text:
Hendrick v. Lindsay

ERROR to the Circuit Court of the United States for the Northern District of New York.

In March, 1871, one Ballantine recovered a judgment in the Circuit Court of the United States for the Eastern District of Michigan against the Albany Insurance Company, for $3,425.34 and costs. That company desiring to bring the case to this court upon writ of error, Hendrick, its vice-president, on the 8th of March, 1871, wrote to Lindsay, one of the defendants in error, as follows:--

'A. G. LINDSAY, Esq., Detroit:

'DEAR SIR,-Will you be good enough to sign the needful bail-bond in the 'Park' case, and oblige

'Yours truly,

JAMES HENDRICK, V. P.'

On the 10th of that month, Lindsay replied: 'I beg to say that I will sign the bail-bond in the 'Park' case, if you will first furnish me with sufficient security to indemnify me in case of our defeat; the case may be delayed years at Washington, and many changes may occur in that time.'

On the next day Hendrick wrote to Lindsay, acknowledging the receipt of the letter of the 10th, and saying, 'Whatever security may be desired in the shape of a personal bond, I will give it to you.' After the receipt of this letter, the defendants in error executed to Ballantine their joint and several bond, which was accepted, approved, and filed on the sixteenth day of March, 1871; whereupon the insurance company sued out a writ of error, by which, and in virtue of the bond, said judgment was superseded.

On the 15th of March, 1871, Hendrick wrote to Lindsay, saying as follows:--

'I have just returned from Boston, and learn that you have not yet advised us of having signed our bail-bond in the 'Park' case. As it should be done at once, I hope you will feel that we have, if nothing more, a feeling of old friendship, that ought to make men of us in an hour of need.'

On the 17th, Lindsay replied,--

'Upon receipt of your favor of the 11th inst., I signed your bond in 'Park' case without loss of time, and supposed the fact itself was answer to you in the premises until this A.M. I received yours of the 15th inst., touching on the same subject, and now ask your pardon for not stating to you at once, upon the receipt of your 11th inst. favor, that the bond was executed.'

On the 20th, Lindsay again wrote as follows:--

'DEAR SIR,-Enclosed is bond of indemnity, which please have executed and returned to me.'

The bond was as follows:--

'Know all men by these presents, that we, James Hendrick, as principal, and _____, as surety, of Albany, in the State of New York, held and firmly bound unto Archibald G. Lindsay and James P. Mansfield, of the city of Detroit, county of Wayne, and State of Michigan, in the sum of $5,500, lawful money of the United States of America, to be paid to the said Lindsay and Mansfield, or to their certain attorneys, heirs, executors, administrators, or assigns, to which payment, well and truly to be made, we jointly and severally bind ourselves, our heirs, executors, and administrators, and each and every of them, firmly by these presents, sealed with our seals, dated the twentieth day of March, 1871.

'The condition of this obligation is such, that, whereas the said Lindsay and Mansfield have lately, at the request of the said Hendrick, signed two bonds,-one in the sum of $5,000, and one in the sum of $200,-in a case pending in the Circuit Court of the United States for the Eastern District of Michigan, in which suit James M. Ballantine was plaintiff, and the Albany City Insurance Company was defendant, said bonds being filed for the purpose and intent of taking said case to the Supreme Court of the United States.

'Now, therefore, if the said Hendrick shall save and keep the said Lindsay and Mansfield fully indemnified and harmless against all loss, damages, or expenses arising from their giving the said bonds, then the above obligation to be void; and otherwise, in force.'

No dissent was expressed by Hendrick, nor was the bond executed by him.

Ballantine's judgment having been affirmed by this court, Lindsay and Mansfield paid it by their negotiable notes, and thereupon brought assumpsit against Hendrick for the amount so paid.

The plaintiffs, after proving the foregoing facts, rested their case. The defendant announced that he had no evidence to offer.

The court charged that the plaintiffs were entitled to recover, and directed the jury to so find; to which charge and direction the defendant excepted.

The jury found a verdict for the plaintiffs; and judgment having been rendered thereon, the defendant sued out this writ of error.

Mr. T. Lawson for the plaintiff in error.

The undertaking of a surety is to be strictly construed, and should not be extended to any other subject, person, or period of time than is expressed in the obligation. Birge on Suretyship, 40; Birkenhead et al. v. George et al., 5 Hill (N. Y.), 634; Barns et al. v. Barron, 61 N. Y. 39; Miller v. Stewart, 9 Wheat. 703; Ludlow v. Simonds, 2 Caines's Cas. 1; Lord Arlington v. Merrick, 3 Saund. 400; Grant v. Naylor, 4 Cranch, 224; Bleecker v. Hyde, 3 McLean, 279; Wright v. Russell, 3 Wils. 530; Weston et al. v. Barton, 4 Taunt. 726; Strange et al. v. Lee, 3 East, 484; ''Chancellor, &c. of Cambridge v. Baldwin, 5 M. & W. 580; Day v. Davey'', 2 Per. & Dav. 249; London Assurance Co. v. Bold, 6 Adol. & Ell. N. S. 514.

In order to entitle the plaintiffs to recover, they were bound to show payment and discharge of the liability or debt. Bonny v. Seeley, 2 Wend. 482; Powell v. Smith, 8 Johns. 248.

The giving of one's own note will not, unless it is expressly so agreed, operate as payment or discharge of a prior debt or obligation. The Kimball, 3 Wall. 37; Downey, Ex'r, v. Hicks, Ex'rx, 14 How. 240; Drake v. Mitchell, 3 East, 250; Tobey v. Barber, 5 Johns. 68; Johnson v. Weed, 9 id. 309; Wetherby v. Mann, 11 id. 516; Van Ostrand v. Reed, 1 Wend. 424.

Mr. Walter H. Smith for the defendants in error.

A party occupying the position of a surety who gives his negotiable note, which is accepted in satisfaction of a debt or obligation, can maintain an action against his principal. Wetherbee v. Mann, 11 Johns. 518; Rodman v. Hedden, 10 Wend. 501; Elwood v. Deifendorf, 5 Barb. 410; Van Ostrand v. Reed, 1 Wend. 430.

The promise of the plaintiff in error to indemnify, under the circumstances, entitled the defendants in error to maintain their action. Elwood v. Deifendorf, supra; 1 Story's Eq. Jur., sect. 499.

The true construction of the undertaking of the plaintiff in error to indemnify the sureties is to be found in the intention of the parties. Gates v. McKee, 13 N. Y. 232; Nash v. Towne, 5 Wall. 699.

Although Mansfield's name was not mentioned in the letters to Hendrick, yet if the promises and undertaking of the latter were intended to inure to the benefit of any person or persons whom Lindsay might procure to sign the bail-bond, then such person or persons can, at common law, sue directly and in his or their own name, in assumpsit. Chitty, Contr. 54-58, and cases cited.

MR. JUSTICE DAVIS delivered the opinion of the court.

title: Hendrick v. Lindsay


text: Talk:Hendrick v. Lindsay

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

title: Talk:Hendrick v. Lindsay


text:
Hendrick v. Lindsay/Opinion of the Court

There were no disputed facts in this case for the jury to pass upon. After the plaintiffs had rested their case, the counsel for the defendant announced that he had no evidence to offer; and thereupon the court, considering that the legal effect of the evidence warranted a verdict for the plaintiffs, told the jury in an absolute form to find for them. This was correct practice where there was no evidence at all to contradict or vary the case made by the plaintiffs; and the only question for review here is, whether or not the court mistook the legal effect of the evidence. Bevans v. United States, 13 Wall. 57; Walbrun v. Babbitt, 16 id. 577.

