text:
Kerr v. Clampitt/Opinion of the Court

By the system of procedure in civil cases adopted in Utah, an appeal lies to its Supreme Court from an order of its District Courts granting or refusing a new trial, as well as from a final judgment. The statute enumerates the grounds upon which the verdict of a jury, or the finding of a court or a referee, may be set aside, and a new trial had upon the application of the party aggrieved, and provides the mode in which such grounds shall be presented to the court. If the new trial be asked for irregularity in the proceedings of the court, jury, or adverse party, or for abuse of discretion by which either party was prevented from having a fair trial, or for misconduct of the jury, or accident or surprise which ordinary prudence could not have guarded against, or for newly discovered evidence, the application must be made upon affidavits. If the new trial be asked for excessive damages, or insufficiency of the evidence to justify the verdict or other decision, or that it is against law, or for errors occurring at the trial, the application must be made upon a statement of the case, setting forth so much of the proceedings had, evidence given or offered, and rulings of the court, as will distinctly present the grounds urged in its support. But whether the application be made upon affidavits, or a statement thus prepared, the rulings thereon, whether of the District Court originally, or of the Supreme Court of the Territory on appeal, are not subject to review by this tribunal. We have no jurisdiction to revise the action of an inferior court upon the question of granting or refusing a new trial, however meritorious the grounds presented for its consideration or erroneous its decis on. The final judgment cannot be examined through the rulings of the lower court upon that question. If, therefore, when the final judgment is brought before us for review by writ of error, no other documents are presented for our consideration than such as were before the inferior court upon the application for a new trial, we cannot look into them; and, if error is not otherwise disclosed by the record, the judgment must be affirmed. And such is the condition of the case at bar. No question was before the District Court or the Supreme Court of the Territory, except such as arose on the application for a new trial.

The statute of Utah also provides the mode in which the final judgments of its district courts may be reviewed. It requires a statement of the errors alleged upon which the appellant relies, with so much of the evidence as may be necessary to explain them. Compiled Laws of Utah of 1876, sects. 1413, 1550, and 1555. This statement is only another name for a bill of exceptions, and is subject to similar rules. It will often embody substantially the same matters which are presented on a motion for a new trial, and it is not uncommon for counsel to stipulate that the statement on the motion shall be treated as a statement or bill of exceptions on appeal from the judgment. But, unless it is so stipulated, the statement intended for the motion cannot be used on appeal from the judgment, or considered here. We must have before us a bill of exceptions, or what is equivalent to such bill, upon which the final judgment below was reviewed by the Supreme Court of the Territory, or we cannot examine into any alleged errors except such as are otherwise apparent on the face of the record. The statement in the present case not being one into which we can look, there is no error presented upon which we can pass. Sparrow v. Strong, 4 Wall. 584; Casgrave v. Howland, 24 Cal. 457; Carpenter v. Williamson, 25 id. 154.

Judgment affirmed.

title: Kerr v. Clampitt/Opinion of the Court


text: Talk:Kerr v. Clampitt/Opinion of the Court

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


text:
Fabbri v. Murphy

ERROR to the Circuit Court of the United States for the Southern District of New York.

In November, 1869, Fabbri & Chauncey imported from Manilla into New York certain sugar, which, on the seventeenth day of that month, was stored in a United States bonded warehouse, where it remained until March 20, 1871, when it was withdrawn for consumption. The duty at the latter date amounted to $34,360.50, gold, to which ten per cent was added by the defendant Murphy, then collector of New York, as the sugar had remained in the bonded warehouse more than one year. The additional ten per cent was paid under protest, and an appeal taken from the collector's liquidation and decision. The Secretary of the Treasury having affirmed that decision, this suit was seasonably brought by the plaintiffs to recover the ten per cent, with interest thereon from the time of its payment. At the trial, they requested the court to charge, in substance, that the additional ten per cent was illegally imposed. This request was denied, and the jury told that, upon the uncontradicted evidence, the defendant was entitled to a verdict, which was rendered accordingly. To the instruction given and to those refused the plaintiffs duly excepted, and sued out this writ.

Mr. Grosvenor P. Lowrey for the plaintiffs in error.

