text:
Coppell v. Hall

IN error to the Circuit Court for the Eastern District of Louisiana.

The case was this:

During the late civil war the city of New Orleans was in military occupation of the United States forces, and most of the neighboring cotton region around, in military possession of rebel enemies.

In this state of things, a circular of the treasury, of July 3, 1863, declared it to be the intention of that department to allow no intercourse at all beyond the national and within the rebel lines of military occupation. 'Across these lines,' was its language, 'there can be no intercourse, except that of a character exclusively military.'

A treasury regulation also said:

'Commercial intercourse with localities beyond the lines of military occupation by the United States forces, is strictly prohibited; and no permit will be granted for the transportation of any property to any place under the control of insurgents against the United States.'

This regulation was made under an act of Congress, which, forbidding all commercial intercourse between territory proclaimed by the President to be in insurrection (which the territory about New Orleans had been, though New Orleans was not), and the citizens of the rest of the United States, and enacting that all merchandise coming from such territory into other parts of the United States, should be forfeited, authorized the PRESIDENT to permit such intercourse, in such articles, for such time, and by such persons as he might deem proper; providing, however, that such intercourse, so far as licensed, should be carried on only in pursuance of rules and regulations prescribed by the Treasury Department.

By the general orders of the Military Department of the Gulf, however, dated March 7 and September 3, 1863, the trade of the Mississippi, within that department, was permitted, subject to such restrictions only as should be necessary to prevent the supply of provisions and munitions of war to the enemy. The products of the country were authorized to be brought to New Orleans, and other designated points within the military lines of the United States, and to be sold by the proprietors or their factors.

In this state of orders, civil and military, George Coppell, a British subject, and acting British consul, at New Orleans, and trading there (William Mure being the consul), made a contract, through one James Gonegal, with a certain Hall, a citizen of Louisiana, residing like Coppell in New Orleans, but both being, at the time of the contract, in rebel territory, by which Hall agreed to 'furnish' the said Coppell with a large number of bales of cotton, all of it being then in rebel territory, and owned chiefly by one Mann, also a citizen of Louisiana, resident apparently in the rebel region of it; cotton being at the time an article specially sought for by both combatants; shielded and preserved by each while it was in his own possession, and destroyed when found, without an ability on his own part to capture it, in possession of the other. By this contract, Coppell on his part agreed 'to cause said cotton to be protected and transported to New Orleans, and disposed of to the best advantage, paying to said Hall, first, the actual cost of it, with two-thirds of the net profits, &c., without commissions, retaining one-third of the profits as his compensation.' Coppell now marked a large part of the cotton with his private mark, and soon afterwards issued certificates (the marks and other designations of the cotton being set forth on a document appended), in this form:

HER BRITANNIC MAJESTY'S CONSULATE FOR THE STATE OF LOUISIANA:

Know all persons to whom these presents shall come, that I Wm. Mure, Esq., her Britannic Majesty's consul for the city of New Orleans and State of Louisiana, do hereby certify that on the day of the date hereof personally appeared before me Mr. James Gonegal, who being by me duly sworn, says, that the twenty bales cotton, as described on the document hereunto attached, is the property of and belongs to a British subject, and is duly registered as such at this consulate.

Given under my hand and seal of office, at the city of New Orleans, in the State of Louisiana, the eighth day of October, one thousand eight hundred and sixty-three.

GEORGE COPPELL,

H. B. M.'s Acting Consul.

Under these 'protections,' and escaping destruction from either government or rebels, the cotton remained on Mann's estate, in the rebel region, and in his and Hall's charge, until the rebel forces there surrendered to the government. The whole region coming thus again under the control of the United States, and it becoming easy to transport cotton from the surrounding country to New Orleans, and there to dispose of it to advantage at a rate of factorage much less than one-third the profits, Hall and Mann declined to furnish Coppell with the cotton. Coppell, thereupon, in the court below, by petitions, in which, referring to the contract as made 'under the permission' expressed in military general orders, and alleging that he had been able and desirous to bring the cotton to New Orleans at the time of the contract, and that Hall and Mann had prevented him, to his damage $50,000; now demanded possession of the cotton 'for the purposes enumerated in the agreement,' or if he should be adjudged not entitled to such possession, then to have damages.

The defendants set up that the contract was null and void; as being in violation of public policy of the laws of the United States, and of the neutrality which Coppell, as a British subject, was bound to maintain. But that if it should be determined that the contract was valid, then that they, the said respondents, 'assuming the positions of plaintiffs in reconvention,' averred that Coppell was indebted to them in damages $70,000, for not having transported the cotton to New Orleans under British protection, and sold it during the war; every of which things it was alleged that he was unable to do, and none of which he had ever attempted or offered to do. And they prayed that he 'might be cited to appear and answer this reconventional demand.'

Coppell replied, that he was the consul of Her British Majesty; that he did protect the cotton from all seizures which his agreement included; and that, as soon as the military situation permitted, he was ready and willing to perform all the stipulations of his agreement, and tendered the necessary means for the transportation of the cotton to New Orleans; which tender the defendants declined.

The court below charged:

1. That Hall and the plaintiff, both residing in New Orleans, the contract was valid under the law of nations.

2. That the military orders, then in force, authorized and gave validity to the contract.

3. That the demand for reconvention, set up by the defendants, 'cured any nullity or illegality in the contract, if any existed, and that, under the pleadings, the plaintiff might recover, notwithstanding such illegality.'

And judgment having been given for the plaintiff for $29,644, the case was brought by the defendants here.

Messrs. Evarts and Ashton, for the plaintiffs in error:

I. The court in effect instructed the jury:

1st. That a British subject, domiciled at New Orleans, could make a valid contract, during the war, with a citizen of the United States, by which such British subject should agree to cover and protect, with his neutral British name, cotton situated in the hostile territory within the rebel lines; and,

2d. That a contract between such citizen and a British consul at New Orleans, by which the latter agreed to issue false certificates that such cotton was British property, with a view to its protection within the rebel lines, was a valid contract, enforceable in a court of the United States by that British consul.

It needs no argument to disclose the error of such rulings. We should suppose no one would have the hardihood to doubt that such a contract was absolutely void, as against public policy, and as in contravention of the belligerent rights of the United States. Nor do we believe that this court will tolerate, for one moment, the monstrous doctrine, that the issuing, by a British consul residing in our jurisdiction, of false and fraudulent papers, asserting that property in the enemy's country belonged to British subjects, is a consideration which will sustain a contract between that consul and a citizen of the United States.

II. The military orders did not authorize the contract sued on. At the date of the contract all commercial intercourse with territory beyond our lines of military occupation in Louisiana was strictly prohibited, except with the license of the President. And no officer of the government, save the President, had any authority to permit such intercourse to be carried on by the plaintiff, and therefore no authority except that of the President could take from such a contract as this the 'sting of disability.'

Independently of which, they were not meant to be relied on. If they had been, the cotton would have needed no British protection.

III. As to the effect of the further defence of 'reconvention,' if the first defence failed. The ruling of the court, on this point, exhibits a total misapprehension of the character, foundation, and policy of the rule ex turpi causa non oritur actio.

Every contract stipulating for the performance of an illegal act, or founded upon an illegal consideration, is rendered void by the power, and to conserve the policy, of the law; and this altogether independently of the will or wish of the parties concerned. An English judge declared, 'You shall not stipulate for iniquity.' Lord Mansfield said, that it is not for the sake of a defendant that the objection is ever allowed that a contract is immoral or illegal, but is founded on general principles of policy, which the defendant has the advantage of, contrary to the real justice of the case.

Mr. Durant (who filed a brief for Messrs. Sullivan, Billings, and Hughes), contra:

1. It is settled beyond controversy that two members of the same community may make any transfer of personal property within the enemy's lines, not based upon, nor looking to communication with the enemy. Coppell, either as British consul or British subject, had then the right to enter into this contract. Communication with the enemy was negatived by the presumption of law, which presumes the protection to be legal when it was reasonably possible. In aid of this presumption it should be observed (as the fact was within common knowledge), that the military occupation of the region in which this cotton was situated frequently and rapidly changed, the Federal forces to-day advancing beyond, and in a short time falling back on the hither side of this region, and the Confederate forces receding and advancing correspondingly, so that communication with persons in charge of the cotton would be strictly lawful at one time, and the effect of that communication might be at another time to prevent the destruction of the cotton by the enemy's forces.

The restraints upon the defendant in error, as British subject or consul, were even less than those springing from his domicile, i. e., viewed as a member of the community of New Orleans; for the announced attitude of his government, in the proclamation of Her Britannic Majesty, of May 31, 1861, had not in the least added to the ordinary duties of neutrals, nor imposed any additional restraints upon her subjects.

2. The military general orders were the governing law of a region wholly occupied by military force, and were a sufficient permission for what was done.

3. The parties sued had, by their reconventional demand, taken the position of plaintiffs in the suit. They set up the contract, and claimed damages for its alleged violation. By taking that attitude they had waived their exception of illegality, and both parties alike stood upon the contract.

