text:
The Fannie/Opinion of the Court

The substantial facts, as they are made to appear by the evidence, are these: On the morning of the 28th of April, 1868, the schooner, a vessel of sixty-nine tons burden, laden with one hundred tons of pig-iron, was proceeding down the Chesapeake Bay from Baltimore, toward the capes, on her voyage to Providence, Rhode Island. The wind was fair, blowing from the northeast, and the course of the schooner was south by east one-half east. Her speed was about seven knots an hour. She was in good condition, and her lights were displayed as required by law.

At the same time the steamer Fannie, on her voyage from Savannah to Baltimore, was proceeding up the bay at a speed of about nine knots an hour, her general course being north by west. The two vessels were thus approaching each other on nearly parallel lines, with a difference of half a point in their courses. The steamer's lights were all in their proper places, and fully displayed. About opposite Point Lookout, where the bay is twelve miles wide, and where there are six miles in width of clear deep water, nearly in the middle of the bay, the vessels encountered each other head on, the bow of the steamer striking the bows of the schooner. The effect of the collision was to break in the bow of the schooner and cause her to sink in from five to ten minutes. The steamer passed on without stopping or slackening her speed, or offering assistance, but continued on her course to Baltimore, where she made no report of the encounter.

From this statement of the leading facts, none of which are controverted, it is very obvious there can be no excuse for the collision. There was ample sea-room for the movement of both vessels, the lights of both were well displayed, and there was no fog or stress of weather. Plainly, one or both of the vessels was grievously in fault. The District Court, after considering the evidence, held that the fault was chargeable to the steamer alone, and condemned her to pay to the owners of the schooner $10,365, and the Circuit Court on appeal made a similar decree.

In this court there has been no controversy respecting the law applicable to the case. The efforts of the appellants have been directed almost exclusively to an elaborate criticism of the evidence, in the hope of convincing us that both the District and Circuit Courts were mistaken, and that the schooner was in fault. We are not, however, thus convinced.

The duties of vessels approaching each other, as these vessels were, are too well defined to need more than a simple statement. The steamer was bound to keep out of the way of the schooner, and to allow her a free and unobstructed passage. Whatever was necessary for this, it was her duty to do, and whatever obstructed or endangered the schooner in her course it was the duty of the steamer to avoid. There was but a single obligation resting on the schooner. It was passive rather than active, the duty to keep on her course. If, therefore, the schooner did not change her course, so as to embarrass the steamer and render it impossible, or at least difficult, for her to avoid a collision, there can be no doubt that the steamer alone is answerable for the damages. In reference to this we have carefully examined the evidence. It is to be found in the testimony of the mate and a seaman of the Ellen Forrester, who composed the watch at the time of the collision, and in the testimony of the mate and two seamen of the steamer. Both the mate and the wheelsman of the schooner state positively that there was no change in her course from the time the captain left the deck (twelve o'clock) until the collision took place. When the watch of the mate commenced, the course of the vessel was south by east one-half east. The witnesses on both sides agree that this was the right course to pursue in sailing down the bay. Bryant, the man at the wheel, was in a position to know whether the course was changed, and he could not be mistaken. It is not to be presumed that he changed the course of the vessel without orders. And the mate must know whether he gave any orders to port or starboard the wheel. The testimony of these witnesses, therefore, is not a mere statement of an inference drawn from appearances. It is direct and positive, and both of them state that the course of the schooner continued unchanged from the time the captain left the deck. In addition to this is the improbability of any change. The course south by east one-half east was the right course to be pursued in passing down the bay and out of the capes. Any deviation from it would have retarded the voyage. Either luffing into the wind, or falling off, would have been a departure from the proper course. And there was nothing to induce it. The wind was fair, and the schooner was nearly midway in the bay, with abundant sea-room on each quarter. There was no motive for a change of course, therefore, but every reason for holding on.

In opposition to this we have the testimony of Billups, the mate, and two seamen of the steamer. They infer from their observation of the schooner's lights that she changed her course twice, first luffing into the wind, and then immediately bearing away to the westward. At best this is not the most satisfactory evidence, for it is liable to double mistake; mistake of the facts, and mistake of the inferences deduced from the facts. Thus it was said in the case of the steamboat Neptune: 'What a witness asserts he did, or did not do, on his own vessel at the time, is generally more satisfactory evidence of the facts than the opinion and belief of a dozen others formed from what they supposed they saw or heard on another vessel.' But the testimony is subject to more serious objections. It is confused, contradictory, and inherently improbable. Some of it wears the appearance of being uncandid. The schooner's lights were seen from the steamer when the vessels were three or four miles apart, apparently one point off the steamer's port bow. Billups, the steamer's mate, states that he saw the red light. He leaves it to be inferred that he saw the red light only. Yet if the vessels were sailing on the courses which it is not denied they were at the time, with only a half-point difference between them, the green light of the schooner must have been as plainly visible to those on the steamer as was her red light. Billups says, that a few seconds afterwards he ordered the helm a-port. But the man at the wheel testifies that the vessels were pretty close together when the order to port was given, and that, after porting, the steamer hardly ran fifty yards before an order was given to starboard, followed by a second order to port, before the steamer had run to port twenty yards. The collision then immediately followed. In these particulars the testimony of the look-out on the steamer is substantially the same. Comparing it with the account these witnesses give of the movements of the schooner, the unreliability of their impressions becomes manifest. It is clear that the first order to port, if given at all, was not given until the vessels were close together. The course of the steamer, after she passed the light-boat off Smith's Point, was north by west. That carried her across the course of the schooner, which was, as we have seen, south by east one-half east, and that accounts for the appearance of the schooner's green light, and for the impression of the mate that she was sailing across the bow of the steamer, having changed her course. It must have been then that the order to port was given, followed almost immediately by an order to starboard, and a second order to port. All this is perfectly consistent with the testimony of the witnesses for the appellees that there was no change in the course of the schooner. The account given by the appellant's witnesses is very improbable. They say the schooner luffed across the steamer's bow, and sailed on her changed course not more than fifty yards before she fell off again to the westward. Billups swears that when she thus headed across the steamer's bow she was 'some feet' distant, or, as he afterwards defined, from seventy-five to a hundred feet. It was after this he ordered the helm to starboard and to port. He did not slacken the speed of the steamer, or order the engine reversed. The changes described by him in the course of the vessels could not have been made in such rapid succession as is stated by the appellant's witnesses. The schooner could not have luffed up into the wind, sailed fifty yards on her new course, and then borne away to the westward, while the steamer with unslacked speed was moving seventy-five or a hundred feet. No wonder, therefore, both the courts below held the steamer solely in fault. The evidence was wholly insufficient to justify the belief that the schooner did not keep on her course as the rules of navigation required.

