text:
Keystone Bridge Company v. Phoenix Iron Company/Opinion of the Court

The appeal in this case is brought to review the decree of the Circuit Court dismissing the bill of complaint, which charges an infringement of two certain patents belonging to the Keystone Bridge Company. These patents were for improvements in iron truss bridges. The first was granted to J. H. Linville and his assignee J. I. Piper, Jan. 14, 1862; the second, to the same parties, Oct. 31, 1865. The particular claims upon which the contest arises before us are the first claim in the former patent, and the third in the latter. Both of these claims relate to the lower chords of the truss, the primary office of which is to hold the lower parts of the structure together, and keep them from spreading; but which are also employed in the construction of the patentees, to sustain the cross-sills which support the railroad.

We do not think we ought to disturb the decree of the Circuit Court in this case. We regard the construction of the claims in question insisted upon by the appellee as substantially correct. Those claims are the first in the patent of 1862, and the third in that of 1865. It is manifest that, in the former, the form of the chords is deemed material, or, at least, it is made so by the terms of the specification and claim. They are flat bars placed on edge so as to sustain superincumbent weight, as well as perform the office of tension braces. They are made in this form in order that the floor beams of the railroad may be directly laid on them. This is apparent from the whole tenor of the specification. The patentee, in describing his invention, commences by saying: 'My invention, consists, 1st, in a novel construction of the lower chords, and mode of applying the same, in combination with the posts and other parts of the truss.' Again: 'The bottom chords are each composed of a series of wide, thin eye-bars, of wrought iron, of a length corresponding with the distances between the posts on one side of the truss, placed on edge to enable them to give vertical support to the roadway,' &c. Then, after showing that these eye-bars or chords are made wider at the ends where the eye-holes are made for inserting the connecting pins or bolts, which connect the different sections together, and explaining the general construction of the bridge and its different parts, he concludes with the following claim: 'I do not claim the use of eye-bars or links as chains of suspension bridges; but what I claim as my invention, and desire to secure by letters-patent, is, 1st, the construction of the lower chords of truss bridges of series of wide and thin drilled eye-bars, C, C, applied on edge between ribs, S, S, on the bottoms of the posts, and connected by pins, P, P, supported in the diagonal tension braces, D and E, all substantially as herein described.' Words cannot show more plainly that the claim of the inventor does not extend to any other eye-bars or chords than such as are made wide and hin, and applied on edge. As those constructed by the defendant are cylindrical in form, only flattened at the eye for insertion between the ribs or projections of the posts, it is plain that no infringement of this claim of the patent has been committed.

The other claim in question, namely, the third claim of the patent of 1865, is for the employment in truss bridges of just such wide and thin chords as above described, whose ends are enlarged or widened by being upset (when heated) by compression into moulds in the manner described in the specification of the patent. The mode of upsetting, widening, and shaping the ends of the bars is by placing the ends, after the bars have been rolled into proper shape and size, and the ends heated, into a die-box of the regular form, and then firmly locking them in place, and with great power pressing them up endwise with a movable head-die until the hot iron fills the die-box. By this pressure the ends are upset, widened, and compressed into the desired shape. It is claimed that by this process the ends are made stronger and better able to sustain the great strain to which they are subjected when in place in the truss. The defendant upsets the ends of the chords made by it before putting them into the die-box, then places them in the box, and flattens them into shape in much the same way that is described in the patent. The process is not in all respects the same, but perhaps sufficiently alike to constitute an infringement if the claim of the patent were only for the process of forming the widened ends. But it is not so, and probably the patent could not be sustained if it were; for spike-heads, nail-heads, bolt-heads, and many other things of that sort, are formed by upsetting and compressing hot iron in the same way. It is only the use in truss bridges of flat bars or chords, with the ends upset and widened in this manner, which the patentees claim as their invention. Their claim is for a particular product, made by a particular process and applied to a particular use. The patent of 1865 refers to that of 1862, and the invention sought to be patented is claimed as an improvement on the prior one. The patentees say: 'Our invention consists of certain improvements in the construction of the wrought-iron truss bridge for which letters-patent of the United States were granted to us on the 14th of January, 1862. In the truss bridge shown in the accompanying drawings the general arrangement of the parts is similar to that shown in our previous patent just referred to,-the improvements forming the subject-matter of this invention relating to the following particulars:' [then, after specifying certain improvements in the posts and in the upper chords of the truss, the patentees proceed as follows:] '2. The use of bottom chords of thin wrought-iron plates, the eye of which at each end, instead of being cut out of a rolled plate and drilled or forged into shape, is upset under strong compression, so as to give at the eye of the bar a degree of strength equal or superior to that of the bar at any point between the eyes.' Then, describing the various parts of the truss in its improved construction, in speaking of the bottom chords (which are those in question) the patentees say: 'The bases of the posts, A, are connected at their bases longitudinally by the lower chords, D, of which four may be placed parallel to each other, on each side of each panel. They are made of thin bars of rolled iron, of sufficient depth, and placed on edge, so as to support the roadway, and are attached to the bases of the posts by the connecting pins, N, which pass through the hole or eye near the end of these bars.' Again, in summing up, the patentees say: 'The lower chords, D, consist of wide, thin rolled iron bars, with enlarged ends, which are made by upsetting the rolled bars by compressing them into the desired shape in moulds into which the heated iron is forced under immense pressure,' &c. And then, in order to exclude the idea that they claim the mode of compressing the en s, they add: 'We do not claim the upsetting of iron bars in the manner described, nor any peculiar mode of performing the operation, but merely the use of chord-bars for bridges, the eyes of which are thus formed so as to give additional strength to the bar where it is so much needed.' The claims are then set forth categorically in the usual manner, the third claim (the one in question) being in these words: '3d, The use for the lower chords of truss frames of wide and thin rolled bars with enlarged ends, formed by upsetting the iron, when heated, by compression into moulds of the required shape, for the purpose of increasing the density, toughness, and strength of the eye of the rod, and enlarging the eye, without diminishing its transverse section, substantially as hereinbefore described.'

Here, again, the patentees clearly confine themselves to wide and thin bars. They claim the use in truss bridges of such bars when the ends are upset and widened in the manner described. It is plain, therefore, that the defendant company, which does not make said bars at all, but round or cylindrical bars, does not infringe this claim of the patent. When a claim is so explicit, the courts cannot alter or enlarge it. If the patentees have not claimed the whole of their invention, and the omission has been the result of inadvertence, they should have sought to correct the error by a surrender of their patent and an application for a reissue. They cannot expect the courts to wade through the history of the art, and spell out what they might have claimed, but have not claimed. Since the act of 1836, the patent laws require that an applicant for a patent shall not only, by a specification in writing, fully explain his invention, but that he 'shall particularly specify and point out the part, improvement, or combination which he claims as his own invention or discovery.' This provision was inserted in the law for the purpose of relieving the courts from the duty of ascertaining the exact invention of the patentee by inference and conjecture, derived from a laborious examination of previous inventions, and a comparison thereof with that claimed by him. This duty is now cast upon the Patent Office. There his claim is, or is supposed to be, examined, scrutinized, limited, and made to conform to what he is entitled to. If the office refuses to allow him all that he asks, he has an appeal. But the courts have no right to enlarge a patent beyond the scope of its claim as allowed by the Patent Office, or the appellate tribunal to which contested applications are referred. When the terms of a claim in a patent are clear and distinct (as they always should be), the patentee, in a suit brought upon the patent, is bound by it. Merrill v. Yeomans, 94 U.S. 568. He can claim nothing beyond it. But the defendant may at all times, under proper pleadings, resort to prior use and the general history of the art to assail the validity of a patent or to restrain its construction. The door is then opened to the plaintiff to resort to the same kind of evidence in rebuttal; but he can never go beyond his claim. As patents are procured ex parte, the public is not bound by them, but the patentees are. And the latter cannot show that their invention is broader than the terms of their claim; or, if broader, they must be held to heve surrendered the surplus to the public.

The construction which we have felt bound to give to the patent obviates the necessity of expressing any opinion upon the other point made by the court below, namely, that the patents only covered the use of the chords in question in truss bridges, and not the making of such chords, which latter is all that the defendant company is shown to have done.

Decree affirmed.


text: Talk:Keystone Bridge Company v. Phoenix Iron Company/Opinion of the Court

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


text:
Railway Company v. Stewart

APPEAL from the Circuit Court of the United States for the District of Kansas.

The case was argued by Mr. John P. Usher for the appellant, and submi ted on printed arguments by ''Mr. Matt. H. Carpenter and Mr. Joseph B. Stewart'' for the appellee.

