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McCready v. Wells/Opinion of the Court

This is an appeal in admiralty, in a case of collision, from a decree of the circuit court of the United States for the southern district of New York.

The collision occurred on Long Island Sound, off Watch Hill light, on the Connecticut shore, between the schooner Oriana and the steamer Bay State, on the 13th of August, 1847, when the former was run down and sunk. The schooner was laden with coal, and on her way to New Bedford. The steamer was engaged in one of her usual trips from Fall River, through the Sound to the city of New York. On the morning of the accident the weather was thick and foggy, and so dark that a vessel could not be seen over two or three hundred feet off, and the wind at a dead calm. The schooner lay helpless on the water.

The steamer is a large vessel, some sixteen hundred tons burden, with powerful engines, and of great speed, and was coming down the Sound at the time at the rate of sixteen or seventeen miles the hour. The hands on board the schooner heard the noise of her paddle-wheels before she appeared in sight; she was within less than her length when they could first discern her; and she had approached within that distance of the schooner before that vessel was discerned by the hands on board the steamer.

The place where this collision occurred is in the direct track of the coasting trade between the Eastern States, New York, and Pennsylvania, and where the waters are greatly frequented by vessels engaged in it.

We agree, that it is not for this court to lay down any fixed and inflexible rule as it respects the rate of speed of steam vessels navigating these waters. This must depend upon the circumstances attending each particular case. These may justify a rate deemed prudent navigation at one time, that would be wholly unjustifiable at another. But we feel no difficulty in saying, that, in a case circumstanced as the present one, a fog so dense that the most vigilant look-out would be unable to discern a vessel at a distance of more than sixty or one hundred yards navigation, at the time, waters frequented with sailing vessels-a rate of sixteen or seventeen miles the hour is altogether inadmissible as prudent or reasonably safe navigation. According to the testimony of the pilot, it would take four or five minutes to stop The Bay State at this rate of speed; at a reduced rate, it would of course take a proportionably less time. This, in addition to the better opportunity for each vessel approaching to adopt the proper manoeuvre to avoid the collision, should admonish those engaged in navigating vessels of this description, of the propriety, if not necessity, of slacking their speed in thick weather, and especially in a track where other water-craft are usually to be met.

Some of the officers on board this steamer, as is apparent from the evidence, were laboring under a very imperfect appreciation of their whole duty as regarded her proper navigation.

A passenger on board, who witnessed the collision, was struck with the impropriety of the rate of speed, and asked why they ran so fast in a fog, and was answered that it was necessary, in order to enable them to keep their reckoning in going from place to place. And we learn also from the testimony of the pilot and some others, that they make no difference in the rate of speed in consequence of a fog; that they go slow when making land, or a light, or in narrow passages, and when sounding the lead, as if the only precautions they were bound to observe in the navigation were as it respected the safety of their own vessel.

We will only repeat what we said in the case of Newton v. Stebbins, 10 How. 606: 'That it may be matter of convenience that steam vessels should proceed with great rapidity; but the law will not justify them in proceeding with such rapidity, if the property and lives of other persons are thereby endangered.'

We are all satisfied that this vessel was grossly in fault, on account of the rate of speed with which she was moving, under the circumstances, at the time of the collision.

The remaining question is, whether or not the schooner was also in fault. And this, in the present case, depends upon another, namely, whether she omitted any precautionary measures which she was bound to observe under the circumstances, such as beating empty casks or blowing a fog-horn, with a view to give notice to vessels approaching, of her position.

A good many witnesses have been examined as to the usage of vessels navigating the Sound, in respect to the blowing of horns, beating of empty barrels, and the like, in thick and foggy weather; but, on looking carefully into the testimony, it will be found that no such general or established usage has been proved.

The evidence of most of the experienced masters who have been examined goes to disproved the prevalence of any such usage. The practice is occasionally resorted to in the navigation of the Sound, but with what advantage or security against accidents, does not distinctly appear. Without much more evidence of the usage, and of its utility in preventing collisions, than is shown in this case, we cannot say that the omission to comply with it is of itself chargeable as a fault against the schooner. It may well be, that the use of these means should be entitled to consideration upon a nice question of proper vigilance and caution, in a case of collision between two vessels, like any other precautionary measure that might tend to prevent its occurrence. Beyond this, we do not think the evidence as disclosed in the case would justify us in carrying the effect of the omission.

Besides, we are not satisfied, upon the evidence, that the precautionary measure of blowing horns, or ringing a fog-bell, would have been of any avail under the circumstances of this case. The witnesses on the part of the steamer agree that the noise of the motion of the vessel in the water is so great that it could be heard at a much further distance than their own fog-bell; and several of them consider the bell useless for this reason; and one of them states expressly that he did not recollect ever hearing a horn while on a steamboat when she was under way, but had after she stopped. A horn, it is said by some of the witnesses, cannot be heard, at the furthest, over a mile and a half; and if so, it certainly could not be heard any thing like that distance, if at all, on board a steamboat in motion. The steamer, as we have seen, was moving at a rate of more than a mile in four minutes; and taking into view the size of The Bay State, with her powerful engines, together with this rate of speed, it is quite apparent that if a horn could have been heard at all, it could not, upon any reasonable conclusion, in time to have materially influenced the result.

We are satisfied the decree of the court below is right, and should be affirmed.

title: McCready v. Wells/Opinion of the Court


text: Talk:McCready v. Wells/Opinion of the Court

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


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United States v. Jones (59 U.S. 92)

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.

The facts are stated in the opinion of the court.

It was argued by Mr. Cushing, (attorney-general,) for the United States, and by Mr. Carlisle, and Mr. Jones, for the defendant.

Mr. Cushing's points were:--

1. The expenses incurred by Lieutenant Jones while in France, on leave of absence, were not chargeable to the United States. The act of 3d March, 1835, (4 Stats. at Large, 755, 757,) fixed the annual compensation of officers, and prohibited all other allowances. When absent on leave, the government is not bound to provide medical attendance.

2. The secretary of the treasury was not authorized to advance the money in question to Lieutenant Jones.

The act of January 31, 1823, (3 Stats. at Large, 723,) only allows advances to officers employed on distant stations. This was when they received emoluments, which were cut off by the act of 1835.

3. The accounting officers are not bound to allow, in a settlement of an account with an officer, a credit for money unlawfully received or expended, without authority of law.

The act of 3d March, 1849, (9 Stats. at Large, 419,) applies to pursers and storekeepers only, and the disbursement must be made in pursuance of an order from an officer in command. The opinions of the following attorneys-general, do not apply to the case. Mr. Berrien, Parker's case, 1 Opinions Attorney-General, 679; Mr. Taney, Thorp's case, 1 Opinions Attorney-General, 785; Mr. Butler, Parker's case, 1 Opinions Attorney-General, 913; Mr. Johnson, (Miami claim,) Lassell's case, 2 Opinions Attorney-General, 1998; Mr. Crittenden, commissioner of customs, November 13, 1852, MS.

4. Money belonging to the government, which has been wrongfully received, can be recovered back in an action at law.

5. The President is not authorized to expend marine hospital money in a foreign country.

The counsel for defendant in error, contended that the above opinions of attorneys-general were applicable, and

1. That the payment of the medical attendance of an officer, is not such an allowance to the officer, as was contemplated in the prohibition of the act of 1835.

2. That the act of 1823, provides 'that the President of the United States may direct such advances as he may deem necessary and proper, to such persons in the military and naval service as may be employed on distant stations, where the discharge of the pay and emoluments to which they may be entitled, cannot be regularly effected.' Medical attendance is one of these emoluments.

3. Under the acts (1 Stats. at Large, 606, c. 77, § 3; Ib. 729, c. 36, §§ 2 and 3) providing for hospital money, the President is authorized to provide for sick and disabled officers in such manner as to direct, in ports where no United States hospitals exist. The order of the navy department was conclusive on the fourth auditor.

4. The act of 1849 (9 Stats. at Large, 419, Res. 17, § 2,) requires the disbursement to be allowed and the commanding officer to be held responsible. In this case, it would be the President.

5. Money paid under such circumstances with a full knowledge of the facts, cannot be recovered back. 2 East, 469; 4 Dallas, 109; Starkie's Ev. pt. 4, p. 112.

Mr. Justice GRIER delivered the opinion of the court.

title: United States v. Jones (59 U.S. 92)


text: Talk:United States v. Jones (59 U.S. 92)


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United States v. Jones (59 U.S. 92)/Opinion of the Court

The action in this case is for money had and received by the defendant, Jones. It was entered amicably, and submitted on a case stated.

