text:
The Cornelius

THE schooner Cornelius and her cargo were captured by the government vessel Restless, and condemned as prize of was by the District Court for the Eastern District of Pennsylvania for an attempt to run the blockade established by our government, during the Southern rebellion, of the port of Charleston, by putting into a neighboring inlet called Bull's Bay, from which Charleston was easily to be reached. Simonson, the master and owner of the schooner, and several claimants of the cargo, appealed to this court from that decree.

The facts, as assumed by this court from the evidence, were essentially these.

The master and claimants of the cargo were citizens of the United States. The vessel had been chartered by M. H. Vandyke for a voyage from New York to Port Royal-a place near Charleston, but in possession of the government, and, at the moment, open to trade and back; to be terminated at Port Royal, at the option of the charterer. It was pretty clear that the cargo was entirely got up by Vandyke, was partly owned by him; and the remainder, if not owned, was controlled by him. Nothing appeared as to Vandyke's residence, his place of business, his character or standing in reference to the government and the rebellion, or where he was from the time the vessel left New York, which was June 15th, until he appeared at Port Royal, October 8th; two days before the vessel set out again for some point from that place. And although the case was open for further proof, and Vandyke made the test-oath to his own claim, the court was left in the dark as to these particulars.

A supercargo of his selection was placed on board, who had not recently come from the States in rebellion.

The vessel cleared for Port Royal, and reached that place July 1, 1862. She passed Bull's Bay on her voyage to this place in the night, and stood off and on all night until daylight next morning, being fired at twice by the Restless, one shell reaching the schooner, and she leaving the neighborhood only when daylight and the shells of the Restless made it necessary. She remained at Port Royal without unloading until October 10th, when she cleared for New York. She set off from Port Royal again at an hour which would have brought her opposite Bull's Bay in the night; but in consequence of her leaking a good deal, she did not come in sight of the blockading vessels watching that inlet till daylight of the 11th. About that time she saw the Restless, who fired at her twice; the shots falling short. She took no notice of these except to crowd on more sail. Acting-master Griswold, of the navy, was then despatched in an armed boat after her. His account was as follows:

'I proceeded towards Bull's Bay with all possible speed, hoping to reach the mouth of the narrow channel by which the schooner was trying to run the blockade; but she was too fast for us, for finding that the boat gained, she set her mainsail and gaff-topsail. As there was a strong breeze blowing at S.S.W., she went through the water at a furious rate, the pilot evidently well acquainted with the channel. On reaching Bird's Island passage she entered it beautifully, and under all sail fairly flew through the water towards Harbor Creek; seeing which, I tried to cut her off by crossing the shoals close to the island (Bird's); but it was of no use. Suddenly, however, she took the ground, and by the time she floated again I was within a quarter of a mile of her; fired a rifle a her, but no notice was taken of it. The still, under all sail, tried to reach the main land; again she took the ground. Those on board finding that she was hard and fast, and the boat close on them, gave it up, and hoisted an American ensign in the fore-rigging, port side, union down. The captain said that the flag had been there all the morning, but we could not see it till close on her. It might have been there, however, as they could not have chosen a better place to have hidden it from us. On boarding her, I found the water up to the cabin floor; but on trying the pumps found that she could be kept free by pumping ten minutes in the hour.'

The steward, in his deposition, taken in preparatorio, stated that, ten or fifteen minutes before the vessel ran aground, the master told him that he had intended to run the blockade from the first.

The claimants of the cargo asserted, under oath, that they had never parted with the ownership of the goods; that they were sent on an honest venture to Port Royal, which had then been opened to trade; and that they had no intention to violate the blockade, and knew of none on the part of the master. The master asserted, in the same way, that the bottom of his vessel became so worm-eaten, during his long stay at Port Royal, that she began to fill by the time he was fairly out to sea, and that with no intention to break the blockade he was compelled to run into Bull's Bay, and, in order to avoid expense of salvage, to beach his vessel, to save her and her cargo from sinking. The schooner was much worm-eaten, and leaking badly at the time she was beached. But the master had had her bottom examined, and knew her leaky condition before leaving Port Royal, though not, perhaps, the full extent of it; 'completely honeycombed,' said one witness; 'so much so that the mystery was how the vessel could float at all.'

The master, Vandyke, and the other claimants, were very explicit in their denial of any intention to violate the blockade.

Before making its decree of condemnation, the District Court submitted to two nautical experts, whom it invited to hear the case as assessors, the question, whether the facts of the voyage on which the vessel was captured were consistent with a destination in good faith from Port Royal for New York continuing without wilful deviation until the time of capture; and whether, if a wilful deviation occurred, it was under circumstances reasonably consistent with innocence of intention with reference to the blockade? The assessors reported it as their belief, that the deviation, under both these propositions, was made by the master with a fraudulent intent to run the blockade at Bull's Bay.

Mr. Ashton, Assistant Attorney-General, for the captors.

1. The decree below is to be taken, prim a facie, as right.

Lord Langdale has said that, in an admiralty cause involving a mere question of fact, the Privy Council of England will not differ from the judge of the High Court of Admiralty and reverse his judgment, unless they can clearly come to a contrary conclusion. The same rule has been acted upon by this court in that class of cases; so that it may be regarded the doctrine as well of the Supreme Court of the United States as of the English Privy Council, that in an admiralty cause, where the question proposed and decided below was one simply of fact, the appellant, as Mr. Justice Grier expresses it in one case, has all presumptions against him, and the burden of proof is cast on him to prove affirmatively some mistake made by the judge of the inferior court, in the law or in the evidence. The decree below will not be reversed upon the showing that there is a theory, supported by some evidence in the cause, on which a different decree might have been rendered.

That this vessel had deviated from the line of the voyage which she was professedly pursuing, was a patent and conceded fact in the case. The only question, therefore, before the court below was, whether that deviation occurred with a fraudulent intention, on the part of those who controlled her navigation, to violate or evade the blockade. This was a question of fact. If the case could have been submitted to a jury, it would have been a question belonging to them to decide.

But this case is peculiarly one in which the court should proceed upon the principle just stated. The fact was found against the claimants, not by the court alone, but by the experienced nautical assessors also. The duty performed by these gentlemen was like that frequently assigned by Lord Stowell to Trinity masters in cases involving similar nautical considerations. The proceeding in the case of The Mentor, and in the case of The Neutraletet, before Lord Stowell, was like the proceeding in the present case. The practice is a wise one, and should be encouraged by this court.

The nautical experts not only found the general fact, that there was a wilful deviation, with a fraudulent intent to violate the blockade, but they presented to the court a report containing their views on all the facts connected with the navigation of the vessel, which entered into the determination of the great question on which the cause depended. This court will regard those facts as conclusively found by the assessors; and unless it should affirmatively appear that the inference drawn from them was unwarranted, will not disturb the report.

2. It is an imperative legal presumption from the conduct of the master inside of the blockaded waters, 'where the law of war was the rule of navigation,' in wilfully and persistently disregarding the summons and warning of the blockading vessel, and proceeding in defiance thereof toward the enemy's coast, that the master intended to violate the blockade.

We hold the particular conduct of this vessel up as presenting in itself efficient ground of condemnation of both vessel and cargo.

We find no reported case precisely parallel to the present; no case where there were so many signs of guilty intent on which the law could fix its presumption, as in this.

The case of The Charlotte Christine was that of a neutral Danish vessel, proceeded against in August, 1805, on the ground of a breach of the blockade of the Seine. She was taken off Cape La Heve, which the master had made, according to his allegation, simply to get a pilot for Caen, that cape being the point where pilots usually plied for Caen. It appears that he had passed the English frigates with a signal for a pilot flying and without opposition; but by his own admission, it also appeared that he had stood in within one mile of the shore after he had perceived a pilot-boat to be coming out to him. The facts, also, were developed by the evidence that the captured vessel continued to approach the shore after he had been hailed by the captors and had refused to bring to on the first notice. Now, what said Sir William Scott on this case? His opinion, condemning the property, concludes as follows: 'It is admitted that the master had seen the pilot-boat at twelve miles distant early in the morning; that he had hoisted a signal, and perceived the boat to be coming off. What had he to do, then, but to have waited where he was, and where he had passed the frigates, as he says, without being considered to be in a suspicious situation? Instead of this prudent and natural course of conduct, he continued to approach, and in defiance of the captor's boat, since it appears that he did not bring to until a gun was fired at him. The extreme imprudence of this behavior, and the great improbability that any person would so act but from some sinister motive, lays him under the unavoidable imputation of being engaged in an attempt to break the blockade.'

