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Noonan v. Bradley/Opinion of the Court

The inquiry here is: What is the legal effect of the facts presented by the pleas of the defendant?

The first plea puts in issue the representative character of the plaintiff in the State of Wisconsin. It denies that, as to the causes of action stated in the declaration, he is or ever has been administrator of the effects of the deceased, and thus raises the question whether an administrator appointed in one State can, by virtue of such appointment, maintain an action in another State to enforce an obligation due his intestate. And upon this question the law is well settled. All the cases on the subject are in one way. In the absence of any statute giving effect to the foreign appointment, all the authorities deny any efficacy to the appointment outside of the territorial jurisdiction of the State within which it was granted. All hold that in the absence of such a statute no suit can be maintained by an administrator in his official capacity, except within the limits of the State from which he derives his authority. If he desires to prosecute a suit in another State he must first obtain a grant of administration therein in accordance with its laws.

So far has this doctrine been extended that in Fenwich v. Sears's Administrators, where the plaintiff had obtained letters of administration in Maryland, before the separation of the District of Columbia from the original States, it was held by this court that he could not, after the separation, maintain an action in that part of the district ceded by Maryland by virtue of these letters, but that he must take out new letters within the district.

The same doctrine is as applicable to the case of executors as to that of administrators; the right to sue in both instances depending upon the letters.

Whether the objection to the character of the plaintiff as administrator or executor should be taken by a plea in abatement or a special plea in bar, would appear to have been, at one time, a matter upon which there was some diversity of opinion. In some of the cases the language used would indicate that a plea in abatement was the only appropriate form in which the objection could be presented, whilst in other cases the objection taken by a special plea in bar has been sustained. It was sustained by this court, when taken by a special plea in bar, in Fenwick v. Sears's Administrators, and in Dixon's Executors v. Ramsey's Executors, already cited. In the latter case a foreign executor brought an action in the District of Columbia. The defendant pleaded that he had not obtained letters in the District or in the United States, and, on demurrer, the plea was sustained.

There is no principle in pleading which should prevent the objection from being taken in this way. It is only in virtue of his representative character that the plaintiff is entitled to the matters in controversy, and a plea which denies to him that character is, in its nature, a plea in bar of the action.

In Langdon and others v. Potter, the Supreme Court of Massachusetts held directly that the objection taken in that case, that no letters of administration had been granted to the plaintiff except under the authority of another State, was pleadable in bar, and in referring to the diversity in the cases and opinions, as to the form of the plea by which the objection should be presented, observed that they might perhaps be 'reconciled by considering the plea, that the plaintiff is not administrator, as one of those which may be pleaded in bar or in abatement.' 'There are many such cases,' said the court, 'where the matter of the plea goes to preclude the plaintiff forever from maintaining the action, and it may therefore be pleaded in bar; yet, as in point of form it is in disability of the plaintiff, it may also be pleaded to the person.' These observations are just, and explain much of the apparent conflict in the decisions of different courts, or of the same court at different times.

The language used by this court in Childress v. Emory and Kane v. Paul, cited by counsel, was not intended to deny that the objection to the authority of the plaintiff as administrator or executor could be taken by a plea in bar, but was only intended to indicate that the objection must be specially pleaded, and could not be urged on demurrer to the declaration for alleged insufficient exhibition of letters testamentary, when profert of the letters was made, or under a plea to the merits.

In the first case the court observed that if the defendant desired to object to the letters as insufficient, he should have craved oyer of them, and had them brought before the court, that unless oyer was craved and granted, the letters could not be judicially examined, and then added that if the plaintiffs were not executors, that objection should have been taken by way of abatement, and did not arise upon a demurrer in bar. The point decided was that the objection could not be taken, when profert of letters was made, without oyer of them, and did not arise in such case upon demurrer. There was no question as to the form of the plea to be used, if the objection were presented in that way; and it is clear that no determination as to the form was intended.

In the second case the plea was non-assumpsit, which admitted plaintiff's right to sue. It was objected that the letters testamentary appeared on their face to have been granted in violation of the law of Maryland, but the court observed that the plea was the general issue, and that a judicial examination into their validity could only be gone into upon a plea in abatement, meaning evidently that such examination could not be had unless the objection were taken by special plea. There was no intention on the part of the court to determine as to the form of the special plea in such cases.

The objection to the character of the plaintiff as administrator in this case is not waived by the third plea, which goes to the merits, as contended by counsel. One plea in bar is not waived by the existence of another plea in bar, though the two may be inconsistent in their averments with each other. The remedy of the plaintiff in such case is not by demurrer, but by motion to strike out one of the pleas, or to compel the defendant to elect by which he will abide. But here there is no inconsistency in the pleas; the one denying any right in the plaintiff, in his capacity as administrator, to the subject of controversy, and the other the release of the defendant from liability on the bond in suit by failure of its consideration. The averments of both may be true.

The proposition of law which the counsel invokes, that a plea to the merits admits the representative character of the plaintiff, and his right to sue in that capacity, is only applicable where no other plea than one of that kind is interposed; it does not apply where a special plea traverses that character. A plea denying that an intestate entered into the obligation upon which the action is brought, or averring that he was released therefrom, standing alone, is undoubtedly an admission of the representative character of the plaintiff to the extent stated in the declaration, and if that statement is consistent with the grant of letters within the State, is also an admission of his right to sue in that capacity. The execution or the release of the obligation is in such case the only matter in issue, and of course is the only matter upon which evidence need be called or argument had. But, in the case at bar, had there been no other plea than the third plea, which goes to the merits, the character of the plaintiff, as administrator in Wisconsin, would not have been admitted, for the reason that the declaration states that the grant of administration to him was by letters issued in the State of New York, and the plea to the merits only admits the title as stated in the declaration.

This effect of a plea to the merits was decided as long ago as the time of Lord Holt, in the case of Adams v. The Tertenants of Savage. In that case the plaintiff brought a scire facias against the defendants, reciting a judgment recovered by his intestate against Savage, and that administration was committed to him by the Archdeacon of Dorset, whose jurisdiction did not extend to the place where the judgment was rendered. The tertenants traversed the seizin of Savage, and the finding being against them, motion in arrest of judgment was made, on the ground that the administration committed to the plaintiff was void. It was urged for the judgment, that though the plaintiff had shown a bad title, the defendants not traversing it, or taking any advantage of the invalidity of the administration, but pleading to the merits, admitted that the plaintiff was entitled to sue, and should not be permitted, when the right was tried against them, to controvert what they had declined to insist upon; but Chief Justice Holt said: 'If the plaintiff had not set forth what kind of administration he claimed by, but only generally alleged himself administrator of the goods and chattels of the intestate, and the defendant had not put you upon showing it by craving oyer of the letters of administration, as he might have done, but pleaded over; that had been an admission of the plaintiff's having a right of suing as administrator as he had alleged.' And after stating that the plaintiff made title to himself by an administration which was invalid, the Chief Justice continued: 'And when you yourself affirm this to be your title, how can we intend you have another; for of your own showing this is your title, which is manifestly bad? And there is a vast difference where a title does not appear fully for the plaintiff, and the party will not controvert with him about that, for then it may be well presumed if the party were not well satisfied of plaintiff's title he would have insisted on it in due time, and where the plaintiff himself shows he has no title, for then the court has no room for intendment.' The authority of this case has not, so far as we are aware, ever been doubted, and were there no other ground against the position of the plaintiff, it would be decisive.

