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McFaul v. Ramsey/Opinion of the Court

Ramsey, the plaintiff below, instituted this suit in the District Court of the United States for the district of Iowa. The parties have been permitted by that court to frame their pleadings, not according to the simple and established forms of action in courts of common law, but according to a system of pleadings and practice enacted by that State to regulate proceedings in its own courts. This code commences by abolishing 'all technical forms of actions,' prescribing the following curt rules for all cases, whether of law or equity:

'Any pleading which possesses the following requisites shall be deemed sufficient:

'1st. When to the common understanding it conveys a reasonable certainty of meaning.

'2d. When, by a fair and natural construction, it shows a substantial cause of action or defence.

'If defective in the first of the above particulars, the court, on motion, will direct a more specific statement; if in the latter, it is ground of demurrer.'

If the right of deciding absolutely and finally all matters in controversy between suitors were committed to a single tribunal, it might be left to collect the nature of the wrong complained of, and the remedy sought, from the allegations of the party ore tenus, or in any other manner it might choose to adopt. But the common law, which wisely commits the decision of questions of law to a court supposed to be learned in the law, and the decision of the facts to jury, necessarily requires that the controversy, before it is submitted to the tribunal having jurisdiction of it, should be reduced to one or more integral propositions of law or fact; hence it is necessary that the parties should frame the allegations which they respectively make in support of their demand or defence into certain writings called pleadings. These should clearly, distinctly, and succinctly, state the nature of the wrong complained of, the remedy sought, and the defence set up. The end proposed is to bring the matter of litigation to one or more points, simple and unambiguous. At one time, the excessive accuracy required, the subtlety of distinctions introduced by astute logicians, the introduction of cumbrous forms, fictions, and contrivances, which seemed only to perplex the investigation of truth, had brought the system of special pleading into deserved disrepute, notwithstanding the assertion of Sir William Jones, that 'it was the best logic in the world, except mathematics.' This system is said to have come to its perfection in the reign of Edward III. But in more modern times it has been so modified by the courts, and trimmed of its excrescences, the pleadings in every form of common-law action have been so completely reduced to simple, clear, and unambiguous forms, that the merits of a cause are now never submerged under folios of special demurrers, alleging errors in pleading, which, when discovered, are immediately permitted to be amended. This system, matured by the wisdom of ages, founded on principles of truth and sound reason, has been ruthlessly abolished in many of our States, who have rashly substituted in its place the suggestions of sciolists, who invent new codes and systems of pleading to order. But this attempt to abolish all species, and establish a single genus, is found to be beyond the power of legislative comnipotence. They cannot compel the human mind not to distinguish between things that differ. The distinction between the different forms of actions for different wrongs, requiring different remedies, lies in the nature of things; it is absolutely inseparable from the correct administration of justice in common-law courts.

The result of these experiments, so far as they have come to our knowledge, has been to destroy the certainty and simplicity of all pleadings, and introduce on the record an endless wrangle in writing, perplexing to the court, delaying and impeding the administration of justice. In the case of Randon v. Toby, (11 Howard, 517,) we had occasion to notice the operation and result of a code similar to that of Iowa. In a simple action on a promissory note, the pleadings of which, according to common-law forms, would not have occupied a page, they were extended to over twenty pages, requiring two years of wrangle, with exceptions and special demurrers, before an issue could be formed between the parties. In order to arrive at the justice of the case, this court was compelled to disregard the chaos of pleadings, and eliminate the merits of the case from a confussed mass of fifty special demurrers or exceptions, and decide the cause without regard to these contrivances to delay and impede a decision of the real controversy between the parties. In the case of Bennet v. Butterworth, (11 Howard, 667,) originating under the same code, the court were unable to discover from the pleading the nature of action or of the remedy sought. It might, with equal probability, be called an action of debt, or detinue, or replevin, or trover, or trespass, or a bill in chancery. The jury and the court below seem to have labored under the same perplexity, as the verdict was for $1,200, and the judgment for four negroes. In both these cases this court have endeavored to impress the minds of the judges of the District and Circuit Courts of the United States with the impropriety of permitting these experimental codes of pleading and practice to be inflicted upon them. In the last-mentioned case, the Chief Justice, in delivering the opinion of the court, says: 'The Constitution of the United States has recognised the distinction between law and equity, and it must be observed in the Federal courts.' In Louisiana, where the civil law prevails, we have necessarily to adopt the forms of action inseparable from the system. But in those States where the courts of the United States administer the common law, they cannot adopt these novel inventions, which propose to amalgamate law and equity by enacting a hybrid system of pleadings unsuited to the administration of either.

We have made these few introductory remarks before proceeding to notice the merits of the controversy, as developed by the record, in order that the bar and courts of the United States may make their records conform to these views, and not call upon us to construe new codes and hear special demurrers or pleadings, which are not required to conform to any system founded on reason and experience. To test such pleadings by the logical reasoning of the common law, after requiring the party of disregard all forms of action known to the law under which he seeks a remedy, would be unwarrantable and unjust.

The plaintiff's petition sets forth his grievances in plain, intelligible form, if not with technical brevity and simplicity.

1st. He alleges a contract with defendant to deliver to him eight hundred hogs, on or before a certain day; in consideration whereof, the defendant agreed to pay plaintiff $5.50 per hundred pounds net. He avers that he did deliver according to contract, at the time and place, the number of eight hundred hogs; that defendant refused to receive over five hundred and fifty of them, or pay for the remainder.

2d. He complains that defendant refused to receive and betcher the hogs in accordance with the agreement, and, thus caused by his delay, that the plaintiff was put to expense in feeding the hogs, and exposed to a great loss in the net weight.

3d. That defendant did not make a true return of the net weight, but defrauded plaintiff on that behalf.

4th. That he slaughtered twenty-four more hogs than he accounted for, and improperly cut off parts of others to reduce their weight.

5th. The plaintiff alleges, in what might be called a second count, another contract to deliver fourteen hundred hogs to defendant, at $5.60 per hundred net.

He avers delivery according to contract, and charges defendant with delay in slaughtering them; causing great loss in the weight, and expense to plaintiff in feeding them in the mean while.

6th. He charges defendant with taking one hundred other hogs of plaintiff, for which he refused to account.

7th. That in consequence of delay in receiving, many of the hogs died, to the great loss of plaintiff.

8th. That defendant returned false weights of these fourteen hundred, and cut off parts before weighing.

9th. The plaintiff also sets up a third contract for five hundred hogs, which were delivered, and avers the same delay and consequent injury to plaintiff; and the same frauds in weighing, &c.

To this catalogue of grievances the defendant, in his answer, pleads thirty-three distinct denials of the averments in the petition. A jury was called to try these thirty-three issues, and found a verdict for plaintiff, and assessed his damages.

No exception was taken on the trial to the admission or rejection of evidence; no error is alleged in the charge of the court; and a regular judgment was entered on the verdict.

The only bills of exception were to the refusal of the court to grant a continuance and change the venue; both of which were matters of discretion in the court below, and not the subject of review here.

The cavils to the sufficiency of the plaintiff's statement, under the name of a special demurrer, were overruled by the court below, and justly, because the code permits a demurrer only when the petition 'by a fair and natural construction does not show a substantial cause of action.' As we have already shown, it contains a dozen.

The judgment of the court below is affirmed, with costs.

title: McFaul v. Ramsey/Opinion of the Court


text: Talk:McFaul v. Ramsey/Opinion of the Court

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


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Beers v. Arkansas

Under the Constitution of the State of Arkansas, the Legislature passed a law allowing the State to be sued.

According to this law, a suit was brought upon some of the State bonds; and whilst the suit was going on, the Legislature passed another law, requiring the bonds to be filed in court, or the suit to be dismissed.

The suitor refusing to file his bonds, the suit was dismissed; and the case was carried to the Supreme Court of the State, where the judgment was affirmed.

The case, being brought to this court under the twenty-fifth section of the judiciary act must be dismissed for want of jurisdiction.

The permission to bring the suit was not a contract whose obligations were impaired by the passage of the subsequent law.

[p528] THESE three cases depended upon the same principle, and are therefore classed together. The report in the first-named case will apply to them all. It was a case which was brought up from the Supreme Court of the State of Arkansas, by a writ of error, issued under the twenty-fifth section of the judiciary act.

The case is stated in the opinion of the court.

It was argued by Mr. Pike for the plaintiff in error, and by Mr. Hempstead for the defendant.

