text:
The Sally Magee/Opinion of the Court

'This, then, is a new proposition, on which the American correspondents are at liberty to exercise their discretion. They may accept or reject it, and until they do accept it, the property must remain in the enemy shipper.'

So here it remained in the Brazilian shipper until the deviation from orders should have been accepted or waived.

2. The claim and test affidavit were sufficient. The claimants at Rio could not be expected to verify the claim personally; the verification by an agent is all that can be asked. The Richmond consignees, from living in Virginia, could not be expected to make the verification. The devolution of the rejected purchase to a competent agent, is in all respects proper, and the only way the claim could be put in.

The test affidavit with the claim is sufficient. The office of the test affidavit is not to supply the details of evidence, but to aver the simple fact of proprietary interest. The oath annexed is as efficient as any detail of circumstances or correspondence. An order for further proof is made by the court ex motu suo only. It was not competent to the claimant to apply for it. The affidavit is always the summary proof, and, until impeached by further proof, is decisive in prize proceedings.

There is no ground to doubt the truth of the affidavit, by reason of any want of statement in the bills of lading or papers, that the property is neutral. At the time of the last communication to Rio from the United States there was no war, blockade, or contraband, which the ship's papers could refer to. Nor could the correspondence between the parties embrace any letters from the consignees respecting this shipment. There is no ground of any suspicion of suppression or unfairness as to documents; and on the claim, not impeached, and on the ship's papers, the coffee of Coleman & Co. should not have been condemned, but restored to the claimants.

The decree of condemnation precluded all claim to offer further proof. Until the decree, no further proof could be admitted, even if the matters alleged were material, or were capable of an explanation consistent with the right to restoration.

II. As to the claim of Fry, Price & Co., as lien creditors of Dunlap & Co.

By the doctrines of prize, a creditor having a mere lien, not being a direct proprietary interest accompanied with possession, cannot be heard in a prize proceeding. Whatever be his right, the captured property must be condemned. But the act of March, 1863, introduces certain new and benignant, though just features into the code of prize.

It is submitted that this act should be largely construed in favor of creditors. Also, that no condemnation creates any rights to interfere with the payment of any debts which could be specifically enforced. It overrides condemnations, and has the operation of an actual amnesty as to honest creditors. The cases, indeed, were innumerable where property became subject to condemnation during the rebellion, which to have swept from honest creditors would have been most unjust and cruel; and the principle, the spirit of the act in all particulars, is as applicable, notwithstanding its precise language, to prize condemnations as to any others.

Mr. Speed, A. G., and Mr. Coffey, contra.

Mr. Justice SWAYNE delivered the opinion of the court.

When a vessel is liable to confiscation, the first presumption is that the cargo is in the same situation. The bills of lading in the case are in evidence. The goods were consigned to parties living in Richmond. This vested the ownership in them. Such is the legal effect of a bill of lading as regards the consignee, unless the contrary is shown by the bill of lading itself or by extrinsic evidence. Upon the proofs there was clearly a prima facie case for the condemnation of the entire cargo.

We will consider, first, the claim in behalf of Coleman & Co.

In our opinion the law was correctly laid down by the counsel of the appellants. If the facts alleged are made out by the proofs, the claimants are entitled to restitution. The cases referred to in 8th Cranch are in point, and are decisive upon the subject. General principles, in the absence of these authorities, would have led us to the same conclusion. When an agent exceeds his authority, the principal is not bound unless he ratifies. Upon being informed he must exercise his election. Whatever may be the motives of his decision, the result is the same. His acceptance or rejection determines his rights and obligations.

Here, if Coleman & Co., as factors, bought the coffee at a price exceeding the limit prescribed by Davenport & Co., and the latter, upon learning the fact-no matter when that was, or what the circumstances-repudiated the purchase, the title of the factors thereupon became absolute, and none passed to the principals for whom the purchase was made.

It remains to consider how far the facts alleged by the claimants are sustained by their proofs. The burden of the affirmative rests upon them. The language of the test affidavit implies clearly that the correspondence to which it refers was in their possession. It is not produced, and its absence is not accounted for. The court is asked to take the averment of the affiant as to its existence and construction, in place of the correspondence itself. This no sound system of jurisprudence would tolerate. If the correspondence was not in the possession of the claimants, doubtless that and other evidence was at the command of Davenport & Co.

Between the filing of the claim and the time when the decree was rendered more than two years elapsed. There was time to communicate repeatedly with Rio. Coleman & Co. could have furnished full testimony. If the facts were as alleged it would have been conclusive in their favor. Nothing is produced from them. It does not appear they were applied to, nor does it appear large as is the amount involved-that they have done any act, or manifested any interest touching the controversy since it began. We can draw but one inference from these facts. It is, that if the evidence were produced, it would be fatal to the claim.

The appellants insist that an order of the court, made sua sponte, after the hearing upon the preparatory evidence, was indispensable to enable them to introduce any additional testimony; that it was not competent for them to apply for such an order; and that none having been made, the test affidavit should have been held sufficient. Such is not the rule as to further proof. If it were, the claimants would not be excused for withholding the correspondence, or not accounting for its absence when the test affidavit was submitted.

Cases of prize are usually heard, in the first instance, upon the papers found on board the vessel, and the examinations taken in preparatorio; and it is in the discretion of the court thereupon to make or not to make the order. But the claimant may move for the order, and show the grounds of the application by affidavit, or otherwise, at any time before the final decree is rendered. Such an order may also be made in this court. In one case affidavits were submitted in support of the application, and the order was made after the cause was heard. In another case a parol statement was submitted by the counsel for the claimant before the hearing, and the consequences were the same. The result is always in the discretion of the court, and that discretion is controlled by the circumstances of each case. The order is made with great caution, because of the temptation it holds out to fraud and perjury. It is made only when the interests of justice clearly require it. In the case before us no application was made in the court below, and none in this court.

If it be said the court erred in not making the order without an application, and without a showing, we cannot assent to the proposition. The state of the evidence warranted the decree; and, as the case was presented, there was no reason to believe that further evidence would benefit the claimants.

The other claim relates to the coffee consigned to Dunlap & Co., of Richmond, and it is not denied that this was enemy property. The claimants allege a lien. The claim states that Dunlap & Co. owed them a balance of upwards of $35,326, and that they were authorized and directed by that firm to receive and sell the coffee, and apply the proceeds, as far as necessary, to the payment of the debt, and to hold the balance for the account of the debtor firm.

The same affiant made the test affidavit, as in the other case. He referred, as in that case, to an important correspondence, and failed to produce it. The same remarks apply upon the subject. It is to be inferred, also, that the letters were written after the shipment of the cargo, and, indeed, after the capture. In either case the arrangement was made too late to have any effect.

The ownership of property in such cases cannot be changed while it is in transitu. The capture clothes the captors with all the rights of the owner which subsisted at the commencement of the voyage, and anything done thereafter, designed to incumber the property, or change its ownership, is a nullity. No lien created at any time by the secret convention of the parties is recognized. Sound public policy and the right administration of justice forbid it. This rule is rigidly enforced by all prize tribunals. The property was shipped to the enemy. It was diverted from its course by the capture. The allegation of a lien wears the appearance of an afterthought. It strikes us as a scheme devised under pressure, to save, if possible, something from the vortex which it was foreseen inevitably awaited the vessel and cargo.