The substitution in this court of the plaintiff as administrator, in place of the intestate, in Noonan v. Lee, does not affect the present case, or give the plaintiff any greater right of action than if no such substitution had ever been made. It only authorized the further prosecution of that suit in his name, and gave no right, and could give no right, to prosecute any other suit in his name.

Nor is the position of the plaintiff aided by the statute of Wisconsin, which enables foreign executors and administrators to sue in certain cases in the courts of that State. That statute only applies where no executor or administrator of the estate of the decedent has been appointed in the State, and then only in the counties where the foreign executor or administrator has filed in the Probate Court an authenticated copy of his appointment.

The second plea, like the first, puts in issue the representative character of the plaintiff in Wisconsin; not by direct denial, as in the first plea, but by averring that there were effects of the decedent in that State at the time of his death, among which was the bond in suit; that an administrator of those effects had been duly appointed and qualified, and had entered upon, and was engaged in, the discharge of his duties as such officer at the time the action was commenced, and that by reason of this appointment and qualification the effects of the decedent, under the laws of Wisconsin, were vested in him, with all rights of action in relation thereto, and that as a consequence the letters issued to the plaintiff in the State of New York, with reference to the causes of action stated in the declaration, are void and of no effect.

This plea is a good plea in bar to the action. The bond in suit was bona notabilia in Wisconsin, and a plea that the subject of action constituting such bona notabilia was, on the death of the decedent, in another jurisdiction than the one which appointed the administrator suing as plaintiff, has always been a good answer to the action. It is an averment of facts which in law excludes all right to, and control over, the property in that State by the foreign administrator.

The third plea sets up a defence to the action on the merits namely, that the title to the premises, for the consideration of which the bond in suit was given, has failed; and that as a consequence, under the agreement of the intestate, the right to enforce the bond has ceased.

This plea alleges that the bond in suit was given only in consideration of the conveyance of a warranty deed by the intestate, and an agreement that in case his title failed he would not enforce the bond, and that by judicial proceedings, of which the intestate had notice and took charge, it was determined that the intestate was not seized at the time he executed the deed in fee of the premises, but that Orton, the party then in the possession, was thus seized of them.

The effect of this plea depends upon the construction which is given to the agreement of the intestate not to enforce the bond in case his title failed. The plaintiff contends that this agreement ceased to have any operation after the maturity of the bond or the forfeiture of the penalty; and that if subsequently the title failed, that fact could not be pleaded with the agreement in bar to an action on the bond, either by way of release or estoppel.

The argument presented in support of this construction is founded mainly upon the improbability that the parties could have contemplated a postponement of payment beyond the period stipulated in the bond. They could not, says the counsel, have intended to set aside the obligation to pay at those times; and it would have been a violation of the spirit of the agreement for the vendee to have refused the payments as they became due, if the title had not then failed.

Undoubtedly the parties contemplated that the payments would be made as they matured, but they also contemplated that payments should cease whenever the title of the grantor failed. They may have supposed that the validity of the title would be determined to their satisfaction before the maturity of any of the instalments stipulated, but they have inserted no provision in the agreement which limits its operation to that or to any other period. It is a perpetual covenant not to enforce the bond upon the happening of a certain event. It matters not that the obligee or his representative might have compelled its payment before the happening of that event. What would have been the rights of the obligor in that case; whether he would have had any remedy to recover back the amount paid, or would have been compelled to look to the covenant of warranty in his deed, are questions not now before us for determination. It is sufficient for our present consideration that the bond has not as yet been enforced, and the title to the property, which the intestate sold and undertook to convey to the defendant, has failed. It would be against manifest justice if, under these circumstances, the representative of the vendor, notwithstanding the vendor had no title to convey, could recover of the defendant as though the vendor had transferred to him a good and perfect one.

If there were any doubt as to the construction which should be given to the agreement of the intestate, that construction should be adopted which would be more to the advantage of the defendant, upon the general ground that a party, who takes an agreement prepared by another, and upon its faith incurs obligations or parts with his property, should have a construction given to the instrument favorable to him; and on the further ground that when an instrument is susceptible of two constructions the one working injustice and the other consistent with the right of the case-that one should be favored which standeth with the right.

This agreement not to enforce the bond, which is conditional in its terms, depending for its operation upon the happening of a contingent event, has, by the happening of that event, become absolute, and may be pleaded as a release to the action. It constitutes in fact a part of the condition of the bond, qualifying its provisions for the payment of the instalments of the principal and interest, and declaring, in effect, that the payments shall not be required, and the obligation of the bond shall cease in case the event designated happens.

The decision in the foreclosure suit only determined that at the time the hearing was had in that case in the District Court, in January, 1860, the title had not failed. The language of the court in rendering the decision shows this. It says: 'As the facts are disclosed in the record we find no defect in the title of Lee. We find that Noonan's title has not failed, and no incumbrance upon the property is shown. There has been, therefore, no breach of the agreement indorsed on the bond, nor has there been any breach of the covenant of general warranty in Lee's deed to Noonan.' The case is entirely changed now; and facts not existing, or at least, not established then, but since determined by judicial proceedings, present a case upon which this court has heretofore never passed.

We are of opinion that the pleas of the defendant constitute a bar to the action, and that the Circuit Court erred in sustaining the demurrer to them. It follows that its judgment must be REVERSED, and the cause remanded FOR FURTHER PROCEEDINGS.

Mr. Justice CLIFFORD, with whom concurred SWAYNE and DAVIS, JJ., dissenting.

title: Noonan v. Bradley/Opinion of the Court


text: Talk:Noonan v. Bradley/Opinion of the Court

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


text:
Noonan v. Bradley/Dissent Clifford

Mr. Justice CLIFFORD, with whom concurred SWAYNE and DAVIS, JJ., dissenting.

I dissent from the opinion and judgment of the court in this case upon two grounds, which I will proceed to state without entering at all into the argument to support the respective propositions—

1. Because I think that the alleged disability to sue should have been pleaded in abatement and not in bar. Undoubtedly a different rule of pleading prevailed at common law, but there are three reported decisions of this court in which it is held that such a plea in a case like the present must be in abatement, and in view of our complicated system of jurisprudence I am not inclined to overrule those cases. They have been regarded as authorities for many years, and I am of the opinion that the rule which they establish is the better one as a rule of pleading in the Federal courts than the rule which prevailed at common law.

