text:
Chicago and Northwestern Railroad Company v. Fuller/Opinion of the Court

The case lies within a narrow compass, and presents but a single question for our consideration. That question is not difficult of solution. The second section, chapter 169, of the laws of the ninth General Assembly of Iowa is as follows:

'In the month of September, annually, each railroad company shall fix its rates of fare for passengers and freight, for transportation of timber, wood, and coal per ton, cord, or thousand feet, per mile; also, its fare and freight per mile for transporting merchandise and articles of the first, second, third, and fourth grades of freight; and on the first day of October following shall put up at all stations and depots on its road a printed copy of such fare and freight, and cause a copy to remain posted during the year. For wilfully neglecting so to do, or for receiving higher rates of fare or freight than those posted, the company shall forfeit not less than one hundred dollars nor more than two hundred dollars to any person injured thereby and suing therefor.'

The plaintiff in error was sued in the proper District Court of the State for violations of these provisions. Among other defences interposed, the company plead that the statute was in conflict with the commercial clause of the Constitution of the United States. Fuller demurred to the plea. The court sustained the demurrer and the company excepted. The case was afterwards submitted to a jury. The company prayed the court to instruct them that the act was invalid by reason of the conflict before mentioned. The court refused, and the company again excepted. A verdict and judgment were rendered for the plaintiff. The company removed the case to the Supreme Court of the State, and there insisted upon these exceptions as errors. That court affirmed the judgment of the District Court, and the company thereupon prosecuted this writ of error. Was there error in this ruling?

The Constitution gives to Congress the power 'to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.'

The statute complained of provides—

That each railroad company shall, in the month of September, annually, fix its rates for the transportation of passengers and of freights of different kinds;

That it shall cause a printed copy of such rates to be put up at all its stations and depots, and cause a copy to remain posted during the year;

That a failure to fulfil these requirements, or the charging of a higher rate than is posted, shall subject the offending company to the payment of the penalty prescribed.

In all other respects there is no interference. No other constraint is imposed. Except in these particulars the company may exercise all its faculties as it shall deem proper. No discrimination is made between local and interstate freights, and no attempt is made to control the rates that may be charged. It is only required that the rates shall be fixed, made public, and honestly adhered to. In this there is nothing unreasonable or onerous. The public welfare is promoted without wrong or injury to the company. The statute was doubtless deemed to be called for by the interests of the community to be affected by it, and it rests upon a solid foundation of reason and justice.

It is not, in the sense of the Constitution, in any wise a regulation of commerce. It is a police regulation, and as such forms 'a portion of the immense mass of legislation which embraces everything within the territory of a State not surrendered to the General Government, all which can be most advantageously exercised by the States themselves.'

This case presents a striking analogy to a prominent feature in the case of The Brig James Gray v. The Ship John Fraser. There the city authorities of Charleston had passed an ordinance prescribing where a vessel should lie in the harbor, what light she should show at night, and making other similar regulations. It was objected that these requirements were regulations of commerce and, therefore, void. This court affirmed the validity of the ordinance.

In the complex system of polity which exists in this country the powers of government may be divided into four classes:

Those which belong exclusively to the States.

Those which belong exclusively to the National Government.

Those which may be exercised concurrently and independently by both.

And those which may be exercised by the States but only until Congress shall see fit to act upon the subject.

The authority of the State then retires and lies in abeyance until the occasion for its exercise shall recur.

Commerce is traffic, but it is much more. It embraces also transportation by land and water, and all the means and appliances necessarily employed in carrying it on.

The authority to regulate commerce, lodged by the Constitution in Congress, is in part within the last division of the powers of government above mentioned. Some of the rules prescribed in the exercise of that power must from the nature of things be uniform throughout the country. To that extent the authority itself must necessarily be exclusive, as much so as if it had been declared so to be by the Constitution in express terms.

Others may well vary with the varying circumstances of different localities. Where a stream navigable for the purposes of foreign or interstate commerce is obstructed by the authority of a State, such exercise of authority may be valid until Congress shall see fit to intervene. The authority of Congress in such cases is paramount and absolute, and it may compel the abatement of the obstruction whenever it shall deem it proper to do so. A few of the cases illustrating these views will be adverted to.

In Willson v. The Blackbird Creek Marsh Company, under a law of the State of Delaware, a dam had been erected across the creek. This court held that the dam was a lawful structure, because not in conflict with any law of Congress.

In Gilman v. The City of Philadelphia, the State of Pennsylvania had authorized the erection of a bridge over the Schuylkill River, in the city of Philadelphia. This court refused to interpose, because there was no legislation by Congress affecting the river. The authority of Congress over the subject was affirmed in the strongest terms.

In The Wheeling Bridge Case, the bridge was decreed to be a nuisance, because Congress 'had regulated the Ohio River, and had thereby secured to the public the free and unobstructed use of the same.' Congress subsequently legalized the bridge, and this court held the case to be thereby terminated.

In Cooley v. The Board of Wardens, the validity of a State law establishing certain pilotage regulations, was drawn in question. It was admitted by this court that the regulations were regulations of commerce, but it was held that they were valid and would continue to be so until superseded by the action of Congress.

In Ex parte McNiel, the same question arose, and the doctrine of the preceding case was reaffirmed.

In The James Gray v. The John Fraser, stress was laid upon the fact that there was no act of Congress in conflict with the city ordinance in question. See, also, in this connection, Osborne v. The City of Mobile.

If the requirements of the statute here in question were, as contended by the counsel for the plaintiff in error, regulations of commerce, the question would arise, whether, regarded in the light of the authorities referred to, and of reason and principle, they are not regulations of such a character as to be valid until superseded by the paramount action of Congress. But as we are unanimously of the opinion that they are merely police regulations, it is unnecessary to pursue the subject.

JUDGMENT AFFIRMED.


text: Talk:Chicago and Northwestern Railroad Company v. Fuller/Opinion of the Court

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


text:
Horn v. Lockhart

APPEAL from the Circuit Court for the Southern District of Alabama; the case being thus:

In March, 1858, one John Horn, of Marengo County, Alabama, died leaving a considerable estate, including a homestead plantation of 720 acres, a smaller tract of 208 acres, with other pieces of land, sevently-eight negro slaves, and other personalty; and leaving also a widow and six children, among them a son, John A. C. Horn, and daughters; one married to William Lockhart, another married to Charles Lockhart, and a third married to one McPhail. These three daughters, with their husbands, resided in Texas. The rest of the children and the widow resided, as the decedent had done, in Alabama. In May, 1857, the deceased made a will, which was in existence up to a short time prior to his death. His said son alleged that it had been afterwards fraudulently purloined and destroyed. The daughters alleged that their father voluntarily destroyed it before his death.

Soon after the death of Horn, the son procured himself to be appointed administrator ad colligendum, and by petition in the Probate Court of Marengo County, set up a paper which he alleged to be a true copy of his father's will, with allegations as to its spoliation, &c., and praying that it might be established as his will. The widow and all the children residing in Alabama, were duly cited to appear and show cause why the alleged will should not be admitted to probate. As the Lockharts with McPhail and wife resided in Texas, a notice of the time and place set for the hearing was duly published in a newspaper, as authorized and required by the laws of Alabama. Some only of the parties interested appeared, and contested the probate of the alleged will. The question as to its validity was tried by a jury according to the laws of Alabama; and it was established by their verdict and the judgment of the court in September, 1858. In November following, letters testamentary were issued to the son, as the executor.

By the will thus established, the homestead was given to the son after his mother's decease, and the smaller tract of 208 acres was directed to be sold and the proceeds divided equally amongst the daughters. The residue of the estate was to be equally divided between all the children. The widow repudiated the will and claimed her dower.

On the 29th of December, 1858, by order of the court, a division of the slaves of the testator was made between his widow and children, by commissioners appointed for the purpose and upon a valuation then made. The daughters severally, with their husbands, gave receipts for those which were assigned to them in this division; the receipts reciting that the slaves received were in full of their distributive share of the negro property of the deceased. At the same time the executor made payments of money to the daughters, and took receipts for the amounts, reciting that they were in part payment of their claims against the estate.

In October, 1859, the executor filed a partial account of his administration, including his sales of property at the said division of slaves. Some of the items of the account were contested, but in May, 1860, a decree was finally made by which it was declared that the executor had in his hands for distribution $10,783, proceeds of the land sold and to be divided among the daughters, and $5159, proceeds of personal property to be divided among the widow and children in accordance with the will, specifying the amount payable to each. Such division was accordingly made, and receipts taken by the executor from the parties.

In August, 1860, and January, 1861, a citation was issued at the suit of some of the daughters to call the executor to a final account. There was then a balance in his hands due from one Craighead, the purchaser of the real estate, devised for the benefit of the daughters. It had been sold on the 8th of January, 1859, on a credit of twelve months, for $10,400, of which $6240 had been paid in good money by the purchaser, and included in the partial account settled in May, 1860. But there was still a balance due of $4160, besides interest. Craighead died in June, 1859. His wife took out letters of administration on his estate. By the laws of Alabama, she, as administrator, could not have been sued until after six months from the grant of letters of administration, but the executor did not bring suit after that term had elapsed for the balance thus due from the estate; nor did he collect the amount until October, 1862, when he took it in Confederate notes, amounting to $5075.