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

title: Railway Company v. Stewart


text: Talk:Railway Company v. Stewart

title: Talk:Railway Company v. Stewart


text:
Railway Company v. Stewart/Opinion of the Court

This is a bill in equity filed by Stewart as complainant, Aug. 20, 1868, against the Union Pacific Railroad Company, Eastern Division (now known as the Kansas Pacific Railway Company), the National Mechanics' Bank of Baltimore, the National Union Bank of Maryland, and the National Exchange Bank of Baltimore, but dismissed by the complainant as against the several banks made defendants, Nov. 28, 1871. The case, as stated in the bill, is substantially as follows:--

On the 6th of January, 1866, there were outstanding four hundred and fifty land-grant bonds and six hundred and forty construction bonds of the railroad company, upon which it claimed that it was not liable. All the land-grant bonds and three hundred and ninety of the construction bonds were owned or controlled by Thomas C. Durant. Stewart owned or represented the remaining two hundred and fifty construction bonds. A suit had been commenced by the company, and was then pending, in one of the State courts of Kansas, against Durant, Stewart, and others, the object of which was to obtain a cancellation of the construction bonds, and the mortgage executed to secure their payment. There were also other matters in dispute between Durant and the company, and between him and John D. Perry, its president. In this state of affairs, Stewart, on the 6th of January, 1866, proposed in writing to the company, through its attorney, to surrender all the land-grant and the construction bonds held or represented by Durant or himself, and procure a release by Durant of all actions and rights of action which he had or might have against John D. Perry or the company, or any of its officers, so that its mortgages might be cancelled, if it would in exchange therefor execute and deliver to him, for the parties interested, five hundred of its bonds of $1,000 each, secured by a first lien on the first one hundred and fifty miles of the lands west of Fort Riley, granted by Congress to aid in the construction of its road. It is then alleged that, in the early part of February following, this proposition was accepted, with some slight modifications, and that the company agreed to take up the old bonds and deliver the proposed new ones in exchange; that Durant, in pursuance of this agreement, executed the proper release, surrendered his bonds, and received in exchange his stipulated portion of the new securities; that certain persons owning some of the bonds represented by Stewart at the time of the contract accepted the terms of the settlement, and made the contemplated exchange; that he, Stewart, was the owner of one hundred and fifty-four of the construction bonds, for which there still remained in the hands of the company one hundred and twenty-six of the new issue, to be exchanged upon surrender in accordance with the terms of the settlement, but that he was unable to produce his bonds, as they were in the possession of the banks that were made defendants, and they refused to give them up. He insisted, however, that the bonds were his, and that they were no longer binding upon the company. He accordingly prayed that the company might be required to deliver to him the bonds which were held for exchange under the terms of the agreement of settlement.

The company answered, denying substantially all the material allegations in the bill.

From the testimony, it appears that Stewart made the proposition set forth in his bill, and that it led to an interview between Durant and the officers of the company, at Philadelphia, early in February, 1866, at which Stewart was present, representing his own interests. Durant objected to the terms proposed by Stewart; and, after some negotiation, a settlement was finally agreed upon, by which the bonds held by all the parties were to be surrendered, and in consideration thereof the company was to pay Durant $100,000 in each and notes, and execu e and deliver four hundred new bonds of $1,000 each, secured by mortgage on the lands of the company lying on the first one hundred miles of its road west of Fort Riley. As part of the settlement, also, the company was authorized to enter in the suit pending in the State court of Kansas a decree directing the cancellation of the construction bonds and the discharge of the mortgage securing them.

Pursuant to this arrangement, the company executed its new bonds and mortgage; and, during the latter part of April, 1866, Durant surrendered his old bonds, and received the part of the new issue which, as between him and the holders of the other construction bonds, it was stipulated he should have. Alexander Hay, also, who owned seventy-six of the bonds represented by Stewart in the settlement, made his exchanges; and since the commencement of this suit twenty more have been taken up by the company. This leaves outstanding one hundred and fifty-four bonds, claimed by Stewart, which were not exchanged at the same time with the others, because of his inability to control them for that purpose. The parties actually holding them did present them, but on account of his objections the exchange was not made.

In accordance with the terms of the settlement, a decree, cancelling the construction bonds and discharging the mortgage, was entered in the suit pending in the State court.

None of the one hundred and fifty-four bonds have been surrendered to the company, but deliveries of new bonds held for exchange have in some cases been made upon the order of Stewart without a corresponding surrender.

Fifty of the old bonds were lost, and cannot be produced. Hamilton G. Fant, claiming to be the owner of them, filed with the master in this cause the evidence of his title, and of their loss, and asks that their distributive share of the new bonds may be given to him. Of the remainder there were presented to the master by W. A. Coit, five; H. G. Fant, four; R. F. Baldwin, sixty; George E. Jarvis, five. The other thirty are claimed by William E. Edmonds, and they have never been presented to the master.

Each of the persons presenting the bonds claims them either as owner or as pledgee; and Fant claims to have an assignment of the whole, as security for moneys loaned to Stewart, or for obligations incurred on his account. Stewart disputes the claims of all the different holders, including Fant, and insists that he is entitled to a decree awarding to him all the new bonds now remaining with the company, to carry out the settlement as finally concluded.

None of the persons filing the bonds with the master, or asking an order of distribution in their favor, are parties to the suit, to such an extent or in such a manner that their title can be litigated and determined here. They come in only for the purpose of surrendering their bonds and receiving in exchange their respective shares of the fund produced by the settlement. Stewart may resist their recovery; but he cannot by their presentation of the bonds secure the possession and control of them, and then upon the surrender claim for himself the stipulated equivalent in exchange.

The company is not bound to make the exchange until the surrender is perfected. It is not required to litigate titles for Stewart,-that he must do for himself. When that is done, if he secures the control of the bonds, he may be entitled to call upon the company to carry out its contract of exchange. But until then, he is in no condition to insist upon performance. The contract on the part of the company was to make the exchange upon the surrender of all the old bonds. It is not required to deal with the individual owners separately, but only to accept the surrender of all, and give the new bonds in exchange. So far as it has gone, however, it is bound by what it has done; but it is not under obligations to go further in that direction. Until, therefore, Stewart surrenders all the remaining outstanding bonds, or makes satisfactory proof of their loss, and furnishes security against the further liability of the company to any other holder, he cannot require it to give him the balance of the new bonds which it still holds for exchange.

The decree of the State court having been entered by consent, and in part performance of the agreement of settlement, is not a bar to a suit for an appropriation of the fruits of the settlement. The outstanding bonds are still binding upon the company to the extent that may be necessary to enable the owners of them to secure the benefit of the consideration agreed to be paid for their cancellation. The present holders, though not parties to the suit in which the decree was entered, are at liberty to treat the settlement as made for their benefit, and to act accordingly.

The view we have taken of the case makes it unnecessary to inquire whether the contract stated in the bill is the same as that which has been proven. The evidence as it stands is not sufficient to entitle Stewart to recover upon either. Both that averred and that proved require him to surrender his bonds for cancellation before he can demand the new ones in exchange. That he is unable to do; and, consequently, at this time he is not entitled to the decree he asks. It is unnecessary to determine what would be his rights if all the adverse claimants were in court, so that a decree could be entered which would settle their conflicting claims as between each other, and protect the company against further liability. They are not here, and any decree rendered against them in favor of Stewart would not be binding upon them without their consent.

This disposes of the case; but we feel it our duty to call attention to the very unsatisfactory manner in which the record has been made up and sent here for the purposes of this appeal. It contains nearly twelve hundred printed pages, and is full of irrelevant matter and useless repetitions. All that is material for the proper presentation of the cause might easily have been put into one-fourth the space. It opens with a copy of the bill, occupying seventeen pages; and immediately following this is a certified copy of the same bill, attached to the return of the service of a subpoena upon one of the corporation defendants, as to which the suit was subsequently dismissed. The proposition made by Stewart on the 6th of January, 1866, and which is claimed to have been the basis of the contract sued upon, is copied no less than ten times, and an affidavit of his, which occupies seventeen pages, is copied three times within a space of seventy pages. These are but specimens of the gross irregularities with which the record abounds. In addition to this, the matter is not well arranged, and the index is almost useless. We have long suffered from the want of attention of parties, or their counsel, and the incapacity, not to say dishonesty, of clerks below in matters of this kind, and deem this a proper occasion for applying the remedy for such neglect or abuse. We are at a loss to determine whether the complainant or defendant is most to blame for the irrelevant matter which has been introduced into this case; but it is clearly the duty of the party who takes an appeal to see to it that the record is properly presented here. Care should be taken that costs are not unnecessarily increased by incorporating useless papers, and that the case is presented fairly and intelligently. While, therefore, the decree in this case will be reversed, each party will be required to pay his own costs in this court. We shall not hesitate to apply the same remedy hereafter in cases where the circumstances are such as to require it. Under rule 24, par. 3, the court below will be required, when the mandate goes down, to tax the costs of the transcript of the record below as part of the costs in the case. That court will then have an opportunity, if it sees fit, of making an order in respect to the amount its clerk shall be permitted to charge.

It is not easy to prescribe by rule what a record in all cases shall contain or what shall be excluded; but rule 52 in admiralty contains suggestions which may serve as an appropriate guide in cases at law or in equity.

The decree of the Circuit Court will be reversed, and the cause remanded with instructions to enter a decree dismissing the bill without prejudice of the right of the complainant or the holders of the construction bonds, which are the subject of the action, to commence another suit to enforce the alleged contract of settlement, whenever they shall be in a condition so to do. Each party to these appeals is required to pay his own costs in this court; and it is

So ordered.


text: Talk:Railway Company v. Stewart/Opinion of the Court


text:
Cambuston v. United States

MOTION by the United States to dismiss an appeal from the District Court of the United States for the District of California.

The facts are stated in the opinion of the court.

The motion was submitted on printed arguments by the Solicitor-General for the United States, and by Mr. Edmond L. Goold for the appellant.

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

title: Cambuston v. United States


text: Talk:Cambuston v. United States

title: Talk:Cambuston v. United States


text:
Cambuston v. United States/Opinion of the Court

This is an appeal from the District Court of the United States for the District of California, in a proceeding under the 'Act to ascertain and settle the private land claims in the State of California,' passed March 3, 1851. 9 Stat. 631. The case was here at the December Term, 1857, when a former decree of the District Court was reversed, and the cause sent back for further hearing. United States v. Cambuston, 20 How, 59. The mandate was filed in the court below, May 5, 1859, and the further hearing resulted in a decree, Nov. 12, 1859, rejecting the claim. The court adjourned for the term on the first Monday in December, 1859, previous to which time no motion for a new trial or petition for rehearing had been filed.