Mr. Justice SWAYNE delivered the opinion of the court.

title: Coppell v. Hall


text: Talk:Coppell v. Hall

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

title: Talk:Coppell v. Hall


text:
Coppell v. Hall/Opinion of the Court

It appears from the record that this action was founded upon a contract entered into on the 14th of September, 1863, between Hall, one of the plaintiffs in error, and Coppell, the defendant in error. It was agreed that Hall should furnish Coppell 1169 bales of cotton,-789 bales at B. L. Mann's place, about one mile from Arcola station on the Jackson railroad, 47 bales at Gilman's, near Tangepahow, and the residue in the parish of St. Helena, East Feliciana, and in Williamson and Amity counties, Mississippi. Coppell agreed to cause the cotton to be 'protected' and transported to New Orleans, and disposed of to the best advantage, paying to Hall the actual cost of the cotton and two-thirds of the net profits, 'after deducting freights, taxes, &c.,' without commissions, retaining one-third of the profits as his compensation. It was further agreed, that if any of the cotton should be stolen, burned, or otherwise destroyed, Hall should be exonerated to that extent; and that Coppell should pay Hall, or cause him to be paid at Arcola, sums approximating to the value of his interest, as the cotton was removed; such sums to be indorsed on the notes given by Coppell to Hall; one for $318,350.00, and the other for $57,000.00, both bearing even date with the contract.

Coppell was the plaintiff in the court below. His petition avers: That he is a subject of Great Britain, and a resident in that kingdom; That Hall, the plaintiff in error, resides in the city of New Orleans, and Mann, the other plaintiff in error, at Arcola station, in Louisiana; That Hall and Mann delivered to him 1189 bales of cotton, of which 789 bales were on the plantation of Mann, at Arcola, and the remainder at various other places mentioned in a schedule annexed to the petition; That he caused the 789 bales to be branded with his initials and his private mark; That he had appointed Mann his agent to take charge of the cotton in his name and for his benefit, and that Mann acted as his agent accordingly; That, by reason of the war, he was unable to bring the cotton to market, but that he had expended large sums and much time and labor in 'protecting' it; That, at the time of entering into the contract, he executed the two notes mentioned, which were to be held by Hall as security for the proceeds of the cotton, and that these notes were still in the possession of Hall; That he was then able and desirous to bring the cotton to New Orleans for sale, and had made a demand for it on Hall and Mann, but that they had neglected and refused to deliver it, to his damage in the sum of $50,000.

He subsequently filed an amended petition, in which he sets forth: That the contract between himself and Hall was entered into by the permission of the major general commanding the Department of the Gulf, expressed in general orders-Coppell being then engaged in business in New Orleans, and Hall living in that city; That the notes, mentioned in the contract, are held by Hall and Mann, or have been transferred by them to other parties; That, on the 14th of September, 1863, Mann sold and delivered to Hall 1169 bales of cotton, then on the plantation of Mann; and that Hall, in part execution of his contract, designated and transferred this cotton to Coppell; That Coppell 'protected' the cotton, and that Mann continued to hold it in trust for him and Hall, until the Confederate armies, under the command of General Richard B. Taylor, surrendered to the forces of the United States, when Mann and Hall, colluding to defeat the trust, refused to allow Coppell to bring the cotton to New Orleans, according to the contract; That this cotton is the same which was sequestered in this suit, and that he is entitled to the possession of it.

The original and supplemental answers of Hall and Mann set up the following defences: That the cotton was situated in territory under the control of the rebel authorities, and that the contract was entered into there; that the object of the contract was the protection of the cotton, within the rebel lines, by Coppell, as the British consul, and its transportation to New Orleans during the war then raging; that the contract was thus in violation of the laws of the United States; of the neutral obligations of the plaintiff, as British consul and a resident of the United States; and of public policy; and was null and void; that the plaintiff lost all right and interest in the contract by leaving Louisiana before the restoration of peace, and that the defendants were thereby released from all liability upon the contract; that, if the contract should be held valid, the defendants claimed damages, by way of reconvention, for breach of the contract by the plaintiff, in neglecting to remove the cotton to New Orleans, and to sell it as he had agreed to do.

In reply to the reconventional demand, the plaintiff replied that he was the consul of her British Majesty; that he did protect the cotton from all seizures which his agreement included; and that, as soon as the military situation permitted, he was ready and willing to perform all the stipulations of his agreement, and tendered the necessary means for the transportation of the cotton to New Orleans; which tender the defendants declined.

Upon this state of the pleadings the cause proceeded to trial. The parol evidence is not as fully set out as should have been done; but the controlling facts sufficiently appear.

The plaintiff gave in evidence the military orders of the department commander of the 7th of March and the 3d of September, 1863. By these orders the trade of the Mississippi, within the Department of the Gulf, was permitted, subject to such restrictions only as should be necessary to prevent the supply of provisions and munitions of war to the enemy. The products of the country were authorized to be brought to New Orleans, and other designated points within the military lines of the United States, and to be sold by the proprietors or their factors 'for the legal currency of the United States, without restriction or confiscation.' New Orleans was then in the military possession of the United States.

The cotton was all within the rebel lines. This state of things continued until the surrender of the rebel forces under General Taylor. Consular certificates were given by the plaintiff, each setting forth that the cotton therein referred to was 'the property of a British subject.'

In the progress of the trial numerous exceptions were taken by the defendants. Some of them relate to the rejection of testimony; the residue to instructions given or refused. The view which we take of the case renders it necessary to consider only those which relate to the legality of the contract. They are the 2d, 7th, 8th, and 9th. The 2d, 8th, and 9th, taken together, show that the court, in instructing the jury, substantially affirmed the following propositions:

That the demand for reconvention, set up by the defendants, 'cured any nullity or illegality in the contract, if any existed, and that, under the pleadings, the plaintiff might recover, notwithstanding such illegality.'

That the military orders, then in force, authorized and gave validity to the contract.

That Hall and the plaintiff both residing in New Orleans, the contract was valid under the law of nations.

It appears, by the 7th bill of exceptions, that the defendants prayed the court to instruct the jury, that if the cotton, referred to in the contract, was at the time of its sale situated in territory which was under the permanent control of the Confederate forces, the same was enemy property; and that if it was in the contemplation of the parties that the plaintiff, acting as British consul at New Orleans, or as a British subject resident in New Orleans, should extend British protection over said cotton, and should 'issue his official certificates, as British consul, that the cotton was the property of a British subject, for the protection of the same within lines occupied by the enemy during the war; and that such protection formed a part of the consideration of the contract; then the contract was contrary to the laws of the United States, to the law of nations, to public policy, and to good morals, and that said contract was, therefore, null and void.' The court refused to give this instruction. The reason assigned for the refusal was, 'that the proof was that both parties were residents and domiciled in New Orleans; and that the court could not charge upon a supposed case which did not exist.'

It does not appear to us that this objection to giving the instruction asked was well taken. Conceding the fact that the parties did both reside in New Orleans, the instructions met exactly the exigencies of the case. If the defendants were right as to the legal views upon which they insisted, the instruction should have been given. If they were wrong in those views, it was properly refused. The point thus presented will be considered in connection with those arising upon the instructions which were given.

Consuls are approved and admitted by the local sovereign. If guilty of illegal or improper conduct, the exequatur which has been given may be revoked, and they may be punished, or sent out of the country, at the option of the offended government. In civil and criminal cases, they are subject to the local law in the same manner with other foreign residents owing a temporary allegiance to the state. A trading consul, in all that concerns his trade, is liable in the same way as a native merchant. The character of consul does not give any protection to that of merchant when they are united in the same person.

By the terms of the contract, Hall was to 'furnish' the cotton to Coppell. It was all within the rebel lines, and was, therefore, enemy property. Coppell was to cause it to be 'protected.' If there could be any doubt about the meaning of this phrase as used in the contract, it is dispelled by the conduct of Coppell in issuing the consular certificates, that the cotton which they covered respectively was 'the property of a British subject.' He was to receive the cotton in the rebel territory, to make an advance upon it there, to transport it to New Orleans, and there to sell it for the benefit of the contracting parties. The contract was one of factorage. Aside from the question of illegality, it is clear that no title passed to Coppell. He was to have, and had no share in the acquisition of the cotton by Hall. His duties were to protect it; to receive it; to advance money upon it; to transport it; to sell it, and to account to Hall for his share of the proceeds.

It was doubtless expected that the insurgent authorities and the insurgent population would respect the rights of the 'British subject.' If the surging tide of war should sweep back the rebel arms, and the national forces should penetrate to the localities of the cotton, the custodian would be ready, in every instance, to produce the consular certificate.

These certificates, even if issued in good faith, were nullities, and could give no immunity; yet it might well be hoped that the authorities of the United States, instead of seizing the cotton jure belli, and disposing of it according to the act relating to captured and abandoned property, would ex gratia waive their rights, and yield up the property to the ostensible British owner, whose claim was fortified by such a muniment of title. The parties intended to delude and defraud the United States. The means used were the certificates issued by the consul.

When the contract was entered into the rebellion had become a civil war of large proportions. Important belligerent rights were conceded to the insurgents by the government of the nation. The war, in many of its aspects, was conducted as if it had been a public one with a foreign enemy. When international wars exist all commerce between the countries of the belligerents, unless permitted, is contrary to public policy, and all contracts growing out of such commerce are illegal. Such wars are regarded not as wars of the governments only, but of all the inhabitants of their respective countries. The sovereign may license trade, but in so far as it is done, it is a suspension of war, and a return to the condition of peace. It is said there cannot be, at the same time, war for arms and peace for commerce. The sanction of the sovereign is indispensable for trade. A state of war ipso facto forbids it. The government only can relax the rigor of the rule.