The claimants invoke the aid of the act of March 3, 1863. It cannot avail them. The facts relied upon as fundamental to the claim are not established to our satisfaction. It is, therefore, unnecessary to consider the subject of the proper construction of the act, or the effect of the facts, if they had been sufficiently proved.

DECREE AFFIRMED.

title: The Sally Magee/Opinion of the Court


text: Talk:The Sally Magee/Opinion of the Court

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


text: Simpson Company v. Dall

title: Simpson Company v. Dall


text: Talk:Simpson Company v. Dall

title: Talk:Simpson Company v. Dall


text:
Simpson Company v. Dall/Opinion of the Court

DUNHAM & KEARFOOT, of Baltimore, were indebted on two notes, amounting to about $3000, to Dall, Gibbons & Co. of the same place, but were insolvent and did not pay. In this condition of things, Dall, Gibbons & Co. hearing that a house in Rogersville, Tennessee (Simpson, Duff & Co.), which was solvent, owed money to the insolvent debtors just named, at Baltimore, set themselves at work to get payment, by attachment, from it. Addressing his letter to Rogersville, Tennessee, Mr. Cocke, their attorney in Baltimore, accordingly wrote-first on the 16th of March, 1858, and then on the 17th-to a cousin of his, Mr. Jones, a professional gentleman, who had been residing at Rogersville, but who was now in Florence, Alabama, a place three or four hundred miles away; from which place, however, it seemed that he was ready to return when any business worthy of so long a journey made it worth his while to do so; Mr. Cocke, who wrote the letters, being a member of the law firm of G. W. Howard & Co., at Baltimore, and the letters having been put under an envelope stamped externally with the business card of that partnership. Cocke was, moreover, a cousin of Mr. Simpson's wife. The letters were of such a character that Mr. Jones 'might have felt authorized, if not directed, to consult Simpson & Co., whose debt he was requested to attach, in relation to the business.'

On what exact day these letters reached the Rogersville post-office did not appear. The regular course of the mail would have brought them there about the 19th or 20th of March; but if they happened to drop into a distributing-office by the way-'a thing which very often happened'-they would have been delayed till the 21st or 22d. There was, of course, also, the ordinary chance of other accidents. When they did arrive, however, at Rogersville, they were put, as it turned out, into the post-office box of this very firm of Simpson, Duff & Co. From the post-office the letters went to the counting-house of this firm. Here Mr. Duff, a member of the firm, opened and read them; and perceiving their contents, mentioned the fact of his having opened them and of what was in them to his partner Simpson, the senior and active partner of his firm. He then re-sealed them, and in a letter post-marked the 29th March, though dated the 27th, transmitted them in a friendly letter to Mr. Jones, at Florence; not telling him, however, that he had opened the letters or was possessed of their contents.

On the receipt of the letters, which got to Florence on the 1st of April, Jones came hastening up to Rogersville, getting there, perhaps, on the 4th. In the meantime, however, the Baltimore creditors having heard that Mr. Jones no longer resided at Rogersville, wrote, on the 25th of March, to another lawyer there, Colonel McKinney, placing the matter in his charge, and directing him to get the letters from the Rogersville post-office. Going to the post-office, he learned that the letters had been put into Simpson, Duff & Co.'s box. Following the matter up to Duff, he was told on the 29th that the letters had been forwarded to Mr. Jones, at Florence, 'several days before.' He then inquired of Simpson as to the state of their account with Dunham & Kearfoot, the insolvent firm at Baltimore; a matter which Simpson 'did not know about exactly,'-'would look at his books for,' inviting Colonel McKinney 'to call the next day.' On the next day Colonel McKinney called, and learned that, on the 26th preceding, they had remitted $2000 of their debt to their creditor house at Baltimore. They still owed, apparently, about $3100. On the 7th of April an attachment was issued; but it was too late to profit the persons for whom it was issued; for, on the 1st April preceding, Simpson & Co. had remitted the whole balance to their creditors at Baltimore; sending various negotiable notes for $1600 of it, and their own negotiable note for the remaining $1500. A receipt was returned on the 5th; two days, of course, before the attachment issued.

In the meantime, and perhaps, as already said, about the 4th April, Mr. Jones presented himself at Rogersville. The first thing he did was to go to Simpson, Duff & Co., to consult with them about their debt, which he had been requested to attach. He showed to Mr. Simpson the two letters which he had received, and 'asked Simpson's counsel in the premises.' Simpson, without informing him that he was already apprised of what the letters contained, informed him that the claim had been 'turned over' to another attorney, Colonel McKinney, who was now 'trying to get an attachment on the amount his firm might owe Dunham & Kearfoot;' and informed him also of the fact, more important to his principals, that the debt had all been paid. Mr. Simpson added, that he had felt himself under special obligation to pay the debt, as Dunham & Kearfoot had been good friends of his firm; that he had been repeatedly written to by them to pay up the amount due; that he had been trying to get exchange; that he had been waiting till the return of a certain debtor, whom he named; and for the payment of some other debts, so as to get exchange cheaper; and 'that he hoped the attachment of McKinney would not catch what he had sent on to Baltimore.'

Jones finding out otherwise that his letters had been opened, re-sealed, and that he had not been told of this, and apparently put out at losing a piece of business that might have been remunerative, declared himself 'astonished.' And the Baltimore firm of Dall, Gibbons & Co., conceiving that they had lost their debt wholly from Duff's having got possession of the letters, and in consequence of the knowledge which he had acquired by opening and reading what was not intended for him, now sued his firm, Simpson, Duff & Co., of Rogersville.

The declaration set out the existence of the debt, the writing of the two letters, that Duff, a member of the firm, 'took the same from the post-office without any authority for so doing, and opened and read them, and had thus illegally, wrongfully, and fraudulently acquired a knowledge of their contents, and communicated the same to the other members of his firm.' And it averred, that after the firm had in this way obtained information of the intention of Dall, Gibbons & Co. to attach the debt, the said Simpson, Duff & Co. wrongfully, illegally, and fraudulently detained the letters aforesaid, and illegally and fraudulently failed, for eight days, to forward or to deliver the same to the said Jones; with the purpose, design, and intention of preventing them, the plaintiffs, from obtaining payment of the notes due them, and for the purpose of favoring Dunham & Kearfoot aforesaid. By means of which tortious act and several grievances, and by reason of the insolvency and bankruptcy of the said Dunham & Kearfoot, which occurred soon after, they, the plaintiffs, had lost the whole amount of their debt.

Mr. Duff, however, for himself and his firm, had also an account to give of the transaction. This account appeared partically in the testimony of Mr. Cocke, the attorney in Baltimore, who had written and sent the letters, partially in the testimony of Mr. Jones himself, and partially in a letter of Duff's own, written in reply to one which Mr. Jones had written to him, complaining of what Duff had done about the letters, and which letter of Duff's, in vindication of himself, Jones had made evidence by referring to.

Mr. Cocke, the attorney, stated that the claim had been sent to Mr. Jones, 'because his intimacy and relationship with Simpson, Duff & Co. would enable him to ascertain from them the amount of their indebtedness to Dunham & Kearfoot.'

