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Cohn v. United States Corset Company

Appeal from the Circuit Court of the United States for the Southern District of New York.

This was a suit for an infringement of the complainant's letters-patent, which are as follows:-- UNITED STATES OF AMERICA.

'To all to whom these presents shall come:

'Whereas, Moritz Cohn, of New York, N. Y., has presented to the Commissioner of Patents a petition praying for the grant of letters-patent for an alleged new and useful improvement in corsets, a description of which invention is contained in the specification, of which a copy is hereunto annexed and made a part hereof, and has complied with the various requirements of law in such cases made and provided; and,

'Whereas, upon due examination made, said claimant is adjudged to be justly entitled to a patent under the law:

'Now, therefore, these letters-patent are to grant unto the said Moritz Cohn, his heirs or assigns, for the term of seventeen years from the fifteenth day of April, 1873, the exclusive right to make, use, and vend the said invention throughout the United States and the Territories thereof.

'In testimony whereof, I have hereunto set my hand and caused the seal of the Patent Office to be affixed, at the city of Washington, this fifteenth day of April, in the year of our Lord one thousand eight hundred and seventy-three, and of the Independence of the United States of America the ninety-seventh.

'Countersigned,

'B. R. COWEN,

'Acting Secretary of the Interior.

'M. D. LEGGETT,

'Commissioner of Patents.'

[L. S.]

UNITED STATES PATENT OFFICE. Improvement in Corsets.

'Specification forming part of letters-patent No. 137,893, dated April 15, 1873; application filed Jan. 30, 1873.

'To all whom it may concern:

'Be it known that I, Moritz Cohn, of New York City, in the State of New York, have invented certain new and useful improvements in corsets; and I do hereby declare that the following is a full and exact description thereof, reference being had to the accompanying drawing making part of this application:--

'Previous to my invention, it has been customary, in the manufacture of corsets, to weave the material with pocket-like openings or passages running through from edge to edge, or all stopped and finished off at a uniform distance from the edge, and adapted to receive the bones, which are inserted to stay the woven fabric, and which serve as braces to give shape to and support the figure of the wearer. This method of manufacturing the corsets necessarily involves a great deal of hand labor, and, consequently, expense, in stitching up the ends where they are woven with pockets running through from edge to edge to hold the bones in place, or else the upper ends of the bones are necessarily all located at a uniform distance from the edge, resulting in a less perfectly shaped corset than is produced by following out my invention.

'I propose, by my invention, to overcome the objections just named, and produce a corset in which the location or position of the bones endwise shall be predetermined with the accuracy of the Jacquard in the process of weaving the corset stuff or material, while I at the same time effect a great saving of labor and expense, and give a more perfect shape. My invention has for its main object, therefore, not only the production of a better article, but also a reduction in the cost of manufacture; and, to these ends, my invention consists in having the pocket-like openings or passages into which the bones are put closed up near one end, at that point at which it is designed to have the end of each bone located, as will be hereinafter more fully set forth.

'To enable those skilled in the art to make and perfectly understand my invention, I will proceed to more fully describe it, referring by letters to the accompanying drawing, in which, for the purpose of illustration, I have represented two corsets, one made according to the mode of manufacture heretofore most generally practised, the other according to my new method.

'It will be seen, by reference to Figures 1 and 2, that the bones, a, are held or secured in place endwise in the pockets, b, of the corset material, C, by stitching, e, which is done after the insertion of the bone, and retains the bone endwise by closing up the passage-way or pocket in which it is located. This is in accordance with or illustrates the mode of manufacture originally practised, and only departed from prior to my invention, as heretofore explained.

'At Figures 3, 4, and 5 is illustrated, in elevation and longitudinal and cross sections, a corset made according to my improved plan.

'In these figures, A is the woven fabric of the corset, which, in lieu of being made with pocket-like openings or passages running through from edge to edge, or up to a uniform distance from the edge, I propose to have woven with pockets or passages, which extend from one edge of the fabric toward the other, but stop short of the latter at such point or locality as is predetermined for the location of the end of each bone, according to the design or shape to be given to the corset, as shown. The fabric is woven with the pockets extending, as seen, from one edge, B, of the fabric to the points, b, c, d, &c., and from these points out to the edge, F, the fabric is woven solid or without any passages. ''f  represent the bones, which are made of the proper length, and are inserted from the edge, B, or at the open ends of the pockets. After their insertion, the bones are pushed 'home' to the bottom of their respective pockets, when the mouths or open ends of the said pockets are closed up by the stitching and binding of the edge, B, of the corset, and the perfect retention of the bones thus effected.''

'It will be understood, that, by forming the corset, as described, with pockets closed at one end, and weaving in such pockets of varying lengths, I am enabled to determine, in the manufacture of the corset-fabric, the precise points to which the subsequently inserted bones shall extend, and thus pattern any number of corsets exactly alike, and to the most desirable model.

'Corsets made according to my improved plan, it will be seen, can be made to a perfect and regular pattern, will be more desirable in appearance, and can be produced at less cost than those made according to the mode of manufacture practised previous to my invention.

'I am aware of, and do not claim, a woven corset with the pockets stopped and finished off at a uniform distance from the edge; I am also aware of, and do not claim, a hand-made corset with pockets of varying lengths stitched on; but what I do claim as new, and desire to secure by letters-patent, is—

'A corset having the pockets for the reception of the bones formed in the weaving, and verying in length relatively to each other, as desired, substantially in the manner and for the purpose set forth.'

The defendants, among other defences, set up that the letters-patent granted to the complainant were anticipated by the English provisional specification left by John Henry Johnson, at the office of the Commissioner of Patents, with his petition, on 20th January, 1854, viz.:--

'I., J. H. Johnson, of 47 Lincoln's Inn Fields, in county of Middlesex, and of Glasgow, North Britain, gentleman, do hereby declare the nature of said invention for improvements in the manufacture of stays or corsets, communicated to me by Adolphe George Geresine, of Paris, in empire of France, manufacturer, to be as follows:--

'This invention relates to the manufacture of what are known as woven corsets, and consists in the employment of the jacquards in the loom, one of which effects the shape or contour of the corset, and the other the formation of the double portions of slots for the introduction of the whalebones.

'These slots or double portions are made simultaneously with the single parts of the corset; and, in place of being terminated in a point, they are finished square off, and at any required length in the corset, instead of always running the entire length, as is usually the case in woven corsets.

'When the corset is taken from the loom, the whalebones are inserted into these cases, and the borders are formed, thus completing the article, which contains all the elegance and graceful contour of sewn corsets made by manual labor.

The court below, upon a final hearing, dismissed the bill; whereupon the complainant appealed to this court.

Argued by Mr. Benjamin F. Thurston for the appellant, and Mr. George Gifford for the appellee.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Cohn v. United States Corset Company


text: Talk:Cohn v. United States Corset Company

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


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Cohn v. United States Corset Company/Opinion of the Court