2. I am also of the opinion that the decree in the former suit is conclusive as to the rights of the parties, and that it constitutes a complete answer to the defence in the present suit.

title: Noonan v. Bradley/Dissent Clifford


text: Talk:Noonan v. Bradley/Dissent Clifford

title: Talk:Noonan v. Bradley/Dissent Clifford


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The Mayor v. Lord

ERROR to the Circuit Court for the District of Iowa; in which court the United States, on the relation or one R. L. Lord, were plaintiffs, and asked and obtained a peremptory mandamus against the mayor and aldermen of the city of Davenport, defendants.

Messrs. Weed and Clark, for the plaintiff in error; Mr. Grant, contra.

Mr. Justice SWAYNE stated the case, and delivered the opinion of the court.

title: The Mayor v. Lord


text: Talk:The Mayor v. Lord

title: Talk:The Mayor v. Lord


text:
The Mayor v. Lord/Opinion of the Court

This case is brought before us by a writ of error to the Circuit Court of the United States for the District of Iowa. It is one of a class of cases, many of which, under different aspects and presenting a variety of questions, have been heretofore decided by this court. It appears by the record that, on the 6th of November, 1867, the relator procured to be issued against the plaintiffs in error an alternative writ of mandamus, which was substantially as follows:

It recites that the relator recovered a judgment in that court against the city of Davenport, on the 15th of May, 1867, for the sum of $63,509 68/100, and costs; that the city is a municipal corporation, and that its affairs are managed by a mayor and aldermen, who perform all the duties of the corporation in relation to levying and collecting taxes, and paying its debts; that execution has been issued upon the judgment and returned, no property found, and that there is no property belonging to the city liable to execution; that the causes of action upon which the judgment is founded are the principal of certain bonds issued by the city in payment of her subscription to the stock of the Mississippi and Missouri Railroad Company in the years 1853 and 1854, and the interest on these bonds, and the interest on certain bonds of the city issued in the year 1857, under a vote of the people to borrow money for various city improvements; that the mayor and aldermen were empowered by an act of the legislature, of the 22d of January, 1858, whenever necessary, to levy a specific tax to pay the railroad bond debt and interest; that no interest has been paid on this debt since 1861, and that the principal is now due and unpaid; that the mayor and aldermen, besides the specific tax to pay the railroad bonds before mentioned, are authorized by the city charter of January 22d, 1855, to levy a general tax of five mills on the dollar, and, by the general city incorporation act of 1851, one mill on the dollar as a sinking fund to meet its bonded debt; that the valuation of property for the year 1867 is five millions of dollars, which is not more than one-half the cash value of the property; that the property of the city is subject to taxation at its real cash value; that the assessment is made by the city assessor; that the mayor and aldermen are authorized to correct the assessment, when erroneous, and that they have heretofore neglected to perform this duty; that it has been the duty of the mayor and aldermen, since the year 1861, to levy a specific tax amounting to $7500 a year, to pay the interest on the railroad bonds-a tax of one mill on the dollar amounting to $4000 on the assessed value, and $8000 on the real value of the property of the city, as a sinking fund, to be applied to the principal of the bonds, and a tax of ten mills on the dollar for general purposes, which, after defraying the ordinary city expenses (five mills on the dollar being sufficient for that purpose), would amount to $20,000 per year, taking the assessment as the basis of taxation, and $60,000 per year, if the basis were the real value of the property, whereas the whole annual interest of the debt of the city, since 1863, has not exceeded $25,000; that the mayor and aldermen, since the interest became delinquent, have not levied a general tax exceeding five mills on the dollar; that the relator has made a demand on the mayor and aldermen to levy a tax sufficient to pay said judgment; that they have neglected to do so, and that the relator is without other adequate remedy at law.

The mayor and aldermen are, therefore, commanded to levy and collect on the assessment roll for the year 1867 a special tax to pay the interest on the railway bonds, and to levy and collect a special tax of one mill on the dollar on the assessment of 1867, to be applied upon the principal of the bonds on which the judgment was recovered.

It is averred that these two levies, less delinquencies, would amount to between ten and eleven thousand dollars, which, when applied in payment of the judgment, would leave a balance of nearly $50,000 unpaid.

To pay this balance the mayor and aldermen are commanded to cause the real and personal property of the city to be assessed for the year 1868 at its real cash value, and upon such valuation to levy over and above the five mills on the dollar for ordinary city purposes, a specific tax sufficient to pay the balance of the interest on the railway bond debt, amounting to $22,390 75/100; and a specific tax of one mill on the dollar, to be applied in payment of the principal of the bonds embraced in the judgment; to levy and collect the said tax on the valuation of 1867, and apply it on the judgment; to levy and collect the said tax on the real cash valuation of the property for the year 1868, and apply it in payment of the judgment; and if any balance should remain, of principal or interest, to continue to levy and collect the taxes yearly, and to apply them, when collected, in payment of the judgment, until the principal and interest, and costs of the judgment, are fully paid, or that the mayor and aldermen should appear before the court at the time specified and show cause why they refused to do so.

A motion was made to quash the writ, which was overruled. The same motion was subsequently made and again overruled. The mayor and aldermen thereupon made a return.

1. That the writ was issued in the name of the United States, instead of the President.

2. That it was erroneously directed to the mayor and aldermen.

3. It denies that the affairs of the city are controlled by the mayor and aldermen, but avers that they are managed by the city council.

4. It denies that the mayor and council were authorized by the laws mentioned, or that it was their duty to levy and collect the taxes mentioned.

5. It denies that the issue of the bonds for improvements was authorized by a vote, as alleged.

It avers that on or about the 19th of June, 1861, the mayor and aldermen were, and ever since have been, enjoined by the decree of the District Court of Scott County from levying any tax to be applied in payment of the principal or interest of the railroad bonds in question.

6. It denies that the assessed valuation ever amounted to $5,000,000,-that in the year 1867 it amounted to only $4,592,423.

7. It denies that the valuation never exceeded half the cash value, and avers that the city council has always performed its duty in respect to correcting erroneous assessments.

Some details are given as to the expenditures of the city, which it is not deemed necessary particularly to advert to. The relator asked leave to amend the writ as to the name in which it was issued. Leave was given and it was amended accordingly. To the averment that the writ was misdirected, he replied that it was directed properly, the mayor and aldermen composing the city council. To each of the several parts of the residue of the return he demurred specially. At the argument of the demurrer he abandoned his claim for the levying of a tax of one mill for a sinking fund, and the parts of the writ relating to the subject were stricken out. The court sustained the demurrer. The defendants elected to abide by it and made no further return. Thereupon the court awarded a peremptory mandamus, as prayed for.

The learned counsel for the plaintiffs in error have referred to a statute of Iowa as regulating the practice in this class of cases. It is proper to remark that the provisions of that statute not having been adopted by a rule of the Circuit Court for that district, could have no effect in this proceeding. A State law prescribing rules of practice has no efficacy proprio vigore in the courts of the United States. It can only be made effectual by adoption in the proper manner.

