text:
Tobey v. Leonards

THIS was a suit relating to certain transactions of a man of advanced years, and of somewhat marked characteristics and temper, named Jonathan Tobey, a farmer and old resident, as his father, whose name he bore, had been before him, of the neighborhood of New Bedford, in Massachusetts.

Mr. Tobey, it seemed, had, through a long life, been an active person in county affairs of the region round New Bedford; a road contractor for the county, &c. &c. As one consequence, either of this fact, or of a temper naturally inclined to controversies, he was not unfrequently in suits; and among other suits had a bitter one-prolonged through twenty-five years-with his county. 'It occasioned considerable feeling. There was a good deal of discussion about it. Tobey issued one or more pamphlets for distribution. He had some very warm personal supporters, and there were some who were opposed to him. He was a noted man.' The present controversy, although it had nothing to do with county concerns, seemed to have excited more interest in the neighborhood of its origin than, as a private controversy, properly belonged to it. One cause for this was, perhaps, that it had the element of a family quarrel. Tobey, Senior, or, as he is otherwise above styled, Jonathan Tobey, in order to be himself a witness in the cause, had sold all his interest in the subject of suit, once his own, to a son named Stephen Tobey, who was now suing his own brother-in-law, one Horatio Leonard, and a certain Nehemiah Leonard, father of this brother-in-law Horatio. Numerous members of the family of Tobey, William Tobey, Leonard Tobey, Joshua Tobey,-came to the support of their brother or kinsman; Mrs. Hannah Tobey, at the age of seventy, coming with them; while minors from the house of Leonard Master Horatio Herbert Leonard, Master Stephen Henry Leonard, and Miss Laura Anna Leonard-the last at the age of eleven-testifying to what had been said in 'the nursery'-were produced in support of theirs. Twenty witnesses were called to impeach Tobey, Senior's, character, including, as the counsel for the defendants noted in their brief, 'mayors, members of the legislature, councillors, justices of the peace and of the quorum, county commissioners, deputy sheriffs, city marshals, aldermen, assessors, city treasurers and collectors, trustees of the lunatic State hospitals, keepers of the jails, and overseers of the house of correction;' while these were met, by twenty, and seven added, not less worthy of belief, as Tobey's counsel seemed to signify, in the fact, that their judgment and integrity had evidence quite as good as the preamble of a patent, and that their posts of honor had been the private station. These all testified that Tobey, Senior, was entirely worthy of belief; and some descriptions which he gave of the boundaries of his generally described 'homestead' hereinafter mentioned, and which descriptions of his it was attempted to attack, seemed to have been more accurately conceived by him and told, than they were either conceived of or told by others who denied them.

The suit, therefore, was somewhat special in its circumstances; and in its questions of fact-the form into which it was resolved by this court-presented conflict in the evidence.

The outline case on which the proceeding, one in equity, rested-as derived from the record, and from the statement of the learned Justice (Wayne), who presented the whole with great detail and clearness before giving the judgment of the court-was essentially as follows:

In 1830, Tobey, Senior, owned certain real estate situated in New Bedford and Fairhaven; part patrimonial, part acquired by purchase. For the two preceding years he had been engaged in building a county road, and had been obliged to obtain loans for that purpose; and, among others, one of $5000 of Mr. William Rotch, Junior, a gentleman of fortune, who had wanted him to make the county road by a special route, and who seems to have been kindly disposed to him. Finding, in 1830, that he could not obtain payment of the county of what he claimed, except by a long litigation, he made, without request, a mortgage to Mr. Rotch to secure this indebtedness. The mortgage conveys 'my homestead farm, situate in the said New Bedford, being the same which I hold by virtue of the last will and testament of my father, Jonathan Tobey.' After the making of this mortgage, he bought, in 1837, a wood-lot of one Sweet; and, in 1839, obtained title to another tract of land from the commonwealth. In 1846 he conveyed all his real estate in New Bedford and Fairhaven to one of his sons named Stephen, and another son, Leonard, in mortgage, to secure a debt which had been due for a long time to this son-as it seemed, a dutiful one; Leonard, in 1848, assigning all his interest in the mortgage to his brother Stephen. In 1849, Mr. Rotch made peaceable entry upon the premises mortgaged to him, for the purpose of foreclosing his mortgage. From 1830 down to the filing of this bill, old Mr. Tobey remained in possession of all the property referred to in both mortgages, and used and occupied them as his own. He never paid any interest or any part of the principal of the Rotch mortgage, and never paid any rent for the premises; and, during the lifetime of Mr. Rotch, was never called upon so to do. In 1858, the administrators of Mr. Rotch, then lately deceased, brought an action of ejectment against him to remove him from the mortgaged premises. When this action was about to ripen into a judgment, efforts were made by Tobey, the father, and his son, Stephen, to raise money to buy the mortgage; it being known by them that it could be bought for considerably less than the amount of it. Among others, Tobey, Senior, applied to his son-in-law Horatio Leonard, to obtain, through him, assistance of his father, Nehemiah Leonard. The Leonards ascertained that the mortgage could be bought for $2500, and that they then could have a year to pay it in. They then informed old Mr. Tobey, as was alleged by them, the Tobeys, that if they, the Tobeys (father and son Stephen), could provide for the payment of this amount before it would fall due, and would give as security all Tobey, Senior's, real estate, and would transfer Stephen's interest under his mortgage, they would help them by purchasing the Rotch mortgage. The Leonards, it was certain, did purchase for themselves, or for somebody else, the mortgage of Mr. Rotch.

At the time of the negotiation it was proposed, according to the statement of the Tobeys, that Tobey, Senior, and his son Stephen, should cut $1000 of wood off the place towards the debt. Tobey, Senior, was at this time sick, and Horatio Leonard got the deeds from the Tobeys to him drawn up. It had been agreed, as was said by the Tobeys, that a writing should be also drawn up, stating the terms upon which the property should be reconveyed. No such writing was ever made. Leonard, according to the account given by the Tobeys, insisted on having absolute deeds and quit-claims, with a release of dower by the wife of Jonathan Tobey, an aged woman, of Tobey's other property, as well as of the homestead, in order, as he said, that the title might be clear on its face, and that he might borrow money, if he wanted to do so; and such deeds were made. After the deeds passed, on the same day, Horatio Leonard applied to his father-in-law, old Mr. Tobey, for a bill of sale of all the stock and farming utensils on the farm, which was given him.

After this, Stephen Tobey began to cut wood, and cut about one hundred cords. Horatio Leonard also sold to one Hawes standing wood to the amount of $840. In June, Horatio Leonard became embarrassed in business; and his father, Nehemiah, undertook to aid him. To secure himself in so doing, he took the Tobey estate from his son and sold it. Old Tobey and his son Stephen then made application for a reconveyance to them of this property, in accordance with what they called or deemed their right, offering to pay; as they said that it had been agreed they should have a right to do.

Upon this application, Leonard, the father, refused to convey to the Tobeys, except on payment of $5000; and, upon their refusal to take the land upon these terms, he sold it to the defendants, R. & J. Ashley, for that sum; they agreeing to convey to one Spooner a portion of the estate.

Stephen Tobey, who, by his father's transfer to him, was sole party in interest, now filed his bill in the Circuit Court of the United States for the Massachusetts District, against all these parties; that is to say, against Leonard, father and son, Ashley, Spooner, for a reconveyance, as above said; for compensation in waste and damage in cutting and removing the wood and grass,-the complainant offering to perform what he called his part of the agreement, by paying such sums of money and doing such other acts as the court should deem equitable and just.

The Leonards, father and son, filed separate answers responsive to the bill, and denying positively and specifically its allegations. But the testimony of seven unimpeached witnesses, Messrs. Jones Robinson, Edward Chase, George Barney, Sampson Reynolds, Alden Lawrence, Leonard Tobey, and William Tobey, tended to show, or did show, admissions by the Leonards that the transaction was a mortgage only, or in the nature of one.

On the other hand, the testimony of T. M. Stetson, Esq., a young professional gentleman of good character in New Bedford, who had been counsel of the elder Tobey and was more or less familiar with the case, and with the understanding of both Tobey and Leonard, as expressed to him at certain times and places, and under circumstances not, perhaps, the best to educe the fullest ideas of the parties, went to a different conclusion. It appeared, however, as a fact, that after Leonard, the son, had got a conveyance from the Tobeys, he wished his father-in-law, Tobey, Senior, to devise the property to him in his will; a draft of which he caused to be prepared to this effect without Mr. Tobey's knowledge.

The other defendants in the case, the Ashleys, Spooner, and Hawes, also filed answers, denying the allegations, but leaving it reasonably plain that they were not purchasers from the elder Leonard, without notice of the claim of Tobey.

Some defence was made, too, in supplemental answers setting up a conditional conveyance by Tobey, Senior, to one Clap, and some similar conveyance to the Wareham Bank.

The Massachusetts Statute of Frauds thus enacts: 'No trust concerning lands, except such as may arise or result by implication of law, shall be created or declared, unless by an instrument in writing, signed by the party creating or declaring the same, or by his attorney.'