The Gute Erwartung, decided in 1805, is a further adjudication of Sir William Scott on the same principle. The vessel in that case was captured in the same waters and while professedly engaged in the same errand-taking a pilot for Caen-as the Charlotte Christine. The Gute Erwartung was a Lubec ship, sailing from Oporto with an asserted destination to Caen, captured twenty miles from Caen, and about that distance from Havre, a blockaded port. When taken, she was steering 'in a course direct to Havre, and with an intention (not to enter Havre, as was expressly averred, but) of going on close under the land for the purpose of taking a pilot on board to carry her to Caen.' Therefore, Sir William Scott says, 'if the situation of the vessel alone was to be considered, I should be disposed to acquiesce in this representation of his intentions, and to decree the vessel to be restored on payment of captor's expenses.' But that great judge proceeds:

'There is an ulterior circumstance that presents a more unfavorable aspect, which,' says he, 'places her, in construction of law, in the same situation which the other vessel (the Charlotte Christine, supra) had actually reached,' (viz., so near the enemy's coast as to expose the capturing vessel to the annoyance of the enemy's guns.) 'For, the master says, 'the course in which he was steering would have carried him directly to Havre, and that he should have continued in that course, though not into the port of Havre, but that he should have gone close under the land, and have taken a pilot for Caen.' Here, then, we perceive the same intention, and in the course of being pursued to the same illegal effect. How can this intention be considered as innocent? It is impossible that any blockade can be maintained if such a practice is allowed; that a vessel, under a destination to a port not interdicted, shall be at liberty to pursue her course in such a manner as must draw the cruiser employed in that service under the range of the enemy's batteries. It is at all times a matter of regret that the property of innocent persons should be exposed to hazard by the mere imprudence of their master; but it is impossible to relax the principle that the employer is legally affected by the acts of his agent. I am of opinion that the master in this case had declared an unlawful purpose, and was employed in pursuing it to an unlawful act; and that the ship and cargo must be pronounced subject to condemnation.'

The question in neither of these cases was as to the de facto innocence of intention. Conceding that it might in each case in fact have been innocent, the court condemned the vessel because the policy of the law of war required it. They were condemned by force of the rule which Lord Stowell, in another case, thus states in his own clear diction:

'If the belligerent country has a right to impose a blockade, it must be justified in the necessary means of enforcing that right; and if a vessel could, under a pretence of going further, approach, cy pres, close up to the blockaded port, so as to be enabled to slip in without obstruction, it would be impossible that any blockade could be maintained. It would, I think, be no unfair rule of evidence to hold, as a presumption de jure, that she goes there with an intention of breaking the blockade; and if such an inference may possibly operate with severity in particular cases, where the parties are innocent in their intention, it is a severity necessarily connected with the rules of evidence, and essential to the effectual exercise of this right of war.'In The Arthur, decided in 1810, this rule was again enforced to the condemnation of both vessel and cargo. That American vessel was captured in the Ems, which the master had entered, as he alleged, for the purpose of procuring a pilot to the Yadhe.

On the authority of these cases, we affirm that it was the duty of the Cornelius to pursue that course of conduct which, under the existing circumstances, was natural for her to pursue, and which the presence of the blockading vessel rendered possible and easy-namely, to request assistance from the Restless, a man-of-war of her own country, who was not only present on the spot, but was actually in pursuit of her. We affirm, further, that it was the personal moral duty of every man on board of her, which he disregarded at the peril of heavy liability under the criminal law of the United States-for infringement of this blockade by any one owing allegiance to the United States is no less an offence than high treason-to keep as far away from the coast of South Carolina, and as near as he could, if the vessel needed assistance, to the blockading fleet; and, finally, we say that this court is entitled, in view of the conduct of this master, to presume, de jure, that he intended to violate the blockade.

3. Conceding that, under the circumstances of this case, there is no such absolute presumption of guilty intention, as we contend there is, under the English authorities, from the conduct of the vessel as described, then we affirm that the whole of the nautical evidence in the case disproves the innocence of the master's intention. The facts appear in the case as the reporter states it. We are willing that the court decide the question upon them alone. Our argument will stand as their reserve.

Mr. Gillet, contra, contended: That the decisions below were the very matters brought here for review, and that they were brought here in the exercise of an unquestionable right; that to give to them the effect sought would be the objectio ejus cujus dissolutio petitur, the begging of the case, and render all appeal useless.

That the principles of the English admiralty, to the extent asserted by Mr. Ashton, had never been adopted here; that it would be unwise to adopt them; that they originalted in the former character of Great Britain, that of a frequent belligerent, and for some years a constant one; and that it would be impolitic that a nation like ours, whose true interests were those of a neutral the interests of peace and commerce-should ever embrace them.

That, finally, on the facts the case was not with the captors, for that there was really no proof at all of bad intention; that, however the case might be, if Port Royal had not been open to trade, the fact that it was open, and opened by the government, who thus invited all persons to trade to it, changed wholly the case. Persons could hardly trade to Port Royal, where the government urged them to go, and not sometimes pass close to the blockading squadron; and it would be very unjust to make parties suffer for being thus found there. The mate's denial, Mr. Gillet argued, was as explicit as possible; not marked by any evasion or ambiguity, and should have conclusive weight in a case so obviously special.

Mr. Justice MILLER delivered the opinion of the court.

title: The Cornelius


text: Talk:The Cornelius

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

title: Talk:The Cornelius


text:
The Cornelius/Opinion of the Court

Notwithstanding the denial of the master, Vandyke, and the other claimants, of any intention to violate the blockade, we are of opinion that the vessel sailed from Port Royal with such intent, by running into Bull's Bay; from which Charleston was easily accessible.

1. There are strong reasons to believe that the vessel was started from New York on a simulated voyage of Port Royal, with intent to run the blockade before reaching that place.

The supercargo is stated to have been found in New York after a recent residence and travel through a large part of the insurrectionary region. Of Vandyke, the controller of the whole cargo, and owner of part of it, and charterer of the vessel, nothing is known as to his residence, his place of business, his character or standing in reference to the government and the rebellion, or where he was, from the time the vessel left New York, June 15th, until his sudden appearance at Port Royal, October 8th. And although the case was open for further proof, and Vandyke makes the test oath to his own claim, we are still left in the dark as to these particulars. The vessel passed Bull's Bay on her voyage to Port Royal in the night, and stood off and on all night until daylight next morning, being fired at twice by the Restless, one shell reaching the schooner, and only leaving when daylight and the shells of the Restless made it necessary. The steward, Sanford, in his deposition taken in preparatorio, says that ten or fifteen minutes before the vessel ran aground, the master told him that he had intended to run the blockade from the first.

2. The circumstances which prove the intent to violate the blockade in the return voyage are still stronger.

Her voyage was again timed so as to reach the entrance to Bull's Bay in the night, but owing to her leaking condition it was about daylight when she came in sight of the blockading force. About that time she passed the Restless, was fired at from that vessel several times, paid no attention to the fire except to put on more sail, was pursued by the boats of the Restless, and was run aground and captured five or six miles inside her station. The excuse set up by the master for this conduct, is his desire to beach his vessel and save her and her cargo, because she was in a sinking condition. It is shown by the testimony of the master himself, that he had her bottom examined, and knew its condition before he left Port Royal. It can hardly be believed from his own statement on that subject, that he intended to risk her for the full voyage to New York when he started. Again, his obvious duty, and his safest course every way, was to approach the Restless, explain his condition, and ask for assistance. This duty he avoided, though he had full knowledge of the blockade, and when admonished by the shot from the Restless, he made every effort to escape by crowding sail and running in toward the blockaded port. The excuse set up of a desire to save his vessel and cargo without subjecting her to salvage, would not be sufficient if the case stood alone on the facts connected with her voyage from Port Royal. In the language of Sir William Scott, in The Charlotte Christine, although 'it is a possible thing that his intention was innocent, the court is under the necessity of acting on the presumption which arises from such conduct, and of inferring a criminal intention.' But when these are considered in connection with the facts already stated, tending to show an intention to run the blockade from the inception of the adventure, we entertain no reasonable doubt of the guilty purpose which carried her into Bull's Bay at the time of capture. Of course the attempt to violate the blockade was made in the interest of the cargo.

