text:
Grymes v. Sanders/Opinion of the Court

The appellant was the defendant in the court below. The record discloses no ground for any imputation against him. It was not claimed in the discussion at the bar, nor is it insisted in the printed arguments submitted by the counsel for the appellees, that there was on his part any misrepresentation, intentional or otherwise, or any indirection whatsoever. Nor has it been alleged that there was any intentional misrepresentation or purpose to deceive on the part of others.

The case rests entirely upon the ground of mistake. The question presented for our determination is whether that mistake was of such a character, and attended with such circumstances, as entitle the appellees to the relief sought by their bill and decreed to them by the court below.

Peyton Grymes, the appellant, owned two tracts of land in Orange County, Va., lying about twenty-five miles from Orange court-house. The larger tract was regarded as valuable, on account of the gold supposed to be upon it. The two tracts were separated by intervening gold-bearing lands, which the appellant had sold to others. Catlett applied to him for authority to sell the two tracts, which the appellant still owned. It was given by parol; and the appellant agreed to give, as Catlett's compensation, all he could get for the property above $20,000. Catlett offered to sell to Lanagan. Lanagan was unable to spare the time to visit the property, but proposed to send Howel Fisher to examine it. This was assented to; and Catlett thereupon wrote to Peyton Grymes, Jr., the son of the appellant, to have a conveyance ready for Fisher and himself at the court-house upon their arrival. The conveyance was provided accordingly, and Peyton Grymes, Jr., drove them to the lands. They arrived after dark, and stayed all night at a house on the goldbearing tract. Fisher insisted that he must be back at the court-house in time to take a designated train east the ensuing day. This involved the necessity of an early start the next morning. It was arranged that Peyton Grymes, Jr., should have Peyton Hume, who lived near at hand, meet Fisher on the premises in the morning and show them to him, while Grymes got his team ready for their return to the court-house. Hume met Fisher accordingly, and showed him a place where there had been washing for surface-gold, and then took him to an abandoned shaft, which he supposed was on the premises. There Fisher examined the quartz and other debris lying about. But a very few minutes had elapsed when Grymes announced that his team was ready. The party immediately started back to the court-house. Arriving too late for the train, they drove to the house of the appellant: and Fisher remained there until one o'clock that night. While Fisher was there, considerable conversation occurred between him and the appellant in relation to the property; but it does not appear that any thing was said material to either party in this controversy. Fisher proceeded to Philadelphia, and reported favorably to Lanagan, and subsequently, at his request, to Repplier, who became a party to the negotiation. He represented to both of them that the abandoned shaft was upon the premises. Catlett went to Philadelphia, and there he sold the property to the appellees for $25,000. Fisher was sent to the court-house to investigate the title. He employed Mr. Williams, a legal gentleman living there, to assist him. A deed was prepared by Mr. Williams, and executed by the appellant on the 21st of March, 1866. On the 7th of April ensuing, the appellees paid over $12,500 of the purchase-money, and gave their bond to the appellant for the same amount, payable six months from date, with interest. The deed was placed in the hands of a depositary, to be held as an escrow until the bond should be paid. Catlett, under a power of attorney, received the first instalment, paid over to the appellant $10,000, and retained the residue on account of the compensation to which he was entitled under the contract between them. The vendees requested Hume to hold possession of the property for them until they should make some other arrangement. He occupied the premises until the following July, when, with their consent, he transferred the possession to Gordon. In that month, Lanagan and Repplier came to see the property. Hume was there washing for gold. He began to do so with the permission of the appellant before the sale, and had continued the work without intermission. The appellees desired to be shown the boundary-lines. Hume said he did not know where they were, and referred them to Johnson. Johnson came. The appellees desired to be taken to the shaft which had been shown to Fisher. Johnson said it was not on the premises. Hume thought it was. Johnson was positive; and he was right. The appellees seemed surprised, but said little on the subject. They proceeded to examine the premises within the lines, and, before taking their departure, employed Gordon to explore the property for gold. Subsequently this arrangement was abandoned, and they paid him for the time and money he had expended in getting ready for the work. In September, they sent Bowman as their agent to make the exploration. On his way, he stopped at the court-house, and told the appellant that the shaft shown to Fisher as on the land was not on it. The appellant replied instantly, 'that there was no shaft on the land he had sold to Repplier and Lanagan, and that he had never represented to any one that there was a shaft on the land, and that he had never authorized any one to make such a representation, nor did he know or have reason to believe that any such representation had, in fact, been made by any one.' It does not appear that his attention had before been called to the subject, or that he was before advised that any mistake as to the shaft had occurred. Bowman spent some days upon the land, and made a number of cuts, all of which were shallow. The deepest was only fifteen feet in depth. It was made under the direction of Embry and Johnson, two experienced miners living in the neighborhood. It reached a vein of quartz, but penetrated only a little way into it. They thought the prospect very encouraging, and urged that the cut should be made deeper.

Bowman declined to do any thing more, and left the premises. No further exploration was ever made. Johnson says, 'I know the land well, and know there has been gold found upon it, and a great deal of gold, too,-that is to say, surface-gold,-but it has never been worked for vein-gold. The gold that I refer to was found by the defendant, Grymes, and those that worked under him.' He considered Bowman's examination 'imperfect and insufficient.' He had had 'twenty-three years' experience in mining for gold.'

Embry's testimony is to the same effect, both as to the surface-gold and the character of the examination made by Bowman. The premises lie between the Melville and the Greenwood Mines. Before the war, a bucket of ore, of from three to four gallons, taken from the latter mine, yielded $2,400 of gold. This, however, was exceptional. In the spring of 1869 a vein was struck, from forty to fifty feet below the surface, yielding $500 to the ton. Work was stopped by the influx of water. It was to be resumed as soon as an engine, which was ordered, should arrive. Ore at that depth, yielding from eight to ten dollars a ton, will pay a profit. Embry says he is well acquainted with the courses of the veins in the Melville and the Greenwood Mines, and that 'the Greenwood veins do pass through the land in controversy, and some of the Melville veins do also.' Speaking of Bowman and his last cut, he says:--

'At the place I showed him where to cut he struck a vein, but just cut into the top of it; he did not go down through it, or across it. From the appearance of the vein, I was very certain that he would find gold ore, if he would cut across it and go deep into it, and I told him so at the time; but he said that they had sent for him to return home, and he couldn't stay longer to make the examination, and went off, leaving the cut as it was; and the exploration to this day has never been renewed. I am still satisfied, that, whenever a proper examination is made, gold, and a great deal of it, will be found in that vein; for it is the same vein which passes through the Greenwood Mine, which was struck last spring, and yielded $500 to the ton. His examination in other respects, as well as this, was imperfect and insufficient. I don't think he did any thing like making a proper exploration for gold. I don't think he had more than three or four hands, and they were not engaged more than eight or ten days at the utmost.'

In September, 1866, Repplier instructed Catlett to advise the appellant, that, by reason of the mistake as to the shaft, the appellees demanded the return of the purchase-money which had been paid. In the spring of 1867, Lanagan, upon the same ground, made the same demand in person. The appellant replied, that he had parted with the money. He promised to reflect on the subject, and address Lanagan by letter. He did write accordingly, but the appellees have not produced the letter. This bill was filed on the 21st of March, 1868.

A mistake as to a matter of fact, to warrant relief in equity, must be material, and the fact must be such that it animated and controlled the conduct of the party. It must go to the essence of the object in view, and not be merely incidental. The court must be satisfied, that but for the mistake the complainant would not have assumed the obligation from which he seeks to be relieved. Kerr on Mistake and Fraud, 408; Trigg v. Read, 5 Humph. 529; Jennings v. Broughton, 17 Beav. 541; Thompson v. Jackson, 3 Rand. 507; Harrod's Heirs v. Cowan, Hardin, 543; Hill v. Bush, 19 Barb. (Ark.) 522; Jouzan v. Toulmin, 9 Ala. 662.

Does the case in hand come within this category?

When Fisher made his examination at the shaft, it had been abandoned. This was prima facie proof that it was of no account. It does not appear that he thought of having an analysis made of any of the debris about it, nor that the debris indicated in any wise the presence of gold. He requested Hume to send him specimens from the shafts on the contiguous tracts, and it was done. No such request was made touching the shaft in question, and none were sent. It is neither alleged nor proved that there was a purpose at any time, on the part of the appellees, to work the shaft. The quartz found was certainly not more encouraging than that taken from the last cut made by Bowman under the advice of Embry and Johnson. This cut he refused to deepen, and abandoned. When Lanagan and Repplier were told by Johnson that the shaft was not on the premises, they said nothing about abandoning the contract, and nothing which manifested that they attached any particular consequence to the matter, and certainly nothing which indicated that they regarded the shaft as vital to the value of the property. They proceeded with their examination of the premises as if the discovery had not been made. On his way to Philadelphia, after this visit, Lanagan saw and talked several times with Williams, who had prepared the deed. Williams says, 'I cannot recollect all that was said in those conversations, but I do know that nothing was said about the shaft, and that he said nothing to produce the impression that he was dissatisfied or disappointed in any respect with the property after the examination that he had made of it.' Lanagan's conversation with Houseworth was to the same effect.

The subsequent conduct of the appellees shows that the mistake had no effect upon their minds for a considerable period after its discovery, and then it seems to have been rather a pretext than a cause.

Mistake, to be available in equity, must not have arisen from negligence, where the means of knowledge were easily accessible. The party complaining must have exercised at least the degree of diligence 'which may be fairly expected from a reasonable person.' Kerr on Fraud and Mistake, 407.