The court below dismissed the bill, the presiding judge giving an opinion at length. On appeal, the case was ably argued here by Messrs. Sydney Bartlett and Thaxter, for the appellant, Tobey, and by Messrs. Olney and Thomas, contra; the argument turning, in part, on the point how far the case was affected by the Massachusetts Statute of Frauds; a matter thought by this court unnecessary to be considered by it.

Mr. Justice WAYNE, having stated the pleadings, delivered the opinion of the court:

title: Tobey v. Leonards


text: Talk:Tobey v. Leonards

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

title: Talk:Tobey v. Leonards


text:
Tobey v. Leonards/Opinion of the Court

This cause has been argued with ability, and we are brought to the consideration of it with every advantage, in any way applicable to the rights of the parties in a court of equity, by the written opinion of our brother who tried it, and gave the decree in the Circuit Court.

The allegation is that the purchase made by the Leonards of the Rotch heirs was in behalf and for the benefit of the Tobeys, and that the conveyances by the Tobeys were made as security for the payment by them of the notes for twenty-five hundred dollars, given to the Rotch heirs. This is the issue between the parties, and the question is which of them is sustained by the proofs.

'Denials in answer to a bill in equity to the extent of their relation to facts within the knowledge of the respondent, when they are responsive to the allegations of the bill of complaint, must be received as evidence. Courts of equity cannot decree against such denials in the answer of the respondent on the testimony of a single witness. On the contrary, the rule is universal, under such circumstances, that the complainant must have two witnesses, or one witness and corroborative circumstances, or he is not entitled to relief. The rule stands upon the reason, that when a complainant calls upon the respondent to answer allegations, he admits the answer to be evidence; and if it is testimony in the case, it is equal to the testimony of any other witnesses, and the complainant cannot prevail if the balance of proof is not in his favor; he must have circumstances in addition to his single witness in order to turn the balance.'

This, no doubt, is the general rule of chancery; but it is one which does not, in the present case, apply, for here seven unimpeached witnesses state that in business interviews either with Horatio or Nehemiah Leonard, in relation to their purchase of the homestead farm, or to matters in some way connected with it, the defendants, one or the other of them, said, in language which could not be mistaken, that the purchase of the Rotch mortgage had been made to assist Jonathan Tobey to pay the debt due upon it. We proceed to state this testimony, and the impressions made upon us by it.

Horatio Leonard said to the witness Jones Robinson, that he himself and his father had given a note for it payable in a year for $2500, and that the complainant and his father must get the wood off to meet it, and that he only wanted them to pay the note and to pay himself for his trouble; and added it was to be paid for from the wood, and if there was not enough, that he should sell some of the real estate.

Another witness, Edward Chase, swears that Horatio Leonard said to him, after relating the circumstances of the purchase of the Rotch mortgage, in connection with the impoverished condition of the Tobeys, that he had taken hold to help them.

George Barney, a third witness, says that he had a conversation with Horation Leonard; that he mentioned that he had purchased the farm formerly owned by Jonathan Tobey, &c., with an intention to sell back to the owner; that he had done so to prevent it from going into the hands of strangers, and to keep a home for the old people, and that he was to be repaid the money spent in purchasing the farm.

Sampson Reynolds, a fourth witness, swears, that Nehemiah Leonard said to him that his son had married Jonathan Tobey's daughter, and that he had a notion to take up the Rotch mortgage, cutting and selling wood enough to pay off the debt, and letting the old man have a home there as long as he lived.

Alden Lawrence, a fifth, testifies that Nehemiah Leonard said to him, that he had taken the property for the accommodation of the old gentleman, as he was liable to be turned out of house and home at any time; took it to preserve a home for the old folks; and the witness understood him to say 'that he calculated to take the wood, and would then turn the property back.'

Leonard Tobey, the brother of the complainant, and a sixth witness, deposes that he called upon Nehemiah Leonard, who, after expressing his regret that there should be a misunderstanding between his son Horatio and Jonathan Tobey, said, in substance, that he would use his influence to get Horatio to convey the mortgage to his father and brother, and that he was willing to give up the place if the money was refunded. He also said that Jonathan Tobey came to him as a last resort; that the arrangement was that Horatio should see that wood enough was cut to meet the notes at maturity.

William Tobey, the seventh witness, testifies that he was intimately acquainted with Horatio Leonard for seven years, including the year 1859, and that he called upon him at his place of business in Boston in reference to the matter, and said he had made a proposition to Stephen Tobey, that himself and Stephen should buy the claim of the Rotch heirs; Stephen to put in his claim; that they should be interested and improve the farm and occupy it together; and that, if Stephen should die without heirs, his interest should be willed to the children of Horatio. He added, that Stephen would not agree to it, and seemed to have a feeling that it was meant to take advantage of him. 'He expressed the wish that I would go to New Bedford and bring about the arrangement, saying that he would pay my expenses. He said his motives were pure, that he did not know it would be of any use to him, but thought it would be to his children; that it would be a good home for Stephen, and his father and mother, and that he wanted the farm to remain in the family.' In reply to one interrogatory, the witness answered, that, after speaking of other matters relating to the purchase of the farm, Nehemiah Leonard added, that he had at first refused to assist in raising the money to buy it; that he had finally agreed to it from the friendly feeling he had for the Tobeys, and his only object for complying with their wishes and his son's request was to benefit the family. He also said that Jonathan Tobey came to him as a last resort, and that the arrangement was that Horatio should see that wood enough was cut to meet the notes at maturity.

The testimony of the preceding seven witnesses must be considered, in connection with that of Jonathan Tobey, who had sold out all his interest in the property to his son, the complainant, to enable himself to be a witness upon the trial of the cause.

Our first remark is, that such a sale for such a purpose is allowable, and that its lawfulness has been sanctioned by this court even when the sale was to a party who had no previous interest. We say next that the attempt by the defendants to discredit Jonathan Tobey as a man of truth is a failure, in fact, from all that the witnesses, introduced for such purpose, had said or could say about him, and that all that they did say has been rebutted by the evidence of witnesses more numerous than the former and as respectable. Some of them had known Tobey for years in the social relations of his life and in his public business; all of them swore without any qualification that they believe him to be a correct man, and that they would believe him upon his oath. No point of his testimony in this case is contradicted by any witness, and all that he has said is in harmony with the motive which could only have induced him to place himself in a position to aid in the restoration of his son to his rights, to whom he owed a debt of six thousand dollars with long years of interest, against the contrivance of a son-in-law to whom he owed nothing; and who had succeeded in getting all of the estate of both for a very insufficient consideration, without the payment of a cent in fact. Tobey's statement of his agreement with the Leonards to give them a quit-claim for his entire estate, has not been disproved either directly or inferentially by circumstances or by any witness, and has only been denied by the defendants in their answers. He has neither qualified nor modified the facts to which he has sworn in his replies to the questions put to him in behalf of the complainant, or to such as were asked by the defendants. His answers as to the lands which he owned, besides those included in the Rotch mortgage, correspond with the subsequent surveys with as much exactness as the circumstances of his manner of acquiring them permitted. It is appropriate to say that his account is not contradicted in the answers of the defendants to the bill, excepting the effort made by them to enlarge the quantity of the real estate to be attached to the homestead farm, contrary to its boundaries, as it had been conveyed to Horatio Leonard by the Rotch heirs. Tobey's narrative of his connection with William Rotch, how he became indebted to him for his advances of money to construct a county road which Mr. Rotch wanted to be made, to give him a shorter and better route from his place to Boston, of Mr. Rotch's offers to advance him money as he might need it, if he would undertake the construction of the road, and after he had completed it of the litigation for the sum due to him under the contract, and of his losses in consequence, are all substantiated by documents which show plainly the causes of his pecuniary embarrassments, and of some of his peculiarities in litigation during a long life, and up to the time when, as Nehemiah Leonard has said, 'he came to me as a last resort to get his aid to purchase the Rotch mortgage.'

The testimony of such a witness as Jonathan Tobey is to be scrutinized, no doubt, carefully and with great caution, perhaps with suspicion, before it can be allowed to invalidate the denials of respondents of the allegations of a bill in equity. But we have thus faithfully scrutinized it in this instance, in connection with all the testimony introduced by the defendants, and without any impression having been made upon us that Jonathan Tobey had not told the truth in regard to this transaction.

The witness who is most relied upon by the defendants to prove that there had been no stipulation for a bond or written instrument between the parties for a reconveyance of the property to Jonathan Tobey, is T. M. Stetson, Esq., who had been the counsel of Tobey from February, 1858, to December, 1859.