We do not think it worth while to discuss the question whether the look-out on the schooner was sufficient. If it was not, it can make no difference, for the want of a proper look-out did not contribute to the disaster. If the schooner held her course, it was all that the steamer had a right to require, and, whether she had a proper look-out or not, it was her duty to do precisely what she did.

DECREE AFFIRMED.

title: The Fannie/Opinion of the Court


text: Talk:The Fannie/Opinion of the Court

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

title: Talk:The Fannie/Opinion of the Court


text:
Page:Popular tales from the Norse (1912).djvu/561

 Rh Well, Boots had to stay behind, and he didn't know what to do or whither to turn; and so he grew so downcast, he got off his horse, and sat down in the tall grass to weep. But when he had sat a little while, one of the tufts in the grass began to stir and move, and out of it came a little white thing, and when it came nearer, Boots saw it was a charming little lassie, only such a tiny bit of a thing. So the lassie went up to him, and asked if he would come down below and see "Doll i' the Grass."

Yes, he'd be very happy; and so he went.

Now, when he got down, there sat Doll i' the Grass on a chair; she was so lovely and so smart, and she asked Boots whither he was going, and what was his business.

So he told her how there were twelve brothers of them, and how the King had given them horse and mail, and said they must each go out into the world and find them a wife who could spin, and weave, and sew a shirt in a day.

"But if you'll only say at once you'll be my wife, I'll not go a step farther," said Boots to Doll i' the Grass.

Well, she was willing enough, and so she made haste, and span, and wove, and sewed the shirt, but it was so tiny, tiny little. It wasn't longer than so━━━━━long.

So Boots set off home with it, but when he brought it out he was almost ashamed, it was so small. Still the King said he should have her, and so Boots set off, glad and happy to fetch his little sweetheart. So when he got to Doll i' the Grass, he wished to take her up before him on his horse; but she wouldn't have that, for she said she would sit and drive along in a silver spoon, and that she had two small white horses to draw her. So off they set, he on his horse and she on her silver spoon, and the two


text:
Levy v. Stewart

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

Levy, of Louisiana, gave, in August, 1860, to Stewart, of New York, three promissory notes, at six months each. They were dated on different days in the month just named and payable at New Orleans, on the corresponding days of February, 1861. Very soon after the maturity of the notes the rebellion broke out. On the 19th April, 1861, proclamation of blockade was made of the Southern coast and war soon became flagrant. However, the city of New Orleans was taken possession of by the government forces 6th May, 1862, and the Circuit Court of the United States reorganized there 24th June, 1863. The notes had been duly presented before the war, at maturity, and payment refused. Stewart now, July 27th, 1868, sued on them in the court below. The defendant pleaded what is known in Louisiana as the prescription of five years, under sections 3505 and 3506 of the civil code of the State; a plea in good degree resembling that known in most States as a plea of the statute of limitations. This prescription, however, under the code runs against minors, interdicted persons, and persons residing out of the State; herein being unlike the statutes of limitations in most of the States, or that of James I, from which most of these were copied, where the rights of such persons are specially saved. A plea alleging new facts being considered by the Louisiana practice as denied, without replication or rejoinder, the plea here was to be regarded as open to every objection of law and fact, the same as if specially pleaded.

It was in proof that the defendant resided in Bayon Sara, in the parish of West Feliciana, or at Clinton, in the parish of East Feliciana, at the dates at which the notes sued on were given and matured, and that he continued to reside there during the war.

That he had an agent in New Orleans during the war, and made one or two visits to New Orleans towards the close of the war.

That the plaintiffs resided in the city of New York during the whole of the above-mentioned time.

That the plaintiffs brought suit on the same cause of action on the 4th day of March, 1868.

That the defendant made a compromise and settlement of the suit with the attorney, who had brought it as the attorney at law of the plaintiffs; that in consequence of the said compromise and settlement the attorney discontinued the suit on the 8th of May, 1868.

That the attorney had no authority from the plaintiffs to enter into the compromise, or make the settlement, or discontinue the suit; and that the plaintiffs repudiated his acts in the case so soon as informed of them, and afterwards brought the present suit.

On the foregoing facts the court overruled the plea of prescription and gave judgment for the plaintiff.

The defendant excepted to the decision of the court, on the ground:

First, that the bringing of the first suit, May 4th, 1868, did not interrupt prescription; and,

Second, that by the decisions of the Supreme Court of Louisiana, the highest court in the State, the civil war did not interrupt prescription, and that the courts of the United States are bound to follow the decisions of the Supreme Court of Louisiana upon the law of prescription of the State of Louisiana.