A careful examination of the evidence in this case has convinced us that the invention claimed and patented to the plaintiff was anticipated and described in the English provisional specification of John Henry Johnson, left in the office of the Commissioner of Patents of the 20th of January, A.D. 1854. That specification was printed and published in England officially in 1854, and it is contained in volume 2d of a printed publication circulated in this country as early as the year 1856. It is, therefore, fatal to the validity of the plaintiff's patent if, in fact, it does describe sufficiently the manufacture described and claimed in his specification. It must be admitted that, unless the earlier printed and published description does exhibit the later patented invention in such a full and intelligible manner as to enable persons skilled in the art to which the invention is related to comprehend it without assistance from the patent, or to make it, or repeat the process claimed, it is insufficient to invalidate the patent. Keeping this principle in view, we proceed to compare the plaintiff's invention with the antecedent Johnson specification. In order to do this, a clear understanding of the patent and of the invention the plaintiff claims to have made is indispensable. His application at the Patent Office was made on the 30th of January, 1873. In it he claimed to have invented 'a new and useful improvement in corsets.' After reciting that previous to his invention it had been customary in the manufacture of corsets to weave the material with pocket-like openings or passages running from edge to edge, and adapted to receive the bones which are inserted to stay the woven fabric, and which serve as braces to give shape to and support the figure of the wearer, but that it had been necessary, after the insertion of the bones into said pocket-like passages, to secure each one endwise by sewing, he proceeded to mention objections to that mode of making a corset. He specified two only. The first was, that it involved much hand labor and consequent expense in sewing in the bones, or securing them endwise in the woven passage; and the second was, that the arrangement or placement of the bones in the passages had to be determined by hand manipulation, and that it was, therefore, variable and irregular, such as frequently to give to the corset an undesirable shape or appearance near its upper edge. These objections he proposed to remove, and to produce a corset in which the location or position endwise of the bones shall be predetermined with the accuracy of the jacquard, in the process of weaving the corset-stuffs, or material, thereby effecting the saving of labor and expense in the manufacture. He, therefore, declared his invention to consist in having the pocket-like openings or passages into which the bones are put closed up near one end, and at that point at which it is designed to have the end of each bone located. The claim then made was as follows: 'A corset woven with the pockets for the bones closed at one end, substantially as and for the purpose set forth.' It is very evident, that, when this application was presented to the Commissioner of Patents, the only invention the applicant supposed he had made, and the only one claimed, was a corset the bone pockets in which had been closed at one end in the weaving A patent for it was refused, for the reason assigned, that such a corset was described in the printed publication of Johnson's specification. The plaintiff then amended his application, manifestly to set forth an invention differing in some particulars from that of Johnson. The amendment, however, proved insufficient, and a second rejection followed. Other amendments were then made, until his present patent was at last granted, dated April 15, 1873. In the specification which accompanies it the patentee admits, what he admitted at first, that prior to his invention it had been customary in the manufacture of corsets to weave the material with pocket-like openings or passages running through from edge to edge; and he makes the further admission, that it had been customary to weave the material with such passages all stopped and finished off at uniform distances from the edge. He, therefore, disclaims 'a woven corset with the pockets stopped and finished off at a uniform distance from the edges,' and disclaims also 'a handmade corset with pockets of varying lengths stitched on;' and his claim is, 'a corset having the pockets for the reception of the bones formed in the weaving, and varying in length relatively to each other as desired, substantially in the manner and for the purposes set forth.' The specification nowhere sets forth the manner in which the alleged improvements in the corsets are produced, unless it be by reference to a jacquard in the loom. No process is described. None is patented. The claim is for a manufacture, not for a mode of producing it. Its peculiarities, as described, are that the pockets for the reception of the bones are formed in the weaving, rather than by hand, and that they are of varying lengths relatively to each other; that is, that the pockets differ in length from other pockets in the same corset, as desired. There are no other particulars mentioned descriptive of the patented improvement, unless they are that the weaving or variations in the length of the pockets are to be in the manner and for the purpose set forth in the specification. Referring to that, the purpose avowed is the production of a better-shaped corset at less expense; and the manner of effecting this is by substituting weaving for stitching, in closing the pockets at desired or predetermined distances from the edge. Now, in view of the patentee's disclaimers, stopping off the passages or pockets in the weaving is not covered by the patent. It is admitted that had been done before, and no claim is made for it. All that is left, then, is, that the woven and closed pockets in the corset vary in length. No rule is stated for the variation. It is not stated which are comparatively short and which long, or how much shorter some are than others, or how near any or all of them come to the edge. The demands of the claim in this respect are met, if some of the pockets desired to be longer than others are thus made. But the claim must be further limited in view of the state of the art when the application for the patent was made. The manufacture of hand-made and woven corsets is an art long known,-known long before the Johnson improvement. Those made by hand had gores inserted to give enlarged space for the breasts of the wearer, and also gores or gussets at the lower part to give space for the hips. In woven corsets these enlargements, equivalent to gussets, were formed by the jacquard loom. For more than twenty years it has been customary to weave in these gussets bone-pockets stopped off or closed in the weaving at various distances from the edge of the corset. Those extending upward from the lower edges were stopped off at varying heights, and those extending from the upper edge downward over the breast were woven close at their lower extremities at unequal distances from the top. It is true, that, where the stoppage was effected in weaving, the pockets in the gussets were closed pointedly, and unavoidably so, by the necessary contraction of the threads of the weft. But whether the stoppage was pointed, or blunt, or square, is unimportant. It is not claimed as a feature of the plaintiff's invention. His claim, then, cannot refer to the gusset pockets. The well-known state of the art, existing before even the Johnson description, requires its limitation. It must refer exclusively to the pockets under the arms of the wearer, or on the back, or in front of the body. It claims weaving them of various lengths when closed. That is all.

Having thus analyzed the plaintiff's alleged invention, and ascertained what it is, we are prepared to examine the Johnson provisional specification, and inquire whether it described with sufficient certainty and clearness a corset having the improvement claimed by the plaintiff. We quote at length the entire description. Johnson, having declared the nature of the invention for which he sought a patent to be 'improvements in the manufacture of stays or corsets,' communicated to him by Adolphe Georges Geresme, of Paris, in the empire of France, described it as follows: 'This invention relates to the manufacture of what are known as woven corsets, and consists in the employment of the jacquards in the loom, one of which effects the shape or contour of the corset, and the other the formation of the double portions of slots for the introduction of the whalebones. These slots or double portions are made simultaneously with the single part of the corset, and, in place of being terminated in a point, they are finished square off, and at any required length in the corset, instead of always running the entire length, as is usually the case in woven corsets. When the corset is taken from the loom, the whalebones are inserted into these cases, and the borders are formed, thus completing the article, which contains all the elegance and graceful contour of sewn corsets made by manual labor.'

Undeniably this is a description of woven corsets, woven by the use of the jacquards in the loom, woven with slots or passages for the bones, made simultaneously with the other parts of the corsets, and requiring nothing to be done to them after their removal from the loom, except the insertion of the bones and the formation of the borders. It is also plainly a description of corsets in which the passages for the bones, called the double portions or slots, are finished; that is, stopped off in the weaving. That the expression 'finished off square' means closed or stopped off square, is manifest, for several reasons. It is used to distinguish the manufacture from one in which the termination of the slots is pointed, as is always the case with the slots in the gussets, and necessarily so. The pointed terminations are closures, and the finished square terminations are only a different mode of closure. The idea in Johnson's mind was, therefore, that of ending, or termination by shutting up, or closing squarely, instead of enclosing pointedly. And it was the slot or passage that was to be finished off, and not merely the upper portion of the slot, or one of its sides. A second reason for concluding that the specification describes closed slots or passages is found in the concluding paragraph, which states, that, when the corsets are taken from the loom, all that remains to be done to complete them is to insert the bones into these 'cases,' and form the borders. Thus, it is said, they are completed, 'containing all the elegance and graceful contour of sewn corsets made by manual labor.' There is not an intimation that the needle is to be applied after removal from the loom. This portion of the description is utterly inconsistent with the idea that the pockets are not closed by the weaving. If they are not, more is required to complete the corsets after the loom has done its work than forming the borders and inserting the bones. The pockets must be closed by stitching before they are ready for the bones. Besides, those parts of the corset which in one part of the specification are denominated 'double portions of slots,' and in another, 'slots, or double portions' finished square off, are also called 'cases,' a word that expresses the idea of enclosure, and which is inapplicable to open passages. For these reasons, we cannot doubt that the meaning of the specification is, that the passages, slots, double portions, cases, pockets, by whatever name they are called, are to be closed in the weaving. And the plaintiff so understood it when he applied for his patent. In view of the published description to which his attention was called, he disclaimed stopping and finishing off the pockets in the weaving, and stated in his amended specification that he was aware of corsets thus made, and that it had been customary in the manufacture to weave the material with pocket-like passages, all stopped and finished off at uniform distances from the edge, and adapted to receive the bones.

It is manifest, then, that there is nothing in the plaintiff's patent which was not described in the Johnson specification, unless it be that the closed slots or cases mentioned in the former are required to be woven of varying length. A variation in the length of the pockets relatively to each other, as desired, is, as we have seen, the sole distinctive feature of the plaintiff's invention. But it was well known before Johnson filed his specification that the bone-pockets of a corset must vary in length. They were made to vary in hand-made corsets, and in woven ones by sewing. In all corsets, whether hand-made or woven, the pockets under the arms were made shorter, and those at the back and in front were made longer, in order to fit the wearer and preserve a graceful shape at the top. Every person skilled in corset making knew the necessity of such variation. In Johnson's description, it was asserted that the shape or contour of his corset was formed in the weaving; so far, therefore, as that was effected by the relative length of the pockets, it was dependent upon the loom. The description left to the manufacturer to determine what should be the length of each pocket, in order to secure the elegance and graceful contour of sewn corsets; in other words, to determine before the weaving where the double portions or slots should be stopped off. Johnson knew-having before him the state of the art at the time-that pockets of uniform length would not adapt the corset to fit the wearer, and would not be consistent with elegance of shape. And there is not a word in his description that intimates the pockets are to be stopped off or closed at uniform distances from the edge or without variation in length. The contrary idea is manifest. It is said, they are to be finished (closed) at any required length. Required length? Required by whom, and for what? Plainly by the manufacturer; and that they may have all the elegance and graceful contour of sewn corsets made by manual labor, and also that they may fit the wearer. Such a requirement could be met only by pockets of different lengths in the same corset. And if they were stopped wherever required, and it was required that they should stop off at varying distances from the edges of the corset, the description pointed out a corset thus made. It is true, no particular length of the different pockets was specified, nor was any proportion mentioned which one pocket should bear in length to another. That was left to the manufacturer, as it is to the manufacturer of hand-made corsets, and as it is in the plaintiff's specification. He does not say how near to the upper edges of his corset the base of the closed pockets comes, nor what proportion in length one bears to the others. He simply describes them as varying in length relatively to each other, as desired. This is certainly not more definite than Johnson's description. In both, the variations in length and their relative proportions are left to the judgment and taste of the corset-maker. It is impossible, therefore, to find any thing in the plaintiff's patent which was not with equal definiteness and perspicuity described in the printed publication (Johnson's specification), made nineteen years before the patent was granted.

It is quite immaterial, even if it be a fact, that the Johnson specification is insufficient to teach a manufacturer how to make the patented corset. It is enough if it sufficiently describes the corset itself. Neither it nor the plaintiff's specification exhibits the process of making. Neither of them set up a claim for a process. The plaintiff claims a manufacture, not a mode of making it; and the important inquiry, therefore, is, whether the prior publication described the article. To defeat a party suing for an infringement, it is sufficient to plead and prove that the thing patented to him had been patented or described in some printed publication prior to his supposed invention or discovery thereof. Rev. Stat., sect. 4920. What is required is a description of the thing patented, not of the steps necessarily antecedent to its production. But the evidence shows that the Johnson specification, in connection with the known state of the art at the time when it was filed and published, was sufficient to enable one skilled in the art of corset-making and in the use of the jacquard to make the patented corset. It is very clearly proved that it gave sufficient instruction, and that it needed no addition to furnish full information to a corset-weaver how to weave a corset with the use of the jacquard, and stop off all the bone-pockets in the weaving at the right places. It is also proved that the corset patented to the plaintiff can be made as easily by the use of two jacquards, as described by Johnson, as by the use of one; and it was so made during the trial of the present case. It is, however, unnecessary to consider the possibilities of two jacquards in operation at the same time in one loom. It could only be material if the plaintiff was claiming a process for making a corset. It is enough for this case that the invention patented to the plaintiff was clearly described in 1854, in the printed publication of the Johnson (Geresme) provisional specification. The patent is, therefore, invalid, and hence the decree of the Circuit Court dismissing the bill must be affirmed.