1. [Together with two additional cases styled William A. Platenius, Administrator of James Holford, Deceased, Plaintiff in Error, v. The State of Arkansas.]

title: Beers v. Arkansas


text: Talk:Beers v. Arkansas

title: Talk:Beers v. Arkansas


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Beers v. Arkansas/Opinion of the Court

This was an action of covenant, brought in the Circuit Court for Pulaski county, in the State of Arkansas, to recover the interest due on sundry bonds issued by the State, and which the State had failed to pay according to its contract.

The Constitution of the State provides, that 'the General Assembly shall direct by law in what courts and in what manner suits may be commenced against the State.' And in pursuance of this provision, a law was accordingly passed; and it is admitted that the present suit was brought in the proper court, and in the manner authorized by that law.

The suit was instituted in the Circuit Court on the 21st of November, 1854. And after it was brought, and while it was pending in the Circuit Court, the Legislature passed an act, which was approved on the 7th of December, 1854, which provided, 'that in every case in which suits or any proceedings had been instituted to enforce the collection of any bond or bonds issued by the State, or the interest thereon, before any judgment or decree should be rendered, the bonds should be produced and filed in the office of the clerk, and not withdrawn until final determination of the suit or proceedings, and full payment of the bonds and all interest thereon; and might then be withdrawn, cancelled, and filed with the State treasurer, by order of the court, but not otherwise.' And the act further provided, that in every case in which any such suit or proceeding had been or might be instituted, the court should, at the first term after the commencement of the suit or proceeding, whether at law or in equity, or whether by original or cross bill, require the original bond or bonds to be produced and filed; and if that were not done, and the bonds filed and left to remain filed, the court should, on the same day, dismiss the suit, proceeding, or cross bill.

Afterwards, on the 25th of June, 1855, the State appeared to the suit, by its attorney, and, without pleading to or answering the declaration of the plaintiff, moved the court to require him to file immediately in open court the bonds on which the suit was brought, according to the act of Assembly above mentioned; and if the same were not filed, that the suit be dismissed.

Upon this motion, after argument by counsel, the court passed an order directing the plaintiff to produce and file in court, forthwith, the bonds mentioned and described in the declaration. But he refused to file them, and thereupon the court adjudged that the suit be dismissed, with costs.

This judgment was afterwards affirmed in the Supreme Court of the State, and this writ of error is brought upon the last-mentioned judgment.

The error assigned here is, that the act of December 7, 1854, impaired the obligations of the contracts between the State and the plaintiff in error, evidenced by and contained in each of the said bonds, and the endorsement thereon, and was therefore null and void, under the Constitution of the United States.

The objection taken to the validity of the act of Assembly cannot be maintained. It is an act to regulate the proceedings and limit the jurisdiction of its own courts in suits where the State is a party defendant, and nothing more.

It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission; but it may, if it thinks proper, waive this privilege, and permit itself to be made a defendant in a suit by individuals, or by another State. And as this permission is altogether voluntary on the part of the sovereignty, it follows that it may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted, and may withdraw its consent whenever it may suppose that justice to the public requires it.

Arkansas, by its Constitution, so far waived the privilege of sovereignty as to authorize suits to be instituted against it in its own courts, and delegated to its General Assembly the power of directing in what courts, and in what manner, the suit might be commenced. And if the law of 1854 had been passed before the suit was instituted, we do not understand that any objection would have been made to it. The objection is, that it was passed after this suit was instituted, and contained regulations with which the plaintiff could not conveniently comply. But the prior law was not a contract. It was an ordinary act of legislation, prescribing the conditions upon which the State consented to waive the privilege of sovereignty. It contained no stipulation that these regulations should not be modified afterwards, if, upon experience, it was found that further provisions were necessary to protect the public interest; and no such contract can be implied from the law, nor can this court inquire whether the law operated hardly or unjustly upon the parties whose suits were then pending. That was a question for the consideration of the Legislature. They might have repealed the prior law altogether, and put an end to the jurisdiction of their courts in suits against the State, if they had thought proper to do so, or prescribe new conditions upon which the suits might still be allowed to proceed. In exercising this latter power, the State violated no contract with the parties; it merely regulated the proceedings in its own courts, and limited the jurisdiction it had before conferred in suits when the State consented to be a party defendant.

Nor has the State court, in the judgment brought here for review, decided anything but a question of jurisdiction. It has given no decision in relation to the validity of the contract on which the suit is brought, nor the obligations it created, or the rights of parties under it. It has decided, merely, that it has no right under the laws of the State to try these questions, unless the bonds given by the State are filed. The plaintiff refused to file them pursuant to the order of the court, and the case was thereupon dismissed, for want of jurisdiction in the court to proceed further in the suit. There is evidently nothing in the decision, nor in the act of Assembly under which it was made, which in any degree impairs the obligation of the contract, and nothing which will authorize this court to reverse the judgment of the State court.

The writ of error must therefore be dismissed, for want of jurisdiction in this court.

The two cases of William A. Platenius, administrator of James Holford, against the State of Arkansas, in covenant, are the same in all respects with the one above decided, and must also, for the same reasons, be dismissed for want of jurisdiction.

title: Beers v. Arkansas/Opinion of the Court


text: Talk:Beers v. Arkansas/Opinion of the Court


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Bank of Washington v. Arkansas

THESE two cases depended upon the same principle, and a report of the first will apply equally to the second.

It was brought up from the Supreme Court of the State of Arkansas by a writ of error issued under the twenty-fifth section of the judiciary act.

The case is stated in the opinion of the court.

It was argued by Mr. Pike for the plaintiffs in error, and by Mr. Hempstead for the defendants.

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

title: Bank of Washington v. Arkansas


text: Talk:Bank of Washington v. Arkansas

title: Talk:Bank of Washington v. Arkansas


text:
Bank of Washington v. Arkansas/Opinion of the Court

This is a bill in equity, brought in the Chancery Court of the State of Arkansas, to recover the money due on or which had arisen from, certain bonds issued by the State, to which the complainants claimed to be entitled. The bill is drawn out very much at length, and states particularly the bonds and contracts on which the complainants are proceeding, and also certain laws and acts of the State, which the bill alleges impaired the obligation of these contracts, and were forbidden by the Constitution of the United States.

It is unnecessary, however, to state at large the contents of the bill, or the particular contracts and bonds to which it refers, because the decision of the State court dismissing the bill has no relation to the validity of these contracts, or to the rights and obligations which they created. The bill was dismissed by the State court upon the same ground with the common-law actions above mentioned; and the appeal to this court must be disposed of upon the principles upon which we have dismissed the writs of error.

The bill was filed in November, 1854, and in February, 1855, the attorney for the State moved the court to dismiss it, unless the bonds upon which the complainants were proceeding were forthwith filed according to the provisions of the act of December, 1854. The complainants put in written objections to the motion, and finally refused to file the bonds. The court overruled the objections as insufficient, and dismissed the bill.

The complainants call their bill a cross bill. The bill filed by the State, and which gave rise to this, is not set forth in full in the transcript. The appellants in their bill refer to it, and state that it was filed by the State for itself and in behalf of all the creditors of the Real Estate Bank; and that it claims for the State a right to share with other creditors of the bank in certain assets of the bank in the hands of trustees, although the bonds issued by the State, which furnished the capital for the bank, had not been paid; and many of these bonds were held by the appellants, who were creditors of the bank as well as of the State.

But this is not a cross bill in the chancery sense of the words; the complainants, according to their own statement, were not defendants in the suit brought by the State. They cannot, therefore, file a cross bill, nor be regarded as defending themselves in that form of proceeding against the suit of the State. Their bill is evidently a suit against the State and others, to enforce the payment of money due on certain contracts made by the State, and the State is made a party defendant in the suit. And for the reasons assigned in the aforegoing cases at common law, the judgment of the State court dismissing the bill is not open to revision here. Like the cases at common law, it was dismissed by the State court for want of jurisdiction to proceed further, after the passage of the act of December, 1854.

The appellants have not sought to come in under the bill filed by the State for itself and all the creditors of the Real Estate Bank, and to share with the State the assets in the hands of the trustees, who are assigness of the bank. Nor, indeed, could they do so upon the allegations made in their bill; for they do not claim a common interest with the State in the fund they are pursuing, but an adverse interest, and deny the right of the State to share in it, and could not, therefore, come in and associate themselves as complainants with the State in its creditor's bill when they denied that the State was a creditor of the fund.

