text:
Shields v. Barrow

THIS was an appeal from the circuit court of the United States for the eastern district of Louisiana.

The history of the case is given in the opinion of the court.

It was argued by Mr. Benjamin, for the appellants, and by Mr. Janin, for the appellee.

Mr. Benjamin traced the case throughout all its complications, and then made the following points:--

1. The first question which will arrest the attention of the court, on the face of this record, is that of jurisdiction.

The complainant entered into a contract of the 9th November, 1842, which in its opening clause is stated to be tri-partite. The parties are, 1st, the complainant, a citizen of Louisiana. 2d, Thomas R. Shields, a citizen of Louisiana. 3d, Six individuals, indorsers for Shields four of whom are citizens of Louisiana, and two of Mississippi.

This contract was made to annul a sale of a plantation in Louisiana, made by the first party to the second.

In a few weeks after the date of the contract, the complainant abandoning the common domicile of himself, his purchaser, and two thirds of the indorsers, declining the aid of the state tribunals of his own State, appeals to the federal court in New Orleans, to set aside his contract, then changes his demand into a suit to enforce it, and ends by obtaining a decree against his fellow citizens of Louisiana, for a large sum of money.

On what ground is the jurisdiction of the circuit court of the United States, to determine a controversy between citizens of Louisiana, to be maintained?

The only authority cited by complainant's counsel, is Story's Eq. Pl. § 392, and authorities there cited.

This authority is not at all in point. It only refers to a question of pleading in equity, relating to cross-bills, but does not touch the question of jurisdiction. The cross-bill may unquestionably be filed to determine questions arising between the defendants, so as to enable the court to determine the whole matter in controversy. But in the present case, no relief was prayed by the cross-bill against co-defendants, but on the contrary a decree was prayed for against the original complainants; and in the decree itself, no notice whatever is taken of the cross-bill; but the court confines itself to deciding the claims of the original complainant against the original defendants, and the defendants in the cross-bill.

The device used in this case is perfectly transparent, and if successful, converts the federal courts into courts of unlimited jurisdiction, regardless of the citizenship of parties.

It requires no argument to show that the original bill could not possibly be sustained for want of proper parties. A bill to set aside an agreement for cancelling the sale of property, could not be entertained without the presence of the two parties to the sale, and agreement to cancel. But the court was without jurisdiction between these two parties, who were both citizens of Louisiana, and the bill should have been dismissed on its face. Instead of this, the defendants, citizens of Mississippi, having a common interest with these citizens of Louisiana, were forced, in spite of their protest, and under duress of the process of the court, to file a bill against their co-defendants, not for their own benefit, but in order to help the complainant to get a judgment against themselves, and against the co-defendants.

This court has repeatedly had occasion to determine that, where necessary parties to bills could not be brought into the federal courts, by reason of the constitutional limitation on their jurisdiction, the suit must be dismissed. The jurisprudence on this point has never varied, and the decisions are numerous. Where parties are merely formal, the court will dispense with their presence, but will never assume jurisdiction over them. Russell v. Clark's Executors, 7 Cranch, 69; Greenleaf v. Queen, 1 Pet. 148: Wormly v. Wormly, 8 Wheat. 421; Carneal v. Banks, 10 Ib. 181; Harding v. Handy, 11 Ib. 126; Mallon v. Hinde, 12 Ib. 193; Vattier v. Hinde, 7 Pet. 250; Dunn v. Clark, 8 Ib. 3.

The act of congress of 28th February, 1839, so far from authorizing such proceedings as were had in this suit, expressly contemplates the case where parties in interest cannot properly be brought before the court; and provides, that 'the judgment or decree shall not conclude or prejudice such parties.'

The plea to the jurisdiction ought, therefore, to have been sustained, as filed by those defendants who were citizens of Louisiana.

2. The court, being without jurisdiction as to Thomas R. Shields, who purchased the land, cannot decree, as against him, either for the rescission or specific performance of the contract of November 9, 1842. The bill, therefore, must be dismissed, because he is an indispensable party to any cause brought for either of those purposes. This proposition is too clear to require argument or authority.

3. There was error in permitting the complainant to bring an entirely new and different suit against the defendant, under pretext of amending his bill. The original bill was, to set aside a contract. The amendment prayed a specific performance of the same contract. This was not an amendment, nor a supplemental bill, but a new suit.

The allegation in the original bill, brought on the 19th December, 1842, set forth that complainant feared that defendants would refuse to execute their contract of 9th November, 1842, and prayed to have it rescinded. The defendants, by their answer, in March, 1843, denied any intention to violate the contract, and expressed their intention of executing it. This judicial confession of their liability to perform its terms estopped them from any contestation of its validity, and should have sufficed to satisfy complainant; who, however, seemed determined to have a litigation. Although willing to abandon his claim for a rescission of the contract, instead of discontinuing his suit, he engrafted in it an inconsistent demand, by what he calls an amendment.

This is contrary to all the rules of pleading in chancery. Story's Eq. Pl. 332, et seq.; Mitford's Ch. Pl. 385.

So where the original bill prayed that a bond might be delivered up to be cancelled, an amendment not allowed praving an account of what was due on the bond. Cresy v. Beavan, 13 Sim. 354.

4. The amended bill should have been dismissed, as disclosing no ground for equitable relief. The demurrer should have been sustained.

This amended bill sets forth no ground for the interposition of a court of equity; alleges no refusal, by defendants, to perform their contract; and prays for the payment of a sum of money due on promissory notes. This payment could have been obtained by a suit at law. In relation to the claim for a formal conveyance of the property, contained in the amended bill, it is clear that the defendants, Victoire Shields and William Bisland, could not be condemned to make a conveyance of title standing in the name of Thomas R. Shields. The amended bill was, therefore, nothing but a naked demand, in law, for the payment of a debt.

5. The only demands set up in the record against Elis, Guion, and Winder, are contained in the cross-bill, filed at page 54 of record. These defendants filed a plea to the jurisdiction of the court; and set up, in defence, the absence of any averment in the cross-bill, showing any cause of action against them. A reference to the cross-bill will show that, in point of fact, no complaint was made against them; and in no part of the record is there any demand, by Barrow, for a decree against them. There is a judgment against these parties, that they pay a large sum of money to Barrow; although the pleadings disclose no prayer for such a decree, in either the original or cross-bill.

It would be an idle take to pursue any further the examination of proceedings, so completely at war with all the rules of law, and all the principles which guide courts of justice in the discharge of their duties. The investigation is felt to be profitless; for the want of jurisdiction in the court below, over parties in whose absence no decree could be pronounced, must, of necessity, cause the reversal of the decree and dismissal of the suit.

Mr. Janin replied to these points, as follows:--

The counsel for the appellants makes the following points of law:

1. That the original bill ought to have been dismissed, because Thomas R. Shields, the former proprietor of the plantation which was retroceded to the complainant, is a citizen of Louisiana, and could, therefore, not be made a party to that bill.

It is contended that, in the absence of Thomas R. Shields, the rescission of the retrocession to Barrow could not be decreed.

This is precisely the difficulty which is removed by the act of congress of February 28, 1839, the 1st section of which is in the following words:-

'That where, in any suit at law or in equity, commenced in any court of the United States, there shall be several defendants, one or more of whom shall not be inhabitants of, or found within the district where the suit is brought, or shall not voluntarily appear thereto, it shall be lawful for the court to entertain jurisdiction, and proceed to the trial and adjudication of such suit between the parties who may be properly before it; but the judgment or decree rendered therein shall not conclude or prejudice other parties not regularly served with process, or not voluntarily appearing to answer; and the nonjoinder of parties who are not so inhabitants, or found within the district, shall constitute no matter of abatement, or other objection to said suit.'

All the authorities quoted by the appellants are anterior to that act.

If there was any thing in this point, it is too late to take advantage of it now. The defendants filed an answer to the bill, then a cross-bill, and afterwards only a demurrer, which does not even name the parties on whose behalf it was filed.

2. The court had no jurisdiction over those of the defendants who are citizens of Louisiana.

This point concedes, at last, the jurisdiction of the court over three of the defendants; namely, William Bisland, Victoire Shields, and William B. Shields, who are citizens of Mississippi.

But the court had, undoubtedly, jurisdiction to decide the corss-bill, filed by William Bisland and Victorie Shields, citizens of Mississippi, against Thomas R. Shields, George S. Guion, Van P. Winder, and Richard G. Ellis, citizens of Louisiana. These cross-bills demanded a specific performance of the contract of November 9, 1842; and that, and nothing else, was decreed by the court.

Can it be asserted that a court of equity, having that contract and all the parties to it once before it, would decree its specific performance so far only as it imposes obligations upon the complainant, and not in all its parts? A party to an indivisible contract must fulfil his contract, if he claim specific performance; 16 Pet. 169. The original and the cross-bill are one cause; 3 Daniels, Ch. Pr. 1743.

Nor did the circuit court err, in making the order of April 24, 1844, directing the filing of a cross-bill by William Bisland and Mrs. Shields. In the Mechanics' Bank of Alexandria v. Louisa and Maria Seton, 1 Pet. 303, this court held, that 'the general rule, as to parties, undoubtedly is, that when a bill is brought for relief, all persons materially interested in the subject of the suit ought to be made parties, either as plaintiffs or defendants, in order to prevent a multiplicity of suits, and that there may be a complete and final decree among all the parties interested. But this is a rule established for the convenient administration of justice, and is subject to many exceptions, and is more or less subject to the discretion of the court, and ought to be restricted to parties whose interest is involved in the issue, and to be affected by the decree.' Field v. Schieffelin, 7 Johns. Ch. R. 250; Story's Eq. Pl. § 393.

