 1810 down to the year 1839, claiming it from 1810 to 1831 under a title from the Spanish Government; that in 1839 Henry L. Kinney succeeded Villareal in possession, but the deed for the land was not made to him until the following year; that Villareal was a native of Mexico, and at the time of the grant to him by the State of Tamaulipas was a citizen of that State, and held a commission in the army. The grant was alleged to have been lost, and the court held it could not be proved by parol; but documentary and parol proof were admitted to show the boundaries claimed and the possession of Villareal. A great number of facts were proved, historical and otherwise, in regard to this claim, which it is unnecessary here to state.

Objection to this part of the defence was made, but overruled, and the evidence was admitted.

The plaintiff then requested the court to give to the jury twenty-one instructions, principally in relation to the title of Villareal, which go into details of great length, but which, from the view we have taken of the case, it is not necessary to repeat.

The court refused to give any of the instructions requested by the plaintiff, but charged the jury, 'that the plaintiff must recover on the strength of his own title, not on the weakness of his adversary's; that if the surveys on which the patents in evidence were issued were void when made, the plaintiff can claim no title to land under such patents; that if the surveys were made west of the Nueces river, on Corpus Christi bay, prior to the 24th of May, 1838, by the deputy surveyor of San Patricio county, they were void, because San Patricio county did not, at that time, extend west of the river Nueces; and the approval of the county surveyor, Buchanan, even if given after the 24th of May, 1838, relates back in point of time to the date of the surveys by his deputy, but does not have the effect of making good the surveys, if at the time they were made by the deputy surveyor they were out of the limits of the county; that if Villareal had acquired a title to the land, under the Government of Spain or Mexico, before his death, and if he died an alien enemy to the Republic of Texas in 1845, leaving only alien enemies as his heirs, still his title to the land in controversy did not escheat to the Republic, and consequently could not pass by the subsequent patents issued by the Republic or State; that as these instructions are sufficient for the decision of the case, the court refused the instructions asked by the plaintiff. Exceptions were taken by the plaintiff, as well to the instructions asked by him and refused, as to those given against him, on the prayers of the defendants.

The decision of the court on a motion for a new trial, which was excepted to, affords no ground for a writ of error. Such a motion is addressed to the sound discretion of the court, on a consideration of the evidence before the jury; and this court can no more control that discretion than when it is exercised by the Circuit Court, in granting continuances or amendments of the pleadings.

As to the pleas which set up the claim and possession of Villareal, as a bar, under the statute of limitations, to the plaintiff's action, it does not appear from the evidence that the defendants are in any way connected with that title. There is nothing in the facts of the case which conduce to show an entry under it by the defendants, or that they entered under any claim of title. It is proved by one witness, that a part of the defendants, if not all of them, were in possession of the premises they now occupy, at least one year prior to the 8th of October, 1849. On the 3d of that month and year, the seizin of the plaintiff is stated in his petition. From this, it would appear that the defendants' possession was prior to the seizin of the plaintiff; so that, in regard to him, they cannot be considered as having ejected him by their entry, his legal title not having then accrued. But if the defendants entered without claim of title, which must be presumed, as they have shown no title, they become trespassers on the premises of the plaintiff after his title accrued.

Villareal died in 1844 or 1845. It is contended that he retained possession of the premises up to 1839, and that Kinney took possession in that year under him, and continued in the possession until the commencement of this action. This possession is controverted by the plaintiff, on evidence that Kinney's residence was in another county, and that he was only occasionally at Corpus Christi; but, if his possession be admitted as asserted, it is not perceived how it could inure to the benefit of the defendants under the statute of limitations, as Kinney is not a defendant, and they show no privity with his title. Possession, to be effectual, either to prevent a recovery or vest a right under the statute of limitations, must be an actual possession, attended with a manifest intention to hold and continue it. It must be, in the language of the authorities, an actual, continued, adverse, and exclusive possession for the space of time required by the statute. It need not be continued by the same person; but when held by different persons, it must be shown that a privity existed between them. Wheeler v. Moody, 11 Texas Rep., 372.

