text:
The Nitro-Glycerine Case

ERROR to the Circuit Court for the District of California.

Parrot brought an action in the court below against certain defendants who composed the well-known firm of Wells, Fargo & Co., express carriers, to recover damages for injuries to certain large buildings owned by him in the city of San Francisco, caused in April, 1866, by the explosion of nitro-glycerine whilst in charge of the said defendants. The action was originally begun in the State court of California, and was thence removed, on motion of the defendants, to the Circuit Court of the United States, where it was tried by the court without the intervention of a jury, by stipulation of the parties, under the recent act of Congress.

The complaint contained four counts. The first, was for technical waste by the landlord against his tenant from year to year, based on a statute of California. The waste was charged to have resulted from negligently introducing an explosive substance, &c., and treble damages were claimed.

The other counts were for injuries to premises demised to the defendants, and to the reversionary interest of the plaintiff in premises demised to other tenants, caused by the defendants, by themselves and their servants carelessly, negligently, and improvidently introducing upon the premises occupied by them, a box containing the explosive substance, and so carelessly, negligently, and unskilfully examining, handling, moving, and striking the box as to produce the explosion of the substance, causing the injuries complained of.

The answer joined issue on all the material allegations of the complaint; also set up a lease under which defendants occupied, and a right to carry on the business of expressmen in the demised premises; and also averred a repair of the demised premises, before suit brought, to the satisfaction of the plaintiff and with his approbation.

The facts of the case as found by the court were substantially these:

The plaintiff, being owner of the buildings injured, let, in November, 1855, a portion of them-the basement and first floors with the vaults and banking fixtures therein, together with a brick warehouse in the rear-to the defendants for a term of two years from the first of January, 1856. The lease contained covenants that the lessees would not receive in the demised premises, either for their own account or on storage, or allow any person to place therein 'gunpowder, alcohol, or any other articles dangerous from their combustibility;' that they would, during the term of the lease, 'occupy the premises solely for the business of their calling,' which was that of bankers and expressmen, and at the expiration of their term would 'quit and surrender the said demised premises with all the fixtures therein contained in as good condition as the reasonable use and wear thereof would permit, damages by the elements excepted.' The rent stipulated was $12,000 a year, payable in montly instalments of $1000 each month in advance. The lease was on two occasions subsequently renewed on the same terms, once for two years from January, 1858, and again for two years from January, 1860. After the expiration of the latter term the premises were held over from year to year with the assent of the plaintiff, though without any special agreement on his part, and were thus held on the 16th of April, 1866, when the injuries complained of were caused, the defendants paying rent in accordance with the terms of the original lease. The remaining portions of the buildings-being mostly portions above the part occupied by Wells, Fargo & Co.-were at the time let to other tenants.

The premises occupied by the defendants were used by them for their business, as stipulated in the lease. They were engaged in the business of public express carriers in the States and Territories of the Pacific coast, and between New York and San Francisco by way of the Isthmus of Panama, using on the latter route the steamships of the Pacific Mail Steamship Company, running between New York and Aspinwall on the Atlantic side, and Panama and San Francisco on the Pacific side, to convey their express matter, and transporting the same across the isthmus by the Panama railroad. In 1866 the steamers left New York on the 1st, 11th, and 21st days of each month, and it was a regulation of the company that no express freight should be received at the wharf in New York on those days. On the afternoon of March 11th, 1866, and after the steamer sailing that day had left for Aspinwall, a man brought to the wharf from which the steamer had taken her departure, a case to be carried to California, and asked an employ e of the defendants to receive it for that purpose. The employ e informed him that it was too late to receive freight on that day, but that he could leave the case at his own risk and come the next day and get a receipt. He thereupon placed the case on the dock opposite the freight office of the company. The employ e noticed at the time that the case had not been marked or strapped, as required by the regulations of the company, and called the man's attention to the omission; whereupon he requested the employ e to mark and strap the case at his expense. The case was accordingly strapped as required, and was marked with the proper address of the person for whom it was intended in California. Two days afterwards the man returned and obtained a receipt from the proper clerk of the company. The case remained on the dock where deposited till the next steamer left New York, when it was taken with other freight. At the time the case was presented it was clean and appeared to be in perfect condition. There was nothing in its appearance calculated to awaken any suspicion as to its contents. It required strapping and marking, and when this was done it was in proper condition for shipment. The case was an ordinary wooden box about two and a half feet square, and weighed three hundred and twenty-nine pounds. Nothing was said upon its delivery, or upon taking the receipt afterwards, or at any other time, about the contents of the case to the defendants, or to any of their employees, nor were any questions subsequently asked by any one respecting the contents. The case was shipped for California with a large quantity of other express freight, amounting to several thousand cases, on the steamer that left New York on the 21st of March, 1866. It was carried to Aspinwall, thence transported over the Panama railroad, reshipped on a steamer at Panama, and arrived in San Francisco on the 13th or 14th of April. On the afternoon of the 14th it was taken from the steamer and placed upon the wharf, when it was discovered that the contents were leaking. These contents had the appearance of sweet oil. Another box of similar size had been stained by the contents leaking and appeared to be damaged. On the 16th of April, in accordance with the regular and ordinary course of the defendants' business, when express freight is found to be damaged, the two boxes were taken to the defendants' building, the premises in question, for examination. The agent of the steamship company was requested to send a representative to be present at the examination so that it might be determined, if possible, by inspection, where the responsibility rested between the two companies for the injury to the case. A representative of the company accordingly attended, and in his presence, and in the presence of an agent of the defendants, and of other persons, an employ e of the defendants, by their direction, with a mallet and chisel, proceeded to open the case, and while thus engaged the substance contained in it exploded, instantly killing all the parties present, and causing the destruction of a large amount of property, and the injuries to the buildings occupied by the defendants, for which the present action was brought. Upon subsequent examination it was ascertained that the substance contained in the case was nitro-glycerine or glonoin oil. The other box contained silverware.

Notro-glycerine, according to the account given of it in the record, in its pure condition, is a nearly colorless substance, but when impure it has the color and consistency of sweet oil. It is a liquid which, under some conditions, explodes with great violence, its explosion being produced by percussion and concussion, and by a high degree of pressure, but not by contact with fire. If a flame be applied it will burn slowly without exploding, and if the flame be withdrawn it will cease to burn. It will also explode upon being subjected to a heat of 360 degrees Fahrenheit, and in explosion combustion takes place. When kept in closed vessels it gradually decomposes, and in decomposing disengages gases, the pressure alone of which may cause an explosion. In this case the nitro-glycerine in some of the cans in the case had become partially decomposed, generating gases and producing pressure within the cans and a tendency to explode. In this condition of decomposition the percussion or concussion caused by opening the box with the mallet and chisel, operating in connection with the internal pressure, produced the explosion.

The discovery of this substance was first announced at Paris, in 1847, but, prior to 1864, experiments with it were confined almost entirely to the laboratory of the chemist. It was manufactured only in small quantities for scientific purposes. In that year a gentleman in Europe by the name of Noble suggested that it might be used for blasting purposes, and in the following year he made experiments with it, demonstrating its extraordinary power, and succeeded in introducing it to a limited extent into some of the European quarries and mines. An account of its properties was also published during that year in England and in a scientific periodical in New York. In 1866, a few weeks before the explosion which has given rise to this case, a shipment of the article from Noble arrived in San Francisco. Efforts were making by the consignees to draw public attention to it for blasting purposes, when the explosion at the office of the defendants took place. A second shipment from the same person to the same consignees, made from Hamburg by the steamer 'European,' exploded on the 8th of April, 1866, at Aspinwall, destroying the steamer and other property. This was eight days before the explosion at the defendant's express office, and the news had not then reached San Francisco. Notwithstanding the efforts of Noble to bring his nitro-glycerine into notice in 1865, and the two shipments mentioned made by him early in 1866, at the time the case in question was shipped at New York and received at San Francisco, nitro-glycerine was not generally known to the public as an article of commerce. The explosions at Aspinwall and San Francisco, and subsequent ones occurring at Sidney and in England, attracted the attention of scientific men to the subject, and led to more careful investigation and experiment and to general knowledge of its properties.

The court found that neither the defendants, nor any of the employees of the defendants, or of the Pacific Mail Steamship Company, who had anything to do with the package in question, nor the managing agent of the defendants on the Pacific coast, nor any of those killed by the explosion, knew the contents of the case in question, or had any means of such knowledge, or had any reason to suspect its dangerous character, and that they did not know anything about nitroglycerine or glonoin oil, or that it was dangerous; that the case had the appearance of other cases usually received in the ordinary course of the defendants' business, and was received and handled by their employees in the same way that other cases of similar appearance were usually received and handled, and in the mode that men of prudence engaged in the same business would have handled cases having a similar appearance in the ordinary course of business, when ignorant of their contents, and with similar means of knowledge as that possessed by the defendants and their employees in this instance; and that there was no negligence on the part of the defendants in receiving the case, or in their failure to ascertain the dangerous character of the contents; and in view of the condition of their knowledge, of the want of means of knowledge, and the absence of any reasonable ground of suspicion, there was no negligence in the handling of the case at the time of the explosion.