3. It is finally said that the complainant should not have been permitted to amend his bill, by joining the plaintiff in his cross-bill, in his demand for the specific performance of the contract of November 9, 1842.

A cross-bill is a defence. How can it be pretended that a plaintiff should not be permitted to admit, in his answer to a cross-bill, that he consents to the claim of the defendant, and to pray that the specific performance, insisted on by the defendant, may be ordered by the court, with such directions as the true nature of the contract requires? This is what Barrow said, in his answer to the cross-bill. He stated the same thing in his petition. That petition may have been, and probably was, superfluous; but it was not that petition, but Bisland's answer and cross-bill, which changed the issue, by averring his readiness to comply with the contract of November 9, 1842. Nay, if Barrow had been entirely silent, the specific performance of that contract would have been ordered under the cross-bill, in the absence of any evidence justifying its rescission.

These proceedings were not only conformable to practice, but imperiously dictated by circumstances, and the only ones which could be had. We shall prove this, and conclude this brief with some remarks showing the true position of the parties.

When the contract of November 9, 1842, was made, the complainant was the holder of the notes of Thomas R. Shields, to the amount of $119,956.35, the whole of which were indorsed by William Bisland, the most responsible of the defendants. Of these notes, $64,000 were then overdue, and Barrow had brought suits on them against Bisland. By the act of November 9, 1842, these notes were to be given up by Barrow, and the two suits against Bisland discontinued. Thomas R. Shields was to return the property, and to be released from all further liability; and Barrow was to receive, besides, $32,000, of which Bisland was to contribute $10,000. Bisland was, moreover, Thomas R. Shields's judgment creditor, in the sum of $47,374.35. Bisland, who might, perhaps, have been able to pay the $10,000 without inconvenience, might have been ruined by a judgment of $119,958.25, with ten per cent. interest, during the extraordinary depreciation of property and prostration of credit then existing in Louisiana. He was, therefore, greatly interested in securing the specific performance of the act of November 9, 1842, which afforded greater relief to him than to any other party.

And when, by his answer and cross-bill, Bisland avowed his willingness to abide by that act, Barrow took him by his word, and in compliance with Bisland's prayer, and without waiting for an order of court, at once dismissed the two suits against him, and deposited in court the notes of Shields, amounting to $119,958.38. It must, also, be observed, that Bisland had obtained an injunction, restraining Barrow from the prosecution of those suits, and from parting with those notes. On the other hand, the notes, amounting to $32,000, at one and two years, which Barrow was to receive under the contract of November 9, 1842, were to remain deposited in the hands of Leufroy Barras, the parish judge and ex officio notary public, before whom that act was passed, until R. R. Barrow should have acquired a title to the property, given up the notes, and released the parties to the act. This title Thomas R. Shields perseveringly and perversely refused to execute, and the aid of the court had to be invoked for it. During the pendency of the suit, Barrow could do no better than to deposit the original notes in court, and discontinue the suits against Bisland. The defendants had flattered themselves that the notes for $32,000 would remain in Terrebonne until after maturity, and without being presented for payment at the Bank of Louisiana, at New Orleans, where they were made payable; a danger which was averted only by the court ordering their removal to the clerk's office, by whose agency they were presented and protested. This was done in opposition to the unreasonable objections of the defendants. An application of the complainant, for the delivery of these notes, was refused by the court, at the instance of the defendants. If he had had possession of these notes, he could have instituted suits on them at law, against the parties thereto. From this he was prevented, by those parties themselves. He was hindered from suing on the original notes, by the injunction of Bisland. With what good grace, with what appearance of equity, do those parties now complain that he did not sue them at law, when they themselves industriously kept him tied up in chancery?

And what, after all, do the appellants contend for, in their elaborate brief? The judgment condemns them, in unequal portions, to pay $32,000 with interest. Of this principal sum, $26,500 are due by the three citizens of Mississippi, who are avowedly properly made parties to the suit: namely, by Mrs. Victoire Shields and William B. Shields, $9,333.33 1/3; and by William Bisland, for himself, $10,000, and as indorser for R. G. Ellis, $6,966.66 2/3. And here we find William Bisland making common cause with the other defendants, when it is clearly his interest that they should be made to abide by the contract which relieves him from his indorsement of $119,918.38, now more than doubled by interest.

Mr. Justice CURTIS delivered the opinion of the court.

title: Shields v. Barrow


text: Talk:Shields v. Barrow

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

title: Talk:Shields v. Barrow


text:
Shields v. Barrow/Opinion of the Court

To make intelligible the questions decided in this case, an outline of some part of its complicated proceedings must be given. They were begun by a bill in equity, filed in the circuit court of the United States for the eastern district of Louisiana, on the 19th of December, 1842, by Robert R. Barrow, a citizen of the State of Louisiana, against Mrs. Victoire Shields, and by amendment against William Bisland, citizens of the State of Mississippi. The bill stated, that in July, 1836, the complainant sold certain plantations and slaves in Louisiana, to one Thomas R. Shields, who was a citizen of Louisiana, for the sum of $227,000, payable by instalments, the last of which would fall due in March, 1844.

That negotiable paper was given for the consideration money, and from time to time $107,000 was paid. That the residue of the notes being unpaid, and some of them protested for nonpayment, a judgment was obtained against Thomas R. Shields, the purchaser, for a part of the purchase-money, and proceedings instituted by attachment against Thomas R. Shields and William Bisland, one of his indorsers, for other parts of the purchase-money then due and unpaid. In this condition of things, an agreement of compromise and settlement was made, on the 9th day of November, 1842, between the complainant, of the first part, Thomas R. Shields, the purchaser, of the second part, and the six indorsers on the notes given by Thomas R. Shields, of the third part. Of these six indorsers, Mrs. Shields and Bisland, the defendants, were two. By this new contract the complainant was to receive back the property sold, retain the $107,000 already paid, and the six indorsers executed their notes, payable to the complainant, amounting to thirty-two thousand dollars, in the manner and proportions following, as stated in the bill:--

'The said William Bisland pays ten thousand dollars, in two equal instalments, the first in March next, and the other in March following, for which sum the said William Bisland made his two promissory notes, indorsed by John P. Watson, and payable at the office of the Louisiana Bank in New Orleans. The said R. G. Ellis $6,966.66, on two notes indorsed by William Bisland. The said George S. Guion, $2,750, on two notes indorsed by Van P. Winder. The said Van P. Winder, $2,750, on two notes indorsed by George S. Guion. The said William B. Shields, $4,766,66, on two notes indorsed by Mrs. Victoire Shields; and finally, Mrs. Victoire Shields the same amount on two notes payable as aforesaid at the office of the Louisiana Bank, in New Orleans.'

The complainant was to release the purchaser, Thomas R. Shields, and his indorsers, from all their liabilities then outstanding, and was to dismiss the attachment suit then pending against Thomas R. Shields and Bisland.

The bill further alleges, that though the notes were given, and the complainant went into possession under the agreement of compromise, the agreement ought to be rescinded, and the complainant restored to his original rights under the contract of sale; and it alleges various reasons therefor, which it is not necessary in this connection to state. It concludes with a prayer that the act of compromise may be declared to have been improperly procured, and may be annulled and set aside, and that the defendants may be decreed to pay such of the notes, bearing their indorsement, as may fall due during the progress of the suit, and for general relief.

Such being the scope of this bill and its parties, it is perfectly clear that the circuit court of the United States for Louisiana, could not make any decree thereon. The contract of compromise was one entire subject, and from its nature could not be rescinded, so far as respected two of the parties to it, and allowed to stand as to the others. Thomas R. Shields, the principal, and four out of six of his indorsers, being citizens of Louisiana, could not be made defendants in this suit; yet each of them was an indispensable party to a bill for the rescission of the contract. Neither the act of congress of February 28, 1839, (5 Stat. at Large, 321, § 1,) nor the 47th rule for the equity practice of the circuit courts of the United States, enables a circuit court to make a decree in equity, in the absence of an indispensable party, whose rights must necessarily be affected by such decree.

In Russell v. Clarke's Executors, 7 Cranch, 98, this court said: 'The incapacity imposed on the circuit court to proceed against any person residing within the United States, but not within the district for which the court may be holden, would certainly justify them in dispensing with parties merely formal. Perhaps in cases where the real merits of the cause may be determined without essentially affecting the interests of absent persons, it may be the duty of the court to decree, as between the parties before them. But, in this case, the assignees of Robert Murray and Co. are so essential to the merits of the question, and may be so much affected by the decree, that the court cannot proceed to a final decision of the cause till they are parties.'

The court here points out three classes of parties to a bill in equity. They are: 1. Formal parties. 2. Persons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it. These persons are commonly termed necessary parties; but if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties. 3. Persons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience A bill to rescind a contract affords an example of this kind, For, if only a part of those interested in the contract are before the court, a decree of rescission must either destroy the rights of those who are absent, or leave the contract in full force as respects them; while it is set aside, and the contracting parties restored to their former condition, as to the others. We do not say that no case can arise in which this may be done; but it must be a case in which the rights of those before the court are completely separable from the rights of those absent, otherwise the latter are indispensable parties.

