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United States v. Henry/Opinion of the Court

There is no question but that the claimant's case comes within the strict letter of the joint resolution.

The counsel for the United States, however, argues that the joint resolution can only have application to the case of an officer duly commissioned and entitled by law to be mustered into service as such officer, and that the finding of the court shows that the claimant was not entitled to be mustered in when he accepted his commission and offered himself for that purpose.

This would raise a very interesting question, and one which might not be easy of decision, if the record in this case fairly presented it. There is undoubtedly strong reason why Congress should have provided full pay for an officer who, holding a commission from the proper source, was given command and actually served as such officer, and had his rank recognized by all his superiors, though in point of fact not mustered in as such or entitled to be; and it is certain he would not be entitled to such pay without the enabling act. But we do not find in the record the evidence, or any finding of the court that the claimant was not entitled to be mustered into the service. The finding of the Court of Claims on that subject is as follows:

'Upon receipt of the commission from the governor of Ohio the claimant presented himself for muster, as second lieutenant, to the proper mustering officer of his division, but was refused such muster, the mustering officer alleging that Company D, to which the claimant was assigned, was reduced below the minimum number, and that, therefore, he was not entitled to be mustered.'

Counsel for the government, assuming that what the mustering officer alleged is to be treated here as an established fact, further assumes that that fact brings his case within the language of section twenty of the act of March 3d, 1863, to wit: 'That whenever a regiment is reduced below the minimum number allowed by law, no officers shall be appointed in such regiment beyond those necessary for the command of such reduced number.'

But the argument is open to more than one fatal objection.

1. The claimant having shown that he was regularly commissioned and served as a lieutenant, and was, without fault of his, refused a muster, so that he comes within the literal terms of the joint resolution; if any fact is relied on to defeat his claim, it should be specifically found and stated by the Court of Claims. This is not done by a finding of that court that the mustering officer alleged that Company D was reduced below the minimum number. If the fact that the company was below the minimum was important in the case, it should have been found as a fact by the court, and not stated merely as the alleged reason of the officer for refusing to muster in the claimant. The muster-roll of the company was within the control of the government, and would have settled the fact, one way or the other, beyond dispute.

2. The act relied on by counsel forbids the appointment of officers in a regiment, when it is reduced below the minimum number allowed by law, beyond those necessary for the command of such reduced number.

It is quite consistent with a reduction of Company D below the minimum for a company, that the regiment was not below the minimum for a regiment. Indeed, it is unreasonable to suppose that because a single company is reduced below the minimum, that the regiment is for that reason to be so treated, and to have no more officers appointed in it until that company is filled up.

There is no finding, nor any allegation, in the present case, that the regiment was below the minimum, and, therefore, this act does not apply. Nor are we pointed by counsel to any law or regulation of the service which fixes what is the minimum of a regiment of volunteer infantry. Nor does the Court of Claims find any facts from which, if we had such a law or regulation before us, we could decide whether this regiment, or, indeed, this company, was in fact below the minimum as established by law at the time the claimant offered himself for muster.

Under these circumstances, the judgment of the Court of Claims must be

AFFIRMED.


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

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Reed v. Gardner

ERROR to the Circuit Court for the Southern District of Georgia.

Gardner sued Reed in the court below. His declaration alleged that one Wilson had delivered to the defendant cotton, upon an agreement that he, the defendant, would sell the same, and out of the proceeds pay to him, Gardner, the plaintiff, $4000, in which sum the said Wilson was indebted to Gardner; that the property was sold, that the net proceeds were $9000, by means whereof the defendant became liable to pay to the plaintiff the $4000, and that he refused to pay the same. To this the defendant interposed a general denial and several special pleas. A trial was had, and verdict and judgment having been given for the plaintiff, the defendant brought the case here.

The bill of exceptions contained no statement of the evidence, or of the facts upon which the questions arose. It consisted only of the charge of the judge, and of requests and refusals to charge. There was, however, in the transcript a number of depositions, exhibits, certificates, &c., which appeared to have been used in the trial of the case.

Messrs. Carlisle and McPherson, for the plaintiffs in error, stating a case shown, as they conceived, by these, sought to show on it, that there had been error in the action of the court below.

Mr. W. W. Boyce, contra, argued that striking out the depositions, exhibits, certificates, &c., improvidently incorporated in the transcript, no such case as the counsel sought to put before the court was found in what remained, the true record, i. e., the pleadings, bill of exceptions, verdict, and judgment; and asked for an affirmance.

Messrs. Carlisle and McPherson replied that it could not be doubted that such evidence as was contained in the depositions, exhibits, certificates, &c., had been, in fact, given, and that the charge of the judge was based upon it; and suggested that if this court should think that the evidence was not put into the record in proper form, then, that, as in Tweed v. Flanders, the judgment should be reversed and the cause remanded for a new trial; this course being more conducive to justice than to affirm a judgment in a case where it plainly appeared that the court mistook the law, though the mistake might not be so presented as to be capable of being corrected by this court.

Mr. Justice HUNT delivered the opinion of the court.

title: Reed v. Gardner


text: Talk:Reed v. Gardner

title: Talk:Reed v. Gardner


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Reed v. Gardner/Opinion of the Court

It has been frequently held by this court, that in passing upon the questions presented in a bill of exceptions, it will not look beyond the bill itself. #fn-s-s The pleadings, and the statements of the bill, the verdict, and the judgment, are the only matters that are properly before the court. Depositions, exhibits, or certificates not contained in the bill, cannot be considered by the court. The case of Flanders v. Tweed, was exceptional. The court intend to adhere to this practice.

Under this rule there is then nothing whatever in the present case for the court to pass upon.

It is impossible upon a record such as this is, that we should know whether the charge is correct or erroneous, or whether the refusals to charge as requested were justified, or whether they were improper.

As already said, there is absolutely nothing presented to this court for consideration.

JUDGMENT AFFIRMED.

title: Reed v. Gardner/Opinion of the Court


text: Talk:Reed v. Gardner/Opinion of the Court


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Ray v. Smith

ERROR to the District Court for the Middle District of Alabama; the case being thus:

Smith, in November, 1866, sued Ray in the court below as the indorser of two negotiable notes, made by one Hark-away. The notes were both dated April 12th, 1861, and were made payable at the Bank of Mobile, one on the 1st day of March, 1862, and the other on the 1st day of November, in the same year. Both the maker and the indorser were then, and continued to be, citizens of the State of Alabama; and the holder of the notes was, and continued to be, a citizen of the State of New York. When the notes fell due in 1862, they were not presented for payment, in consequence of the war of the rebellion then existing, but they were presented in 1866, a certain time after the close of the war, and were dishonored. Notice of the dishonor was then given to the indorser.

The plaintiff alleged, in his declaration, as an excuse for the non-presentation of the notes at the time when they fell due, the existence of the civil war, and the residence of the holder in the State of New York, and that of the maker and indorser in Alabama, regions then at war with each other; and alleged further that he had presented the notes and given notice of the dishonor within a reasonable time after the termination of the war, specifying the date of the presentation, &c. The defendant set up that the date named was not reasonable in point of time. And evidence was given as to when the war ended and intercourse was resumed; when the notes could have been presented, and when they were in fact presented.

A portion of the evidence (descriptive of the course of business out of which the claim arose) was derived from a deposition of the plaintiff, taken de bene esse, which before the trial the defendant had moved to suppress. The court on this motion refused to suppress it. An exception was taken to this refusal, but on the trial it was read without objection.

It appeared in evidence that the maker of the notes, and Ray, the indorser, were partners in a business which was actively conducted by Ray; that after the notes were indorsed to the plaintiff, and before their maturity, Ray had in his hands of the profits of the business, belonging to the maker, a sum larger than the amount of the two notes; that this sum remained in his hands until after the notes matured, and that he was authorized to apply it to their payment, at their maturity. But it also appeared that he could not find the notes at their maturity, nor until the spring of 1866, at which time, as already said, they were presented to the maker for payment, and that before they were thus presented, the maker had instructed the defendant to apply the sum in his hands to the payment of other debts, which the defendant had done.

The court charged:

'If there were no evidence in this case that the maker of the notes in suit had provided the indorser with funds to discharge them at maturity, then the question whether the notes were legally presented for payment, and the question whether legal notice of protest was given to the indorser, would have had to be submitted to the jury. The evidence on this point is that Ray was provided by the maker of the notes with the means of indemnifying himself against his indorsement. He need not have parted with these means until the notes were paid and in his possession. He chose to do so, however, and cannot now complain of the want of demand on the maker, or notice of protest to himself. I therefore direct your verdict for the plaintiff for $1124.50, with interest thereon from the 4th March, 1862, and for $1124.50, with interest thereon from the 4th November, 1862.'

To this charge the defendant excepted, and offered to state to the court the grounds of his exceptions; but the court refused any such statement.

Messrs. R. T. Merrick and S. F. Rice, for the plaintiff in error, insisted:

1st. That the court had taken the case improperly from the jury.

2d. That it had improperly refused to suppress the deposition before the trial.

Mr. P. Phillips, contra.

