text:
Sturgis v. Boyer

THIS was an appeal from the Circuit Court of the United States for the southern district of New York.

It was a case of collision in the East river, at the southern extremity of New York, between the ship Wisconsin, propelled by the steam-tug Hector, on the one hand, and the Republic on the other. The narrative of the case is given in the opinion of the court.

The District Court condemned the ship and tug both, the claimants of which appealed to the Circuit Court by separate appeals.

The Circuit Court affirmed the decree of the District Court against the tug, to the amount of $2,364.74, with costs, but dismissed the libel with costs as against the ship.

The claimant of the tug appealed to this court, and the libellants appealed from the decree so far as related to the ship, which they wished to hold responsible as well as the tug. Both cases were argued together, and the opinion of the court covered both.

It was argued by Mr. C. A. Seward for the tug, Mr. Williams for the Wisconsin, and Mr. Bendict for the Republic. It was a triangular war. Mr. Seward contended that the Republic was in fault, but if not so, then the Wisconsin ought to be responsible, and not the tug; Mr. Williams contended that the Wisconsin ought in no manner to be blamed, but if there was fault upon that side, it was altogether owing to the tug; whilst Mr. Benedict was chiefly desirous to attach blame to the Wisconsin, as being the most responsible party. One or two of the points made by the respective counsel will be given.

Mr. Seward contended—

I. There is no sufficient evidence to charge the tug. The lighter might have avoided the collision. She saw the ship long before the collision-long enough to avoid her, and should have done so. But if not, then the ship alone, and not the tug, was responsible for the collision.

H. The ship was under the direction of her owners at the time. Next under them was their regular mate, who was on board, and had the general charge of moving the ship. To aid him, they sent on board Captain Ostrom, to take charge of the ship, and ten or fifteen men to man the ship, of whom he had charge, to do the labor, to unmoor the ship, and make her fast to the tug, steer her, and then to pull and haul to make her fast at her berth at Dover street. The owners sent the tug to do the labor of pulling and hauling in the river, there being a strong flood tide, and no wind. The captain of the tug had charge of the ship, so far as transporting her in the river. These were the three classes of servants of the owners, co-operating in moving the ship-all of them in charge for certain purposes. Of all of them, only one, the tug, is free from blame for negligence; against her there is not an allegation of blame from any quarter.

III. The mate of the ship was on board as acting master to move her, and ten or fifteen men were in the service of the ship 'had enough men on board to move the vessel.' The captain of the tug had charge of the ship only so far as transporting her in the river was concerned. The mate says: 'I was at work getting lines out, and ready to come alongside the dock. I had a boss stevedore on board. He was sent aboard to take charge of the ship; his name was William Ostrom. The captain of the ship was never on board when I moved the ship. I have often moved the ship without him.' It was his duty as mate, acting as master, to see that good watch and look-out was kept.

Actually on board the Wisconsin were the mate, Sinclair, Captains, Ostrom, Phillips, and Brower, and ten or fifteen men. None of them belonged to the tug except Brower. He was there aft, that he might easily communicate with the ship and tug. The mate gave no proper attention; he was forward, getting lines out. The most of the men were busy with him. Captain Ostrom was on the quarter-deck, giving no proper attention to his duty, though giving orders. The ship's man was at the wheel, but he is not produced as a witness. No one saw the lighter, coming as she was, with sails up, in full sight, at high noon, till it was too late. The mate saw her first, when she was but a short distance off, and her captain was swinging his hat and singing out. The mate first gave the alarm, when neither the lighter nor the tug could do anything to avoid the collision, as he himself says, for it was after the ship had sheered into her berth, and the tug had stopped her engine.

VII. The tug was not in fault; no negligence or mismanagement is alleged against her by any party or witness in the pleadings or proofs, and there should be no recovery against her for the collision, and her little fee for hauling the ship does not make her an insurer for the benefit of third parties. If, by reason of her being lashed to the ship, a decree must go against both, then, as they have answered and stipulated separately, the decree should be against the ship and her stipulators first, and contingently only against the tug and her stipulators.

If there can be decree against one alone, then the decree of the Circuit Court should be wholly reversed, and Wisconsin condemned, and the Hector discharged.

Mr. Williams, for the Wisconsin, made the following points:

I. In no view of the case can the ship be made responsible, or her owners liable, for the damages sustained by the lighter.

Sproul v. Hemmingway, 14 Pick. Reps., 71.

The Express, 1 Blatchford's Reps., 365.

1. She was lashed firmly to the side of the tug, and under the exclusive command and direction of the captain and officers of the tug. Neither the owners of the ship, nor any of their servants, nor yet her captain, nor any of her crew, had any power over or control of the ship. She was exclusively and immediately in the power of the tug, which was under the exclusive charge, control, and sole direction, of her master. Any act of the master or crew of the ship, had they all been on board and in full command, could not, in the least, have affected the course, speed, or movement of the ship, unless, indeed, the captain of the tug should first have been displaced, and the captain of the ship had been appointed in his place-an act that could have been done only by the owners of the tug, with the consent of the captain of the ship-a position which may have been illy adapted to his capacity.

II. To make the owners liable for such a collision would be to establish an entirely new principle of law.

1. It would not be an application of the principle, respondeas superior, for in no sense can the captain and crew of the tug be said to have been the agents or servants of the owners of the ship. They were in no sense under the control of, or subject to the orders of, the owners of the ship. But, on the other hand, they were the servants and agents, strictly the employees, of the owners of the tug, and owed obedience, and were amenable to on one else in the discharge of their duties.

If the owners of the ship could be liable for the misfeasance or malfeasance of the captain or crew of the tug, it would follow that the owners of the ship should have the right to appoint and remove the captain and crew of the tug-a doctrine that would not be contended for; not only that, but it must be established that they were appointed by, and held their respective offices from, the owners of the ship.

Laugher v. Pointer, 5 B. and C., 553, 554.

Milligan v. Wedge, 12 A. and E., 737.

Lucey v. Ingram, 6 M. and W., 302.

McIntosh v. Slade, 6 B. and C., 657.

Nicholson v. Mouncey, 15 East., 384.

Lane v. Cotton, 1 Salk., 17; 15 Mod., 472; 15 East., 392; Cowp., 754.

Rapson v. Cabitt, 9 M. and W., 710; 6 Moor, 47; 2 D. and R., 33.

Quarman v. Burnett, 6 M. and W., 509, 510, per Park, B.; 9 M. and W., 713; 6 Esp. N. P. C., 6; 5 B. and C., 559, 560; 4 M. and S., 29.

Randleson v. Murray, 8 A. and E., 109.

Storm v. Cartwright, 6 Term, 411; 3 Camp., 403; 5 B. and C., 554, per Littledale, J.; 5 M. and W., 414; 8 A. and E., 835.

title: Sturgis v. Boyer


text: Talk:Sturgis v. Boyer

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

title: Talk:Sturgis v. Boyer


text:
Sturgis v. Boyer/Opinion of the Court

Fletcher v. Braddick, 2 N. R., 182; recognised, 5 B. and C., 556; 7 Bing., 190; 4 M. and S., 288; 8 A. and E., 842, 843.

Broom's Legal Maxims, 386, 387, 388, 389, and cases there cited.

Story on Agency, secs. 453 a, 453 b, 453 c.

It is not easy to see why the owners of the ship should be any more liable than the owners of the cargo. The cargo, if heavy, contributes to the force of the blow given by the colliding vessel, which additional force may have occasioned the one vessle to be cut down and sunk, rather than the other.

Take the case of a cargo of timber, a part of which projects over the sides of the vessel, and is the very thing which gives the blow that does the injury. How could the liability of the owner of such timber be distinguished in principle, on the one hand, from the liability of the owners of flour stowed on the hold; or, on the other hand, from the liability of the owner of a ship lashed fast to the side of the colliding vessel?

Sproul v. Hemmingway, 14 Pack. Reps., 71.

Fletcher v. Benedict, 5 Bos. and Pul., 182.

Mr. Benedict, for the libellants, directed the first part of his argument to show that somebody must pay, and then proceeded to argue that the ship was responsible, as well as the tug.

9. The ship is clearly responsible to the libellants for this collision; they should not be deprived of her responsibility, and compelled to resort to the tug alone.

The enterprise was the enterprise of the ship. The owner of the Wisconsin was the dux facti. He was sending her from Corlaer's Hook, foot of Grand street, to Dover street, for the purpose of mooring her alongside the ship William Rathbone, to discharge a cargo and take in another. She had on board 'the mate, helmsman, and a full complement of mariners.' There was no wind, and an adverse tide. She needed a propelling power, and she procured a tug to assist her, not to command her, or her officers, or men. All was the proper business of the ship.

10. The owner of the ship furnished the tug, and sent her to the ship, for the purpose of 'assisting to move her.' The mate was acting master, and Captain Ostrom and mariners were on board for the general purpose of 'moving the ship.' 'Ostrom was sent aboard to take charge of the ship.' They were all of them, including the tug, servants of the owners of the ship, each, in his own way, acting in such service in the line of his duty. They were all agents of the ship, acting in the course of their agency. If any of them were negligent, it was the negligence of the ship.

11. The captain of the tug was on board the ship; and, if he was master of the ship pro hac vice, he was appointed by the owners. For the purpose of getting under way, and moving, and mooring at the end, and steering her, and keeping a look out, Captain Ostrom had charge, and the mate had charge as master. The ship must be steered by her own helm, except that in cases of difficulty the helm of the tug must be used to assist; it is too small to control. The look-out must be on board the ship, because the ship was ahead. The tug was small, and did not reach the ship's bows, within one-third of the ship's length. The tug was behind, at one side, and down below, so that she could not look out.

'The ship was 830 tons; was one-third ahead of tug; the rudder of the ship is used to steer the tow; the rudder of the tug is always midship, unless, in case of emergency, to make a short turn, when rudder of tug is also used; I had a boss stevedore on board; he was sent on board to take charge of the ship; his name was William Ostrom.'

