text:
Arthur v. Fox/Opinion of the Court

David Fox and Rose Fox, the defendants in error, imported from Liverpool certain goods called velours, composed of cow or calf hair, vegetable fiber, and cotton, an imitation of seal-skin, and used for manufacturing hats and caps. The goods were not specifically enumerated in the tariff acts, but 'in the use to which they were put, and in appearance and material, resembled manufactures of goats' hair and cotton more nearly than any other article of commerce. The goats' hair and cotton goods are also imitations of seal-skin, and all these goods of both kinds are frequently commercially called 'seals,' and are made to represent seal-skin, and are used for the purposes for which seal-skin is used.' The component material of chief value in velours is cow and calf hair, and not cotton.

The provisions of the tariff acts involved in the determination of the duties to be paid on the importation are as follows:

'REV. ST. § 2504, SCHEDULE A.

*    *     *

'Cotton braids, insertings, lace, trimming, or bobbinet, and     all other manufactures of cotton, not otherwise provided for,      thirty-five per centum ad valorem.

'SCHEDULE L.

*    *     *

'Flannels, blankets, hats of wool, knit goods, balmorals,     woolen and worsted yarns, and all manufactures of every      description composed wholly or in part of worsted, the hair      of the alpaca, goat, or other like animals, except such as      are composed in part of wool, not otherwise provided for,      valued at not exceeding 40 cents per pound, 20 cents per      pound; valued at above 40 cents per pound and not exceeding      60 cents per pound, 30 cents per pound; valued at above 60      cents per pound and not exceeding 80 cents per pound, 40      cents per pound; valued at above 80 cents per pound, 50 cents      per pound; and, in addition thereto, upon all the above-named      articles, 35 per centum ad valorem.

'Sec. 2499. There shall be levied, collected, and paid on     each and every non-enumerated article which bears a      similitude, either in material, quality, texture, or the use      to which it may be applied, to any article enumerated in this      title, as chargeable with duty, the same rate of duty which      is levied and charged on the enumerated article which it most      resembles in any of the particulars before mentioned; and if      any non-enumerated article equally resembles two or more      enumerated articles, on which different rates of duty are      chargeable, there shall be levied, collected, and paid on      such non-enumerated article the same rate of duty as is      chargeable on the article which it resembles paying the      highest duty; and on all articles manufactured from two or      more materials, the duty shall be assessed at the highest      rates at which any of its component parts may be chargeable.' The importers claimed that the goods were dutiable at 35 per centum ad valorem as manufactures of cotton, while the collector exacted a duty of 50 cents per pound, and 35 per cent. ad valorem on account of the similitude they bore to manufactures composed wholly or in part of the hair of the goat without wool. The duties were paid according to the demand of the collector, and this suit was brought to recover back the excess of what was paid over the duty on manufactures of cotton; that is to say, to recover back the charge of 50 cents per pound. On the trial the circuit court instructed the jury to find for the importers, and to reverse a judgment upon a verdict under such an instruction this writ of error was brought.

Section 2499 of the Revised Statutes is a re-enactment of section 20 of the act of August 30, 1842, c. 270, (5 St. 565,) as to which this court said, in Stuart v. Maxwell, 16 How. 160, speaking through Mr. Justice CURTIS:

'It was designed to afford rules to guide those employed in     the collection of revenue in certain cases likely to occur,      not within the letter, but within the real intent and      meaning, of the laws imposing duties, and thus to prevent      evasions of those laws. Manufacturing ingenuity and skill     have become very great, and diversities may be expected to be      made in fabrics adapted to the same rules and designed to      take the same places as those specifically described by some      distinctive marks, for the mere purpose of escaping from the      duty imposed thereon. And it would probably be impossible for     congress, by legislation, to keep pace with the results of      these efforts of interested ingenuity. To obviate, in part at     least, the necessity of attempting to do so, this section was      enacted.'

'By providing for the principal thing, it has provided for     all other things which the law declares to be the same. It is     only upon this ground that sheer and manifest evasions can be      reached. Suppose an article is designed to serve the uses and     take the place of some article described, but some trifling      or colorable change is made in the fabric or some of its      incidents. It is new in the market. No man can say he has     ever seen it before or knows it under any commercial name. But it is substantially like a known     article which is provided for. The law of 1842 (Rev. St. §     2499) then declares that it is to be deemed the same and to      be charged accordingly; that the act of 1846 (the tariff act      then in force) has provided for it under the name it      resembles.'

These observations may well be applied to the present case. The goods in question are 'non-enumerated.' But they are substantially like a manufacture of goats' hair and cotton which is enumerated. They are put to the same uses, look the same, and frequently, in commerce, are called by the same name. They are made of cotton and cow hair, and are evidently of equal quality with the manufactures of cotton and goats' hair, because, in this case, they are charged with a duty of 50 cents per pound, thus indicating a value of 80 cents a pound or over, which calls for the highest duty per pound put on the goats'-hair goods. It would seem to be difficult to find a closer resemblance between two articles of manufacture which were not identically the same.

But it is contended that if a non-enumerated 'article is made of materials, any of which are mentioned in the statute, it is dutiable at the highest rate imposed on either of its constituents; if neither the article nor any of its component materials is designated in the tariff, then (and then only) it is dutiable according to its similitude in material, quality, texture, or use; and if, in these particulars, it equally resembles two or more enumerated articles, it pays the highest duty placed upon any of such like articles.' Such, in our opinion, is not the effect of the statute. If an article is found not enumerated in the tariff laws, then the first inquiry is whether it 'bears a similitude, either in material, quality, texture, or use to which it may be applied, to any article enumerated * *  * as chargeable with duty.' If it does, and the similitude is substantial, then in the language of the court in Stuart v. Maxwell, supra, 'it is to be deemed the same, and to be charged accordingly.' In other words, although not specifically enumerated, it is provided for under the name of the article it most resembles. If nothing is found to which it bears the requisite similitude, then an inquiry is to be instituted as to its component materials, and a duty assessed at the highest rates chargeable on any of the materials. Any other construction would leave the law open to evasions, which, as was also said in Stuart v. Maxwell, it was the object of this statute, enacted more than 40 years ago and kept continually in force since, to prevent.

None of the cases in this court governed by the statute in question sustain the position of the importer. In Stuart v. Maxwell it was not shown that the goods imported bore a similitude to any other article, and so resort was had to their component materials. The same is true of Arthur v. Herman, 96 U.S. 141, where the importation was of 'certain cheap goods, the warp of which was made of cotton and the filling or wood of cattle hair,' and the only question was whether they were to be charged at 35 per cent. ad valorem, under the act of June 30, 1864, c. 171, or at 90 per cent. of 35 per cent., under the act of June 6, 1872, c. 315. This depended on whether cotton was 'the component part of chief value.' There was no attempt to show their similitude to any other article, and both parties agreed that they were dutiable as manufactures of cotton. In Murphy v. Arnson, 96 U.S. 131, the question was whether the article imported resembled essential oil in material, quality, or texture, and the decision was that it did not. Consequently resort was had to the material clause of the similitude act. In Fisk v. Arthur, 103 U.S. 434, an article composed of cotton and linen, cotton being the material of chief value and largely predominating, was adjudged to be dutiable, under the similitude act, as a manufacture of cotton, notwithstanding it was composed of mixed materials, and this because 'in material, quality, and texture, as well as the use to which it is to be put, it is precisely like cotton shirtings.' To say that goods made of cow or calf hair and cotton, which were in all respects like goods made of goats' hair and cotton, and applied to the same uses, often bearing the same name in commerce, were to be dutiable at one rate as manufactures of cotton, when the goats'-hair goods were assessed at a much higher rate, 'would be to encourage evasions of the descriptive terms in the tariff laws 'by some trifling or colorable change in the fabric or some of its incidents."

In our opinion, on the case as made by the bill of exceptions, the court erred in instructing the jury to find for the importer, and the judgment is, consequently, reversed, and the cause remanded, with instructions to grant a new trial.

title: Arthur v. Fox/Opinion of the Court


text: Talk:Arthur v. Fox/Opinion of the Court

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

title: Talk:Arthur v. Fox/Opinion of the Court


text:
Page:Observations on Man 1834.djvu/103

 actions into automatic ones of the secondary kind, in order to make that process clearer, by having it singly in view. Suppose a person who has a perfectly voluntary command over his fingers, to begin to learn to play upon the harpsichord; the first step is to move his fingers from key to key, with a slow motion, looking at the notes, and exerting an express act of volition in every motion. By degrees the motions cling to one another, and to the impressions of the notes, in the way of association so often mentioned, the acts of volition growing less and less express all the time, till at last they become evanescent and imperceptible. For an expert performer will play from notes, or ideas laid up in the memory, or from the connexion of the several complex parts of the decomplex motions, some or all; and, at the same time, carry on a quite different train of thoughts in his mind, or even hold a conversation with another. Whence we may conclude, that the passage from the sensory, ideal, or motory vibrations which precede, to those motory ones which follow, is as ready and direct, as from the sensory vibrations to the original automatic motions corresponding to them; and consequently, that there is no intervention of the idea, or state of mind, called will. At least, the doctrine of association favours this, and the fact shews, that there is no perceptible intervention, none of which we are conscious.

And thus, from the present proposition, and the nineteenth taken together, we are enabled to account for all the motions of the human body, upon principles which, though they may be fictitious, are, at least, clear and intelligible. The doctrine of vibrations explains all the original automatic motions, that of association the voluntary and secondarily automatic ones. And if the doctrine of association be founded in, and deducible from, that of vibrations, in the manner delivered above, then all the sensations, ideas, and motions, of all animals, will be conducted according to the vibrations of the small medullary particles. Let the reader examine this hypothesis by the facts, and judge for himself. There are innumerable things, which, when properly discussed, will be sufficient tests of it. It will be necessary, in examining the motions, carefully to distinguish the automatic state from the voluntary one, and to remember, that the first is not to be found pure, except in the motions of the new-born infant, or such as are excited by some violent irritation or pain.