DECREE AFFIRMED.

title: The Cornelius/Opinion of the Court


text: Talk:The Cornelius/Opinion of the Court

title: Talk:The Cornelius/Opinion of the Court


text:
The Convoy's Wheat

WOLCOT, as agent of certain persons, shipped on board the schooner Convoy, at Chicago, several thousand bushels of wheat. The master executed a bill of lading for it, which ran thus:

'Shipped in good order, &c., &c., to be delivered unto con signee, as per margin. Freight and charges to be paid as noted below, upon the actual and complete delivery of the said goods and freight to said consignee, or their assigns.'

On the margin below was entered:

'Acct. Carrington & Preston, Oswego, N. Y., via Welland Railway from Port Colbourne to Port Dalhousie, thence by sail or steam to Oswego. Freight to Port Colbourne, 8 1/2 cents per bushel.'

The reader will understand, of course, that the wheat was to be carried by the Convoy from Chicago, by the lakes, to Port Colbourne, at the eastern extremity of Lake Erie; that there it was to be unladed, and carried by the Welland Railway across the Canadian isthmus to Port Dalhousie, on

Lake Ontario; there to be re-shipped on a second vessel, and carried along Lake Ontario to Oswego, on the eastern Part of the lake. The Convoy was too large a vessel to pass through the Welland Canal.

Parol testimony from Wolcot, the agent of the shippers, went to show, specifically, that the contract made by the master of the Convoy had been to carry the wheat to Port Colbourne only; and that he, Wolcot, had made a separate contract with the Welland Railway Company 'to take it from there through to Oswego.' The vessel agent at Chicago, one Goodenow, who filled the blanks in the Convoy's bills of lading and made the entries on the margin, testified to a similar effect; he swearing, moreover, that the expression, via Welland Railway,' entered on the margin, was construed by him as having the same meaning as care of the Welland Railway.'

The Convoy having arrived at Port Colbourne on the 29th of August, 1860, the master reported her to the Welland Railway Company, and informed the agents having charge of the railway and the elevator there that he was ready to discharge his cargo. There were then thirteen vessels in the port with cargoes to discharge, which had arrived before the Convoy; and the agents replied that they would discharge the Convoy's cargo in its turn. The master made a similar application on the morning of the 30th of August, and received answer as on the morning previous. There being no elevator but the one at Port Colbourne, and no warehouse or place where the wheat could be stored, the Convoy left Port Colbourne on the 30th of August, and went to the city of Buffalo, the nearest port to Port Colbourne. On the 31st of August she discharged her cargo in that city, and the master stored it at the Hatch elevator there, taking a receipt for its delivery to his order. On the next day, which was Sunday, he sailed for Chicago; and the owner of the Convoy telegraphed thus from Buffalo to Carrington & Preston, the consignees at Oswego:

'Obliged to store cargo Convoy in the Hatch elevator, in this city; shall libel cargo for freight and demurrage at Port Colbourne, and freights and charges here, unless settled immediately.'

This telegram was the first and only information sent to the consignees relative to the cargo. There was a telegraphic communication between Port Colbourne and Oswego.

Carrington & Preston, feeling themselves aggrieved by proceedings which they regarded as somewhat summary, declined to settle the account so immediately as invited; and the ship-owner libelled the wheat in the District Court for the Northern District of New York, for freight and damages, in the nature of demurrage.

It appeared that if the Convoy had remained at Port Colbourne she would have been unladed on the 4th of September, in her regular order; that the railway company did everything in their power to despatch business, and discharged cargoes as fast as the capacity of their elevator and road would permit; and that, at this time, an unusual number of vessels had arrived, and that there was an unusual amount of grain to be handled on the road and at the elevator.

The District Court dismissed the libel. The Circuit Court affirmed its decree. Appeal here.

Mr. Hibbard, for the appellants, owners of the Convoy: By the entries on the margin of the bill of lading, taken in connection with Goodenow's explanation of the word via, with the circumstances of the case, and especially the size of the vessel, which could not pass through the Welland Canal, it appears that the contract was to carry to Port Colbourne, and that there the ship owner should be entitled to receive freight. The freight was to be paid when the vessel's delivery was 'actual and complete' at Port Colbourne.

The ship-owner did all he could to perform his contract. It was the duty of the owner of the cargo to provide means at the port of delivery for unlading the cargo. The owner of the cargo not providing these means, the ship-owner was right in delivering his cargo at the nearest practical commercial point, which was Buffalo. He was not bound to wait for days, to his great detriment, and look to the possibility of recovering his damages of the shipper, or ultimate consignee, while that owner or consignee was continually guilty of breaking his contract by not providing means for unlading the vessel.

In Clendaniel v. Tuckerman, a New York case, it was held that it is the duty of a consignee to receive; that he must do this within a reasonable time; that his duty and responsibility in this respect is the same, after a reasonable time has elapsed, as in the case where lay days and demurrage are stipulated for in the bill of lading, and that after that reasonable time has elapsed the ship-owner may store the cargo elsewhere and recover his freight and damages.

Our conduct here was quite according to this case, which holds, further, that it is the duty of the carrier, under such circumstances, to store the goods in some place of safety, retaining his lien for his freight, &c.

Suppose it had appeared that the property could have been delivered at another dock? Would not the ship-owner have had a right to deliver there and to claim freight? Beyond question. The different ports around the Western lakes are really, in principle, other docks, as to Western produce seeking its market on the seaboard.

Nor was it necessary that the master should have telegraphed to Oswego. There is no proof of any custom to do so. The carrier's business was to perform his contract according to law. He did so perform it here. He was not bound to address the owners of the cargo, for the purpose of ascertaining whether they would make a new contract. Why require notice to a man whose business it was to be at the port, and there absolve himself from his responsibilities to receive the cargo? Besides, the case shows, in effect, that nothing could be done with the property at Port Colbourne. There was but one elevator there, and that was full. The law will not require a futile notice. The doctrine in relation to notice only applies where the owner or consignee is at the port, and can in some way take possession of the property.

To say that the master knew about the place, and should have provided against delay by special contract, begs the question. The shipper also knew about the place. It was his duty to see that the property was received, and if he desired to qualify that duty, he should have provided for it in the contract.

Mr. Ganson, contra, for the consignees.

Mr. Justice MILLER delivered the opinion of the court.

title: The Convoy's Wheat


text: Talk:The Convoy's Wheat

title: Talk:The Convoy's Wheat


text:
The Convoy's Wheat/Opinion of the Court

It is not necessary to determine whether the libellant in this case, who was owner of the ship, contracted to deliver the wheat to the consignees at Oswego, or whether he contracted to deliver it at Port Colbourne. The bill of lading given by the master of the vessel, shows that it was understood that from Chicago to Port Colbourne was only part of the voyage which the wheat was to make, and that from Port Colbourne it was to be forwarded by the Welland Railway on its further voyage.

The testimony is clear, that at Port Colbourne there is an elevator belonging to that railroad company, and that it is the only one; and that there is no other warehouse or receptacle in which the wheat could be stored. The course of the trade demands that wheat shipped to Port Colbourne must go through that elevator, and if the vessels making delivery are so numerous that it cannot relieve them promptly, they must await their turn. The master of the vessle must be held to have made his contract with a full knowledge of this course of trade, and be governed by it. He had, therefore, no right, when he found there would be a delay of several days in delivering his cargo at the elevator, to carry it to Buffalo at the expense of the owner.

There is another matter in which the master failed in his duty. There was a telegraphic line in operation between Port Colbourne and Oswego, where the consignees resided, and he could, at any time during the three days he lay at Port Colbourne, have notified them of his difficulty, and received their instructions. He did nothing of the kind; but, after waiting about half the time that would have been required to enable him to discharge his cargo, he sailed to Buffalo, deposited the wheat there, subject to his own order, and then notified consignees by telegraph that he should libel it for freight and damage, unless paid immediately.

DECREE AFFIRMED, WITH COSTS.

title: The Convoy's Wheat/Opinion of the Court


text: Talk:The Convoy's Wheat/Opinion of the Court


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Page:Cournot Theory of Wealth (1838).djvu/33

 Rh had moved, unless, indeed, all the other points were so connected that the movement of one would involve the movement of all.

We have just pointed out an extreme case, viz., that in which all except one had kept their relative positions; but, without entering into details, it is easy to see that among all the possible ways of explaining the change in the state of the system there may be some much simpler than others, and which without hesitation we regard as much more probable.

If, without being limited to two distinct times, observation should follow the system through its successive states, there would be hypotheses as to the absolute movements of the different points of the system, which would be considered preferable for the explanation of their relative movements. Thus, without reference to the relative size of the heavenly bodies and to knowledge of the laws of gravitation, the hypothesis of Copernicus would explain the apparent motions of the planetary system more simply and plausibly than those of Ptolemy or Tycho.