Mr. P. Phillips, for the plaintiff in error:

The first suit, which was commenced the 8th May, 1868, and which was discontinued, can have no effect upon the plea, for the code expressly provides, article 3485, that when a plaintiff, 'after making his demand, abandons or discontinues it, the interruption shall be considered as having never happened.'

The question then is, what effect was produced by the war on the law of prescription, when the suit is brought in Louisiana on a contract payable in Louisiana? Before considering which question of law a point of fact-a part of the case, in truth, though not referred to in the record-must be settled. That question of fact is,-when, for the purpose of a suit by Stewart against Levy, did the war end? It ended, we suppose, in April or May, 1865.

By proclamation of the 29th of April, 1865, all restrictions upon commercial intercourse with so much of the State of Louisiana as lies east of the Mississippi River, and were within the lines of military occupation, were removed. Bayou Sara and Clinton, the residence of the defendant, were at that date within the lines, and they lie to the east of the river. This is matter of indisputable fact, personally known to all residing thereabouts, and is part of the public history of the war.

By another proclamation of the 10th of May, 1865, it is declared that armed resistance to the authority of the government in the insurrectionary States may be regarded as virtually at an end.

We assume, then, that for the purpose of a suit the war terminated in May, 1865. With that assumption we proceed.

As the District Court of the United States was reorganized in New Orleans in 1863, there was no impediment in the way of the plaintiff, and he may have brought his suit at any time from that period to February, 1866, before the prescription of five years would have expired. From the close of the war to this latter period there were still nine months in which the parties could have brought their suit. This they did not avail themselves of, but took their first action three years after the termination of the war.

Now, was this in time? We submit that it was not.

There are two well-established propositions which would seem to show this:

1. That a fixed and received construction of a State statute, by the highest court of the State, is as effectual as if written into the statute by direct legislative declaration.

2. That this court has repeatedly held that the construction of the State statute of limitations is conclusive; and that they will not only adopt the construction given by the State court, but will follow any change of construction that may be made by the State court.

On these propositions the language of the court is this:

'The same reason which influences this court to adopt the construction given to the local law, in the first instance, is not less strong in favor of following it in the second, if the State tribunals should change the construction. A refusal in the one case as well as in the other, has the effect to establish in the State two rules of property.'

'If the construction of the highest judicial tribunal of a State forms a part of its statute law, as much as an enactment by the State legislature, how can this court make a distinction between them? There could be no hesitation in so modifying our decisions as to conform to any legislative alteration in a statute, and why should not the same rule apply when the judicial branch of the State government, in the exercise of its acknowledged functions, should, by construction, give a different effect to a statute from what had at first been given to it?'

Now the five year prescription is construed by the Supreme Court of Louisiana in Rabel v. Pourciau. It is there declared that the maxim 'contra non valentem agere, non currit prescriptio,' does not apply to this peculiar prescription which runs against 'minors, interdicted persons, and absentees.'

The court further hold that war was an impediment which would excuse the party from acting while the war lasted. But if after this impediment was removed, there still remained the tempus utile in which the creditor could have sued before the expiration of the five years, he was bound to act within that time. This tempus utile is fixed by the decision at six months.

And this is the doctrine of many eminent French jurists. Troplong on the subject quotes a decree of the Court of Cassation, 1st August, 1829, to the effect that war does not suspend prescription when the creditor had the means of exacting his debt in another place than that declared in a state of blockade. He then says as a logical consequence, if the impediment proceeding from war or pestilence occurs in an intermediate time, and not a time bordering on the expiration of the prescription, it ought not to be taken into account, since when the creditor is free to act he has all the time that is necessary to compel his debtor to pay, for where would be from that time the 'force majeure,' which alone authorizes the suspension of prescription? By way of illustration, he says:

'I reside in a city which is blockaded for the period of one year, and twenty years remain to avoid the thirty years prescription of my right: would it not be ridiculous to attempt a justification of negligence in not acting during this period and demanding that this period of siege should not be counted as part of the thirty years? What force majeure has paralyzed me, since for twenty years I could at any moment have avoided this impediment?'

We must pay strict attention, says he, to the fact that a hindrance founded on war is not written in the law, that it is never legalized but by an act of 'force majeure,' shown to the satisfaction of the judge, and that he should never admit it but when sustained by an irreparable and invincible obstacle. He adds:

'When the creditor has had sufficient time (tempus utile) to redress himself, force majeure is a vain allegation, and the time thus lost, so easy to repair, just as the time of an apoplexy, or fever, or grief. The time of prescription is in fine regulated by law, with sufficient latitude and favor, so that it is not necessary that each (every) day should be 'absolument utiles."

But, independently of this, the decision already quoted of Rabel v. Pourciau, cited, is sustained by fifteen cases, reported in 20th and 21st Louisiana Annual; and if any construction can be considered as part of the local statute, this must be. As thus construed, it should be enforced by this court. The appellee had nine months after the war terminated and before the prescription expired. Nor is there anything hard in this view. Prescription it must be remembered is governed by the law of the forum; in other words the law of the State in which the suit is brought. When we therefore ascertain what that law is, it governs all judicial proceedings, whether the same are instituted in the State courts or the courts of the United States administering justice in that State. A citizen of another State suing a citizen of Louisiana on a Louisiana contract, can have no cause to complain, if the law applicable to the limitation of his right to sue is the same as is applied to suits between her own citizens.