. I. The brain, not the spinal marrow, or nerves, is the seat of the soul, as far as it presides over the voluntary motions. For, by Cor. II. of the last proposition, the efficacy of the motory vibratiuncles depends chiefly on that part of them which is excited within the brain.

. II. The hypothesis here proposed is diametrically opposite to that of Stahl, and his followers. They suppose all animal motions to be voluntary in their original state, whereas this hypothesis supposes them all to be automatic at first, i.e. involuntary,

title: Page:Observations on Man 1834.djvu/103


text:
Page:Observations on Man 1834.djvu/104

 and to become voluntary afterwards by degrees. However, the Stahlians agree with me concerning the near relation of these two sorts of motion to each other, as also concerning the transition (or rather return, according to my hypothesis) of voluntary motions into involuntary ones, or into those which I call secondarily automatic. As to final causes, which are the chief subject of inquiry amongst the Stahlians, they are, without doubt, every where consulted, in the structure and functions of the parts; they are also of great use for discovering the efficient ones. But then they ought not to be put in the place of the efficient ones; nor should the search after the efficient be banished from the study of physic, since the power of the physician, such as it is, extends to these alone. Not to mention, that the knowledge of the efficient causes is equally useful for discovering the final, as may appear from many parts of these observations.

. III. It may afford the reader some entertainment, to compare my hypothesis with what Des Cartes and Leibnitz have advanced, concerning animal motion, and the connexion between the soul and body. My general plan bears a near relation to theirs. And it seems not improbable to me, that Des Cartes might have had success in the execution of his, as proposed in the beginning of his Treatise on Man, had he been furnished with a proper assemblage of facts from anatomy, physiology, pathology, and philosophy, in general. Both Leibnitz’s preestablished harmony, and Malebranche’s system of occasional causes, are free from that great difficulty of supposing, according to the scholastic system, that the soul, an immaterial substance, exerts and receives a real physical influence upon and from the body, a material substance. And the reader may observe, that the hypothesis here proposed stands clear also of this difficulty. If he admit the simple case of the connexion between the soul and body, in respect of sensation, as it is laid down in the first proposition, and only suppose, that there is a change made in the medullary substance, proportional and correspondent to every change in the sensations, the doctrine of vibrations, as here delivered, undertakes to account for all the rest, the origin of our ideas and motions, and the manner in which both the sensations and these are performed.

. IV. I will here add Sir Isaac Newton’s words, concerning sensation and voluntary motion, as they occur at the end of his Principia, both because they first led me into this hypothesis, and because they flow from it as a corollary. He affirms then, “both that all sensation is performed, and also the limbs of animals moved in a voluntary manner, by the power and actions of a certain very subtle spirit, i.e. by the vibrations of this spirit, propagated through the solid capillaments of the nerves from the external organs of the senses to the brain, and from the brain into the muscles.”

title: Page:Observations on Man 1834.djvu/104


text:
Winchester v. Loud

Sullivan M. Cutcheon, for appellant.

This is a suit in equity, begun in a state court of Michigan by Henry M. Loud, the appellee, a citizen of Michigan, against Charles Winchester and Herbert F. Whiting, citizens of Massachusetts, and George E. Wasey, Henry N. Loud, and Aaron F. Gay, citizens of Michigan, and removed to the circuit court of the United States for the eastern district of Michigan at the instance of the defendant Winchester, on the ground, as stated in the petition for removal, 'that the principal controversy in said suit is wholly between said plaintiff (Henry M. Loud) and your petitioner (Winchester) who are citizens of different states, and which controversy can be fully determined as between them, and that your petitioner is actually interested in said controversy.' When the copy of the record was filed in the circuit court, that court remanded the suit to the state court. From an order to that effect this appeal was taken.

[Argument of Counsel from 131 intentionally omitted]

A. T. Britton, and J. H. McGowan, for appellee.

WAITE, C. J.

title: Winchester v. Loud


text: Talk:Winchester v. Loud

title: Talk:Winchester v. Loud


text:
Winchester v. Loud/Opinion of the Court

The petition for removal was filed before answer, and we must look, therefore, to the bill alone to determine what the controversy is. From this it appears that Henry M. Loud claims that the defendants Wasey, Henry M. Loud, and Whiting hold certain real and personal property in trust to secure a debt owing by him and the defendant Gay to the defendant Winchester; and, after the debt is paid, for the use and benefit of himself and Gay. He asks for an accounting by the trustees, the removal of Wasey and Whiting, and the appointment of others in their places; and, after the debt is paid, a conveyance of what remains of the trust property in accordance with the terms of the trust. The case presents but a single controversy, although it involves the determination of several questions. It may be that Winchester is the principal defendant in interest, but full and complete relief cannot be afforded in respect to the single cause of action, to-wit, the trust, without the presence of all the parties to the suit. According to the averments in the bill, all the defendants except Henry M. Loud deny the existence of the trust, and, if that should be established, all the defendants are directly interested in the relief that is asked. The case falls clearly within the rule stated in Hyde v. Ruble, 104 U.S. 407.

The order remanding the suit is affirmed.

title: Winchester v. Loud/Opinion of the Court


text: Talk:Winchester v. Loud/Opinion of the Court


text:
Page:Observations on Man 1834.djvu/105

. V. It follows, from the account here given of the voluntary and semi-voluntary motions, that we must get every day voluntary and semi-voluntary powers, in respect of our ideas and affections. Now this consequence of the doctrine of association is also agreeable to the fact. Thus we have a voluntary power of attending to an idea for a short time, of recalling one, of recollecting a name, a fact, &c. a semi-voluntary one of quickening or restraining affections already in motion, and a most perfectly voluntary one of exciting moral motives, by reading, reflection, &c.

the motions which are previous and subservient to the obtaining of pleasure, and the removal of pain, will be much more frequent, from the very instant of birth, than those which occasion pain. The number also of the first will be perpetually increasing, of the last decreasing. Both which positions may be evinced by the following arguments:

First, The pleasures are much more numerous than the pains. Hence the motions which are subservient to them are much more numerous also.

Secondly, The associated circumstances of the pleasures are many more in number than the pleasures themselves. But these circumstances, after a sufficient association, will be able to excite the motions subservient to the pleasures, as well as these themselves. And this will greatly augment the methods of obtaining pleasure.

Thirdly, It favours the position here advanced, that the motions subservient to pleasure are of a moderate nature; and therefore, that they can be excited with the more ease, both in an automatic and voluntary manner.

Fourthly, The pains, and consequently the motions subservient to them, are few, and of a violent nature. These motions are also various, and therefore cannot be united to objects and ideas with constancy and steadiness; and, which is most to be regarded, they end, at last, from the very make of the body, in that species of motion which contributes most to remove or assuage the pain. This species therefore, since it recurs the most frequently, and continues longest, must be confirmed by association, to the exclusion of the rest.

. I. Many changes in the actions of young children, very difficult to be explained, according to the usual methods of considering human actions, appear to admit of a solution from this proposition. These changes are such as tend to the ease, convenience, pleasure, of the young child; and they are sufficiently observable in the transition of the originally automatic actions

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Page:Observations on Man 1834.djvu/106

 into voluntary ones, as matters of fact, whatever be determined concerning their cause. I shall therefore refer to them occasionally, in the course of these papers, as allowed matters of fact.

. II. It seems also, that many very complex propensities and pursuits in adults, by which they seek their own pleasure and happiness, both explicitly and implicitly, may be accounted for, upon the same, or such-like principles.

. III. To similar causes we must also refer that propensity to excite and cherish grateful ideas and affections, and trains of these, which is so observable in all mankind. However, this does not hold in so strict a manner, but that ungrateful trains will present themselves, and recur on many occasions, and particularly whenever there is a morbid, and somewhat painful, state of the medullary substance.

. IV. Since God is the source of all good, and consequently must at last appear to be so, i.e. be associated with all our pleasures, it seems to follow, even from this proposition, that the idea of God, and of the ways by which his goodness and happiness are made manifest, must, at last, take place of, and absorb all other ideas, and he himself become, according to the language of the Scriptures, All in all.

. V. This proposition, and its corollaries, afford some very general, and perhaps new, instances of the coincidence of efficient and final causes.

. VI. The agreement of the doctrines of vibrations and association, both with each other, and with so great a variety of the phænomena of the body and mind, may be reckoned a strong argument for their truth.

title: Page:Observations on Man 1834.djvu/106


text:
Elliott v. Sackett

In February, 1876, George A. Sackett and John A. Elliott executed a written agreement under seal, which provided that if Elliott should first make the payments and perform the covenants thereinafter mentioned on his part to be made and performed, Sackett agreed to convey to him 'in fee-simple, clear of all incumbrances, except as stated, whatever,' by a warranty deed, 'the house and lot known as No. 166 Calumet avenue, the lot 50x127 feet,' in Chicago, Illinois, and to assign the insurance policy then 'on said improvements,' and to pay to Elliott $50; that Elliott agreed to pay to Sackett $15,000, 'subject to an incumbrance now on said property' of $9,000, 'in the manner following: Lots 8, 9, and 10, block 5, Pittner & Son's addition to So. Evanston, being 150 x200 feet, subject to an incumbrance of $1,750, and interest at 8 per cent. from June, 1873; also lot one, (1,) block seven, (7,) Grant's subdivision of So. Evanston, and 120 acres of land, palo Alto County, iowa; the two last-named pieces of property are clear of incumbrances; and title to pass by good and sufficient warranty deeds; and to pay all taxes, assessments, or impositions that may be legally levied or imposed upon said lots, except and after the fourth installment of South Park assessment;' and, in case of the failure of Elliott to make either of the payments, or perform any of the covenants on his part, the contract to be forfeited and determined, at the election of Sackett, and Elliott to fulfull all payments made by him on the contract, and such payments to be retained by Sackett in full satisfaction and liquidation of all damages by him sustained, and he to have the right to re-enter and take possession.