Fairer or more proper testimony, indeed, than that of this gentleman could not have been given. It is marked by forbearance and caution; but, in our opinion, it does not disprove that there had been a private arrangement between the parties for a reconveyance of the property to the complainant and his father, when the notes given for the Rotch farm should have been provided for or were paid. Mr. Stetson says that he told Jonathan Tobey and the complainant that he could make no defence in the ejectment suit pending against the plaintiff's title and evidence, and that it had been delayed by his suggestion that it might be settled. That afterwards he met Horatio Leonard, whom he supposed to be a man of means, and told him he thought he could make it an object to buy the property from the agent of the Rotch heirs. He refused, on account of there having been so many conveyances about the property, and on account of the well-known character of Jonathan Tobey for litigation; but he said if he could have the whole property without any question or lawsuit, that he did not know but that he would take it; but that he must have the whole or none. The witness told this to Mr. Tobey. 'We talked over the position of the suit,' says Mr. Stetson, 'and Mr. Tobey said that he might as well discontinue his defence. This I told to Horatio Leonard. A few days after, Jonathan Tobey, Stephen Tobey and Horatio Leonard came into my office. Horatio said he had seen the agent for the Rotch heirs, and had learned their price. He said he was not going to get into a lawsuit, and would not buy unless he could get a clear and good title. He also asked me if I considered the Rotch title such a one. I said that I did, with the evidence which they had, but that of course it was better to get releases and quit-claims from every one who thought he had any interest in the property. I then stated that I thought the better way for Leonard to get the whole title was to have the Rotch suit perfected by a judgment and execution levied. Leonard then said that was what he wanted and must have. Jonathan Tobey seemed to wish Leonard to become the owner of the property, and executed his quit-claim for it. Stephen Tobey, after some conversation, executed his release, both being done before the witness.' The papers had been drawn by Mr. Stetson before the meeting at his office, and we understand him to say that he does not recollect by whom he was directed to draw them. We also understand him to say that he knew nothing of any private arrangement between the parties for a reconveyance of the property to the Tobeys before or after the quit-claim deeds were given in his office. In fact, Mr. Stetson confines himself to what occurred and was said there, without alluding to any conversation they may have had elsewhere, leaving the fact of an understanding for a reconveyance to the testimony in the case as that might be. In our view it is not at all likely that such an arrangement would have been mentioned to him by either party, before or when he was advising as counsel, or as the friend or agent of all of them, how a title to the property could be perfected. Such a device to defeat it as that one party was to have a right to a reconveyance of the property, upon paying the notes with interest, which had been given in payment for the Rotch mortgage, and that Horatio Leonard was to have a title in paper to the homestead farm, and all the real estate besides, with all the advantages of using both for his own benefit, with a secret condition to relinquish and reconvey to the Tobeys, would probably have beem met by Mr. Stetson with a suggestion that a condition of that kind, under all the circumstances and his position then, would not be consistent with the ethics of his profession, the law requiring as a fairer mode in such a case, that such a condition should be a part of the deed, or if it was to operate as a defeasance, that it must be 'made eodem modo, as the thing to be defeated was created.'

We conclude that the testimony and corroborating circumstances resulting from it, with other proofs in the record, overrule the denials by the defendants of the allegations.

One of these corroborative proofs is the fact, that after the Leonards had ascertained that the Rotch mortgage could be bought for twenty-five hundred dollars upon time, and had actually bargained with the Rotch heirs for the purchase of it, according to the described boundaries and contents of the homestead as set out in the suit to eject Jonathan Tobey, and ascertained that he was the owner of other real estate not a part of it, and that all of the real estate had been mortgaged to the complainant,-Horatio Leonard, under such circumstances, should have pretended and represented to Jonathan Tobey and his wife that a quit-claim for the property, with his wife's relinquishment of dower, was necessary to give him a clear title to enable him to borrow money upon it; and should then have stated to the Tobeys that he must have conveyances for all of the real estate, as a prerequisite, before he would buy the Rotch mortgage, being then the purchaser of it, with arrangements then going on for him to secure from the heirs of Rotch their title. We think that such a condition was a menace, made at a time when the Tobeys were helpless and deprived of all hope of getting relief; and that Horatio Leonard must have known its effect would be to coerce them to compliance with his terms. Under the circumstances, as they are detailed in the answer of Horatio Leonard, we view it as a contrivance to vest in himself the whole property, under the guise of buying the Rotch mortgage for the benefit of Jonathan Tobey. It is difficult, too, for us to credit the narrative of Horatio Leonard, that an old man, with an aged wife, pressed by embarrassment and distress, as he then was, should have been willing to divest himself of everything that he owned, without the reservation of something to live upon, and somewhere to live, and all this with the view of giving everything that he had in the world to a son-in-law, to keep the homestead in the latter's family, to the exclusion not only of himself and wife, but all his other children, and particularly so of his son, the complainant, to whom he owed at that time six thousand dollars, with long years of interest, and who had been for many years the stay and support of his father and mother. And this aspect of the case, as to the arrangement for a reconveyance of the property to the Tobeys, when Horatio Leonard demanded titles to the whole of the property, is much strengthened by the fact that Horatio Leonard, after having got a title to the homestead farm, and conveyances for everything that the Tobeys had, became so restless concerning the lawfulness of his right to the property, that he made a virtual acknowledgment of Jonathan Tobey's interest in it, by asking the old man to make a will in his favor, and actually employed counsel to draw it, and that without having previously mentioned his intention to Mr. Tobey. Mr. Stetson mentions the fact in his testimony, and the accidental cause of its having been defeated.

We have carefully examined and considered the whole testimony given by the defendants in the case, but it is without weight sufficient to counterpoise the conclusion to which we tend.

Nor is it inappropriate for us to say, concerning much of the testimony introduced by Horatio Leonard, that, when the father of a family introduces the juvenile members of it as witnesses in such a litigation as this has been, it cannot be done without its being considered as a forlorn effort of parental obliquity.

As a result, we concur in the opinion,-That it has been established by the proofs in this case, as the rules of evidence require the denials of the allegations in a bill of equity to be disproved, that the payment made by Nehemiah Leonard and Horatio Leonard, for the purchase of the homestead farm was intended by them to be an advance of money for the benefit of Jonathan Tobey: That the conveyances executed by Jonathan Tobey and his wife to Horatio Leonard, and the release given by the complainant to him, of all his interest in the real estate purporting to have been conveyed by them, were intended by the parties to them, and were so received by Horatio Leonard, as securities for the repayment of the notes with interest, for twenty-five hundred dollars paid by Nehemiah and Horatio Leonard to the heirs of Rotch for the homestead farm, and that the defendant, Horatio Leonard, agreed to reconvey the real estate property attached to it, and all the rest of the real estate conveyed to him, when payment should be made of the sum of money advanced by the Leonards for the benefit of Jonathan Tobey, and such reasonable compensation as might be claimed by them for their agency and aid in the transaction. We are also of opinion,-when the complainant tendered to Nehemiah Leonard the sum necessary to pay the notes with interest, which had been given to the Rotch heirs, at the same time asking for a reconveyance of the property,-that he was entitled to it, and that it should have been made, and that the subsequent sale of it, as it was made, was in fraud of the complainant's rights.

We have carefully considered the answers of R. and J. and R. Ashley, Spooner, and Hawes, to the allegations of the complainant's bill. Notwithstanding their denials of them, their narratives in each of their answers of their purchases of parcels of the real estate in controversy, connected with the testimony, establish the fact, that when they respectively made their purchases of the real estate from Nehemiah Leonard, or from the Ashleys, that each of them had such notice of the rights claimed to all of the real estate by the complainant, and of what had been the rights to it by Jonathan Tobey before he made a sale of it to the complainant, and that neither of them can be protected in a court of equity, as having been bon a fide purchasers without notice.

Our attention has also been given to the supplemental answers of the defendants to the bill of the complainant, relating to a conditional conveyance by Jonathan Tobey, of real estate in the County of Bristol, to secure Clapp from any liability he might incur by indorsing Tobey's paper, and Tobey's release of his interest and transfer of all his rights in a conveyance to the Wareham Bank. In our opinion, this interposes no obstacle to rendering a decree for the complainant.

From the opinion which we have above expressed of the character of the transaction between the Leonards and the Tobeys, it becomes unnecessary for us to discuss the point made by all of the defendants in the cause, that they were not liable to the complainant, as the statute of Massachusetts had declared that no action shall be brought upon any sale of lands, tenements, or hereditaments, or of any interest in or concerning them, unless the promise, contract, or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the judge charged therewith, or by some person by him lawfully authorized.

DECREE REVERSED, and the defendants ordered to reconvey to the complainant all the real and personal estate (Ashleys, Spooner, and Hawes, to join in the conveyance of the real), on repayment of the $2500, with interest, deducting $840, with interest, received by the defendant, Horatio, for wood standing on the land and sold. The cause remanded, with directions to proceed accordingly.

GRIER and CLIFFORD, JJ., dissented.

title: Tobey v. Leonards/Opinion of the Court


text: Talk:Tobey v. Leonards/Opinion of the Court


text:
Milwaukee & Minnesota Railroad Co. and Fleming v. Soutter (69 U.S. 440)

Decree in foreclosure, a final decree.