In the action of ejectment, the defendant may show a paramount outstanding and subsisting title for the same land in a stranger, to defeat the plaintiff; and the rule of evidence is the same in this action, although it is prosecuted under the forms adopted by Texas. A large portion of the evidence in the record, and many of the authorities cited in the Circuit Court, were to show an older and paramount title to the same land, under the Mexican Government, by Villareal, and Kinney, his assignee; but, as there are other points on which the case may be decided, the court will not consider the validity of that title.

The court instructed the jury, that if the surveys were made west of the Nueces river, on Corpus Christi bay, prior to the 24th of May, 1838, by the deputy surveyor of San Patricio county, they were void, because San Patricio did not at that time extend west of the river Nueces; and the approval of the county surveyor, Buchanan, even if given after the 24th of May, 1838, does not make them valid.

It was held, in Linn v. Scott, 3 Texas Rep., 6, that a survey made by a surveyor of any other county than that in which the land lies, is a nullity. But, in Horton v. Pace, 9 Texas Rep., 81, the court say, 'We do not question the right of a surveyor to adopt a previous survey he thinks correct; but we do not admit it was the duty of the court to oblige him to adopt one shown to be incorrect.' And in Warren v. Sherman, 5 Texas, 441, it is said a survey, whensoever made, if supported by a recommended certificate, is, in contemplation of law, valid; if otherwise, it is without legal foundation. In Lake v. Wafer, 16 Texas Rep., the court held, 'A survey made in 1841 without certificate, and applied to the certificate of 1844, constitutes no objection to the validity of the patent.' If a deputy surveyor make a survey for himself, on a certificate belonging to himself, when approved by the district surveyor, it becomes the act of the latter, and was so far valid. Howard v. Perry, 7 Texas Rep., 259.

Under these decisions, the Circuit Court erred in giving the above instruction. If the surveys were void when made west of the Nueces, as being without the limits of San Patricio county, they were made valid by the subsequent approval of the county surveyor, after the county limits were extended west of that river.

The cancellation of the patents stated by the acting Commissioner of the Land Office, by the advice of the Attorney General, was proper. The Commissioner, in issuing a patent, performs a ministerial duty; and if it be fraudulently or negligently issued to an improper person, the error should be corrected.The divestiture of the title by the Government can only be accomplished in the mode authorized by law.

It is desirable that points of exceptions and instructions asked from the court to the jury should be as few and as concisely expressed as may be consistent with the interests of the respective parties.

The judgment of the Circuit Court is reversed, and the cause remanded for further proceedings.


text: Talk:Doswell v. De La Lanza/Opinion of the Court


text: Wade v. Leroy

title: Wade v. Leroy


text: Talk:Wade v. Leroy

title: Talk:Wade v. Leroy


text:
Wade v. Leroy/Opinion of the Court

THIS case came up from the Circuit Court of the United States for the southern district of New York, on a certificate of division in opinion between the judges thereof.

The case is stated in the opinion of the court.

It was argued by Mr. Gillet for the plaintiff, on which side there was also filed a brief of Mr. Reed, and by Mr. O'Connor for the defendants, on which side there was also a brief of Mr. Silliman.

The following notice of the points made by the counsel for the plaintiff is taken from the brief of Mr. Gillet:

POINTS.

FIRST.-Under the averments in the declaration, the plaintiff had a lawful right to prove that he was engaged in business, its character and extent.

The amount of damages sustained by the plaintiff essentially depended upon questions, whether the plaintiff was engaged in business, its peculiar character, and the extent of it.

The plaintiff would suffer more damage if deprived of a good business, than if he had none to lose.

Its character might be such that he could not attend to it at all, or only partially so, after his injury.

If his business was large, so as to require health, strength, and talents, he would lose more than if it were small, and easily attended to. He could hire a substitute to attend to the latter for a less sum than he could to transact the former.

The evidence offered was clearly admissible for these purposes, and went to show the damage actually sustained. If the plaintiff's business had been that of a day laborer, who could only earn a dollar per day, his actual loss would be far less than if he had been earning ten. If he had been employed on wages, the injury could have been ascertained by proving the compensation he received.