By a warranty deed dated March 8, 1876, acknowledged the same day, and recorded March 10, 1876, Sackett and his wife conveyed to Elliott the Calumet-avenue property, by a proper description. The deed expressed a consideration of $15,000, and contained this clause:

'This conveyance is made subject to a trust deed executed by     the parties of the first part [Sackett and wife] to John De      Koven, on the (10th) tenth day of May, 1870, securing the      notes of said George A. Sackett to Hugh T. Dickey, for nine      thousand dollars, due four years from that date, with      interest of ine per cent. per annum, interest payable     semi-annually; and a further extension of payment, commencing      on the tenth day of May, 1874, for same amount above      mentioned, (nine thousand dollars,) payable in five years      from said date, with interest of nine per cent., the interest      notes payable semi-annually, which debt, with its interest,      the said party of the second part [Elliott] assumes and      agrees to pay as part of the consideration of this      conveyance, or purchase price above stated. The covenants     hereinafter are subject to the above incumbrance.'

Then follow covenants of seizin and warranty, and against incumbrances.

The controversy in the present case arises out of the difference between the written agreement executed by the parties and the deed to Elliott, there being no question as to the conveyances by Elliott of the land which he agreed to convey. By the agreement the Calumet-avenue property was to be conveyed subject to the $9,000 incumbrance. By the deed the conveyance is not only made subject to the incumbrance, but Elliott is made to assume and agree to pay the $9,000 debt as part of the consideration of the conveyance, or purchase price of $15,000.

In April, 1877, Elliott filed a bill in a state court in Illinois against Sackett, praying that the deed be reformed by striking therefrom the words stating that Elliott assumes and agrees to pay the $9,000 debt, as part of the consideration. The bill alleges that the consideration for the agreement of Sackett to convey the Calumet-avenue property to Elliott was the agreement of Elliott to convey to Sackett the other property named in the written agreement; that one Hill, as agent of Sackett, solicited Elliott to purchase the Calumet-avenue property; that during the negotiations Hill and Sackett solicited Elliott to assume the payment of the incumbrance, but Elliott refused to assume any liability on account of it, and insisted that he would simply purchase the property subject to the incumbrance, and thereupon the written agreement was made; that the statement in the deed that Elliott assumes and agrees to pay the incumbrance as a part of the consideration for the premises was contrary to the mutual understanding between Hill and Sackett and Elliott, and contrary to the written agreement; that Elliott, when he received the deed, was suffering under physical infirmities and mental distress, and did not examine the deed as carefully as he should otherwise have done, but had the deed recorded, believing that Sackett had acted in good faith, and had made the deed in conformity with the understanding of the parties and the written agreement; and that Elliott had recently discovered the mistake in the deed.

In June, 1877, Dickey, the owner of the $9,000 note made by Sackett and secured by the deed of trust, was, by an order of the state court, on his petition, made a defendant in the suit, and allowed to file an answer and a cross-bill. His answer controverts the material allegations of the bill. A few days later, on the petition of Dickey, the suit was removed into the circuit court of the United States for the northern district of Illinois, and Dickey filed a cross-bill in the latter court, making as defendants Sackett and his wife, De Koven, the trustee, Mattocks, his successor in the trust, Elliott, and Underwood, the tenants of Elliott. The cross-bill alleges that the whole amount secured by the note and the trust deed is due, and that by the terms of the conveyance to Elliott he became liable to pay the debt to Dickey, and prays for a sale of the premises to pay the amount due, and a foreclosure of the equity of redemption of the defendants, and the payment of the debt out of the proceeds of sale, and a decree against Sackett and Elliott for any balance due beyond the proceeds of the sale.

Sackett answered the original bill. The answer admits that Sackett entered into an agreement in writing to convey the premises 'in a certain manner and on certain conditions,' the exact words and terms of which he does not remember. It admits that Sackett, at the time of the negotiation with Elliott for the sale of the premises, solicited Elliott to assume and agree to pay the incumbrance of $9,000. It then proceeds:

'And this respondent denies that the said complainant refused     the said solicitations and request of this defendant, but      this respondent avers and will, at the proper time and place,      prove the truth to be, that when the negotiations,      conversations, and details preliminary to the final      completion of the transactions upon which the suit was      brought were ended and the parties were ready to close the      transaction by the delivery of the deeds, it was fully and      fairly understood by the parties to the same that a warranty      deed conveying the said premises, 166 Calumet avenue, should      and would be accepted by the said Elliott with the condition      of conveyance therein provided, viz., that the said Elliott      did assume and agree to pay, as a covenant of said deed, the      before-mentioned $9,000, and interest semi-annually, and the      warranty deed of this defendant contained that provision      accordingly.'

The answer also avers that Elliott carefully read over the deed in the office of Hill, at the time of the delivery of the papers in the transaction, in the presence of Sackett, 'being fully aware of and noting especially, as this defendant believes, from his best recollection, the said clause in said deed which complainant now desires shall be expunged.'

In March, 1878, Elliott answered the cross-bill, setting up that the clause in the deed from Sackett and wife as to the agreement by Elliott to pay the incumbrance was inserted by mistake or fraud on the part of Sackett or his agent, and repeating the averments of his original bill.

Replications were filed to the answer of Sackett to the original bill and to the answer of Elliott to the cross-bill, and the cross-bill was taken as confessed as to the other defendants in it, and the cause was referred to a master to take proofs and report the same to the court, with the amount due to Dickey. Proofs were taken and the causes were brought to a hearing thereon. The court made a decree dismissing the original bill for want of equity, and adjudging that all the material allegations in the cross-bill are proved; that the equities are with Dickey; that there is due to him from Sackett $11,399.28, with interest; and that Elliott, for a valuable consideration, assumed and agreed with Sackett to pay the amount due on the mortgage to Dickey. The decree then provides that Sackett and Elliott, or one of them, shall pay to Dickey, within one day from the date of the entry of the decree, the amount so due to him, with interest and costs of suit, and that, in case the payment is not made, the premises be sold by a master, and that he report any deficiency in the proceeds of sale to pay the amount due. The decree concludes with providing that in case Sackett shall pay such indebtedness, or any part thereof, he shall have leave to apply to the court, on notice to Elliott, for a further order, at the foot of the decree, requiring Elliott to repay to Sackett the sum so paid on said indebtedness. Elliott has appealed to this court.

''Wm. E. Mason'', for appellant.

E. G. Mason, for appellees.

[Argument of Counsel from pages 137-139 intentionally omitted]

BLATCHFORD, J.

title: Elliott v. Sackett


text: Talk:Elliott v. Sackett

title: Talk:Elliott v. Sackett


text:
Elliott v. Sackett/Opinion of the Court

It is objected by the appellee, Dickey, that there is nothing in the record to show that the amount in controversy exceeds $5,000; and that the decree, so far as Elliott is concerned, is not a final one. It is urged that the provision of the decree is that if the amount specified is not paid to Dickey within one day, the premises shall be sold, and, if the proceeds of sale are insufficient, the master shall report the amount of the deficiency; that this is not a deficiency decree against Elliott; that it does not appear that it will ever be necessary to enter a deficiency decree against any one; that, on the decree, as it stands, no execution can be issued against any one; that all the evidence goes to show that the deficiency decree will not exceed $2,000; and that the decree is merely interlocutory as to Elliott, because, until a sale is made, there can be no cause of complaint on the part of Elliott. The answer to this objection is that the decree dismisses the original bill, and adjudges that Elliott agreed with Sackett, for a valuable and sufficient consideration, to pay the amount due on the incumbrance. The amount involved in the original suit is the entire amount of the incumbrance, which Elliott is made by the deed to him to agree to pay, and the bill seeks relief from liability for that amount, by striking out the clause from the deed. The decree denies that relief. If that relief was wrongly denied, all relief against Elliott UNDER THE CROSS-BILL NECESSARILY FALLS, AS THE Only liability from Elliott to Dickey arises from that clause in the deed.

On the merits, we are of opinion that Elliott is entitled to the relief he asks by his original bill. The terms of the written agreement between Sackett and Elliott are very clear, and show that the parties were merely making an exchange of land. Sackett agrees to convey to Elliott the Calumet-avenue property, subject to the $9,000 incumbrance, and to assign an insurance policy, and to pay $50. Elliott agrees to convey to Sackett three lots subject to a specific incumbrance, and two other pieces of property clear of incumbrance. It is true that Elliott agrees to pay to Sackett $15,000, but the agreement expressly states that that sum is to be paid 'in the manner following,' which is by conveying the land described. The land to be conveyed to Sackett is apparently valued by the agreement, for the purposes of the transaction, at $15,000. Nothing is said about deducting the $9,000 from the price of the property to be conveyed to Elliott, nor is any sum named as the purchase money of that property. An agreement merely to take land, subject to a specified incumbrance, is not an agreement to assume and pay the incumbrance. The grantee of an equity of redemption, without words in the grant importing in some form that he assumes the payment of a mortgage, does not bind himself personally to pay the debt. There must be words importing that he will pay the debt, to make him personally liable. The language of the agreement in the present case does not amount to such an undertaking on the part of Elliott. It is only a statement that the conveyance is to be subject to the incumbrance, and creates no personal liability in the grantee. Such is the law in Illinois, where this land is situated, (Comstock v. Hitt, 37 Ill. 542; Fowler v. Fay, 62 Ill. 375,) as well as the law in other states, (Belmont v. Coman, 22 N. Y. 438; Fiske v. Tolman, 124 Mass. 254.)