He kept this money, and other money of the estate which he had previously received from certain sales of property, in Confederate funds in his hand until March, 1864, when, under sanction of laws of Alabama then existing, he deposited $7900 thereof as executor in the Confederate States depository office at Selma, Alabama, and received a certificate entitling him to Confederate States four per cent. bonds to that amount. The receiving of money by Horn, Jr., as executor, in Confederate notes, and the investment of said notes in Confederate bonds, were in strict accordance with laws passed by the legislature of Alabama in November, 1861, and November, 1863, whilst that State was engaged in rebellion against the United States.

In May, 1864, on the 2d of that month, the final accounts of the executor were passed in the probate court after due publication of notice, and he resigned his executorship in accordance with the laws of Alabama. The final decree recited the fact that it appeared that the executor had invested the moneys of the estate in his hands, being proceeds of sales of property of the estate, in four per cent. Confederate bonds, and approved and confirmed the same, and directed the several shares of the widow and children of the deceased to be paid to them in said bonds. The bonds were never accepted by the legatees, nor did it appear that they were ever tendered to them by the executor.

In this state of things, the Lockharts, resident as already mentioned in Texas, filed their bill, on the 15th of November, 1867, in the court below, against Horn, the executor, the widow, and the other daughters and their husbands (all of them being residents of Alabama, except McPhail and wife, who, as already said, resided, as did the complainants themselves, in Texas), to set aside the alleged will, which had been admitted to probate in September, 1858, and to recover their distributive share of the estate of their father, or in case the will should be sustained, to recover from the executor the balance due them as legatees, which he had invested in Confederate bonds; they insisting in their bill that there was no law, either valid or pretended, which authorized the Probate Court of Marengo County to render a decree making the amounts due them payable in Confederate bonds, and alleging that no such bonds were ever paid to or received by them.

Objection was taken in the Circuit Court to its jurisdiction, on account of the residence of these two defendants in the same State with the complainants.

The court in its final decree directed the bill to be dimissed as to these two defendants, as not being essential parties to the suit by the complainants.

On the main question the court held that the complainants were barred by the statute of limitations of Alabama, from filing a bill to set aside the will, and were estopped from doing so by their own acts, inasmuch as after the will was admitted to probate they had twice received, without objection or protest, dividends of the property of the deceased, founded on the directions of his will, and gave to the executor acquittances therefor; that in this they had recognized the will, and recognized the son as the executor thereof, and that they could not afterwards come into a court of equity without any allegation of fraud or concealment, or newly discovered evidence, and ask to have the will set aside.

But the court held that the executor could not exonerate himself from liability for the balance adjudged due the legatees, by paying the same in Confederate bonds. It observed that as a general rule all transactions, judgments, and decrees which took place in conformity with existing laws in the Confederate States between the citizens thereof, during the late war, except such as were directly in aid of the rebellion, ought to stand good; that the exception of such transactions was a political necessity required by the dignity of the government of the United States, and by every principle of fidelity to the Constitution and laws of our common country; that by this rule the present case must be judged, and that by this rule the deposit of the $7900, money of the estate, in the depository of the Confederate States at Selma, could not be sustained, as it was a direct contribution to the resources of the Confederate government. The decree of the court, therefore, directed the executor to pay to the complainants in lawful money of the United States the several sums adjudged to be due to them by the probate court on the rendition of his final account in May, 1864. From this decree an appeal was taken by the executor alone.

The case was twice argued.

Mr. P. Phillips, for the appellant:

I. The final decree is the first notice which the record gives of the dismissal of the bill as to McPhail and wife. But whether or not the court had jurisdiction of the cause must be determined by the state of the cause when it was submitted for decision. Even Conolly v. Taylor, which may be relied on by the other side, does not justify the action in this case. Counsel there had been arguing that the jurisdiction depended on the state of the parties at the commencement of the suit. The Chief Justice says, in reply, that the defect may 'be corrected at any time before the hearing.' Again he says:

title: Horn v. Lockhart


text: Talk:Horn v. Lockhart

title: Talk:Horn v. Lockhart


text:
Horn v. Lockhart/Opinion of the Court

'Had the cause come on for a hearing in this state of parties a decree could not have been made for want of jurisdiction. The name of the citizen, plaintiff, was, however, struck out of the bill before the cause was brought before the court.'

The bill here is filed by the Lockharts to set aside a will, to have distribution made of the estate, and an account against the executor. In such a bill McPhail and wife were necessary parties, and in dismissing the bill as to them to cure the defect of jurisdiction, it was made defective for want of necessary parties.

II. It is not necessary to argue that the decree of the probate court, though made during the civil war, was not for that reason void. The court had jurisdiction of the subject-matter and of the parties. In recognizing the legality of the investment in Confederate bonds, and ordering distribution in them, it had the sanction of the laws of the State and of the Confederate states, under whose dominion it exercised its functions. All the parties to the controversy were voluntarily under this dominion, and whatever was consummated under these laws cannot be readjudicated except by provisions of law enacted for that purpose. Admitting, for the argument, that these laws could be held as invalid, the only consequence would be, not that the decree of final settlement was void, but that it was erroneous, and the time and manner for correcting the error must be looked for in the statutes of the State. That the present decree was final, and concluded all the parties, until reversed, was decided by the Supreme Court of the State, in 1870, in a proceeding by one of the parties to the present bill, who sought to open it.

The counsel then, in order to ascertain particularly what these laws were, gave a history of legislation during the war, inferring from it as plain that all parties aggrieved by judgments or decrees rendered during the civil war had a remedy by way of new trial or appeal.

He also referred to statutes prior to the war, allowing a bill to correct any error in a settlement with an executor in the decree of the probate court, if filed within two years from the date of the decree; arguing that after making all allowances this bill was about two months too late.

But if the bill had been filed in time, the decree was wrong in holding the executor liable by reason of his funding the Confederate money. It is said that this was an act in aid of the rebellion which the dignity of the government will not allow to stand good. But, how so? This is not a case where a party is asking the aid of the court to enforce an illegal contract or to enforce a right arising under an unconstitutional law; but is an appeal to the court to relieve one of the parties to a consummated act to set aside a judgment rendered under a government exercising full dominion over all the parties to it, and with their assumed assent. In such a case it does not lie in the mouth of a complainant to say that the court of probate could not exercise judicial power during the war, nor that these proceedings are erroneous in carrying into effect the laws of the Confederate government, because made to facilitate the war against the government of the United States. If the statute was illegal the complainants must be considered in law as having been parties to it, and as responsible and as much bound as if the record had shown that they were themselves the authors of it; as between citizens thus situated all consummated acts are beyond the reach of judicial revision. The court will not lend its aid to them to undo their own acts.

It may be stated here as matter of fact that the law of the Confederate government, under which the investment under consideration was made, and which was passed on the 15th of February, 1864, required Confederate notes to be funded by a certain time, and enacted that on failure to have them so funded they should no longer be receivable for public dues; they were also to be taxed 33 1/3 per cent., and in addition thereto 10 per cent. a month. Now, if the executor under this law had failed to fund, and allowed the notes to perish on his hands, the complainants in the courts of the Confederacy would have had a perfectly clear case for condemning him. Can they now come into the courts of the United States and hold the executor liable on the opposite ground?

These principles here advanced have been fully sustained by the highest court in Alabama, Mississippi, and Virginia.

The conduct of a trustee or agent must not be judged of by matters ex post facto.

The funding by the executor can in no just sense be considered as an act 'in aid of the rebellion.' It is not pretended that the funding was made with such intention, but, whether with or without intent, was it such an act? By funding the notes the debt of the Confederacy was neither augmented nor diminished; its form was only changed. By failing to fund, the debt was diminished by so much currency made valueless, without any increase in the bonded debt. It is therefore evident that, with the alternative before him to fund or not to fund, the executor acted in the mode least beneficial to the finances of the Confederacy, and for so acting-that is to say for not having given greater aid to the rebellion-the decree holds him liable!

Admit, however, that this funding was illegal, and that consequently the executor is liable as for a conversion, this would not charge him in specie or its equivalent with the amount of the funds converted. The money which he received was, of course, Confederate notes (the only currency of the South), and the measure of his liability is their value at the time of conversion. To this extent the decree ought in any view to be modified.

Mr. J. T. Morgan, contra.

Mr. Justice FIELD delivered the opinion of the court.

The validity of the will of John Horn, deceased, is not a question for our consideration. The Circuit Court held that the statute of limitations of Alabama had barred the right of the complainants to contest its validity, and also that they were estopped from such contestation by accepting, without objection or protest, dividends of the property founded upon the directions of the will. The executor and principal devisee does not, of course, controvert the correctness of this decision, as it sustains his position, and the complainants have not appealed.

The case, as presented to us, therefore, is one where an executor in Alabama is alleged to have misappropriated funds of an estate, to which legatees in Texas were entitled, and to enforce from the executor an accounting and payment the legatees ask the aid of a court of the United States.