It is very clear that the transaction in question constituted a good contract between some parties. The real inquiry is, whether the promise and undertaking of Hendrick were intended to inure to the joint benefit of Lindsay and Mansfield, so as to entitle them to bring an action. In construing letters like those on which this suit is based, the language employed is one, but not the only, element to be considered in arriving at the intention of the writers. In determining the sense in which the words were used, they should be considered in connection with the subject-matter of the correspondence, the situation of the parties, the thing to be done, and the surrounding circumstances.

There is no absolute proof of the relation sustained by Hendrick to the insurance company, other than that he was its vice-president; but from the tenor of the letters it is quite clear that he managed its business in Michigan, and had general authority over it in that State. It is equally clear that Lindsay was only a local agent of the company at Detroit, with the usual powers and duties belonging to such an appointment. Such was the relative position of these persons when it became necessary to take action on Ballantine's judgment against the company in the Circuit Court of the United States at Detroit. Lindsay had no concern with it. The officers of the corporation in Albany were to determine whether to let the judgment remain in force, or to sue out a writ of error from this court. To stay the execution required a bond of considerable amount. It was not necessary that the company should sign it, but it was absolutely essential that the offered security should be satisfactory to the judge whose duty it was to approve the bond. In this state of the case Hendrick wrote to Lindsay, 'Will you be good enough to sign the needful bail-bond?' This request, construed literally, would limit the application to Lindsay alone. But this is a narrow construction; and evidently the words could not in this sense have been used by Hendrick or adopted by Lindsay. The request was coextensive with the object to be attained,-that of superseding the judgment and securing a hearing in a higher court; and Hendrick asked Lindsay to see that whatever was required for this purpose should be done. To suppose any thing else is to suppose, that, wishing a certain thing effected, he restricted his agent in the use of the necessary means to accomplish it; for it might turn out that the judge would require two securities instead of one, or that Lindsay would not be accepted at all. Besides, it was immaterial to Hendrick whether the bond was signed by one or more persons, as he promised to give indemnity in the shape of a personal bond. It is true that this promise, in terms, was to Lindsay; but there is no reason why it, any more than the request, should be limited. If the request applied, as we think it did, to the procurement of a sufficient bond, the promise has a like extent. That Lindsay and Mansfield (to whom the correspondence was communicated) understood them to have this effect, is clear enough, from their signing the bond and staying the collection of the judgment. It is also equally clear, from the same fact, that Lindsay requested Mansfield to beome one of the sureties, and that they both executed the bond, relying upon the undertaking of Hendrick to furnish the promised indemnity.

This was not done, although prompt application was made to him by letter from Lindsay, enclosing a draft of the indemnity bond. He neither signed nor returned it, nor did he afterwards correspond with any one on the subject. The draft recites that the supersedeas bond was executed by Lindsay and Mansfield, at the request of Hendrick. He was, therefore, informed of the interpretation which they put upon his request and promise; and, if it was wrong, he would at least, as an excuse for doing nothing, have availed himself of the occasion to repudiate the whole proceeding. As he did not do this, but retained, without objection, the draft, he in effect adopted that interpretation.

It is argued that Hendrick had no personal interest in the matter, and that, therefore, there was no consideration for his promise. But damage to the promisee constitutes as good a consideration as benefit to the promisor. In Pillan v. Van Mierop, 3 Burr. 1663, the court say, 'Any damage or suspension of a right, or possibility of a loss occasioned to the plaintiff by the promise of another, is a sufficient consideration for such promise, and will make it binding, although no actual benefit accrues to the party promising.' This rule is sustained by a long series of adjudged cases.

It is also argued, as Mansfield's name does not appear in the letters of Hendrick, that he could not join in this action. This would be true, if the promise were under seal, requiring an action of debt or covenant; but the right of a party to maintain assumpsit on a promise not under seal, made to another for his benefit, although much controverted, is now the prevailing rule in this country. 1 Pars. Contr. (6th ed.) 467, and cases cited. If Hendrick engaged with Lindsay to indemnify the sureties furnished by him, and on the faith of this promise Lindsay and Mansfield executed the supersedeas bond, as we hold was the case here, then, if they suffered loss by reason of the breach of this contract, they are entitled to maintain this suit. That they did suffer loss, to the extent of Ballantine's judgment against the company, which was affirmed in this court, is the legal effect of the evidence of the only witness on the point. He states directly that he and his co-plaintiff paid on the bond to Ballantine a certain amount of money, meaning, evidently, on the judgment to secure which the bond was given. It is true he says, 'We did not pay cash,' 'we paid it in our notes;' but negotiable promissory notes are equivalent to the payment of money, if received by the creditor in satisfaction of the judgment, though such satisfaction be not entered on the record. The witness, through all his testimony, speaks of what he did as payment; and the true inference from the whole of it is, that Ballantine treated these notes as so much money paid him. There was no reason why he should not; for the bond was his only reliance, and the enforced collection of it would have occasioned expense and required time. It was far better for him, if the obligors were good (and this is the presumption), but unable to pay at once, to take time-notes in liquidation of the demand, than to bring suit on the bond. Besides, this is not an unusual way of closing up such a transaction, where the circumstances surrounding it appeal so strongly to the indulgence of the creditor.

On the whole, we are of the opinion that the court below did not mistake the legal effect of the uncontradicted testimony in the case, and that there was no error in instructing the jury to find for the plaintiffs.

Judgment affirmed.


text: Talk:Hendrick v. Lindsay/Opinion of the Court


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O'Hara v. Macconnell

APPEAL from the Circuit Court of the United States for the Western District of Pennsylvania.

The facts are stated in the opinion of the court.

Submitted on printed arguments by Mr. J. W. Kirker for the appellants. No counsel appeared for the appellees.

MR. JUSTICE MILLER delivered the opinion of the court.

title: O'Hara v. Macconnell


text: Talk:O'Hara v. Macconnell

title: Talk:O'Hara v. Macconnell


text:
O'Hara v. Macconnell/Opinion of the Court

Michael O'Hara was adjudged a bankrupt Dec. 9, 1867, and the appellees duly appointed assignees, to whom an assignment of his effects was made in due form. As such assignees, they filed in the Circuit Court for the Western District of Pennsylvania the bill in chancery on which the decree was rendered from which the present appeal is taken. The bill alleges that a conveyance of certain real estate made by said O'Hara and his wife, Frances, on the tenth day of July, 1866, to William Harrison and G. L. B. Fetterman, in trust for the use of the wife, was a fraud upon creditors, and prays that the deed be declared void, and that O'Hara, his wife, and Barr, her guardian, be decreed to convey the land to complainants, that they may sell it for the benefit of O'Hara's creditors, free from the embarrassment created by said deed of trust.

The bill also alleges that Mrs. O'Hara is a minor, and that A. M. Barri is her legal guardian.

A subpoena was issued on the fifth day of April, 1869, and served on the 7th, on O'Hara, for himself and wife, and on Barr; and on the seventh day of May following, without appearance, and without answer by any defendant, the bill was amended, was taken as confessed, and a final decree rendered. This decree enjoined the defendants from setting up any claim to the land, and ordered all of them to convey and release the same to the assignees; and, in default of such conveyance within thirty days, Henry Sproul was appointed commissioner to do it in their name. A copy of this decree was served on the defendants May 10; and on the 14th of June the order was complied with, by a deed made by O'Hara, his wife, and Barr, which on its face purports to be in execution of the order, and for the consideration of one dollar. It will thus be seen, that within less than five weeks from the filing of the bill, and without any actual service of the writ or other notice on her, a decree was entered against a woman who was both a minor and a feme covert, without the appointment of a guardian ad litem, without any appearance by her or for her, depriving her of fourteen acres of land now within the limits of the city of Pittsburg. It is from this decree that she appeals.