Decree affirmed


text: Talk:Cohn v. United States Corset Company/Opinion of the Court


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Dodge v. Freedman's Savings and Trust Company

APPEAL from the Supreme Court of the District of Columbia.

The Freedman's Savings and Trust Company, on the seventeenth day of May, 1873, exhibited its bill of complaint in the Supreme Court of the District of Columbia, alleging that it owned and held certain unpaid and overdue promissory notes made by the defendant Dodge, and that certain real estate in the city of Georgetown, which had been conveyed in trust to the defendants Jones and Darneille, to secure the payment of said notes, had been unlawfully and fraudulently released from the operation of the deed of trust, and had been conveyed by defendant Dodge to the defendant Darneille, who had conveyed it to the defendant Dunlop, in trust for the benefit of the wife of the defendant Darneille.

The bill prays for the cancellation of the release, and also of the other conveyances; for a sale of all the property covered by the original trust deed; for the application of the proceeds to the payment of the notes; for damages, if any should be found, against Jones and Darneille; for judgment against Dodge for any balance of said notes remaining unpaid; and for general relief.

The defendant Dodge answered, admitting the making of the notes, and of the deed of trust to secure them, but insisted that the notes had been paid and extinguished through an arrangement between him and William S. Huntington for the purchase of one of the pieces of property included in the trust, and that the complainant obtained the notes after they were due and had been paid.

The other defendants made no defence, and a decree pro confesso was taken against all of them.

The case was heard upon the pleadings and evidence, and the court, at special term, dismissed the bill. This decree was, on an appeal to the general term, reversed, and a decree entered according to the prayer of the bill. The case is here on appeal by the defendants from that decree.

The defence rests entirely upon the allegation that the notes made by Dodge, in January, 1869, were paid in January, 1870.

Mr. Walter S.C.ox for the appellants.

The appellee acquired the notes after maturity, and when they had been paid. A deposit for collection means for payment. It does not authorize the bank to assign, but simply to receive a payment which extinguishes the note. The notices sent out by the bank are a demand for payment. No one had a right to take an assignment of the notes without the consent of the holders. When, therefore, some one goes and tacitly pays the money into bank when due, and takes up the notes, the legal effect is a payment and extinguishment, whether it be by the maker or a stranger. Even if done at the request of the maker, if there be no further agreement, it is none the less a payment, and gives only a right of action for money paid, laid out, and expended. Burr v. Smith, 21 Barb. 262; Eastman v. Plumer, 32 N. H. 238; Cook v. Lister, 13 C. B. 594.

The only doubt ever entertained was, whether the debtor's authority or ratification was necessary. There can be no doubt of such authority in the present case.

Again: as the bank had no authority to transfer the notes, a person dealing with it must be presumed to have knowledge of that fact, and that he would acquire no title by the transfer. This infirmity of title would follow the notes into the hands of any one else taking after maturity. Byles on Bills, p. 151; Texas v. White, 7 Wall. 700.

But, besides, in this case, the notes were taken by the appellee from or through Huntington. He paid them under an express contract to do so, and transferred them after that contract had been performed.

It is clear that the appellee did not give the money directly to the holders of the notes. Their actuary gave one check for the entire sum, much larger than any one note. It must have been given first to some third person, who either had paid, or thereupon paid, the notes. That person clearly was Huntington.

The notes, taken when overdue, were taken subject to all defences which Dodge might have made against the holders to whom they were paid, or against Huntington, who held them afterwards. Story on Promissory Notes, sect. 190; Andrews v. Pond et al., 13 Pet. 65; Fowler v. Brantley, 14 id. 318.

Mr. Enoch Totten for the appellee.

Dodge, the maker of the notes, has never paid a dollar on account thereof. He cannot now be heard to say that the notes were extinguished by the transaction between Huntington and the appellee. Gernon v. McCan, 23 La. Ann. 84.

The notes cannot be held to be paid and extinguished. The Trust Company surely did not intend to pay them. The fact that it took them into possession, and held them, shows this was not its intention. It acted in good faith.

When money is paid on account of notes by a third party not liable on them, the notes will be extinguished or not, according to the intention of the party paying. Harbeck v. Vanderbilt, 20 N. Y. 395. Payment to a bank of notes held by it for collection, by one not liable on the notes, does not amount to an extinguishment of them. Byles on Bills, 175; Pacific Bank v. Mitchell, 9 Met. 297; Deacon v. Stodhart, 2 M. & Gr. 317; Jones v. Broadhurst, 9 M., Gr. & Sc. 173.

Huntington did not pay out any money whatever; and, if he ever had the notes in his possession, he held them only as cashier of the bank, or as agent of the Trust Company.

If these notes, instead of being transferred to the possession of the Trust Company, had been retained by the respective holders, and actions at law had been by them instituted thereon against Dodge, notwithstanding the payment of the amount due on them by the Trust Company, a plea of satisfaction by the Trust Company, interposed on behalf of the defendant Dodge, would have been bad on demurrer. Clow v. Borst, 6 Johns. 37; Daniels v. Hollenbeck, 19 Wend. 408; Jones v. Broadhurst, 9 M., Gr. & Sc. 173.

MR. JUSTICE HUNT delivered the opinion of the court.


text: Talk:Dodge v. Freedman's Savings and Trust Company


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Dodge v. Freedman's Savings and Trust Company/Opinion of the Court

It is conceded in the pleadings that Dodge made the notes in question; that the property described in the trust deed was conveyed to Jones and Darneille to secure their payment; that the notes were just debts, and the trust deed a valid security for their payment. Why, then, should not the security of the trust deed remain to the holder of the notes? The answer is, that the notes have been paid; therefore the trust deed has discharged its office, and the security by law reverts to or is held for the benefit of its original owner. The principle of law involved in this proposition is too plain to justify discussion, and hence it is that the defence, which seeks to cancel this security, rests upon the sole ground that the notes have been paid.

A portion of the evidence contained in the bill of exceptions consists of the declarations made by William S. Huntington. Evidence of this character was given by each party, and admitted, notwithstanding the objection of the other. No principle can be found to justify the admission of this evidence. It has long been settled that the declarations made by the holder of a chattel or promissory note, while he held it, are not competent evidence in a suit upon it, or in relation to it, by a subsequent owner. This was settled in the State of New York in the case of Paige v. Cagwin, 7 Hill, 361, and is now admitted to be sound doctrine; and that the party is since deceased makes no difference (Beach v. Wise, 1 Hill, 612); or that the transfer is made after maturity (Paige v. Cagwin, supra). The same is true of the declarations of a mortgagee (Earl v. Clute, 2 Abb. Ct. App. Dec. 1); or of the assignor of a judgment (16 N. Y. 497); or of an indorser (Anthon's N. P. 141); or of a judgment debtor (1 Denio, 202). Assuming that Huntington was the owner or holder of these notes, his declarations are not thereby made competent evidence.

Nor can these declarations be admitted in evidence, on the theory that Huntington was the owner of the real estate described in the trust deed, and in its actual possession. He never had a legal title, but occupied one of the houses described in the trust deed, a portion of the time as a tenant, paying rent, and during a subsequent period, as it is claimed, under a verbal agreement to purchase it from Dodge by paying the notes in question, paying interest on the notes instead of rent.

The declarations of a party in possession of land are competent evidence: 1st, As against those claiming the land under him. Warring v. Warren, 1 Johns. 340; Jackson v. Cale, 10 id. 377. The Freedman's Bank claim nothing under Huntington. They insist that they are the legal holders of the notes, and as such are entitled to avail themselves of the security given for their payment. 2d, Such declarations are competent only to show the character of the possession of the person making them, and by what title he holds, but not to sustain or to destroy the record title. Pitts v. Wilder, 1 N. Y. 525; Gibney v. Marchay, 34 id. 301; Jackson v. Miller, 6 Cowen, 751; Jackson v. McVey, 15 J. R. 234. To show that the party went into possession under the lessors is a common instance of the admissibility of such declarations. Jackson v. Dobbin, 3 Johns. 223.

Conceding, therefore, that Huntington was in possession of the premises, his declarations are competent only to show the character in which he claimed, as that of tenant under a lease, or tenant by virtue of an executory contract to purchase. His declarations as to the ownership or payment of the notes are incompetent upon every principle, and must be laid out of view in determining the case.

Upon the remaining evidence the question stands in this wise: The Freedman's Bank establishes its title to the notes by the production of the notes, by proof that it purchased them by giving its check for $13,786.50, the full amount of principal and interest due on the notes, dated Jan. 24, 1870, and that it has held them from that time to the present. That the bank took the notes upon an intended purchase; that it received interest upon them in January, 1871, and again in January, 1872, is clearly proved. Eaton, the actuary of the bank, by whom the check was drawn, is dead. Huntington, with whom it is alleged an arrangement was made, is also dead. We are thus deprived of the evidence of the chief actors.

