text:
Davenport v. Lamb

APPEAL from the Circuit Court for the District of Oregon.

Emma Lamb and Ida Squires, asserting themselves as granddaughters of one Daniel Lownsdale, to own each an undivided one-tenth of 'the south half of Block G' in Portland, Oregon, filed a bill against their co-heirs and persons claiming under them for a partition; one Davenport, who set up a title adverse to them all, being made a party defendant, and the real matter in issue being the validity of the title set up by him.

The case was thus:

On the 25th of June, 1850, Daniel Lownsdale, Stephen Coffin, and W. W. Chapman, were the owners of a land claim, embracing a portion of the tract upon which the city of Portand is situated. The legal title to the property was then in the United States, but the parties, asserting their claim to the possession under the law of the provisional government of the Territory, expected that legislation would be taken at an early day by Congress for the transfer of the title to them, or some one of them. This expectation of legislation on their behalf was common with all occupants of land in Oregon, whose rights were merely possessory, the fee of the entire land in the Territory being in the United States. With this expectation these claimants, on the day named, executed a deed to Chapman, one of their own number, of numerous lots and blocks in Portland, into which a portion of their claim had been divided, including among them the already mentioned south half of block G, the subject of the bill. The deed purported for the consideration of $60,000, to 'release, confirm, and quit-claim' to Chapman, his heirs and assigns, the described property; and contained two covenants on the part of the grantors-one, to warrant and defend the property to their grantee, his heirs and assigns against all claims except the United States; and the other, that if they obtain the fee-simple to said property, from the government of the United States, they will convey the same to the grantee, his heirs or assigns, 'by deed of general warranty.' The interest thus acquired by Chapman in the south half of block G, was afterwards assigned by various mesne conveyances to the defendant, Davenport.

At the time this deed was executed Lownsdale was a widower having three children, named James, Mary, and Sarah. At the same time there lived in the same town a widow named Nancy Gillihan, having two children, called William and Isabella. In July, 1850, the widower and the widow intermarried, and they had, as the issue of this marriage, two children, named Millard and Ruth.

On the 27th of September, 1850, Congress passed the act, which is generally known in Oregon as the Donation Act, and under which the title to a large portion of the real property of the State is held. It is entitled 'An act to create the office of surveyor-general of the public lands of Oregon, and to provide for the survey and to make donations to the settlers of the said public lands.'

By the fourth section of this act a grant of land was made to every white settler, or occupant of the public lands in Oregon, above the age of eighteen years, who was a citizen of the United States, or had made a declaration according to law of his intention to become a citizen, or should make such declaration on or before the first day of December, 1851, and who was at the time a resident of the Territory, or might become a resident on or before the 1st of December, 1850, and who should reside upon and cultivate the land for four consecutive years, and otherwise conform to the provisions of the act. The grant was of 320 acres of land, if the settler or occupant was a single man, but if a married man, or if he should become married within a year from the first of December, 1850, then the grant was of 640 acres, one-half to himself and the other half to his wife, to be held by her in her own right.

By the same section the surveyor-general was required to designate of the land thus granted the part enuring to the husband, and the part enuring to the wife, and to enter the same on the records of his office; and it was provided that in all cases where such married persons complied with the provisions of the act so as to entitle them to the grant, whether under the previous provisional government or afterwards, and either should die before the issue of a patent, 'the survivor and children, or heirs, of the deceased, shall be entitled to the share or interest of the deceased in equal proportions,' except when the deceased should otherwise dispose of the same by will.

Under this act Lownsdale was a donation claimant, and dated the commencement of his settlement on the 22d of September, 1848. This settlement became complete on the 22d of September, 1852, at the expiration of the four years prescribed. The proof of the commencement of the settlement and of the continued residence and cultivation required by the act was regularly made; and of the land the east half was assigned to Lownsdale and the west half to his wife Nancy. Within the portion thus assigned to the wife the premises in controversy were included. The tract thus claimed and settled upon embraced a fraction over 178 acres, and for it, in October, 1860, a patent certificate was given to Lownsdale and wife, and in June, 1865, a patent of the United States was issued to them, giving and granting in terms to Daniel Lownsdale the east half of the property, and to his wife, Nancy Lownsdale, the west half.

Nancy died in April, 1854, before the issue of the patent, leaving the four children already mentioned-two, William and Isabella Gillihan, by her first husband, and two, Millard and Ruth Lownsdale, by her second. These four children and her surviving husband Daniel became entitled to her interest in the tract set apart to her; thought in what shares the husband took as respected the children, whether one-half or only one-fifth, was one of the questions in the case.

In January, 1860, Daniel purchased the interest of Isabella Gillihan. He himself died in May, 1862, intestate, leaving as his heirs the four children already named, that is to say, James and Mary, by his first wife, and Millard and Ruth by his second wife; and also two children (the complainants in this case) of his deceased daughter Sarah, by his first wife. The four children living, each inherited one undivided fifth of their father's estate, and the two children of the deceased daughter, each one undivided tenth.

In 1864, William Gillihan, one of the children of Nancy, brought suit in one of the courts of the State of Oregon for partition of the tract set apart to Nancy as above-mentioned called the Nancy Lownsdale tract-making defendants the heirs of both Daniel and Nancy, and numerous other persons purchasers and claimants under Daniel. By the decree in that case it was among other things adjudged that Daniel was the owner of an undivided two-fifths of the entire Nancy Lownsdale tract, and that the said William Gillihan and Ruth and Millard Lownsdale, as heirs of Nancy Lownsdale, deceased, were each entitled to an undivided one-fifth of the whole of said tract, and certain portions of said tract were decreed and set apart to the said William, Ruth, and Millard, to be held by them in severalty, and the residue of said tract was set apart and allotted to the heirs, vendees, or claimants, under Daniel, according to their respective interests, without however determining the extent of the respective rights and interests of the heirs, and vendees or claimants between themselves, and by reason of the said partition not being equal, owelty was allowed to William, Millard, and Ruth. The portion set apart to the heirs, and vendees or claimants, under Daniel, included the south half of block G, the premises in controversy.

Two granddaughters of Lownsdale, through his daughter Sarah, now deceased, assumed accordingly that through their mother, this Sarah, they owned, together, her undivided one-fifth of the south half of the block G; each of them of course an undivided one-tenth.

Davenport denied such their ownership, asserting that he himself owned the whole of the south half of the block; or, if not the whole, then five-eighths; and, if not five-eighths, then one-half; either one of which latter interests in himself being inconsistent, like the first, with that of one-fifth in the said two granddaughters.

I. Davenport founded his ownership apparently of the whole of the south half in part on the first of the covenants (quoted supra, p. 420) in the deed of June 25th, 1850, to Chapman, through whom he claimed; and as much or more on a matter alleged by him, to wit, that in 1860 Lownsdale offered to sell him a portion of another block in Portland (block 75), and that he, Davenport, knowing that a difficulty was likely to occur about that and other property, submitted to Lownsdale a list of all the property he believed he then rightly held, and among the rest the south half of block G, and pointed out such as he thought the title of might be defective through him, and that Lownsdale agreed verbally for $2000 to give a confirmatory title to all the property thus submitted to him, 'that HE thought might require it.' Davenport accordingly paid the $2000, and Lownsdale gave to him a deed for half of block 75, and also a confirmatory deed for certain other lots, but not for the south half of block G; that lot not being included among those described in the confirmatory deed; and a lot therefore to which Lownsdale, as Davenport considered, was to be held to have declared that he had no title in himself.

II. But if this was not all so, and if what was thus alleged in the nature of an estoppel in pais did not exist or operate, Davenport conceived that still he had five-eighths of the property; for that (explaining), he had got—

First. Four-eighths, the true share (as he asserted) of Daniel as survivor of his wife, inasmuch as under the statute which gave the wife's property to her surviving husband and her children 'in equal proportions,' Daniel had got one-half or four-eighths, an equal share with the children, and not one-fifth, the same share as if he were but one of five children, regarded as a class; and that this one-half passed under the second of the two covenants of the deed of June 25th, 1850.

Second. One-eighth,-the eighth, to wit, that came from Isabella Gillihan; for, that this had been truly and literally 'obtained' by Daniel 'from the government of the United States,' though indirectly, and came under the covenant; the fact, as he assumed, that it came through Isabella, and not directly, not affecting Lownsdale's obligation or that of his heirs to convey.

III. The final and least favorable to himself of Davenport's positions was, that if this second fraction of title-the one-eighth-Isabella's share-did not pass, still that he, Davenport, had one-half; the share of Daniel as got by survivorship, and under the statute, as already stated, from his deceased wife Nancy.

In this state of claim respectively it was that the bill in this case was filed; the complainants setting up a claim for their one-fifth, and Davenport setting up his title; the matter already mentioned as alleged by way of estoppel in pais, though set out and well colored in his answer to the bill, not being proved by writing or in some essential features otherwise than by his own testimony.

The court below held that Daniel Lownsdale became the owner in fee of two-fifths (undivided) of the west half of the Lownsdale donation claim (being the part allotted to Nancy), including the south half of block G; one-fifth by donation from the United States upon the death of his wife Nancy, before the issue of the patent, and the other one-fifth by purchase from Isabella Gillihan; and that the title to the one-fifth of the south half of block G acquired from the United States enured to Davenport, by virtue of the covenant in the deed of June 25th, 1850, to Chapman, Davenport deriving his interest under Chapman; and that the remaining four-fifths in the south half of that block were owned by the four children of Lownsdale living, and the two children of his deceased daughter Sarah; and the court decreed a partition accordingly.