Messrs. S. M. Johnson and C. F. Peck, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Levy v. Stewart


text: Talk:Levy v. Stewart

title: Talk:Levy v. Stewart


text:
Levy v. Stewart/Opinion of the Court

Statutes of limitations exist in all the States, and with few exceptions they have been copied from the one brought here by our ancestors in colonial times. They are regarded as statutes of repose arising from the lapse of time and the antiquity of transactions, and they also proceed upon the presumption that claims are extinguished whenever they are not litigated in the proper forum within the prescribed period.

Exceptions are to be found in all such statutes; but cases where the courts of justice were closed in consequence of insurrection or rebellion are not within the express terms of any such exception, contained either in the original act or any other of later date.

Express exceptions of the kind, it is conceded, do not exist, and if none can be implied, then all debts due from one belligerent to another, as well as executory contracts involving commercial intercourse with the enemy, are practically discharged, as, if the war is of much duration, prior claims will be barred by the local statute of limitations.

Enemy creditors cannot prosecute their claims subsequent to the commencement of hostilities, as the rule is universal and peremptory that they are totally incapable of sustaining any contract in the tribunals of the other belligerent.

Absolute suspension of the right to sue and prohibition to exercise it exist during the war by the law of nations, but the restoration of peace removes the disability and opens the doors of the courts.

Peace, it is said, restores the right and the remedy, but it cannot restore the remedy if the war is of much duration, unless it be held that the operation of the statute of limitations is also suspended during the period the creditor is prohibited by the existence of the war and the law of nations from enforcing his claim.

On the twenty-seventh of July, 1868, the plaintiffs in the court below commenced an action of assumpsit against the present plaintiff on three promissory notes, signed at New York and made payable at New Orleans. One, dated August 6, 1860, due six months after date, for sixteen hundred and eighteen 55/100 dollars; another, dated August 23, 1860, due six months after date, for fourteen hundred and fifteen 59/100 dollars; and the other, dated August 20, 1860, due six months after date, for four hundred and forty-two 17/100 dollars, all of which notes, at maturity, were duly presented for payment, which being refused, they were duly protested for non-payment. Process was duly issued, and being served, the defendant appeared and pleaded as a defence the prescription of five years as established by the civil code of the State.

New facts alleged by the defendant in his answer are considered as denied by the plaintiff in the State courts without any replication, and the same rules of practice have been adopted in the Circuit Courts. Matters in avoidance, therefore, alleged in the answer, are open to every objection of law and fact the same as if specially pleaded.

Viewed in that light, as the pleadings must be, the issue between the parties was the same as it would be in jurisdictions governed by the common law, where the plaintiff replied denying the allegations of the answer, or pleaded specially that the operation of the prescription was suspended during the late civil war, and that the plaintiff did commence his suit within five years next after the cause of action accrued.

Testimony was taken and the parties were heard, but the court, neither party requesting a jury, overruled the plea of prescription, and entered judgment for the plaintiffs. Subsequent to the judgment a statement of facts was filed, signed by the judge and the parties, which consists of the pleadings, the notes and documents offered in evidence, the entries in the minutes of the proceedings, the judgment of the court, together with a statement of the evidence introduced. By the statement it appears that the defendant, at the dates at which the notes were given, and when they matured, resided at Bayou Sara, and that he continued to reside there during the war of the rebellion; that he had an agent in New Orleans during that period, and that he made one or two visits there towards the close of the war; that the plaintiffs resided throughout that period in the city of New York; that on the 4th of March, 1868, they brought a suit for the same cause of action; that the defendant made a compromise and settlement of the same with the attorney who instituted the suit, whereby the suit, on the eighth of May following, was discontinued; that the attorney, in making the settlement and in discontinuing the suit, acted without authority, and that the plaintiffs repudiated his acts in the case as soon as they were informed of the same, and afterwards brought the present suit.

Exceptions were taken by the defendant to the rulings and decision of the court upon three grounds, as follows: (1.) Because the bringing of the first suit did not interrupt the prescription established by the laws of the State. (2.) Because the civil war did not interrupt the prescription under the rule established by the decisions of the Supreme Court of the State. (3.) Because the courts of the United States are bound to follow the decisions of the Supreme Court of the State in respect to the law of prescription, as applied to such causes of action.

Different views, however, were entertained by the Circuit Court, and judgment was rendered for the plaintiffs. Whereupon the defendant sued out a writ of error and removed the cause into this court.

Much discussion of the first response made by the plaintiffs to the defence of prescription as set up by the defendant in his answer is unnecessary, as the court is of the opinion that the decision of the case must turn upon the second response of the plaintiffs to that defence, which is, that in computing the five years since the cause of action accrued the period during which the courts of the State where the defendant resided were closed in consequence of the late civil war must be deducted.

Regulations exist in some of the States that where a first suit is abated and a second suit is brought within a prescribed time the statute of limitation shall cease to run from the date of the first suit, but the court is not referred to any such enactment as applicable in this case, and it is believed that none such exists, as the code of the State provides that if the plaintiff, after having made his demand, abandons or discontinues it, the interruption shall be considered as having never happened.

Grant all that, still the question remains to be considered whether the alleged prescription was not interrupted by the fact that the courts of the State where the defendant resided were closed by the late civil war for such a period of time that the bar was not complete when the present suit was commenced.

Proclamation of blockade was made by the President on the nineteenth of April, 1861, and on the thirteenth of July in the same year Congress passed a law authorizing the President to interdict all trade and intercourse between the inhabitants of the States in insurrection and the rest of the United States.