In the preceding paragraph we have only looked on motion as a geometric relation, a change of position, without reference to any idea of cause or motive power or any knowledge of the laws which govern the movements of matter. From this new point of view other considerations of probability will arise. If, for instance, the mass of the body A is considerably greater than that of the body B we judge that the change in the relative situation of the bodies A and B is more probably due to the displacement of B than of A.


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The Cheshire

DURING the Southern rebellion, and our proclamation of a blockade of Savannah and other parts of the Southern coast being then notorious to the world, the ship Cheshire, with a miscellaneous and assorted cargo, was captured by a war steamer of the United States, on the 6th of December, 1861, off Savannah bar, eight or nine miles eastward of Tybee Light. She was taken to the port of New York and there libelled in the District Court as prize of war.

The evidence showed that the ship had been built in the State of Maine in 1848, her American name having been the Monterey; that she was owned by a house residing and doing business in Savannah, and was employed in the cotton trade to Liverpool; that in May, 1861, after the port of Savannah had been closed by the blockade set on foot under the President's proclamation of April 19, 1861, that house made a sale of her to Joseph Battersby, of Manchester, England; that her name was then changed, and in June, 1861, that she broke the blockade of Savannah, carrying a cargo of cotton to Liverpool.

Joseph Battersby, the purchaser, and who claimed her here, was then and at the time of the capture, a partner in business with William Battersby in Savannah, where one of them resided, the name of the firm being the same as that of their Manchester house, William Battersby & Co.

The cargo was claimed by both the Battersbys.

The ship was loaded at Liverpool and sailed directly for Savannah. The captain, however, had received instructions at Liverpool, dated October 8, 1861, 'to call of Savannah merely for the purpose of inquiry, but on no account whatever to attempt to enter a blockaded port.' 'In case the blockade is not raised proceed to Nassau, N. P., and remain until you receive orders from Messrs. William Battersby & Co., of William Battersby & Co., of in the case stated that this contingent destination to Savannah had been made in consequence of confident predictions, well known, by high officers of our government, that the rebellion would speedily be quelled; and of the consequent presumption by the owners of the vessel and cargo, that the blockade would probably be raised by the time the vessel reached our Southern coast.

Some of the papers showed that Halifax, N. S., was a possible port of destination. The shipping articles represented the voyage as 'from Liverpool to Halifax, N. S., or Nassau, N. P.,' &c. The receipt of the shipping-master of the port of Liverpool for fees, dated 30th of September, 1861, declared it for Halifax. The master swore: 'On the voyage during which we were captured, the Cheshire was bound from Liverpool to Halifax, Nova Scotia, or Nassau. I was to speak the blockading squadron, and if the ports were blockaded, I was to go to Nassau, or Halifax.'

None of the papers of the ship, neither the clearance, bills of lading, invoices, nor manifest, which declared the ship bound for Nassau, nor the shipping articles, which declared her bound for Halifax or Nassau, contained the slightest intimation of a purpose under any circumstances to enter the port of Savannah.

The District Court, after argument and full consideration, condemned both vessel and cargo, on the ground that they were enemy's property and were captured in attempting to break the blockade of the port of Savannah. On appeal to the Circuit Court the condemnation was affirmed, and the case was not brought by the claimants before this court for review.

Mr. Edwards, for the claimants, appellants in the case; Mr. Assistant Attorney-General Ashton, and Mr. Coffey, special counsel, contra.

Mr. Justice FIELD delivered the opinion of the court.

title: The Cheshire


text: Talk:The Cheshire

title: Talk:The Cheshire


text:
The Cheshire/Opinion of the Court

The facts established by the evidence in this case justify the condemnation, we think, of the cargo as enemy's property. No principle is more firmly settled than that the property of a commercial house, established in the enemy's country, is subject to seizure and condemnation as prize without regard to the domicile of the partners. The trade of a house of this kind is essentially a hostile trade, and the property employed in its prosecution is therefore treated as enemy's property, though some of the partners may have a neutral domicile. Such trade tends directly to add to the resources and revenues of the enemy, and, as observed by Mr. Justice Story, 'there is no reason why he who thus enjoys the protection and benefits of the enemy's country should not, in reference to such a trade, share its dangers and losses. It would be too much to hold him entitled, by a mere neutral residence, to carry on a substantially hostile commerce, and at the same time possess all the advantages of a neutral character.'

In this view it is unimportant whether the cargo was to be delivered to agents at Nassau, subject to the order of the house at Savannah, or be delivered directly from the Cheshire in the port of Savannah. In either case there was the trade with the house situated in the enemy's country.

The evidence in the case also establishes, we think, with equal clearness, the fact that the ship was attempting to break the blockade when captured. She was loaded for Savannah; her cargo was intended for the branch-house of the shippers; she sailed directly for that port; the owners and officers of the ship were informed of the existence of the blockade before leaving Liverpool; and there was no act of our government, nor any act of the British government, nor had any event occurred in the progress of the war, from which any inference could be drawn that the blockade had ceased. The instructions to call off Savannah merely for the purpose of inquiry, and to proceed thence to Nassau upon ascertaining that the blockade was in force, have, under these circumstances, the appearance of a device to cover up a settled purpose to elude the blockade. They create a strong impression to that effect, and this impression is strengthened by an examination of the ship's papers. These papers contain no intimation of an intention to enter the port of Savannah upon any contingency. They show the destination of the ship to be either Nassau or Halifax; they indicate no contingent intention of going anywhere else. This concealment of the truth is itself a circumstance calculated to awaken strong suspicion as to the real designs of the ship; it is, in fact, prima facie evidence of fraudulent intention.

In the case of The Carolina, where a cargo was taken on a voyage from Bayonne, ostensibly to Altona, but, in fact, to Ostend, the ship's papers represented that the cargo was to be delivered at Altona and Hamburgh; and the court said, that if there had been any fair contingent, deliberative intention of going to Ostend, that ought to have appeared on the bills of lading; for it ought not to be an absolute destination to Hamburgh if it was at all a question whether the ship might not go to Ostend, a port of the enemy, and that there was in this a fraudulent concealment of an important circumstance which ought to have been disclosed. Of the same purport are all the authorities.

Aside from these considerations the intention to break the blockade is to be presumed from the position of the ship when captured. As already stated, she knew of the blockade when she sailed from Liverpool; she had no just reason to suppose it had been discontinued; her approach, under these circumstances, to the mouth of the blockaded port for inquiry was itself a breach of the blockade, and subjected both vessel and cargo to seizure and condemnation. The rule on this point is well settled, and is founded in obvious reasons of policy. If approach for inquiry were permissible it will be readily seen that the greatest facilities would be afforded to elude the blockade; the liberty of inquiry would be a license to attempt to enter the blockaded port; and that information was sought would be the plea in every case of seizure. With a liberty of this kind the difficulty of enforcing an efficient blockade would be greatly augmented. If information be honestly desired, it must be sought from other quarters. In the case of the James Cooke, the ship was captured at the entrance of the Texel, and the court applied this rule, observing that the approach of the ship to the mouth of a blockaded port, even to make inquiry, was, in itself, a consummation of the offence, and amounted to an actual breach of the blockade.

In every view, therefore, in which this case can be considered, we are of opinion that the ship and cargo were rightly condemned; and we, therefore, affirm the

DECREE OF CONDEMNATION.

[See, as to the second point of this case-inquiry at a blockaded port-supra, p 84, The Josephine.-REP.]

title: The Cheshire/Opinion of the Court


text: Talk:The Cheshire/Opinion of the Court

title: Talk:The Cheshire/Opinion of the Court


text:
Territory v. Lockwood

THE act of Congress organizing the Territory of Nebraska ordains that the executive power in and over the Territory shall be vested in a governor; that the legislative power shall be vested in a governor and legislative assembly; and that the judicial power of the Territory shall be vested in a Supreme Court, &c. And the Code of the Territorial legislature gives the remedy of information against 'any person unlawfully holding or exercising any public office or franchise within this Territory;' providing, also, that the defendant shall 'answer such petition in the usual way; and, issue being joined, it shall be tried in the ordinary manner.'