On the 24th of February, 1860, Lansing B. Mizner, as 'a party in interest,' filed with the clerk of the court a petition for rehearing. What his interest actually was nowhere appears in the record. A copy of this petition was served on the district attorney of the United States the same day the original was filed in the clerk's office; and, March 13, 1860, the district attorney and the attorney for the claimant entered into the following stipulation:--

'It is hereby stipulated that Tully R. Wise, acting United States district attorney, waived written notice to him of a motion to be made for a new trial during the term of the United States District Court, ending the first Monday in December last, and that he considered a verbal notice of intention to move as sufficient to him, and then given to him, the said Wise. It is further stipulated, that, if the said Henry Cambuston now has the right to have the said motion heard, it shall not be prejudiced by delay until the return of the Hon. Ogden Hoffman.'

Nothing further was done until April 2, 1875, when the widow of Cambuston-he having died Jan. 22, 1869-appeared in court and asked to 'be permitted to become the party claimant of the land,' as executrix of the will of her deceased husband, which had been admitted to probate May 3, 1869. An order to this effect was made April 3, 1875, and on the same day the claimant asked that a new trial be granted, and that the decree rejecting the claim might be reversed. The parties thereupon appeared, and, after hearing, the court denied the motion. On the same day, April 3, 1875, this appeal was allowed, both from the final decree and the order refusing a new trial. The United States now move to dismiss the appeal, because taken too late.

The statute in force when the decree was rendered provided that writs of error and appeals should not be brought to this court except within five years after passing or rendering the decree or judgment complained of. 1 Stat. 85, sect. 22. As this decree was rendered Nov. 12, 1859, and the appeal not taken until April 3, 1875, it is clear that the motion to dismiss should be granted, unless the petition for rehearing or motion for a new trial § spended the operation of this statute.

In Brockett v. Brockett, 2 How. 238, it was held that a petition for rehearing filed during the term, and actually entertained by the court, suspended the operation of a decree in equity until the petition was disposed of. Neither the petition for a rehearing nor the motion for a new trial in this case was filed, or the attention of the court in any manner called to such a proceeding, during the term at which the decree was rendered. The proceeding before the District Court was statutory, and not at common law or in equity. It was, however, a suit, and must be governed by the rules of law applicable to that class of judicial proceedings. Consequently, when the term closed at which the decree was rendered, the parties were out of court, and the jurisdiction ended so far as that court was concerned, no steps having been taken to keep it alive. The decree was then in full force and operative for all purposes.

According to the practice in suits at common law and in equity, no step has since been taken which can have the effect of suspending the decree for the purpose of an appeal. By sect. 726 of the Revised Statutes, the courts of the United States are empowered to grant new trials in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law; and by sect. 987, when a Circuit Court enters judgment in a civil action, either upon a verdict or on a finding of the court upon the facts, execution may, on motion of either party, at the discretion of the court, and on such conditions for the security of the adverse party as it may judge proper, be stayed forty-two days from the time of entering judgment, to give time to file in the clerk's office of the court a petition for a new trial. If such petition is filed within such term of forty-two days, with a certificate thereon of any judge of the court that he allows it to be filed, execution shall, of course, be further stayed until the next session of the court. from this legislation it is apparent that it was not the policy of Congress to suspend the operation of a judgment so as to allow an application for a new trial in any case beyond a period of forty-two days from the time of its rendition. Here judgment was rendered Nov. 12, 1859, and the petition for rehearing was not filed until one hundred and twenty-five days thereafter. The stipulation between counsel, under date of March 13, 1860, was not that a motion for new trial had been filed, but that notice of an intention to make such a motion had been given; and that, if a hearing could then be had, it should not be prejudiced by further delay until the return of the district judge. This application seems never to have been brought to the attention of the court. It is unnecessary to decide whether such a motion can be filed after the term has closed, if no application is made during the term for stay of execution under the statute or for an extension of time to prepare the motion.

In suits in equity the practice is even more strict. Equity rule 88 provides that, in cases where an appeal lies to this court, no rehearing shall be granted after the term at which the final decree shall have been entered and recorded.

We are clearly of the opinion, therefore, that the appeal from the decree of Nov. 12, 1859, was not taken in time, and as no appeal lies from the order refusing the new trial,-Warner v. Norton et al., 20 How, 448,-it follows that the motion to dismiss must be granted; and it is

So ordered.


text: Talk:Cambuston v. United States/Opinion of the Court


text:
Beckwith v. Talbot

ERROR to the Supreme Court of the Territory of Colorado

The facts are stated in the opinion of the court.

Mr. William H. Phillips for the plaintiff in error.

No counsel appeared for the defendant in error.

MR. JUSTICE BRADLEY delivered the opinion of the court.

title: Beckwith v. Talbot


text: Talk:Beckwith v. Talbot

title: Talk:Beckwith v. Talbot


text:
Beckwith v. Talbot/Opinion of the Court

This was an action brought by Talbot against George C. Beckwith in the District Court of Colorad for the County of Fremont, to recover damages for the breach of a contract alleged to have been made on the 7th of October, 1870, between the plaintiff and two others on the one part, and the defendant on the other, whereby they were to herd and care for a large herd of cattle for the defendant, from that time until the fifth day of December, 1872, for which he was to give them one-half of what the cattle and their increase should then bring over, $36,681.60; that is, to each one-third of such half. The declaration alleged that the plaintiff and the two persons who entered into the contract together with him (who were the sons of the defendant) performed their part of it, but that the defendant refused to sell the cattle, or to pay the plaintiff his share of their value above the said sum.

On the trial, two defences were relied on which are made the subject of assignments of error here: First, that the alleged contract was void but the Statute of Frauds, because, though not to be performed within a year, it was not in writing signed by the defendant; secondly, that it was a joint contract on which the plaintiff could not maintain a separate action.

The territorial Statute of Frauds declares that 'every agreement which by its terms is not to be performed within a year, unless some note or memorandum thereof be in writing and subscribed by the party chargeable therewith, shall be void.' The verbal difference between this statute and that of Charles II. is not material in this case.

It appeared on the trial that the agreement made by the parties was committed to writing at the defendant's instance, and was in the following words, to wit:--

'WET MOUNTAIN VALLEY, Oct. 7, 1870.

'This is to certify that the undersigned have taken two thousand two hundred and five head of cattle, valued at $36,681.60 on shares from George C. Beckwith; time to expire on the fifth day of December, 1872; then George C. Beckwith to sell the cattle and retain the amount the cattle are valued at above. Of the amount the cattle sell at over and above the said valuation, George C. Beckwith to retain one half, and the other half to be equally divided between C. W. Talbot, and Elton T. Beckwith, and Edwin F. Beckwith.

(Signed) 'C. W. TALBOT.

'ELTON T. BECKWITH.

'EDWIN F. BECKWITH.'

This agreement was signed by the plaintiff and the two young Beckwiths, but was not signed by the defendant. It was delivered to him, however, and was kept by him until he produced and proved it on the trial. It was conceded by both parties that this was the agreement under which the services of the plaintiff were performed.

Two letters written by the defendant to the plaintiff on the subject-matter of the contract, and whilst he had the said agreement in his possession, and whilst it was being executed by the plaintiff, namely, one on the 21st of September, 1872, and the other on the 10th of November, 1872, were also produced in evidence; from which the following are extracts:--

'DENVER, Sept. 21, 1872.

'MR. TALBOT, SIR,-On my arrival from the mountains, I received your letter. As I have wrote you before, every day I see parties here that is offering their cattle very low. . . . I have used every exertion for the last three months to sell. . ..

'You suggest giving you a part of the cattle. That is entirely outside of the agreement. Also, where would be the interest on the amount put in the cattle coming from? And also Elton and Edwin would be glad to do the same; but at that rate I would not get my money back I put into the cattle.

'The cattle must be sold and settled up according to the agreement. I will do every thing I can to sell at the best advantage, and you shall have every chance to get a purchaser for the cattle so as to make the most out of them. . ..

'You shall have no chance to complain in my keeping up to the agreement, as I shall strictly, although I have heard you have made complaints to parties, which I think is very unfair, and the parties you told so said so too. ..

'Yours re pectfully,

GEORGE C. BECKWITH.'

'DENVER, Nov. 10, 1872.

'MR. TALBOT, SIR,-At first I thought it useless to answer your letter, as I am bound by the agreement to sell the cattle in a very short time. . . I notified you to get a purchaser for the cattle months ago; and what have I received from you in return and for my pay? I must say I have never been treated so meanly by a man in my life. My rights was to sell the cattle. Does the agreement say that I was to say any thing to you or any one else?

'But what next? You quarrelled with me because I would not break the agreement and give you the cattle to sell at figures less than I had kept them in Denver for sale. Now, I have been offered $31,000 for the cattle. I have written to Edwin, and he will state to you what I wrote him to say to you.

'Yours, in haste,

GEORGE C. BECKWITH.'

We agree with the Supreme Court of Colorado that, in the face of this evidence, produced by the defendant himself, he cannot deny the validity of the agreement. His letters are a clear recognition of it. In them he refers to 'the agreement' again and again. He declares his intention to adhere to it, and to hold the plaintiff to it. What agreement could he possibly refer to but the only one which, so far as appears, was ever made: the one which he took into his possession, and then had in his possession; the one under which it was conceded the parties were then acting? The defendant, being examined as a witness on his own behalf, and testifying with regard to the contract between the parties, said, 'The matter was all talked over, and, I thought, understood. I said to my son Elton, 'You understand the matter. Will you take a pen and paper and write the contract?' He wrote it. Talbot read it and signed it, and then my sons signed it.' On cross-examination, he said, 'The contract was delivered to me after it was signed, and has remained in my possession ever since until this trial.'