From this decree Davenport alone appealed to this court.

Mr. W. W. Chapman, for the appellant:

1. The decree is erroneous, in not giving to Davenport the whole of the property in controversy, instead of one-fifth of it.

2. If not thus erroneous, it is erroneous in not giving five-eighths.

3. And if not erroneous in either respect, it is erroneous in not giving to him one-half instead of one-fifth.

1. Davenport is entitled to the whole property. In making the decree below the first clause in the covenant is unnoticed, and the second (including the release obtained from Isabella) is held to operate only upon the same proportional interest in the block which Lownsdale obtained in the tract of 178 acres as survivor of his wife-determined by the court to be only one-fifth of it notwithstanding the original decree in partition had allotted to the vendees and heirs of Lownsdale the entire block.

The first covenant protects the covenantee and assigns, in the possession against Lownsdale and all other persons, and against any title ingrafted upon it through his instrumentality. He filed his notification, including it, and dating his settlement and residence from the 22d September, 1848, to and including the date of the covenant. This appropriated the possession and the block to his own use, against which he had covenanted to warrant and defend. He was not obliged to do this. He could as easily have omitted it as have embraced it, and he knew when he did so that his wife would thereby become entitled to an interest in her own right, and deprive the covenantee of the possession and title, unless by the happening of a contingency provided for by the law (then unlikely to occur), by which the title and possession might revest in him. In the face of this covenant he took this risk. In consequence of the peculiar form of the covenant, the covenantee might not have been able to maintain an action at law, and because the subject was, for the time, supposed to be out of reach of the arm of a court of equity. But the contingency did happen. The same possession, with a title ingrafted upon it, through his instrumentality, revested in him, and it is now within the reach of a court of equity, perfect and complete, as contemplated by the parties in the formation of the second covenant, and therefore his warranty should estop him and his heirs from asserting a right to the possession thus ripened into a title through his act.

In addition to this, the agreement between Davenport and Lownsdale operated as an estoppel in pais. The south one-half of block G was not put in the confirmatory deed only because Lownsdale declared he had no title to it. Having received the $2000 for confirming to Davenport all that he did claim, his descendants ought not now to be allowed to gainsay his declaration.

2. If not entitled to all, Davenport is entitled to five-eighths. The Donation Act gives the property to the husband, as one party, and to the children as the other, in equal proportions. Each thus takes one-half. This seems a more natural construction than to reduce the husband to the grade of a child. If this is so, Davenport has certainly one-half, equal to four-eighths.

But he has another fifth through Isabella under the second covenant.

Mr. G. H. Williams, contra, argued that the covenants to Chapman were joint and not several, and that being in a deed where he was himself grantor were void; that the heirs of Lownsdale were not named in it, and that it did not bind them; that the covenantors had not obtained the fee from the United States; but that it was granted to the heirs of Nancy Lownsdale, and that if the husband's share, as survivor of his wife, was within the covenant, the shares of the children assuredly were not; that these shares under the Oregon statute were four-fifths; the husband being only entitled to an equal proportion, or one-fifth, with them.

Mr. Justice FIELD, after stating the case, delivered the opinion of the court, as follows:

title: Davenport v. Lamb


text: Talk:Davenport v. Lamb

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

title: Talk:Davenport v. Lamb


text:
Davenport v. Lamb/Opinion of the Court

Neither of the patentees were living at the time the patent for the donation claim in this case was issued, Lownsdale having died in May, 1862, and Nancy having died in April, 1854. At common law the patent would have been inoperative and void from this circumstance. By that law the grant to a deceased party is as ineffectual to pass the title of the grantor as if made to a fictitious person; and the rule would apply equally to grants of the government as to grants of individuals, but for the act of Congress of May 20th, 1836, which obviates this result. That act declares: 'that in all cases where patents for public lands have been or may hereafter be issued, in pursuance of any law of the United States, to a person who has died, or who shall hereafter die, before the date of such patent, the title to the land designated therein, shall enure to, and become vested in, the heirs, devisees, and assigns of such deceased patentee, as if the patent had issued to the deceased person during life.' This act makes the title enure in a manner different from that provided by the Donation Act upon the death of either owner before the issue of the patent, for we do not understand that the survivor of the deceased husband or wife was at the time his or her heir by any law of Oregon. If the act of 1836 can be considered as applying to patents issued under the Donation Act, where the party originally entitled to the patent has died before the patent issues-and on this point no question is made by either party-then its language must be construed in connection with, and be limited by, the provisions of the Donation Act, giving the property of a deceased husband or wife to the survivor and children, or heirs of the deceased, unless otherwise disposed of by will; and in that case the patent here must be held to enure in favor of these parties instead of the heirs solely.

The four children of Nancy Lownsdale, the two by her first husband, Gillihan, and the two by her last husband, survived her, and these, with her surviving husband, became entitled, on her death, to her property in equal proportions, she having died intestate. This is, indeed, the express language of the statute, and in consequence each of the five persons named took an undivided fifth interest in the property. The learned counsel of the appellant, however, contends that the statute should be construed as dividing the property equally between the survivor on the one part, and the children or heirs upon the other. But the construction we give is the more natural one, and is in accordance with the uniform ruling of the courts, State and Federal, in Oregon.

In January, 1860, Lownsdale purchased the interest in this property of Isabella Gillihan (then Isabella Potter, she having intermarried with William Potter), and thus became owner of two undivided fifths. On this death these two undivided fifths passed to his heirs, he having died intestate, unless they were controlled by his covenant in the deed to Chapman.

In 1864 a suit was brought in a Circuit Court of the State of Oregon, by one of the children of Nancy by her first husband, for partition of the property which was assigned to her of the donation claim-the Nancy Lownsdale tract as it is termed. In that suit the heirs of both Daniel and Nancy, and numerous other persons, purchasers and occupants under Daniel and the appellant, Davenport, were made parties. The suit resulted in a decree setting off, so far as practicable, the two undivided interests of Daniel to his heirs and vendees in lots and blocks as they were claimed, without any determination, however, of the extent of the respective rights and interests of these heirs and vendees between themselves; and in setting apart the remaining undivided three-fifths in severalty to the children of Nancy who had retained their interests, owelty being allowed and paid for the inequalities existing in the partition. The tract set apart for the two-fifths of Lownsdale included the premises in controversy. The heirs of Lownsdale were his two children living by his first wife, two children of a deceased daughter by his first wife, named Emma S. Lamb and Ida Squires, and his two children by his second wife. Against these heirs the only claimant of the premises in controversy was the appellant, Davenport, who derived his interest by various mesne conveyances from Chapman.

The present suit is brought by the children of the deceased daughter of Lownsdale by his first wife, they having inherited her interest.

For its determination it is necessary to consider the effect upon the interest claimed by Davenport of the covenants contained in the deed of Lownsdale, Coffin, and Chapman, executed to Chapman on the 25th of June, 1850.

So far as that instrument purports to be a conveyance from Chapman to himself, it is of course ineffectual for any purpose. Its execution by him left his interest precisely as it existed previously. But this superfluous insertion of his name in the deed as a grantor, does not impair the efficacy of the instrument as a conveyance to him from Lownsdale and Coffin, nor their covenants with him and his heirs and assigns. These covenants must be treated as the joint contracts of the two actual grantors.

Whether these covenants bind the heirs of the covenantors, they not being named, may perhaps admit of question. The court below held that to the extent that the covenants affected the land, the heirs were bound by them, and as they have not appealed from this decision, it is unnecessary for the disposition of the case that the question should be determined by us.

What, then, is the effect and operation of the covenants? The first covenant, as already stated, is to warrant and defend the property released to Chapman, his heirs and assigns 'against all claims, the United States excepted.' At the time this covenant was executed the title to the property was in the United States, and this fact was well known to the parties. Land was then occupied by settlers throughout the Territory of Oregon, under laws of the provisional government, which were generally respected and enforced. These laws could of course only confer a possessory right, and no one pretended to acquire any greater interest under them. It was against the assertion of claims from this source and any other source, except the United States, the owner of the fee, that the covenant in question was directed. By it the grantors were precluded from asserting any interest in the premises against the grantee and his heirs and assigns, unless such interest were acquired from the United States. The warranty does not cover that interest, and did not preclude its acquisition by the covenantors or either of them, or by their heirs, or its enjoyment by them or either of them when acquired.

The second covenant is that if the grantors obtain the fee simple to the property from the government of the United States, they will convey the same to the grantee, his heirs or assigns, 'by deed of general warranty.' This covenant is special and limited. It takes effect only in case the grantors, or their heirs (if the covenant binds the heirs), acquire the title directly from the United States; it does not cover the acquisition of the title of the United States from any intermediate party, and this was evidently the intention of the parties. They expected to obtain by the legislation of Congress the title of the United States to lands in their possession, and in case their expectations in this respect were realized, they contracted to convey the same to their grantee, or to his heirs or assigns. They could not have intended, in case their expectations were disappointed, and the title passed from the United States to other parties, to render it impossible for them to acquire that title in all future time from those parties without being under obligation to instantly transfer it to the grantee or his successors in interest. And such would be the effect of their covenant if it were given an operation beyond the precise limitation specified.