We think the truth is here. Huntington made a verbal agreement with Dodge to buy the house he had rented of him, and to pay these notes in satisfaction of the price. The evidence on this point is not free from doubt; and Huntington was certainly at liberty to repudiate the agreement, as being within the Statute of Frauds. But there is no evidence that he wished to do so. When the notes matured, he was not in a condition, or did not wish, to pay them. One note ($2,000) was held by the Chatham Bank, of New York, and sent for collection to the First National Bank of Washington, of which Huntington was the cashier. Huntington's bank forwarded the note to the Farmers' and Mechanics' Bank of Georgetown, and received credit for the amount, $2,121. This note was entered on the bank-books of Washington as due Jan. 24, and as being paid on that day. This was an error; it was, in fact, payable on the 22d.

The note of $4,000 was held by Mr. Robinson, who deposited it in the Farmers' and Mechanics' Bank of Georgetown, for collection, and on the 22d of January, 1870, he was there credited on his account with the amount, to wit, $4,242.

The $7,000 note was held by Mr. Todd, and was by him deposited in the National Metropolitan Bank of Washington, for collection, and his account was in like manner credited with the amount. The record contains no further evidence in relation to the payment of this note.

The evidence is complete and certain that Huntington did not pay the notes or advance the money by which they were taken up. The evidence is quite satisfactory that the Freedman's Bank did advance the money and take up the notes by its check for $13,786.50, bearing date Jan. 24, and that it has held them since that time. There is no evidence that this check was actually drawn on that day; and it would reconcile some of the discrepancies, if we were to suppose that it bore date of the 24th, but was actually drawn on the 22d, and on that day used in the purchase of the notes. We do not see that it is very material which way this shall be held to be. The title of the Freedman's Bank is the same in either case. There is no evidence that it had knowledge of any obligation of Huntington to take up the notes, if any such existed; and there is no evidence that Huntington did any thing about procuring an arrangement for their being taken up. It dealt with the bank or banks holding the notes in the ordinary way. By law, a collecting bank is the agent of the holder of the note, and in no sense the agent of the maker. Montgomery Bank v. Albany City Bank, 7 N. Y. 459; 22 Barb. 627. What the holder was entitled to was his money, or the proper diligence to obtain it. If the maker had any thing to say or do in the premises, it was to present himself with the money when the notes matured, pay them, and secure his obligations. Failing in this, he leaves the securities to be dealt with as others interested may choose. There would appear, therefore, in the nature and propriety of the subject, to be no objection to a transfer to a third person paying the money, instead of a technical payment and discharge of the notes. It is to be observed, also, that payment technically can only be made by a party to a bill, or by a stranger, supra protest. Chitty on Bills, 392. Such parties may either pay in satisfaction of the note, or pay and hold it as by a transfer, leaving it an existing security. Byles on Bills, 166; Green v. Key, 3 B. & Ad. 313. It can, therefore, make no difference to the holder, whether, when taken by a stranger, it is taken and held as upon a transfer, or in satisfaction of the instrument. The negotiability of a bill or note remains after maturity as before (Byles, 160-162), subject to the equities between the parties.

The books are full of cases to the effect that an agent to whom a bill is sent for collection cannot lawfully transfer or pledge the same in payment of his own debt, and that the transferee with knowledge or after maturity gets no title as against the true owner. 1 Pars. on Bills and Notes, 119.

In cases like that before us, where the intention to continue the existence of the note and not to cancel it by payment is made evident, when the money is paid to the collecting agent appointed to receive it, and the owner of the note receives the amount due to him, the authorities sustain the transaction as a purchase.

In Deacon v. Stodhardt, 2 Man. & G. 317, it was held, that where, to a count by the executors of A., an indorser, against D., the acceptor of a bill, the defendants pleaded payment, and the evidence was that A. had placed the bill in the hands of E. to be presented, who improperly had it discounted, and to regain possession of it paid the amount to the bankers of the acceptor, thus obtained the bill and returned it to A., it was held that there was no payment. Bosanquet, J., said, 'It is clear that the payment of the bill by Jones was a payment not on account of the defendants (the acceptors), but that in order that Jones might regain the possession of it.' Erskine, J., says, 'It appears that Jones, having raised money on the bill, took it up when at maturity, and then returned it to the testator, who was at liberty to proceed upon it at any future time.' The bill was thus paid at maturity without the knowledge or consent of the true owner, and was then remitted to the owner, and it was held to be a valid bill in his hands.

In the Pacific Bank v. Mitchell, 9 Met. 297, it was held, that where the holder of a bill of exchange accepted for the accommodation of the drawer sends it to a bank for collectiong, and the bank, when the bill comes to maturity, passes the amount thereof to the credit of the holder, this is not such a payment as discharges the acceptor, but the bank succeeds to the right of the holder, and may maintain an action on the bill against the acceptor. The plaintiffs, it was held, succeeded to the rights of the bank, and became bona fide holders of the bill.

In Burr v. Smith, 21 Barb. 262, it was held that a stranger may advance the money and hold the note, if such is the clear intention of the parties at the time of the transaction. The court remark upon it as a suspicious circumstance, that the payer in that case was not called as a witness. He knew, it is said, in what character and in whose behalf he paid the money, and whose money it was with which the note was paid.

In Harbeck v. Vanderbilt, 20 N. Y. 395, it was held, that when the amount due upon a judgment is paid, wholly or in part, by one who is not a party nor bound by it, the judgment is extinguished or not, according to the intention of the party paying. So held, where one of the defendants in a judgment upon a joint obligation paid his aliquot portion in cash, gave his note for the remainder indorsed by a third person, and procured the judgment to be assigned to a trustee for such person, without his knowledge. The judgment, it was held, remained unsatisfied for the amount not actually paid by the defendant therein, and might be enforced by the indorser as an indemnity against his contingent liability.

In Keystone Bank v. Gay, 21 Barb. 459, the principle was laid down, that to constitute payment, money, or some other valuable thing, must be delivered by the debtor to the creditor for the purpose of extinguishing the debt, and the creditor must receive it for the same purpose.


text: Talk:Dodge v. Freedman's Savings and Trust Company/Opinion of the Court


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Callanan v. Hurley

APPEAL from the Circuit Court of the United States for the District of Iowa.

The complainant asserts title to the lands in controversy, by virtue of his having entered them pursuant to the provisions of the act of Congress; and the defendant Callanan claims to be the owner, by force of tax-deeds of the treasurer of the county of Cass, founded on alleged sales made in January, 1864, for delinquent taxes. These deeds, having been placed upon record, are, as the plaintiff avers, a cloud upon his title, and the object of his bill is to procure their cancellation. He charges that they are void, for several reasons: First, that no taxes were levied upon the lands, or any of them, for the years for which they were pretended to be sold; second, that the taxes, if any there were, never became delinquent; third, that there was no person authorized to receive payment of the taxes; fourth, that there was no warrant or authority for the sale of the lands for the non-payment of delinquent taxes; and, fifth, that no sale of the land for the non-payment of taxes, real or pretended, ever took place, but that certificates thereof were issued, reciting, contrary to the truth, the sale of the lands conformably to the provisions of the statutes of the State, under which certificates the deeds and conveyances were respectively made. A subsequent amendment of the bill charges, sixthly, that at the time of the pretended assessments and levies the lands were not subject to taxation; and, seventhly, that two persons, Reynolds and Mead (through whom the defendant claims), at and before the issuing of the certificates of sale, unlawfully combined and confederated with the defendant for the purpose of preventing competition at the sale of lands for taxes then to be held in the county.

The court below, upon a final hearing, granted the prayer of the complainant's bill, and entered a decree accordingly; whereupon the defendant appealed to this court.

Argued by Mr. R. P. Lowe and Mr. George G. Wright for the appellant, and by Mr. Thomas J. Durant for the appellee.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Callanan v. Hurley


text: Talk:Callanan v. Hurley

title: Talk:Callanan v. Hurley


text:
Callanan v. Hurley/Opinion of the Court

Before examining the objections to the validity of the taxdeeds which the original bill and its amendment suggest, it will be convenient to notice the provisions of the statutes of the State respecting tax sales, and respecting the effect of treasurers' deeds for lands sold for delinquent taxes. They are contained in the Revision of 1860, c. 45. After giving directions for sales of land by the county treasurer for delinquent taxes, prescribing notice by advertisement, and providing for the cost of advertising, the treasurer is directed to offer separately, on the day of sale, each tract or parcel of real property advertised, on which the taxes and costs shall not have been paid; and it is declared, that the person who offers to pay the amount of taxes due on any parcel of land for the smallest portion thereof shall be considered the purchaser. The treasurer is directed to continue the sale from day to day as long as there are bidders, or until the taxes are all paid; and, after all has been offered, if any portion of the lands advertised remain unsold, the sale is to be adjourned. The purchaser is entitled to a certificate of purchase, describing the property and the amount of the tax; but the land may be redeemed at any time within three years from the day of the sale. At the expiration of three years, if the land remains unredeemed, the purchaser is entitled to a deed from the treasurer, the form and effect of which are defined by the statute. We quote a part of sect. 784 of the act, as having a controlling operation upon the facts of the present case. It is as follows:--

'The deed shall be signed by the treasurer in his official capacity, and acknowledged by him before some officer authorized to take acknowledgments of deeds, and, when substantially thus executed and recorded in the proper record of titles to real estate, shall vest in the purchaser all the right, title, interest, and estate of the former owner in and to the land conveyed,. . . and shall be prima facie evidence in all courts of this State in all controversies and suits in relation to the rights of the purchaser, his heirs or assigns, to the land thereby conveyed, of the following facts:--

'1. That the property was subject to taxation.