The defendant is a lieutenant in the navy of the United States. In December, 1851, he was in Paris, on leave of absence, and was severely and dangerously wounded by accident, during the emeute or revolutionary outbreak in that month. In July, 1852, he was placed by the secretary of the navy on special duty, for the collection of information relative to the steam navy of France. Afterwards, in August, 1852, the sum of one thousand dollars was transmitted to him by the secretary of the navy, with orders to apply it 'to discharge the expenses attending the injuries received by him in Paris.' It is admitted that this money was disbursed according to the orders of the secretary. The accounting officers of the treasury have charged the amount so disbursed by the defendant against him on his pay account, 'and have refused to recognize the authority of the secretary of the navy in the premises.'

The reason alleged for this refusal by the accounting officer is, that by his construction of the second section of the act of 3d of March, 1835, c. 27, the secretary of the navy had no authority to make such appropriation of the funds of the government in his hands. The act, so far as it is material, is in these words: 'That the yearly allowance provided in this act is all the pay, compensation, and allowance which shall be received under any circumstances whatever by any such officer, &c.'

Notwithstanding an opinion of a late attorney-general to the contrary, the accounting officer 'entertains no doubt' that the expenses attending the medical treatment of a sick and disabled officer or seaman are among the 'allowances' prohibited by this act, and has consequently felt bound to repudiate the secretary's construction of the law, and his opinion as to the powers and duties of his department.

For the purposes of this case, however, it will not be necessary for the court to decide between these discordant opinions as to what things come within the category of 'allowances,' according to the true intent and meaning of the act of congress.

It is the peculiar province and duty of the navy department to provide medical stores and attendance for the officers and seamen attached to that service. It may truly be said, also, to enter into the contract of the government with persons so employed by them. For this purpose, a bureau of medicine is attached to this department, and numerous medical officers appointed. The law, moreover, exacts from every officer and seaman a monthly contribution from their wages to make provision for the sick and disabled. These contributions are applied, under the supervision of the President, to the erection and maintenance of marine hospitals, and similar institutions for the benefit of seamen.

The exigencies of the service often require the employment of soldiers and sailors at a distance from public hospitals, and when the attendance of the medical officers cannot be obtained; or, consequently, in fulfilment of the humane policy of the government, it frequently becomes necessary to employ temporarily physicians not regularly commissioned. For in this way alone can the department perform the duty assumed by the government of providing the necessary medical attendance for those who become sick or disabled in its service. The executive department of the government, to which is intrusted the control of the subject-matter, must necessarily determine all questions appertaining to the employment and payment of such temporary agents, and the exigency which demands their employment. The secretary of the navy represents the President, and exercises his power on the subject confided to his department. He is responsible to the people and the law for any abuse of the powers intrusted to him. His acts and decisions, on subjects submitted to his jurisdiction and control by the constitution and laws, do not require the approval of any officer of another department to make them valid and conclusive. The accounting officers of the treasury have not the burden of responsibility cast upon them of revising the judgments, correcting the supposed mistakes, or annulling the orders of the heads of departments.

In the case before us, the defendant has not come before the accounting officers of the treasury, claiming from the government an 'allowance' for medical attendance while on leave of absence, and submitting to these officers the propriety and legality of such 'allowance.' On the contrary, the agreed case shows, that a sum of money had been transmitted to the defendant by the secretary of the navy to be disbursed, and that he had disbursed it according to his orders; and whether it was for paying for services acknowledged by the secretary to have been rendered to the government for medical attendance on the defendant himself, or on another, could make no difference. The liability of the defendant to refund this money to the government is founded on the act of the accounting officer charging him with it, because, in his opinion, the secretary of the navy had mistaken the law or abused his discretion.

We are of opinion that he was not bound to assume this responsibility.

The propriety of detaching the defendant on special duty in France, of furnishing him with medical attendance while so employed, and of adopting and ratifying his act in the employment of such physician, under all the circumstances, are all subjects peculiarly within the jurisdiction and discretion of the head of the navy department, and not subject to revision or correction by the officers of any other department.

The judgment of the circuit court is therefore affirmed.

Mr. Justice CATRON, and Mr. Justice DANIEL, dissented.


text: Talk:United States v. Jones (59 U.S. 92)/Opinion of the Court


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Page:A Book of Dartmoor.djvu/108

 CHAPTER V. THE FREAKS

T would be amusing were it not melancholy to read the lucubrations of antiquaries of the early part of the nineteenth century on the relics of the past found in such abundance on the moor. Their imagination played a large part in their researches, and references to curious customs in the Bible or in classic writings were drawn in to explain these relics. The antiquaries lacked the faculty of observing accurately, and instead of labouring to accumulate facts, and recording them with precision, employed them as pegs on which to hang their theories, and they whittled at what they did observe, so as to fit what they saw to elucidate these theories. In rambling over the moor they discovered rock idols, logan stones, rock basins, and tolmens, and entered into long dissertations on their employment for worship, oracles, lustrations, and ordeals. There are, indeed, to be seen curious piles of rock, but none of these are artificial, and there is not a 74

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United States v. Coxe (59 U.S. 100)

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.

The case is stated in the opinion of the court.

It was argued by Mr. Chitton, for the plaintiffs in error, and by Mr. Carlisle and Mr. Bradley, for the defendant.

Mr. Justice McLEAN delivered the opinion of the court.

title: United States v. Coxe (59 U.S. 100)


text: Talk:United States v. Coxe (59 U.S. 100)


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United States v. Coxe (59 U.S. 100)/Opinion of the Court

This is a writ of error to the circuit court for the District of Columbia.

The action was brought against the defendant as surety in the administration bond of Austin J. Raines, administrator of Samuel Mackey, late of the Cherokee nation.

Raines received from James Mackey, Joseph Talley, and Preston T. Mackey, as administrators of Samuel Mackey, deceased, a power of attorney for them and in their names to petition the congress of the United States to settle and release the claim of the United States against the said Samuel Mackey, deceased, as principal, and John Drenner, Lewis Evans, and Hiro T. Wilson, as securities; and after the passage of any law in relation to said claim by congress, to receive all moneys that may be due the estate of the said Mackey, deceased, from the treasurer of the United States, and full receipts, acquittances, and relinquishments thereof to make in their name; and further, to adjust and settle with the treasurer of the United States, or other officers of the government, all other claims of said Mackey against the United States, and to receive all moneys due from the United States to said Mackey on any account whatever.

Raines came to Washington and procured a settlement of the accounts between the government and Samuel Mackey, deceased; but the treasury department refused to pay him the balance due Mackey upon the power of attorney, and required him to take out letters of administration. He thereupon applied to the orphans' court of the county of Washington, in the District of Columbia, for letters of administration, which were granted upon his executing bond, with the defendant and James Reeside as sureties. He then received from the treasury the sum of $10,513.05, out of which he paid the expense of administration, and for the balance he executed the following receipt:--

'7th July, 1841. Received of Austin J. Raines, administrator of Samuel Mackey, deceased, the sum of ten thousand five hundred and thirteen dollars and five cents, being the amount due to the representatives next of kin and distributees of said Samuel Mackey, from said administrator.

Signed, JAMES MACKEY,

JOSEPH TALLEY,

PRESTON T. MACKEY.

By their attorney in fact, A. J. RAINES.'

Reeside, the co-obligor in the administration bond, having died several years ago, the process was served only on the defendant.

The declaration contained several counts, stating that the said Samuel Mackey died intestate, leaving Sarah Mackey, his widow, and James Mackey, Preston T. Mackey, William Mackey, George Mackey, Nancy Talley, wife of Joseph Talley, and Corine Mackey, all being citizens of the Cherokee nation, and that, by the laws of said Cherokee nation, the widow and children were distributees of the deceased.

The defendant filed a general plea of performance, on which issue was joined.

On the trial before the jury, among other prayers for instruction was the following: 'If the jury find from the evidence that Austin J. Raines, as administrator of Samuel Mackey, deceased, received from the treasury of the United States the sum of $10,513.05, and after deducting the expenses of administration there remained in his hands the clear sum of $10,505.20 1/2, and no debts of said deceased are shown payable by said administrator; and James Mackey, Joseph Talley, and Preston T. Mackey were the original administrators of said Samuel Mackey, under the laws of the Cherokee nation, the burden of proof is on the defendant to show that said Raines paid said sum of $10,505.20 1/2 to said James Mackey, Joseph Talley, and Preston T. Mackey, or the survivors of them; and although the jury may find that the paper offered in evidence, purporting to be a power of attorney from said James Mackey, Joseph Talley, and Preston T. Mackey to said Raines is genuine, yet the said Raines had no authority to receipt for said parties by himself, as their attorney in fact, to himself as administrator, and that such receipt is not a payment by him as administrator of said parties; and unless such payment be proved otherwise than by such receipt, the said Raines has not performed the condition of this bond as administrator of Samuel Mackey, and the said defendant is liable in this action to the said James Mackey, Joseph Talley, and Preston T. Mackey, or the survivors of them, for the said sum of $10,505.20 1/2, with interest thereon from the date when the same was received;' which instruction was refused, and to which an exception was taken.