The defendants either repaired or paid for the repairs (to the amount of about $6000) of the premises occupied by themselves, except a portion of certain repairs made by the plaintiff, which were necessarily made in connection with repairs made to those portions of the premises occupied by the other tenants of the plaintiff, and which the defendants omitted to pay for by mistake.

For the amount thus omitted to be paid, and interest, the court gave judgment for the plaintiff, but held that the defendants were not liable for any damage caused by the explosion to other portions of the buildings of the plaintiff, leased to and occupied by other tenants.

To review this judgment the plaintiff sued out a writ of error from this court.

Messrs. R. M. Corwine and B. R. Curtis (with whom was Mr. Quinton Corwine), for the plaintiff in error:

The question is, are Wells, Fargo & Co. liable for injuries to those parts of the building not rented by them? We assert that they are.

I. They are liable under the covenants of the lease. They were tenants holding over, under the covenants of a written lease, and were bound to keep all those covenants as much as if the original lease were still running.

One of those covenants was that they would 'not receive in the demised premises, either for their own account or on storage, or allow any person to place therein, gunpowder, alcohol, or any other articles dangerous from their combustibility.'

So, too, there is the other covenant: 'at the expiration of the said term to quit and surrender the said demised premises, with all fixtures thereon contained, in as good a condition as the reasonable use and wear thereof will permit, damages by the elements excepted.' How is a room, or how are certain apartments in, part of, and inseparable from an immense and splendid structure rendered in as good a condition as they were, when the whole immense and splendid structure having been blown to pieces, the room is rebuilt, a separate thing, with all the rest of the edifice piled up in ruins around it? Where the demised premises are so connected with-so part of a whole edifice-that they can never be restored in as good a condition as they were, unless the whole be so restored, a covenant to restore the demised premises in as good a condition as they were taken, is a covenant to restore the whole; certainly so where the whole has been destroyed by the plaintiff's act.

II. But, waiving this ground of covenant, we assert that the defendants were still liable for all the injuries to the premises, which they have produced. They were bound to know the nature of the property which they were introducing into the demised premises. Every person who undertakes a business in which the public is concerned is bound to conduct it with care, and if for want of that care injury occur, to repair the injury. Can any one doubt that if this explosion had occurred on the vessel in which the box had been, that Wells & Fargo would have been liable for all injury done? They had accepted this unknown thing from a stranger, and they themselves shipped it; for they were, in truth, the shippers. So here they put it into the demised premises; no way differing in this respect from the ship, for they were their own consignees. Public carriers, shipping thousands of boxes upon steamers where many people are constantly at sea, without the least means either of preventing accidents which the dangerous contents of the boxes may produce, or of alleviating the injuries produced by such accidents, and where nothing but a knowledge on their part of what they do can protect travellers from catastrophes by explosion, ignition, and poison, are bound to know what they do. They put what they please on the ship. No one supervises them; and they remain on land. No promise to the public-no contract with any one could place upon them a higher moral obligation to inform themselves than that which their business imposes upon them; for they are daily shipping articles, which may include articles like this, of a frightful power, easily brought into action, and where, if their power is brought into action at all, the consequences are awful indeed. Certainly men exercising such an employment, as do these sort of shippers, are bound to observe and exercise the usual and necessary precautionary and prudential steps which govern the conduct of every one. Where the rights of other are so vitally concerned mere ignorance of the effect of their acts will not excuse them. What is known to others, even although not of universal notoriety, they should be presumed to be conversant with. If they might know the character of property intrusted to them and neglect to inform themselves, they must suffer the consequences of neglect. In the reckless disregard of human life common by land and water in our country, and where so many lives and so much valuable property are involved and liable to destruction by the introduction, on vessels and into storehouses, of dangerous compounds, public policy demands the establishment and enforcement of these rules.

If, however, the defendants are not to be held to the most rigid rules of accountability for this frightful catastrophe, still their liability is absolute, because they were sufficiently put upon inquiry.

1st. The box was delivered at the dock of defendants, in New York, at an unseasonable hour and day, and this fact was remarked upon by the agent of defendants, who likewise called attention to the unsafe condition or fastenings of the box. Assuming that the person who delivered it was ignorant of the company's rules or regulations, the courts will presume that defendants' agent was versed and practiced in them, and that he was conscious of their violation when he received and receipted for this box. There was no explanation offered as to why the box was brought there at that improper time, nor was any question asked.

2d. The name of the party who delivered the box was not given, and, so far as the bill of exceptions or the finding of the court discloses, it was not asked for.

3d. Neither was the box strapped, marked, or weighed. But, even if the man who received it was inexperienced and so ignorant that he did not understand the rules, the box remained with the company two days before the person who delivered it called for his regular receipt. Thus there was ample time for the facts to be reported to the officers by the party who acted for the company in the receipt of it, in order that he might be instructed as to his course when the person who delivered it called again. But the shipping clerk, in the face of these suspicious circumstances, gave the company's regular receipt for the box to the party when he called, some days after leaving it. Had these facts been reported to the officers, it is not at all impossible that the nature of the contents of this box would have been carefully inquired into. Each of these omissions was a violation of the rules of the company. Certainly they were, taken together, suspicious, because unusual circumstances, which should have put the defendants upon inquiry. That they did not inquire is only a fact which shows neglect on their part.

Mr. S. M. Wilson (who argued the case thoroughly on the precedents, English and American), contra.

Mr. Justice FIELD, after stating the facts of the case, delivered the opinion of the court, as follows:

title: The Nitro-Glycerine Case


text: Talk:The Nitro-Glycerine Case

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

title: Talk:The Nitro-Glycerine Case


text:
The Nitro-Glycerine Case/Opinion of the Court

It appears from the record that the court finds, that neither the defendants, nor any of their employees, nor any of the employees of the Pacific Mail Steamship Company, who had anything to do with the case of nitro-glycerine, knew the contents of the case, or had any means of such knowledge, or had any reason to suspect its dangerous character, and that they did not know anything about nitro-glycerine, or that it was dangerous. And it also appears that the court finds, that there was no negligence on the part of the defendants in receiving the case, or in their failure to ascertain the dangerous character of the contents; and in view of the condition of their knowledge, of the want of means of knowledge, and the absence of any reasonable ground of suspicion, that there was no negligence in the handling of the case at the time of the explosion.

The question presented to us is, whether upon this state of facts the plaintiff is entitled to recover for the injuries caused by the explosion to his buildings, outside of that portion occupied by the defendants under their lease. For the injuries to that portion the defendants admit their liability, as for waste committed, under the statute. Immediately after the accident they repaired that portion with the sanction of the plaintiff, and placed the premises in a condition as good as they were previously. It appears, however, that a part of the expenses incurred were by mistake paid by the plaintiff in settling for repairs on other buildings. For the part thus paid the court gave judgment for the plaintiff under the first count, and the defendants take no exception to its action in this respect.

To fasten a further liability on the defendants, and hold them for injuries to that portion of the buildings not covered by their lease, it was contended in the court below, and it is urged here, that, as matter of law, they were chargeable with notice of the character and properties of the merchandise in their possession, and of the proper mode of handling and dealing with it, and were consequently guilty of negligence in receiving, introducing, and handling the box containing the nitro-glycerine.

If express carriers are thus chargeable with notice of the contents of packages carried by them, they must have the right to refuse to receive packages offered for carriage without knowledge of their contents. It would, in that case, be unreasonable to require them to accept, as conclusive in every instance, the information given by the owner. They must be at liberty, whenever in doubt, to require, for their satisfaction, an inspection even of the contents as a condition of carrying the packages. This doctrine would be attended in practice with great inconvenience, and would seldom lead to any good. Fortunately the law is not so unreasonable. It does not exact any such knowledge on the part of the carrier, nor permit him, in cases free from suspicion, to require information as to the contents of the packages offered as a condition of carrying them. This was ruled directly by the Common Pleas in England in the case of Crouch v. The London and Northwestern Railway. The proposition that a carrier is, in all cases, entitled to know the nature of the goods contained in the packages offered to him for carriage, is there stated to be unsupported by any authority, and one that would not stand the test of reasoning.

In Brass v. Braitland, it was held by the Queen's Bench that it was the duty of the shipper, when he offered goods which were of a dangerous nature to be carried, to give notice of their character to the owner of the ship, the Chief Justice, in delivering the opinion of the court, observing that 'it would be strange to suppose that the master or mate, having no reason to suspect that goods offered to him for a general shipment may not be safely stowed away in the hold, must ask every shipper the contents of every package.'