With these provisions in force, the district attorney filed in one of the District Courts of Nebraska Territory an information in the nature of a Quo Warranto in the name of the 'Territory of Nebraska, on the relation of Eleazar Wakely,' against a certain Lockwood, to test the rights of the said Lockwood to exercise the office of an associate judge of the Supreme Court of the Territory; a court in which, as is known, the judges are appointed by the President of the United States. The information was full, explicit, and technical in its statement of the case; alleging, with circumstance, that the relator had a right to the office, and that the defendant held, exercised, usurped, and invaded, &c., without any legal warrant, &c. The defendant demurred generally. The District Court sustained the demurrer, and gave judgment in his favor. The relator took the case to the Supreme Court of the Territory, where the judgment below was affirmed. This was a writ of error to reverse that judgmentThe question presented for the determination of this court was, whether the petition was well brought in the name of the Territory, or whether it should not have been in behalf of the United States.

Mr. Woolworth for the Territory and relator, plaintiff in error: The language of the Code, 'any public office,' plainly embraces the office of a Territorial judge. Not only does such an officer hold an office 'within the Territory,' but the whole of the judicial power of the Territory is vested in him and his associates. He is an officer of the Territory. His duties are all performed within it and concerns its people. The expression of the organic act that 'the judicial power of the Territory' shall be vested, &c., indicates that the powers belong to the Territory in its very nature; that is to say, that they are inherent in it as a political entity. The Territory is made the sole governing power within its limits, so far as its domestic affairs are concerned. All laws, we know, are enacted, and all judicial proceedings conducted in its name. The usurper of one of its offices is an offender against its dignity. The people of it suffer by the act of usurpation. It is unimportant how either the relator or the defendant claims; whether by appointment of the president, the governor, or by election from the people. Each, in either or any case, is equally within the spirit of the Code and organic act.

Territorial courts are not constitutional courts in which the judicial powers conferred by the Constitution on the General Government can be deposited. They are legislative courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make laws regulating the territories belonging to the United States. The jurisdiction with which they are invested is not a part of that judicial power which is defined in the third article of the Constitution, but is conferred by Congress in the exercise of its powers over the Territories of the United States.

The Code does not contemplate a demurrer. It declares, on the contrary, that the defendant shall 'answer.' But, however this may be, the demurrer is but general. The defendant thus admits himself to be an intruder into a judicial office, and rests upon the pretence that no cause of action is shown by the information, though that information sets forth the relator's right to the office and his unwarrantable exclusion from it by the defendant in as full, clear, direct, and formal terms as are employed in any precedent to be found in any book of Entries whatever. In such a case an objection purely technical, as this is, an objection, to wit, that the name of the United States, and not that of the Territory, should be used, will be listened to with disfavor.

Lockwood, propri a person a, contra.

Mr. Justice SWAYNE delivered the opinion of the court.

title: Territory v. Lockwood


text: Talk:Territory v. Lockwood

title: Talk:Territory v. Lockwood


text:
Territory v. Lockwood/Opinion of the Court

The writ of Quo Warranto was a common law writ. In the course of time it was superseded by the speedier remedy of an Information in the same nature. It was a writ of right for the king. In the English courts an information for an offence differs from an indictment, chiefly in the fact that it is presented by the law officer of the crown without the intervention of a grand jury. Whether filed by the attorney-general or the master of the crown office, and whether it relates to public offences or to the class of private rights specified in the statute of 9 Ann. ch. 20, in relation to which it may be invoked as a remedy, it is brought in the name of the king, and the practice is substantially the same in all cases. Any defect in the structure of the information may be taken advantage of by demurrer.

In this country the proceeding is conducted in the name of the State or of the people, according to the local form in indictments, and a departure from this form is a substantial and fatal defect.

In Wallace v. Anderson, this court said, 'that a writ of Quo Warranto could not be maintained except at the instance of the government; and as this writ was issued by a private individual, without the authority of the government, it could not be sustained, whatever might be the right of the prosecutor or the person claiming to exercise the office in question.' In the case of the Miners' Bank v. United States, on the relation of Grant, the information was filed in the name of the United States in the District Court of Iowa Territory. The sufficiency of the information in this respect does not appear to have been questioned. A State court cannot issue a writ of mandamus to an officer of the United States. 'His conduct can only be controlled by the power that created him.' The validity of a patent for land issued by the United States 'is a question exclusively between the sovereignty making the grant and the grantee.'

The judges of the Supreme Court of the Territory of Nebraska are appointed by the President and confirmed by the Senate of the United States. The people of the Territory have no agency in appointing them and no power to remove them. The Territorial legislature cannot prescribe conditions for the tenure or loss of the office. Such legislation on their part would be a nullity. Impeachment and conviction by them would be futile as to removal. The right of the Territory to prosecute such an information as this would carry with it the power of a motion without the consent of the government from which the appointment was derived. This the Territory can no more accomplish in one way than in another. The subject is as much beyond the sphere of its authority as it is beyond the authority of the States as to the Federal officers whose duties are to be discharged within their respective limits. The right to institute such proceedings is inherently in the Government of the nation. We do not find that it has been delegated to the Territory. We think the demurrer was well taken.

JUDGMENT AFFIRMED WITH COSTS.


text: Talk:Territory v. Lockwood/Opinion of the Court


text:
The City v. Babcock

AMONG the festal anniversaries of the city of Providence, R. I., is that known as 'Commencement Day.' Upon this occasion Brown University gives its degrees; and citizens and strangers throng the town. Upon the anniversary of 1859, Miss Babcock, of Connecticut, visited Providence and was participating in the spectacle. A procession was passing through one of the streets in a central part of the city, and Miss Babcock, who was walking in the same street, then filled with people, fell through an opening in the pavement which gave entrance into a cellar below, whereby she was severely injured.

A statute of Rhode Island imposes upon all cities within its bounds an obligation to keep their ways 'safe and convenient for travellers;' and the office of the Mayor of the city having, as was proved, been the very street where the accident happened, and almost directly opposite to the place of its occurrence, Miss Babcock brought suit against the city in the Circuit Court for Rhode Island, to recover damages for the injury she had suffered.

On the trial, the city offered evidence tending to prove that the alleged defect in the street was an opening in the sidewalk adjoining a storehouse, extending fifteen inches from the side of the building, four feet long, and covered with a substantial door, upon hinges, near the building, and which, when raised, left an opening to the cellar of fifteen inches wide outside of the curbstone; in other words, that it was an ordinary vault entrance; a trap-door to a cellar below. The entrance, it appeared, had been used for the purpose of business for a long period of time-say forty years; the street, in fact, having been laid out in 1829, and the opening used as an entrance to the cellar before that time. The occupants of the store testified that the opening was used to let in and take out goods from the cellar of the store, and for this purpose that the lid was raised whenever they had occasion to raise it in their daily business; more or less every business day in the year; that they intended to keep it closed when not opened for such use, but they could not say that it was always so kept.

Complaints, it appeared, had been made to the occupants of the store that the opening was unsafe.

It did not appear who opened the trap next before the accident; but no one was engaged on that day, in taking in goods or taking them out, and no one was in the cellar when the plaintiff fell through the opening. One of the occupants of the store testified that the opening had not been open more than six minutes before the occurrence of the accident.

Much other testimony,' the bill of exceptions went on to say, was also introduced, on the one side and the other, which is not reported.'

The court charged that the plaintiff must prove—

1st. That the way described was a street which the city was bound by law to keep in repair.

2d. That it was defective on the day of the injury.

3d. That the city had notice of the defect.

4th. That the plaintiff was travelling with ordinary care.

5th. That the plaintiff was injured.

6th. That the injury was occasioned solely by the defect in the street, and not from want of ordinary care on the plaintiff's part.

The defendant then, invoking the benefit of the testimony already above stated, requested the court to instruct the jury thus:

The defendant offered evidence tending to prove that the defect in the street in question was an opening in the sidewalk adjoining a storehouse extending fifteen inches from the side of the building, four feet long, and covered with a substantial cover, upon hinges, near the building, and which, when raised, left an opening to the cellar of fifteen inches in width; that the sidewalk was six feet in width outside of the curbstone; that the entrance had been used for the purposes of business prior to the time when the highway was laid out over the land adjoining the building and including this sidewalk; that the cellar-way had been used by the occupants of the store for more than forty years, for the purpose of taking in and putting out merchandise in the course of their business, being opened for that purpose as required during the periods of actual use; that on the occasion of the accident the door covering the opening had been raised for use by the occupants of the store but six or eight minutes; that no complaint had been made to the occupants of the store, or to the city authorities, of this mode of use, though this street was one of the great avenues for pedestrians in the city of Providence.