By the thirteenth rule of practice of the courts of equity of the United States, as it stood when the subpoena in this case was served, a delivery of a copy to the husband was good, where husband and wife were sued together; but the rule was amended by this court in 1874, so as to require a personal service on each defendant, or by leaving a copy for each at his or her usual place of abode, with some adult member of the family. The service in the present case would not now be good, though it must be held to have been so at the time it was made.

It would be very strange if a decree obtained under such circumstances could stand the test of a critical examination. We are of opinion that there are several errors sufficient to justify its reversal.

1. It was the duty of the court, where the bill on its face showed that the party whose interest was the principal one to be affected by the decree was both a minor and a feme covert, and that no one appeared for her in any manner to protect her interest, to have appointed a guardian ad litem for that purpose. If neither her husband nor he who is styled her guardian in the bill appeared to defend her interest, it was the more imperative that the court should have appointed some one to do it. There is no evidence in the record, except the statement in the bill, that Dr. Barr was her guardian. If he was not, then there was no one served with notice, whose legal duty it was to defend her. If he was her guardian, there is no evidence of the precise nature of his duties or power, as there are several classes of guardians. As to the particular property now in contest, she had a trustee, in whom the title was vested for her use, and whose duty it would have been to protect her interest in it; but, strangely enough, he was not made a party. It was, therefore, error in the court to proceed to a decree without appointing a guardian ad litem. 1 Daniell's Ch. Pr. 160, c. 4, sect. 9; Coughlin's Heirs v. Brents, 1 McLean, 175; Lessee of Nelson v. Moore, 3 id. 321.

2. If Mrs. O'Hara had been under no disability, it was error to have entered a final decree for want of appearance of the return day of the writ, or during that term.

'According to the practice of the English Chancery Court,' says Mr. Justice Washington, in Pendleton v. Evans's Ex'r, 4 Wash. C. C. 337, 'a bill cannot be taken pro confesso after service of subpoena, and even after appearance, until all the processes of contempt to a sequestration have been exhausted; after which the bill is taken pro confesso, and a decree passes which is absolute in the first instance.' He then comments on the practice of the New York Chancery Court, which, instead of a proceeding in contempt, required a rule to answer to be served on the defendant; and, if this was not obeyed, the bill might be then taken pro confesso. He then adds: 'The principle which governs the practice in both these courts is, that the defendant stall not be taken by surprise, but shall have sufficient warning before a decree is entered against him by default.' He then states the practice by the rules adopted by the Supreme Court for the Federal courts, as follows: 'If the answer, the subpoena being returned executed, be not filed within three months after the day of appearance and bill filed, then defendant is to be ruled to answer, and, failing to do so, the bill may be taken for confessed, and the matter thereof decreed immediately; but this decree is only nisi, to be made absolute at the term succeeding that to which service of a copy of the decree shall be returned executed, unless cause to the contrary be shown.' And in the case of Read v. Consequa, 4 Wash. C. C. 180, where a bill on which an injunction had been allowed had remained unanswered, and without appearance of defendant, who had been duly served five years before, he refused to grant an order taking the bill pro confesso because it would be irregular.

What a contrast to the speed with which the decree was entered in the case before us!

Rules 18 and 19 of the equity practice as now existing have modified those which are mentioned by Judge Washington, and, unless the defendant demur, plead, or answer, on or before the rule-day next succeeding his appearance, the plaintiff may enter an order in the order-book that the bill be taken pro confesso, and the matter thereof decreed at the next succeeding term. But in the case before us the final decree was entered on the day fixed for appearance, or, at most, at the same term.

The standing rule now requires defendant to plead by the next rule-day after appearance, which is the same as if a special rule were taken on him to do so.

It is, therefore, clear that final decree could not be made, even under the present rules, until the term of the court next succeeding the day of default.

The remarks of Mr. Justice Washington show that these rules are not merely technical and arbitrary, but are made to prevent a defendant from losing his rights by surprise.

3. The legal title to the property in question was held by Fetterman, in trust for Mrs. O'Hara. The trust was not a naked or dry trust; for he was empowered, with her consent, to sell it, and reinvest the proceeds on the same trusts, or to mortgage it, and with the money so raised purchase other real estate.

How the decree can clear the property of this trust without having the trustee before the court it is difficult to see. This was the object of the suit; but how can it be made effectual for that purpose in the absence of the person in whom the title is vested?

We think that, in a case like this, where a woman, under the double disability of coverture and infancy, has a trustee in whom the title of the property in controversy is vested for her use, the court should have refused a decree until he was made a party.

It is said, that, after making the deed which the court ordered, the appellant is bound by it, and cannot now prosecute this appeal.

The principle is unsound. The deed recites on its face that it is made under the order of the court. The parties must either have obeyed the order of the court, or taken an appeal and given a supersedeas bond in a sum so large that they were probably unable to do it.

'In no instance within our knowledge,' says the court, in Erwin v. Lowry, 7 How. 184, 'has an appeal or writ of error been dismissed on the assumption that a release of errors was implied from the fact that money or property had changed hands by force of the judgment or decree. If the judgment is reversed, it is the duty of the court to restore the parties to their rights.' That was a case where the appellant received the money which by the decree he recovered of the appellee, and is, therefore, a stronger case than the present, as his action would seem to ratify the decree.

About three years after this decree, appellants filed a petition in the Circuit Court in the nature of a bill of review to set it aside. To this petition the appellees filed an answer, in which, among other matters, they set out a copy of another deed made by O'Hara and wife the day after (as they allege) Mrs. O'Hara became of age, and they rely on that deed here as a bar to the appeal.

It is sufficient now to say, as to that deed, that it is long subsequent to the decree, and apart from it. Its validity and force must stand or fall on its own merits, wherever and whenever they may be tried, in any issue made on them. It has nothing to do with the appeal which regards the errors of the decree, and which the appellant has a right to have reversed. When this is done, and she is placed where she ought to be in that regard, the effect of the deed now under consideration may, perhaps, be decided on a supplemental bill, setting it up as matter occurring since the commencement of the suit, or by the appellees dismissing their present suit and relying on the title acquired by that deed.

Another equally conclusive reason why we cannot consider any other matters arising under the petition and answer is, that there is no order, decree, or other action of the court on them. The record closes with the bill and answer, the latter filed May 23, 1874, and the present appeal allowed Aug. 4, 1874.

We, therefore, take no notice of this subsequent pleading, but reverse the original decree, and remand the case to the Circuit Court for such further proceedings as to right and justice may appertain.

Decree reversed.


text: Talk:O'Hara v. Macconnell/Opinion of the Court


text:
Kerrison v. Stewart

APPEAL from the Circuit Court of the United States for the District of South Carolina.

Edwin L. Kerrison and Herman Leiding, of Charleston, S.C.., May 1, 1867, conveyed to Charles Kerrison, in trust, the real estate in controversy in this suit, by deed, the material parts of which are as follows:--'This deed of two parts, made this first day of May, in the year of our Lord one thousand eight hundred and sixty-seven, between Edwin L. Kerrison and Herman Leiding, of the city of Charleston, in the State aforesaid, lately trading together as merchants, copartners, under the name and style of Kerrison & Leiding, of the first part, and Charles Kerrison, also formerly merchant, of the same place, of the second part, witnesseth: That whereas, with a view to enable them, the said Kerrison & Leiding, parties hereto of the first part, to resume some mercantile trade or business, a majority of their creditors, both in number and amount or value, have agreed to take their notes, dated the first day of December last, payable, with interest, from the first day of June, that was in A.D. 1865, two and three years after the said date, secured by a conveyance to an approved trustee of the real estate hereinafter fully and particularly mentioned and described, and intended to be conveyed to the said Charles Kerrison, hereto of the second part, in trust, for the better securing of the said notes, a schedule whereof, with the names of the said creditors and the respective amounts of the notes given to each of them, all bearing the date and payable on the days aforesaid, is hereunto annexed and made a part of these presents; and whereas all other the creditors of the said Kerrison & Leiding may be disposed to come in upon the footing of the said agreement and security, and in that event it is intended to secure to them that right, and also to provide for making the security more effectual.