As already stated, Lownsdale took under the Donation Act, as the survivor of his deceased wife, one undivided fifth interest in her property, and he subsequently purchased a similar interest from Isabella Gillihan, a daughter of his wife by her first husband. The interest which he thus purchased is not covered by the covenant. He did not acquire it directly from the United States. Whether the interest which he received as survivor of his deceased wife, Nancy Lownsdale, is within the covenant depends upon the question whether he took that interest by descent, as heir of Nancy, or directly as donee from the United States. The court below held that he took as donee, and not as heir, and that in consequence the interest was within the operation of the covenant, and Davenport, his assignee, was entitled to have such interest transferred to him, and that interest was accordingly set apart in severalty to him.

Whether this ruling is correct it is unnecessary for us to determine. The appellant does not of course controvert it, and the heirs of Lownsdale, who alone could in this case question its correctness, have not appealed from the decree of the court below.

The parol evidence offered of an alleged contract, in 1860, on the part of Lownsdale with Davenport, to confirm the title of the latter to the whole of block G, and of Lownsdale's declarations at that time as to the title, is entirely insufficient to create any estoppel in pais against the assertion of the interest claimed by his heirs to portions of that property. The alleged contract of Lownsdale was simply to confirm the title of Davenport to all lands to which he, Lownsdale, deemed the title doubtful; and the ground of complaint appears to be that he did not consider the title of Davenport to block G as doubtful, and so declared, and therefore did not include that block in the property covered by his confirmatory deed. The declarations are at best but the expression of his opinion in relation to a subject upon which Davenport was equally well informed, or possessed equally with him the means of information. If the evidence of such declarations could be received years after the death of the party who is alleged to have made them, to control the legal title which has descended to his heirs, a new source of insecurity in the tenure of property would be created, and heirs would often hold their possessions upon the uncertain testimony of interested parties, which it would be difficult and sometimes impossible to meet or explain after an interval of years, instead of holding them upon the sure foundations of the records of the country.

AFFIRMED.

title: Davenport v. Lamb/Opinion of the Court


text: Talk:Davenport v. Lamb/Opinion of the Court


text:
West Tennessee Bank v. Citizens' Bank

MOTION, by Mr. Edward Janin, to dismiss, for want of jurisdiction, a writ of error to the Supreme Court of Louisiana, in a case wherein the Bank of West Tennessee was the plaintiff, and the Citizens' Bank of Louisiana, defendant; the case having been brought into this court by a writ of error, issued under the 25th section of the Judiciary Act.

Mr. T. J. Durant opposed the motion.

Mr. Justice SWAYNE stated the case, and delivered the opinion of the court.

title: West Tennessee Bank v. Citizens' Bank


text: Talk:West Tennessee Bank v. Citizens' Bank


text:
West Tennessee Bank v. Citizens' Bank/Opinion of the Court

The plaintiff in error brought suit against the defendant in error, in the Fifth District Court of New Orleans, to recover the sum of $93,380.97, for moneys deposited by the plaintiff with the defendant, and moneys collected by the latter for the former. All the so-called moneys received by the defendant were the notes of the rebel government. The District Court, on the 27th of March, 1867, gave judgment for the plaintiff. The case was thereupon taken by appeal to the Supreme Court of the State. That court, on the 14th of December, 1869, reversed the judgment of the court below and dismissed the case. In the opinion delivered it was said: 'Under the constitution of 1868 the courts of this State cannot entertain an action based upon transactions in Confederate treasury notes. We think the evidence discloses that this case is founded upon dealings in unlawful currency, and the court has often refused to lend its aid to transactions reprobated by law.' The constitution of 1868 was not in existence when the case was decided by the District Court.

The Supreme Court founded its judgment alike upon the constitutional provision and prior adjudications. Those adjudications are numerous and conclusive upon the subject. The constitution only declared a settled pre-existing rule of jurisprudence in that State. The result in this case would have been necessarily the same if the constitution had not contained the provision in question. This brings the case within the authority of Bethell v. Demaret. Upon such a state of facts this court cannot take jurisdiction under the section of the Judiciary Act upon which the writ of error is founded. The motion must, therefore, be sustained, and the case

DISMISSED.


text: Talk:West Tennessee Bank v. Citizens' Bank/Opinion of the Court


text:
Page:Copyright, Its History And Its Law (1912).djvu/197

 choruses usually but not necessarily published in octavo form; and the duplication of the words " public school," etc., is probably a verbal error in the bill which mistakenly became part of the law. The proviso is doubtless intended and would fairly be construed to permit gratuitous unauthorized performance of religious or secular works such as oratorios, cantatas, masses, and choruses by public schools, church choirs, school choirs or vocal societies, from copies rented, borrowed, or obtained from some public library, provided the performance is given for charitable or educational purposes and not for profit. Curiously the letter of the proviso would seem to provide that the beneficiary organization cannot perform from a purchased copy, but only from copies rented, borrowed or "obtained from" some public source; but this also is an evident error.

It should be noted that the omission from subsec tion (d) as to drama and the inclusion in subsection (e) as to music, of the words "for profit," — doubtless with the intent of assuring to the individual purchaser of music the right to perform it privately, — have significance here, and serve, it would seem, to give the dramatic author absolute control even over gratuitous performances and to limit the control of the musical author to performances which are not gratuitous, a negative provision covering, and giving much wider latitude than, the proviso (sec. 28) above cited. But as dramatico-musical compositions are classified (sec. 5, d) with dramatic compositions, and an oratorio and possibly a cantata might be considered as a dramatico-musical composition, the proviso (sec. 28) may have a specific effect as to this kind of dramatico-musical compositions. The law is unfortunately defective and confusing by reason of this proviso and will be so difficult of judicial


text:
Clinton v. Englebrecht

ERROR to the Supreme Court of the Territory of Utah.

The principal question for consideration in this case was raised by the challenge of the defendants to the array of the jury in the Third District Court of the Territory of Utah.

The suit was a civil action for the recovery of a penalty for the destruction of certain property of the plaintiffs by the defendants. The plaintiffs were retail liquor dealers in the city of Salt Lake, and had refused to take out a license as required by an ordinance of the city. The defendants, acting under the same ordinance, thereupon proceeded to the store of the plaintiffs and destroyed their liquors to the value, as alleged, of more than $22,000. The statute gave an action against any person who should wilfully and maliciously injure or destroy the goods of another for a sum equal to three times the value of the property injured or destroyed. Under this statute the plaintiffs claimed this threefold value.

The act of the Territorial legislature, passed in 1859, and in force when the jury in this cause was summoned, required that 'the county court' in each county should make out from the assessment rolls, a list of fifty men qualified to serve as jurors; and that thirty days before the session of the District Court, 'the clerk of said court' should issue a writ to the Territorial marshal or any of his deputies, requiring him to summon twenty-four eligible men to serve as petit jurors. These men were to be taken by lot, in the mode pointed out by the statute, from the lists previously made by the clerks of the county courts, and their names were to be returned by the marshal to the clerk of the District Court. Provision was further made for the drawing of the trial panel from this final list, and for its completion by a new drawing or summons in case of non-attendance or excuse from service upon challenge, or for other reason.

For the trial of the cause the record showed that the court originally directed a venire to be issued in conformity with this law, and that a venire was issued accordingly, but not served or returned. The record also showed that under an order subsequently made, an open venire was issued to the Federal marshal, which was served and returned with a panel of eighteen petit jurors annexed; the court, in making this order, acting apparently on the theory that it was a court of the United States, and to be governed in the selection of jurors by the acts of Congress. The jurors thus summoned were summoned from the body of the county at the discretion of the marshal. Twelve jurors of this panel were placed in the jury-box, and the defendants challenged the array on the ground that the jurors had not been selected or summoned in conformity with the laws of the Territory and with the original order of the court. This challenge was overruled. Exception was taken, and the cause proceeded. Both parties challenged for cause. Each of the defendants claimed six peremptory challenges. This claim was also overruled and exception was taken. Other exceptions were also taken in the progress of the cause. Under the charge of the court a verdict was rendered for the plaintiffs, under which judgment was entered for $59,063.25, and on appeal was affirmed by the Supreme Court of the Territory. A writ of error to that court brought the cause here.

Mr. C. J. Hillyer, for the plaintiff in error:

The District Court in disregarding, as it confessedly did, the statute of the Territory prescribing the mode of obtaining panels of jurors, acted on an assumption that the Territorial courts were 'courts of the United States,' such courts in the same sense as are those courts which are established under the article of the Constitution which relates to the Judicial power. This was a fundamental error. They are not such courts. The whole assumption on which the court proceeded having been a false one, and the jury having been summoned in a way wholly wrong, there is no question but that the judgment must be reversed.

But how ought the jury to have been summoned? Plainly in the way prescribed by the Territorial law. The organic act ordains:

'The legislative power of said Territory shall extend to all rightful subjects of legislation, consistent with the Constitution of the United States, and the provisions of this act; but no law shall be passed interfering with the primary disposal of the soil. No tax shall be imposed upon the property of the United States, nor shall the lands or other property of non-residents be taxed higher than the lands or other property of residents.'

Now, certainly the mode of procuring panels of jurors is a 'rightful subject of legislation.' Nothing is set forth in either the constitution or the act which would make legislation on that subject inconsistent with them. The sort of limitation on the legislative power of the Territory meant to be set up, is indicated by the unitalicized or latter part of the above-quoted paragraph. But it has no looking towards the matter of juries. The act is obviously a good one; securing impartiality and excluding the influence of individual prejudice.