12. The tug was on board the ship. She was firmly fastened to her, alongside, and was, for the time being, a part of her, as much as the machinery and side paddle-wheels of the tug were on board or a part of the tug. They were all fastened on the outside of the hull, to act as motive power.

13. The ship was the actual cause of the injury. The tug did not touch or injure the lighter; the ship alone struck her. The actual collision was out of sight and out of reach of the tug.

The negligence of the ship, and of those on board, and in charge of her, caused the collision; they did not see the lighter because they had no look-out who was careful or efficient.

'On the ship were the mate, Sinclair, three captains-Ostrom, Phillips, Brower-and ten or fifteen men; all but Brower belonged on the ship. The mate gave no attention. He was getting lines out. The most of the men were busy with him; the three captains were together on the quarter-dock. The ship's man at the wheel is not produced as a witness. No one saw the lighter till it was too late. The mate saw her first; her captain swinging his hat, and singing out. The mate first gave the alarm, when the lighter could do nothing to avoid the collision.'

14. At the time of the accident the tug was still. She was shut off at Catharine ferry; her function had ceased. The ship's company were sagging her into her berth before they saw the lighter. The ship was going by her own momentum. While the tug was propelling her, she went four or five knots an hour; at the time of the collision, much less.

15. When a ship is sent through a crowded public harbor, her owners are bound to provide her with all the necessary means, implements, and agencies, of the most skillful, reliable, and trustworthy character, for the safety of other vessels; and, if any of them fail, and thereby another is injured, the ship herself is responsible; and if, instead of owning, they hire anchors or sails which are insufficient, or boats to haul, or persons to navigate her who were unskillful or negligent, the law does not excuse the ship, and turn the injured party over to the broken anchor, the old suit of sails, or the irresponsible mariners, or the badly-managed boat.

Mr. Justice CLIFFORD delivered the opinion of the court.

This is an appeal in admiralty from a decree of the Circuit Court of the United States for the southern district of New York, in a cause of collision, civil and maritime. It was a proceeding in rem against the ship Wisconsin and the steam-tug Hector, and was instituted in the District Court on the twenty-sixth day of October, 1855, by the owners of the lighter Republic. They allege in the libel, that the ligher, on the fifteenth day of October, 1855, started from pier six, in East river, in the port of New York, laden with flour, which was in their possession as common carricers, to proceed up the river to the foot of Dover street, in the same port; that she had a competent crew on board, but that the wind being light, she was propelled exclusively by oars, and was moving through the water only at the rate of a mile an hour; that when she arrived at a point nearly opposite the place of her destination, she was headed towards the pier or wharf for which she started, and while in that position, that the ship Wisconsin, in tow of the steamboat Hector, and lashed to the starboard side of the tug, came down the river, and was so negligently managed that the flying jib-boom of the ship struck the lighter and capsized her, causing her cargo to roll into the water, and damaging the flour and the lighter to the amount of two thousand and one hundred dollars. Negligence, want of care and skill on the part of those in charge of the tow, are alleged to have been the cause of the collision; and the libellants also allege that the ship and steam tug were incompetently manned; that they had no proper look-out, and that those in charge of them disregarded the warnings of the lighter, and did not in due time stop and back the engine of the tug, or shear the tow so as to avoid the lighter, as they were bound to have done. Process was issued against the ship and the tug, and the claimants of the respective vessels subsequently appeared, and filed separate answers to the several allegations of the libel. Both answers affirm that the collision was occasioned through the fault of those in charge of the lighter, but in most other respects they are essentially variant. On the part of the steam tug, it is alleged that she was employed by the owners of the ship to tow her from the foot of Water street to the pier at the foot of Dover street; and that the tug was merely the motive power to move the ship to the pier, and that the tug and her crew were subject to, and obeyed the orders of, the master and other officers in charge of the ship. Wherefore, the claimant prays that, in case the libellants recover any sum against the ship and tug, he may have a decree against the ship and her owners for such proportion of the same as he may be made liable to pay. But the claimants of the ship allege that she was in the charge and under the control and management of the master and crew of the steam tug. They admit in the answer that her mate, helmsman, and a full complement of mariners, were on board, but aver that they were all under the direction and control of the master and officers of the steam tug to which she was lashed. Testimony was taken on both sides, and after a full hearing in the District Court, a decree was entered in favor of the libellants against the ship and the steam tug. From that decree the claimants of each of those vessels appealed to the Circuit Court, and the cause was there again heard upon the same testimony. After the hearing, the Circuit Court affirmed the decree of the District Court against the tug, but dismissed the libel with costs as against the ship. Whereupon the claimants of the tug appealed to this court, and the libellants also appealed from so much of the decree as pronounced the ship not liable.

At the argument in this court, it was conceded that the flying jib-boom of the ship struck the peak halyards of the lighter, and capsized her, causing the cargo, which consisted of flour in barrels, to roll into the water, and no question was made that the damages had not been correctly estimated. According to the testimony in the case, the lighter was bound up the river, and she was propelled exclusively by oars or sweeps. Her course was on the northern side of the stream, some two hundred yards from the shore. She was moving about a mile an hour, and the collision occurred at midday, and in fair weather. As alleged in the pleadings, the ship was bound down the river, and she was securely lashed, in the usual manner, to the starboard side of the steam tug. Neither the ship nor tug had any proper look-out, and it clearly appears that those in charge of them did not see the lighter till it was too late to adopt the necessary precautions to prevent a collision. Their course down the river was about the same distance from the northern shore as that of the lighter, and both vessels were propelled by the steam-power of the tug. They were bound to a point, alongside of another ship, lying at the end of pier twenty-seven, and the lighter was bound to pier twenty-eight, a short distance up the river. None of these facts are disputed, and the the testimony clearly shows that the lighter first changed her course, and headed towards the pier to which she was bound. When the lighter changed her course, and headed for the pier, the ship was so far distant that, if she had kept her course, the lighter would have passed to the pier in safety. Nothing appearing in the river to obstruct the view, those in charge of the lighter had a right to assume that she was seen by those navigating the approaching vessels, and that they wold hold their course or keep out of the way. Propelled as they were by steam-power, those in charge of them could readily govern their course and control their movement. More difficulty, however, would have attended any such effort on the part of the lighter. It was then about slack high-water, the current still running up a little out in the stream; but the tide had commenced to ebb close in shore, so that the flour, after it rolled into the water, floated down the river. Until the lighter turned towards the pier, she had been aided in her course by the current; but, when she changed her course, and headed towards the pier, she was rather impeded than benefited by the tide. Those in charge of her saw the ship and tug approaching, and hailed those on board, apprising them of the danger of a collision. There were three men belonging to the lighter; two were forward at the oars, and one was aft, and it does not appear that they omitted anything in their power to do to avoid the disaster. On the other hand, it does appear that the descending vessels were without any look-out, and that those in charge of them did not see the lighter in season to adopt the necessary precautions to prevent the collision. Beyond question, it was the mate of the ship who first saw the lighter, and he admits that she was then heading square into the ship, and was using two oars. He had no charge of the ship, and it does not appear that he, in any manner, interfered with her navigation from the time she left her mooring until she reached her place of destination. When the hail was given from the lighter, he was employed in getting the lines ready to send ashore, as soon as the ship should arrive at the proper place. All of the orders were given by the master of the tug, which had been employed by the owners of the ship to transport her from her moorings to pier twenty-seven, for the purpose of discharging what merchandise she had on board, and taking in another cargo. They had also employed a head stevedore to discharge her cargo, and reload her; and, in point of fact, all the men on board, except the mate, were the hands in the employment of the principal stevedore, not one of whom belonged to the crew of the ship. Her master was not on board, and, contrary to the allegation of the answer, the testimony shows that she was without a crew. One of the stevedores was at the wheel of the ship, but both vessels were exclusively under the command and direction of the master of the tug. Prior to the collision, and when the pilot of the tug gave the signal to slow, the master of the tug left his own vessel and went on to the ship, and all the subsequent orders were given by him, while standing on the quarter-deck of the latter vessel. 'My attention,' says the mate of ship, 'was first called to the lighter by a hail from one of her men.' He was the first person on the descending vessels who saw the lighter, and he at once gave notice to the master of the tug. They were then so near, that the mate says he anticipated a collision, and, considering the headway of the ship, he was unable to see how it could be avoided. True it is, the master of the tug testifies that the ship had no headway at the time of the collision, but the weight of the testimony is greatly otherwise. No doubt is entertained that he gave the orders to stop and back before the collision occurred, but the circumstances clearly show that those orders were too late to have the desired effect.