The laws and proceedings on the part of the State may have operated harshly and unjustly upon the appellants. But it is not the province of this court to decide that question. Those who deal in the bonds and obligations of a sovereign State are aware that they must rely altogether on the sense of justice and good faith of the State; and that the judiciary of the State cannot interfere to enforce these contracts without the consent of the State, and the courts of the United States are expressly prohibited from exercising such a jurisdiction.

The case must be dismissed for want of jurisdiction in this court; and the case of the Bank of Washington et al. against the State of Arkansas, and the Bank of Arkansas, being confessedly an original bill, must be disposed of in like manner.


text: Talk:Bank of Washington v. Arkansas/Opinion of the Court


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Barton v. Forsyth (61 U.S. 532)

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

The case is stated in the opinion of the court.

It was argued by Mr. Ballance and Mr. Reverdy Johnson for the plaintiff in error, and by Mr. Williams for the defendant.

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

title: Barton v. Forsyth (61 U.S. 532)


text: Talk:Barton v. Forsyth (61 U.S. 532)

title: Talk:Barton v. Forsyth (61 U.S. 532)


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Barton v. Forsyth (61 U.S. 532)/Opinion of the Court

This action was brought in the Circuit Court of the United States for the district of Illinois, to recover a certain lot in the town of Peoria, described in the plaintiff's declaration.

In that suit, Forsyth, the defendant in error, was plaintiff, and Barton, the plaintiff in error, was the defendant; and upon the trial, the judgment of the Circuit Court was in favor of the plaintiff, Forsyth, and thereupon Barton brought the case here by writ of error.

It appears from the record that the title was a very disputed one, and sundry questions of much nicety and difficulty were raised in the trial and decided by the court. But, from the manner in which the case has been brought up, none of these questions are open for revision here; for no exception to them appears to have been taken or reserved to Barton while the jury were at the bar.

The record shows, that after the trial, and after verdict and judgment for Forsyth, Charles Ballance filed an affidavit, stating that he was the landlord of Barton, and the real party in interest, and thereupon moved the court to substitute him for Barton, as defendant; or if, in the opinion of the court, that could not be done, that he might be admitted as co-defendant with Barton, and that Ballance might proceed with the suit in his own name. But the court overruled the motion, and refused to permit said Ballance to become a defendant in the suit. 'To all which decisions, rulings, and instructions, defendant then and there excepted, and prayed that this bill of exceptions be sealed, signed, and made a record, which is done.' And this has been relied on here as an exception to all the points which the transcript shows to have been raised at the trial, and decided by the court. But this is no valid exception to anything, according to the well-settled and established principles of law. It has been repeatedly ruled by this court, as will appear by the cases reported, that no instruction to the jury, given or refused by the court below, can be brought here for revision by writ of error, unless the record shows that the exception to it was taken or reserved while the jury were at the bar.

This is required by the statute which authorized the exception, and cannot be dispensed with. If the party does not reserve the exception at the time at which the law requires it to be done, he acquiesces in the decision, and cannot bring up the point upon writ of error.

But in this case, the exception was not proposed to be reserved until long after the trial was over, and the verdict and judgment had been entered; for the affidavit of Charles Ballance, upon which his motion was made, appears to have been sworn to on the 22d of July, 1856, after judgment, and his motion was not overruled until August 6th, on which last-mentioned day he for the first time took his exceptions. Such an exception is clearly unauthorized by law, and the decisions and rulings to which it refers cannot be considered upon this writ of error.

There is but one exception legally taken, and that is upon the admission as evidence of the legal proceeding under which the lot in question was sold as the property of a certain Michael La Croix, to pay his debts, and at which sale Morrison was the purchaser, under whom Forsyth claims title.

Barton objected to the admissibility of this evidence, and the judges of the Circuit Court were divided in opinion; and thereupon the evidence was allowed to go to the jury, and the defendant excepted. Upon this point, therefore, the plaintiff in error is entitled to the consideration and judgment of this court.

But we think that there was no error in admitting the evidence objected to. The documents appear to be duly certified, and the proceedings under which the sale was made to have been before a court of competent jurisdiction. If there were any irregularities or errors in the proceedings after they were instituted, they were not open to examination in the Circuit Court, coming in, as they did, collaterally as evidence of title. Being the proceedings of a judicial tribunal which had jurisdiction over the subject-matter, the Circuit Court had no right to take upon itself the functions of an appellate court, and inquire whether the debts claimed were really due from La Croix, nor whether the proceedings were conducted and the decision rendered in good faith by the tribunal which authorized the sale.

This being the only point legally before this court, and there being no error in it, the judgment of the Circuit Court must be affirmed, with costs.


text: Talk:Barton v. Forsyth (61 U.S. 532)/Opinion of the Court


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Williams v. Gibbes (61 U.S. 535)

THESE were cross appeals from the Circuit Court of the United States for the district of Maryland. In the report, the first case only will be mentioned, viz: that of Williams against Oliver's executors.

The case was formerly before the court, and is reported in 17 How., 239.

The facts are stated in the opinion of the court.

It was argued by Mr. Davis, Mr. Dulany, and Mr. Martin, for Williams, and by Mr. Reverdy Johnson and Mr. Campbell for Oliver's executors.

The decree was for $9,686.33 in money, and $19,215.95 in stock, instead of $22,866.94 in money, and $32,847.77 in stock, as claimed by the appellant.

Mr. Justice NELSON delivered the opinion of the court.

title: Williams v. Gibbes (61 U.S. 535)


text: Talk:Williams v. Gibbes (61 U.S. 535)

title: Talk:Williams v. Gibbes (61 U.S. 535)


text:
Williams v. Gibbes (61 U.S. 535)/Opinion of the Court

This is an appeal from a decree of the Circuit Court of the United States for the district of Maryland.

A bill was filed in the court below by Williams, the present appellant, to recover of the defendants the proceeds of the share of complainant's intestate in what is knon as the Baltimore Company, which had a claim against the Mexican Government, that was awarded to it under the treaty of 1839. The proceeds of the share amounted to the sum of $41,306.41. The history of the litigation to which the award under the treaty gave rise, in the distribution of the fund among the claimants or the assignees composing the Baltimore Company, will be found in the report of four of the cases which have heretofore come before this court. (11 How., 529; 12 ib., 111; 14 ib., 610; 17 ib., 233, 239.) That of Williams v. Gibbes, in 17 How., contains the report of the present case, when formerly here. This court then decided that the claim of the executors of Oliver to the share of Williams was not well founded; that the interest of Williams in the same had not been legally divested during his lifetime; and that his legal representative then before the court was entitled to the proceeds. The decree of the court below was reversed, and the cause remanded for further proceedings, in conformity with the opinion of the court. Upon the cause coming down before that court on the mandate, the defendants, the executors of Oliver, set up several charges against the fund, which it was claimed should be received and allowed in abatement of the amount.

1. For certain costs and expenses to which they had been subjected in resisting suits instituted against it by third parties. The history of these suits will be found in the cases already referred to in this court, and need not be stated at large.

2. For services and expenses of Oliver, in his lifetime, in the prosecution of the claim of the Baltimore Company, as its attorney and agent before the Government of Mexico, from the year 1825 down to the time of his death, in 1834.

The court below allowed to the executors the costs and expenses to which they had been subjected in defending the suits mentioned, and also thirty-five per cent. of the fund in question for the services of Oliver.

The case is one in many of its features novel and peculiar.

James Williams, the intestate, and owner of the share in the Baltimore Company, became insolvent in 1819, and took the benefit of the insolvent laws of Maryland, and in 1825 the insolvent trustee of his estate sold and assigned to Robert Oliver the share in question in this company; and from thence down to the year 1849, Oliver in his lifetime, and his executors afterwards, did not doubt but that a perfect title to the share had passed by virtue of this assignment. In that year, the Court of Appeals of Maryland decided, in a case between the executors and an insolvent trustee of Williams, that no title passed to Oliver by this assignment; and, as a legal consequence, it was held by this court, in 17 How., that the interest remained in Williams at his death, and of course passed to his legal representative, the complainant.