'Now this deed further witnesseth, That the said Edwin L. Kerrison and Herman Leiding,. . . for the better securing their said notes, and such as may be given to their other creditors,. . . have granted, bargained, sold, and released, and by these presents do grant, bargain, sell, and release, unto the said Charles Kerrison [here follows the description of all the property]. To have and to hold all and singular the premises unto the said Charles Kerrison, his heirs and assigns for ever,. . . in trust, nevertheless, in the first place, to hold the said premises as a security for the several and respective parties, creditors of the said Kerrison & Leiding, named in the first section of the schedule hereunto annexed, for the several and respective sums set opposite to their names, with interest, as above recited; and also for such other parties, creditors of the said Kerrison & Leiding, the names of which are, as is believed and intended, to be correctly stated in the second section of the said schedule hereto annexed, who, at any time before the first day of December next, in lieu and satisfaction of their claim, shall take and accept the notes of the said Kerrison & Leiding, bearing the same date, 1st December, 1866, payable at the same time (two and three years after date), with interest from the same (1st June, 1865), each note for one-half the principal due such creditors as the creditors named in the first section of the said schedule have taken and accepted; and thereupon the proper amount shall be set opposite the names of the said creditors named in the second section of the said schedule: and, in the next place, in trust, unless the said notes be paid by the parties hereto of the first part in the mean time, then at public or private sale to sell and dispose of all and singular the premises aforesaid, or so much thereof as may be necessary, or to raise the sum required by mortgage (if practicable), in due time, to provide for the payment of the said notes as they shall fall due, together with all proper charges, expenses, and commissions to be allowed to the said Charles Kerrison, which commissions shall not exceed five per cent upon the amount of sales or sums raised by mortgage. Or if he, the said Charles Kerrison, should deem it best for the interest of all, then to sell and dispose of the said premises, or any part of them, at any time after the execution and delivery of these presents, as he may think proper, for cash, or on such credit as may enable him to meet the said notes at maturity; and if he should so sell for cash, or for cash and credit, before the maturity of the said notes, then, after paying and retaining all proper charges, expenses, and commissions, to pay the clear residue of the cash so received by him to the parties or holders of the said notes in average and proportion to the several and respective amounts due upon the said notes, if the cash be not sufficient to pay the whole thereof, and in the same way to pay the proceeds of sale of the whole property (less charges, commissions, and expenses) pro rata, if the whole be not sufficient to pay the said notes in full at their maturity.'

A. T. Stewart & Co. were named as creditors in the second schedule; but they declined to accept under the trust. Paton & Co. were named in the first schedule, and Benkard & Hutton in the second.

On Aug. 8, 1866, and before the execution of the deed of trust, Stewart & Co. sued out a summons, entitled 'Sixth Circuit of the United States of America, South Carolina District,' and tested by the Chief Justice of the United States, at Greenville, South Carolina, commanding the marshal of the United States for that district to summon Edwin L. Kerrison and Herman Leiding to appear before the clerk of the Circuit Court of the United States for the aforesaid circuit and district, at the rules to be holden at Charleston, in the aforesaid district, on the first Monday in September next, to answer, &c. The writ was signed by the clerk of the Circuit Court for the district of South Carolina, and sealed. At the day named, Kerrison & Leiding, by their attorneys, entered their appearance to the suit, before the clerk. Stewart & Co. then filed their declaration, containing several counts; to a part of which Kerrison & Leiding demurred, and to others they pleaded specially. They also pleaded the general issue. Stewart & Co. demurred to the special pleas, and the cause was placed upon the docket of the Circuit Court. At a regular term of the Circuit Court, holden at Charleston in June and July, 1867, the demurrers to the declaration were overruled, and those to the special pleas sustained. The cause then standing for trial upon the general issue, was continued. In the following August, the docket of the Circuit Court was taken to Greenville, at which place, on the first Monday in that month, a regular term of the District Court for the Western District of South Carolina was held, that court having circuit-court jurisdiction and powers in that part of the district of South Carolina embraced within the western district. Before the term, the attorneys of Stewart & Co. notified the attorneys of Kerrison & Leiding that they should insist upon the trial of the cause at that term and place. Accordingly, the parties appeared, and upon the regular call of the docket a trial was had. The case was argued by counsel on both sides, without objection to the jurisdiction. A verdict having been rendered by the jury in favor of Stewart & Co., judgment was in due form entered thereon, Sept. 24, 1868. Execution was issued upon the judgment, and returned nulla bona; whereupon Stewart & Co. filed their bill in equity in the Court of Common Pleas for the county of Charleston, a State court of South Carolina, against Edwin L. Kerrison, Herman Leiding, Charles Kerrison, Paton & Co., and Hutton (the last two as representative creditors), praying that the deed of trust to Charles Kerrison might be adjudged void as to them, and that the property covered by it might be subjected to the payment of their judgment. The Kerrisons and Leiding appeared and defended the suit. Publication was made to bring in Paton & Co. and Hutton, who were non-residents of the State; but they did not appear, or make defence. The Court of Common Pleas, June 22, 1870, after hearing, adjudged the deed to be void as to Stewart & Co. From this decree the Kerrisons and Leiding appealed to the Supreme Court of the State, where it was affirmed, March 1, 1872.

Kerrison & Leiding were adjudged bankrupts upon their own petition, April 6, 1872, and afterwards Charles Kerrison was duly appointed and qualified as their assignee. This bill was filed by him, as such assignee, in the Circuit Court for the district of South Carolina, against Stewart & Co., and the creditors provided for in the trust deed, to adjust the liens upon the property, with a view to a sale and distribution of the proceeds under the direction of the court. Stewart & Co. answered, claiming a prior lien under the operation of their judgment and the decree of the State court in their favor; and they insist that the creditors are bound by that decree. The creditors answered, alleging that the judgment in favor of Stewart & Co. was void for want of jurisdiction in the court in which it was rendered; or, if not void, that it is invalid as to them, by reason of certain irregularities in the proceedings previous to and at the time of its rendition, and that, as they were not parties to the suit in the State court, they are not bound by the decree.

The Circuit Court sustained the prior lien of Stewart & Co., and decreed accordingly. From this decree the creditors and the assignee in bankruptcy appeal to this court.

Submitted on printed arguments by Mr. Edward McCrady, Jr., for the appellant, and by Mr. Samuel Lord, Jr., for the appellees.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

title: Kerrison v. Stewart


text: Talk:Kerrison v. Stewart

title: Talk:Kerrison v. Stewart


text:
Kerrison v. Stewart/Opinion of the Court

The first question to be considered in this case is, whether the creditors of Kerrison & Leiding, who claim the benefit of the trust created by the deed to Charles Kerrison, are concluded by the decree against him in the State court. If they are, the decree of the Circuit Court must be affirmed.