It is undoubtedly a general rule that collateral papers, adduced to supply the defect of signature of a written agreement under the Statute of Frauds, should on their face sufficiently demonstrate their reference to such agreement without the aid of parol proof. But the rule is not absolute. Johnson v. Dodgson, 2 Mee. & W. 653; Salmon Falls Co. v. Goddard, 14 How. 446. There may be cases in which it would be a violation of reason and common sense to ignore a reference which derives its significance from such proof. If there is ground for any doubt in the matter, the general rule should be enforced. But where there is no ground for doubt, its enforcement would aid, instead of discouraging, fraud. Suppose an agreement be made out and signed by one of the parties, the other being absent. On the following day, the latter writes to the party who signed it as follows: 'My son informs me that you yesterday executed our proposed agreement, as prepared by J. S. I write this to let you know that I recognize and adopt it.' Would not this be a sufficient recognition, especially if the parties should act under the agreement? And yet parol proof would be required to show what agreement was meant. The present case is as strong as that would be. In our judgment, the defendant, unless he could show the existence of some other agreement, was estopped from denying that the agreement referred to by him in his letters was that which he induced the plaintiff to sign, and which he put in his pocket and kept, and sought to enforce against the plaintiff for two whole years.

On this point, therefore, we are clearly of opinion that no error was committed by the court below.

The allegation that the plaintiff was interested jointly with the defendant's two sons, and, therefore, could not maintain a separate action for his equal share of the profits, is equally untenable. Their interests were separate. They were all employed and hired by the defendant to herd his cattle. The evidence shows that each supported himself, found his own assistance, and paid his own expenses. Each was to have as his compensation one-third of half the increased value of the cattle at the end of the employment. Neither was interested in the compensation due to the other. Sergeant Williams, in his note to Eccleston v. Clipsham, 1 Saund. 154, says, 'Though a man covenant with two or more jointly, yet if the interest and cause of action of the covenants be several and not joint, the covenant shall be taken to be several, and each of the covenantees may bring an action for his particular damage, notwithstanding the words of the covenant are joint.' In the present case, the cause of action was the service performed under the contract; and each performed his own distinct service, and was entitled to distinct and separate compensation therefor. The case is precisely within the category stated by the learned annotator. It is very similar also to that of Servante and Others v. James, 10 B. & C. 410, where the master of a vessel covenanted with the several part-owners to pay to them severally in certain proportions the moneys which he should receive from the government for carrying the mails; and it was held that the covenant inured to them severally and not jointly, because their interests were several. The case is also quite similar to that of an engagement with seamen for a whaling voyage, where each is to receive for his compensation a certain percentage of the profits of the voyage. Though they work together and in co-operation, they do not become partners, nor does either acquire any interest in the compensation of the others. The interest of each is separate.

In the present case, the material fact is that the plaintiff and his associates were employees, and not proprietors. They were in the service of the defendant, and employed in and about his property and business, and not their own. Hence they were not partners, either with each other or with him. They were not liable for any losses. The entire responsibility for these was on him. They were only interested in the losses as they might affect the amount of their ultimate compensation.

These considerations dispose of another point made by the plaintiff in error, though not distinctly assigned for error; namely, that the contract created a partnership between the defendant and the other parties to it. No such result was intended, nor does it follow from any fair construction of the contract. There was no community of interest in the capital employed, nor in the profits and losses. The cattle remained the entire property of the defendant. If the whole herd had perished by distemper, it would have been his loss alone, and the other parties would only have been interested in the loss of compensation for their services.

Judgment affirmed.

title: Beckwith v. Talbot/Opinion of the Court


text: Talk:Beckwith v. Talbot/Opinion of the Court


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Pearson v. Yewdall

MOTION by the defendant to dismiss the writ of error to the Supreme Court of Pennsylvania, and by the plaintiff to amend the writ, by making the city of Philadelphia a party thereto.

The facts are stated in the opinion of the court.

The motions were argued by Mr. F. Carroll Brewster for the plaintiff in error, and by Mr. William W. Wiltbank for the defendant in error.

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

title: Pearson v. Yewdall


text: Talk:Pearson v. Yewdall

title: Talk:Pearson v. Yewdall


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Author:Henry Enfield Roscoe

Works

 * Spectrum analysis: six lectures delivered in 1868 before the Society of Apothecaries of London
 * Elementary Chemistry, 1907

title: Author:Henry Enfield Roscoe


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Pearson v. Yewdall/Opinion of the Court

It having been suggested to us at the last term that the city of Philadelphia was a party to this cause in the court below, and adverse in interest to the plaintiffs in error, leave was granted the defendants in error to move to dismiss this suit, because the city is not named in the writ; and for the city to appear by counsel, to be heard in support of the motion. That motion has now been made; and the plaintiffs in error, while resisting it, ask leave, under sect. 1005 Rev. Stat., to amend their writ by naming the city as a defendant, in case it shall appear to be necessary.

The city councils, by ordinance, ordered that Paschall Street should be opened to public use. Thereupon the present defendants in error, owning property w ich would be taken by the opening, petitioned the Court of Quarter Sessions, conformably to the act of the General Assembly of Pennsylvania regulating such proceedings, to appoint proper persons to view the premises and assess their damages. In accordance with this petition, the court appointed a jury of six men to view the premises, and assess the damages which had been sustained. Notice of their appointment and of the time and place they would meet to perform their duties was served upon all the owners of property through which the street would run. Availing themselves of this notice, the plaintiffs in error appeared among others and presented their claims.

Notice of the meeting was also served, in accordance with the further provisions of the statute, upon the law department of the city; and the solicitor, who was charged by law with the duty of representing and protecting the interests of the city in all such matters, appeared before the jury in his official capacity. The viewers, after a hearing, made a report to the court of their allowances to the several claimants. The plaintiffs in error excepted to the report, for the reason, among others, that the amount awarded to them was too small; and the city also excepted, because it was too large. The Court of Quarter Sessions overruled the exceptions of both parties, and confirmed the report. The plaintiffs in error then appealed to the Supreme Court; and the report being there again confirmed, they now seek to bring the case here for review upon this writ.

There can be no doubt but that the city is an indispensable party to this suit. The viewers were appointed at the instance of the defendants in error; but they were appointed in a proceeding by the city, in its nature adverse to all the property owners affected, for an appropriation of private property to public use. It nowhere appears that the interests of the plaintiffs in error are adverse to those of the defendants in error. They were both property owners, and both seeking compensation for their property before it should be opened to the use of the public. The city alone represented the public, and was, therefore, the only party to the proceeding adverse to the claimants. Under such circumstances, we cannot properly review the judgment below in its absence.

The question now arises, whether the plaintiffs in error shall have leave to amend. Sect. 1005 of the Revised Statutes authorizes this court in its discretion, and upon terms as it may deem just, to allow an amendment of a writ of error when the statement of the parties thereto is defective. The right of a party to amend is not absolute, but it is to be granted by the court in its discretion. Whether it should be granted in a particular case must depend upon the attending circumstances.

In this case, we think the amendment ought not to be allowed. We have looked carefully through the record, and cannot find that any question is presented which has not been many times decided. We have held over and over again that art. 7 of the amendments to the Constitution of the United States relating to trials by jury applies only to the courts of the United States, Edwards v. Elliott, 21 Wall. 557; and in the act of the General Assembly of Pennsylvania, now under consideration, ample provision is made for an inquiry as to damages before a competent court, and for a review of the proceedings of the court of original jurisdiction, upon appeal to the highest court of the State. This is due process of law, within the meaning of that term as used in the Federal Constitution. To grant the amendment would, in our opinion, lead only to unnecessary delay and expense.

Writ dismissed.

title: Pearson v. Yewdall/Opinion of the Court


text: Talk:Pearson v. Yewdall/Opinion of the Court


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Transportation Line v. Hope

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

This was an action on the case by Hope, the plaintiff below, to recover damages for the loss of the canal barge or vessel 'Mary E. Loughney,' her cargo, and for freight there n. The plaintiff alleges, in substance, that he delivered the barge, valued at $3,000, to the defendant, to be towed, for a certain sum to be paid therefor, from Jersey City to New Haven; and that, by reason of gross and culpable negligence, and the want of ordinary care and skill of the defendant in towing and conducting the barge, she became totally lost. The defendant pleaded the general issue. The jury found for the plaintiff for $2,125.30; and, judgment having been rendered thereon, the defendant brought the case here.

The remaining facts, the charge as given and that refused, as well as the assignment of errors, are set forth in the opinion of the court.

Mr. J. C. Gray for the plaintiff in error.

No counsel appeared for the defendant in error.

MR. JUSTICE HUNT delivered the opinion of the court.

title: Transportation Line v. Hope


text: Talk:Transportation Line v. Hope

title: Talk:Transportation Line v. Hope


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Transportation Line v. Hope/Opinion of the Court

Hope, the plaintiff in the Circuit Court, sought to recover damages for the loss of his barge, which the defendants undertook to tow from Jersey City to New Haven, through Long Island Sound.

The barge was lost before reaching her destination; and the jury to which the case was submitted found a verdict for the plaintiff for $2,125.30 damages. This was based upon the theory of the negligence of the defendants in the performance of their duty.