All the services and expenses, therefore, of Oliver, in his lifetime, in the prosecution of the claims of the Baltimore Company against the Government of Mexico, and of the litigation since encountered by his executors in respect to the share, have resulted in securing the proceeds of the same to the estate of Williams, the original shareholder. Williams in his lifetime, and his legal representatives since, down till the fund was in court awaiting distribution, had taken no steps for its recovery, nor had they been subjected to any expense. The whole of the services had been rendered, and expenses borne, by Oliver and his executors; and the question is, whether, upon any established principles of law or equity, the court below were right in taking into the account in the settlement between the parties these services and expenses. We are of opinion they were.

By the judgment of the Court of Appeals of Maryland, Oliver was at no time the true owner of this share, as, notwithstanding the assignment by the insolvent trustee, it still remained in Williams. Oliver thereby became trustee, instead of owner, of the share and of the proceeds, as did also his executors, and they must be regarded as holding this relation to the fund from their first connection with it. In that character the executors have been made accountable to the estate of Williams, and have been responsible since the fund came into their possession for all proper care and management of the same. In defending these proceeds, therefore, against suits instituted by third parties to recover them out of the hands of the executors, they have done no more nor less than they were bound to do, as the proper guardians of the fund, if they had known at the time the relation in which they stood to it, and that they were defending it for the benefit of the estate of Williams, and not for that of Oliver. The services rendered and expenses borne could not have been dispensed with, consistent with their duties as trustees.

But it is said that these suits were defended by the executors, while claiming the fund in right of their testator, and hence for the supposed benefit of his estate; that the defence was not made in their character of trustees, and cannot, therefore, be regarded as a ground for charging the estate of Williams with the costs of the litigation.

The answer to this view is, that although in point of fact the defence was made under the supposition that the fund belonged to the estate of Oliver, yet, in judgment of law, it was made by them as trustees, and not owners, as subsequently judicially ascertained; and as the costs and expenses were properly incurred in the protection and preservation of the fund, it is but just and equitable they should be made a charge upon it.

The misapprehension as to the right cannot change the beneficial character of the expense, when indispensable to its security.

The duty of a trustee, whether of real or personal estate, to defend the title, at law or in equity, in case a suit is brought against it, is unquestioned, and the expenses are properly chargeable in his accounts against the estate. (2 Story Eq. Juris., sec. 1275.)

Another principle which we think applicable to this case is to be found in a class of cases where a bona fide purchaser, for a valuable consideration, without notice, has enhanced the value of the property by permanent expenditures, and has been subsequently evicted by the true owner, on account of some latent infirmity in the title. It is well settled, if the true owner is obliged to come into a court of equity to obtain relief against the purchaser, the court will first require reasonable compensation for such expenditures to be made, upon the principle that he who seeks equity must first do equity. (2 Story Eq., sees. 799 and 7996; 6 Paige R., 403, 404; 1 Story Rep., 494, 495.)

A kindred principle is also found in a class of cases where there has been a bona fide adverse possession of the property tacitly acquiesced in by the true owner. The practice of a court of equity, in such cases, does not permit an account of rents and profits to be carried back beyond the filing of the bill. (8 Wheat., 78; 27 E. L. and E. Rep., p. 212; 7 Ves., 541; 1 Ed. Ch., 579.) This principle is applicable where the person in possession is a bona fide purchaser, and there has been some degree of remissness, or negligence, or inattention, on the part of the true owner, in the assertion of his rights.

Courts of equity, it would seem, do not grant active relief in favor of a bona fide purchaser, making permanent meliorations and improvements by sustaining a bill brought by him against the true owner, after he has succeeded in recovering the property at law. (6 Paige R., 390, 403, 404, 405; 1 Story R., 495; 8 Wh., 81, 82.)

The civil law in this respect is more liberal, and provides a remedy in behalf of the purchaser, even beyond an abatement of the rents and profits for such expenditures as have enhanced the value of the estate, (cases above;) and, indeed, generally applies the principle in favor of any bona fide possessor of property who has in good faith expended his money for its preservation or amelioration; otherwise, it is said, the true owner appropriates unjustly the property of another to himself. (Touillier, 3 B., tit. 4, ch. 1, secs. 19, 20.)

Now, in the case before ue, Oliver, in 1825, purchased this share in the Baltimore Company for the consideration of $2,000, its full value at the time. The purchase was made from the insolvent trustee of Williams, whom all parties concerned believed had the power to sell and transfer the title. Williams, down till his death in 1836, set up no claim to it, nor did his representative after his death till August, 1852, when this bill was filed. Oliver and his executors had been in the undisturbed possession, so far as respects any claim under the present right, for the period of twenty-seven years. And although it may be said in excuse for any remissness, and by way of avoiding the consequences of delay, that Williams, and those representing him, had no knowledge of the defect in the title till the decision of the Court of Appeals of Maryland; it may be equally said, on the other hand, that Oliver and his executors were alike ignorant of it, and had in good faith expended their time and money in recovering the claim against the Government of Mexico, and afterwards in defending it against a long and expensive litigation.

It is difficult to present a stronger case for the protection of a bona fide purchaser from loss, who has expended time and money in enhancing the value of the subject of the purchase, or a case in which the principle more justly applies, that where the true owner seeks the aid of a court of equity to enforce such a title, the court will administer that aid only when making compensation to the purchaser. We are, therefore, of opinion that the court below was right in allowing in the account the costs and fees paid to counsel by the executors in the defence of the suits.

In respect to the thirty-five per cent. allowed for the prosecution of the claim against the Government of Mexico, it stands, in principle, upon the same footing as other services and expenses incurred in protecting and preserving the fund after possession was obtained. The amount of compensation depends upon the proofs in the case as to the value of the service, and which must, in a good degree, be governed by the usual and customary charges allowed for similar services and expenses. As this claim was prosecuted with others by Oliver when he supposed and believed that he was the owner, and that he was acting on his own behalf, and not as trustee for Williams, the rate of compensation must rest upon all the facts and circumstances attending the service. There could have been no agreement as to the compensation. And for the same reason, it cannot be expected that an account of the service and expenses was kept so as to enable the court to arrive with exactness at the proper sum to be allowed, as might have been required, if Oliver had been chargeable with notice of the trust. The proofs show that Oliver appointed agents to represent him at the Government of Mexico as early as March, 1825, and that these agencies were continued from thence down till his death in 1834; and that during all this time he kept up an active correspondence with them and others, and with our ministers at Mexico, and with his own Government, on the subject. The justice of these claims had been acknowledged by the Government of Mexico as early as 1823-'4, but no provision was made for their payment. They were regarded as of very little value, from the hopelessness of their recovery; and it is perhaps not too much to say, upon the evidence, that in the absence of the vigorous and efficient prosecution of them by Oliver, they would have been worthless. In the result, for the share in question, which was sold in 1825 for $2,000, there was realized from the Government of Mexico, under the treaty of 1839, the sum of $41,306.41. The estate of Williams has never expended a dollar towards recovering it; nor has Oliver ever received any compensation for his servicess. The amount may seem large, but we cannot say the court below was not warranted in allowing it upon the proofs in the case of the great service rendered, and of the customary charges in similar cases.

It has been urged by the executors of Oliver, that they had paid over three-eighths of the fund in the distribution of the estate before the filing of the bill in this case, and that they are not, therefore, liable for that portion of the fund. It is claimed that it was shown before the master that this portion was paid over in the regular course of administration, and as in duty bound by the laws of the State of Maryland. If this had appeared when the cause was heard upon the merits, and the question as to the right to this fund was determined, the ground now taken might possibly have been a good defence to that portion of the fund; and the complainant would have been sent to the distributees to recover it. This, however, may not be entirely certain; for there is authority for saying, that a trustee having notice that it is doubtful if the trust fund should be distributed according to the trusts under which he holds it, he should apply to the court for its direction before he executed the trust, by paying over the fund. (27 E. L. and Eq. R., p. 302.) In this case, the executors of Oliver had notice of the defect of the title of their testator after the decision of the Court of Appeals. But be this as it may, we think the question of liability, to the extent of the whole of the fund, was disposed of in the case when before us on the merits, and was not reserve for the hearing on the adjustment of the accounts before the court below, on the coming down of the mandate. (17 How., 257.)