Mr. Baskin, contra:

The question which it is supposed by opposing counsel arises, does not in fact arise, because the defendants waived their objection to the jury, by exercising their right to challenge jurors peremptorily and for cause. They should have stood by their challenge to the array, and could not by their own act change the body of the jury, and go on with the trial, and avail themselves of the chances of a verdict in their favor, without also incurring the perils of a verdict against them. The People v. McKay, to which we refer the court, settles this point.

But passing to the question sought to be raised. Was the jury legally impanelled? The resolution of the question depends on certain sections of the organic law of the Territory, and certain acts of Congress. There is no doubt of their existence, and they constitute a part of the case.

The jury was undoubtedly rightly impanelled, if the District Court of the Territory is to be regarded as a District Court of the United States. Was it such a court?

The 6th section of the organic act provides:

'That the legislative power of said Territory shall extend to all rightful subjects of legislation, consistent with the Constitution of the United States and the provisions of this act.'

The 17th section,

'That the Constitution and laws of the United States are hereby extended over and declared to be in force in said Territory of Utah, so far as the same, or any provision thereof, may be applicable.'

The 10th section, that

'There shall also be a marshal for the Territory appointed,. . . who shall execute all process issuing from said courts (the District and Supreme Courts of the Territory), when exercising their jurisdiction as Circuit and District Courts of the United States; he shall perform the duties, be subject to the same regulation and penalties, and be entitled to the same fees as the marshal of the District Court of the United States for the present Territory of Oregon.'

The statute defining the duties of the marshal of the District Court for the Territory of Oregon refers, as in manner above, to the duties of the marshal of the District Court for the Territory of Wisconsin. And reference is had in like manner to the Northern District of New York, in defining the duties of the marshal of the District Court of Wisconsin. And reference from the Northern District of New York is made to the general duties of Marshals of the District Court of the United States.

Now what are the duties of the marshals of the United States? The Judiciary Act declares them. Its 27th section provides:

'That a marshal shall be appointed in and for each district, whose duty it shall be to attend the District and Circuit Courts when sitting therein, and also the Supreme Court in the district in which that court shall sit; and to execute throughout the district all lawful precepts directed to him, and issued under the authority of the United States.'

It is further provided:

'That the marshals of the several districts and their deputies shall have the same powers in executing the laws of the United States as sheriffs and their deputies in the several States have by law in executing the laws of the respective States.'

In assuming, therefore, that the courts of the Territory were courts of the United States, and in giving order to the Federal marshal to summon the jurors, the District Court proceeded rightly.

Again. The organic act further enacts:

'That the judicial power of the Territory shall be vested in a Supreme Court, District Court, probate courts, and justices of the peace.'

No such court as 'the county court,' and no such officer as clerk of said court, can have any legal existence in Utah, because the courts in which the judicial power of the Territory is lodged are specifically named in the organic act, and the county court is not among them.

But yet further. To have proceeded under the act of the Territorial legislature would have been to proceed wrongly.

The 7th section of the organic act of Utah provides:

'That all township, district, and county officers, not herein provided for, shall be appointed or elected, as the case may be, in such manner as shall be provided by the governor and the legislative assembly of the Territory of Utah. The governor shall nominate, and by and with the advice and consent of the legislative council appoint, all officers not herein provided for.'

Now the Territorial marshal is neither 'a township, district, or county officer.' He ought, therefore, to have been nominated by the governor, and by and with the advice and consent of the legislative council appointed. Yet he was not thus nominated and appointed. He was elected in pursuance of an act of the Territorial legislature of Utah, approved March the 3d, 1852, by which it is provided:

'That a marshal shall be elected by a joint vote of both houses of the legislative assembly, whose term of office shall be one year, unless sooner removed by the legislative assembly,' &c.

The Territorial marshal thus created, is required to officiate in the selection and summoning the grand and petit juries for the District Courts of Utah Territory, in all cases, both where the United States is a party as well as cases between individuals, and as well in enforcing the laws of the United States as in enforcing the laws of the Territory. The language of the statute is:

'It shall be the duty of the marshal. . . to execute all processes of the Supreme or District Courts, in all cases arising under the laws of the Territory.

'When a District Court is to be held, whether for a district or county. . . the clerk shall. . . issue a writ to the Territorial marshal.'

It is further made the duty of the Territorial marshal to assist in selecting the grand and petit juries, and then summon and return the same.

That the District Courts of the Territory of Utah exercise their jurisdiction as 'District Courts of the United States' is made plain by decisions of this very court. Thus by the 6th section of the Judiciary Act, this court is authorized to make rules of practice for the District and Circuit Courts of the United States. In pursuance of this authority, it did make rules of practice for the said courts, and in Orchard v. Hughes, in a civil case between individuals, these rules were held to apply to the District Court of a Territory. If the District Courts of the Territory do not exercise their jurisdiction as District Courts of the United States in all adjudications between individuals, it follows that the decision of Orchard v. Hughes was erroneous, so it may be added was the earlier one of Hunt v. Palao.

The CHIEF JUSTICE delivered the opinion of the court.

title: Clinton v. Englebrecht


text: Talk:Clinton v. Englebrecht

title: Talk:Clinton v. Englebrecht


text:
Clinton v. Englebrecht/Opinion of the Court

It is plain that the jury was not selected or summoned in pursuance of the statute of the Territory. That statute was, on the contrary, wholly and purposely disregarded, and the controlling question raised by the challenge to the array is, whether the law of the Territorial legislature, prescribing the mode of obtaining panels of grand and petit jurors, is obligatory upon the District Courts of the Territory.

It was insisted in argument that the challenge to the array was waived by the defendants through the exercise of their right to challenge peremptorily and for cause; and we were referred to the judgment of the Supreme Court of New York, in the case of The People v. McKay, as an authority for this proposition. But that case appears to be an authority for the opposite conclusion. 'We are not of opinion,' says the court, 'that the prisoner's peremptory challenge of jurors was a waiver of his right to object now to the want of a venire.' In that case there had been no venire, but the jury had been summoned in a mode not warranted by law. In the case before us there was a venire, but if it was not authorized by law it was a nullity; and we are not prepared to say that the efforts of the defendants to secure as far as they could, by peremptory challenges and challenges for cause, a fair trial of their case, waived an inherent and fatal objection to the entire panel.

We are, therefore, obliged to consider the question whether the District Court, in the selection and summoning of jurors, was bound to conform to the law of the Territory.

The theory upon which the various governments for portions of the territory of the United States have been organized, has ever been that of leaving to the inhabitants all the powers of self-government consistent with the supremacy and supervision of National authority, and with certain fundamental principles established by Congress. As early as 1784 an ordinance was adopted by the Congress of the Confederation providing for the division of all the territory ceded or to be ceded, into States, with boundaries ascertained by the ordinance. These States were severally authorized to adopt for their temporary government the constitution and laws of any one of the States, and provision was made for their ultimate admission by delegates into the Congress of the United States. We thus find the first plan for the establishment of governments in the Territories, authorized the adoption of State governments from the start, and committed all matters of internal legislation to the discretion of the inhabitants, unrestricted otherwise than by the State constitution originally adopted by them.

This ordinance, applying to all Territories ceded or to be ceded, was superseded three years later by the Ordinance of 1787, restricted in its application to the territory northwest of the river Ohio-the only territory which had then been actually ceded to the United States.

It provided for the appointment of the governor and three judges of the court, who are authorized to adopt, for the temporary government of the district, such laws of the original States as might be adapted to its circumstances. But, as soon as the number of adult male inhabitants should amount to five thousand, they were authorized to elect representatives to a house of representatives, who were required to nominate ten persons from whom Congress should select five to constitute a legislative council; and the house and the council thus selected and appointed were thenceforth to constitute the legislature of the Territory, which was authorized to elect a delegate in Congress with the right of debating, but not of voting. This legislature, subject to the negative of the governor and certain fundamental principles and provisions embodied in articles of compact, was clothed with the full power of legislation for the Territory.

The Territories south of the Ohio, in 1790; of Mississippi, in 1798; of Indiana, in 1800; of Michigan, in 1805; of Illinois, in 1809; were organized upon the same plan, except that the prohibition of slavery, embodied in the Ordinance of 1787, was not embraced among the fundamental provisions in the organization of the Territories south of the Ohio; and the people in the Territories of Michigan, Indiana, and Illinois were authorized to form a legislative assembly, as soon as they should see fit, without waiting for a population of five thousand adult males.

Upon the acquisition of the foreign territory of Louisiana, in 1803, the plan for the organization of the government was somewhat changed. The governor and council of the Territory of Orleans, which afterwards became the State of Louisiana, were appointed by the President, but were invested with full legislative powers, except as specially limited. A District Court of the United States distinct from the courts of the Territory was instituted. The rest of the Territory was called the District of Louisiana, and was placed under the government of the governor and judges of Indiana.

Jurisdiction of cases in which the United States were concerned, subject to appeal to the Supreme Court of the United States, was for the first time expressly given to a Territorial court in 1805. The Territory of Missouri was organized in 1812, and upon the same plan as the Territories acquired by cessions of the States. In the act for the government of this Territory appears for the first time a provision concerning the qualifications of jurors. The 16th section of the act provided that all free white male adults, not disqualified by any legal proceeding, should be qualified as grand and petit jurors in the courts of the Territory, and should be selected, until the General Assembly should otherwise direct, in such manner as the courts should prescribe.