It cannot be doubted, that, under some circumstances, a trustee may represent his beneficiaries in all things relating to their common interest in the trust property. He may be invested with such powers and subjected to such obligations that those for whom he holds will be bound by what is done against him, as well as by what is done by him. The difficulty lies in ascertaining whether he occupies such a position, not in determining its effect if he does. If he has been made such a representative, it is well settled that his beneficiaries are not necessary parties to a suit by him against a stranger to enforce the trust (Shaw v. Norfolk Co. R. R. Co., 5 Gray, 171; Bifield v. Taylor, 1 Beat. 91; Campbell v. R. R. Co., 1 Woods, 376; Ashton v. Atlantic Bank, 3 Allen, 220); or to one by a stranger against him to defeat it in whole or in part. Rogers v. Rogers, 3 Paige, 379; Wakeman v. Grover, 4 id. 34; Winslow v. M. & P. R. R. Co., 4 Minn. 317; Campbell v. Watson, 8 Ohio, 500. In such cases, the trustee is in court for and on behalf of the beneficiaries; and they, though not parties, are bound by the judgment, unless it is impeached for fraud or collusion between him and the adverse party.

The principle which underlies this rule has always been applied in proceedings relating to railway mortgages, where a trustee holds the security for the benefit of bondholders. It is not, as seems to be supposed by the counsel for the appellants, a new principle developed by the necessities of that class of cases, but an old one, long in use under analogous circumstances, and found to be well adapted to the protection of the rights of those interested in such securities, without subjecting litigants to unnecessary inconvenience.

Undoubtedly cases may arise in which it would be proper to have before the court the beneficiaries themselves, or some one other than the trustee to represent their interests. They then become proper parties, and may be brought in or not, as the court in the exercise of its judicial discretion may determine. But this was very clearly not a case in which such action was required; and so all the parties evidently thought, while the litigation was progressing. The trustee, as well as Kerrison & Leiding, appeared, and vigorously resisted the decree asked for. The report of the case in 3 Rich. (S.C..) N. S. 266, to which we have been referred, shows that they were represented by the same counsel who appear here for the creditors, that the argument was full, and the judgment carefully considered. In addition to this, Paton & Co. and Hutton, who are among the creditors now resisting the decree, were named as parties to the suit, and might have appeared to defend, if they had been so inclined. They seem, however, to have been then content to leave their interests in the hands of the trustee, who certainly could present their defence if he would, and against whom no charge of neglect even is now made.

It remains to determine whether Charles Kerrison was authorized to represent the creditors in proceedings against him to defeat the title he held for their security. This depends upon the intention of the parties, as expressed in the deed creating the trust and making him the trustee. Looking to that, we find that he was the 'approved trustee,' provided for in the arrangement between Kerrison & Leiding and the majority of their creditors, which was the foundation of the trust. He was to 'hold the premises' as security for the scheduled creditors who had already accepted the terms proposed, and also for such of certain other creditors named in a second schedule as should thereafter accept. If the debts so secured were not paid by Kerrison & Leiding, it was made his duty to provide the means for their payment, as well as the payment of all proper charges and expenses, either by a public or private sale of the property, or by mortgage, if practicable. If he should deem it best for the interest of all, he was authorized to sell the whole or any part of the property at any time for cash, or on such credit as would enable him to meet the debts at maturity; but if he did sell before maturity, the cash received, after deducting all proper charges, &c., was to be divided amongst the creditors in proportion to the amounts due them respectively.

From this it appears that he was not only invested with the legal title to the property, but that all parties relied upon his judgment and discretion for the protection of their respective interests. A clear intent is manifested of relieving the creditors from the necessity of looking personally to the conversion of the securities, or to the preservation of the trust. While the trustee is nowhere in express terms invested with the power to give receipts for purchase-money upon sales made, it is perfectly apparent that such must have been the intention of the parties. The wide range of discretion allowed him in making the security available for the payment of the debts is entirely inconsistent with the idea that purchasers or mortgagees must look to the application of their moneys after payment actually made to him. The creditors cannot interfere with his discretion in making sales, so long as he keeps within the general scope of his powers; neither can they prescribe the terms upon which he shall sell. In all these particulars he has been authorized to act in such manner as he shall deem best for the interests of both parties, debtors as well as creditors. The debtors rely upon his judgment to avoid unnecessary sacrifice; and the creditors must be satisfied, if, at the proper time, he is found to have done all that could reasonably be required of him to subject the securities to the payment of their several demands.

With these facts before us, it is impossible to come to any other conclusion than that, as to strangers, he did represent the trust and its property. Purchasers must go to him to make their purchases, and adverse claimants may properly look to him as the party against whom alone they are called upon to assert their rights. If the creditors, mindful of their interests, are dissatisfied with the manner in which he represents them in suits that are pending, they may, under proper circumstances, intervene, and ask to be made parties, so as to speak for themselves; but their adversary need not go after them, except under the direction of the court.

There is no need of inquiring whether this was a case in which one of the creditors might be brought in and made to represent all; for the trustee is himself the chosen representative of all, and whatever binds him must bind them.

It follows that the creditors are concluded by the decree of the State court; and that necessarily disposes of this case, without further inquiry as to the other important questions argued before us. The object of the suit in that court was to avoid the deed to Charles Kerrison, as against the judgment of Stewart & Co.; and the decree was in accordance with the prayer of the bill. The validity of the judgment was necessarily involved in the suit; and the decree, as rendered, could not have been given except by establishing it. This is expressly admitted by the creditors in their answer to this bill; for they say, 'That the said decrees were given upon the allegation of the bill of complaint of the said A. T. Stewart & Co., among which was the material allegation, without which his said complaint could not have been sustained, that they, the said A. T. Stewart & Co., had recovered, and at the time of their bill filed had, a judgment in this honorable court, upon which they had sued out an execution of fieri facias,' &c.

Decree affirmed.


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


text:
Tilton v. Cofield

APPEAL from the Supreme Court of the Territory of Colorado.

Argued by Mr. George T. Curtis and Mr. George H. Williams for the appellants, and submitted on printed arguments by Mr. Amos Steck for the appellees.

MR. JUSTICE SWAYNE delivered the opinion of the court.

title: Tilton v. Cofield


text: Talk:Tilton v. Cofield

title: Talk:Tilton v. Cofield


text:
Tilton v. Cofield/Opinion of the Court

On the 28th of August, 1865, the appellants sued out of the District Court of Arapaho County, Col., a writ of attachment against the property of Judson H. Dudley and Thomas P. Ames, for the sum of $2,591.44. The indebtedness was stated in the affidavit to be upon an account for goods sold and delivered. On the same day, the writ was served by attaching the real estate in controversy. A declaration was duly filed. The damages were laid at $3,000. On the 27th of January, 1865, judgment was rendered for $2,591.44, and costs. This judgment was reversed by the Supreme Court of the Territory on the 10th of February, 1868. On the 9th of March, 1867, Dudley, by Charles G. Cheever, his attorney, conveyed a large amount of property, including all that attached under the writ of appellants, to David Moffit, except two lots, which Dudley himself conveyed to the Hallecks. The other appellees derive their title from Moffit. The power of attorney to Cheever was so far defective, that only an equity was vested in Moffit, and nothing more passed to those holding under him. On the 12th of September, 1868, the Tiltons, by leave of the court, filed in the attachment suit an amended affidavit and declaration, whereby were included, as a demand in favor of the plaintiffs, a promissory note executed to them by Dudley and Ames, dated Sept. 19, 1864, for $2,592.90, and bearing interest at the rate of two per cent per month, until paid. This note was given to balance the account set forth in the prior proceedings, and represented the same debt. On the 1st of November, 1869, judgment was rendered against Dudley by confession for $5,652.80, and an order was made for the sale of the property attached. Pursuant to this order, the sheriff sold the attached property at public vendue to the appellants for the sum of $6,345.25, and on the 13th of December, 1871, executed a deed to them.