When engaged in his own business, the extent of his loss could only be ascertained by proving the nature and extent of his business, so as to show how much his services were actually worth to himself. If his business were small, and easily managed, the damage would be less than if it were large, and managed with difficulty. The manager of a large plantation would sustain more damage by loss of his time than the manager of a smill patch of land. A lawyer earning ten thousand dollars per annum would sustain a greater loss in being rendered unfit for business, than would a pettifogger who could only earn a hundred or two.

SECOND.-Future as well as present losses may be considered in estimating damages.

When a party loses a leg or arm, in estimating his real loss, we look to his probable future under the state of his injury, to form an opinion of the demages he has sustained. If the injury is temporary, the damages will be far less than if lasting and permanent. A flesh wound will soon heal, but a lost limb cannot be restored; both should, however, be considered in estimating the damages sustained-the loss of a limb will be continually felt as long as the party losing shall live, and hence a young person will sustain a greater injury than one whose life is nearly ended. If the mind is destroyed, the loss to a young man, who is supposed to have more years before him than an old one, is much greater than with one whose years are drawing to a close. It follows, that the probable future of the injured party is a proper subject of consideration.

THIRD.-The damage alleged in the declaration was special, as distinguished from particular damage.

Particular damage is where the particular instance of damage is avowed; special damage is where the loss follows from a specific statement of a fact, which generally or naturally results from the statement, as a cause competent to entail such a consequence.

The declaration avers that the injury affected the plaintiff's brain, and affected his memory and understanding, which were impaired thereby; and that he lost his sense of hearing; and that he would hereafter suffer much mental and bodily pain and anguish, as well as personal mortification. The damages so specified were special, but not particular-the averment is, that they resulted from the injury. If the injury complained of affected and injured his brain, and impaired his understanding, and he lost his sense of hearing, a necessary and natural consequence was, that he was incompetent to attend to any business, and especially such as that in which he was engaged.

A man who could not hear, and whose brain was injured and affected, and his memory and understanding injured and impaired, was not competent to pursue the business in which the plaintiff was engaged, even though he might have been able to attend to some kinds of business, like tending a porter's lodge, where very little memory or understanding is required. If the plaintiff were not permitted to prove these consequences, necessarily resulting from facts specifically avowed, then he would be debarred presenting a very essential part of his case, and would be prevented from recovering the whole amount of damages actually sustained. This would occasion gross injustice. When a person is made deaf, his memory and understanding injured and impaired, it is hardly possible that any pecuniary damage can make him good: he cannot be fit for business; he can do nothing and earn nothing in his business, if it should require the exercise of hearing, or memory, or understanding. Aside from the pecuniary consequences resulting from such an injury, his life must be one both monotonous and irksome, and almost wholly destitute of those pleasures and that happiness which those in full health, bodily and mentally, must ever enjoy.

FOURTH.-When the action can be maintained without specifying any particular damage, it is not necessary to aver any particular instance of damage.

When the law implies damage, there can be no reason for stating it with particularity. If a person loses an eye, an ear, a limb, or his general health, the law implies damage, the same as if deprived of his property or any other legal right. Words actionable in themselves imply damage, and none need be proved; but if actionable only by reason of some consequence which might or might not follow, then the particular damage must be averred and proved. The loss of hearing, of memory, and understanding, imply injury, and necessarily and naturally result therefrom, and no particular damage need be averred or proved. This change in the condition of a person cannot be made without producing injury to him in his pecuniary circumstances and in his enjoyments. Such an injury would lessen, if not destroy, his ability to maintain and support his family by his own exertions.

It required no averment in the declaration to apprise the defendant that such consequences must result from the injuries specified. They are so necessary and natural that no one could mistake them. Every common understanding must arrive at the same conclusion.

FIFTH.-The evidence offered tended to prove necessary and natural injurious consequences arising from the injury to the plaintiff, within the settled rules of law.

The courts have furnished precedents that clearly sustain the offer of the plaintiff below, and so do the elementary writers. Mayne on Damages, the latest and best English writer, says:

'Special damage must always be expressly averred and proved, when it is so much the gist of the action, that without it no suit could be maintained.'-P. 314.

'It is not, however, necessary to state or establish particular instances of damage.'-P. 315.