Mr. Jones gave more full particulars. He testified that before studying law he had been a clerk in the house of this same Simpson, Duff & Co.; that Simpson had married his first cousin, and that he and Duff had 'always, for years, been upon the most intimate terms of friendship;'-one evidence of which he signalized in the fact mentioned by him, that while he was at college 'he had carried on a correspondence with a young lady through the defendant Duff, and had authorized Duff to read his letters before giving them to the young lady.' He mentioned, also, the fact, that after the occurrence about the letters, he, Jones-as yet knowing nothing about it-had seen Duff constantly, and 'for a part of the time slept with him at night.' He stated, also, that Duff had 'for years been authorized to take his letters out of the post-office at Rogersville, and to forward them to him when absent;' though he declared solemnly that he had 'never authorized him to open his business letters during his absence.'

The postmaster, too, of Rogersville, testified that it was his general practice, and had been for years, to put Mr. Jones's letters into the box of Simpson, Duff & Co.; that Duff boarded with him, the postmaster; and Jones himself testified, that had he been in Rogersville when the letters came, he would have gone directly to Mr. Simpson and told him about them; adding, 'I think this from my intimacy with him, and from some directions to that effect in the letters themselves.'

The letter of Duff to his friend of so many years was thus, in substance and material parts, expressed:

ROGERSVILLE, 8th July, 1858.

Yours is to hand; and but from my absence from home, at the time of its arrival, should have had an earlier notice. I have only to say, it is true I opened the letter referred to. In so doing I was actuated by none other than pure motives. The letter was from a place I believe you had no private correspondence with, and at the time, it occurred to my mind that it might be a business letter, and one that demanded prompt and immediate attention. This was the only reason I had for the act. Owing to the very friendly relations that had always existed between us, and feeling a lively interest in your welfare, I thought I might safely take this liberty, and in taking it I was prompted alone by the feeling of doing what I supposed would be of service to you in your absence. When I found that the letter was connected with our business, I mentioned it to Colonel Simpson, your relation, and my partner, who expressed himself very sorry that it had been opened. I then resealed and forwarded it to you at once. If I committed an error, it was in not then informing you what I had done; this, however, was an error of omission only. Before opening the letter, I had no knowledge or intimation of its contents. You say you are 'astonished' at it. I am surprised that you should express astonishment, in view of our long intimacy, and in view of the fact that I have for so many years taken out your letters from the post-office at your request, and forwarded them to you, when you were absent from Rogersville, as you were when I opened the letter. I sincerely thought I was doing right, and for the promotion of your interest. It distresses me to learn, from the disapprobation implied in your letter, that you condemn an act, which, had it been done by yourself under similar circumstances, I would not have censured. The fact that I opened the letter, did you, I trust, no harm, nor your client. I forwarded it at once, on finding, as I did, most unexpectedly, that the letter contained claims sent out in behalf of Dall, Gibbons & Co., against Dunham & Kearfoot, which they desired to secure by attaching a debt due from us to the house last named. When I first saw the letters, I did not known how long they had been in the store-and seeing two letters with the name of G. W. Howard & Co. stamped on the envelopes, it occurred to me that they were business letters of importance, and required immediate attention; knowing that Howard & Co. did a considerable business in this section of the country, and not for one moment supposing that the business could have any connection with our house, as we at the time did not owe them anything. I knew, also, that Mr. Cocke, a member of the firm of G. W. Howard & Co., was a relation of yours, and it was natural for me to suppose that business from them would be placed in your hands, when they needed an agent at this point.

I have reason to believe that Dall, Gibbons & Co., hearing that you had removed to Alabama, engaged the services of Colonel McKinney, and that he was at Knoxville, endeavoring to obtain an injunction as you came up from Alabama with the claims. If the business was transferred into his hands before you reached Rogersville, and when, as a citizen of Florence, you could not be expected to attend to it, I am really at a loss to perceive how my intended kindness can have operated to your prejudice, as we were making arrangements, and using every effort to settle our indebtedness of Dunham & Kearfoot, before we had any intimation of Dall, Gibbons & Co.'s claims. I repeat, however, that I am sorry this thing has occurred, and hope that this explanation will prove satisfactory, and that our former friendship may still remain unchanged. I trust I shall hear from you soon.

Your friend, truly,

J. M. DUFF.

To sustain the plaintiff's case it was necessary, of course, to prove that the two letters had been written. Mr. Jones proved that he had received two letters inclosing the notes; describing the letters. The record then went on in substance thus:

'On the witness being asked to produce the letters, he stated that when he left Florence, a few days before this trial-for the purpose of attending as a witness-he looked over his papers for all such documents as related to this case. The letters were not among his papers. The witness recollects thinking about the two letters during the time he was looking over his papers; but being under the impression, that when the declaration was filed in this case, he had left them with J. R. Cocke, the plaintiffs' attorney, he did not make any special search for them more than for the other documents.

'The attorney, Cocke, being then introduced by plaintiff, testified that he had had the letters in his possession, while he was drawing the declaration in this case, but was under impression that he had returned them to Jones. The witness had not examined his files of letters before the commencement of this term of the court, in getting his papers together for the trial, and had not found said letters; and not finding them among the other papers in his possession, he had supposed the witness Jones had them.

'Upon this testimony the court permitted Mr. Jones to go on and testify as to his recollection of the contents of the letters; to which action of the court, in allowing secondary evidence while the existence of better evidence was shown, the defendants except. The witness Jones then went on to testify that one of the letters was dated Baltimore, 16th March, 1858, and the other, Baltimore, 17th March, 1858; that one of them contained two notes, drawn by the firm of Dunham & Kearfoot, dates and amounts not recollected; that one of the notes was due at the time it was sent to witness; that the other note was not due, but would shortly fall due. In one of the letters there was a statement of the amount due from Dunham & Kearfoot to the plaintiffs, Dall, Gibbons & Co. But the amounts and particulars of that statement the witness was unable to remember.'

By the statutes of Tennessee, it should here be said, the property in Tennessee, of debtors non-resident within the State, is allowed to be attached only when such 'non-resident debtor shall be removing, or about to remove, his property beyond the limits of the State.'

'The court, among other things not excepted to, charged the jury in effect, as respects material parts, as follows:

'1st. That this debt was property within the meaning of the statutes of Tennessee; and that if the defendants were about to remove their property beyond the limits of the State, the plaintiffs would have had the right to attach it; that if the defendants, by arrangement with insolvent creditors, intended to pay portions of their debts, and convert other parts into negotiable securities, so as to defeat the power of the plaintiffs to collect their debts from such insolvent non-resident creditors, who were plaintiffs' debtors, such conduct would amount to a removal of the property from the limits of the State, and if such measures were in contemplation, the plaintiffs would have the right to attach such indebtedness, to prevent its removal and secure their debt.

'2d. That authority to forward a letter is not an authority to break it open; that if, even with good motives, the defendants broke open the plaintiffs' letter to their attorney without authority, it was a violation of the legal rights of plaintiffs.

'3d. That if the defendants detained the letters thus broken open, with the view and purpose (as charged in the declaration) to enable them to use the information so illegally obtained, and pay the debt and convert it into negotiated securities, before the plaintiffs could issue their attachment and secure their debt, such detention, with such motives, was an illegal, wrongful, and fraudulent violation of the rights of the plaintiffs, for which a right of action exists.

'4th. That in the event of the jury finding that the plaintiffs lost their debts by reason of the fraudulent conduct of the defendants, as above stated, and the insolvency of Dunham & Kearfoot, they would be entitled to recover the amount of their debts, such debts being not more than the amount due from Simpson, Duff & Co.