The case cited from the Common Pleas recognizes the right of the carrier to refuse to receive packages offered without being made acquainted with their contents, when there is good ground for believing that they contain anything of a dangerous character. It is only when such ground exists, arising from the appearance of the package or other circumstances tending to excite his suspicions, that the carrier is authorized, in the absence of any special legislation on the subject, to require a knowledge of the contents of the packages offered as a condition of receiving them for carriage.

It not, then, being his duty to know the contents of any package offered to him for carriage, when there are no attendant circumstances awakening his suspicions as to their character, there can be no presumption of law that he had such knowledge in any particular case of that kind, and he cannot accordingly be charged as matter of law with notice of the properties and character of packages thus received. The first proposition of the plaintiff, therefore, falls, and the second, which depends upon the first, goes with it.

The defendants, being innocently ignorant of the contents of the case, received in the regular course of their business, were not guilty of negligence in introducing it into their place of business and handling it in the same manner as other packages of similar outward appearance were usually handled. 'Negligence' has been defined to be 'the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.' It must be determined in all cases by reference to the situation and knowledge of the parties and all the attendant circumstances. What would be extreme care under one condition of knowledge, and one state of circumstances, would be gross negligence with different knowledge and in changed circumstances. The law is reasonable in its judgments in this respect. It does not charge culpable negligence upon any one who takes the usual precautions against accident, which careful and prudent men are accustomed to take under similar circumstances.

The case of Pierce v. Winson, decided by Mr. Justice Clifford, in the Circuit Court of the District of Massachusetts, furnishes a pertinent illustration of this doctrine. There a general ship was put up for freight. Among other freight offered and taken was mastic, an article new in commerce, and which was so affected by the voyage that it injured other parts of the cargo in contact with it, and caused increased expenditure in discharging the vessel. The court held the shipper and not the charterer liable, and observed that 'the storage of the mastic was made in the usual way, and it is not disputed it would have been proper, if the article had been what it was supposed to be, when it was received and laden on board. Want of greater care in that behalf is not a fault, because the master had no means of knowledge that the article required any extra care or attention beyond what is usual in respect to other goods.'

This action is not brought upon the covenants of the lease; it is in trespass for injuries to the buildings of the plaintiff, and the gist of the action is the negligence of the defendants: unless that be established, they are not liable. The mere fact that injury has been caused is not sufficient to hold them. No one is responsible for injuries resulting from unavoidable accident, whilst engaged in a lawful business. A party charging negligence as a gound of action must prove it. He must show that the defendant, by his act or by his omission, has violated some duty incumbent upon him, which has caused the injury complained of.

The cases between passengers and carriers for injuries stand upon a different footing. The contract of the carrier being to carry safely, the proof of the injury usually establishes a prim a facie case, which the carrier must overcome. His contract is shown, prim a facie at least, to have been violated by the injury. Outside of these cases, in which a positive obligation is cast upon the carrier to perform safely a special service, the presumption is that the party has exercised such care as men of ordinary prudence and caution would exercise under similar circumstances, and if he has not, the plaintiff must prove it.

Here no such proof was made, and the case stands as one of unavoidable accident, for the consequences of which the defendants are not responsible. The consequences of all such accidents must be borne by the sufferer as his misfortune.

This principle is recognized and affirmed in a great variety of cases-in cases where fire originating in one man's building has extended to and destroyed the property of others; in cases where injuries have been caused by fire ignited by sparks from steamboats or locomotives, or caused by horses running away, or by blasting rocks, and in numerous other cases which will readily occur to every one. The rule deducible from them is, that the measure of care against accident, which one must take to avoid responsibility, is that which a person of ordinary prudence and caution would use if his own interests were to be affected, and the whole risk were his own.

And the principle is not changed whether the injury complained of follows directly or remotely from the act or conduct of the party. The direct or remote consequences of the act or conduct may determine the form of the action, whether it shall be case or trespass, where the forms of the common law are in use, but cannot alter the principle upon which liability is enforced or avoided. In Brown v. Kendall, which was before the Supreme Court of Massachusetts, the action was in trespass for an assault and battery. The defendant was trying to part two dogs, fighting, and in raising his stick for that purpose accidentally struck the plaintiff in his eye, injuring it severely. The court, Mr. Chief Justice Shaw delivering the opinion, held that the defendant was doing a lawful and proper act, which he might do by the use of proper and safe means; and that if in so doing, and while using due care and taking all proper precautions necessary to the exigency of the case to avoid hurt to others, the injury to the plaintiff occurred, the defendant was not liable therefor, and that the burden of proof was on the plaintiff to establish a want of due care on the part of the defendant. In Harvey v. Dunlap, which was before the Supreme Court of New York, the action was trespass for throwing a stone at the plaintiff's daughter, by which her eye was put out. It did not appear that the injury was inflicted by design or carelessness, but on the contrary that it was accidental, and it was held that the plaintiff could not recover. 'No case or principle can be found,' said Mr. Justice Nelson, in denying a new trial, 'or, if found, can be maintained, subjecting an individual to liability for an act done without fault on his part;' and in this conclusion we all agree.

JUDGMENT AFFIRMED.


text: Talk:The Nitro-Glycerine Case/Opinion of the Court


text:
Deitsch v. Wiggins

ERROR to the Supreme Court of the Territory of Colorado.

The 21st Rule of this court, as amended November 16th, 1872, and made operative from the first of the following January, prescribes that the brief of counsel for the plaintiff in error shall contain:

i. A concise abstract or statement of the case presenting succinctly the questions involved, and the manner in which they are raised.

ii. An assignment of the errors relied on, which in cases brought up by writ of error, shall set out separately and specifically each error asserted and intended to be urged.

The same rule, as amended, further says:

§ 5. When the error alleged is to the charge of the court, the specification shall set out the part referred to totidem verbis; whether it be instructions given or instructions refused.

§ 6. When the error alleged is to the admission or to the rejection of evidence, the specification shall quote the full substance of the evidence admitted or rejected.

With this rule in force from January 1st, 1873 (and copies having been sent by the clerk of the court to counsel), the present case came on to be heard March the 14th following; and on being called was submitted on the record, with leave to file briefs by the 17th.

The brief for the plaintiff in error, made in this form its

STATEMENT OF THE CASE.

'This was an action of trespass de bonis asportatis, brought by H. B. Wiggins, David Nash & Henry Nash, partners under the name of Nash, Wiggins & Co., against W. Z. Cozzens (sheriff), Moritz Deitsch, the plaintiff in error, Isadore Deitsch, and Jonas Deitsch. (See Declaration, pp. 3 and 4 of Record.)

'Process was served on all of the defendants excepting Jonas Deitsch; as to him there was a return of 'not found.' (Record, p. 3.) The defendants served with process pleaded:

'1st. The general issue, and there was joinder thereon.

'2d. A special plea, alleging in substance that Cozzens, the sheriff, took the goods mentioned in the declaration by virtue of a writ of attachment sued out by his codefendants against the firm of O. S. Buell & Co. (Record, pp. 4 and 5.)'

'The plaintiff replied:

'1st. By taking issue upon the right of property of Buell & Co. in the goods, on the 6th of May, 1867. (Record, pp. 5 and 6.)

'2d. Upon the right of property of Buell & Co., on the 4th May, 1867. (Record, pp. 6 and 7.)

'3d. They denied the issuance of the writ of attachment on the 3d May, 1867, returnable 6th July, 1867, and deny the levy of the same.

'On these pleadings the issues were closed. (Record, p. 7.) There was a trial by jury and a verdict of guilty against Cozzens (sheriff) and Moritz Deitsch, the plaintiff in error, damages assessed at $2315.90. (Record, p. 7.) It may be noted at this point that one of the defendants, Jonas Deitsch, disappears from the cause, so far as this record is concerned, and unless the entry on page 7 of the record is to be construed as an appearance in his behalf and another defendant, Isadore Deitsch, for whom there was an appearance and plea and issue joined, was dropped from the cause without a verdict for or against him. (Record, p. 7.)

'On page 8 of the record, the court render a judgment in his favor for cost, but there does not appear to be any verdict to support the judgment. Cozzens and Moritz Deitsch moved for a new trial, and their motion was overruled, and they each separately appealed to the Supreme Court of the Territory of Colorado. (Record, pp. 8 and 9.) A bill of exceptions sets out the evidence. (Record, pp. 9, 15.) Another bill of exceptions shows the rejection of sundry matters of testimony offered by the defendants, and ruled out by the court. (Record, pp. 15, 19.) Exceptions were also taken to certain instructions given by the court, and certain instructions refused. (Record, pp. 19 and 20.) The Supreme Court of the Territory affirmed the judgment of the inferior court. (Record, p. 22.) From the judgment of the Supreme Court of the Territory a writ of error is prosecuted in due form. (Record, pp. 24 to 27.)'

The brief then thus presented an

ASSIGNMENT OF ERRORS.