Mr. Assistant Attorney-General Smith, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Fabbri v. Murphy


text: Talk:Fabbri v. Murphy

title: Talk:Fabbri v. Murphy


text:
Fabbri v. Murphy/Opinion of the Court

Goods imported here from a foreign country may be entered for consumption or for warehousing; but, when entered for consumption, the requirement is that the duties shall be paid, or be secured to be paid, before a permit for landing the goods is granted. 1 Stat., sect. 62, p. 673.

Importations of the kind are required to be landed in open day; and the collection act provides that the goods shall not be landed or delivered from the ship without a permit from the collector. Examination of the entry is usually made by the entry-clerk; and, if found correct, the collector then proceeds to estimate the duties, as shown by the invoice value and quantity, and if the estimated amount of the duties is paid, or secured to be paid, as required by law, the collector is then authorized to grant a permit for the discharge and landing of the cargo. Kimball v. Collector, 10 Wall. 436.

Merchandise, if duly imported, with certain exceptions not necessary to be noticed, may be entered for warehousing without paying the duties at the time of the entry, in which event the goods are delivered into the possession of the collector, and are deposited, at the option of the owner, importer, consignee, or agent, at his expense, in any public warehouse or other place provided by law for the storage of such property.

Both the duties and expenses are required to be ascertained at the time of the entry of the goods for warehousing, and the duties and charges are to be secured by the bond of the owner, importer, or consignee, with surety or sureties to the satisfaction of the collector, the goods being at all times subject to the orders of the depositor, upon the payment of the proper duties and expenses. United States v. Benson, 2 Cliff. 520.

By the record, it appears that the plaintiffs, in the month of November, 1869, imported from Manilla one million nine hundred and sixty-three thousand four hundred and fifty pounds of sugar; that on the 17th of the same month they made entry of the whole amount for warehouse, and that the same were duly stored in a public bonded warehouse, situated in the city of New York, as appears from the warehouse entry and the return of the weigher; that the sugars were classified on the warehouse entry by the appraiser as not above No. 12, Dutch standard, in color; and that the duties, on the 17th of January following, were assessed at three cents a pound, under the then existing tariff. On the 20th of January, 1871, the plaintiffs made a withdrawal entry of the sugars for consumption, which throughout the whole period, from the time they were stored to the date of the withdrawal entry, had remained in the public bonded warehouse. Prior to that time, to wit, on the 16th of the same month, the sugars were re-classified by the appraiser, under the act of Dec. 22, 1870, as appears by a memorandum on the withdrawal entry for consumption, as not above No. 7, Dutch standard, in color, and the rate of entry was noted by the appraiser on the entry at 1 3/4 cents per pound.

Apart from that, it also appears that, on the 20th of March in the same year, the duties on the sugars were liquidated by the collector at the reduced rate noted on the withdrawal entry, making the amount $34,360.50, with an additional duty of ten per cent on the previous duty imposed under the act of the 14th of March, 1866, the goods imported having remained in the public bonded warehouse for a longer period than one year.

By that act, all goods, wares, and merchandise remaining in warehouse under bond on the first day of May of that year might be withdrawn for consumption within one year from the date of original importation, on payment of the duties and charges to which they were subject by law at the time of such withdrawal. 14 Stat. 8.

Ten per cent on the original duty amounts to $3,436.05, and the two sums amount to $37,796.55.

Payment of the original duty was made without objection; but the record shows that the plaintiffs paid the additional duty of ten per cent under protest, and instituted the present suit to recover back the amount. Proper notice in writing was given by the plaintiffs to the collector, that they were dissatisfied with his decision in the final liquidation of the duties; and on the day the payment was made they appealed from his decision to the Secretary of the Treasury, who subsequently affirmed the decision of the collector.

Interest at six per cent on the amount of the additional duty is $593.27, making the additional duty, adding the interest to the date of the judgment, $4,029.30.

All of t ese facts were proved by the plaintiffs, the defendant offering no testimony, and the court directed a verdict for the defendant. Exceptions were filed by the plaintiffs; and they sued out a writ of error, and removed the cause into this court.