A decree in a foreclosure action, ascertaining the amount due, and directing payment within a year, and providing for an order of sale in default of payment, is a final decree.


text: Talk:Milwaukee & Minnesota Railroad Co. and Fleming v. Soutter (69 U.S. 440)


text:
Milwaukee & Minnesota Railroad Co. and Fleming v. Soutter (69 U.S. 440)/Opinion of the Court

A DECREE had been made some time since in this court, against the La Crosse and Milwaukie, and the Milwaukie and Minnesota Railroad Companies, the road being then in the hands of a receiver, on a bill in equity, filed in the Federal court of Wisconsin, to foreclose a mortgage given by the former company on its road, &c., to two persons, named Bronson and Soutter (of whom the former was now dead), to secure certain bonds which the former road had issued, on which the interest was unpaid.

'It is ordered that this cause be remanded, &c., with directions to enter a decree for all the interest due, and secured by the mortgage, with costs; that the courts ascertain the amount of moneys in the hands of the receiver or receivers, from the earnings of the road covered by the mortgage, which may be applicable to the discharge of the interest, and apply it to the same; and that if the money thus applied is not sufficient to discharge the interest due on the first day of March, 1864, then to ascertain the balance remaining due at that date. And in case such balance is not paid within one year from the date of the order of the court ascertaining it, then an order shall be entered, directing a sale of the mortgaged premises.'

The court below, acting under this mandate and intending to execute it, did ascertain the amount of interest due, and directed payment within a year, and provided for an order of sale in default of payment; but that court did not ascertain the amount of money in the hands of the receiver or receivers, or apply any such amount in reduction of interest, or find the balance due on the first of March, or at the date of the order. The amount of interest was ascertained, and an order of sale provided for in default of payment within one year; nothing more.

From this order of the court below the railroad company took an appeal here; which appeal a motion was made, on behalf of Soutter & Bronson, to dismiss.

Mr. Cary, with whom was Mr. Carlisle, in favor of the motion: The order appealed from is not a final decree, nor in the nature of such a decree. The ordinary decree of foreclosure and sale, although not strictly a final decree, has been treated, in the practice of this court, as so far final that an appeal might be taken therefrom. But this is not a decree of foreclosure and sale. It is nothing more in effect than an order settling the amount found due on the mortgage, and a statement or determination of the time when the court will proceed to enter a final decree of foreclosure and sale, provided said amount is not paid. It is not a decree authorizing a sale if that amount is not paid. The court refused to make such a decree. This order, by its terms, requires that another decree shall be made before we are to have execution. To say that such a decree is final is a contradiction in terms. We can have no execution or benefit of this decree until a further and final decree is made. No appeal, therefore, can lie to this court.

No doubt the railroad company can have relief if it has suffered injustice; but its remedy is by application for mandamus to vacate the order below.

Mr. Carpenter, contra: In Blossom v. The Railroad Company, it was decided that a mere bidder at a marshal's sale, made on a foreclosure of a mortgage, might by his bid, though no party to the suit originally, so far be made a party to the proceedings in that court as to be entitled to an appeal here; and that, whether or not, this court would not dismiss an appeal by such person on mere motion of the other side, in a case where merits were involved. So, in Orchard v. Hughes, this court refused to dismiss an appeal from an order confirming a sale under a decree of foreclosure, and directed that the case should be heard with the appeal from the principal decree in the suit which ordered the sale.

These cases, or the first of them, went further than what was declared in Perkins v. Fourniguet, which goes far enough for us. There a decree had been made in this court, affirming, 'with costs and damages at the rate of 6 per cent. per annum,' a decree, in the Circuit Court of Mississippi, for a sum of money; and a mandate was sent below reciting the judgment here, and directing it to be carried into effect. But an execution was issued for the principal sum, with interest at 8 per cent., the legal rate of Mississippi, and damages at 6 per cent., in addition, in all 14 per cent. An appeal was accordingly taken here. One question was, whether the execution had issued under a final 'decree,' and so one that could be appealed from. Taney, C. J., speaking for the court says, 'There was substantially an equity proceeding and final decree after the mandate was filed. It is true, they were summary; and necessarily so, as the matters in dispute under the execution were brought before the court on motion. . . . Plenary and formal proceedings are not necessary, and are never required where the dispute is confined to matters arising under process of execution. They are more conveniently and as fully brought before the court by a summary proceeding on motion.' The case we cite was in essential respects like this; but the court held it to be 'regularly' before it.

Then, is appeal the form of remedy which we should adopt? or ought we, as the other side urges, to rely on a motion for mandamus to vacate the order below? We think that appeal is a proper form, and perhaps the most proper. Here, too, Perkins v. Fourniquet is in point. The case there, like this one, was an appeal, and a motion was made to dismiss it, on the ground urged here by our opponents, that appeal was not the proper practice, and that mandamus alone was. But what decides the court? 'The subject might,' says the late Chief Justice, speaking for it, 'without doubt, be brought here upon motion, and a mandamus issued to compel the execution of the mandate; but an appeal from the decision of the court below is equally convenient and suitable, and perhaps more so in some cases, as it gives the adverse party notice that the question will be brought before this court, and affords him the opportunity of being prepared to meet it at an early day of the term.'

The CHIEF JUSTICE delivered the opinion of the court, announcing that the order in question was a decree, and was a final decree, from which any party aggrieved by supposed error in finding the amount of interest, or in omitting to ascertain and apply to the reduction or discharge of interest the amount of moneys in the hands of the receiver or receivers, might appeal.

The ruling of this court in Perkins v. Fourniquet, cited by the appellant's counsel, was a full and direct sanction to this conclusion.

MOTION DENIED.

For greater caution, Mr. Carpenter, before this motion was heard, had moved for a mandamus to vacate the already mentioned order of the Circuit Court. The appeal being allowed, that motion was of course refused; the Chief Justice, in announcing such refusal, saying that it was made without expressing any opinion as to the applicability of that remedy to the case before the court.

[For a further part of this case, and for the reasons and justification (under the special facts) of the court below, in executing the mandate as it did, see Railroad Company v. Soutter; infra, p. 510.]


text: Talk:Milwaukee & Minnesota Railroad Co. and Fleming v. Soutter (69 U.S. 440)/Opinion of the Court


text:
United States v. Billing

THE Board of Land Commissioners, established by act of Congress of March 3, 1851, to settle private land claims in California, confirmed, in 1851, to Billing and others, a tract of land granted in 1839 by the Mexican Government to one Felis.

The decree set forth the boundaries of the land essentially as follows:

'Commencing at the mouth of the creek Avichi, emptying into the Petaluma marsh, and running up said creek ten thousand varas, to a point called Palos Colorados; thence in a northerly direction five thousand varas, to a place marked by a pile of stones; thence in an easterly direction to a place called Olympali, five thousand varas; from thence with the estuary, around the Punta del Potrero, on the estuary, to the place of beginning; containing two square leagues, a little more or less.'The diagram below will illustrate the general position of things; enough to give an idea.

It was admitted that no difficulty existed in ascertaining the boundaries described in this decree.

A survey was made according to these boundaries; but, thus surveyed, the tract included nearly three leagues, and the United States excepted to the survey on that ground.

While the case was pending in the District Court on that exception, one of the deputies of the Surveyor-General of the United States,-not acting under immediate direction of his superior, acting, indeed, without his knowledge at the time, though the principal afterwards issued instructions in execution of what his deputy had done-made a survey which excluded one league on the western side of the Novato tract, including it within another called Nicasio, now patented by the United States; the patent of the Government, however, by its terms, being declared not to 'affect the interests of third persons.' The District Court confirmed the survey for the tract as it stood, including the Potrero, and excluding the league on the west. This made a tract of about two leagues. From this decree the claimants made no appeal. [The part of the land confirmed which was thus excluded from the Novato tract, and included in the Nicasio, lies in shade in the left of the diagram.] In both the Nicasio and the Novato tract the names of the same persons, either as owners or as attorneys, or as agents or assignees, appeared to have been in some way connected.

In accordance with the Mexican custom, what is called juridical possession-a species of livery of seizin -was delivered to Felis in 1842 by the Mexican alcalde, of the tract in question, either with the Potrero included or without the Potrero; but whether it was with, or whether it was without, was not clear. The alcalde, in this record, declares:

'Being in the fields, in the creek of Avichi, a boundary of Novato, November 13, 1842, I, the magistrate, with two assisting witnesses, coterminous resident neighbors, proceeded to see and reconnoitre the lands of said rancho; and for the better understanding, being on horseback, ['procedi a ver y reconoces las tierras de d'ho rancho, y para mayor claridad puesto  a caballo,'] in company with all the parties and witnesses before mentioned, I ordered the aforesaid witnesses to point out the places, limits, and boundaries of the land as they described them in their depositions. They did so; and I, the magistrate, and those of my assistance, saw and examined them and the documents presented, and in testimony I made official note of it, &c.'