The point that the writ was misdirected is not well taken. The direction was substantially correct, and the court properly disregarded the objection.

To the proposition that the bonds issued by the city for improvement purposes were not sanctioned by the requisite popular vote there are two answers: (1.) The respondents are concluded by the judgment at law. They can not go behind it to raise any question touching the sufficiency of either of the causes of action upon which it was rendered. (2.) It is not denied that the relator was an innocent purchaser. In that event, if the bonds could have been properly issued under any circumstances he had a right to presume they were so issued, and as against him the city is estopped to deny their validity.

The injunction cannot avail the respondents. The relator was not a party to the proceeding. If he had been, it is not competent for a State tribunal thus to paralyze the process issued from a court of the United States to give effect to its judgment. This is a sound and salutary principle. It is vital to the beneficial existence of the National courts, and has heretofore been applied by this tribunal, upon the fullest consideration, in other cases presenting the same question.

The denials of the averments in the writ touching the cash value of the property assessed are immaterial. In any event it was the right of the relator to have the respondents required to supervise the valuation, and to correct the errors, if any, which might be found to exist.

The allegations of the return as to the tax laws relied upon by the relator, and the powers and duties of the respondents under them, could have been more appropriately presented upon the motions to quash the writ, or by a demurrer. They were not insisted upon in the argument at the bar. We shall, therefore, content ourselves by remarking that we are satisfied with the conclusions upon the subject reached by the court below.

We think the demurrer to the return was properly sustained, and the order for a peremptory writ of mandamus properly made.

AFFIRMED.

title: The Mayor v. Lord/Opinion of the Court


text: Talk:The Mayor v. Lord/Opinion of the Court


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Supervisors v. Durant

ERROR to the Circuit Court for Iowa, the case being thus:

In 1853, 1854, and 1858, the county judge of Washington County, Iowa, submitted to the voters of that county propositions to subscribe certain sums, and issue bonds accordingly, to aid the making of certain railroads; and a majority of the voters voted in favor of the propositions. The vote required the levy by the county officers of yearly taxes to pay the interest. The bonds were issued, and several of them passed into the hands of one Durant. In April, 1860, certain taxpayers of the county filed a bill against the board of supervisors of the county; Durant, with other holders of the bonds, afterwards appearing and opposing, to enjoin the supervisors (the proper officers to lay taxes) from laying any taxes to pay either principal or interest of these bonds; the ground of the injunction being that the bonds were illegal and void, and that the county officers had no authority to levy and collect taxes to pay either the principal or interest of them. And the board of supervisors were enjoined accordingly. The interest being now unpaid, Durant sued the county in the Circuit Court of the United States for Iowa to compel payment of it. The county set up, by way of plea, the injunction in the State court against it, and the plea being overruled, and the case being fully heard on a case stated, judgment was given in the Federal court against the county. Execution having issued without satisfaction, an alternative writ of mandamus to levy a tax was asked for and obtained by Durant against the county. By way of showing cause against a peremptory writ, the county here again pleaded the injunction from the State court. The plaintiff demurred; assigning as one cause among others, that this court having jurisdiction to render the judgment, had jurisdiction to enforce it, and that no State court could prevent it. The demurrer being sustained, the county brought the case here.

Mr. Henry Strong, for the plaintiff in error, argued elaborately, with numerous citations of cases, that the question was one of jurisdiction, and that in the administration of the powers of the Federal court, it was recognized as a fundamental principle, that the judgment of the State court is binding upon the Federal court, when the State court had jurisdiction of the parties and subject-matter, and the controversy arises out of a contract created under the laws of the State; that the Federal courts are powerless to reverse, modify, or in any manner interfere with such a judgment of the State court, and cannot relieve a party from obedience to a writ issued thereon; that a conflict of jurisdiction was always to be avoided; that it had accordingly passed into an unquestionable principle, that where a court has jurisdiction, it has a right to decide every question that occurs in the cause, and that whether its decision were correct or not, its judgment, until reversed, was to be regarded as binding upon every other court; that 'these rules had their foundation not merely in comity, but in necessity; for that if one court might enjoin, the other could retort by injunction, and thus the parties be without remedy; being liable to a process for contempt in the one, if they dared to proceed in the other.'

He sought to distinguish the case from Riggs v. Johnson County, since there the relator was not a party to the suit for injunction, while here he was.

Mr. Grant, contra, submitted that there was nothing for him to argue to sustain the judgment for the peremptory writ; that the judgment on the coupons was conclusive, and that no defence could be made to the action after that under pretence of State court proceedings.

Mr. Justice STRONG delivered the opinion of the court.

title: Supervisors v. Durant


text: Talk:Supervisors v. Durant

title: Talk:Supervisors v. Durant


text:
Supervisors v. Durant/Opinion of the Court

Since the decisions which have been made by this court during the last four years, there is almost nothing in the record now before us remaining open for adjudication. Indeed, it is not now contended that mandamus is not a proper remedy in cases like the present, when a relator has obtained a judgment, which can be satisfied only by the levy of a tax, and when the proper officers of the municipality, against which the judgment has been obtained, refuse, or neglect to levy it. That it is a legitimate remedy has been ruled in very many cases. In such a case 'the writ is' (to use the language of the court in Riggs v. Johnson County) 'neither a prerogative writ, nor a new suit. On the contrary, it is a proceeding ancillary to the judgment which gives the jurisdiction, and, when issued,' it 'becomes a substitute for the ordinary process of execution, to enforce the payment of the same, as provided in the contract.' It is a step toward the execution of the judgment, and necessary to the jurisdiction of the court.

It is insisted, however, that even if the Circuit Court may award a mandamus to aid in the enforcement of its judgments, the writ should not have been awarded in this case, because the District Court of Washington County had enjoined the defendants against levying and collecting any tax for the payment of the bonds and coupons, for a portion of which the relator had obtained his judgment. This injunction the defendants pleaded, and to the plea the relator demurred. That such an injunction was wholly inoperative to prevent the Circuit Court of the United States from enforcing its judgment by mandamus to the defendants to compel them to levy the tax which the law authorized and required, is no longer to be doubted. Its invalidity to work such an effect has been placed beyond question by the rulings of this court in the cases already cited. In Riggs v. Johnson County, where it appeared that an injunction had been obtained, in one of the State courts, upon the county commissioners, enjoining them against levying any tax to pay certain municipal bonds and coupons, a mandamus was nevertheless sustained to compel the levy of a tax, at the suit of one who had obtained judgment in the Circuit Court for some of the coupons. That case is full authority for the doctrine that an injunction of a State court cannot control, or in any manner affect the action, the process, or the proceeding of a Circuit Court, not because the latter has any paramount jurisdiction over State courts, but because the tribunals are independent of each other. It is true that in Riggs v. Johnson County it appeared the relator in the information, or suggestion for the mandamus, was not a party to the injunction suit, while the relator here was a party defendant. That, however, can make no difference. The present relator, though made a party with the other defendants, was not enjoined. The decree upon the bill for an injunction was exclusively against the board of supervisors of Washington, at the suit of others than the relator. And had he been enjoined, it is not easy to see how that fact could have limited the power of the Circuit Court. We have already remarked that the true reason why the injunction was not a bar to the mandamus is, that the District Court of the State and the Circuit Court are independent courts, and that neither can interfere with the process or proceedings of the other. It would hardly be contended that a State court can enjoin a defendant against paying a judgment which has been, or may thereafter be recovered in a Circuit Court of the United States. If it may, Federal jurisdiction is a myth. It is at the mercy of State tribunals. Yet there is no substantial difference in principle between the allowance of such an injunction, and that of one against a proceeding in aid of an execution; a mandamus to levy an authorized tax to pay a judgment. The District Courts of Iowa are independent of each other. Will the injunction of one District Court limit the power of another District Court to enforce its judgment? To this no one would hazard an affirmative answer. Certainly the Circuit Court of the United States are as exempt from State control by State courts, as are the District Courts of the State from control by each other.