'2. That the taxes were not paid before sale.

'3. That the property conveyed had not been redeemed at the date of the deed.

'And shall be conclusive evidence of the following facts:--

'1. That the property has been listed and assessed.

'2. That the taxes were levied according to law.

'3. That the property was advertised for sale in the manner and for the length of time required by law.

'4. That the property was sold for taxes as stated in the deed.

'5. That the grantee named therein was the purchaser.

'6. That the sale was conducted in the manner required by law.

'7. That all the prerequisites of the law were complied with by all the officers,. . . except in regard to the three points named in this section, where the deed shall be prima facie evidence only.

'And in all controversies involving the title under such taxdeed, executed substantially as required by law by the treasurer, the person claiming title adverse thereto, in order to defeat the same, must show, either that said property was not subject to taxation, or that the taxes had been paid before sale, or that the property had been redeemed from sale according to law. . . . And no person shall be permitted to question the title under the deed without first showing. . . that all taxes due upon the property have been paid.'

The whole act exhibits an intention of the legislature to enforce the payment of taxes, by securing purchasers at tax sales in their purchases, and thus making it dangerous for owners of property to neglect payment of taxes due the State. It removes difficulties which had before existed in the way of establishing a tax-title, and at the same time it works no injustice to owners of land subject to taxation. The law determines when the taxes should be levied, and when they shall be paid, and it gives ample time within which to make the payment. It was under this act, and in conformity with its provisions, that the treasurer's deeds were made, through which the defendant below made his claim. They are in the form prescribed by the statute. If the act is to have any effect at all, it is plain that the deeds cut off most of the averments upon which the plaintiff bases his attempt to obtain the cancellation he seeks. It is not open to him to aver and prove any allegation he puts forward to establish the invalidity of the deeds, except that the property was not subject to taxation, and that there was a fraudulent combination of the defendant with others to prevent bidding. The first of the averments is denied in the answer, and there has been no attempt to sustain it by evidence. Besides, the statute declares that the deeds shall be prima facie evidence that the property was subject to taxation. They are made affirmative evidence. The allegation of a fraudulent combination to suppress bidding at the sale is entirely unsustained by any thing in the proofs, and so is every allegation upon which the bill founds the charge that the deeds are invalid, unless it be the averment that no sale for the non-payment of taxes, real or pretended, ever took place. The treasurer's deeds, however, contain a recital that he did, on the fourth day of January, A.D. 1864, by virtue of the authority vested in him by law, at the sale begun and publicly held on the first Monday of January, A.D. 1864, expose to public sale at the court-house in the county aforesaid (Cass), in substantial conformity with all the requisitions of the statute in such cases made and provided, the several pieces of real property above described separately, for the payment of the taxes, interest, and costs then due and remaining unpaid on each of said pieces of real property, respectively. The deeds further recite, that, at the time and place aforesaid, the persons to whom the deeds were made offered the most favorable bids, and that the several pieces of property were stricken off to them at the prices bid.

Now, if it be conceded that, under the statute, the deeds containing these recitals are only presumptive evidence that the sales were actually made as recited, the burden is still on the complainant to rebut this presumption. And we think that, instead of having rebutted it, the evidence in support of the presumption greatly preponderates. We need not refer to it in detail. Suffice it to say, that there is not a single witness who is able to deny that a sale was made; and only one is able to testify that, ten years after 1864, he cannot recollect it, while others testify affirmatively that it was made. At the treasurer's sale in January, 1864, there were large bodies of land offered; and the sale was continued from day to day. Whether the lands now in dispute were sold on the fourth day of that month, or at a later day during the sale, is, perhaps, not distinctly proved, and it is not necessary that it should be. If they were not sold until several days later, but yet while the sales were in progress, unadjourned, and the treasurer certified them as sold on the opening day, it was at most but an irregularity which cannot avail the complainant. It has not interfered with his right to redeem. He suffered eight years to pass after the sale without asserting any right. During all that period he paid no taxes, performed no duties which he owed to the public, suffered the defendant and those under whom the defendant claims to pay the taxes levied from year to year, and now, when it may be presumed the land has increased in value, he seeks the cancellation of the tax-deeds, without even offering to redeem or to refund the taxes which the purchasers at the sale have paid. He seeks this in the face of a statute which, in effect, declares that irregularities shall not suffice to defeat a tax sale, and when, in view of the evidence, it is exceedingly doubtful whether in fact there was any irregularity. In this attempt he cannot succeed.

All the questions presented in this case have been decided by the Supreme Court of Iowa, and decided adversely to the complainant. Phelps v. Meade et al., 41 Iowa, 470. That case was an attempt to set aside a tax-deed of lands sold by the treasurer of Cass County at the sale in January, 1864. The averments of the bill were the same as those made in this case, and the case was heard upon the evidence taken upon the case now before us. The rulings of the court were, that, if there was a bona fide sale in substance or in fact, the tax-deed is conclusive evidence that it was made at the proper time and conducted in the proper manner. And where a tax-deed, regular in form, recited that the land was sold Jan. 4, and the treasurer testified that the sales of land in the county for delinquent taxes began upon that day, and were continued until the 18th, and that he entered all the sales as of the date of the commencement, it was held, that a sale of land at any time during the continuance of the sale was valid, and that the recording of the sale as of the first day would not impair the title.

We do not find in the unreported case of Butler v. Delano, to which we have been referred, any thing conflicting with what was decided in Phelps v. Meade. The facts of the two cases, so far as we can gather them from the opinion of the court in the latter, were widely different. The same may be said of the other unreported case of Thompson v. Ware et al.

Decree reversed, and the cause remitted, with instructions to dismiss the bill.

title: Callanan v. Hurley/Opinion of the Court


text: Talk:Callanan v. Hurley/Opinion of the Court


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Mutual Life Insurance Company v. Snyder

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

Argued by Mr. William A. Porter and Mr. George W. Biddle for the plaintiff in error, and by Mr. Edward J. Fox and Mr. Henry Green for the defendant in error.

MR. JUSTICE DAVIS delivered the opinion of the court.

title: Mutual Life Insurance Company v. Snyder


text: Talk:Mutual Life Insurance Company v. Snyder


text:
Mutual Life Insurance Company v. Snyder/Opinion of the Court

The contract of insurance, which is the subject of this suit, was effected by Monroe Snyder on his life, for the benefit of his wife. There was a judgment on the verdict in her favor, and the case has been brought here for review. At the trial, the company presented several points, on which, except the answer to the fourth point, the rulings of the court were satisfactory. An exception was taken, which presents the only question open for our consideration. The fourth point on which the request to charge was based is in these words:--

'The written applications bearing date Sept. 18, 1872, July 9, 1872, and Jan. 10, 1873, signed by the insured, form the basis of the contract of insurance; and the policies were issued to, and accepted by, the insured, upon the express condition and agreement, that, if any of the statements or declarations made in the application should be found in any respect untrue, then the policies should be respectively null and void; and Monroe Snyder, the insured, having, in answer to question No. 17 in each of said policies, which is, 'How long since you were attended by a physician? for what diseases? give name and residence of such physician,' answered, 'Not for twenty years;' while the testimony is unimpeached and uncontradicted, that Monroe Snyder was, in the month of December, 1867, attended several times by Dr. Abram Stout, a physician, for a severe fall upon his head. This answer is untrue, and the policies are thereby rendered void, and the plaintiffs cannot recover upon them.'

This proposition is not based on the idea that the answer of Snyder avoided the policy, if a physician attended him for any cause within a period of twenty years. It was easy to raise that question, and ask a specific instruction, which it would have been the duty of the court either to give or refuse. If it had been refused, the plaintiff in error could have brought the question here for the opinion of this court.

But the omission of the learned judge to instruct the jury on a particular aspect of the case, however material, cannot be assigned for error, unless his attention was called to it with a request to instruct upon it. Nor is it proper for us to intimate an opinion upon a question not presented by the record, which might arise in some other trial between this plaintiff in error and a policy-holder.

In discussing the propriety of the answer, it is desirable to understand the proposition submitted to the court for its adoption. It sets out with a statement of the contract, and affirms that Snyder's answer to the specific interrogatory No. 17, was untrue, because, by the uncontradicted testimony, he was, in December, 1867, attended by Dr. Abram Stout, a physician, for a severe fall upon his head. This being so, the legal conclusion is drawn that the policy is rendered void, and that the holder of it cannot recover.

It will be observed that the court is not asked to say to the jury that the attendance of a physician for a slight injury avoided the policy, nor was this the theory on which the case was tried. There was no evidence that Snyder was ever attended by a physician within twenty years, except when Dr. Stout visited him for a fall on the head. In the different points relating to other parts of the case, which were answered by the court to the satisfaction of the plaintiff in error, it was not the fact of the fall, but its severity, which was treated as being in avoidance of the policy. The fourth point also proceeds on the same supposition. It asserts that Snyder was treated for a severe injury, and deduces from the nature of that injury the legal conclusion, that there can be no recovery. While it is correct practice for the judge to instruct in an absolute form on an admitted state of the case, he is not authorized to take from the jury the right of weighing the evidence bearing on controverted facts. Was it undisputed that Snyder had been attended 'for a severe fall on his head'? The court did not think so, for it instructed in these words: 'If the fall upon the head for which Monroe Snyder was attended by the physician was a severe one, the answer was untrue, and the verdict should be for the defendants.' The proposition of law was thus affirmed; but the jury were left free to say whether the supposed fact on which it rested was established by the evidence. If the court had instructed in the terms prayed for, it would have usurped the functions of the jury; for, to say the least, there was evidence tending to show that the injury was but trifling. This was the opinion of the physician after he had observed its effects. He examined Snyder on his application for insurance, and reported that his life was safely insurable, and that he had never had any severe illness or injury. It is true, he stated that he had forgotten the fall on the head when the application was made out; but, had the fact occurred to him at the time, he does not think he would have put the injury down as a severe one. In view of this and the other evidence, it was the duty of the court to submit to the jury, 'whether Monroe Snyder had been attended by a physician for a severe fall on the head.' If, on this contested matter, the case had been taken from them, the plaintiff below would, in our opinion, have had just cause of complaint.