Fisher, the agent of the appellees, who had the deed prepared, was within a few hours' travel of the land when the deed was executed. He knew the grantor had sold contiguous lands upon which veins of gold had been found, and that the course and direction of those veins were important to the premises in question. He could easily have taken measures to see and verify the boundary-lines on the ground. He did nothing of the kind. The appellees paid their money without even inquiring of any one professing to know where the lines were. The courses and distances specified in the deed show that a surveyor had been employed. Why was he not called upon? The appellants sat quietly in the dark, until the mistake was developed by the light of subsequent events. Full knowledge was within their reach all the time, from the beginning of the negotiation until the transaction was closed. It was their own fault that they did not avail themselves of it. In Manser v. Davis, 6 Ves. 678, the complainant, being desirous to become a freeholder in Essex, bought a house which he supposed to be in that county. It proved to be in Kent. He was compelled in equity to complete the purchase. The mistake there, as here, was the result of the want of proper diligence. See also Seton v. Slade, 7 Ves. 269; 2 Kent's Com. 485; 1 Story's Eq., sects. 146, 147; Atwood v. Small, 6 Cl. & Fin. 338; Jennings v. Broughton, 17 Beav. 141; Campbell v. Ingilby, 1 De G. & J. 405; Garrett v. Burleson, 25 Tex. 44; Warner v. Daniels et al., 1 Woodb. & M. 91; Ferson v. Sanger, id. 139; Lamb v. Harris, 8 Ga. 546; Trigg v. Read, 5 Humph. 529; Haywood v. Cope, 25 Beav. 143.

Where a party desires to rescind upon the ground of mistake or fraud, he must, upon the discovery of the facts, at once announce his purpose, and adhere to it. If he be silent, and continue to treat the property as his own, he will be held to have waived the objection, and will be conclusively bound by the contract, as if the mistake or fraud had not occurred. He is not permitted to play fast and loose. Delay and vacillation are fatal to the right which had before subsisted. These remarks are peculiarly applicable to speculative property like that here in question, which is liable to large and constant fluctuations in value. Thomas v. Bartow, 48 N. Y. 200; Flint v. Wood, 9 Hare, 622; Jennings v. Broughton, 5 De G., M. & G. 139; Lloyd v. Brewster, 4 Paige, 537; Saratoga & S. R. R. Co. v. Rowe, 24 Wend. 74; Minturn v. Main, 3 Seld. 220; 7 Rob. Prac., c. 25, sect. 2, p. 432; Campbell v. Fleming, 1 Ad. & El. 41; Sugd. Vend. (14th ed.) 335; Diman v. Providence, W. & B. R. R. Co., 5 R. I. 130.

A court of equity is always reluctant to rescind, unless the parties can be put back in statu quo. If this cannot be done, it will give such relief only where the clearest and strongest equity imperatively demands it. Here the appellant received the money paid on the contract in entire good faith. He parted with it before he was aware of the claim of the appelless, and cannot conveniently restore it. The imperfect and abortive exploration made by Bowman has injured the credit of the property. Times have since changed. There is less demand for such property, and it has fallen largely in market value. Under the circumstances, the loss ought not to be borne by the appellant. Hunt v. Silk, 5 East, 452; Minturn v. Main, 3 Seld. 227; Okill v. Whittaker, 2 Phill. 340; Brisbane v. Davies, 5 Taunt. 144; Andrews v. Hancock, 1 Brod. & B. 37; Skyring v. Greenwood, 4 Barn. & C. 289; Jennings v. Broughton, 5 De G., M. & G. 139.

The parties, in dealing with the property in question, stood upon a footing of equality. They judged and acted respectively for themselves. The contract was deliberately entered into on both sides. The appellant guaranteed the title, and nothing more. The appellees assumed the payment of the purchase-money. They assumend no other liability. There was neither obligation nor liability on either side, beyond what was expressly stipulated. If the property had proved unexpectedly to be of inestimable value, the appellant could have no further or other claim. If entirely worthless, the appellees assumed the risk, and must take the consequences. Segur v. Tingley, 11 Conn. 142; Haywood v. Cope, 25 Beav. 140; Jennings v. Broughton, 17 id. 232; Atwood v. Small, 6 Cl. & Fin. 497; Marvin v. Bennett, 8 Paige, 321; Thomas v. Bartow, 48 N. Y. 198; Hunter v. Goudy, 1 Ham. 451; Halls v. Thompson, 1 Sm. & M. 481.

The bill, we have shown, cannot be maintained.

In our examination of the case, we have assumed that those who are alleged to have spoken to the agent of the appellees upon the subject of the shaft, before the sale, had the requisite authority from the appellant.

Considering this to be as claimed by the appellees, our views are as we have expressed them. We have not, therefore, found it necessary to consider the question of such authority; and hence have said nothing upon that subject, and nothing as to the aspect the case would present if that question were resolved in the negative.

Decree reversed, and case remanded with directions to dismiss the bill.

title: Grymes v. Sanders/Opinion of the Court


text: Talk:Grymes v. Sanders/Opinion of the Court

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


text:
Birdsall v. Coolidge

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

Submitted on printed arguments by Mr. C. J. Hillyer for the appellants, and by Mr. A. H. Evans for the appellee.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Birdsall v. Coolidge


text: Talk:Birdsall v. Coolidge

title: Talk:Birdsall v. Coolidge


text:
Birdsall v. Coolidge/Opinion of the Court

Juries, in an action at law for the infringement of a patent, are required to find the actual damages sustained by the plaintiff in consequence of the unlawful acts of the defendant. Power is given to the court, in such a case, to enter judgment for any sum above the amount of the verdict, not exceeding three times the amount of the same, together with costs; but the jury are strictly limited in their finding to the actual damages which the plaintiff has sustained by the infringement. 16 Stat. 207; 5 id. 123; Rev. Stat., sect. 4919, p. 960.

Damages are given as a compensation, recompense, or satisfaction to the plaintiff, for an injury actually received by him from the defendant. Compensatory damages and actual damages mean the same thing; that is, that the damages shall be the result of the injury alleged and proved, and that the amount awarded shall be precisely commensurate with the injury suffered, neither more nor less, whether the injury be to the person or estate of the complaining party. 2 Greenl. Ev. (10th ed.) sect. 253.

Improvements in machines for amalgamating gold and silver were made by Zenas Wheeler, then in full life, for which he received letters-patent in due form of law. Sufficient also appears to show that the patentee subsequently-to wit, on the 15th of August, 1869-departed this life; that, at the time of his death, he was a resident of San Francisco, in the State of California, and that he left a last will and testament, duly executed, as required by the laws of that State; that he gave, devised, and bequeathed to the plaintiff all and singular his property, real and personal, wheresoever situated, including all debts owing to him, and all moneys belonging to him of which he might die seised and possessed, in trust for certain uses and purposes therein specifically set forth and described, leaving his patent-rights, machinery, and certain other specified interests, in the hands of his executor, to be managed, controlled, improved, changed, or disposed of, as his executor may in his judgment deem best for the interests of the estate. Due probate of the will has since been made, and letters testamentary have been duly granted to the plaintiff, as sole executor of the deceased patentee.

Pursuant to the power vested in the plaintiff as such executor, he instituted the present suit, in which he alleges that the deceased testator was the original and first inventor of the improvement described in the patent, and that the defendants, though well knowing the premises, and in order to deprive the plaintiff of the gains and profits of the same, have, without license from the testator in his lifetime, or from the plaintiff since the decease of the testator, used and caused to be used twenty amalgamating machines, embracing substantially the same improvement, in violation and infringement of the exclu sive right secured by the said letters-patent.

Service was made; and the defendants appeared and pleaded the general issue, and gave notice of certain special defences, as follows: 1. That the testator in his lifetime executed a license to J. Booth & Co., to manufacture the patented machine, and that the defendants purchased the machines they use of the licensees. 2. That the patented improvement has been openly and universally used by the public since the patent was granted. 3. That the curved grooves in the face of the muller and in the bottom of the pan had been previously patented to the respective parties named in the notice of special matter. 4. That the patentee was not the original and first inventor of the improvement. 5. That the curved grooves in the face of the muller and bottom of the pan were in public use more than two years before the alleged inventor made application for a patent. 6. That the patented improvements were described in the printed publications mentioned in the notice of special matter.

Reference to the specification will show that the patented improvement is called a new and improved gold and silver amalgamator and pulverizer, and that the object of the invention, as stated by the patentee, is to obtain a device of simple construction, which will cause a thorough incorporation of the quicksilver with the pulp containing the metal, so as to insure a perfect amalgamation of the latter. Mechanically considered, the invention consists in the arrangement of spiral ribs on the periphery of the rotary muller, and spiral ribs reversed on the inner side of the pan, to operate in connection with curved grooves on the face or under side of the muller, and curved grooves reversed in the bottom of the pan, for the purpose explained.

These explanations are the same as those given in the specification; and the patentee also states, that the invention consists in the manner of connecting the muller to its shaft by a universal joint, so as to insure its parallelism with the bottom of the pan, and in the employment or use of curved plates, which are placed in the pan just above the muller, and arranged in such a manner as to be capable of being adjusted higher or lower, as set forth in the specification.

Two of the claims of the patent-to wit, the first and second are omitted, as the plaintiff admits that those claims have not been infringed by the defendants. What he charges is, that they have infringed the third claim, which is as follows: 'In combination with the muller and pan, the curved plates supported at their outer ends on slides, and at their inner ends in a frame, which is supported on the upper end of the shaft in such a manner that the plates will follow any adjustment of the muller, and thus bear the same relation to it, whether in its highest or lowest working position.'