Now it will be perceived, that in Russell v. Clarke's Executors, this court, after considering the embarrassments which attend the exercise of the equity jurisdiction of the circuit courts of the United States, advanced as far as this: They declared that formal parties may be dispensed with when they cannot be reached; that persons having rights which must be affected by a decree, cannot be dispensed with; and they express a doubt concerning the other class of parties. This doubt is solved in favor of the jurisdiction in subsequent cases, but without infringing upon what was held in Russell v. Clarke's Executors, concerning the incapacity of the court to give relief, when that relief necessarily involves the rights of absent persons. As to formal or unnecessary parties, see Wormley v. Wormley, 8 Wheat. 451; Carneal v. Banks, 10 Ib. 188; Vattier v. Hinde, 7 Pet. 266. As to parties having a substantial interest, but not so connected with the controversy that their joinder is indispensable, see Cameron v. M'Roberts, 3 Wheat. 591; Osborn v. The Bank of the United States, 9 Ib. 738; Harding v. Handy, 11 Ib. 132. As to parties having an interest which is inseparable from the interests of those before the court, and who are, therefore, indispensable parties, see Cameron v. M'Roberts, 2 Ib. 571; Mallow v. Hinde, 12 Ib. 197.

In Cameron v. M'Roberts, where the citizenship of the other defendants than Cameron did not appear on the record, this court certified: 'If a joint interest vested in Cameron and the other defendants, the court had no jurisdiction over the cause. If a distinct interest vested in Cameron, so that substantial justice (so far as he was interested) could be done without affecting the other defendants, the jurisdiction of the court might be exercised as to him alone.' And the grounds of this distinction are explained in Mallow v. Hinde, 12 Wheat. 196, 198.

Such was the state of the laws on this subject when the act of congress of February 28, 1839, (5 Stat. at Large, 321,) was passed, and the 47th rule, for the equity practice of the circuit court of the United States, was made by this court.

The first section of that statute enacts: That when, in any suit, at law or in equity, commenced in any court of the United States, there shall be several defendants, any one or more of whom shall not be inhabitants of, or found within, the district where the suit is brought, or shall not voluntarily appear thereto, it shall be lawful for the court to entertain jurisdiction, and proceed to the trial and adjudication of such suit between the parties who may be properly before it; but the judgment or decree rendered therein shall not conclude or prejudice other parties not regularly served with process, or not voluntarily appearing to answer; and the nonjoinder of parties who are not so inhabitants, or found within the district, shall constitute no matter of abatement or other objection to said suit.'

This act relates solely to the nonjoinder of persons who are not within the reach of the process of the court. It does not affect any case where persons, having an interest, are not joined because their citizenship is such that their joinder would defeat the jurisdiction; and, so far as it touches suits in equity, we understand it to be no more than a legislative affirmance of the rule previously established by the cases of Cameron v. M'Roberts, 3 Wheat. 591; Osborn v. The Bank of the United States, 9 Ib. 738; and Harding v. Handy, 11 Ib. 132. For this court had already there decided, that the nonjoinder of a party, who could not be served with process, would not defeat the jurisdiction. The act says it shall be lawful for the court to entertain jurisdiction; but, as is observed by this court, in Mallow v. Hinde, 12 Wheat. 198, when speaking of a case where an indispensable party was not before the court, 'we do not put this case upon the ground of jurisdiction, but upon a much broader ground, which must equally apply to all courts of equity, whatever may be their structure as to jurisdiction; we put it on the ground that no court can adjudicate directly upon a person's right, without the party being either actually or constructively before the court.'

So that, while this act removed any difficulty as to jurisdiction, between competent parties, regularly served with process, it does not attempt to displace that principle of jurisprudence on which the court rested the case last mentioned. And the 47th rule is only a declaration, for the government of practitioners and courts, of the effect of this act of congress, and of the previous decisions of the court, on the subject of that rule. Hagan v. Walker, 14 How. 36. It remains true, notwithstanding the act of congress and the 47th rule, that a circuit court can make no decree affecting the rights of an absent person, and can make no decree between the parties before it, which so far involves or depends upon the rights of an absent person, that complete and final justice cannot be done between the parties to the suit without affecting those rights. To use the language of this court, in Elmendorf v. Taylor, 10 Wheat. 167: 'If the case may be completely decided, as between the litigant parties, the circumstance that an interest exists in some other person, whom the process of the court cannot reach,-as if such party be a resident of another State,-ought not to prevent a decree upon its merits.' But if the case cannot be thus completely decided, the court should make no decree.

We have thought it proper to make these observations upon the effect of the act of congress and of the 47th rule of this court, because they seem to have been misunderstood, and misapplied in this case: it being clear that the circuit court could make no decree, as between the parties originally before it, so as to do complete and final justice between them without affecting the rights of absent persons, and that the original bill ought to have been dismissed.

But, unfortunately, this course was not taken. The two defendants, Mrs. Shields and Bisland, answered, denied the allegations of fraud, and insisted that, so far as they were concerned, the compromise was made in good faith, and they were ready to perform their parts of it, according to their respective stipulations.

On the same day that Bisland filed his answer, he filed also a cross-bill against Barrow, praying for a specific performance of the contract of compromise.

But this bill also was fatally defective, as respects parties. Thomas R. Shields, and his other five indorsers, had such a direct and immediate interest in the contract of compromise, and that interest was so entire and indivisible, that, without their presence, no decree on the subject could be made. In Morgan's Heirs v. Morgan, 2 Wheat. 290, a bill was brought by the heirs of a deceased vendor, to compel the specific performance of a contract to purchase lands. It was objected that the deceased had a child who was not made a party. Chief Justice Marshall said: 'It is unquestionable that all the coheirs of the deceased ought to be parties to this suit, either plaintiff or defendant, and a specific performance ought not to be decreed until they shall be all before the court.'

The next step in the pleadings was, that Barrow filed what he calls a petition, in which he recites summarily what had previously been done in the cause, and declares himself willing to have the agreement of compromise specifically performed, and prays for leave to amend his bill, by making Thomas R. Shields a party, alleging he had become a citizen of Mississippi, and by inserting the following words:--

'But if this honorable court should be of opinion, that the said agreement of November 9, 1842, is valid, and should not be set aside; and if the said defendant shall acknowledge its validity and binding force, then the orator prays that its specific performance may be decreed, according to its true purport and tenor, as herein above explained; and he offers to do and perform on his part all the acts which, by said agreement, he is bound to perform; and he prays that said defendants may be decreed to pay to him the value of the mule, negro, clothing, and flat-boats, which were taken away from the said plantation as aforesaid; that they be decreed to relieve the said Liza, and the other above-mentioned property, from the judicial mortgages mentioned in this bill, and from the tacit mortgage of the minor children of the said Thomas R. Shields; that the said Thomas R. Shields, when made a party to this suit, both in his individual capacity and as tutor of his aforesaid minor children, may be ordered to execute a proper and legal reconveyance to your orator, of the above-described property, or that any other order may be made which, to this honorable court, may appear meet and fit, for the purpose of again vesting in the orator a good and valid title to the aforesaid property; that the notes described in said act of November 9, 1842, and amounting to $32,000, may be surrendered to your orator; that the defendants may be decreed to pay to your orator the amount of such of the said last-mentioned notes as may have been drawn by them, and also such of said notes as may be indorsed by them, and which may have been protested, and of the protest of which they may have been duly notified before the final decree of this honorable court, the whole with interest from the day of protest; and that said defendants may furthermore be decreed to pay the current expenses of the said plantation during the year anterior to said November 9, 1842, and to refund to your orator any amount and expenses which he may have been, or may yet be, compelled to pay on account of privileged claims incumbering said plantation on the day of said act.'

The court allowed the above amendment. So that the bill thereafter presented not only two aspects, but two diamertrically opposite prayers for relief, resting upon necessarily inconsistent cases; the one being that the court would declare the contract rescinded, for imposition and other causes, and the other, that the court would declare it so free from all exception as to be entitled to its aid by a decree for specific performance.

Whether this amendment be considered as leaving the bill in this condition, or as amounting to an abandonment of the original bill for a rescission of the contract, and the substitution of a new bill for a specific performance, it was equally objectionable.

A bill may be originally framed with a double aspect, or may be so amended as to be of that character. But the alternative case stated must be the foundation for precisely the same relief; and it would produce inextricable confusion if the plaintiff were allowed to do what was attempted here. Story's Eq. Pl. 212, 213; Welford's Eq. Pl. 88; Edwards v. Edwards, Jacob's R. 335.

Nor is a complainant at liberty to abandon the entire case made by his bill, and make a new and different case by way of amendment. We apprehend that the true rule on this subject is laid down by the vice-chancellor, in ''Verplanck v. The Mercantile Ins. Co.'' 1 Edwards Ch. R. 46. Under the privilege of amending, a party is not to be permitted to make a new bill. Amendments can only be allowed when the bill is found defective in proper parties, in its prayer for relief, or in the omission or mistake of some fact or circumstance connected with the substance of the case, but not forming the substance itself, or for putting in issue new matter to meet allegations in the answer. See also the authorities there referred to, and Story's Eq. Pl. 884.

We think sound reasons can be given for not allowing the rules for the practice of the circuit courts respecting amendments, to be extended beyond this; though doubtless much liberality should be shown in acting within it, taking care always to protect the rights of the opposite party. See Mavor v. Dry, 2 Sim. and Stu. 113.