An objection has been made by the counsel for the appellant, Williams, in respect to the order of the court below, permitting a supplemental answer. We suppose this question rather a matter of practice than otherwise, resting in the discretion of the court below, and as a matter of convenience preparatory to the taking of the account before the master. The answer-and, for aught we see, the object in view might as well have been attained by a petition to the court, stating the facts-was put in for the purpose of bringing to the notice of the court the matters relied on in the adjustment of the accounts, and by way of charges to be deducted from the amount claimed. The proceeding enabled the court to give in advance directions to the master in making the settlement, and thereby narrow the grounds of controversy before him, and facilitate the hearing. It could work no prejudice to either party, for no claim by way of abatement of the account thus set up in the answer or petition should be allowed by the court, but what was pertinent to the subject of examination before the master.

Upon the whole, we are satisfied the decree of the court below was right, and ought to be affirmed.

Mr. Justice GRIER dissented.


text: Talk:Williams v. Gibbes (61 U.S. 535)/Opinion of the Court


text:
Whyte v. Gibbes

THESE were cross appeals from the Circuit Court of the United States for the District of Maryland, and were argued together with the preceding case by the same counsel.

Mr. Justice NELSON delivered the opinion of the court.

title: Whyte v. Gibbes


text: Talk:Whyte v. Gibbes

title: Talk:Whyte v. Gibbes


text:
Whyte v. Gibbes/Opinion of the Court

This is an appeal from a decree of the Circuit Court of the United States for the district of Maryland.

The case in principle is similar to the case of Williams v. The Executors of Robert Oliver, in which the opinion has just been delivered, with the exception of a question made upon a bill of revivor.

The suit was originally brought by John Gooding, jun., administrator de bonis non of the estate of John Gooding, sen. After the determination of the cause by this court, reversing the decree below, and sending it back with directions to enter a decree for the complainant, and to take an account, the complainant died. Thereupon, Whyte, the present complainant, was appointed administrator de bonis non, and filed a bill of revivor of the original suit, and presented a petition to the court, praying that, as the defendants were residents of the city of New York, the subpoena may be served upon the counsel of the defendants in the original suit, which was granted. The defendants appeared, and filed an answer to the bill of revivor under protest, and insisted that the court had not jurisdiction of the original suit, as the complainant in that suit was a citizen and resident of Virginia, and the defendants were residents of New York. There does not appear to have been any order of the court upon the question presented in this answer; but the cause proceeded before the master, where it was pending at the time of filing the bill of revivor and answer to the same.

The point is now taken, that as it appears the defendants were citizens and residents in New York at the time of the filing of the original bill, and also the bill of revivor, the court below had no jurisdiction in the case.

The answer to this objection is, that no want of jurisdiction appeared on the face of the original bill, and the defendants appeared and defended the suit; and, as the bill of revivor is but a continuance of that suit, the residence of the parties at the time it was filed is altogether immaterial.

This question arose in the case of Clarke v. Matthewson et al., (12 Peters, 164,) and was decided in conformity with the rule above stated.

In respect to the other objection, that the court had not jurisdiction in the original suit, we may add, in addition to what we have said, it comes too late after the mandate has gone down to the court below. (3 How., 413.)

The decree of the court below affirmed.

Mr. Justice GRIER dissented.

title: Whyte v. Gibbes/Opinion of the Court


text: Talk:Whyte v. Gibbes/Opinion of the Court


text:
Snow v. Hill

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

On the night of the 5th November, 1852, a collision occurred at about midnight, in the Mississippi river, at a point about twenty miles below the city of New Orleans, between the steamship Crescent City and the ship Ocean Queen, then in tow of the steam tow-boat Star. The Crescent City was at the time ascending the river, bound for New Orleans. The tow-boat Star was descending the river, having in tow, on her starboard side, the ship Charles and Jane, on her larboard side the ship Ocean Queen, and astern the brig Telegraph. The ships on either side of the tow-boat were firmly lashed to the latter, their bows projecting some distance beyond those of the tow-boat-the brig was about forty fathoms astern. The effect of the collision was to cause damage to both the colliding vessels-and to the ship Ocean Queen, to such an extent as to compel her to return to New Orleans, take out her cargo, and there undergo extensive repairs.

The owners of the Ocean Queen libelled both the tow-boat Star and the steamship Crescent City. The owners of the Crescent City libelled the Ocean Queen and the tow-boat Star, to recover the damages they had sustained. The owners of the tow-boat Star libelled the steamship Crescent City, for the damages she sustained in the collision.

The cases were by consent consolidated and tried together.

The cause having been brought to a hearing before the Hon. T. H. McCaleb, judge of the District Court, on the 4th March, 1854, he pronounced a decree declaring that the collision was attributable to the improper position in the river and the bad management of the tow-boat Star; and he ordered a reference to a commissioner, to ascertain and report the amount of damage sustained by the Ocean Queen.

On the 18th May, 1854, the report of the commissioner was confirmed, and a decree was made in favor of the owners of the Ocean Queen against the stipulators of the tow-boat Star for $19,465.79, with interest from the 10th January, 1953, and costs.

The libel against the Crescent City was dismissed, with costs.

On the 25th May, 1852, the Ocean Tow-boat Company appealed to the Circuit Court, from the decree in favor of the owners of the Ocean Queen.

On the 8th June, 1854, the owners of the Ocean Queen appealed to the Circuit Court, from that part of the decree of the 18th May which dismissed the libel against the Crescent City, with costs.

In November, 1854, these appeals were argued before the Circuit Court; and on the 18th June, 1855, a decree was made, affirming that of the court below, in favor of the owners of the Ocean Queen, against the tow-boat Star, for the aforesaid sum of $19,465.79, with interest from the 10th January, 1853, and costs.

It further ordered the United States Mail Steamship Company to pay the costs of the action of the owners of the Ocean Queen against the Crescent City.

It was referred to a commissioner to ascertain the entire damage arising from the collision, and to apportion it between the United States Mail Steamship Company, claimant of the Crescent City, and the Ocean Tow-boat Company, claimant of steamboat Star, according to the admiralty rule, where there has been mutual fault, each company to bear its own costs.

On the 29th of June, 1855, the Ocean Tow-boat Company appealed to this court from this decree.

The owners of the Ocean Queen appealed to this court from so much of the decree of the Circuit Court as discharged the owners of the Crescent City from liability to them.

In November, 1857, the commissioner made his report of the entire damages occasioned by the collision to the several vessels, and the parties to the several actions, by their respective proctors, having filed their written consent to the entry of a decree confirming the report, on the 21st November, 1857, a final decree was entered in the said actions in favor of Charles Hill and others, owners of the Ocean Queen, against Thomas A. Snow and Oliver Palmer, managers of the Ocean Tow-boat Company, and Oliver Palmer, their surety, the sum of $19,465.79, with interest at the rate of five per cent. per annum, and costs of suit.

It further decreed that the Ocean Tow-boat Company, upon the payment of the said last-mentioned sum, should recover from the United States Mail Steamship Company, and Arnold Harris and Frederick Fisher, their sureties, the sum of $9,732.89, the one-half of the amount of the damages sustained by the Ocean Queen, with interest, at the rate of five per cent., and one-half of the costs of the suit.

There were other points in the decree, which need not be mentioned.

There were then three appeals pending before this court, viz:

CHARLES HILL ET AL., IMPLEADED WITH THE STEAMSHIP CRESCENT CITY,

ads.

OCEAN TOW-BOAT COMPANY.

CHARLES HILL ET AL.

v.

THE UNITED STATES MAIL STEAMSHIP COMPANY.

CHARLES HILL ET AL.

ads.

THE UNITED STATES STEAMSHIP COMPANY.

The cases were finally narrowed down to the one which is at the caption of this report, and which was argued by Mr. Cushing on behalf of the Ocean Queen,Mr. Cutting on behalf of the Crescent City, and Mr. Benjamin on behalf of the Ocean Tow-boat Company, owners of the Star.

The arguments upon both sides were chiefly drawn from the evidence in the case, which was somewhat contradictory. A summary of that portion of it upon which the judgment was based, will be found in the opinion of the court.

Mr. Justice McLEAN delivered the opinion of the court.

title: Snow v. Hill


text: Talk:Snow v. Hill

title: Talk:Snow v. Hill


text:
Snow v. Hill/Opinion of the Court

This is an appeal in admiralty from the Circuit Court for the eastern district of Louisiana.