And thereupon asked the court further thus to charge:

The owners of the store had the right so to use this opening in the sidewalk for the purposes of actual business; that it was not negligence on the part of the city to allow such an opening. so protected and used, to be continued, and that upon the evidence the city had no notice that the highway was unsafe or inconvenient by the opening of the cellar door and keeping it open for use during the period testified to.

But the court refused so to charge; and the jury having found for the plaintiff $3300, the correctness of such refusal was now the question here.

Mr. Jenckes, for the city, plaintiff in error: The evidence was that the lid had not been open for more than six minutes before the accident occurred. It was impossible that the city could have either notice or knowledge of its being open. Constructive notice cannot be set up. Actual notice is not pretended. If the city had had notice, they were not bound to shut the trap if the owners were using it in the ordinary and long and safely practised course of their business. Undeniably the owners of the store had a right to have such a cellar as they had, and to have in it also such an entrance as was there. Such modes of access to cellars exist in every city, and this entrance had existed where it did for half of century. The same owners had as plain a right to raise the covering of the cellar for the purpose of actual business, and to keep it open while they were engaged in so using it. When they were thus using it, both the public and the owners of the storehouse enjoyed their rights without conflict, and the aperture would not become a defect in the highway.

The statement of the bill of exceptions that 'much other testimony was also introduced on the one side and on the other, which is not reported,' means, obviously, that much irrelative testimony was so introduced; much testimony which did not bear on the case. Under these circumstances, the case is that of a suit brought, not against the owner of the property where the vault was, and who might be liable, without notice of danger, but against the city, which cannot be liable unless it have notice, by a person who has fallen through the trap-door of an ordinary city vault, such a vault as the owner of the store had a clear right to have and to use, which trap-door was not open more than six minutes before the accident happened.

Upon such a case the court should have charged, as we asked it to do, that the city had no notice that the street was unsafe or inconvenient. The consequence of the omission of the court thus to charge was that the jury misconceived the law and gave the erroneous as well as heavy verdict which they did.

After argument by Mr. Potter, for the defendant in error.

Mr. Justice DAVIS delivered the opinion of the court.

title: The City v. Babcock


text: Talk:The City v. Babcock

title: Talk:The City v. Babcock


text:
The City v. Babcock/Opinion of the Court

It is argued by the plaintiff in error that the defect in the street was so recent that the city could not be deemed to have constructive notice; and, as no actual notice was proved, no liability could attach. But, as this question is not presented by the record, we are not called upon the discuss it, and to declare under what circumstances the city could be exonerated from liability for damages by reason of defective sidewalks. The bill of exceptions does not purport to contain all the evidence on the trial, nor even the substance of it, for it says, after reciting certain proofs, 'that much other testimony was also introduced on the one side and the other which is not reported.'

Such being the case, the correctness of the finding of the jury is not involved, and every presumption is in favor of the verdict, and that it was supported by the evidence on the trial. There was evidence which tended to establish the liability of the city, and the court properly charged the jury that the plaintiff, to maintain her action, must prove that the city had notice of the defect in the street. If the evidence were not enough, the corrective was in the hands of the court, on a motion for a new trial. It was conceded, in the argument, that the court ruled properly in the instructions which were given to the jury; but it was insisted that there was error in refusing to instruct, as requested by the defendant. The court was asked, substantially, to charge the jury, that the city was not responsible, because there was evidence which tended to prove the existence of certain facts. This the court had no right to do. The court could not tell the jury that any legal results followed from evidence which only tended to prove the issue to be tried. This controversy necessarily turned on the finding of the jury upon the evidence, and an instruction, which sought to withdraw from the jury the right to determine matters of fact, was correctly refused.

JUDGMENT AFFIRMED.


text: Talk:The City v. Babcock/Opinion of the Court


text:
Blanchard v. Brown

VARIOUS judgments had been given against a debtor in Chicago owning real estate there; among them one in favor of Lyman. Execution issued in April, 1847, and on it, in April, 1848, the premises were sold to Blanchard.

A certain Hart had also obtained judgment against the same party. Execution issued in 1845; but was not returned into the clerk's office until 1852. The execution, it seemed, recited a judgment of the Cook County Court of Common Pleas; a court not at the time in existence; that court having been created by act of legislature only in 1848; and the name of the court in which the judgment was really given,-to wit, the 'Cook County Court,'-having in that act been changed to it. An alias was subsequently issued on the same judgment, and the land sold for $71 to Brown; its actual value, at the time, being about $2000, or, as was alleged, even $4000.

Blanchard being in possession, Brown brought ejectment against him. Both parties, of course, claimed under the same judgment debtor, and by virtue of their respective judgments and execution sales; the judgment under which Blanchard claimed being junior to the one on which Brown rested his title, and judgments being liens in Illinois according to their priority. Blanchard set up, as his ground of defence on this ejectment, that the sale under the judgment in favor of Hart, and under which Brown sought to dispossess him, was a fraudulent sale, made to defeat subsequent encumbrancers, and, accordingly, that Brown had no title. To show the fraud, evidence was given of the value of the property compared with the price for which it sold; that it was sold in a body, instead of having been sold, as it might naturally and much more profitably have been, in a divided form; that false representations were made as to the encumbrances on it, the representations having been that it was largely encumbered when it was not so; that no proper notice of the sale had been given, the advertisement which gave the notice having announced only that the sale would be on a day named, 'between 9 o'clock A.M. and sunset.'

Blanchard set up, also, that irrespective of fraud (of which, indeed, the execution process was said to be one evidence), the sale was void for the irregularity in such process, and put in evidence the facts connected with this part of the proceeding.

The suit resulted in a verdict and judgment for Brown; and a second trial had the same termination. Blanchard, tendering the money paid by Brown and ten per cent. interest from the day of sale, now filed a bill in equity in the Circuit Court for the Northern District of Illinois, asking to have the estate upon equitable terms. Under his bill some new evidence-objected to as being in breach of professional confidence-was introduced; but with it all admitted, he made in effect the same attack on the judgment-title of Brown that he did in the previous actions of ejectment.

The Circuit Court dismissed the bill, and this court was now asked by Blanchard, appellant in the case, to reverse the decision.

It is here necessary to state, that in Illinois the old English form of ejectment does not prevail. Ejectment, like other actions, is brought by a real plaintiff against the party actually claiming; and is for the specific property demanded, with damages for its detention. A statute of the State, it should also be said, declares 'that every judgment in the action of ejectment, rendered upon a verdict, shall be conclusive as to the title established in such action upon the party against whom the same is rendered; and all persons claiming from, through, or under such party, by title accruing after the commencement of such action.'

One defence, among others made to the bill and argued by Mr. Fuller, was that Blanchard now set up in his bill substantially what he had done in his ejectments, and that the case could not be distinguished from Miles v. Caldwell, decided at the last term of the court; a case which, though from another State, Missouri, was obligatory, in the circumstances, in this case from Illinois. In the case cited, statute of Missouri enacted that in ejectment, as in other actions, a judgment, except one of nonsuit, 'shall be a bar to any other action between the same parties, or those claiming under them, as to the same subject-matter;' and this court held, that as ejectment was in Missouri an actual, as distinguished from a fictitious proceeding, a title decided in it could not be reviewed in chancery any more than any other matter tried and decided at law.

Mr. Hitchcock, for Blanchard, the appellant: The reply to what is argued by Mr. Fuller is twofold.

1st. The suit at law concerned only the legal title. This bill to redeem is based on an equitable one. The sheriff's sale was sufficient to pass the legal estate, and upon it the purchaser could maintain ejectment. It is altogether another question whether the sale was attended by such circumstances of fraud and irregularity as will induce a court of equity to relieve against its legal effect. The object of the action at law was to assert such paramount legal title. The object of this suit in chancery is to get rid of such title by redemption. A mortgagee may recover upon his fee at law, but he cannot assert such recovery as a bar to redemption in chancery. Fraud will avoid a deed at law only when it relates to the execution of it; but a recovery upon such a deed cannot be urged as a bar to a bill to compel the surrender and cancellation of it, for fraud in the consideration.

A trustee may recover, in ejectment, against his cestui que trust; but such recovery would not bar proceedings in chancery to assert the equitable title. 'A court of law may, indeed, investigate some questions of fraud, and, when proved, treat a deed as a nullity, and conveying no title; as where a party was induced to execute a deed supposing it was another paper; but, in general, it will not go behind the naked legal title and inquire where the equities are.

The case of Miles v. Caldwell, cited by opposite counsel, establishes only the principle, which is not controverted, that a party cannot appeal from a judgment at law to a court of chancery upon the relative merits of the legal titles involved in the controversy at law. There, a court of law had passed upon the validity of a deed alleged to have been fraudulent as against creditors, a matter over which courts of law have always exercised jurisdiction.