'Error. The Supreme Court of the Territory of Colorado erred

'In affirming the judgment of the inferior court of said Territory, which judgment was erroneous in the following particulars:

'1st. In refusing a new trial upon the evidence contained in the record; 2d, in admitting testimony improperly, and in rejecting testimony improperly, as shown by the bills of exception and specifically as follows:

'In excluding testimony tending to show that the plaintiffs below closed up their business shortly after the levy, and how long they continued in business after the levy. (Record, p. 10.)

'In excluding evidence as to what was said and what occurred between Nash, one of the plaintiffs below, and Cozzens, one of the defendants below, at plaintiff's store when the goods were invoiced. (Record, p. 10, last paragraph.)

'In excluding testimony as to what was the occupation of Cozzens (sheriff), one of the defendants, at the time he took the goods, and the reasons he gave for taking them. (Record, p. 1.)

'In overruling the offer of defendants below to prove that the goods taken were a part of the stock of the merchandise of O. S. Buell, who transacted business under the style of O. S. Buell & Co., and that the witness, C. E. Sherman, was the clerk of said O. S. Buell for the space of about six months prior to the 4th day of May, 1867; that for two or three months prior to the 2d or 6th day of May, A.D. 1867, the said O. S. Buell was absent from the said Territory of Colorado; that during the absence of said Buell, said Sherman was the clerk of said Buell to carry on the regular business of said Buell, in Central City, Gilpin County, Colorado Territory, which was retailing clothing and merchandising; that the said Sherman had no right or authority whatever to sell or dispose of the entire stock of goods of said Buell, but was only authorized to sell in the regular course of business; that on the 29th of April, 1867, J. Q. Nash, agent of the plaintiff, well knowing that said Sherman was not authorized to sell the entire stock of goods, fraudulently agreed, combined, and confederated with the said Sherman to make a pretended purchase of the entire stock of goods for the purpose of hindering, delaying, and defrauding the defendants, Moritz Deitsch, Isadore Deitsch, and Jonas Deitsch, defendants herein, and other creditors; that the said Nash well knew that the said Jonas Deitsch, Moritz Deitsch, and Isadore Deitsch, defendants, were creditors of said Buell to a large amount, and that such sale was designed by him to cheat, hinder, and defraud said defendants; that said stock of goods was well worth the sum of $10,000, but was sold to said Nash, Wiggins & Co. for a grossly inadequate sum; that whatever money was paid, if any, or securities given, if any, were so cancelled, smuggled, and arranged to protect and place it beyond the reach of defendants and for the benefit of the said Buell, Nash, Wiggins & Co., and J. Q. Nash and said Sherman. (Record, p. 15.)

'In excluding the evidence of the attachment proceedings against O. S. Buell & Co. (Record, pp. 15-18.)

'In instructions of the court given to the jury and the instructions refused. (Record, pp. 19 and 20.)'

The brief then concluded thus, with

POINTS AND ARGUMENT FOR THE PLAINTIFF IN ERROR.

'The points and argument are sufficiently developed in the statement of the case and the assignment of errors, and it would be but repetition to state them in a different form. The rulings of the court of original jurisdiction were clearly erroneous in admitting improper testimony, in excluding testimony that was legitimate and proper, and in its instructions to the jury given and refused.

'In the narrative contained in the foregoing statement this court will note some irregularities, but how far they can benefit this plaintiff in his present suit the undersigned pretends not to say. The matters referred to are these: The rendition of a judgment for costs in favor of Isadore Deitsch after an issue joined without any verdict upon that issue. (Record, pp. 7 and 8.) The disappearance from the record of the proceedings of Jonas Deitsch after a return of 'not found,' without even a continuance or a ''nol. pros.;'' the sheriff's return as to him, is on page 3 of the record. These are mere matters of form, yet the forms of judicial proceedings often become matters of substance. It is, however, confidently believed that the refusal to allow the official character of the sheriff's proceedings to be proved, and the res gestae at the time of the seizure in their entirety, will be conclusive of this case. Furthermore, it is insisted that the paragraph on page 19 of the record, from the judge's charge, in the following words, is a fatal error: 'If the jury believe from the evidence that, at the time defendant, Cozzens, was packing up the goods and chattels mentioned in the declaration, Moritz Deitsch was there assisting in selecting the same, without consent of plaintiffs, then he was guilty of trespass, and if he had the consent of the said plaintiffs, it is incumbent on the defendant, Deitsch, to prove such consent.'

'That paragraph should have been qualified under all the circumstances of the case by words to show that assisting a sheriff in the execution of process was not trespass.'

The brief for the defendant in error argued the case just as if the brief of the plaintiff in error (which when the former brief was filed had not apparently been yet seen), had been in strict conformity with the 21st Rule; the counsel for the defendant in error, who prepared it, getting the whole of the plaintiff in error's case out of the record, and anticipating or conjecturing the argument which would be made upon it.

As respected the special plea, this brief argued that being joint it was defective for several reasons, and among them:

1st. In not alleging that the Deitsches were creditors of O. S. Buell & Co., against whom they had a subsisting debt.

2d. In not making an allegation that the Deitsches did the acts complained of, under the direction of the sheriff, &c., nor any attempt to justify the act on the part of any one except Cozzens.

3d. In not making any allegation that the writ of attachment had been returned; for if (it was argued) the returnday had passed before the special plea was filed, the officer justifying under the writ should allege a return; since if he did not return it he was a trespasser, even if the goods were the property of Buell & Co.

Mr. J. Hughes, for the plaintiff in error; Messrs. Chipman and Hosmer, contra.

Mr. Justice STRONG delivered the opinion of the court.

title: Deitsch v. Wiggins


text: Talk:Deitsch v. Wiggins

title: Talk:Deitsch v. Wiggins


text:
Deitsch v. Wiggins/Opinion of the Court

Most of the assignments of error have been made in total disregard of the twenty-first rule of this court. That rule is necessary to the disposition of the business which presses upon us, and it is our intention hereafter to enforce strict compliance with its demands. If errors are not assigned in the manner required, the assignments will be treated as if not made at all, and we feel justified in passing without notice the greater number of those which are alleged to appear in this record. There are, however, some of the assignments which, though not made in full conformity with the rule, we think it is proper for us to consider.

The action was trespass 'de bonis asportatis,' and the plaintiffs in the court below averred 'properly' in the goods in themselves. The declaration was met by a plea of the general issue, and by a special plea alleging that the property in the goods was in O. S. Buell & Co., and that the alleged trespass consisted in a sheriff's seizure under an attachment issued out of the District Court of Gilpin County at the suit of Deitsch & Brothers. The special plea was in some respects informal, but instead of demurring, the plaintiffs traversed its averments, and the parties went to trial on the issues thus formed. It was then a material inquiry whether the ownership of the goods was in the plaintiffs when the seizure was made, or whether it was in O. S. Buell & Co., and to that inquiry the evidence offered by the defendants, that they had belonged to Buell & Co., that during the absence of the firm from the Territory, their clerk, without authority, and in fraudulent combination with the plaintiffs' agent, had made a sale of them to the plaintiffs, was undoubtedly pertinent. If there was no authority to sell, plainly the plaintiffs had acquired no title. And if the sale was a fraud upon the creditors of Buell & Co., the goods were liable to an attachment at the suit of those creditors. It was an error, therefore, to exclude the evidence.

The attachment should also have been received in connection with the proof of the unauthorized and fraudulent sale. It is no sufficient objection to it that it did not itself prove all the facts necessary to constitute a complete defence. It is said the special plea averring the attachment was bad. If so, it should have been met by a demurrer. But we think the plea contained all the averments essential to a justification, and had the facts set forth in it been established, a recovery by the plaintiffs below would have been impossible.

There are other errors apparent in the record, but as they are not properly assigned we pass them without notice.

JUDGMENT REVERSED, AND A VENIRE DE NOVO DIRECTED.

title: Deitsch v. Wiggins/Opinion of the Court


text: Talk:Deitsch v. Wiggins/Opinion of the Court


text:
Hannewinkle v. Georgetown

APPEAL from a decree of the Supreme Court of the District of Columbia.

Hannewinkle filed his bill against the corporation of the city of Georgetown and its collector of taxes, to enjoin them from selling certain real estate for a tax claimed by the corporation under a certain act of Congress, which made part of the city charter. The bill alleged that the corporation attempted to condemn to public use, and open and improve Stoddard Street in that city; that the complainant owned certain premises described on that street; that a part of the premises were condemned to public use, and his damages assessed at $3139; that the same jury which thus assessed his damages, assessed him also for benefits to the residue of his property arising from the same improvements in the sum of $3425, and attempted to make the assessment a lien and charge on the said residue, by and for which the same could be sold. This the bill alleged was without authority of law and countrary to the act of Congress under which the city professed to act. The bill prayed that the defendants might be restrained from selling the property. An answer was put in. The cause was brought to a hearing upon an agreed state of facts, and the bill dismissed with costs. From this decree of dismissal the defendant now appealed to this court.

Mr. Samuel Tyler, for the appellant; Mr. W. A. Cook, contra.