Under the written agreement, therefore, it is plain that Elliott assumed no personal liability. Both parties executed this agreement and are to be held to have understood it in that sense. Sackett, in his answer, does not deny the allegation of the original bill, that the agreement between the parties was that neither Sackett nor Elliott should assume or agree to pay outstanding incumbrances on the respective parcels of land, and that that appears by the written agreement. But the answer, while admitting that Sackett entered into an agreement in writing to convey the premises in a certain manner and on certain conditions, and referring to such agreement for certainty, sets up that, after the written agreement was made, the parties came to an understanding that Elliott would accept a deed whereby he should assume and agree to pay the $9,000 incumbrance, and that the deed given 'contained that provision accordingly.' There is no evidence to support this allegation. Sackett testifies that he never had any conversation with Elliott in regard to his assuming liability for the mortgage, but that they met together and the deeds to each other were passed. Sackett had employed Hill as his agent to dispose of the Calumet-avenue property. Elliott testifies that Hill offered him the property and wanted him to assume the incumbrance, but he refused, and that finally Hill brought in the agreement which was signed by both parties. Hill testifies to the same effect. Elliott says that when Sackett gave him the deed in Hill's office he was unwell; that he did not read that part of the deed which states that he is to assume and pay the incumbrance, but only read the prior part, which states that the conveyance is made subject to the incumbrance; and that he discovered the mistake in the deed a short time before he commenced this suit.

The actual contract of the parties, as understood by both of them, is shown by the written agreement. Nothing was agreed upon to vary that. Sackett, as he shows by his testimony, knew the difference as to liability which the difference in the language would make, and knew what the language of the written agreement was, and must be held to have understood it to mean what it does mean, and to have known that Elliott understood it in the same sense. So, in the departure from it in the deed, there was a mutual mistake, it not being shown, as set up in the answer of Sackett, that there was an intention, fully and fairly understood by both parties, that in the deed Elliott should assume and agree to pay the incumbrance. Under all the circumstances proved in this case, (and every case of the kind must depend very largely on its special circumstances,) Elliott had a right to presume that the deed would conform to the written agreement, and was not guilty of such negligence or laches, in not observing the provisions of the deed, as should preclude him from relief.

Neither Dickey nor the trustee was a party or a privy to the transaction between Sackett and Elliott, nor was the trust deed taken, or the debt created or extended, or anything else done by Dickey or his trustee, in reliance on any assumption of the debt by Elliott. As respects the trust deed, the parties to it and to the debt it secured occupied the same position when this suit was brought as when the deed to Elliott was delivered, no new rights having been acquired in reliance on that deed, and none which existed when it was delivered being sought to be impaired by the relief asked by Elliott. Elliott does not seek to interfere with the property he conveyed to Sackett. No circumstances exist on which laches can be predicated on the part of Elliott as to seeking a remedy. The fact that Flliott made two payments of the interest on the incumbrance is not inconsistent with his not having assumed the payment of the incumbrance. As owner of the property subject to the incumbrance, and desirous of retaining it so long as there was any value in the equity of redemption, he would naturally pay the interest to save a foreclosure:

The principles applicable to a case like the present are fully set forth in the opinion of this court, delivered by Mr. Justice HARLAN, in Snell v. ''Ins. Co.'' 98 U.S. 85, and the leading authorities on the subject are there collected. Within those principles this is a case where, in the preparation of the deed to Elliott, there was, by mutual mistake, a failure to embody in the deed the actual agreement of the parties as evidenced by the prior written agreement. The meaning of that prior agreement is clear, and nothing occurred between the parties, after it was signed and delivered, to vary its terms, except the mere fact of the delivery of the deed, the terms of which are complained of and sought to be reformed. The deed did not effect what both of the parties intended by the actual contract which they made, and the case is one for the interposition of a court of equity.

The decree of the circuit court is reversed, with costs, so far as it dismisses the original bill, and so far as it adjudges that Dickey has any equities as against Elliott, and so far as it adjudges that Elliott assumed and agreed to pay the amount due on the mortgage to Dickey, and so far as it adjudges that Elliott shall pay to Dickey the amount found due to him and the costs of the suit, and so far as it provides for an application by Sackett for an order that Elliott repay to him any sum which he may pay on the debt due to Dickey; and the cause is remanded to the circuit court, with directions to enter a decree in the original suit granting the prayer of the bill, with costs, and for such further proceedings in the original and cross suits as may not be inconsistent with this opinion.

title: Elliott v. Sackett/Opinion of the Court


text: Talk:Elliott v. Sackett/Opinion of the Court


text:
Ewell v. Daggs

On May 27, 1856, James B. Ewell and his wife, having the legal title in fee to the premises, made and delivered to Daggs a promissory note of that date, payable three years after date to his order, for $3,556, and to secure the same executed and delivered to Daggs a deed of mortgage upon a tract of land in Guadulupe county, Texas, containing 1,653 acres, which mortgage was duly proved and recorded on June 5, 1856. James B. Ewell acquired the legal title to this land on April 13, 1854; but, in equity, it belonged to his brother, George W. Ewell, the appellant, for whom and with whose money it had been bought. The legal title was conveyed by James B. Ewell to his brother, George W. Ewell, on September 6, 1856, the latter having no knowledge of the mortgage to Daggs, and Dagge having, as we find from the evidence, no notice, actual or constructive, of the equity of George W. Ewell. On March 9, 1872, Daggs, being a citizen of Virginia, brought his action at law against James B. Ewell and wife, on the note, in the circuit court of the United States for the western district of Texas, and recovered judgment against James B. Ewell, July 14, 1873, for $3,530.93. The defense set up by James B. Ewell in that suit was usury, the actual amount of the loan having been $2,000, the residue of the note being interest on that amount until its maturity, at the rate of 20 per cent. per annum, compounded annually. A statute of Texas in force at that time on the subject of usury was as follows:

'That all contracts or instruments of writing whatsoever,     which may in any way, directly or indirectly, violate the      foregoing provisions of this act by stipulating for,      allowing, or receiving a greater premium or rate of interest      than 12 per cent. per annum for the loan, payment, or     delivery of any money, goods, wares, or merchandise, bonds,      notes of hand, or any commodity, shall be void and of no      effect for the whole premium or rate of interest only; but      the principal sum of money or the value of the goods, wares,      merchandise, bonds, notes of hand, or commodity, may be      received and recovered.' Paschal, Dig. § 3942.

Payments had been made on the note prior to the commencement of the suit to the amount of $1,745, which were allowed; but the usurious interest was not deducted on the ground that the constitution of Texas, which went into effect in 1870, and continued in force till after the recovery of the judgment, repealed all usury laws and prevented any defense on that account. The judgment not being paid, Daggs filed the present bill in equity, January 14, 1875, to foreclose the mortgage and sell the mortgaged premises, to which James B. Ewell and his wife, George W. Ewell, and the heirs of James B. Wilson were made defendants. The heirs of Wilson claimed title to a portion of the land under George W. Ewell, by virtue of a sale and actual possession prior to the date of the mortgage to Daggs. The claim established their title, and from that there is no appeal. As against George W. Ewell, however, it adjudges a foreclosure of the equity of redemption and sale of the remainder of the premises in default of payment by him of the amount found due upon the judgment against James B. Ewell, and interest thereon at the rate of 12 per cent. per annum. From this decree George W. Ewell prosecutes this appeal.

''Wm. Reynolds and Chas. A. West'', for appellant.

J. R. Tucker, for appellee.

MATTHEWS, J.

title: Ewell v. Daggs


text: Talk:Ewell v. Daggs

title: Talk:Ewell v. Daggs


text:
Ewell v. Daggs/Opinion of the Court

Several defenses were made in the court below, the overruling of which are assigned for error, and which we proceed now to state and consider in their order.

1. The first defense is the statute of limitations, as contained in article 4604, Paschal, Dig., as follows: 'All actions of debt grounded upon any contract in writing shall be commenced and sued within four years next after the cause of such action or suit, and not after.'

It is admitted that the cause of action upon the note was not barred when the action upon it was commenced, the period of limitation not expiring till July 29, 1872, excluding from the computation the interval between January 28, 1861, and March 30, 1870, as required by article 12, § 43, of the constitution of Texas of 1870. But the statute quoted does not apply to suits for the foreclosure of a mortgage and sale of the mortgaged property, such as the present. Such suits are not actions of debt grounded upon a contract in writing. They are suits to enforce the lien of the mortgage for the satisfaction of the debt secured by it. If that debt is barred by the statute of limitations, then, according to the law in Texas, the foreclosure suit is barred, but not otherwise, for the mortgage is a mere incident to the debt. It was so held by the supreme court of Texas in Eborn v. Cannon's Adm'r, 32 Tex. 244, where it says:

'If the notes were a subsisting debt at the time of the     institution of the suit, not barred by the statute of      limitations, the mortgage executed contemporaneously to      secure their payment was still valid as long as the debt      remained unsatisfied. No matter at what time the power of the     court was invoked for its collection and foreclosure and for      a decree to subject the mortgaged property to the      satisfaction of the debt, it was opportune if the      jurisdiction of the court over the debt itself was not      ousted. The mortgage was but an incident of the debt, and the     incident in law, as in logic, must abide the fate of the      principal.'

See, also, Parkins v. Sterne, 23 Tex. 561; Duty v. Graham, 12 Tex. 427; Flanigan v. Cushman, 48 Tex. 241.

There is no force in the suggestion that, although the defense of the statute of limitations would not avail James B. Ewell, because judgment had been rendered against him before the bar took effect, it nevertheless is a protection to George W. Ewell, because he is a stranger to the judgment and mortgage, and the suit now pending was not brought till after the time limited for an action to recover the debt. For the present suit is not to recover the debt, nor is it a suit against George W. Ewell. He is a party defendant because he has an interest by a subsequent conveyance in the lands sought to be sold under the mortgage. He has an equity of redemption, which entitles him to prevent a foreclosure and sale by payment of the mortgage debt; but the debt he has to pay is not his own, but that of James B. Ewell. If he can show that that debt no longer exists, because it has been barred by the statute of limitations, he is entitled to do so; but he must do it by showing that it is barred as between the parties to it. If not, the land is still subject to the pledge, because the condition has not been performed. It is not to the purpose for the appellant to show that he owes the debt no longer, for in fact he never owed it at all; but his land is subject to its payment as long as it exists as a debt against the mortgagor, for that was its condition when his title accrued.