'5th. That all the partners who knew how the information was illegally and wrongfully obtained, and concurred in the subsequent acts to defeat the plaintiffs' attachment by payment to the insolvent debtors, were liable for the damages, and none but those who did.'

A motion was afterwards made for a new trial, and the record went on in these words:

'The court overruled the motion for a new trial; to all which action of the court the defendants except, and tender this their bill of exceptions, which is signed and sealed by the court, and ordered to be made a part of the record in this case.'

The case was now here on error: Mr. Maynard, for the plaintiff in error, contending:

1. That secondary evidence of the contents of the letters had been improperly received; there having, as he argued, been no sufficient proof of search for the originals.

2. That the charge was wrong; and that Simpson, Duff & Co. were under no obligation to withhold from their creditor a debt which they justly owed him, and which he was pressing for, merely because they had accidentally become possessed of intelligence that somebody else wanted it held back for their benefit. Suppose they had accidentally or even designedly overheard a conversation instead of seeing a letter. Does any one think that in law they would have been bound to hold back payment?

1. Before passing to either of the objections, we note that no errors are assigned on this record. The plaintiffs in error say in this bill that they except to the decision of the court admitting secondary evidence of the contents of the letters; but it does not appear that any exception was taken when the decision was made and the trial was in progress. On the contrary, exception seems to have been first tendered after the motion for a new trial was overruled. Exception so taken cannot be availed of here. It is a well-settled principle that no bill of exceptions is valid which is not for matter excepted to at the trial. The original authority under which bills of exception are allowed, has always been considered to be restricted to matters of exception taken pending the trial and ascertained before the verdict. It need not be drawn out and signed before the jury retire; but it must be taken in open court, and must appear by the certificate of the judge, who authenticates it, to have been so taken. This was fully admitted in Hutchins v. King, where the rule was only not insisted on through a clerical mistake. Nor is this a mere formal or technical provision. It was introduced and is adhered to for purposes of justice. For if it be brought to the attention of the court that one of the parties excepts to his opinion, the judge has an opportunity of reconsidering or explaining it more fully to the jury.

2. The counsel for plaintiffs, in error has raised a question upon the ruling of the court in admitting secondary evidence of the contents of two letters.

No general rule can be laid down upon this subject applicable alike to all cases. The proof necessary to establish the loss of a writing, so as to let in secondary evidence of its contents, must depend upon the nature of the transaction to which it relates, its apparent value, and other circumstances. If suspicion hangs over it, and there is any reason to believe that it is designedly withheld, a rigid inquiry should be made into the reason of its non-production; but if there is no such suspicion, all that ought to be required is reasonable diligence to obtain the original-in respect to which the courts extend great liberality. In this case, the search for the originals might have been more thorough and rigid; but reasonable diligence was used, and there is no reason to suspect they were intentionally withheld.

But however this may be, the evidence of their contents was given to the jury without objection, and the question of its admissibility cannot now be raised here.

3. Objection is made to the charge of the court. Is the charge really open to censure?

Mr. Jones testifies that he never gave Duff authority to open his business letters. There is no evidence that Duff has such authority. What a college boy chose or did not choose to do a half century perhaps ago, and on one of those occasions when it is not given to men to be wise, is a small affair; of no pertinence to the case. If certain letters were submitted to him open, it does not follow that he had a right to break open others not submitted. No purpose that Duff in his letter states as having animated him was to be answered by opening and reading the letters instead of forwarding them. He saw the card of Howard & Co. on them, and could have replied to them that the letters were forwarded. He pretends to wish to serve his friend, and does it by depriving him as fast as possible of a valuable piece of business.

But the gravamen of our charge is less here than in that Duff communicated his irregularly obtained knowledge to Simpson, the leading and senior member of his firm. He had assuredly no authority to do that. Duff's duty, when becoming accidentally possessed of information not intended for him, was to forward the letters as fast as possible, with an explanation to Mr. Jones, and to keep profound silence as to everybody else. If under those circumstances Simpson, or the firm generally, had gone on to pay the debt before an attachment bound it, we might, perhaps, have less to say. But here the debt was discharged in the way that it was, and with the haste that it was, obviously, in consequence of the information given by Duff to his copartner. Dates show this. Mr. Simpson is 'very sorry' to hear that the letters had been opened, and shows his extreme sorrow by profiting as fast as possible of the knowledge that through their being opened he had acquired. He went to work immediately to defeat the attachment; sending all the cash and drafts that he had, and then to make short, clear, clean, and conclusive work of it, the firm's own negotiable note for a balance that he could not pay in cash. The note did not pay the debt; and the only purpose of sending it was to put the debt in a form not susceptible of being attached.

As matter of fact, there is not doubt at all that it was in consequence of Duff's opening and reading of the letter, and consequent communication of its contents to Mr. Simpson, that our claim was lost.

Mr. Jones's statement of what he might, could, or would have done, if he had been at Rogersville-he not having been three-is of no value. It is based on a hypothesis non-existent, and is more than any man ought, perhaps, to state on his oath. In fact, Jones says that he only 'thinks this.' Certainly, as a professional man, it would have been the least prudent thing that he could have done. It is not to be presumed of him that he would have so acted.

The instructions of the court, then, were substantially right. Taken as a whole, they presented the case fairly on both sides, and could not have misled the jury as to the issues they were to try, or the principles by which they were to be governed.

But it is a sufficient answer to say that no exception was taken to them when given, and that, therefore, this court will not review them.

Reply to the first point. The bill of exceptions, we may admit, is not well drawn; but it is plain enough that the exception was taken before the witness was examined. It says, indeed, that the plaintiffs 'except' to the action of the court in allowing the secondary evidence. But it proceeds straight to add, 'the witness, Jones, then went on to testify;' showing that the exception was taken before the testimony was given; and that though, in a present tense, the term relates to a past transaction. All that this court cares for is the fact; if it was properly taken, the omission to state it in the best way is not important.

Mr. Justice DAVIS delivered the opinion of the court.

It is contended by the defendants in error that the rulings of the Circuit Court, which are alleged to be erroneous, were not saved during the progress of the trial, and cannot, therefore, be investigated here. If this was so, it would be fatal; but we do not thus interpret the record. It is well settled that bills of exception are restricted to matter which occurred during the progress of the trial; but it is not necessary, neither is it the practice, to reduce to form every exception as it is taken, and before the trial is at an end. It will do for the judge to note them as they occur, and after the trial is over, if it is desirable to preserve them, they can be properly embodied in a bill of exceptions. In this case the bill of exceptions is unskilfully drawn, and is justly subject to criticism; but it clearly enough appears that the rulings of the Circuit Court, which are sought to be reviewed here, were excepted to in proper time, and when the cause was on trial, and not afterwards.

If this is so, we cannot allow a valuable right to be defeated, because the judge carelessly used a word in the present tense, when the true expression of his meaning required the use of word in the past tense.

It is a fair inference from the bill of exceptions that the defendants excepted to the introduction of secondary evidence of the contents of certain letters, when the court decided to admit it; and it is an equal inference that they also excepted, before the jury retired from the bar, to each of the series of instructions which the court gave to the jury. The bill of exceptions is, therefore, valid, and brings to our notice the proceedings of the Circuit Court, which, it is asserted, are erroneous.