It is of course immaterial whether the injunction of the District Court of Washington County was before or after the judgment obtained by the relator in the Circuit Court of the United States, or whether before or after the institution of the suit. It is not a question which court first obtained possession of the case. In the case of The Mayor v. Lord, the facts were that the plaintiffs in error had been enjoined against levying a tax, before suit was brought in the Circuit Court, yet it was held that the injunction was no sufficient answer to the alternative mandamus commanding them to levy a tax to pay the judgment afterwards recovered.

The plaintiffs in error are thus met at every point of their case by decisions of this court heretofore made, decisions which justify the court below in sustaining the demurrer to their return to the alternative writ, and in awarding a peremptory mandamus.

JUDGMENT AFFIRMED WITH COSTS.


text: Talk:Supervisors v. Durant/Opinion of the Court


text:
The Fairbanks

APPEAL from the Circuit Court for the Southern District of New York, in which court the owners of the brig Santiago filed a libel against the steamer Fairbanks, to recover damages sustained by the brig in a collision with the steamer.

The collision occurred in a fair, mild night of June. The weight of testimony from witnesses went to show that the brig had properly kept on her course, which was about north by east, and that the steamer, which was running about south by west, had not properly avoided her. Opposed to which was a fact, testified to by some witnesses, and which seemed to inspection to be true, viz., that the steamer had been struck in the collision by a square blow, indicative of the fact that the approach of the brig was at right angles.

The District Court decreed in favor of the brig. The Circuit Court on appeal reversed the decree.

Mr. J. C. Carter, for the appellant; Mr. R. D. Benedict, contra.

Mr. Justice CLIFFORD gave the details of the case, and delivered the opinion of the court.

title: The Fairbanks


text: Talk:The Fairbanks

title: Talk:The Fairbanks


text:
The Fairbanks/Opinion of the Court

Rules and regulations for preventing collisions on navigable waters, between ships and vessels engaged in our mercantile marine as well as between ships and vessels in the navy of the United States, have been prescribed by Congress.

Steam vessels, when under way, are required to carry a bright light at foremasthead, so constructed as to show a uniform and unbroken light over an are of the horizon of twenty points of the compass, so fixed as to throw the light ten points on each side of the ship, to wit, from right ahead to two points abaft the beam, on either side, and of such a diameter as to be visible, on a dark night with a clear atmosphere, at a distance of at least five miles. They are also required to carry a green light on the starboard side and a red light on the port side, so constructed as to throw a uniform and unbroken light over an are of the horizon of ten points of the compass, so fixed as to throw the light from right ahead to two points abaft the beam, the former on the starboard side and the latter on the port side, and of such a character respectively as to be visible, on a dark night, with a clear atmosphere, at a distance of at least two miles. Both of the colored lights are required to be so fitted with inboard screens, projecting at least three feet forward from the light, so as to prevent these lights from being seen across the bow.

Sailing ships, under way, are required, by the first-named act, to carry the same lights as steamships, under way, with the exception of the white masthead light, which they shall never carry.

Reference will only be made to two or three of the sailing rules enacted by Congress, as none of the others have any application in this case.

By the fifteenth article it is provided that if two ships, one of which is a sailing ship and the other a steamship, are proceeding in such directions, as to involve risk of collision, the steamship shall keep out of the way of the sailing ship. Steamships, when approaching another ship so as to involve risk of collision, are also required to slacken their speed, and, if necessary, to stop and reverse; and the eighteenth article provides that where one of two ships is required to keep out of the way the other shall keep her course, subject to the qualifications that due regard must be had to all dangers of navigation, and to any special circumstances which may exist in any particular case, rendering a departure from those rules necessary to avoid immediate danger.

Sailing vessels employed in the mercantile service were not required to carry lights before the passage of the first-named act of Congress, but the sailing rules as previously defined by the decisions of this court in the particulars under consideration, were in substance and effect the same as those enacted by Congress, as appears by several reported cases.

Beyond question those cases show that a steamship when approaching a sailing vessel must keep out of the way, and that sailing vessels are required to keep their course in order that the steamship may not be led into error or be baffled in her endeavors to keep out of the way. Bound to keep out of the way, the steamship may go to the right or left, and in order that she may determine the matter wisely, so as to prevent any disaster, the correlative duty is required of the sailing vessel that she shall keep her course.

Many of the material facts in this case are either without dispute or are so fully proved as not properly to be regarded as the subject of controversy. Both parties agree that the collision occurred at eleven o'clock in the evening of the fifth of June, 1864, off the coast of New Jersey, some fifteen miles east of the Highlands. Just before it occurred the brig was heading north by east, and was bound for the port of New York on a voyage from Turk's Island, and the witnesses agree that the wind was southeast and that the brig, when closehauled, would lay within six points of the wind, so that she had the wind five points free. Though not stormy it was rather dark, as there was some haze on the water, but the brig was sailing four or five knots an hour, and there were no other vessels in sight. On the other hand, the steamer was bound on a voyage from the port of New York to Washington, and was heading south by west, and her speed was eight knots an hour.

Some conflict exists in the testimony as to the point whether the brig had the required lights and whether she kept her course as alleged in the libel, or whether she changed it as alleged in the answer, but it will be sufficient to state the facts as they appear to the court without reproducing the testimony of the witnesses or attempting to reconcile their contradictory statements.