There were other exceptions, but this one presents the material points in the case.

By the treaty made between the United States and the Cherokee nation, dated March 14, 1835, in article 5, the United States covenanted and agreed that 'the lands ceded to the Cherokee nation in the foregoing article shall, in no future time, without their consent, be included within the territorial limits or jurisdiction of any State or territory. But they shall secure to the Cherokee nation the right of their national councils to make and carry into effect all such laws as they may deem necessary for the government and protection of the persons and property within their own country belonging to their people, or such persons as have connected themselves with them: provided always, that they shall not be inconsistent with the constitution of the United States, and such acts of congress as have been or may be passed regulating trade and intercourse with the Indians,' &c.

The Cherokees are governed by their own laws. As a people, they are more advanced in civilization than the other Indian tribes, with the exception, perhaps, of the Choctaws. By the national council their laws are enacted, approved by their executive, and carried into effect through an organized judiciary. Under a law 'relative to estates and administrators,' letters of administration were granted to the persons above named on the estate of Samuel Mackey, deceased, by the probate court, with as much regularity and responsibilities as letters of administration are granted by the state courts of the Union.

This organization is not only under the sanction of the general government, but it guarantees their independence, subject to the restriction that their laws shall be consistent with the constitution of the United States, and acts of congress which regulate trade and intercourse with the Indians. And whenever congress shall make provision on the subject, the Cherokee nation shall be entitled to a delegate in the national legislature.

It is refreshing to see the surviving remnants of the races which once inhabited and roamed over this vast country as their hunting-grounds, and as the undisputed proprietors of the soil, exchanging their erratic habits for the blessings of civilization.

A question has been suggested whether the Cherokee people should be considered and treated as a foreign State or territory. The fact that they are under the constitution of the Union, and subject to acts of congress regulating trade, is a sufficient answer to the suggestion. They are not only within our jurisdiction, but the faith of the nation is pledged for their protection. In some respects they bear the same relation to the federal government as a territory did in its second grade of government, under the ordinance of 1787. Such territory passed its own laws, subject to the approval of congress, and its inhabitants were subject to the constitution and acts of congress. The principal difference consists in the fact that the Cherokees enact their own laws, under the restriction stated, appoint their own officers, and pay their own expenses. This, however, is no reason why the laws and proceedings of the Cherokee territory, so far as relates to rights claimed under them, should not be placed upon the same footing as other territories in the Union. It is not a foreign, but a domestic territory-a territory which originated under our constitution and laws.

By the 11th section of the act of 24th of June, 1812, it is provided 'that it shall be lawful for any person or persons to whom letters testamentary or of administration hath been or may hereafter be granted, by the proper authority in any of the United States or the territories thereof, to maintain any suit or action, and to prosecute and recover any claim in the District of Columbia, in the same manner as if the letters testamentary or administration had been granted in the District. Under this law the money due to Mackey might have been paid, and, indeed, should have been paid, to Raines, the attorney in fact of the administrators of Mackey. But, through abundant caution, letters of administration were required to be taken out in this District, as a prerequisite to the payment of the money by the treasury department.

No question could arise as to the validity of the Cherokee law under which letters of administration were granted on the estate of Mackey, and as the power of attorney given by the administrators to Raines seems to have been duly authenticated and proved, a payment to the administrator, by the government, would have been a legal payment. The Cherokee country, we think, may be considered a territory of the United States, within the act of 1812. In no respect can it be considered a foreign State or territory, as it is within our jurisdiction and subject to our laws.

Although an executor or administrator cannot sue in a foreign court, in virtue of his original letters of administration, yet he may lawfully, under that administration, receive a debt voluntarily paid in any other State. Stevens v. Gaylord, 11 Mass. R. 256. In Doolittle v. Lewis, 7 John. Ch. 49, Chancellor Kent held, that a voluntary payment to a foreign executor or administrator was a good discharge of the debt. Shultz v. Pulver, 3 Paige, 182; Hooker v. Olmstead, 6 Pick. 481.

This suit is brought in the name of the surviving administrators of Mackey and of the distributees. Regularly, an action by the distributees could not be sustained, unless an application had been made to the orphans' court in this District to order a distribution, and authorize or direct the administrator, Raines, to pay the same. This administration being ancillary to that of the domicile of the deceased, the distribution would be governed by the law of the domicile.

There appears to have been no creditors of the estate of Mackey in the District of Columbia, and letters of administration were obtained here, as necessary under the decision of the treasury department. This object being accomplished, and the costs of the administration paid, Raines, as agent of the administrators of the domicile, receipted for the money in their behalf, under the power of attorney from the administrators. And the question arises, whether this discharges the defendant as surety on the administration bond of Raines.

Under the power of attorney he was authorized to receive all moneys that may be due the estate of Mackey from the treasurer of the United States, and receipt for the same. He received and receipted for the money as administrator in this District, and then executed a receipt to himself as agent, under the power of attorney as agent for the administrators.

Under the circumstances, it would be a hardship fraught with injustice, to hold the defendant liable as surety on the administration bond. Raines was the confidential agent of the administrators of Mackey-the money was placed in his hands, under full authority to receive it. It has never been paid over, it is said, by reason of the bursting of a boiler, by which Raines lost his life and the money which he had received. But whether this be true or not, the money went into the hands of Raines, who was the agent of the administrators, duly authorized to receive it; and we think, under the peculiar circumstances of the case, the defendant was thereby discharged. Whether for the payment of creditors or distribution among the heirs, the domicile of the deceased was the place to which the money should be transmitted. It would add to the conditions of the administration bond, to hold the defendant responsible for the safe transmission of the money, after it was placed in the hands of the agent of the administrators.

Had the receipt of Raines been duly filed and acted upon, in the court of probate, his surety on his administration bond would have been discharged. The action of the probate court only is wanting, but we think such action was not essential, and that the equity of the case is equally clear without it. The parties are estopped from denying the agency of Raines.

In Vaughan v. Northup et al., 15 Pet. 6, this court say: 'The debts due from the government of the United States have no locality at the seat of government. The United States, in their sovereign capacity, have no particular place of domicile, but possess in contemplation of law an ubiquity throughout the Union; and the debts due by them are not to be treated like the debts of a private debtor, which constitute local assets in his own domicile. On the contrary, the administrator of a creditor of the government, duly appointed in the State where he was domiciled at the time of his death, has full authority to receive payment, and give a full discharge of the debt due to his intestate, in any place where the government may choose to pay it.'

We think there is no error in the ruling of the court, and the judgment of the circuit court is therefore affirmed.

Justices NELSON and CURTIS stated that they concurred in the decision of the court to affirm the judgment of the circuit court, upon the ground that, as no final account had been settled by the administrator in the orphans' court, and no order had been made by that court, either directing the administrator to pay the balance in his hands to the principal administrators, for distribution by them, or directing a distribution to be made here, there was no breach of the bond. That this being an ancillary administration, it depended upon the discretion of the orphans' court, which granted it, whether the money, remaining in the hands of the ancillary administrator, after the satisfaction of all claims in this jurisdiction, should be distributed here, by the ancillary administrator, or remitted to the principal administrators for distribution; and until that discretion shall be exercised, and the ancillary administrator directed which of these courses to pursue, he is in no default, and his surety is not liable.


text: Talk:United States v. Coxe (59 U.S. 100)/Opinion of the Court


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Sessions v. Pintard

THIS was an appeal from the circuit court of the United States for the eastern district of Arkansas.

It was a sequel to the case of Goodloe's Administrator v. Pintard, decided in this court and reported in 12 How. 24. The subsequent proceedings are stated in the opinion of the court.

It was submitted on printed argument by Mr. Pike, for the plaintiffs in error, and argued by Mr. Carlisle and Mr. Crittenden, for the defendants.