The appellees filed a bill and supplemental bill, seeking to vacate the sale and annul the conveyance by the sheriff. The court decreed that the order of sale and the proceedings thereon touching the premises were nullities; that the sheriff's deed to the appellants was void; that the property should be for ever discharged from the lien of the judgment; and that the Tiltons should be perpetually enjoined from intermeddling with or selling it.

The record discloses no ground for any imputation of fraud against the appellants. The good faith of the account, the validity of the note, and the propriety of the amount for which the judgment was recovered, as between the parties to attachment proceedings, are not controverted. The original demand was an honest one, arising in the regular course of commercial dealings. The appellants are bona fide creditors, and have simply pursued the appropriate means for the collection of what was owing to them. Fraud is not an element in the controversy. The case requires no further consideration in this aspect.

Nor is it denied that the court by which the judgment in the attachment was rendered had full jurisdiction.

In Voorhes v. The Bank of the United States, 10 Pet. 449, the defendant in an action of ejectment was the defendant in error. He claimed title from certain proceedings in attachment in Ohio. The following objections were taken to them: 1. No affidavit, as required by the statute, was found filed with the clerk; and the law provided, that, if this were not done, the writ should be quashed on motion. 2. Three months' notice of the attachment was to be given in a newspaper, and fifteen days' notice was to be given by the auditors. It did not appear that either had been done. 3. The defendant was to be called three times, and his defaults recorded. No such record appeared to have been made. 4. The auditors were not to sell until after twelve months. It did not appear when the sale was made. 5. The return showed a sale to Foster and Woodward; the deed was made to Stanley, and no connection between them appeared in the record.

The court there being competent to take jurisdiction, and having acquired jurisdiction by the seizure of the property, this court held that all its acts and orders made during the progress of the case were beyond the reach of collateral inquiry, and could be assailed only in a direct proceeding had for that purpose before a competent tribunal.

In Grignon's Lessee v. Astor, 2 How. 341, the controversy grew out of a license given by the County Court to sell the property of a deceased person. This court applied the same principles. It was said,--

'The granting the license to sell is an adjudication upon all the facts necessary to give jurisdiction, and, whether they existed or not, is wholly immaterial, if no appeal is taken. The rule is the same, whether the law gives an appeal or not. If none is given from the decree, it is conclusive on all whom it concerns. . . . A purchaser under it is not bound to look beyond the decree. If there is error in it of the most palpable kind; if the court which rendered it have, in the exercise of jurisdiction, disregarded, misconstrued, or disobeyed the plain provisions of the law which gave them the power to hear and determine the case before them,-the title of the purchaser is as much protected as if the adjudication would stand the test of a writ of error.'

The lines which separate what is void from what is erroneous is clearly drawn in the former case.

The eighth section of the local statute under which the appellants' suit was instituted, declares,--

'No writ of attachment shall be quashed nor the property taken thereon restored, any garnishee discharged, nor any bond by him given cancelled, nor any rule entered against the sheriff discharged on account of any insufficiency of the original affidavit, writ of attachment, or attachment bond, if the plaintiff, or some credible person for him, shall cause a legal and sufficient affidavit or attachment bond to be filed or the writ to be amended in such time or manner as the court in their discretion shall direct; and in that case the cause shall proceed as if such proceedings had been originally sufficient.'

The amendments here in question were all within the equity, if not the letter, of this section. The act provides for the amendment of the writ. No such amendment was made. The grasp of the process was confined to the property originally attached. No attempt was made to reach any other. The description of the cause of action was changed, but in the view of equity, and in point of fact, it was substantially the same with that originally described. Allowing amendments is incidental to the exercise of all judicial power, and is indispensable to the ends of justice. Usually, to permit or refuse, rests in the discretion of the court; and the result in either case is not assignable for error. This subject was fully examined in Tiernan's Executors v. Woodruff, 5 McLean, 135. It is there shown, that both in the English and American courts amendments have been allowed in well-considered cases, for the purpose of introducing into the suit a new and independent cause of action. This was going further than the court went in permitting the amendments made by the appellants. It has also been held, upon full consideration, that 'courts have the power to amend their process and records, notwithstanding such amendment may affect existing rights.' Greene v. Cole, 13 Ired. Law, 425.

Where no local statute or rule of local law is involved, the power to amend is the same in attachment suits as in others. Cases of this kind, too numerous to be cited, may be found, in which amendments in the most important particulars were permitted to be made. We refer to some of these adjudications: McKnight v. Strong, 25 Ark. 212; Talcott v. Rosenbury, 8 Abb. Pr. N. S. 287; Vanderheyden v. Gary, 3 How. Pr. 367; Tully v. Herrin, 44 Miss. 627; Wadsworth v. Cheeney, 13 Iowa, 576; Jackson v. Stanley, 2 Ala. 326; Winkle v. Stevens, 9 Iowa, 264; Wood v. Squires, 28 Mo. 397; Scott v. Macy, 3 Ala. 250; Johnson v. Huntington, 13 Conn. 47.

If the amendments objected to by the appellees were improperly allowed, it was at most only an error, and in no wise affected the judgment while unreversed, or the validity of the order of sale, or of the sale and conveyance made under them, to the appellants. They have a perfect legal title, unless it is overcome by the case made in the record by the complainants.

We have already held that there was no fraud on the part of the Tiltons. A case more free from that vice can hardly be imagined. This takes away the jurisdictional foundation of the complainants' case. In the absence of fraud, a court of equity cannot collaterally question the conclusiveness of a judgment at law.

Nor can a court of equity turn itself into a court of review, and correct the errors of a court of law. This is alien to its jurisdiction, and beyond the sphere of its power and duties. Cameron v. Bell, 2 Dana, 328; De Rymer v. Cantellow, 2 I. C. 85; Shollenkirk v. Wheeler, 3 id. 275. As well might a court of law undertake to perform a like function with respect to a court of equity. Each is independent of the other. They act on different principles, and, except where some recognized ground of equity jurisdiction is concerned, are each alike bound to recognize the validity and conclusiveness of the record of what the other has done. Equity in such cases does not contradict, but supplements. It does in this way what right and justice require, and what, from the inflexibility of the principles upon which a court of law proceeds, it could not do. Any thing touching the amendments out of which this controversy has grown were no more open to inquiry in a court of equity than in another and independent legal forum.

The decree below in this respect involved a usurpation and the invasion of a domain, upon which the court had no right to enter. There being no fraud, neither the judgment nor any thing which preceded or followed it could be properly made the subject of review by that tribunal.

The authorities to which we have referred are conclusive upon the subject.

There is another objection to the case of the appellees, which must not be overlooked. They are not subsequent attaching creditors, nor creditors at all; they are purchasers lite pendente. The law is, that he who intermeddles with property in litigation does it at his peril, and is as conclusively bound by the results of the litigation, whatever they may be, as if he had been a party to it from the outset. Inloe's Lessee v. Harvey, 11 Md. 524; Salsbury v. Benton, 7 Lans. 352; Harrington v. Slade, 19 Barb. S.C.. 162; 1 Story's Eq., sect. 406. The appellees voluntarily took the position they occupy. They chose to buy a large amount of property, including that in controversy, from the fugitive debtor. This was done after the latter had been seized under the writ of attachment, and while the suit in which it was issued was still pending. They took the title subject to the contingencies of the amendments that were made, and of every thing else, not coram non judice, the court might see fit to do in the case. The attachment might be discharged, or the judgment might be larger than was then anticipated. They took the chances, and must abide the result. Having obtruded themselves upon the property attached, they insist that their purchase narrowed the rights of the plaintiffs and circumscribed the jurisdiction of the court. Such is not the law. After their purchase, the court, the parties, and the res, stood in all respects as they stood before; and the judgment, sale, and conveyance have exactly the same effect as if the appellees and the facts upon which they rely had no existence.