The Territory of Alabama, in 1817, was formed out of the Mississippi Territory, and upon the same plan. The Superior Court of the Territory was clothed with the Federal jurisdiction given by the act of 1805. The Territory of Arkansas was organized in 1819, in the southern part of Missouri Territory. The powers of the government were distributed as executive, legislative, and judicial, and vested respectively in the governor, General Assembly, and the courts. The governor and judges of the Superior Court were to be appointed by the President, and the governor was to exercise the legislative powers until the organization of the General Assembly. The act for the organization of the Territorial government of Florida made the same distribution of the powers of the government as was made in the Territory of Arkansas, and contained the same provision in regard to jurors as the act for the Territorial government of Missouri.

In all the Territories full power was given to the legisla ture over all ordinary subjects of legislation. The terms in which it was granted were various, but the import was the same in all.

Except in the acts relating to Missouri and Arkansas, no power was given to the courts in respect to jurors, and the limitation of this power until the organization of the General Assembly indicates very clearly that, after such organization, the whole power in relation to jurors was to be exercised by that body.

In 1836 the Territory of Wisconsin was organized under an act, which seems to have received full consideration, and from which all subsequent acts for the organization of Territories have been copied, with few and inconsiderable variations. Except those in the Kansas and Nebraska acts in relation to slavery, and some others growing out of local circumstances, they all contained the same provisions in regard to the legislature and the legislative authority, and to the judiciary and the judicial authority, as the act organizing the Territory of Utah. In no one of them is there any provision in relation to jurors.

The language of the section conferring the legislative authority in each of these acts is this:

'The legislative power of said Territory shall extend to all rightful subjects of legislation, consistent with the Constitution of the United States, and the provisions of this act; but no law shall be passed interfering with the primary disposal of the soil. No tax shall be imposed upon the property of the United States, nor shall the lands or other property of non-residents be taxed higher than the lands or other property of residents.'

As there is no provision relating to the selection of jurors in the constitution, or the organic act, it cannot be said that any legislation upon this subject is inconsistent with either. The method of procuring jurors for the trial of cases is therefore a rightful subject of legislation, and the whole matter of selecting, impanelling, and summoning jurors is left to the Territorial legislature.

The action of the legislatures of all the Territories has been in conformity with this construction. In the laws of every one of them from that organized under the Ordinance of 1787 to the Territory of Montana are found acts upon this subject. And it is worth while to remark that in three of the Territories, Nevada, New Mexico, and Idaho, the judge of the probate has been associated with other officials in the selection of the lists for the different counties.

This uniformity of construction by so many Territorial legislatures of the organic acts in relation to their legislative authority, especially when taken in connection with the fact that none of these jury laws have been disapproved by Congress, though any of them would be annulled by such disapproval, confirms the opinion, warranted by the plain language of the organic act itself, that the whole subject-matter of jurors in the Territories is committed to Territorial regulation.

If this opinion needed additional confirmation it would be found in the Judiciary Act of 1789. The regulations of that act in regard to the selection of jurors have no reference whatever to Territories. They were framed with reference to the States, and cannot, without violence to rules of construction, be made to apply to Territories of the United States. If, then, this subject were not regulated by Territorial law, it would be difficult to say that the selection of jurors had been provided for at all in the Territories.

It is insisted, however, that the jury law of Utah is defective in two material particulars: First, that it requires the jury lists to be selected by the county court, upon which the organic law did not permit authority for that purpose to be conferred: Second, that it requires the jurors to be summoned by the Territorial marshal, who was elected by the legislature, and not appointed by the governor. We do not perceive how these facts, if truly alleged, would make the mode actually adopted for summoning the jury in this case, legal. But we will examine the objections.

In the first place we observe that the law has received the implied sanction of Congress. It was adopted in 1859. It has been upon the statute-book for more than twelve years. It must have been transmitted to Congress soon after it was enacted, for it was the duty of the secretary of the Territory to transmit to that body copies of all laws, on or before the 1st of the next December in each year. The simple disapproval by Congress at any time, would have annulled it. It is no unreasonable inference, therefore, that it was approved by that body.

In the next place, we are of opinion, that the making of the jury lists by the county courts was not a judicial act. Conceding that it was not in the power of the Territorial legislature to confer judicial authority upon any other courts than those authorized by the organic law, and that it was not within its competency to organize county courts for the administration of justice, we cannot doubt the right of the Territorial legislature to associate select men with the judge of probate, and to call the body thus organized, a county court, and to require it to make lists of persons qualified to serve as jurors. In making the selection, its members acted as a board, and not as a judicial body.

Nor do we think the other objection sound, viz.: That the required participation of the Territorial marshal in summoning jurors invalidated his acts, because he was elected by the legislature, and not appointed by the governor. He acted as Territorial marshal under color of authority, and if he was not legally such, his acts cannot be questioned indirectly.

But, we repeat, that the alleged defects of the Utah jury law are not here in question. What we are to pass upon is the legality of the mode actually adopted for impanelling the jury in this case. If the court had no authority to adopt that mode, the challenge to the array was well taken, and should have been allowed.

Acting upon the theory that the Supreme and District Courts of the Territory were courts of the United States, and that they were governed in the selection of jurors by the acts of Congress, the District Court summoned the jury in this case by an open venire. We need not pause to inquire whether this mode was in pursuance of any act of Congress, for, if such act was not intended to regulate the procuring of jurors in the Territory, it has no application to the case before us. We are of opinion that the court erred both in its theory and in its action.

The judges of the Supreme Court of the Territory are appointed by the President under the act of Congress, but this does not make the courts they are authorized to hold courts of the United States. This was decided long since in The American Insurance Company v. Canter, and in the later case of Benner v. Porter. There is nothing in the Constitution which would prevent Congress from conferring the jurisdiction which they exercise, if the judges were elected by the people of the Territory, and commissioned by the governor. They might be clothed with the same authority to decide all cases arising under the Constitution and laws of the United States, subject to the same revision. Indeed, it can hardly be supposed that the earliest Territorial courts did not decide such questions, although there was no express provision to that effect, as we have already seen, until a comparatively recent period.

There is no Supreme Court of the United States, nor is there any District Court of the United States, in the sense of the Constitution, in the Territory of Utah. The judges are not appointed for the same terms, nor is the jurisdiction which they exercise part of the judicial power conferred by the Constitution or the General government. The courts are the legislative courts of the Territory, created in virtue of the clause which authorizes Congress to make all needful rules and regulations respecting the Territories belonging to the United States.

The Supreme Court of the Territory was doubtless misled by the inadvertent use of the words 'marshal of the District Court of the United States for the Territory of Oregon' in the organic law. This act defines the duties, liabilities, and fees of the marshal for the Territory by reference to those of the marshal of the District Court of the United States for the Territory of Oregon. On reference to the act organizing that Territory, we find that the duties of the marshal were to be the same as those of the marshal for the District Court of the United States for the Territory of Wisconsin. On reference to the act organizing the last-named Territory, the duties, liabilities, and fees of the marshal were described to be the same as those of the 'marshal of the District Court of the United States for the Northern District of New York.' Hence, the words 'marshal of the District Court of the United States' have crept into the various acts organizing these Territories. But the description of the court which was proper in a State would be improper in a Territory.

The organic act authorized the appointment of an attorney and a marshal for the Territory, who may properly enough be called the attorney and marshal of the United States for the Territory; for their duties in the courts have exclusive relation to cases arising under the laws and Constitution of the United States.

The process for summoning jurors to attend in such cases may be a process for exercising the jurisdiction of the Territorial courts when acting, in such cases, as Circuit and District Courts of the United States; but the making up of the lists and all matters connected with the designation of jurors are subject to the regulation of Territorial law. And this is especially true in cases arising, not under any act of Congress, but exclusively, like the case in the record, under the laws of the Territory.

There is nothing in this opinion inconsistent with the cases of Orchard v. Hughes, or of Hunt v. Palao, properly understood. The first of these cases went upon the ground that the chancery jurisdiction conferred upon the courts of the Territories by the organic act was beyond the reach of Territorial legislation; and the second, in which the Territorial Court of Appeals was called a court of the United States, was only intended to distinguish it from a State court.

Upon the whole, we are of opinion that the jury in this case was not selected and summoned in conformity with law, and that the challenge to the array should have been allowed. This opinion makes it unnecessary to consider the other questions in the case.

JUDGMENT REVERSED.


text: Talk:Clinton v. Englebrecht/Opinion of the Court


text:
United States v. Vigil (80 U.S. 449)

APPEAL from the Supreme Court of the Territory of New Mexico; the case being thus:

On the 28th of December, 1845, one Vigil and certain other persons addressed a petition to the Most Excellent Departmental Assembly, through Armijo, governor of New Mexico, asking for a grant of a tract of land called the Jornada del Muerto, binding themselves, if the grant were made, to construct two wells for the relief and aid of travellers, and establish two factories for the use of the State, and to protect them from hostile invasion. The governor transmitted the petition to the Assembly, but declined to recommend that favorable action should be taken upon it, on account of the novel character of the application. Notwithstanding the refusal of the governor to recommend favorable action, the Assembly, on the 10th of January, 1846, granted the tract to the petitioners for the purpose of constructing wells and cultivating the lands, so far as their means would permit, without being entitled to an exclusive right to the pasture. The tract disposed of in this way, embraced an area of over two millions of acres. Soon after this, as is known, war broke out between the United States and Mexico; and the whole region where the land lay passed by conquest and treaty to the government of our own country. Hereupon Vigil and the other parties, asserting title under the grant, presented their claim to the surveyor general of New Mexico for confirmation. He, however, rejected it. The claimants then applied to Congress for relief, and a law was passed for their benefit, which authorized them to institute a suit in the Supreme Court of the Territory of New Mexico against the United States; the law declaring further that the same principles should be applied to the determination of the controversy, which Congress had prescribed for the decision of similar land claims in California, derived under the authority of the Mexican government. Suit was accordingly brought in the court mentioned-the court below-and that court confirmed the claim. From the decree of confirmation the case was now here on appeal by the United States.