On the twentieth of August, 1866, the President by his proclamation of that date proclaimed that the insurrection was at an end and that peace, order, and tranquillity were fully restored in all the States.

Permanent military possession of New Orleans, it is conceded, was taken by our forces at a much earlier period, and it is also true that the Circuit Court was organized there at the date specified in the statement of facts, but that portion of the State where the defendant resided still remained within the lines of the insurrectionists, and of course the courts of the State were closed so far as respects the rights of the plaintiffs in this case.

Throughout the entire period between the dates of those proclamations the courts of the State were closed to the plaintiffs and they were totally incapable of instituting any suit for the enforcement of their claim.

Exceptions, not mentioned in the statute of limitations, have sometimes been admitted, and this court decided in the case of Hanger v. Abbott, that the time during which the courts of the States in rebellion were closed to the citizens of the rest of the Union is to be excluded in suits, since brought, from the computation of the time fixed by the statutes of limitation within which suits may be brought, though no such exception is expressly admitted in the limitation act. Neither laches nor fraud can be imputed to the creditor in such a case, as the inability to sue becomes absolute by the declaration of war wholly irrespective of his consent or opposition. When the contract was made he was competent to sue, but the effect of war is to suspend his right during its continuance, not only without any fault on the part of the creditor, but under circumstances which make it his duty to abstain from any such attempt. His remedy, as was said in that case, is suspended by the two governments and by the law of nations not applicable at the date of the contract, and which comes into operation in consequence of an event over which he has no control.

Recent decisions of the Supreme Court of the State are referred to by the defendant in which it is denied that any exception whatever is allowed in any case, in the law of prescription, as to bills and notes.

None of those decisions are founded upon any express enactment, and the reasons assigned for the conclusion are not satisfactory. They admit that the maxim contra non valentem agere non currit prescriptio is a maxim of universal justice, but deny that it applies to causes of action founded upon bills and notes, chiefly because 'they are prescriptible against minors and interdicted persons as well as others,' which the chief justice of that court, in the case first cited, held to be an unsatisfactory reason for the conclusion, and in that view the court here entirely concurs.

Suppose that the rule of that court cannot be adopted, still it is insisted by the defendant that the suspension of the prescription ceased when the rebellion came to an end; that the suit was instituted too late, as it might have been commenced within five years next after the cause of action accrued, and certain continental authorities are referred to where that rule is apparently maintained.

Authorities of the kind, though entitled to great respect, are not obligatory, and the court is of the opinion that the rule adopted in the case of Hanger v. Abbott, is more consonant with justice and more in accordance with the analogies of our law than the one suggested by those commentators.

Even the Supreme Court of the State which refused to adopt that rule admits that the law ought to be so, but proceeds to show from certain prior decisions of this court that it is not so, not one of which is an authority to support the proposition for which they were invoked.

Evidently the case before the court is controlled by the decision in the case of Hanger v. Abbott and The Protector, and the court as now constituted adheres to those decisions.

Creditors' debts due from belligerents are suspended during war, but the debts are not annulled. They are precluded during war from suing to recover their dues, but with the return of peace we return the right and the remedy.

Where a debt has not been confiscated during war the rule is now universally acknowledged that the right to sue revives when peace is restored, and the rule is that the restoration of peace returns to the creditor both the remedy and the right, which necessarily implies that the law of limitation was suspended during the same period.

JUDGMENT AFFIRMED.

NOTE.-The four cases which now immediately follow, to wit, Garnett v. United States, McVeigh v. Same, Miller v. Same, and Tyler v. Defrees, arose under two certain acts of Congress passed in 1861 and 1862, during the late rebellion, and popularly known as the Confiscation Acts. Along with one or two others they were argued at the last term; but after being taken into advisement, were at the close of it ordered to be re-argued at this. They were now fully argued very much together. In the first of them nothing relating to confiscation was reached; the case going off on a point of jurisdiction. In the judgment in none of them did the Chief Justice or Mr. Justice Nelson participate; both being absent from the court from the causes mentioned in the memoranda of the Term.

title: Levy v. Stewart/Opinion of the Court


text: Talk:Levy v. Stewart/Opinion of the Court


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Page:Popular tales from the Norse (1912).djvu/562

 376 horses that drew her were two tiny white mice; but Boots always kept the other side of the road, he was so afraid lest he should ride over her, she was so little. So, when they had gone a bit of the way, they came to a great piece of water. Here Boots' horse got frightened, and shied across the road and upset the spoon, and Doll i' the Grass tumbled into the water. Then Boots got so sorrowful, because he didn't know how to get her out again; but in a little while up came a merman with her, and now she was as well and full grown as other men and women, and far lovelier than she had been before. So he took her up before him on his horse, and rode home.

When Boots got home all his brothers had come back each with his sweetheart, but these were all so ugly, and foul, and wicked, that they had done nothing but fight with one another on the way home, and on their heads they had a kind of hat that was daubed over with tar and soot, and so the rain had run down off the hats on to their faces, till they got far uglier and nastier than they had been before. When his brothers saw Boots and his sweetheart, they were all as jealous as jealous could be of her; but the King was so overjoyed with them both, that he drove all the others away, and so Boots held his wedding-feast with Doll i' the Grass, and after that they lived well and happily together a long long time, and if they're not dead, why, they're alive still.


text:
Garnett v. United States

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

By an act passed in 1801, there was organized for the District the 'Circuit Court of the District of Columbia, vested with all the powers of the Circuit Courts of the United States.' It had 'cognizance of all crimes and offences committed within said District, and of all cases in law and equity,' & c.