Mr. Justice HUNT delivered the opinion of the court.

title: Hannewinkle v. Georgetown


text: Talk:Hannewinkle v. Georgetown

title: Talk:Hannewinkle v. Georgetown


text:
Hannewinkle v. Georgetown/Opinion of the Court

The action in this case cannot be sustained. It has been the settled law of the country for a great many years, that an injunction bill to restrain the collection of a tax, on the sole ground of the illegality of the tax, cannot be maintained. There must be an allegation of fraud; that it creates a cloud upon the title; that there is apprehension of multiplicity of suits, or some cause presenting a case of equity jurisdiction. This was decided as early as the days of Chancellor Kent, in Mooers v. Smedley, and has been so held from that time onward. The remedy was held to be at law by writ of certiorari or by action of trespass.

It has long been held, also, that there exists no cloud upon the title which justifies the interference of a court of equity, where the proceedings are void upon their face, that is, the same record which must be introduced to establish the title claimed, will show that there is no title.

The whole subject has been recently examined in this court in Dows v. The City of Chicago. The head note of the case is in these words: 'A suit in equity will not lie to restrain the collection of a tax on the sole ground that the tax is illegal. There must exist in addition, special circumstances bringing the case under some recognized head of equity jurisdiction, such as that the enforcement of the tax would lead to a multiplicity of suits or produce irreparable injury, or where the property is real estate, throw a cloud upon the title of the complainant.' The sole ground of the present bill is the illegality of the tax.

We are all of the opinion that the bill states no cause of action, and that it was properly dismissed.

JUDGMENT AFFIRMED.


text: Talk:Hannewinkle v. Georgetown/Opinion of the Court


text:
Riggin v. Magwire

ERROR to the Supreme Court of the State of Missouri.

Magwire sued Riggin in the Circuit Court of St. Louis County, Missouri, to recover damages for a breach of covenant. The defendant pleaded a discharge under the Bankrupt Act of 1841, obtained in June, 1843, but his plea was disallowed, both by the lower court and by the Supreme Court of Missouri on appeal. He, therefore, brought the case here by writ of error.

The case was this:

On the 2d of December, 1839, Riggin conveyed a certain tract of land near St. Louis to one Ellis, in fee. The operative words of the conveyance were 'grant, bargain, sell,' &c., which words in Missouri create a covenant that the grantor has an indefeasible estate in fee. The fact was that, prior to the execution of this deed, the property had belonged to one Martin Thomas, whose wife had never relinquished her right to dower in it. But Thomas was then living, and did not die until 1848, several years after the alleged discharge of Riggin as a bankrupt. The property afterwards, by regular devolution of title, came into possession of Magwire, who sold it in lots to various persons. In 1868 these persons were sued by Mrs. Thomas, widow of Martin Thomas, for the value of her dower, and were obliged to pay it, and the plaintiff was obliged to refund them the amount. He, therefore, brought this suit against Riggin for damages under his implied covenant of indefeasible seizin.

The question was, whether Riggin was discharged from this demand by his decree of discharge in bankruptcy in 1843? Whether he was or not depended on the question whether the claim could have been proved in that proceeding. The 5th section of the Bankrupt Act of 1841 declares as follows:

'All creditors whose debts are not due and payable until a future day, all annuitants, holders of bottomry and respondentia bonds, holders of policies of insurance, sureties, indorsers, bail, or other persons having uncertain or contingent demands against such bankrupt, shall be permitted to come in and prove such debts and claims under the act, and shall have a right, when these debts or claims become a absolute, to have the same allowed them; and such annuitants and holders of debts payable in future may have the present value thereof ascertained under the direction of such court, and allowed them accordingly, as debts in praesenti.'

Messrs. Glover and Shepley, for the plaintiff in error:

The plain words of the fifth section include all 'uncertain and contingent demands,' i. e., 'uncertain and contingent demands' of every kind and character. The claim for the wife's dower was undoubtedly a valid claim, and a claim always subsisting; and because it was an uncertain and contingent claim it was provable under this fifth section.

The question now before the court was considered in effect by the Supreme Court of New York in Jemison v. Blowers, where a discharge was pleaded against a suit brought upon the covenant for quiet enjoyment, and after a careful examination of the act of 1841 the court came to the conclusion that the discharge was a bar to the action. Shelton v. Pease, in the Supreme Court of Missouri, is to a similar effect.

Messrs. Blair and Dick, contra.

Mr. Justice BRADLEY delivered the opinion of the court.

title: Riggin v. Magwire


text: Talk:Riggin v. Magwire

title: Talk:Riggin v. Magwire


text:
Riggin v. Magwire/Opinion of the Court

It is argued that under the right given by the fifth section of the Bankrupt Act of 1841 to prove 'uncertain and contingent demands,' the claim in this case could have been proven under the act. But the better opinion is, that as long as it remained wholly uncertain whether a contract or engagement would ever give rise to an actual duty or liability, and there was no means of removing the uncertainty by calculation, such contract or engagement was not provable under the act of 1841. See 1 Smith's Leading Cases, notes to Mills v. Auriol, by Hare. In 1843 Martin Thomas was still living, and there was no certainty that his wife would ever survive him. It was uncertain whether there would ever be any claim or demand. On what principle, then, could the covenant have been liquidated or reduced to present or probable value? If an action at law had been brought on the covenant at that time nominal damages at most, if any damages at all, could have been recovered. It did not come within the category of annuities and debts payable in future, which are absolute existing claims. If it had come within that category, the value of the wife's probability of survivorship after the death of her husband might have been calculated on the principles of life annuities. Had a proposition for a compromise of her right been made between her and the owner of the land, such a mode of estimation would have been very proper. But, without authority from the statute, the assignee would not have been justified in receiving such an estimate and making a dividend on it.

It is unnecessary to review the authorities pro and con on the subject. They are quite numerous, and are mostly cited in the note of Mr. Hare, above referred to. The case is so clear that we have hardly entertained a doubt about it.

JUDGMENT AFFIRMED.

title: Riggin v. Magwire/Opinion of the Court


text: Talk:Riggin v. Magwire/Opinion of the Court


text:
Frow v. De La Vega

APPEAL from the Circuit Court for the Western District of Texas; the case being thus:

De La Vega filed a bill in the court below against Frow and thirteen other defendants, charging eight of them (including Frow) with a joint conspiracy to defraud him, the complainant, out of a large tract of land in Texas, by the use of a forged power of attorney purporting to be executed by the complainant, and by various conveyances and mesne conveyances, deraigning a false and fraudulent title from him. The defendants, other than Frow, all put in answers to the bill on the merits; but Frow's answer having been delayed (as he insisted, by misunderstanding, sickness, and other accidents), a decree pro confesso was taken against him at September Rules, 1868; and notwithstanding he afterwards prepared his answer and asked leave to file it (being in substance the same as the answers of the other defendants), yet the court afterwards, on the 23d of March, 1870, on application of the complainant, and against the protestation of Frow, made a final decree absolute against him, adjudging the title of the land to be in the complainant, and awarding to him a perpetual injunction as against the appellant. From this decree the present appeal was taken. After this final decree against the appellant, the court proceeded to try the issues made by the answers of the other defendants, and decided the merits of the cause adversely to the complainant and dismissed his bill. This fact was made to appear by the return to a certiorari sued out by De La Vega himself.

The question now was, whether the court in such a case as that mentioned could lawfully make a final decree against one defendant separately, on the merits, whilst the cause was proceeding undetermined against the others.

Mr. P. Phillips, for the appellant, argued that it was improper to have granted the prayer against a single defendant whose interests were all bound up with those of the other defendants.

Mr. T. J. Durant, contra, insisted that everything done had been done in accordance with the 18th Rule in Equity, prescribed by this court.

Mr. Justice BRADLEY delivered the opinion of the court.

title: Frow v. De La Vega


text: Talk:Frow v. De La Vega

title: Talk:Frow v. De La Vega


text:
Frow v. De La Vega/Opinion of the Court

If the court in such a case as this can lawfully make a final decree against one defendant separately, on the merits, while the cause was proceeding undetermined against the others, then this absurdity might follow: there might be one decree of the court sustaining the charge of joint fraud committed by the defendants; and another decree disaffirming the said charge, and declaring it to be entirely unfounded, and dismissing the complainant's bill. And such an incongruity, it seems, did actually occur in this case. Such a state of things is unseemly and absurd, as well as unauthorized by law.

The true mode of proceeding where a bill makes a joint charge against several defendants, and one of them makes default, is simply to enter a default and a formal decree pro confesso against him, and proceed with the cause upon the answers of the other defendants. The defaulting defendant has merely lost his standing in court. He will not be entitled to service of notices in the cause, nor to appear in it in any way. He can adduce no evidence, he cannot be heard at the final hearing. But if the suit should be decided against the complainant on the merits, the bill will be dismissed as to all the defendants alike-the defaulter as well as the others. If it be decided in the complainant's favor, he will then be entitled to a final decree against all. But a final decree on the merits against the defaulting defendant alone, pending the continuance of the cause, would be incongruous and illegal. This was so expressly decided by the New York Court of Errors, in the case of Clason v. Morris. Spencer, J., says: 'It would be unreasonable to hold, that because one defendant had made default, the plaintiff should have a decree even against him, where the court is satisfied from the proofs offered by the other, that in fact the plaintiff is not entitled to a decree.'