During the late civil war the subject was regulated by Congress. The 5th section of the act of July 16th, 1861, anthorized the President to proclaim any State, or part of a State, in a condition of insurrection, and it declared that thereupon all commercial intercourse between that territory and the citizens of the rest of the United States should be unlawful so long as hostilities should continue, and that all goods and merchandise, coming from such territory into other parts of the United States, and all proceeding to such territory by land or water, and the vessel or vehicle conveying them, should be forfeited. It was enacted in a proviso that the President might permit commercial intercourse with any part of such territory 'in such articles, and for such time, and by such persons' as he might deem proper, and that 'such intercourse, so far as by him licensed,' should be 'carried on only in pursuance of rules and regulations prescribed by the Secretary of the Treasury.'

On the 10th of August, 1861, the President issued a proclamation declaring the inhabitants of the rebel States including Louisiana and Mississippi-in a state of insurrection. Certain local exceptions, not necessary to be stated, were made.

By a proclamation of the 31st of March, 1863, it was declared that the inhabitants of the same States, with certain local exceptions, of which New Orleans was one, were in a state of insurrection, and that all commercial intercourse, not licensed according to the act before mentioned, 'between those States, the inhabitants thereof, with the exceptions aforesaid, and the citizens of other States,' was unlawful, and that all products, goods, and chattels coming from any of the insurrectionary States, 'with the exceptions aforesaid,' or proceeding to 'any of said States, with the exceptions aforesaid, without the license and permission of the President through the Secretary of the Treasury, would, together with the vessel or vehicle conveying the same, be forfeited to the United States.'

By a circular from the Treasury Department of the 3d of July, 1863, it was declared to be the purpose of the department: '3d, to allow no intercourse at all beyond the national and within the rebel lines of military occupation; across these lines there can be no intercourse, except that of a character exclusively military.'

Amongst the treasury regulations framed under the act of 1861, in force when the contract was entered into, was the following:

'VII. Commercial intercourse with localities beyond the lines of military occupation by the United States forces, is strictly prohibited; and no permit will be granted for the transportation of any property to any place under the control of insurgents against the United States.'

The military orders set forth in the record were unwarranted and void. The President alone could license trade with the rebel territory, and when thus licensed, it could be carried on only in conformity to regulations prescribed by the Secretary of the Treasury. The subject was wholly beyond the sphere of the power and duties of the military authorities. These orders may be laid out of view. They can in no wise affect the case.

The stipulations in the contract as to everything Coppell was to do in the rebel territory was contrary to public policy, to the law of nations, to the act of Congress, to the proclamation of the President, and to the regulations of the Treasury Department.

The protection to be given, if effectual, might have deprived the United States of pecuniary means to the extent of the value of the cotton. Withholding from one scale affects the result as much as putting into the other. The objection rests upon the same principle as insuring enemy property. This is condemned by all publicists who have written upon the subject, including as well the earliest as the latest. Valin, Emerigon, and Bynkershock, are no less emphatic than Wheaton and Phillimore. Such, also, is the rule of the common law. Such contracts are not only illegal and void, but repugnant to every principle of public policy. The law will not permit the citizen, in the perils of war, to subject himself to such a temptation to swerve from his duty to his country. In Bell v. Potts it was held to be illegal for a British subject, in time of war, without a license, to bring, even in a neutral ship from an enemy's port, goods purchased by his agent resident in the enemy's country, after the commencement of hostilities. In Antoine v. Morshead an alien in an enemy's country during war, drew a bill on a British subject, resident in England, and, after peace, sued for the amount of the bill. The same rule was reluctantly applied by Chief Justice Gibbs. It was held that the plaintiff could not recover. If the course of the transaction had been reversed, the result would have been the same. The same rule would have been applied in the British courts.

The payment of money by a subject of one of the belligerents, in the country of another, is condemned, and all contracts and securities looking to that end are illegal and void.

The adjudications of this court have always proceeded upon the same principles.

In the case of Brown v. The United States, Mr. Justice Story said that 'no principle was better settled than that all contracts made with an enemy during war were utterly void.'

In the case of The Rapid, the facts were, that an American citizen bought English goods in England before the war, and deposited them on an island belonging to the English, near the province of Maine. Upon the breaking out of the war he sent the Rapid from Boston to the island to bring away the goods. Upon her return she was captured by an American privateer. The goods were condemned as lawful prize. It was held that the vessel, while thus engaged, was trading with the enemy, and that the goods had acquired the character of enemy's property. Mr. Justice Story, in delivering his opinion in the court below, said: 'That not only all trading, in its ordinary acceptation, but all communication and intercourse with the enemy were prohibited. That it was in no wise important whether the property engaged in the inimical communication be bought or sold, or merely transported and shipped. That the contamination of forfeiture was consummate the moment the property became the object of illegal intercourse.'

In the case of The Julia, the vessel was condemned only because, on sailing from Baltimore to Lisbon, and returning, she had carried a license from a British admiral, issued within our territory by a British agent.

In Griswold v. Waddington, Kent, C. J., said: 'The law had put the sting of disability into every kind of voluntary communication and contract with an enemy, which is made without the special permission of the government. There is wisdom and policy, patriotism and safety in this principle, and every relaxation of it tends to corrupt the allegiance of the subject, and to prolong the calamities of war.'

The instruction given to the jury, that if the contract was illegal the illegality had been waived by the reconventional demand of the defendants, was founded upon a misconception of the law. In such cases there can be no waiver. The defence is allowed, not for the sake of the defendant, but of the law itself. The principle is indispensable to the purity of its administration. It will not enforce what it has forbidden and denounced. The maxim, ex dolo malo non oritur actio, is limited by no such qualification. The proposition to the contrary strikes us as hardly worthy of serious refutation. Whenever the illegality appears, whether the evidence comes from one side or the other, the disclosure is fatal to the case. No consent of the defendant can neutralize its effect. A stipulation in the most solemn form to waive the objection, would be tainted with the vice of the original contract, and void for the same reasons. Wherever the contamination reaches, it destroys. The principle to be extracted from all the cases is, that the law will not lend its support to a claim founded upon its violation.

The court below erred in refusing to instruct as prayed, and in the instructions given.

The judgment below is REVERSED, and the cause will be remanded to the Circuit Court, with directions to issue a

VENIRE DE NOVO.

title: Coppell v. Hall/Opinion of the Court


text: Talk:Coppell v. Hall/Opinion of the Court


text:
Cocks v. Izard

APPEAL from the Circuit Court of Louisiana.

During the late rebellion, one Anderson, by a proceeding in what was known as 'the Provisional Court of Louisiana'-a court established by proclamation of the President, in October, 1862, when the insurrection which had prevailed in Louisiana, had temporarily subverted and swept away the judicial authorities of the Union, and which, by the terms of its constitution, was to last only until 'the restoration of the civil authority'-brought some sort of suit against one Cocks.

The suit proceeded to execution; and, on execution, the marshal of the said Provisional Court exposed to public sale certain real estate owned by Cocks, in New Orleans, and worth $15,000. Cocks was a resident of Mississippi, and knew nothing of the suit, execution, or exposure to sale. At the sale, one Izard, his tenant, who was there, made a bid of $1500, giving out, and letting it be understood, that he was bidding for account of Cocks, and in his interest. Persons, who were at the sale, thus refrained from bidding, from a wish not to compete; and, competition being so prevented, the property was knocked down to Izard at the sum bid by him.

Izard acknowledged these facts soon after the sale, and promised to reconvey on receiving the money which he had advanced. He afterwards refused to do this.

Cocks now filed a bill in the court below, setting forth the above facts, that Izard had received in rents, in two years, $2500; and praying an account and reconveyance.

Izard demurred, and the court below, sustaining the demurrer, dismissed the bill. Cocks appealed.

Mr. Conway Robinson, for the appellant, asked a reversal of the decree on these two principal grounds:

1st. That the court which rendered the judgment against Izard and issued the execution, was not a court competent to exercise judicial power, consistently with the Constitution of the United States.

2d. That conceding that the court had jurisdiction, the proceedings at the sale were, nevertheless, of such a character as to demand the interposition of a court of equity.

Mr. P. Phillips, contra, contended that the 'Provisional Court,' having been established while war was flagrant, and while the place was in military occupation, was founded on necessity, and being to last only while the necessity lasted, had sufficient jurisdiction. That the mere declaration of one person, that he intended to buy for another person, without evidence of any previous agreement to do so, or of any advance of money for that purpose, raised no trust which could be supported in equity.

That, independently of this, Cocks ought to have applied to the Provisional Court, to set the sale aside and order a resale.

Mr. Justice DAVIS delivered the opinion of the court.

title: Cocks v. Izard


text: Talk:Cocks v. Izard

title: Talk:Cocks v. Izard


text:
Cocks v. Izard/Opinion of the Court

It was decided by this court, in Slater v. Maxwell, #fn-s-s that where a judicial sale is impeached for fraud, or unfair practices, of officer or purchaser, to the prejudice of the owner, a court of chancery is the proper tribunal to afford relief, and this decision only reaffirmed a well-established doctrine of equity jurisprudence. The present case is within this rule, and the court below manifestly erred in sustaining a demurrer to the bill.