The objection to the jurisdiction of the court, that two of the defendants were residents of Texas, the same State with the complainants, was met and obviated by the dismissal of the suit as to them. They were not indispensable parties, that is, their interests were not so interwoven and bound up with those of the complainants, or other parties, that no decree could be made without necessarily affecting them. And it was only the presence of parties thus situated which was essential to the jurisdiction of the court. The rights of the parties, other than the defendants who were citizens of Texas, could be, and were, adequately and fully determined without prejudice to the interests of those defendants. And the question always is, or should be, when objection is taken to the jurisdiction of the court by reason of the citizenship of some of the parties, whether to a decree authorized by the case presented, they are indispensable parties, for if their interests are severable and a decree without prejudice to their rights can be made, the jurisdiction of the court should be retained and the suit dismissed as to them.

Upon the accounts presented by the executor to the probate court in Alabama for settlement, it appears that he received moneys from the sales of property belonging to the estate of the testator, amounting to over seven thousand dollars, any invested the same in bonds of the Confederate States. By the decree of the probate court this investment was approved, and the executor was directed to pay the legatees their respective shares in those bonds. Now the question is whether this disposition of the moneys thus received, and the decree of the court, are a sufficient answer on the part of the executor to the present suit of the legatees to compel an accounting and payment to them of their shares of those funds.

It would seem that there could be but one answer to this question. The bonds of the Confederate States were issued for the avowed purpose of raising funds to prosecute the war then waged by them against the government of the United States. The investment was, therefore, a direct contribution to the resources of the Confederate government; it was an act giving aid and comfort to the enemies of the United States; and the invalidity of any transaction of that kind, from whatever source originating, ought not to be a debatable matter in the courts of the United States. No legislation of Alabama, no act of its convention, no judgment of its tribunals, and no decree of the Confederate government, could make such a transaction lawful.

We admit that the acts of the several States in their individual capacities, and of their different departments of government, executive, judicial, and legislative, during the war, so far as they did not impair or tend to impair the supremacy of the National authority, or the just rights of citizens under the Constitution, are, in general, to be treated as valid and binding. The existence of a state of insurrection and war did not loosen the bonds of society, or do away with civil government, or the regular administration of the laws. Order was to be preserved, police regulations maintained, crime prosecuted, property protected, contracts enforced, marriages celebrated, estates settled, and the transfer and descent of property regulated precisely as in time of peace. No one that we are aware of seriously questions the validity of judicial or legislative acts in the insurrectionary States touching these and kindred subjects, where they were not hostile in their purpose or mode of enforcement to the authority of the National government, and did not impair the rights of citizens under the Constitution. The validity of the action of the probate court of Alabama in the present case in the settlement of the accounts of the executor we do not question, except so far as it approves the investment of funds received by him in Confederate bonds, and directs payment to the legatees of their distributive shares in those bonds. Its action in this respect was an absolute nullity, and can afford no protection to the executor in the courts of the United States.

The act of Alabama which the executor invokes in justification of the investment has been very properly pronounced unconstitutional by the highest tribunal of that State, and the attempt of its legislature to release executors and trustees from accounting for assets in their hands invested in a similar manner rests upon no firmer foundation.

Had the legatees of the testator voluntarily accepted the bonds in discharge of their respective legacies, the case would have presented a very different aspect to us. The estate might then have been treated as closed and settled, but such is not the fact. The bonds were never accepted by the legatees, nor does it appear that the executor even went so far as to offer the bonds to them.

It is urged by counsel for at least a modification of the judgment of the Circuit Court, that the money received by the executor was in Confederate notes, which at the time constituted the currency of the Confederate States. It does not appear, however, that he was under any compulsion to receive the notes. The estate came into his hands in November, 1858, and no explanation is given for his delay in effecting a settlement until the war became flagrant. And even then he was not bound to part with the title to the property in his hands without receiving an equivalent in good money, or such, at least, as the legatees were willing to accept.

DECREE AFFIRMED.

Dissenting, Mr. Justices SWAYNE, DAVIS, and STRONG.

At a subsequent day a motion for rehearing was made, and an elaborate brief by Mr. Phillips filed in support thereof. The motion, however, after advisement, was DENIED.

title: Horn v. Lockhart/Opinion of the Court


text: Talk:Horn v. Lockhart/Opinion of the Court


text:
The Merritt

APPEAL from the Circuit Court for the Eastern District of Wisconsin; the case being thus:

By a statute of 1792, it is enacted that no ships but those which have been registered in the manner therein prescribed, shall be denominated or deemed vessels of the United States, entitled to the benefits or privileges appertaining to such ships. Great Britain has a similar regulation, fixing what are to be regarded as British vessels.

By an act of March 1st, 1817, it is enacted,

'SECTION 1. That after the 30th day of September next, no goods, wares, or merchandise shall be imported into the United States from any foreign port or place, except in vessels of the United States, or in such foreign vessels as truly and wholly belong to the citizens or subjects of that country of which the goods are the growth, production, or manufacture; or from which such goods, wares, or merchandise can only be, or most usually are, first shipped for transportation.

'Provided, nevertheless, That this regulation shall not extend to the vessels of any foreign nation which has not adopted, and which shall not adopt, a similar regulation.'

A subsequent section of the latter act enacts that the vessel and cargo coming into the United States, in violation of those provisions, shall be forfeited.

In this condition of things-as appeared by the libel, information, and answer-hereafter mentioned-the bark Merritt, built in the province of Canada and within the dominion of Great Britain, but wholly owned by citizens of the United States, was employed in transporting coal and iron, products of the said province of Canada, from the port of Kingston, in the province named, into the port of Milwaukee, Wisconsin, in the United States.

Hereupon, a libel and information was filed in behalf of the United States alleging the facts above stated. One Murray, owner of the vessel, interposed as claimant, and not denying the allegations, answered, that at the time of the importations on account of which the proceedings were taken, neither the imperial government of Great Britain nor the Dominion of Canada had adopted any 'similar regulation' to that contained in the above-quoted act of 1817; and that, therefore, the case was taken out of the statute by the proviso to it. This answer was excepted to as irrelevant; that is to say was, in effect, demurred to; and the exception or demurrer being sustained by the court below, on an appeal from the District Court, the case was now brought here by Murray for review. The vessel had exhibited no papers.

Mr. N. J. Emmons, for the claimant, appellant in this court:

1st. If the Merritt is a foreign vessel-as she needs must be to bring her within the regulations of the act of 1817-she was either British or Canadian, it matters not which. As such, she would not be liable, falling within the proviso to section one, 'that this regulation shall not extend to the vessel of any foreign nation which has not adopted and which shall not adopt a similar regulation.'

The act of 1817 was intended to retaliate upon Great Britain her unfriendly legislation on the subject of it, commencing with her act of 12th Charles II, 'for the encouraging and increasing shipping and navigation,' and continued by numerous subsequent enactments, all of which were supposed to have been reserved in force by the convention between the United States and Great Britain of July 3d, 1815. We could show, we think, if it would aid us, the unqualified repeal by Parliament, long prior to the alleged offence, of all its legislation on the subject. Our allegation of fact is, that there was no regulation by either Great Britain or Canada 'similar' to that of our act of 1817; that, on the contrary, American vessels were freed and absolved from all such restraints. This averment, however, stands admitted by the exception.

2d. If the Merritt was not a foreign vessel, that is to say, a vessel to which no distinct nationality could be assigned, then she has been guilty of no infraction of the law. If by the act of transfer from British to American citizens, she was utterly denationalized, and became a mere rover of the sea, without country, then she is not within the act of Congress. The act was not directed against such possible class of ships. It was not the mischief intended to be cured. We must have new legislation to forfeit a vessel thus circumstanced.

Mr. Solicitor-General S. F. Phillips, contra:

The policy of the act of 1817, which is to foster free trade between the United States and such foreign nations as adopt a similar policy, does not cover the vessel seized here, which has no national character whatever. The Merritt is not American; nor is it British, nor Canadian. She must, therefore, be a foreign vessel within the meaning of the act.

Mr. Justice HUNT delivered the opinion of the court.

title: The Merritt


text: Talk:The Merritt

title: Talk:The Merritt


text:
The Merritt/Opinion of the Court

The first section of the act of 1817 prohibits the importation of any goods or wares from any foreign port into the United States, except in two cases:

1st. They may be imported in vessels of the United States; or,

2d. In such foreign vessels as truly and wholly belong to the citizens or subjects of the country of which the goods are the production, or from which they are most usually first shipped for transportation.

The claimant's answer does not bring him within either of these classes.

1. The Merritt is not a vessel of the United States. The information alleged-it was not denied-and that is all that the case contains upon the subject,-that the Merritt was the property of citizens of the United States, and that she was a foreign-built vessel. That she was owned by citizens of the United States did not make her a vessel of the United States. By the statute of 1792 only ships which have been registered in the manner therein prescribed shall be denominated or deemed vessels of the United States, entitled to the benefits or privileges appertaining to such ships. There is no allegation that the Merritt had been so registered. Indeed, she could not have been under the provisions of the act last referred to.

2. The cargo of the Merritt was iron and lumber, the production of the British provinces of Canada, while her owners were citizens of the United States. She did not, therefore, come within the second description of the statute of 1817, as a foreign vessel truly and wholly belonging to citizens of the country of which the cargo was the growth or production. On the contrary, it is conceded by the pleadings that her owners were American citizens. The Merritt, therefore, falls within the prohibition of the act, and is liable to forfeiture. She was neither a vessel of the United States nor a foreign vessel, wholly belonging to citizens of the country of which her cargo was the production.