2. The second defense is that of usury. The statute of Texas on that subject has already been quoted. A contract of loan at a stipulated rate of interest greater than 12 per cent. per annum, is declared to 'be void and of no effect for the whole premium or rate of interest only;' but the principal sum may be received and recovered. The provision of the constitution of Texas, § 44, art. 12, repealing this and all existing usury laws, is as follows:

'All usury laws are abolished in this state, and the     legislature is forbidden from making laws limiting the      parties to contracts in the amount of interest they may agree      upon for loans of money or other property; provided, this      section is not intended to change the provisions of law      fixing the rate of interest in contracts where the rate is      not specified.' 2 Paschal, Dig. 1132.

It is claimed by the appellant that, notwithstanding this repeal of the usury laws, the rights of the parties are to be determined according to the law in force at the time the transaction took place; thay by the terms of that law the contract between Daggs and James B. Ewell was void as to the entire interest reserved and paid; that no subsequent law could make valid a contract originally void; and that the appellant is not bound by the judgment rendered against James B. Ewell in favor of Daggs, and is entitled in the present suit to make the defense.

It is quite true that the usury statute referred to declares the contract of loan, so far as the whole interest is concerned, to be void 'and of no effect.' But these words are often used in statutes and legal documents, such as deeds, leases, bonds, mortgages, and others, in the sense of voidable merely, that is, capable of being avoided, and not as meaning that the act or transaction is absolutely a nullity, as if it had never existed, incapable of giving rise to any rights or obligations under any circumstances. Thus we speak of conveyances void as to creditors, meaning that creditors may avoid them, but not others. Leases which contain a forfeiture of the lessee's estate for non-payment of rent, or breach of other condition, declare that on the happening of the contingency the demise shall thereupon become null and void, meaning that the forfeiture may be enforced by re-entry, at the option of the lessor. It is sometimes said that a deed obtained by fraud is void, meaning that the party defrauded may, at his election, treat it as void. All that can be meant by the term, according to any legal usage, is that a court of law will not lend its aid to enforce the performance of a contract which appears to have been entered into by both the contracting parties for the express purpose of carrying into effect that which is prohibited by the law of the land. Broom, Leg. Max. 732.

And Lord MANSFIELD, in Holman v. Johnson, Cowp. 343, stated the ground on which, in such cases, courts proceed. He said: 'The principle of public policy is this: ex dolo mala non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If from the plaintiff's own stating or otherwise, the cause of action appear to arise ex turpi causa, or the transgression of a positive law of this country, then the court says he has no right to be assisted. It is upon that ground the court goes, not for the sake of the defendant, but because they will not lend their aid to such a plaintiff.'

And the effect is the same, if the contract is, in fact, illegal, as made in violation of a statute, whether the statute declares it to be void or not. Bank of U.S. v. Owens, 2 Pet. 527. 'There can be no civil right,' said Mr. Justice JOHNSON, in that case, 'when there can be no legal remedy; and there can be no legal remedy for that which is itself illegal.'

A distinction is made between acts which are mala in se, which are generally regarded as absolutely void, in the sense that no right or claim can be derived from them, and acts which are mala prohibita, which are void or voidable, according to the nature and effect of the act prohibited. Fletcher v. Stone, 3 Pick. 250. It was accordingly held in Massachusetts that a mortgage or assurance given on a usurious consideration, was only voidable, notwithstanding the strong words of the statute. Green v. Kemp, 13 Mass. 515. And, in such cases, the advance of the money, although the contract is illegal for usury, is a meritorious consideration, sufficient to support a subsequent liability or promise, when the positive bar of the statute has been removed. 'A man by express promise may render himself liable to pay back money which he had received as a loan, though some positive rule of law or statute intervened at the time to prevent the transaction from constituting a legal debt.' Flight v. Reed, 1 Hurl. & C. 703; 32 Law J. Rep. (N. S.) Ex. 265.

The effect of the usury statute of Texas was to enable the party sued to resist a recovery against him of the interest which he had contracted to pay, and it was, in its nature, a penal statute inflicting upon the lender a loss and forfeiture to that extent. Such has been the general, if not uniform, construction placed upon such statutes. And it has been quite as generally decided that the repeal of such laws, without a saving clause, operated retrospectively, so as to cut off the defense for the future, even in actions upon contracts previously made. And such laws, operating with that effect, have been upheld, as against all objections on the ground that they deprived parties of vested rights, or impaired the obligation of contracts. The very point was so decided in the following cases: Curtis v. Leavitt, 15 N. Y. 1; Savings Bank v. Allen, 28 Conn. 97; Welch v. Wadsworth, 30 Conn. 149; Andrews v. Russell, 7 Blackf. 474; Wood v. Kennedy, 19 Ind. 68; Town of Danville v. Pace, 25 Grat. 1; Parmelee v. Lawrence, 48 Ill. 331; Woodruff v. Scruggs, 27 Ark. 26.

And these decisions rest upon solid ground. Independent of the nature of the forfeiture as a penalty, which is taken away by a repeal of the act, the more general and deeper principle on which they are to be supported is, that the right of a defendant to avoid his contract is given to him by statute, for purposes of its own, and not because it affects the merits of his obligation; and that whatever the statute gives, under such circumstances, as long as it remains in fieri, and not realized by having passed into a completed transaction, may, by a subsequent statute, be taken away. It is a privilege that belongs to the remedy, and forms no element in the rights that inhere in the contract. The benefit which he has received as the consideration of the contract, which, contrary to law, he actually made, is just ground for imposing upon him, by subsequent legislation, the liability which he intended to incur. That principle has been repeatedly announced and acted upon by this court. Read v. Plattsmouth, decided at the present term, [ante, 208.] And see Lewis v. McElvain, 16 Ohio, 347; Johnson v. Bentley, Id. 97; Trustees v. McCaughey, 2 Ohio St. 155; Satterlee v. Mathewson, 16 Serg. & R. 169; 2 Pet. 380; Watson v. Mercer, 8 Pet. 88.

The right which the curative or repealing act takes away in such a case is the right in the party to avoid his contract, a naked legal right which it is usually unjust to insist upon, and which no constitutional provision was ever designed to protect. Cooley, Const. Lim. 378, and cases cited.

The case of Smith v. Glanton, 39 Tex. 365, cited and relied on by counsel for the appellant, we cannot accept as a settlement of the law of Texas to the contrary. The opinion does not consider the question, but dismisses it on the assumption that the fact that the action was brought before the adoption of the constitution which contained the repeal of the usury laws, prevented the application of the rule.

It is our opinion, therefore, that the defense of usury cannot avail the appellant, by reason of the constitutional repeal of the statute, on the continued existence of which alone his defense rested.

3. It is next objected that there is error in the amount of the decree, in allowing interest at the rate of 12 per cent. per annum on the amount of the judgment against James B. Ewell, instead of finding the amount due, irrespective of the judgment, by calculating interest upon the note itself since its maturity, giving proper credits for payments, at the rate of 8 per cent. per annum. The amount of the alleged error is $805.25, being the difference between $5,980.22, which is said to be the amount of the decree, and $5,174.97, which it is claimed is the true amount. The law of Texas provides that 'on all written contracts ascertaining the sum payable, when no specified rate of interest is agreed upon by the parties, interest shall be allowed at the rate of 8 per cent. per annum from and after the time when the sum is due and payable.' Paschal, Dig. Laws, art. 3940; Rev. St. 1879, art. 2976. And also that 'all judgments of the several courts of this state shall bear interest at the rate of 8 per cent. per annum from and after the date of the judgment, except when the contract upon which the judgment is founded bears a specified interest greater than 8 per cent. per annum, and not exceeding the highest rate of conventional interest permitted by law, (12 per cent.,) in which case the judgment shall bear the same rate of interest specified in such contract, and after the date of such judgment.' Paschal, Dig. art. 3943; Rev. St. 1879, art. 2980.

The contract on which the judgment was founded stipulated for no rate of interest, the interest reserved being added to the principal in the note itself, and, consequently, it is evident that the decree should not have allowed interest on the debt at a rate greater than 8 per cent. The amount of the decree should have been the sum actually due upon the mortgage debt at the rate of its maturity, May 27, 1859, with interest thereon at the rate of 8 per cent. per annum to the time of the decree, April 25, 1879, giving proper credit for payments made on account from to time, which amounts to $5,174.97, and on which interest is to be allowed at the same rate until paid.

In our opinion, the appellant is entitled to have this correction made. He is not bound by the judgment against James B. Ewell, to which he is neither party nor privy, and which was rendered after the appellant acquired his title to the land. He is consequently not cut off from his right to set up the matter, on which he now insists. Lloyd v. Scott, 4 Pet. 205; Brolasky v. Miller, 1 Stockt. 807; Berdan v. Sedgwick, 44 N. Y. 626; Post v. Dart, 8 Paige, 640;Green v. Tyler, 39 Pa. St. 361.

The decree is therefore modified in respect to the amount found to be due and the rate of interest to be allowed thereon, as already indicated, and with this modification, affirmed, each party paying his own costs in this court.

title: Ewell v. Daggs/Opinion of the Court


text: Talk:Ewell v. Daggs/Opinion of the Court


text:
Ex parte Warden

'Now, if the said claimant shall and will truly abide by all orders, interlocutory or final, of said court, and of any appellate court in which the said suit may be hereafter depending, and shall fulfill and perform any judgment or decree which may be rendered in the premises, and also pay all costs, etc., this stipulation shall be void, otherwise in force, and execution may issue by virtue thereof at one and the same time against any or all the parties to this stipulation.'

A decree was entered against the steamer in the district court. From that decree an appeal was taken to the circuit court for the district, where, on the fourteenth of October, 1881, it was decreed 'that the libelant recover for himself and the other parties in interest, from the respondent, Samuel Jackson, and his stipulators, Joseph D. Potts, William G. Warden, Edward N. Wright, and James A. Wright, his or their damages for the collision mentioned in the libel, * * * aggregating, in all, the sum of $51,594.14.' The decree was also entered as a lien against the real estate of the stipulators.