Mr. Justice STRONG delivered the opinion of the court.

title: Ray v. Smith


text: Talk:Ray v. Smith

title: Talk:Ray v. Smith


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Ray v. Smith/Opinion of the Court

Whether timely presentment of the notes was made to the maker, and whether due notice of their dishonor was given to the defendant who had indorsed them, are questions which were not submitted to the jury. The court below appears to have been of opinion, that in view of the facts given in evidence, neither demand of payment nor notice to the indorser was necessary to justify a recovery against him. The jury was instructed in substance, that even if there was no legal demand and notice, the want of them was sufficiently excused; and that the plaintiff was entitled to a verdict for the amount of the notes with interest from the dates when, according to their terms, they fell due. It is necessary, therefore, to inquire whether the evidence, as exhibited in the bill of exceptions, warranted such instructions.

It is undoubtedly the law, that though the plaintiff was relieved by the war from obligation to make demand upon the maker of the notes when they came to maturity, it was necessary for him, in order to charge the indorser, to make such demand within a reasonable time after it became possible; that is, after the close of the war; unless he was excused by the fact that the indorser had sufficient funds of the maker in hand, which he had received in the course of a current business, and which he had authority to apply to the payment of the notes at their maturity. And whether that alone constituted a sufficient excuse, is the real question now.

An indorser of a promissory note is only secondarily liable. His responsibility is, in its nature, a contingent one, and ordinarily, performance of the condition to make demand of the maker and give notice of his default in due time is an essential part of the title of one who asserts an indorser's liability. It has often been regretted that courts have dispensed with the performance of that condition for any cause. Still, the principal reason for the requirement of demand and notice is, that the indorser, if looked to for payment, may have the earliest opportunity to take steps for his own protection. Hence, it has been said, in some cases, that when by no possibility a failure to make demand and give notice could have injured him, or rather, when they could by no possibility have enabled him to protect himself, proof of demand and notice are not necessary. It must be admitted there had been much inconsistency in the decisions respecting the application of this rule. In some, it has been held that if an indorser has taken an indemnity from the maker, he is not entitled to notice of default. But this is not sustained by sound reason, and the best-considered cases assert the contrary doctrine. The indemnity may prove insufficient. At all events, it is not inconsistent with the existence of a remedy over against the maker, and the correct rule, as stated by Bailey, J., in Brown v. Maffey, is that every indorser ought to have notice whenever he has a remedy over. All the cases agree, however, that when, by arrangement between the maker and the indorser, the latter has become the principal debtor, and primarily liable, he may not insist upon notice. Presentment to the maker followed by notice to himself can be of no service to him, for he has no remedy over. And he becomes the principal debtor when, either before or at the maturity of the note, he is supplied by the maker with sufficient funds for the purpose of paying it. Receiving the funds for such an avowed purpose, he assumes an obligation to take up the note; and, as has been said, he may be regarded as an agent who has undertaken to pay, and who, therefore, cannot be disappointed if his principal, trusting to his obligation, takes no further steps for the payment.

In the present case, the evidence does not necessarily establish that the funds which the indorser held were placed in his hands for the purpose of paying the notes. They were derived from the profits of the business, in conducting which he was a partner of the maker; and he was merely authorized to apply them to the payment of the notes, at their maturity. Whether this proved the existence of an obligation assumed by him to take them up, or in other words, whether, as between him and the maker, he thus became the primary debtor, is a question which the court could not correctly answer in the affirmative as a conclusion of law. If it did establish such an obligation, absence of demand and notice were immaterial, and the plaintiff was entitled to a verdict. But if it did not, if the indorser, as between himself and the maker, had not become the principal debtor, if the authority to pay the notes out of the fund in his hands was only an arrangement for his indemnity, we think he was at liberty to pay them to the maker at any time after the maturity of the notes, and before he had any notice that they remained unpaid. In such a case, his liability to the holder remained contingent, and consequently, unless there was a legal demand and notice, he cannot be charged. It follows, that the judge of the court below erred in directing a verdict for the plaintiff. The most that could properly be claimed by the holder of the notes, was that the evidence should be submitted to the jury to find whether it proved that the defendant had become the principal debtor by arrangement between him and the maker, with instructions that if it did, the plaintiff was entitled to recover; and that if it did not, the indorser could not be held liable without proof of reasonable demand upon the maker, and notice.

Nothing more need be said respecting the charge given to the jury. But as the case goes back for another trial, it is proper to notice an exception taken to the refusal of the court to suppress the deposition of the plaintiff. The deposition had been taken de bene esse, and before the trial the defendant moved to suppress it. But when it was offered at the trial, it was read without objection, and without exception. It may be that had it been objected to then, it should not have been received. But after having permitted it to be read at the trial without opposition, we think it cannot be objected now that the court received it.

JUDGMENT REVERSED, AND A NEW TRIAL ORDERED.

title: Ray v. Smith/Opinion of the Court


text: Talk:Ray v. Smith/Opinion of the Court

title: Talk:Ray v. Smith/Opinion of the Court


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Moore v. Huntington

APPEAL from the Supreme Court of the Territory of New Mexico.

Mrs. Huntington, widow by a former marriage of Nathan Webb, and administratrix of his estate, brought this, a suit in chancery, against W. H. Moore and W. C. Mitchell, as surviving partners of a firm of which her husband, whose sole heir by the laws of Texas she alleged herself to be, was a member at the time of his death. The object of the bill was to obtain a settlement of the partnership transactions, and she alleged that a large sum was due her on such settlement.

It admitted of no doubt that Moore and Mitchell, who had been doing business at Fort Union, in New Mexico, as post sutlers and general merchants, prior to 1859, in that year took into their partnership the decedent, Webb, who had previously been one of their clerks; and that in the year 1863 they started a business in Southern New Mexico and El Paso, Texas, which was placed under the especial charge of Webb.

It was also agreed that in regard to this latter business Moore, Mitchell, and Webb were equal partners, the interest of Webb being one-third.

In reference to the business at Fort Union the complainant alleged in her bill that her husband, on joining the partnership, put into its capital stock $16,000, and was taken in as an equal partner, and that written articles of agreement to that effect were signed by the parties. The defendants, Moore and Mitchell, who were required to answer under oath, did so, and while admitting the partnership, denied that Webb put in any capital, and averred that he was taken in for his business qualities. They denied that any articles of agreement were made or signed in writing, and they denied that his interest was one-third, and alleged that it was to be one-eighth.

As the transactions of the Fort Union branch of the concern were much the largest, and as nearly all the profits claimed by the complainant were made here, the difference was important.

The defendants denied also that the complainant was sole heir of their late partner, and asserted, contrariwise, that he had left, surviving him, his mother, who had an interest in his estate, and was a proper and necessary party, without whom the cause could not proceed.

The defendants filed a cross-bill against the complainant, which she answered.

No written articles of partnership as to the Fort Union business were produced or shown to have been made. One Shoemaker, father of the complainant, and 'very intimate with Moore,' testified in 1870 that in 1862 Moore had told him, 'as near as the witness could recollect,' that 'all the partners were jointly interested in the business of the firm. He never stated that the interests of the members were equal; neither did he ever state that they were not equal until a year and a half after Webb's death; and I never, until that time, heard anything to raise a doubt of Webb's equal interest.' Houghton, a brother-in-law of Webb, stated that he 'had frequently heard Webb say, and at various times and places, that he was a full and equal partner in both concerns, and in all the various branches and ventures of the firm at Fort Union. On one occasion he referred to the equality of their interests in the counting-room of the sutlers' fort.' 'To the best of my recollection,' said the witness, 'W. H. Moore was in the room. He took no part in the conversation, and I am not aware whether he heard what was said or not.' For the rest, the evidence as to the extent of Webb's interest in the firm at Fort Union, rested chiefly on the bill and answers.

The case being referred to a master, he held that the interest of Webb was one-third, and on this basis reported $97,596.19 due by the defendants; charging the defendants in such a way that, as his report seemed to indicate, they were charged as to come items twice for the same thing; charging them with property at the value which it had at the date of the decedent's death, and charging them with real estate the title to which was still in the decedent.

Sixteen exceptions to this report were filed by the defendants. Certain particulars of the report, and exceptions to them respectively, which were taken, are stated further on, in the opinion of this court in passing on them. They are, therefore, not more fully given here.

The Supreme Court of New Mexico, to which the case was taken on appeal from the District Court of the Territory, where it originated, reduced, 'for errors apparent on the record'-though for what errors did not anywhere appear, nor on account of which of the sixteen exceptions filed-the sum found by the master to $72,920.75, and 'in all other respects' affirmed it, and for the amount of $72,920.75; including in its affirmance, of course, the fundamental part by which the master assumed that Webb's interest in the Fort Union firm was one-third. In giving its decree of affirmance the Supreme Court adjudged that the complainant (appellee in the case before it) should have judgment against the securities in the bond for an appeal to that court, for the amount of the judgment, interest, and costs. The cross-bill was not in any manner referred to, and remained undisposed of.

The defendants now appealed to this court, assigning very numerous errors, and among them—

A disregard of the proofs in the matter of Webb's interest in the Fort Union firm; the fundamental matter of the suit.

A want of necessary parties, in the omission of the mother as one.

Decreeing finally upon the complainant's bill and the respondents' answers, without disposing at the same time of the issues raised upon the cross-bill.

Making a decree against the sureties in the appeal bond.

Double charges in the master's report.

Charges on wrong principles, as ''ex. gr. (a) of the estate at its value at the date of the decedent's death; (b'') of real estate over whose title the surviving partners had no control.