There was in the present case no doubt about the power of the court to administer full relief. In Illinois, the distinction between courts of law and chancery is fully maintained, and matter which furnishes no defence at law may be good ground for relief in chancery.

2d. It has been expressly decided in that State that such irregularities cannot be taken advantage of, collaterally, in the action of ejectment And such is the general rule of law.

It is believed that no case can be found in which a sale has been successfully attacked, in collateral proceedings at law, upon similar grounds.

Mr. Justice DAVIS delivered the opinion of the court.

title: Blanchard v. Brown


text: Talk:Blanchard v. Brown

title: Talk:Blanchard v. Brown


text:
Blanchard v. Brown/Opinion of the Court

The common-law form of the action of ejectment does not prevail in Illinois. There the action is without fictions, and is between the real parties in interest, and for the possession of a specific estate, and damages for its detention. On account of the fictitious character of the common-law action of ejectment, a judgment was not a complete bar, as in other actions. But in Illinois, by statute, it is declared, 'that every judgment in the action of ejectment, rendered upon a verdict, shall be conclusive as to the title established, in such action, upon the party against whom the same is rendered, and all persons claiming from, through, or under such party, by title accruing after the commencement of such action.' One verdict alone was not deemed satisfactory by the legislature. The ancient reverence for the tenure by which lands are held had its influence, and the unsuccessful party, of right, is entitled to one new trial, and the court can, if satisfied that justice will thereby be promoted, grant a second. After this the litigation is ended, and the verdict and judgment have the same conclusive effect as in other actions. In Missouri, a judgment in ejectment is also a bar to any other action, between the same parties, on the same subject-matter; and this court, in the case of Miles v. Caldwell, in construing a statute, no broader than the Illinois enactment, held that whatever is conclusive of the title to land in the courts of a State, is equally conclusive in the Federal courts; that it is, in fact, a rule of property. A perfect solution is, therefore, given to this case when it is ascertained what was tried and determined in the ejectment suit. The evidence on this point is so full as to leave no room for doubt.

Blanchard did not resist Brown's recovery in the action of ejectment on the sole question of paramount legal title, which he had the right to do, and then endeavor to get rid of it in chancery on the question of superior equities. He chose rather to risk his whole defence in the impeachment of Brown's title for fraud, and because the sale was vitiated by irregularities and the property sacrificed. Having failed before the jury, he is estopped from investigating the same matters in another jurisdiction. He waived his right to have the question of fraud litigated in a court of chancery, when he presented it, as a defence to the action at law. And the defence was legitimate and proper, for such questions of fraud and irregularity as were raised could be disposed of as well at law as in chancery.

A grossly inadequate price is, under some circumstances, evidence of fraud, and a fit subject of inquiry by a jury, in determining the validity of a sale made under legal process. If the sale on the Hart execution was not made for the purpose of satisfying the judgment, but fraudulently to defeat subsequent encumbrancers, and Brown was not a bon a fide purchaser for value, then his title was bad; and it was equally bad, if the irregularities were such as to render the sale void.

Evidence was given on all these matters, and was never withdrawn from the consideration of the jury. In fact the whole record shows that Blanchard claims equitable relief on substantially the same grounds, and sustained by the same evidence that he relied on to defeat the action of ejectment. The decision in Miles v. Caldwell is, therefore, applicable. In that case, as in this, the question of fraud had been submitted to the jury, and determined against the complainant; and this court held that he was barred by the proceedings in ejectment, and could not raise anew in chancery the same questions that were heard at law.

DECREE AFFIRMED WITH COSTS.

title: Blanchard v. Brown/Opinion of the Court


text: Talk:Blanchard v. Brown/Opinion of the Court


text:
Daniels v. Railroad Company

THE sixth section of the act of Congress of 29th April, 1802, provides:

'That whenever any question shall occur before a Circuit Court upon which the opinions of the judges shall be opposed, the point upon which the disagreement shall happen, shall, &c., be stated under the direction of the judges and certified. . . to the Supreme Court. . . and shall, by the said court, be finally decided.'

With this act in force Daniels brought a suit in the Circuit Court for the Northern District of Illinois against the Rock Island Railway Company for injuries done him by a collision on its railroad; there being a special plea to one of the counts of the declaration-of which there were several, denied generally-that the collision referred to was brought about by the carelessness of the defendant's servant, and without the knowledge or consent of the defendant, and that at the time of the injury the plaintiff himself was a servant serving as a fireman on the locomotive. The record went on:

'On the trial it was proved that the defendant was a common carrier of passengers; that at the time alleged the plaintiff was on the engine of the defendant, for the purpose and in the manner hereinafter stated, proceeding over the road of the defendant, when by the negligence and carelessness of the engineer of the locomotive (the said engineer being at the time a servant of the defendant), upon which the plaintiff was riding, a collision took place, which resulted in great personal injury to the plaintiff. The circumstances connected with the plaintiff's trip and the manner and purpose of his firing the engine, as well as some conversation of his after the injury, are detailed by the witnesses as follows.'

Then followed the testimony of seven witnesses-two on one side, five on the other-examined and cross-examined. These witnesses testified that the plaintiff had been, a week previously to the accident, a fireman on the railroad, but had been-as some signified it might be-'dismissed'-though, as it rather appeared, possibly-'suspended;'-that is to say, owing to the diminished business of the road at that exact season, had been taken off the pay-list; as the company did continually with its hands on the decrease of its business at particular times in the year, and put on a list of persons who would be preferred when, with the increase of business, the company would again require more aid. 'Its business was unsteady.' Such persons, it was testified, were under no obligation to come back, nor was the company bound to employ them again, but it was a custom if they were at hand to set them to work again as soon as there was work. Daniels, it was testified, had been inquiring two or three days previously to the day of the accident when he should be employed again, and was told that it might be in one, two, three, or four weeks; that it would depend on the business of the road.

On the day of the accident he came to the master mechanic, within whose business it was to employ and discharge firemen, and asked, as some witnesses testified, for 'a pass'-though others heard nothing about 'a pass'-to go to a place called Peru to get his clothes. The master, according to his own testimony, told him that the company was going to send an extra engine down that night or the next, and that he could 'fire' that engine down; though according to the testimony of another witness, the master told him that if he would fire that engine down he would give him a pass: 'that was the understanding between them.' The master himself swore that there was no agreement that he should fire the engine in consideration of his passage on it. The company, it was sworn to, was not in the habit of making that sort of agreement, and the master mechanic had no right to make such arrangements or to give 'passes.' He supposed, according to his own testimony, that a sub-officer whose duty it would be, unless directed to the contrary, to put the man's name on the payroll when he saw him serving on the engine, would put his name on the roll accordingly.

There was other testimony, all directed to the fact whether or not the man was actually reinstated or whether he was hanging on only, expecting to be, and had now, in consideration of 'firing' the engine on a particular trip, been given the privilege of a passage on it to go and get his clothes.

The record, after mentioning certain facts that were proved, thus went on:

'This was all the evidence bearing upon the case, and thereupon it occurred as a question whether, in point of law, upon the facts as stated and proved, the action could be maintained, and whether, consequently, the jury should be instructed that under the facts as proved the plaintiff could not recover; upon which questions the opinions of the judges were opposed. Whereupon, &c., the foregoing points upon which the disagreement has happened is ordered by the judges to be stated and certified to the Supreme Court of the United States, & c., for its final decision.'

The case came here accordingly by a certificate that the opinions of the judges were opposed on the points set forth, and was argued by Messrs. Hurd and Booth, for the plaintiff, and by Messrs. Cook and Winston, contra, on the questions of law and fact presented;-questions, however, which this court did not consider; their opinion going to the matter of jurisdiction only.

Mr. Justice SWAYNE delivered the opinion of the court.

title: Daniels v. Railroad Company


text: Talk:Daniels v. Railroad Company

title: Talk:Daniels v. Railroad Company


text:
Daniels v. Railroad Company/Opinion of the Court

This case is brought before us by a certificate that the opinions of the judges of the Circuit Court below were opposed upon the points set forth; the proceeding having been taken under the sixth section of the act of the 29th of April, 1802.

To come properly before us, the case must be within the appellate jurisdiction of this court. In order to create such jurisdiction in any case, two things must concur: the Constitution must give the capacity to take it, and an act of Congress must supply the requisite authority.