Mr. Pike stated the question which arose in the case in this way:--

The question in the case may be very briefly stated thus: Where, in a suit to enforce a lien on land for the purchase-money due the vendor, there is a decree ascertaining the amount due by the vendee, and recognizing the lien, and ordering payment or sale of the land, and, on appeal from this decree, sureties enter into a bond conditioned to prosecute the appeal with effect and make good all damages and costs, how far does the land stand as their security? If, when it is sold, the amount decreed, with interest, is more than the penalty of their bond, and the land sells for less than the penalty, in what way are the proceeds to be applied? Shall they be credited upon the aggregate of the decree, perhaps leaving the sureties to pay the whole penalty, or against the penalty, or proportionally against the penalty and the excess over it?

The condition of the bond was to prosecute the appeal with effect, and pay all damages and costs in case of failure to make the appeal good. The damages were the interest which accrued between the dates of the decree against Goodloe and the judgment against the bail, amounting to less than $7,000. This should have been the extent of the recovery, and not the whole penalty of $12,000.

The surety who pays money for the principal is entitled to all the securities which the plaintiff has for the debt. Union Bank of Maryland v. Edwards, 2 Gill & Johnson, 353; 7 Serg. & R. 9; 3 Serg. & R. 309; 10 J. R. 524; 2 J. Cas. 227; 2 J. C. R. 554.

The counsel for Pintard contended that the credits had been properly applied and given.

Mr. Justice McLEAN delivered the opinion of the court.

title: Sessions v. Pintard


text: Talk:Sessions v. Pintard

title: Talk:Sessions v. Pintard


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Sessions v. Pintard/Opinion of the Court

This is an appeal from the circuit court of the eastern district of Arkansas.

Pintard, on the 10th of April, 1847, obtained a decree against Archibald Goodloe for $10,552, with ten per cent. interest per annum on the amount decreed. There was also an order that a certain tract of land should be sold, and the proceeds applied to the payment of the decree.

An appeal was taken from this decree to this court, by which the decree was affirmed. On the 20th of February, 1852, Pintard commenced an action against Sessions and others on the appeal bond, and at April term, 1853, obtained a judgment on the bond for the penalty thereof, amounting to the sum of $12,000.

At the same time, Pintard procured an order for the sale of the land specified in the decree, which was sold on the 15th of November, 1852, for the sum of $8,025, which, after paying the expense of the sale, left a balance of $7,525 as a credit on said decree, as of the 15th of November, 1852. The interest, with the sum decreed, up to that period, amounted to $16,877. The proceeds of the sale of the land being deducted from this sum, leaves a balance on the decree of $8,912, with interest from the 17th day of April, 1853. The interest on this sum, up to the time judgment was rendered on the appeal bond, makes the sum of $9,283, as the amount to be collected on the judgment.

An execution was issued on the judgment the 14th of May, 1853, for $12,000, with an indorsement of a credit of $2,717. This execution was levied on a number of slaves, of the value of $12,000, as the property of Sessions, the defendant. A delivery bond was taken for the slaves, with Daniel H. Sessions as security; but the slaves not being delivered on the day of the sale, an execution was issued against principal and surety on the delivery bond.

At this stage of the proceedings, a bill was filed by the appellants, complaining that the distribution which had been made of the proceeds of the sale of the land was inequitable, and that such proceeds should be credited on the judgment entered upon the appeal bond, pro rata, and not exclusively on the decree; and the complainants pray that Pintard may be decreed to enter a credit upon the judgment as aforesaid, as of its date, for the sum of $5,323.35; and that a perpetual injunction might be granted to prevent him from collecting any more than the residue of the judgment, after deducting the above sum.

A temporary injunction was granted, Pintard filed his answer, and, upon the final hearing, the injunction was dissolved and the bill dismissed, at the costs of the complainants. From this decree an appeal was taken, and that brings the case before us.

The complainants in their bill allege no fraud nor mistake, as a ground of relief. They claim that the money received under the decree for the sale of the land shall be applied, pro rata, in the discharge of the judgment against them, and the balance of the decree which remains after deducting the judgment. This would give to them a credit on the judgment of $5,724; and that Pintard, in claiming the whole amount of the judgment, seeks to recover from them $3,568.99 more than in equity he is entitled to.

This claim of the appellants rests upon the ground that there was a lien on the land sold by the original decree, which operated as an inducement to them to become sureties on the appeal bond. The land, by the original decree, was directed to be sold; consequently, the proceeds of the sale could be applied only in discharge of the decree. On what ground could the appellants claim a pro rata distribution of this fund? They were bound to the extent of the penalty of their bond, on which a judgment was entered. They had a direct interest in the application of the proceeds of the land to the payment of the original decree, including the interest and costs; and so much as such payment reduced the original decree below the amount of the judgment against them, they were entitled to a credit on the judgment. The judgment has been so made, and the credit entered, and beyond this they have no claim either equitable or legal.

In the argument, a subrogation of the land or its proceeds, for the benefit of complainants, is urged; but on what known principle of equity does not satisfactorily appear. Had the appellants paid the decree in full, they might have claimed a control over the land decreed to be sold, or its proceeds. They made no payment, but assert a general equity to have the fund applied, pro rata, on their judgment. This would leave a large amount of the original decree unsatisfied. On what ground could Pintard be subjected to such a loss? He looked to the land and the surety on the appeal bond, which more than covered his decree, including interest and cost.

The condition of the appeal bond was, 'for the prosecution of said appeal to effect, and to answer all damages and costs, if' there should be a failure to make the plea good in the supreme court. There was a failure to do this, and the penalty of the bond was incurred. Whatever hardship may be in this case is common to all sureties who incur responsibility and have money to pay. Beyond that of a faithful application of the proceeds of the land in payment of the decree, the appellants have no equity. They cannot place themselves in the relation of two creditors having claims on a common fund, which may be distributed pro rata between them. Pintard has a claim on both funds; first, on the proceeds of the land, and second, on the judgment entered on the appeal bond for the satisfaction of the original decree.

The decree of the circuit court is affirmed, with costs.


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Curtis v. Petitpain

THIS case was brought up by writ of error from the circuit court of the United States for the eastern district of Louisiana. It is stated in the opinion of the court.

It was argued by Mr. Taylor, for the plaintiffs in error, and Mr. Benjamin, for the defendants.

The point of practice, upon which the case went off, was raised by Mr. Benjamin, who contended that the transcript was not such a complete record as was required by the 11th and 31st rules of court.

The points made relating to the merits of the cause are omitted.

Mr. Justice CAMPBELL delivered the opinion of the court.

title: Curtis v. Petitpain


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Curtis v. Petitpain/Opinion of the Court

The record certified in this cause consists of 'an agreed statement of facts,' which the parties submitted to the court on the rules taken by the plaintiffs against the defendants, and the judgment rendered thereon, and a judgment rendered on a motion for a new trial, being the proceedings after the submission of the case.

The case stated is, that the plaintiffs recovered a judgment against Victor Feste in the circuit court of the United States. That an execution issued thereon, and a seizure was made of immovable as well as movable property; which was sold, and the proceeds held by the marshal.

While these proceedings were pending, Madame Feste recovered, in one of the state courts, a decree against her husband, Victor Feste, for the separation of property and the amount of dowry brought in marriage; and thereupon served a notice upon the marshal, claiming to have satisfaction of her legal mortgage, in preference to the execution creditor, from the moneys in his hands, and obtained a rule from the court requiring him to answer her claim. The plaintiffs, upon their part, (as the case states,) also obtained a rule, to enforce the payment of the money to them on their execution. To settle these conflicting claims was the object of the agreed case thus submitted to the court.

Two questions arise in limine, either of which is, in our opinion, decisive of this cause: 1st. That this is not such a transcript as will satisfy the 11th and 31st rules of this court, under the decision of Keene v. Whittaker, 13 Pet. 459; and, 2d, that this is not such a judgment as this court can re examine, according to the principle of Bayard v. Lombard, 9 How. 530. And we agree with the defendants upon both these questions.

The cause is dismissed with costs.


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Jecker, Torre, and Company v. Montgomery

THIS was an appeal from the circuit court of the United States for the District of Columbia, holden in and for the county of Washington.

The case is stated in the opinion of the court.

It was argued by Mr. Coxe and Mr. Nelson, for the appellants, and Mr. Key and Mr. Johnson, for the appellees. The arguments consisted chiefly in comments upon the evidence upon both sides, and, for the appellants, in the legal objection that the libel should have been filed in the name of the United States, instead of an individual.