But the claimant seeks the benefit of the proviso of the act, viz.: 'That this regulation shall not extend to the vessels of any foreign nation which has not adopted, and shall not adopt, a similar regulation.' He alleges that neither the kingdom of Great Britain nor the province of Canada has adopted similar regulations.

The case does not show that the Merritt has any of the evidence of being a British ship. She produces no register, or certificate, or document of any kind to entitle her to make that claim. The fact that she is foreign-built does not prove it. Proof even that she was built in Great Britain would not establish it. Pirates and rovers may issue from the most peaceful and most friendly ports. The documents a vessel carries furnish the only evidence of her nationality. Of these the Merritt is entirely destitute, so far as the case shows. There is nothing, therefore, to bring her within the terms of the proviso.

DECREE AFFIRMED.

title: The Merritt/Opinion of the Court


text: Talk:The Merritt/Opinion of the Court

title: Talk:The Merritt/Opinion of the Court


text:
Page:Triangles of life, and other stories.djvu/260

248 that; a partner might have at least asked what he had been in trouble for; "a pal" would certainly have done so out of curiosity, and probably with rising admiration. But mateship didn't.

The faith of men is as strong as the sympathy between them, and perhaps the hardest thing on earth for a woman to kill.

Jim only glanced a little regretfully after the lonely little blur in the west, and said—

"I'm sorry I didn't shake hands with the poor little——. But it can't be helped now."

"Never mind," said Bob. "You might drop across him some day."


text: Knode v. Williamson

title: Knode v. Williamson


text: Talk:Knode v. Williamson

title: Talk:Knode v. Williamson


text:
Knode v. Williamson/Opinion of the Court

ERROR to the District Court for the District of West Virginia.

Knode sued Williamson in the court below in trespass.

In the course of the trial the plaintiff offered in evidence the deposition of J. A. Chapline, which the court excluded.

He also offered in evidence the depositions of certain persons, Biddle, Jamieson, and others, which the court equally excluded.

The defendant, on the other hand, offered in evidence the deposition of a certain Ellis, which the court admitted.

Verdict and judgment having gone for the defendant, the plaintiff brought the case here on exceptions to the exclusion of the two first-mentioned depositions, and the admission of the last-mentioned one.

Mr. C. W. B. Allison, for the plaintiff in error; Mr. W. W. Boyce, with whom was Mr. C. J. Faulkner, contra.

Mr. Justice STRONG stated the particular circumstances under which the respective depositions that were the subject of the court's action complained of were taken, and delivered the opinion of the court on each case.

We think the District Court erred in excluding the deposition of Chapline. It had been taken in the cause, in pursuance of notice that, together with the depositions of other witnesses, it would be taken on the 11th day of September, 1869. The notice also informed the defendant that taking of the depositions would be adjourned from day to day until they were completed. So long as such adjournments were in fact made, he was, therefore, informed of the times when he might attend for cross-examination. On the day first designated he did attend, with his counsel, and some depositions were taken. But all the witnesses not having been examined, the taking was adjourned until the next day, when it was again adjourned until the next succeeding day; and so on, from day to day, until September 18th, when the deposition of Mr. Chapline was taken in the absence of both the defendant and his counsel. All the adjournments, however, were from day to day, and consequently it was the duty of the defendant to take notice that depositions might be taken on any day to which an adjournment was made.

We think, also, the court erred in rejecting the depositions of Biddle, Jamieson, and others, mentioned in the bill of exceptions. They were offered to impeach the character or reputation of Thomas Noakes, a witness examined on behalf of the defendant. They had been taken regularly, and the only objection urged against their admissibility is, that the witnesses were asked if they knew the general 'reputation' of Noakes for truth; instead of being asked whether they knew his general 'character.' The question was precisely what it should have been. It is true that in many cases, it has been said, the regular mode of examining is to inquire whether the witness knows the general character of the person whom it is intended to impeach, but in all such cases the word character is used as synonymous with reputation. What is wanted, is the common opinion, that in which there is general concurrence, in other words, general reputation or character attributed. That is presumed to be indicative of actual character, and hence it is regarded as of importance when the credibility of a witness is in question.

The only remaining assignment of error relates to the admission of the deposition of Ellis. It had been taken under a commission sent to the State of Maine, in another case between the same parties, in which the cause of action was the same as in the present case, but it had not been used in the trial of that other case. It also appeared that the witness was beyond the district, and a resident of another State, when his deposition was offered. But there was a material defect in the notice given to the plaintiff of the time and place of taking, which was not waived by any attendance before the commissioner. The notice was without date, addressed to the attorney of the plaintiff, informing him that the deposition would be taken on the 12th of September (year not mentioned), at the office of Henry Hudson, in the city of Guilford, State of Maine, between certain hours, and that if from any cause the taking of the deposition should not be commenced on that day, or, if commenced, should not be concluded, the taking thereof would be adjourned and continued from day to day, or from time to time, at the same place, and between the same hours, until completed. No other notice, either of the commission or of the time and place of taking the deposition, appears to have been given. It was taken, not in the city of Guilford, but in the town of Guilford, on the 12th day of September, 1867. Whether the town, or township of Guilford is the same as the city of Guilford does not appear. But a party who attempts to use the deposition of an absent witness must show that he has given his adversary an opportunity to cross-examine by a notice that is definite and certain, unless the failure to give such notice has been waived. Such was not the notice given in this case, and the deposition was, therefore, erroneously received in evidence.

JUDGMENT REVERSED, AND A NEW TRIAL AWARDED.


text: Talk:Knode v. Williamson/Opinion of the Court


text:
Harrell v. Beall

APPEAL from the Circuit Court for the Southern District of Georgia.

Beall brought a suit in chancery in the court below, in his character of assignee in bankruptcy of one Jarrell, against a certain Harrell and one Echols, to set aside what he charged to be a fraudulent sale to Echols of the bankrupt's property, and to have the property subjected to the payment of debts in the bankruptcy proceeding.

The material allegations of the bill were, that the bankrupt, in a state of insolvency, procured the sale of valuable real estate belonging to him, under judgments which were a lien on it, and that by collusion with Echols, who was his clerk and agent, it was bought in by Echols for a merely nominal sum, one out of all proportion to its real value; that the purchase was made really for Jarrell, and the money, if any, which was actually paid on the execution sale was furnished by Jarrell; that the title to the land and some notes for rent remained in Echols's name until he disposed of them, as it was charged that he had done, to the defendant, Harrell; that Harrell purchased with notice of the fraudulent conduct of Echols, and for a sum far below the value of the property purchased.

The defence of Harrell was, that there was no fraud in the original purchase by Echols, and if there was any, that he, Harrell, was an innocent purchaser for value without notice.

The question was thus one of fact only.

Upon a large quantity of evidence, which when coming to this court filled a transcript or record-book that covered seventy-one 8vo. pages in a style that would make at least one hundred and twenty-five pages like the body of these Reports, the court below considered that the sale to Echols was a plain fraud; and that if Harrell, who had purchased from Echols, failed to perceive that it was so, his failure arose from a culpable inattention to what he was bound to attend to. That court accordingly decreed in favor of the assignee. Harrell alone appealed.

Harrell, propri a person a, argued his case, orally, and filed a brief of his own, and also one of Mr. A. T. Akerman.

No opposing counsel.

Mr. Justice MILLER delivered the opinion of the court.

title: Harrell v. Beall


text: Talk:Harrell v. Beall

title: Talk:Harrell v. Beall


text:
Harrell v. Beall/Opinion of the Court

The appellant has furnished a brief and an oral argument which have received the attentive consideration of the court. There is no appearance here for the appellee, and this has made us more careful in the examination of the record.

The question is wholly one of the weight of evidence, involving no controverted proposition of law; and the pressure of business on this court will not justify us in reproducing in our opinion the facts on which our judgments rest in such cases. It must suffice to say that we are convinced that the sale to Echols was a barefaced fraud, and that if the appellee did not know it when he purchased of Echols it was because he intentionally shut his eyes to the truth, and that he had such notice and information as made it his duty to inquire further, and that the slightest effort by him in that direction would have discovered the whole fraud.

Such were the views on which the decree below was founded, and it is accordingly

AFFIRMED.

Dissenting, Mr. Justice DAVIS.

title: Harrell v. Beall/Opinion of the Court


text: Talk:Harrell v. Beall/Opinion of the Court


text:
Amoskeag Manufacturing Company v. United States

APPEAL from the Court of Claims.

The Amoskeag Manufacturing Company brought suit in the Court of Claims against the United States on a contract, by which the company had agreed to make and deliver, and the United States had agreed to receive and pay for, all the Lindner carbines, not exceeding six thousand, which the company could make in six months from the 15th day of April, 1863, to be approved and inspected by Major Hagner, and by which for each carbine so inspected and delivered the United States was to pay $20.

Immediately after making this contract, the company entered upon the preparations necessary to the performance of the work; and it was found as a fact by the Court of Claims that the company had the necessary means and facilities, and could have delivered the six thousand carbines of the kind contracted for within the six months limited, in conformity with the agreement as first made, had not changes and alterations been desired and requested by the government.