With the general question of negligence we have nothing to do. The finding of the jury is conclusive upon that subject. It is only the specific allegations of error in the rulings or charges of the judge at the trial that we are called upon to consider.

These allegations are as follows: It is said that the court erred, first, in overruling the objection of defendant's counsel to the following question, asked of Patrick McCarty, a witness, by the counsel for the plaintiff: 'With your experience, would it be safe or prudent for a tug-boat on Chesapeake Bay, or any other wide water, to tug three boats abreast, with a high wind?'

The witness had testified that for many years he had been the captain of a tug-boat, and was familiar with the making up of tows; that he was a pilot, and had towed vessels on Long Island Sound, although he was not familiar with the Sound, but that he was familiar with the waters of the Chesapeake Bay.

The witness was an expert, and was called and testified as such. His knowledge and experience fairly entitled him to that position. It is permitted to ask questions of a witness of this class which cannot be put to ordinary witnesses. It is not an objection, as is assumed, that he was asked a question involving the point to be decided by the jury. As an expert, he could properly aid the jury by such evidence, although it would not be competent to be given by an ordinary witness. It is upon subjects on which the jury are not as well able to judge for themselves as is the witness that an expert as such is expected to testify. Evidence of this character is often given upon subjects requiring medical knowledge and science, but it is by no means limited to that class of cases. It is competent upon the question of the value of land, Clark v. Baird, 9 N. Y. 183; Bearss v. Copely, 10 id. 93; or as to the value of a particular breed of horses, Harris v. Panama Railroad Co., 36 N. Y. Superior Ct. 373; or upon the value of the professional services of a lawyer, Jackson v. New York Central Railroad Co., 2 Thomp. & C. (N. Y.) 653; or on the question of negligence in moving a vessel, Moore v. Westervelt, 9 Bosw. (N. Y.) 558; or on the necessity of a jettison, Price v. Hartshorn, 44 N. Y. 94. In Walsh v. Washington Marine Insurance Co., 32 id. 427, it was decided that the testimony of experienced navigators on questions involving nautical skill was admissible. The witness in that case was asked to what cause the loss of the vessel was attributable, which was the point to be decided by the jury. The court sustained the admission of the evidence, using this language: 'We entertain no doubt that those who are accustomed to the responsibility o command, and whose lives are spent on the ocean, are qualified as experts to prove the practical effect of cross-seas and heavy swells, shifting winds and sudden squalls.' The books give a great variety of cases in which evidence of this character is admissible, and we have no doubt of the competency of the evidence to which this objection is made.

Second, The defendants requested the court to charge the jury 'that the plaintiff's barge, the 'Mary E. Loughney,' was within the possession and the exclusive care and control of her owner; and the defendants, the Eastern Transportation Line, were not bailees of the boat, nor was the barge placed within their exclusive custody and control, and they were only liable for failure to use ordinary care and diligence.'

To which the court answered: 'By the contract between the parties, the defendants undertook to tow the plaintiff's barge from Jersey City to New Haven. As a necessary incident of this engagement, the defendants were entitled and were bound to assume supreme control and direction of the plaintiff's boat, and of the persons in charge of her, so far as was necessary to enable them to fulfil their engagement, and they were bound to exercise such degree of diligence and care as a prudent and skilful performance of the service for which they stipulated would require.'

The answer of the court properly defined the position of the parties. While it was very well to ask a charge that the transporter of the boat was not a bailee, and perhaps that the boat was not within his exclusive control, and that only ordinary care and diligence were required on his part, it was quite incorrect to ask a charge that the boat was within the possession and the exclusive care and control of her owner.

The transportation company did not occupy the position of a common carrier, and did not have that exclusive control of the barge which that relation would imply. It did not employ or pay the master and the men in charge of her, nor did it exercise that internal control of her cargo, its storage, its protection, and the like, which belonged to a bailee, and it was not bound to the extraordinary duties and liabilities of a common carrier. Alexander v. Greene, 3 Hill (N. Y.), 9.

It is, however, impossible to admit the proposition that the barge remained in the exclusive possession, care, and control of her owner; that is, that the transporter had not and could not take any, the slightest, care of her, and was not permitted to exercise the slightest control over her, and had no possession of her of any sort or character.

She could not be towed except by being taken in charge by the tug; that is, under its care and control and management. When the master of a tug undertakes to transport a barge, he must apply the means for that purpose. He must furnish motive power not only, but he must direct her location, whether on the part or the starboard side, whether she shall be the inside boat or the outside one, when and how she shall be lashed to other boats, with what fastenings she shall be secured as she is dragged through the water, whether she shall go fast or slow, when, if at all, she shall drop astern, when she shall go to harbor, how long remain there, and what shall be her course of navigation. These tows consist at times of thirty or forty boats; and they must all be under one head, and subject to one judgment, which is that of the transporter. Whether this judgment was carefully and skilfully exercised in this case formed the question which was passed upon by the jury. It is extremely inaccurate to say that one who does, and who must do, all these things is not while doing them in the exercise of the slightest possession or care or control over such vessel. The charge of the judge, on the contrary, that the transporter had the supreme control of the barge, so far as it was necessary to enable it to fulfil its contract to tow the barge, was correct.

If a request to charge contains one unsound proposition, it is not error to r fuse to make the charge, although it contains many sound propositions. Beaver v. Taylor et al., 93 U.S. 46.

Third, The two objections following may be considered together. They are as follows:--

1. The court below erred, it is said, in allowing the following request to charge of plaintiff below: 'If the plaintiff was placed in peril by the negligence of the master of defendant's tug, and jumped from his boat, reasonably supposing it was going to sink, the plaintiff may recover in this action, although the fact of plaintiff's leaving his boat increased its peril.' This was allowed and given by the court.

2. The court below erred in its answer to the sixth request of the defendant below.

The request was: 'If the jury believe that the conduct of the plaintiff was such as to leave his boat for any time without being under the care or control of any one, the result of which was to contribute to her loss, then the jury should find for the defendants.'

The court answered: 'As an abstract proposition, this is true. But if the plaintiff's boat was left in the condition stated, under circumstances which involved imminent peril to the lives of those who remained on board of her, or warranted a reasonable apprehension of such peril, they were justified in abandoning her, and by so doing were not guilty of contributory negligence.'

The boat of the plaintiff was in danger of sinking; he believed the danger to be imminent, and to save his own life jumped from his boat to the tug, leaving his boat without the care or control of any one on board of his boat.

The counsel for the transportation company does not seriously argue that the plaintiff was bound to remain on his boat when it was probable that she would immediately sink, or that a reasonable apprehension of imminent peril to his own life did not justify his abandonment so as to avoid the charge of contributory negligence. He argues that the peril was not imminent in fact, and again that the peril was due to the plaintiff's previous misconduct or negligence, and that there is a failure to define the connection between the peril and any previous negligence.

None of these points are embraced within the requests made or the charge given. There was evidence to sustain the plaintiff's theory of imminent peril, and the judge submitted to the jury the reasonableness of his apprehension. The previous negligence of the party, if any, its connection with the peril, and the law upon that subject, are not alluded to either in the requests we are considering or in the answer given to them. The charges are fairly as well as correctly given in response to the requests made. If the defendant desired additional or more specific instructions, he should have asked for them.

The last objection is, that the judge charged the jury as follows, viz.: 'If you conclude, after careful consideration of all the evidence, after the instructions we have given you, that the plaintiff is entitled to recover, you will find a verdict in his favor for the value of the barge, as it has been shown by the proofs, and for the net amount of the freights; that is, I believe, $1,800, as shown, aside from the testimony of the plaintiff himself, to have been the value of the barge at the time, and $90, the net amount of the freight, so that these two amounts are the sums which the plaintiff is entitled to recover, if you are satisfied that he is to recover at all.'

This objection is not a serious one. 1. It may be doubted whether the judge undertakes to interfere with the province of the jury by charging them that the value of the vessel was $1,800, and that of the freight $90, as is assumed in the argument. He simply expresses his belief or his opinion that such is the value proven. He says, 'That is, I believe, $1,800, as shown, aside from the testimony of the plaintiff himself.' So when he adds, 'These two sums are the amounts which the plaintiff is entitled to recover, if you are satisfied that he is entitled to recover at all,' it is a part of the same expressio of opinion. An expression of an opinion simply by a judge upon a question of fact is not a ground of error. Durkee v. Marshal, 7 Wend. (N. Y.) 312; Dow v. Rush, 28 Barb. (N. Y.) 157; Powell v. Jones, id. 24.

2. When the attention of the judge was called to the matter by the defendant's exception, the record adds these words: 'The judge did not undertake to fix the value of the barge, but merely referred to the proof relating to it, and said the jury would be justified in finding accordingly.' There could be no misunderstanding by the jury after this explanation.

3. If there was an error in this respect, it was quite harmless. It fixed for the jury, upon the assumption claimed, the sum required by the testimony to be found. There was no conflicting evidence on the subject. There are no circumstances which would justify any finding for a less sum than that indicated by the judge. It was the absolute duty of the jury, upon the evidence, to find not less than that named sum if they found for the plaintiff, and a different verdict might have been set aside as against the evidence. A verdict, under these circumstances, will not be disturbed by an error of this character. Corning v. Troy Iron and Nail Factory, 44 N. Y. 577.

Upon the whole case, we are of the opinion that the record shows no error.

Judgment affirmed.


text: Talk:Transportation Line v. Hope/Opinion of the Court


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Ould v. Washington Hospital for Foundlings

ERROR to the Supreme Court of the District of Columbia.