Viewed in the light of these suggestions, it is clear that the charge of infringement has respect chiefly to the curved plates supported, as explained, when used in combination with the muller and pan.

Subsequently the parties went to trial; and the verdict and judgment were for the plaintiff, in the sum of $2,266.66, with costs of suit. Exceptions were duly filed by the defendants, and they sued out the present writ of error.

By the bill of exceptions, it appears that the plaintiff introduced his patent in evidence, together with a model of the patented machine for amalgamating gold and silver, and gave testimony tending to show that the defendants purchased twenty amalgamating pans, which contained wings or curved plates of iron twelve inches wide and fourteen inches long, fastened at one end to the inner side of the rim of the pans in a vertical position, in such a manner that they could be raised or depressed by sliding up or down in a groove or fastening, and could be adjusted at different heights, and extending lengthways towards the centre of the pans, which were a little more than four feet in diameter.

Wings of the kind, however, were used in only sixteen of the pans for a few weeks after the defendants commenced to use the pans for amalgamating purposes; and the defendants testified that the wings were useless, and even detrimental, for working over old tailings, which was the work on which they were engaged, for the reason that such material does not require further grinding or pulverization; that, finding the wings useless or detrimental, they took them out of the sixteen pans, and sold them for old iron.

They also gave evidence tending to show, that, when they used the mill as a quartz-mill, they used the wings in sixteen only of the pans, but that when they commenced to work what are called 'tailings,' they took out the wings, because they found them to be detrimental or useless; and the bill of exceptions also states that the defendants took the wings out of four of the pans before they used them at all, and only used the wings in some of the other pans for a short time, and that they did not use any of them more than six weeks: which is all the evidence introduced to show the extent of the infringement.

Wide differences of opinion existed between the parties as to the rule of damages in such case; and, to aid in the solution ¢of that question, the plaintiff introduced testimony tending to show that the decedent in his lifetime allowed manufacturers to make and sell the invention for a royalty of $100 for a machine containing only the same combination as that used by the defendants, and proved that he, the plaintiff, had sold royalties to a large amount at the same rate.

Questions of various kinds, other than those relating to the measure of damages, are also presented in the bill of exceptions; but the court here, in the view taken of the case, do not find it necessary to decide any other in this investigation.

Instructions as to the measure of damages were given by the court to the jury, in substance and effect as follows: That when a person, without license, appropriates the patented invention of another, the measure of damages, if a royalty has been established, is the regular royalty paid by purchasers and licensees; that, if the jury find for the plaintiff, the damages will be the royalty which the plaintiff established for that part of the invention used by the defendants; that, if the royalty paid for that part of the invention is $100, then the jury will allow $100 on each pan used by the defendants, and interest on that sum, at ten per cent per annum, for the time of the appropriation, which is the rate of interest allowed in that State.

Under those instructions the jury returned a verdict for the plaintiff in the sum of $2,266.66, as appears by the record. Seasonable exception was taken to the instructions by the defendants, and that instruction presents the only question which the court deems it necessary to decide in disposing of the case.

Controversies and cases arising under the patent laws are originally cognizable, as well in equity as at law, by the circuit courts, or by any district court having circuit powers. Prior to the passage of the act of the 8th of July, 1870, two remedies were open to the owner of a patent whose rights had been infringed, and he had his election between the two: he might proceed in equity and recover the gains and profits which the infringer had made by the unlawful use of his invention, the infringer in such a suit being regarded as the trustee of the owner of the patent as respects such gains and profits; or the owner of the patent might sue at law, in which case he would be entitled to recover, as damages, compensation for the pecuniary injury he suffered by the infringement, without regard to the question whether the defendant had gained or lost by his unlawful acts,-the measure of damages in such case being not what the defendants had gained, but what the plaintiff had lost. Curtis on Pat. (4th ed.) 461; 5 Stat. 123.

Where the suit is at law, the measure of damages remains unchanged to the present time, the rule still being, that the verdict of the jury must be for the actual damages sustained by the plaintiff, subject to the right of the court to enter judgment thereon for any sum above the verdict, not exceeding three times that amount, together with costs. 16 Stat. 207.

Damages of a compensatory character may also be allowed to the complainant suing in equity, in certain cases, where the gains and profits made by the respondent are clearly not sufficient to compensate the complainant for the injury sustained by the unlawful violation of the exclusive right secured to him by the patent. Gains and profits are still the proper measure of damages in equity suits, except in cases where the injury sustained by the infringement is plainly greater than the aggregate of what was made by the respondent; in which event the provision is, that the complainant 'shall be entitled to recover, in addition to the profits to be accounted for by the respondent, the damages he has sustained thereby.'

Cases occurred under the prior patent act where manifest injustice was done to the complainant in equity suits, by withholding from him a just compensation for the injury he sustained by the unlawful invasion of his exclusive rights, even when the final decree gave him all that the law allowed. Examples of the kind may be mentioned where the business of the infringer was so improvidently conducted that it did not yield any substantial profits, and cases where the products of the patented improvements were sold greatly below their just and market value, in order to compel the owner of the patent, his assignees and licensees, to abandon the manufacture of the patented product.

Courts could not, under that act, augment the allowance made by the final decree, as in the case of the verdict of a jury; but the present patent act provides that the court shall have the same powers to increase the decree, in its discretion, that are given by the act to increase the damages found by verdicts in actions at law. Such difficulties could never arise in an action at law, nor can it now, as both the prior and the present patent act authorize the court to enter judgment on the verdict of the jury for any sum above the verdict, not exceeding three times that amount. No discretion is vested in the jury; but they are required to find the actual damages, under proper instructions from the court.

Still, it is obvious that there cannot be any one rule of damages prescribed which will apply in all cases, even where it is conceded that the finding must be limited to actual damages. Frequent cases arise where proof of an established royalty furnishes a pretty safe guide both for the instructions of the court and the finding of the jury. Reported cases of undoubted authority may be referred to which support that proposition; and yet it is believed to be good law, that the rule cannot be applied without qualification, where the patented improvement has been used only to a limited extent and for a short time, but that in such a case the jury should find less than the amount of the license fee; and it is admitted in several cases that the circumstances may be such that the finding should be larger than the royalty. Seymour v. McCormick, 16 How. 490; Livingston v. Woodworth, 15 id. 560; Dean v. Mason, 20 id. 203; Curtis on Pat. (4th ed.) 459.

Evidence of an established royalty will undoubtedly furnish the true measure of damages in an action at law, where the unlawful acts consist in making and selling the patented improvement, or in the extensive and protracted use of the same, without palliation or excuse; but where the use is a limited one and for a brief period, as in the case before the court, it is error to apply that rule arbitrarily and without any qualification. Packet Co. v. Sickles, 19 Wall. 617; Burdell et al. v. Denig et al., 92 U.S. 716; Suffolk Co. v. Hayden, 3 Wall. 320.

Four of the pans in this case were used throughout without wings, and wings in most of the others were used only for a short time, and in none of the pans for more than six weeks. Under these circumstances, it was error to charge the jury, that, if they found any damages, they must find the amount of the royalty for each pan so used, as that was instructing the jury in effect that they must find $100 for each pan, which is plainly more than the actual damages proved by the evidence. Actual damage is the statute rule; and, whenever the royalty plainly exceeds the rule prescribed by the Patent Act, the finding should be reduced to the statute rule.

Judgment reversed, and cause remanded with directions to issue a venire de novo.


text: Talk:Birdsall v. Coolidge/Opinion of the Court


text:
Hurst v. Western and Atlantic Railroad Company

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

Hurst, the plaintiff in error, a citizen of Tennessee, sued the Western and Atlantic Railroad Company, a corporation of Georgia, in the law court of Chattanooga, Tenn., at its October Term, 1866. The cause was tried at the February Term, 1868, of that court, and resulted in a judgment in favor of Hurst. The Supreme Court of the State, at its October Term, 1869, reversed this judgment, and sent the cause back for a new trial. At the June Term, 1870, of the law court, the July Term, 1871, and the March Term, 1872, trials were had, in which the juries disagreed. At the July Term, 1872, after trial, another judgment was rendered in favor of Hurst. This judgment, too, the Supreme Court reversed, at its September Term, 1872, and the cause was again remanded for trial. Nov. 12, 1873, Hurst applied to the law court for a removal of the cause to the Circuit Court of the United States for that district, under the act of March 2, 1867. 14 Stat. 558 Upon this application the cause was removed but the Circuit Court, when it came there, refused to take jurisdiction, and remanded it to the State court.

This action of the Circuit Court is assigned here for error.

Mr. Henry Cooper for the plaintiff in error.

Mr. John Baxter, contra.

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


text: Talk:Hurst v. Western and Atlantic Railroad Company


text:
Hurst v. Western and Atlantic Railroad Company/Opinion of the Court

The act of March 2, 1867, provided, in substance, that where a suit was pending in a State court, between a citizen of the State in which the suit was brought and a citizen of another State, and the matter in dispute exceeded the sum of $500, such citizen of another State, whether plaintiff or defendant, if he made and filed in such State court an affidavit, stating 'that he has reason to and does believe that, from prejudice or local influence, he will not be able to obtain justice in such State court,' might have the cause removed to the Circuit Court of the United States. Here the suit was brought in a court of the State of Tennessee, by a citizen of that State, against a citizen of the State of Georgia. Under the Statute, the party who was a citizen of Tennessee could not have the cause removed to the Circuit Court, because he was a citizen of the State in which the suit was brought, and not of 'another State;' but the citizen of Georgia could. In this case, the removal was made upon the application of the party who was a citizen of Tennessee, and, consequently, the Circuit Court properly refused to entertain jurisdiction.

Judgment affirmed.