In regard to these changes, the court found that General Ripley, chief of ordnance, by letter of the date of April 23d, 1863, requested certain alterations to be made in the construction of the carbine; that these were made by the contractors as requested, and that these necessitated other changes to make the parts conform, and also alterations in the machinery, and new tools and fixtures to perform the work. Other changes were made in the construction of the weapon by the contractors, on their own motion, which were important and judicious, and which materially improved it. How much time these changes required did not precisely appear; but it was admitted that they necessarily required two or three months, a part of which resulted from the action of the department, and that the contractors proceeded in good faith and without unnecessary delay.

It was further found that, on or about the 5th of April, 1864, the company exhibited one of the weapons for inspection, and gave notice to the department that the company was then ready to commence delivery, and would deliver the entire six thousand as rapidly as the government could inspect them, and asked that they should be then inspected and received by the department, which was not done then and had not since been done. It was further found that inspection of contract arms was always made at the place of manufacture, and was made of the parts of the arm before they were put together. It was also found that the time consumed by the company in filling the contract beyond the time fixed by its terms, to wit, six months, was rendered necessary and indispensable by the changes, alterations, and delays caused solely by and for the interest of the government; and further that the government was aware of the progress of the work, and gave no notice that it should refuse to accept the work if not delivered within the six months. The arms were inspected by a competent person, and found to be according to contract, and were packed in cases and tendered to the government, which refused to receive or pay for them.

The six thousand carbines were still at the time of this suit, brought March 15th, 1870, in the hands of the company, not having been offered for sale, and on the 21st of March, 1871, when the Court of Claims gave its judgment, were worth, according to the finding of the court, $3 each. Their value or market price at any previous time was not found. The Court of Claims (by an equally divided court) dismissed the petition, and the manufacturing company appealed.

Mr. G. H. Williams, Attorney-General, and Mr. S. F. Phillips, Solicitor-General, in support of that dismissal:

The contract was to take, not a definite number of carbines, but all that could be furnished within six months, whether fifty or five thousand, so that they did not exceed six thousand. In other words, the contract was for the results of the industry of the plaintiff on such carbines, limited to six months, be the results small or large, so that the carbines did not exceed, in number, six thousand.

The slight changes suggested by the United States would not, apparently, either by their direct or indirect effect, have diminished the percentage of those results to any considerable extent. The case, as made out by the company, leaves the court ignorant of that extent. The company mingled the effect upon the time of delivery, of the changes required directly or indirectly by the government, with that of those other improvements added of its own head. This is a sort of voluntary confusion of effects that justified the decree below.

We need not say how very important time is in all matters concerning a flagrant war, or how especially important during the year 1863 of the late war. The variation of a performance under which the government in 1863 might reasonably have expected several thousand arms from time to time within six months, to one in which it was to receive none for a year, was a variation of capital magnitude.

Messrs. C. F. Peck and W. W. McFarland, contra.

Mr. Justice MILLER (having recited much as the reporter has given them, the chief points of the findings of the court below) delivered the opinion of the court.


text: Talk:Amoskeag Manufacturing Company v. United States


text:
Amoskeag Manufacturing Company v. United States/Opinion of the Court

We think that the statement of this case, as it appears in the main points in the findings of the Court of Claims, is the best argument in favor of the claimant that can be made. We cannot believe there would be any hesitation in holding an individual liable who, after making such a contract as was made in this instance, and requesting such alterations for his own benefit, and who, while aware of the increased time necessary, and that the other party was in good faith and with reasonable diligence performing the work, should say, 'I will not receive or pay for the work done, because it was not done within the time first stipulated.'

There is no reason why the parties should not modify the contract by a change in the character of the weapon and time of delivery; and if it was well known to both that the change in the weapon required a longer time, as the court finds it was, it must be implied that both parties consented to such an extension of time as was necessary or reasonable for the completion of the contract.

The reply to this is, that the United States did not contract for six thousand carbines, but only for so many as could be made and delivered within the six months, and that, notwithstanding the change ordered in their construction, as none were delivered within that time, they were not bound to take any afterwards.

But this is a narrow and incomplete view of the contract. It leaves out the claimant's rights in the matter. The claimant had a right under the original contract to deliver six thousand carbines within six months, and have his pay, if he could make so many within that time. He could have made them all within that time, as found by the court, but for his consent to the request of the government to change for its benefit the structure of the weapon. As before stated, this request implied such an extension of time as was known to be necessitated by that improvement, and the government must be bound by this reasonable intendment as an individual would have been. As it is found substantially that the claimant was ready and offered to deliver within a reasonable time, he is entitled to such damages as he sustained by the refusal of the government to receive and pay for the arms.

What are those damages? It is not found that the weapons had at any time a market value or current selling price. It is not found what they were worth or could have been sold for at the time they were offered for delivery and refused. They were not then or at any time sold or offered for sale by the claimant. The only criterion of damage furnished is the finding of the court, that the six thousand carbines are now (at the time of the judgment of the court) in the possession of the company, and of the value of $3 each.

As the case stands, we REVERSE the judgment of the Court of Claims, and remand the case, with directions to render a judgment for the claimant for such damages as they may ascertain that the claimant has sustained by reason of the refusal of the United States to accept and pay for the six thousand carbines.


text: Talk:Amoskeag Manufacturing Company v. United States/Opinion of the Court


text:
Sohn v. Waterson

ERROR to the Circuit Court for the District of Kansas; the case, as appeared by the pleadings, being thus:

In 1854, one Sohn, a citizen of Ohio, obtained a judgment in one of the courts of the State named against a certain Waterson. Soon after this Waterson went to Kansas, and from 1854 became and remained a citizen of that State.

On the 10th of February, 1859, four years or more after the judgment in Ohio was obtained, the legislature of Kansas passed a statute which enacted:

'That all actions founded on any promissory note, bill of exchange, writing obligatory, bond, contract, judgment, decree, or other legal liability, made, executed, rendered, &c., beyond the limits of this Territory, shall be commenced within two years next after the cause or right of such action shall have accrued, and not after.'

This statute being on the statute-book, and Waterson being now, as already mentioned, a citizen of Kansas, Sohn, still a citizen of Ohio, in 1870 sued him in the court below to recover the amount of the judgment which he had obtained against him in Ohio, A.D. 1854.

The defendant pleaded the above-quoted statute of limitations of the State of Kansas, namely, that the action did not accrue within two years next before the commencement of the suit. The plaintiff demurred to this plea, and upon this demurrer judgment was rendered for the defendant.

The court below said:

'As the defendant was a resident of this State when the act of February 10th, 1859, took effect, it is our opinion that the two years' limitation therein provided began to run in favor of the defendant as against the present cause of action from that period, and that this action might have been brought at any time within two years after that act went into operation. Not having been brought within that period it was barred.'

Mr. J. B. Sanborn, for the plaintiff in error:

We must interpret the Kansas statute according to what its words say, and infer, as a purpose, what the legislature of the State has in plain terms indicated to be the intent. Thus interpreted the statute attempts to bar summarily an existing right of action. This is within the constitutional inhibition, that 'no State shall pass a law impairing the obligation of contracts.' A reasonable opportunity must be afforded to parties to try all rights of action existing when such a law passed.

The court below sought to give a semi-prospective operation to the act; but if the act is to be interpreted prospectively at all, it must be interpreted so wholly; and this would have the effect of restricting its application to actions accruing after its passage. Such assuredly was not the purpose of the legislature, if we may judge by what it says. The act was meant to operate generally; and so operating, it cannot, as we have said, be sustained as to rights of action existing when it was passed.

Mr. Thomas Ewing, contra.

Mr. Justice BRADLEY delivered the opinion of the court.

title: Sohn v. Waterson


text: Talk:Sohn v. Waterson

title: Talk:Sohn v. Waterson


text:
Sohn v. Waterson/Opinion of the Court

The plaintiff contends that the statute of Kansas cannot apply to actions which accrued more than two years before its passage, because it would cut them off and defeat them altogether, and would thus impair the obligation of contracts.

A literal interpretation of the statute would have this effect. But it is evident that the legislature could not have had any such intention. The court below held, that as the defendant was a resident of Kansas when the act took effect, the time of limitation began to run in his favor as against the present cause of action from that period; and that the action might have been brought at any time within two years afterwards; and not having been brought within that period it was barred. In other words, the court held that the act was prospective in its operation, and affected existing causes of action only from the time of its passage. This seems to us a reasonable construction and one that prevents the legislative intent from being frustrated. 'Words in a statute,' says Justice Paterson, 'ought not to have a retrospective operation, unless they are so clear, strong, and imperative that no other meaning can be annexed to them, or unless the intention of the legislature cannot be otherwise satisfied.' And this rule is repeated by this court in Harvey v. Tyler, where it is said: 'It is rule of construction that all statutes are to be considered prospective, unless the language is express to the contrary, or there is a necessary implication to that effect.'

The plaintiff contends that the application of this rule to the statute in question would have the effect of restricting its application to actions accruing after the passage of the act. But this is not a necessary conclusion.