'In all other cases, whether the action be on contract, or in tort, if the facts involve a legal injury, no actual damage need be stated.'-P. 15.

'In contracts, too, there are certain damages which the law will presume; as, for instance, in an action for not delivering goods; that the plaintiff had to buy others at a loss. * *  * The extent of the loss must be proved; but no notice need be given of the species of loss which will be set up. But it is different where the injury complained of is merely secondary and consequential damage.'-P. 316.

'In an action for slandering a man in his trade, when the declaration alleges that he thereby lost his trade, he may show a general damage to his trade, though he cannot give evidence of particular instances.'-P. 317.

'So if one, not a carpenter, sell timber which the purchaser uses to prop up his building, and, by reason of the timber being defective, the building fall and be destroyed, if the seller acted in good faith, and was ignorant of the defect, he will only be liable for the difference in price between good timber and that sold. If, however, the seller was a carpenter, who sold the timber for the express purpose of propping up the house, then he shall be liable for all the damage done to the building.'-Sedgwick on Damages, 65.

He quotes from Chitty, at p. 575, where the rule is laid down as in the decisions I have copied.

These views are sustained by various decisions.-Dewint v. Wiltse, 9 Wen., 325.

Defendant hired plaintiff's ferry, and covenanted to maintain and keep the same in good order; but, instead of doing so, he diverted travellers from the usual landing to another landing, owned by himself, by means of which a tavern stand, belonging to the plaintiff, situated at his landing, was so reduced in business as to become tenantless. It was held that the plaintiff could recover. The court determined that the damages proved were a legitimate claim, and the legal and natural consequence of the breach of the covenant.

'Where the act complained of is admitted to have been done with force, and to constitute a proper ground for an action of trespass vi et armis, all the damage to the plaintiff, of which such injurious act was the efficient cause, and for which the plaintiff is entitled to recover in any form, may be recovered in such action, although in point of time such damage did not occur until some time after the act done.

'Where special or peculiar damages are claimed, such as are not the usual or natural consequences of the act done, it is proper to set them forth specially in the declaration, by way of aggravation, that the defendant may have due notice of the claim.'

'Where the damages actually sustained do not necessarily arise from the act complained of, and consequently are not implied by law, in order to prevent surprise to the defendant, the plaintiff must state in his declaration the particular damage which he has sustained, or he will not be permitted to give evidence of it upon the trial.'

Towing a boat from New York to Albany, or as far as it could but for the ice.

'With respect to the damages, the general rule in questions of this nature is, that the plaintiff is entitled to recover, as a recompense for his injury, all the damages which are the natural and proximate consequence of the act complained of, (2 Greenl. Ev., § 256.) Those which necessarily result from the injury are termed general damages, and may be shown under the general allegation of damages at the end of the declaration. But such damages as are the natural, although not the necessary, result of the injury, are termed special damages, and must be stated in the declaration, to prevent surprise upon the defendant; and being so stated, may be recovered.'

Ward v. Smith, 11 Price, Exch. R., 19.-(Eng. Exc. R., 19:)

Suit in assumpsit for not performing an agreement to let the plaintiff into possession of certain apartments and furniture.

The plaintiff proved that his wife was a milliner, and lost business in the best part of the season by not being permitted to take possession.

'A plaintiff in such an action may give evidence by particular loss sustained by breach of such an agreement, if he have stated loss generally in his declaration. Therefore, evidence of loss of business by plaintiff's wife in her trade of milliner held admissible, in such a case, as evidence of general damage, where no special damage on that ground was laid in the declaration, nor any customers named, nor any averment of her business introduced.'

Baron Graham expressed himself fully upon this point.

'General damage, or such as is the common or ordinary consequence of the act complained of, need not be specially alleged in the declaration; and if some portion of the plaintiff's general damages be alleged, this will not preclude him from giving evidence of other general damage.

'In actions for flowing land, the injury, i. e., the flowing the land, and the means by which it was done, must be substantially alleged; but any general damage, such as rendering the land wet and unproductive, and more difficult to cultivate, and destroying crops, either in the process of growth or harvesting, need not be alleged.'

Lincoln v. Saratoga and Schenectady Railroad Company, 23 Wen., 425:

Suit by passenger for injury to his person, when travelling upon defendant's road. Nelson, J.