Upon the rendition of this decree an appeal was taken by the claimant to this court, the petitioners signing a supersedeas bond as sureties. The petitioners being seized of real estate in the district, applied to the circuit court to vacate the decree against them, on the ground that it was inadvertently entered and caused a cloud on the titles to their property. The court declined to make the order, and this application is now presented for a mandamus to the judges of the court requiring it to be done.

Morton P. Henry, for petitioner.

[Argument of Counsel from pages 155-156 intentionally omitted]

WAITE, C. J.

title: Ex parte Warden


text: Talk:Ex parte Warden

title: Talk:Ex parte Warden


text:
Ex parte Warden/Opinion of the Court

The petitioners in this case show that they entered into a stipulation in the sum of $70,000 on behalf of Samuel Jackson, master and claimant of the steam-ship Belgenland, in a suit for collision in the district court of the United States for the eastern district of Pennsylvania, conditioned in the following words:

It is not stated in the petition that the stipulation was executed under the provisions of section 941 of the Revised Statutes, but for the purposes of this application we assume it was, there being no representation to the contrary. That section provides in express terms for a return of the stipulation to the court, and that 'judgment thereon against both principal and sureties may be recovered at the time of rendering the decree in the original cause.' It would seem as though nothing more was needed to show the power of the court to include the stipulators in the original decree. Under section 1007 of the Revised Statutes, no execution can issue until the expiration of 10 days after the entry of the decree. In this respect these decrees are like others. An appeal with supersedeas stays execution against the stipulators as well as the principal. Therefore, there is nothing in the decree inconsistent with the provisions in the stipulation in respect to the time when the execution may issue.

It is no doubt within the power of the court to postpone a decree against the sureties until after the time for appeal by the principal has expired, and then to proceed only on notice. Such is the practice in some of the circuits, but we can find nothing in the statute which makes this imperative. In the case of The New Orleans, 17 Blatchf. 216, to which our attention has been directed by the counsel for the petitioners, the proceeding was against the sureties for the claimants, on their appeal from the district court to the circuit court, and the court refused to enter the judgment on such a bond until after the time for perfecting an appeal to this court had expired. That was an entirely different question from the one presented here upon a stipulation and entered into under section 941.

It is unnecessary to consider whether in law the decree is a lien on the real estate of the stipulators after appeal. Our inquiry is not as to the effect of the decree, but as to the jurisdiction of the court to enter it. If there was jurisdiction, any error that may have been committed cannot be corrected by mandamus.

As, upon the showing made by the petitioners, we are clearly of opinion they are not entitled to the relief they ask, the alternative writ is denied.

title: Ex parte Warden/Opinion of the Court


text: Talk:Ex parte Warden/Opinion of the Court


text:
Shainwald v. Lewin

T. T. Crittenden and Franklin H. Mackey, for appellants.

Albert Bach, for appellee.

WAITE, C. J.

title: Shainwald v. Lewin


text: Talk:Shainwald v. Lewin

title: Talk:Shainwald v. Lewin


text:
Shainwald v. Lewin/Opinion of the Court

This is an appeal from an order remanding a suit removed from a state court of Nevada. The facts are these:

Isaac J. Lewis, a citizen of Nevada, the appellee, on the     fifteenth of January, 1881, began the suit against Harris      Lewis, a citizen of California, for the dissolution of an      alleged partnership between them, and a settlement of the      partnership affairs. To this suit he made Abraham Coleman, a     creditor of the firm and a citizen of California, J. A.      Wright, Hoffman Bros., Joseph Huber, Charles Sadler, A. & M.      Sower, R. Hogan, J. D. Pringle, Charles Polkinghorn, B. C.      Thomas, and James Brennan, citizens of Nevada, defendants,      jointly with Harris Lewis. According to the averments in the     bill, Harris Lewis, one of the partners, had become involved      in business complications of his onw, and a large judgment      had been taken against him in the district court of the      United States for the district of California in favor of      Herman Shainwald, assignee in bankruptcy of Schoenfield, Cohn      & Co. A suit was begun on this judgment in the district court      of the United States for the district of Nevada, and Ralph L. Shainwald was, by an ex parte order,      without notice, appointed receiver of the estate of Harris      Lewis in Nevada. The receiver at once took possession of the     property of the partnership, whereupon a motion was made to      vacate his appointment, which was granted. Notwithstanding     this, Shainwald retained possession and was selling the      interest of Harris Lewis in the property, and on such sales      delivering the possession to the purchasers. All the     defendants named, except Harris Lewis and Coleman, are either      purchasers of the property, or in possession as the agents of      the Shainwalds.

On the filing of this bill a receiver of the property of the     firm was appointed and qualified. All the defendants, except     Harris Lewis and Coleman, answered the bill on the      seventeenth of January, denying the existence of the      partnership, and claiming that the property in dispute was      the individual property of Harris Lewis. On the same day     Herman Shainwald and Ralph L. Shainwald filed a petition of      intervention, in which they asked to be admitted as      defendants. In this petition they averred that Ralph L.     Shainwald had been appointed receiver of the property of      Harris Lewis by the district court for the district of      California, and that he took possession under that      appointment. It was also stated that, in the suit begun in     the district court for the district of Nevada, an attachment      was issued, under which the property was seized by B. C.      Thomas, the sheriff, who was in possession under that      authority. It also appeared that, in obedience to an order of     the district judge in California, Harris Lewis had executed a      formal assignment of all his property to the receiver      appointed there.

On the twenty-sixth of January, Ralph L. Shainwald was, by     order of the court, admitted as a defendant in the suit, and      the pleadings amended accordingly. Before this time a     petition for the removal of the cause to the circuit court of      the United States for the district of Nevada had been filed      by Herman Shainwald and Ralph L. Shainwald, in which it is      stated 'that the real parties in interest in this action are      I. J. Lewis, of the county of Lander, state of Nevada, as      plaintiff, and Ralph L. Shainwald, receiver;' that the      defendant Pringle is the agent of Shainwald, the receiver,      and in possession for him; that Ralph L. Shainwald and Herman Shainwald are citizens of California;      that the defendants Wright, Coleman, Hoffman, Huber, Sadler,      Sower, Hogan, Polkinghorn, Thomas, Pringle, and Brennan are      nominal defendants, and have no interest in the suit; that      the goods for which they were sued were sold to them by Ralph      L. Shainwald, as receiver; and 'that the controversy in said      action between said plaintiff and said B. C. Thomas, holding      the possession of said property, by virtue of said      attachment, in favor of said assignee, and the controversy in      said action between said plaintiff and said J. D. Pringle,      holding the possession of said property as agent of said      receiver, Ralph L. Shainwald, and by virtue of his      appointment as receiver, is wholly between citizens of      different states, and which can be fully determined as      between them, and that said Ralph L. Shainwald and said      assignee, Herman Shainwald, are actually interested in said      controversy.' Upon this petition the state court, after      admitting Ralph L. Shainwald as a party to the suit, but not      Herman Shainwald, ordered a removal, but the circuit court of      the United States for the district of Nevada, when the record      was filed there, remanded the cause. From an order to that     effect this appeal was taken.

We entertain no doubt of the propriety of the order remanding the suit brought, as it was, to close up the affairs of the partnership between Isaac J. Lewis and Harris Lewis. All the defendants, except Harris Lewis and Coleman, who have not answered, deny the existence of the partnership. Upon one side of that issue, as now made up, is Isaac J. Lewis, a citizen of Nevada, and on the other, Ralph L. Shainwald, a citizen of California, and all the other answering defendants citizens of Nevada. If Thomas, the sheriff, and Pringle, THE AGENT, ARE NOMINAL PARTIES, THE OTHEr defendants are not. if shainwald is a necessary party, so are they, because they are interested in the controversy in the same way, if not to the same extent, that he is. They get their title from him, and if he holds the property under the assignment from Harris Lewis, subject to the claims of Isaac J. Lewis as a partner, and the partnership creditors, so do they. It is of no importance that Shainwald has more in amount at stake than they. The title of all depends on defeating the claim of Isaac J. Lewis as a partner. To that extent their interests are identical with those of Shainwald. If there was no partnership, they all go free and each keeps the property he has got. If there was, the interests of these parties may become antagonistic. Besides, on the question of partnership, Harris Lewis, a citizen of California, is a necessary party. If he insists on the partnership, as he certainly may, then, in arranging the parties on that question, there will be citizens of Nevada and California on one side, and citizens of the same states on the other. Clearly, under these circumstances, the suit was not removable under the first clause of the second section of the act of March 3, 1875, c. 137.

Neither was there any separable controversy in the suit such as would entitle any of the parties to a removal under the second clause. As has already been said, the suit was brought to close up the affairs of an alleged partnership. The main dispute is about the existence of the partnership. All the other questions in the case are dependent on that. If the partnership is established, the rights of the defendants are to be settled in one way; if not, in another. There is no controversy in the case now which can be separated from that about the partnership, and fully determined by itself.

The order remanding the suit is affirmed.

title: Shainwald v. Lewin/Opinion of the Court


text: Talk:Shainwald v. Lewin/Opinion of the Court


text:
Barton v. Geiler

H. E. Jackson, for plaintiff in error.

No counsel for defendant in error.

WAITE, C. J.

title: Barton v. Geiler


text: Talk:Barton v. Geiler

title: Talk:Barton v. Geiler


text:
Barton v. Geiler/Opinion of the Court

This was a suit in equity brought in a state court of Tennessee by Barton, as assignee in bankruptcy of Kessler & Harmon, to set aside a conveyance made by Kessler, one of the bankrupts, to Geiler, and the only question presented by the writ of error is whether, upon the testimony embodied in the record, and considered by the supreme court of Tennessee in the determination of the cause, it should have been found that the conveyance was in fraud of the bankrupt law. The question is entirely one of fact. There can be no dispute about the law. It is sufficient to say that, after a careful examination of the testimony, we are satisfied with the conclusion finally reached below. It would serve no useful purpose to set forth in an opinion the details of the evidence, or to enter into any discussion as to its effect.