Mr. Justice DANIEL delivered the opinion of the court.


text: Talk:Jecker, Torre, and Company v. Montgomery


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Jecker, Torre, and Company v. Montgomery/Opinion of the Court

This is an appeal from a decree in admiralty by the circuit court of the United States for the District of Columbia, by which decree the ship Admittance, claimed by the appellants, Charles B. Fessenden and Richard S. Fay, as owners, and the cargo of the same ship claimed by the appellants, Jecker, Torre and Co. and Manual Quintana, were upon a libel filed by the appellee, John B. Montgomery, condemned as prize of war.

It will serve to explain the nature of the present controversy, and the character of the decree of the circuit court above mentioned, to refer to the proceedings heretofore had therein upon a libel filed by the claimants of the cargo for restitution, and to the decision of this court upon cross-appeals from those proceedings, both by the claimants and the captor, out of which lastmentioned decision the case before us has arisen.

By the decision of this court just referred to, (see 13 Howard, p. 498,) we hold the following propositions to have been expressly ruled:--

1. That the admiralty court of the District of Columbia had jurisdiction of the libel for the condemnation of the property in contest, although such property was not brought within its jurisdiction; and if they found the subject liable to condemnation, might proceed to condemn, although not in fact within the custody or control of the court.

2. That the admiralty court in the District of Columbia, having jurisdiction of the case, it was its duty to order the captors to institute proceedings in that court to condemn the property as prize, by a day to be named in the order; and in default thereof to be proceeded against upon a libel for an unlawful seizure; because the property of the claimant is not devested by the capture, but by condemnation in a prize court-is not devested until condemnation, though such condemnation will relate back to the capture.

3. That the grounds alleged for the seizure of the vessel and cargo, namely, that the vessel sailed from New Orleans with the design of trading with the enemy, and did in fact hold illegal intercourse with them, are sufficient, if supported by testimony, to subject both vessel and cargo to condemnation.

4. And if they were liable to condemnation, the reasons assigned in the answer for not bringing the vessel and cargo into a port of the United States for trial-namely: that it was impossible so to do consistently with the public interest-is sufficient, if supported by proofs, to justify the captors in selling vessel and cargo in California, and to exempt the captors from damages on that account.

5. That to a libel for restitution, probable cause for seizure in no defence; but is so only against a claim for damages, in cases in which the property has been restored or lost after seizure.

Under the authority of the rulings just enumerated, and in obedience to the mandate founded thereupon, the libel in the cause now before us was filed; and the case made by the parties presents, as the material questions for consideration, the inquiries; 1. Whether the vessel sailed with the design of trading with the enemy, and did in fact hold illegal intercourse with them. 2. Admitting that the vessel and cargo were in the first instance liable to condemnation, whether the reasons assigned for not bringing them within the United States were so supported by proof, as to justify the captor in not bringing them within the United States, and in selling them in California, without a forfeiture of their rights as captors.

As a principle applicable to the first of these inquiries, it may be averred as a part of the law of nations-forming a part, too, of the municipal jurisprudence of every country-'that in a state of war between two nations, declared by the authority in whom the municipal constitution vests the power of making war, the two nations and all their citizens or subjects are enemies to each other.' The consequence of this state of hostility is, that all intercourse and communication between them is unlawful. Vide Wheaton on Maritime Captures, cap. 7, p. 209, quoting from Bynkershoeck this passage: '''Ex natura belli commercia inter hostes cessare, non est dubitandum. Quamvis nulla specialis sit commerciorum prohibitio, ipso tamen jure belli, commercia inter hostes esse vetita, ipsae indictiones bellorum satis declarant''.

Upon this principle of public law, it has been the established rule of the high court of admiralty in England, that a trading with the enemy, except by a royal license, subjects the property to confiscation. The decisions of that court show that the rule has been rigidly enforced, as, for instance, where the government had authorized a homeward trade from the enemy's possessions, but had not specifically protected an outward trade to the same; and again, in instances where cargoes have been laden before the war, but where the parties had not used all possible diligence to countermand the voyage after the first notice of hostilities; and this rule has been enforced, not only against subjects of the Crown, but likewise against those of its allies in the war, upon the assumption that the rule was founded on the universal principle which states allied in war had a right to apply to each other's subjects. Vide Wheaton on Captures, p. 212; and 1 C. Robinson's Adm. R. 196, The Hoop.

The same rule has been adopted with equal strictness by this court. In the case of The Rapid, reported in 8 Cranch, 155, the claimant, a citizen of the United States, had purchased goods in the enemy's country a long time before the declaration of war, and had deposited them on an island near the boundary line between the two countries. Upon the breaking out of hostilities, his agents had hired the vessel to proceed to the place of deposit and bring away these goods. Upon her return the vessel was captured, and, with the cargo, was condemned as prize of war for trading with the enemy. In applying the law to this state of facts, this court said, and said unanimously; 'That the universal sense of nations has acknowledged the demoralizing effects that would result from the admission of individual intercourse. The whole nation are embarked in one common bottom, and must be reconciled to submit to one common fate. Every individual of the one nation must acknowledge every individual of the other nation as his own enemy, because the enemy of his country. But, after deciding what is the duty of the citizen, the question occurs, what is the consequence of a breach of that duty? The law of prize is a part of the law of nations. In it, a hostile character is attached to trade, independently of the character of the trader who pursues or directs it. Condemnation to the use of the captor is equally the fate of the property of the belligerent and of the property engaged in anti-neutral trade. But a citizen or an ally may be engaged in a hostile trade, and thereby involve his property in the fate of those in whose cause he embarks.' Again, the court say: 'If by trading, in prize law was meant that signification of the term which consists in negotiation or contract, this case would not come under the penalties of the rule. But the object and spirit of the rule is to cut off all communication or actual locomotive intercourse between individuals of the belligerent nations. Negotiation or contract, has, therefore, no necessary connection with the offence. Intercourse inconsistent with actual hostility is the offence against which the operation of the rule is directed.'

The case of The Joseph, reported in 8 Cranch, p. 451, was that of a vessel owned by citizens of the United States, that sailed from thence before the war, with a cargo on freight on a voyage to Liverpool and the north of Europe, and thence back to the United States. After arriving and discharging her cargo at Liverpool, she took in another at Hull, and sailed for St. Petersburg. At St. Petersburg, she received news of the war with England, and sailed to London with a Russian cargo consigned to British merchants; delivered her cargo and sailed for the United States in ballast, under a British license, and was captured. In the opinion of this court in this case, delivered by Washington, Justice, it is said: 'That after the decision in the cases of The Rapid and of The Alexander, it is not to be contended, that the sailing with a cargo on freight from St. Petersburg to London, after a full knowledge of the war, did not amount to such a trading with the enemy as to have subjected both the vessel and cargo to condemnation as prize of war, had she been captured on that voyage. The alleged necessity of undertaking that voyage to enable the master out of the freight to discharge his expenses at St. Petersburg-countenanced, as the master declares, by the opinion of our minister at St. Petersburg, that by undertaking such a voyage he would violate no law of the United States although these considerations, if founded in truth, present a case of peculiar hardship, yet they afford no legal excuse which it is competent to this court to admit as the basis of its decision.'

The same course of decision which has established that property of a subject or citizen taken trading with the enemy is forfeited, has decided also that it is forfeited as prize. The ground of the forfeiture is, that it is taken adhering to the enemy, and therefore the proprietor is pro hac vice to be considered as an enemy. Vide also Wheaton on Captures, p. 219, and 1 C. Robinson, 219, the case of The Nelly.

Attempts have been made to evade the rule of public law, by the interposition of a neutral port between the shipment from the belligerent port and their ultimate destination in the enemy's country; but in all such cases the goods have been condemned, as having been taken in a course of commerce rendering them liable to confiscation; and it has been ruled that, without license from government, no communication, direct or indirect, can be carried on with the enemy; that the interposition of a prior port makes no difference; that all trade with the enemy is illegal, and the circumstance that the goods are to go first to a neutral port will not make it lawful. 3 C. Robinson, 22, The Indian Chief; and 4 C. Robinson, 79, The Jonge Pieter.

Having thus stated the law with regard to maritime captures, it remains to be ascertained how far the case before us upon the pleadings and proofs, falls within the scope or the terms of that law.

The libel propounds, that the libellant, as the commander of the United States ship Portsmouth, did, on the 7th of April, 1847, at the port of San Jos e in lower California, in the Republic of Mexico, seize and take possession of as lawful prize, a certain ship or vessel called The Admittance-one Peter Peterson being the master-with her cargo, provisions, tackle, and all other appurtenances to the said ship belonging. That the said ship is a merchant vessel belonging to citizens of the United States, and that the cargo of said ship is believed by the libellant to have belonged to certain merchants resident in Mexico. That about the month of October, 1846, the said ship with her cargo, left the port of New Orleans for a port in the Republic of Mexico, into which port the captain intended to discharge the cargo. That for some time prior to the sailing of this ship, and upon the day of her seizure, open and public war existed between the United States and the Republic of Mexico and its dependencies. That in consequence of said state of war, and in discharge of his duty, the ship Admittance, with her cargo, was seized by the libellant as prize of war.