Irregularities, if any occurred in the proceedings after the decree complained of, are not now before us for adjudication.

DECREE REVERSED with costs, and the cause remanded for further proceedings,

IN CONFORMITY WITH THIS OPINION.

title: Frow v. De La Vega/Opinion of the Court


text: Talk:Frow v. De La Vega/Opinion of the Court


text:
Adger v. Alston

ERROR to the Circuit Court for the District of Louisiana; the case being thus:

On the 29th of February, 1868, Alston, a citizen of South Carolina, brought an action in the court below against W. E. Adger, administrator of John Adger, the latter in his lifetime and the former at the commencement of the action citizens of Louisiana; the foundation of the action being a penal bond conditioned for the payment of $4500, with interest, on the 1st of January, 1858. Anticipating, probably, a defence of what is called in Louisiana 'prescription' (a defence equivalent to that known in other States as that of the 'statute of limitations'), the petition set forth that the interest had been paid to the 1st of January, 1863; all which it was alleged 'will appear by the said bond annexed for reference and made part of the petition.' An instrument which purported to be the bond was accordingly annexed to the petition; and on it were various indorsements in the handwriting of Alston, or in what purported to be so, and signed by him, acknowledging payment of interest at various times 'up to January 1st, 1863.'

The law of prescription of the State of Louisiana was relied on as a defence, and this defence presented the only matter assigned for error in this court.

The defendant pleaded and relied on the five years' prescription in his answer, and also filed what in the practice of that State is called the exception of the five years' prescription. This exception according to that practice was tried by the court without a jury, and on this trial the court ruled, as is shown by a bill of exceptions, 'that the whole of the time of the late rebellion or civil war, viz., from the 26th of January, 1861, when the ordinance of secession was passed by the convention in Louisiana, to the 20th of August, 1866, when the proclamation of the President was made, declaring the restoration of peace between the States, should be deducted from and not counted as the time during which prescription ran, and, therefore, there was not a period of five years between the claim as made in the plaintiff's petition, to the service of the citation in the suit at bar.'

This court had held, in United States v. Anderson, previously to the decision in the present case in the Circuit, that as to the time of bringing suits in the Court of Claims under the Captured and Abandoned Property Act, which, by the terms of that act, must be within two years after the close of the war, the proclamation of the President of August 20th, 1866, announcing that peace prevailed all over the United States, which had also been adopted by Congress as the close of the war in regard to certain military services, must, as to those matters, be held to be the date of its termination. No date was fixed for its commencement.

Notwithstanding the ruling already mentioned of the court below, by which the court decided against the plea of prescription, the question of prescription was submitted to the jury on the facts under the defence set up in the answer; and the court admitted on the trial, against the defendant's objection, oral statements of conversations and admissions of the defendant's intestate, tending to show that he had acknowledged the debt as lately as 1863, and also admitted for the same purpose the indorsements on the bond of the payment of interest.

A statute of Louisiana, passed in 1858, it is here necessary to state, enacts as follows:

'SECTION 2. Hereafter parol evidence shall not be received to prove any acknowledgment or promise of a party deceased to pay any debt or liability against his succession, in order to take such debt or liability out of prescription, or to receive (revive) the same after prescription has run or been completed; but in all such cases the acknowledgment or promise to pay shall be proved by written evidence, signed by the party to be charged, or by his specially authorized agent or attorney in fact.'

Judgment having been given for the plaintiff the case was now here on error.

Mr. W. W. Boyce, in support of the judgment, and for the defendant in error:

1. Was the plea of prescription set up made out? It will be admitted by all that the civil war, during which the Federal courts were closed, suspended the running of the prescription or statute of limitations. This is settled by Hanger v. Abbott.

Now, we must assume that the commencement of the war was on the day when the ordinance of secession of Louisiana passed. This was January 26th, 1861. The close of the war was decided by this court in United States v. Anderson to have been August 20th, 1866. In other words, the war in Louisiana lasted five years, six months, and twenty-four days. Then the matter of the prescription of five years stands thus:

Yrs. mos. dys.

From January 1st, 1858, when the bond was due, to January 26th, 1861, when suit, before the war, might

have been brought, is 3  0  26

From August 20th, 1866, when an ability to sue, after the war began, till February 29th, 1868, when

the writ was served, is1 6   9

Whole term, from date when the bond became due to the time when the writ was served, within which suit

could have been brought,      4  7   5

Or, putting the thing in another form—

Yrs. mos. dys.

From January 1st, 1858, when the bond became due, to February 29th, 1868, when the writ was served, was   10  1  29

The war, as above stated, and during which no suit could be, lasted, as above stated,     5  6  24

Leaving as the whole term, when the ability to sue existed,   4    7  5

Unless, therefore, we assume some later date than the actual 'secession' of the State for the commencement of the war, or fix some later date for its ending than what this court fixed in United States v. Anderson, or do both, the court below decided rightly that the plea of five years' prescription was not made out.

2. Did the evidence admitted contravene the statute of 1858?

The 'acknowledgment or promise,' required by the second section of the act of 1858, to be proved by 'written evidence,' can in the nature of things, apply to express acknowledgments or promises alone. It cannot apply to implied ones. Express acknowledgments or promises are spoken words, and can always be put in writing. Implied acknowledgments or promises are not spoken words, but conclusions of law from antecedent facts, and cannot ever be put in writing. What can be in words, the statute requires to be in writing. What cannot from their very nature be in words the statute does not require to be in writing.

This distinction is supported by analogies in the law. For example, the liabilitiy of a guarantor under the statute of frauds is required to be in writing. But where the guarantor is liable on other grounds than his guarantee, the promise need not be in writing.

So the statute of frauds which requires certain declarations of trust to be proved by writing, exempts trusts arising by implication of law; that is, express trusts must be evidenced by writing; implied trusts not.

In addition. The policy of the act of 1858 was to guard against recollections of verbal statements or conversations, so difficult to remember precisely, and so easy of perversion. But this policy does not apply to proving a fact like payment. 'The payment of principal or interest,' says Tindall, C. J., 'stands on a different footing from the making of promises, which are often rash or ill interpreted, while money is not usually paid without deliberation; and payment is an unequivocal act, so little liable to misconstruction as not to be open to the objection of an ordinary acknowledgment. We think payment of money by one of several joint contractors an acknowledgment not within the mischief or the remedy provided by the legislature against the effect of an oral promise.'

The distinction between part payment and a verbal acknowledgment or promise is specially taken by Lord Tenterden, act 9, Geo. IV, c. 14.

And an admission by a creditor that money has been paid him (on account of the admission being proved, to be made before the prescription or statute begins to run), being an admission against his interest, may be well received as evidence. In the case of a person deceased, the presumption is that they were so made.

Messrs. T. J. Semmes and W. A. Meloy, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Adger v. Alston


text: Talk:Adger v. Alston

title: Talk:Adger v. Alston


text:
Adger v. Alston/Opinion of the Court

This court held, previous to the decision in the present case in the circuit, that as to the time of bringing suits in the Court of Claims under the Captured and Abandoned Property Act, which must be within two years after the close of the war, the proclamation of the President of August 20th, 1866, announcing that peace prevailed all over the United States, which had also been adopted by Congress as the close of the war in regard to certain military services, must, as to those matters, be held to be the period of its termination. No period was fixed for its commencement, because none was necessary.

Assuming that the commencement of the war was the ordinance of secession of Louisiana, and its close the President's proclamation of August 20th, 1866, and applying the principle of deducting the period of the war from the time in which prescription would have otherwise been counted, as held by this court in Hanger v. Abbott, the ruling of the court below as shown by the bill of exceptions, on the exception of the five years' prescription, would have been sound.

But in the case of The Protector, the question of the precise period of time to be deducted for the interruption in the running of the statute of limitations to be made in consequence of the civil war, was much considered; and the necessity of fixing the precise period was felt by the court to be very pressing. An examination of the several proclamations of the President, and other acts of the political department of the government was had; and as a result it was found that different periods of time must be fixed for different States. It was held that the commencement of the war must be governed by the President's proclamations of blockade, of which there were two. The first, dated April 19th, 1861, embraced the States of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas; and the second, dated April 27th, 1861, embraced the States of Virginia and North Carolina. So there were two proclamations declaring that the war had closed; the first, issued April 2d, 1866, embraces the States of Virginia, North Carolina, South Carolina, Georgia, Florida, Mississippi, Tennessee, Alabama, Louisiana, and Arkansas; and the second, issued on the 20th of August, 1866, embracing the State of Texas. And it was held that these dates must be taken as the commencement and the close of the war as to those States respectively, in the question of the time to be deducted for the existence of that war, in counting time under the statutes of limitation.

