text:
Hudgins v. Kemp (61 U.S. 45)

THIS was an appeal from a decree of the Circuit Court of the United States for the eastern district of Virginia. The bill was originally filed in the Circuit Court by Edmund Christian, general assignee in bankruptcy in said district, on the 19th of May, 1845; and upon his death, Wyndham Kemp was appointed assignee, on the 12th of May, 1852, by the District Court. After that, Kemp prosecuted the suit.

On or about the 17th of February, 1843, John L. Hudgins filed his petition in the District Court of the United States for the eastern district of Virginia, praying that he might have the benefit of the act of Congress of August 19, 1841, to establish a uniform system of bankruptcy throughout the United States, and that he might be deemed and declared a bankrupt under said law; and the usual proceedings having been taken upon said petition, the said John L. Hudgins was, on the 20th May, 1843, duly adjudged and declared to be a bankrupt; and Edmund Christian, the general assignee in bankruptcy in said district, was thereupon duly appointed, by said court, the assignee in bankruptcy of said John L. Hudgins.

Other proceedings were had in the District Court, which it is not material here to mention.

On the 17th of May, 1845, the following points and questions were adjourned to the Circuit Court for decision:

1. Is the allegation of the objectors to the discharge of the bankrupt, that the deed executed by said John L. Hudgins, bearing date the 1st day of March, 1842, to Elliott W. Hudgins, conveying all the rest of his land in York, not conveyed by a previous deed of 6th September, 1839, is a fraudulent deed within the meaning of the bankrupt law, sustained by the evidence in this case?

2. Is the allegation of the objectors, that the deed executed by said John L. Hudgins to Houlder Hudgins, dated 19th July, 1842, stating a consideration of $4,000, is a fraudulent deed within the meaning of the bankrupt law, sustained by the proofs?3. Is the deed of the 21st February, 1842, in which John L. Hudgins conveys to Robert Hudgins, for an alleged consideration of $5,000, his tract of land in Matthews county, proved to be a fraudulent deed within the meaning of the bankrupt law?

4. Are the allegations of the objectors, that the petitioner concealed himself and his effects, so as to prevent the execution of process, and the deeds aforesaid were made for the purpose of eloigning and removing his property so as to defraud his creditors, shown to be true?

5. Whether it is proved that the said John L. Hudgins has not made a true and faithful schedule of all his estate and property, nor a full and true statement of all the debts due him?

6. Finally, whether the petitioner, on any or all of the above grounds, ought to be refused a discharge from his debts?

On the 19th of May, two days after the above questions had been adjourned to the Circuit Court, the assignee filed his bill in that court, alleging that the conveyances above mentioned were fraudulent and void, and praying that they might be set aside. The proceedings which took place thereupon are set forth in the opinion of the court.

On the 27th of June, 1855, the Circuit Court passed its final decree, confirming the report of the master, and ordering the property in question to be sold by the assignee. From this decree the defendants appealed to this court.

The case was argued by Mr. Lyons and Mr. Johnson for the appellant, and by Mr. Robinson and Mr. Patton for the appellees.

This being a case where much of the arguments was employed in the examination and comparison of evidence, only the points raised upon each side can be mentioned.

For the appellants:

I. There is no proof of any fraud upon the part of Robert Hudgins, but, on the contrary, the proof is clear and unquestioned, that he paid the cash price which his deed calls for, to John L. Hudgins, which, with the charges upon the property, amounted to its full value. Neither is there any proof of fraud in this transaction by John L. Hudgins.

II. There is an abortive attempt at such proof. But if it were shown by the clearest proof that John L. Hudgins had acted with the most covinous and fraudulent design in making his conveyance, that design would not affect Robert Hudgins, unless it was shown that Robert Hudgins participated in it, or, at the least, had knowledge of it. A purchaser of property for valuable consideration can never be affected, and have his title destroyed, because the vendor sold from a base motive-the motive to defraud his creditors-at least, unless he have knowledge of the motive.

III. Because a sale of property for valuable consideration, even by an insolvent, is not in fact or law a fraud upon any creditor who is merely a creditor at large, the fraud, if any be committed, consisting in the concealment or misapplication of the money arising from the sale; and no purpose was manifested or even entertained to defraud any judgment creditor, because the deed upon its face conveyed the property subject to the rights of the judgment creditor.

IV. Whether the deed was void as to creditors or not, it was good between the parties to it, and no decree should have been rendered, vacating the deed, and directing a sale of the property, until an account had been taken of the debts, for the purpose of ascertaining whether there were any unpaid and recoverable; and if, upon the report of such account, it appeared that there were such debts, the defendant, Robert Hudgins, had a right to redeem his land by paying them, or so much of the land might then have been sold as would satisfy them. It was error to sell the whole land, without first ascertaining that there were debts sufficient to absorb it, and without allowing the defendant the privilege of redeeming it.

V. Because the judgment creditors had no right to do more than extend the lands, unless it was shown, as it was not, that the profits would not in a reasonable time extinguish the debts. But they had no right, because by proof of their debts before the commissioner the lien of the judgment was extinguished.

VI. It was error to charge Robert Hudgins with rents and profits prior to the filing of the bill against him. Up to that time, he held and claimed the property as his own, as a purchaser for valuable consideration; and the utmost that the plaintiff could claim of him, would be the right of a judgment creditor, and his right to rents and profits is never extended retroactively beyond the filing of the bill; and in this case the error and injustice of the rule which has been applied to the defendant is most remarkable and obvious. The plaintiff charges that the conveyance to the defendant was fraudulent, and therefore he claims the right to recover of him the rent of the property in one case, and the profits in another, upon the ground that he has actually enjoyed the property in the one case, and received the profits in the other; and yet the plaintiff has taken testimony that the defendant did not occupy the property for which rent is charged, but John L. Hudgins did; and that is relied upon as evidence of the fraud. Now, it cannot be true that he did not occupy it, and therefore merely pretended to purchase it, and therefore has been guilty of a traud, and yet he did occupy it, and therefore is not guilty of a fraud, yet the decree practically affirms both.

And in respect to the profits. The defendant is charged with profits which there is no proof that he received.

VII. The plaintiff is seeking to recover debts, if he has any right at all, which were due primarily by Thomas Hudgins, for which John L. Hudgins was security. Thomas Hudgins, by his deed of the ___ day of _____, conveyed a large amount of property to trustees, for the benefit of those creditors, giving them priority over the other creditors who are also secured by the said conveyance. The creditors accepted the conveyance, and took under it. The court should have required them to account for the property conveyed by that deed, before it authorized them to take the property of John L. Hudgins, if the property in question was his, and still more, before it authorized them to take the property from another, who claimed it as purchaser for valuable consideration, and certainly held it by a title valid against John L. Hudgins.

The property thus conveyed may have been sufficient to satisfy all the debts, and they may have been paid; the answers express the belief that they have been; an account of the trust fund could only determine the point. By accepting the deed, and taking under it, the creditors assumed the responsibility of fairly accounting for the property conveyed; they cannot use, or hold subject to their use, the property of Thomas Hudgins, and yet claim that of John L. Hudgins, or his vendor, for the same debts.

VIII. The decree, which is final, takes no notice of the rights of Robert Hudgins, as against John L. Hudgins, and makes no provision for the restitution to him of the surplus which might remain of the proceeds of the sales of the property after satisfying the debts, although there may be such surplus; and if there shall be, Robert Hudgins is certainly entitled to it, because his title, if not good against the creditors of John L. Hudgins, is good against every one else.

IX. The court did not pass upon the exceptions to the depositions, and therefore admitted the testimony excepted to.

The following authorities were relied upon in the argument:

Shirley v. Long, 6 Rand., 736; Davis v. Turner, 4 Gratt., 422; Blow v. Maynard, 2 Leigh, 29; Fones v. Rice, 9 Gratt., 568; Ex parte Christy, 3 How., 292; Pettiplace v. Sales, 4 Mason C. C. R., 312; Hapkerk v. Randolph, 2 Brack. R., 132; Randall v. Philip, 3 Mason C. C. R., 378; Gregg v. Sayre, 8 Pet., 244; Clough v. Thompson, 7 Gratt., 26; 1 Story Eq., p. 364; 1 Story Eq., 588; Dorr v. Shaw, 4 John. Ch. R., 17; Smith v. Burton, 13 Pet., 464.

For the appellee:

1. The decree is right, and ought to be affirmed. The deed from Robert Hudgins to John L. Hudgins was contrived of fraud, with intent to defraud the creditors of the said John L. Hudgins of their lawful debts, and was therefore properly set aside in toto, under the Virginia act in 1 R. C., 1819, p. 372, c. 101, § 2; Chamberlayne, &c., v. Temple, 2 Rand., 395; Garland v. Rives, 4 ib., 282; Shirley v. Long, 6 ib., 735, and other cases cited in 1 Rob. Pract., old ed., 512, 554; and under the bankrupt act of 1841. Sands, &c., v. Codwise, &c., 4 Johns., 559, also 582 to 600; Codwise v. Gelston, 10 ib., 517; Arnold, &c., v. Maynard, 2 Story, 352; Hutchins v. Taylor, &c., 5 Law Reporter, 289; Cornwell's appeal, 7 W. and S., 311; McAllister v. Richards, 6 Barr, 133. For the assignee is not only vested by the law with all the rights of the bankrupt, but with the rights of creditors also. He may set aside a fraudulent conveyance of the bankrupt, which the bankrupt himself could not do. McLean v. Lafayette Bank, 3 McLean, 189, 587; McLean v. Malane, &c., ib., 199; McLean v. Johnson, &c., ib., 202; Everett v. Stone, 3 Story, 456; Peckham v. Burows, ib., 544; Freeman v. Deming, 3 Sandford's Ch. R., 332; Shauhan, &c., v. Wherritt, 7 How., 627; Buckingham, &c., v. McLean, 13 ib., 170.