The libellant further propounds, that Peterson, as master of the said ship, did sail from the United States with the intention of trading, and in fact did trade and otherwise hold illegal intercourse with the enemies of the United States, whereby the said ship, her cargo, tackle, and appurtenances, became subjects of lawful prize. All which illegal intention and acts of the master more fully appear by the papers of the said ship, and by other papers received from the master by the libellant, numbered from one to fifteen inclusive; from the deposition of William Bell, the first mate of The Admittance, and from the log-book-all of which it is prayed may be made parts of the libel; which concludes with a prayer for condemnation of ship and cargo, and for the dismission of the libel previously filed by Torre, Jecker, and Co., praying restitution of a portion of the cargo.

To the libel of Captain Montgomery were filed an answer on behalf of Fessenden and Fay, who intervened as owners of the ship, and separate answers on behalf of Jecker, Torre, and Co., and of Manuel Quintana, as owners of the cargo.

These answers, so far as they are made up merely of general denials of the charges propounded in the libel, require no special animadversion. So far, however, as the specific facts alleged in them by way of exculpation, the compatibility of those facts with the established law of prize, or with the proofs adduced in the case, become a question, the statements in these answers are matters of essential importance, requiring particular examination.

The respondents Fessenden and Fay, have in their answers observed and entire silence with respect to a knowledge on their part as to the destination of the ship or cargo; whilst they are very explicit in the assertion of their belief, that the cargo was put on board by the charterer, and that the ship sailed under a full persuasion that a treaty of peace would speedily terminate the then existing war between the United States and Mexico, and that they never were informed, nor do they believe, that the cargo was to be landed or disposed of in Mexico until after the termination of the war. Personally they say, that they know nothing of what occurred in relation to the ship and cargo in the Pacific; but from what they have learned they believe, and therefore aver, that there was no trading with the enemy at any time during the voyage. This statement which implies knowledge in the respondents of the existence of war between the United States and Mexico at the time of chartering of their ship, and knowledge likewise that the cargo put on board was destined for the port of a nation, at the time of the shipment at any rate, in open hostility with the United States, will, as to its verity, be further tested by a comparison with the testimony furnished by the papers found in the captured vessel and by the examination of witnesses. And in this connection it may be observed, that the bare permission by the owners of the use of their vessel in hostile or piratical enterprises, renders such vessel liable to capture and condemnation equally with her employment in similar offences under the immediate command of such owners themselves. Vide the case of The United States v. The Brig Maleck Adel, 2 How. 234; The United States v. The Schooner Little Charles, 1 Brok. Rep. 347; The Palmyra, 12 Wheat. 14; 1 C. Rob. R. 127; The Vrow Judith.

Comparing this answer with the papers found on board the captured vessel, we see it expressly stipulated in the charterparty, the very contract by which the ship was hired, and which was signed by these respondents, that the ship shall proceed to New Orleans, and there take from the charters Wylie and Ygana, 1,100 bales of cotton, to be delivered at the port of San Blas to the order of the shipper, the consignee paying freight for the room occupied in the ship by the cotton, eleven hundred dollars, payable on delivery of the cargo; the cargo to be received at New Orleans and discharged at San Blas with dispatch. The charter-party further provides, that if on the arrival of the ship off San Blas, the port is blockaded, or other obstructions prevent the discharge of the ship, she shall proceed to the Sandwich Islands, and there remain until the port is open, the said Wylie and Ygana paying in addition to the charter the further sum of one thousand dollars per month during such detention. We will hereafter state what is conceived by this court to be the proper construction of this phrase, 'if the port is blockaded, or other obstructions prevent the discharge of the ship.' Independently of this phrase, however, we have, on the face of this contract, the declaration that the shipment was made to an enemy's port; that the delivery was to take place at that port; that the interposition of the neutral island of Honolulu was not for the purpose of trade with, or transshipment at that island, but solely for the purpose of affording an opportunity to enter into and discharge at a port known to be an enemy's port, in which the consignees of the cargo resided, and the delivery at which port was made a precedent and necessary condition to the payment of freight.

Upon a comparison of the bill of lading with the charter-party, the terminus of the voyage and the destination of the cargo are more clearly shown. The language of the bill of lading runs thus: 'Shipped in good order and well conditioned, by Wylie and Ygana, on board the good ship Admittance, whereof is master for the present voyage Peterson, and now lying at New Orleans, and bound for Honolulu, two thousand seven hundred and seven small bales of cotton, being marked and numbered as in the margin, and are to be delivered.' Where? Not at Honolulu, where there was no consignee, apparent or mentioned-not at San Blas, as an incidental point in the track of the voyage to Honolulu, but at 'the aforesaid port of San Blas,' the predetermined limit of the voyage, and to Don Lewis Rivas Gongora, resident at San Blas, the correspondent and consignee of the shipper.

Taking, in connection with the charter-party and the bill of lading, the instructions from the respondent, Fessenden, to the master of the ship before sailing from New Orleans, it seems almost incredible that the owners should have been ignorant of the character of the voyage, and of the hazards incurred by their vessel resulting from that character. How, upon any other view, can be accounted for the extreme caution enjoined upon the master with respect to the danger of entering a Mexican port danger expressly distinguished from that arising from the probability of capture by vessels of the United States; such as it is said might arise from the disposition of the Mexican government, under the plea of the right of war to confiscate the vessel, notwithstanding the consignees might have obtained permission to land the cargo? It is absurd to suppose that this caution could have had any possible reference to a state of re established amity between Mexico and the United States, as the vessel of a friendly nation could incur no risk of confiscation by entering the port of a friend. We think that it was to dangers and hazards which might proceed from the Mexican authorities-hazards and dangers incident to an existing and known state of war, which were in the contemplation of the owners when, in the charter-party, they speak of 'other obstructions,' (beyond that of blockades,) 'which might prevent the discharge of the ship at San Blas,' an enemy's port. This interpretation of the conduct and purposes of the owners and charterers is strongly corroborated by, and explains that portion of the instructions to the master which tells him, 'you will perceive from this that you must be very cautious about going into a Mexican port, for, although the consignees may have authority to land the cotton, yet they might seize the vessel after being discharged, unless the vessel as well as the cargo had permission from the Mexican government.' This language would be unintelligible, unless it had reference to a known belligerent attitude of the two nations, forbidding intercourse or traffic between their respective citizens, and to a contemplated dispensation from the existing prohibitions by one of the belligerents. We are, therefore, upon a just construction of the answer of the claimants of the vessel, of the charter-party signed by them, of the bill of lading, and of the instructions to the master, impelled to the conclusion, that these claimants of the vessel were aware of the character of the voyage for which they had hired her, and were willing, nevertheless, to incur the hazards of the enterprise in consideration of the profits it promised them.

Looking next beyond the evidence of intention and knowledge as deducible from the ship's papers proper, to the acts of the master in execution of the objects and purposes of the voyage, the following facts are shown by the testimony of the witnesses, Bell, Martin, and Graves, all of them belonging to the crew of The Admittance, and the first-named being the mate of the ship: That she sailed directly to San Blas; that upon her arrival off this port, then being an enemy's port, and in the possession of the enemy, she remained before it three days and nights, during which time the master opened an intercourse with the port, receiving at different times communications therefrom, to which he replied; that whilst off San Blas the captain showed no American ensign, but after receiving the communications from the shore, he ordered the chief mate not to head the log-book, and also directed the concealment of the ship's name by covering her stern with painted canvas, and proceeded along the coast as far as 188 north, looking for some bay or inlet on the coast of Mexico where the cargo might be delivered; but finding no suitable place, the ship was headed for San Jos e, California. It is further proved by the witnesses, Mesroon and Bell, that The Admittance entered the port of San Jos e before it was captured by the forces of the United States, and when it was still a Mexican port, in the possession of the enemies of the United States; and the witnesses, Bell and Graves, both of the crew of The Admittance, swear that the captain, before the seizure, landed goods at this hostile port. Upon every correct view, then, of the facts of this case, and of the law of prize as applicable to these facts, it is clear that the ship Admittance was properly subject to seizure and condemnation as prize of war.