The vessels were less than half a mile apart when the brig was descried by the steamer, and it is satisfactorily proved that the brig had the required lights and that her lookouts were properly stationed on the forward part of the vessel. At that time it was the master's watch on board the steamer, but the better opinion from the evidence is that he was in the pilot-house and not on deck, as stated in his deposition. He admits, however, that he saw the approaching vessel, and that he knew that it was a sailing vessel, and his statement is that he changed the course of the steamer from south by west to south-southeast, which cannot be correct, because if he had done so there could not have been any collision, as the speed of the steamer was double that of the brig. But the second mate was on deck at the same time, and he states that the master was in the pilot-house, and that he went to the pilot-house where the master was and told him that there was a vessel ahead, and that the master directed the man at the wheel to change the course of the steamer half a point to the eastward; that he then went forward and walked around; that it appearing to him that the brig had also changed her course in the same way, he went back to the pilot-house and so informed the master, and that the master then told the wheelsman to let the steamer come up half a point more to the eastward. When the master gave the second order he came out of the pilot-house, as the second mate testifies, and looked at the approaching vessel. Beyond question he must at once have discovered that the order just given was insufficient to prevent a collision, and he immediately returned to the pilot-house and directed the helmsman to change the course to southeast, which is the order he should have given in the first instance. But it is evident that his memory is unreliable, as it is clear that the collision could not have occurred if he had given that order, or the one he says he gave, when the brig was first seen by the steamer.

Precautions must be seasonable to be of any avail, but it was too late when he gave the last order, as the second mate testifies that the jibboom of the brig, by the time the order was obeyed, was not more than thirty yeards from the steamer. Even if tested alone by the testimony of the witnesses on board the steamer the court is fully satisfied that the first two orders were not of a character to avoid a collision, and that the third order was not given in season to accomplish the desired result. Confirmed as this theory is by the testimony of the mate and pilot of the brig, the court has no hesitation in adopting it as correct.

Suppose the fact to be so, still it is contended by the claimants that the decree of the Circuit Court must be affirmed, because they insist that the brig changed her course, and that if she had kept it, as she was bound to do, the collision would not have occurred. Grant that the conclusion would follow if the theory of fact involved in the proposition was correct, still the views of the claimants cannot be sustained, as the fact alleged is not satisfactorily proved.

From the time the steamer was first seen to the time of the collision the deck of the brig was in charge of her mate, and he testifies positively that the brig did not change her course, as is supposed by the claimants; and the pilot of the brig, who went below before the collision, testifies that her course when he left the deck was north by east, and that when he came on deck, just before the collision, no alteration had been made in the course. No witness examined in the case on either side is able to support that theory by any positive statement, but the attempt of the claimants is to establish the theory by circumstances, of which the principal one is the appearance of the steamer where she was struck by the brig on her starboard bow. They contend that it was a square blow, and that the character of the injury to the steamer shows that the approach of the brig was at right angles and not head on, as they were substantially approaching when each was first descried by the other.

Although it must be admitted that the argument is ingenious and exceedingly well put, still the decisive answer to it is that the circumstances adduced do not satisfy the court that any such change of course was made by the brig as is supposed, certainly not until the proximity of the two vessels was so close that a collision was inevitable, and then it is quite clear that the steamer made a sudden change, and it may be that the brig also changed her course, as is supposed by the claimants. Fault, under such circumstances, will not be imputed to the vessel required to keep her course if she was otherwise blameless. An error committed by the vessel required to keep her course, after the approaching vessel is so near that the collision is inevitable, will not impair her right to recover for the injuries resulting from the collision if she was otherwise without fault, for the reason that those who put the vessel in that peril are chargeable with the error, and must answer for the consequences which it occasioned. Examined in the light of these suggestions, our conclusion from the evidence is that the steamer was wholly in fault.

DECREE REVERSED, and the cause remanded with direction to

AFFIRM THE DECREE OF THE DISTRICT COURT.

title: The Fairbanks/Opinion of the Court


text: Talk:The Fairbanks/Opinion of the Court

title: Talk:The Fairbanks/Opinion of the Court


text:
Flanders v. Tweed (76 U.S. 425)

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

The 4th section of an act of Congress of March 3d, 1865, thus enacts:

'Issues of fact in civil cases in any Circuit Court of the United States may be tried and determined by the court without the intervention of a jury, whenever the parties or attorneys of record file a stipulation in writing with the clerk of the court waiving a jury. The finding of the court upon the facts, which finding may be either general or special, shall have the same effect as the verdict of the jury. The rulings of the court in the cause, in the progress of the trial, when excepted to, at the time, may be reviewed by the Supreme Court of the United States, upon a writ of error, or upon appeal, provided the rulings be duly presented by a bill of exceptions. When the finding is special, the review may also extend to the determination of the sufficiency of the facts found to support the judgment.'

This statute being in force, Tweed brought suit, in the court below, against Flanders, to recover damages, some $40,000, for the seizure and detention of a quantity of cotton, in New Orleans. He had previously procured the possession of it by a writ of sequestration, according to the practice of the courts in that State. The petition charged that the defendant was a deputy general agent of the Treasury Department of the United States. The defendant pleaded admitting that he was a deputy general agent, as described in the petition, and denied all the other allegations of it. A large amount of evidence was taken in the case on both sides; the plaintiff insisting that he bought the cotton at private sale from the individual owners, and the defendant that it was, at the time, under seizure, and in his possession, as special agent of the Treasury Department, holding it for the use of the government. This evidence and the proceedings of the court occupied about a hundred pages of the record. The court gave judgment against the defendant for $36,976.33. The judgment was rendered 26th February, 1868. A statement of facts by the judge was found in the record, filed May 29th, 1868, nearly three months after the date when the judgment was rendered. This finding of the facts began by stating that 'the cause came on to be tried on the pleadings, by consent of the parties, by the judge presiding; and after hearing the evidence therein, and the argument of counsel, the court finds the following facts.' This statement of the facts by the judge was the only evidence relied on of the consent of the parties to waive a jury, except what might be presumed from the circumstance that both parties proceeded with the trial before the judge without objection in the court below.

The case being brought by Flanders, the defendant below, on error to this court,

Mr. Hoar, Attorney-General, and Mr. W. A. Field, Assistant Attorney-General, going into the record as if the case were in form properly before this court, argued in his behalf that the judgment of the court below should be reversed for want of jurisdiction of the cause in the Circuit Court, with directions that the suit be dismissed. But that if it should be deemed that there was no defect of jurisdiction, then that sufficient ground was presented in the erroneous rulings of the court (which as they conceived they had sufficiently shown) for reversing the judgment, and directing a new trial.

Messrs. Ashton and T. D. Lincoln (a brief of Messrs. Billings and Hughes being filed), contra, argued, that the statement of facts made three months after the proper time, and in a way plainly irregular, was a nullity, and could not be considered here; that the 'statement' being thus disposed of, and there being no demurrer or other pleading on the part of the plaintiff in the record, nor any bill of exceptions, no question of law upon the pleadings, or upon the evidence on either side, was raised by the decision of the court below, and that none could be considered here. The whole subject had been fully settled at this term, in Norris v. Jackson. The legal presumption in favor of the correctness of the judgment below would therefore prevail, and judgment would have to be affirmed if the petition of the plaintiff brought the case within the jurisdiction of the Circuit Court; a matter which the counsel then proceeded to argue that it did.