Opinions as to the value of plaintiff's time had been given in evidence, and new trial granted on that account.

'Even with the jury, the damage beyond actual expenses at best rise but little above conjecture; it is so in every case where they are called upon to estimate the loss of the plaintiff's time. How serviceable it might have been to him, depends upon a calculation of the changes and vicissitudes of life, the casualties and fluctuations of business, utterly beyond the reach of human foresight. The most they can do is to bring to the discharge of their duties a careful and diligent consideration of the particular case, a knowledge and experience of the general condition and business affairs of mankind, to which all are more or less subject, a sound and enlightened judgment, and honest desire to arrive at truth and justice between the parties. No more can be expected; no less, justified. The result will usually be an approximation to reasonable indemnity, as near as the interpretation of human tribunals will admit.

'I am also of opinion that some of the questions put in respect to the effect of the injury to the limb were pushed into consequences and conjectures too remote for the subject of judicial investigation. The present and probable future condition of it were proper matters for inquiry; but the consequences of a hypothetical second fracture were obviously beyond the range of it, and calculated to draw the mind of the jury into fanciful conjectures.'

'Where a party agrees to demise certain premises to another, who breaks up his establishment, and proceeds with his family and furniture to the place where the premises are situate, and the landlord refuses to give possession, the tenant is entitled to recover the damages sustained by him by such removal of his family and furniture, although special damage is not alleged in the declaration.'

The English cases sustaining the principles contended for are referred to in Mayne on Damages, at the pages referred to in that work.

Mr. Silliman and Mr. O'Connor made the following points:

First Point.-Assuming, for the sake of the argument, that a person suffering a personal injury which disqualifies him from prosecuting a particular business in which he is engaged, may recover in an action ex contractu or ex delicto brought against the party from whose willfulness or negligence such injury resulted, the value of the employment thus lost, or that, in some more loose or general way, the nature of such business may be taken into consideration by the jury in estimating damages, then it is submitted that the established rules of pleading and evidence require, as an indispensable condition to the admission of proof, that the business and the fact of its loss be particularly set forth in the declaration.

I. Under a general allegation of damage, the plaintiff can only recover general damages. General damages are such as necessarily result from the injury alleged under the circumstances set forth. These the law presumes, and they need not be alleged with any particularity, nor even proved.

II. Special damages are such as result from some cause not notified to the defendant by the very description of the injury complained of, as necessarily resulting from it. Any fact which rendered it more hurtful to the plaintiff than it would have been to any other person, under the same circumstances set forth, is a special damage; and, consequently, it cannot be given in evidence, unless specially set forth in the declaration. The object of this rule is to prevent surprise. (1 Chitty's Pleadings, pp. 395, 396, 397, 398; 2 Greenleaf's Ev., §§ 254, 278, and notes; Sedgwick on Damages, 2d edition, p. 575.)

III. This rule is of universal application. No case has been found, nor any dictum of an elementary writer, recognising any distinction, in this respect, between actions ex delicto and actions ex contractu, or between the different forms of action, or between the various causes of action. (3 Bouvier's Institutes, § 2872; J. S. Saunders's Pleadings and Ev., 136, 800; ib., 83, 105, 151, 906, 344; ib., 865, 520, 653, 660; Pettit, v. Addington, Peake's N. P. Cases, 63; Lowden v. Goodrich, ib., 46; Westwood v. Cowne, 1 Starkie's R., 172; Bodley v. Reynolds, 8 Ad. and Ellis, 780; Boyden v. Burke, 14 How., 575; Kendall v. Stokes, 3 How., 87, 90, 102; Strang v. Whitehead, 12 Wend., 65; Pritchett v. Bovey, 1 Cr. and Meeson, 778; Jones v. Lewis, 9 Dowlings Pr. Cases, 150; Richardson v. Chasen, 10 Ad. and Ellis, N. S., 756, 759; Patten v. Libby, 32 Maine, 378; Vanderslice v. Newton, 4 Comstock R., 132, 133; Dumont v. Smith, 4 Denio, 322; Alston v. Huggins, 3 Brevard, 188; Dickinson v. Boyle, 17 Pick., 79; Furlong v. Polleys, 30 Maine, 493; Lewis v. Calder, 8 Burr. Penn. Rep., 479; Bogart v. Burkhalter, 2 Barbours S.C.. R., 525; Squier v. Gould, 14 Wend., 160.)