Looking at all the facts and circumstances in the case, we think the libellants are clearly entitled to a decree in their favor; and the only remaining question of any importance is, whether the ship and the steam-tug are both liable for the consequences of the collision; or if not, which if the two ought to be held responsible for the damage sustained by the libellants. Cases arise, undoubtedly, when both the tow and the tug are jointly liable for the consequences of a collision; as when those in charge of the respective vessels jointly participate in their control and management, and the master or crew of both vessels are either deficient in skill, omit to take due care, or are guilty of negligence in their navigation. Other cases may well be imagined when the tow alone would be responsible; as when the tug is employed by the master or owners of the tow as the mere motive power to propel their vessels from one point to another, and both vessels are exclusively under the control, direction, and management, of the master and crew of the tow. Fault in that state of the case cannot be imputed to the tug, provided she was properly equipped and seaworthy for the business in which she was engaged; and if she was the property of third persons, her owners cannot be held responsible for the want of skill, negligence, or mismanagement of the master and crew of the other vessel, for the reason that they are not the agents of the owners of the tug, and her owners in the case supposed do not sustain towards those intrusted with the navigation of the vessel the relation of the principal. But whenever the tug, under the charge of her own master and crew, and in the usual and ordinary course of such an employment, undertakes to transport another vessel, which, for the time being, has neither her master nor crew on board, from one point to another, over waters where such accessory motive power is necessary or usually employed, she must be held responsible for the proper navigation of both vessels; and third persons suffering damage through the fault of those in charge of the vessels must, under such circumstances, look to the tug, her master or owners, for the recompense which they are entitled to claim for any injuries that vessels or cargo may receive by such means. Assuming that the tug is a suitable vessel, properly manned and equipped for the undertaking, so that no degree of negligence can attach to the owners of the tow, on the ground that the motive power employed by them was in an unseaworthy condition, and the tow, under the circumstances supposed, is no more responsible for the consequences of a collision than so much freight; and it is not perceived that it can make any difference in that behalf, that a part, or even the whole of the officers and crew of the tow are on board, provided it clearly appears that the tug was a seaworthy vessel, properly manned and equipped for the enterprise, and from the nature of the undertaking, and the usual course of conducting it, the master and crew of the tow were not expected to participate in the navigation of the vessel, and were not guilty of any negligence or omission of duty by refraining from such participation. Vessels engaged in commerce are held liable for damage occasioned by collision, on account of the complicity, direct or indirect, of their owners, or the negligence, want of care, or skill, on the part of those employed in their navigation. Owners appoint the master and employ the crew, and consequently are held responsible for their conduct in the management of the vessel. Whenever, therefore, a culpable fault is committed, whereby a collision ensues, that fault is imputed to the owners, and the vessel is just as much liable for the consequences as if it had been committed by the owner himself. No such consequences follow, however, when the person committing the fault does not, in fact, or by implication of law, stand in the relation of agent to the owners. Unless the owner and the person or persons in charge of the vessel in some way sustain towards each other the relation of principal and agent, the injured party cannot have his remedy against the colliding vessel. By employing a tug to transport their vessel from one point to another, the owners of the tow do not necessarily constitute the master and crew of the tug their agents in performing the service. They neither appoint the master of the tug, or ship the crew; nor can they displace either the one or the other. Their contract for the service, even though it was negotiated with the master, is, in legal contemplation, made with the owners of the vessel, and the master of the tug, notwithstanding the contract was negotiated with him, continues to be the agent of the owners of his own vessel, and they are responsible for his acts in her navigation. Sproul v. Hemmingway, 14 Pick., 1; 1 Pars. Mar. L., 208. The Brig James Gray v. the John Frazer et al., 21 How., 184.

Very nice questions may, and often do arise, says Judge Story, as to the person who, in the sense of the rule, is to be deemed the principal or employer in particular cases. Story on Agency, see. 443 a, p. 557. Where the owner of a carriage hired of a stable-keeper a pair of horses for a day, furnishing his own carriage, and the stable-keeper provided the driver, through whose negligent driving an injury was done to the horse of a third person, the judges of the King's Bench were equally divided upon the question, whether the owner of the carriage or the owner of the horses was liable for the injury. Laugher v. Pointer, 5 Barn. and Cress., 547. But the better opinion maintained by the more recent authorities is, that the driver should be regarded as the servant of the stable-keeper, and inasmuch as he could not at the same time be properly deemed the servant of both parties, that the stable-keeper, and not the temporary hirer, was responsible for his negligence. Upon the like ground, says the same commentator, the hirer of a wherry, to go from one place to another, would not be responsible for the waterman; nor the owner of a ship, chartered for a voyage on the ocean, for the misconduct of the crew employed by the charterer, provided the terms of the charter party were such as constituted the charterer the owner for the voyage. Quarman v. Burnett, 6 Mee. and Wels., 499; Randleson v. Murray, 8 Adol. and Ellis, 109; Milligan v. Wedge, 12 Adol. and Ellis, 737; The Express, 1 Blatch. C. C., 365. Whether the party charged ought to be held liable, is made to depend in all cases of this description upon his relation to the wrong-doer. If the wrongful act was done by himself, or was occasioned by his negligence, of course he is liable; and he is equally so, if it was done by one towards whom he bore the relation of principal; but liability ceases where the relation itself entirely ceases to exist, unless the wrongful act was performed or occasioned by the party charged. It was upon this principle that the ship was held not liable in the case of the John Frazer, 21 How., 194. In that case, this court said, the mere fact that one vessel strikes and damages another does not, of itself, make her liable for the injury, but the collision must, in some degree, be occasioned by her fault. A vessel properly secured may, by the violence of a storm, be driven from her moorings and forced against another vessel, in spite of her efforts to avoid it, and yet she certainly would not be liable for damages which it was not in her power to prevent. So, also, ships at sea, from storms or darkness of the weather, may come in collision with one another without fault on either side, and in that case each must bear its own loss, although one is much more damaged than the other. Stainback et al. v. Rae et al., 14 How., 532. Applying these principles to the present case, it is obvious what the result must be. Without repeating the testimony, it will be sufficient to say, that it clearly appears in this case that those in charge of the steam tug had the exclusive control, direction, and management, of both vessels, and there is not a word of proof in the record, either that the tug was not a suitable vessel to perform the service for which she was employed, or that any one belonging to the ship either participated in the navigation, or was guilty of any degree of negligence whatever in the premises.

Counsel on both sides stated, at the argument, that they were prepared to discuss a question of jurisdiction supposed to be involved in the record; but upon its being suggested by the court that the question was not raised either by the evidence, or in the pleadings, the point was abandoned. In view of the whole case, we think the decision of the Circuit Court was correct, and the decree is accordingly affirmed, with costs.

title: Sturgis v. Boyer/Opinion of the Court


text: Talk:Sturgis v. Boyer/Opinion of the Court


text:
Palmer v. United States

THIS was an appeal from the District Court of the United States for the northern district of California.

The case is stated in the opinion of the court.

It was argued by Mr. Benjamin for the appellants, and by Mr. Black (Attorney General) for the United States.

The arguments consisted of comments upon the evidence in the case, which would not be interesting to the profession generally.

Mr. Justice GRIER delivered the opinion of the court.

title: Palmer v. United States


text: Talk:Palmer v. United States

title: Talk:Palmer v. United States


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

The appellants claim the land in dispute as assigness of Benito Diaz. This claim was rejected by the board of land commissioners, and also by the District Court.

The documentary evidence, upon which the case rests, is as follows:

1. A petition of Benito Diaz, dated April 3, 1845, in which he asks for a grant of land which he calls 'a vacant place within the jurisdiction of San Francisco, known by the name of 'Punta de Lobos,' bounded on the north by the sea, which flows to the port of San Francisco; on the south with the Cerro, in the rear of the mission known by the name of the 'Cerro de Laguna Honda;' on the east with the 'Loma Alta;' and on the west by 'la Punta de Lobos;' which will comprehend two leagues.' The petition adds that the presidio and castle are within the tract, but the petitioner does not ask for them unless the Government is willing; but if that be done, he promises to erect a house of certain dimensions in the port of San Francisco for the military command.

2. An order of reference, bearing date May 24, 1845, and signed Pico, ordering the petition to pass for information to the respective judge, and await the report of the military commander upon the matter.

3. A report from Jose de la Cruz Sanches, who seems to have been alcalde at the pueblo of San Francisco, dated August 16, 1845, in which he declares that the land is vacant, and the petitioner has the necessary requisites according to law, but declining to give any information about the military lands.

4. A report by Francisco Sanches, the military commander, dated at the military command of San Francisco, October 18, 1845, setting forth that the land the petitioner solicits is vacant and may be conceded to him, 'not comprehending in the grant the two military points of the castle and presidio that are included in the petition.'

These documents are all written on the same paper. The Governor's order of reference is on the margin, and the reports endorsed. But there is no concession or order that a definitive title should issue to the petitioner, as is always found when the Governor accedes to the prayer of the petition. (See Arguello v. United States, 18 Howard, 543.)

The petition is not accompanied by a dise no or map of the land, as required by the regulations of 1828. This is all the document found among the archives or public records, and shows this fact only: that the petitioner asked for land; that the inform e did not satisfy the Governor, who did not accede to the request, and therefore the petitioner took nothing by his application. That the Governor had good reasons for refusing the prayer of this petition, is apparent from the fact, not only of the public fortifications of the harbor being erected thereon, but because on the 4th of November, 1834, Governor Figueroa, in his decree establishing the puebla of San Francisco, had included a large portion of the land now claimed, and the remainder was claimed as the land of the Mission Dolores, which the Departmental Assembly afterwards (15th April, 1846) ordered to be sold at auction, and suspended the further alienation of the same as vacant.

This is all the record evidence, on which alone the court can rely as speaking the truth. It does not show even an inchoate equity in Benito Diaz; nor does the fact that he carried off some of the materials of the dilapidated fort to build him a house in San Francisco add to it.

The next fact which we can admit as sufficiently proved is, the sale by Benito Diaz of the land claimed to Thomas O. Larkin, in September, 1846, reciting a grant or patent to Diaz, dated 25th of June, 1846. This instrument purports to be a patent or definitive title to Benito Diaz, for all the land included in the boundaries mentioned in the petition. The public fortifications which protect the harbor of San Francisco are not excepted. The value of such a grant might easily be anticipated, when the occupation of the country by the United States had taken place. Pio Pico, after his deposition from the government, could afford to be more liberal in 1846 than in 1845, when he very properly refused to make it. There is no trace of this grant to be found on record, or in the public archives. It purports to be signed by Pio Pico, and attested by his secretary, Moreno; and each of them has been called to attest the genuineness of the signatures. We have decided in the case of Luco v. United States, (23 How., 543,) 'that, owing to the weakness of memory with regard to the dates of grants signed by them, the testimony of the late officers of the Mexican Government in California cannot be received to supply or contradict the public records, or establish a title of which there is no trace to be found in the public archives.' In compliance with this rule, we might dismiss this case without further argument; for if the testimony of the officers of the Government cannot be relied on, much less can that of more obscure individuals, especially as we have seen in the Luco case, and some others, that it is easy to obtain any number of witnesses to depose to any fact necessary to establish a fraudulent grant.