Hill and others, as claimants, in their libel, state that the Ocean Queen, being duly enrolled, registered, and equipped, left the port of New Orleans on a voyage to Liverpool, England, having a cargo of about 2,780 bales of cotton; that on the 5th of November, 1852, about half past nine o'clock, P. M., under the tow of the tow-boat Star on the larboard side, the ship Charles and Jane on the starboard, and a brig in tow astern, were proceeding down the river Mississippi for the Balize, that at about midnight on the same evening, twenty miles below New Orleans, the steamship Crescent City, then ascending the river, came in collision with the Ocean Queen on her larboard bow, cutting her to the bends, breaking her planking, timbers, and knees, and so injured the ship as to disable her from the prosecution of her voyage, and compelled her to return to New Orleans to refit; and that the costs of repairs and expenses amounted to the sum of twenty-five thousand dollars; and a lien on the Crescent City and the Star, for the above sum, is jointly and severally claimed.

The answer of the United States Mail Steamship Company, a body corporate, owner, says, the Crescent City was ascending the Mississippi river to the port of New Orleans, and was at a point in the river just below the English Turn, when, at about midnight, the pilot and crew discovered a tow-boat, which proved to be the Star, with the Ocean Queen and two other vessels, a short distance in front, and close to the eastern bank of the river; that there was not sufficient room to pass between the tow and the bank; that the tow-boat and her tow were out of the usual course of vessels descending the river, and that the Crescent City was in her proper position; that the Ocean Queen had not a light set in her rigging or elsewhere, visible to those on board the Crescent City; that the tow-boat failed to ring her bell or stop her engines and float, in the manner pointed out by law; that the Crescent City had slowed her engines on approaching the tow-boat, and receiving no signal that she was descending the river, put the helm of the Crescent City to the starboard, so as to pass outside of and clear of the Star and her tow; that she was heading to the western bank of the river, and as they approached her the Crescent City stopped her engines, and then backed, and was backing when the Ocean Queen and the tow-boat Star ran into the starboard bow of the Crescent City, striking her about twelve feet from her stern, and causing great damage.

That the pilot, officers, and crew, of the Crescent City, managed their boat with great case and skill; that the collision was caused by negligence and want of care of the tow-boat Star and the Ocean Queen, in not keeping their proper position on the river, in not ringing their bell, &c.

The answer of the Tow-boat Company to the libel was filed, denying the allegations it contained, and charging the fault on the Crescent City.

As the decision of the court must be governed by the evidence, it is not important to refer to the other pleadings in the case.

David Kelly, a witness, after describing the tow-boat and the other vessels fastened to her, as stated in the libel, said, when they started from New Orleans the Ocean Queen had one of her own men at the helm; afterwards the Star sent a man who took charge of it. They proceeded down the river, as near the middle as possible. In about an hour, one of the men from the tow-boat Star came on board and set the wheel again. They continued about the middle of the river until twelve o'clock at night. At this time the witness was on the lookout, when he saw the Crescent City ascending the river at a great distance. The tow was about the middle of the river, a little nearer the western than the eastern shore. The night was clear, so that one could see all over the river. Witness stood on the forecastle, forward, waiting for the Crescent City, supposing that she would keep clear of them, as there was plenty of room on the larboard side; but she approached so near that witness hailed her, and the tow-boat stopped her engines and rang her bell, but to no purpose; the Crescent City did not alter her course; she came so close that witness could see all over her forecastle forward, where her lookout should have been, but he saw no one on the lookout. He staid in his position until the Crescent City struck the ship Ocean Queen on her larboard bow. Witness then jumped off the forecastle and ran aft, but returned in a few minutes, and saw, for the first time, one or two men on the forecastle of the Crescent City. She struck the Ocean Queen on her larboard bow, and stove everything in forward; carried away the larboard cathead entirely, so that the anchor went down the full length of the chain, and parted all the fastenings of the Ocean Queen to the tow-boat, carried away the guards of the Star, and bent her smoke-pipe. The tow-boat brought the Ocean Queen back to the city. The witness was the only person on watch on the Ocean Queen. There were no lights hung out on the vessel, but he supposes her lights in the cabin must have been visible through the windows. Witness knew the river well; took particular notice, and is confident, when the Crescent City approached the tow, it was about the middle of the river. The Star did not alter her course. When he first saw the Crescent City, she was about half a mile distant; when he first hailed her, she was about four or five times her length from the tow. Witness thinks, when the Crescent City struck, she was going ahead fast. The tow-boat Star stopped her engine, and rang her bell; her light hung between the smoke-pipe and her forward fires.

John Marston was standing on the deck of the Ocean Queen when he first saw the Crescent City; she was about five times her length off. The night was clear, and her could distinctly see both stores. The tow-boat was heading down the river, as near the middle of it as possible. She was running about seven knots an hour; he thinks the Crescent City was running some eight or ten knots an hour when she struck the Ocean Queen. There were two signal-lights on the Star.

Henry Crowell, a witness, was on the deck of the Ocean Queen; saw the Crescent City half a mile off; as she approached, he failed her. The tow was in the middle of the river, rather nearer to the western than the eastern shore; of this he is confident. Richard Matthews was master of the Ocean Queen. The night was clear and starlight; could see both shores. The Ocean Queen was nearer the western than the eastern shore. Soon after the collision, she drifted to the western shore.

Henry J. Whitney was master of the tow-boat; he has been engaged in that business eight or ten years; heard the bell ring; came immediately on deck; ran aft, and directed the hawser of the brig to be let go, in order that he might back. The tug was near the middle of the river, nearest to the western shore. He is positive as to this fact.

Witness has heard Captains Disney, Chapman, Brown, Laplace, Phillips, and others, say that Captain Foote, the pilot of the Crescent City, is not considered as a pilot, and especially among masters of tow-boats. Peter Curran was pilot of the Star, and on duty when the collision occurred. The Star had her full complement of men; was nearer to the western than the eastern shore. On seeing the Crescent City coming, he rang the bell to stop the engines; then rang the big bell hard, three or four times. The crescent City seemed to come towards them, on the larboard side, fill she got nearly abreast the ship's bow; then she hauled, as witness thought, nearly square across, until she hit the ship between the cathead and the stern, and hove her over on the guards of the tow-boat, which were broken. The bow of the Ocean Queen was a little ahead of the tow-boat. Witness watched the lights of the Crescent City when she turned her bow westward. At that time she was about a mile and a half from the tow. She appeared to be heading all the time westward, till she came abreast of the Ocean Queen, when she seemed to turn suddenly, as if she had her helm hard a-starboard to turn towards the western shore.

Asa Payson corroborates the above witnesses as to the tow being in the middle of the river, and the direction taken by the Crescent City across the river.

Foote, the pilot of the Crescent City, says he was ascending the river as near the eastern bank as it was prudent and usual to run. He described the tow-boat, being on the lookout, from the top of the pilot-house; there was a man on the watch forward, Mr. Ranshaw, and also one on the deck. When he first saw the light, it was about a point on his port bow. He told the man at the helm there was a tow ahead, and to keep close in to the eastern bank, for that was his position. As he approached the tow, an order to slow the engines was given, and at the same time witness said there was a tow ahead, either bound up or at anchor. The engines were slowed. The wheelsman said he could see no opening between the tow and the shore. Witness then directed him to put his helm to the starboard, and go outside of the tow. As soon as witness perceived the tow was descending the river, the engines were ordered to be stopped and backed. This order was obeyed, but it did not prevent the collision. The Crescent City was not going with force when the collision occurred. Captain Davenport appeared just after the collision, when the bows of the boats were still together. This was, he thinks, about twice the length of the boat from the eastern bank. He is confident, when he first saw the tow, it was not in the middle of the river. If he could have been between the tow and the eastern shore, he should have kept near the store; but not seeing an opening, he took a western direction, which was his proper course.

Several witnesses were examined who were on board the Crescent City, all of whom, more or less, corroborated the impression of the pilot, that they were very near the eastern shore, and that between the tow and that shore there was not room for the Crescent City to pass.

From what has been stated in the pleadings and testimony, it will be seen that in this, as in other cases of collision, the theories of the respective parties are in conflict. Both cannot be true; and if either be so to the extent claimed, the right and the wrong are established.

The claimants allege that the Ocean Queen in charge of the steam tow-boat Star, with two other vessels, was descending the river Mississippi, about twenty miles below New Orleans, being near the middle of the river, rather nearer to the western than the eastern bank, was run into by the Crescent City, and injured as described.