Errors are assigned as follows: 1. That the court erred in refusing to charge the jury that, if they found that the sugars were not above No. 7, Dutch standard, in color, and were in public warehouse on Dec. 31, 1870, and so continued until March 20, 1871, and were on that day entered to be withdrawn for consumption, the sugars were not subject to any other duty than at the rate of 1 3/4 cents per pound. 2. That the court erred in refusing to instruct the jury that, if they found the facts to be as stated in the preceding assignment of error, the collector illegally exacted the additional duty of ten per cent. 3. That the court erred in refusing to instruct the jury that the plaintiffs were entitled to recover the amount of the additional duty of ten per cent exacted by the collector, with interest.

Import duties upon the sugars at the rate of 1 3/4 cents per pound, it is conceded, were properly exacted by the collector; and the record shows that the duties were finally liquidated at that rate before the sugars were withdrawn from the public bonded warehouse for consumption, and that the plaintiffs paid the whole of that amount without protest. Both parties agree that goods deposited in a public warehouse, and being there on the first day of May, 1866, might be withdrawn for consumption within one year from the date of the original importation, on payment of the duties and charges to which they were subject by law at the time of such withdrawal.

Imported, as the sugars in question were, on the 17th of November, 1869, it is clear that the plaintiffs might have withdrawn the same for consumption on payment of the duties to which they were subject by law, if withdrawn within one year from the time the importation was made; but they did not make any such entry until the 20th of the following March, more than four months after the year allowed for the purpose had expired.

Such depositors of imported goods might withdraw the same for consumption within one year from the date of importation without paying any thing beyond the duties and charges; but the privilege extended to depositors did not stop there, as appears by what follows in the same section. Instead of that, the provision is, that, after the expiration of one year from the date of original importation, and until the expiration of three years from said date, any goods, wares, or merchandise in bond as aforesaid may be withdrawn for consumption on payment of the duties assessed on the original entry and charges, and an additional duty of ten per cent of the amount of such duties and charges.

Pursuant to that provision in the act of the 14th of March, 1866, the collector exacted the additional duty which is the subject of contest under the present writ of error.

Certain intimations are made by the parties respectively that the computation of the collector is erroneous; but the court is of the opinion that it is exactly correct, and that it does not lie with the plaintiffs to call it in question, as they allege in their declaration that the additional duty exacted by the collector is ten per cent of the duties properly assessed on the merchandise.

Responsive to that theory of the defence, the plaintiffs insist that the first clause of the twenty-sixth section of the act of the 14th of July, 1870, 16 Stat. 269, supersedes the provision invoked by the defendant, and that it gave to them the right to withdraw the sugars for consumption without paying any thing except the original duties and charges, as finally liquidated and noted in the withdrawal entry.

Imported goods, wares, and merchandise, the section provides, which may be in the public stores or bonded warehouses on the day and year the act shall take effect, shall be subjected to no other duty upon the entry thereof for onsumption than if the same were imported after that day. When that act was passed, the sugars imported by the plaintiffs had been in the public warehouse nearly eight months, and the sugars could remain there something more than four months longer before the year would have expired during which the owner, importer, or consignee might withdraw the same for consumption under the prior act, on payment of the liquidated duties and charges.

Suppose the new act applies to the case before the court, which is not admitted, still it is clear that it would not supersede the defence arising under the prior act, as four months remained during which the plaintiff might have withdrawn the goods for consumption without being subjected to any additional duty under the prior act, and for the further reason, that the prior act is not repealed by the new act under which the plaintiffs claim, nor is the provision of the new act repugnant to that of the prior act. Nothing like inconsistency appears in the provisions of the two acts at the passage of the latter, as applied to the case before the court, as the plaintiffs might under either act have withdrawn their goods deposited in the public warehouse at any time within four months subsequent to the passage of the new act, on payment of the duties and charges finally liquidated by the collector, and noted by the appraiser on the withdrawal entry.

Authorities to show that there must be a positive repugnancy between the provisions of the new law and the old, to work a repeal of the old law by implication, and that even then the old law is only repealed to the extent of the repugnancy, are very numerous and decisive. Wood v. United States, 16 Pet. 342.

Repeal by implication, upon the ground that the subsequent provision upon the same subject is repugnant to the prior law, is not favored in any case, and must always meet with disfavor where the attempt is made to apply the principle in the construction of the revenue laws of the United States.