Mr. Justice NELSON delivered the opinion of the court.

title: Flanders v. Tweed (76 U.S. 425)


text: Talk:Flanders v. Tweed (76 U.S. 425)

title: Talk:Flanders v. Tweed (76 U.S. 425)


text:
Flanders v. Tweed (76 U.S. 425)/Opinion of the Court

The statement of facts by the judge is filed upon the 29th May, 1868, nearly three months after the rendition of the judgment. This is an irregularity for which this court is bound to disregard it, and to treat it as no part of the record. The statement made out of court is, of course, no evidence before us of the facts stated, and this is the only evidence relied on, of the consent of the parties to waive a jury, except what may be presumed from the circumstance that both parties proceeded with the trial before the judge without objection in the court below. The objection is now taken here by the plaintiff in error.

It is impossible to misunderstand the condition upon which, according to the act of March 3d, 1865, the parties are authorized to waive a trial by jury, and substitute the court, and, at the same time, save to themselves all the rights and privileges which belong to them in trials by jury at common law. That condition is the filing with the clerk a written stipulation, signed by the parties, or their attorneys. The necessity of this law, for the purpose designed, will appear by a reference to a few of the decisions of this court. One of the latest is the case of Campbell et al. v. Boyreau. It came up on error from the Circuit Court of the United States for the Northern District of California, and was an action of ejectment before the court, the jury having been waived by the express agreement of the parties. The opinion was delivered by the Chief Justice. He observed: 'It appears by the transcript that several exceptions to the opinion of the court were taken at the trial by the plaintiffs in error,-some to the admissibility of evidence, and others to the construction and legal effect which the court gave to certain instruments in writing. But, it is unnecessary to state them particularly, for it has been repeatedly decided by this court that, in the mode of proceeding which the parties have seen proper to adopt, none of the questions, whether of fact or of law, decided by the court below, can be re-examined and revised in this court upon a writ of error.' He also observed: 'The point was directly decided in Guild and others v. Frontin, which, like the present, was a case from California, where a court of the United States had adopted the same mode of proceeding with that followed in the present instance; and the decision was, again, reaffirmed in the case of Suydam v. Williamson and others, and also in the case of Kelsey and others v. Forsyth, decided at the present term.' He then states the grounds of these decisions, namely, 'that by the established and familiar rules and principles which govern common law proceedings, no question of law can be reviewed and re-examined in an appellate court upon a writ of error (except only where it arises upon the process, pleadings, or judgment, in the case), unless the facts are found by a jury, by a general or special verdict, or are admitted by the parties upon a case stated in the nature of a special verdict, stating the facts, and referring the questions of law to the court.'

The opinion contains a very full exposition of the principles and proceedings in the common law cases, and the departure from them in trial of issues of fact before the court. This case, and those referred to by the learned Chief Justice, establish beyond question that the act of Congress was essential in order to preserve to the parties submitting a cause to a trial before a court, both as to law and fact, the benefit of a review or re-examination of questions of law in the appellate court. The act, while it provides specially the mode of submission, takes care to secure to the parties the right of review as it respects all questions of law arising out of the facts found by the court, giving to this finding the effect as if found by a jury, preserving, at the same time, the right of exceptions to the rulings of the court in the progress of the trial; and, when the finding is special, a right to the appellate court to determine the sufficiency of the facts found to support the judgment.

This act of Congress is the first one that has authorized the parties to dispense with a jury, and try the issue of fact before the court, in respect to all the Federal courts in the Union, except two special acts, one in respect to the State of Louisiana, in 1824, and California and Oregon, in 1864. And it is quite important to settle the practice under it at an early day, and with a precision and distinctness that cannot be misunderstood. The act passed May 26th, 1824, relating to the courts in Louisiana, directed that the mode of proceeding in civil causes, in the Federal courts in Louisiana, should be the same as the practice and modes of proceeding in the District Courts of that State, subject to certain modifications mentioned in the act. The practice in these courts of the State was according to civil law proceedings, and the trial of issues of fact could take place before the court by consent of the parties. This act, unfortunately, not prescribing the mode of procedure when a jury was waived, and the trial before the court, as in the act of 1865, leaving the court to grope its way as best it could under the practice in civil law proceedings, the case to come up ultimately for re-examination before a common law appellate tribunal, has led to the most painful and oftentimes protracted litigation at nearly every term since its passage, and that, too, not upon questions involving the merits, but questions of mere practice. As observed by Mr. Justice Grier in Graham v. Bayne, 'The very numerous cases on this subject, from Field v. United States to Arthurs v. Hart, show the difficulties we have had to encounter in reconciling our modes of review to the civil code of practice as used in the courts of Louisiana;' and these cases have not diminished since the delivery of the opinion in that case.

The history of the proceedings in the Federal courts in Louisiana under the act of 1824 admonishes us, if we may expect to avoid the like difficulties and disorders under the act of 1865, to require, in all cases, where the parties see fit to avail themselves of the privileges of the act, a reasonably strict conformity to its regulations. We have already held that this act of 1865 applies to the Federal courts in the State of Louisiana.

A copy of the stipulation of the parties, or attorneys, filed with the clerk, waiving the jury, should come up with the transcript in the return to the writ of error, so that the court could see that the act had been complied with. There having been no stipulation, nor any finding of the facts, in this case, and no question upon the pleadings, it would follow, according to the general course of proceeding in like cases, heretofore in this court, that the judgment below should be affirmed. There are, however, cases which, under very special circumstances, the court have made an exception, and have simply dismissed the writ of error, an in the case of Burr v. The Des Moines Company, or have reversed the judgment below for a mistrial, and remand it for a new trial, as in the case of Graham v. Bayne. See also Guild v. Frontin. In the present case it is apparent the parties below supposed that they had made up a case, according to the practice in Louisiana, from the finding of the facts by the court, that would entitle them to a re-examination of it here; but as the court did not make it up, and file it, as of the date of the trial and judgment, it cannot be regarded as a part of the record; and, under the circumstances, the case being an important one, and intended to be carried up here for re-examination, we shall REVERSE the judgment for a mistrial, and REMAND it to the court below

FOR A NEW TRIAL.

[See supra, 125, Norris v. Jackson.]


text: Talk:Flanders v. Tweed (76 U.S. 425)/Opinion of the Court


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United States v. Hosmer

THIS was an appeal by the United States from the judgment of the Court of Claims, giving to a discharged soldier a bounty which he claimed of $100.

Mr. Talbot, for the United States; Mr. Schouler, contra.

Mr. Justice SWAYNE stated the case and delivered the opinion of the court.

title: United States v. Hosmer


text: Talk:United States v. Hosmer

title: Talk:United States v. Hosmer


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

The case was decided by the Court of Claims, upon a demurrer to the claimant's petition. The facts set forth in the petition were admitted by the demurrer. The only question before the court was the sufficiency of the facts alleged to warrant the judgment invoked. The case is presented for our consideration in the same manner. We cannot take cognizance of any fact beyond the scope of the record, as it was made up in the court below.