Messrs. John S. Watts, W. M. Evarts, and J. W. Noble, for the appellants; Messrs. W. W. McFarland and S. B. Elkins, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Moore v. Huntington


text: Talk:Moore v. Huntington

title: Talk:Moore v. Huntington


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Moore v. Huntington/Opinion of the Court

We are of opinion that the ruling which decided the interest of Webb in the Fort Union branch of the concern to have been one-third was erroneous. No witness ever saw any articles of agreement. It is not contended now that any such were proved to have had an existence. No witness was ever present at any conversation between the partners on that subject. One witness, a brother-in-law of Webb, states that he heard Webb say he was an equal partner in the business, which statement was made while Moore was in the room where it was said, but he cannot say that Moore heard it, or that it was said in his immediate presence. Other declarations of the decedent are proved to the same effect, but they are not competent evidence. The statements of Moore and Mitchell are explicit responses to allegations which they are called on to answer, and they are unshaken by anything in the record. It must be held that the interest of Webb in the Fort Union branch of the business was only one-eighth.

This necessarily reverses the decree, but other points demand attention.

It is asserted that the suit cannot proceed because the mother of decedent is not made a party, as she is one of his heirs-at-law. But this is not a suit for distribution, and although the complainant does assert herself to be sole heir, her suit may, nevertheless, be sustained as administratrix, in which right she also complains. A decree rendered in her favor in that capacity would not interfere with the rights of others who might claim of her a distribution after she received the money. That objection is not, therefore, tenable.

A cross-bill was filed by defendants against complainants, which was answered. No notice was taken of it in the final decree, which should have been done, though the court undoubtedly supposed it was disposing of the whole case. On the return of the case this may be corrected, and if on the next hearing the plaintiff in the cross-bill are entitled to any relief, the pleadings are a sufficient foundation for a decree in their favor.

The master presented two schedules or separate statements of the two branches of the business. The Texan and Southern New Mexico venture he styles the firm of N. Webb & Co., and the original partnership W. H. Moore & Co. To this there seems to be no objection. Numerous exceptions were taken to his report, which were overruled, and a decree for $97,596.19 was rendered in favor of complainant. This sum was reduced on appeal to the Supreme Court of the Territory by the sum of $24,675.44, and a final decree rendered there for the remainder. But on what ground this deduction was made, or to what exception it is referable, does not appear.

The decree was rendered in the Supreme Court jointly against the defendants and their sureties in the appeal bond, and it is alleged for error that no such judgment could be rendered against the latter. But there is no error in this. It is a very common and useful thing to provide by statute that sureties in appeal and writ-of-error bonds shall be liable to such judgment in the appellate court as may be rendered against their principals. This is founded on the proposition that such sureties, by the act of signing the bond, become voluntary parties to the suit and subject themselves thereby to the decree of the court.

Other exceptions to the report of the master, of considerable value in amounts, seem to us to be well taken.

1. In the schedule which refers to the business of N. Webb & Co. the assets are charged to defendants at $78,879.16 for goods, wares, and merchandise, and $76,103.03 for debts due and owing to the firm.

Immediately after this the defendants are charged in items Nos. 3, 4, and 5 with cash received by W. H. Moore of $10,258.75, $8166.70, and $2000.

It seems to us that these items are for money received on account of assets already charged, or for debts collected already charged, and are, therefore, twice charged against defendants.

2. So in the schedule of W. H. Moore & Co., the goods on hand at Fort Union July 2d, 1866, are charged to defendants at $182,656.71 and debts due the firm at $322,958.77.

Looking to the exhibit in the answer of Moore, on which this estimate is based, it is quite clear that in this latter sum, the item of $101,330.95, due by Moore, Adams & Co., is for all or a part of the goods charged in the first item of $182,000, purchased at the time that inventory was taken, and counted afterwards as part of the assets of the old firm. It is thus charged twice against defendants.

3. The defendants are credited in the schedule of N. Webb & Co. with fifty per cent. of the debts due the firm, after deducting what Webb and his wife owed that firm, and in the other schedule they are credited with $100,000, both for bad debts. This may or may not do justice, and it may possibly be the only approximate mode of doing it. But it goes upon the ground of charging the defendants with everything at the date of the decedent's death at its value at that time. Such is not the true rule. It was a legal right of the defendants, as surviving partners, to close out the concern, collect and dispose of its choses in action, and its property, pay what it owed, and then pay over to the plaintiff her just share of what was left. They were not bound to become purchasers of the decedent's interest at a valuation. But they were bound to use reasonable diligence and care in closing out the business, and in taking care of the decedent's interest. If they used such care and diligence they are only liable for what was realized in their hands when it was done. If they did not they are liable for what might have been realized by the use of such care and diligence. In this latter view it is not now possible to say with accuracy what the state of the account should be, and it is the duty of the master to ascertain this and make proper report on this point as well as others.

4. Again, while the defendants are charged with the value of certain real estate of the partnership, the title of it, which is in the plaintiff, is left there by the decree.

In short, the basis of the account being entirely erroneous in assuming the interest of Webb at one-third instead of one-eighth in the partnership of W. H. Moore & Co., and considering the loose and unsatisfactory character of the whole report, among which are doubtless other errors than those above mentioned, it is utterly insufficient as a foundation for any decree. Nor can we here undertake, with no other report, to render one with which we would be satisfied.

It is, therefore, ordered and decreed that the decree of the Supreme and District Courts be REVERSED; that the case be remanded with directions to set aside the entire report of the master; that a new master be appointed, with directions to adjust the accounts on the basis of an interest of one-eighth in Webb in the Fort Union branch of the business, and one-third in the other, and that such adjustment be made in conformity with this opinion, so far as it can serve for a guide, and that the final decree to be rendered in the case shall be a full settlement of all the matters litigated in the bill, cross-bill, and answers.


text: Talk:Moore v. Huntington/Opinion of the Court


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State v. Stoll

ERROR to the Supreme Court of the State of South Carolina; the case being thus:

Between the years 1801 and 1812 the legislature of South Carolina incorporated five banks, viz., the Bank of South Carolina, in 1801; the State Bank of South Carolina, in 1802; the Union Bank, and the Planters' and Mechanics' Bank, in 1810, and 'the President and Directors of the Bank of South Carolina,' called for brevity THE BANK OF THE STATE OF SOUTH CAROLINA, and sometimes THE BANK OF THE STATE, in 1812.

The preamble to the act of incorporation of this last-named bank set forth that 'it is deemed expedient and beneficial to the State and the citizens thereof to establish a bank on the funds of the State, for the purpose of discounting paper and making loans for longer periods than has heretofore been customary, and on security different from what has hitherto been required.'

The charter then declared that certain stocks, which were designated, should constitute and form the capital of the said bank, and be vested in the president and directors, who should be appointed in a manner there provided, and then adds:

'And the faith of the State is hereby pledged for the support of the said bank, and to supply any deficiency in the funds specially pledged, and to make good all losses arising from such deficiency.'

The sixteenth section of the charter to this bank provided, as did also the same section in the charters of the four other banks above referred to, as incorporated in previous years,

'That the bills or notes of the said corporation, originally made payable, or which shall have become payable, on demand, in gold or silver coin, shall be receivable at the treasury of this State, and by all tax collectors and other public officers, in all payments for taxes or other moneys due to the State.'

In 1832 the bank last named (the Bank of the State), and of which we are principally to speak, was rechartered by an enactment,

'That an act entitled an act to establish a bank in behalf of, and for the benefit of the State, passed on the 19th December, in the year of our Lord 1812, and all other acts now of force relating to the conduct and operations of the said bank, be, and they are hereby, re-enacted and continued of force until the 1st May, 1856.'

In 1852 the charter was again renewed in these terms:

'That from and after the expiration of the present charter of the Bank of the State of South Carolina, the same shall be, and is hereby extended until the 1st of January, which will be in the year of our Lord, 1871.'

So the charters of the four other banks were at different times extended, and among the times of the first two in 1822 and 1833; and of the last two in 1830; and in all these extensions or recharters the privileges of the sixteenth section of making the notes receivable in payment of taxes, irrespectively of the fact whether the notes were redeemable in specie, were retained. We speak hereafter of a recharter of these four banks in 1852 and 1853, when these privileges were not retained.

In 1857, in the act to raise supplies for the year commencing in October, 1857, it is provided:

'That the comptroller-general shall direct the tax collectors and treasurers to receive the taxes and other dues to the State only in notes of the Bank of the State, OR of specie-paying banks of this State, or in coin of the United States.'

In 1865 the legislature declared, that the branches and agencies of the Bank of the State of South Carolina should be closed, and the principal bank in Charleston cease to be a bank of issue, and continue to act as a bank of deposit until further orders of the legislature.

In 1868 the legislature passed an act to close the operations of the bank; and by the fourth section of the act enacted 'that the sixteenth section of the act, ratified the 19th December, 1812, entitled 'An act to establish, a bank on behalf of and for the benefit of the State,' and all acts and parts of acts which render the bills of said corporation receivable in payment of taxes and all other dues to the State, be, and the same are hereby repealed.'

In the year 1843, that is to say, before the date of the second recharter above mentioned of the Bank of the State, the legislature passed an act 'prescribing the duties of certain officers in the collection of supplies, payment of salaries, and for other purposes,' and the first section of this act enacted,

'That all taxes for the use and service of the State shall be paid in specie, 'paper medium,' or the notes of specie-paying banks.'