A statute of limitations may undoubtedly have effect upon actions which have already accrued as well as upon actions which accrue after its passage. Whether it does so or not will depend upon the language of the act, and the apparent intent of the legislature to be gathered therefrom. When a statute declares generally that no action, or no action of a certain class shall be brought, except within a certain limited time after it shall have accrued, the language of the statute would make it apply to past actions as well as to those arising in the future. But if an action accrued more than the limited time before the statute was passed a literal interpretation of the statute would have the effect of absolutely barring such action at once. It will be presumed that such was not the intent of the legislature. Such an intent would be unconstitutional. To avoid such a result, and to give the statute a construction that will enable it to stand, courts have given it a prospective operation. In doing this, three different modes have been adopted by different courts. One is to make the statute apply only to causes of action arising after its passage. But as this construction leaves all actions existing at the passage of the act, without any limitation at all (which, it is presumed, could not have been intended), another rule adopted is, to construe the statute as applying to such existing actions only as have already run out a portion of the statutory time, but which still have a reasonable time left for prosecution before the statutory time expires-which reasonable time is to be estimated by the court-leaving all other actions accruing prior to the statute unaffected by it. The latter rule does not seem to be founded on any better principle than the former. It still leaves a large class of actions entirely unprovided with any limitation whatever, or, as to them, is unconstitutional, and is a more arbitrary rule than the first. A third construction is that which was adopted by the court below in this case, and which we regard as much more sound than either of the others. It was substantially adopted by this court in the cases of Ross v. Duval and Lewis v. Lewis. In those cases certain statutes of limitation-one in Virginia and the other in Illinois-had originally excepted from their operation non-residents of the State, but this exception had been afterwards repealed; and this court held that the non-resident parties had the full statutory time to bring their actions after the repealing acts were passed, although such actions may have accrued at an earlier period. 'The question is,' says C. J. Taney (speaking in the latter of the cases just cited), 'from what time is this limitation to be calculated? Upon principle, it would seem to be clear, that it must commence when the cause of action is first subjected to the operation of the statute, unless the legislature has otherwise provided.' It is true, that in the subsequent case of Murray v. Gibson, this court followed the decisions of the Supreme Court of Mississippi in its construction of a statute of that State, and held that it applied only to actions accruing after the statute was passed. But that decision was made in express deference to those of the State court, which were regarded as authoritative. In the present case we are not bound by any decisive construction of the State court on this point.

JUDGMENT AFFIRMED.

title: Sohn v. Waterson/Opinion of the Court


text: Talk:Sohn v. Waterson/Opinion of the Court


text:
United States v. Lap Ene

APPEAL from the Court of Claims; the case being thus:

'On the 20th of February, 1862, while the whole State of Louisiana, including the city of New Orleans, was in the possession and under the control of the rebels, Lap ene & Ferr e, a mercantile firm in the said city, sent their travelling clerk from the said city of New Orleans into certain parishes in the interior of the State, to collect moneys due to the firm there, and gave him authority to purchase sugar and cotton for the firm.

'In March or April, 1862, they requested one Avegno, who was then going from New Orleans to the said parishes, to remit to their said clerk the sum of $5000, and to assist the said clerk in the business of buying sugar and cotton. Avegno agreed to do this; and, in pursuance of his agreement, did deliver the said sum to the said clerk, in the said interior parishes, then in the possession and under the control of the rebels.

'While the said clerk and the said Avegno were in the said parishes, on the 27th day of April, 1862, the city of New Orleans was captured by the United States forces, and thenceforth through the whole term of the rebellion was held by those forces.

'After the said capture, the said clerk with the said sum of $5000 and other moneys collected by him in the said parishes, which parishes were, when the purchases were made, in the possession and under the control of the rebels, bought in different lots a quantity of cotton, and left it at the places where it was purchased.

'He returned from those parishes to New Orleans on the 14th of July, 1862. There was no evidence of any communication having been had between him and Lap ene & Ferr e, in relation to the said purchases of cotton, between the capture of New Orleans and his own return to that city, except the aforesaid delivery to him by Avegno of the said $5000.

'The cotton so purchased remained at the points at which it was purchased until April and May, 1863, when it was captured by military forces of the United States and shipped to and received by the Federal authorities at New Orleans.'

Hereupon Lap ene & Ferr e filed a petition in the Court of Claims, claiming the cotton or the proceeds of it as their property; and the Court of Claims decreed that it belonged to them. From this decree the United States took the present appeal.

Mr. S. F. Phillips, Solicitor-General, for the appellant, relied on Griswold v. Waddington, 1 and Montgomery v. United States.

Mr. W. P. Clarke, contra, sought to distinguish the case from the cases mentioned, and relied on United States v. Anderson.

Mr. Justice HUNT delivered the opinion of the court.

title: United States v. Lap Ene


text: Talk:United States v. Lap Ene

title: Talk:United States v. Lap Ene


text:
United States v. Lap Ene/Opinion of the Court

All commercial contracts with the subjects or in the territory of the enemy, whether made directly by one in person, or indirectly through an agent, who is neutral, are illegal and void. This principle is now too well settled to justify discussion. No property passes and no rights are acquired under such contracts.

In March, 1862, the whole of the State of Louisiana was in the limitary possession of the Confederate forces. Intercourse between the inhabitants of the different portions thereof was legal, and contracts made between them were legal.

On the 27th of April, in the same year, the city of New Orleans was captured by the military forces of the United States, and thereafter remained under their control. From that time commercial intercourse between the inhabitants of that city and the inhabitants of other portions of the State of Louisiana which remained under the Confederate rule became illegal. Ordinarily the line of non-intercourse is the boundary line between the territories of contending nations. The recent war in the United States was a civil war, in which portions of the same nation were engaged in hostile strife with each other. The State of Louisiana, although one of the United States, was under the control of the Confederate government and their armies, and was an enemy's country. While the city of New Orleans was under such control it was a portion of an enemy's country. When that city was captured by the forces of the United States, the line of non-intercourse was changed, and traffic before legal became illegal. This line was that of military occupation or control by the forces of the different governments, and not that of State lines. This principle was expressly decided in Montgomery v. United States. There the cotton sold was in the parish of La Fourche, a parish of the State of Louisiana, and belonged to Johnson, an enemy domiciled in an enemy's country, to wit, the parish of La Fourche, in the same State. The sale was made by an agent of Johnson, in the city of New Orleans, to Montgomery, a British subject. This court held the sale to be void and that no title passed to Johnson.

Like that in Montgomery's case, the agency here was created while it was legal to create an agency. In each case, also, existed the important fact that the transaction of purchase took place after the parties became residents of hostile portions of the same State. Burridge was appointed the agent of Johnson in Montgomery's case, as was the agreement in this case made with Avegno, and the money advanced by him, while the parties were all residents of and under the control of the Confederate government. But the cotton was sold by Burridge, as here the cotton was purchased by the clerk after this relation had ceased. In each instance the purchase of the cotton was a transaction with an alien enemy.

The agency to purchase cotton was terminated by the hostile position of the parties. The agency to receive payment of debts due to Lap ene & Co. may well have continued. But Avegno was no debtor to that firm. He advanced money to their agent when it was legal to do so. With this money, and other moneys belonging to them, while in an enemy's country, the agent of the plaintiffs bought the cotton in question. This purchase gave effectual aid to the enemy by furnishing to them the sinews of war. It was forbidden by the soundest principles of public law. The purchaser obtained no title to the cotton, and has no claim against the government for its capture.

JUDGMENT REVERSED.

Dissenting, Mr. Justice MILLER and Mr. Justice FIELD.


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


text:
United States v. Boutwell

ON MOTION. Mr. R. W. Corwine, in behalf of the owners of an order on the Treasury of the United States, had applied to the Supreme Court of the District of Columbia for a mandamus on the Hon. G. S. Boutwell, then Secretary of the Treasury, to pay it. That court refused the mandamus, and the case was brought, on error, by the relators here. After it had got into this court, Mr. Boutwell resigned his place of Secretary and the Hon. W. A. Richardson was appointed to it. Hereupon Mr. Corwine moved for leave to bring in and substitute Mr. Richardson on the record as defendant in the place of Mr. Boutwell. It did not appear that any application had been made to Mr. Richardson as Secretary to pay the draft. Mr. Richardson, by his counsel, opposed the motion.

Messrs. R. M. and Q. Corwine, in support of the motion:

We assume, for the purpose of our argument, that the claim of the relators is a just one, and that the order on the treasury held by them ought to be paid. That in such a case they ought to certainly have the assistance of the courts cannot be denied. But how, practically, can they certainly have it if they cannot have the substitution asked for? and if, on the contrary, the right to any writ has abated by the resignation of Mr. Boutwell? Rarely does any officer of the Cabinet long remain in office. In that department which specially concerns this court, for example, since 1864-that is to say, in nine years-seven attorneys-general have been in and out of these precincts. If a claimant on the treasury must proceed de novo against each successive secretary he will rarely see the end of his suit, for a secretary rarely remains in office for as long a time as in the 'law's delay' a suit is pending. Such a doctrine, therefore, as is contended for on the other side is a practical denial of justice.