The testimony brought in this case to support this private deed, and give it the force and effect of a public record, grant, or patent, and to prove that it was executed as such before the 7th of July, 1846, when the official functions of the late officers ceased entirely, tends only to confirm the suspicions in which it is involved, and demonstrate the necessity of the rule of decision which we have adopted.

Pio Pico was called as a witness. He swears 'that he believes the signatures to be genuine,' and that is all. He does not state where it was signed, or when it was signed, whether before or after his expulsion from the Government. If executed where it purports to be, viz: at Los Angeles, where the public records were kept, he knew it could be proved he had left Los Angeles a week before its date, (25th June,) and was residing at Santa Barbara, where he remained till the approach of Fremont to Monterey. He knew it could be proved that his secretary, who attested the paper, was in Los Angeles, seventy miles distant. He could probably give no better reason for his willingness to sell the public forts, which he had refused to do a year before, than the fact that the Americans had taken possession of them. His silence on these points is expressive. There is no doubt that his testimony, so far as it goes, is true, and given with his habitual caution. He might excuse himself for not stating whether or not this grant was one of the large number said to have been executed by him on the 8th of August, on the eve of his departure to Mexico, for the reason that no question was asked him as to that fact.

Moreno, the secretary, is not so cautious, and therefore has involved himself in more difficulties, which are unexplained, and perhaps inexplicable.

'I recollect this document. I saw it on the 25th June, 1846, when I signed it. This is my signature as secretary ad interim, and also my signature to the certificate of registry; and I saw Pio Pico sign it as Governor. This is his genuine signature. I think Benito Diaz wrote the body of the grant himself. After the grant was completed, I delivered it to the agent of Benito Diaz, on the road from Losn Angeles to Santa Barbara. The agent to whom I delivered it, according to my recollection, was Eulogio Celiz.'

Now, this document states that it was 'given in the city of Los Angeles, on the 25th of June, 1846,' and Moreno swears he saw Pio Pico sign it, who was on that day seventy miles distant in Santa Barbara. His certificate, that he has recorded it in the proper book, he does not prove to be true; or if he was at Santa Barbara, with Pico, on the 25th, how he could record it in Los Angeles, where alone the records were kept. If he executed and recorded it in Los Angeles, he does not explain why it is in the handwriting of Benito Diaz, and not drawn up by the clerks of the department as other grants; and how it came to pass that the date of the paper, and his certificate, are in the handwriting of Benito Diaz, who was at San Francisco, some five hundred and twenty miles distant; nor how it came to pass, that when he had signed and recorded this important document, he put it in his pocket, and started for Santa Barbara, and met Celiz on the road; nor does he explain how Celiz, who left San Francisco on the 21st of June, with this paper drawn up by Diaz, for the purpose of taking it to Los Angeles to have it executed, could have taken it all the way to Los Angeles, five hundred and twenty miles, before it was executed; and then, that Moreno should meet him on the road between Santa Barbara and Los Angeles, after it was executed. There were no railroads in California at that time by which to account for such swift travelling.

Diaz testifies that the document is in his handwriting; 'that he wrote it in San Francisco, on the 20th or 21st of June, in consequence of a letter which he received from Bandini, whom he calls secretary of the Government,' but who was not secretary. 'That the country was in such a critical state, that it was necessary to send it immediately; which he did, by special courier. That from information of his courier, Celiz, he understood that the grant was signed on the road, either at Santa Buena Ventura, or Santa Barbara.' The critical state of the country, as the Americans were in possession of the greater part of it, will no doubt account for the fast riding of the courier, and in some measure for the execution of the deed on the highway, and the false certificate of record of a document which, without such recording, was but a private deed.

If Celiz met Pico where he states, he required but five days to ride five hundred miles, while it required eight days for Pico to travel less than seventy miles.

There is no necessity to rely upon the testimony of witnesses Crane and Watson, that Diaz declared, 'that after the American revolution, he made out the grant in his own handwriting; and that, in order to make it valid, he dated it back to the month of June.'

The face of the paper, and the testimony brought to support it, sufficiently demonstrate this to be the fact.

It is evident, that when this grant was fabricated, it was not known that conclusive evidence could be produced of the absence of Governor Pico from Los Angeles on the day of its date. Hence the necessity of changing the venue to that of the highway, when it was too late to alter or erase the certificate of record to suit it. And hence the absurd contradictions exhibited in the testimony of Moreno, who appears to be emulating the example of his predecessor.

The judgment of the District Court is therefore affirmed, with costs.


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


text:
United States v. Chana

THIS was an appeal from the District Court of the United States for the northern district of California.

The claim was based upon Sutter's general title, which has been explained in some of the preceding volumes of these Reports.

It was submitted on printed argument by Mr. Black (Attorney General) for the United States, no counsel appearing for the appellees. It appears to have been confirmed by the court below before they knew the decision of this court with regard to Sutter's general title.

Mr. Justice CAMPBELL delivered the opinion of the court.

title: United States v. Chana


text: Talk:United States v. Chana

title: Talk:United States v. Chana


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

The appellees presented their claim before the board of commissioners for the settlement of land claims in California for a tract of land, consisting of four leagues, on the south side of Bear creek, in Yuba county, under a grant to Theodore Sicard by Micheltorena, Governor of the Department of California.

The testimony to sustain the claim is similar to that offered in the cases of United States v. Nye, 21 How., 408, and United States v. Rose, 23 How., 262. In these cases it was determined that the testimony was not sufficient to support the claims. This case must follow the same course that was assumed in those.

Judgment of the District Court reversed, and petition dismissed.


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


text:
Hall v. Papin

THIS case was brought up by writ of error from the Circuit Court of the United States for the northern district of Illinois.

The dispute arose under the two acts of Congress passed in 1820 and 1823, confirming the claims of settlers in the village of Peoria, which are particularly mentioned in the opinion of the court, and which were also examined in a case reported in 19 Howard, 334. The instructions of the court below are also set forth in the present opinion, which renders it unnecessary to state them in this place.

It was submitted on a printed argument by Mr. Browning for the plaintiff in error, and by Mr. Merriman and Mr. Blair for the defendant.

It will be observed that the principal point upon which the decision of this court turned was, that the lots in question were outside of the village of Peoria. Mr. Browning brought this point before the court in the following manner:

The plaintiff in error (defendant below) asked the court to instruct the jury, 'that if they believed, from the evidence, that the original French settlement or improvement, upon which the plaintiff's claim in this suit is based, was not upon or within the northwest quarter of section three, in township eight north, in range eight east, of the fourth principal meridian, nor located upon that quarter section by the United States surveyor until after that quarter section was sold to the Fultons by the United States, they, the jury, are to find for the defendant.'

Which instruction the court refused to give; but, on the contrary, instructed the jury that the acts of Congress of 1820 and 1823, taken in connection with the report of the register of the land office and the survey under the authority of the law, vested in the party entitled under the acts of Congress an absolute right of property in the lot so surveyed; and that the surveys, for the purposes of this action, made the title of the claimant, under the acts of Congress, complete; and that the persons taking under the patent of March 18, 1837, as well as of the entry of July 11, 1833, being the same grant, took their grant subject to the contingency of the better title which might thereafter be perfected under the acts of 1820 and 1822; and that when a party brought himself within these acts, his title was the paramount title, notwithstanding the patent to the Fultons.

Now, this instruction virtually admits that the land in controversy never had been settled upon or improved by any of the French or Canadian inhabitants of the village of Peoria, and that it was no part of the village, but quite and altogether outside of and beyond its limits; for the defendant below had proven this state of fact, or given evidence strongly tending to prove it; and the court told the jury, substantially, that it was wholly immaterial whether it had ever been settled upon and improved or not, or whether it had ever been a part of the village of Peoria or not; for that the title of the plaintiff, by virtue of the laws of 1820 and 1823, and by virtue of the survey made, not upon the land of the United States, but upon the land of the Fultons, was made absolute, and paramount to the title of the Fultons, notwithstanding the Fultons had the first grant from the Government. Or, to put it in another form, the instruction amounted simply to this: That on the 11th July, 1833, and the 18th March, 1837, when the land was sold and patented to the Fultons, said land belonged, absolutely and exclusively, to the United States, and that the French settlers at Peoria had no right to or interest in it, inasmuch as they had never had any settlement or improvement upon it, and it had never been any part of their village; that the Government owning it, had a right to do with it as it pleased, and that in the exercise of that right it had sold and granted it to the Fultons, thereby parting with all its right, title, and interest in it, and all power and control over it; but that, notwithstanding this, it could authorize a survey of it under a law which had no reference whatever to this land, but to land upon which the French had settled and improved; and by virtue of such survey, take Fultons' land and appropriate it to the satisfaction of a French claim, which, in reference to this land, had never had an existence.

Now, let it be conceded, as it is by the instruction of the court, that there was never any French settlement or improvement on this land, and that it was no part of the village of Peoria then, I ask, by what right, or upon what principle, it can be taken for the satisfaction of a claim in the village of Peoria, after it has ceased to be the property of the United States and has become the property of a private citizen? I freely concede that whilst it remained the property of the United States they could authorize any part, or the whole of it, to be given in satisfaction of French claims, although the French settlements and improvements had never been on or near it. But I do not comprehend how, after the Government had parted with its interest, had sold and conveyed to the Fultons, it could authorize it to be taken for the satisfaction of a French claim, or for any other purpose. Its power over it was gone, and it could no more take this than it could take land situated anywhere else, which it had previously sold and granted away.