The case was ably and elaborately argued, and a wide range taken in the discussion of questions presented by the record, but collateral to the history already given, which it is not necessary to notice in view of the grounds hereinafter set forth, on which the decision of this court is rested.

Mr. J. A. Wills and Mr. B. H. Bristow, Solicitor-General, for the United States; Mr. J. S. Watts and T. Ewing, contra.

Mr. Justice DAVIS delivered the opinion of the court.

title: United States v. Vigil (80 U.S. 449)


text: Talk:United States v. Vigil (80 U.S. 449)


text:
United States v. Vigil (80 U.S. 449)/Opinion of the Court

It has been repeatedly decided by this court, that the only laws in force in the Territories of Mexico for the disposition of the public lands, with the exception of those relating to missions and towns, are the act of the Mexican Congress of 1824, and the regulations of 1828. The avowed purpose of the Congress in enacting this law, and of the supreme government in carrying it into effect, was to colonize the public domain; to preserve it for settlement or cultivation. The favor of the legislature has, doubtless, been often abused by unworthy ministers in charge of the remote Territories, but this consideration in no wise detracts from the wisdom of the policy on this subject. This policy recognized the obligation resting on the government to hold the public lands as a public trust, to be administered for the benefit of those who would settle upon them or cultivate them. They could not be sold for money, nor granted away in consideration of past public services, nor on condition of making public improvements, of use to the travelling community, or of general benefit to the state. The power to cede them depended entirely on the uses to which they were to be put, and these, as we have seen, were cultivation or settlement. The legal right to dispose of them for other objects, was withdrawn from the local authorities, and rested alone with the supreme government.

If the policy of the law were wise, so were the regulations established for the purpose of carrying out its provisions. These regulations conferred on the governors of the Territories, 'the political chiefs,' as they are called, the authority to grant vacant lands, and did not delegate it to the Departmental Assembly. It is true the grant was not complete until the approval of the Assembly, and in this sense the Assembly and governor acted concurrently, but the initiative must be taken by the governor. He was required to act in the first instance-to decide whether the petitioner was a fit person to receive the grant, and whether the land itself could be granted without prejudice to the public or individuals. In case the information was satisfactory on these points, he was authorized to make the grant, and at the proper time to lay it before the Assembly, who were required to give or withhold their consent. They were in this respect an advisory body to the governor, and sustained the same relation to him, that the Senate of the United States does to the President in the matter of appointments and treaties. The Mexican government chose to intrust to an officer appointed by it, the execution of its policy on the subject of the public domain, rather than to an elective assembly, over whose conduct it could not in the nature of things exercise the same supervision and control. It would seem, owing to the remoteness of the Territories from the seat of the General government, and the sparseness of the population, that the wisdom of the selection could not be disputed, but be this as it may, it was the undoubted right of the Mexican government to decide the question for itself, and this court cannot be required to go further than to give effect to that decision.

These views dispose of this case, for the grant in controversy was the sole act of the Assembly, and has not even the element of the governor's recommendation in its favor.

But if it were otherwise, and the cession were the act of the governor, it would still be invalid, because it would violate the fundamental rule on which the right of donation was placed by the law. The essential element of colonization is wanting, and, besides, the number of acres granted was enormously in excess of the maximum quantity grantable under the law. The decrees of the Cortes of Spain are invoked as an authority for this grant, but it is sufficient to say, that they were invoked for a similar purpose in Vallejo's case, and were decided to be inapplicable to the state of things existing in Mexico after the revolution of 1820. And the organic bases of the Mexican republic of June 13th, 1843, are equally ineffectual to support this grant. If it be conceded the powers of the Departmental Assembly were enlarged by these decrees, so far as the private property belonging to the department, as a municipal organization, is concerned, yet they effected no change in the mode of disposing of the public lands, nor was the colonization policy of 1824, at all altered by them, for they expressly declare that 'in alienations of lands, the existing laws will be observed and what the colonization laws determine.'

In any aspect of this case, the claim for this large tract of land has no foundation to rest upon. The Departmental Assembly, aided in a certain sense by the governor, usurped the prerogative of the supreme government, and no ingenuity of reasoning can sanction a proceeding, which was not only without authority of law, but contrary to the forms prescribed by it.

JUDGMENT REVERSED, and the cause remanded to the court below, with directions to enter a decree

DISMISSING THE PETITION.


text: Dictionary of National Biography, 1885-1900/Wace


text: Talk:United States v. Vigil (80 U.S. 449)/Opinion of the Court


text:
Tucker v. Spalding

ERROR to the Circuit Court for the District of California.

Spalding brought an action at law against Tucker, to recover damages for the infringement of a patent for the use of movable teeth in saws and saw-plates.

The plaintiff's patent claimed the forming of recesses or sockets in saws or saw-plates for detachable or removable teeth on circular lines, and in combination with these recesses, teeth having their base or bottom parts formed on circular lines as described.

The defendant offered in evidence as covering the subject-matter of the plaintiff's patent a patent to Jonah Newton, confessedly prior in date and invention to that of plaintiff. This patent of Newton's had cutters of the same general shape and form, including circular base, as the saw-teeth of the other patent, attachable to a circular disk, and removable as in the other, but attached by screws or nuts, and the claim or purpose of the Newton patent was for cutting tongues and grooves, mortices, &c. In connection with the offer of the patent to Newton, the defendant offered to prove by experts that the process of Newton's patent, and of the machine made thereunder, and of the result produced thereby, were the same process, machine, and result as were involved in the patent of the plaintiff; that saws were made under Newton's patent, and were in practical operation (the exhibition of the saws so made and operated being also offered); that the machine made under Newton's patent rotated in precisely the same manner and with the same effect as a circular saw, and that what in Newton's patent were designated 'cutters,' performed the same functions as the detachable teeth, described in the plaintiff's patent, and accomplished the same result; and that the said 'cutters' were nothing in reality but detachable saw-teeth, inserted on circular lines, and rounded at the base and inserted in circular sockets, and secured an equal distribution of the pressure on the said 'cutters,' over and upon the circular sockets in which they were set, and thus prevented fracture of the disk or plate.

The court refused to admit the patent to Newton in evidence. Verdict and judgment were rendered accordingly for the plaintiff, Spalding, and the other party brought the case here on error, assigning several errors in the rejection of evidence and in the charge of the court. The cardinal point of the case, however, was the refusal of the court to permit the Newton patent to be read to the jury; the bills of exception including, however, the rejection of the testimony of experts, to prove the identity of the invention described in the Newton patent with that of the plaintiff.

Mr. W. C. Witter, for the plaintiff in error (a brief of Mr. George Gifford being filed), argued that the evidence rejected ought to have been submitted to the jury; and went also into a full exhibition of diagrams and models to show that the two inventions were in truth the same.

Messrs. M. A. Wheaton and J. J. Coombs, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Tucker v. Spalding


text: Talk:Tucker v. Spalding

title: Talk:Tucker v. Spalding


text:
Tucker v. Spalding/Opinion of the Court

We are of opinion that the court erred in refusing to admit the patent to Newton, confessedly prior in date and invention to that of the plaintiff, which the defendant offered as covering the subject-matter of the plaintiff's patent.

Whatever may be our personal opinions of the fitness of the jury as a tribunal to determine the diversity or identity in principle of two mechanical instruments, it cannot be questioned that when the plaintiff, in the exercise of the option which the law gives him, brings his suit in the law in preference to the equity side of the court, that question must be submitted to the jury, if there is so much resemblance as raises the question at all. And though the principles by which the question must be decided may be very largely propositions of law, it still remains the essential nature of the jury trial that while the court may on this mixed question of law and fact, lay down to the jury the law which should govern them, so as to guide them to truth, and guard them against error, and may, if they disregard instructions, set aside their verdict, the ultimate response to the question must come from the jury.

The court in rejecting the patent of Newton seems to have been mainly governed by the use which was claimed for it, and also that no mention is made of its adaptability as a saw. But if what it actually did, is in its nature the same as sawing, and its structure and action suggested to the mind of an ordinarily skilful mechanic this double use to which it could be adapted without material change, then such adaptation to the new use, is not a new invention, and is not patentable.

The defendant offered to prove that such was the relation of the principle of the Newton patent and plaintiff's patent by experts, and we are clear that the resemblance was close enough to require the submission of the question of identity to the jury, and the admission of the testimony of experts on that subject.

This subject was fully considered in the case of Bischoff v. Wethered, decided since the present with of error was issued.

This court has no more right than the court below to decide that the one patent covered the invention of the other, or that it did not; and it is obvious that extended argument here, to prove such general resemblance as would require the submission of both patents to the jury, might prejudice the plaintiff's case on the new trial which must be granted. We therefore forbear to discuss the matter further; for the same reason we refrain from comment on the instruction. It is to be understood that in declining to pass upon the other alleged errors of the record, this court neither affirms or overrules the action of the court on those points, and the case is reversed for this fundamental error, which includes several others resting on that.