2. There is no error as to the rents and profits. An account of rents and profits was decreed from the time of the act of bankruptcy, in Sands, &c., v. Codwise, &c., 4 Johns., 589, 600. On the same principle, it was proper here to decree rents and profits from the filing of the petition; for 'the act of bankruptcy in England is tantamount to a filing of the petition under our statutes.' McLean v. Malane, &c., 3 McLean, 200. The pendency of the petition is constructive notice thereof to the grantee in the deed. Morse v. Godfrey, & c., 3 Story, 391. If there was, before that time, a right in Robert Hudgins to let the avails or annual income be expended at his discretion, without responsibility to any one, there could be no such right afterwards, (4 Johns., 588.) Under the voluntary system, the assignee derives as much right to rents and profits from the petition and decree, as he derives under the involuntary system from the act of bankruptcy and the decree.

3. Even if the decree of the Circuit Court were set aside, there should be a decree against Robert Hudgins for the purchase-money remaining unpaid at the time of the bankrupt's petition, and the land held subject thereto, as well as to the liens of the judgment creditors of John L. Hudgins.

Mr. Justice NELSON delivered the opinion of the court.

title: Hudgins v. Kemp (61 U.S. 45)


text: Talk:Hudgins v. Kemp (61 U.S. 45)

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

title: Talk:Hudgins v. Kemp (61 U.S. 45)


text:
Hudgins v. Kemp (61 U.S. 45)/Opinion of the Court

This is an appeal from a decree of the Circuit Court of the United States for the eastern district of Virginia.

The bill was filed in the court below by the assignee in bankruptcy of John L. Hudgins, against Robert Hudgins and others, to set aside the conveyance of a large real estate charged to have been made by the bankrupt to the said Robert, in fraud of his creditors and of the bankrupt law of the 19th August, 1841. The deed of conveyance purports to have been executed on the 21st February, 1842, but was not recorded till the 8th August following; and conveyed, for the alleged consideration of $5,000, three tracts of land-one tract of one hundred acres, one of nine hundred, and another of seventy acres-being, in the aggregate, one thousand and seventy acres, situate in the county of Mathews, State of Virginia. The bankrupt's place of residence was upon one of the tracts. The deed of conveyance contained a clause that the lands should be subject to any judgments that then bound them by operation of law. John L. Hudgins, the grantor, was heavily in debt at the time of the execution of the deed, and judgments to a large amount were soon after recovered against him. Executions were issued upon these judgments, and the defendant endeavored, by various ways and contrivances, to conceal his person and property from the reach of them. This was in the spring and summer of 1842.

On the 17th February, 1843, John L. Hudgins presented his petition to the District Court for the benefit of the bankrupt act, annexing thereto a schedule of his debts and property-the debts exceeding $12,000; property none, except a contingent interest in a deed of trust by T. Hudgins, for the benefit of creditors. On the 20th May, 1843, the petitioner was declared a bankrupt, and on the 19th September following an order was made, providing for the creditors to show cause, on a given day, why the petitioner should not have granted to him a certificate of discharge from all his debts. The creditors appeared, and resisted the discharge. Much testimony was taken on their behalf, tending to establish the fraudulent transactions of the bankrupt with Robert Hudgins and others, which are now relied upon to set aside the deed in question. The opposition to granting the discharge resulted in the District Court adjourning several questions of law and fact to the Circuit Court, for its decision. What disposition was made of them in that court, we are not advised.

The defendant, Robert Hudgins, in order to prove the payment of the purchase-money of the lands conveyed in the deed of the 21st February, introduced two receipts from John L. Hudgins-one for $3,055, dated 6th August, 1844; the other, 12th August, same year, for $1,425-and proved the execution of the same by witnesses, who counted the money was saw it paid.

The several tracts of land conveyed were worth, as testified to by witnesses, over $10,000, double the amount of the purchase-money. The possession and occupation of the same, subsequent to the sale, seems not to have been changed. Indeed, John L. Hudgins, in his receipt of the payment of the $1,425, 12th August, 1844, describes the land as being the same as that upon which he resides, and has resided for years. He and his sons have cultivated and improved the arable land, cut and sold timber from the woodland, since the sale to the defendant, Robert, the same as before, the latter apparently exercising no control or acts of ownership over the property.

In the fore part of July, 1842, some four months after the alleged conveyance, John L. Hudgins made application to certain individuals to borrow a considerable sum of money, to relieve himself from judgments and executions then pressing upon him, and proposed giving a deed of these same lands, in trust to the lenders, as security for the loan. The writings were prepared with a view to carry into effect this arrangement, and the defendant was present, assenting to it, without disclosing that a conveyance had already been made to him.

A good deal of other evidence was given in the case, bearing more or less upon the question of fraud, which it is not material to recite, and which will be found in the record.

The court below, on the 18th May, 1848, decreed that the deed of John L. Hudgins, the bankrupt, to Robert, his brother, of the 21st February, was fraudulent and void as against creditors, and appointed the assignee in bankruptcy a receiver, to take possession of the property, and directed that a master should take an account of the rents and profits from the petition in bankruptcy to the time when the receiver took possession. The master subsequently reported the amount at the sum of $2,320.26, and on the 27th June, 1855, a final decree was entered. The cause is now before this court, on an appeal from this decree.

It was scarcely denied on the argument, and, indeed, could not be, that John L. Hudgins, the bankrupt, had been guilty of a fraudulent contrivance to hinder and defraud his creditors on the execution of the conveyance in question; but it has been strongly that Robert, the grantee, was not privy to the fraud, and hence was a bona fide purchaser for a valuable consideration. We shall not, therefore, deem it material to refer to any portion of the mass of evidence in the case, except so far as it bears upon the connection of the grantee with this question of fraud.

The answer of the defendant to the bill is not very satisfactory. The bill charges that the deed, though it bears date 21st February, 1842, was really executed on or about the 2d of July following, the time it was put on record; and that it was antedated in pursuance of the fraudulent purpose charged against the parties. The answer does not notice or deny this allegation. Again, the bill charges that the deed was not delivered at the time it bears date; nor, in fact, delivered at all to the grantee in any other way than the putting of it on record by the grantor himself. This charge is not noticed or denied; neither is the allegation denied, that the grantee remained in the possession and enjoyment of the property after the conveyance, the same as before. And this averment, besides being thus virtually admitted, is fully established by the proofs in the case.

The consideration or purchase-money agreed to be given for the three tracts of land conveyed was less than one-half the value, as proved by uncontradicted testimony. The deed contained a chause, that the lands should be subject to any judgments that were then a lien upon them; and it was urged, on the argument, that these judgments should be taken into the account, on fixing the amount of the purchase-money. But the answer is, that it does not appear, from any evidence in the case, that judgments existed against John L. Hudgins at the date of the deed. We have examined the proofs attentively, and find none; nor have any been referred to in the briefs of the counsel. It also appears that Robert, the grantee, some four months after the date of his deed, and when the title to the lands in question was in him, if the conveyance had been really made at its date, was present, and participated in a negotiation for a loan of money to John L. Hudgins, and which was to be secured by a deed from him of these very lands, in trust, to the persons advancing the money.

The conduct of the defendant, Robert, in this instance, furnishes the foundation for a strong inference, either that the deed had not then been executed and delivered, or, if it had been, that the grantee held it for the use and benefit of John L. Hudgins, the grantor. In either view, the fact affords a well-founded suspicion of the bona fides of the transaction between the parties.

In respect to the payment of the purchase-money, of which very formal proofs have been given of the principal part of it, the effect in support of the conveyance is very much impaired by the fact that John L. Hudgins, in the schedule of his estate annexed to this petition in bankruptcy, 23d February, 1843, takes no notice of this indebtedness to him, by Robert, the grantee, and the truth of the schedule is verified under oath. This was a year and two days after the date of the deed, and when the purchase-money was unpaid, if the facts are true, as insisted by both the parties subsequently, upon the question of payment. They now admit this did not take place till August, 1844. No attempt had been made to account for or reconcile this inconsistency, if not worse, on the part of John L. Hudgins. Without pursuing the examination of the proofs in the case further, we will simply say, that after the fullest consideration of the facts in the case, we are satisfied with the conclusion arrived at by the court below upon this question.

But it is insisted that, admitting the conveyance to be void as it respects the creditors of John L. Hudgins, the court below erred in ordering a sale of the property, without having first ascertained the debts of the bankrupt, and permitting the grantee in the deed to redeem on paying them, or directing only so much of the land to be sold as would be sufficient to pay the debts.

The answer to this is, that the defendant, Robert Hudgins, made no offer to pay the debts on ascertaining the amount, and, for aught that appears, the whole of the property will be no more than sufficient to pay the liabilities of the bankrupt. If there should, by chance be any surplus, it belongs to the court in bankruptcy to dispose of it. Whether it should go to the bankrupt or to his grantee, will be for that court to determine.

It is also insisted, that the court below erred in decreeing the rents and profits of the lands in controversy against the defendant, Robert Hudgins, for the reasons that it is not shown that he was in the possession and enjoyment of the same; and, also, that the court erred in decreeing these rents and profits from the filing of the petition in bankruptcy, instead of from the decree declaring John L. Hudgins a bankrupt.

The short answer to each of these objections is, that no such exceptions were taken to the report of the master, and are therefore not properly before us. That was the time and place to have presented these questions, and the omission precludes any question here on the matter.