To strike out the entire substance and prayer of a bill, and insert a new case by way of amendment, leaves the record unnecessarily incumbered with the original proceedings, increases expenses, and complicates the suit; it is far better to require the complainant to begin anew.

To insert a wholly different case is not properly an amendment, and should not be considered within the rules on that subject.

After this change had been made in the original bill, and Barrow had answered the cross-bill of Bisland, the next step taken in the cause, respecting the pleadings and parties, was the entry of the following order:--

'The motion of the complainant for the delivery of the notes of George S. Guion and Van P. Winder, which have been, by order of the court, delivered into the court, to abide its further order, came on to be heard; and having been fully argued, and it appearing to the court that all the parties to the second contract set up in the complainant's bill and in the cross-bill of the defendant, Bisland, are not before the court; and it also appearing to the court that the said defendants, Shields and Bisland, are citizens of the State of Mississippi, and that all the other parties interested in the execution of the said second contract, are citizens of the State of Louisiana, it is therefore ordered, that unless the said Shields and Bisland do, on or before the first Monday in August next, file their cross-bill, setting up and praying a specific execution of said contract, and make all the parties to the second contract, set up in the complainant's bill and residing in Louisiana, defendants, that the complainant, Barrow, shall be at liberty to proceed upon his bill of complaint for a specific execution of the original contract between the parties, and for the rescission of the said second contract against such of the parties residing in the State of Mississippi as may fail to comply with this order.'

The validity of this order cannot be maintained, and nothing done in consequence of it can be allowed any effect in this court.

It is apparent that, if it were in the power of a circuit court of the United States to make and enforce orders like this, both the article of the constitution respecting the judicial power, and the act of congress conferring jurisdiction on the circuit courts, would be practically disregarded in a most important particular. For in all suits in equity it would only be necessary that a citizen of one State should be found on the side, and a citizen of another State on the other, to enable the court to force into the cause all other persons, either citizens or aliens. No such power exists; and it is only necessary to consider the nature of a cross-bill, to see that it cannot be made an instrument for any such end. 'A cross-bill, ex vi terminorum, implies a bill brought by a defendant against the plaintiff in the same suit, or against other defendants in the same suit, or against both, touching the matters in question in the original bill.' Story's Eq. Pl. § 389; 3 Dan Ch. Pr. 1742.

New parties cannot be introduced into a cause by a cross-bill. If the plaintiff desires to make new parties, he amends his bill, and makes them. If the interest of the defendant requires their presence, he takes the objection of nonjoinder, and the complainant is forced to amend, or his bill is dismissed. If, at the hearing, the court finds that an indispensable party is not on the record, it refuses to proceed. These remedies cover the whole subject, and a cross-bill to make new parties is not only improper and irregular, but wholly unnecessary.

When the defendants, Mrs. Shields and Bisland, had complied with this order of the court, and filed their cross-bill, as it was called, against the other indorsers and Thomas R. Shields, and they had come in, as they did, what was their relation to the cause? They surely were not plaintiffs in it. If they were defendants the court had not jurisdiction, for they, as well as the complainant, were citizens of Louisiana. In truth, they were not parties to the original bill; they were merely defendants to the cross-bill. They had no right to answer the original bill, or make defence against it, and of course no decree could be made against them upon that bill.

We do not find it necessary to pursue further an examination in detail, of the complicated maze of pleas, demurrers, answers, amendments, and interlocutory orders, which followed the filing of this, so called, cross-bill. It is enough to say that the defendants to it were never lawfully before the court; that the court never obtained jurisdiction over those of the parties who were citizens of the State of Louisiana, and amongst them was Thomas R. Shields, who, though made a party to the original bill by amendment, as a citizen of Mississippi, pleaded that he was a citizen of Louisiana, and was thereupon stricken out of the original bill, and was only a defendant to the cross-bill; that it never had lawfully before it such parties as were indispensable to a decree for the specific performance of the contract of compromise, or for the rescission thereof; and lastly, that when it proceeded finally to make a decree condemning certain of the defendants, who were indorsers for Thomas R. Shields, to pay the notes given on the compromise, it gave relief, for which there was a plain, adequate, and complete remedy at law, and which was wholly aside from the prayer of the bill for a specific execution of the contract of compromise, which was fully executed in this particular when the notes were given and deposited in the hands of the notary.

This court regrets that a litigation, which has now lasted upwards of thirteen years, should have proved wholly fruitless; but it is under the necessity of reversing the decree of the circuit court, ordering the cause to be remanded, and the original and cross-bills dismissed.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the eastern district of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court that the decree of the said circuit court in this cause be and the same is hereby reversed with costs, and that this cause be and the same is hereby remanded to the said circuit court, with directions to that court to dismiss the original and cross-bills in this cause.

title: Shields v. Barrow/Opinion of the Court


text: Talk:Shields v. Barrow/Opinion of the Court


text:
Ring v. Maxwell

THIS case came up from the circuit court of the United States for the southern district of New York, upon a certificate of division of opinion between the judges thereof.

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

It was argued by Mr. Ring, for the complainants, and by Mr. Cushing, (attorney-general,) for the defendant.

There were five questions certified from the circuit court, and argued here. As the arguments covered the whole ground, and the court decided only one of the points, the reporter has concluded to omit the arguments of counsel altogether.

Mr. Justice CURTIS delivered the opinion of the court.

title: Ring v. Maxwell


text: Talk:Ring v. Maxwell

title: Talk:Ring v. Maxwell


text:
Ring v. Maxwell/Opinion of the Court

This case comes before us, upon a certificate of division of opinion of the judges of the circuit court of the United States for the southern district of New York. The certificate shows that a suit in equity is pending in that court, wherein persons who were the naval officer and surveyor of the port of New York, are complainants, and Hugh Maxwell, who was the collector of that port, is respondent, and that the scope of the bill is to recover one moiety of a large sum of money levied and collected as additional duties, under the 8th section of the tariff act, of July 30, 1846, (9 Stats. at Large, 43,) during the time while the complainants held the offices above mentioned. Upon the hearing of this cause, the judges were opposed in opinion upon the following questions:--

'Whether, upon a true construction of the revenue laws of the United States, the additional duties of 20 per centum, which have been levied and collected by and paid to the defendant, as collector of the port of New York, at the port of New York, as stated in his answer, under and by virtue of the 8th section of the act entitled 'An act for reducing the duties on imports, and for other purposes,' passed July 30, in the year 1846, were to be treated as penalties, and one moiety thereof divided between and paid in equal proportions to and among the collector, naval officer, and surveyor of the port of New York, holding said offices at the time of the levying, collection, and payment thereof, in the said port of New York, as claimed by the plaintiffs, in their bill in this cause.'

The 8th section of the act of July 30, 1846, after requiring the collector to cause the dutiable value of the imports therein referred to, to be appraised, estimated, and ascertained, in accordance with the provisions of existing laws, goes on to enact, 'and if the appraised value thereof shall exceed, by ten per centum or more, the value so declared on the entry, then, in addition to the duties imposed by law on the same, there shall be levied, collected, and paid, a duty of twenty per centum, ad valorem, on such appraised value.' The question is, whether the sums levied, collected, and paid under this clause, were by law distributable as penalties, one moiety to the treasury of the United States, and the other moiety among the collector, naval officer, and surveyor.

To render any sum of money collected for the government, thus distributable, it is not doubted that some act of congress, directing that distribution, must be found; and the complainant's counsel has sought for such a law, by arguing that these additional duties must be treated as penalties, levied for the offence of undervaluation, against the directions and in contravention of the requirements of the revenue laws; and that if they are penalties, they are required to be distributed by different collection laws to which he has referred, and which he urges have been made applicable by congress to the sums of money now in question. We do not find it necessary to determine whether these additional duties might have been deemed penalties, so as to come under the terms of either of the collection laws which have directed the distribution of penalties among certain officers of the customs; nor do we deem it important to examine in detail, the provisions of those collection laws, and the manner in which they have been, from time to time, rendered applicable, in part or in whole, to the different acts levying duties and penalties.

Because, we are all of opinion, that whatever may be the nature of the sums levied, as additional duties, under the 8th section of the tariff act of 1846, they are not distributable as penalties.

To exhibit the reasons on which this opinion is founded, it is necessary to refer first to the tariff act of August 30, 1842. The 26th section of that act, provided that the laws existing on the 1st day of June, 1842, shall extend to and be in force for the collection of the duties imposed by this act, &c., and for the recovery, collection, distribution, and remission of all fines, penalties, and forfeitures, and for the allowance of the drawbacks by this act authorized, as fully and effectually as if every regulation, restriction, penalty, forfeiture, provision, clause, matter, and thing in the said laws contained, had been inserted in and re enacted by this act.

The 16th and 17th sections of the same act, prescribe the manner in which merchandise, subject to ad valorem rates of duty, shall be appraised, and its dutiable value ascertained; and then the 17th section enacts: 'That in all cases where the actual value to be appraised, estimated, and ascertained, as hereinbefore stated, of any goods, wares, and merchandise, imported into the United States, and subject to any ad valorem duty, or whereon the duty is regulated by or directed to be imposed or levied on the value of the square yard, or other parcel, or quantity thereof, shall exceed, by ten per centum or more, the invoice value, then in addition to the duty imposed by law on the same, there shall be levied and collected on the same goods, wares, and merchandise, fifty per centum of the duty imposed on the same where fairly invoiced.'