But why should such a doctrine prevail? We seek relief not against Mr. Boutwell, but against the Secretary of the Treasury of the United States. Until he comes into place, Mr. Boutwell is as nothing to us, and he is as nothing to us from the moment that he leaves place. The person is nothing; the place or office everything. The obligation on which we rely arises from the acceptance of an office, which has imposed a duty on its incumbent. Why, then, when one secretary departs shall not the new one be substituted for him? The Sapphire, in this court, seems in point. There a libel had been filed by the then Emperor of the French, Napoleon III, against the Sapphire, an American vessel, for injuries done to the French ship Euryale. Before the cause came to be heard Napoleon III was deposed. And one question was whether the suit had not abated. The counsel for the respondents argued that the Euryale was a vessel of the French government, with which Napoleon had 'nothing whatever now to do, being banished and a fugitive.' But this court said:

'The reigning emperor, or national assembly, or other actual person or party in power, is but the agent and representative of the national sovereignty. A change in such representative works no change in the national sovereignty or its rights. The next successor recognized by our government is competent to carry on a suit already commenced, and receive the fruits of it.

'If a substitution of names is necessary or proper, it is a formal matter, and can be made by the court under its general power to preserve due symmetry in its forms of proceeding.'

Mandamus is in the nature of a suit at common law. After institution, its conduct and management are governed by the pleadings and practice which pertain to like suits, whether in the Circuit or in the Supreme Court, on writ of error. All such amendments as can be made in suits at law may be made in suits of mandamus. The strict rules appertaining to the old writ of right, as this writ was once called, have no longer any application in this country. New parties, plaintiff or defendant, may be made upon a proper case. The death of either party does not necessarily abate the suit. Upon a proper case, orders for the substitution of parties will be made as a matter of course.

If this were a proceeding against Mr. Boutwell individually, and he were dead, there could be no question of our right to bring in his representatives under this rule.

Mr. C. H. Hill, contra.

Mr. Justice STRONG delivered the opinion of the court.

title: United States v. Boutwell


text: Talk:United States v. Boutwell

title: Talk:United States v. Boutwell


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

The office of a writ of mandamus is to compel the performance of a duty resting upon the person to whom the writ is sent. That duty may have originated in one way or in another. It may, as is alleged in the present case, have arisen from the acceptance of an office which has imposed the duty upon its incumbent. But no matter out of what facts or relations the duty has grown, what the law regards and what it seeks to enforce by a writ of mandamus, is the personal obligation of the individual to whom it addresses the writ. If he be an officer, and the duty be an official one, still the writ is aimed exclusively against him as a person, and he only can be punished for disobedience. The writ does not reach the office. It cannot be directed to it. It is, therefore, in substance a personal action, and it rests upon the averred and assumed fact that the defendant has neglected or refused to perform a personal duty, to the performance of which by him the relator has a clear right. Hence it is an imperative rule that previous to making application for a writ to command the performance of any particular act, an express and distinct demand or request to perform it must have been made by the relator or prosecutor upon the defendant, and it must appear that he refused to comply with such demand, either in direct terms or by conduct from which a refusal can be conclusively inferred. Thus it is the personal default of the defendant that warrants impetration of the writ, and if a peremptory mandamus be awarded, the costs must fall upon the defendant.

It necessarily follows from this, that on the death or retirement from office of the original defendant, the writ must abate in the absence of any statutory provision to the contrary. When the personal duty exists only so long as the office is held, the court cannot compel the defendant to perform it after his power to perform has ceased. And if a successor in office may be substituted, he may be mulcted in costs for the fault of his predecessor, without any delinquency of his own. Besides, were a demand made upon him, he might discharge the duty and render the interposition of the court unnecessary. At all events, he is not in privity with his predecessor, much less is he his predecessor's personal representative. As might be expected, therefore, we find no case in which such a substitution as is asked for now has ever been allowed in the absence of some statute authorizing it. On the contrary, after the statute of 9th Anne, chapter 20, sec. 1, it was the acknowledged doctrine in England, that the rules and practice as to abatement by death, resignation, or removal from office, were the same in cases of mandamus as in personal actions. By that statute, it was enacted that the prosecutor or relator may plead to or traverse all or any of the material facts averred in the return, the defendant having liberty to reply, take issue, or demur, and it was directed that such further proceedings might be had as might have been had if the prosecutor had brought his action on the case for a false return. Thus mandamus became in effect a personal action against the defendant. This statute was in force in Maryland when the District of Columbia was a part of that State, and hence it is in force in the District now. Therefore, whatever may be the rule elsewhere, here a writ of mandamus must abate whenever the performance by the defendant of the personal duty it seeks to enforce has become impossible.

The law was changed to some extent in England, by the later act of Parliament of 1 William IV, chapter 21, sec. 5, by which it was enacted that in case the return to any writ (of mandamus) within the purview of the act should, in pursuance of an allowance made by it, be expressed to be made on behalf of any other person than the defendant, the further proceedings on such writ should not abate or be discontinued by death, resignation, or removal from office of the person who made such return, but the same might be continued and carried on in the name of such person, and if a peremptory writ should be awarded, it might be directed to any successor of such person in office or right. No similar statute exists with us, and its enactment in England was a recognition of the rule that the death, resignation, or removal from office of the defendant, worked an abatement of the action. It required a statute to change the rule, and to avoid injustice, the costs of the writ, when issued and obeyed, were committed to the discretion of the court.

And, even if the retirement of the defendant from office and his consequent inability to perform the act demanded to be done does not abate the writ, or necessitate its discontinuance, there is still an insuperable difficulty in the way of our directing the substitution asked for. We can exercise only appellate power. We have no original jurisdiction in the case. But any summons issued, or rule upon Mr. Richardson requiring him to become a party to the suit, would be the exercise of original jurisdiction over both a new party and a new cause, for the duty which he would be required to perform would be his own, not that of his predecessor.

MOTION DENIED.

The preceding case, in its principal form, being subsequently reached in the regular call of the docket, the court decided that the suit having abated must be dismissed; Mr. Justice CLIFFORD, who announced this judgment, referring to the opinion just above given, as showing the abatement of the suit by the resignation of Mr. Boutwell and by the appointment of his successor, and referring to that opinion and to the case of The Secretary v. McGarrahan, as all that was necessary to support the conclusion to which the court had come in thus finally disposing of the case.


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


text:
Sawyer v. Hoag

APPEAL from the Circuit Court for the Northern District of Illinois; the case being thus:

About the 1st of April, 1865, and prior, therefore, to the passage of the Bankrupt Act of 1867, the directors of the Lumberman's Insurance Company of Chicago-a company then recently incorporated and authorized to begin business on a capital of $100,000, of which not less than one-tenth should be paid in, the residue to be secured-invited subscriptions to the capital stock of the company; stating, in most instances, to those whom they invited to subscribe, that only 15 per cent. would be required to be paid down in cash, and that the remaining 85 per cent. would be lent back to the subscriber, and a note taken therefor, payable in five years, with 7 per cent. interest, payable semi-annually, secured by collateral security satisfactory to the directors of the company.

In this state of things one Sawyer, about the said 1st of April, 1865, at the solicitation of one of the directors, subscribed for fifty shares of stock. When called upon to close his subscription, he was informed, as indeed all the subscribers were, that the matter would be closed on the plan above mentioned.

Sawyer accordingly complied with the requirements, and gave his check to the company for $5000, the full amount of his stock, and his note payable to it in five years from date, for $4250, that is to say, for 85 per cent. of the par value of the stock, with interest, payable as aforesaid, and delivered to the company as collateral security for the payment of his note satisfactory securities, and received from the company a check for $4250 or 85 per cent. of the par value of the stock, by way of, and as for a loan thereof from the company. At the same time Sawyer gave a written authority to the company to sell the securities at public auction, for cash, in case default should be made in the payment of the note and the interest thereon.

Sawyer subsequently took up this note and gave in substitution therefor another note, and new securities as collateral, with power, as in the case of the former ones, to sell them on default of payment of the note or interest.

At the time when the said original and substituted notes were made, money was worth and could have been lent in Chicago at from 8 to 10 per cent. interest per annum, payable semi-annually, on good security.

The original transaction was regarded and treated by the company and by Sawyer as a loan by the company to him, and his stock was treated as fully paid for. At various times after the giving of the original note, the company reported to the authorities of the State of Illinois and of other States that its capital stock was fully paid.

On the 8th and 9th day of October, A.D. 1871, a great fire devastated the city of Chicago and rendered the Lumberman's Insurance Company insolvent; and on the 25th of January, 1872-it being at that time a notorious fact, one well understood by the public, and one which Sawyer had good reason to believe, that the said company was insolvent and unable to pay its liabilities-Sawyer purchased of a certain Hayes a certificate of an adjusted loss for $5000 against the company for 33 per cent. of its par value.

In June, 1872, after Sawyer had purchased this certificate of adjusted loss, a petition in bankruptcy was filed against the company, and it having been adjudicated a bankrupt, one Hoag was appointed its assignee.

The thirteenth section of the Bankrupt Act enacts 'that after the adjudication in bankruptcy the creditors shall choose one or more assignees of the debtor.' And the fourteenth section, under the marginal head of, 'What is to be vested in the assignee by the adjudication of bankruptcy,' &c., enacts that—

'All the property conveyed by the bankrupt in fraud of his creditors, all rights in equity, choses in action. . . all debts due him or any person for his use, and all liens and securities therefor, and all his rights of action for property or estate. . . and for any cause of action which the bankrupt had against any person. . . with the like right, title, power, and authority to sell, manage, dispose of, sue for and recover the same, as the bankrupt might or could have had if no assignment had been made, shall, in virtue of the adjudication of bankruptcy and the appointment of his assignee, be at once vested in such assignee: and he may sue for and recover the said estate, debts and effects, and may prosecute and defend all suits at law and equity,. . . in the same manner and with the like effect as they might have been prosecuted or defended by such bankrupt.'