The theory of this action is, that the defendants in error, who resided in Baltimore, Maryland, in March, 1858, addressed two letters to Jones, an attorney-at-law, in Rogersville, Tennessee, which, in his absence, were opened and read by Duff, one of the plaintiffs in error, and their contents communicated to his copartners, and then were detained for the purpose of obstructing the defendants in error in the prosecution of an attachment suit against the indebtedness which the plaintiffs in error owed to Dunham & Kearfoot, a mercantile firm, also resident in Baltimore. These letters were not produced on the trial, and the court permitted Jones to testify as to his recollection of their contents. This action of the court was excepted to, because no sufficient evidence of their loss had been made to justify it. The best evidence in the power of the parties must always be furnished, and the court was not authorized to allow secondary evidence of the contents of these letters to go to the jury, unless it was shown that they were either lost or destroyed.

The well-settled rules of evidence require this, and the danger of departing from them is well illustrated in this case; for on the important point of the dates and amount of the notes the testimony of the witness was imperfect, and wanting in clearness and precision. In order to show the loss of the letters, it was necessary to prove that a diligent search had been made for them where they were most likely to be found. There is no general rule as to the degree of diligence in making the search; but the party alleging the loss is expected to show 'that he has, in good faith, exhausted, in a reasonable degree, all the sources of information and means of discovery which the nature of the case would naturally suggest, and which were accessible to him.'

In the case before us this plain rule of evidence was palpably violated; for there was no diligence whatever used to obtain the letters, and no such search as would justify the court in inferring that they were lost.

J. R. Cocke, the attorney, went to the place of trial, under the belief that Jones, who was to be a witness, had the letters and would bring them. Jones was in the same category. Neither had made any special search for them, for each rested in the conviction that the other was the custodian of them. It was a case of pure negligence, and should have been so treated by the court. To approve the ruling of the court would justify the admission of secondary evidence on the merest pretence, and would do away entirely with the necessity of producing primary evidence. We cannot countenance a practice so loose, and such a manifest departure from the plainest legal principles.

The decision on this point remits the cause to the Circuit Court; but as it may be tried again, we are called upon to go further and decide the merits of this controversy, as they are involved in the instructions which the court gave to the jury.

Among other things, the court substantially charged the jury, that if Simpson, Duff & Co. were about to remove their property beyond the limits of the State, Dall, Gibbon & Co. would have the right to attach it, and that they could not pay their debt to Dunham and Kearfoot, who were insolvent, so as to defeat the measures which Dall, Gibbon & Co. had in contemplation to prevent it. Such a doctrine as this would effectually destroy credit and commerce.

If Simpson, Duff & Co. were indebted to Dunham & Kearfoot, they surely had a right to pay them, and the court will not inquire into the motive which prompted the payment. But the motive was meritorious, for the law does not favor a partial appropriation of an insolvent debtor's effects, but prefers an equal and general distribution. When the debt was contracted in Baltimore, both parties contemplated that, in the usual course of dealing, remittances or negotiable securities would be sent from Tennessee to discharge it, and it would be singular if the fact that Simpson, Duff & Co. were about to remove their property from Tennessee, in order to comply with their agreement, should authorize the issue of an attachment.

The mere statement of the proposition is enough to show its fallacy. Dall, Gibbon & Co. had no claim against Simpson, Duff & Co. The relation of debtor and creditor did not subsist between them, and we cannot see why it was necessary for these last to procure the consent of Dall, Gibbon & Co. before they could send money and negotiable notes to pay in good faith an honest debt, due to a mercantile firm residing in Baltimore, which was contracted there, and in the usual course of trade must be paid there.

But it is necessary to discuss the evidence in the case, as the charge of the court assumed that there was a cause of action. Duff and Jones were intimate friends, and to a degree not often seen, for Duff was permitted to open and read certain letters written by Jones, which are not generally read by third persons. Duff had for years been authorized to take the letters of Jones out of the post-office at Rogersville, and to forward them when he was absent, and the postmaster always put them into the box of Simpson, Duff & Co. Jones and J. K. Simpson (the active member of the firm) were connected by marriage; and Cocke, who wrote the letters from Baltimore, was also his relative, and a member of the firm of G. W. Howard & Co., whose name was stamped on the envelopes. This fact Duff knew, and as his house had no dealings with Howard & Co., it was very natural for him to suppose that the letters were on business requiring prompt attention, which, as an act of kindness, he ought to give to it, during the absence of Jones.

Cannot Duff's authority to open these letters be fairly inferred from these circumstances, and who can say that he erred in doing so? It is true that he committed an error in not informing Jones that he had opened them, but no harm resulted from that omission. The right to open them cannot be affected by what occurred afterwards. These letters were not detained, but were immediately resealed and forwarded to Florence, Alabama, where Jones lived. There is absolutely no evidence raising a presumption even that they were withheld. Duff was probably to blame for telling Simpson the purpose for which they were written; but he could hardly have refrained from doing so; and if he obtained the information rightfully, what principle of law or morals prevented Simpson, Duff & Co. from paying their Baltimore creditors, who had indulged them, and were then pressing them for payment? If they had acted otherwise, they would have been justly censurable. Their obligation was to Dunham & Kearfoot, not to Dall, Gibbon & Co., and the information obtained simply hastened the payment of an overdue debt, which they had for some time been endeavoring to procure exchange to discharge.

But if Duff had not opened the letters, is it not manifest that Jones, on his arrival in Rogersville, would have communicated their contents to Simpson?

Jones swears that he would, on account of their intimacy, and because Cocke had directed him to do so. And if Dall, Gibbon & Co. authorized their attorney to consult Simpson, and give him the same information which Duff did, how can they complain of the manner in which the information was obtained?

The procurement of Cocke, who had nothing to do with the matter, to select an attorney in Tennessee, who was his relative and also a relative of one of the Simpsons, was a contrivance to obtain more surely and easily the information on which the proceedings in attachment could be founded. The scheme was a failure, and Dall, Gibbon & Co. have no just right to complain. They are in no proper sense the losers by the conduct of Duff. The result would have been the same if Jones had got the letters unopened, for he would have told Simpson what he wanted; and it is easy to see that, instead of responding to his request, the firm would, in obedience to a plain sense of duty, have paid their just debts to their own creditors.

On what basis, then, can this claim be sustained? The examination of the record discloses none, and we are unable to supply the omission.

The judgment of the Circuit Court is reversed, and a

NEW VENIRE AWARDED.


text: Talk:Simpson Company v. Dall/Opinion of the Court


text:
Beard v. Federy

[Syllabus from pages 478-480 intentionally omitted]

AFTER our conquest of California, in 1846, Congress, by act of 3d March, 1851, 'to ascertain and settle the private land claims' in that State constituted a board of commissioners, in the nature of a judicial body, before which, claims to land there were to be investigated. Every person claiming lands there 'by virtue of any right or title derived from the Spanish or Mexican governments' was to present his claim to this board with the documentary and other evidences of it: notice of depositions, when taken, were to be given to the law officers of the United States. In case of confirmation of the claim, an appeal was given the United States to the District Court; in which case, says the act (§ 10), that court shall proceed to render judgment upon the pleadings and evidence in the case, and upon such further evidence as may be taken by order of the said court. If the decree in that court was adverse to the government, an appeal was given to this court. The act declares that 'for all claims finally confirmed by the said commissioners or by the District Court, or the Supreme Court, a PATENT shall issue to the claimant,'-but that such patent shall be 'conclusive between the United States and the said claimants only, and shall not affect the interests of third persons.' It declares moreover 'that all lands, the claims to which shall not have been presented to the said commissioners within two years after the date of the act, shall be deemed, held, and considered as part of the public domain of the United States.'