This officer then goes on to give some account of the measurement, which, he says, was made with a rope of hemp with measures stamped on it; and he concludes that by this rope, well twisted and stretched, it resulted that the rancho has five thousand 'varas' in length and ten thousand in breadth. After which conclusion the owner having 'been made to know the lands which belong to him, for a sign of true possession and customary form, pulled up grass and stones, and threw to the four winds of heaven, in manifestation of the legal and legitimate possession which he for himself took.'This Mexican record, the judge below, (Hoffman, J.,) after careful examination, thought so inaccurate and incomplete, that he considered himself free entirely to discard it, as hopelessly confused and unitelligible; and his IIonor confirmed to Billing and the others the tract as marked out by the second survey; that is to say, the tract with the western league excluded and the Potrero included. The correctness of his action was the point on appeal here.

Mr. Wills, for the United States, contended, that the owners of both tracts were in fact the same persons; that if the deputy surveyor had not made his survey excluding the league on the west, the league put into the Nicasio tract,-the Potrero would have been excluded, and the claimants have thus lost the most valuable part of the whole tract; that to get this Potrero they had procured this survey by the deputy surveyor to be made, and had got the one league on the west included in the Nicasio tract (their tract, also, as was argued), in order to get the Potrero included in the Novato. The whole thing, it was urged, was a plan to get three leagues, the Potrero being included, where, otherwise, they would have got but two, with the Potrero excluded. It was argued, upon the evidence, not here reported, that the record of juridical possession did show that the Potrero was excluded, and that the tract of which possession was delivered was the Novato without that and with the part which the deputy had put into the Nicasio. In Malarin v. United States, this court relied largely on this ancient proceeding of the Mexican law,-the identical form almost of the common law of England; and though no doubt, as was rightly decided in United States v. Halleck, it will, as a general thing, follow boundaries distinctly given in a decree, it will not do so where it is plain that by the act of juridical possession the party was confined to less space; which space conforms exactly with the amount called for by the very grant confirmed.

Mr. Goold, contra: Mr. Justice GRIER delivered the opinion of the court:

title: United States v. Billing


text: Talk:United States v. Billing

title: Talk:United States v. Billing


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

In the case of United States v. Halleck, it is said that 'the decree is a finality, not only as to the question of title, but as to the boundaries which it specifies.' If erroneous in either particular, the remedy was by appeal; but the appeal having been withdrawn by the Government, the question of its correctness is forever closed. In The Fossat Case, the same doctrine was fully established.

The final decree in this case sets forth the specific boundaries of the land granted, and it is admitted that the surveyor found no difficulty in finding the monuments and boundaries described in this decree. But as these boundaries included about three leagues, the surveyor-general, assuming that the grant was confined to two leagues, excluded a league of land within these boundaries on the western side, and included it in the survey of the Nicasio rancho, which adjoins.

As the owners of the Novato tract now in question did not appeal from that survey, and are content to take this survey of two leagues, we are not bound now to decide whether, according to the decree, they were not entitled to have all the land included within the boundaries mentioned in the decree, and whether the words 'containing two leagues, a little more or less,' should be construed merely as a conjectural estimate of the quantity contained within the boundaries described. But one thing is certain, that if the United States have taken a league on the western side of the Novato, and given it to the Nicasio rancho, it is with an ill grace that they who use their name now seek to take another league on the east.

The Punto del Potrero, a peninsula almost entirely surrounded by a salt marsh, is as clearly within the decree as language can make it. The decree being itself clear and precise, does not refer to the rough daubs called dise nos, or to the record of juridical possession for the purpose of rendering uncertain that which the decree made certain. The formula of this delivery of possession, or livery of seizin, did not require a survey of the estate. Perhaps the province of California at that time could not furnish a man capable of making an accurate survey. In the present case, the alcalde proceeded to see and reconnoitre the monuments claimed as corners in company of the witnesses, being himself on horseback for the better understanding; and after divers measurements made with a rope, he 'concluded that it results that the rancho had five thousand varas in length and ten thousand in breadth.' That would constitute a rectangular figure, whose contents would be easy of calculation, and avoid the difficulty of calculating the area of an irregular one, made by lines running from one monument or corner to another. The court below were fully justified in 'entirely discarding' this document from consideration, whether it was hopelessly confused and unintelligible or not. We need not, therefore, further examine the argument of the learned counsel of the appellants whether the opinion of that court was correct or not on the construction of that document.

Another objection was made, though not much urged, that the survey in question was void, because not made by the surveyor-general in person, and because he had no lawful authority to approve a survey made by a deputy. This objection requires no further remark than merely to observe that the permission given by the act of 1860 to private intervenors to prosecute appeals to this court, in the name of the United States, may be much abused in cases where the Mexican grantee is compelled to defend himself even a second time in this court, and to answer frivolous objections to his title or his survey at the suggestion of any litigious intruder or secret intervenor. The party wronged by the appeal receives no costs from the Government; while the Government itself is made to pay the expenses of the oppressive and unjust litigation in which it has been made the actor by this class of persons.

DECREE AFFIRMED.


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


text:
Steamship Company v. Joliffe

THIS was a suit involving the subject of the passage by a State and by the United States of laws regulating port pilots, and raised the question whether the United States had, by enactment, in A. D. 1852, regulated pilotage generally. The case, a decision of which, it was understood, would settle several cases like it, was thus:

In 1787, when the Constitution of the United States was adopted, the different States had each laws of their own for the regulation of pilots and pilotage. By the Constitution, power was given to Congress 'to regulate commerce with foreign nations and among the several States.' In 1789, Congress passed a law enacting, that 'all pilots in the bays, inlets, rivers, harbors, and ports of the United States, shall continue to be regulated in conformity with the existing laws of the States, respectively, wherein such pilots may be, or with such laws as the States may respectively hereafter enact for the purpose, until further legislative provision shall be made by Congress.' With the single exception of a law of 1837, by which it is made 'lawful for the master or any commander of a vessel, coming in or going out of any port, situate upon the waters which are the boundary between two States, to employ any pilot licensed by the laws of either of the States,' no other legislation on the subject was had until the 30th of August, 1852. An act was then passed, entitled 'An act to amend an act, entitled An act to provide for the better security of the lives of passengers on board of vessels, propelled in whole or in part by steam, and for other purposes.' It consists of forty-four sections. Its first declares, that no license shall issue until the provisions of the act are complied with; 'and if any such vessel shall be navigated, with passengers on board, without complying with the terms of the act, the owner and vessel shall be subjected to penalties set forth.'

Succeeding sections relate to precautions as to fire,-pumps, hose, life-boats and life-preservers, buckets, floats, axes, safety-valves, plugs, &c.; the means of escape from the lower deck, the carrying of gunpowder, camphene, turpentine, and other dangerous articles, and the stowage thereof when carried; and then the act (§ 9) provides, 'that instead of the existing provisions of law for the inspection of steamers and their equipment, and instead of the present system of pilotage of such vessels, and the present mode of employing engineers on board the same,' certain regulations shall be observed, to wit, the collectors, supervising inspector, and district judge of the several designated judicial districts, within which are important commercial ports, are to appoint inspectors, who are empowered and required to perform various duties, specified in the subdivisions following: the first six of which provide for the examination and testing the hull and the boilers and machinery; the certificate of approval, the license to carry gunpowder, &c., and the keeping of a record of their certificates and licenses; and the seventh subdivision provides, that the inspectors shall license and classify all engineers and pilots of steamers carrying passengers. San Francisco is included among the ports where inspectors are to be.

The ninth enacts, that 'when any person claiming to be a skilful pilot for any such vessel, shall offer himself for a license, the said board shall make diligent inquiry as to his character and merits, and if satisfied that he possesses the requisite skill, and is trustworthy and faithful, they shall give him a certificate to that effect, licensing him for one year, to be a pilot of any such vessel within the limit prescribed in the certificate.' Subdivision ten enacts, that it shall be unlawful for any person to employ, or any person to serve, as engineer or pilot on any such vessel, who is not licensed by the inspectors. It nevertheless, provides 'that if a vessel leaves her port with a complement of engineers and pilots, and on her voyage is deprived of their services, &c., the deficiency may be supplied without penalty.' Section twenty speaks of the 'master, engineer, pilot, or owner.'

Section thirty-eight provides, that all engineers and pilots of any such vessel shall, before entering upon their duties, make solemn oath that they will faithfully perform all the duties required of them by the act.

The act is full. Reports of pilots' names from port to port, except as to San Francisco, and signals are provided for. Parts of laws inconsistent with the act are repealed.

With this statute of the United States in force, the State of California, in 1861, passed 'An act to establish pilots and pilot regulations for the port of San Francisco.' This statute created a Board of Pilot Commissioners, and authorized the board to license such number of pilots for the port as it might deem necessary, and prescribed their qualifications, duties, and compensation. It made it a misdemeanor, punishable by fine or imprisonment, for any person not having a license from the board, to pilot any vessel in or out of the port, by the way (called the Heads) which leads to and from the ocean. It enacted that 'all vessels, their tackle, apparel, and furniture, and the masters and the owners thereof, shall be jointly and severally liable for pilotage fees, to be recovered in any court of competent jurisdiction.' And it declared, that when a vessel was spoken by a pilot, and his services declined, he should be entitled to one-half pilotage fees, except when the vessel was in tow of a steam-tug outward bound, in which case no charge should be made, unless a pilot should be actually employed.