The decree of the court below affirmed.


text: Talk:Hudgins v. Kemp (61 U.S. 45)/Opinion of the Court


text:
Brown v. Shannon

THIS was an appeal from the Circuit Court of the United States for the district of Maryland.

The case is stated in the opinion of the court.

It was argued by Mr. Schley for the appellant, and submitted on a printed argument by Mr. Latrobe and Mr. Gwinn for the defendants.

Mr. Chief Justice TANEY delivered the opinion of the court.

title: Brown v. Shannon


text: Talk:Brown v. Shannon

title: Talk:Brown v. Shannon


text:
Brown v. Shannon/Opinion of the Court

This is an appeal from the decree of the Circuit Court for the district of Maryland.

The bill was filed by Joseph P. Shannon & Company, Gelston & Matthews, Lapouraille & Maughlin, and Griffiss & Cate, who composed four different partnership firms in the city of Baltimore, separately engaged in the business of planing, who all joined in the bill of complaint against Brown, the appellant, praying that he might be enjoined from the use of certain planing machines, mentioned in the bill, in the city of Baltimore. Upon the hearing, a perpetual injunction was granted accordingly, and from that decree this appeal was taken.

From the manner in which the bill is framed, there is some difficulty in determining whether the complainants are seeking the aid of this court to prohibit the infringement of a patent right assigned to them, or to enforce the specific execution of two contracts with the appellant, exhibited with the bill; for the right claimed under the patent, and the right claimed under the contracts, are so mingled together in the statements and allegations of the complainants as to leave some doubt upon that point. And the first question, therefore, for this court to determine, is, upon which of these two grounds does the bill seek for relief? The jurisdiction of the Circuit Court in the one case is materially different from its jurisdiction in the other; and, while this court can exercise no appellate power in a case arising under contracts like those exhibited, unless the amount or value of the matter in controversy exceeds two thousand dollars, it may yet lawfully exercise its appellate jurisdiction when a far less amount is in dispute, if the party is proceeding either at law or in equity for the infringement of a patent right to which he claims to be entitled. Upon looking, however, carefully into the bill, we think it must be regarded and treated as a proceeding to enforce the specific execution of the contracts referred to, and not as one to protect the complainants in the exclusive enjoyment of a patent right. It states that three of the partnership firms named as complainants-that is to say, Joseph P. Shannon & Company, Gelston & Matthews, and Lapouraille & Maughlin-were, by regular assignments, entitled to the exclusive use of Woodworth's planing machine in the State of Maryland, east of the Blue Ridge. That the appellant had used these machines in the city of Baltimore, without any right derived from the patentee, and that, in consequence of this infringement of their rights, various suits and controversies had taken place between them and Brown, who claimed the right to use the machines in question, as the assignee of a patent of Emmons. The bill then proceeds to state that, in order to put an end to these controversies and suits, these appellees, and the appellant, entered into the contract of the 19th of January, 1853, which is exhibited with the bill.

By this contract, the portion of the appellees of which we are now speaking, and the appellant, agreed that each of the said three partnership firms and the appellant should have the right to use the Woodworth patent at one establishment, anywhere within the territorial limits above mentioned, not exceeding five machines at such establishment; and that each of the said parties should also have the right to use Emmons's patent.

There are other stipulations in this agreement which it is not material to state for the purposes of this opinion.

The bill further states that Brown afterwards, on the 15th of June, 1853, assigned to Griffiss & Cate, the other complainant, all his right to use the Woodworth patent, which right he had derived from the contract before mentioned; and also the right to use the Emmons patent, the right to which he had derived from the administrator of Emmons. This contract states that the assignment was made in consideration of fifteen hundred dollars, paid the appellant by Griffiss & Cate. And the complainants allege that, after this assignment, Brown continued to use the said five machines in his establishment in Baltimore, although he had no right to do so, as they were all Woodworth's planing machines; and that he is not only a wrong-doer in using a patented invention without a license, and as such liable to be restrained by a court of equity, but that such use is a fraud upon the parties to each of the two contracts into which he had entered, as above stated. That the object of the contract of January 19, 1853, was to restrain the use of the Woodworth machine and the Emmons machine, so far as that right was to be used, to four establishments in the city of Baltimore, with the limited number of machines in each; and that the use of them by Brown, after he had substituted Griffiss & Cate, in his place, was a fraud upon this contract, from the binding operation of which he could not withdraw himself, and a fraud also upon his contract with Griffiss & Cate. And the gravamen of the bill, and the ground upon which relief is sought, is summed up in the paragraph immediately preceding the prayer for relief, in the following words:

'And your orators are further advised, that the misconduct of the said Brown in the premises is a fraud upon the parties to the agreement of the 19th of January, 1853, as well as upon the parties to the agreement of the 15th of June, 1853, which it is the peculiar province of a court of equity to restrain.'

It is to prevent the fraudulent violation of these contracts, therefore, that the complainants seek the aid of the court, and ask for an injunction; and it being a proceeding founded on a contract between the parties, this court has no appellate power, unless the matter in controversy is of the value on more than two thousand dollars. Now, the matter in controversy is the right of the appellants to use these five machines while the Woodworth patent continued-that is, until the 29th of December, 1856.

But it appears by the record that Brown sold this right to Griffiss & Cate for $1,500. He admits, in his answer, that he sold and assigned it for that sum; nor does he suggest that it was worth more. The establishment of Griffiss & Cate, like that of the appellant, was in the city of Baltimore. And if $1,500 was the just value of the right in controversy on the 15th of June, 1853, there is no reason for supposing that it was more on the 10th of October in that year, when this bill was filed, or at any time since; on the contrary, the period for the duration of the right under the contract was daily diminishing as the termination of the patent was approaching, and a diminution on the value of the right would be a natural and necessary consequence. It is evident, therefore, that the value of the matter in controversy is not sufficient to give appellate jurisdiction to this court.

It has, however, been suggested in the argument at the bar, that the value may be estimated by referring to the penalty of the bond taken by the Circuit Court when the injunction was granted. But this rule would be entirely too vague and uncertain for judicial purposes. It is the practice of all courts, in taking bonds of this description, to prescribe a penalty more than enough to cover all possible damages which the respondent may sustain by reason of the injunction. There was nothing before the Circuit Court when the penalty in this case was prescribed, but the bill of the complainants. And although the bill disclosed a controversy where the matter in dispute was worth in the market but $1,500; yet, when the answer came in, and testimony was taken, it might show that the matter in dispute was of far greater value. The court could not foresee whether this would be the case or not, and hence the necessity and propriety of prescribing a penalty that would cover all possible contingencies. The respondent, however, as we have said, admits that he sold the privilege now in dispute for the sum mentioned in the bill, and does not say that it was worth more, or was of greater value in his hands than in those of Griffiss & Cate. The sum mentioned in the bill, and for which the privilege in question was sold by the appellant, must therefore be taken as the true value of the matter in controversy; and being less than $2,000, whatever errors may be apparent in the proceedings and decree of the court below, we have yet no power under the act of Congress to revise and correct them, and the appeal must be dismissed for want of jurisdiction in this court.

title: Brown v. Shannon/Opinion of the Court


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


text:
United States v. Cambuston

THIS was an appeal from the District Court of the United States for the northern district of California, which affirmed a decree of the land commissioners in favor of a grant of land to Cambuston.

The facts are stated in the opinion of the court.

It was argued by Mr. Black (Attorney General) for the United States, and Mr. J. Mason Campbell for the appellee.

Mr. Black made the following points:

1. Assuming the paper on which the claim is based to be genuine, it is, nevertheless, void and worthless, for want of a petition and inquiry.

2. The grant is inoperative, for want of evidence that it was delivered while the Governor had power to make it.

3. The grant is fraudulent, fictitious, and simulated.

Mr. Campbell's points were the following:

1. That the grant itself is evidence, as of the power of Pico to make it, so also of the observance by him of all the necessary preliminaries, and that there is no proof to the contrary. (United States v. Peralta, 19 How., 347; United States v. Arredondo, 6 Pet., 729, 731; United States v. Delassus, 9 Pet., 134; Minter v. Crommelin, 18 How., 88; Bagnell v. Broderick, 13 Pet., 448.)

2. That the possession of the grant is evidence of its delivery to the grantee by Pico, and the presumption of law is that such delivery was made when it might be lawfully, and that there is no evidence to the contrary.

3. That the absence of an approval by the Departmental Assembly, or of a survey, &c., will not defeat the grant. (United States v. Fremont, 17 How., 560; United States v. Reading, 18 How., 7; United States v. Cruz Cervantes, 18 How., 553; United States v. Vaca, 18 How., 556; United States v. Larkin, 18 How., 563.)

4. As no allegation of fraud was made, either before the commissioners or before the District Court, it cannot be entertained in this court, though, if entertained, the circumstances of the case conclusively show the fairness of the transaction. (United States v. Larkin, 18 How., 557.)

Mr. Justice NELSON delivered the opinion of the court.

title: United States v. Cambuston


text: Talk:United States v. Cambuston

title: Talk:United States v. Cambuston


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

This is an appeal from a decree of the District Court of the United States for the northern district of California, affirming a decree of the land commissioners.

The claimant below gave in evidence the following document, purporting to be a grant of a large tract of land on the upper waters of the Sacramento river, from a Mexican Governor of California, dated 23d May, 1846:

Pio Pico, Constitutional Governor of the Department of California:

Whereas Mr. Henry Cambuston has petitioned, for his own personal advantage, for a tract of unoccupied land in the valley of the Sacramento, joining on the north to Antonio Osio, on the south Mr. Sutter, on the east Mr. Flugge, and on the southwest the river Sacramento-the investigations being previously made according to the custom, and in conformity with the law of the 18th of August, 1824, and the regulations of the 21st of November, 1828-in virtue of the powers which have been conferred on me, in the name of the Mexican nation, I grant the tract of land expressed, lying out of the boundaries of the before-mentioned landholders, declaring it his estate by the present letters, provided it shall be approved by the extreme Departmental Assembly, and under the following conditions: 1st. He may, without prejudice to the crossings, roads, or attendances, fence it, enjoying it freely and exclusively, devoting it to any use or cultivation, as best may suit his convenience.