By act of 1802, it was provided that the chief judge of the District of Columbia should hold a District Court in and for the said District, 'which court shall have and exercise within said District the same powers and jurisdiction which are by law vested in the District Courts of the United States.'

On the 3d March, 1863, by act of that date the courts of the District were reorganized.

The first section of that organic act established a court, to be called the Supreme Court of the District of District of Columbia, which shall have general jurisdiction in law and equity, and consist of four justices, one of which shall be chief justice.

The third section provided that the Supreme Court should possess the same powers and exercise the same jurisdiction as was then possessed and exercised by the Circuit Court of the District of Columbia.

The justices of the court (the act proceeds) shall severally possess and exercise the jurisdiction now possessed and exercised by the judges of the said Circuit Court. Any one of them may hold the District Court of the United States for the District of Columbia, in the manner, and with the same powers and jurisdiction possessed and exercised by other District Courts of the United States.

With this organization of the courts of the District of Columbia, the present suit was begun in the Supreme Court of the District of Columbia sitting for the District Court of the same, for the forfeiture of certain real property of one Garnett, under the act of Congress of July 17th, 1862, entitled 'An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes.'

The District Court decreed a condemnation of the property, and it was sold. Garnett sued out a writ of error from the Supreme Court of the District. This writ having been returned, the District Attorney moved to dismiss it, on the ground, among others, that a writ of error from that court would not lie to the District Court; and the Supreme Court dismissed the writ on that ground. An exception was duly taken to this ruling; and from the judgment of dismissal the case was brought here on writ of error.

Messrs. B. R. Curtis, Cushing, and Brent, for the plaintiff in error; Mr. Bristow, Solicitor-General, contra, for the United States.

Mr. Justice SWAYNE delivered the opinion of the court.

title: Garnett v. United States


text: Talk:Garnett v. United States

title: Talk:Garnett v. United States


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

This is a writ of error to the Supreme Court of the District of Columbia.

The original proceeding was instituted in the District Court of the United States for same territory. Its object was to procure the condemnation and sale of the property of the plaintiff in error, described in the libel of the United States, pursuant to the provisions of the act of Congress of July 17th, 1862, entitled 'An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes.' The libel alleged that the property belonged to Garnett, and that he was within three of the categories defined in the 5th section, which rendered it liable to be proceeded against in the manner prescribed. His offences were specifically set forth. The property was condemned and sold. Garnett sued out a writ of error from the Supreme Court of the District of Columbia. The attorney of the United States filed a motion to dismiss the writ. The court dismissed it upon the ground that a writ of error would not lie from that court to the District Court. Garnett excepted. His bill of exceptions is found in the record.

This is the only point in the case which we have found it necessary to consider. In coming to this conclusion the learned court fell into an error.

The case was decided prior to the decision of this court in Ex parte Bradley. It was not seriously controverted by the counsel for the defendants in error, in the argument at the bar, that this authority is conclusive upon the subject. The proposition is too clear to require discussion. Error, and not appeal, was the proper revisory remedy. The other objections taken to the writ are also without validity. The order dismissing it must therefore be reversed. This will restore the case to the place it occupied before the Supreme Court of the District of Columbia, when the order dismissing it was made. As that court did not pass upon the alleged errors of the District Court, we cannot consider them. Our province is to exercise appellate jurisdiction touching the proceedings of the Supreme Court of the District. We can examine those of the District Court only after they have been the subject of review by the Supreme Court, and then only in connection with the action of that court in affirming or reversing them. We cannot regard them until they have received the impress of the judgment of the higher local court.

The order dismissing the writ of error is REVERSED, and the cause will be remanded to the Supreme Court of the District of Columbia, with directions to proceed in the cause

IN CONFORMITY TO LAW.


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


text:
McVeigh v. United States (78 U.S. 259)

ERROR to the Circuit Court for the District of Virginia.

On the 17th of July, 1862, Congress passed an act, entitled 'An act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes.' This act provided for the seizure and confiscation of the property of persons holding certain offices or agencies under 'the Confederate States,' and of persons engaged in the rebellion then existing, or aiding or abetting such rebellion, who should not cease to aid, countenance, and abet such rebellion within sixty days after public warning and proclamation by the President, and return to their allegiance to the United States. The act contains numerous sections. They are set forth with fulness in a case which was decided soon after this one, and which is reported next to it, Miller v. United States, the leading case on the Confiscation Acts, and in which, rather than in this one where the main subjects were hardly reached, the provisions of the statute are inserted. To understand the present case, it is indispensable that the reader be possessed of the nature of that statute, and of its provisions. He will, therefore, have the goodness to turn forward to page 269, and to read from the words, beginning with an *, The Act of July 17th, 1862, contains fourteen sections,' on that page, to the words on page 273, beginning with a, In order to carry out these acts;' after which he will resume his reading here.

With this statute in force the United States filed a libel of information in the District Court for the District of Virginia, for the forfeiture of certain real and personal property of one William McVeigh, situated in Virginia. The information was in form against 'all the right, title, and estate of William McVeigh in and to all that certain piece, parcel, or lot of land,' &c., describing it particularly.