In this condition of statutes, national and State, one Joliffe, a pilot commissioned under the statute of California, spoke the steamship Golden Gate, an American registered steamer, (owned by the Pacific Mail Steamship Company), and exclusively employed in navigating the ocean, and carrying passengers and treasure between San Francisco and Panama, then being in the port of San Francisco and about to proceed to sea, and offered his services (he being the first pilot that did so) to pilot her out. The vessel had upon her no pilot licensed under the act of Congress. The master declined to receive his services, and the pilot brought a suit in the Justices' Court of California, against the Steamship Company, for half-pilotage.

The claim was opposed on two grounds:

1. That the statute of California was in conflict with the already mentioned act of Congress of 30th of August, 1852.

2. That it was therefore, and for other reasons, repugnant to the provisions of the Federal Constitution, giving to Congress the power to regulate commerce.

The court below thought otherwise, and accordingly gave judgment for $52 against the Company; a judgment subsequently affirmed in the County Court of the City and County of San Francisco, 'the highest court' of law in which a judgment or review could be had in the case in the State of California. The correctness of this judgment was the point brought up in error from below.

A new point, however, arose in this court. The case had been called at the last term; when it being suggested that the constitutionality of the statute of the State of California would be involved in the consideration, a decision was suspended until the State of California could be represented. The Attorney-General of the State now accordingly appeared and filed a brief. After the action of the court, as just stated, the legislature of California passed a new statute on the subject of pilots and pilot regulations for the port of San Francisco, re-enacting, in substance, the provisions of the original act, but at the same time, in terms, repealing that act.

The new act was more extensive, however, in its operation than the old one; for it embraced within its provisions the ports of Mare Island and Benicia, as well as the port of San Francisco. It created a Board of Pilot Examiners for the three ports, in place of the Board of Commissioners for the port of San Francisco, and it prohibited the issue of licenses to any one disloyal to the Government of the United States. The new point now accordingly made in this court,-one by the Attorney-General of California, was, that by reason of the repeal, the present action could not be maintained; his position being, that as the claim to half-pilotage fees was given by the statute, the right to recover it fell with its repeal; that this court accordingly would be obliged, on that ground, to dismiss the writ of error.

The case was well argued; seven judges sitting. Mr. McCullough, Attorney-General of California, supporting his preliminary point, that the writ of error would have to be dismissed, owing to the repeal (to which point Mr. G. Yale replied); and Mr. D. B. Eaton, for the plaintiff in error, arguing, with research and ability, for reversal on merits; that is to say, from the conflict of the California statute with the act of Congress of 30th of August, 1852, and its consequent unconstitutionality.

Messrs. Cope, Yale, and Carlisle, for the defendant in error; McCullough representing the State of California.

Mr. Justice FIELD delivered the opinion of the court.

title: Steamship Company v. Joliffe


text: Talk:Steamship Company v. Joliffe

title: Talk:Steamship Company v. Joliffe


text:
Steamship Company v. Joliffe/Opinion of the Court

This case arises upon the act of the State of California, of the 20th of May, 1861, entitled 'An act to establish pilots and pilot regulations for the port of San Francisco.' The act provides for the creation of a Board of Pilot Commissioners, and authorizes the board to license such number of pilots for the port as it may deem necessary, and prescribes their qualifications, duties, and compensation. It makes it a misdemeanor, punishable by fine or imprisonment, for any person not having a license from the board, to pilot any ship or vessel in or out of the port by way of the 'Heads,' that is by the way which leads directly to and from the ocean. It enacts that 'all vessels, their tackle, apparel, and furniture, and the masters and the owners thereof, shall be jointly and severally liable for pilotage fees, to be recovered in any court of competent jurisdiction.' And it declares, that when a vessel is spoken by a pilot and his services are declined, he shall be entitled to one-half pilotage fees, except when the vessel is in tow of a steam-tug outward bound, in which case no charge shall be made, unless a pilot be actually employed.

On the 1st of November, 1861, the plaintiff in the court below, the defendant in error in this court, was a pilot for the port of San Francisco, having been regularly appointed and licensed by the board created under the act of the State. At that time the steamship Golden Gate was lying in the port, and about to proceed to Panama, carrying passengers and treasure. This vessel was then, and ever since 1852, had been an American ocean steamer, registered at the custom-house, in the port of New York, and exclusively employed in navigating the ocean, and carrying passengers and treasure between San Francisco and Panama, and was owned by the Pacific Mail Steamship Company, a corporation created under the laws of the State of New York. To the master of this steamship the plaintiff offered his services to pilot the vessel to sea; but his services were refused, and to recover the half-pilotage fees allowed in such cases by the act of 1861, the present action was brought.

At the last term of this court, it was suggested that the constitutionality of the act in question was involved in the decision of the case; and the court thereupon reserved its consideration until the State of California could be represented. The Attorney-General of the State has accordingly appeared and filed a brief in the case. Since the action of the court in this respect, the legislature of California has passed a new statute on the subject of pilots and pilot regulations for the port of San Francisco, re-enacting substantially the provisions of the original act, but at the same time in terms repealing that act. And the first point made by the Attorney-General is, that, by reason of the repeal, the present action cannot be maintained. His position is, that as the claim to half-pilotage fees was given by the statute, the right to recover the same fell with the repeal of the statute; and that this court must dismiss the writ of error on that ground.

The claim to half-pilotage fees, it is true, was given by the statute, but only in consideration of services tendered. The object of the regulations established by the statute, was to create a body of hardy and skilful seamen, thoroughly acquainted with the harbor, to pilot vessels seeking to enter or depart from the port, and thus give security to life and property exposed to the dangers of a difficult navigation. This object would be in a great degree defeated if the selection of a pilot were left to the option of the master of the vessel, or the exertions of a pilot to reach the vessel in order to tender his services were without any remuneration. The experience of all commercial states has shown the necessity, in order to create and maintain an efficient class of pilots, of providing compensation, not only when the services tendered are accepted by the master of the vessel, but also when they are declined. If the services are accepted, a contract is created between the master or owner of the vessel and the pilot, the terms of which, it is true, are fixed by the statute; but the transaction is not less a contract on that account. If the services tendered are declined, the half fees allowed are by way of compensation for the exertions and labor made by the pilot, and the expenses and risks incurred by him in placing himself in a position to render the services, which, in the majority of cases, would be required. The transaction, in this latter case, between the pilot and the master or owners, cannot be strictly termed a contract, but it is a transaction to which the law attaches similar consequences; it is a quasi contract. The absence of assent on the part of the master or owner of the vessel does not change the case. In that large class of transactions designated in the law as implied contracts, the assent or convention which is an essential ingredient of an actual contract is often wanting. Thus, if a party obtain the money of another by mistake, it is his duty to refund it, not from any agreement on his part, but from the general obligation to do justice which rests upon all persons. In such case the party makes no promise on the subject; but the law, 'consulting the interests of morality,' implies one; and the liability thus arising is said to be a liability upon an implied contract. The claim for half-pilotage fees stands upon substantially similar grounds.

'There are many cases,' says Mr. Justice Curtis, speaking for this court, 'in which an offer to perform, accompanied by present ability to perform, is deemed by law equivalent to performance. The laws of commercial states and countries have made an offer of pilotage services one of those cases.'

The claim of the plaintiff below for half-pilotage fees, resting upon a transaction regarded by the law as a quasi contract, there is no just ground for the position that it fell with the repeal of the statute under which the transaction was had. When a right has arisen upon a contract, or a transaction in the nature of a contract authorized by statute, and has been so far perfected that nothing remains to be done by the party asserting it, the repeal of the statute does not affect it, or an action for its enforcement. It has become a vested right which stands independent of the statute. And such is the position of the claim of the plaintiff below in the present action: the pilotage services had been tendered by him; his claim to the compensation prescribed by the statute was then perfect, and the liability of the master or owner of the vessel had become fixed.

And it is clear that the legislature did not intend by the repealing clause in the act of 1864, to impair the right to fees, which had arisen under the original act of 1861. The new act re-enacts substantially all the provisions of the original act, relating to pilots and pilot regulations for the habor of San Francisco. It subjects the pilots to similar examinations; it requires like qualifications; it prescribes nearly the same fees for similar services; and it allows half-pilotage fees under the same circumstances as provided in the original act. It appears to have been passed for the purpose of embracing within its provisions the ports of Mare Island and Benicia, as well as the port of San Francisco; of creating a Board of Pilot Examiners for the three ports, in place of the Board of Pilot Commissioners for the port of San Francisco alone, and of prohibiting the issue of licenses to any persons who were disloyal to the Government of the United States. The new act took effect simultaneously with the repeal of the first act; its provisions may, therefore, more properly be said to be substituted in the place of, and to continue in force with modifications, the provisions of the original act, rather than to have abrogated and annulled them. The observations of Mr. Chief Justice Shaw, in Wright v. Oakley, upon the construction of the Revised Statutes of Massachusetts, which in terms repealed the previous legislation of the State, may with propriety be applied to the case at bar.