Under this rule the time which elapsed between the 19th of April, 1861, and the 2d April, 1866, being deducted from the time of the maturity of the bond and the service of the writ in this case, there still remained more than five years, and the plea of prescription in that view would be a bar.

But the question of prescription was submitted to the jury on the facts, under the defence set up in the defendant's answer, and on the trial the court admitted as evidence, against the objection of the defendant, oral statements of conversations and admissions of decedent, tending to prove an acknowledgment of the debt, as due, within the period of prescription, and also admitted for the same purpose indorsements on the bond of payments made of interest up to the year 1863.

In this we think the court erred also. A statute of the legislature of Louisiana, of the year 1858, by its second section enacts that: 'Hereafter parol evidence shall not be received to prove any acknowledgment or promise of a party deceased to pay any debt or liability against his succession, in order to take such debt or liability out of prescription, or to revive the same after prescription has run or been completed; but in all such cases the acknowledgment or promise to pay shall be proved by written evidence, signed by the party to be charged, or by his specially authorized agent or attorney in fact.'

The principle of this act is not new in the legislation of England and this country, and its purpose and construction are equally obvious and well understood. It is that no verbal declaration of a deceased man shall be given in evidence to prove against him an acknowledgment of the debt, which would otherwise be barred by the statute of limitations; and that no written evidence shall be offered unless signed by him or his agent.

The case before us comes precisely within both the letter and spirit of the statute. The evidence offered was parol evidence, and if the indorsements of credits on the bond are not strictly parol they are not written evidence signed by the party to be charged; and the objection is to prove an acknowledgment of the debt, against his succession, of a deceased man, by such evidence.

There seems no room for doubt that whatever may be the rule as to parties who are alive, no such evidence is admissible against the administrator of a deceased party.

On both points ruled by the court concerning prescription we think the court erred, and the judgment is, therefore, REVERSED, with directions to grant

A NEW TRIAL.

title: Adger v. Alston/Opinion of the Court


text: Talk:Adger v. Alston/Opinion of the Court


text:
Young v. Godbe

IN error to the Supreme Court of the Territory of Utah.

Godbe filed a complaint in the court below against Brigham Young, 'as trustee in trust of the Church of Jesus Christ, a religious association in the Territory of Utah,' alleging an account stated by 'said defendant' prior to February 12th, 1866, and upon such statement a balance of $10,020 'due from said defendant;' a payment of $5000, May 30th, 1868, and praying judgment with interest at 10 per cent. 'by way of damages.'

The defendant demurred, assigning for cause that it did not sufficiently appear from the complaint whether the suit was against the defendant 'in his individual capacity or in his capacity as trustee in trust for the Church of Jesus Christ of Latter-Day Saints.' The demurrer was overruled. The defendant then pleaded that no account had ever been settled by him as trustee in trust,' as alleged in the complaint, and that neither the sum stated in the complaint nor any other sum had been found due to the plaintiff from said defendant as said trustee.'

On the trial evidence was given tending to show that the money alleged to have been advanced by the plaintiff had been advanced to Young in some capacity, and an account stated and credit given as alleged. In what capacity was the question on which the controversy turned; whether, as alleged in the complaint, to him 'as trustee in trust of the church,' &c., or whether as agent of a company known as the 'Deseret Irrigation and Canal Company;' a company which one of the witnesses swore was 'so mixed up with the church that he did not know the difference between them.' The plaintiff sought to prove that it had been advanced to Young as 'trustee in trust of the church,' &c. Letters from Young sought to cast the debt on the Irrigation and Canal Company.

The defendant having given evidence tending to show that the Irrigation and Canal Company had an office in what was known as the Council House, and that the 'trustee in trust,' &c., had his at what was known as the President's Office, and that these departments were separate and distinct from each other, and had a separate set of clerks,-the plaintiff brought one Armstrong, who testified that he was in 1857, and had been ever since, the bookkeeper of a firm known as Kimball & Lawrence, merchants in Salt Lake City; that they had an account of some $10,000 against the Deseret Irrigation and Canal Company; that Mr. Lawrence, one of the firm, took the account and went away with it, and in a short time returned 'stating to this witness that it had been settled by the 'trustee in trust,' by giving credit to a certain person on tithing, and that the transaction so appeared on the books of Kimball & Lawrence.' The defendant objected to all this evidence, for the reason 'that it was not in rebuttal and therefore illegal.' The court overruled the objection (the defendant excepting) 'and the testimony was permitted to go to the jury for what it was worth.'

In charging, the court charged that if the jury should find for the plaintiff, they would find $5020, with interest on $10,020 from the day the account was rendered until the day of the payment of $5000, and from that date to the day of trial on the amount remaining due.

Verdict and judgment having gone for the plaintiff, the admission of the evidence above mentioned and the instruction to the jury were, among other matters, assigned for error.

Messrs. C. J. Hillier and Thomas Fitch, for the plaintiff in error; no opposing counsel.

Mr. Justice DAVIS delivered the opinion of the court.

title: Young v. Godbe


text: Talk:Young v. Godbe

title: Talk:Young v. Godbe


text:
Young v. Godbe/Opinion of the Court

The testimony of Armstrong, the bookkeeper of Kimball & Lawrence, was objected to by the defendant for the reason that it was not in rebuttal, and therefore illegal, but the court overruled the objection and permitted the testimony to go to the jury for what it was worth.

We are not prepared to say that Godbe could not rebut the case made by Young by showing that the affairs of the company were so connected with the church that, as one of the witnesses said, 'he did not know the difference between them.' But the evidence on this subject should not have been the declaration by one person of what another said. The fact that Young had settled the account of Kimball & Lawrence in the way he did was proper evidence to go to the jury, if Lawrence had testified to it, but Armstrong's statement of what Lawrence told him was pure hearsay. Besides, the court on its own motion enlarged the scope of the evidence by directing the jury to consider it for what it was worth. This direction enabled the jury to take a wider range of the subject than they otherwise would, and naturally inclined them to consider the evidence as fixing the right of the plaintiff to recover from the defendant in the capacity in which he was sued.

On account of the error in admitting the testimony of Armstrong, and in indicating the effect which the jury should give to it, the judgment will have to be reversed.

But as the case goes back for a new trial, it is proper to say a word upon the subject of interest, which seems more than anything else to be the chief point of difference between the parties. We can see no objection to the charge of the court on this subject. If a debt ought to be paid at a particular time, and is not, owing to the default of the debtor, the creditor is entitled to interest from that time by way of compensation for the delay in payment. And if the account be stated, as the evidence went to show was the case here, interest begins to run at once.

It is said there is no law in the Territory of Utah prescribing a rate of interest in transactions like the one in controversy in this suit, and that, therefore, no interest can be recovered. But this result does not follow. If there is no statute on the subject, interest will be allowed by way of damages for unreasonably withholding payment of an overdue account. The rate must be reasonable, and conform to the custom which obtains in the community in dealings of this character.

JUDGMENT REVERSED, AND A VENIRE DE NOVO AWARDED.

title: Young v. Godbe/Opinion of the Court


text: Talk:Young v. Godbe/Opinion of the Court


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Police Jury v. Britton

ERROR to the Circuit Court for the District of Louisiana.

Messrs. E. T. Merrick and G. W. Race, for the plaintiff in error; Messrs. T. J. Semmes and W. A. Meloy, contra.

Mr. Justice BRADLEY stated the case, and delivered the opinion of the court.

title: Police Jury v. Britton


text: Talk:Police Jury v. Britton

title: Talk:Police Jury v. Britton


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Police Jury v. Britton/Opinion of the Court

Britton and Koontz brought an action in the court below against the Police Jury of the parish of Tensas, Louisiana, to recover the amount of four hundred and sixty coupons, for $6 each, due on the 1st of July, 1870, for one year's interest on four hundred and sixty bonds of $100 each. The following is a copy of one of the bonds, and they were all of the same date and form, differing only in number:

ST. JOSEPH, July 1, 1869.

The Parish of Tensas ''will pay to bearer, six years after date or sooner, at the pleasure of the Parish, one hundred dollars, with six per cent. interest thereon, payable annually at the office of the Parish Treasurer, as per coupons attached. This obligation is issued to fund the debt of the Parish in accordance with an ordinance passed by the Police Jury on the 18th day of January'', 1869.

REEVE LAWIS, Clerk Police Jury.

The defendants put in an answer denying the validity of the bonds, of the ordinance under which they were issued, and of the drafts or orders for which they were substituted.

The cause was tried by a jury, and a verdict found for the plaintiffs. The case came here upon a number of exceptions taken at the trial, which, under the view we have taken of the case, it is not necessary to examine in detail.