2d. When the title shall be confirmed, he shall demand of the respective judge judicial possession of it, by virtue of this despatch, by which the boundaries shall be designated with the necessary landmarks.

3d. The claim of land, for which this grant is made, has an area of eleven square leagues of pasture, if there is that outside of the property of the others, whose boundaries are to be respected; and if there should not be, the grantee shall be satisfied with that which remains.

The judge who gives possession shall cause it to be surveyed according to the ordinance, leaving the residue for the convenient uses of the nation.

Consequently, I command that he hold the present title as true and valid.

It shall be recorded in the respective book, and be delivered to the party interested, for his security and other uses.

Given in the city of Los Angeles, on this common paper, for want of sealed, on the 23d day of May, 1846.

(Signed) PIO PICO.

(Signed) JOSE MATIAS MORENO.

This document was deposited, by the claimant, with Edward Canbey, Assistant Adjustant General of the Army of the United States, on the 10th July, 1850, who at that time had charge at Monterey of the Government archives. These archives have since been transferred to the office of the Surveyor General, kept at San Francisco. There is no evidence in the case that it was ever seen in or out of the possession of the claimant, from its date (23d May, 1846) down to the time of depositing it, as above mentioned, except that derived from one witness, who appears to have been interested in the grant, and whose testimony, therefore, must be laid out of the case. Although the document in terms directs that it shall be recorded in the proper book of records, no record of the same was given in evidence, nor its absence accounted for. It recites, in the usual way, that the claimant had presented to the Governor a petition for a grant of the land, and also that the customary examinations had been made into the circumstances and fitness of making the grant to the petitioner. No petition was produced at the trial, nor any report by any officer as to the reasons and propriety of conceding the tract asked for, nor any evidence accounting for the non-production of either.

The case stands, so far as the claim of title is concerned, upon the naked document itself, purporting to be a donation of the eleven square leagues of land, together with evidence tending to establish its genuineness, and slight proof in respect to the possession of the tract.

The original document was not produced either before the commissioners or the District Court, and the only proof of its genuineness was the testimony of two witnesses who had seen the signatures of Governor Pico and the Secretary Moreno, on file at the Surveyor General's office. One of them (Crosby) says he believes the signature of Pico to be genuine, but has no knowledge of the handwriting of Moreno; the other, (Castro,) that he knows the signatures of both Pico and Moreno, and that they are genuine. There is another witness, (Morenhont,) who says that he had seen Moreno write once, and had corresponded with him; and that, so far as he can judge, it is his genuine signature. This witness, however, cannot be relied on, as he is the person interested in the claim.

The regulations for the colonization of the territories of the Government of Mexico, made 21st November, 1828, in pursuance of the act of the General Congress, August 18, 1824, provided: 1st. That the Governors of the territories should be empowered to grant vacant lands, among others, to private persons who may ask for them, for the purpose of cultivating and inhabiting the same. 2d. That every person soliciting lands shall address to the Governor a petition, expressing his name, country, and religion, and describing as distinctly as possible, by means of a map, the land asked for. 3d. The Governor shall proceed to obtain the necessary information, whether the petition contains the proper conditions required by the law of the 18th August, 1824, both as regards the land and the petitioner, in order that the application may be at once attended to; or, if it be preferred, the municipal authority may be consulted, whether there be any objection to the making of the grant. 4th. This being done, the Governor will accede or not to such petition, in conformity to the laws on the subject. 5th. The definitive grant asked for being made, a document signed by the Governor shall be given, to serve as a title to the party interested, wherein it must be stated that the grant is made in exact conformity with the provisions of the law in virtue of which possession shall be given. 6th. The necessary record shall be kept, in a book provided for the purpose, of all the petitions presented and grants made, with maps of the lands granted, and a circumstantial report shall be forwarded quarterly to the Supreme Government. There are many other provisions in the system of regulations, relating to the disposition of the public lands, adopted on the 18th November, 1828, which it is not at present material to notice. Those specified have a special bearing upon the case before us. And, in view of them, it will be observed, according to the facts as presented at the trial before the commissioners, and afterwards before the District Court, to which we have already referred at large, that not one of the preliminary steps made requisite by the act of the Mexican Congress of 1824, and the regulations of 1828, to a grant of the public domain by the Governors, has been observed; at least, no evidence was given, before either of these tribunals, of the observance of any one of them. And we do not see how they can well be dispensed with, as they are not only expressly prescribed by the regulations as essential to guard against improvident grants, but constitute an essential part of the record of the title. It is true, the document recites that a petition was presented, and that the customary investigations had been made in respect to the application. But this cannot be regarded as conclusive, or even satisfactory evidence of these facts, when the question is raised, whether or not the alleged grant is made in conformity with the requirements of the law-in other words, whether the preliminary conditions had been complied with, which enabled the Governor in the particular case to make the grant, especially in respect to those preliminary proceedings which are required to be made matters of record, and of which record evidence should have been produced, or its non-production satisfactorily accounted for.

The question here is not whether the fact of the habitual grant of lands by Mexican Governors of the Territory of California to settlers, and, also, whether the customary mode and manner adopted in making grants, do not furnish presumptive evidence both of the existence of the power and of a compliance with the forms of law in the execution? We agree, that the affirmative of these questions has been frequently determined by this court, in cases involving Spanish titles in the Territories of Louisiana and Florida. (6 Peters, 729, 731; 9 ib., 134; 19 How., 347.) But no such presumptions are necessary or admissible in respect to Mexican titles granted since the act of 18th of August, 1824, and the regulations of 21st November, 1828. Authority to make the grants is there expressly conferred on the Governors, as well as the terms and conditions prescribed, upon which they shall be made. The court must look to these laws for both the power to make the grant, and for the mode and manner of its exercise; and they are to be substantially complied with, except so far as modified by the usages and customs of the Government under which the titles are derived, the principles of equity, and the decisions of this court. (17 How., 542.)

We think, for the reasons above stated, that the case in the court below was too defective to have warranted a confirmation of the title to the claimant, as it was unsupported by the evidence; and also, for the further reason, for aught that appears in the proofs, the alleged grant has never been recorded in the proper book, or, indeed, in any book of the Spanish records. This is expressly required by the regulations of November, 1828, and enjoined in the grant itself. The record should have been produced, or its non-production reasonably accounted for.

In the examination of the evidence in this case, we have found it very difficult to resist a suspicion as to the bona fides of the grant in question. It is a pure donation, without pecuniary consideration or meritorious services rendered to the Government of Mexico. It is unaccompanied, as we have seen, with the forms and usages always observed in disposing of the public lands. Although purporting to be made on the 23d May, 1846, it was unknown to any person besides the grantee himself; and another interested party, till filed among the public archives, 10th July, 1850, after the cession of California, by Mexico, to this Government. It was made but a month and a half before the country was taken possession of by the arms of the United States, and made by a person who had but recently expelled from the Territory by force its lawful Governor, (Micheltorena,) and taken possession of it himself. Whether or not Pico had been recognised by the existing Government in Mexico, at the time the grant is dated, does not appear. Micheltorena was overthrown by the joint forces of Castro and Pico, in the spring or fore part of the summer of 1845. (See Captain Sutter's evidence, in original record in Reading's case, 18 How., p. 1; also, Report of General Cass to Senate, on California Claims, February 23, 1848.)

Civil commotion raged throughout the Territory, from this period down to the 7th July, 1846, when the authority of Pico and Castro themselves was subverted, and possession taken and held by the arms of the United States, until the cession of the country to this Government by the treaty of Guadalupe Hidalgo.

The grant purporting to have been made by Pico, so near the time when the Government of the Territory had passed from his hands, and, indeed, during the very heat and conflict of the struggle in which his power was overthrown, it, and all others similarly situated, should be inquired into and scrutinized with great care, both as to the authority of the Governor to make them, and the bona fides of its exercise, in order to prevent imposition and frauds.

The court below appears to have been very much pressed with the unsatisfactory character of the evidence, and with doubts as to the genuineness of the title, and seems to have yielded rather to the apparent acquiescence of the representative of the Government, in the decision of the commissioners, than to any settled convictions of its own judgment.

We should not hesitate to reverse the decree below, and direct a decree against the claimant, were it not that the mode and manner of conducting the case, both before the commissioners and the District Court, on behalf of the Government, may have misled him; for, if the objections here stated had been made at the proper time before either of the tribunals, it may have been in his power to have removed them by the introduction of further evidence. It would be unjust, therefore, to deprive him, under the circumstances, of the opportunity to furnish such evidence.

We shall therefore reverse the decree, and remand the case to the court below for a further hearing.


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


text: Dynes v. Hoover

title: Dynes v. Hoover


text: Talk:Dynes v. Hoover

title: Talk:Dynes v. Hoover


text:
Dynes v. Hoover/Opinion of the Court

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington.

Dynes was a seaman in the navy, who was tried by a court martial upon a charge of desertion, who found him not guilty of deserting, but guilty of attempting to desert; and sentenced him to be confined in the penitentiary of the District of Columbia at hard labor, without pay, for the term of six months from the date of the approval of the sentence, and not to be again enlisted in the naval service. Whereupon, the President of the United States directed Hoover, the marshal of the District, to commit him to the penitentiary.