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Rh Contusions, Fractures, Compress and Bandage; you'll presently by most people be thought an excellent Surgeon."

In such an age of blind superstition and ignorance, it was not uncommon for a sharp-witted cobbler or bricklayer to pick up a collection of old recipes, where he learnt that Venice soap would cure cancer, the juice of wild cucumber would help dropsy, or snails beaten up and laid to the feet would soothe the ague, to hang out a sign describing himself as a physician, and to practise his art with more or less success. The local newspapers of the time are full of quack advertisements whereby women as well as men often made large fortunes. It is hardly credible to think that a sum of £5,000 was voted by the Treasury to a woman for the secret of her three remedies for disease. They consisted of a powder, a decoction, and a pill. The powder was made of calcined egg-shells and snails; the decoction was made by boiling herbs, soap and swine's cresse burnt to blackness and honey in water; the pills, of calcined snails, wild carrot seeds, hips and haws, ashen keys, &c., burnt to blackness and mixed with soap and honey.

Nevertheless it is interesting to note that it was


text: Talk:Hurst v. Western and Atlantic Railroad Company/Opinion of the Court


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Chemung Canal Bank v. Lowery

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

It appears by the complaint in this cause, that the plaintiff recovered a judgment against the defendants in New York, on the fourteenth day of June, 1862, for upwards of $15,000,-the plaintiff being a corporation of New York, and the defendants all having appeared in the suit. The present suit was brought on that judgment; but only one of the defendants was served with process, the others residing out of the jurisdiction of the court. The complaint states that the defendant, who was served with process, was when served, and still is, a citizen and resident of Wisconsin, but that he did not come into the State, and was not a resident thereof, until the year 1864. This action was commenced on the 24th of January, 1873,-a little more than ten years after the recovery of the judgment in New York, and less than ten years after the defendant, who was served, came into the State. The plaintiff demands judgment against the defendant now before the court.

The defendant filed the following demurrer to the complaint, to wit:--

'The defendant, Goodwin Lowery, demurs to the plaintiff's complaint in this action, for that it appears upon the face of the same that the plaintiff's claim or demand is barred by the Statute of Limitations, in that it appears that the supposed cause or causes of action did not, nor did either of them, accrue to the said plaintiff at any time within six years, nor at any time within ten years next before the commencement of this action, and for that the said complaint does not state facts sufficient to constitute a cause of action.'

Upon this demurrer the court gave judgment for the defendant. To reverse this judgment, the present writ of error was brought.

Argued by Mr. William P. Lynde for the plaintiff in error.

Under the statute of Wisconsin, objection that the action was not commenced within the term limited can only be taken by answer. Rev. Stat. Wis., c. 138, sect. 1. Where the common-law pleadings prevail, a party seeking to avail himself of the Statute of Limitations must plead it specially. Bricket v. Davis, 21 Pick. 404; Gould v. Johnson, 2 Ld. Raym. 838; Puckel v. Moore, 3 Vent. 191; Jackson v. Varick, 2 Wend. 294; Robins v. Harvey, 5 Conn. 335.

As the plaintiff might have been within some of the various exceptions mentioned by statute, the demurrer should have been overruled. Angell on Lim., c. 26, sect. 1; State v. Finch, Cro. Car. 381; Hawkins v. Billhead, id. 404; Hyde v. Van Valkenburgh, 1 Daly (N. Y.), 416.

The statute on which the defence is founded denies to citizens of other States the rights and immunities which it accords to her own, and is, therefore, in violation of the Constitution of the United States. Corfield v. Coryell, 4 Wash. C. C. 381; Ward v. Maryland, 12 Wall. 430; Slaughter-house Cases, 16 id. 117; Cooley on Const. Lim. 16; id. 397.

Mr. S. U. Pinney, contra.

The distinction between actions at law and suits in equity has been abolished in Wisconsin. Rev. Stat. Wis., c. 122, sect. 8. Therefore, where the defence of the Statute of Limitations is apparent on the fact of the complaint, the objection that the demand is barred by lapse of time may be taken by demurrer. Howell v. Howell, 15 Wis. 55.

Such being the practice in the State courts, those of the United States sitting in that State are bound to adopt it. 17 Stat. 197.

The plaintiff in error is not a citizen within the meaning of that word, but a corporation of another State. It therefore has no status or standing in the courts of Wisconsin to enable it to invoke the protection of the Constitution of the United States. ''Warren Manuf. Co. v. AEtna Insurance Co., 2 Paine, C. C. 516; Paul v. Virginia'', 8 Wall. 168; Bank of Augusta v. Earl, 13 Pet. 586.

It is submitted that the statute of which plaintiff in error complains does not abridge or deny the privileges or immunities of citizens of other States within the meaning of the Constitution, but is a mere regulation of the remedies which the State, by virtue of its sovereignty and according to its own notions of policy, may constitutionally adopt.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Chemung Canal Bank v. Lowery


text: Talk:Chemung Canal Bank v. Lowery

title: Talk:Chemung Canal Bank v. Lowery


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Chemung Canal Bank v. Lowery/Opinion of the Court

The errors assigned in this case are substantially two: First, that the Statute of Limitations cannot be set up by demurrer; and, secondly, that the statute on which the defence is founded is unconstitutional in this, that it unjustly discriminates in favor of the citizens of Wisconsin against the citizens of other States; for, if the plaintiff had been a citizen of Wisconsin, instead of a citizen of New York, the statute would not have applied.

As to the first assignment, it is undoubtedly true, that the Statute of Limitations cannot, by the English practice, be set up by demurrer in actions at law, though it may be in certain cases in suits in equity. And this rule obtains wherever the English practice prevails. But where the forms of proceeding have been so much altered as they have been in Wisconsin, further inquiry must be made. In the first place, by the Revised Statutes of that State, passed in 1858, in the title 'Of proceedings in civil actions,' it is declared that 'the distinction between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished; and there shall be in this State but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action.' Rev. Stat. 714. Secondly, that 'all the forms of pleading heretofore existing are abolished.' The act proceeds to declare that the first pleading on the part of the plaintiff is the complaint, which shall contain, amongst other things, 'a plain and concise statement of the facts constituting a cause of action without unnecessary repetition.' Rev. Stat. 721. It provides that the defendant may demur for certain causes, but that other defences must be taken by answer. Id. Amongst the grounds of demurrer, one is, 'that the complaint does not state facts sufficient to constitute a cause of action.' In another title,-'Of the limitation of actions,'-it is provided that 'the objection that the action was not commenced within the time limited can only be taken by answer.' Rev. Stat. 819. But the Supreme Court of Wisconsin has decided, that, when on the face of the complaint itself it appears that the statutory time has run before the commencement of the action, the defence may be taken by demurrer, which, for that purpose, is a sufficient answer. Howell v. Howell, 15 Wis. 55. This case has been recognized in later cases (see Tarbox v. Supervisors, 34 Wis. 561), and must be regarded as expressing the law of the State. On the first hearing of the case of Howell v. Howell, some importance was attached to the fact that it was an equity case, in which class of cases a demurrer has been allowed for setting up the Statute of Limitations; but, on a rehearing, a more enlarged view was taken, and a demurrer was regarded as sufficient in all cases where the lapse of time appears in the complaint without any statement to rebut its effect, and where the point is specially taken by the demurrer. If the plaintiff relies on a subsequent promise, or on a payment, to revive the cause of action, he must set it up in the original complaint, or ask leave to amend. Without this precaution, the complaint is defective in not stating, as required by the statute, facts sufficient to constitute a cause of action. But, although defective, advantage cannot be taken of the defect on motion, or in any other way than by answer; which answer, however, as we have seen, may be a demurrer.

As this is the law of Wisconsin, the Circuit Court of the United States for the Western District of Wisconsin is bound by it; and, as the decision in the principal case accords therewith, the first assignment of error cannot be sustained.

The other assignment calls in question the constitutionality of the Statute of Limitations itself. The statute having prescribed the time within which various actions must be brought, amongst others, that 'an action upon a judgment or decree of any court of record of any State or Territory of the United States, or of any court of the United States,' must be brought within ten years,-it declares, that 'if, when the cause of action shall accrue against any person, he shall be out of the State, such action may be commenced within the terms herein respectively limited, after the return of said person into this State. But the foregoing provision shall not apply to any case, where, at the time the cause of action shall accrue, neither the party against or in favor of whom the same shall accrue are residents of this State.' Rev. Stat. Wis. 822. This statute may be expressed shortly thus: When the defendant is out of the State, the Statute of Limitations shall not run against the plaintiff, if the latter resides in the State, but shall, if he resides out of the State. The argument of the plaintiff is, that, as the law refuses to non-residents of the State an exemption from its provisions, which is accorded to residents, it is repugnant to that clause of the Constitution of the United States (art. 4, sect. 2) which declares that 'the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.' It is contended, that, if the resident creditors of the State may sue their non-resident debtors, at any time within six or ten years after they return to the State, non-resident creditors ought to have the same privilege; or else an unjust and unconstitutional discrimination is made against them. This seems, at first view, somewhat plausible; but we do not regard the argument as a sound one. There is, in fact, a valid reason for the discrimination. If the statute does not run as between non-resident creditors and their debtors, it might often happen that a right of action would be extinguished, perhaps for years, in the State where the parties reside; and yet, if the defendant should be found in Wisconsin,-it may be only in a railroad train,-a suit could be sprung upon him after the claim had been forgotten. The laws of Wisconsin would thus be used as a trap to catch the unwary defendant, after the laws which had always governed the case had barred any recovery. This would be inequitable and unjust. Beardsley v. Southmayd, 3 M. J. L. (Green) 171.