This was a permanent act. But in all previous years, with the exception of the year 1837, of which we speak directly, as far back at least as 1826, the same enactment had been introduced into each annual appropriation bill as a special enactment. In 1837, in which year there was a general suspension of specie payments throughout the United States, the enactment was:

'That the taxes be paid in specie. . . or the bills of the banks of the State. And if any bank shall in the opinion of the comptroller-general become unsafe, it shall be his duty to order their reception to be discontinued by the tax collectors.'

So far as regards the Bank of the State of South Carolina and the four other banks named in connection with it.

We now pass to certain banks incorporated in years of later date.

Between the year 1831 and the year 1836, seven of these banks were incorporated by the State, to wit: the Commercial Bank of Columbia, in 1831; the Merchants' Bank for South Carolina at Cheraw, in 1833; the Bank of Charleston, in 1834; the Bank of Camden, in 1835; the Bank of Hamburg, in the same year; the Bank of Georgetown, and the Southwestern Railroad Bank, in 1836. Except in the case of the one last named, the charters of each of these banks contained a section in the words following, viz.:

'The bills or notes of the said corporation, originally made payable on demand, or which shall have become payable, in gold or silver, current coin, shall be receivable by the treasurers, tax collectors, solicitors, and other public officers, in all payments for taxes, or other moneys due to the State, so long as the said bank shall pay gold and silver, current coin, for their notes; but whenever there shall be a protest on any of the bills or notes of the said bank for non-payment of specie, the comptroller-general shall be authorized, and he is hereby required, to countermand the receipt of the bills and notes of the said bank in payment of taxes or debts due to the State, unless good and satisfactory cause shall be shown him, by the said corporation, for protesting in a court of justice the payment thereof.'

title: State v. Stoll


text: Talk:State v. Stoll

title: Talk:State v. Stoll


text:
State v. Stoll/Opinion of the Court

The charter of the remaining bank was to the same effect, omitting the direction to the comptroller-general and his action thereon.

Reverting now to the five earlier banks and to recharters of them, the reader will remember that in the recharters of the Bank of the State of South Carolina, made, first in 1832 and again in 1852, 'the same,' the old charter of 1812-including, of course, the sixteenth section-was continued. And that the same thing was true of the four other banks, so far as related to their recharters as made in 1822, 1830, and 1833. But while in regard to the Bank of the State of South Carolina, no variation was made on the old charter during the active existence of the bank, nor until the legislature in 1868 passed the act to close its operations, the same was not true of the other four early banks which we have spoken of chiefly in connection with it. A variation was finally made on them. And when, after their recharters of 1822, 1830, and 1833, they were again rechartered in 1852 and 1853, the old sixteenth section was not re-enacted in regard to them, but they were made subject to the last above-quoted restriction of the later banks; the banks, namely, incorporated between the years 1831 and 1836.

In this condition of State legislation, one Wagner, who was indebted to the State for taxes for the year 1870, tendered to a certain Stoll, a collector of taxes, whose duty it was to collect and receive such taxes, in payment of his taxes, bills of the already mentioned 'the President and Directors of the Bank of the State of South Carolina,' or as more briefly called the Bank of the State of South Carolina, or Bank of the State. The bills were issued after December 20th, 1860, though not in aid of the rebellion. At the time of their presentation the bank did not redeem its notes in specie. The officer refused to receive them, and Wagner presented his petition to the court below for a mandamus to compel him to receive the same.

The question in the case was the nature and extent of the obligation of the contract which, under the sixteenth section of the charter of the Bank of the State, arose between the State of South Carolina and the holder of bills of the bank to receive the bills in payment of taxes due the State.

It was asserted by Stoll, the tax collector, that the sixteenth section of the charter of the bank had been repealed or so far modified by the act passed in 1843-enacting that 'all taxes for the use and service of the State shall be paid in specie, paper medium, or the notes of specie-paying banks of this State'-that thereafter the bills of the bank in question were not receivable for taxes due to the State, unless the bank was in fact at the time the taxes became payable a bank that redeemed its notes in specie; the argument being that although by this sixteenth section of the charter of the bank the receivability of its notes in payment of taxes or other moneys due to the State, was guaranteed, whether they were or were not in fact redeemed in coin when presented for payment; yet that the act of 1843 prohibited the receipt in payment of taxes of the notes of any bank which did not in fact redeem its notes in specie when presented for payment, and that the latter act being inconsistent with the former effected its repeal or modification.

The Supreme Court of the State thought this argument sound, and adjudged that the tax collector of the State was not bound to receive them, and refused the mandamus.

To reverse that judgment this writ of error was taken. The case was twice argued: first at the last term, and now, again, much more fully at this.

Messrs. W. W. Boyce, A. G. Magrath, and B. R. Curtis, for the plaintiff in error; Mr. D. H. Chamberlain, contra.

Mr. Justice HUNT delivered the opinion of the court.

It is evident from a comparison of the different statutes incorporating the banks-1st, that as to all the banks, the statutory description of their notes to be received in payment of taxes, referred to the form of the notes, viz., those expressed upon their face to be payable in gold or silver, and which are originally or by lapse of time had become payable on demand, and not to the fact that specie was actually paid when the notes were presented for payment; and 2dly, that the legislature intended to provide that a different rule should be applied to the two classes of banks. In the case of the banks chartered between 1801 and 1812, it was simply provided that their bills should be received in payment of taxes and other moneys due to the State. In the case of those chartered between the years 1831 and 1836, it was provided that their bills should be thus receivable so long only as they should pay gold and silver, current coin, for their notes. The two classes of banks were thus confessedly placed upon a different basis, and so remained when the act of 1843 was passed.

To justify this court in holding that the act passed in that year repealed or modified the sixteenth section of the charter of the bank in question, it must appear that the later provision is certainly and clearly in hostility to the former. If, by any reasonable construction, the two statutes can stand together, they must so stand. If harmony is impossible, and only in that event, the former law is repealed in part or wholly, as the case may be. The principle is thus expressed in Daviess v. Fairbairn: 'If a subsequent statute be not repugnant in all of its provisions to a prior one, yet if the latter statute clearly intend to prescribe the only rule which shall govern, it repeals the prior one.'

Is it clear and certain that the act of 1843 was intended to prescribe the only rule to govern the receivability of bank notes, and that a different rule was not intended to be applied to the banks chartered before 1812, and those chartered after 1831? Were not the words 'the specie-paying banks,' in the act of 1843, intended as a description of the banks then in existence, and which then actually paid specie on their notes, as if the act had said 'all taxes. . . shall be paid in specie,. . . or the notes of the banks of the State now paying specie in conformity with their charter, to wit: the notes of the Bank of the State of South Carolina, the Union Bank, &c.?'

The statute-book shows that for many years prior to 1843, at each successive session, the legislature passed an annual supply bill, in which was regularly re-enacted the provision, that the taxes due to the State for that year should be paid in specie, paper medium (a currency now at an end), or in the notes of specie-paying banks. This was a temporary and annual act, and was enacted yearly at least as early as the year 1826, until and including the year 1842, with the exception of the year 1837. In the year 1837, it is said the banks were in a state of suspension, and the legislature enacted that the taxes should 'be paid in specie,. . . or the bills of the banks of the State, and if any bank shall, in the opinion of the comptroller-general, become unsafe, so that its bills ought not to be received at the treasury, it shall be his duty to order their reception to be discontinued by the tax collectors.'

In the year 1843 the provision above recited and so frequently adopted was re-enacted as a part of the general law of the State, and it was no longer embraced in the annual supply bill.

Whether contained in the annual supply bills or in the more durable form of the act of 1843, we are satisfied that that act was not intended by the legislature as a repeal of the sixteenth section of the act incorporating the Bank of the State of South Carolina.

To sustain this view, we refer to the acts extending the charter of the bank in question. It was chartered in the year 1812. Its charter expired in the year 1832, and was in that year extended for a further term of twenty years. In the year previous, in the succeeding year, and in this same year, the legislature enacted the provision that 'taxes should be paid in specie, paper medium, or the notes of the speciepaying banks of the State.' It, however, re-enacted in its extended charter the provision that the notes of the Bank of the State should be receivable in payment of taxes, if payable in form in specie and on demand.

Again, in the year 1852, nine years after the passage of the act of 1843, the legislature for the second time extended the charter of this bank, including the original sixteenth section. If there be a conflict between these statutes, it might well be argued that the act of 1852 re-enacting the sixteenth section operated as a repeal of the law of 1843, so far as it related to this bank. Whether this be the case, or whether the two are to be continual as both continuing in force and as being applicable to different subjects, the result is the same, that the sixteenth section remains in force.

This view is further illustrated by the fact that the four other banks whose charters were granted prior to 1812, were extended without any alteration of their charters. Notwithstanding the yearly enactment that taxes should be collected in gold and silver, or the notes of specie-paying banks, the charters of the State Bank and of the Bank of South Carolina were extended in the year 1822, and those of the Union Bank and of the Planters' and Mechanics' Bank, in the year 1830, and again in 1833 the charters of the State Bank and the Bank of South Carolina were further extended; and in each instance the provision was retained making the notes receivable in payment of taxes without reference to the fact that their notes should be redeemed in specie. It is difficult to believe that the legislature intended the act of 1843 to act as a repeal or modification of these laws, some passed prior and some subsequent to that date.