In some of the States, peculiar systems of jurisprudence, with respect to suits in attachment, have grown up, and every thing in that connection is held to be stricti juris. In other States, more liberal rules prevail. We do not mean to contravene the former. In cases arising in such States, we should be bound to apply the local law. In the Territory where this controversy arose, it does not appear that any system touching the subject is yet established. We have, therefore, felt at liberty to apply general principles to the case in hand.

Decree reversed, and case remanded with directions to dismiss the bill.

title: Tilton v. Cofield/Opinion of the Court


text: Talk:Tilton v. Cofield/Opinion of the Court


text:
French v. Fyan

ERROR to the Circuit Court of the United States for the Eastern District of Missouri.

Argued by Mr. D. T. Jewett for the plaintiff in error, and by Mr. Montgomery Blair for the defendants in error.

MR. JUSTICE MILLER delivered the opinion of the court.

title: French v. Fyan


text: Talk:French v. Fyan

title: Talk:French v. Fyan


text:
Page:Folklore1919.djvu/370

4 With the Macedonians, by C. Stephanove, presented by the Author.

Bulgares et Grecs, by J. Ivanoff, presented by the Author.

Les luttes politiques de Bulgares Macedoniens, by G. Strezoff, presented by the Author.

Le Bulgariè et son peuple, by N. Mikoff, presented by the Author.

La Serbe et le mouvement national bulgare, by M. Mintschew, presented by the Author.

Pour la peuple Bulgare, by Prof. Dr. A. Fosel, presented by the Author.

Un peuple calomnie, by B. Vélianoff, presented by the Author.

minutes of the last Meeting were read and confirmed.

The election of Captain C. H. Crace and Mr. Geoffrey Phibbs as members of the Society and the enrolment of the Penzance Library and Messrs. Lehmann and Stage of Copenhagen as subscribers were announced.

The resignations of Sir B. C. A. Windle, Mrs. Edge Partington, and Col. Basevi were also announced.

Dr. Gaster gave an address on “Roumanian Charms and Conjurations,” his daughter reading specimens of the Charms he had collected by way of illustration; and in the discussion which followed the President, Miss Hull, Miss Rashleigh, Mr. A. R. Wright and Sir Everard Thurn took part.

The Meeting terminated with a hearty vote of thanks to Dr. Gaster for his address and to his daughter for her reading in illustration of it.

title: Page:Folklore1919.djvu/370


text:
French v. Fyan/Opinion of the Court

This action of ejectment was tried by the court below without a jury, by agreement of the parties; and the only finding made by the court was a general one in favor of defendant, on which judgment was rendered in bar of the action.

The single question in this case is raised on the refusal of the court to receive oral testimony to impeach the validity of a patent issued by the United States to the State of Missouri for the land in question, under the act of 1850, known as the 'swamp-land grant,' the purpose being to show by such testimony that it was not in point of fact swamp-land within the meaning of that act.

The bill of exceptions shows that the land was certified, in March, 1854, to the Missouri Pacific Railroad Company, as part of the land granted to aid in the construction of said road by the act of June 10, 1852; and the plaintiff, by purchase made in 1872, became vested with such title as this certificate gave.

To overcome this prima facie case, defendant gave in evidence the patent issued to Missouri, in 1857, under the swampland act, and it was admitted that defendant had a regular chain of title under this patent.

It was at this stage of the proceeding that the plaintiff offered to prove, in rebuttal, by witnesses who had known the character of the land in dispute since 1849 till the time of trial, that the land in dispute was not swamp and overflowed land, made unfit thereby for cultivation, and that the greater part thereof is not and never has been, since 1849, wet and unfit for cultivation.

But the court ruled, that, since the defendant had introduced a patent from the United States to the State for the said land under the act of Sept. 28, 1850, as swamp-land, this concluded the question, and the court, therefore, rejected said parol testimony; to which ruling of the court the plaintiff then and there excepted.

This court has decided more than once that the swamp-land act was a grant in praesenti, by which the title to those lands passed at once to the State in which they lay, except as to States admitted to the Union after its passage. The patent, therefore, which is the evidence that the lands contained in it had been identified as swamp-lands under that act, relates back and gives certainty to the title of the date of the grant. As that act was passed two years prior to the act granting lands to the State of Missouri, for the benefit of the railroad, the defendant had the better title on the face of the papers, notwithstanding the certificate to the railroad company for the same land was issued three years before the patent to the State, under the act of 1850. For while the title under the swampland act, being a present grant, takes effect as of the date of that act, or of the admission of the State into the Union, when this occurred afterwards, there can be no claim of an earlier date than that of the act of 1852, two years later, for the inception of the title of the railroad company.

The only question that remains to be considered, is, whether, in an action at law in which these evidences of title come in conflict, parol testimony can be received to show that the land in controversy was never swamp-land, and, therefore, the patent issued to the State under that act is void.

The second section of the swamp-land act declares, 'That it shall be the duty of the Secretary of the Interior, as soon as practicable after the passage of this act, to make out an accurate list and plats of the land described as aforesaid, and transmit the same to the governor of the State, and, at the request of the governor, cause a patent to be issued to the State therefor, and on that patent the fee-simple to said lands shall vest in said State, subject to the disposal of the legislature thereof.' It was under the power conferred by this section that the patent was issued under which defendant holds the land. We are of opinion that this section devolved upon the Secretary, as the head of the department which administered the affairs of the public lands, the duty, and conferred on him the power, of determining what lands were of the description granted by that act, and made his office the tribunal whose decision on that subject was to be controlling.

We have so often commented in this court on the conclusive nature and effect of such a decision when made and evidenced by the issuance of a patent, that we can do no better than to repeat what was said in the case of Johnson v. Towsley, 13 Wall. 72, where the whole question was reviewed both on principle and authority. In that case, it had been strongly argued that the specific language of one of the statutes concerning preemption on the public lands made the decision of the Commissioner of the General Land-Office conclusive everywhere and under all circumstances. The court responded to this argument in this language:--

'But while we find no support to the proposition of the counsel for plaintiffs in error in the special provisions of the statute relied on, it is not to be denied that the argument is much stronger when founded on the general doctrine, that when the law has confided to a special tribunal the authority to hear and determine certain matters arising in the course of its duties, the decision of that tribunal, within the scope of its authority, is conclusive upon all others. That the action of the land-office in issuing a patent for any of the public land, subject to sale by pre-emption or otherwise, is conclusive of the legal title, must be admitted under the principle above stated; and in all courts, and in all forms of judicial proceedings where this title must control, either by reason of the limited powers of the court or the essential character of the proceedings, no inquiry can be permitted into the circumstances under which it was obtained. On the other hand, there has always existed in the courts of equity the power, in certain classes of cases, to inquire into and correct mistakes, injustice, and wrong in both judicial and executive action, however solemn the form which the result of that action may assume, when it invades private rights; and by virtue of this power the final judgments of courts of law have been annulled or modified, and patents and other important instruments issuing from the crown or other executive branch of the government have been corrected or declared void, or other relief granted.'

We see nothing in the case before us to take it out of the operation of that rule; and we are of opinion that, in this action at law, it would be a departure from sound principle, and contrary to well-considered judgments in this court, and in others of high authority, to permit the validity of the patent to the State to be subjected to the test of the verdict of a jury on such oral testimony as might be brought before it. It would be substituting the jury, or the court sitting as a jury, for the tribunal which Congress had provided to determine the question, and would be making a patent of the United States a cheap and unstable reliance as a title for lands which it purported to convey.