One section of the act-the 16th-enacts that it shall be 'the duty of the commissioners to ascertain and report to the secretary of the interior the tenure by which the Mission Lands are held.'

A subsequent statute, that of August 31, 1852, and amendatory of the former act, provides that, when a final decision is rendered by the commissioners,

'It shall be their duty to have two certified transcripts prepared of their proceedings and decision, and of the papers and evidence on which the same are founded; one of which transcripts shall be filed with the clerk of the proper District Court, and the other shall be transmitted to the Attorney-General of the United States, and the filing of such transcript with the clerk aforesaid shall ipso facto operate as an appeal for the party against whom the decision shall be rendered; and if such decision shall be against such private claimant, it shall be his duty to file a notice with the clerk aforesaid, within six months thereafter, of his intention to prosecute the appeal; and if the decision shall be against the United States, it shall be the duty of the attorney-general, within six months after receiving said transcript, to cause a notice to be filed with the clerk aforesaid, that the appeal will be prosecuted by the United States; and on a failure of either party to file such notice with the clerk aforesaid, the appeal shall be regarded as dismissed.'

Under the first act, Alemany, Bishop of Monterey, presented his petition to the commissioners for confirmation of a claim which he made to certain lands described by him, including church lands at the Mission of San Jose, consisting of the church, churchyard, burial-ground, orchard, and vineyard, with the necessary appurtenances; the whole embracing a little over nineteen acres of land. His petition averred, in substance, that by the laws of Spain, from time immemorial, and by the laws of the republic of Mexico at the time of the cession of California to the United States, the canon law of the Roman Catholic Church had the force of law in all things relating to the acquisition, transmission, use, and disposal of property, real or personal, belonging to the Catholic Church, or devoted to religious purposes, or to the service of God; and that by the same laws it was not necessary that any grant of land for ecclesiastical or church purposes should be proved by any deed or writing, public or private; but the right of the church to the property devoted to religious purposes, &c., was always recognized as regulated by the canon law. That the premises of which he sought confirmation had been for a long term of time devoted to religious purposes and uses, the public worship of God, the administration of the sacraments, and sacrifice of the church; according to the rites, ritual, and ceremonial, of the said Catholic Church. That by the canon law, and the laws of Spain and Mexico, the title, control, and administration of this and all other church property of the same description, absolutely essential to the religious uses and purposes above mentioned, was vested in the bishop and clergy of the diocese, who, for such purposes, were regarded as a body corporate; that the Catholic Church, at the date of the conquest and cession of California to the United States, had been in the actual and undisturbed possession of the premises in question since the year 1797; and that for the purpose of enabling him to hold the property, and rightly administering it for the use of the church, he, the petitioner, had been made a corporation sole by the State of California, under the title of 'Bishop of Monterey.'

The board confirmed the claim of the bishop. The United States appealed to the District Court. Subsequently, however, the attorney-general gave notice that 'an appeal would not be prosecuted in the case, and the District Court, on the 16th March, 1857, at a stated term, ordered, adjudged, and decreed that the claimant have leave to proceed under the decree of the United States Land Commission, heretofore rendered, in his favor, as a final decree.'

Thereupon a patent issued to the bishop, from the United States. It recited the bishop's petition, the decree of confirmation by the board in his favor, the appeal by the United States, and the notice that it would not be prosecuted, and in usual form gave and granted the lands to the bishop and his successors, in trust, &c., having about it every circumstance of formality.

Of the same lands, thus the subject of confirmation and patent to the Bishop of Monterey, one of the governors of California, Pio Pico, on the 20th of June, 1846-Mexico being then invaded by the United States, but the authority and jurisdiction of the Mexican officers not having yet terminated -made a grant to a certain Castenada and others. The grant recited on its face that the governor had been authorized previously, by the Departmental Assembly, 'to alienate the Missions, with the end of preventing their total ruin, and providing the government with the resources which it then immediately for its exigencies required.' Neither the said grant, however, nor any claim founded thereon, had ever been submitted for confirmation to the Board of Land Commissioners; and neither the grant nor any copy or counterpart or record of it, or any paper relating to it, existed or was to be found among the archives of the Mexican government; though the parties who held under it asserted and declared themselves able to prove that it was executed on the day it bore date, and that the consideration-money named in it, $3000, had been on that day paid.

Upon this state of titles, as they appeared from deeds produced or offered, one Federy, claiming title through the patent to the Bishop of Monterey, brought ejectment, in the Circuit Court for the Northern District of California, against Beard, who relied on the title derived under the deed of Governor Pico.

In the State courts of California-their practice in common-law cases being adopted essentially in the Federal tribunals there-a statute allows a plaintiff to unite in the same complaint claims 'to recover specific real property, with or without damages for the withholding thereof, or for waste committed thereon, and the rents and profits of the same;' though the same statute provides that such property 'shall be described with its metes and bounds.' In this case the declaration (or complaint, as it is called in California) demanded three parcels of land, describing one by metes and bounds; one as 'having two springs of water thereon, and lying outside of the adobe wall which inclosed a garden and orchard' previously described; and the third as having 'a mill-dam and a pond or reservoir of water thereon, lying to the north or northeast, or thereabouts, of the said adobe wall.'

The plaintiff, in the same action, demanded judgment for possession of the premises, for mesne profits, stated to be $5000 a year, and for costs and damages, the last alleged at $1000. On the trial, the claim for mesne profits was stricken out; but it was then mutually admitted that the value of the first item of the three parcels claimed, and the only one recovered, was $2500.

After judgment for the plaintiff for one of the parcels, the case came here on error taken by the defendants. Several points were made in their behalf. They were these: Mr. Wills arguing in support of them:

1. That under the 10th section of the act of 1851-which says, in terms, that on an appeal from the commissioners to the District Court, that court shall proceed to render judgment upon the pleadings and evidence in the case-it was the duty of that court to proceed and render judgment; that, upon the refusal of the attorney-general to prosecute the appeal, the court should have dismissed the appeal or affirmed the decree of the board; that, having done neither, the case was still pending undetermined, and consequently that there had been no decree on which a patent could issue.

2. That the petition of the Bishop of Monterey to the commissioners did not show that he claimed 'by virtue of any right or title derived from the Spanish or Mexican government;' on the contrary, that it showed that the missionaries of the Roman Church had had but a permissive possession-though a long, peaceful, and unquestioned one under government protection-and, therefore, did not show right or title; but, on the contrary, showed affirmatively no right, no title. Precedents could be cited in support of this view. Moreover, the 16th section of the act under which the commissioners sit required them 'to ascertain and report' to the secretary of the interior the tenure by which the mission lands were held, and by strong inference deprived them of power to pass upon the validity of the claim of the church to them. The lands in question were confessedly of this class. The board, then, had acted on a case without its jurisdiction; and its action was void. The patent founded on its void action was also and equally void. The case fell within Paterson v. Winn, in this court.