It is evident, again, that the legislature of South Carolina, when they intended that the bills of non-specie-paying banks should not be received in payment of taxes, used language perfectly adapted to that purpose, and indicated the process by which it would easily, but certainly, be accomplished. Thus, in the charters of the banks incorporated between the years 1831 and 1836, is found the provision already quoted, viz.: 'That the bills or notes of said corporation, originally made payable on demand, or which shall have become payable, in gold or silver, current coin, shall be receivable by the treasurers, tax collectors, solicitors, and other public officers, in all payments for taxes or other moneys due to the State, so long as said bank shall pay gold and silver, current coin, for their notes. But whenever there shall be a protest on any of the bills or notes of said bank, for non-payment in specie, the comptroller-general shall be authorized, and is hereby required, to countermand the receipts of the bills and notes of the bank, in payment of taxes and debts due to the State, unless good and satisfactory cause shall be shown him, by the said corporation, for contesting in a court of justice the payment thereof.'

It is thus expressly enacted that its bills shall be receivable for taxes so long only as the said bank shall pay gold or silver current coin for its notes. A precise definition is given of what constitutes a failure so to pay, to wit, a protest for non-payment in specie of its notes or bills, and a mode is provided of precluding their further reception, to wit, the action of the comptroller-general.

Again, when the charters of the four early banks, the associates of the Bank of the State, in date as well as in the terms of their charter, were last extended, in 1852 and 1853, they were subjected to the same restrictions as the other banks mentioned. Their recharter was expressly made subject to the condition that their notes should be received in payment of taxes so long only as the banks should pay gold and silver current coin for their notes.

The Bank of the State was the property of the State. The State was its only stockholder, and its faith and credit stood publicly pledged for the payment of its notes. In the case of that bank all the specifications are absent. The legislature intentionally omitted to say that its bills should not be receivable for taxes when it failed to redeem them in specie. It omitted to furnish the test of non-specie-payment, a protest, and omitted to authorize the comptroller-general to forbid their reception.

It is scarcely credible, under these circumstances, that the legislature intended the Bank of the State to stand upon the same plane with the other banks. We do not think it was so intended or that such is the legal effect of the statutes we have been considering.

The absence, in the case of the Bank of the State, of the necessary machinery to prevent the reception of its notes if it ceased to be a specie-paying bank, affords a strong argument in support of this view. The notes were intended to be received by the hundreds of tax collectors throughout the State, a class of men not usually qualified to decide nice legal questions, and not elected with a view to their capacity to make such decisions. Yet the question of whether a bank was a specie-paying bank or a non-specie-paying bank rested in the judgment and decision of the collector. If one collector held as a matter of law that a bank which paid specie on its bills but refused to pay specie on its deposits was a specie-paying bank, he could receive its notes in payment of taxes. If the collector in an adjoining district held that the payment of its deposits was a more important element than the redemption of its notes in specie, and that this afforded the test of a specie-paying bank, the notes could be refused by him. Great and inevitable confusion would result. That such confusion was anticipated, and that it was intended to be avoided, is evident from the clear, detailed, and precise provisions applied to those banks where the actual payment of specie by them was intended to be required. These details not being provided for the Bank of the State, a strong argument arises that the actual payment of specie was not intended to be required of that bank.

That the principle of implied repeal or modification does not apply to the charter of the Bank of the State we are considering is evident also from two other considerations: 1. The State of South Carolina had publicly undertaken and promised that the notes of this bank should be taken in payment of taxes and all other debts due to the State. It impressed the credit of the State upon the notes. Every man who held and received them had a right to rely upon this promise. When the State intended to terminate this obligation, as it has been held it could do upon reasonable notice and as to after-issued bills, it was bound to do it openly, intelligibly, and in language not to be misunderstood. As a doubtful or obscure declaration would not be justifiable, so it is not to be imputed. 2. The provisions of a special charter or a special authority derived from the legislature are not affected by general legislation on the subject. The two are to be deemed to stand together; one as the general law of the land, the other as the law of the particular case.

In September, 1868, an act was passed by the legislature of South Carolina to close the operations of this bank. In the fourth section it was enacted that the original act, 'and all acts and parts of acts, which render the bills of said corporation receivable in payment of taxes and all other debts due to the State, be, and the same are hereby, repealed.' The sixteenth section was the act, the extension of 1832 and the extension of 1852 were 'the parts of acts' which rendered its bills receivable in payment of taxes. This was the explicit and intelligible declaration to which the public was entitled to, and the legislature intended to terminate the receivability of its notes in payment of taxes or debts due to the State. At this time, and not before, was the sixteenth section of its charter actually and legally repealed.

Much that is difficult in the consideration of the case of this bank is explained by the fact that the State itself was its sole stockholder, receiving all the benefits of its bills issued, and responsible for all its losses and the payment of its bills.

Upon the whole case we are clear that the judgment below must be REVERSED, AND A MANDAMUS ISSUED to the collector, directing him to receive in payment of the relator's taxes the bills offered by him.

I dissent from the opinion of the court in this case. I agree that the legislature of South Carolina meant the same thing by the expression 'notes of specie-paying banks' and the expression 'notes of banks payable in specie,' or an equivalent phrase. But, in my judgment, it was meant by both expressions to indicate 'notes of banks actually paying specie.'

The other questions in the case were not raised or considered and need not be adverted to.

Mr. Justice SWAYNE did not sit in this case.

title: State v. Stoll/Opinion of the Court


text: Talk:State v. Stoll/Opinion of the Court


text:
Lasere v. Rochereau

ERROR to the Supreme Court of Louisiana, in which court several cases were consolidated. They came from it here as a single case.

''Messrs. J. A. & D. G. Campbell, for the plaintiff in error. No opposing counsel''.

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

title: Lasere v. Rochereau


text: Talk:Lasere v. Rochereau

title: Talk:Lasere v. Rochereau


text:
Lasere v. Rochereau/Opinion of the Court

In May, 1863, the plaintiff in error was, and had been for many years, a resident of the city of New Orleans. On the 9th of that month-being 'a registered enemy' of the United States-a military order was issued that he should 'leave that parish for the so-called Confederacy before the 15th instant.' The order was obeyed. He proceeded to Mobile, and remained there until the capture of that place by the National forces in April, 1865. He thereupon returned immediately to New Orleans, and was not further molested there by the military authorities. The subjugation of the city of New Orleans by the forces of the United States became complete on the 6th of May, 1863. It remained thenceforward in their possession until the close of the insurrection. The absence of Lasere from New Orleans, like his departure, was enforced and involuntary. He intended to return, and, as soon as permitted to do so, did return and resume his residence. In the fall of 1863, after his expulsion, proceedings by executory process were instituted against him upon two mortgages for the seizure and sale of the mortgaged premises, consisting of a house and lot in New Orleans. The first order bears date on the 23d of November. On the 27th of that month the sheriff returned on the notice of demand of payment, that, 'after diligent search and inquiry,' he 'was informed' that Lasere had 'left the city and State without leaving an agent to represent him.' A curator ad hoc was thereupon appointed, but it does not appear that he took any action. 'After the legal delay had expired' the sheriff proceeded to advertise and sell the premises, and conveyed them to the purchaser. Lasere, after his return from Mobile, instituted the original cases to vacate those proceedings. They terminated in the adverse judgment which is before us for review.

It is contrary to the plainest principles of reason and justice that any one should be condemned as to person or property without an opportunity to be heard. Scant time was allowed the plaintiff in error to prepare for his removal within the Confederate lines. During his absence he had no legal right to appoint an agent or to transact any other business in New Orleans. This legal proposition has been so often and so fully discussed by this court that it is needless to go over the same ground again.

If the law were otherwise, it is to be presumed that any communication between Mobile and New Orleans was impracticable. Lasere doubtless knew nothing of the proceedings against him; and, if he had had such knowledge, he was powerless to do anything to protect his rights.

The point here involved was decided by this court in Dean v. Nelson. It was there said: 'The defendants in the proceedings' meaning the original proceedings-'the appellees here, were within the Confederate lines at the time, and it was unlawful for them to cross those lines. Two of them had been expelled the Union lines by military authority, and were not permitted to return. The other, Benjamin May, had never left the Confederate lines. A notice directed to them and published in a newspaper was a mere idle form. They could not lawfully see obey it. As to them, the proceedings were wholly void and inoperative.'

The case thus condemned is substantially the one before us.

JUDGMENT REVERSED, and the case remanded to the court whence it came, with directions to proceed

IN CONFORMITY TO THIS OPINION.


text: Talk:Lasere v. Rochereau/Opinion of the Court


text:
Ex parte Atocha

PETITION and motion for mandamus: the case being thus:

By the treaty of Guadalupe Hidalgo, made on the 2d of February, 1848, between the United States and Mexico, the United States exonerated Mexico from all demands of their citizens, which had previously arisen, and had not been decided against that government, and engaged to satisfy them to an amount not exceeding $3,250,000. They also stipulated for the establishment of a board of commissioners to ascertain the validity and amount of the claims, and provided that its awards should be final.

In execution of this stipulation Congress, on the 3d of March, 1849, passed an act creating a board of commissioners to examine the claims, and provided for the payment of its awards, or a proportional part thereof, from the amount designated in the treaty. The act required the board to terminate its business within two years from the day of its organization.