The complainant puts his case for relief on two principal grounds. The necessities of this case do not require us to examine and decide the first point thus raised by him; for the second, if the averments of the bill are true, affords ample ground to give the complainant the desired relief.

The bill charges that Cocks, a citizen of the State of Mississippi, was the owner of a valuable dwelling-house and lots in the city of New Orleans, occupied by Izard, as his tenant, which were seized on judicial process, and ordered to be sold. It does not appear in what way the court acquired jurisdiction of the case, but, it is fair to presume, it was through a proceeding by attachment, as the complainant avers he was without the State, and did not know of either the judgment, execution, levy, or sale.

In this condition of things, the sale took place, and Izard bought the property for a sum of money hardly equal to its yearly rental value. This he was enabled to accomplish by unfair practices, which operated to prevent persons, who were in attendance at the sale and desirous of purchasing, from bidding.

These practices were of a character well calculated to deceive, for it is easy to see that fair-minded men, knowing the owner of the property to be absent, would be inclined to put faith in the declarations of his tenant, that if he purchased, it was on account of his landlord, whose interests he wished to protect, and would be disinclined to interfere with the arrangement.

Can it, then, be doubted, if these things are true, that the conduct of the defendant deprived the complainant of the advantage which he would have received from a fair sale of his property, at which there would have been competition among persons, both able and willing to buy?

The law will not tolerate any influences likely to prevent competition at a judicial sale, and it accords to every debtor the chance for a fair sale and full price; and if he fails to get these, in consequence of the wrongful interference of another party, who has purchased his property, at a price greatly disproportioned to its value, equity will step in and afford redress, either by setting aside the proceedings under the sale, or by holding the purchaser to account.

The defendant in this case has behaved badly, and cannot be allowed to enjoy the fruits of his unfair dealing. The complainant had a right to expect, after reposing enough confidence in him to rent him a dwelling-house, that he would not, in his absence, turn against him, and use this very relation to his prejudice. It may be that, at the time of his purchase, the defendant intended to carry out his promises, for, after the sale, he admitted his obligation to do so, but his cupidity, in the end, got the better of him, as he now asserts an adverse title in himself.

It is insisted, that the complainant should have availed himself of the summary mode, by petition or motion to the court, to have had the sale set aside, and resale ordered; but this objection cannot prevail. It is needless to inquire whether he could have obtained his object in this way, as by not pursuing it, he did not forfeit his right to sue in equity, and the defendant has surely no right to complain, for he has now ample opportunity to make defence and vindicate his integrity.

The decree of the Circuit Court of the United States for the District of Louisiana is REVERSED, and the cause is remanded to that court, with directions to proceed

IN CONFORMITY WITH THIS OPINION.

title: Cocks v. Izard/Opinion of the Court


text: Talk:Cocks v. Izard/Opinion of the Court


text:
The Grapeshot

UPON two separate motions to dismiss an appeal from the decree of the Circuit Court of the United States for the District of Louisiana; the decree being one transferred there under act of Congress, from the late so-called 'Provisional Court' of that State; both motions being made by Mr. Durant.

The ground of the first motion was because the transcript was incomplete, 'as appeared by the certificate of the clerk of the lower court, as given in the printed transcript, and because it further appeared by the said certificate, that the missing parts of the record could not be found, so that it was useless to issue a certiorari,' and on the whole impossible for this court to hear and decide the case.

The ground of the second motion was, that the Circuit Court of the United States in Louisiana had rendered no decree from which an appeal could be taken; so that this court was without jurisdiction.

This Provisional Court of Louisiana, as mentioned in the preceding case, had been established by proclamation of the President, in October, 1862, when the war of the rebellion had subverted and swept away the courts of the Union, and, by the terms of its constitution, was to last no longer than till the civil authority was restored.

The CHIEF JUSTICE delivered the opinion of the court.

title: The Grapeshot


text: Talk:The Grapeshot

title: Talk:The Grapeshot


text:
The Grapeshot/Opinion of the Court

The first motion to dismiss this appeal is made upon the ground that the transcript of the record is incomplete, because of the omission of certain papers said to have been used in the court below, but not to be found when the transcript was made.

The motion must be denied. Proof that the papers alleged to be wanting were used in the court below, and have been lost, must be made by affidavit. The certificate of the clerk who made the transcript cannot be received as proper evidence of these facts.

The other motion is made upon the ground that the decree below was rendered by the Provisional Court of Louisiana, established by the military authority of the President, during the late rebellion, from which no appeal could be properly taken. But we find, on looking into the statutes, that when the Provisional Court ceased to exist, its judgments and decrees were directed to be transferred into the Circuit Court, and to stand as the judgments and decrees of that court. And it is from the decree of the Circuit Court that the appeal under consideration was taken. As an appeal from that court it was regular, and the motion to dismiss must be denied.

All questions concerning the validity of judgments and decrees of the Provisional Court will remain open until after final hearing.

MOTIONS DENIED.

title: The Grapeshot/Opinion of the Court


text: Talk:The Grapeshot/Opinion of the Court

title: Talk:The Grapeshot/Opinion of the Court


text:
Generes v. Bonnemer

IN this case, which came on error to the Circuit Court for Louisiana, it appeared that the only ruling of the court, to be found in the record, was a judgment rendered in favor of plaintiff for the recovery of a sum of money. There was no question raised on the pleadings; no bill of exceptions; no instructions or ruling of the court.

There was what purported to be a statement of facts, signed by the judge, found in the record. It was filed more than two months after the writ of error was allowed and filed in the court, and nearly a month after the citation was issued by the judge. It did not appear to have been filed by consent of parties.

The case was submitted by Mr. Janin for the plaintiff in error, and by Mr. Durant, contra, pointing out the peculiarity of the record.

Mr. Justice MILLER delivered the opinion of the court.

title: Generes v. Bonnemer


text: Talk:Generes v. Bonnemer

title: Talk:Generes v. Bonnemer


text:
Generes v. Bonnemer/Opinion of the Court

To permit the judge to make a statement of facts, on which the case shall be heard here, after the case is removed to this court by the service of the writ of error, or even after it is issued, would place the rights of parties who have judgments of record, entirely in the power of the judge, without hearing and without remedy. The statement of facts, filed without consent of the parties, must be treated as a nullity; and, as there is nothing on which error of the court below can be predicated, the judgment must be

AFFIRMED.


text: Talk:Generes v. Bonnemer/Opinion of the Court


text:
Laber v. Cooper

ERROR to the Circuit Court for the Northern District of Illinois.

Cooper sued Laber in the court below. His declaration contained two counts upon a promissory note, made by Laber to a certain railroad company, or its order, and indorsed, as was alleged, to the plaintiff. It contained also the common counts.

The defendant pleaded the general issue, and three special pleas.

The first averred that there was no consideration for the note, and that it was obtained from the defendant by fraudulent misrepresentations; and that these facts were known to the plaintiff when he took it.

The second denied the indorsement of the note, as averred in the first count.

The third was to the same effect, as to the indorsement averred in the second count.

All the special pleas, though thus denying only what the plaintiff alleged, and not containing either new matter or a special traverse, concluded with a verification; and not to the country.

To the first of them the plaintiff replied, denying his alleged knowledge of fraudulent misrepresentations. To the second and third, no replications were filed. With the pleadings in this state, the case went to trial, and was tried as if the pleadings had been in form and perfect.

Among the testimony given by the defendant relating to both the allegation of fraudulent misrepresentation and to the matter of indorsement, was that of one Durand. The admission of part of this (not necessary to be stated, in view of the decision of this court, that it was not properly brought before it), was objected to by the defendant; but it was, nevertheless, admitted; and this was all that the bill of exceptions disclosed about the matter. No exception to it appeared on the bill.

A request for certain specific instructions, as the record showed, was made by the defendants. The court refused to give them, but charged the jury clearly upon the whole case; fully presenting in the charge its views upon both the subjects presented by the special pleas, and which were, in fact, the only grounds of the controversy. It is not necessary for the reporter to state the case at large on which the charge was given, nor the instructions asked, nor the charge itself; this court considering that the report would shed no new light on any legal principle.

The language of the verdict was thus:

'We, the jury, find the issue for the plaintiff, and assess his damages to the sum of $7192.'

A motion for a new trial was made, and overruled, and judgment entered upon the verdict.

The defendant excepted to the refusal to charge as prayed, to different passages in the charge as given, and to the overruling of his motion for a new trial.

The record contained a hundred and seventy-five pages, of which more than four-sevenths was taken up by the bill of exceptions.

Mr. Carpenter, for the plaintiff in error, contended:

1. That the court had manifestly proceeded in the trial as though all the facts set forth in the defendant's three special pleas were put in issue, while no replication had been put in to the two pleas, denying the indorsement.

2. That even assuming that these matters were all in issue, the verdict did not cover them; being only upon the issue, some one issue; but upon what one did not appear.

3. That Durand's testimony was inadmissible.

4. That the court, instead of charging upon the instructions asked, and so upon points, charged upon general principles; thus not presenting the matters in issue in the best way for the jury to understand them.

[The learned counsel then analyzed the charge, endeavoring to show its error.]

Mr. Umlauf, contra.