We have seen, by the authorities cited, that intercourse with the enemy is sufficient cause for personal punishment, and for the confiscation of property; that it is a cause originating in, and inflexibly enforced by necessity for guarding the public safety. In this cause are established against the claimants of this vessel, not only intercourse, but trading, in its common acceptation. Moreover, it is a settled principle, that if the owners had not anticipated a violation of the public law, the fate of their vessel, with respect to an infraction of that law, must depend upon the conduct of the agent with whom they have entrusted its management.

With respect to the respondents, Jecker, Torre, and Co., and Quintana, claimants of the cargo, the written documents found on board the captured vessel, and surrendered to the libellant by the master, fasten upon these claimants not only a knowledge of the design, under the pretext of a voyage to the Sandwich Islands, of trading with citizens of the United States, a belligerent nation, but they fix upon those parties strenuous and active efforts to possess themselves of the fruits of that traffic-the cargo of the ship; and to obtain them, not even by the circuitous voyage to Honolulu, but by direct transit to and within the territory of the enemy's nation. It is a circumstance of much significance disclosed by these papers, that there appears to have existed a perfect understanding and preconcert between these claimants, the charterers of the vessel, and the master. The arrival of the master is anticipated and waited for, and no sooner does his vessel appear on the Mexican coast, (the war still continuing,) than she is boarded from the shore by the agents of the claimants, bringing assurances of arrangements made for the violation of the law of war, and of the safety with which that violation might be accomplished.

Thus, on the 12th of February, 1847, a letter, from which the following extracts are taken, was addressed by the agent of the claimants, Jecker, Torre, and Co., Louis Rivas Gongora, to the master of The Admittance:--'CAPT. P. PETERSON, Ship Admittance, off San Blas.

'SIR: I have been informed of your sailing from New Orleans with a cargo of cotton to my consignment, and have also received a copy of Messrs. Wylie and Ygana's instructions for your guidance; also a copy of your charter-party. But as it will be more for the convenience of all parties concerned, that in case of your not being allowed by the blockading vessels to enter San Blas or Manzanilla, you should not proceed to the Sandwich Islands, which are very distant, but in the first place to San Jos e near Cape San Lucas, which is in possession of the Americans, I have to request that if you find the port of San Blas blockaded, and should be warned off, you will, as is directed in your instructions, proceed to Manzanilla, where, if you are allowed to enter, you will find an agent meeting you there, who will receive your cargo. If San Blas is open when you arrive, you will come into the bay immediately and anchor, putting yourself under the orders of Don Eustaquio Pasiere, who will proceed to discharge your cargo; and as it is of much importance that the cotton should be on shore as soon as possible, I hope you will do every thing on your part to commence and to finish discharging with the least possible delay. If you are permitted to enter San Blas or Manzanilla, you must come in under British colors, the name of the vessel and your own remaining without alteration, still reporting yourself from New Orleans; but you will be careful not to deliver any of the papers of the ship or cargo to any one except to Don Eustaquio Pasiere.'

Again, on the 27th of the same month, this person thus addresses the master from Tepic:--'CAPT. P. PETERSON, Ship Admittance, off San Blas.

'SIR: I had the pleasure to write to you on the 12th of this month, which will be delivered to you along with this. But as at present certain circumstances have taken place which, I think, make it too dangerous for you to come into San Blas, I have to request that you will proceed immediately to Manzanilla, and put yourself under the orders of Don Manuel de la Quintana, who has gone to meet you there, and who will deliver to you a letter, authorizing him to act as your consignee. He will discharge your vessel, pay your freight, and transact all the business of your vessel the same as if I was present. You will please enter Manzanilla under English colors, and, as the war continues, you will take care that it shall not be known that your vessel is American.'

In proof of the agency of Rivas, as the representative of Jecker, Torre, and Co., and as affecting them by his acts, reference may be made to a communication from that firm, dated Mazatlan, April 1, 1847, addressed to the master of The Admittance, which communication was doubtless prepared on entire ignorance of the seizure of that vessel, which had occurred only three days previously at San Jos e. In this communication it is said: 'Should this find you at San Jos e, we have to request you to proceed at once to San Blas, referring you at the same time to the accompanying letter for you from Don Luis Rivas de Gongora, of Tepic. Mr. Rivas has furnished us with copies of your letters to him, of the dates of the 3d and 4th of March, by which it appears you entertain fears of being seized by an English or American cruiser should you follow his recommendation to discharge under English colors.' They then refer the master to Mr. Mott and Mr. Bloton, for assurances that his apprehensions are groundless, and state, 'that in less than a month previously an American vessel discharged at San Blas without let or hindrance; that the difficulty with regard to the vessel in a Mexican port had been overcome by an order of the supreme government, by which vessels of any nation were permitted to enter, provided that the captain would make a declaration to the effect that he belonged to a friendly or neutral nation, no papers confirming that assertion being required of him.'

We think, then, that by the evidence found in the possession of the master of The Admittance, there is shown a complicity in all the respondents in premeditating, and as far as they had power in executing, a scheme for effecting intercourse and trade with the open enemies of the United States-an offence such as rendered all the means and instruments for the accomplishment of such a scheme lawful prize of war.

But it has been insisted, that should it be conceded that there existed originally sufficient grounds for capture and condemnation, still, the captor had forfeited all right of prize by omitting to send the vessel and cargo to the United States for adjudication, and by selling them without the justification of necessity in a foreign country. The libellant has alleged, in justification of the disposition of the vessel and cargo, 'that he was at the time of the capture of The Admittance at a great distance from the United States, and, without weakening inconveniently the force under his command in his own ship, he could not have spared a sufficient prize crew and officers to command the captured ship, and to bring her into the United States.'

The exception here taken brings up the inquiry, as to the duty and power of a captor to send in his prize for adjudication, and as to the discretion vested in him in deciding upon the extent of that duty, and the feasibility of that power under existing circumstances. This inquiry has been treated with so much force and perspicuity by Mr. Justice Curtis, in a case adjudged by him between a portion of these respondents as claimants of the ship, and the libellants, that it cannot be more clearly and at the same time more succinctly elucidated than it will be by reference to the opinion of that judge in the case alluded to, (vide Fay et al. v. Montgomery, 1 Curtis's R. 266.) In that case, the judge remarks: 'The grounds on which restitution is claimed are thus stated in the libel, 'that the seizure and detention were without any legal, justifiable, reasonable, or probable cause; and even if there had been probable cause for the seizure of the said vessel, the said Montgomery was legally bound to send the same to the United States for trial, which might easily have been done, but which the said Montgomery illegally and unjustifiably omitted to do, and thereby illegally converted the same to his own use.' Here (says the judge) are two distinct grounds: the first being that the seizure was an act of illegal violence; and the second, that, by not sending the vessel to the United States for trial, the respondent had illegally converted it to his own use.' After commenting upon the evidence which led his mind to the conclusion that there was properly a question of prize to be tried, the judge remarks: 'And this brings me to consider the other ground stated in the libel, that by his omission to send the vessel to the United States for trial, the respondent illegally converted the vessel to his own use. That captors may so act towards prize property as to forfeit their rights as captors, and render themselves liable to make restitution, with or without damages, is clear. But before the court can so declare, a case of forfeiture of rights, free from all reasonable doubt, must be made out. In considering this part of the case, the question is, whether the allegation that the respondent omitted to send the vessel to the United States for trial, when he could safely and properly have done so, and thereby illegally converted the property to his own use, is made out in proof.' The answer of the respondent to this part of the libel states: 'That it was impossible for him, consistently with the public interests committed to his direction, to have sent the ship Admittance to any port of the United States.' The judge proceeds to say: 'Before considering the facts upon which the forfeiture is asserted, one principle should be stated, which is entitled to an important effect on this part of the case. It is, that an honest exercise of discretion, necessarily arising out of his command, cannot be treated as such misconduct in the commander of a public ship of war, as will forfeit his fair title, and render him liable to be treated as a trespasser. This principle is too obviously just to require the support of authority; but it will be found to have been laid down and applied in the case of Dinsman v. Wilkes, in 12 How. 390.

'Now it must be admitted, that the question whether the necessities of the public service will allow the commander of a ship of war, in time of war, upon a remote station on the other side of the globe, to spare one of his officers to go home in command of a prize, is one depending on his discretion, necessarily arising out of his command. In the first instance, he alone has the power to decide the question-he alone has the needful knowledge of facts, and he is bound to exercise his judgment upon them. Certainly his judgment is not conclusive-good faith and reasonable discretion are requisite; but it would not only be a hardship, but injustice, to impose on the commander the duty of determining such a question, and, when he has determined it, to attribute to him as an act of misconduct that he did not come to a different conclusion. It is true, that it is a clear duty of a commander to send in his prize for adjudication, but this is not an absolute obligation. It depends on his ability to perform it; and of this, as already said, he must judge in the first instance; and if he decides with reasonable discretion and an honest purpose to do his duty, I cannot consider him as guilty of misconduct which works a forfeiture.'