This is an action of ejectment by the plaintiffs in error, who were plaintiffs below, to recover fourteen lots of ground, being part of square numbered two hundred and seven in the city of Washington. The defendant pleaded not guilty. The case was tried upon the following agreed statement of facts:--

The defendant, the Washington Hospital for Foundlings, admits,--

First, That Joshua Peirce, late of the District of Columbia, died on the eleventh day of April, 1869.

Second, That he died seised of the real estate set forth and described in the plaintiffs' declaration.

Third, That the plaintiffs, Elizabeth C. Ould, Elizabeth C. Beardsley, Samuel Simonton, Abnor P. Simonton, David S. Simonton, John E. Simonton, Hannah P. Jackson, Eliza F. Tibbetts, Abner C. P. Shoemaker, and Peirce Shoemaker, are the heirs-at-law, and the only heirs-at-law, of said Peirce.

The plaintiffs admit,-

First, That said Peirce, on the fifteenth day of October, 1867, duly executed his last will and testament, commencing as follows:--

'I, Joshua Peirce, of the county of Washington, in the District of Columbia, do make this my last will and testament in manner and form following.'That following this is a revocation of other wills, then a provision for the payment of debts, then several specific devises, and then the fourteenth item, in the following words:--

'Fourteenth, I give, devise, and bequeath all those fourteen certain lots or pieces of ground, part of square numbered two hundred and seven, situate between R and § Streets north and Fourteenth and Fifteenth Streets west, in the said city of Washington, in the District of Columbia; which lots are numbered from number twenty-four to number thirty-seven, inclusive, on a certain plan of subdivision of the said square, registered and recorded in the surveyor's office for the said city, in liber W F, folio 211, and are situate on the east side of the said Fifteenth Street, at the distance of one hundred and sixty feet northward from the north side of the said R Street north, containing together in front on the said Fifteenth Street west one hundred and thirty feet, and in depth eastward between parallel lines two hundred and ninety-four feet and a half inch, more or less, to Johnson Avenue (including in the said depth a twenty-feet-wide alley, laid out through the middle of the said lots), to my friends, William M. Shuster and William H. Clagett, both of the said city of Washington, and the survivor of them, an the heirs, executors, administrators, and assigns of such survivor, in trust, nevertheless, and to, for, and upon the uses, intents, and purposes following, that is to say: In trust to hold the said fourteen lots of ground with the appurtenances as and for a site for the erection of a hospital for foundlings, to be built and erected by any association, society, or institution that may hereafter be incorporated by an act of Congress as and for such hospital, and upon such incorporation upon further trust to grant and convey the said lots of ground and trust-estate to the corporation or institution so incorporated for the said purpose of the erection of a hospital, which conveyance shall be absolute and in fee: Provided, nevertheless, that such corporation shall be approved by my said trustees, or the survivor of them, or their successors in the trust; and, if not so approved, then upon further trust to hold the said lots and trust-estate for the same purpose, until a corporation shall be so created by act of Congress, which shall meet the approval of the said trustees, or the survivor or successors of them, to whom full discretion is given in this behalf; and, upon such approval, in trust to convey as aforesaid; and I recommend to my said trustees to select an institution which shall not be under the control of any one religious sect or persuasion; and, until such conveyance, I direct the taxes, charges, and assessments, and all necessary expenses of, for, and upon the said lots, and every one of them, to be paid by my executors, as they shall from time to time accrue and become due and payable, out of the residue of my estate.'

That following this is a devise of the 'rest, residue, and remainder' of the testator's estate, 'real and personal, including his estate called Linnaean Hill,' in trust to trustees for the use of the testator's wife's nephew in tail with a devise over.

Second, That on the twenty-second day of June, 1869, the said will was duly proved and admitted to probate in the Orphans' Court of the District of Columbia.

Third, That on the twenty-second day of April, 1870, Congress passed an 'Act for incorporating a hospital for foundlings in the city of Washington,' 16 Stat. 92; and that on the fourth day of April, 1872, said Shuster and Clagett, trustees, conveyed the property described in the declaration and the above fourteenth item of the will to the defendant, so incorporated in conformity with the directions of the testator.

The court below found for the defendant, whereupon the plaintiffs brought the case here.

Mr. Benjamin F. Butler and Mr. O. D. Barrett, for the plaintiffs in error.

The devise was not an immediate gift to a charity, but an executory devise for charitable purposes. 3 Greenl. Cruise on Real Prop. 444, sects. 1, 2; 2 Redfield on Wills, c. 2, sect. 17; Williams on Real Prop. 290, 291; Powell on Devises, 250, 287; Nightingale v. Burrell, 15 Pick. (Mass.) 104.

It is therefore governed by the same rules as to perpetuities as are executory devises for any other purpose, and is void, as at the death of the testator a possibility existed that it might not vest in the prescribed corporation within twenty-one years, or, at furthest, a life or lives in being and twenty-one years. 1 Jarman on Wills, 233; 2 Redfield on Wills, 571, sect. 14; Williams on Real Prop. 294, 301; 3 Greenl. Cruise on Real Prop. 454, sect. 23; Everitt v. Everitt, 29 Barb. (N. Y.) 118; Stephens et al. v. Evans, Adm'x, 30 Ind. 51; Sears v. Russell, 8 Gray (Mass.), 98; Phelps v. Pond, 23 N. Y. 69; Sinnett v. Herbert, L. R. 7 Ch. 240; Barnes v. Barnes, 3 Cranch, 269; Brattle Square Church v. Grant, 3 Gray (Mass.), 142; 4 Kent, Com. 267; 1 Jarman on Wills, 221; 4 Cruise, Dig., tit. 32, c. 24, sect. 18; Nightingale v. Burrell, supra; Cadell v. Palmer, 1 Ho. of L. Cas. 372; 2 Atkinson on Conveyancing (2d ed.), 264; Bacon v. Proctor, 1 Turn. & R. 31; Mac worth v. Hinxman, 2 Keen, 659; Ker v. Lord Dungannon, 1 Dr. & War. 509; Commissioners of Charitable Donations v. Baroness De Clifford, id. 245; Lewis on Perpetuities, 169; Duke of Norfolk v. Howard, 1 Vern. 163; Welsh v. Foster, 12 Mass. 97.

The devise is void on account of the uncertainty of its object. Baptist Association v. Hart's Ex., 4 Wheat. 1; Coltman et al. v. Moore et al., 1 McArthur, 197; Lingan v. Carroll, 3 Har. & M. (Md.) 333; Dashiell et al. v. The Attorney-General, 5 Har. & J. (Md.) 898; Dashiell v. The Attorney-General ex rel., 6 id. 1; Wilderman v. Baltimore, 8 Md. 551; Board of Missions of the Presbyterian Church v. White's Adm'rs, 4 Am. Law Reg. 531; Wheeler v. Smith et al., 9 How. 76.

A foundling hospital is not a charity. Since the first foundation at Milan, in 787, such institutions have rapidly multiplied in every part of Europe. The waste of human life which they have occasioned, and the injury they have done to public morals, render it probable that they will at no distant period be everywhere suppressed. The statistics of France show that they have produced frightful immorality and mortality, and that it is 'not poverty, but luxury, which produces exposures.' In England, the entire system of the foundling hospital has been altered. Brande's Dict., vol. i. 925.

Mr. Walter S.C.ox and Mr. James M. Johnston, contra.

MR. JUSTICE SWAYNE delivered the opinion of the court.


text: Talk:Ould v. Washington Hospital for Foundlings


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Ould v. Washington Hospital for Foundlings/Opinion of the Court

This case was submitted to the court below, upon an agreed statement of facts.

The court found for the defendant, and gave judgment accordingly. The plaintiffs thereupon sued out this writ of error. The questions presented for our consideration are questions of law arising upon the will of Joshua Pierce, deceased. The will declares:-- 'I give, devise, and bequeath all those fourteen certain lots' (describing fully the premises in controversy) 'to my friends, William M. Shuster and William H. Clagett, of the said city of Washington, and the survivor of them, and the heirs, executors, administrators, and assigns of such survivor, in trust, nevertheless, and to and for and upon the uses, intents, and purposes following, that is to say: In trust to hold the said fourteen lots of ground, with the appurtenances, as and for a site for the erection of a hospital for foundlings, to be built and erected by any association, society, or institution that may hereafter be incorporated by an act of Congress as and for such hospital, and upon such incorporation, upon further trust to grant and convey the said lots of ground and trust-estate to the corporation or institution so incorporated for said purpose of the erection of a hospital, which conveyance shall be sbsolute and in fee: Provided, nevertheless, that such corporation shall be approved by my said trustees, or the survivor of them, or their successors in the trust; and, if not so approved, then upon further trust to hold the said lots and trust-estate for the same purpose, until a corporation shall be so created by act of Congress which shall meet the approval of the said trustees or the survivor or successors of them, to whom full discretion is given in this behalf; and, upon such approval, in trust to convey as aforesaid; and I recommend to my said trustees to select an institution which shall not be under the control of any one religious sect or persuasion; and, until such conveyance, I direct the taxes, charges, and assessments, and all necessary expenses of, for, and upon said lots, and every one of them, to be paid by my executors, as they shall from time to time accrue and become due and payable, out of the residue of my estate.'

The will was duly proved and admitted to probate in the proper court in the District of Columbia, on the 22d of June, 1864. On the 22d of April, 1870, Congress passed 'An Act for incorporating a hospital for foundlings in the city of Washington.' 16 Stat. 92. On the 4th of Apri, 1872, Shuster and Clagett, the trustees, conveyed the property to the defendant in error, the Washington Hospital for Foundlings, so incorporated, pursuant to the directions of the will.