It is also to be considered, that a personal obligation is due at the domicile of the obligee. It is the duty of the debtor to seek the creditor, and pay him his debt, at the residence of the latter. Not doing this, he is guilty of laches against the law of the creditor's domicile, as well as his own. But he evades this law by absenting himself from the jurisdiction. As long as he does this, the Statute of Limitations of that jurisdiction ought not to run to the creditor's prejudice. This cannot be said with regard to the non-resident creditor. It is not the laws of Wisconsin any more than those of China which his non-resident debtor contemns by non-payment of the debt, and absence from the State: it is the laws of some other State. Therefore, there is no reason why the Statute of Limitations of Wisconsin should not run as against the non-resident creditor; at least, there is not the same reason which exists in the case of the resident creditor. If the non-resident creditor wishes to keep his action alive in other States than his own, he must reduce it to judgment, and revive that judgment from time to time. Each new judgment would create a new cause of action, and would prevent the operation of Statutes of Limitation of other States.

We are of opinion, therefore, that the law in question does not produce any unconstitutional discrimination; and we prefer putting the case upon this broad ground, rather than to examine into the rights of the plaintiffs as a foreign corporation doing business in Wisconsin.

Judgment affirmed.

MR. JUSTICE STRONG concurred in the judgment of the court, but dissented from its opinion upon the second assignment of error.


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Ryan v. Carter

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

This is an action of ejectment, brought Aug. 27, 1873, for part of a tract of land known as Survey 422, situate in the county of St. Louis, Mo. The parties claimed title under Auguste Dodier, and defendants relied also on the Statute of Limitations.

On the 13th of October, 1800, Dodier asked of the then Spanish Lieutenant-Governor of Upper Louisiana a concession of five hundred arpens of land; and, on the 14th of that month, the Lieutenant-Governor ordered that he should be put in possession of the land requested. A survey and plat of the land soceded was made by Soulard, surveyor under the Spanish government, and certified by him Dec. 10, 1800, and recorded by him in the record-book of surveys. Dodier duly filed and presented his claim to the board of commissioners for adjusting land-titles in the District of Orleans, Territory of Louisiana, who, on the thirty-first day of July, 1810, issued to him the following certificate:--

Commissioners' Certificate, No. 422, July 31, 1810.

'We, the undersigned, commissioners for ascertaining and adjusting the titles and claims to lands in the Territory of Louisiana, have decided that Auguste Dodier, original claimant, is entitled to a patent under the provisions of the second section of an act of the Congress of the United States, entitled 'An Act for ascertaining and adjusting the titles and claims to land within the Territory of Orleans and the District of Louisiana,' passed the second day of March, 1805, for five hundred arpens of land, situate in the District of St. Louis, on Beaver Pond, as described in a plat of survey, certified the 10th of December, 1800, and to be found of record in book A, page 326, of the recorder's office, by virtue of a permission from the proper Spanish officer, and also of actual inhabitation and cultivation prior to and on the twentieth day of December, 1803.'

'JAMES B. C. LUCAS,

CLEMENT B. PENROSE,

FREDERICK BATES.'

The land so confirmed was surveyed in 1817, by the proper surveyor of the United States, and is known as United States Survey No. 422; but the patent reciting the confirmation and survey was not issued until Aug. 9, 1873.

Dodier died in 1823, leaving heirs-at-law, under whom the plaintiffs claim title. Dodier and wife conveyed a part of the land by deed, bearing date Jan. 18, 1805, to Louis Labeaume, who died in 1821, having devised the property to his wife, by will made in 1817; and by mesne conveyances her title passed to the defendant Carter. He, and those under whom he claims, have been in the open, notorious, and undisputed possession of the demanded premises for thirty-five years before the commencement of this suit. In 1818, on the petition of Labeaume, partition was made between him and the heirs of Dodier; but the land in controversy is not within the boundaries of the tract described in the report of the commissioners in said partition suit to be set off to Labeaume.

In the year 1822, Susan Labeaume brought an action of trespass quare clausum fregit against Dodier's heirs, in the Circuit Court of St. Louis County, to which was pleaded the general issue, and liberum tenementum; whereupon the plaintiff replied to second plea by novel assignment (describing the close as in the report of commissioners in the above partition suit). On July 27, 1825, the defendants in said suit obtained a verdict and a judgment thereon, and the case was taken by writ of error to the Supreme Court of the State of Missouri, by which, on May 25, 1826, the judgment was reversed and the case remanded, and on May 8, 1827, defendants again obtained judgment in the said Circuit Court. From the record of the said Supreme Court in said cause, it appears that a transcript of the record of said partition suit of Louis Labeaume v. Dodier's Heirs, was read in evidence, but that the notice to defendants in said partition suit was not included in the bill of exceptions, and was not before the Supreme Court, and that the conveyance from Auguste Dodier and wife to Louis Labeaume, being admitted by defendants in said trespass suit, was also read upon the trial of said cause, and a copy thereof preserved in the bill of exceptions taken and filed in said cause.

Prior to and on Dec. 20, 1803, Auguste Dodier was an inhabitant of the village of St. Louis, possessed and cultivated the land known as United States Survey No. 422, and had a right, title, and claim thereto. It was an out-lot of the said village, within the meaning of the act of June 13, 1812, with definite boundaries and location, prior to and at the date of the acquisition of Louisiana by the United States.

These are the material facts found by the court below, which, by written stipulation of the parties, made a special finding of the facts.

The court gave judgment for the defendants; whereupon the plaintiffs sued out this writ of error.

Argued by Mr. Daniel T. Jewett for the plaintiffs in error, who cited Magwire v. Tyler, 8 Wall. 650; Gibson v. Chouteau, 13 id. 92; Guitard v. Stoddard, 16 How. 494; Clarke v. Hummerle, 36 Mo. 620; Glasgow v. Hortiz, 1 Black, 600; Strother v. Lucas, 12 Pet. 410.

Mr. Montgomery Blair, contra.

MR. JUSTICE DAVIS delivered the opinion of the court.

title: Ryan v. Carter


text: Talk:Ryan v. Carter

title: Talk:Ryan v. Carter


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Ryan v. Carter/Opinion of the Court

The defendants, and those under whom they claim, have been in continuous and adverse possession of the land in controversy, claiming title to it for more than thirty-five years. The Justice of the case, growing out of such length of possession, is manifestly with the court below; and we think the law of it is equally so.

The property in suit is part of a tract of land known as Survey 422, in the county of St. Louis. The court below, by stipulation, tried the case, and made a special finding of facts, on which it based its conclusion of law, that the plaintiffs could not recover. It is objected that some of these facts were not warranted by the evidence; but this is not a subject of inquiry here. If the parties chose to adopt this mode of trial, they are concluded by the propositions of fact which the evidence, in the opinion of that court, establishes. Whether general or special, the finding has the same effect as the verdict of a jury; and its sufficiency to sustain the judgment is the only matter for review in this court. Norris v. Jackson, 9 Wall. 125; Flanders v. Tweed, id. 425; Kearney v. Case, 12 id. 275; Miller v. ''Life Ins. Co.'', id. 285.

Both parties claim under Auguste Dodier, to whom the tract was confirmed in 1810, by the board of commissioners created to settle the title to lands in the Territories of Orleans and Louisiana. The plaintiffs insist that this confirmation vested only an equitable title, and that the Statute of Limitations did not begin to run until the fee passed out of the United States by patent, in 1873. On the other hand, the defendants contend that the fee passed directly to him in 1812, by operation of the act of June 13 of that year (2 Stat. 748); and, if so, it is conceded that the Statute of Limitations gives them title. It becomes necessary, therefore, to inquire how far the acts of Congress to protect the rights of property in the territory acquired from France by the treaty of April 30, 1803, apply to and affect the title to the land in controversy. The United States stipulated that the inhabitants of the ceded country should be protected in the free enjoyment of their property; and in discharge of this obligation, and with a view to ascertain and adjust their claims to land, Congress passed acts in 1805, 1806, and 1807. As the board progressed in its investigations, it was found that the enforcement of the rules prescribed for its guidance excluded from confirmation a large number of meritorious claims, and more liberal provision was made for them by the act of June 13, 1812. Its first section declares 'that the rights, titles, and claims to town or village lots, out-lots, common field-lots, and commons in, adjoining, and belonging to the several towns and villages (naming them), in the Territory of Missouri, which lots have been inhabited, cultivated, or possessed, prior to the twentieth day of December, 1803, shall be, and the same are hereby, confirmed to the inhabitants of the respective towns or villages aforesaid, according to their several right or rights of common thereto, provided that nothing herein contained shall be construed to affect the rights of any person claiming the same lands, or any part thereof, whose claims have been confirmed by the board of commissioners for adjusting and settling claims to lands in the said Territory.' It does not require the production of proofs before any commission or other tribunal established for that special purpose, but confirms, proprio vigore, the rights, titles, and claims to the lands embraced by it, and operates as a grant, to all intents and purposes. Repeated decisions of this court have declared that such a statute passes the title of the United States as effectually as if it contained in terms a grant de nove, and that a grant may be made by a law, as well as by a patent pursuant to a law.

The court below found that the lot of ground, now known as Survey 422, was an 'out-lot' of the village of St. Louis, with definite boundaries and location, prior to and at the date of the acquisition of Louisiana by the United States, and that Dodier was in possession of it, and an inhabitant of the village. It follows that the confirmation became complete, and vested in him a legal title, valid against the United States, and all persons claiming under it by a subsequent patent, unless his case was taken out of the enacting clause by the proviso that the act shall not affect any confirmed claims to the same lands. How 'affect' them? If in the sense of simply acting upon them, then his title is excepted from the operation of the act. But this exception is not within the reason of the proviso, and the court is at liberty to adopt another construction, if it may be fairly done, by giving full and just effect to the words used.