It is admitted that the surveyor might go outside of the original French settlement and locate a claim upon any land belonging to the Government, for the Government had a right to do as it pleased with its own, and to authorize the location of a claim where no settlement had previously been, and to confirm such location after it was so made; but it is emphatically denied that he could go outside of the original settlement and locate upon the land of an individual, in which the Government had no interest. If he could go off the settlement, outside of the village at all, where was he to stop? what limit was there to his discretion or power? If he could go a half mile, could he not go a mile? and if one, could he not go ten? Could he not, in fact, go to the uttermost bounds of the land district? Mere contiguity of Fultons' land to the old French village of Peoria gave the French claimants no more right to it than they had to land situated ten miles distant, and which had been sold by the United States after the passage of the laws of 1820 and 1823. Yet the court told the jury that although no part of the original French settlement or improvement, upon which the claim is based, was upon the land sued for, nor located upon it by the United States surveyor until after it had been sold to the Fultons by the United States, still, the Fultons took the land subject to the contingency of its being thereafter taken from them to satisfy this French claim. How did the Fultons take their land subject to such a contingency, any more than other purchasers from the Government? There had originally been no French settlement upon it, and when they bought, no claim had been surveyed or located upon it. When the United States sold, its title was perfect and the land unincumbered, and they sold and granted absolutely, unconditionally, and without reservation of any kind or character. It was no part of the contract between the Fultons and the United States that they should take the land subject to the contingency of its being afterwards retaken and disposed of to another. If they took their land subject to such a contingency, did not every other person in that land district who purchased land from the United States, after the passage of the laws of 1820 and 1823, take it subject to the same contingency? There was nothing in the character or quality of the land purchased by the Fultons, nor in the nature of their contract with the United States, to distinguish them from other purchasers from the Government. They took upon the same terms, and they held by the same tenure, with all others who purchased land to which the Government had title; and I ask again, what was there in this transaction to distinguish it from any other case of an absolute and unconditional sale of land by the United States, to which they had title, or to subject the Fultons to the contingency of having it taken from them, after they had fairly bought it, paid for it, and received a patent therefor? If they are to be made an exception to all the general rules of law and property, they ought, at least, to be informed why. It is not because there had been a French settlement and improvement upon their land, for this is disproved. Not because it had been surveyed, and a French claim located thereon before they bought, for no such thing had been done. Not because they made a conditional purchase, for the United States conveyed to them absolutely, and without condition or reservation. No reason whatever is perceived for making an exception of this case.

If the instructions given by the court to the jury are right, it must be because they contain a general principle of law, applicable to all cases in the same land district with Peoria, for there is nothing in this case to distinguish it from any other; and that general principle, as declared by the court, is, that all persons who purchased from the United States in that land district, after the passage of the laws of 1820 and 1823, took their land subject to the contingency of having it retaken, to satisfy French claims. This certainly cannot be so.

Upon this point, Mr. Merriman remarked as follows:

The second assignment of errors is upon the refusal of the court to grant the instructions asked by the defendants below. The first of which is, that if the jury should believe, from the evidence, the original French settlement upon which the suit is based was not upon or within the N. W. 3, 8 N., 8 E., nor located thereon by the United States surveyor until after that quarter section had been sold by the United States to the Fultons, they should find for the defendant, which instruction was refused; and the third instruction of the court was given upon that point-to which instruction the court is referred.

The instruction, as asked, was improper, for two reasons: first, there was no evidence tending to show a different location of the lot in controversy; and secondly, for the reasons stated in the said instruction of the court. The lot was granted to the settler or his legal representative in 1823, while the land belonged to the Government; and by the terms of the act, the located lot was to be designated, surveyed, and set apart to such settler, by the surveyor of the district. This survey was a duty enjoined upon the said officer, and it was a portion of the grant, and, as such, was notice to all persons afterwards purchasing of Government. Although the report of Edward Coles, containing a diagram of said claims, did not state, in numbers, the township, range, or section, upon which said settlement was made, yet it stated the location of said village so fully and particularly, together with its village lots and outlots, that although, perhaps, the precise boundaries could not be ascertained without a survey, yet no one, by looking at the report and diagram of Coles, and comparing it with the sectional map of the township, including said village, could avoid the conclusion that this lot, thirteen, was wholly orin part on the quarter section claimed by plaintiffin error; the location of the village on the lake, the distance of this lot from the main village, the size of the lots between this lot and the main village, was sufficient notice of the probable location of this lot; and this, followed up by the fact that this village and out-lots were mostly located by the surveyor on said section three, and the evidence in this case of the marks of the old French cultivation, and which must have been plainer still at the time of the first settlement of said quarter section, are, we think, sufficient evidence of notice, if notice had been required. The courts will take judicial notice of all acts of Congress, as well as of the location of the different townships, ranges, and sections, by their Congressional divisions.

The record shows a space of time between the survey of the lot and the approval of such survey of over three years, during which time, if there were any objections to such survey, the parties interested should have filed their objections with the surveyor of said district. It cannot be said that they did not have plenty of time and opportunity for so doing.

Mr. Justice WAYNE delivered the opinion of the court.

title: Hall v. Papin


text: Talk:Hall v. Papin

title: Talk:Hall v. Papin


text:
Hall v. Papin/Opinion of the Court

This is a suit for the recovery of ten acres of land, which is admitted by the parties to be a part of the northwest quarter of section three, in township eight north, of range eight east, of the fourth principal meridian, in the district of lands subject to sale formerly at Springfield, Illinois, and afterwards at Quincy.

Upon the trial below, the plaintiff gave in evidence: 1st, the act of Congress of May 15, 1820, entitled, an act for the relief of the inhabitants of the village of Peoria, in the State of Illinois; 2d, the act of the 3d March, 1823; 3d, the report of Edward Coles, in the 3d vol. State Papers, page 421; 4th, the special and general plat and field-notes of the survey of the village, made May 11, 1837, approved September 1, 1841, and approved by the surveyor of public lands in Illinois and Missouri; 5th, the deed of lot 13 by Bartholomew Fortier and his wife, Angelica, to plaintiff, September 23, 1854; 6th, depositions showing that Angelica was the only representative of Francis Willette, and that, when she made her claim before J. W. Coles, she was the wife of Louis Pilette, and that she married Fortier in 1838.

The defendant below, here the plaintiff in error, introduced in evidence a parent from the United States to Seth and Josiah Fulton, dated March 18, 1837, a pre-emption certificate of the same, laid July 11, 1833, and a conveyance by the Fultons to him of the land covered by the patent dated the 11th July, 1838. The patentees, Seth and Josiah Fulton, had lived upon the quarter section for several years before their entry was made, and Hall, also, had occupied the quarter section for some years before the Fultons sold to him. Also, a patent from the United States to the representatives of Francis Willette, for a lot which had been claimed by them under the act of the 3d March, 1823, and sundry depositions, which it is not necessary for us to notice in this opinion.

The defendant in error, Joseph L. Papin, claims the ten acres sued for in virtue of his purchase from Bartholomew Fortier, and Angelica, his wife, she being the sole representative of her father, and had claimed the land under the act of Congress of the 15th May, 1820, 3 Stat. at Large, 605, and that of the 3d March, 1823, U.S. Stat. at Large, 786.

The first of these acts declares, that 'every person, or the legal representatives of any person, who claims a lot or lots in the village of Peoria, in the State of Illinois, shall, on or before the first day of October next, deliver to the register of the land office for the district of Edwardsville a notice in writing of his or her claim, and it shall be the duty of the register to make to the Secretary of the Treasury a report of all claims filed with him, with the substance of the evidence in support thereof; and also his opinion, and such remarks respecting the claim as he may think proper to make; which report, with a list of the claims which, in the opinion of the register, ought to be confirmed, shall be laid by the Secretary of the Treasury before Congress for their determination.' Under this act claims were made by Louis Pilette in right of his wife, Angelica, the daughter of Francis Willette, and they appear in the register's report, dated the 10th November, 1820, entered as numbers 11, 12, and 13. That report, however, was not finally acted upon by Congress, until the 3d March, 1823. The first section of that act declares, 'there is hereby granted to each of the French and Canadian inhabitants, and other settlers in the village of Peoria, in the State of Illinois, whose claims are contained in a report made by the register of the land office at Edwardsville, in pursuance of the act of Congress approved May 15, 1820, and who had settled a lot in the village aforesaid prior to the first day of January, 1813, and who have not heretofore received a confirmatory claim or donation of any tract of land or village lot from the United States, the lot so settled upon and improved, where the same shall not exceed two acres; and where the same shall exceed two acres, every such claimant shall be confirmed in a quantity not exceeding ten acres: Provided, nothing in this act contained shall be so construed as to affect the right, if any such there be, of any other person or persons to the said lots, or any part of them, derived from the United States, or any other source whatever, or be construed as a pledge on the part of the United States to make good any deficiency occasioned by any other interfering claim or claims.' And it was made the duty of the surveyor of the public lands of the United States for that district to cause a survey to be made of the several lots, and to designate in a plat thereof the lots confirmed and set apart to each claimant, and forward the same to the Secretary of the Treasury, who shall cause patents to be issued in favor of such claimants, as in other cases.

The land sued for is described in the declaration as an outlot or field of ten acres, near the old village of Peoria, in the State of Illinois, confirmed to Louis Pilette in right of his wife, Angelica, the daughter of the late Francis Willette, by the act of Congress of the 3d March, 1823, entitled 'An act to confirm certain lots in the village of Peoria, it being claim No. 13 of the report made by the register of the land office at Edwardsville, in pursuance of an act of Congress of the 15th May, 1820.' The lot is claimed in the report of the register as an out-lot or field, containing fifteen or twenty arpents of land, situated three-fourths of a mile northeastwardly (northwestwardly) from the village of Peoria. There can be no uncertainty whether the old or new village was meant, as the survey establishes it to have been near the old; and in our consideration of the act of the 3d March, 1823, our conclusion is, that that act can only embrace lots in the new village, or others appertaining to it.