IV. In slander and libel, when the action lies only by reason that the defamatory matter complained of touched the plaintiff in some particular office, employment, or relation, the averment of that office, &c., is not called by pleaders an averment of special damages. It is a part of the cause of action; but being notified to the defendant, it may be proved, and, of course, may have its just weight with the jury. Here there is no danger of surprise. (Ingram v. Lawson, 6 Bingh. N. C., 212; ib., 8 Scott, 775; 9 Carr and Payne, 326; 1 Selden's N. Y. Rep., 20; Donnell v. Jones, 17 Alabama, 692 to 695; S.C.., 13 Alab. R., 509, 510; Delegall v. Highley, 8 Carr and Payne, 444; Rollin v. Stewart, 25 Eng. L. and Eq. R., 345.)

V. In cases of defamation, where the matter is not actionable generally, nor actionable so as to give a right to general damage, by reason of its touching the plaintiff in his particular office, employment, &c., the plaintiff is obligated to aver in his declaration the special damage on which he relies, and to prove it at the trial. All the adjudications arising under this head in our law, whether on demurrer, or in arrest of judgment, or for variance at the trial, are so many illustrations of the rule contended for in this point. (Malachi v. Soper, 3 Bingh. N. C., 371.)

Second Point.-As the defendants, on being charged with the injury alleged in the declaration, could not learn, from anything in the narrative of its occurrence and consequences, that the plaintiff was connected with a particular business carried on in North Carolina, it would be a great surprise upon them to allow evidence of that fact. Therefore, the evidence mentioned in the first division should be excluded.

I. There is nothing on this subject contained in the declaration, which, according to the precedents and authorities, could be otherwise regarded than as a general averment that the plaintiff was disabled by his hurt. (Rogers v. Nowill, 11 Jurist, 1039; Malachi v. Soper, 3 Bingh. N. C., 371; 1 Strange, 666; W. Jones, 196; Buller's N. P., 7; 1 Sid., 396; 1 Saunders's R., 346; Linden v. Graham, 1 Duer, 670.) For proper pleading, see Collet v. Lond. and N. W. Railway Co., 6 Eng. L. and Eq., 305; Brewer v. Drew, 11 M. and Welsby, 626, 630; Hodsoll v. Stallbrass, 9 Car. and Payne, 63.

II. There was no difficulty in stating in the declaration the special consequential injury offered to be proven. It was not a violation of decency to place it on the record; it did not tend to burdensome prolixity; it was known to the plaintiff, and quite susceptible of being accurately described by him. There was, consequently, no excuse for its suppression. (2 Williams's Saunders, 411, note 4, 8 T. R., 133; 1 Starkie's R., 172; Lowden v. Goodrich, Peake's N. P. Cases, 46; 2 Greenleaf's Ev., § 278; Per Kenyon, L. Ch. J., 8 T. R., 133.) Anomalous Cases. (Driggs v. Dwight, 17 Wend., 71; Ward v. Smith, 11 Price, 19; See Tullidge v. Wade, 3 Wils., 19.)

III. This evidence is the more objectionable, if unaccompanied by any proof of the particular value of this large and extensive business of distilling and manufacturing turpentine, in which the plaintiff was engaged. If such evidence must be admitted, it would be much fairer to admit it with particular and certain proof of the value of the business, than in a vague, loose, and indefinite form. Far better that the defendants should be tried without notice, on evidence appealing to the judgment of the jury, than on an inflated address to their imaginations. (Fairman v. Fluck, 5 Watts, 518.)

Third Point.-Evidence that the injury would permanently disqualify the plaintiff from pursuing any business, was objectionable in a twofold point of view. In the first place, the declaration does not affirmatively allege that the injury would produce any such result, or that the defendant was a person engaged in any business; and secondly, inasmuch as in speaking of bodily pain, &c., the declaration has a future aspect, and the general allegation of consequent incapacity to attend to affairs is confined to the past; the idea of any probable future incapacity is impliedly negatived. The point involved in the second division ought therefore to be certified in favor of the defendants. (Hodsoll v. Stallbrass, 9 C. and Payne, 63; S.C.., 3 Perry and Davison, 200; Thompson v. Wood, 4 Ad. and Ellis, N. S., 497.)