These being provisions of the tariff act of 1842, the complainants' argument is, that the additional duties levied under its 17th section, were made distributable by its 26th section; that the 8th section of the act of 1846 only changed the amount of the penalty in the cases it reached; that, whereas, by the 17th section of the act of 1842, if the appraisement should exceed the invoice value ten per centum, fifty per centum of the duty was the penalty, by the act of 1846, twenty per centum of the appraised value was to be the penalty; that this was the only change made; although the 26th section of the act of 1842, which made penalties distributable under the then existing laws, applied, in terms, only to the penalties levied by that act, yet those laws of distribution are applicable to this penalty under the act of 1846, which must be considered as substituted in place of the penalty levied by the act of 1842, and to be governed by the same provisions of law as were applicable to the additional duty, by way of penalty, under that act of 1842.

There is great force in this argument. The tariff act of 1846 is an act fixing new rates of duty on imports. It does not contain any provisions for the collection of those duties, nor for the collection or distribution of any penalties. It does not, in terms, adopt the existing laws on those subjects, nor declare that they shall be deemed applicable to the duties and penalties which it levies; yet it is obvious that it must have been intended that those existing laws should be thus applied; and this can only be effected, by considering the duties and penalties levied by the act of 1846, as substitutes for, and to be governed by the same rules as, the corresponding duties and penalties levied by the act of 1842, which did, in terms, adopt and apply the existing laws for the recovery, collection, and distribution of duties and penalties.

We accede, therefore, to the positions that the additional duty levied by the act of 1846, is only a substitute for that levied under the act of 1842, and that whatever rule was in force when the act of 1846 was passed, concerning the distribution of the additional duty levied by the 17th section of the act of 1842, is also in force, and is to be applied to the additional duty under the 8th section of the act of 1846, which is here in question. So that the only remaining inquiry is, what was that rule?

We think this question is answered by the 3d section of the act of February 11, 1846, (9 Stat. at Large, 3,) 'that no portion of the additional duties provided for by the 17th section of the act of August 30, 1842, entitled, &c., shall be deemed a fine, penalty, or forfeiture, for the purpose of being distributed to any officer of the customs; but the whole amount thereof, when received, shall be paid directly into the treasury.'

This enacts a rule concerning the distribution of the additional duties under the act of 1842; and as the additional duties under the act of 1846 are substitutes for, and to be governed by the same rules as to distribution, as those levied under the former law, it necessarily follows that they are not distributable.

It has been argued that this 3d section of the act of February 11, 1846, is expressly limited to the additional duties levied under the 17th section of the act of 1842; and therefore cannot govern the distribution of those levied under the act of 1846. But so the 26th section of the act of 1842, which adopts former laws, applies them only to the duties and penalties levied under that act; and this is the only authority for applying any laws to the distribution of the penal duties now in question. The complainant is obliged to argue that, though limited in terms to that act, it applies to rates of penal duty afterwards substituted by the act of 1846, in place of those prescribed by the act of 1842. We have declared the argument sound; but it must be allowed its full and just effect. The implication is not that the laws for the collection and distribution of penalties, as they had existed at some prior period, or as they had been applicable to other penalties, were silently adopted by the act of 1846; but that the laws for the collection and distribution of additional duties by way of penalty, as those laws existed when the act of 1846 was passed, must be deemed applicable to the new additional duty by way of penalty prescribed by that act; and when the act of 1846 was passed, the previous general law for the distribution of penalties had been modified, and the additional duty for which that in question is substituted, had been declared not distributable. The consequence is that though the act of 1846 may be considered as providing for both duties and penalties, subject, as to their collection and distribution, to existing laws, yet as there was no law in force by which additional duties, levied for undervaluation, were made distributable, there can be no adoption of any existing law on that particular subject, and no districution can take place.

Perhaps this may be illustrated by supposing that the substance of the 3d section of the act of February 11, 1846, had been incorporated into the 26th section of the act of 1842, by way of proviso. So that at the same time when the act of 1842 adopted all existing laws concerning the distribution of penalties, it had declared that the additional duties to be levied under the 17th section, should not be distributable as penalties, but should be paid into the treasury. Certainly, it could not then have been argued that the act of 1846 had merely changed the rate of additional duty, and had silently adopted the existing laws concerning its distribution, and still that it was distributable. Yet the effect of this subsequent enactment, of February 11, 1846, when made, upon the act of 1842, is the same as if it had been incorporated therein. It is in eadem materia, and both are to be construed as one law, the last controlling and modifying the first, as if it made a part of it.

The fallacy of the argument, on the part of the complainants, consists in going back to former laws concerning the distribution of other penalties, and considering them to be applicable to this penalty, when the existing law, applicable in terms to a penalty ejusdem generis, and for which this penalty is a substitute, declares that it is not distributable.

Our opinion is, that the first question certified by the circuit court, must be answered in the negative.

There are other questions certified, but as the one above decided necessarily disposes of the case, we do not deem it needful to consider and respond to them.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the southern district of New York, and on the points or questions on which the judges of the said circuit court were divided in opinion, and which were certified to this court for its opinion, agreeably to the act of congress in such case made and provided, and was argued by counsel. On consideration whereof it is the opinion of this court that the first question certified by the circuit court in this case must be answered in the negative, to wit: That upon a true construction of the revenue laws of the United States, the additional duties of 20 per centum, which have been levied and collected by and paid to the defendant, as collector of the port of New York, at the port of New York, as stated in his answer, under and by virtue of the 8th section of the act entitled 'an act for reducing the duties on imports, and for other purposes,' passed July 30, in the year 1846, were not to be treated as penalties, and one moiety thereof divided between and paid in equal proportions to and among the collector, naval officer, and surveyor of the port of New York, holding said officers at the time of the levying, collection, and payment thereof, in the said port of New York, as claimed by the plaintiffs in their bill in this cause.

And this court is further of opinion that, as the decision of the first question in the negative necessarily disposes of the case, it is unnecessary to consider and respond to the other questions certified; whereupon it is now here ordered and adjudged by this court, that it be so certified to the said circuit court.

title: Ring v. Maxwell/Opinion of the Court


text: Talk:Ring v. Maxwell/Opinion of the Court


text:
Page:Dictionary of National Biography volume 58.djvu/34

 in Memorials of Henry V, p. 38). He was one of the commissioners who concluded the seven years' truce of Durham. In 1429 he founded a chantry at Farnacres in Durham (, Durham, iv. 243). His last appointment was on a commission, dated 5 Feb. 1435, to negotiate a truce with the Scots (Fœdera, x. 629). He died on 29 Jan. 1436, and was buried at Newminster. Hardyng, who served him till his death as constable of Kyme Castle, has left a touching picture of his brave, simple, and honourable character (pp. ix–xi). He celebrates his valour, ‘sapience,’ his gentleness that would not even reprove his servants before others, and his justice that made many of his Scots enemies go to Berwick to submit their disputes to his arbitration. When made knight of the Garter he was but a poor man, whose estate was worth only a hundred marks a year. He was the last male representative of the Umfravilles that held Redesdale under the entail of 1378. The estates thus settled now passed away from his nieces to the Talboys—Sir Walter Talboys (d. 1444), the grandson of Sir Walter Talboys (d. 1418), who was the son of Eleanor Borrodon and Henry Talboys. Their son was Sir William Talboys (d. 1464) [q. v.], who was, with strange persistence, still styled Earl of Kyme.

UMMARCOTE, (d. 1241), cardinal. [See .]

UMPHELBY, FANNY (1788–1852), author of ‘The Child's Guide to Knowledge,’ was born in Knowles's Court in the parish of St. Mary Magdalen, Old Fish Street, Doctors' Commons, in 1788. She lived for many years at Leatherhead, and died at Bow on 9 April 1852. In 1825 Miss Umphelby published ‘The Child's Guide to Knowledge, … by a Lady.’ The work became at once a standard book; a second edition appeared in 1828, and it is now (1899) in its fifty-eighth edition. Miss Umphelby also wrote and published ‘A Guide to Jewish History.’ ‘“The Child's Guide to Knowledge,” which came to teachers and pupils of the present century as a warmly welcomed novelty, was in truth on the plan of the ‘Elucidarium’ attributed to [q. v.], but differed from it in form, in so far as the information is extracted from the pupil, not from the teacher. … None of the new productions could rival in success “The Child's Guide to Knowledge.” The old idea of the “colloquy,” and the old plan of a book on the properties of things, were here revived and welcomed in the schoolroom’ (, The Child and his Book). The authorship of ‘The Child's Guide’ has been frequently attributed to Miss Umphelby's sister, wife of Robert Ward; but Miss Umphelby composed all of it. To later editions about eighty pages were added by her nephew, Mr. Robert A. Ward of Maidenhead, to keep the information up to date.

UNDERDOWN, THOMAS (fl. 1566–1587), poet and translator, was the son of Stephen Underdown, to whom Sir, afterwards first earl of Dorset [q. v.] had shown kindness (epistle prefixed to 2 below). Wood says that he spent some time at Oxford University, but left it without a degree. Cooper identifies him with Thomas Underdown of Clare Hall, Cambridge, B.A. 1564, M.A. 1568, and points out that a Thomas Underdown was ‘parson of St. Mary's in Lewes’ in 1583, when he was in trouble for nonconformity. It is not probable that this was the translator.