The old village of Peoria was situated on the northwest shore of Lake Peoria, about one mile and a half above the lower extremity or outlet of the lake. The village had been established by Frenchmen at an early date, previous to the recollection of any one. About the years 1778, 1779, the first house was built on what was then called La Ville de Maillet, afterwards the new village of Peoria, and afterwards known by the name of Fort Clark. It was situated about one mile and a half below the old village, immediately at the lower front or outlet of the lake. This situation was preferred on account of the water being better and the place more healthy than at the old village. In consequence, the inhabitants gradually deserted the old village, and before the years 1796, 1797, had entirely abandoned it, and removed to the new village.

The inhabitants were generally Indian traders, hunters, and voyagers. They formed a like of connection between the French residing on the waters of the great lakes and the Mississippi river. From that happy facility of adapting themselves to their situation and associates for which the French are so remarkable, the inhabitants of Peoria generally lived in harmony with their savage neighbors. But about the year 1781, an apprehension of Indian hostilities induced them to abandon the new village. They returned to it, however, after the peace of 1783, between England and the United States and the powers which had engaged in our revolutionary war, and continued there until the autumn of the year 1812. Then they were forcibly removed from it and their village destroyed by a Captain Craig, of the Illinois militia, on the ground, it was said, that himself and his company had been fired upon in the night by Indians, while at anchor in their boats before the village, with whom Craig suspected the villagers to be on too intimate and friendly terms. Craig and his company were in the service of the United States. The inhabitants of Peoria settled there without any grant or permission from any Government. Each person took such a portion of unoccupied land as he wished to occupy and cultivate; but as soon as he abandoned it, his right to the land ceased with his possession, and it reverted to its natural state. It was then liable to be improved and cultivated by any who thought proper to take possession. Sometimes a settler sold out his improvements before abandoning. That and the itinerant character of the inhabitants, account for the number of persons who claimed the same lot. As was usual in French villages, the lots in the village were small. They were large enough for houses, out-houses, and gardens, and in some instances, those who were able to do so cultivated what were known as out-lots or fields near to, but outside or beyond, the village. Those out-fields were of different sizes, depending upon the industry and means of persons to till them. The village lots, as contradistinguished from out-lots, contained generally the half of an arpent. Neither the old nor new village had ever been surveyed or occupied upon any fixed plan. Seventy claims were made under the act of the 15th May, 1820. They were returned on the report of the register to the Secretary of the Treasury, on the 10th of November, 1826. In a little less than three years the act of 1823 was passed. Coles's Report, 3 Am. State Papers, Land.

The narrative just given has an important bearing upon the construction of the acts of 1820 and 1823. It serves to show the locality of the village of Peoria, for which those acts were passed, the purposes to be accomplished, and the extent and conditions upon which a lot may be confirmed to a claimant who had settled and improved a lot in the village before the first day of January, 1813, and who had not before received a confirmation of claims, or donation of any tract of land or village lot from the United States, when the lot settled upon and improved did not exceed two acres; and when it did, to confirm to the claimant ten acres, subject to the proviso in the act.

It was a gratuity to such settlers of a single lot in the village. Such was the first section of the act of 3d March, 1823. It gave to the claimant an incipient or inchoate right to a lot, when, in conformity with the second section of the act, a survey had been made of the several lots reported by the register, with a designation or a plat thereof of the lot confirmed and set apart to each claimant. When that had been done, the claimant became a confirmee under the act, and his right to the lot, as between himself and the United States, was complete. Such was the view taken by this court of the acts of 15th May, 1820, and of the 3d March, 1823, in Bryan and Forsyth, 19 Howard, 336. Its language then was, when the survey was made, and the plats returned and approved and recorded by the surveyor general of Illinois and Missouri, and recognised as valid at the General Land Office, it bound the parties to it, the confirmee and the United States.

The law was intended to grant the lot settled upon and improved, and no other land described as an equivalent. But, in this instance, no survey was made in conformity with the 2d section of the act until the 11th April, 1837. It was not examined and approved by the surveyor of the public lands in Illinois and Missouri until the first September, 1840, seven years after Seth and Josiah Fulton had made their entry upon the quarter section, and three years after they had received their patent for it from the United States. The land was unconditionally sold to them. Hall, the plaintiff in error, bought from the Fultons in July, 1838. Under the decision of this court, already cited, no location of the out-lots could be made upon this quarter section after the patent had been issued to the Fultons. It follows, then, that there was no confirmation of the land sued for to the representative of Francis Willette; and, consequently, that the quit-claim conveyance by Angelica Fortier and her husband, of the 23d September, 1854, to Papin, the defendant in error, gave to her no title to the ten acres for which he has sued. We have shown that the inchoate right of the claimant under the act-supposing that no out-lot was meant to be confirmed-was subject to a survey and designation before it could be matured into a title. The requirement of a survey before a claimant could be considered as having a legal title to land upon a concession, has frequently been passed upon by this court; and the case before us is within that of Menard Heirs v. Massey, in 8 Howard, 309.

It now remains for us to consider two of the instructions which were asked by the defendant in the court below, which the court refused to give to the jury.

They were: If the jury believed from the evidence that the original French settlement or improvement, upon which the plaintiff's claim in this suit is based, was not upon or within the northwest quarter of section 3, in township eight north, in range eight, east of the 4th meridian, nor located upon that quarter section by the United States surveyor until after that was sold to the Fultons by the United States, that the jury were to find for the defendant.

The court did not give the first branch of the instructions asked, and, in our opinion, rightly so; for there was no proof in the case to show that the French settlement, which was the basis of the suit, was not a part of it. Indeed, no such instruction would have been asked; for it was admitted by the parties that the tract sued for was a part of the quarter section described in the patent to the Fultons. But the court refused, also, the second branch of the prayer, which, in our opinion, should have been given, and gave the jury an instruction as follows: He told the jury that the acts of Congress of 1820 and 1823, taken in connection with the report of the register of the land office and the survey under the authority of law, vested in the parties entitled, under the acts of Congress, with an absolute right of property in the lot surveyed; and that Angelica, the person named in the evidence, was the daughter and sole heir of her father, Francis Willette, the settler; that she was within the meaning of the law; and her claim being in the report, was confirmed by the act of 1823.

And the jury was further instructed, that the survey of the claimed lots, as reported by the register, was duly made and approved, because the survey for the purposes of this action made the title of the claimants under the acts of Congress complete; and that the court was of the opinion that the persons taking under the patent of March 18th, 1837, and under the entry of July 11th, 1833, must be considered as taking their grant subject to the contingency of the better title which might thereafter be perfected under the acts of 1820 and 1823; and when a party brought himself within those acts, his title was the paramount title, notwithstanding the patent to the Fultons.

The defendant, in our view, had asked for such an instruction as he had a right to have under the authorities cited in a previous part of this opinion. The instruction given to the jury was erroneous.

The defendant had also asked in his second prayer, that the court would instruct the jury, if they believed from the evidence that by the plaintiff's recovering in this case the legal representatives of Willette would be confirmed in more than ten acres of Peoria French claims, that they were to find for the defendant. The prayer is inartificially drawn; but when taken in connection with the evidence in the case and the act of 1823, its purport could not have been misunderstood. The object of the defendant was to get an instruction from the court, upon the evidence he had given, in conformity with the limitation in the act, as to the quantity of land which could be confirmed to a claimant under it. It declares when the lot shall not exceed two acres, that it shall be confirmed; and when the same shall exceed two acres, that every such claimant shall be confirmed in a quantity not exceeding ten acres.

Pilette, the husband of Angelica, had filed in her behalf, in the year 1820, before the register, claims for lots eleven, twelve, and thirteen. The first, being the land numbered as number eleven, contained about one-half of an arpent of land; number twelve the same quantity, situated directly in the rear of eleven, and separated from it by a street; number thirteen was a claim for an out-lot or field, containing fifteen or twenty acres of land, and situated about three-fourths of a mile northeastwardly (northwestwardly) from the village of Peoria; number eleven was also claimed before the register by Felix Fontain, his claim being in the report No. 41; but it turned out, according to the survey, that both were for the same land, and that they covered the southwest part of Etienne Barnard's claim number 1, the northeast part of it being also covered by another claim of Felix Fontain, numbered in the survey as 42. For land so described, containing fifty-four thousand eight hundred and ninety and fourteen-hundredths of a square foot, designated as covered by the claims one, eleven, forty-one, and forty-two, a patent was issued by the United States to the representatives of Francis Willette, on the 28th August, 1845. That patent was introduced in evidence by the defendant below, the plaintiff in error. The purpose was to show that the heirs of Willette having already had one confirmation of 'a lot settled and improved,' under the act of 3d March, 1823, that they were not entitled to another, or to any confirmation of the title to the land in litigation. If that were allowed, they would get more than the ten acres, to which every claimant was limited by the act. Our construction of the act is, that a claimant was to have one confirmation of 'a lot so settled and improved,' which had been claimed and entered in the report of the register of the land office at Edwardsville, in pursuance of the act of the 15th May, 1820; that no claimant, though he shall appear in the register's report as having made several claims, could, after having had one of them confirmed, transfer any right of property in the others to any persons whatever.

Papin, the plaintiff below, took from the representatives of Willette a quit-claim conveyance for the land for which he sues on the 23d September, 1854-more than thirty years after the passage of the act of the 3d March, 1823-more than twenty years after the Fultons had made their entry upon the quarter section-eighteen years after they received their patent for it from the United States-seventeen after Hall had the land in possession by purchase from the Fultons, and ten years after the patent of confirmation to the representatives of Willette had been recorded in the General Land Office. Under these circumstances, Papin took a conveyance, which gave him no right to the land. When the plaintiff in error, Hall, asked the court to instruct the jury, that if they believed from the evidence that, by the plaintiff's recovery in this case, the legal representatives of Francis Willette will have been confirmed in more than ten acres of Peoria French claims, they were to find for the defendant, the prayer ought to have been apprehended by the court, according to its relation to the subject-matter in controversy, and such an instruction should have been given accordingly to the jury. The refusal, then, was error.