The judge then, after an examination of the proofs in the case, and of the law as above expounded by him, comes to the following conclusion: 'Keeping these principles in view, I am not satisfied that, in omitting to send the vessel to the United States, Captain Montgomery violated any known duty, or acted with so little discretion as to render him liable as a trespasser.' And he closes his review of the evidence with this very forcible view of its just import and character: 'One of the lieutenants of The Portsmouth was serving on shore-two only remained; and it does not appear that a single passed-midshipman was on board. Lieutenant Revere [one of the remaining lieutenants on board] has given an opinion-no doubt an honest one-that he might have been spared; but it is an opinion formed under no responsibility of command; and I am not prepared to say that a sloop of war on that coast, at that time, officered by only two lieutenants, ought to have been left with only one, in order to send home a prize-and still less, that the commander erred so grossly, in not detaching this officer on such service, as to forfeit his legal rights thereby.'

The facts which are applicable to this part of the case now before us, are essentially, if not literally, those adduced in the trial before the judge whose opinion has been just quoted; and the very clear exposition of those facts, with the legal deductions from them, as set forth in that opinion, command our entire approbation, and are regarded as conclusive against the appellants upon the question of forfeiture by the appellee of his right of prize.

Another exception urged in the argument as fatal to the decree of the circuit court demands our notice, and it is this: That the proceedings instituted in the district court for the condemnation of the vessel and cargo as prize of war were in the name of the libellant, the captor, whereas they should have been commenced and prosecuted in the name of the United States. This irregularity, for such it must be admitted to be, may have proceeded from a misapprehension of the opinion of this court in the case of Jecker, Torre and Co. v. Montgomery; (see 13 How. 498;) in which opinion it is stated to be the duty of the district court to order the captor to institute proceedings in that court for the condemnation of the property as prize of war, by a certain day to be named by the court. The exception thus urged is not raised in the answers or in any other form of pleading in the court below. The parties have gone to trial upon allegations connected with the merits, and upon such testimony as they have chosen to introduce. It would seem to be a sufficient answer to this exception to say, that after its waiver or after an omission to urge it in the court below, and after going into an extended range of testimony as applicable to the merits of the case, to permit an exception entirely distinct from the merits, in the appellate court, would be extending an improper license to the party starting such exception, and might be productive of injustice to his opponent. The exception is unquestionably technical or formal. It embraces neither the question of power of the captor to seize, nor that of the character of the subjects of capture as lawful prize of war. Moreover, this exception, if allowable, would seem to have no other object or purpose, but that of securing the ends which the proceedings and decree of the court have in fact accomplished; for it is seen that the libel, though filed in the name of the captor, was founded upon the public authority of the United States, and the decree pronounced in the case is in favor and in the name of the government, by whom it is shown the proceeds of the condemned subject have been actually received. It is plain, therefore, that every purpose which the most formal proceeding could have effected, and nothing beyond this, has been accomplished by the decree in this case; and the proposal now pressed upon the court is, that in virtue of a formal exception, which either has been waived or omitted in the proper time and place, the merits of this controversy voluntarily submitted, and fully examined, should be entirely lost sight of, and that the party who alone, within the purview of the exception itself, could regularly claim the subject of the controversy, should for the mere form be required to surrender that subject. Such a proposal should be regarded as neither equitable nor reasonable, and should be especially discountenanced by a tribunal which acts upon principles of an enlarged public policy-less fettered perhaps than any other by narrow technical rules.

This case bears a strong resemblance to that of Benton v. Woolsey and the Bank of Utica, reported in 12 Pet. 27, in which the district attorney of the United States filed an information in his own name, in behalf of the United States, in the district court for the northern district of New York, to enforce a mortgage given to the United States by Woolsey one of the defendants. This court in that case hold this doctrine: 'Some doubts were at first entertained by the court whether this proceeding could be sustained in the form adopted by the district court. It is a bill of information and complaint in the name of the district attorney, in behalf of the United States. But on carefully examining the bill, it appears to be in substance a proceeding by the United States, although in form it is in the name of the officer; and we find that this form of proceeding in such cases has been for a long time used without objection in the courts of the United States held in New York, and was doubtless borrowed from analogous cases in the courts of the State where the State was plaintiff in the suit. No objection has been made to it either in the court below or in this court, and we think that the United States may be considered as the real party, although in its form it is the complaint of the district attorney.'

The objection which has been made to the deposit in the treasury of the money arising from the sale of the captured property in this case, appears to be without weight. Since the act of congress of the 3d of March, 1849, it appears to be the intention and the positive mandate of congress, that all prize money arising from captures by vessels of the navy of the United States, whether received by marshals for the sale of prizes, or in the hands of prize agents, should be deposited in the treasury of the United States. Vide § 8th of the act, Stats. at Large, vol. ix. p. 378. It does not clearly appear in whose hands the proceeds of the sale of The Admittance and her cargo were at the date of the above statute. But if they were in the possession of Captain Montgomery at or after that time, either as captor or prize-master, or whether they were in the hands of any other person, it was within the scope and objects of the law to place the proceeds of the prize sale in the treasury of the United States; and accordingly it is shown by the certificate of the treasurer of the United States, that the sum of sixty-seven thousand dollars, as the proceeds of the sale of The Admittance, were on the 26th of December, 1849, by William Speiden, purser of the navy of the United States, depositd in the treasury of the United States.

Upon a consideration of the facts and the law of this case, we are of the opinion that the decree of the circuit court be affirmed.


text: Talk:Jecker, Torre, and Company v. Montgomery/Opinion of the Court


text:
Ham v. Missouri

THIS case was brought up from the supreme court of the State of Missouri, by a writ of error issued under the 25th section of the judiciary act.

It is fully stated in the opinion of the court.

It was argued by Mr. Geyer, for the plaintiff in error, no counsel appearing for the defendant.

Mr. Geyer made the following points:--

1. The reservation by the act of March 3, 1811, is something more than 'a direction' to the officers to refrain from selling the land claimed. It severed the land embraced by the claim from the public domain, and appropriated it to the satisfaction of the claim in the event of confirmation; being so set apart and appropriated, it was 'disposed of,' and therefore not granted nor promised to be granted by the act of March 6, 1820.

2. The State did not acquire a complete title to the 16th section by force of the compact, even where the land had not been sold, reserved, appropriated, or otherwise disposed of; in such case it was reserved and appropriated to the use of schools; 'but the title to the land being still in the United States, could be passed by the government to any person for any consideration,' and in this case was passed by the confirmatory act of May 24, 1828, and the patent deed of the United States of March 25, 1839.

The propositions offered to the convention having been accepted, became obligatory upon the United States; 'the compact was complete between the sovereignties,' and the United States became bound to grant and convey the lands embraced by the first proposition, but there is no present conveyance, no word of present grant, and, therefore, no complete title vested by the terms of the compact.

The engagement on the part of the United States is executory, precisely as is the obligation to perfect inchoate titles, or to make a final decision thereon, and hold the lands reserved by law to abide the decision. No time is appointed for the fulfilment of the engagement in either case, and in both the title remains in the United States, subject to the legislative power of congress.

3. The second proviso in the confirmatory act, (repeated in the patent,) to which some importance was attached by the supreme court of Missouri in this case, has no effect whatever upon the title of either party. The act and patent, if they have any effect whatever, pass all the title which the United States had or could convey at the date, and no form of conveyance could accomplish more. Neither the confirmatory act nor the patent would prejudice the rights of third persons, nor any title theretofore derived from the United States, by purchase or donation, if the proviso had been omitted; but while the rights and titles of others are not prejudiced or impaired, they are not enlarged or improved. The executory engagement of the 6th of March, 1820, is not executed or converted into a complete title of that date by the saving, in the confirmatory act and patent. If the legal title was not vested in the State by the compact, it remained in the United States until it was vested in the claimants by the confirmatory act and patent, and the grantees are not liable to be indicted and punished for entering upon the land granted, by reason of the proviso.

Mr. Justice DANIEL delivered the opinion of the court.

title: Ham v. Missouri


text: Talk:Ham v. Missouri

title: Talk:Ham v. Missouri