JUDGMENT REVERSED AND A NEW TRIAL ORDERED.

title: Tucker v. Spalding/Opinion of the Court


text: Talk:Tucker v. Spalding/Opinion of the Court


text:
Butler v. Watkins

ERROR to the Circuit Court of the United States for the District of Louisiana; the case being thus:

Butler, of New Orleans, had procured one or more patents for an invention called the 'Butler Cotton-tie,' a machine for fastening bales of cotton. There was at the same time a large manufacturing company near Birmingham, England, called 'The Patent Nut and Bolt Company,' of which one Watkins was the managing agent. Watkins being in this country, and at New Orleans, had some negotiation with Butler looking to an arrangement by which the company should largely assume the manufacture of cotton-ties under Butler's patent, giving to him a share of the proceeds of sale. The negotiations, though begun and carried on a certain way, were not concluded. Hereupon Butler sued the company and Watkins for damages.

The plaintiff's petition alleged that in February, 1868, in New Orleans, Watkins, in behalf of himself and the Nut and Bolt Company, had an understanding with him in relation to the manufacture and sale of his cotton-tie, for the year 1868; that Watkins, for himself and the company, promised that shortly after his return to England (which was to take place a few weeks after the date already stated), certain formalities would be gone through, and the manufacture of the said ties commenced and completed in ample time for the business and demand of the year 1868; that for a long time after the return of Watkins to England (which occurred in or about the latter part of March, 1868), Watkins and the company caused him, Butler, to believe that the arrangement would be carried out, and did not undeceive him until late in the summer of 1868, when it was impossible for him to make any other arrangement for the manufacture and sale of the cotton tie.

The plaintiff then averred that these doings of Watkins and the company were deceitful and in bad faith from beginning to end; that they were done for the purpose of imposing upon him and inducing him to give to Watkins and the company the control of the Butler Cotton-tie for the year 1868, with the hope thereby of keeping it out of the market, and by that means render more certain the sale of the Beard and other ties, in which Watkins and the company were greatly interested. Further, that the artful and deceitful acts of Watkins and the company were so perfectly carried out, and the plaintiff so completely deceived, that his cotton-tie was kept from sale during the year 1868, and a large quantity of the Beard and other ties were sold and disposed of for the benefit of Watkins and the company; that had he, Butler, not been deceived and imposed upon by Watkins and the company he would have kept the management of his tie out of their hands, and under his own control, and would thereby have made from its sale during the year of 1868 at the least $35,000.

The defendants denied the validity of Butler's patent, and asserted, moreover, that they had never come under any obligation to him in regard to it.

On the trial it appeared that Butler had made a form of an agreement, such apparently as he considered had been fixed on between him and Watkins, and gave it to Watkins. The draft was dated February 1, 1868; but was not signed by any one, nor stamped. On the 3d of February Watkins, being still in New Orleans, wrote a note to Butler, in which he says that he had read the draft and found it 'to be about the thing,' and that he will have the same put in shape on his arrival home and send him, Butler, one to retain, the others to be returned. Matters remained in that state till April 17th, 1868, when Watkins thus writes, from the company's works near Birmingham:

'I have laid your proposition before my co-directors and they have given same their favorable consideration; but you will understand that we Englishmen are very particular as to what we do more so than Americans. We are not quite so fast in promising, but are generally faithful to our promises. There are a few facts in relation to cotton ties and cotton-tie business to be considered before the agreement is completed. In the meantime we have commenced the manufacture of your tie and will send the first shipment (which will be small) to Mobile or New Orleans for Memphis, as tonnage may offer. The ties which we send out will be forwarded without prejudice, whether the agreement is finally sealed by my company or otherwise, and will be disposed of on the same terms as named in your agreement proposal.'

This evidence being before the jury, the plaintiff offered in evidence certain letters written by the defendants to one Charles Wailey (who, it was said, had also invented a cottontie), in the spring and summer of 1868, wherein the defendants led the said Wailey to believe that a contract between himself and Watkins, managing director of the company, had been recognized by them and would be by them carried out; and in connection therewith, the testimony of Wailey, for the purpose of proving that letters similar in many respects to letters written to Butler, and offered in evidence, were false and deceitful acts on the part of defendants, done in order to keep Wailey's tie out of the market during the year 1868. The letters were offered in connection with the testimony of Wailey for the purpose of showing the fraudulent and deceitful conduct of the defendants in keeping Wailey's tie out of the market in the year 1868, in order to advance their own interests by a sale of the Beard tie, with the object of showing to the jury the systematic manner and course of the defendants in fraudulently preventing the sale of other cotton-ties, and thereby to establish the fraud and deceit of defendants in relation to plaintiff's tie, as charged and set forth in the petition, and generally to prove the deceitful and fraudulent conduct and bad faith of defendants in keeping the tie of plaintiff from sale during the entire year of 1868.

The defendants objected to the evidence on the ground that their letters to Wailey and his testimony in relation to them could not be proved for the purpose of thereby establishing fraud and deceit on the part of the defendants towards plaintiff, and that if such fraud and deceit existed it would have to be established by proof of the acts and conduct of defendants towards Butler, not towards Wailey.

Of this view was the court, and it accordingly refused to permit the letters to be read in evidence, or the testimony of Wailey in relation to them to be heard.

The plaintiff excepted.

The court-under requests from the defendants; the plaintiffs asking no instructions-charged among other things:

That to bind the plaintiff by the terms of the proposed agreement his signature to it was necessary, and that so long as it was unsigned it was only a proposition which he might at any time withdraw.

That if Watkins declined to sign the draft, and informed the plaintiff that it must go before the board of directors of the company and be examined by the board, and put in form, with the corporate seal attached thereto to render it valid, it was a notice to the plaintiff that the agreement was not completed, and that it was not obligatory upon either party until it was completed in that manner, or some other sufficient to bind the company.

That if the corporation never gave any authority to Watkins to assent to the proposal or draft agreement in their behalf, and in their name, and never sanctioned the same as a corporate act, the suit cannot be maintained against them.

Verdict and judgment having gone for the defendant, the plaintiff brought the case here.

Mr. W. F. Peckham, for the plaintiff in error:

The court erred in the first and second of the above quoted paragraphs of its charge; for whether the agreement was binding or not, was immaterial. The action was not on the agreement, but for the fraud in inducing plaintiff to enter into negotiations which defendants intended as a sham. The charge had a tendency to distract the jury's attention from the real issue.

So it erred in the portion of the charge above italicized; for here the gist of the action is ignored. The very wrong complained of is, that defendants never did intend to enter into the contract, and of course never authorized any one to bind them by it, but that they did enter into a conspiracy to make the plaintiff believe that they did intend to make the contract, while, in fact, never so intending at all.

And, previously to all this, it had erred on the trial, in excluding the letters to Wailey and his testimony. For in criminal law evidence of other doings under similar circumstances at about the same time is admissible, not as proving the other crimes, but as tending to prove the intent or the animus with which the act under investigation was done.

Messrs. P. Phillips and J. A. and S. D. Campbell, contra:

The claim for damages rests on an 'understanding' evidenced by a certain draft and letters. Now to sustain an action on any agreement it must be complete. No obligation is imposed by a mere affirmation or offer to enter into an agreement. Here, on one side, patent rights were to be conveyed, which as all know pass under the statutes by written assignments, on the other hand a large undertaking for manufacturing by a foreign corporation, and the negotiation is with an agent in this country. The subject-matter then, the corporate character of one of the parties, and its location in a foreign country, without more, leads to the strongest presumption that the 'understanding' was not to be perfected until some written instrument was signed and delivered. But we are not left to presumption. The letters of Watkins to Butler place this question beyond doubt. It is evident that Watkins either had not the power to bind the corporation or was unwilling to exercise it.

The whole evidence offered by the plaintiff to show the 'understanding,' is in paper, and the question whether it amounted to a valid and binding obligation might properly have been determined by the court. But here the plaintiff had the full benefit of the jury as to any inferences which could be drawn from any circumstances.

Even if the rejection of the evidence about Wailey's letters was erroneous, still, if the plaintiff could not have recovered if they had been admitted, the error constitutes no ground for reversal.

Mr. Justice STRONG delivered the opinion of the court.

title: Butler v. Watkins


text: Talk:Butler v. Watkins

title: Talk:Butler v. Watkins


text:
Butler v. Watkins/Opinion of the Court

We are unable to discover error in the instructions given to the jury by the court below, or in the answers made to the prayers of the defendants, except in a single particular. What the court said may have been inadequate to a full presentation of the case, but the plaintiff asked for no instructions, and he cannot therefore now be heard to complain that full instructions were not given. The bills of exceptions bring upon the record only that which was said to the jury, and to that alone can error be assigned.

It is quite true that the suit was not brought upon any contract. The theory of the plaintiff was that no agreement had ever been made, and that the defendants had never intended making one, though all the while during the negotiation, deceptively and fraudulently holding out to the plaintiff a profession of intention to conclude an agreement, and that this was done with the purpose of keeping the plaintiff's 'cotton-tie' out of the market. The answers to the defendants' prayers, so far as they tend to show that no contract had been concluded were, therefore, favorable rather than hurtful to the plaintiff's case, and they furnish no just ground for complaint.