Mr. Justice SWAYNE delivered the opinion of the court.

title: Laber v. Cooper


text: Talk:Laber v. Cooper

title: Talk:Laber v. Cooper


text:
Laber v. Cooper/Opinion of the Court

In this case the bill of exceptions furnishes the same ground of complaint, which was remarked upon in Lincoln v. Claflin, heretofore decided at this term. In the case before us, it fills an hundred and twenty-seven printed pages. The points arising for our consideration could have been better presented in a very small part of this space. Such a mass of unnecessary matter has a tendency to involve what is really important in obscurity and confusion. Its presence is a violation of the fourth rule of this court. Its examination consumes our time, increases our labor, and can subserve no useful purpose. The subject was so fully considered in the case referred to, that we deem it unnecessary to pursue it further upon this occasion.

Winnowing away the chaff, we find the questions left for our examination neither numerous nor difficult of solution.

The declaration contains two counts upon a promissory note, made by Laber to the Racine and Milwaukee Railroad Company, or order, for $3700, dated the 6th of May, 1856, payable five years from the 10th of May, in that year, with interest at the rate of ten per cent. per annum, payable annually, on the 10th of May; principal and interest payable at the office of the company, in the city of Racine, in the State of Wisconsin, and indorsed by the payee, by H. S. Durand, its president, to the plaintiff. The declaration contains also the common counts.

The defendant pleaded the general issue, and three special pleas.

The first special plea avers that the note, and a mortgage securing its payment, were given to the railroad company for thirty-seven shares of its capital stock; that there was no consideration for the note; that it was obtained from the defendant by false and fraudulent representations; and that these facts were known to the plaintiff when the note came into his possession. The second special plea denies the indorsement of the note to the plaintiff, as averred in the first count. The third special plea is to the same effect, as to the indorsement averred in the second count. All the special pleas conclude with a verification.

To the first of the special pleas, the plaintiff replied denying knowledge of the alleged false and fraudulent representations, before and at the time of the indorsement and transfer of the note. To the second and third special pleas, no replications were filed.

The cause proceeded to trial. The record shows that a large mass of testimony was given by the defendant relating to both the defences set up by the special pleas. A prayer for instructions was submitted by the defendant. The court refused to give them, but charged the jury full upon the whole case. Both the subjects presented by the special pleas were fully discussed. Indeed they were the only grounds of the controversy between the parties. The case was tried, in all respects, as if the pleadings had been formal and perfect. The jury found for the plaintiff. The language of the verdict is: 'We, the jury, find the issue for the plaintiff, and assess his damages,' &c. The defendant moved for a new trial. The motion was overruled, and judgment entered upon the verdict. The defendant excepted to the refusal to charge as prayed, to twelve passages in the charge as given, and to the overruling of his motion for a new trial.

1. It is objected, as an error, that no replication was put in to the pleas denying the indorsement of the note.

The plea of the general issue would have made it incumbent upon the plaintiff to prove the indorsement was averred in the declaration, but that the statute of Illinois, adopted by the Circuit Court as a rule of practice, dispenses with such proof, unless the fact is denied by the defendant under oath. The oath of the defendant was affixed to both the pleas, raising the question. As they only denied what the plaintiff had alleged, contained no new matter, and no special traverse, they should have concluded to the country, and not to the court. The defect was one of form, and could have been reached by a special demurrer. The trial proceeded as if they had concluded to the country, and a similiter had been added by the plaintiff. To the objection now taken, there are several answers. The irregularity is cured by the trial and verdict. The objection comes too late; not having been made in the court below, it cannot be made here. It is within the thirty-second section of the Judiciary Act of 1789, which forbids a judgment to be reversed for any want of form in the proceedings, except such as shall have been specially pointed out by demurrer.

2. It is said that, conceding the issues intended to be made by the defendant were in fact submitted to the jury, the verdict does not respond to them; that it finds 'the issue'-but one-and not designating which one, for the plaintiff.

It was competent for the court to amend the verdict by changing the term 'issue' from the singular to the plural. This would have removed the ground of the objection. A verdict, unless it be a special one, is always amendable by the notes of the judge. The proper amendment would doubtless have been made below, if the attention of the court had been called to the subject. Like the preceding objection, it is made here too late, and is within the act of Congress referred to, upon the subject of jeofails.

3. Upon looking through the testimony of Durand, as set out in the bill of exceptions, it appears that the admission of a part of it was objected to by the defendant, but it does not appear that the objection was overruled, and exception taken. It only appears that the testimony was admitted after the objection was made. Non constat, but that the objection was waived, or the decision acquiesced in. In order to make such a point available, it is necessary that an exception should be distinctly taken, and placed upon the record.

4. It was not error for the court to refuse to give the instructions asked for by the defendant, even if correct in point of law, provided those given covered the entire case, and submitted it properly to the jury. The defences of false and fraudulent representations to the defendant, and of the non-indorsement of the note, involved mixed questions of law and fact. We think the law was properly stated by the judge, and the facts fairly submitted to the jury. The charge was full and able. It would throw no new light upon any legal principle, and could be productive of no benefit, to examine in detail, each of the numerous passages taken from the charge, and made the subject of exception. It is sufficient to say that, after a careful examination of all of them, in the light of the context of the charge, and of the evidence, as it was before the jury, we have found nothing which we deem erroneous.

5. An exception to the overruling of the motion for a new trial is found in the record, but is not adverted to in the argument submitted for the plaintiff in error. Such a decision cannot be made the subject of review by this court.

AFFIRMED.

title: Laber v. Cooper/Opinion of the Court


text: Talk:Laber v. Cooper/Opinion of the Court


text:
The Alicia

THIS was a motion by Mr. Ashton, Assistant Attorney-General, to docket and dismiss.

It appeared from the certificate of the clerk of the Circuit Court of the United States for the Southern District of Florida, that on the 9th of January, 1863, a decree of condemnation was entered in the District Court for the condemnation of the Alicia and her cargo, for violation of the blockade. From this decree an appeal was allowed, and taken to the Circuit Court; and, on the 18th of May, 1867, an order was made in that court, on the application of the parties in interest-there being at this time, in the Circuit Court, no order, judgment, or decree in the case for the transfer of the cause to this court.

The application and order for transfer were made under the thirteenth section of the act of June 30, 1864, which enacts that prize causes, depending in the Circuit Courts, may be transferred, upon the application of all parties in interest, to this court.

The appellant had not docketed the cause and filed the record within the time allowed by the rules in cases of appeals, and Mr. Ashton's motion to dismiss was made for that reason.

The CHIEF JUSTICE delivered the opinion of the court.

title: The Alicia


text: Talk:The Alicia

title: Talk:The Alicia


text:
The Alicia/Opinion of the Court

As the appellant has not docketed the cause and filed the record within the time allowed by the rules in cases of appeals, the motion would be allowed as of course, if the appeal could be regarded as taken to this court from the decree of the District Court. But the decree of condemnation in that court was rendered in January, 1863, and the appeal to the Circuit Court was allowed, and bond given, in the same month. By these proceedings, and the transmission of the record to the Circuit Court, the cause was duly removed to that court under the laws regulating appeals at that time. Subsequently, by the thirteenth section of the act of June 30, 1864, provision was made for appeals in prize cases directly from the District Court to this court; and it was directed that appeals from the Circuit Courts, in cases remaining therein, should be allowed to this court in the same manner as appeals from the District Court under the act. But it was also provided in the same section that prize causes, depending in the Circuit Courts, might be transferred, upon the application of all parties in interest, to this court; and it was under this provision that the application and order for transfer were made.

Can this court acquire jurisdiction of the cause through this order of transfer?

It cannot be doubted that the cause was removed to the Circuit Court by the appeal from the decree of the District Court in 1863. That decree was vacated by the appeal, and the Circuit Court acquired full jurisdiction of the cause. It might, in its discretion, make orders for further proof, and was fully authorized to proceed to final hearing and decree, in all respects, as if the cause had been originally instituted in that court. Nor can it be doubted that, under the Constitution, this court can exercise, in prize causes, appellate jurisdiction only. An appellate jurisdiction necessarily implies some judicial determination, some judgment, decree, or order of an inferior tribunal, from which an appeal has been taken. But in this case there had been no such order, judgment, or decree in the Circuit Court; and there was no subsisting decree in the District Court, from which an appeal could be taken. We are obliged to conclude that, in the provision for transfer, an attempt was inadvertently made to give to this court a jurisdiction withheld by the Constitution, and, consequently, that the order of transfer was without effect. The cause is still depending in the Circuit Court. We must decline, therefore, to make an order to docket and dismiss the appeal; but this opinion may be

CERTIFIED TO THAT COURT FOR INFORMATION.

title: The Alicia/Opinion of the Court


text: Talk:The Alicia/Opinion of the Court

title: Talk:The Alicia/Opinion of the Court


text:
Railroad Company v. Harris

THIS was a motion for writs of supersedeas to the Supreme Court of the District of Columbia to stay execution upon two judgments recovered in that court, one by Harris, against the Baltimore and Ohio Railroad Company, and the other by his administratrix, against the same defendant.

The first judgment was for injuries sustained by Harris, when a passenger on the defendant's railroad. The second was a judgment upon scire facias, to revive the former judgment, abated by the death of Harris, and to make his administratrix party to that judgment, and to have execution.

To bring the first judgment into this court for review, a writ of error had been sued out by the railroad company, and a sufficient bond for prosecution was filed, within ten days after rendition; but no copy of the writ of error appeared to have been lodged in the clerk's office for the use of the defendant in error.