It is said that the court, in further answer to the fourth point, committed to the jury the construction of a written instrument in the following words: 'So, if the jury find that the attendance of a physician was for any disease or injury, within the meaning of the question, the verdict should be for the defendant.' It may be that this instruction, in the state of the evidence, is justly subject to criticism; but the exception of the plaintiff in error is confined to the charge and opinion in answer to the fourth point, and its requirements were fully met when the jury were told that, if the fall upon the head was a severe one, they should find for the defendant. The additional instruction was given by the judge ''sua sponte. Non constat'', that he would not have either modified or withdrawn it on proper request, if its objectionable features had been pointed out. Be this as it may, we cannot review it, as there was no exception to it. Apart from this, we do not see how the plaintiff in error was injured. The charge, so far from lessening, increased its chances to defeat the action. The jury had been told to find for it if the only injury in controversy was a severe one. After this, to charge them to find in the same way if, in their opinion, the medical attendance was for any disease or injury covered by the 'question,' was giving the company a larger opportunity to obtain a verdict that it had before. It was, in effect, informing them that they were at liberty to contrue the 'question' more favorably to the company than the court had done. To say the least, it left a better opening for the company to get a verdict than it had by reason of the answer of the court to the fourth point.

Judgment affirmed.

NOTE.-A case between the same plaintiff in error and Snyder, a son of Monroe Snyder, deceased, was heard and determined at the same date as the preceding case. It involved precisely the same points, and was disposed of in the same manner.


text: Talk:Mutual Life Insurance Company v. Snyder/Opinion of the Court


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Ex parte Karstendick

PETITION for habeas corpus.

Mr. David C. Labatt for the petitioner.

Mr. Solicitor-General Phillips, contra.

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

title: Ex parte Karstendick


text: Talk:Ex parte Karstendick

title: Talk:Ex parte Karstendick


text:
Ex parte Karstendick/Opinion of the Court

Karstendick, the petitioner, was indicted for a conspiracy, and convicted May 1, 1876, in the Circuit Court of the United States for the District of Louisiana, under sect. 5440 of the Revised Statutes. The punishment for his offence, prescribed by the statute, is a penalty of not less than $1,000 nor more than $10,000, and imprisonment not more than two years. The sentence, as passed by the court, so far as it is material to the present inquiry, is as follows:--

'And, it having been in due form determined and ascertained that there is no penitentiary within the district of Louisiana, suitable for the confinement of persons convicted of crime in the courts of the United States, in said district of Louisiana, and the Attorney-General of the United States having, in due form, and by and with competent authority, designated the penitentiary at Moundsville, in West Virginia, as the place of confinement, subsistence, and employment of all persons convicted, or who may hereafter be convicted, by the courts of the United States, of crime against the United States of America, in said district of Louisiana, and such designation having been in due form notified to the court and entered upon the record thereof,. . . it is considered, by reason of the verdict herein,. . . that the said Otto H. Karstendick be confined in the penitentiary of the State of West Virginia, at Moundsville, in said State, for and during the full period of sixteen calendar months from and after this day, and that he do also further pay a fine of $2,000,' &c.

In execution of this sentence, Karstendick is now imprisoned in the penitentiary at Moundsville, and he seeks through this application to obtain a discharge, alleging for cause that the order of the court for his imprisonment in a penitentiary, and without the State of Louisiana, is not authorized by law, and consequently void.

Sect. 5440 of the Revised Statutes is a reproduction of sect. 30 of an act of Congress, passed March 2, 1867, 'to amend existing laws relating to internal revenue, and for other purposes.' 14 Stat. 484. At that time another act, passed March 3, 1865, 'regulating proceedings in criminal cases, and for other purposes,' was in force, which provided, in sect. 3, that 'in every case where any person convicted of any offence against the United States shall be sentenced to imprisonment for a period longer than one year, it shall be lawful for the court, by which the sentence is passed, to order the same to be executed in any State prison or penitentiary within the district or State where such court is held, the use of which prison or penitentiary is allowed by the legislature of such State for such purposes.' 13 Stat. 500. This provision is also reproduced in sect. 5541 of the Revised Statutes, save only that the words 'State jail' are substituted for the words 'State prison,' where they occur in the original act.

As early as 1834 Congress enacted that, whenever any criminal convicted of any offence against the United States shall be imprisoned in pursuance of such conviction, or of the sentence thereupon, in the prison or penitentiary of any State or Territory, such criminal shall, in all respects, be subject to the same discipline and treatment as convicts sentenced by the courts of the State or Territory in which such prison or penitentiary is situated, and, while so confined in such prison, shall also be exclusively under the control of the officers having charge of the same, under the laws of such State or Territory. 4 Stat. 739.

This provision is re-enacted in sect. 5539 of the Revised Statutes, the word 'jail,' however, being substituted in the revision for 'prison,' where it occurs in the original.

All these several statutes, being in pari materia, were, when in force before the revision, to be construed together. The same is true of the corresponding revised sections, and, under this rule, the same effect must be given to sect. 5440, that it would have if it read as follows: 'All the parties to such a conspiracy shall be liable to a penalty of not less than $1,000 and not more than $10,000, and to imprisonment not more than two years.' Sect. 5440. If the sentence of imprisonment shall be for a longer term than one year, the court passing the same may order it to be executed in any State jail or penitentiary within the district or State where said court is held (sect. 5541), and the criminal so imprisoned shall, in all respects, be subject to the same discipline and treatment as convicts sentenced by the courts of the State or Territory in which such jail or penitentiary is situated, and shall, while so confined therein, be exclusively under the control of the officers having charge of the same under the laws of the State. Sect. 5539.

This language is explicit, and, taken by itself, is certainly sufficient to authorize imprisonment in a penitentiary, at the discretion of the court, in all cases where the sentence is for a longer term than one year. But the counsel for the petitioner, in their argument, refer to other sections of the statute, which in terms provide for punishment by imprisonment at hard labor, and they seek to confine the power of imprisonment in a penitentiary to such cases; because, as they claim, imprisonment in a penitentiary necessarily implies imprisonment at hard labor; and where the punishment provided for by the statute is imprisonment alone, a sentence to confinement at a place where hard labor is imposed as a consequence of the imprisonment, is in excess of the power conferred.

We have not been able to arrive at this conclusion. In cases where the statute makes hard labor a part of the punishment, it is imperative upon the court to include that in its sentence. But where the statute requires imprisonment alone, the several provisions which have just been referred to place it within the power of the court, at its discretion, to order execution of its sentence at a place where labor is exacted as part of the discipline and treatment of the institution or not, as it pleases. Thus, a wider range of punishment is given, and the courts are left at liberty to graduate their sentences so as to meet the evervarying circumstances of the cases which come before them. If the offence is flagrant, the penitentiary, with its discipline, may be called into requisition; but if slight, a corresponding punishment may be inflicted within the general range of the law.

This view of the case is strengthened by a further examination of the legislation upon this subject. As early as 1825, in an 'Act more effectually to provide for the punishment of crimes against the United States, and for other purposes' (4 Stat. 118), it was enacted (sect. 15) that 'in every case where any criminal convicted of any offence against the United States shall be sentenced to imprisonment and confinement at hard labor, it shall be lawful for the court by which the sentence is passed, to order the same to be executed in any State prison or penitentiary within the district or State where such court is holden, the use of which prison or penitentiary may be allowed or granted by the legislature of such State for such purposes.' With this statute in force, the act of 1865, which has already been referred to, was passed, giving the same power in nearly the same words, where the punishment was by imprisonment for a longer term than one year, without any special requirement as to hard labor.

These two acts are separately re-enacted in the Revised Statutes. The act of 1825 is reproduced in sect. 5542, and that of 1865 in sect. 5541, the language of the two original acts being substantially retained in the revision. With this legislation in full force, it is impossible to believe that it was the intention of Congress to confine imprisonment in penitentiaries exclusively to cases in which hard labor is in express terms made by statute a part of the punishment.

Without extending the argument further upon this branch of the case, we are clearly of the opinion that the order of the court directing the imprisonment in a penitentiary is not void. It still remains to consider whether that part of the sentence which directed that the imprisonment should be in the penitentiary at Moundsville can be sustained.

It is conceded that Congress has the power to provide that persons convicted of crimes against the United States in one State may be imprisoned in another. Congress can cause a prison to be erected at any place within the jurisdiction of the United States, and direct that all persons sentenced to imprisonment under the laws of the United States shall be confined there; or it may arrange with a single State for the use of its prisons, and require the courts of the United States to execute their sentences of imprisonment in them. All this is left to the discretion of the legislative department of the government, and is beyond the control of the courts.