The learned judge of this court, who presides in the California circuit, has called our attention to a series of decisions of the Supreme Court of that State in regard to this swamp-land grant, commencing with 27 California Reports, 87, in which a different doctrine is announced. But with all the respect we have for that learned court, we are unable to concur in the views therein expressed. The principle we have laid down is in harmony with the system which governs the relations of the courts to the officers of the executive departments, especially those having charge of the public lands, as we have repeatedly decided, and we must abide by them.

We do not mean to affirm that there is any thing in the case before us, as it is here presented, which would justify a resort to a court of chancery; we merely mean to express our conviction, that the only mode by which the conclusive effect of the patent in this case can be avoided, if it can be done at all, is by a resort to the equitable jurisdiction of the courts.

The case of Railroad Company v. Smith, 9 Wall. 95, is relied on as justifying the offer of parol testimony in the one before us. In that case, it was held that parol evidence was competent to prove that a particular piece of land was swamp-land, within the meaning of the act of Congress.

But a careful examination will show that it was done with hesitation, and with some dissent in the court. The admission was placed expressly on the ground that the Secretary of the Interior had neglected or refused to do his duty; that he had made no selection or lists whatever, and would issue no patents, although many years had elapsed since the passage of the act. The court said, 'The matter to be shown is one of observation and examination; and whether arising before the secretary, whose duty it was primarily to decide it, or before the court whose duty it became, because the secretary had failed to do it, this was clearly the best evidence to be had, and was sufficient for the purpose.' There was no means, as this court has decided, to compel him to act; and if the party claiming under the State in that case could not be permitted to prove that the land which the State had conveyed to him as swampland was in fact such, a total failure of justice would occur, and the entire grant to the State might be defeated by this neglect or refusal of the secretary to perform his duty. Gaines v. Thompson, 7 Wall. 347; Secretary v. McGarrahan, 9 id. 298; Litchfield v. The Register and Receiver, id. 575.

There is in this no conflict with what we decide in the present case, but, on the contrary, the strongest implication, that if, in that case, the secretary had made any decision, the evidence would have been excluded.

Judgment affirmed.

title: French v. Fyan/Opinion of the Court


text: Talk:French v. Fyan/Opinion of the Court


text:
Bank of Kentucky v. Adams Express Company Planters' National Bank of Louisville

ERROR to the Circuit Court of the United States for the District of Kentucky.

These are actions by the plaintiffs in error to recover the value of certain packages containing money, which, on their transportation over the Louisville and Nashville Railroad in charge of a messenger of the defendant in error, were destroyed by fire. There was a verdict and judgment in each case for the defendant. The plaintiffs sued out these writs of error. The facts are set forth in the opinion of the court. So much of the instructions of the court below as are referred to but not incorporated in the opinion are as follows:--

'If the jury believe that the teller of the Louisiana National Bank presented the bill of lading to the agent of the express company for his signature, with the blanks filled, and at such time delivered to the agent the package of money, without disclosing who was the owner of it, but addressed to the plaintiff at Louisville that the bill of lading was signed and redelivered to the teller, and forwarded to the plaintiff at Louisville, then the bill of lading thus signed constitutes the contract, and all the exceptions in it are a part of the contract, no matter whether each or all of them were known to the Louisiana National Bank or not; and the plaintiff is bound by the contract, whether it expressly authorized the Louisiana National Bank to make it or not. The evidence tending to show that the bill of lading was not read at the time of the signing, and that nothing was said about the exceptions contained in it, is immaterial.'

'It is claimed by the plaintiff that the defendant was wanting in care in the use of the safe or box in which the package was at the time of the loss. If there was any such want of reasonable care in this particular, the defendant is undoubtedly liable; but if the safe was such as prudent persons engaged in like employment generally use for the purpose, there was no want of care, and the defendant is not responsible for want of care in this particular.'

Mr. John M. Harlan for the plaintiffs in error.

While the right of a common carrier to contract for a reason able limitation of his responsibility cannot be disputed, it is equally clear that such responsibility cannot be restricted or qualified, unless he 'expressly stipulates for the restriction and qualification.' York Company v. Central R. R., 3 Wall. 107. The exemption should be specific and certain, leaving no room for controversy. ''New Jersey Steam Nav. Co. v. Merchants' Bank'', 6 How. 383; Railroad Co. v. Manufacturing Co., 16 Wall. 329.

A common carrier does not cease to be such because he has limited his liability by a special contract. Davidson v. Graham, 2 Ohio St. 140; Railroad Company v. Lockwood, 17 Wall. 357; Hooper v. Wells, Fargo, & Co., 27 Cal. 11; Christenson v. ''Am. Ex. Co.'', 15 Minn. 270. Nor will he be permitted to stipulate for immunity for his own negligence, or that of his servants or agents, even though he can exercise no control over their actions. Ashmore v. Penn. S. T. Co., 4 Dutch. 180; Railroad Company v. Lockwood, supra; Christenson v. ''Am. Ex. Co., supra; Welch v. Boston & Albany R. R. Co.'', 15 Am. Law Reg., March, 1876, No. 3, p. 140.

The Louisville and Nashville Railroad Company was, in contemplation of law, for the purposes of transportation, the agent of the defendant in error. The latter is, therefore, responsible for the negligence of the former. Hooper v. Wells, Fargo, & Co., supra; Christenson v. ''Am. Ex. Co., supra; Buckland v. Adams Ex. Co.'', 97 Mass. 124; Redfield on Carriers, sect. 56, note 27.

Mr. G. C. Wharton for the defendant in error.

The right of a common carrier to limit by special contract his common-law liability is fully settled. Express Company v. Caldwell, 21 Wall. 267; York Company v. Central Railroad, 3 id. 107; Railroad Company v. Lockwood, 17 id. 357; New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344.

The bill of lading was evidence of the contract between the parties. The plaintiffs in error accepted it without objection. They are therefore bound by the conditions therein expressed. Brooman v. ''Am. Ex. Co., 21 Wis. 152; Grace v. Adams Ex. Co.'' 100 Mass. 505; York Company v. Central Railroad, supra; Railroad Company v. Androscoggin Mills, 22 Wall. 595; Meyer, Agent, v. Harden's Ex. Co., 24 How. Pr. 290; Railroad Company v. F. & M. Bank, 20 Wis. 123; Parsons v. Monteath and Hazard, 13 Barb. 353; Dorr v. Steam Navigation Company, 1 Kern. 485; Wells v. New York Central Railroad Company, 24 N. Y. 180.

Although the defendant in error remains a common carrier, its liability was limited to that of an ordinary bailee for hire, in reference to the particular limitations in the contract. It is not, therefore, responsible for negligence, or the want of ordinary care of persons over whom it had no control. Railroad Company v. Lockwood, supra; York Company v. Central Railroad, supra; New Jersey Steam Navigation Company v. Merchants' Bank, supra; Dorr v. Steam Navigation Company, supra; Meyer, Agent, v. Harden's Ex. Co., supra.

If the railroad or any of its employes were negligent, the plaintiffs in error have their remedy against it. New Jersey Steam Navigation Company v. Merchants' Bank, supra.

Neither the relation of master and servant nor that of principal and agent existed between the express messenger and the railroad company. Union Pacific Railroad v. Nickols, 8 Kans. 505; Yeomans v. The Centra Casta Steam Navigation Company, 44 Cal. 71.

The railroad company not being the servant of the defendant in error, nor under its control, the doctrine of respondeat superior does not apply. Blake v. Ferris, 5 N. Y. 48.

MR. JUSTICE STRONG delivered the opinion of the court.


text: Talk:Bank of Kentucky v. Adams Express Company Planters' National Bank of Louisville