To this board Alexander J. Atocha, a naturalized citizen of the United States, presented a claim against the government of Mexico for losses sustained by reason of his expulsion from that country in 1845. In the prosecution of his claim evidence was taken and laid before the board, but whether it was acted upon, and what proceedings were subsequently taken, did not appear by the record. For aught that appeared the claim might not have been prosecuted to a final determination; it might have fallen from the expiration of the board, or it might have been rejected on its merits. It was, however, immaterial, so far as the present inquiry was concerned, what had been its fate before the board. If rejected, the United States were the only party to insist upon the finality of the determination. Mexico was released from the claim, and it did not concern her what consideration the United States might choose to give to it, so long as other claimants against her were not in consequence denied payment of their demands, and there was no pretence that such was the case. On the contrary, a balance remained of the amount designated in the treaty after the satisfaction of the awards made. And on the 14th of February, 1865, Congress passed a special act for the relief of Atocha, and by it directed the Court of Claims to examine into his claim, and provided that if the court was of opinion that the claim was a just one against Mexico when the treaty of 1848 was ratified, and was embraced by that treaty, it should 'fix and determine' its amount, and declared that the loss or damage sustained by him, thus adjudicated and determined, should be paid out of any money in the treasury not otherwise appropriated, subject only to the condition that the amount did not exceed the unapplied balance of the sum designated in the treaty.

The claim was accordingly brought, in pursuance of the act, before the Court of Claims for examination and determination. To aid in its examination Congress passed, on the 5th of April, 1870, an amendatory act authorizing Atocha, in the prosecution of his claim, and the government in defending against it, to use such portions of the evidence taken in pursuance of the rules and regulations of the commission established under the treaty as consisted of the testimony of persons since deceased, and declared that the court should give to this evidence, so far as its subject-matter was competent, such weight as in the judgment of the court, under all the circumstances, it ought to have.

On the 26th of May, 1873, the Court of Claims rendered its decision. Reciting that having examined into the claim, in pursuance of the act of Congress, it announced that it was of opinion that the claim was a just one against Mexico when the treaty of 1848 was ratified, and was embraced by that treaty, and 'fixed and determined' the amount of the loss and damage sustained by Atocha by reason of his expulsion from that country at the sum of $207,852.60, and declared that this sum would be satisfied and discharged by the payment by the United States to Eliza J. Atocha, who is the administratrix of the estate of the original claimant, of the balance remaining unapplied of the sum designated in the treaty, which was a few hundred dollars less than the amount awarded.

From this decision the Attorney-General applied for an appeal on behalf of the United States. The application was denied, the Court of Claims being of opinion that no appeal was by law allowed in the case. On motion of the Attorney-General an alternative writ of mandamus was directed to the judges of that court to allow the appeal. In their return the judges referred to the special act under which the Court of Claims heard the case, and placed their refusal on the ground, substantially, that the court acted not under any general grant of jurisdiction, but under the limited authority prescribed by that act; that it was the intention of Congress that the court should proceed not as a court trying an action against the United States, but as a commission similar to that provided by the treaty; that no claim against the United States was submitted to its adjudication; that in the absence of any provision in the special act for an appeal none would lie unless some other provision of law authorized it, and that the provisions contained in the general acts of March 3d, 1863, and June 25th, 1868, in relation to appeals from judgments of the Court of Claims, did not apply, as the first act only gave an appeal from judgments on claims against the United States, and the second act from judgments adverse to the United States.

Upon this return, as upon a demurrer to its sufficiency, the Attorney-General asked for a peremptory mandamus.

Mr. G. H. Williams, Attorney-General, and Mr. J. Goforth, Assistant Attorney-General, in favor of the mandamus; Messrs. J. J. Weed, W. P. Clarke, R. M. Corwine, and Edward Janin, contra.

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

title: Ex parte Atocha


text: Talk:Ex parte Atocha

title: Talk:Ex parte Atocha


text:
Ex parte Atocha/Opinion of the Court

The question for determination is, whether, under the acts of Congress investing the Court of Claims with general jurisdiction to hear and determine claims, an appeal lies from its decision in this case. If an appeal is authorized it must be by the provisions of the act of March 3d, 1863, amending the act establishing the Court of Claims, or of the act of June 25th, 1868, providing for appeals from its judgments.

The original act of February 24th, 1855, establishing the court, gave it jurisdiction to hear and determine all claims founded upon any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the government of the United States, which might be suggested to it by petition, and all claims which might be referred to the court by either house of Congress; but it did not authorize any appeal from the decisions of the court. It required the court to report to Congress the cases upon which it had finally acted, and the material facts established by the evidence in each, with its opinion and the reasons upon which the opinion was founded. It was not until the passage of the act of March 3d, 1863, that an appeal from its decisions was allowed. That act materially amended the original act, added two more judges, gave the court jurisdiction over set-offs and counter-claims, and authorized an appeal to the Supreme Court in all cases where the amount in controvery exceeded $3000, and without reference to the amount, where the case involved a constitutional question, or the judgment or decree affected a class of cases, or furnished a precedent for the future action of an executive department. But the act at the same time declared that the jurisdiction of the court should not extend to or include any claim against the government, not pending in the court on the 1st of December, 1862, growing out of or dependent on any treaty stipulation entered into with foreign nations or the Indian tribes. All the cases of which the court could subsequently take cognizance, by either the original or amendatory act, were cases arising out of contracts or transactions between the government or its officers and claimants; and in their decision the court was to be governed by those established rules of evidence which determine controversies between litigants in the ordinary tribunals of the country. Those acts have since then applied only to claims made directly against the United States, and for the payment of which they were primarily liable, if liable at all, and not to claims against other governments, the payment of which the United States had assumed or might assume by treaty.

The act of June 25th, 1868, whilst allowing appeals on behalf of the United States from all final judgments of the Court of Claims adverse to the United States, did not change the character of the claims of which that court could previously take cognizance. Claims under treaty stipulations are not brought within it, and when jurisdiction over such claims is conferred by special act, the authority of that court to hear and determine them, and of this court to review its action, is limited and controlled by the provisions of that act.

In the case of Meade v. United States, the special act of Congress was passed to remove the restriction of the ninth section of the act of 1863, and his claim was referred to the Court of Claims 'for adjudication thereof, pursuant to authority conferred upon said court by any existing law to examine and decide claims against the United States, referred to it by Congress.' His claim was thus placed under the jurisdiction of the court equally as though the ninth section were not in existence.

In the present case, no such general reference was made of the claim of Atocha, nor was any such extended authority over it conferred. The court was directed to make a specific examination into the justice of the claim against Mexico, and whether it was embraced within the treaty; and if the court was of opinion that the claim was a just one and was embraced within the treaty, it was required 'to fix and determine' its amount, and when so determined, the act declares that the amount shall be paid. The matter was referred to the court to ascertain a particular fact to guide the government in the execution of its treaty stipulations. The court has acted upon the matter, and as no mode is provided for a review of its action, it must be taken and regarded as final.

Our judgment is, that the return of the judges of the Court of Claims to the alternative writ is sufficient, and a peremptory mandamus is

DENIED.

title: Ex parte Atocha/Opinion of the Court


text:
Page:Triangles of life, and other stories.djvu/17

Rh he'd be Billy very drunk, who had never been drunk in his life.

Was it the Billy of previous incarnation come out again for the moment?

They never grew tired of Seeing Billy do it, and "Come and see Bill the cook drunk" was a common invitation to strangers and new-comers. They intended to use him for practical jokes on the boss, etc., but it wasn't in Billy's nature to agree to anything like that.

One-Eyed Bogan was left in camp that afternoon to mutual satisfaction, to look after poor Little Billy and his dry horrors, because Bogan was the most casual, easy-going, and pipe-lighting, and water-bag-seeking worker in that hell's vineyard—as well as the strongest and least nervous man in camp. Besides, he said he had experience with lunatics, and (besides) he owed a debt of gratitude to Billy, and they reckoned he would be kinder to the little fellow on that account.

"And you never know how snake-quick an' cunning an' strong them little fellers is when they're drunk or ratty. But I'm cunnin' enough, I reckon, 'n' strong enough too for pore little Billy."

One-Eyed Bogan had a naturally sinister expression, and had been otherwise damaged about the face in many gambling and drinking rows, and his green patch and glaring eye must have been very soothing indeed to a mild little new chum going mad through heat, trouble and loneliness in a strange and fearful land.

Bogan said at tea that he'd fixed Billy with his eye all right, which was very apparent, for Billy was much


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


text:
Alexandria and Washington Railroad Company v. Brown

ERROR to the Supreme Court for the District of Columbia; the case being thus:

In the year 1854, Congress authorized the Alexandria and Washington Railroad Company, a company which had been incorporated by the State of Virginia, and whose road began at Alexandria, a town seven miles south of Washington, and ran northward to the south side of the Potomac, to extend their road into the District of Columbia, in a way designated.

The act of incorporation provided that in case of suit against the company 'the service of process. . . may be made on. . . any director of the company.'

In 1863, the company got a further grant of power, authorizing it to extend its road northward, so as to connect itself with the Baltimore and Ohio Railroad. This grant was, however, accompanied with a provision, 'that no person shall be excluded from the cars on account of color.'

In 1866, the Washington, Alexandria, and Georgetown Railroad Company, which had succeeded to the chartered rights of the old Alexandria and Washington Company, obtained from Congress an amendment to the last-mentioned act-the act of 1863-so as to change the route of extension, and for other purposes. This act speaks of 'the Washington, Alexandria, and Georgetown Railroad Company,' as 'a corporation lawful succeeding to the charter, rights, and privileges of the Alexandria and Washington Railroad Company.' The road, under its new name, was at the time of this act leased to two persons named Stevens and Phelps. The new company not very long after fell into pecuniary difficulties, and the portion of it within the District of Columbia, by a decree of the Supreme Court of the District, was placed in the possession of a receiver, and the whole road was worked on the joint-account of the lessees on the Virginia side and the receiver on the District side.