The proceedings of the Circuit Court are stated in the opinion of the court.

The case was argued by Mr. Charles Lee Jones for the plaintiff in error, and by Mr. Gillet for the defendant. There was also a brief on that side, filed by Mr. Cushing, the late Attorney General.

Mr. Jones commenced his argument with a review of some of the principles of military law pertinent to the issue; after which, he proceeded to state his points, of which there is room to notice only the following, viz:

That the judgment and sentence of the court martial was an absolute nullity, and affords no sort of justification to any one executing process under it.

The following well-settled principles of law cannot be controverted: 'That when a court has jurisdiction, it has a right to decide every question before it; and if its decision is merely erroneous, and not irregular and void, it is binding on every other court until reversed. But if the subject-matter is not within its jurisdiction, or where it appears, from the conviction itself, that they have been guilty of an excess, or have decided on matters beyond and not within their jurisdiction, all is void, and their judgments, or sentences, are regarded in law as nullities. They constitute no justification; and all persons concerned in executing such judgments, or sentences, are trespassers, and liable to an action thereon.' (1 Peters, 340; 2 Peters, 169; Griffith v. Frazier, 8 Cranch, 9; 14 How., 144; Wicks v. Caulk, 5 Harris and Johns., 42; Bigelow v. Stearns, 19 Johns., 39; Case of the Marshalsea, 10 Co. R., 76; Terry v. Huntington, Hardres R., 480; Shergold v. Hollway, 2 Strange, 1002; Hill v. Bateman, 1 Strange, 710; Perkin v. Proctor, 2 Wilson, 382; Dr. Bouchier's Case, cited, 2 Wilson, 386; Martin v. Marshall and Key, cited, 2 Wilson, 386; Parsons v. Lloyd, 3 Wilson, 341; Miller v. Seare, 2 Wm. Black. R., 1145; Crepps v. Durden, Cowp., 640; Groome v. Forrester, 5 M. and S., 314; Warne v. Varley, 6 Term, 443; Brown v. Compton, 8 Term, 424; Moravia v. Sloper, Willes R., 30; Peacock v. Bell, 1 Saunders, 74; 8 Term, 178; 2 Wm. Black., 1035; The King v. Dugger, 1 Dowl. Ry., 460; 3 Campbell's R., 388; Doswell v. Impy, 1 Barn. and Cress., 169; 13 Johns., 444.)

'A court martial is one of those inferior courts of limited jurisdiction whose judgments may be questioned collaterally. It is an inferior court in the most technical common-law sense of those words. It is called into existence for a special and limited purpose, and to perform a particular duty; and when the object of its creation is accomplished, it ceases to exist. The law will intend nothing in its favor. The decision of such a tribunal, in a case without its jurisdiction, cannot protect the officer who executes it. The court and the officer are all trespassers.' (Wise v. Withers, 3 Cranch, 337; Ex parte Watkins, 3 Peters, 208; Mills v. Martin, 19 Johns., 32; Smith v. Shaw, 12 Johns., 267; Brooks v. Adams, 11 Pickering, 442; Duffield v. Smith, 3 Sergt. and Rawle, 599; 3 Greenleaf's Ev., § 470; Warden v. Baily, 4 Taunt., 67; Frye v. Ogle, 1 McArthur, Ap., No. 24, and Hickman, Ap., No. 17; Moore v. Bastard, 2 McArthur, 194, 200; 1 McArthur, chap. 10, § 9, p. 264, 272; Hannaford v. Hunn, 2 Carr. and Payne, 148; Wharton's American Law of Homicide, p. 52.)

Two essential vices appear on the face of the proceedings of the court martial in question, either of which would alone render their whole proceedings irregular and void.

1. The finding was in a cause coram non judice, it being for an offence of which the plaintiff was never charged, and of which the court had no cognizance.

2. The subject-matter of the sentence, the punishment inflicted, was not within their jurisdiction, and is a punishment which they had no sort of permission or authority of law to inflict. (See Hickman, p. 149, 152, and 1 McArthur, 158.)

1st. The court martial was brought into existence by the order or precept of the Secretary of the Navy, and the plaintiff 'legally brought before it,' for the trial of his guilt or innocence of the following 'charge and specification of a charge preferred by the Secretary of the Navy,' and to no other legal intent or purpose whatsoever:

'Charge.-Desertion.

'Specification.-In this, that on or about the twelfth day of September, in the year 1854, the said Frank Dynes deserted from the United States ship Independence, at New York.

'J. C. DOBBIN, Secretary of the Navy.'

Now, here is a charge, with its specification, drawn up with every desired legal requisite of certainty and perspicuity, notifying the accused of the circumstances and facts to be brought in issue, and warning him of the evidence essential to establish his innocence. Of this charge, and of this charge only, had the court martial jurisdiction to try him, (see 2 McArthur, p. 221,) and their decision as to his guilt or innocence upon this charge, would be as absolute and final as would be the decision of any other court on matters within their jurisdiction.

But the court martial acquitted him of the only charge legally brought before them, the only subject-matter whereof they had cognizance, but found him guilty of another offence, of which they had no sort of jurisdiction-an offence as yet unknown to the law, not enumerated in the naval articles as one of the crimes within the cognizance of a court martial-thus convicting him of an offence not included in the charge or specification before the court, but a new offence, depending upon different facts and circumstances, and against the accusation of which they gave him not the least time or slightest warning to defend himself.

The court 'do find the accused, Frank Dynes, seaman of the United States navy, as follows: Of the specification of the charge, guilty of attempting to desert; of the charge, not guilty of deserting, but guilty of attempting to desert.'

This finding is in direct violation of the oath which, by the 36th article of the act of Congress for the government of the navy, each member of the court is required to take, 'before proceeding to trial,' that he 'will truly try, without prejudice or partiality, the case now depending.' And of the 38th article, which declares that 'all charges on which an application for a general court martial is founded, shall be exhibited in writing to the proper officer, and the person demanding the court shall take care that the person accused be furnished with a true copy of the charges, with the specifications, at the time he is put under arrest; nor shall any other charge or charges than those so exhibited be urged against the person to be tried before the court,' unless under the circumstances there enumerated, 'in which case reasonable time shall be given to the person to be tried, to make his defence against such new charge.' (See Macomb on Courts Martial, § 35 and § 36, p. 26; De Hart, p. 102; Tytler, 217.)

It is true that, at common law, the jury may frequently find the prisoner guilty of a minor offence, included in the charge, or of a part of the offence therein specified; as on an indictment for petit treason he may be found guilty of murder or of manslaughter, for both these offences are included in the charge, as is also the offence of manslaughter in the charge of murder; and under an indictment charging an assault with intent to murder the party, may be convicted of a simple assault only; or under an indictment charging an assault with intent to abuse and carnally know, the defendant may be convicted of an assault with intent to abuse simply. (1 Chitty's Crim. Law, 250, 251.)

In these cases, every fact and circumstance which is a necessary ingredient in the offence is set forth in the indictment, and the party is enabled to determine the species of offence he will be called upon to answer, and the evidence necessary to establish his innocence.

But on an indictment for felony he cannot be convicted of a misdemeanor, because the offences are distinct in their nature, and of a distinct legal character.

Nor can a party be convicted, on an indictment for a specific offence, of an attempt to commit that offence. (4 Blac. Com., p. 306, note.) Thus, on an indictment for burglariously breaking and entering a dwelling-house and stealing the goods mentioned, the party may be acquitted of the burglary, and convicted of the larceny, it being included in the charge; but he cannot be acquitted of the burglary and stealing, and convicted of a burglary with intent to steal, or to commit any other felony, for they are distinct offences. (See Vandercomb and Abbott's case, 2 Leach C. L., 828 to 833; 1 Russell on Crimes, 831; Com. v. Roby, 12 Pickering, 505, 506, 507; 4 Blac. Com., 306, note.)

So, on an indictment for murder, he cannot be acquitted of the murder, and convicted of an assault with intent to murder. He is before the court charged with a specific offence, and is prepared only to defend himself against that charge, and the matter therein specified; he may entirely rely upon the evidence of the very man of whose murder he is charged to prove that no homicide has been committed. It would then be in violation of every principle of law to convict him, without warning, of a different offence, depending on different facts and circumstances; thus the fundamental doctrine of the law requires the proof admissible, much less the finding or verdict, to correspond with the allegations, and to be confined to the point in issue.

Courts martial, following these principles of the common law, may also find a party guilty of a minor offence included in the charge. As on a charge of desertion, they may acquit of that charge, and find the party guilty of 'absence without leave,' for this offence is of a like nature, and all its ingredients are included in the charge, for absence is the principal question in issue. (Tytler, 321, 322, 323; Adie, 185, 186, 187.) But attempting to desert is altogether a distinct offence, depending upon different facts and circumstances, of which the party has had no notice. He may be conscious of not having deserted, and may expert to establish his innocence of that charge by circumstances and facts which would render his being guilty of such an offence absolutely impossible. Then would it not be of the very essence of tyranny, in violation of all those immutable principles of right and justice which are the foundation of martial as well as every other law, to find him guilty, and to inflict a punishment for this other offence never before the court, and of which he never had the least time or notice to make his defence?

Besides, 'absence without leave' is, by the British mutiny act, and the 21st article of the act of Congress for the government of the army, (April 10, 1806, 2 Stat. at Large, p. 362,) made a military offence within the cognizance of an army court martial.

But 'attempting to desert' is not enumerated by the articles for the government of the navy as an offence within the cognizance of a naval court martial. A naval court martial derives its sole being from, and is the mere creature of, the act of Congress, and has no jurisdiction of any other offences than such as are therein enumerated as within their cognizance. 'When a new court is erected, it can have no other jurisdiction than that which is expressly conferred, for a new court cannot prescribe.' (4 Inst. 200.)