The earliest extant edition of Underdown's chief work, ‘An Æthiopian Historie, written in Greeke by Heliodorus, no lesse wittie than pleasaunt,’ is undated; a copy is in the Bodleian. It doubtless appeared in 1569, when Francis Coldock was licensed to publish ‘The ende of the xth book of Helioderus Œthiopium (sic) Historye.’ Another edition, ‘newly corrected and augmented with divers and sundry newe additions by the said Authour,’ appeared in London in 1587, 4to. The address ‘to the gentle reader’ of the 1587 edition says that the earlier issue was published by persuasion of ‘my friend’ Francis Coldock, which now ‘by riper years better advised’ the writer regrets. A third edition appeared in 1606. In 1622 William Barrett, finding Underdown's style ‘almost obsoleted,’ revised and republished his translation ‘cleared from the barbarisms of anti-


text:
Propeller Monticello v. Mollison

THIS was an appeal from the circuit court of the United States for the northern district of New York.

It was a case of collision, in September, 1850, upon Lake Huron, between a propeller called Monticello, and a schooner called The Northwestern, by which the schooner and her cargo were entirely lost.

In April, 1851, Mollison, the owner of the schooner, libelled the propeller, then lying in the port of Buffalo. Wilson, the master and claimant of the propeller, answered the libel, and much testimony was taken on both sides. In May, 1852, the district judge decreed that the libellant should receive the sum of $6,000, as the value of the schooner, and the further sum of $150, as the value of the salt which constituted the cargo. The case being carried, by appeal, to the circuit court, the decree was affirmed in September, 1853. The master of the propeller appealed to this court.

It was argued by Mr. Gillet, for the appellant, and by Mr. Grant, for the appellee.

Almost all the arguments of counsel were founded upon their different versions of the evidence; and as the substance of this is given in the opinion of the court, the reporter has concluded to omit the views taken of it by the respective counsel.

Mr. Justice GRIER delivered the opinion of the court.

title: Propeller Monticello v. Mollison


text: Talk:Propeller Monticello v. Mollison

title: Talk:Propeller Monticello v. Mollison


text:
Propeller Monticello v. Mollison/Opinion of the Court

The appellee in this case filed his libel in the district court for the northern district of New York, against the steam-propeller Monticello, in a cause of collision.

The libel sets forth that the libellant is owner of the schooner Northwestern; that on the 15th of September, 1850, the schooner, with a cargo of salt, was on her voyage from the port of Oswego, in New York, to the port of Chicago, in Illinois; that about half-past eight o'clock in the evening, being about ten or twelve miles from Presque Isle, on Lake Huron, and about six miles from land, sailing with a fair breeze, on the course of west-northwest, (the wind being south-southwest,) the sparks from the chimney of the propeller were seen some six miles off. In order to give a 'wide berth' to the approaching vessel, the schooner ported her helm and ran her course a point more to the north. That when from four to six miles apart, a bright light was placed in a conspicuous position on the schooner, and the vessel held steadily to her course, so that the approaching propeller might not mistake the course of the schooner. That the propeller exhibited no light, except that occasionally thrown out by the sparks from her chimney. That some time after, the master of the schooner, by close observation, discovered that the propeller was directly forward of the beam of the schooner, close upon her, and steering directly for her. He then hailed the steamboat, and ordered his helm aport, but too late to avoid the collision, which caused the schooner to sink immediately.

The answer admits that the lights of the schooner were seen when five miles off, and states that the steamboat was on a course of east-southeast, and continued on that course for a short time after seeing the light of the schooner; but that, as the schooner appeared 'far in shore,' in order to give her lake room. the propeller bore away into the lake about three quarters of a point; and that the collision was occasioned by the fault of the schooner, in not keeping her course.

The answer also alleges, as a defence, that the schooner and cargo had been insured and abandoned to the insurers, who accepted the abandonment, and had paid the insurance to the libellant, prior to the filing of the libel.

1. On the first point, as to the party to whom the fault of this collision is to be imputed, we entirely concur with the judgment of the district and circuit courts. The testimony of libellant's witnesses is consistent, and, connected with the admissions of the answer and of respondent's witnesses, is conclusive to show that the fault was in the steamboat. The master of the steamboat was not on board on that occasion; and the testimony of the mate, who had command, and by whose obliquity of vision, or want of judgment, the steamboat was so dexterously brought into collision with the schooner, attempts to excuse his conduct by a statement of facts disproved by all the other witnesses, and demonstrably incorrect. He admits that he saw the bright light of the schooner five miles off. He asserts that the schooner's light appeared on the starboard bow of the steamer; this is clearly a mistake in his statement of facts, or, if true, was occasioned by the steamer turning out of her course.

The theory of mere negligence, or inattention, will hardly account for this collision. Defendant's witnesses admit that they at one time mistook the bright light of the schooner for the Presque Isle light-house; and it is evident that, laboring under this delusion, they must have steered directly for the schooner's light, not discovering their mistake till it was too late to remedy it. The night, though dark, had some starlight, by which the land, some six miles off, showed itself above the horizon. With a channel and room to pass as wide as the lake, with the bright light of the schooner full in view for more than twenty minutes before the collision, it cannot be accounted for, except by the hypothesis of the active co operation of the officers of the steamboat, caused by a delusion, under which they continued to labor in consequence of a reckless inattention to their duty.

It is contended, on behalf of respondent, that the fault of the collision is to be attributed to the schooner, because she did not keep on her course and leave the stamboat to pass as best she could, according to the rules laid down by this court in the case of St. John v. Paine, 10 How. 557. The answer to this argument is obvious. When the master of the schooner first observed that he was sailing on a line with the steamboat, and ordered his helm to be ported, so as to avoid being on the track of the approaching vessel, they were seven or eight miles or more apart, not in the narrow channel, but in the wide lake. There was no immediate danger of a collision. The order was one of extreme caution; it did not tend to produce the collision, for when the light of the schooner was first seen, five miles off, the schooner was sailing steadily on her course of northwest by north, making an angle of one point with the course of the steamer, and continued on that course till she was run down and sunk.

The rules laid down by this court for avoiding collision, should be strictly adhered to, so that conflicting orders may not produce the collision instead of avoiding it. But in the present case, when the schooner changed her course, the vessels were in no danger of collision, being many miles apart in an open sea. They had not approached to that point of danger which brings the rules of the admiralty into exercise, and makes their observance necessary, in order to avoid a collision. When the steamer first discovered the light of the schooner, she was sailing steadily on the course adopted, and continued to do so, till the collision was produced by the perverse dexterity of the helmsman of the steamboat.

2. The defence set up in the answer, that the libellants have received satisfaction from the insurers, cannot avail the respondent. The contract with the insurer is in the nature of a wager between third parties, with which the trespasser has no concern. The insurer does not stand in the relation of a joint trespasser, so that satisfaction accepted from him shall be a release of others. This is a doctrine well established at common law and received in courts of admiralty. See Yates v. Whyte, 4 Bing. N. C. 272; Phillips on Insurance, 2163; Abbott on Shipping, 318.

It is true, that in courts of common law the injured party alone can sue for a trespass, as the damages are not legally assignable; and if there be an equitable claimant, he can sue only in the name of the injured party: whereas, in admiralty, the person equitably entitled may sue in his own name. But the same reasons why the wrongdoer cannot be allowed to set up as a defence the equities between the insurer and insured, equally apply in both courts. The respondent is not presumed to know, or bound to inquire, as to the relative equities of parties claiming the damages. He is bound to make satisfaction for the injury he has done. When he has once made it to the injured party, he cannot be made liable to another suit, at the instance of any merely equitable claimant. If notified of such a claim before payment, he may compel the claimants to interplead; otherwise, in making reparation for a wrong done, he need look no further than to the party injured. If others claim a right to stand in his place, they must intervene in proper time, or lose their recourse to the respondent.

The insurer may at all times intervene in courts of admiralty, if he has the equitable right to the whole or any part of the damages. Under the 34th rule in admiralty of this court, he may be allowed to intervene, and become the dominus litis, where he can show an abandonment, which devests the original claimant of all interest. See 1 Curtis's R. 340. Under the 43d rule also he may intervene after decree, and claim the damages recovered, by showing that he is equitably entitled to them. But with all this the respondent has no concern, nor can he defend himself by setting up these equities of others, unless he can show that he has made satisfaction to the party justly entitled to receive the damages.

The judgment of the circuit court is therefore affirmed, with costs.

Mr. Justice DANIEL dissented.

In the cases of The Propeller Monticello v. Mollison, in admiralty, and in those of Clapp v. The City of Providence, and of The Bank of Tennessee v. Horn, I dissent from the opinion and decision of this court; not upon the merits of those cases, but upon the ground of a want of jurisdiction in this court to adjudicate them. The reasons for my objection to the jurisdiction of this court, in cases like those above mentioned, have been so frequently assigned in preceding instances before this court, that a repetition of them, on the present occasion, is deemed superfluous. My purpose is simply to maintain my own consistency in adhering to convictions which are in nowise weakened.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the northern district of New York, and was argued by counsel. On consideration whereof it is now here ordered, adjudged, and decreed by this court, that the decree of the said circuit court in this cause be and the same is hereby affirmed, with costs, and interest until paid, at the same rate per annum that similar judgments bear in the courts of the State of New York.


text: Talk:Propeller Monticello v. Mollison/Opinion of the Court


text:
Bank of Tennessee v. Horn

THIS case was brought up, by writ of error, from the circuit court of the United States for the eastern district of Louisiana.