The Statute of Wills of Maryland of 1798, which is still in force in the District of Columbia, provides that 'no will, testament, or codicil shall be effectual to create any interest or perpetuity, or make any limitation or appoint to any uses not now permitted by the Constitution or laws of the State.' 2 Kilty's Laws of Md., c. 101.

Our attention has been called in this connection to nothing in the Constitution, and to nothing else in the laws of the State, as requiring consideration. No statute of mortmain or statute like that of 9 Geo. II., c. 36, is an element in the case.

The statute of 43 Eliz., c. 4, was never in force in Maryland. Dashiell v. Attorney-General, 5 Har. & J. (Md.) 392. It is not, therefore, operative in the District of Columbia.

The opinion prevailed extensively in this country for a considerable period that the validity of charitable endowments and the jurisdiction of courts of equity in such cases depended upon that statute. These views were assailed with very great learning and ability in 1833, by Mr. Justice Baldwin, in McGill v. Brown. Bright. (Pa.) 346. An eminent counsel of New York was the poineer of the bar in 1835 in a like attack. His argument in Burr's Executors v. Smith, 7 Vt. 241, was elaborate and brilliant, and, as the authorities then were, exhaustive. He was followed in support of the same view, in 1844, by another counsel no less eminent, in Vidal v. Philadelphia, 2 How. 128. The publication, then recent, of the Reports of the British Records Commission enabled the latter gentleman to throw much additional and valuable light into the discussion. The argument was conclusive.

In delivering the opinion of the court, Mr. Justice Story, referring to the doctrine thus combated, said, 'Whatever doubts might, therefore, properly be entertained upon the subject when the case of the Trustees of the Philadelphia Baptist Association was before the court (1819), those doubts are entirely removed by the later and more satisfactory sources of information to which we have alluded.'

The former idea was exploded, and has since nearly disappeared from the jurisprudence of the country.

Upon reading the statute carefully, one cannot but feel surprised that the doubts thus indicated ever existed. The statute is purely remedial and ancillary. It provided for a commission to examine into the abuses of charities already existing, and to correct such abuses. An appeal lay to the Lord Chancellor. The statute was silent as to the creation or inhibition of any new charity, and it neither increased nor diminished the pre-existing jurisdiction in equity touching the subject. The object of the statute wsa to create a cheaper and a speedier remedy for existing abuses. The Morpeth Corporation, Duke on Charitable Uses, 242. In the course of time, the new remedy fell into entire disuse, and the control of the chancellor became again practically sole and exclusive. The power of the king as parens patriae, acting through the chancellor, and the powers of the latter independently of the king, are subjects that need not here be considered. Fountain v. Ravennel, 17 How. 379; 2 Story, Eq. Jur., sect. 1190.

The learning developed in the three cases mentioned shows clearly that the law as to such uses, and the jurisdiction of the chancellor, and the extent to which it was exercised, before and after the enactment of the statute, were just the same.

It is, therefore, quite immaterial in the present case whether the statute was or was not a part of the law of Maryland. The controversy must be determined upon the general principles of jurisprudence, and the presence or absence of the statute cannot affect the result.

Two objections were urged upon our attention in the argument at bar.

1. That there is no specification of the found ings to be provided for, and that therefore the devise is void for uncertainty.

In this connection, it was suggested by one of the learned counsel for the plaintiffs in error that a hospital for foundlings tends to evil, and ought not to be supported.

2. That the devise is void because it creates a perpetuity.

The Statute of Elizabeth, before referred to, names twenty-one distinct charities. They are—

1. For relief of aged, impotent, and poor people. 2. For maintenance of sick and maimed soldiers. 3. Schools of learning. 4. Free schools. 5. Scholars in universities. 6. Houses of correction. 7. For repair of bridges; 8, of ports and havens; 9, of causeways; 10, of churches; 11, of sea-banks; 12, of highways. 13. For education and preferment of orphans. 14. For marriage of poor maids. 15. For support and help of young tradesmen, 16, of handicraftsmen; 17, of persons decayed. 18. For redemption or relief of prisoners or captives. 19. For ease and aid of poor inhabitants concerning payment of fifteens. 20. Setting out of soldiers; 21, and other taxes.

Upon examining the early English statutes and the early decisions of the courts of law and equity, Mr. Justice Baldwin found forty-six specifications of pious and charitable uses recognized as within the protection of the law, in which were embraced all that were enumerated in the statute of Elizabeth. McGill v. Brown, supra. It is deemed unnecessary to extend the enumeration beyond those already named.

A charitable use, where neither law nor public policy forbids, may be applied to almost any thing that tends to promote the well-doing and well-being of social man. Perry on Trusts, sect. 687.

In the Girard Will Case, the leading counsel for the will thus defined charity: 'Whatever is given for the love of God, or the love of your neighbor, in the catholic and universal sense, given from these motives and to these ends, free from the stain or taint of every consideration that is personal, private, or selfish.' Mr. Binney's Argument, p. 41.

The objection of uncertainty in this case as to the particular foundlings to be received is without force. The endowment of hospitals for the afflicted and destitute of particular classes, or without any specification of class, is one of the commonest forms of such uses. The hospital being incorporated, nothing beyond its designation as the donee is necessary. Who shall be received, with all other details of management, may well be committed to those to whom its administration is intrusted. This point is so clear, that discussion or the citation of authorities is unnecessary. Cases illustrating the subject in this view are largely referred to in Perry on Trusts, sect. 699, and in the note to sect. 1164, Story, Eq. Jur. See also id., sects. 1164, 1190, and notes.

Hospitals for foundlings existed in the Roman Empire. They increased when Christianity triumphed. They exist in all countries of Europe, and they exist in this country. There are no beneficiaries more needing protection, care, and kindness, none more blameless, and there are none who have stronger claims than these waifs, helpless and abandoned upon the sea of life.

A perpetuity is a limitation of property which renders it inalienable beyond the period allowed by law. That period is a life or lives in being and twenty-one years more, with a fraction of a year added for the term of gestation, in cases of post humous birth.

In this case, the devise was in fee to two trustees and to the survivor of them. They were directed to convey the premises to an eleemosynary corporation for foundlings, whenever Congress should create one which the trustees approved. If the will had been so drawn as itself to work the devolution of the title upon the happening of the event named, the clause would have been an executory devise. If the same thing had been provided for in a deed inter vivos, a springing use would have been involved; and such use would have been executed by the transfer of the legal title, whenever that occurre. The testator chose to reach the end in view by the intervention of trustees, and directing them to convey at the proper time. This provision in the will was, therefore, a conditional limitation of the estate vested in the trustees, and nothing more. Their conveyance was made necessary to pass the title. The duty with which they were charged was an executory trust. Amb. 552. The same rules generally apply to legal and to equitable estates. They are alike descendible, devisable, and alienable. Croxall v. Sherrerd, 5 Wall. 268. When such uses are consummated and no longer in fieri, the law of perpetuity has no application. Franklin v. Armfield, 2 Sneed (Ky.), 305; Dartmouth College v. Woodward, 4 Wheat. 518; Perrin v. Carey, 24 How. 465. It is intended that what is given shall be perpetually devoted to the purpose of the giver.

In the case last named, the will expressly forbade for ever the sale of any part of the devised property. This court held the inhibition valid. Of course, the legislature, or a court of equity under proper circumstances, could authorize or require a sale to be made. Stanley v. Colt, 5 Wall. 119.

There may be such an interval of time possible between the gift and the consummation of the use as will be fatal to the former. The rule of perpetuity applies as well to trust as to legal estates. The objection is as effectual in one case as in the other. If the fatal period may elapse before what is to be done can be done, the consequence is the same as if such must inevitably be the result. Possibility and certainty have the same effect. Such is the law upon the subject.

A devise to a corporation to be created by the legislature is good as an executory devise. A distinction is taken between a devise in praesenti to one incapable, and a devise in futuro to an artificial being, to be created and enabled to take. Angell & Ames on Corp., sect. 184; Porter's Case, 1 Co. 24; Attorney-General v. Bonyer, 3 Ves. 714; Inglis v. The Trustees of the Sailor's Snug Harbor, 3 Pet. 99; Sanderson v. White, 18 Pick. (Mass.) 328.

At common law, lands may be granted to pious uses before there is a grantee competent to take. In the mean time, the fee will lie in abeyance. It will vest when the grantee exists. Town of Pawlet v. Clark, 9 Cranch, 292. See also Beatty v. Kurtz, 2 Pet. 566, and Vincennes University v. Indiana, 14 How. 268.

Charitable uses are favorites with courts of equity. The construction of all instruments where they are concerned is liberal in their behalf. Mills v. Farmer, 19 Ves. 487; McGill v. Brown, supra; Perry on Trusts, sect. 709. Even the stern rule against perpetuities is relaxed for their benefit.

'But a gift may be made to a charity not in esse at the time, to come into existence at some uncertain time in the future, provided there is no gift of the property in the first instance, or perpetuity in a prior taker.' Perry on Trusts, sect. 736.

Archbishop Secker, by his will, gave 1,000 to trustees for the purpose of establishing a bishop in the British possessions in America. Mansfield, of counsel, insisted that, 'there being no bishop in America, or the least likelihood of there ever being one,' the legacy was void, and must fall into the residue. Lord Chancellor Thurlow said, 'The money must remain in court till it shall be seen whether any such appointment shall take place.' Attorney-General v. The Bishop of Chester, 1 Bro. C. C. 444.