But it may be contended that the 32d article covers this offence, which article is in these words: 'All crimes committed by persons belonging to the navy, which are not specified in the foregoing articles, shall be punished according to the laws and customs at sea.' Such a construction would be leaving the definition of crimes 'at sea' indeed, and a shoreless and uncharted sea, and would render the previous minute enumeration of what offences might be tried and punished by a court martial quite useless. The probable proper construction to put on this article is, that it refers to such offences as are not of sufficient magnitude to be punished by a court martial, and leaves them to be punished according to the usages of the sea. However this may be, the offence at any rate should have been legally brought before the court by a charge and specification preferred by the proper authority, and it might then have been within the jurisdiction of the court to have decided whether or not they could take cognizance of it under the 32d article; as it is, the cause was coram non judice, and their judgment and sentence is not voidable, but absolutely void. (Hickman, 179, 149; 1 McArthur, 171; 2 ib., 221, 298, 199.)

The ground on which the judgment of the House of Lords, in the Banbury case, was held not to conclude the question, 'was because the proper course had not been pursued to bring the question of peerage in judgment before the Lords, and therefore it was coram non judice, for the resolutions of the Lords, in that case, were taken upon a petition from the defendant to the House itself; whereas, the proper course for the trial of the right of peerage is by petition from the claimant to the King, who thereupon refers it to the Lords.' 'Here was no judgment. A court can give no judgment in a thing not depending, or that does not come in a judicial way before the court.' (2 Salk., 511; Burdett v. Abbott, 14 East, 106; Skinner R., 522, 524.)

'If a judge of an ecclesiastical court excommunicates a party for a cause of which he hath not legal cognizance, or where the party has not been previously served with a citation or monition, nor had due notice, an action lies against him.' (Beaurain v. Scott, 3 Campbell's R., 388; 3 Black. Comm., 101.)

The argument of Mr. Jones and that of Mr. Gillet, upon the legality of using the penitentiary as the place of punishment, are omitted.

FIRST.-The naval court martial had jurisdiction of the offence of which the plaintiff was convicted.

Among the powers conferred upon Congress by the 8th section of the first article, are the following:

'To provide and maintain a navy.

'To make rules for the government and regulation of the land and naval forces.'

The 8th amendment, which requires a presentment of a grand jury in cases of capital or otherwise infamous crime, expressly excepts from its operation 'cases arising in the land or naval forces.'

These provisions show that Congress has the power to provide for the trial and punishment of military and naval offences in the manner then and now practiced by civilized nations.

In the exercise of the powers thus conferred upon the legislative department, the act of the 23d of April, 1820, (2 U.S. L., p. 45,) was passed.

The 17th article of said act provides—

'And of any person in the navy shall desert, or entice others to desert, he shall suffer death, or such other punishment as a court martial shall adjudge.'

The 32d provides—

'All crimes committed by persons belonging to the navy, which are not specified in the foregoing articles, shall be punished according to the laws and customs in such cases at sea.'

Congress specified a limited number of offences, and among them desertion; and then, in the thirty-second article, made provision for all possible cases which could occur in the naval service.

Among the offences which may be committed, is the attempt to desert. Desertion is where a person, bound by his enlistment to remain in service, in violation of his duty escapes from the control of those in command. An attempt to desert is where the motive to desert is conceived, and an effort made to carry it into effect, but which is not fully accomplished, owing to the want of success, or to a change of purpose. Such an offence deserves punishment in a degree but little below successful desertion. It is clearly one of the unspecified offences provided for in the 32d article.

The 35th article provides for the appointment of courts martial. These courts are created for the purpose of trying all cases arising in the naval service.

The 38th article provides, that charges shall be made in writing, which was done in this case. It appears, by the record, that the court was lawfully constituted; that the charge was made in writing; that Dynes appeared and pleaded to the charge. If he had been found guilty of desertion, no complaint could have been made against the conviction for want of jurisdiction in the court. But, as it appears that the court, instead of finding him guilty of the high offence of desertion, which authorizes the punishment of death, convicted him of the inferior offence of attempting to commit the crime, it is assumed that the court had no jurisdiction of the case. This assumption cannot be sustained.

It is a well-settled rule, that where a person is charged with a high offence, he may be convicted of a lower one of the same class.

In the People v. Jackson, 3 Hill N. Y. R., 92, Cowen, J., in delivering the opinion of the Supreme Court, said:

'The case is, in principle, like a conviction of manslaughter under an indictment for murder; or of simple larceny, under an indictment for burglary or robbery. The indictment charges facts enough, and more than enough, to make out a misdemeanor; and the prosecution in such case is never holden to fail, merely because all the alleged circumstances are not proved, if such as are proved make out a crime, though of an inferior degree. This has been uniformly held by the English courts, where the crime proved is of the same generic character with that charged; for instance, where the proof is of an inferior felony, and the indictment charges a higher.'

In the People v. White, 22 Wen., 167, 176, the Supreme Court of New York laid down the same rule.

Roscoe, in his work on Criminal Evidence, p. 99, cites numerous cases to prove that this rule is correct and sound.

The same principles are laid down in Phillipps's Evidence, p. 203.

In Chitty's Criminal Law, 1st vol., pp. 250, 251, the same rule is stated, and many cases cited to prove it correct.

These rules are equally applicable to court-martial cases.

Writers on courts martial lay down similar rules.

O'Brien says: 'When the offence named in the charge admits of less degrees of criminality, the court may find the specification to amount to only one of these lesser degrees of the same crime.' P. 265.

De Hart says: 'In the deliberation of the court upon the finding to be declared, it is necessary also to observe the distinctions which may be made between the crime as alleged in the charge, and the degree of offence proved. A court martial, therefore, may in some instances find a prisoner guilty of the offence in a less degree than that stated. For example, a prisoner charged with desertion may be acquitted of the charge, and found guilty of absence without leave. Here it is manifest that the offence proved is of the same character as the one charged, but differing in degree, arising from the intention of the accused party. So, in all such, or similar findings of a court martial, must there exist a kindred nature between the offences, as it would clearly be a violation of justice to find a prisoner guilty of a crime differing in kind, and therefore not depending upon degree of culpability, from that with which he stands charged.'

'It is evident, too, that as a prisoner stands charged with a specific offence, and necessarily defends himself from the accusation as laid, a court martial, although empowered to find him guilty in a less degree, cannot find a higher degree of guilt than that alleged in the charge.' Pp. 184, 185.

Simmons says: 'It is scarcely necessary to remark, that the punishments peculiar to desertion cannot be awarded on conviction of absence without leave, however aggravated; and that an offender, charged with desertion, may be found guilty of the minor crime, absence without leave, and receive judgment accordingly.' Pp. 338, 339.

These authorities show that the same rule which prevails in the judicial courts is applied by military tribunals, where less technical nicety prevails. The great object in view in courts martial is to secure justice in the simplest manner possible. De Hart says, (p. 146,) 'The same technical nicety which dcourts of civil jurisdiction observe in criminal cases is not desirable or necessary in the proceedings of a court martial, and exceptions made to form or matter are only admitted by them when such appear essential to abstract justice.' Certainly, abstract justice does not, in this case, require technical nicety. Justice has been fully administered, in a manner common to criminal tribunals and courts martial, and then no error has been committed.

The authorities above cited show that, on a charge for a higher offence, the accused could be tried and convicted of a less one of the same generic character. Were this not so, if the proof failed to show the accused guilty of the higher offence, he would escape all punishment, as the trial and acquittal for such higher offence might be pleaded in bar to an indictment for the inferior one. The court having had unquestioned jurisdiction in the case presented in the charge and specification contained in the record, it clearly included whatever could be tried under them. The cases show that the accused could be tried for the lesser offence covered by the more extensive one, formally presented against him. It follows, that the court had ample jurisdiction to try and determine it. Having the authority to try the plaintiff, the decision upon the question of his guilt is conclusive upon him, and is not the subject of review in this court; though, if it were, its correctness would not be questioned after reading the evidence.

SECOND.-As the court had jurisdiction, no errors committed in its exercise can be reviewed or corrected by this court.

Courts martial have original jurisdiction in all offences committed by persons in the naval service, when convened according to law, and such offences are brought to their consideration in the manner specified in the statute. No reviewing tribunal has been established, although the Secretary of the Navy and the President, in effect, act as revising officers, where their concurrence is required before the adjudication of the court can be carried into effect. The decisions of courts martial are as conclusive as those of any other tribunal. Their jurisdiction is general over a class, and is exclusive as to all naval offences. Whether they exercise it wisely or erroneously, while they keep within such jurisdiction, is not the subject of review by other courts. The matter becomes res judicata.

In this case, the question of the guilt of the plaintiff is finally and conclusively settled. The court had full power to direct punishment. In some cases the statute defines that punishment, but it is generally left to the discussion of the court trying the accused.

The plaintiff insists that the court exceeded its jurisdiction in requiring him to be imprisoned for six months, at hard labor, in the penitentiary of the District of Columbia. The 32d article of the act of 1800 is referred to as proof of this. It is in these words:

'All crimes committed by persons belonging to the navy, which are not specified in the foregoing articles, shall be punished according to the laws and customs in such cases at sea.'

It is contended by the plaintiff, that the punishment adjudged is not according to the laws and customs in such cases at sea. But this does not appear. Those prescribed in the statute itself are applicable to the cases therein specified. The present case relates to those not distinctly enumerated in the statute, but to such as are authorized by the laws and customs in cases at sea. Who shall determine this question? Is it a question of law, or of fact?