The twenty-third section of the Judiciary Act thus declares:

'A writ of error shall be a supersedeas, and a stay of execution, in cases only where the writ of error is served by a copy thereof being lodged, for the adverse party, in the clerk's office, where the record remains, within ten days, Sundays exclusive, after rendering the judgment and passing the decree complained of.'

Messrs. Bradley and Buchanan, in support of the motion.

Messrs. Davidge and Fuller, contra.

The CHIEF JUSTICE delivered the opinion of the court.

title: Railroad Company v. Harris


text: Talk:Railroad Company v. Harris

title: Talk:Railroad Company v. Harris


text:
Railroad Company v. Harris/Opinion of the Court

The right of the plaintiff in error to the writs for which the motion now before us is made, depends on the question whether, by the proceedings taken in the case, the writ of error upon the first judgment became a supersedeas?

And this question is answered by the express words of the twenty-third section of the Judiciary Act.

The legislature has seen fit to make the lodging of a copy of the writ, within ten days, a prerequisite to the operation of the writ as a supersedeas. The cause was removed from the inferior court to this court, by the issuing of the writ, and the due service of it upon the court to which it is addressed; but its additional effect, as a supersedeas, depends upon compliance with the conditions imposed by the act. We cannot dispense with that compliance in respect to lodging a copy for the adverse party.

The motion for writs of supersedeas in both cases must, therefore, be DENIED; and as the second writ of error brings nothing before us, unless the writ in the first case operated as a supersedeas under the statute, that writ must be

DISMISSED.


text: Talk:Railroad Company v. Harris/Opinion of the Court


text:
Railroad Company v. Bradleys

MOTIONS to dismiss and for supersedeas, on an appeal from the Supreme Court of the District of Columbia. The case was thus:The Washington, Georgetown, and Alexandria Railroad Company had filed, in 1863, a bill to enjoin the City of Washington and J. and A. Bradley, trustees, from making sale of certain property conveyed by the company in mortgage to the said Bradleys as trustees, and under which the Bradleys were about to sell the property to pay the mortgage debt. An injunction was accordingly granted. But after various proceedings on both sides, a decree was entered, on the 6th of February, 1869, which ordered that the injunction be dissolved, and directed a sale by the Bradleys, the trustees of the property in controversy, according to the deed of trust, and the bringing of the proceeds into court to abide further orders.

From this decree an appeal was prayed in open court by the railroad company, and subsequently an appeal bond was filed in the court, and approved by one of the judges. But it did not appear directly that an appeal was allowed.

As already stated, the decree dissolving the injunction and directing a sale, was entered on the 6th of February, 1869. A petition for the suspension of this order of dissolution was filed, by the secretary of the railroad company, on the same day; a motion to the same effect was made in behalf of the Department of War, on the 15th of February, and a petition to open the decree was filed on the 13th of February, by one of the stockholders of the company.

On the 6th of March, and during the term at which the decree was rendered, a motion to rescind was made in behalf of the railroad company, and on the 13th of that month was heard and denied.

On the 20th the appeal was prayed by the railroad company, and on the 23d the bond of appeal was approved and filed.

Upon this state of facts two motions were now made in this court,-one, in behalf of the appellees, to dismiss the cause for want of jurisdiction; the other, in behalf of the appellants, for a supersedeas.

In support of the motion to dismiss, it was urged,

First, that the decree appealed from was not final; and,

Secondly, that there was no allowance of appeal.

In support of the motion for supersedeas, that the appeal bond was approved, and filed within ten days after the decree.

Messrs. Riddle and Brent, for the appellants.

Mr. J. H. Bradley, contra.

The CHIEF JUSTICE delivered the opinion of the court.

title: Railroad Company v. Bradleys


text: Talk:Railroad Company v. Bradleys

title: Talk:Railroad Company v. Bradleys


text:
Page:Haiti- Her History and Her Detractors.djvu/161

 Rh were arrested and deported. However, his tyranny and the woeful plight of the island made the colonists so uneasy that they began to flee from Saint-Domingue. "It was," says Gastonnet des Fosses, "a general signal of dispersing; the colony looked like a ship about to founder."

Under the heavy blows of the natives the ship was foundering in reality. In the South, Férou, assisted by Colonel Bazile, was sweeping away the French posts in his victorious march against Jérémie. The French General Fressinet, who was in command, was unable to defend the town, which he evacuated on the 4th of August, 1803, Férou at once taking possession of it. The bi-colored flag bearing its proud motto, "Liberty or death," floated over the arrogant city of the overbearing colonists of Grand 'Anse. Cayes, the only important town of the Southern province still in the power of the French, was being besieged by Geffrard.

Dessalines, who seemed to be ubiquitous, so great was his activity, had gone from Cul-de-Sac to Petite Rivière where he instructed Gabart to storm Saint-Marc. The arrival of the natives before the town coincided with the presence in the harbor of an English frigate. The garrison, already starved out, was in the last stage of exhaustion. In consequence, the French General d'Hénin, who was in command, did not deem it wise to wait for an attack. He hastened to sign a capitulation with the captain of the English frigate and, on the 4th of September, 1803, he evacuated the town, which Gabart immediately occupied. Dessalines, who was at that time at Port-de-Paix, left in haste for Saint-Marc.

On the 9th of September, Toussaint-Brave took possession of Fort-Liberté, which the French had also abandoned.

On September 17 Cangé and Magloire Ambroise, who were besieging Jacmel, occupied the town in pursuance of an armistice concluded with the French General Pageot, who retired with his army to Santo Domingo.


text:
Railroad Company v. Bradleys/Opinion of the Court

We think that the decree entered on the 6th of February, 1869, was a final decree within the principles of the case of Thomson v. Dean, decided at this term, though it might have been otherwise had the decree been limited to the dissolution of the injunction, thereby merely permitting the trustees to sell under their trust.

The first ground of the motion to dismiss, therefore, cannot be sustained.

Nor is the second ground more tenable. It is true that it does not appear upon the record directly that there was an allowance of the appeal; but an appeal was prayed, and subsequently the appeal bond was filed in the court, and approved by one of the judges; and, we think, it may be properly inferred, from these facts, that an appeal was actually allowed. The motion to dismiss, therefore, must be denied.

In support of the motion for supersedeas, it was argued that the appeal bond was approved, and filed within ten days after the decree.

The decree was entered on the 6th of February, 1869. A petition for the suspension of the order of dissolution was filed, by the secretary of the complainants, on the same day; a motion to the same effect was made in behalf of the Department of War, on the 15th of February; and a petition to open the decree was filed on the 13th of February, by one of the stockholders of the company.

We do not think it necessary to consider the effect of either of these proceedings; for, on the 6th of March, and, as we understand, during the term at which the decree was rendered, a motion to rescind was made in behalf of the complainants, and was heard and decided.

There is no doubt that, during the term, the decree was, at all times, subject to be rescinded or modified, upon motion, and could not, therefore, be regarded as absolutely final, until the end of the term. It became final, in this case, when the motion to rescind had been heard and denied. This took place on the 13th of March, and, on the 20th, the appeal was prayed in open court, and on the 23d the bond of appeal was approved and filed.

We think this was in time, and the motion for supersedeas must, therefore, be allowed. #fn-s-s

ORDERS ACCORDINGLY.


text: Talk:Railroad Company v. Bradleys/Opinion of the Court


text:
Page:Haiti- Her History and Her Detractors.djvu/49

In 1789 there were at Saint-Domingue 520,000 inhabitants, 40,000 of whom were white, 28,000 "affranchis," and 452,000 slaves. The number of maroons was from two to three thousand. Whilst most of the whites led corrupt and dissolute lives, the "affranchis," through domestic virtues, were acquiring much wealth; they possessed a third of the real estate, and a fourth of the personal property of the colony. Yet no regard was shown them. Despite the levelling and philanthropic philosophy which in Europe was moving the heart of the nobility, the colonists became daily more and more haughty and overbearing to the men of the black race; they did all in their power to check the hopes which these new ideas began to raise in the souls of the sorely oppressed slaves. Through their influence and intrigues the colonists extorted from the weak hands of Louis XVI decisions of the most insulting nature against the "affranchis." The excess of humiliations heaped on them at last moved, even in France, the pity of generous hearts.


text:
Morris and Johnson v. United States

APPEAL from the District Court for the Middle District of Alabama.

By an act of Congress of August 6th, 1861, property used in aid of the rebellion was made the lawful subject of prize and capture wherever found; and it was made the duty of the President of the United States to cause the same to be seized, confiscated, and condemned. And a subsequent act, that of 17th July, 1862, authorized the seizure and confiscation of the property of certain persons engaged in the rebellion.

These statutes being in force, an information was exhibited in this case in the court below, alleging, in substance, that certain bales of cotton had become the property of the United States through the surrender of the Confederate General Taylor, on the 5th of May, 1865, or otherwise had become liable to seizure and condemnation under the acts of Congress just mentioned; that this cotton was stored, until some day in April not specified, in the warehouse of the defendant, Johnson; and on some day, not specified, in the year 1865, was removed by him and the defendant, Morris, from the warehouse and sold; and that the said defendants had appropriated the proceeds to their own use. The information did not allege that the cotton was at the time, or had ever been, in any place where it could be seized, or that any proceeds of the sale existed in any such form as to be capable of seizure.

The defendants answered, setting up various matters of defence, and filed with their answer several exceptions to the information, of which two only, as this court considered, required notice.