3. That the grant by Governor Pico-having been, not a grant in colonization, but a sale, according to a recital on its face, made by order of the Departmental Assembly; a sale, too, to save the nation in a crisis of supreme need-vested a good title in the parties under whom Beard claimed, anteriorly to the patent to the Bishop of Monterey; a title not to be divested by any title subsequent to the conquest. The fact that this grant by Governor Pico was not submitted to the commissioners within two years from the 3d March, 1851, was unimportant. The act never meant to destroy titles complete and fully existing anterior to the conquest.

4. That if the commissioners could pass upon the claim of the church to these lands, yet, by the terms of the act of March 3, 1851, the patent is 'conclusive between the United States and the claimants only,' and does not affect the interests of third persons; language which is plain, and conformable to the principles of common law, which deprives no man of his property unless upon hearing. The patent is, therefore, not evidence against the defendants for any purpose, and as between them and the plaintiff the whole subject of title was open.

The plaintiff, therefore, having offered no legal evidence of title, as against the defendants, they should have had judgment.

A party who had no title, under any right or title derived from Spain or Mexico, acquired none as against third parties by a patent from the United States. A patent in such a case only protected the claimant against the United States. His original title or possession must be shown, as against all others.

5. That the two last parcels of land were not described with sufficient certainty; and that the complaint united in one count three distinct causes of action; and united, also, a claim for damages for the rents and profits and detention of the land, with a claim to recover possession; a position which was apparently taken by Mr. Wills without knowledge that the Federal court in California had adopted the State rule of practice in this matter as its own; a fact which the learned judge of the tenth circuit announced from the bench to him, arresting argument on that point.

6. That by striking out from the complaint or declaration the claim for the rents and profits, the court had lost jurisdiction of the case, the argument hereon being that the facts necessary to give jurisdiction must appear affirmatively in the pleadings; that here the value of the land, as shown in the pleadings, was made to depend on the amount of damages, viz., $1000, and the claim for mesne profits $5000; that these having been both stricken out, left the court, under the pleadings, without jurisdiction, and that this defect of the pleadings could not be supplied by proof or admissions made on the trial.

Mr. Carlisle, who argued the case thoroughly on principle and precedents, contra.

Mr. Justice FIELD delivered the opinion of the court.

title: Beard v. Federy


text: Talk:Beard v. Federy

title: Talk:Beard v. Federy


text:
Beard v. Federy/Opinion of the Court

The plaintiff in the court below deraigned his title by various mesne conveyances from Joseph S. Alemany, Catholic bishop of Monterey, to whom a patent, embracing the premises in controversy, was issued by the United States. The patent is in the usual form, and purports on its face to be issued under the act of March 3d, 1851, to ascertain and settle private land claims in the State of California. It recites that the bishop presented his claim to the board of commissioners created under that act, for confirmation; that the board, by its decree, rendered on the 18th of December, 1855, confirmed the claim; that an appeal was taken on behalf of the United States to the District Court; and that the attorney-general, having given notice that the appeal would not be prosecuted, the District Court, by its decree, gave leave to the claimant to proceed upon the decree of the board as upon a final decree. Upon this form of the decree of the District Court, thus recited, the defendants below objected to the introduction of the patent, and the objection is pressed in this court. Their position is, that under the tenth section of the act of 1851 it was the duty of the District Court to proceed and render judgment upon the pleadings and evidence in the case; that, upon the refusal of the attorney-general to prosecute the appeal, the court should have dismissed the appeal or affirmed the decree of the board; that, having done neither, the case is still pending undetermined, and consequently there has been no decree on which a patent could issue.

The objection is a very narrow one, and does not merit the attention which it has received from counsel. Its answer is found in the amendatory act of August 31st, 1852. That act provides that when a final decision is rendered by the commissioners they shall prepare two certified transcripts of their proceedings and decision, and of the papers and evidence upon which the same were founded, one of which shall be filed with the clerk of the proper District Court, and the other shall be transmitted to the attorney-general; that the filing of the transcript with the clerk shall operate ipso facto as an appeal on behalf of the party against whom the decision is rendered; and, if the decision be against the United States, that it shall be the duty of the attorney-general, within six months after receiving the transcript, to cause a notice to be filed with the clerk that the appeal will be prosecuted; and, on failure to give such notice, 'the appeal,' says the statute, 'shall be regarded as dismissed.' If it can be regarded as dismissed, it is for all legal purposes in fact dismissed. Here the attorney-general did not allow his intention to be drawn from his silence; he announced it at once. The decree of the court authenticates by its record the refusal of the attorney-general, not leaving this fact open to contestation by oral proof. The form of the decree is the usual one adopted in such cases, and probably a large number of patents issued to parties in California contain a similar clause. By the action of the attorney-general the decree of the board took effect precisely as though no appeal had ever been taken, and it certainly cannot constitute any valid objection to the decree of the court that it declares in terms the effect which the law gave to such action.

After the patent was admitted in evidence the defendants produced the petition of the claimant to the Board of Land Commissioners, and insisted that it showed a want of jurisdiction in the board in this, that it did not set forth any right or title derived from the Spanish or Mexican government. The position of the defendant appears to have been, that the claim of the bishop was invalid because it did not rest upon, or was not sustained by, any direct grant or concession in writing.

The petition sets forth two sources of title, one founded on the laws of Spain and Mexico, and the other on continued possession of the property for a period exceeding half a century. It avers that, at the time of the conquest and cession of California to the United States, the canon law of the Roman Catholic Church was in force as the law of Mexico, as it had been previously of Spain when Mexico was a dependency thereof, in all things relating to the acquisition, transmission, use, and disposition of property, real and personal, belonging to the church, or devoted to religious uses; that, by the laws of Spain and Mexico, it was not necessary that a grant of land for ecclesiastical or church purposes should appear by deed or writing, public or private, but that the right of the church to such property was always recognized as regulated by the canon law; that the premises in question, being church lands at the mission of San Jose, consisting of the church, churchyard, burial-ground, orchard, and vineyard, with the necessary buildings and appurtenances, the whole embracing a little over nineteen acres of land, had for a long period been devoted to religious purposes and uses; that, by the canon law and the laws of Spain and Mexico, the title, control, and administration of all ecclesiastical and church property was vested in the bishop and clergy of the diocese, who, for such purposes, were regarded as a body corporate; and that the Catholic Church, at the date of the conquest and cession of California to the United States, had been in the actual and undisturbed possession of the premises in question since the year 1797.

These averments clearly present a case within the jurisdiction of the Board of Commissioners. They show 'a claim by virtue of a right or title derived from the Spanish or Mexican government,' which is all that is required by the act of 1851. That act does not define the character of the right or title, or prescribe the kind of evidence by which it shall be established. It is sufficient that the right or title is derived from the Spanish or Mexican government, and it may in some instances rest in the general law of the land, as is the case usually with the title of municipal bodies, under the Spanish and Mexican systems, to their common lands.

The board having acquired jurisdiction, the validity of the claim presented, and whether it was entitled to confirmation, were matters for it to determine, and its decision, however erroneous, cannot be collaterally assailed on the ground that it was rendered upon insufficient evidence. The rule which applies to the judgments of other inferior tribunals applies here,-that when it has once acquired jurisdiction its subsequent proceedings cannot be collaterally questioned for mere error or irregularity.