The general rule of law is, that a proviso carves special exceptions only out of the body of the act; and those who set up any such exception must establish it, as being within the words as well as the reason thereof. United States v. Dickson, 15 Pet. 165. Why should Congress wish to exclude Dodier's title, if it did not conflict with any other, and was embraced by the general words of the statute? If it was left incomplete by the act of 1807, and completed by the act of 1812, there was certainly no reason for excluding it. It was within the power of Congress to favor the inhabitants of villages over other claimants; and the fact that he had documentary evidence of his title to this out-lot, which the commissioners recognized and approved, affords no ground for supposing that Congress meant to deprive him of the benefit of another law dispensing with this evidence, and still meeting the requirements of his case. This would lead to unjust consequences; for it would discriminate between villagers, and put claims, supported by paper-title with possession, on a less favored footing than those resting only on cultivation and possession. Besides, such a purpose is inconsistent with the avowed object of the law, which is to confirm to the villagers, without discriminating in favor of any class, their rights of property, whether held in severalty or in common. If Congress had intended to exclude confirmed claims, the fair presumption is, that it would have, in terms, excepted them, or by some form of words declared their exclusion. But common fairness required that successful claimants before the board of commissioners should, in any event, be protected, and that the general words of the law should be so limited as not to produce a conflict of title. It would have been wrong, in legislating for the inhabitants of ancient villages, to do any thing prejudicial to those who, having been invited to present their claims to the board, had obtained its approval of them. This was recognized by Congress; and, to guard against the possibility of conflict, the proviso was inserted. No known rule of law requires us to interpret it according to its literal import, when its evident intent is different. It may be that the words, taken in their usual sense, would exclude the case of Dodier; but if it can be gathered, from a view of the whole law, and others in pari materia, that they were not used in that sense, and if they admit of another meaning in perfect harmony with the general scope of the statute, it will be adopted as the declaration of the will of Congress. Especially is this so when this construction withdraws the least number of cases from the operation of the statute. It is unnecessary to give the various definitions of the word 'affect.' It is enough to say, that it is often used in the sense of acting injuriously upon persons and things; and in this sense, we are all of opinion, it was used in this proviso. This interpretation accords with the reason and manifest intent of the proviso. It unsettles no confirmed title, and secures to the inhabitants of the villages, according to their respective rights, the protection which Congress in its wisdom thought proper to afford them.

If there were any doubt remaining about the correctness of this construction, it would be removed by a consideration of the act of 1807, which is in pari materia. The various laws, from time to time passed respecting the claims to lands in the Territories of Orleans and Louisiana, were modified as policy required; but they constitute a land system, are all in pari materia, and, in explaining their meaning and import, are to be regarded as one statute. Patterson v. Winn, 11 Wheat. 336. The third section of the act of 1807 (2 Stat. 440) confirms the claim of the corporation of the city of New Orleans to the commons adjacent to the city, and provides, that 'nothing herein contained shall be construed to affect or impair the rights of any individual or individuals to the said commons which are derived from any grant of the French or Spanish governments.' The word 'impair' is dropped from the proviso in the act of 1812, doubtless because it was deemed superfluous and unnecessary. There was no reason why the different provisos should have different limitations. Both had a common object,-to protect individual rights and prevent conflict of titles. The grants of the New Orleans commons, in the one case, and of the village lots in the other, were simply on the condition that no adverse claimant should be injured by them. If it should turn out that any one was benefited by the grant, he was not barred from availing himself of it because he had given another title in evidence before a regularly constituted board of commissioners.

Strother v. Lucas, 12 Pet. 410, is cited by the plaintiffs as an authority in this case; but it can hardly be considered in that light. It is true that the court treat Lucas's title as 'being a grant by the United States, under the confirmation of the commissioners and the act of 1812;' but the effect which that act has on a lot confirmed by the commissioners was not discussed at the bar, or considered in the opinion, nor has it, to our knowledge, been heretofore decided by this court.

It is claimed that the effect of the partition suit is to estop the defendants from setting up title to lands which were not assigned to Labeaume by the commissioners in partition. But the lines of partition were incorrect; for the court finds that the land in controversy is a part of that conveyed to Labeaume by deed from Dodier, and is not within the boundaries of the land set off to him. Besides, neither party recognized the proceedings in partition as binding; nor were they at all necessary, as the deed calls for the whole estate in a specified part of a tract of land. In such a case, the deed ought to and must control the rights of the parties.

It is unnecessary to notice any other assignments of error, for these views dispose of the whole case, and affirm the judgment of the Circuit Court.

Judgment affirmed.

title: Ryan v. Carter/Opinion of the Court


text: Talk:Ryan v. Carter/Opinion of the Court


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Kitchen v. Randolph

ON motion to vacate a supersedeas.

This is a motion by the appellee to vacate and set aside an order made by an associate justice of this court, granting the petition of the appellant for a supersedeas directing a stay of all proceedings, under a decree of the Circuit Court of the United States for the Eastern District of Pennsylvania, foreclosing a mortgage on property of the Wilmington and Reading Railroad Company, and ordering a sale of the same.

The bill for the foreclosure and sale was filed by Randolph, as holder of coupon-bonds of that company, secured by a certain deed of trust and mortgage against the company, the trustees named in the deed and two other junior mortgages, and the Baltimore, Philadelphia, and New York Railroad Company, as original defendants.

Subsequently, Kitchen, a bondholder under a junior mortgage of the Wilmington and Reading Railroad Company, was allowed to intervene as a defendant and file an answer.

The case was heard on the bill, the answers of the original defendants, and that of Kitchen; and, on the 6th of June, 1876, the court below entered a decree foreclosing the mortgage as against certain of the property and franchises covered by it, and ordering a sale by the trustees, after due advertisements for three months prior to the day of sale.

The sale was accordingly fixed by due advertisements, as prescribed by the decree, for the 2d of October, 1876.

No appeal from this decree, or any part of it, was prayed in the court below by any of the defendants; but, on the 29th of September, 1876, the appellant filed his petition for the allowance of an appeal and for a supersedeas, both of which were allowed on that day by the associate justice, and a citation addressed to the complainant below, returnable on the first day of the present term of this court, was issued.

The motion was argued by Mr. J. Hubley Ashton for the appellee, and by Mr. Samuel Dickson and Mr. Wayne Mac Veagh for the appellant.

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

title: Kitchen v. Randolph


text: Talk:Kitchen v. Randolph

title: Talk:Kitchen v. Randolph


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Kitchen v. Randolph/Opinion of the Court

The only question presented by this motion is as to the power of a justice of this court to allow a supersedeas in cases where an appeal was not taken or a writ of error sued out and served within sixty days, Sundays exclusive, after the rendition of the decree or judgment complained of.

The Judiciary Act of 1789 (1 Stat. 84, sect. 22) made provision for a review by this court of judgments and decrees in civil actions and suits in equity in the circuit courts upon writs of error accompanied by a citation to the adverse party, 'signed by a judge of such circuit court or justice of the Supreme Court.' By the same section it was further provided, that 'every justice or judge, signing a citation on any writ of error as aforesaid, shall take good and sufficient security, that the plaintiff in error shall prosecute his writ to effect, and answer all damages and costs if he fail to make his plea good.'

The citation was essential to the validity of the writ, and without it the writ would be quashed. Lloyd v. Alexander, 1 Cranch, 365. The writ brought up the record, and the citation the parties. Cohens v. Virginia, 6 Wheat. 410; Atherton v. Fowler, 91 U.S. 146. As the security was to be given when the citation was signed, there could be no valid writ without the security.

At common law, a writ of error was a supersedeas by implication. Bac. Abr., tit. Supersedeas, D, 4. To avoid the effect of this rule, the act of 1789 (1 Stat. 85, sect. 23) provided that a writ of error 'shall be a supersedeas, and stay execution in cases only where the writ of error is served, by a copy thereof being lodged for the adverse party in the clerk's office where the record remains, within ten days, Sundays exclusive, after rendering the judgment or passing the decree complained of;' and in cases where a writ of error might be a supersedeas no execution could issue for ten days.

Under this section it was held, in Hogan v. Ross, 11 How. 297, that there was no authority 'to award a supersedeas to stay proceedings on the judgment of an inferior court upon the ground that a writ of error is pending, unless the writ was sued out within ten days after judgment and in conformity with the provisions of the' act; and in Railroad Co. v. Harris, 7 Wall. 575, that the effect of the writ as a supersedeas 'depends upon compliance with the conditions imposed by the act,' and that 'we cannot dispense with that compliance in respect to lodging a copy for the adverse party.'

The stay of proceedings followed as a matter of right from the issue and service of the writ of error, in the manner and within the time prescribed by the act. No special directions as to the security were necessary, because, under the law as it originally stood, security must be given in all cases when the writ was issued, that the plaintiff in error would prosecute his writ to effect, and answer all damages and costs if he failed to make his plea good. It soon became manifest, however, that, in cases where there was to be no supersedeas, security to this extent was unnecessary; and, consequently, in 1794, it was enacted (1 Stat. 404) 'that the security to be required and taken on the signing of a citation on any writ of error, which shall not be a supersedeas and stay execution, shall be only to such an amount as, in the opinion of the justice or judge taking the same, shall be sufficient to answer all such costs as, upon an affirmance of the judgment or decree, may be adjudged or decreed to the respondent in error.' After this the form of the security became material, and the supersedeas was made to depend upon the condition of the bond executed at the time of the signing of the citation, as well as upon the prompt issue and service of the writ. Rubber Co. v. Goodyear, 6 Wall. 156; Slaughter-house Cases, 10 Wall. 289, 291.