'In construing the revised statutes and the connected acts of amendment and repeal, it is necessary to observe great caution to avoid giving an effect to these acts which was never contemplated by the legislature. In terms, the whole body of the statute law was repealed; but these repeals went into operation simultaneously with the revised statutes, which were substituted for them, and were intended to replace them, with such modifications as were intended to be made by that revision. There was no moment in which the repealing act stood in force without being replaced by the corresponding provisions of the revised statutes. In practical operation and effect, therefore, they are rather to be considered as a continuance and modification of old laws than as an abrogation of those old and the reenactment of new ones.'

On the trial in the court below two grounds were urged in defence of the action: 1st, the unconstitutionality of the act of the State of May 20, 1861; and, 2d, the repugnancy of its provisions to the act of Congress of August 30, 1852. Similar grounds were urged in this court for the reversal of the judgment.

The unconstitutionality of the act was asserted from its alleged conflict with the 3d clause of the 8th section of the 1st article, which declares that 'the Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.' The power conferred by this clause is without limitation; it extends to all the subjects of commerce, and to all persons engaged in it; it embraces traffic, navigation, and intercourse, and necessarily, therefore, the whole subject of pilots and pilotage. But the clause does not, in terms, exclude the exercise of any authority by the States to regulate pilots. On the contrary, the authority of the States to regulate the whole subject, in the absence of legislation on the part of Congress, has been recognized from the earliest period of the Government. On the formation of the Union there were laws in force in the different States bordering on the sea for the regulation of pilots and pilotage; and at its first session, in 1789, Congress passed an act adopting the existing regulations and such as might be provided by subsequent legislation of the States. The act reads as follows: 'All pilots in the bays, inlets, rivers, harbors, and ports of the United States, shall continue to be regulated in conformity with the existing laws of the States respectively wherein such pilots may be, or with such laws as the States may respectively hereafter enact for the purpose, until further legislative provision shall be made by Congress.' In 1837, another act was passed making it 'lawful for the master or commander of any vessel coming in or going out of any port, situate upon the waters which are the boundary between two States, to employ any pilot duly licensed or authorized by the laws of either of the States.' No other legislation has been had by Congress impairing the right of the States to adopt such system for the regulation of port pilots as they might deem best, unless it be found in the act of August 30, 1852.

It is insisted by the plaintiff in error that this act of 1852 is in conflict with the provisions of the act of the State of May, 1861; that in fact it has superseded all State legislation concerning port pilotage, so far as steamers carrying passengers are concerned, and to that extent has modified or repealed the act of 1789.

From a careful examination of the act of 1852 we have arrived at a different conclusion. We do not perceive in its provisions any intention to supersede the State legislation recognized by the act of 1789, or any inconsistency with the local port regulations established by the act of California of 1861. The act of 1852 was intended, as its title indicates, to provide greater security than then existed for the lives of passengers on board of vessels propelled in whole or part by steam. Previous to its passage frequent accidents, occasioning in some instances great loss of life, occurred to steamers, arising from the imperfect construction of the vessel, defective machinery, inadequate protection against fires, the carrying of dangerous articles, or the want of pumps, life-boats, and other means of escape in case of danger. To guard against accidents from these and like sources was the general purpose of the act of 1852. It therefore contains provisions relating to fires, pumps, boats, life-preservers, buckets, the means of escape from the lower to the upper deck, the carrying of gunpowder, camphene, and other dangerous articles, and their stowage. It also provides for the appointment of two inspectors, one of whom is to possess a practical knowledge of shipbuilding and the uses of steam in navigation, and the other is to possess knowledge of and experience in the duties of an engineer of steam-vessels, and of the construction and use of boilers and machinery and appurtenances connected with them, and the two are required to make an examination of the hulls of the vessels, to inspect and test the boilers and machinery, and to require licenses to be obtained before dangerous articles can be taken aboard.

The act contains few provisions relating to pilots; indeed, it was not directed to the remedy of any evils of the local pilot system. There were no complaints against the port pilots; on the contrary, they were the subjects of just praise for their skill, energy, and efficiency. The clauses respecting pilots in the act relate, in our judgment, to pilots having charge of steamers on the voyage, and not to port pilots; and the provision that no person shall be employed or serve as a pilot who is not licensed by the inspectors has reference to employment and service on the voyage generally, and not to employment and service in connection with ports and harbors.

Thus the ninth section speaks of a vessel leaving her port with a complement of engineers and pilots, and provides for temporarily supplying the deficiency in case she is deprived of their services on her voyage. And, again, the same section speaks of pilots as belonging to the vessels on which they are employed, and requires them to assist in the inspection of the vessels,-language which is entirely inappropriate to local or port pilots, whose employment lasts but a few hours, and who have no connection with any vessel except to bring into or take it out of port.

The term pilots is equally applicable to two classes of persons,- tothose whose employment is to guide vessels in and out of ports, and to those who are intrusted with the management of the helm and the direction of the vessel on her voyage. To the first class, for the proper performance of their duties, a thorough knowledge of the port in which they are employed is essential, with its channel, currents, and tides, and its bars, shoals, and rocks, and the various fluctuations and changes to which it is subject. To the second class, knowledge of entirely a different character is necessary. Yet the act in question does not require the inspectors, who are to license pilots under its provisions, to possess any knowledge of the harbors for which, under the theory of the plaintiff in error, pilots are to be licensed, or to exact any such knowledge from the pilots themselves. They are to issue their license to a pilot when satisfied, from 'inquiry as to his character and merits,' that he 'possesses the requisite skill, and is trustworthy and faithful.' The qualifications thus required may be sufficient for the pilot of the steamer on her voyage at sea, but are entirely insufficient for the intricacies of harbor navigation.

On the argument at the bar much stress was laid by counsel for the plaintiff in error upon the language of the first clause of the ninth section, as indicating an intention to supersede State legislation on the subject of port pilotage. That section declares 'that instead of the existing provisions of law for the inspection of steamers and their equipment, and instead of the present system of pilotage of such vessels, and the present mode of employing engineers on board the same,' certain regulations should be observed as prescribed by the act. But in our judgment the section excludes the inference drawn by counsel. No explanation is given as to the meaning of the term 'system,' as here used; but it is clear that it does not refer to any system established by law. The section supersedes in express terms existing provisions of law for the inspection of steamers and their equipment, but it uses different language when speaking of pilotage. If the section had also been directed against the law recognizing State regulations in respect to port pilotage, the intention of Congress in that respect would undoubtedly have been expressed with equal clearness, and not left to be implied from the use of an indefinite and ambiguous term.

The act does not purport to establish regulations for port pilotage; and we cannot suppose that in a measure intended to give greater security to life Congress would have swept away all the safeguards in this respect provided by State legislation without substituting anything in their place. Under the act the ports may be left entirely without resident or local pilots, for it does not require the appointment of such pilots, though the necessity for them must have been obvious. Having omitted this important requirement, the act omits of course all provisions as to the number of pilots, their duties, responsibilities, and compensation. These are matters of the greatest consequence, are contained in all State regulations, and without them no effective system can ever be established.

JUDGMENT AFFIRMED.


text: Talk:Steamship Company v. Joliffe/Opinion of the Court


text:
Baigorry

THE schooner Baigorry, laden wholly with cotton, was captured at sea, about one hundred miles off Havana, to which port she was sailing from Calcasieu Pass, in Louisiana, by the United States brig-of-war Bainbridge, on the 9th of June, 1862, and taken into Key West, where both cargo and schooner were libelled as prize of war. The ground, in fact, of the proceeding was,

1. Alleged violation of the blockade, established by President Lincoln's proclamation of 19th April, 1861.

2. That the cargo and ship were enemy's property.

The defence in turn was,

1. That no blockade had been broken; there not, as was alleged, having, in fact or in law, been any blockade at the date when the vessel sailed. And,

2. That the cargo and vessel were neutral property, and protected under a certain proclamation of General Butler's, made May 6th, 1862, hereinafter mentioned.

The cotton, according to the mate's testimony, had been laden at Calcasieu, in the State of Louisiana, between the 27th of April and the 3d of May, 1862. The vessel sailed from Calcasieu on the 26th of May. [Dates in this case are important.] Calcasieu Pass is on the western portion of the coast of Louisiana, and towards the western boundary of the State. Its topographical relation to the mouths of the Mississippi, New Orleans, and the country about the two, will be indicated with sufficient nearness to give the reader not acquainted with this special region an idea of things, by an arrow in the lower and left corner of the diagram, at page 263. An extension of the line of the arrow to the coast (cut off on the diagram) would indicate the position of Calcasieu.