The substantial facts of the case were, that in December, 1860, and January, 1861, the levee inspector of the parish of Tensas issued to certain persons by the name of Kennedy and Maxwell five 'levee warrants' (as they are called) for work done on the levees in ward No. 3 of said parish, amounting in the aggregate to over fifteen thousand dollars. They were all sight drafts drawn by Charles B. Tenney, as levee inspector of the parish, on one Snyder, treasurer of the levee fund of the parish, in favor of Kennedy and Maxwell, or order, and expressed as 'being for amount due them for and on account of work done on levees in ward No. 3 this day.'

These warrants seem to have been issued in regular course, according to the laws then in force on the subject. Originally the levees were made by the riparian owners, who received their lands upon this condition; and, if they neglected their duty, the police juries of the several parishes (who are the local boards representing them) were required to have the work done, and to collect the expense from the delinquent landowner. Modifications of this system have from time to time been made by various acts of the legislature. The law under which the levee warrants above referred to were issued was passed in 1848; with amendments, passed in 1850 and 1852. It related to the parish of Tensas alone; and the substance of it, so far as is necessary for our purpose, was, that the police jury of that parish should appoint a levee inspector, whose duty was to direct and superintend the construction and repairs of all levees in the parish in accordance with the requisition of the police jury; to survey the levees, and where work was required to let it out to the lowest bid der; and, after the work was finished on any particular section, the statute directed as follows:

'Then the inspector shall issue a warrant, payable to the contractor, which shall be a legal order upon the treasurer of the levee fund for the amount therein specified.'

The statute then provided for the levee fund as follows:

'The police jury are authorized to levy and collect, in the same manner that the State and parish taxes are now collected, an annual tax upon the assessed value of real estate, as returned by the assessors of the State taxes. Said tax, when collected, shall form a special fund for levee purposes alone.'

We have quoted these specific directions for the purpose of showing how carefully the legislature has prescribed the duties of all parties in relation to this matter. Not a word is anywhere said authorizing the parish jury to issue any bonds, or create any other evidences of debt, for work on the levees.

The general powers of the police juries of the State are carefully and particularly laid down in a statute on that subject passed in 1813, with some amendments in subsequent years. They are enumerated under eighteen distinct heads. The section conferring powers commences as follows:

'The police juries shall have power to make all such regulations as they may deem expedient:

'1st. For the police of slaves in their respective parishes, and the pursuit of runaways, &c.

'2d. As to the proportion and direction, the making and repairing of the roads, bridges, causeways, dikes, levees, and other highways.

'3d. To lay such taxes as they may judge necessary to defray the expenses of their several parishes.'

Other heads relate to clearing the Mississippi and other streams from obstruction, to the height of fences, the marking of cattle, the regulating of taverns, the establishment of ferries and toll bridges, &c., &c.

In restraint of the power of police juries and all other municipal bodies of the State to incur expenditures, the legislature in 1853 passed the following act:

'The police juries of the several parishes, and the constituted authorities of incorporated towns and cities in this State, shall not hereafter have power to contract any debt or pecuniary liability without fully providing in the ordinance creating the debt the means of paying the principal and interest of the debt so contracted.'

And it is declared that such ordinance shall remain in force until the debt and interest are paid. #fn-s-s Nothing of the kind was done in this case, and the defendants insist that the bonds are void on this account. But this provision can hardly be said to apply to the proceedings of the inspector of levees, acting under the special statutes above mentioned; though we do not see why it is not applicable to the police jury, when that body attempts to charge the parish with a new set of securities payable at a distant day, with regular interest warrants, and negotiable from hand to hand; even though such securities were issued to fund a previous liability. But waiving this point, we proceed to other aspects of the case.

As bearing on the question of authority it is pertinent to notice that, in 1860, the legislature passed an act expressly authorizing the police jury of the parish of Tensas 'to issue their bonds for a sum not to exceed $200,000, not having more than five years to run, and payable at one of the banks of the city of New Orleans, and not to be for less than one thousand dollars each.' Other specific directions and conditions are contained in the law. It is not pretended that the bonds in question were issued in accordance with this act, and no other act is referred to giving any such power. This instance, however, goes to show that special legislative authority was deemed requisite to enable the police jury to issue bonds when such securities were required for raising money to meet the necessities of the parish.

It thus appears that the police jury had no express authority to issue the bonds in question, and that if they had any authority it must be implied from the general powers of administration with which they were invested. We have, therefore, the question directly presented in this case whether the trustees or representative officers of a parish, county, or other local jurisdiction, invested with the usual powers of administration in specific matters, and the power of levying taxes to defray the necessary expenditures of the jurisdiction, have an implied authority to issue negotiable securities, payable in future, of such a character as to be unimpeachable in the hands of bon a fide holders, for the purpose of raising money or funding a previous indebtedness?

This subject as applied to various municipal bodies has been much discussed in the courts of this country, and various conclusions have been reached, depending sometimes upon the peculiar character and statutory powers of the corporation, sometimes upon the character of the objects to be attained, and sometimes upon the naked implication of power supposed to arise from the express power to make expenditures. A collection of the cases may be found in Dillon on Municipal Corporations. #fn-s-s-s That a municipal corporation which is expressly authorized to make expenditures for certain purposes may, unless prohibited by law, make contracts for the accomplishment of the authorized purposes, and thereby incur indebtedness, and issue proper vouchers therefor, is not disputed. This is a necessary incident to the express power granted. But such contracts, as long as they remain executory, are always liable to any equitable considerations that may exist or arise between the parties, and to any modification, abatement, or rescission in whole or in part that may be just and proper in consequence of illegalities, or disregard or betrayal of the public interests. Such contracts are very different from those which are in controversy in this case. The bonds and coupons on which a recovery is now sought are commercial instruments, payable at a future day and transferable from hand to hand. Such instruments transferred before maturity to a bon a fide purchaser leave behind them all equities and inquiries into consideration and the conduct of parties; and become, in the hands of an innocent holder, clean obligations to pay, without any power on the part of the municipality to demand any inquiry as to the justice or legality of the original claim, or to plead any corrupt practice of the parties in obtaining the security. This characteristic of commercial paper, which no court has more faithfully enforced than this, raises the doubt whether the power to issue it can be implied from the ordinary powers of local administration and police which are conferred upon the boards and trustees of political districts. The power to issue such paper has been the means, in several cases which have recently been brought to our notice, of imposing upon counties and other local jurisdictions burdens of a most fraudulent and iniquitous character, and of which they would have been summarily relieved had not the obligations been such as to protect them from question in the hands of bon a fide holders. As such we have been reluctantly compelled to sustain them, but only on the ground that the power to issue them had been expressly, or by necessary implication, conferred by the legislature. The power to issue such obligations, and thus irretrievably to entail upon counties, parishes, and townships a burden for which perhaps they have received no just consideration, opens the door to immense frauds on the part of petty officials and scheming speculators. It seems to us to be a power quite distinct from that of incurring indebtedness for improvements actually authorized and undertaken, the justness and validity of which may always be inquired into. It is a power which ought not to be implied from the mere authority to make such improvements. It is one thing for county or parish trustees to have the power to incur obligations for work actually done in behalf of the county or parish, and to give proper vouchers therefor, and a totally different thing to have the power of issuing unimpeachable paper obligations which may be multiplied to an indefinite extent. If it be once conceded that the trustees or other local representatives of townships, counties, and parishes have the implied power to issue coupon bonds, payable at a future day, which may be valid and binding obligations in the hands of innocent purchasers, there will be no end to the frauds that will be perpetrated.

We do not mean to be understood that it requires, in all cases, express authority for such bodies to issue negotiable paper. The power has frequently been implied from other express powers granted. Thus, it has been held that the power to borrow money, implies the power to issue the ordinary securities for its repayment, whether in the form of notes, or bonds payable in future. So, the power to subscribe for stock in a railroad, or to purchase property for a market-house, and other like powers which cannot be carried into execution without borrowing money, or giving obligations payable in the future, have been held sufficient to raise the implied power to issue such obligations. But in our judgment these implications should not be encouraged or extended beyond the fair inferences to be gathered from the circumstances of each case. It would be an anomaly, justly to be deprecated, for all our limited territorial boards, charged with certain objects of necessary local administration, to become the fountains of commercial issues, capable of floating about in the financial whirlpools of our large cities.

In the case before us, where was the necessity of funding the levee warrants held by the contractors? If it was desired to avoid the danger of prescription, an acknowledgment authorized by the police jury would have had all the effect which a new security could give. Where, among all the powers given to the police jury, can the power be found or fairly inferred, of funding the indebtedness of the parish, by issuing six or ten year bonds payable to bearer, with the regular apparatus of coupons-securities specially framed and contrived for distant and diffusive circulation? When the legislature deemed it desirable for the parish to issue such paper to enable it to raise money, the power was expressly given, with proper safeguards and limitations. This very fact indicates the legislative understanding that no general and indefinite power of the kind had any existence.

In our opinion the police jury had no authority to issue the bonds and coupons in question; and therefore the judgment must be

REVERSED.


text: Talk:Police Jury v. Britton/Opinion of the Court