The grant of Pio Pico, bearing date on the 20th of June, 1846, under which the defendants below claimed title to the greater part of the premises in controversy, was rightly excluded. With the offer of the grant the defendants admitted that it had never been presented to the Board of Land Commissioners for confirmation, and had never been confirmed. The court treated the grant as one in colonization. All such grants, it is a matter of common knowledge with the profession in California, were made subject to the approval of the Departmental Assembly. Until such approval they were not definitively valid; and no such approval was obtained of the grant in question previous to the 7th of July following, when the jurisdiction of the Mexican authorities was displaced, and the country passed under the government of the United States. It remained for the new government succeeding to the obligations of the former government to complete what thus remained imperfect. By the act of March 3d, 1851, the government has declared the conditions under which it will discharge its political obligations to Mexican grantees. It has there required all claims to lands to be presented within two years from its date, and declared in effect that if, upon such presentation, they are found by the tribunal created for their consideration, and by the courts, on appeal, to be valid, it will recognize and confirm them, and take such action as will result in rendering them perfect titles. But it has also declared in effect, by the same act, that if the claims be not thus presented within the period designated, it will not recognize nor confirm them, nor take any action for their protection, but that the claims will be considered and treated as abandoned. It is not necessary to express any opinion of the validity of this legislation in respect to perfect titles acquired under the former government. Such legislation is not subject to any constitutional objection so far as it applies to grants of an imperfect character, which require further action of the political department to render them perfect.

The Circuit Court, as already stated, treated the grant as one in colonization. This was the most favorable view for the defendants, for if the recitals that it was made upon a sale of mission lands, and upon authority conferred by the Departmental Assembly, are to determine its character, it is without any efficacy in passing the title. It is simply a void instrument, and falls directly within the decision of this court in the United States v. Workman. In that case the powers of the Departmental Assembly in the alienation of lands were very fully and elaborately considered, and particularly its asserted power to authorize the governor to sell the mission lands, and it was held that this body could not confer any power upon the governor, and that its own power was restricted to what was conferred by the laws of colonization, which was simply to approve or disapprove of grants regularly made by the governor under those laws.

This grant being laid out of the case, the only question for determination is, whether the defendants constitute third persons within the meaning of the fifteenth section of the act of March 3d, 1851. That section provides that the decree of confirmation and patent shall be conclusive between the United States and the claimants only, and shall not affect the interests of third persons. The position of the defendants is, that as against them the patent is not evidence for any purpose; that as between them and the plaintiff the whole subject of title is open precisely as though no proceedings for the confirmation had been had, and no patent for the land had been issued. Their position rests upon a misapprehension of the character and effect of a patent issued upon a confimation of a claim to land under the laws of Spain or Mexico.

In the first place, the patent is a deed of the United States. As a deed, its operation is that of a quit-claim, or rather of a conveyance of such interest as the United States possessed in the land, and it takes effect by relation at the time when proceedings were instituted by the filing of the petition before the Board of Land Commissioners.

In the second place, the patent is a record of the action of the government upon the title of the claimant as it existed upon the acquisition of the country. Such acquisition did not affect the rights of the inhabitants to their property. They retained all such rights, and were entitled by the law of nations to protection in them to the same extent as under the former government. The treaty of cession also stipulated for such protection. The obligation, to which the United States thus succeeded, was of course political in its character, and to be discharged in such manner and on such terms as they might judge expedient. By the act of March 3d, 1851, they have declared the manner and the terms on which they will discharge this obligation. They have there established a special tribunal, before which all claims to land are to be investigated; required evidence to be presented respecting the claims; appointed law officers to appear and contest them on behalf of the government; authorized appeals from the decisions of the tribunal, first to the District and then to the Supreme Court; and designated officers to survey and measure off the land when the validity of the claims is finally determined. When informed, by the action of its tribunals and officers, that a claim asserted is valid and entitled to recognition, the government acts, and issues its patent to the claimant. This instrument is, therefore, record evidence of the action of the government upon the title of the claimant. By it the government declares that the claim asserted was valid under the laws of Mexico; that it was entitled to recognition and protection by the stipulations of the treaty, and might have been located under the former government, and is correctly located now, so as to embrace the premises as they are surveyed and described. As against the government this record, so long as it remains unvacated, is conclusive. And it is equally conclusive against parties claiming under the government by title subsequent. It is in this effect of the patent as a record of the government that its security and protection chiefly lie. If parties asserting interests in lands acquired since the acquisition of the country could deny and controvert this record, and compel the patentee, in every suit for his land, to establish the validity of his claim, his right to its confirmation, and the correctness of the action of the tribunals and officers of the United States in the location of the same, the patent would fail to be, as it was intended it should be, an instrument of quiet and security to its possessor. The patentee would find his title recognized in one suit and rejected in another, and if his title were maintained, he would find his land located in as many different places as the varying prejudices, interests, or notions of justice of witnesses and jurymen might suggest. Every fact upon which the decree and patent rest would be open to contestation. The intruder, resting solely upon his possession, might insist that the original claim was invalid, or was not properly located, and, therefore, he could not be disturbed by the patentee. No construction which will lead to such results can be given to the fifteenth section. The term 'third persons,' as there used, does not embrace all persons other than the United States and the claimants, but only those who hold superior titles, such as will enable them to resist successfully any action of the government in disposing of the property.

It only remains to notice the objections taken to the complaint in this case. They are advanced in misapprehension of the system of pleading and practice which prevails in the State of California. The system is there regulated by statute, and differs in many important particulars from the system which existed at the common law. There the ancient forms of action are abolished. In every case the plaintiff must state, in ordinary and concise language, his cause of action, with a prayer for the relief to which he may deem himself entitled. The fictions of the action of ejectment at common law have no existence. The names of the real contestants must appear in the pleadings. The complaint, which is the first pleading in the action, must allege the possession or seizin of the premises, or of some estate therein, by the plaintiff, on some day to be designated, the subsequent entry of the defendant, and his withholding the premises from the plaintiff. No other allegations are required, where possession of the property alone is demanded. But in the same action there may be united a claim for the rents and profits, or for damages for withholding the property, or for waste committed thereon. Distinct parcels of land may also be included in the same complaint where they are covered by the same title, and the action equally affects all parties. The property should be described, if practicable, by metes and bounds; but this is not essential. The provision of the statute on the subject is only directory, its object being to insure such particularity of description, as to enable the officer, who may be charged with the execution of a judgment for the possession, to ascertain the locality and extent of the property. A description by name, where the property is well known, will often answer equally with the most minute description by metes and bounds.

This brief statement of the system of pleading and practice existing in California will furnish the answer to the several objections urged. That system, with some slight modifications, has been adopted by rule of the Circuit Court of the United States in common-law cases.

When by the consent of parties on the trial the claim for the rents and profits was stricken from the complaint, the court did not lose jurisdiction of the case, because the value of the property did not appear by any allegations of the pleadings. It was admitted that the first parcel, the only one recovered in the action, was of the value of twenty-five hundred dollars. This was sufficient, for it has long been the settled practice of the courts of the United States in actions where the demand is not money, and the nature of the action does not require the value of the property in controversy to be stated, to allow the value to be proved at the trial.

JUDGMENT AFFIRMED.

title: Beard v. Federy/Opinion of the Court


text: Talk:Beard v. Federy/Opinion of the Court


text: Bank for Savings v. The Collector

title: Bank for Savings v. The Collector


text: Talk:Bank for Savings v. The Collector

title: Talk:Bank for Savings v. The Collector