The decree of the supreme court of Tennessee is affirmed.

title: Barton v. Geiler/Opinion of the Court


text: Talk:Barton v. Geiler/Opinion of the Court


text:
Goldenberg v. Murphy

S. G. Clarke, for plaintiffs in error.

Asst. Atty. Gen. Maury, for defendant in error.

WAITE, C. J.

title: Goldenberg v. Murphy


text: Talk:Goldenberg v. Murphy

title: Talk:Goldenberg v. Murphy


text:
Goldenberg v. Murphy/Opinion of the Court

This was a suit to recover back duties in imports paid under protest, commenced in the superior court of the city of New York, before the enactment of the Revised Statutes, and the only question presented by the writ of error is whether the suit was 'brought within 90 days after the decision of the secretary,' as required by the act of June 30, 1864, c. 171, § 14, (13 St. 215,) then in force. The facts are that the decision was made by the secretary on the twenty-eighth of May, 1872, and it was agreed at the trial that the 90 days expired on the twenty-sixth of August. A summons in the case was made out in due form of law, bearing date August 21, 1872, and efforts were made to serve it on the collector without the intervention and efforts of the sheriff; but, failing in this, the summons was, on the twenty-sixth of August, delivered to and received by the sheriff of the county of New York, where the collector resided, with the intent that it should be actually served. Service was in fact made on the 27th:

The New York Code of Civil Procedure, § 99, is as follows:

'An action is commenced as to each defendant when the summons     is served on him, or on a co-defendant, who is a joint      contractor, or otherwise united in interest with him.

'An attempt to commence an action is deemed equivalent to the     commencement thereof, within the meaning of this title, when      the summons is delivered, with intent that it shall be      actually served to the sheriff or other officer of the county      in which the defendants, or one of them, usually or last      resided.'

A suit is brought when in law it is commenced, and we see no significance in the fact that in the legislation of congress on the subject of limitations the word 'commenced' is sometimes used, and at other times the word 'brought.' In this connection the two words evidently mean the same thing, and are used interchangeably. As this suit was begun in a state court of New York, the laws of that state must determine when it was brought, and as that is prescribed by statute, we have no need of inquiry as to the practice in other states or the rules of the common law.

As it was conceded that under the decision of this court in Arthur v. Lahey, 96 U.S. 112, the importers were entitled to a verdict if the suit was brought in time, it follows that the instruction of the court to find for the collector was erroneous. The judgment is reversed, and the cause remanded for a new trial.


text: Talk:Goldenberg v. Murphy/Opinion of the Court


text:
Gage v. Pumpelly (108 U.S. 164)

Augustus N. Gage and A. G. Riddle, for appellant.

E. G. Mason, for appellees.

WAITE, C. J.

title: Gage v. Pumpelly (108 U.S. 164)


text: Talk:Gage v. Pumpelly (108 U.S. 164)

title: Talk:Gage v. Pumpelly (108 U.S. 164)


text:
Gage v. Pumpelly (108 U.S. 164)/Opinion of the Court

This motion is denied. Many of the affidavits sent up with the transcript state distinctly that the value of the property, which is the matter in dispute, exceeds $5,000. When an appeal has been allowed, after a contest as to the value of the matter in dispute, and there is evidence in the record which sustains our jurisdiction, the appeal will not be dismissed simply because, upon an examination of all the affidavits, we may be of the opinion that possibly the estimates acted upon below were too high. There is no such decided preponderance of the evidence in this case against jurisdiction as to make it our duty to dismiss the appeal which has been allowed.


text: Talk:Gage v. Pumpelly (108 U.S. 164)/Opinion of the Court


text:
Hilton v. Dickinson

This was a bill of interpleader filed by Charles D. Gilmore against Benjamin S. Hilton, William H. Dickinson, John Devlin, and others, to determine the ownership of $2,500, which Gilmore held as trustee. The fund was paid into court, and when the decree below was rendered had increased by investment to more than $3,000. Hilton, Dickinson, and Devlin each claimed the whole. The court, at special term, decreed the whole to Hilton. From this decree both Dickinson and Devlin appealed to the general term. There the decree at special term was modified so as to direct the payment of the fund to Hilton and Dickinson in equal moieties, and to adjudge the costs against Devlin alone. Hilton took an appeal to this court from this decree, 'in so far as it modifies the decree of the court below, to-wit, the special term in equity,' and citation was issued to Dickinson alone. This appeal was docketed here in due time. An appeal was also allowed Devlin at the time the decree was rendered, but that appeal has never been entered in this court. There was no appearance of counsel or security for costs within the time required by law. Dickinson now moves to dismiss the appeal of Hilton, on the ground that the value of the matter in dispute does not exceed $2,500, and to docket and dismiss under the ninth rule the appeal of Devlin. Devlin also appears by counsel, and presents an assignment to him from Dickinson of all interest in the litigation, which was executed before the decree was modified at general term. He, therefore, insists that Dickinson has no right to move in the premises, and asks that the appearance of his own counsel be entered.

Frank W. Hackett, for Dickinson.

M. F. Morris, for Devlin.

[Argument of Counsel from page 167 intentionally omitted]

F. P. B. Sands, for Hilton.

WAITE, C. J.

At the last term, in the case of The S. S. Osborne, 105 U.S. 451, it was decided that 'cross-appeals must be prosecuted like other appeals. Every appellant, to entitle himself to be heard on his own appeal, must appear here as an actor in his own behalf by having the appearance of counsel entered, and giving the security required by the rules.' In that case the appeal had been docketed, but long after the time when by law it should have been done, and, following the rule announced in Grigsby v. Purcell, 99 U.S. 505, it was dismissed for want of prosecution. Inasmuch, therefore, as we would not hear the cross-appeal if it should be entered at this time, we deny the motion of Devlin to have the appearance of counsel entered on that appeal, and of our own motion dismiss it for want of prosecution. It is a matter of no importance that the motion to dismiss the appeal of Hilton is made by Dickinson after he has parted with his interest in the decree, for if, on looking into a record, we find we have no jurisdiction, it is our duty to dismiss on our own motion without waiting the action of the parties. The question is then presented whether upon the face of this record it appears that the value of the matter in dispute, for the purpose of our jurisdiction, exceeds $2,500, and that depends on whether the 'matter in dispute' is the whole amount claimed by Hilton below, or only the difference between what he has recovered and what he sued for. So far as we have been able to discover, this precise point has never before been passed upon in any reported case. There are expressions in the opinions of the court in some cases which may be, and probably are, broad enough to sustain the jurisdiction, but these expressions are found where the facts did not require a decision of the question now formally presented.

In Wilson v. Daniel, decided in 1798, and reported in 3 Dall. 401, upon a writ of error brought by a defendant below from a judgment against him for less than $2,000, it was held that the jurisdiction of this court depended, not on the amount of the judgment, but 'on the matter in dispute when the action was instituted.' Chief Justice ELLSWORTH, in his opinion, said:

'If the sum or value, found by a verdict, was considered as     the rule to ascertain the magnitude of the matter in dispute,      then, whenever less than $2,000 was found, a defendant could      have no relief against the most erroneous and injurious      judgment, though the plaintiff would have a right of removal      and revision of the cause, his demand (which is alone to      govern him) being for more than $2,000. It is not to be     presumed that the legislature intended to give any party such      an advantage over his antagonist; and it ought to be avoided,      as it may be avoided, by the fair and reasonable      interpretation, which has been pronounced.'

Mr. Justice IREDELL, in a dissenting opinion, thus states the argument on the other side:

'The true motive for introducing the provision, which is     under consideration, into the judicial act, is evident. When     the legislature allowed a writ of error to the supreme court,      it was considered that the court was held permanently at the      seat of the national government, remote from many parts of      the Union, and that it would be inconvenient and oppressive      to bring suitors hither for objects of small importance. Hence, it was provided, that unless the matter in dispute     exceeded the sum or value of $2,000, a writ of error should      not be issued. But the matter in dispute here meant, is the     matter in dispute on the writ of error.'

In Cooke v. Woodrow, 5 Cranch, 13, decided in 1809, trover had been brought in the circuit court of the District of Columbia for sundry household goods, and the judgment was in favor of the defendants. Upon a writ of error by the plaintiff below, a question arose as to the way in which the value of the matter in dispute should be ascertained, and Chief Justice MARSHALL, in announcing the decision, said: 'If the judgment below be for the plaintiff, that judgment ascertains the value of the matter in dispute; but when the judgment below is rendered for the defendant, this court has not, by any rule or practice, fixed the mode of ascertaining that value.'

Three years afterwards the case of Wise v. Columbian Turnpike Co. was before the court, which is very imperfectly reported in 7 Cranch. 276. On referring to the original record we find that under a provision of the charter of the turnpike company (2 St. 572, c. 26, § 6) commissioners were to be appointed by the circuit court of the District of Columbia to decide upon the compensation to be paid the owners of land for damages growing out of the appropriation of their property to the use of the company. All awards of the commissioners were to be filed in the circuit court, and, unless set aside by the court, were to be final and conclusive between the parties, and recorded by the clerk. Wise & Lynn presented a claim to the commissioners, and were awarded $45. On the return of the award to the court they filed exceptions, and, among other things, claimed that they should have been allowed at least $300, but the court confirmed the award. They then brought the case to this court by writ of error, and the turnpike company moved to dismiss because the value of the matter in dispute did not exceed $100, that being then the jurisdictional limit on appeals and writs of error from the circuit court of the District of Columbia. The decision of the case is reported as follow: 'It appearing that the sum awarded was only $45, the court, all the judges being present, decided that they had no jurisdiction, although the sum claimed by Wise & Lynn, before the commissioners of the road, was more than $100.' In Peyton v. Robertson, 9 Wheat. 527, replevin had been brought for the recovery of personal property distrained for rent. The defendant in the action acknowledged the taking of the goods as charged in the declaration, but justified it as a distress for the sum of $591, due for rent in arrear, and recovered a judgment against the plaintiff for that amount. The plaintiff then brought the case to this court by writ of error, and insisted that as the damages laid in the declaration exceeded the jurisdictional limit his writ ought not to be dismissed; but the court said, through Chief Justice MARSHALL: 'If the replevin be, as in this case, of property distrained for rent, the amount for which the avowry is made is the real matter in dispute. The damages are merely nominal. If the writ be issued as a means of trying the title to property, it is in the nature of detinue, and the value of the article replevied is the matter in dispute.' The writ of error was accordingly dismissed.