The libel alleged that subsequent to July 17th, 1862, the said McVeigh held and exercised an office and agency of honor, and trust, and profit, under the government of the Confederate States, and under one of the States of said confederacy; and that he accepted the appointment, and was elected to the office and agency after the date of the ordinance of secession of said State; and that he took an oath of allegiance to and to support the constitution of the Confederate States; and that since July, 1862, he had assisted and given aid and comfort to the rebellion, and to those engaged in the rebellion, by acting on the 18th of July, 1862, and at various times subsequently as a soldier, and as an officer, and as a non-commissioned officer in the army and navy of the Confederate States; and by contributing money and property to the aid and encouragement of those engaged in the rebellion. The libel was afterwards amended so as ¢to charge, in addition to the above offences, that McVeigh, on the 18th of July, 1862, was engaged in armed rebellion against the government of the United States, and notwithstanding the President, on the 25th of July, 1862, issued his proclamation warning all persons thus engaged to cease participating in aiding, countenancing, and abetting such rebellion, the said McVeigh did not within sixty days thereafter cease to aid, countenance, and abet such rebellion, and return to his allegiance to the United States.

McVeigh appeared by counsel, made a claim to the property, and filed an answer. This answer was not contained in the record, and nothing of its contents appeared except what was stated in the order of the court made on the motion of the attorney of the United States.

The attorney of the United States, however, moved that the claim, answer, and appearance be stricken from the files, as it appeared from the answer filed, that at the time of filing it the party was 'a resident of the city of Richmond, within the Confederate lines, and a rebel.' The court granted the motion. Subsequently the default of all persons was taken, and a decree was rendered for the condemnation and sale of the property. The case was carried to the Circuit Court, and there the decree was affirmed. It was now brought here on writ of error.

Messrs. B. R. Curtis, Brent, Wattles, Moore, Hughes, Denver, and Peck, appeared for the plaintiff in error. Mr. Curtis argued the case orally, the other counsel filing briefs.

Mr. Curtis: The claim and answer of McVeigh and the appearance of his counsel having been stricken out, of course nothing remained for him but to be defaulted, because he was not allowed to appear; and the question is, whether that was erroneous or not.

Now the act of Congress does not inflict forfeiture upon a person because he was a resident within the enemy's lines, nor because he was a rebel at the time when this answer was filed, even if it be assumed that the District Court interpreted 'rebel' to mean a person giving aid and comfort to the rebellion, of which interpretation this court has no evidence. The provision of the 5th section, which relates to persons owning property in any loyal State or Territory, or in the District, applies to those who, at any time after the passage of the act, should give aid and comfort to the enemy; but it does not apply to those who owned property within the State of Virginia, which was not one of the loyal States, but one of the Confederate. The 6th section, which provides for persons who own property and commit the described offences within the Confederate States, is limited. 'If the person, &c., in any other than the loyal States shall not, &c., cease to aid, countenance, and abet such rebellion, and return' to his allegiance, his property is to be forfeited. But only then. This is a penal statute, not to be extended by implication.

Thus it did not appear by the answer of McVeigh that he was within the terms of the act. He was not within the terms as a resident within the rebel lines, nor by reason of being a rebel (whatever the District Court may, under the circumstances of the case, have construed that to be) when he filed his answer, because the 6th section does not apply to him. And it did not appear by his answer that he was a rebel by holding any of the offices that are mentioned in the 5th section. Therefore the case is this: that Congress provides such process as requires a notice to the party supposed to be guilty to come in and defend himself; and when he comes in and offers to defend himself and files an answer, then inasmuch as the court say that on reading that answer they see (not that he has committed any one of the offences for which he is to forfeit his property) but has committed some other offence therefore he must not be allowed to defend.

See how the action of the court below would operate. This court has decided that the question whether a person was guilty in point of fact of the offences leading to confiscation under this act must be tried by a jury. And under that decision we assume as a certainty that this case must go back to be so tried. Well; the case is called on; McVeigh appears ready to prove that he is not within the act. The judge says, 'Yes; but you are a resident within the enemy's lines, and you are a rebel; you cannot be heard.' How is he going to get to the jury? Manifestly he can have no trial by jury, for he can have no trial at all, and therefore-for this is the necessary consequence of his having no trial at all-he is to have his property forfeited by the decree of the court for want of a trial, not because he is found by a jury to have committed one of the offences which by force of the statute forfeit that property, but because he resides within the enemy's lines, and the judge, upon some facts which appear in his answer, pronounces the conclusion of law that he is a rebel.

Mr. Akerman, Attorney-General, Mr. Bristow, Solicitor-General, contra, for the United States:

An enemy has no standing in court, and cannot be admitted as a claimant even in prize. Whether he be an enemy or not, if contested, must be determined by the court; but it is a different issue from the issue on the merits, and is to be determined in the first instance by the court. In proceedings in rem, if it is admitted by the claimant that he is an enemy, his claim must be stricken out.

Although the claim and answer are not set out in the record, yet as the order striking them from the files recites that 'it appeared from the answer that the respondent, McVeigh, is, and at the time of the filing was, a resident of the city of Richmond, within the Confederate lines, and a rebel,' it must be taken that this recital is true, and that it did appear in the answer that McVeigh was a resident of the city of Richmond, within the Confederate lines, and a rebel. If this fact was so, the court did right in striking out his claim. For residents of hostile territory, in war, are regarded as enemies, and as McVeigh in his answer admitted substantially that he was an enemy, the action of the court was right.

In addition he is not a party to the proceedings below. The proceeding was conducted against the property alone. He cannot take a writ of error.

Reply:

Alien enemies at the common law it is true are not admitted; but even alien enemies are admitted as parties to proceedings in courts of admiralty-international courts-where they come for a purpose proper to be considered by such tribunals. Suppose a British ship, in the event of a war with England, is captured, belonging to a British owner, and he comes into a court of admiralty and files an answer and claim. If, indeed, he said, 'I am an inhabitant of the enemy's country, and this is my property,' he would state himself out of court. But suppose he says, 'When that ship was captured, she was under your cartel; I will prove it,' is there any doubt that he is to be listened to?