In 1803 appeals were granted in cases of equity and of admiralty and maritime jurisdiction, and made 'subject to the same rules, regulations, and restrictions as are prescribed in law in case of writs of error.' 2 Stat. 244, sect. 2. It has accordingly been held that an appeal to operate as a supersedeas must be perfected and the security given within ten days after the rendition of the decree. Adams v. Law, 16 How. 148; Hudgkins v. Kemp, 18 id. 535; French v. Shoemaker, 12 Wall. 100; Bigler v. Walker, id. 149. The allowance of the appeal is the equivalent of the writ of error.

It thus appears that, under the statutes which regulated the early practice, a supersedeas could not be obtained except by prompt action and strict compliance with all the requirements of the law. Parties were, however, not unfrequently put to serious inconvenience by so stringent a rule; and, to avoid this, it was enacted in 1872 (17 Stat. 198, sect. 11) 'that any party or person desiring to have any judgment, decree, or order of any district or circuit court reviewed on writ of error or appeal, and to stay proceedings thereon during the pendency of such writ of error or appeal, may give the security required by law therefor within sixty days after the rendition of such judgment, decree, or order, or afterward, with the permission of a justice or judge of the appellate court.' In Telegraph Company v. Eyser, 19 Wall. 419, we held, in reference to this statute, that where an appeal was taken and the requisite security given after the expiration of ten days, but within sixty, a supersedeas followed as a matter of right. In the course of the opinion in that case it was said: 'It is expressly declared that the supersedeas bond may be executed within sixty days after the rendition of the judgment, and later, with the permission of the designated judge. It is not said when the writ of error shall be served. Its issuance must, of course, precede the execution of the bond; and, as the judge who signs the citation is still required to take the bond, we think it is sufficiently implied that it may be served at any time before, or simultaneously with, the filing of the bond. Indeed, the giving of the bond alone is made the condition of the stay. The section is silent as to the writ. . . . The execution, approval, and filing of the bond are substantial. The filing of the writ is matter of form.' In Board of Commissioners v. Gorman, 19 Wall. 661, decided at the same term, we further held, that execution might issue after the expiration of ten days, if a supersedeas had not been obtained; but, if one should issue, and a supersedeas be thereafter perfected, that would only operate to stay further proceedings under the execution, and could not interfere with what had already been done.

In this condition of the law the Revised Statutes were adopted, and sect. 1007 is as follows:--

'In any case where a writ of error may be a supersedeas, the defendant may obtain such supersedeas by serving the writ of error, by lodging a copy thereof for the adverse party in the clerk's office where the record remains, within sixty days, Sundays exclusive, after the rendering of the judgment complained of, and giving the security required by law on the issuing of the citation. But if he desires to stay process on the judgment, he may, having served his writ of error as aforesaid, give the security required by law within sixty days after the rendition of such judgment, or afterward, with the permission of a justice or judge of the appellate court. And in such cases where a writ of error may be a supersedeas, execution shall not issue until the expiration of the said term of sixty days.'

At the next session of Congress, an amendment to this section was passed, limiting the time for withholding execution to ten days. 18 Stat. 318. By sect. 1012, Rev. Stat., that part of the act of 1803 (2 Stat. 244) which placed appeals on the same footing as writs of error was re-enacted, and, by sect. 1000, provision was made for security for costs only in cases where no supersedeas was desired, thus reproducing the old law on that subject.

It is evident that Congress intended in this revision to change to some extent the law of 1872. The fair inference from the opinion in Telegraph Company v. Eyser, is, that as that law 'was silent as to the writ,' and 'it was not said when it must be served,' a supersedeas could be obtained by the execution, approval, and filing of the necessary security, even though the writ of error should not be served or the appeal taken until after the expiration of sixty days. In this way the old rule requiring promptness of action to obtain a stay of proceedings was substantially abandoned. A justice or judge could, in his discretion, grant the stay at any time, if the writ should be issued and served within the two years allowed for that purpose.

The revised section is not 'silent as to the writ,' and it is 'said when it must be served.' If a supersedeas is asked for when the writ is obtained, the writ must be sued out and served within the sixty days, and the requisite bond executed when the citation is signed. The policy of the old law is thus restored, the only modification being in the extension of time allowed for action. Sixty days are given instead of ten.

Had the section stopped here, a plaintiff in error or appellant would have been compelled to elect, when he sued out his writ of error, or took his appeal, whether he would have a supersedeas or not; because it is made one of the conditions of the stay of proceedings that the requisite security shall be given upon the issuing of the citation. Having once made his election, he would be concluded by what he had done. But Congress, foreseeing undoubtedly that cases might arise in which serious loss would result from such a rule, went further, and, in a subsequent part of the section, provided, that if a writ of error had been served, as required in the first paragraph, a stay might be had as a matter of right by giving the required security within sixty days, and afterwards, as a matter of favor, if permission could be obtained from the designated justice or judge. Thus prompt action in respect to the writ was required, and indulgence granted only as to the security.

It is contended, however, that the words 'having served his writ of error as aforesaid,' as used in this part of the section, have reference to the manner of service alone; that is to say, by lodging a copy thereof for the adverse party in the clerk's office, where the record remains, and not to the time, sixty days. But time is one of the necessary ingredients in the prescribed service to secure a supersedeas under the provisions of the first part of the section. It cannot be dispensed with there any more than it could have been under the act of 1789; and under that act, as has been seen, it was essential. In fact, it was the one thing upon which, more than all others, the relief sought for depended. Service 'as aforesaid' must, therefore, mean such a service as would have perfected the stay, if the proper security had been given. Relief is extended only in respect to the security.

What afterwards occurred is equally indicative of the intention of Congress. As the section originally stood, no execution could issue, when the writ of error might be a supersedeas until the expiration of sixty days, the time allowed for perfecting a supersedeas without leave. If the writ had been issued and served without the security required for a supersedeas, execution must still be withheld until the time had elapsed within which the further security might be given as a matter of right. This changed the law from what we held it to be in Commissioners v. Gorman, and at once, upon the discovery of the effect of what had been done, the amendment was adopted limiting the time to ten days, as it originally stood. Nothing was done, however, towards adapting the section as revised to the liberal construction of the act of 1872, indicated in Telegraph Company v. Eyser.

We are, therefore, of the opinion, that, under the law as it now stands, the service of a writ of error, or the perfection of an appeal within sixty days, Sundays exclusive, after the rendering of the judgment or the passing of the decree complained of, is an indispensable prerequisite to a supersedeas, and that it is not within the power of a justice or judge of the appellate court to grant a stay of process on the judgment or decree, if this has not been done.

The appeal was taken in this case after the expiration of sixty days, and the motion to vacate the supersedeas must for that reason be granted.

Motion granted.


text: Talk:Kitchen v. Randolph/Opinion of the Court


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Dresser v. Missouri and Iowa Railway Construction Company

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

Submitted on printed arguments by Mr. James Grant for the plaintiff in error, and by Mr. George G. Wright, contra.

MR. JUSTICE HUNT delivered the opinion of the court.


text: Talk:Dresser v. Missouri and Iowa Railway Construction Company


text:
Dresser v. Missouri and Iowa Railway Construction Company/Opinion of the Court

This action is brought upon three several promissory notes made by the Missouri and Iowa Railway Construction Company, dated Nov. 1, 1872, payable at two, three, and four months, to the order of William Irwin, for the aggregate amount of $10,000.

The defence is made that they were obtained by his fraudulent representations.

But a single point requires discussion. Conceding that the present plaintiff received the notes before maturity, and that his holding is bona fide, the question is as to the amount of his recovery.

Under the ruling of the court he recovered $500. His contestation is, that he is entitled to recover the face of the note, with interest.

After the evidence was concluded, the plaintiff asked the court to charge the jury, that if they believed, from the evidence, that the plaintiff purchased the notes in controversy of William Irwin for a valuable consideration, on the 1st of November, 1872, and paid $500, part of the consideration, on 21st of January, 1873, before any notice of any fraud in the contract, he was entitled to recover the whole amount of the notes; and the court refused this instruction. But the court charged the jury,--

'That, in the first place, the jury must find that there was fraud in the inception of the notes as alleged; and that if the defendants failed to satisfy the jury of that fact, the whole defence fails.

'That if the fact of fraud be established, and the jury find from the evidence that the plaintiff paid $500 upon the notes without notice of the fraud, and that after receiving notice of the fraud the plaintiff paid the balance due upon the notes, he is protected only pro tanto; that is, to the amount paid before he received notice.'

It does not appear that, upon the purchase of the notes in suit, the plaintiff gave his note or other obligation which might by its transfer subject him to liability. His agreement seems to have been an oral one merely,-to pay the amount agreed upon, as should be required; and he had paid $500, and no more, when notice of the fraud was brought home to him.