The facts are stated in the opinion of the court.

Horn, who was the purchaser of the property under the syndic, instituted a petitory suit in the third judicial district court of the State of Louisiana, against Bernard and Hare, who were tenants under the Bank of Tennessee. The Bank appeared to the suit, and prayed for the removal of the case to the circuit court of the United States for the eastern district of Louisiana, which was ordered.

The bill of exceptions which was taken upon the trial, showed the prayers addressed to the court by the counsel for the Bank, and the rulings of the court thereon. The bill was as follows:--

Be it remembered, that on the trial of this cause, the defendant, the Bank of Tennessee, preferred to the court the following propositions of law arising on the agreed statement of facts, on which it was insisted that this case should be decided in favor of said Bank, and against the plaintiff, Lewis B. Horn, to wit:--

1. The surrender of property by Peter Corney, in the state court of Louisiana, did not transfer to his creditors the ownership of any part or portion thereof, whether it was described or referred to in the schedule or not, but the same remained the property of Corney notwithstanding the surrender.

2. The words 'all the property of such insolvent debtor, mentioned in said schedule, shall be fully vested in his creditors,' used by the legislature of Louisiana, in the act of 1826, in regard to insolvent debtors, cannot and ought not to be construed to have reference to any property which is not mentioned in the schedule; but property not named in the schedule remains in the situation provided for by the laws of Louisiana in force prior to the passage of the act of 1826, and the rights of parties thereto were not altered by the passage of said act.

3. The only right which the creditors of Corney had in the property which was surrendered, was one analogous to that of pledge; that is, a right to take possession of and sell the property, according to the forms of law, and apply the proceeds to the payment of their debts, and was not a right of ownership.

4. That the surrender of Corney did not transfer to the creditors possession of any property whatever, whether mentioned in the schedule or not; but only conferred on them the right to take possession thereof, and to sell it in due course of law, to pay the debts due to them.

5. The right of the state court to cause to be sold such property as they had reduced into possession, did not oust the jurisdiction of the United States circuit court, in the case of the Bank of Tennessee v. P. Corney, but that court rightfully proceeded to render judgment against said Corney, and to execute the same, by seizing and selling the land in controversy.

6. Whatever may be the law in regard to the property described in the schedule, and reduced into the possession of the creditors or syndic, the circuit court had an undoubted right to execute its judgment, by causing the seizure and sale of property not reduced into the possession of the syndic, and not described on the schedule.

7. The act of the Louisiana legislature of 1826, in regard to insolvent debtors, was not intended to change the law in regard to the rights of any persons named therein, to the property of the insolvent, or to change in any manner the mode of proceeding in the state court to enforce those rights; the legislature having been extremely careful, by provisos, to retain exactly the old law in regard to the rights of property; but the said act was intended only to effect a change in the remedies or final process used in this court, by changing the names of rights; and therefore the court was bound altogether to disregard the said act of the Louisiana legislature, so far as that act affects the process of this court.

8. The syndic and auctioneer and Horn, as vendor and vendee, had no right to treat the marshal's sale as a nullity, or in any way to complain of it, after the sale by the marshal to the Bank of Tennessee had regularly been made, without any legal opposition on their part.

9. The acceptance of the surrender, by the second district court of New Orleans, and all orders made and all proceedings had in that court, have reference only to the property named in the inventory, unless some other property is expressly named in the proceeding itself; and therefore, they could have no effect whatever on the right of the marshal to execute process, by a seizure of property not named in the inventory, and not expressly referred to.

And prayed that the said propositions should be sustained, and the cause finally decided in favor of the Bank; but the court ruled all these propositions against the Bank of Tennessee, and held the following positions to be law applicable to the case:--

1. That the surrender, in the second district court of New Orleans, divested Corney of all his rights of property, and vested those rights in the creditors.

2. That because we had no lien and no right of payment in preference to others, therefore we had no right to execute our judgment in the circuit court, by a sale of Corney's property, although the fact of Corney's insolvency was not made known to the court, and no objection was made to our proceeding.

3. That the property was in gremio legis, by virtue of the constructive possession arising from the surrender in the second district court of New Orleans.

4. That it is but fair to assume that the property now in dispute was designed to be included by Corney in his schedule.

To all of which propositions as well as to the whole opinion of the court, which was reduced to writing, and copy of which is annexed to the bill of exceptions, the counsel of the Bank of Tennessee objected, on the ground that the said propositions made by the court, and its opinion, were contrary to law and justice, and tendered this, his bill of exceptions, to be signed by the court, which is accordingly done.

This bill in allowed so as to have the same construction as if the case had been submitted to a jury, and these exceptions had been taken on the trial.

J. A. CAMPBELL, Judge presiding.

Upon this bill of exceptions, the case came up to this court, and was submitted by Mr. Dunbar, upon a printed argument of Messrs. Stockton and Steele, for the plaintiffs in error, and argued by Mr. Janin, for the defendant.

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

title: Bank of Tennessee v. Horn


text: Talk:Bank of Tennessee v. Horn

title: Talk:Bank of Tennessee v. Horn


text:
Page:Copyright, Its History And Its Law (1912).djvu/173

 named herein, and of registration for the first or renewal term, with the name of the claimant (printed in the case of a few of the publishers making most applications), and on the other side the specification (following the wording of the application and the deposit copy) of the title or description, date of publication, receipt of affidavit (where required), receipt of copies and entry number by class, together with the seal of the Copyright Office.

This certificate is sent without charge other than the fees directly provided for in the law (sec. 61), viz., "for the registration of any work subject to copyright, deposited under provisions of this Act, one dollar, which sum is to include a certificate of registration under seal : Provided, That in the case of photographs the fee shall be fifty cents where a certificate is not demanded. For every additional certificate of registration made, fifty cents . . . For recording the extension or renewal of copyright provided for in sections twenty-three and twenty-four of this Act, fifty cents." The law no longer contemplates record before publication, and it is unnecessary and undesirable to send application or money previous to sending of deposit copies. In fact, as the certificate must show date of publication, publication cannot be anticipated, and money sent in advance, for individual registrations, is only an embarrassment to the Copyright Office. The Office will, however, receive advance deposits from publishers of periodicals or other publishers making frequent registrations, against which each registration will be charged. Fees should be sent by money order, or at the remitter's risk, in currency (but not in stamps). Bank drafts and certified checks are accepted in practice, though the Register of Copyrights cannot legally receive checks except at his personal risk and therefore from persons


text:
Bank of Tennessee v. Horn/Opinion of the Court

The facts in this case, as they appear on the record, are as follows:--

Peter Corney, jr., who resided in New Orleans, on the 7th of November, 1851, filed a petition under the insolvent law of Louisiana, in the second district court, declaring his inability to meet his engagements, and praying that a cession of his property might be accepted by the court, for the benefit of his creditors, and that in the mean time all proceedings against him should be stayed. To this petition, a schedule of his property was annexed, in which it is apparent that the lot in question was intended to be included, but which is so erroneously described that it can hardly be identified, by the schedule alone, as a part of his estate.

The district court, on the day the petition was presented, accepted the cession, and ordered a meeting of the creditors on the 13th on December following. The meeting was held accordingly, and a syndic appointed, and a report of the proceedings made to the court. On the 8th of March following the court anthorized a sale of the property now in dispute, by the syndic; and at that sale, in May, 1852, the defendant in error became the purchaser.

The insolvent, at the time of his petition, was indebted to the Bank, the plaintiff in error, in a large sum of money, for which a suit was then pending in the circuit court of the United States for the eastern district of Louisiana. The Bank proceeded in its suit and obtained judgment; but the judgment was rendered after the cession had been accepted and the syndic appointed by the creditors. The Bank, however, issued an execution, under which this property was seized by the marshal, in February, 1852, and sold in the April following. The Bank was the purchaser at this sale, and obtained possession of the lot under it.

The defendant in error, after his purchase from the syndic, brought suit for the premises, and upon a trial in the circuit court of the United States for the eastern district of Louisiana, recovered a judgment; the court being of opinion that the property in question vested in the creditors, upon the cession and acceptance above mentioned, and was not liable to seizure under the execution which issued upon the judgment afterwards obtained by the plaintiff in error.

By an act of the legislature of Louisiana, passed on the 29th of March, 1826, all the property of an insolvent petitioner mentioned in his schedule is fully vested in the creditors, from and after the cession and acceptance; and the syndic is directed to take possession of it, and to administer and sell it, for the benefit of the creditors. At the time, therefore, when the Bank obtained judgment against Corney, the insolvent, he had no interest in the lot in question upon which the judgment could be a lien, or which could be seized upon, on execution issuing on that judgment. The right and title to it had, by operation of the law of the State, vested in the creditors, to be administered by the syndic, as their trustee.

Nor can the imperfect or erroneous description in the schedule have any influence on the decision. For it is well settled, by decisions of the courts of Louisiana, that all the property of the insolvent, whether included in his schedule or not, passes to his creditors by the cession. 4 Ann. Rep. 492, 493; 11 Louisiana Rep. 521; 8 Rob. 128; 9 Ib. 223. Consequently, if, under the ambiguous or erroneous description in the schedule, this lot must be regarded as omitted, it still passed by the cession, and Corney had no remaining interest in it.