Acting under this power, Congress, while recognizing as a rule the propriety of sentencing those convicted of crime against the United States to imprisonment in the jails or prisons of the State where their conviction was had, did, in 1864, to meet contingencies that might arise, enact that 'all persons who have been, or may hereafter be, convicted of crime by any court of the United States, not military, the punishment whereof shall be imprisonment in a District or Territory where at the time of such conviction there may be no penitentiary or other prison suitable for the confinement of convicts of the United States, or available therefor, shall be confined, during the term for which they may have been, or may be, sentenced, in some suitable prison, in a convenient State or Territory, to be designated by the Secretary of the Interior.' 13 Stat. 74. In 1872, the power of designating was transferred to the Attorney-General. This provision is also reenacted in sect. 5546 of the Revised Statutes, the word 'jail' being substituted for 'other prison,' and 'suitable jail or penitentiary' for 'suitable prison,' in the original act. This section is to be construed in connection with the other sections which have been referred to. In fact, it may be treated as a proviso to sects. 5541 and 5542.

The counsel for the petitioner do not dispute the validity of this legislation; but they claim the in this case the conditions precedent to the execution of the sentence in a prison outside of the State have not been complied with, and consequently that the case is not brought within the power of the court to make such an order.

It is first insisted, that, as the State of Louisiana permits the use of its jails and penitentiaries for the punishment of criminals convicted in the courts of the United States, the sentences of imprisonment by those courts cannot be executed elsewhere. It is not enough that the jails and penitentiaries of the State may be used: they must also be suitable. Whether suitable or not, is a question of fact. In this case, the court passing the sentence has determined this question, and found that in the State of Louisiana there was no penitentiary suitable for the confinement of persons convicted of crime against the United States.

This finding is conclusive until reversed, and it cannot be reviewed in this form of proceeding. To justify a discharge, under any writ to be issued upon this application, it must appear upon the face of the record that the order of commitment was void.

The court also decided, that, under the circumstances of this case, the punishment should be by imprisonment in a penitentiary. This made it necessary to ascertain whether any penitentiary outside the State had been designated by the Attorney-General of the United States for use when that in the State was found to be unsuitable.

As to this, the record shows, that, on the first day of April, 1876, the Attorney-General addressed the following communication to the United States Attorney at Louisiana:--

'Under the authority granted by sect. 5546 of the Revised Statutes of the United States, I designate the penitentiary at Moundsville, in West Virginia, as the place for the confinement, subsistence, and employment of all persons convicted, by the courts of the United States for the District of Louisiana, of crime against the United States, and sentenced by said courts to imprisonment longer than one year, on and after this instant. You will bring this designation to the notice of the courts, and have this order entered, if possible, on the records.'

This action of the Attorney-General was brought to the attention of the Circuit Court, and the desired entry made.

This, as it seems to us, is clearly a designation under the statute, and we are unable to agree with the counsel for the petitioner in the opinion that it applies only to persons under conviction and sentence at the time the order was issued. It is true the language is, 'all persons convicted. . . and sentenced;' and that certainly includes persons already convicted, but it does not necessarily exclude persons thereafter to be convicted. The statute makes it the duty of the Attorney-General to designate other places of confinement, whenever the jails or penitentiaries of a State are unsuitable or unavailable. That it was his intention to act in reference to future convictions as well as to past, is evident from the form of his communication, which is not addressed to, or, so far as appears, intended for, the marshal of the district, but to the attorney of the United States, for the purpose of being brought by him to the attention of the courts. An order from the Attorney-General to the marshal was all that was necessary to effect a removal after sentence passed. No action of the courts was required. A notification to the courts was, therefore, only necessary for the purpose of influencing their conduct in the future. A sentence in this case for imprisonment in a State penitentiary would not have been void, but it might not have prevented the Attorney-General, acting under the statute, from directing a removal of the convict to some penitentiary outside of the State. Until such removal, the imprisonment in Louisiana would have been good. But if the court finds that the State penitentiary is unsuitable in fact, and the Attorney-General has designated another for use on that account, we can see no reason why the court may not sentence the person convicted to imprisonment at the place designated. Suppose there had been no penitentiary at all in the State, and under the law the Attorney-General had made his designation, would it for a moment be doubted that a sentence to imprisonment at the designated place would be good? But if a penitentiary is unsuitable within the meaning of the statute, how is the case different in principle from what it would be if there were none? The order of the Attorney-General is equivalent to a finding by him that the penitentiary of the State was unsuitable or unavailable for the confinement of criminals convicted under the laws of the United States; and when this action of the Attorney-General is supplemented by a finding of the same fact by the court, it seems to us to be as much within the power of the court to order the imprisonment at Moundsville, as it would have been if there had been no penitentiary at all in Louisiana. It certainly could not have been contemplated that the courts must in all cases sentence to confinement in the State where the conviction was had, without regard to the fact whether it could be executed there or not, and that the sole power of directing the sentence to be executed in another State was vested in the Attorney-General. That is neither within the letter not the spirit of the statute. The sole power of designation is in the Attorney-General; but when he has designated, if the facts which authorize the change of place exist, it is as much within the power of the court to order its sentence to be executed at the designated place, as to determine which of two prisons in a State, equally suitable and equally available for the punishment to be inflicted, shall be employed for that purpose. The policy of the law is to avoid circuity of action, and to permit the courts to do directly, as far as possible, all that they may do indirectly.

Neither is it an objection to the order, as made, that the designation of the Attorney-General is of a penitentiary alone. If the sentence of the court had been imprisonment in a jail, and the jails of the State of Louisiana had been found unavailable or unsuitable, a designation of some jail outside of the State might have been necessary before the court could have ordered a confinement outside of the State. But here the sentence is for imprisonment in a penitentiary; and as to that, as has been seen, there was a sufficient designation.

It is further insisted on behalf of the petitioner, that the legislature of the State of West Virginia has not given its consent to the use of the penitentiary of the State by the United States for the punishment of their criminals, and that for this reason the order for his confinement there is void. The petitioner is actually confined in the penitentiary, and neither the State nor its officers object. Congress has authorized imprisonment, as a punishment for crimes against the United States, in the State prisons. So far as the United States can do so, they have made the penitentiary at Moundsville a penitentiary of the United States, and the State officers having charge of it their agents to enforce the sentences of imprisonment passed by their courts. The question is not now whether the State shall submit to this use of its property by the United States, nor whether these State officers shall be compelled to act as the custodians of those confined there under the authority of the United States, but whether this petitioner can object of they do not. We think he cannot. So long as the State permits him to remain in its prison as the prisoner of the United States, and does not object to his detention by its officers, he is rightfully detained on custody under a sentence lawfully passed.

Neither do we think the objection tenable, that there can be no imprisonment in a penitentiary outside of Louisiana, if there are within that State jails that are both suitable and available. It is for the court to determine whether the imprisonment shall be in a jail or a penitentiary. If in a penitentiary, then a penitentiary must be found inside of the State suitable and available, in order that the sentence to be pronounced may be executed there. If there is none, resort may be had to those of another State. Imprisonment need not necessarily be ordered in a jail because the penitentiary of the State is unsuitable.

As the whole record is before us, and the case has been fully argued upon the merits, the writ is

Denied.

NOTE.-In Ex parte Henderson, the application for a writ of habeas corpus was denied, for the reasons assigned in the foregoing opinion.


text: Talk:Ex parte Karstendick/Opinion of the Court


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The John L. Hasbrouck

APPEAL from the Circuit Court of the United States for the Eastern District of New York.

This was a libel by the owners of the sloop 'Venus' against the steam-propeller 'John L. Hasbrouck,' to recover damages for the sinking of the sloop by a collision with the propeller on the Hudson River, near West Point, on the night of Nov. 27, 1869. The District Court held that the collision was caused by the sole fault of the 'Venus,' and entered a decree dismissing the libel; which decree having been affirmed by the Circuit Court, the libellant brought the case here.

Argued by Mr. William Allen Butler for the appellant, and by Mr. R. D. Benedict, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: The John L. Hasbrouck


text: Talk:The John L. Hasbrouck

title: Talk:The John L. Hasbrouck


text:
The John L. Hasbrouck/Opinion of the Court

Rules of navigation are ordained, and required to be observed, to save life and property employed in marine pursuits, and not to promote collisions, or to justify the wrong-doer where such a disaster has occurred. The Sunnyside, 1 Otto, 210.

Ships and vessels engaged in commerce ought to observe the rules of navigation in all cases where they apply; and it is safe to affirm that they always apply when there is impending risk of collision, except in special cases, where their observance would tend to promote what they were ordained to prevent, or where special circumstances render a departure from them indispensably necessary to avoid immediate danger. 13 Stat. 61.

Both parties admit that the collision described in the record occurred at the time and place alleged in the pleadings, and it appears that the owner of the sloop, having suffered pecuniary loss by the disaster, instituted a libel in rem in the District Court against the steamer, to recover compensation for the value of the sloop and her cargo.

Enough appears to show that the sloop was laden with flagging-stone, and that she was bound on a voyage from Catskill, on the Hudson River, to the city of Brooklyn; and that the steamer was bound on a trip up the river, with a barge lashed to her starboard side. Proper signal-lights were displayed by both vessels; and it is not controverted that they both had competent lookouts, nor that they were both well manned and equipped.

Precisely what took place before the sloop reached Newburg does not appear, nor would it be of much importance if it were known. When they left that place, they took in the mainsail and jib, for the reason that the wind blew pretty hard, and it appears that they did not hoist those sails again until they went past Magazine Point, which is on the east shore of the river. Before they reached West Point, all agree that the course of the sloop was well over to the west side of the channel of navigation. Throughout the same period the steamer was proceeding up the river on the east side of the channel, which is the usual pathway of steamers navigating in that direction.