The petition sets forth that the claimant was a private in company B of the 15th regiment of Massachusetts Volunteers; that he was enrolled and enlisted in the service about the 15th of July, 1861, and was honorably discharged by reason of a surgeon's certificate of disability on or about the 5th of January, 1863; that on the 3d of May, 1861, the President called for a volunteer force for the enforcement of the laws, and the suppression of insurrection, by a proclamation, which stated that the details would be made known through the Department of War; that general order No. 15 of the War Department, of May 4th, 1861, and general order No. 25 of that department, of May 26th, 1861, provided that every private who entered the service under the plan set forth should be paid, when honorably discharged, the sum of one hundred dollars; that by the act of Congress of August 6th, 1861, the proclamation and orders were legalized; that the petitioner had duly demanded the sum of one hundred dollars; that his claim had been rejected by the paymaster-general; and that this rejection had been approved by the second comptroller. By consent, the petition was amended by inserting at the proper place that the regiment was organized and accepted under the proclamation and orders before mentioned for the term of three years; and that the petitioner was duly enrolled in the regiment. The United States demurred. The Court of Claims overruled the demurrer, and gave judgment for the petitioner. The United States thereupon brought the case by appeal to this court. The proclamation of the President and the orders of the War Department, relied upon by the claimant, are correctly set forth in the petition, and need not be more particularly adverted to.

The 3d section of the act of August 6th, 1861, declares that 'all the acts, proclamations, and orders of the President of the United States, after the 4th of March, 1861, respecting the army and navy of the United States, and calling out or relating to the militia or volunteers from the States, are hereby approved, and in all respects legalized and made valid, to the same intent, and with the same effect, as if they had been issued and done under the previous express authority of the Congress of the United States.'

This made the case of the petitioner complete. It was unquestionably within the proclamation and orders thus legalized. Congress gave the same validity to the claim as if the petitioner had entered the service under an antecedent statute containing exactly the provisions of the orders under which the claim has arisen.

The attorney for the United States relies upon the act of the 22d of July, 1861. The 1st section of that act provides that 'all provisions of law applicable to three years, volunteers shall apply to two years volunteers, and to all volunteers who have been or may be accepted into the service of the United States for a period not less than six months.' The 5th section provides that $100 shall be paid to privates 'honorably discharged,' who shall have served 'two years, or during the war, if sooner ended.'

This was the first act passed by Congress for calling out troops to suppress the rebellion. It is insisted that it is retrospective as well as prospective in its operation; that it applies to volunteers who entered the service prior to its passage, under the proclamation, as well as those who entered subsequently under its provisions; and that the petitioner, not having served two years at the time of his discharge, was hence not entitled to the hundred dollars in question. It is unnecessary to consider this subject. Conceding the construction contended for to be correct, the consequence insisted on by no means follows. The prior act must yield to the later one. The act of August 6th ratifies the proclamation and orders in the strongest terms. It contains no exception or qualification. It gives to the orders the fullest effect, and leaves the claim of the petitioner in all respects as it would have been if the act of the 22d of July had not been passed. We may add that it would not comport with the dignity of the government thus to breack faith with the gallant men who in that hour of gloom stood forth to peril their lives for their country. Viewing the two acts together, we are confident such was not the intention of Congress.

JUDGMENT AFFIRMED.


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


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The Maggie Hammond

APPEAL from the Circuit Court for Maryland, the facts of the case, so far as they presented questions which were passed on by the judgment of the court having been these:

On the 23d of August, 1866, the Maggie Hammond, a British vessel, being then at Androssan, Scotland, and owned by a British subject domiciled in Nova Scotia, took on board for Morland & Co., British subjects also, residents of Montreal, Canada, a cargo of iron, to be transported from Androssan to Montreal. The bill of lading was in the usual form. The vessel, in consequence of stress of weather, which damaged her considerably, put back, after her voyage had been half accomplished, and reaching Milford Haven, on the coast of Wales, anchored there, September 18th. Surveys were held on the 18th and 25th, the result of which was that the ship being found unseaworthy, was ordered to Cardiff, about a hundred and fifty miles further along the coast, for repairs, there being no facilities for landing and storing the cargo at Milford. On the 9th October the master made formal protest at Cardiff, stating that it had been ascertained by surveys that the vessel could not be repaired in time to complete her voyage before the close of the season; navigation in the St. Lawrence being impeded by ice at a comparatively early time in the winter. The vessel was repaired, and on the 3d of November the surveyors certified that she was in a condition to proceed on her voyage. The average voyage from ports of Great Britain to Montreal is from thirty-five to forty days. The navigation of the St. Lawrence to Montreal, closed as it appeared, in this year, 1866, on the 15th December, and was open in the spring of 1867, on the 22d April. Though, of course, the navigation was not open in all years alike, and though there was some conflict of testimony, the weight of it went to show that it had not usually, in previous years, closed earlier than this. The first vessel from sea in the spring of 1867 arrived 4th May. The agents of Morland & Co., asserting, on the vessel's putting back and returning, that there was no weather or distress which ought to have compelled her to give up the voyage, and that she could even now resume the voyage, and dispute arising on these points, a compromise was attempted. While, however, negotiations were going on, the vessel loaded and sailed for Baltimore with another cargo on the 21st November, leaving the cargo of Morland & Co. in store at Cardiff. The owners of the Maggie Hammond anticipated, as they alleged, when their vessel sailed, that she would be able to complete the voyage to Baltimore and be back at Cardiff in time for the spring navigation, then to take the iron aboard and sail to Montreal. But tempestuous weather made the voyage to Baltimore one of eighty-seven days. The vessel arrived there only on the 17th February, and was chartered back, with an expectation by her owners that she would arrive at Cardiff from the 15th to the 20th of April. This was nearly a month after vessels for Montreal usually leave the English ports. The agents of Morland & Co. accordingly made arrangements with another vessel and forwarded the iron on her. This vessel sailed May 29th, and reached Montreal July 22d.

While the Maggie Hammond was at Baltimore, Morland & Co. libelled her for breach of her contract with them.

The District Court, considering that the repairs were made in time to have allowed the Maggie Hammond to get off in the autumn, and that if they were not the master ought to have foreseen that they would not be, and have sent the cargo on by another ship, decreed in favor of the libellants; holding the ship responsible for the difference between the value of the iron in Montreal on December 15th, 1866, when, as the court considered, it ought to have arrived, and its value in July, 1867, when it did arrive, with interest, &c. The Circuit Court affirmed the decree. The case being here, the questions argued and in issue were these:

I. One of jurisdiction; a point not raised in the pleadings nor by any one below, but suggested here by Messrs. Brune and Browne, for the appellants, and ordered by the court, through Mr. Justice Clifford, to be argued on these three questions:

title: The Maggie Hammond


text: Talk:The Maggie Hammond

title: Talk:The Maggie Hammond