If it is a question of law, it was clearly one for the court martial sitting to determine, and their decision is final, and not reviewable here. It was the duty of that court to pass upon this very question, when they were determining the punishment to be inflicted. It was clearly within their jurisdiction, and it was their duty to consider and pass upon it. They did so, and their decision is binding upon the parties to that trial, and cannot be reviewed here.

If it were a question of fact, it was equally the duty of the court martial to consider and determine it upon the evidence before them; and the determination is equally conclusive as if it were a question of law.

It is clear, that the question of punishments authorized by the laws and customs of sea is one purely of fact. Such customs and laws are not written in books, but exist as matters of fact, resting in tradition and practice. This court cannot know them as a matter of law, and certainly not as a matter of fact. How can this court say that imprisonment at hard labor is not a common punishment for offences, where not specified in the statute, in case of offences at sea? Imprisonment is clearly one mode of punishment for many offences known to our laws, including those regulating the naval service, although not specified in words. There are some thirty crimes specified in the statute, where the punishment is within the discretion of the court martial. This may be, by being shut up in the hold, or confined on the deck of a ship, or confinement at such place, at sea or on land, as the court think proper. The sentence may include hard labor or not, at the discretion of the court.

There is nothing in the statute to show that the undefined crimes and punishments may not be dealt with in the same manner. No law or usage is shown in the record on this subject. It follows, that there is no law or usage to restrain the court in relation to the punishment that may be inflicted in the non-enumerated cases. If the plaintiff had believed that, in adjudicating the punishment, the court martial had exceeded the customary and lawful punishment for such offences, he should have framed an issue of fact upon that point, and have gone to the jury upon it, instead of raising an issue of law, where such fact cannot be determined. Instead of doing so, he comes here and asks this court to determine, as a matter of fact, the laws and usages of the sea, where the statute has failed to define them. This court cannot be lawfully called upon, in suits of law, to pass upon any such question.

The very points now in dispute were legitimately before the court martial for its determination. The accused could be heard upon all questions of law and fact. He gave such evidence, as to both, as he saw fit. The court considered the case as presented, and disposed of these same questions as a part of its duty, and thus they become finally and conclusively settled; and the proceeding having been approved by the Secretary, this court is bound to consider them rightfully settled. But, if it should not, still the adjudication is binding upon it. This view of the case is sustained by the highest authority.

In Martin v. Mott, 12 Wheat., pp. 19, 29, 30, this court held that 'the authority to decide whether the exigencies contemplated in the Constitution of the United States and the act of Congress of 1795, in which the President has authority to call forth the militia 'to execute the laws of the Union, suppress insurrections, and repel invasions,' have arisen, is exclusively vested in the President, and his decision is conclusive upon all other persons.'

In Watkins case, 3 Peters, 193, p. 202, the question of the effect of a judgment was fully considered in this court. In delivering the opinion, Story, J., said:

'A judgment, in its nature, concludes the subject on which it is rendered, and pronounces the law of the case. The judgment of a court of record, whose jurisdiction is final, is as conclusive on all the world as the judgment of this court would be. It is as conclusive on this court as it is on other courts. It puts an end to inquiry concerning the fact, by deciding it.'

In Wilcox v. Jackson, 13 Peters, 498, p. 511, this court, speaking of the conclusiveness of judgments, said:

'This proposition is true in relation to every tribunal acting judicially, whilst acting within the sphere of their jurisdiction, where no appellate tribunal is created; and even when there is such an appellate power, the judgment is conclusive when it only comes collaterally into question, so long as it is unreversed.'In Elliott v. Piersol, 1 Peters, 328, p. 340, this court held: 'Where a court has jurisdiction, it has a right to decide every question which occurs in the cause; and whether its decisions be correct or otherwise, its judgment, until reversed, is regarded as binding in every other court.'

Mr. Justice WAYNE delivered the opinion of the court.

The plaintiff brought an action for assault and battery and false imprisonment, charging that the defendant imprisoned him in the penitentiary of the District of Columbia. The defendant pleaded the general issue, and several special pleas, in which he denied the force and injury, and set up, that he, as marshal of the District of Columbia, imprisoned the plaintiff by virtue of the authority of the President of the United States, in the execution of a sentence of a naval court martial, convended under an act of Congress of the 23d of April, 1800; which sentence was approved by the Secretary of the Navy, which was final and absolute, and denying the jurisdiction of the court. The plaintiff filed a retraxit, admitting that there was no battery, other than the imprisonment in pursuance of the sentence of the court martial.

The charge by the Secretary of the Navy was desertion, with this specification: 'that on or about the twelfth day of September, in the year of our Lord one thousand eight hundred and fifty-four, Frank Dynes deserted from the United States ship Independence, at New York.' He pleaded not guilty. After hearing the evidence, the court declared, 'We do find the accused, Frank Dynes, seaman of the United States navy, as follows: Of the specification of the charge, guilty of attempting to desert; of the charge, not guilty of deserting, but guilty of attempting to desert; and the court do thereupon sentence the said Frank Dynes, a seaman of the United States navy, to be confined in the penitentiary of the District of Columbia, at hard labor, without pay, for the term of six months from the date of the approval of this sentence, and not to be again enlisted in the naval service.' This conviction and sentence was approved by the Secretary of the Navy, on the 26th of September, 1854. The prisoner was then brought from New York to Washington, in custody; and the President, reciting the trial and sentence, made the following order upon the defendant, the marshal, in relation to carrying the judgment of the court into execution. 'The prisoners above named (the plaintiff, Dynes, being one among others) having been brought to the city, by direction of the Secretary of the Navy, in the United States steamer Engineer, you are hereby directed to receive them from the commanding officer of said vessel, and commit them to the penitentiary in the District of Columbia, in accordance with their respective sentences.' These facts formed a portion of the defendant's pleas, to which the plaintiff demurred, pointing out the following causes of demurrer:

1. Because the said court martial had no jurisdiction or authority whatever to pass such sentence as that pleaded and set forth in said plea.

2. Because the sentence is illegal and void.

3. Because the President of the United States had no jurisdiction or authority whatever to write such a letter to the defendant as that pleaded and set forth in said plea, nor in any manner whatever to direct the defendant to commit the plaintiff to the penitentiary in the District of Columbia, in accordance with said sentence.

4. Because the said letter, and the said directions therein contained, are unconstitutional, illegal, and void.

5. Because the said plea is altogether vicious and insufficient in law, and wants form.

There was a joinder in demurrer and judgment for the defendant.

This presents the question, whether the defendant, as marshal, was authorized to execute the direction to receive the plaintiff, then in custody of the captain of the United States steamer Engineer, to deliver him to the keeper of the penitentiary of the District of Columbia.

The demurrer admits that the court martial was lawfully organized; that the crime charged was one forbidden by law; that the court had jurisdiction of the charge as it was made; that a trial took place before the court upon the charge, and the defendant's plea of not guilty; and that upon the evidence in the case the court found Dynes guilty of an attempt to desert, and sentenced him to be punished, as has been already stated; that the sentence of the court was approved by the Secretary, and that by his direction Dynes was brought to Washington; and that the defendant was marshal for the District of Columbia, and that in receiving Dynes, and committing him to the keeper of the penitentiary, he obeyed the orders of the President of the United States in execution of the sentence. Among the powers conferred upon Congress by the 8th section of the first article of the Constitution, are the following: 'to provide and maintain a nevy;' 'to make rules for the government of the land and naval forces.' And the 8th amendment, which requires a presentment of a grand jury in cases of capital or otherwise infamous crime, expressly excepts from its operation 'cases arising in the land or naval forces.' And by the 2d section of the 2d article of the Constitution it is declared that 'The President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States when called into the actual service of the United States.'

These provisions show that Congress has the power to provide for the trial and punishment of military and naval offences in the manner then and now practiced by civilized nations; and that the power to do so is given without any connection between it and the 3d article of the Constitution defining the judicial power of the United States; indeed, that the two powers are entirely independent of each other.

In pursuance of the power just recited from the 8th section of the first article of the Constitution, Congress passed the act of the 23d April, 1800, (2 Stat. at Large, 45,) providing rules for the government of the navy. The 17th article of that act is: 'And if any person in the navy shall desert or entice others to desert, he shall suffer death, or such other punishment as a court martial shall adjudge.' The 32d article is: 'All crimes committed by persons belonging to the navy, which are not specified in the foregoing articles, shall be punished according to the laws and customs in such cases at sea.' The 35th article provides for the appointment of courts martial to try all offences which may arise in the naval service. The 38th article provides that charges shall be made in writing, which was done in this case. The court was lawfully constituted, the charge made in writing, and Dynes appeared and pleaded to the charge. Now, the demurrer admits, if Dynes had been found guilty of desertion, that no complaint would have been made against the conviction for want of jurisdiction in the court. But as it appears that the court, instead of finding Dynes guilty of the high offence of desertion, which authorizes the punishment of death, convicted him of attempting to desert, and sentenced him to imprisonment for six months at hard labor in the penitentiary of the District of Columbia, it is argued that the court had no jurisdiction or authority to pass such a sentence; in other words, in the language of the counsel of the plaintiff in error, that 'the finding was coram non judice, it being for an offence of which the plaintiff was never charged, and of which the court had no cognizance. That the subject-matter of the sentence, the punishment inflicted, was not within their jurisdiction, and is a punishment which they had no sort of permission or authority of law to inflict.'

But the finding of the court against the prisoner was what is known in the administration of criminal law as a partial verdict, in which the accused is acquitted of a part of the accusation against him, and found guilty of the residue. As when there is an acquittal on one count, and a verdict of guilty on another. Or when the charge is of a higher degree, including one of a lesser, there may be a finding by a partial verdict of the latter. As upon a charge of burglary, there may be a conviction for a larceny, and an acquittal of the nocturnal entry. So, upon an indictment for murder, there may be a verdict of manslaughter, and robbery may be reduced to simple larceny, and a battery into an assault.