The original jurisdiction of this court, and its power to receive appellate jurisdiction, are created and defined by the Constitution; and the legislative department of the government can enlarge neither one nor the other. But it is for Congress to determine how far, within the limits of the capacity of this court to take, appellate jurisdiction shall be given, and when conferred, it can be exercised only to the extent and in the manner prescribed by law. In these respects it is wholly the creature of legislation.

The section referred to of the act of 1802 mentions several particulars, all of which must appear in the certificate. They are jurisdictional, and a defect as to either is fatal.

The one which has most frequently been the subject of discussion, and which it is necessary to consider in this case, is 'the point upon which the disagreement of the judges' occurs.

It must be a question of law, and not of fact.

It must arise in the progress of the cause, and not incidentally, or in relation to a collateral matter, after the rendition of the judgment or decree. Where the question certified was as to the amount of the bond to be given upon the allowance of a writ of error, and where it was as to the retaxation of costs after the principal of the judgment had been collected, this court held that it could not take jurisdiction.

It cannot arise upon a motion for a new trial, the decision resting in the discretion of the court, and not being subject to exception.

It may arise upon a special verdict, or a motion in arrest of judgment.

The question, whether a demurrer shall be sustained? is not sufficiently definite. The precise legal point involved, upon which the judges were divided in opinion, should be stated. The court is not bound to look beyond the certificate to ascertain the point.

Nothing which may be decided according to the discretion of the court can be made the subject of examination here in this way.

But if in connection with the discretion which the court below is asked to exercise, questions are presented which involve the right of the matter in controversy, this court will entertain them.

Except under peculiar circumstances, this court will not take cognizance of a question certified upon a division pro form a.

The determination of the questions certified does not affect the right to bring up the whole case, by a writ of error or appeal, after it is terminated in the court below. When a certificate of division is brought into this court, only the points certified are before us. The cause remains in the Circuit Court, and may be proceeded in by that court according to its discretion.

Where the question certified was, whether a letter written by a cashier without the knowledge of the directors was binding on the bank, this court declined to answer, because the solution of the question depended in part upon facts not stated in the certificate.

The whole case cannot be transferred to this court. Chief Justice Marshall says: 'A construction which would authorize such transfer, would counteract the policy which forbids writs of error or appeal until the judgment or decree be final. If an interlocutory judgment or decree could be brought into this court, the same case might again be brought up after a final decision; and all the delays and expense incident to a repeated revision of the same cause be incurred. So if the whole cause, instead of an insulated point, could be adjourned, the judgment or decree which would be finally given by the Circuit Court might be brought up by writ of error or appeal, and the whole subject be re-examined. Congress did not intend to expose suitors to this inconvenience; and the language of the provision does not, we think, admit of this construction. A division on a point, in the progress of a cause, on which the judges may be divided in opinion, not the whole cause, is to be certified to this court.'

Where it appears the whole case has been divided into points some of which may never arise, if those which precede them in the certificate are decided in a particular way-the case will be dismissed for want of jurisdiction.

The questions must be separate and distinct, and each one must be particularly stated with reference to that part of the case upon which it arose. They must not be 'such as involve or imply conclusions or judgment by the judges upon the weight or effect of the testimony or facts adduced in the cause.'

The question must not be general nor abstract, nor a mixed one of law and fact. If it be either, this court cannot take jurisdiction.

In the case before us the questions certified are, 'whether, in point of law, upon the facts as stated and proved, the action could be maintained; and whether, consequently, the jury should be instructed that, under the facts as proved, the plaintiff could not recover?'

Upon looking into the record, we find a body of facts stated as having been proved, and the testimony of numerous witnesses set forth at length, as respectively given. The entire case is brought before us, as if we were called upon to discharge the twofold functions of a court and jury. At the threshold arises an important question of fact, not without difficulty. It is, whether the plaintiff is to be regarded as a passenger, or a servant of the defendant, at the time he received, upon the locomotive, the injury for which he sues? Upon the determination of this question depend the legal principles to be applied. They must be very different, as the solution may be one way or the other.

The Constitution wisely places the trial of such questions within the province of a jury, and it cannot be taken from them without the consent of both parties. Here, such consent is given; but it is ineffectual to clothe us with a power not conferred by law. In the light of the authorities to which we have referred, it is sufficient to add that the questions certified are not such that we can consider them.

According to the settled practice, the case will, therefore, be dismissed for want of jurisdiction, and remanded to the Circuit Court, with an order to proceed in it according to law.

DISMISSED, AND ORDER ACCORDINGLY.

[See infra, p. 294, Havemeyer v. Iowa County, 2.-REP.]


text: Talk:Daniels v. Railroad Company/Opinion of the Court


text:
Newell v. Norton and Ship

THIS was an appeal from a decree of the Circuit Court for Louisiana affirming a decree of the District Court in admiralty in a case of collision between the steamboats Hill and World.

The owner of the World filed his libel in the District Court, March 12, 1863, setting forth that his vessel, sailing down the Mississippi and laden with a valuable cargo, had been lost by collision with the Hill, and solely through the fault of the Hill.

The collision out of which the proceeding came, took place in a bend of the Mississippi below the town of Princeton, Mississippi. The Hill received no material injury. The World sank almost immediately, carrying down with her about thirty persons. The wreck and cargo were soon afterwards abandoned to the underwriters: who subsequently assigned their claims to the libellant.

The account of the catastrophe, as given by the libellant, was briefly this: that the World was descending the river in the ordinary channel, when the Hill, which had been running up on the Mississippi side, came quartering out from that side, attempted to cross the river in front of the descending boat, but, being a little too late, ran into her and sunk her.

The libellant accounted for the accident on the ground that the pilot of the Hill failed, for want of proper watchfulness, to discover the World in time to avoid the collision; that he was either ignorant or disregardful of his obligations to obey signals which he ought to have obeyed; and that he manoeuvred his boat with entire want of skill.

The respondent admitted an attempt of the Hill to cross the river, but asserted that it was effected in safety, and that, after the Hill had gained the Arkansas side, the World came square across the river, directly towards the Hill, struck her, inflicting, however, no damage, but was herself by the blow stove in and sunk.

The District Court, in accordance with the prayer of the libel, issued process in rem against the Hill, and citations in personam against the captain, owner, and pilot. The 15th rule in admiralty of this court, of the Rules of 1845, it should be said, allows a libellant, in all cases of collision, 'to proceed against the ship and master, or against the ship alone, or against the master or the owner alone, in personam.'

The owners of the Hill, of whom the master was one, put in a claim, and on the same day the boat was released on a bond, conditioned that the claimants and sureties should abide by all the orders of the court, and pay the libellant the amount awarded by the final decree. The claimants immediately afterwards filed an exception to the libel for misjoinder of owners and pilot in a proceeding against the vessel and master, and prayed that the libel be dismissed. The court ruled that an action against the owners and pilot could not be joined with the proceeding in rem, and that the libellant must elect which remedy he would pursue; and he having elected to proceed in rem against the steamboat, and in personam against the master, it was ordered that the libel be dismissed as to the owners and pilot, and sustained against the steamboat and master. Proofs were then taken.

The testimony was voluminous and conflicting. With the documents it filled a book of three hundred and ten pages of long primer, 'solid.' One hundred and ten persons, first and last, and through a term of five years that the case was in the courts below, were examined. It embraced a number of questions, as whether a sufficient watch had been kept-sufficient and proper signals given-whether the engines had been rightly worked when the boats approached-whether certain officers of the World were or were not intoxicated-what was the character of the pilots for sobriety and skill-and whether Henry Evans, 'a flatboat pilot' on the Mississippi, who saw the collision and testified strongly that the Hill was to blame for it, was worthy of faith seven persons swearing that he was not, and twenty-two that he was. And finally, whereabouts exactly in a bend of the river the collision took place, and what topographical inference could be made from the hydrographical fact that portions of the World's cargo had floated to a particular spot of the shore; and that cattle which had been on the boat were found the next morning walking contemplatively in the State of Mississippi and not in the opposite one of Arkansas.

The District Court decreed for the libellants ($52,500); a decree which the Circuit Court, on full consideration and after giving an opinion at large, which the record contained, affirmed with interest and costs.

After the decree in the Circuit Court a motion was made for a re-hearing, 'upon the ground that the court had erred in its view of the evidence, and that the damages ought to be apportioned.' This motion was refused; Campbell, J., who gave its opinion, saying:

title: Newell v. Norton and Ship


text: Talk:Newell v. Norton and Ship

title: Talk:Newell v. Norton and Ship