In this condition of things, one Catharine Brown, a colored woman, on the 8th of February, 1868, anterior to the adoption of the fourteenth and fifteenth amendments to the Constitution, bought a ticket to come from Alexandria to Washington. The ticket was issued in the name of 'the Washington, Georgetown, and Alexandria Railroad Company;' as were, indeed, all the tickets at each end of the route. No tickets were distinguished as for white persons or colored persons, nor for any particular sort or class of cars. All were exactly alike.

When the woman went to take her place in the cars there were standing there two cars, alike comfortable; the one, however, set apart for colored persons, and the other 'for white ladies, and gentlemen accompanying them;' the regulation having been that in going down from Washington to Alexandria, the first should be occupied by the former, and the last by the latter; and that in coming back the use should be simply reversed. When about to get into one of the cars, a servant of the persons managing the road, stationed near the cars to direct passengers, told the woman not to get into the car into which she was about to enter, but to get into the one before it; that he had been instructed by persons in charge of the road not to permit colored persons to ride in the car in which she was getting, but to have them go in the other. The woman, however, persisted in going into the car appropriated for white ladies, and the man put her out with force, and as she alleged, some insult. She then got into the car into which she had been directed to get-the one assigned to colored people-was carried safely into Washington and got out there.

Hereupon she sued the Washington, Alexandria, and Georgetown Railroad Company in the Supreme Court of the District.

The marshal of the District made return that he had 'served copy of summons and declaration on Joseph Stewart, reputed to be one of the directors of the company, the defendant.' Judgment was entered by default, and the question of damages referred to a jury for inquisition. The company afterwards moved to set aside the judgment because no sufficient service had been made. The court refused to grant this motion as thus asked for; but granted it on the entry of an appearance in ten days by the company and the receiver; and ordered the case to be put on the calendar for trial. The case was tried. On the trial evidence was introduced by the defendant tending to show that the ejection had not been with insult or unnecessary force; that the regulation of separating white from colored persons was one which was in force on the principal railroads in the country; that unless the said regulation had been adopted on this road, travel upon it would have been seriously injured; and that the establishment of such a regulation itself increased the expenses of the road considerably, and that without such a regulation the receipts of the road would have decreased.

The counsel of the company requested the court to instruct the jury:

1st. That on the evidence there had not been due service of process on the defendant, and that the plaintiff could not recover.

2d. That if the injuries complained of were received when the road was in the possession of the lessees and receiver,-worked and conducted by them,-the verdict should be for the defendant.

3d. That if by a standing regulation certain cars were appropriated and designated for the use of white persons, and certain others for the use of colored, and all the cars were equally safe, clean, and comfortable, and if this sort of regulation was one in force on the principal railroads of the country, and one which unless it has been adopted on this road, the travel on it would have been seriously injured and the receipts of the road decreased, and if the establishment of such a regulation itself increased the expenses of the road considerably then, in case no insult nor greater force than was necessary had been used, and the plaintiff after taking a seat in the car appropriated for colored persons, was carried safely into Washington and got out there-that the plaintiff could not recover.

The court refused to give any one of the instructions, and a verdict having been given in $1500 for the plaintiff and judgment entered on it, the company brought the case here, assigning as three causes of error the refusals to give the charges requested.

Messrs. T. T. Crittenden and D. Clarke, for the plaintiff in error; Messrs. S. R. Bond and W. A. Cook, contra.

Mr. Justice DAVIS delivered the opinion of the court.


text: Talk:Alexandria and Washington Railroad Company v. Brown


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Alexandria and Washington Railroad Company v. Brown/Opinion of the Court

There are but three points in this record which the assignments of error bring before us for review, and only the last relates to the merits of the controversy.

1. It is objected that the Circuit Court did not acquire jurisdiction of the defendant below for want of proper service of process. But this objection is not well taken, because the process was served on Stewart, a director of the road, and this service was in conformity to law. It is true the marshal does not return as a fact that Stewart was a director, only that he was reputed to be so, but the record shows he was a director when the road was leased, and in the absence of proof to the contrary, it will be presumed this relation existed when the summons in this case was served. Even if the service were defective, the plaintiff in error is not in a position at this time to except to it. The record discloses that, soon after the action was commenced, a judgment by default was entered for want of a plea, and that the plaintiff in error appeared by attorney and moved the court to set it aside on the ground that there had been no sufficient service of process. This motion was denied for the reason stated, but the court ordered the default to be opened and the cause placed on the trial calendar, on the condition that the appearance of the plaintiff in error was entered by the receiver within a period of ten days. This order was, doubtless, made in order to give the company an opportunity to defend, and at the same time to set at rest the point raised about the service in case the merits of the action were tried. The condition thus imposed was complied with, and for aught that appears, the subsequent litigation has been conducted on the part of the company by its voluntary appearance in every stage of the case.

2. The second assignment of error denies the liability of the corporation for anything done while the road is operated by the lessees and receiver.

It is the accepted doctrine in this country, that a railroad corporation cannot escape the performance of any duty or obligation imposed by its charter or the general laws of the State by a voluntary surrender of its road into the hands of lessees. The operation of the road by the lessees does not change the relations of the original company to the public. It is argued, however, that this rule is not applicable where the proceeding, instead of being voluntary, is compulsory, as in the case of the transfer of possession to a receiver by a decree of a court of competent jurisdiction. Whether this be so or not, we are not called upon to decide, because it has never been held that the company is relieved from liability, unless the possession of the receiver is exclusive and the servants of the road wholly employed and controlled by him. In this case the possession was not exclusive, nor were the servants subject to the receiver's order alone. On the contrary, the road was run on the joint account of the lessees and receiver, and the servants employed and controlled by them jointly. Both were, therefore, alike responsible for the act complained of, and if so, the original company is also responsible, for the servants under such an employment, in legal contemplation, are as much the servants of the company as of the lessees and receiver.

Apart from this view of the subject, the ticket on which the plaintiff rode, was issued in the name of the Washington, Georgetown, and Alexandria Railroad Company, as were all the tickets sold at both ends of the route. The holder of such a ticket contracts for carriage with the company, not with the lessees and receiver. Indeed, there is nothing to show that Catharine Brown knew of the difficulties into which the original company had fallen, nor of the part performed by the lessees and receiver in operating the road. She was not required to look beyond the ticket, which conveyed the information that this road was run as railroads generally are, by a chartered company. Besides, the company having permitted the lessees and receiver to conduct the business of the road in this particular, as if there were no change of possession, is not in a position to raise any question as to its liability for their acts.

The third and last assignment of error asserts the right of the company to make the regulation separating the colored from the white passengers.

If the defendant in error had the right to retain the seat she had first taken, it is conceded the verdict of the jury should not be disturbed.

It appears that the Washington and Alexandria Railroad Company, in 1863, was desirous of extending its road from the south side of the Potomac near to the Baltimore and Ohio depot, in Washington, and Congressional aid was asked to enable it to do so. The authority to make the extension was granted, and the streets designated across which the road should pass. This grant was accompanied with several provisions, among the number was one that no person shall be excluded from the cars on account of color. In 1866, the plaintiff in error, which had succeeded to the chartered rights of the previous company, obtained from Congress an amendment to the former act, so as to change the route of the extension, and for other purposes. The latter act leaves all the provisions of the former act in full force, and the present company, therefore, is obliged to observe in the running of its road all the requirements imposed by Congress in its previous legislation on the subject. This leads us to consider what Congress meant in directing that no person should be excluded from the cars of the company on account of color.

The plaintiff in error contends that it has literally obeyed the direction, because it has never excluded this class of persons from the cars, but on the contrary, has always provided accommodations for them.

This is an ingenious attempt to evade a compliance with the obvious meaning of the requirement. It is true the words taken literally might bear the interpretation put upon them by the plaintiff in error, but evidently Congress did not use them in any such limited sense. There was no occasion in legislating for a railroad corporation to annex a condition to a grant of power, that the company should allow colored persons to ride in its cars. This right had never been refused, nor could there have been in the mind of any one an apprehension that such a state of things would ever occur, for self-interest would clearly induce the carrier-south as well as north-to transport, if paid for it, all persons, whether white or black, who should desire transportation. It was the discrimination in the use of the cars on account of color, where slavery obtained, which was the subject of discussion at the time, and not the fact that the colored race could not ride in the cars at all. Congress, in the belief that this discrimination was unjust, acted. It told this company, in substance, that it could extend its road within the District as desired, but that this discrimination must cease, and the colored and white race, in the use of the cars, be placed on an equality. This condition it had the right to impose, and in the temper of Congress at the time, it is manifest the grant could not have been made without it. It was the privilege of the company to reject it, but to do this, it must reject the whole legislation with which it was connected. It cannot accept a part and repudiate the rest. Having, therefore, constructed its road as it was authorized to do, and in this way greatly added to the value of its property, it will be held to a faithful compliance with all the terms accompanying the grant by which it was enabled to secure this pecuniary advantage.

In our opinion there is no error in the record, and the judgment below must be

AFFIRMED.


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Adams v. Burke

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

On the 26th day of May, 1863, letters-patent were granted to Merrill & Horner, for a certain improvement in coffinlids, giving to them the exclusive right of making, using, and vending to others to be used, the said improvement.