Acts of Congress of the kind are often very complex in their provisions, in order to enable those charged with their execution to protect the treasury against the constant attempts of importers to evade the payment of new duties or increased taxation. New regulations often become necessary to enable the officers of the customs to defeat such designs; and the rule is, that in such cases there ought to be a manifest and irreconcilable repugnancy to warrant the conclusion that the old law is abrogated, or that the new law was intended to supersede the antecedent provision. Aldridge v. Williams, 3 How. 9; The Distilled Spirits, 11 Wall. 356.

Concede the theory of the plaintiffs to be correct, and it would follow that the sugars imported by the plaintiffs might remain in the public warehouse for an indefinite period without paying the liquidated duties, and without subjecting the importer, owner, or consignee to any additional charge when he should withdraw the same for consumption. Congress, it is believed, never intended that any such result should follow, as it would be contrary to the policy of the government, as shown in all the acts of Congress establishing and regulating the warehousing system.

Authority to warehouse certain imported goods was granted by Congress at a very early period in our history. 1 Stat. 673. Option was given to the importers of teas, by the sixty-second section of the original collection act, either to secure the duties, as in case of other importations, or to give bond to the collector of the district where the teas were landed in double the amount of the duties, with condition for the payment of the same in two years from the date of the bond. Whenever the importer elected to give the bond, the requirement was that the goods should be deposited, at the expense of the importer, in one or more storehouses therein described. Regulations to the same effect were subsequently enacted in respect to the importation of wines and distilled spirits. 2 id. 469. Duties und r that act were to be paid in twelve calendar months from the date of the bond, and the collector was required to accept the bond without surety.

Corresponding regulations were made at a later period in respect to wool and the manufactures of wool, or manufactures of which wool was a component part. 4 Id. 591. Imported goods of the kind might be placed in public stores under bond, subject to the payment of customary storage and charges, and to the payment of interest at the rate of six per cent per annum while so stored; and the provision was, that the duties on the articles so stored should be paid, one-half in three months and the other half in six months from the date of importation.

Duties of import were required by the subsequent tariff act to be paid in cash; and it was provided, in case of failure to pay the duties as required, that the collector should take possession of the same, and that the goods should be deposited in the the public stores, there to be kept with due and reasonable care, at the charge and risk of the owner, importer, consignee, or agent. Goods of the kind might remain in public store for sixty days; but, if they remained beyond that period without payment of the duties, they were required to be appraised and sold by the collector. 5 id. 562. Throughout those provisions, the plain inference is that Congress did not regard the importation as complete while the goods remained in the custody of the proper officers of the customs.

At a still later period, Congress passed the act to establish a warehousing system, in which it is provided that, in case any goods, wares, or merchandise deposited in public stores shall remain in the same beyond one year without payment of the duties and charges thereon, the same shall be appraised. . . and sold by the collector at public auction, under the regulations therein prescribed. 9 id. 53, 399.

Alterations were made in the warehousing system by a subsequent act, which provided that goods remaining in warehouse, and goods subsequently entered for warehousing under bond, may continue in warehouse, without the payment of the duties, for a period of three years from the date of the importation, and that the same may be withdrawn for consumption on payment of the duties and charges. 10 id. 271.

Increased revenue being required, Congress passed the act of the 5th of August, 1861, the fifth section of which enacted that goods actually on shipboard and bound to the United States, and all goods on deposit in warehouses and public stores at the passage of that act, shall be subject to pay such duties as were provided by law before and at the time of the passage of the act. 12 id. 293.

Provision was also made by the same section that goods deposited in public store or bonded warehouse after the act should take effect and go into operation, if designed for consumption here, must be withdrawn therefrom, or the duties thereon be paid, in three months after the same are deposited; and that goods designed for exportation and consumption in foreign countries may be withdrawn by the owner at any time before the expiration of three years after the same are deposited,-such goods, if not withdrawn in three years, to be regarded as abandoned to the government, and to be disposed of as therein provided.

Three months were allowed to owners within which to withdraw their goods from the public store or warehouse, or to pay the liquidated duties; but the further provision was, that, if they neglect to improve that privilege within three months from the time of the deposit, the goods may be withdrawn and entered for consumption at any time within two years of the time of their deposit, upon the payment of the legal duties, with an addition of twenty-five per cent thereon.