The fifteenth section of the act enacts:

'That the assignee shall demand and receive from any and all persons holding the same all the estate assigned or intended to be assigned under the provisions of this act.'

The sixteenth section enacts:

'That the assignee shall have the like remedy to recover all said estate, debts and effects, in his own name, as the debtor might have had if the decree in bankruptcy had not been rendered and no assignment had been made.'

Among the effects of the company, which came into Hoag's hands as assignee, was the already-mentioned note of Sawyer for $4250, with the securities assigned as collateral. Hoag demanding of Sawyer payment of this note, Sawyer produced his certificate of adjusted loss for $5000 and insisted on setting it off against the demand; asserting a right to do this under the twentieth section of the Bankrupt Act, a section in these words:

'In all cases of mutual debts or mutual credits between the parties, the account between them shall be stated, and one debt set off against the other, and the balance only shall be allowed or paid, but no set-off shall be allowed of a claim in its nature not provable against the estate:

'Provided, That no set-off shall be allowed in favor of any debtor to the bankrupt of a claim purchased by or transferred to him after the filing of the petition.'

Hoag refused to allow the set-off, and was about to sell the collateral securities in accordance with the power given to him. Hereupon Sawyer filed a bill in the court below to enforce the set-off; in which he alleged, among other things, that the note given by him to the insurance company was for money lent to him.

The assignee, in his answer, denied that the note was for money lent, and averred that it was in fact for a balance due by Sawyer for his stock subscription, which had never been paid, and insisted that such balances constituted a trust fund for the benefit of all creditors of the insolvent corporation, which could not be made the subject of a set-off against an ordinary debt due by the company to one of its creditors. After the general replication, the case was submitted to the court below on an agreed statement of facts. That court decreed against the complainant, and from that decree the case was brought by the present appeal to this court.

Messrs. D. L. Storey and C. Hitchcock, for the appellant:

1. Sawyer had a right to purchase an adjusted and negotiable claim against the insurance company at a discount, and to set it off against his debt, notwithstanding that he knew that the company was insolvent at the time he purchased the claim.

Under the twentieth section of the Bankrupt Act, in cases of mutual debts or credits between the parties, an account is to be stated and the balance is to be allowed or paid. Two conditions only are required: 1st. That the claim to be set-off shall be in its nature provable against the estate. 2d. That such claim shall have been purchased by or transferred to the debtor before the filing of the petition. Sawyer was within both conditions. The claim was a provable claim, and it was purchased and transferred to the debtor nearly five months before the filing of the petition in bankruptcy.

2. The assignee in bankruptcy has no greater or other right than the bankrupt would have had if there had been no proceedings in bankruptcy.

Under the fourteenth section of the Bankrupt Act rights of action of the bankrupt vest in the assignee, who may prosecute the same, 'in the same manner and with like effect' as they might have been prosecuted by the bankrupt. Hoag as assignee was the representative of the insurance company, and can assert no right which it could not have asserted.

'I have always understood,' said Lord Eldon, 'that the assignment from the commissioners, like any other assignment, by operation of law, passed the rights of the bankrupt precisely in the same plight and condition as he possessed them.'

Sawyer has held his claim under the certificate of loss since the 25th of January, 1872. We have seen that if the insurance company had sued him on the note it held against him, at any time prior to the filing of the petition in bankruptcy, June 20th, 1872, his defence in set-off would have been perfect, whether sued in a court of law or a court of equity. It is impossible to conceive, on the case stated, any defence which the company could have interposed. If it is argued that the assignee has some other and higher right than the bankrupt would have had, it is incumbent on those who thus argue to show upon what statute, upon what authority, or upon what legal principle the distinction in favor of the assignee is supported.

Mr. J. N. Jewett, contra, for the appellee:

1. By the insolvency of the company its obligations were worth only thirty-three cents upon the dollar, and at this rate the claim sought to be set off was purchased by the appellant. If it is allowed to be set off in full he pays his own debt of $4250 with $1402.50. The insolvency, therefore, of his creditor lessens the assets to go to the general creditors by $4250, at a cost to him of less than one-third of the amount due upon his note. Surely a construction will not be given to the Bankrupt law resulting in such injustice and inequality to the creditors. It would make the Bankrupt law an instrument of fraud, instead of equal justice to all, and subvert the fundamental principles of its enactment. It must also be observed that this advantage over the other creditors would, in this case, result to a stockholder, and upon an obligation given in fact or effect, for his subscription for stock in the corporation. If the right of set-off as contended for by the appellant is sustained, then the directors and stockholders of an incorporated company may, in anticipation of insolvency and bankruptcy, borrow the whole or a large part of the cash assets of the company, proclaim its insolvency, depreciate its credits, and buy them up at a discount, and thus absorb the capital of the company to the exclusion of the general creditors. Justice would require that if losses are to be sustained, the stockholders, who have received the profits, should be the losers rather than the general creditors. At all events, they should not be allowed to become preferred creditors to the detriment of general creditors.

We submit, as a matter for inquiry, whether after insolvency a mutual debt or credit can be created between the insolvent and a third person, within the meaning of the Bankrupt law, by a purchase of a claim against the insolvent without his knowledge or assent? Certainly mutual debts and credits must result from mutual and reciprocal dealings one with the other. How, then, can the purchase of a demand against a party, without his knowledge or consent, be held a mutual debt?

2. It is not true that the relative rights of parties are not changed by the bankrupt proceedings against one of them. They are changed by both insolvency and bankruptcy. The Bankrupt law makes any payment, sale, assignment, transfer, conveyance, or other disposition of property, by any person insolvent to any person who has reasonable cause to believe such person insolvent, within six months before the filing of a petition in bankruptcy, void, and the assignee may recover the property or value of the assets; or if such sale, assignment, & c., were not made in the usual course of business, the fact is prim a facie evidence of fraud. Such a transfer, but for the bankruptcy, could not be set aside or divested of its legal effect at the option of the party making it. If the claim set up by the appellant, however, was obtained in a manner and under circumstances within the spirit of the prohibition of the Bankrupt law, or subversive of its intent, the assignee may deny the right of set-off, which could not be done as against the debtor himself.

3. A set-off cannot be allowed in this case:

1st. Because the appellant was a stockholder in the Lumberman's Insurance Company at the time he purchased the claim against it.

2d. Because his note was given in part payment towards his stock subscription.

A stockholder sustains to the company in which he holds stock a relation which one who is not a stockholder does not hold; a different relation. The stockholder has the means of acquiring a knowledge of the company's affairs and condition not possessed by the other; a direct interest in its profits and losses; and stands in such a relation to the company and its other creditors, as ought to debar him, at all events, of the right to pay off his debt to the company by the purchase and set-off of depreciated claims against it to the injury of other creditors. The note on which the assignee here claims payment is, in substance and effect, a stock note given for and existing as a part of the stock fund for the security of parites dealing with the company.

That the stock and assets of an incorporated company are a trust fund, for the security of its creditors, which may be followed by them into the hands of any person having notice of the trust, is an established principle, and is fully discussed and declared in many cases.

No devices will be permitted, no shift allowed, however artfully planned and executed, to avoid the actual and bon a fide payment of the stock of an incorporated company, for the creation of a fund for the security of those dealing with it. And the question, therefore, is whether this transaction was such an actual bon a fide payment of his stock in full as divests the note given by the appellant of the character of a stock note, legally or equitably liable to be treated as security for the obligations of the company?

The transaction was consummated in conformity with the terms proposed when the subscription was made. Though he was required to and did give his check for the full amount of the stock, it was with the understanding that 85 per cent. of what he paid would be returned to him on the terms upon which his subscription was originally procured. The giving of a check in the first instance, for the whole amount, was but a contrivance to disguise the real transaction and its intent. It was the payment in of money with one hand and taking it out with the other. it was no absolute, unconditional payment, and was never designed to be so as to 85 per cent. These companies, when the stock is actually paid up, and they are honestly administered, are sufficiently insecure without the sanction of devices by which the fund required by the law to be created and set apart as security to those dealing with them, can be wholly retained by the stockholders or passed back into their hands.

It is no answer to say that in this case the securities pledged for the payment of the note were ample. To allow it in any case would be opening a door for the evasion of payment of the stock, which dishonest men would be ready to take advantage of by the pledge in similar cases of worthless securities.

4. It is assumed that because the original transaction was regarded and treated by the company and the complainant as a loan to the latter, and his stock treated and regarded as paid, therefore neither the assignee nor any creditor can controvert the fact. But because it was so treated by the parties does not make it so as to third persons, assignee or creditors. When they dispute the bona fides of the loan courts will look into the facts and determine whether it was a real or a colorable loan.

The fact that the company reported to the State authorities the full payment of the stock, goes for nothing more than that it was able to deceive the State officers as well as the public into the belief that the stock was fully paid, when the stockholders had only paid in the money with one hand and taken it out with the other, and had done so in pursuance of a previous concurrent agreement.

Mr. Justice MILLER delivered the opinion of the court.

title: Sawyer v. Hoag


text: Talk:Sawyer v. Hoag

title: Talk:Sawyer v. Hoag