Some eight or ten witnesses called in behalf of the claimants some of them experienced pilots, and well acquainted with the river-being on board the Star tow-boat, or one of the boats fastened to it, and several of them witnessed the collision, a part of whose testimony is above stated, and they all conduce to establish the allegations in the libel. They show that the tow-boat was in her proper course in the middle of the river, or rather nearer to the western than the eastern shore, and this all the witnesses admit was the usual and proper course. They also show that the Star had lights, and that there was no want of care in her management. Her course down the middle of the river was continued, and on the approach of the Crescent City, so as to threaten a collision, the hawser which fastened the brig to the stern was thrown off, so that the tow-boat might back; the engines were stopped, and the approaching boat was hailed, the bells rang, and the Star was inclined still further to the western shore. More than this could not be done, nor required of the tow-boat with her towage. Being in her right position, the Star had no reason to apprehend a collision until the danger became imminent. And when this was apparent, nothing more could be done by the tow-boat than was done. It would be a strange rule of navigation to require a boat descending in the middle of a river, more than twenty-four hundred feet in width, to keep out of the way of a vessel ascending the river close to the shore, a thousand feet from the descending boat, which should change its course to a direction across the river, out of its proper course, and with the view of crossing the bow of the descending boat. No stronger case could be put or imagined, to show fault in the ascending boat.

The theory of the Crescent City is unreasonable, and is unsustained by the evidence. It was ascending, as alleged, the eastern shore of the river, as near to it as could safely be navigated, until the light of the tow-boat was discovered, which was directly ahead, and so close to the shore as not to give room for the ascending boat to pass between it and the shore. This is untrue, if the facts be true as to the position of the tow-boat.

The position of the tow-boat is proved by experienced pilots and river men, well acquainted with the river for many years, and whose character for truth has not been questioned. They say that they could see both shores, and that from their knowledge of the river they cannot be mistaken.

To counteract this proof, there is nothing but the statements of the pilot of the Crescent City, who is proved to be ignorant and incompetent, and two or three witnesses on board that vessel, who were not shown to have a knowledge of the river. The pilot directed the helm to the starboard, with the view of passing the tow on the western side. And this course was continued until the collision occurred, by striking the larboard bow of the Ocean Queen. This bow was a little in advance of the Star.

Whilst one or two of the witnesses speak favorably of Foote, the pilot, the greater number speak of him as ignorant of his duties, and not fit for a pilot. And in addition to this, it seems he was not acquainted with the river. This is shown to some extent, as he seems to have relied more on the opinion of the man at the helm, than on his own knowledge and judgment.

The place of collision, as appears from a survey of the river, is 2,420 feet wide; and if the tow was in the middle of the river, there were twelve hundred and ten feet between the tow and the eastern shore, which afforded room for three vessels to pass abreast, of the capacity of the Crescent City.

The statement of Foote is conclusive against his theory. He starboarded his helm, to pass the western side of the tow. His approach was seen by those on board the Star and the other vessels connected with her, some time, and preparations were made to avoid the collision. This shows that Foote was mistaken as to the position of the tow, and this mistake was fatal. Whether it resulted from his ignorance of the course of the river, or of his duties as a pilot, or from both, is immaterial. It shows that the Crescent City was in fault, as the colliding vessel.

It is alleged that the Ocean Queen had no lights, and that on the approach of the Crescent City the Star did not stop her engines and float, as the statute of Louisiana requires of the descending boat. The Ocean Queen was passive, following in the two of the Star; her lights were not required to be hung out. The tow-boat Star was responsible for her safe navigation, so far as skill and knowledge of the river were concerned; but it was not responsible for the wrongs of other boats, which could not, reasonably, be avoided.

The statute of Louisiana referred to, we think, is not in the case; from the facts proved, its requirements could have had no application.

The Ocean Queen was bound to a foreign country; the Crescent City was carrying on an intercourse between New Orleans and the Atlantic States. The agency of the tow-boat did not change the character of the commerce in which the vessels were engaged. The Ocean Queen was propelled by steam, and whether the power be located in the tug or in the ship, can be of little or no importance. It was subject to the admiralty jurisdiction, and to the rules applied to vessels having the same motive power.

The Circuit Court decreed against the Tow-boat Company in solido, the sum of $19,465.79 damages, with interest thereon at the rate of five per cent. per annum from the 10th of January, 1853, till paid, and costs of suit; and that the Tow-boat Company, upon the payment of the above sum, shall have and recover from the Mail Steamship Company, &c., $9,732.89, the one-half of the sum decreed as above.

In this decree we think there is error. The tow-boat was not in fault. Her equipments and crew were such as the law required, and the usage of the service. In nothing did the tow-boat fail, which in the least conduced to the disaster. The Crescent City was wholly in fault, and the decree for the damages suffered by the Ocean Queen should have been against the colliding boat. The decree of the Circuit Court is therefore reversed, and the cause is remanded to that court, with directions to enter a decree for the above damage against the Mail Steamship Company, their sureties, &c., and also the sum of two hundred and eight dollars and ninety-seven cents for the damage done to the tow-boat, and also for costs.

title: Snow v. Hill/Opinion of the Court


text: Talk:Snow v. Hill/Opinion of the Court

title: Talk:Snow v. Hill/Opinion of the Court


text:
Holcombe v. McKusick

THIS case was brought up, by writ of error, from the Supreme Court of Territory of Minnesota.

The case is stated in the opinion of the court.

It was argued by Mr. Bradley for the plaintiff in error, upon which side there was also a brief filed by Mr. Brisbin and Mr. Stevens, and by Mr. Cushing and Mr. Gillet for the defendants.

Mr. Justice NELSON delivered the opinion of the court.

title: Holcombe v. McKusick


text: Talk:Holcombe v. McKusick

title: Talk:Holcombe v. McKusick


text:
Holcombe v. McKusick/Opinion of the Court

This is a writ of error to the Supreme Court of the Territory of Minnesota.

The suit in the court below was brought to recover damages for wrongfully entering the plaintiff's dwelling-house at Stillwater, Minnesota Territory, and doing great injury to the same, removing it from its foundations, damaging and destrouing the personal property therein, &c.

The defendants, in their answer, set forth an act of the Legislature of the Territory of Minnesota, incorporating the city of Stillwater, and conferring upon the municipal authorities the usual powers for the well government of the inhabitants thereof; the organization of the government of the city under its character, and the election of its officers, and, among others, that one of the defendants, J. E. McKusick, was elected marshal. The answer set forth, also, an ordinance passed by the city council, in pursuance of authority given by the charter, which, among other things, provided for the removal of obstructions in the public streets and landing places, and conferred authority upon the marshal to remove such obstructions. The answer then sets forth that the plaintiff's dwelling was erected upon Main street in the city, and obstructed the free use of the same, and had become a public nuisance; and that the marshal removed the said obstruction, in pursuance of the authority conferred upon him by the ordinance, which is the act complained of by the plaintiff; and that the other defendants were called in to his assistance in the performance of this duty. The answer then denies the special damage set up in the complaint.

The plaintiff, in reply to the new matter set forth in the answer, denies, according to the formula prescribed by the Minnesota code, the existence of the charter of the city of Stillwater, set forth in the answer, and avers that no act of incorporation was ever published, as prescribed by the laws of the Territory. The plaintiff then sets out at large a charter of the city, which was published according to law; denies the election of the municipal authorities under the charter, also the existence of any city ordinance passed by the city council; and the election of the defendant, McKusick, his qualification in the office, or that he ever entered upon his duties. The plaintiff also denies that his dwelling-house was erected on Main street, or that it obstructed the same.

There is also a long statement respecting the title to the land embraced within the corporate limits of Stillwater, which it is not material to set forth. The plaintiff further denies that, in making the removal of the dwelling-house, the defendants used proper care and caution to prevent unnecessary damage.

The defendants have demurred to all that portion of the reply which commences with denying the existence of the act of incorporation of the city of Stillwater, and including the charter set forth in the answer. They demur also to the allegation in the answer, stating that the dwelling-house was erected prior to the 12th day of September, 1848; and, also, to all that part of the answer relating to the title to the land embraced within the city of Stillwater.

The defendants also made a motion to strike out certain portions of the reply, which was granted, but it is not material to notice the portions particularly.

The District Court of the Territory sustained the demurrer of the defendants to the portions of the plaintiff's reply above referred to, with leave to the plaintiff to amend. No amendment having been made, judgment upon the demurrer was made absolute, with costs. An appeal was taken to the Supreme Court of the Territory, where the judgment below was affirmed, with costs. The case is now here on a writ of error to this court.