A testator devised his real estate to trustees, in trust, with the rents and profits to purchase ground in Cambridge, proper for a college, and to build all such structures as should be necessary for that purpose (the college to be called 'Downing College'), and to obtain a royal charter for founding such college and incorporating it by that name, in the University of Cambridge. The trustees were to hold the premises devised to them 'in trust for the said collegiate body and their § ccessors for ever.' The devise was held to be valid. Attorney-General v. Downing, Amb. 550.

A sum of money was bequeathed to erect a blue-coat school and establish a blind asylum, with direction that land should not be purchased, and the expression of an expectation that lands would be given for the charities. In answer to the suggestion at the bar that the application of the fund might be indefinitely postponed, it was said, on the other side, that the court would fix a time within which the gift must take effect; and 2 Ves. 547, and 3 Atk. 806, were cited in support of the proposition.

The Vice-Chancellor said the cases of Downing College and the Attorney-General v. The Bishop of Chester seemed to be authorities against the objection, but that the point did not arise in the case before him. It was obviated by a codicil to the will, which appears to have been overlooked by the counsel on both sides. Henshaw v. Atkins, 3 Madd. 167. See also Philpot v. St. George's Hospital, 6 Ho. of L. Cas. 359. In this case, as in the one we are considering, the trustee was required to approve the designated charity before paying over the money.

A testator left a sum of money to build and endow a future church. The question was raised, but not decided, whether the court would hold the fund for an indefinite time. The Lord Chancellor said: 'A gift to a charitable purpose, if lawful, is good, although no object may be in existence at the time. This was expressly decided in Attorney-General v. Bishop of Chester, where the gift was for establishing a bishop in his Majesty's dominions in America,' &c. Sennet v. Herbert, Law Rep. 7 Ch. 237.

A testatrix, by her will, directed, among other things, that when and as soon as land should be given for the purpose as thereinafter mentioned, almshouses should be built in three specified places. She further directed that the surplus remaining, after building the almshouses, should be appropriated for making allowances to the inmates. It was held that the fund was well given, for that the gift to charity was not conditional and contingent, but that there was an absolute immediate gift to charity, the mode of execution only being made dependent on future events. Chamberlain v. Brocket, 8 Law. Rep. Ch. 1872-73, p. 206. The bearing of this authority upon the case in hand needs no remark. See also McIntyre Poor School v. Zanesville Canal Co., 9 Ohio, 203, and Miller v. Chittenden, 2 Iowa, 315; s. c. 4 id. 252. These were controversies relating to real estate. The same point as here was involved. Both gifts were sustained. The judgments are learned and able.

The last of this series of cases to which we shall refer is an adjudication by this court. The testator gave the residue of his estate, embracing a large amount of real property, to the Chancellor of the State of New York, the mayor and recorder of the city of New York, and others, designating them only by their official titles, and to their respective successors in office for ever, in trust to establish and maintain an asylum for aged, decrepit, and worn-out sailors, the asylum to be called 'The Sailors' Snug Harbor.' If the trustees so designated could not execute the will, they were to procure from the legislature an act of incorporation, giving them the requisite authority. Such an act was passed, and the institution was established. The heir-at-law sued for the property. This court held that the official designations were descriptio personarum, and that the trustees took personally. See Bac. Abr., Grant C; Owen v. Bean, Duke on Char. 486; Wellbeloved v. Jones, 1 Sim. & St. 40. Nothing was said as to the capacity of the successors to take. A special act of incorporation was deemed necessary. There being no particular estate to support the final disposition, the latter was held to be an executory devise. This court decided that the gift was valid. That upon the creation of the corporation the title to the property became vested i it, or that the naked legal title was held by the heir-at-law in trust for the corporation.

The points of analogy between that case and this are obvious. There, as here, a future corporation was necessary to give the devise effect. There, as here, there was a possibility that such a corporation might never be created. In both cases the corporation was created, and the intention of the testator was carried into full effect. It is a cardinal rule in the law of wills that courts shall do this whenever it can be done. Here we find no impediment in the way. The gift was immediate and absolute, and it is clear beyond doubt that the testator meant that no part of the property so given should ever go to his heirs-at-law, or be applied to any other object than that to which he had devoted it by the devise here in question.

There are numerous other authorities to the same effect with those last cited. The latter are abundantly sufficient to dispose of this case. It is, therefore, unnecessary to extend this opinion by pursuing the subject further.

Judgment affirmed.


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Hart v. United States (95 U.S. 316)

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

This suit was brought by the United States, May 29, 1872, against Hosmer, Hart, and Stahl, on a distiller's bond, executed by them May 29, 1871, in the sum of $5,000, and conditioned to be void if said Hosmer should faithfully comply with all the provisions of law relating to the duties and business of distillers, and pay all penalties incurred or fines imposed on him for a violation of any of said provisions, and should not suffer the tract or lot of land on which the distillery stood, or any part thereof, to be incumbered by mortgage, judgment, or other lien during the time in which he should carry on said business.

The breach alleged was the non-payment by said Hosmer of $3,000, demanded of him, being the amount of tax on six thousand gallons of spirits, which he had distilled after the first day of June, 1871. He made no defence. The other defendants filed three pleas: 1. That the bond was never delivered to the plaintiff; that the assessor had no authority of law to approve it; and that neither the collector nor any other officer of the plaintiff had authority to receive it. 2. That the bond was a common distiller's bond, and that they signed it merely as sureties for Hosmer, without consideration, and for his accommodation; that, six days before its execution, Hosmer, without their knowledge, incumbered the ground upon which the distillery stood, by his mortgage of the same to one Dempsey, which was duly recorded May 25, 1871; that the plaintiff did not require, nor did Hosmer file with the assessor, the written consent of Dempsey that the lien of the United States for taxes and penalties should have priority to the mortgage, and that the title should, in case of forfeiture, vest in the United States, discharged of said mortgage; nor was Hosmer required to, nor did he, execute an indemnity bond against said mortgage, as required by the act of Congress approved April 10, 1869, but that the bond sued on was approved without the filing of such consent or the taking of such indemnity bond; that, by reason of the non-payment by Hosmer of the taxes on distilled spirits which were chargeable, and a lien upon said ground, a part of it was distrained and sold for $6,100, which sum, if the amount of Dempsey's mortgage had not been deducted therefrom, would have been sufficient to pay Hosmer's indebtedness to the United States. 3. That the taxes charged and sued for were assessed against Hosmer on spirits he had distilled, and were a first and paramount lien thereon; but that the collector of internal revenue for the district, without the knowledge or assent of the defendants, and without first requiring the payment of the taxes thereon, permitted him to remove from the bonded warehouse a quantity of said spirits,-more than sufficient to pay any just claim of the plaintiff.

On motion of the plaintiff, all of the first plea, except so much as averred the non-delivery of the bond sued on, was stricken out. Demurrers to the second and third were sustained, whereupon the defendants excepted.

The court found that the bond in suit was signed May 29, 1871; that it was, on the first day of June, handed by Hosmer to the deputy-assessor of internal revenue, to be transmitted to the assessor, by whom it was approved June 5, and then duly transmitted by mail to the collector of the district.

There was a judgment for $3,048.40, and costs.

Hart and Stahl then sued out this writ of error.

Mr. James A. Garfield and Mr. A. G. Riddle for the plaintiffs in error.

Mr. Assistant Attorney-General Smith, contra.

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

title: Hart v. United States (95 U.S. 316)


text: Talk:Hart v. United States (95 U.S. 316)


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Hart v. United States (95 U.S. 316)/Opinion of the Court

The second defence relied upon in this case is disposed of by Osborne v. United States, 19 Wall. 577, which we are not inclined to reconsider.

The third defence is equally bad. Under the law as it stood when this suit was commenced, no distilled spirits could be removed from a distillery warehouse before payment of the tax, 15 Stat. 130, sect. 15, without subjecting all those engaged in such a removal to heavy penalties, id. 140, sect. 36. An officer of the United States had no authority to dispense with this requirement of the law. If in violation of his duty he permitted such a removal, he subjected himself to punishment, but did not bind the government by his acts. The government is not responsible for the laches or the wrongful acts of its officers. Gibbons v. United States, 8 Wall. 269; United States v. Kirkpatrick, 9 Wheat. 720; United States v. Vanzandt, 11 id. 184; United States v. Nicholl, 12 id. 505; Jones et al. v. United States, 18 Wall. 662. Every surety upon an official bond to the government is presumed to enter into his contract with a full knowledge of this principle of law, and to consent to be dealt with accordingly. The government enters into no contract with him that its officers shall perform their duties. A government may be a loser by the negligence of its officers, but it never becomes bound to others for the consequences of such neglect, unless it be by express agreement to that effect. Here the surety was aware of the lien which the law gave as security for the payment of the tax. He also knew that, in order to retain this lien, the government must rely upon the diligence and honesty of its agents. If they performed their duties and preserved the security, it inured to his benefit as well as that of the government; but if by neglect or misconduct they lost it, the government did not come under obligations to make good the loss to him, or, what is the same thing, release him pro tanto from the obligation of his bond. As between himself and the government, he took the risk of the effect of official negligence upon the security which the law provided for his protection against loss by reason of the liability he assumed.

There was no error in striking out that portion of the first defence which was objected to. It was not responsive to any allegation in the petition.

Judgment affirmed.


text: Talk:Hart v. United States (95 U.S. 316)/Opinion of the Court


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Shields v. Ohio

ERROR to the Supreme Court of the State of Ohio.

The facts are stated in the opinion of the court.

The case was argued by Mr. James Mason for the plaintiff in error, and by Mr. Samuel Shellabarger for the defendant in error.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Shields v. Ohio


text: Talk:Shields v. Ohio

title: Talk:Shields v. Ohio