The argument of the plaintiff in error is that negotiable paper may be sold for such sum as the parties may agree upon, and that, whether such sum is large or small, the title to the entire paper passes to the purchaser. This is true; and if the plaintiff had bought the notes in suit for $500, before maturity and without notice of any defence, and paid that sum, or given his negotiable note therefor, the authorities cited show that the whole interest in the notes would have passed to him, and he could have recovered the full amount due upon them. Fowler v. Strickland, 107 Mass. 552; Park Bank v. Watson, 42 N. Y. 490; Bank of Michigan v. Green, 33 Iowa, 140. The present case differs from the cases referred to in this respect. The notes in question were purchased upon an unexecuted contract, upon which $500 only had been paid when notice of the fraud and a prohibition to pay was received by the purchaser. The residue of the contract on the part of the purchaser is unperformed, and honesty and fair dealing require that he should not perform it; certainly, that he should not be permitted, by performing it, to obtain from the defendants money which they ought not to pay. As to what he pays after notice, he is not a purchaser in good faith. He then pays with knowledge of the fraud, to which he becomes a consenting party. One who pays with knowledge of a fraud is in no better position than if he had not paid at all. He has no greater equity, and receives no greater protection. Such is the rule as to contracts generally. In the case of the sale of real estate for a sum payable in instalments, and circumstances occur showing the existence of fraud, or that it would be inequitable to take the title, the purchaser can recover back the sum paid before notice of the fraud, but not that paid afterwards. Barnard v. Campbell, 53 N. Y. 73; Lewis v. Bradford, 10 Watts, 82; Juvenal v. Jackson, 2 Harris, 529; id. 430; Youst v. Martin, 3 S. & R. 423, 430.

In Weaver v. Barden, 49 N. Y. 291, the court use this language: 'To entitle a purchaser to the protection of a court of equity, as against a legal title or a prior equity, he must not only be a purchaser without notice, but he must be a purchaser for a valuable consideration; that is, for value paid. Where a man purchases an estate, pays part and gives bonds for the residue, notice of an equitable incumbrance before payment of the money, though after giving the bond, is sufficient. Touville v. Naish, 3 P. Wms. 306; Story v. Lord Windsor, 2 Atk. 630. Mere security to pay the purchase price is not a purchase for a valuable consideration. Hardingham v. Nicholls, 3 Atk. 304; Maundrell v. Maundrell, 10 Ves. 246, 271; Jackson v. Cadwell, 1 Cowen, 622; Jewell v. Palmer, 7 J. C. 65. The decisions are placed upon the ground, according to Lord Hardwicke, that if the money is not actually paid the purchaser is not hurt. He can be released from his bond in equity.'

The plaintiff here occupies the same position as the bona fide purchaser of the first of a series of notes, of which, after notice of a fraud, he purchases the rest of the series. He is protected so far as his good faith covers the purchase, and no farther.

Upon receiving notice of the fraud, his duty was to refuse further payment; and the facts before us required such refusal by him. Authorities supra.

Crandell v. Vickery, 45 Barb. 156, is in point. Holdridge had obtained the indorsement by Vickery of his (Holdridge's) notes by false and fraudulent representations. These notes were transferred to Crandell without notice or knowledge of the fraud, he giving to Holdridge several checks for the amount, upon the understanding that they were not to be presented for payment, but when the money was wanted, he was to give new checks as needed. Before giving the new checks, plaintiff was informed of the fraud, and requested not to make payment, or to give his checks. He did, however, give his new checks, according to the original agreement, and brought suit upon the notes against Vickery, the indorser.

It was held that he was not a bona fide holder, for the reason that the transaction was executory when he received notice of the fraud; that he had then parted with no value; that the real obligations were given afterwards, and under circumstances that afforded no protection.

That case is stronger for the holder than the one before us, in the fact that checks were there given on the original transaction, which might have been presented or passed off to the prejudice of the maker; while here the transaction was oral throughout.

To the same purport in principle, although upon facts somewhat different, are the cases of Garland v. The Salem Bank, 9 Mass. 408, The Fulton Bank v. The Phoenix Bank, 1 Hall, 562, and White v. Springfield Bank, 3 Sandf. S.C.. 227.

The cases are numerous that where a bona fide holder takes a note misappropriated, fraudulently obtained, or without consideration, as collateral security, he holds for the amount advanced upon it, and for that amount only. Williams v. Smith, 2 Hill, 301.

In Allaire v. Hartshorn, 1 Zabr. 663, the case was this: Hartshorn sued Allaire on a note of $1,500 at ninety days, made by Allaire. It was proved that the note had been misapplied by one Pettis, to whom it had been entrusted; that he had pledged it to the plaintiff as security for $750 borrowed of him on Hegeman's check, and also as security for a $400 acceptance of another party then given up to Pettis.

On the trial, the court charged the jury, that, if any consideration was given by the plaintiff for the note, 'they should not limit their verdict to the amount so given, but should find the whole amount due on the face of the note.' The case was carried to the court of errors and appeals of the State of New Jersey, upon an exception to this charge. The court reversed the judgment, holding that, although a bona fide holder, Hartshorn could recover only the amount of his advances.

The case before us is governed by the rule that the portion of an unperformed contract which is completed after notice of a fraud is not within the principle which protects a bona fide purchaser.

No respectable authority has been cited to us sustaining a contrary position, nor have we been able to find any. The judgment below is based upon authority, and upon the soundest principles of honesty and fair dealing, It has our concurrence, and is affirmed.


text: Talk:Dresser v. Missouri and Iowa Railway Construction Company/Opinion of the Court


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Bird v. Louisiana State Bank

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

Submitted on printed arguments by Mr. E. T. Merrick and Mr. G. W. Race for the plaintiffs in error. Argued by Mr. Thomas J. Durant, contra.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Bird v. Louisiana State Bank


text: Talk:Bird v. Louisiana State Bank

title: Talk:Bird v. Louisiana State Bank


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Bird v. Louisiana State Bank/Opinion of the Court

This case was tried by the court below, a jury being waived. From the findings of fact, it appears that R. A. Stewart made a promissory note at New Orleans, on the 28th of January, 1859, payable to the order of H. Doyal, at twelve months after date, with interest, at the Citizens' Bank, New Orleans, and that said note was indorsed by Doyal. A. Bird, of Manchac, La., as the agent of John Bird, of St. Louis, Mo. (the testator of the plaintiffs), before the maturity of the note, indorsed it, and deposited it in the branch of the Louisiana State Bank, at Baton Rouge, for collection. W. S. Pike, the cashier of the said branch bank, indorsed the note, as cashier, before its maturity, and transmitted it for collection to the defendant,-the mother bank at New Orleans. When it became due, the defendant placed it in the hands of the notary, whom it usually employed in its own business, for demand of payment and protest; and said notary duly made demand, and protested the note for non-payment, and mailed notices for the indorsers to Pike, cashier of the branch bank at Baton Rouge. Doyal, the indorser, on whom reliance was principally placed, resided, when the note was made and indorsed, on a plantation at New River, in the parish of Ascension, which adjoins that of Baton Rouge; but he died two days afterwards, and executors of his will were immediately qualified. No notice of protest was served on them; and for this cause, in an action brought against them by the plaintiffs, they were held not liable. No suit was ever brought against the maker of the note, he being wholly without credit, as to the payment of any debt when it became payable; and as to him the note is now prescribed. Neither the notary, nor any of the officers of the bank or branch, knew of Doyal's death when the note was protested, nor does it appear that it was known to the testator of the plaintiffs. This suit was brought to recover the amount of the note from the defendant, by reason of its alleged negligence in not giving notice to the executors of the indorser, Doyal, whereby the liability of his estate was lost. The court having found these facts, and some others which we do not deem material to the decision, gave judgment for the defendant; whereupon the plaintiffs brought this writ of error.

Without stopping to inquire whether the mother bank and its notary did their whole duty in reference to protesting the note, and giving notice to the indorsers, we think it manifest that the branch bank was delinquent, after receiving the notices from the notary, in not giving notice to Bird, and the executors of Doyal, or at least to Bird. Had the notices been sent to the latter, it would then have been his duty to notify the executors of Doyal; but the branch bank, so far as appears from the facts found in this case, did neither. The inclosing of notices by the notary to the branch was notice to it that he (the notary) had not served them on the prior indorsers. And as an agent, charged with the duty of collecting the note, and doing whatever was necessary to insure the liability of the indorsers if it was not paid, the branch was bound to give notice of its non-payment, at least to its principal, in order that he might do what was requisite to protect himself. The neglect to do this rendered the branch bank liable to the plaintiffs' testator for the loss of the money; and it is conceded that the negligence of the branch bank is chargeable upon the defendant. They are one concern as to liability, though treated as separate establishments and distinct entities in the transaction of business.

The only remaining question is, whether the plaintiffs or theil testator have, by their conduct or laches, released the defendant from liability. It is contended, that the holder of the note was bound to prosecute the maker, or to have prosecuted his claim against the defendant in time to enable it to do so, on being subrogated to his rights; whereas, the plaintiffs have delayed this suit until all claim against the maker is lost by prescription; and that it is no answer to this defence to say that the maker was insolvent when the note became due, as he may have since become abundantly able to pay.

There is much plausibility in this position; but a careful examination of the dates shows that the note was not prescribed on the 5th of January, 1870, when the plaintiffs made a legal demand on the defendant by instituting this action. Less than ten years had then elapsed since the maturity of the note, and, deducting the period during which the war continued, according to the rule adopted in the case of The Protector, 12 Wall. 700, it will appear that the time of prescription of five years had not elapsed. The defendant, by paying the note at that time, could have been subrogated to the rights of the plaintiffs, and maintained suit against the maker in their names. The court below seems to have supposed that the time of trial was the point of time to which the estimate was to be made; but in this it was mistaken. The time of commencing the action was the proper point.

Judgment reversed, and record remanded, with directions to award a venire de novo.


text: Talk:Bird v. Louisiana State Bank/Opinion of the Court


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Sherlock v. Alling

ERROR to the Supreme Court of the State of Indiana.

Argued by Mr. T. D. Lincoln for the plaintiffs in error, and by Mr. C. A. Korbly for the defendants in error.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Sherlock v. Alling


text: Talk:Sherlock v. Alling

title: Talk:Sherlock v. Alling