The court, however, erred in charging the jury that if they believed 'the corporation never gave any authority to the defendant, Watkins, to assent to the proposal, or draft agreement, in their behalf, and in their name, and never sanctioned the same as a corporate act, the suit could not be maintained against them.' If by this it was meant that no suit upon the contract could be maintained, the instruction was correct, but this could not have been so understood by the jury. No such question was before them. It does not follow, because the corporation never authorized or sanctioned a contract, that they may not be responsible for such a fraud as was alleged in the petition. We have not all the evidence before us, but it does appear that some evidence was given tending to show that the acts and conduct of the defendants (Watkins and the corporation), were deceitful and fraudulent, designed to mislead, and done for the purpose of keeping the plaintiff's cotton-tie out of the market, in order that they might secure heavy sales of the Beard tie, in which they were largely interested. If the evidence did establish or tended to establish such deceit and fraud, for such a purpose, and if the plaintiff was injured thereby, as his petition alleged, it was erroneous to charge the jury that the suit could not be maintained. Competition in efforts to secure the market is doubtless lawful. A manufacturer may by superior energy, or enterprise, supply all the buyers of a particular article, and thus leave no market for similar articles manufactured by others. But he may not fraudulently or by deceitful representations induce another to withhold from sale his products without being answerable for the injury occasioned by the fraud. Whether negotiations for a purchase never concluded were in fact fraudulent; whether they were commenced and continued solely with the purpose of dishonestly inducing the plaintiff to forego offering his goods until the market had been supplied, and whether such was the consequence of the defendants' fraudulent conduct, were questions of fact which should have been submitted to the jury on the evidence. If answered affirmatively, the action was sustainable. In order to maintain an action for fraud it is sufficient to show that the defendant was guilty of deceit, with a design to deprive the plaintiff of some profit or advantage, and to acquire it for himself, whenever loss or damage has resulted from the deceit. This was well illustrated in Barley v. Walford. There it appeared that a plaintiff, who was a dealer in silk goods, had been hindered in his trade and induced to refrain from making goods with a certain ornamental design, by a false representation made by the defendant, and known by him to be false, that a pattern of the goods had been registered by another, and it was ruled that an action would lie to recover damages for the injury, especially when the deceit was with a view to secure some unfair advantage to the defendant.

We think also the court erred in refusing to receive in evidence the defendants' letters to Wailey in connection with Wailey's testimony. It was an important inquiry in the case, what was the purpose or animus of the defendants in their negotiations with the plaintiff? Was it to mislead him by holding out false hopes of consummating an arrangement by which his cotton-tie could be introduced into the market, and was this in order to secure the defendants themselves against competition? Deceit in effecting such a purpose lay at the basis of the action. But how can such a purpose by shown when it has not been avowed? Actual fraud is always attended by an intent to defraud, and the intent may be shown by any evidence that has a tendency to persuade the mind of its existence. Hence, in actions for fraud, large latitude is always given to the admission of evidence. If a motive exist prompting to a particular line of conduct, and it be shown that in pursuing that line a defendant has deceived and defrauded one person, it may justly be inferred that similar conduct towards another, at about the same time, and in relation to a like subject, was actuated by the same spirit. If therefore it be true that in the spring or early summer of 1868 the defendant had similar negotiations with Wailey respecting his cotton-tie, and conducted towards him deceitfully in order to keep his tie out of the market that year, the fact tends to show that in their conduct towards the plaintiff, there was the same animus, and that they had the same object in view. That the evidence offered was admissible for that purpose is abundantly proved by the authorities.

JUDGMENT REVERSED AND A NEW TRIAL ORDERED.

title: Butler v. Watkins/Opinion of the Court


text: Talk:Butler v. Watkins/Opinion of the Court


text:
Caujolle v. Ferri E

ERROR to the Circuit Court for the District of New York; the case being thus:

The Revised Statutes of New York, on the subject of granting letters of administration, thus enact:

'The surrogate of each county shall have sole and exclusive power within the county for which he may be appointed, to grant letters of administration of the goods, &c., of persons dying intestate-when an intestate at or immediately previous to his death was an inhabitant of the county of such surrogate.

'Administration, in case of intestacy, shall be granted to the relatives of the deceased, who would be entitled to succeed to his personal estate.'

By the further terms of the statute the surplus of an intestate's personal estate, remaining after payment of debts, shall be distributed, if there be no husband or wife, equally to and among the children and such as legally represent them, or if there be no children, and no representatives of a child, then the next of kin in equal degree to the deceased, &c.

To secure a competent person, a large discretion is intrusted to the surrogate. He may exclude minors, aliens, intemperate persons, &c.

With these provisions of the code in force, Jeanne Du Lux, a woman of French extraction, died November 15th, 1854, at an advanced age, in the city of New York, intestate, leaving a large personal estate, to be administered and distributed according to the laws of the place of her domicile.

Within a month of her decease, John Pierre Ferri e applied to the surrogate of the county of New York for letters of administration on her estate, claiming them on the ground that he was her only child, and, therefore, her sole heir at law and next of kin. This application was opposed by the public administrator, an officer who, in the city of New York, is entitled to administer upon the estate of deceased persons where there are no next of kin, and the French consul was allowed to contest for the benefit of any party in interest in France. During the pendency of these proceedings, Benoit Julien Caujolle, Bert Barthelemy Caujolle, and Mauretta Elie, with their respective wives, appeared before the surrogate and asked to be heard, alleging that they were the next of kin, and for that reason, entitled to intervene in the matter of the administration, and 'to share upon the distribution of the estate;' and asking to receive their distributive share of the same. The prayer of their petition was granted, and after this was done the French consul withdrew from the contest. The only question involved in the application for administration was, whether Ferri e was the legitimate child of Jeanne Du Lux, and all the proofs taken and admitted related to that issue alone. As Ferri e was conceded to have been born in France, a commission was issued to take testimony in that country regarding the real relationship he bore to the said Jeanne Du Lux. This commission was executed and returned to the surrogate, with a large mass of oral evidence on the subject, together with documents and extracts from public records.

The case came to a hearing on the 15th day of September, 1856, on the proofs taken in France, and at home, and the surrogate rendered the following decree:

'In the matter of the Estate of Jeanne Du Lux, deceased.

'Upon taking proof of all the parties, who have appeared in this matter, and after hearing counsel in behalf of John Pierre Ferri e, claiming to be the son of the intestate, and counsel in behalf of the public administrator, in opposition thereto, and counsel in behalf of Benoit Julien Caujolle, Bert Barthelemy Caujolle, and Mauretta Elie, and their respective wives, claiming as next of kin of said intestate, it is ordered, adjudged, and decreed that letters of administration upon the estate of said Jeanne Du Lux be granted, and issue to the said John P. Ferri e, as the legitimate son and sole next of kin of the said intestate, or to said Ferri e, and such person as may be joined with him, under the statute, on giving the proper security required by law.'

An appeal was taken from this decree to the Supreme Court of the State, by Benoit Julien Caujolle, acting for himself and the other persons in France, and the decree was affirmed. While the case was pending in the Supreme Court, on application of the appellant there, additional evidence was received, not heard by the surrogate, tending to show the illegitimacy of Ferri e. Notwithstanding this additional evidence, the decision of the surrogate was affirmed, and it was reaffirmed on a subsequent appeal to the Court of Appeals. It was on this final decision in his favor that administration of his mother's estate was granted to Ferri e.

In a short time after the decision against them in the highest court of the State of New York, the persons already named living in France who asserted themselves to be the next of kin of Jeanne Du Lux filed their bill against Ferri e and the person who had been joined with him under the statute in the court below for distribution.

To this bill the defendants pleaded in bar the decision of the State courts on the contest for administration, as an adjudication between the same parties of the very point in issue, by a tribunal having jurisdiction of the subject-matter. This plea was overruled, and the cause, after answer, replication, and the taking of proofs, was heard on its merits, and the legitimacy of Ferri e again established. Appeal was taken to this court by the other side, from this decision. The record brought up the whole evidence on the question of legitimacy; parol and documentary, French and American.

Mr. Whitehead, for the appellants, arranging it with order and clearness, argued forcibly that the evidence failed to establish the legitimacy.

Mr. S. P. Nash, contra, and endeavoring to infer from it a different conclusion, contended, in addition and as a more principal point, that in view of the language of the Revised Statutes of New York, which made it obligatory on the surrogate to grant the administration 'to the relatives of the deceased who would be entitled to succeed to his personal estate,' the question of Ferrie's legitimacy-there having been no question of alienage, minorship, or bad moral habits, or other personal disqualification in the case-was necessarily decided; that the complainants were accordingly estopped by the judgment of the surrogate from going into the consideration of the evidence of that question, and that the court below had therefore erred in not sustaining the plea in bar.

Mr. Whitehead, in reply, denied that Ferrie's relationship had been otherwise than incidentally in question, and that a decision of a surrogate on a question of granting letters-a matter largely one of practice, where great discretion was allowed, and where the matter was passed on summarily-had that conclusive character which belonged to a judgment directly on a point in issue and brought the case within the doctrine of res adjudicata. The court below, he argued, had therefore not erred in not sustaining the plea in bar.

Mr. Justice DAVIS delivered the opinion of the court.

title: Caujolle v. Ferri E


text: Talk:Caujolle v. Ferri E

title: Talk:Caujolle v. Ferri E