Neither can there be any constitutional objection to this law of the State. The validity of a state law of this description has been fully recognized in the case of Peale v. Phipps and others, 14 How. 368, and in the previous cases therein referred to, and cannot now be considered as an open question.

We see no error, therefore, in the judgment of the circuit court, and it must be affirmed.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the eastern district of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court that the judgment of the said circuit court in this cause be and the same is hereby affirmed with costs.


text: Talk:Bank of Tennessee v. Horn/Opinion of the Court


text:
City of Providence v. Clapp

THIS case was brought up by writ of error, from the circuit court of the United States for the district of Rhode Island.

It was a suit brought by Clapp against the city of Providence, to recover damages for an injury occasioned by an obstruction on the side-walk in one of its principal streets. The obstruction consisted of a ridge of hard-trodden snow and ice, on the centre of the side-walk, along which the plaintiff was passing in the night time, and by means of which he fell across the ridge, breaking his thigh-bone in an oblique direction. The jury found a verdict for the plaintiff, and assessed his damages at $3,379.50.

The circumstances of the case, and the rulings of the court which gave rise to the bills of exceptions upon which the case came up, are stated in the opinion of the court.

It was argued by Mr. Ames, for the plaintiff in error, and by Mr. Jencks, for the defendant.

The points made by Mr. Ames were the following:--

1. That the duty of the towns and cities of Rhode Island, in dealing with falls of snow in their highways and streets, is created and imposed solely by the statutes of Rhode Island, and must be measured by the standard appointed by those statutes.

2. That the liability of said towns and cities, in civil actions, to individuals, for injuries sustained by them in their persons or property, through neglect of duty on the part of said towns or cities, in mending their highways and streets, and in removing therefrom permanent obstacles to passage, as well as temporary ones caused by the falls of snow, is created and imposed solely by said statutes, and cannot be extended beyond the statute measure thereof. Russell v. Inhabitants of Devon, 2 T. R. 667; Mower v. Inhabitants of Leicester, 9 Mass. R. 247; Loker v. Inhabitants of Brookline, 13 Pick. R. 346; Tisdale v. Inhabitants of Boston, 8 Met. R. 388; Holman v. Inhabitants of Townsend, 13 Ib. 297, 300; Brailey v. Southborough, 6 Cush. R. 141, 142; Hull v. Richmond, 2 Woodb. and Minot's R. 341, 342; Reed v. Inhabitants of Belfast, 20 Maine R. 246; Chidsey v. Canton, 17 Conn. R. 478-480; Morey v. Town of Newfane, 8 Barb. Sup. Ct. R. 646, 648, 650-653; Lumley v. Gye, 20 Eng. Law and Eq. R. 189; Sawyer v. Inhabitants of Northfield, 7 Cush. 494-496; Smith v. Inhabitants of Dedham, 8 Ib. 524; Farnum v. Concord, 2 New Hamp. R. 392.

3. That, by the statute of Rhode Island, entitled 'An act for the mending of highways and bridges,' the towns and cities of Rhode Island are bound only to keep their highways and streets open, in case of falls of snow, so as to be passable for travellers, and not to keep them from being slippery from ice or troden-down snow; and that the requisition, in this statute, that the highways and streets be kept safe and convenient for travellers, at all seasons of the year, refers, so far as the incumbrance of snow is concerned, if it refer at all to such incumbrance, to safe and convenient passage through and over the same, in opposition to allowing the highways to remain, in case of falls of snow, blocked up and impeded thereby, so as to be unsafe and inconvenient of passage, and not to safety and convenience, in the sense of being kept free from ice or trodden-down snow, so that foot travellers or cattle may not slip or fall thereon.

That this appears, from the language used in the 1st section of said act, applied to its subject in the climate of New England, as well as by collating therewith the 14th and 15th sections of the same statute, and the 6th section of the act entitled 'An act for mending highways,' passed in 1798, and that the above construction of said statute is the accustomed, sensible-and, indeed, looking to the statute as a practical guide to duty-the necessary construction to be put thereon. Digest of Laws of R. I. of 1798, pp. 386, 387; Ib. of 1844, pp. 323, 326.

4. That the acts of the State of Rhode Island, relating to the side-walks of the city of Providence, do not change, in any way, nor extend the duty or liability of said city, in relation to the incumbrance thereon of snow, but were procured to be passed by said city, merely to enable it to provide for the building and maintaining of side-walks in said city, in a mode and at a charge and through an instrumentality different from those applied by law to other portions of the streets.

5. That, still less do the ordinances of said city, requiring the owners and occupants of lots and buildings therein to remove all the snow from the side-walks in front of the same, within a specified time, under penalty for neglect in this respect, create or extend or change the character of the duty of the city, in regard to the incumbrance of snow, nor create nor extend nor change the character of the liability of said city, for injuries occasioned by the said incumbrance. Levy v. Mayor, &c., of New York, 1 Sandf. Sup. Ct. N. Y. R. 465.

6. That said side-walk acts and ordinances afford no test or standard of the degree or kind of care, or mode of dealing with falls of snow, required of the city of Providence by the statute of Rhode Island, entitled 'An act for the mending of highways and bridges,' which, notwithstanding said acts and ordinances, and the different condition of Providence, applies the same standard, in this respect, to the other towns of the State, as to said city; but are municipal regulations merely, extending the powers of the city of Providence, and by-laws passed by the legislative body of said city, imposing duties and liabilities upon her citizens, in respect to side-walks, and the removal of snow therefrom, without increasing or extending her own.

The points made by Mr. Jencks, for the defendant in error, were the following:--

1. That the statute of Rhode Island entitled 'An act for the mending of highways and bridges,' imposes upon the towns and cities of that State, the duty of keeping highways in a safe and convenient condition for travellers, at all seasons of the year, and creates a liability on the part of such town or city, to any person using such highway with ordinary and proper care, who suffers injury in consequence of any defect in such highway, or obstruction thereon which the town or city might have removed by the use of ordinary care and diligence, and which while thus negligently suffered to remain, rendered such highway inconvenient and unsafe. Cassedy v. Stockbridge, 21 Vermont, 391. Frost v. Portland, 11 Maine, 271; Bigelow v. Weston, 3 Pick. 267; Springer v. Bowdoinham, 7 Greenl. 442; Raymond v. Lowell, 6 Cush. 534.

2. That this duty and liability extends to side-walks when they constitute a part of the highway or public streets; and such side-walks are required to be kept in a safe and convenient condition for pedestrians, as the roadway is for horses and carriages. Brady v. City of Lowell, 3 Cush. 121; Bacon v. City of Boston, Ib. 174; Drake v. City of Lowell, 13 Met. 292.

3. That the degree of convenience and safety which is required by said statute, and the degree of care and diligence which the towns and cities must bestow upon the highways, in order to relieve themselves from liability under the statute requirement, have relation to the nature and uses of the highway, and the frequency of its uses. That the same standard is not to be applied to the principal thoroughfares of the city of Providence, as to a cross road in the country, but that the law as to the extent of repair, and what will constitute obstructions rendering a public way unsafe and inconvenient, must depend, in a good degree, on the locality of the road.

4. That the law is the same when applied to obstructions of highways or side-walks by snow, as to any other obstruction, and the duties and liabilities of towns and cities in reference to the want of safety and convenience in their highways, caused by snow, as when caused by other obstructions.

That the latter clause of the first section of the statute does not vary or limit the duty imposed by the first clause, but is directory to the surveyor of highways in the performance of his duty; and that the word 'passable,' means safely and conveniently passable, as well when applied to side-walks, as to the other portions of the travelled highway. Loker v. Brookline, 13 Pick. 343.

5. That the several statutes of Rhode Island, concerning side-walks in the city of Providence, authorize the construction of side-walks in said city, and such side-walks being constructed and accepted by the city, under the authority of said act, it becomes the duty of the said city to keep said side-walks in a safe and convenient condition for pedestrians, at all seasons of the year. That whenever a fall of snow shall render any such side-walk, not conveniently safe and passable, the city is bound to use ordinary care and diligence to restore said side-walk to a reasonably safe and convenient state. That the statute referring generally to all highways, and all parts of such highways, points out the two modes, one of removing the snow, and the other of treading it down, for the purpose of rendering such highways safe and convenient; and the city of Providence, by their ordinances, have prescribed the rule for themselves and their citizens, by directing a removal of the snow from the side-walks, and have provided for the enforcement of this rule by their officers, and by penalties on the owners and occupants of estates.

6. That the public statute contemplates a removal of the snow in some cases, and a treading down in others, is manifest from the nature of the obstruction itself; it being an obstruction to travellers with sleds and sleighs, only when drifted or lying light, and subject to drift; as when trod down it greatly facilitates all travelling with vehicles adapted to the altered condition of the roads. But snow, under all conditions, is an obstruction to the pedestrian, and his safety and convenience are best provided for by an entire removal of it from his path. Hence the obligation to make the pathway set apart for such travellers, safe and convenient, in a large city, and along one of its principal thoroughfares, is not satisfied by leaving the snow to be trod down as it fell in drifts, or to be thawed and frozen into ridges of several inches in height, in such a manner as to throw down pedestrians using ordinary care and caution, although the side-walk might be passable in the sense that the snow was to be waded through or climbed over, or otherwise avoided by such travellers.

Mr. Justice NELSON delivered the opinion of the court.

title: City of Providence v. Clapp


text: Talk:City of Providence v. Clapp

title: Talk:City of Providence v. Clapp