The objection is ingeniously worded, was very ably argued, and, we may add, with a clear view and knowledge of what the law is upon such a subject, and how the plaintiff's case must be brought under it, to make the defendant responsible on this action for false imprisonment. But it substitutes an imputed error in the finding of the court for the original subject-matter of its jurisdiction, seeking to make the marshal answerable for his mere ministerial execution of a sentence, which the court passed, the Secretary of the Navy approved, and which the President of the United States, as constitutional commander-in-chief of the army and navy of the United States, directed the marshal to execute, by receiving the prisoner and convict, Dynes, from the naval officer then having him in custody, to transfer him to the penitentiary, in accordance with the sentence which the court had passed upon him. And this upon the principle, that where a court has no jurisdiction over the subject-matter, it tries and assumes it; or where an inferior court has jurisdiction over the subject-matter, but is bound to adopt certain rules in its proceedings, from which it deviates, whereby the proceedings are rendered coram non judice, that trespass for false imprisonment is the proper remedy, where the liberty of the citizen has been restrained by process of the court, or by the execution of its judgment. Such is the law in either case, in respect to the court, which acts without having jurisdiction over the subject-matter; or which, having jurisdiction, disregards the rules of proceeding enjoined by the law for its exercise, so as to render the case coram non judice. (Cole's case, John. W., 171; Dawson v. Gill, 1 East., 64; Smith v. Beucher, Hardin, 71; Martin v. Marshall, Hob., 68; Weaver v. Clifford, 2 Bul., 64; 2 Wils., 385.) In both cases, the law is, that an officer executing the process of a court which has acted without jurisdiction over the subject-matter becomes a trespasser, it being better for the peace of society, and its interests of every kind, that the responsibility of determining whether the court has or has not jurisdiction should be upon the officer, than that a void writ should be executed. This court, so far back as the year 1806, said, in the case of Wise and Withers, 3 Cr., 331, p. 337 of that case, 'It follows, from this opinion, that a court martial has no jurisdiction over a justice of the peace as a militiaman; he could never be legally enrolled; and it is a principle, that a decision of such a tribunal, in a case clearly without its jurisdiction, cannot protect the officer who executes it. The court and the officer are all trespassers.' (2 Brown, 124; 10 Cr., 69; Mark's Rep., 118; 8 Term R., 424; 4 Mass. R., 234.)

I add two cases from the 2d of Horace Gray's reports of the Supreme Judicial Federal Court of Massachusetts, furnished me by Mr. Justice Campbell, of Pifer v. Person, 120; Clark v. Whipple, in May and Kent, 410.

But the case in hand is not one of a court without jurisdiction over the subject-matter, or that of one which has neglected the forms and rules of precedure enjoined for the exercise of jurisdiction. It was regularly convened; its forms of procedure were strictly observed as they are directed to be by the statute; and if its sentence be a deviation from it, which we do not admit, it is not absolutely void. Whatever the sentence is, or may have been, as it was not a trial by court martial taking place out of the United States, it could not have been carried into execution but by the confirmation of the President, had it extended to loss of life, or in cases not extending to loss of life, as this did not, but by the confirmation of the Secretary of the Navy, who ordered the court. And if a sentence be so confirmed, it becomes final, and must be executed, unless the President pardons the offender. It is in the nature of an appeal to the officer ordering the court, who is made by the law the arbiter of the legality and propriety of the court's sentence. When confirmed, it is altogether beyond the jurisdiction or inquiry of any civil tribunal whatever, unless it shall be in a case in which the court had not jurisdiction over the subject-matter or charge, or one in which, having jurisdiction over the subject-matter, it has failed to observe the rules prescribed by the statute for its exercise. In such cases, as has just been said, all of the parties to such illegal trial are trespassers upon a party aggrieved by it, and he may recover damages from them on a proper suit in a civil court, by the verdict of a jury.

Persons, then, belonging to the army and the navy are not subject to illegal or irresponsible courts martial, when the law for convening them and directing their proceedings of organization and for trial have been disregarded. In such cases, everything which may be done is void-not voidable, but void; and civil courts have never failed, upon a proper suit, to give a party redress, who has been injured by a void process or void judgment. In England, it has been done by the civil courts, ever since the passage of the 1 Mutiny act of William and Mary, ch. 5, 3d April, 1689. And it must have been with a direct reference to what the law was in England, that this court said, in Wise v. Withers, 3 Cr., 337, that in such a case 'the court and the officers are all trespassers.' When we speak of proceedings in a cause, or for the organization of the court and for trials, we do not mean mere irregularity in practice on the trial, or any mistaken rulings in respect to evidence or law, but of a disregard of the essentials required by the statute under which the court has been convened to try and to punish an offender for an imputed violation of the law.

Courts martial derive their jurisdiction and are regulated with us by an act of Congress, in which the crimes which may be committed, the manner of charging the accused, and of trial, and the punishments which may be inflicted, are expressed in terms; or they may get jurisdiction by a fair deduction from the definition of the crime that it comprehends, and that the Legislature meant to subject to punishment one of a minor degree of a kindred character, which has already been recognised to be such by the practice of courts martial in the army and navy services of nations, and by those functionaries in different nations to whom has been confided a revising power over the sentences of courts martial. And when offences and crimes are not given in terms or by definition, the want of it may be supplied by a comprehensive enactment, such as the 32d article of the rules for the government of the navy, which means that courts martial have jurisdiction of such crimes as are not specified, but which have been recognised to be crimes and offences by the usages in the navy of all nations, and that they shall be punished according to the laws and customs of the sea. Notwithstanding the apparent indeterminateness of such a provision, it is not liable to abuse; for what those crimes are, and how they are to be punished, is well known by practical men in the navy and army, and by those who have studied the law of courts martial, and the offences of which the different courts martial have cognizance. With the sentences of courts martial which have been convened regularly, and have proceeded legally, and by which punishments are directed, not forbidden by law, or which are according to the laws and customs of the sea, civil courts have nothing to do, nor are they in any way alterable by them. If it were otherwise, the civil courts would virtually administer the rules and articles of war, irrespective of those to whom that duty and obligation has been confided by the laws of the United States, from whose decisions no appeal or jurisdiction of any kind has been given to the civil magistrate or civil courts. But we repeat, if a court martial has no jurisdiction over the subject-matter of the charge it has been convened to try, or shall inflict a punishment forbidden by the law, though its sentence shall be approved by the officers having a revisory power of it, civil courts may, on an action by a party aggrieved by it, inquire into the want of the court's jurisdiction, and give him redress. (Harman v. Tappenden, 1 East., 555; as to ministerial officers, Marshall's case, 10 Cr., 76; Morrison v. Sloper, Wells, 30; Parton v. Williams, B. and A., 330; and as to justices of the peace, by Ld. Tenterden, in Basten v. Carew, 3 B. and C., 653; Mules v. Calcott, 6 Bins, 85.)

Such is the law of England. By the mutiny acts, courts martial have been created, with authority to try those who are a part of the army or navy for breaches of military or naval duty. It has been repeatedly determined that the sentences of those courts are conclusive in any action brought in the courts of common law. But the courts of common law will examine whether courts martial have exceeded the jurisdiction given them, though it is said, 'not, however, after the sentence has been ratified and carried into execution.' (Grant v. Gould, 2 H. Black, 69; Ship Bounty, 1 East., 313; Shalford's case, 1 East., 313; Mann v. Owen, 9 B. and C., 595; in the matter of Poe, 5 B. and A., 681, on a motion for a prohibition.) A judge, or any person acting by authority as such, where he has over the subject-matter, and over the person, a general jurisdiction which he has not exceeded, will not be liable to have his judgment examined in an action brought against himself; but if jurisdiction be wanting over the subject-matter, and over the person, such judgment would be examinable. (Hammond v. Howel, 1 Mod., 184; Garnett v. Ferrand, 6 B. and C., 611; Moslyn v. Fabugas, Cow., 172; Bonham's case, 8 Co., 114; Greenwell v. Burwell, 1 Le Roy, 454; by Holt, C. J., 1 Le Roy, 470; Lumley v. Lance, 2 Le Roy, 767; Basten v. Carew, 3 B. and C., 649. The preceding cited cases relate to judges of record. As to judges not of record, ecclesiastical judges, Acherly v. Parkerson, 3 M. and S., 411. Commissioners of court of bequests, Aldridge v. Haines, 2 B. and Ad., 395. As to returning officer of election, Ashby v. White, 2 Ld. Raym., 941; Cullen v. Morris, 2 Start, 577.)

In this case, all of us think that the court which tried Dynes had jurisdiction over the subject-matter of the charge against him; that the sentence of the court against him was not forbidden by law; and that, having been approved by the Secretary of the Navy as a fair deduction from the 17th article of the act of April 23d, 1800, and that Dynes having been brought to Washington as a prisoner by the direction of the Secretary, that the President of the United States, as constitutional commander-in-chief of the army and navy, and in virtue of his constitutional obligation, that 'He shall take care that the laws be faithfully executed,' violated no law in directing the marshal to receive the prisoner Dynes from the officer commanding the United States steamer Engineer, for the purpose of transferring him to the penitentiary of the District of Columbia; and, consequently, that the marshal is not answerable in this action of trespass and false imprisonment.

We affirm the judgment of the Circuit Court.

Mr. Justice McLean dissented.

title: Dynes v. Hoover/Opinion of the Court


text: Talk:Dynes v. Hoover/Opinion of the Court