Sailing-vessels, especially when descending the river, usually keep well over to the western side of the channel, leaving the eastern side of the same for the uninterrupted passage of vessels propelled by steam. Usage has sanctioned that course of navigation, where there are no impediments or natural obstructions in the pathway of ascending or descending vessels. Vessels of all kinds, whether propelled by steam or sails, are allowed and expected to vary their respective courses to correspond with the well-known sinuosities of the navigable portion of the river, and to avoid the dangers of navigation arising from rocks, shoals, and sand-bars, as well as from curves and bends in the banks of the river or the channel of navigation.

Steamers running up the river may make such necessary variations in their course as is necessary to avoid every such natural obstruction to navigation; nor are sailing-vessels descending the river required to hold their course at the hazard of being grounded or shipwrecked by natural obstructions, even though they are required to adopt that precaution in all cases where a steamer is approaching, if the navigation is free from such difficulties. Instead of that, every mariner knows that a sailing-vessel descending the river from above West Point, if her course has been well over to the right bank of the river, must, as she approaches the bend in the river there, incline to port sufficiently to round the projection at that place, even if those in charge of her deck intend to continue down the river on the west side, in the same general course as the vessel pursued before they arrived at that locality.

Variations of the kind in the course of the vessel are allowable, because they cannot be avoided without imminent danger of immediate destruction; nor is a sailing-vessel under such circumstances forbidden to yield to such a necessity, even though those in charge of her deck are aware at the time that a steamer is coming up the river on a course which involves risk of collision, if it appears that a change of course is reasonably necessary to prevent the sailing-vessel from running into the bank, or encountering any other natural obstruction to the navigation. Necessary changes made in the course of the voyage to avoid such obstructions are not violations of the sailing-rule which requires the sailing-vessel to keep her course whenever an approaching steamer is required to keep out of the way. Departures of the kind from the general requirements of the sailing-rules are rendered necessary to avoid impending peril and immediate danger, which can only be justified in such an emergency, and to the extent that the immediate danger demands their adoption.

Tested by these suggestions, it is clear that the sloop, when she found herself in the cove just above West Point, might properly incline to port sufficiently to clear any obstruction there and to round that point in safety; but it is equally clear that it was her duty, when that object was safely accomplished, to incline to starboard sufficiently to resume her regular course down the river, well over on the west side of the channel. Three considerations should have induced those in charge of her deck to adopt that course: 1. Because it was her regular course, as shown by the usages of the river. 2. Because the steamer was coming up on the opposite side of the river. 3. Because there were no vessels in view coming up on the western side of the channel.

Eough appears in the consequences which followed from the adoption of the opposite course to show that the preceding suggestions should have been adopted and followed, and that, if they had been, the disaster never would have happened. Proof of that is seen in the fact that the steamer, when the sloop emerged from the cove and her lights came in view as she rounded the point, was fast coming up on the eastern side of the river, without the least warning of approaching danger. For a moment the red light of the sloop came in view; but it soon disappeared, and was substituted by the green light, which indicates very clearly that the sloop held her course across the channel instead of inclining to the starboard, as she should have done, under a port helm, in order to resume her regular course down the river on the western side.

Danger being manifest from those indications, the steamer ported her helm and stopped her engine, which was all she could do in the emergency to prevent a collision. Her course was already well over on the eastern side of the channel, and with a barge lashed to her starboard side she could not bear away much under a port helm, without being in danger of departing from the navigable channel of the river. Witnesses estimate the channel at that point as five hundred yards in width, and all agree that it is a good boating channel.

Hearing was had, and the District Court entered a decree dismissing the libel. Due appeal was taken by the libellant to the Circuit Court, where the decree of the District Court was affirmed, and the libellant appealed to this court.

Proof of a satisfactory character shows that those in charge of the sloop did not change the course of the vessel subsequent to the time when they first saw the lights of the steamer, and the mate of the sloop testifies to the effect that he first saw the lights of the steamer over the starboard bow of the sloop, that they were not then far enough around the point to see straight down the river, and that the steamer at that time was heading to the eastward of the sloop, which shows conclusively that the steamer was so far advanced when the mate made that observation that she could not prevent the collision by stopping her engine.

Conclusive support to the proposition that the sloop did not change her course from the time those on board of her first saw the lights of the steamer to the collision is also found in the testimony of the master of the sloop, in the allegations of the libel, and in the propositions of fact submitted by the libellant. Nothing appears in the record to justify the conclusion that the libellant even pretends that the sloop changed her course subsequent to the discovery of the lights of the steamer, or that those in charge of her deck did any thing to prevent a collision, unless it was to hold her course across the channel, towards the left bank of the river. Evidence to support any thing of the kind is entirely wanting. Opposed to that, the libellant contends that it was the duty of the sloop to hold her course, and insists that the steamer was in fault because she did not keep out of the way, as required by the fifteenth sailing-rule. 13 Stat. 60.

Beyond doubt, a steamer must keep out of the way of a sailing-ship, where the two are properly sailing in such directions as to involve risk of collision; but neither that regulation, nor any other sea law, will justify a sailing-ship in unnecessarily leaving her pathway for the purpose of taking a course directly into the pathway of a steamer in order to compel the steamer to abandon the pathway in which she is properly navigating and seek another usually navigated by sailing-vessels, or incur the peril of an immediate collision.

Litigations of the kind prior to the present have come here, in which the evidence tended to show that steamers, in passing the locality where the collision in question occurred, usually navigate the eastern side of the channel, and that sailing-vessels, whether ascending or descending, usually pass on the opposite side. Testimony tending to prove such a usage in respect to the locality of the collision is exhibited in the case before the court; but the court here is not inclined to rest the decision of the case entirely upon that ground, for the reason that the evidence is satisfactory and uncontradicted, that the steamer was ascending on a course well over to the east side of the channel, and that the sloop, prior to reaching West Point, was descending the river on the western side, in the regular course of navigation.

Neither of those propositions can be successfully controverted. and, if not, the court is of the opinion that the sloop was not authorized to cross the channel to the eastern side; that all she had a right to do in that regard was to incline to port sufficiently to round the point in safety; and that it was negligent seamanship to continue to hold her course across the channel, or to deviate from her regular course, beyond what was necessary to correspond with the sinuosity of the channel; and that it was her duty, when that object had been safely accomplished, to have inclined to starboard, and have resumed her regular course down the river on the western side of the channel of navigation.

Necessary deviation to avoid the obstruction is plainly allowable; but to admit that the deviation may be continued after the necessity for it ceases, would be to concede that the sailing-vessel under such circumstances may hold her course across the channel, and force a collision with a steamer coming up on the eastern side of the channel, or compel the steamer, if she can, to abandon her accustomed pathway and seek another pathway usually navigated by sailing-vessels.

Attempt is made in argument to exonerate the sloop, or those in charge of her, from all culpable negligence in the premises, by an appeal to the evidence, by which it appears, as the libellant contends, that the wind was not sufficient to enable the sloop to go to starboard after she rounded West Point. Support to that proposition, however, is not derived to any considerable extent from the libel, which, though it describes the wind as very light, nevertheless alleges that there was a strong ebb tide running; and the manifest theory of the libel is, not that those in charge of the sloop made any effort to port the wheel after the sloop rounded West Point, but that she held her course from the time the lights of the steamer were first seen to the moment of the collision.

Considerable conflict exists in the evidence as to the state of the wind; but the great weight of it shows that the wind was from the north-west, and that the theory of the libellant, that it was not sufficient to give steerage-way to the sloop, is not well founded. Important facts are disclosed in the testimony given by the libellant inconsistent with the theory that there was a calm. He, or his witnesses, admit that the wind blew hard before they got down to Magazine Point, so that they took in all sail; and it also appears from the testimony that when they had passed that point they again hoisted the mainsail to the reef, showing very satisfactorily that the wind was still too strong for a full sail.

Four witnesses, including the two pilots and the master and lookout, called by the steamer, testify that the wind was northwest, and that it was blowing a stiff breeze; and they are confirmed by one of the witnesses of the libellant, to the extent that there was a good strong breeze blowing down the river. Two witnesses from the barge were also examined in behalf of the steamer; and they also testified that the wind was blowing a good stiff breeze, and one of them stated that he inquired of the mate of the sloop why he did not have up all sail, and that the mate replied that it was because the wind was so heavy that they came down under bare poles. Five other witnesses from other crafts were also examined by the steamer; and they all contradict the theory set up by the libellant, that there was a calm which disqualified the sloop from adopting the proper precaution to prevent a collision.

Conclusive evidence, if more be needed, is also found in the injuries which the sloop caused to the steamer by the blow, to show that the theory of the libellant as to the wind is incorrect. That the sloop held her course across the channel has already been shown, and it also appears that she struck the steamer on her port side some forty feet from the stem, the two vessels coming together nearly at right angles. Convincing proof is exhibited to that effect; and it appears that it was the bowsprit of the sloop that first struck the port side of the steamer, and the evidence shows that the force of the blow was such that it broke a hole through the outside planking, which was three inches thick, and also broke a hole through the inside planking, which was also three inches thick, and broke through on oak timber eight inches in diameter.

Viewed in the light of these facts and circumstances, we are all of the opinion that the decree of the Circuit Court is correct, and that there is no error in the record.

Decree affirmed.


text: Talk:The John L. Hasbrouck/Opinion of the Court


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Sage v. Central Railroad Company of Iowa

MOTION, 1. To vacate a supersedeas; 2. Dismiss the appeal.

Mr. R. L. Ashhurst in support of the motions.

Mr. N. A. Cowdrey, contra.

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