For the reasons given, we shall direct the judgment of the court below to be reversed; that a venire facias de novo shall be issued; and that the court, in its further proceedings in the cause thereon, conform to the rulings of this opinion.

title: Hall v. Papin/Opinion of the Court


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

title: Talk:Hall v. Papin/Opinion of the Court


text:
Eberly v. Moore

THIS case was brought up by writ of error from the District Court of the United States for the western district of Texas.

Angelina R. Eberly, and the minor, Peyton Lytle, brought an action of trespass to try title to a tract of land situated in Falls county, in the State of Texas. The suit was brought against a number of persons, who adopted different modes of defence. Moore and Raybon pleaded the general issue and certain pleas of adverse possession in bar. At the succeeding term of the court they presented a motion for leave to withdraw their answer, and plead in abatement, upon the ground that the plaintiffs, instead of being citizens of Kentucky, as they had alleged, were in reality citizens of Texas, and consequently that the court had no jurisdiction over the case. The motion was granted and the pleas in abatement filed. Other proceedings took place which it is not necessary to state. After the jury was impannelled, the court charged them as follows:

GENTLEMEN OF THE JURY: To give the court jurisdiction of this case, it is necessary that the plaintiffs should be non-residents, or citizens of the State of Texas. The petition alleges that two of the plaintiffs, viz: Mrs. Eberly and Peyton Lytle, are citizens of the State of Kentucky. This allegation is denied by the plea in abatement, which avers them to be citizens of the State of Texas. Upon this issue arises the question of fact which you are to determine.

When a domicil or citizenship is once acquired in a State, a mere temporary removal will not affect it, and a citizenship elsewhere will not be acquired without a corresponding removal, accompanied with a bona fide intent for that purpose. This intent the jury must determine from all the facts and circumstances in evidence before them. The jury will simply state in their verdict whether, from the proof before them in this case, Mrs. Eberly, and her grandson, Peyton Lytle, or either of them, were citizens of the States of Kentucky or Texas on the 4th November, 1855.

T. H. DUVAL, U.S. Dist, Judge.

title: Eberly v. Moore


text: Talk:Eberly v. Moore

title: Talk:Eberly v. Moore


text:
Eberly v. Moore/Opinion of the Court

The defendants ask the court to charge, that if Texas was the natural domicil of Peyton Lytle, that is, the domicil of his birth, and if it remained so until the death of his parents, then it was not in the power of the grandmother to change his domicil by carrying him to Kentucky, and thus to confer upon him that citizenship which would give this court jurisdiction.

JNO. A. & R. GREEN, For Def'ts.

The above instruction is given.

T. H. DUVAL, U.S. Dist. Judge.

And the jury having heard the evidence, and argument of counsel, and the charge of the court, retired, and returned into court with the following verdict, which is in words, to wit:

'We, the jury, find, from the law and the evidence, that the domicil or residence of the plaintiffs in this case, Angelina R. Eberly, and her grandson, Peyton Lytle, never has been changed from the State of Texas, and that their domicil or residence was in the State of Texas at the commencement of this suit.'

The counsel for the plaintiffs took an exception to the judgment of the court, granting permission to the defendants to withdraw their plea first filed and file one in abatement; and afterwards moved the court for judgment by default to be entered against the defendants, for want of a defence or answer; which motion being overruled by the court, the plaintiffs excepted. The jury then found that the residence of the plaintiffs was in Texas, and the court dismissed the suit.

The case was argued by Mr. Hale for the plaintiffs in error, and submitted on a printed argument by Mr. Ballinger for the defendant.

That part only of the argument of Mr. Hale which related to the power of the court to grant leave to the defendants to withdraw their first plea and plead in abatement can be inserted.

Ordinary questions of amendment are intrusted to the discretion of the inferior courts, and are not revisable here; but in a case of this character, the courts of law have no discretion. The 32nd section of the act of 1789, (1 Stat. at L., 91,) applies, in its first clause, to the correction of formal defects or errors by a reference to other parts of the record; and in its last and more general clause, to an amendment of 'any defect in the process or pleadings.' It is obvious that this statute grants only the power of correcting an error occurring in the body of a pleading, and is not to be understood as authorizing the cancellation or withdrawal of the pleading itself. In the latter case there would be no 'defect' to be supplied, as there would be nothing left in which to supply it. The power, then, to allow the withdrawal of an entire plea and the substitution of another, must be derived, if at all, from the common law, or the general and necessary authority of a court in ordinationem litis. But this general authority cannot extend to the case of amendments, because then there would have been no need of the enabling statutes. And at common law, the courts had at first no power of admitting amendments after the term.

Bac. Ab. Amendment, A.

Blackmore's case, 6 Co. R., 157.

Com. Dig. Prerogative, D., 85.

Nelson v. Barker, 3 McLean, 379.

Afterwards their power was considered to continue as long as the cause was 'in paper.'

Tidd's Pract., 697.

Bondfield v. Milner, 2 Burr., 1099.

The expression 'in paper' appears to be strictly applied to the condition of a cause before the impannelling of a jury; but the decisions are conflicting as to the power of granting an amendment in a material point, (except to correct a variance,) after issue is taken. It is clear that an omission cannot, in the English courts, be supplied after that time.

Bye v. Bower, Carr and M., 262.

John v. Currie, 6 Carr and P., 618.

Brashear v. Jackson, 6 Mees. and W., 549.

Webb v. Hill, Mood and M., 253.

But there have been instances where a demurrer or replication was allowed to be withdrawn and a new pleading substituted. In these cases, however, it is to be noticed that the object has been to speed the cause. There is no precedent for the withdrawal of a plea in bar, to admit either a demurrer or a plea in abatement. On the contrary, it is well settled that a plea, introduced by amendment, must be to the merits of the case.

Law v. Law, Str., 960.

Perkins v. Burbank, 2 Mass., 73.

Eaton v. Whittaker, 6 Pick., 465.

Beach v. Fulton Bank, 3 Wend., 573, 576.

Waples v. McGee, 2 Harring, 444.

See, also, D'Wolf v. Rabaud, 1 Pet., 585.

Ripley v. Warren, 2 Pick., 592, 594-596.

Palmer v. Everson, 2 Cow., 417.

Engle v. Nelson, 1 Penns., 442.

There seem to be two rules on this subject; first, that an amendment will not, in general, be allowed, unless there is something in the record by which or on which to amend; and second, in the rare cases in which an entire new plea is permitted, it must be of a character subsequent in the natural order of pleading to the one withdrawn.

Judicial discretion can only be exercised where neither party has a legal right. When rights are involved, discretion ends, and any decision becomes the subject of appellate revision. In the present case, the defendants in error, by pleading in bar at a former term, had admitted the jurisdiction of the court and waived any objection to it.

Co. Litt., 303.

Com. Dig. Abatement, D., 9, 5.

Mostyn v. Fabrigas, Cowp., 161.

Bailey v. Dozier, 6 How., 23, 30.

Sheppard v. Graves, 14 How., 505, 509.

Whyte v. Gibbes et al., 20 How., 579, 585.

Martin v. Commonw., 1 Mass., 347.

Ripley v. Warren, 2 Pick., 592, 594.

Coffin v. Jones, 5 Pick., 61.

Ludlow v. Simond, 2 Caines Ca., 40.

Wood v. Mann, 1 Sumn., 578.

Hinckley v. Smith, 4 Watts, 433.

Chamberlain v. Hite, 5 Watts, 373.

And it is so expressly decided in Texas, Hart. Dig., art. 688, 691.

Drake v. Brander, 8 Texas, 351.

Cook v. Southwick, 9 Tex., 615.

Ryan v. Jackson, 11 Tex., 391, 400.

Wilson v. Adams, 15 Tex., 323.

Compton v. Western Stage Co., Mass. opinion.

This waiver on the part of the defendants enures to the plaintiffs, and when acted on by them, in the further prosecution of the suit, gives them a right to insist on it as conclusive. Thus Lord Eldon said, in Iveson v. Harris, 7 Vesey, 254, 'the objection to the jurisdiction may have been waived by the defendant himself-that is, he may have pleaded so that it is incompetent to him to stay the proceeding afterwards.' And this is further illustrated by the remarks of the Vice Chancellor, in Chichester v. Conegal, 6 Madd., 375. 'I state,' he says, 'without exception, as a general principle, that in courts of equity, as well as courts of law, a party admitting a fact which gives jurisdiction to a court, and appearing, and submitting to that jurisdiction, on general principles and upon all the analogies known to us, can never recede, or as it is called in the Scoth law, resile, from these facts and withdraw that admission.'

See, also, Smith v. Elder, 3 Johns. R., 113.

Cases are not wanting, also, in which the power of a court to permit a plea to the jurisdiction, after such a constructive admission, has been expressly denied. Thus in Martin v. Commonw., 1 Mass., 353-60, the Attorney General asked leave to plead in abatement after an imparlance in error; and objection being made by Parsons, counsel for plaintiff in error, the court unanimously refused to permit it, because the plea in abatement was offered after a plea in bar had been filed, which admitted the capacity of the plaintiff in error. In a similar case in New York, where it was shown that the general issue had been pleaded without the knowledge of the defendant, the court still refused to allow it to be withdrawn to let in a plea of coverture.

Anonymous, 3 Caines R., 102.

So permission to plead in abatement will be refused, after imparlance, though the prayer for imparlance was by mistake or through ignorance.

2 Rol., 244.

Com. Dig. Abatement, D., 9, 2.

The subject is elaborately discussed in Wood v. Mann, 1 Sumn., 578. And the principle is substantially affirmed by the Supreme Court of Texas in Coles v. Perry, 7 Texas, 109, 141.