As mentioned in two previous cases in this volume, and as is matter of known history, Commodore Farragut captured and took possession of the forts below New Orleans, then in possession of the Southern rebels, in the end of April, 1862; and General Butler, as a consequence, entered New Orleans on the 1st of May; his occupation of which by the 6th was complete. Prior to this last date, various other forts about New Orleans were abandoned or destroyed, and the navigation of the Mississippi, from its mouth, for a considerable distance upwards, left clear. But none of the places certainly abandoned were near to Calcasieu; nor although Commodore Farragut reported to the Government that 'a general stampede' was taking place as a consequence of the capture, were the rebels at that date driven out of Louisiana generally. The 'stampede' was general, as described; but it was general apparently only in the regions which were the theatre of the brave Commodore's operations, the region, namely, about New Orleans. On the 6th of May, General Butler issued a proclamation, written and dated on the 1st, in which he stated, that New Orleans and its environs having surrendered, were then occupied by the United States forces; that all foreigners not naturalized and claiming allegiance to their respective governments, and not having made oath of allegiance to the government of the Confederate States, would be protected in their persons and property, as heretofore, under the laws of the United States; and that the rights of property, of whatever kind, would be held inviolate, subject only to the laws of the United States. All the inhabitants were enjoined to pursue their usual avocations.

The proclamation of blockade referred to above, as having been made by President Lincoln, April 19, 1861, was declared from the first, by the Government, to be a blockade of the whole Southern coast of the United States. After the capture and complete occupation of New Orleans, that is to say, on the 12th of May, 1862, fourteen days before the Baigorry sailed at all from Calcasieu Pass, the President issued another proclamation, in which he declared that the blockade of the port of New Orleans should so far cease and determine, from and after the 16th of June, 1862, as that commercial intercourse with it might be carried on after the 1st of June following, except as to persons and things contraband.

The charge of breaking the blockade was resisted, therefore, partly on the ground that the blockade had been raised by the Executive, but more on the fact testified to by the captain of the vessel, that he saw no blockaders either when he went into Calcasieu, or when he came out of it. He swore 'he knew, before going to sea, that the city of New Orleans had been taken by the United States before the vessel left Calcasieu; and had information that the United States had allowed vessels to go from Berwick's Bay to Sabine, after being visited.' He knew, also, as he swore, 'that there had been an order of blockade of the ports of the State of Louisiana; but he thought that the ports of the State were open after the capture of New Orleans. He wished to go to New Orleans for a clearance from the United States authorities; but was not allowed by the Confederates to pass through the country. He had seen blockading vessels in February, 1862, when sailing from Havana towards the coast of Louisiana, without having any fixed port of destination, but saw none either when he entered or when he left Calcasieu, on this last voyage, though he saw a steamer passing along at a distance from the coast once, while the Baigorry was at Calcasieu.'

The mate testified that he knew that on the 26th of May, when the Baigorry set sail, 'the ports of Louisiana were then declared to be blockaded, but he did not see any vessel then on the coast. He saw steamships at a distance off the coast twice, while the Baigorry lay at Calcasieu Pass. He did not know what they were.'

The Bainbridge was first seen the evening before the capture. 'I changed the course,' said the captain, 'after I saw that the Bainbridge was waiting for me, in order to avoid her. There was very little wind.' No spoliation of papers or concealment were alleged.

The business of the vessel was thus described by the captain:

'I first saw her in November, 1861, at Grand Caillou, a port on the coast of Louisiana. She made a voyage from that place to Havana, and thence to Calcasieu, last before the voyage on which she was taken. She carried cotton from Grand Caillou to Havana, and brought groceries, shoes, clothing, medicines, and wine to Calcasieu. She took cotton at Calcasieu, which was on board when she was taken. This last voyage would have ended at Havana, unless the port of New Orleans had been opened.'

So far as to breaking the blockade. Next as to the character of the ownership and the character of the trade in which she was employed.

She was first the property of her builder, at Grand Caillou, Louisiana, from whom one Adolphe Mennet, of New Orleans, purchased her, in October or November, 1861. She was American built; at the time named the Three Brothers, and had before borne the name of the G. W. Goodwin. Mennet, the owner, appointed Renaud, who was now commanding her at New Orleans, to command her, in December, 1861. Both lived at New Orleans; Renaud, who was a naturalized citizen of the United States, having lived there since 1853, and having a family there. They went to Grand Caillou, where Mennet placed Renaud in possession.

Renaud, whilst at Havana, under an alleged power of attorney from Mennet, sold or pretended to sell the schooner to an Englishman named Frederick Thensted, and under a British provisional certificate of registry, issued by the British consul-general at Havana, the new title and name of the British schooner Baigorry was given to her. Renaud (whose statement was the only evidence of the sale, no bill of sale having been produced) could not remember, so he swore, what her price was; but he swore that 'it was paid to Charles Caro & Co.,' a house well known as the consignees, at Havana, of blockade-runners. But it appeared by an entry on the British register, made at New Orleans, March 29, 1862, by a notary, that the vessel was mortgaged and hypothecated by Thensted to Adolphe Mennet, to secure payment for the sum of $5000, amount of two promissory notes. This practice of mortgaging, it may be here stated, was a frequent method, during the rebellion, of securing one man's interest in a vessel whilst she was passing under cover of another's name.

The crew, chiefly French, Italian, and Spainsh, were shipped at New Orleans, by order of the master, on the 16th of April, 1862, and went on board at Calcasieu on the 20th. It may be noted that, at that time, the concentration of our forces in the operations for the capture of New Orleans, made it impossible to load for blockade-running at that port. The master swore that the cargo was owned by several French citizens residing in New Orleans, and was shipped by one Durell, also of New Orleans, for them, and was consigned to Caro & Co., of Havana, to be delivered at that place for, and on account, risk, and benefit of, the said French citizens. A claim filed by Renaud for them, and the only claim made, asserted the same facts. The manifest sworn to by Renaud, 14th of April, 1862, at New Orleans, accorded with these statements. The bill of lading represented the cargo as shipped at New Orleans, by Cassillo and Harispe. The vessel cleared for Havana, at the 'Confederate' custom-house at New Orleans, on the 14th of April, 1862.

The court below condemned both vessel and cargo as enemy property. Appeal here.

''Mr. Coffey, special counsel for the United States. Messrs. Reverdy Johnson and Gillet, contra''.

The CHIEF JUSTICE delivered the opinion of the court.

title: Baigorry


text: Researches into the Mathematical Principles of the Theory of Wealth/Preface


text: Talk:Baigorry

title: Talk:Baigorry


text:
Baigorry/Opinion of the Court

The Baigorry and cargo were owned by residents of New Orleans, claiming to be subjects of Great Britain and France. She was employed in the trade of the enemy, plying between Havana and ports of Louisiana, and finding entrance as she could, by running the blockade. The cotton with which she was laden was shipped, according to the testimony of the mate, at Calcasieu Pass, between the 27th of April and the 3d of May; but she did not sail, if the master be credited, till the 26th of May. Calcasieu Pass, and all the neighboring region was in possession of the rebels, and the establishment of the blockade was well known to the officers of the schooner. The master says that he saw no blockading vessels off Calcasieu when he went in or when he came out. The mate, in answer to the same interrogatory, says nothing of what he saw when the schooner entered the Pass, but asserts that he saw no blockader when he came out. But the master says also, that he saw blockading ships as he was going towards the coast of Louisiana in February, and also, saw a steamer passing along the coast, while the schooner was at Calcasieu. The mate says he saw steamships-not one, but several-off the coast during the same time. It is also in evidence, that when the master of the Baigorry saw the Bainbridge, on the afternoon before the capture, and that she was hove to and waiting for him, he changed his course to avoid her.

We have already held, that a blockade once established, and duly notified, must be presumed to continue until notice of discontinuance, in the absence of positive proof of discontinuance by other evidence; and we do not think that the testimony of the master and mate that they saw no blockaders when entering or leaving Calcasieu Pass, supplies such proof. On the contrary, we think that positive proof that the blockade was not discontinued, is made by the admissions that blockaders were seen when the Baigorry approached the coast, and that one or more steamships were seen off the coast while she lay within Calcasieu Pass.

No attempt is made to account for her delay in sailing, from the 3d to the 26th of May, after her cargo was on board; and the absence of any explanation of this circumstance, warrants the inference that she was watching her opportunity to get out without being seized. It goes to establish guilty intent. So, too, the endeavor to escape from the Bainbridge. No such attempt would have been made, had the officers of the Baigorry been unconscious of any infringement of the blockade.

The proof of violation of the blockade, and of its existence both when the schooner entered and when she left Calcasieu Pass, is clear.

We think, also, that both ship and cargo were rightly condemned by the District Court as enemies' property. It is claimed that both belonged to neutrals resident in New Orleans, and entitled to protection under proclamation, and the proof, to some extent, supports this claim; but both were liable to be condemned as enemies' property, because of the employment of the vessel in enemies' trade, and because of the attempt to violate the blockade, and to elude visitation and search by the Bainbridge. On this latter point, the language of Chief Justice Marshall, in Maley v. Shattuck, is express.

DECREE AFFIRMED.

title: Baigorry/Opinion of the Court


text: Talk:Baigorry/Opinion of the Court

title: Talk:Baigorry/Opinion of the Court