But this case is peculiar. It is not within this principle with regard to alien enemies. Persons like McVeigh, though residing within the Confederate lines, and though rebels (whatever meaning was attached to this word by the District Court), were not aline enemies; they were enemies for the purpose of having war made upon them, and for the purpose of having their property confiscated if Congress took proper measures to confiscate their property as enemies; still they were citizens of the United States, and they are not to be kept out of the courts of the United States for the purpose of presenting any rights which it was proper those courts should consider. Now was it not proper that this court of the United States should consider the question whether McVeigh had committed the offences alleged in the libel to cause the forfeiture of his property? Did not Congress intend when it enacted this law, that that should be considered, and considered in every case? It has not passed a sweeping decree of condemnation, nor called on the courts to pass sweeping decrees of condemnation against all rebels or all enemies, but it has singled out persons guilty of certain offences, and has said, that these offenders are to be punished by the forfeiture of their property. But are they to be punished without hearing them? In Harris v. Hardeman, it is declared to be a principle of universal jurisprudence, and one which cannot be disregarded, that every party who is proceeded against in a court of justice, civilly or criminally, must have notice. Why? That he may appear and be heard. For from the days of Magna Charta, as Lord Coke tells us, and down to the present time, due process of law includes actor, reus, judex; and how is anybody to be Judex unless he hears?

It is alleged by the opposing counsel that McVeigh was not a party. In one sense he was not a party, because when he applied and desired to be admitted as a party, the court refused to admit him; but one of the questions is whether he was not wrongfully refused, and can he not have that question decided here?

This is not a proceeding in rem on account of the fault in the thing, or the illegal predicament in which the property has been placed. It is a proceeding against all the property of a particular person by name, on account of his guilt. From the nature of the proceeding he is necessarily a party to that proceeding. His being so does not depend on any order of the court; it arises out of the very nature of the case. Must he not have notice? If he has notice, has he not a right to appear,-a right which cannot be denied him, any more than it can be denied to any person indicted for a crime,-to appear and defend himself? And if he not only must have notice, but has the right to appear, then will the fact that he has not been allowed to appear debar him from his writ of error? Mr. Justice SWAYNE delivered the opinion of the court.

title: McVeigh v. United States (78 U.S. 259)


text: Talk:McVeigh v. United States (78 U.S. 259)


text:
McVeigh v. United States (78 U.S. 259)/Opinion of the Court

This is a writ of error to the Circuit Court of the United States for the District of Virginia.

The defendants in error filed in the District Court of the United States for that district a libel of information, under the act of July 17, 1862, to reach, for the purposes of forfeiture and sale, certain real and personal property of McVeigh, a description of which is fully set forth. The original libel was the same, mutatis mutandis, as that in the case of Garnett, claimant of certain real estate, against the United States. An amendment was subsequently made, whereby a farther charge was alleged of the offence defined in the sixth section of the act. The plaintiff in error appeared by counsel, interposed a claim to the property, and filed an answer. The attorney of the United States submitted a motion, that the appearance, answer, and claim should be stricken from the files, for the reasons that the respondent was 'a resident of the city of Richmond, within the Confederate lines, and a rebel.' An order was made according to the motion. Subsequently a decree pro confesso was taken. The property was condemned as forfeited, and ordered to be sold. The Circuit Court upon error affirmed the decree, and the case is now before us for review.

It is objected that McVeigh was incompetent to sue out this writ of error. His alleged criminality lies at the foundation of the proceeding. It was averred in the libel that he was the owner of the property described, and that he was guilty of the offences charged, which rendered it liable to forfeiture. The questions of his guilt and ownership were therefore fundamental in the case. The notice by publication was given to bring him constructively before the court. It was in the nature of the substituted service of process. If he failed to appear, his absence and silence could not affect the validity of the proceedings. After the decree, pro confesso, he occupied the same relation to the record as a defendant against whom a judgment by default has been taken. The case is wholly unlike a proceeding purely in rem, where no claimant is named, and none appears until after the final decree or judgment is entered, and the case has terminated. We entertain no doubt that the plaintiff in error had the right to sue out the writ, and that the record is properly before us for examination.

In our judgment the District Court committed a serious error in ordering the claim and answer of the respondent to be stricken from the files. As we are unanimous in this conclusion, our opinion will be confined to that subject. The order in effect denied the respondent a hearing. It is alleged that he was in the position of an alien enemy, and hence could have no locus standi in that forum. If assailed there, he could defend there. The liability and the right are inseparable. A different result would be a blot upon our jurisprudence and civilization. We cannot hesitate or doubt on the subject. It would be contrary to the first principles of the social compact and of the right administration of justice.

Whether the legal status of the plaintiff in error was, or was not, that of an alien enemy, is a point not necessary to be considered; because, apart from the views we have expressed, conceding the fact to be so, the consequences assumed would by no means follow. Whatever may be the extent of the disability of an allen enemy to sue in the courts of the hostile country, it is clear that he is liable to be sued, and this carries with it the right to use all the means and appliances of defence. In Bacon's Abridgment, it is said: 'For as an alien may be sued at law, and may have process to compel the appearance of his witnesses, so he may have the benefit of a discovery.' The judgment of the District Court is REVERSED, and the cause will be remanded to the Circuit Court with directions to proceed in it

IN CONFORMITY TO LAW.


text: Talk:McVeigh v. United States (78 U.S. 259)/Opinion of the Court


text: Miller v. United States (78 U.S. 268)

title: Miller v. United States (78 U.S. 268)


text: Talk:Miller v. United States (78 U.S. 268)