The case of Gordon v. Ogden, 3 Pet. 33, was decided in 1830. There the action was instituted for the violation of a patent, and the amount of the recovery in damages was $400 by the verdict of a jury. The damages laid in the declaration were $2,600. The defendant brought the writ of error, and on a motion to dismiss because the value of the matter in dispute was not enough to give jurisdiction Chief Justice MARSHALL, speaking for the court, said:

'The jurisdiction of the court has been supposed to depend on     the sum or value of the matter in dispute in this court, not      on that which was in dispute in the circuit court. If the     writ of error be brought by the plaintiff below, then the sum      which his declaration shows to be due may be still recovered      should the judgment for a smaller sum be reversed; and      consequently the whole sum claimed is still in dispute. But     if the writ of error be brought by the defendant in the      original action, the judgment of this court can only affirm      that of the circuit court, and consequently the matter in      dispute cannot exceed the amount of the judgment. Nothing but     that judgment is in dispute between the parties.' Then, referring to Wilson v. Daniel, supra, he said:

'Although that case was decided by a divided court, and     although we think that, upon the true construction of the      twenty-second section of the judicial act, the jurisdiction      depends upon the sum in dispute between the parties, as the      case stands upon the writ of error, we should be much      inclined to adhere to the decision in Wilson v. Daniel had      not a contrary practice since prevailed. * * * The case of     Wise v. Columbian Turnpike Co. 7 Cranch, 276, was dismissed      because the sum for which judgment was rendered in the      circuit court was not sufficient to give jurisdiction,      although the claim before the commissioners of the road,      which was the cause of action and the matter in dispute in      the circuit court, was sufficient. * * * Since this decision     we do not recollect that the question has ever been made. The     silent practice of the court has conformed to it. The reason     of the limitation is that the expense of litigation in this      court ought not to be incurred unless the matter in dispute      exceeds $2,000. This reason applies only to the matter in     dispute between the parties in this court.'

The writ of error was consequently dismissed, all the judges agreeing that there was no jurisdiction. This case was followed at the same term in Smith v. Honey, 3 Pet. 469.

Nothing further of importance connected with the particular question we are now considering appears in the reported cases until 1844, when, in Knapp v. Banks, 2 How. 73, which was a writ of error brought by a defendant against whom a judgment had been rendered for less than $2,000, Mr. Justice STORY said for the court:

title: Hilton v. Dickinson


text: Talk:Hilton v. Dickinson

title: Talk:Hilton v. Dickinson


text:
Hilton v. Dickinson/Opinion of the Court

'The distinction constantly maintained is this: Where the     plaintiff sues for an amount exceeding $2,000, and the ad      damnum exceeds $2,000, if by reason of any erroneous ruling      of the court below, the plaintiff recovers nothing, or less      than $2,000, there the sum claimed by the plaintiff is the      sum in controversy for which a writ of error will lie. But if     a verdict is given against the defendant for a less sum than      $2,000, and a judgment passes against him accordingly, there      it is obvious that there is, on the part of the defendant,      nothing in controversy beyond the sum for which the judgment was given; and consequently he is not      entitled to any writ of error. We cannot look beyond the time     of the judgment in order to ascertain whether a writ of error      lies or not.'

The rule as thus stated by Mr. Justice STORY, was cited in Walker v. U.S. 4 Wall. 163, and in Merrill v. Patty, 16 Wall. 345. But these were cases in which the question was as to the right of a defendant to bring up for review a judgment against himself for less than $2,000.

In Ryan v. Bindley, 1 Wall. 66, the plaintiff below sued for $2,000, and the defendant pleaded set-off to the amount of $4,000. Under such a plea, if the set-off had been sustained, the defendant would have been entitled to a judgment for the difference between the amount of his claim and that established by the plaintiff. The plaintiff recovered a judgment for $575.85, and the defendant brought a writ of error, upon which jurisdiction was sustained because the defendant sought to defeat the judgment against him altogether, and to recover a judgment in his own favor and against the plaintiff for at least two thousand dollars, and possibly four thousand. Thus the matter in dispute in this court exceeded $2,000.

In Pierce v. Wade, 100 U.S. 444, the action was replevin for cattle. A judgment was rendered in favor of the plaintiffs for the most of the cattle taken on the writ, but against them for $1,400, the value of some that were taken which did not belong to them. They brought the case here by writ of error, but the writ was dismissed on the ground that the matter in dispute was only the part of the cattle for which judgment had been rendered against the plaintiffs, the court remarking that 'the plaintiffs recovered everything else which they claimed, and the judgment against them is less than $5,000.'

In Lamar v. Micou, 104 U.S. 465, where the appeal was taken by a defendant from a decree against him for less than $5,000, it was held that if the set-off or counter-claim relied on would only have the effect of reducing the amount of the recovery, without entitling the defendant to a decree in his own favor, there was no jurisdiction. We understand that Wilson v. Daniel is overruled by Gordon v. Ogden, in which Chief Justice MARSHALL states the opinion of the court to be that 'the jurisdiction of the court depends upon the sum in dispute between the parties, as the case stands upon the writ of error,' and that Wilson v. Daniel was not followed because 'a contrary practice had since prevailed.' It is undoubtedly true that until it is in some way shown by the record that the sum demanded is not the matter in dispute, that sum will govern in all questions of jurisdiction, but it is equally true that when it is shown that the sum demanded is not the real matter in dispute, the sum shown, and not the sum demanded, will prevail. Lee v. Watson, 1 Wall. 337; Schacker v. ''Hartford Fire Ins. Co. 93 U.S. 241; Gray v. Blanchard, 97 U.S. 565; Tintsman v. National Bank, 100 U.S. 6; Banking Ass'n v. Insurance Ass'n'', 102 U.S. 121. Under this rule it has always been assumed, since Cooke v. Woodrow, supra, that when a defendant brought a case here, the judgment or decree against him governed our jurisdiction, unless he had asked affirmative relief, which was denied; and this because, as to him, jurisdiction depended on the matter in dispute here. As the original demand against him was for more than our jurisdictional limit, and the recovery for less, the record shows that he was successful below as to a part of his defense, and that his object in bringing the case here was not to secure what he had already got, but to get more. As to him, therefore, the established rule is that, unless the additional amount asked for is as much as our jurisdiction requires, we cannot review the case.

We are unable to see any difference in principle between the position of a plaintiff and that of a defendant as to such a case. The plaintiff sues for as much as, or more than, the sum required to give us jurisdiction, and recovers less. He does not, any more than a defendant, bring a case here to secure what he has already got, but to get more. If we take a case for him when the additional amount he asks to recover is less than we can consider, he has 'an advantage over his antagonist,' such as, in the language of Chief Justice ELLSWORTH, supra, 'it is not to be presumed it was the intention of the legislature to give.' Such a result ought to be avoided, and it may be by holding, as we do, that, as to both parties, the matter in dispute, on which our jurisdiction depends, is the matter in dispute 'between the parties as the case stands upon the writ of error' or appeal; that is to say, as it stands in this court. That was the question in Wilson v. Daniel, where it was held that, to avoid giving one party an advantage over another, it was necessary to make jurisdiction depend 'on the matter in dispute when the action was instituted.' When, therefore, that case was overruled in Gordon v. Ogden, and it was held, as to a defendant, that his rights depended on the matter in dispute in this court, we entertain no doubt it was the intention of the court to adopt as an entirety the position of Mr. Justice IREDELL in his dissenting opinion, and to put both sides upon an equal footing. Certainly it could not have been intended to give a plaintiff any advantage over a defendant, when there is nothing in the law to show any such superiority in position.

Under this rule we have jurisdiction of a writ of error or appeal by a plaintiff below when he sues for as much as or more than our jurisdiction requires and recovers nothing, or recovers only a sum which, being deducted from the amount or value sued for, leaves a sum equal to or more than our jurisdictional limit, for which he failed to get a judgment or decree. And we have jurisdiction of a writ of error or appeal by a defendant when the recovery against him is as much in amount or value as is required to bring a case here, and when, having pleaded a set-off or counter-claim for enough to give us jurisdiction, he is defeated upon his plea altogether, or recovers only an amount or value which, being deducted from his claim as pleaded, leaves enough to give us jurisdiction, which has not been allowed. In this connection it is to be remarked that the 'amount as stated in the body of the declaration, and not merely the damages alleged, or the prayer for judgment, at its conclusion, must be considered in determining whether this court can take jurisdiction.' Lee v. Watson, and the other cases cited in connection therewith, supra. The same is true of the counter-claim or set-off. It is the actual matter in dispute as shown by the record, and not the ad damnum alone, which must be looked to.

Applying this rule to the present case, it is apparent we have no jurisdiction. The original matter in dispute was $3,000. On appeals from the supreme court of the District of Columbia we have jurisdiction only when the matter in dispute exceeds $2,500. Hilton recovered below one-half of the $3,000. It follows that as to him the matter in dispute in this court is only $1,500.

The appeal of Hilton is dismissed for want of jurisdiction, and that of Devlin for want of prosecution.


text: Talk:Hilton v. Dickinson/Opinion of the Court


text:
Ludloff v. United States

John V. L. Findlay, for plaintiffs in error.

''Sol. Gen. Phillips'', for defendant in error.

BLATCHFORD, J.

title: Ludloff v. United States


text: Talk:Ludloff v. United States

title: Talk:Ludloff v. United States