The first was, that the information did not show any valid and subsisting seizure at the time of filing the information.

The second was, that the information did not allege any seizure under the acts of Congress.

These exceptions were overruled by the District Court, which proceeded to render a personal judgment against the defendants for the value of the cotton, as found by the court. From this decree the defendants appealed.

Mr. Chilton, for the appellants.

Mr. Ashton, Assistant Attorney-General, contra.

The CHIEF JUSTICE delivered the opinion of the court.

title: Morris and Johnson v. United States


text: Talk:Morris and Johnson v. United States


text:
Morris and Johnson v. United States/Opinion of the Court

In proceeding to render a personal judgment against the defendants, for the value of the cotton, as found by it, the District Court erred.

Without adverting to the principles settled in the cases of the Union Insurance Company v. United States and Armstrong's Foundry, we are clearly of opinion-first, that the information, at most, presents only a case of the unlawful conversion of property to the use of the appellants, and that for redress of such an injury this proceeding by information cannot be sustained; and second, that neither the act of 1861 nor the act of 1862 contemplated any proceeding, as in admiralty, where there existed no specific property or proceeds capable of seizure and capture.

The decree of the District Court must therefore be REVERSED, and the cause remanded, with directions to the District Court to cause restitution to be made to the appellants of whatever sum of money they have been compelled to pay under that decree.


text: Talk:Morris and Johnson v. United States/Opinion of the Court


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United States v. Rosenburgh

ON certificate of division in opinion between the judges of the Circuit Court for the Southern District of New York.

The Judiciary Act of 1802 provides that whenever any question shall occur before a Circuit Court, upon which the opinion of the judges shall be opposed, the point upon which the disagreement shall happen, may be certified to this court, and shall by it be finally decided.

With this statute in force, one Rosenburgh was indicted in the court below, for an offence alleged to be within an act of Congress specified. A motion being made to quash the indictment, on the ground, among others, that upon the true interpretation of the act under which the indictment was made, no offence had been committed, and that the indictment was insufficient, a division of opinion on these points existed between the judges, involving, of course, a division as to whether the motion to quash ought or ought not to be granted.

The division upon the meaning of the act, and upon the sufficiency of the indictment, being certified, these points were argued. But it appearing, also, that they arose upon a motion to quash, a preliminary question-one, as the result proved, which rendered the decision of the other questions unnecessary-was suggested here; the question, namely, whether this court could, under the above-quoted Judiciary Act of 1802, take cognizance of a certificate of division upon a motion to quash an indictment.

Mr. Evarts, Attorney-General, for the United States.

Mr. E. W. Stoughton, contra.

The CHIEF JUSTICE delivered the opinion of the court.

title: United States v. Rosenburgh


text: Talk:United States v. Rosenburgh

title: Talk:United States v. Rosenburgh


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

The general rule undoubtedly is, that this court cannot, upon a certificate of division of opinion, acquire jurisdiction of questions relating to matters of pure discretion in the Circuit Court. Thus, it has been held that this court will not determine upon a certificate of division of opinion, whether or not a new trial shall be granted, or whether a plaintiff in ejectment shall be permitted to enlarge the term in the demise, or any question in any equity cause relating to the practice in the Circuit Court, and depending on the exercise of sound discretion in the application of the rules which regulate the course of equity to the circumstances of the particular cause.

The principles by which the limit of jurisdiction, upon certificates of division, is determined, were quite fully considered in the case of Davis v. Braden, and the conclusion of the court was, that a division on a motion, to be granted or refused at the discretion of the court, does not present a point which can be certified under the act of Congress. Upon this principle, the court in that case refused to take cognizance, upon certificate, of the question, whether an action of detinue, founded upon tort, when abated by the death of the defendant, can be revived against his personal representatives.

In the opinion then delivered, the court took notice of the case of The United States v. Wilson, supposed to be an authority for taking cognizance of the question made by the motion to revive. In that case the question certified was, whether a prisoner, convicted of a capital crime, could have any advantage from a pardon without bringing it judicially before the court; and it arose upon a motion of the district attorney for sentence. The court regarded this as a question going to the merits, and not determinable in the exercise of mere discretion; and, therefore, held this case not to be an authority for another, in which the merits were not involved in the question certified.

There are other cases in which the court has taken cognizance of questions directly affecting the merits of the cause, even though arising, in form, upon motions determinable at discretion. The case of The United States v. Chicago, where the question certified arose on a motion to continue a temporary injunction, granted by the district judge, until final hearing on the merits, must be regarded as one of this character. The continuance of the injunction was clearly matter of discretion with the court; but the question certified involved the right of the United States in the land which was the subject of the suit, and was one proper for consideration upon the motion for continuance. The court held, though not unanimously, that the case was exceptional in its character, and that cognizance of the question certified might be properly taken. It may be doubted whether, in this instance, the exception made to the general rule was quite warranted by the principle established in prior decisions.

In the latter case of The United States v. Reid & Clements, the point of jurisdiction upon certificate was not noticed. One of the questions certified seems, however, to have been clearly cognizable here. The defendants had been separately tried, and one of them, when upon trial, had proposed to call the other as a witness, and the court had rejected the testimony. The question certified was, whether this ruling was correct. It arose upon motion for new trial, but it was plainly a point which must be determined, as of right, before sentence could be pronounced; and the certificate therefore was within the principle of The United States v. Wilson.

The motion to quash, upon which the question now before us arose, was clearly determinable as a matter of discretion. It was preliminary in its character, and the denial of the motion could not finally decide any right of the defendant. The rule laid down by the elementary writers is, that 'a motion to quash is addressed to the sound discretion of the court, and if refused, is not a proper subject of exception.'

When made in behalf of defendants, it is usually refused, unless in the clearest cases, and the grounds of it are left to be availed of, if available, upon demurrer or motion in arrest of judgment.

It is quite clear therefore that we cannot take cognizance of the questions certified to us in the present condition of the case. They may hereafter arise upon demurrer, or on motion in arrest, and if the opposition of opinion shall still exist, can be again presented for consideration here.

DISMISSED FOR WANT OF JURISDICTION.


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


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Agawam Company v. Jordan

ERROR to the Circuit Court for Massachusetts, the suit having been one to restrain the use, by the Agawam Woollen Company, of a certain machine for manufacturing wool and other fibrous materials, patented to John Goulding.

The process formerly in use in the production of yarn from wool, was by a set of carding engines, a billy and a jenny; a series usually consisting of three carding machines, commonly called a first breaker, a second breaker, and a finisher, one billy and two jennies, sometimes two double carding machines being used instead of three single carding machines.

The wool was fed to the first carding machine, called the first breaker, on a feed table, and was doffed off the doffer of that machine by a comb. The material thus doffed off was taken to the second carding machine, called the second breaker, and was fed into it in the same manner as in the first, and upon leaving the doffer, was either wound round a large cylinder, making what was called a lap or bat, or dropped on the floor. The material was then taken to the third carding machine, and was fed to it in the same way, and, by a roller and shell at the delivery-end of this machine, was made into short rolls, which were about as long as this machine was wide. These short rolls were then taken to the billy, and were spliced together on the apron roll of the billy by children, by rubbing the rolls together with their hands, and were carried forward on the billy, after being so spliced together, by the apron roll, which fed them through the jaws of the billy to the spindles. The product of the billy was called roving. This roving was then taken from the billy and set up on cops to the jenny, upon which it was spun into yarn.

As early as 1812, Goulding, born in 1793, the son of a machinist, and from early years familiar in his father's factory with machines and machinery, sought to improve this long train of engines, called in their whole series 'the carding machine.' He thought that he could so improve it as to produce yarn from wool in a cheaper manner, of better quality, and in greater quantity than was produced by the old process. Engaged at different times in Massachusetts, at Worcester, Halifax, and, lastly, at Dedham, where, in 1823, he fixed himself as both a machinist and a manufacturer of textile fabrics, he only sought, for some years, to improve the billy; but, as experiments were made by him, he aimed, finally, at dispensing with the billy entirely, and accomplishing with four machines that which had previously required the use of five. His purpose was also to dispense with short rolls entirely, and get the perpetual or endless roll, and carry it through its different stages, from the crude wool until it became finally converted into yarn.

The result of his experiments and trials, extending over a long term of time, and after the use by him of very many devices, was, as he alleged, successful. He dispensed with the billy entirely, and by processes testified to by many witnesses as invented by him, and by himself so sworn to be, obtained a continuous or perpetual roll as the product of each carding engine; accomplished a successful mixing of the wool-as well where the same color was used, as where different colors were used; dispensed with a large amount of manual labor, and secured a larger product at half the expense as compared with the old process, a better and more uniform roving, and a better and more uniform quality of yarn.

Such was his view and his case, as set forth in the bill.

But Goulding's claim to these high merits of invention were not conceded. There were witnesses also, chiefly one Cooper, of Concord, New Hampshire, who swore that he derived great aid from others. Specific conversations and admissions of Goulding, about the time of the alleged invention, were sworn to by Cooper. But his testimony was strongly impeached; and relationship, bad feeling, or interest were shown in others of the witnesses. As to Cooper himself, forty different persons swore that his general reputation for truth and veracity was bad. Very numerous ones, however, swore that they had not heard it called in question. This sort of testimony covered some hundred pages of the record.