That part only of Mr. Ballinger's argument which relates to the general rules of pleading can be given, omitting the references to the Texas decisions.

II. The court below had the right to permit the answer to the merits to be withdrawn and abandoned, and a plea to the jurisdiction filed; and this court will not revise the discretion which was exercised.

The general rule requiring a plea to the jurisdiction to precede a plea to the merits, or otherwise waiving the former, is of course familiar. Its reason is thus explained by Judge Story: 'All pleas to the jurisdiction are objections to entering into the litis contestatio, and they must and ought therefore to precede the litis contestatio. When the party submits the merits of the case to be heard by the court on the pleadings and testimony, he admits that the court has jurisdiction for that purpose.'

2 Sumner, 585; 11 Pet., 393; 14 How., 509.

But the question is, whether, if a party once pleads to the merits, he forever forfeits all right to ask, and the court itself loses all power to permit, upon any ground whatever, such plea to be withdrawn, and an issue presented to the jurisdiction of the court. If he is led to make such plea through fraud and misrepresentation practiced upon him, or through accident or mistake, not culpable on his part, and it appears not to have prejudiced the plaintiff in any degree, but to be only an unconscionable advantage in his favor, is the mouth of the defendant forever closed, and is he placed beyond the pale of any relief? 'Fraud vitiates the most solemn proceedings of courts of justice.'

Duchess of Kingston's Case.

Accident, surprise, and mistake, are grounds of relief in all the transactions of life. Can it be possible that rules of pleading, fashioned by the courts for their own convenience in the administration of justice, are the only exception to the power of courts to grant relief from unconscionable advantages obtained by either of these means? 'If courts could not, in cases of accident or necessity, with a view to reach the truth, give relief or indulgence on making the other party indemnity for the delay, our rules would be worse than any principles of law in common cases, which are often relieved against in equity, and sometimes at law, in the event of accident and mistake.'

See Wallace v. Clark, (3 Woodb. and M., 359,) a case standing on very analagous ground.

The Constitution of the United States provides that 'the judicial power shall extend to all cases in law and equity, arising,' &c. By 'cases in law' was meant suits in which legal rights are to be determined, in contradistinction to rights cognizable in equity or admiralty.

Parsons v. Bedford, 3 Pet., 44.

Bennett v. Butterworth, 11 How., 647-5.

There is no common law of the United States regulating principles of pleading and practice at law, or upon any other subject, (Wheaton v. Peters, 8 Pet., 658;) nor do the laws of a State have any such effect, proprio vigore.

9 Pet., 329; 2 Curt. C. C., 94.

The Supreme Court of the United States has the power to prescribe rules of pleading and practice, in suits at common law, for the District and Circuit Courts, (act Aug. 23, 1842, sec. 6, 5 Stats., 517;) but it is a power which has never been exercised. The District Court in Texas has also the power to regulate its practice, 'as shall be fit and necessary for the advancement of justice,' &c., (act March 2, 1793, sec. 7, 1 Stats., 385;) and in the entire want of all other rules, it adopted its own rules of pleading and practice, conforming them to the practice of the State courts, so far as consistent with the laws of Congress and the distinctive organization of a court of law. One of the few provisions, by act of Congress, touching the pleadings in the courts of the United States, is, that those courts may at any time permit either of the parties to amend any defect in the process or pleadings upon such conditions as the said courts respectively shall in their discretion and by their rules prescribe.

32d sec. Judiciary Act, 1789, 1 Stats., 91.

By the law governing the State practice, 'the pleadings in all suits may be amended under the direction of the court, upon such terms as it may prescribe, at any time before the parties announce themselves ready for trial, and not thereafter.'

O. & W. Dig., art. 434.

These express provisions of law intrust the amplest discretion to allow amendments of the 'pleadings,' and the largest measure of such discretion and control also results from the organization of the court. The exercise of that discretion cannot, upon well settled principles, be revised by this court. In Marine Ins. Co. v. Hodgson, 6 Cranch, 206, the defendant having filed six special pleas, was refused leave to file two others. The court say:

'This court does not think that the refusal of an inferior court to receive an additional plea or to amend one already filed can ever be assigned for error. This depends so much on the discretion of the court, which must be regulated more by the particular circumstances of every case than by any precise and known rule of law, and of which the superior court can never become fully possessed, that there would be more danger of injury in revising matters of this kind than what might result now and then from an arbitrary or improper exercise of this discretion. It may be very hard not to grant a new trial or not to continue a cause; but in neither case can the party be relieved by writ of error, nor is the court apprised that a refusal to amend, or to add a plea, was ever made the subject of complaint in this way. The court, therefore, does not feel itself obliged to give any opinion on the conduct of the inferior court in refusing to receive these pleas. At the same time, it has no difficulty in saying that even in that stage of the proceedings, the Circuit Court might, if it had thought proper, have received these additional pleas, or admitted of any amendment in those already filed.' (Pp. 48, 219.)

'The allowance or disallowance of amendments is not matter for which a writ of error lies here.'

Chirac v. Reinecker, 11 Wheat., 280.

Walden v. Craig, 9 Wheat., 573.

Wright v. Hollingsworth, 1 Pet., 165.

United States v. Buford, 3 Id., 31.

Clapp v. Balch, 3 Greenl., 219.

Morgan & Smith v. Dyer, 10 Johns., 163.

Northum v. Kellogg, 15 Conn., 574.

Toby v. Claflin, 3 Sum., 380.

Calloway v. Dobson, 1 Brock, 119.

The precise question of permitting a plea to the jurisdiction after general answer to the merits was decided by Judge Story, in Dodge v. Perkins, 4 Mason, 435, in which suit was brought against a citizen of Massachusetts by an administrator, alleging citizenship of his intestate in New York. There was an answer to the merits, also denying the averment of citizenship. Judge Story held that the citizenship of the administrator must be averred, and granted leave therefor. After deciding that the question of citizenship was preliminary, and to be made by plea, and not by answer, he says: 'In this case, I should feel it my duty to give the defendant a right to withdraw his answer and put in a plea, if the posture of the cause hereafter should render that course desirable to him.' (P. 437; and see 1 Sum., 579.)

The general rule is thus recognised in Pennsylvania by Ch. J. Tilghman: 'The pleadings are always under the control of the court. Pleas in abatement ought not to be put in after pleas in bar, unless under special circumstances, of which the court will judge.'

Riddle et al. v. Stevenus, 2 Serg. and R., 544.

Mr. Justice CAMPBELL delivered the opinion of the court.

The plaintiffs, as citizens of Kentucky, commenced a suit by petition against the defendants, as citizens of Texas, for the recovery of a parcel of land in their possession. At the return of the process the defendants pleaded to the petition the general issue, and the statute of limitations, in bar of the suit.

At the next succeeding term they moved the court, upon an affidavit charging that the allegation in the petition, 'that the plaintiffs were citizens of Kentucky, was untrue, and fraudulently made to induce the court to take cognizance of the cause,' and that they were citizens of Texas, for leave to withdraw their pleas, and to plead this matter in abatement of the suit. This motion was allowed, and pleas in abatement were filed. One of these avers that the allegation of citizenship in said plaintiffs' petition is not true; that said plaintiffs are not citizens of Kentucky, but are respectively citizens of Texas; wherefore he prays the dismissal of the cause for want of jurisdiction. The plaintiffs thereupon moved the court for judgment for the want of a plea. This motion was not allowed, and thereupon the plaintiffs refused to reply to the pleas in abatement, and the court then proceeded to impannel a jury, and directed them to ascertain whether, from the proof before them, the plaintiffs, or either of them, were citizens of the States of Kentucky or Texas at the date of the writ. The jury returned as their verdict, that the domicil or residence of the plaintiffs never had been changed from the State of Texas, and that their domicil or residence was in the State of Texas at the commencement of this suit. The court dismissed their petition.

The plaintiffs object to the authority of the District Court to permit the withdrawal of pleas in bar, for the purpose of pleading to the jurisdiction; that a plea in bar admits the jurisdiction of the court, and the capacity of the plaintiffs to sue, and that they cannot be deprived of the benefit of that admission. The equitable jurisdiction of the courts of the United States as courts of law is chiefly exercised in the amendment of pleadings and proceedings in the court, and in the supervision of all the various steps in a cause, so that the rules and practice of the court shall be so administered and enforced as to prevent hardship and injustice, and that the merits of the cause may be fairly tried. Such a jurisdiction is essential to and is inherent in the organization of courts of justice. Bartholomew v. Carter, 2 M. and G., 125.

But this jurisdiction has been conferred upon the courts of the United States in a plenary form by acts of Congress. 1 Stat. at Large, p. 83, sec. 17; p. 335, sec. 7; p. 91, sec. 32.

It has been uniformly held in this court that a Circuit Court could not be controlled in the exercise of the discretion thus conceded to it. Spencer v. Lapsley, 20 How., 264. In the present instance the jurisdiction was properly exercised. An attempt was made, according to the affidavit on which the motion was founded, to confer upon the District Court, by a false and fraudulent averment, a jurisdiction to which it was not entitled under the Constitution. If true, this was a gross contempt of the court, for which all persons connected with it might have been subject to its penal jurisdiction.

The plaintiffs contend that the plea is a nullity, and that they were entitled to sign judgment. It is not a precise, distinct, or a formal plea, but it denies the truth of the averment of the citizenship of the plaintiffs, as they had affirmed it to be in the petition. We may say as Lord Denman said, in Horner v. Keppel, 10 A. and E., 17: 'Where a plea is clearly frivolous on the face of it, that is a good ground for setting it aside; but the plea here is not quite bad enough to warrant that remedy.'

Judgment affirmed.

title: Eberly v. Moore/Opinion of the Court


text: Talk:Eberly v. Moore/Opinion of the Court