Mr. Justice CAMPBELL delivered the opinion of the court.

This case comes before this court upon a certificate of the judges of the Circuit Court of the United States for the southern district of New York, of their division in opinion upon questions arising in the trial of the cause in that court.

It is an action against the owners of a steam ferry boat, plying between the cities of New York and Brooklyn, for the transportation of passengers, by the plaintiff, a passenger, who suffered an injury in consequence of a collision between two boats belonging to the defendants, and which was attributable to the mismanagement of the servants and agents to whom their navigation was intrusted.

The declaration charges, that the plaintiff was wounded on the head by a blow from a piece of iron that had been broken off the boat on which he was a passenger, in the collision, and thrown against him. That, in consequence of the wound, his brain was affected and injured, so that his understanding and memory were impaired. That for some time he was insensible, and his life despaired of; and before his recovery, he suffered much mental and bodily pain. That he was detained in New York, at a distance from his home, and subjected to much expense about his care, support, and maintenance, and had been hindered and prevented for a long period from transacting and attending to his necessary and lawful affairs, by him during all that time to be performed and transacted; and lost and was deprived of great gains, profits, and advantages, which he might and otherwise would have derived and acquired.

The plea was the general issue.

Upon the trial, the plaintiff offered to prove, 'that before and up to and at the time of the alleged injury, the particular business in which he was engaged was that of a distiller and manufacturer of turpentine, and that he was largely and extensively engaged in that business.' The plaintiff also offered 'to prove, by a physician who had attended the plaintiff, that when the plaintiff, after his convalescence, left New York to return to North Carolina, he (plaintiff) could not safely attend to any business or occupation, and that the witness deemed it imprudent and indiscreet for the plaintiff thenceforth to devote himself to any business.' To this evidence the defendants' counsel objected, on the ground that the declaration of the plaintiff did not contain any specification of such business, or of its nature or extent, or contain any statement that the plaintiff was obliged or did relinquish or abandon the same. The judges were divided in opinion as to the admissibility of such evidence, and have certified the questions for the decision of this court.

The precise object for which this evidence was adduced is not stated in the certificate of the judges; but if the evidence tends to support any issue between the parties, or has a direct connection with other evidence competent to maintain the averments of the declaration, either to illustrate its meaning or to ascertain its probative effect, it cannot be rejected as impertinent, or as founded upon matter that does not appear in the pleadings of the cause. The evidence objected to conduces to prove that the plaintiff was seriously injured; that he had been confined in New York, at a distance from his home, and had incurred expense in consequence. That, before that time, he had been concerned in conducting a business that required a degree of mental and bodily vigor, and that his time was of some pecuniary value; or, that he had suffered a loss of some profit; and that, after some detention in New York, he had returned to his house in an infirm condition-so infirm that his medical attendant and adviser deemed him incapable of pursuing any ordinary business or occupation, and had advised him to abstain from personal exertion.

This evidence would certainly assist a jury to determine that the plaintiff had sustained an injury of no slight character-an injury to his person, and which was followed by expense, suffering, and loss of time, which had for him a pecuniary value.

These were the direct and necessary consequences of the injury, and sustained strictly and almost exclusively as an effect from it. This evidence may have an application without any inquiry into any remote or contingent consequences which could not have been foreseen, or which were peculiar to the circumstances or condition of the plaintiff. The record does not inform us that the evidence was designed to aid in such irrelevant inquiries, and we cannot presume that, if admitted, the court would allow any misconstruction of its legal import, or any use of it by the jury, contrary to law.

The opinion of the court is, that the evidence is competent, and we direct that the certificate to the Circuit Court shall be made accordingly.

title: Wade v. Leroy/Opinion of the Court


text: Talk:Wade v. Leroy/Opinion of the Court

title: Talk:Wade v. Leroy/Opinion of the Court