Taken all together, this part of the case, on favorable assumption for the defendant, seemed somewhat thus: After Goulding came to Dedham, and had been experimenting there for a considerable time, one Edward Winslow, a blacksmith by trade, but if the testimony in his favor was to be believed, an ingenious man, came into his service. Winslow professed no skill out of his business, but made himself useful generally in whatever Goulding found it most convenient to set him to do; working generally in iron. He had no charge of Goulding's machine shop, but was not unfrequently in it. Goulding himself directed all that was done about machinery, whether as to making or as to altering it. In 1824, Winslow having been to a neighbor's factory, where certain devices, meant to produce long or endless rolls, and to serve as receptacles for the rovings, had been introduced on machinery for spinning yarn, Goulding, who had now nearly completed his improvement, and while he was diligently prosecuting his experiments, asked him what he thought of them. Winslow replied that the principle of them was good, but that the agencies employed were bad, and suggested certain substitutes (a spool and drum) for them. 'You don't know anything,' was Goulding's first reply. However, upon seeing an experiment, apparently at first successful, made at his own mill, on the basis of Winslow's idea, he exclaimed, 'Winslow, you have got it. I will give you $2500 and half of what we can make.' But the experiment broke down in the process of exhibiting it. Goulding then exclaiming, 'Your plan isn't worth a cent. I would not give a fig for it,' left the mill. Upon further conversation and consideration, Goulding saw merit in Winslow's suggestions, and having made them practicable by an addition of his own (the 'traverser,' whose effect was to wind the roving evenly on the spool), he adopted them (instead of cans, the far less convenient agency previously used) as two items of his far larger improvement. As it turned out in the result they proved useful.

It appeared, however, and was so assumed by this court, after a very minute statement in the terms of art, of many details of the matter, that it was only as an auxiliary part of Goulding's invention that they were of value, and that they did not make either the entire invention or any one of its separate combinations.

Goulding went on continuously engaged in perfecting his improvement, till November, 1826, before the middle of which month he filed his application for letters patent, and on the 5th December he received them for the whole combined invention. None of the devices described in his specifications were new, and the claims were for combinations arranged in a manner set forth.

The patented improvement soon came into universal use, and worked a revolution, both here and in Europe, in the art of manufacturing fibrous yarns. It has not been improved, but remains now what it was when the patent was granted.

The patent granted, as above mentioned, expired December 5, 1849. Goulding desired to make application for its renewal, but through erroneous information given him by the Commissioner of Patents, he failed to apply for the extension until too late for the commissioner legally to entertain his application, and the patent expired accordingly as already stated. Congress finally, and after persistent efforts by Goulding, passed May 30, 1862, a special act, authorizing the commissioner to entertain his application for extension as though it had been made within the time prescribed by law. This special act contained a proviso,

'That the renewal and extension shall not have the effect, or be construed, to restrain persons who may be using the machinery invented by said Goulding at the time of the renewal and extension, thereby authorized for continuing the use of the same, nor subject them to any claim or damage for having so used the same.'

The patent was extended by the commissioner August 30, 1862. The patent having been reissued July 29, 1836, was again reissued in June, 1864, having before this last date become vested in Jordan, the complainant, to whom the reissue was made.

The proviso of the act authorizing a renewal and extension, was not recited in the reissued letters patent. But the certificate of renewal and extension was made subject, in express terms, to the proviso contained in the act. In this condition of things, the Agawam Woollen Company, using certain machinery alleged to be the same with that now patented to Jordan, he filed his bill against them, praying for injunction, account, and other relief. The bill put specific and categorical interrogatories in reference to the fact of infringement. The defendants did not answer the interrogatories as put. They only denied the use of any machinery 'in violation and infringement of any rights of the plaintiff, or that they are using, or have made, or sold, or used any machines not protected or covered by the proviso in the act of Congress;' and putting it to the court to say whether they should make further answer. The machinery which they did use, they began to use after the date of the extension (the company not being incorporated at that date), but before the surrender and reissue of June, 1864.

With this implied admission of infringement, the answer put the defence chiefly on four grounds:

First. 'This defendant denies that the said Goulding ever bestowed any ingenuity upon the invention or improvement mentioned in either of the letters patent aforesaid, and alleges that the improvements therein described, were invented and applied by one Edward Winslow, then of Dedham, from whom said Goulding first obtained knowledge of the same, and fraudulently and surreptitiously obtained a patent on the 15th day of December as aforesaid, for that which he well knew was the invention of said Winslow, at and before the application by him for a patent, as set forth in said bill.'

Second. That at the time of Goulding's application for a patent, the invention had been on sale, and in public use, with his consent and allowance, for a long time; and that he abandoned the same to the public. Sale and public use for more than two years, prior to the application for a patent, were not, however, alleged in the answer.

Third. That the certificate on the reissued letters patent of 1864, was not in conformity with the act of Congress, and did not contain the limitations or conditions as annexed to the patent, as extended; and, therefore, that the reissued patent was void.

Fourth. That the defendant's machinery, although built subsequently to the date of the extension, yet, having been in use before and at the time of the reissuing of that patent in 1864, was within the saving proviso of the act of Congress.

The court below decreed for the complainant, and the case was now here on appeal by the other side.

Mr. Robb, for the appellant-after remarking that nearly half a century had passed since the events which were the subject of investigation, occurred; that nearly all of those who had personal knowledge of them, had been dead many years; and that, in every patent case, the loss of testimony affected the defendant more seriously than it did the plaintiff, since the defendant has upon him the burden of overcoming the presumption which the plaintiff derives from his patent alone-commented on the facts, arguing that Winslow was the undoubted inventor of the spool and drum-most important features of the mechanism patented-and that in regard to these, Goulding had no merit.

The efforts at impeachment of Cooper were to be received (the learned counsel argued) with great distrust. It was easy to bring men, in almost any case, who would swear before a commissioner, and from the bias of revenge or interest, that they would not believe a particular witness, and so to make a record the vehicle of scandal, which would never have been spoken if the witnesses had been in the presence of the court, under the restraints of law, when they told their stories. In this case, of course, the testimony had been taken in this private manner. The learned counsel then contended:

1. That the invention had been in use for more than two years, and had been abandoned, as appeared, by the delays of Goulding in getting a patent; moreover, he had not an extension until twenty-two years after the expiration of the first patent.

2. That the proviso in the act of Congress was a limitation of the authority vested in the commissioner. The grant was to be limited 'so that it shall not be construed' to vest, &c. Now by law, as is well known, no extension of a patent shall be granted by the commissioner after the expiration of the term for which it was originally issued. Prim a facie, therefore, this patent is void, and it is only by invoking the statute that it can be saved. Now, this being a private statute, it should be incorporated with, and accompany the exercise of the authority claimed under and by virtue of it.

3. That by a true interpretation of the act, the defendant's machinery came within the proviso of the act of Congress.

Messrs. B. R. Curtis and Stoughton, contra.

The patent is prim a facie evidence that Goulding was the original and first inventor of the thing patented.

The answer charges a fraudulent and surreptitious appropriation, by Goulding, of Winslow's invention, and fraud is to be proved by the party alleging it.

To sustain this burden, it is not sufficient for the appellants to prove that Winslow, while a hired workman of Goulding, suggested mechanical means of carrying some part or parts of Goulding's plan into effect; he must prove that the entire plan of the invention, as described by Goulding in the original letters patent of December 15, 1826, was the sole invention of Winslow, for the answer does not set up a joint invention by Goulding and Winslow, but a several invention by Winslow, and a fraudulent and surreptitious appropriation of the entire invention by Goulding.

But these principles of law need not be invoked. There is no sufficient evidence that Winslow invented anything. The attempt is to overturn a title of forty years' standing on evidence that would not be trustworthy, even if it related to recent occurrences. To recollect specific language after the lapse of forty years, is impossible. Conversations are the least trustworthy of all kinds of evidence, even when alleged to be recent; but here, where they are confessed to have occurred upwards of forty years ago, no reliance can be placed on them. The facility with which conversations can be either invented or distorted, the necessity of knowing all that was said, the occurrences which gave rise to the conversations, and the circumstances under which the conversations occurred, the inability of human memory to retain the precise language that was used, the proverbial fact of the different versions which different witnesses give even of recent conversations, the radical change in meaning which even the slightest transposition of language will sometimes make, all concur in showing that evidence of them is the most unsatisfactory testimony upon which a court of justice can act.

Moreover, forty witnesses have sworn that Cooper's general reputation for truth is bad. Their testimony is affirmative, while all the counter testimony is negative. When we consider the facility with which bad men, with some good qualities, can really friends in support of their character, it is not surprising that many should have appeared to assist Cooper. In a place as large as Concord, there are undoubtedly men whose characters for veracity are bad, and yet many witnesses could be produced who never heard their characters spoken of in respect to veracity. The testimony here is simply negative, not showing-because some of the witnesses have not heard Cooper's character pronounced bad-that it is not bad, but only showing that they have not heard it stated to be so. It is impossible, we submit, for any man's character for truth and veracity to be otherwise than bad, when forty witnesses swear that it is bad, even if ten times that number should be produced to swear that they had never heard it questioned.

The remaining grounds of defence have no foundation in the facts of the case, nor in the law of patents by any possible view of it.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Agawam Company v. Jordan


text: Talk:Agawam Company v. Jordan

title: Talk:Agawam Company v. Jordan