On the 13th day of March, 1865, Merrill & Horner, the patentees, by an assignment duly executed and recorded, assigned to Lockhart & Seelye, of Cambridge, in Middlesex County, Massachusetts, all the right, title, and interest which the said patentees had in the invention described in the said letters-patent, for, to, and in a circle whose radius is ten miles, having the city of Boston as a centre. They subsequently assigned the patent, or what right they retained in it, to one Adams.

Adams now filed a bill in the court below, against a certain Burke, an undertaker, who used in the town of Natick (a town about seventeen miles from Boston, and therefore outside of the circle above mentioned) coffins with lids of the kind patented, alleging him to be an infringer of their patent, and praying for an injunction, discovery, profits, and other relief suitable against an infringer.

The defendant pleaded in bar:

'That he carries on the business of an undertaker, having his place of business in Natick, in said district; that, in the exercise of his said business, he is employed to bury the dead; the when so employed it is his custom to procure hearses, coffins, and whatever else may be necessary or proper for burials, and to superintend the preparation of graves, and that his bills for his services in each case, and the coffin, hearse, and other articles procured by him, are paid by the personal representatives of the deceased; that, since the date of the alleged assignment to the plaintiff of an interest in the invention secured by the said letters-patent, he has sold no coffins, unless the use of coffins by him in his said business, as above described, shall be deemed a sale; has used no coffins, except in his said business as aforesaid; and has manufactured no coffins containing the said invention; and that since the said date he has used in his business as aforesaid, in Natick, no coffin containing the invention secured by said letters-patent, except such coffins containing said invention as have been manufactured by said Lockhart & Seelye, within a circle, whose radius is ten miles, having the city of Boston as its centre, and sold within said circle by said Lockhart & Seelye, without condition or restriction.'

The validity of this plea was the question in the case. The court below, referring to the case of Bloomer v. McQuewan, in which Taney, C. J., delivering the opinion of the court, said:

'When a machine passes to the hands of the purchaser, it is no longer within the limits of the monopoly. It passes outside of it, and is no longer under the protection of the act of Congress.'

And referring also to some other cases, held that the plea was good. And from a decree which followed, dismissing, of course, the bill, this appeal was taken.

Mr. C. B. Goodrich, for the appellant; Messrs. R. H. Dana and L. S. Dabney, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Adams v. Burke


text: Talk:Adams v. Burke

title: Talk:Adams v. Burke


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Adams v. Burke/Opinion of the Court

The question presented by the plea in this case is a very interesting one in patent law, and the precise point in it has never been decided by this court, though cases involving some of the considerations which apply to it have been decided, and others of analogous character are frequently recurring. The vast pecuniary results involved in such cases, as well as the public interest, admonish us to proceed with care, and to decide in each case no more than what is directly in issue.

We have repeatedly held that where a person had purchased a patented machine of the patentee or his assignee, this purchase carried with it the right to the use of that machine so long as it was capable of use, and that the expiration and renewal of the patent, whether in favor of the original patentee or of his assignee, did not affect this right. The true ground on which these decisions rest is that the sale by a person who has the full right to make, sell, and use such a machine carries with it the right to the use of that machine to the full extent to which it can be used in point of time.

The right to manufacture, the right to sell, and the right to use are each substantive rights, and may be granted or conferred separately by the patentee.

But, in the essential nature of things, when the patentee, or the person having his rights, sells a machine or instrument whose sole value is in its use, he receives the consideration for its use and he parts with the right to restrict that use. The article, in the language of the court, passes without the limit of the monopoly. That is to say, the patentee or his assignee having in the act of sale received all the royalty or consideration which he claims for the use of his invention in that particular machine or instrument, it is open to the use of the purchaser without further restriction on account of the monopoly of the patentees.

If this principle be sound as to a machine or instrument whose use may be continued for a number of years, and may extend beyond the existence of the patent, as limited at the time of the sale, and into the period of a renewal or extension, it must be much more applicable to an instrument or product of patented manufacture which perishes in the first use of it, or which, by that first use, becomes incapable of further use, and of no further value. Such is the case with the coffin-lids of appellant's patent.

It seems to us that, although the right of Lockhart & Seelye to manufacture, to sell, and to use these coffin-lids was limited to the circle of ten miles around Boston, that a purchaser from them of a single coffin acquired the right to use that coffin for the purpose for which all coffins are used. That so far as the use of it was concerned, the patentee had received his consideration, and it was no longer within the monopoly of the patent. It would be to engraft a limitation upon the right of use not contemplated by the statute nor within the reason of the contract to say that it could only be used within the ten-miles circle. Whatever, therefore, may be the rule when patentees subdivide territorially their patents, as to the exclusive right to make to to sell within a limited territory, we hold that in the class of machines or implements we have described, when they are once lawfully made and sold, there is no restriction on their use to be implied for the benefit of the patentee or his assignees or licensees.

A careful examination of the plea satisfies us that the defendant, who, as an undertaker, purchased each of these coffins and used it in burying the body which he was employed to bury, acquired the right to this use of it freed from any claim of the patentee, though purchased within the ten-mile circle and used without it.

The decree of the Circuit Court dismissing the plaintiff's bill is, therefore,

AFFIRMED.

title: Adams v. Burke/Opinion of the Court


text: Talk:Adams v. Burke/Opinion of the Court


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Philp v. Nock

ERROR to the Supreme Court of the District of Columbia.

Nock brought an action in the court below against Philp and others to recover damages for the infringement of a patent granted to him by the United States for an improvement touching the lids of inkstands and the hinge whereby such lids are attached. The case came on to be tried in March, 1870, and therefore while the Patent Act of July 4th, 1836, which in suits against infringers gives to patentees 'the actual damages sustained' by them, was in force; a similar provision, however, being made in the subsequent Patent Act of July 8th, 1870. The bill of exceptions showed that the plaintiff gave in evidence that during the term of the patent 'the defendants had sold inkstands having hinges that were infringements of the plaintiff's patent, to the number of seventy-five dozen, and that the royalty which the plaintiff received for the use of his patent was at the rate of $2 per gross.' The testimony being closed, the court instructed the jury as follows:

'If the jury shall find a verdict for the plaintiff under the foregoing instructions, they will award him such sum as they shall find to be required to remunerate him for the loss sustained by the wrongful act of the defendants, and to reimburse him for all such expenditures as have been necessarily incurred by him in order to establish his right.'

To this instruction the defendant excepted.

A verdict and judgment having been given for the plaintiff in the sum of $500 the defendants brought the case here.

Mr. R. D. Mussey, for the plaintiff in error:

All the injury proved was that the defendants withheld royalty to the amount of $12.50. There was no evidence of any 'expenditure' by Nock, and the instruction had no foundation in the evidence. Its inevitable effect upon the minds of the jury was to lead them to believe they might lump counsel fees, and such other expenditures as they inferred, and out of them make a total. The jury followed this evident lead of the court, and returned a verdict for forty times the amount proven.

Mr. G. W. Paschall, contra:

The bill of exceptions does not show all the evidence in the case, but it may be gathered that the plaintiff below proved that the defendants had infringed his right by selling seventy-five dozen inkstands. What further facts he proved is not stated.

Mr. Justice SWAYNE delivered the opinion of the court.

title: Philp v. Nock


text: Talk:Philp v. Nock

title: Talk:Philp v. Nock


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Philp v. Nock/Opinion of the Court

The measure of the damages to be recovered against infringers prescribed by the act of 1836 as well as by the act of 1870, is 'the actual damages sustained by the plaintiff.' Where the plaintiff has sought his profit in the form of a royalty paid by his licensees, and there are no peculiar circumstances in the case, the amount to be recovered will be regulated by that standard. If that test cannot be applied, he will be entitled to an amount which will compensate him for the injury to which he has been subjected by the piracy. In arriving at their conclusion, the profit made by the defendant and that lost by the plaintiff are among the elements which the jury may consider. Where the infringement is confined to a part of the thing sold, the recovery must be limited accordingly. It cannot be as if the entire thing were covered by the patent; or, where that is the case, as if the infringement were as large as the monopoly. Counsel fees cannot be included in the verdict. The plaintiff must show his damages by evidence. They must not be left to conjecture by the jury. They must be proved, and not guessed at.

The instruction under consideration was too broad and too vague. The jury could have hardly doubted that it was their duty to allow the counsel fees paid or to be paid by the plaintiff, and perhaps other charges and expenditures equally inadmissible.

JUDGMENT REVERSED, and the cause remanded to the court below, with directions to issue

A VENIRE DE NOVO.

title: Philp v. Nock/Opinion of the Court


text: Talk:Philp v. Nock/Opinion of the Court

title: Talk:Philp v. Nock/Opinion of the Court


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Carlton v. Bokee

APPEAL from the Circuit Court for the District of Maryland.

William Carlton et al., as assignees of Christian Reichmann, filed their bill in equity in the court below to restrain Howard Bokee from infringing a patent for an improvement in lamps, granted to Reichmann on the 21st of September, 1858, and reissued to Carlton and one Merrill on the 11th of August, 1868.

The court below dismissed the bill, and the complainant took this appeal.

The case can be gathered from the facts stated in the opinion of the court.

Messrs. J. H. B. Latrobe and B. R. Curtis, for the appellant; Messrs. C. F. Blake and C. M. Keller, contra.

Mr. Justice BRADLEY stated the facts and delivered the opinion of the court.

title: Carlton v. Bokee


text: Talk:Carlton v. Bokee

title: Talk:Carlton v. Bokee