The portions of the reply demurred to, and also those stricken out on motion, must be regarded as disposed of, and it will be necessary to look at those portions left, which have neither been demurred to nor stricken out, and therefore remain unanswered. One portion of the reply in this predicament is as follows: 'And the plaintiff denies that the said dwelling-house obstructed Main street, in the city of Stillwater, or that the same was kept or maintained as a public nuisance.'

Another is, a denial of the existence of the ordinance of the city council of Stillwater, conferring authority upon the marshal to remove obstructions in the public streets; also a denial that the defendant, J. E. McKusick, was elected marshal, or had qualified as such; and, further, a denial by the plaintiff of the allegation in the answer, that the removal of the dwelling-house was made, doing no unnecessary damage, &c.

All these matters, in reply to allegations in the answer, constitute issues of fact upon the record, undisposed of; and it is quite clear, until disposed of in favor of the defendants, the plaintiff would be entitled to recover. They put in issue the authority of the defendants to remove the dwelling-house, which is set up in the answer; and also present a case, in which, if the general authority to remove obstructions from streets existed, it would not protect the defendants, as the dwelling-house was not within the limits of the street as claimed; also, if within it, unnecessary force was used, and unnecessary damage done to the building in the act of removal.

On the trial before the jury, the defendants would be obliged to meet these several issues, and maintain the allegations in their answer, before they would be entitled to a verdict, as either of them, if found for the plaintiff, would have displaced the justification set up in the answer.

The whole of the cause, therefore, in the court below, was not disposed of, and no final judgment rendered, upon which a writ of error from this court would lie. It is the settled practice of this court, and the same in the King's Bench in England, that the writ will not lie until the whole of the matters in controversy in the suit below are disposed of. The writ itself is conditional, and does not authorize the court below to send up the case, unless all the matters between the parties to the record have been determined. The cause is not to be sent up in fragments. (11 How., 32; 21 Wend., 667.)

The statutes of Minnesota have provided for an appeal from the District to the Supreme Court, on an interlocutory order affecting the merits. (Stat. Minn., p. 414, sec. 7.) It was, therefore, properly taken to the Supreme Court of the Territory; but that practice cannot govern this court in revising the judgments of the court below in this court.

We have rarely in our experience examined a case, which in its principles is common and readily understood, so complicated and confused by the mode of pleading which has been pursued, and which it is understood is in conformity with the system adopted in this Territory. The pleadings raise many immaterial and even trivial questions of fact and law, which have nothing to do with the substantial merits of the case, and seem, in practical operation, whatever may be the system in theory, to turn the attention of courts and counsel to small matters as of serious import, which are undeserving a moment's consideration, overlooking or disregarding the most material and controlling questions involved.

The demurrers are put in to detached statements in the answer, the statements thus demurred to loosely made, and often incongruous in themselves, and upon which no principle of law can be raised or applied to govern the decision.

The system is anomalous, and involves the absurd and impracticable experiment of attempting to administer common-law remedies under civil-law modes of pleading, and these very much perplexed and complicated by emendations and additions.

The case must be dismissed for want of jurisdiction, there being no final judgment in the court below.


text: Talk:Holcombe v. McKusick/Opinion of the Court


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McCargo v. Chapman

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the southern district of Mississippi.

The facts of the case are set forth in the opinion of the court.

It was argued by Mr. Bradley for the plaintiff in error, and by Mr. Badger for the defendant, upon which side there was also a brief by Mr. Badger and Mr. Carlisle.

Mr. Justice McLEAN delivered the opinion of the court.

title: McCargo v. Chapman


text: Talk:McCargo v. Chapman

title: Talk:McCargo v. Chapman


text:
McCargo v. Chapman/Opinion of the Court

This case is brought before us by a writ of error to the Circuit Court for the southern district of Mississippi.

On the 14th of May, 1855, the defendant moved to quash an execution issued in the above case, on two grounds: first, because the same issued more than seven years after a prior execution; second, because the same issued more than seven years after the return of the last preceding execution, in said cause.

On this motion the defendant read to the court the record of the judgment in the Circuit Court, which was entered for the sum of twenty-one hundred and nine dollars, and costs; on which an execution was issued the 15th of June, 1843, and was returned, no property found; and afterwards, an ''alias fi. fa.'' was issued, the 20th of April, 1855, which was levied on lots 3 and 6, section 35, township 14, range 6 west, as the property of the defendant, which was not sold for want of time.

It appeared that no other execution ever issued upon the above judgment, and the court sustained the motion and quashed the execution, to which an exception was taken. This writ of error is intended to bring before us the question, whether the motion to quash the execution was properly sustained. A preliminary question, however, arises, whether a writ of error can be maintained, on the decision of the above motion.

The judiciary act of 1789 authorizes this court to revise final judgments by a writ of error. And this court say, in Toland v. Sprague, 12 Curtis, 734, that a decision of the court upon a rule or motion is not of that character. And in Boyle v. Zacharie, 10 Curtis, the court say: 'In modern times, courts of law exercise a summary jurisdiction, upon motion, over executions, and quash them, without putting a party to his writ of audita querela; but these motions are addressed to the sound discretion of the court, and their refusal is not a ground for a writ of error.' In Mountz v. Hodgson, 2 Curtis, 124, it is said: 'A refusal of the court below to quash the execution on motion, is, by some of the judges, supposed not to be a judgment to which a writ of error will lie. Others are of opinion that a writ of error will lie to that decision of the court; but that the writ of error is not to the judgment of the Circuit Court, but to that of the justices.' In the case of Early v. Rogers et al., 16 How., 599, it is said: 'Whether a court will quash an execution on account of proceedings against the debtor, as the garnishee of the creditor, is a question appealing to the discretion of the court below, and a court of error cannot revise its decision thereon.'

In Brooks v. Hunt, 17 John., 484, a motion was made to the Supreme Court of New York to set aside a fieri facias, on the ground that the party was discharged under the insolvent laws of the State. The court refused the motion; and, on error brought, the court of errors of New York quashed the writ of error. Mr. Chancellor Kent, on behalf of the court, assigned as one of the grounds of quashing the writ of error, that the rule or order denying the motion was not a judgment within the meaning of the Constitution or laws of New York.

And yet it is said in Co. Litt., 288, b, that a writ of error lieth when a man is grieved by an error in the foundation, proceeding, judgment, or execution in a suit. But it is added in the same authority, 'without a judgment, or an award in the nature of a judgment, no writ of error doth lie.' And the court say, in the case of Boyle v. Zacharie, 'If, therefore, there is an erroneous award of execution, not warranted by the judgment, or erroneous proceedings under the execution, a writ of error will lie to redress the grievance.'

Whatever discrepancies may be found in decisions on this subject, we think a writ of error will not lie on any judgment, under the act of 1789, which is not final, in whatever form it shall be given. This may be illustrated by the case before us. In this case, the Circuit Court quashed the execution; and, by a writ of error, we are called on to revise that decision. What will be the effect of an affirmance? May not the Circuit Court issue another execution on the same judgment? In short, is the action of the Circuit Court final as to anything except the particular motion before it? May it not be followed by another motion of the same import? If the writ of error may be allowed to one party, it cannot be denied to the other. And to what motions shall it be limited?

It has uniformly been held that error will not lie, without a statutory provision, on a motion for a new trial, to amend the pleadings, or any other motion which depends upon the discretion of the court.

If, in the language of this court in Boyle v. Zacharie, an execution should be issued not authorized by the judgment, the court, on motion, would set it aside or quash it; and should it refuse to do so, a mandamus would seem to be the proper remedy. It is a writ which may be issued to inferior courts and magistrates, to require them to execute that justice which the party is entitled to, and which, by law, they are enjoined to do, and where there is no other remedy.

This writ of error is dismissed, for want of jurisdiction.

title: McCargo v. Chapman/Opinion of the Court


text: Talk:McCargo v. Chapman/Opinion of the Court


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Irvine v. Marshall

THIS was an appeal from the Supreme Court of the Territory of Minnesota.

The facts are stated in the opinion of the court.

It was argued by Mr. Cooper for the appellant, and by Mr. Bradley for the appellee, upon which side there was also filed a brief by Mr. Brisbin and Mr. Stevens.

Mr. Justice DANIEL delivered the opinion of the court.

title: Irvine v. Marshall


text: Talk:Irvine v. Marshall

title: Talk:Irvine v. Marshall