Events beyond control made it necessary in that period that taxes should follow taxes in rapid succession; but it cannot be admitted that the taxes were any the less obligatory because the exactions were more frequent and at higher rates than in former years. None f these regulations amounted to a contract between the government and the importer, and of course they were at all times subject to modification, alteration, or repeal; but they show to a demonstration that it never was the policy of Congress to allow the owner, importer, or consignee to deposit imported goods in the public stores or warehouses without the payment of duties for an indefinite period of time, or for any great length of time, without requiring the depositor, when he withdrew the same for consumption, to pay an additional duty for the privilege.

Four months, less three days, of the year allowed by the prior act remained in which the goods might be withdrawn for consumption on payment of the liquidated duties and charges, without being subjected to any additional exaction, which gave full scope and opportunity for the corresponding privilege conferred by the twenty-sixth section of the subsequent act. 14 id. 8; 16 id. 269.

Examined, as the question should be, in the light of these suggestions and the antecedent legislation of Congress, it is clear that the new law supposed to be applicable to the case is not repugnant to the prior law, and that there is no error in the record.

Judgment affirmed.

title: Fabbri v. Murphy/Opinion of the Court


text: Talk:Fabbri v. Murphy/Opinion of the Court


text:
Preston v. Preston

APPEAL from the Circuit Court of the United States for the Western District of Virginia.

This is a suit brought in the court below, Jan. 8, 1873, by John Preston, Jr., against Thomas L. Preston, James C. Campbell, Arthur C. Cummings, William Alex. Stuart, and George W. Palmer, for the specific performance of an agreement made Aug. 30, 1847, for the conveyance of certain lands.

The court below dismissed the bill, whereupon the complain ant appealed here.

The facts in the case are fully stated in the opinion of the court.

Mr. William L. Royall for the appellant.

Mr. Thomas J. Kirkpatrick, contra.

Mr. JUSTICE FIELD delivered the opinion of the court.

title: Preston v. Preston


text: Talk:Preston v. Preston

title: Talk:Preston v. Preston


text:
Preston v. Preston/Opinion of the Court

This is a suit to enforce the specific performance of an agreement for the conveyance of certain lands in Virginia. It appears from the record that in 1846 one Sarah B. Preston, of Abingdon, in that State, died possessed of a large amount of real property, embracing the premises in controversy. By her last will and testament, which was duly probated, she made the following devise:--

'I give and devise to my three sons, William C. Preston, John S. Preston, and Thomas L. Preston, and to their several heirs for ever, my salt-works estate, embracing and including therein as well the original and principal tract containing the wells, as all the additions subsequently acquired, and all my lands of every description, whether cleared or woodland, either adjacent to or in the vicinity of the salt-works estate, in the counties of Smyth and Washington.'

Upon the property thus devised the testator charged the payment of certain legacies to the amount of $80,000. She also made her three sons her residuary devisees. In August of the following year, John S. Preston, one of the devisees, by an agreement in writing sold to his brother, Thomas L. Preston, all the interest which he had acquired under the will in the salt-works estate and adjoining lands and as residuary devisee.

It would appear from the recitals in the deed of trust made to secure the purchase-money, as hereafter mentioned, that a conveyance of the property was on the same day executed and delivered to Thomas L. Preston on conformity with this agreement, though it was never placed on record. In consideration of this sale, and of the transfer of certain partnership claims and other personal property, Thomas L. Preston agreed to pay John S. Preston $50,000 on or before the first day of January, 1860, with interest, and to secure the same by a mortgage or deed of trust of the property; to assume the payment of the legacies charged upon the salt-works estate; to indemnify his brother against liability for the debts of sundry partnerships of which he was a mem er, and to convey to him a tract of land described as 'adjoining the salt-works estate, containing about three hundred and fifty acres, and known as the Campbellsville tract, and also a sufficient quantity of other lands adjoining the said tract, to make up the quantity of five hundred acres of land.' In compliance with this agreement, and on the same day, Thomas L. Preston executed a deed of trust of the real property to a trustee to secure the payment of the $50,000 and interest. But no conveyance of the Campbellsville tract and adjoining lands was ever made by him to his brother; and it is to compel such conveyance that the present suit is brought. The complainant acquired whatever interest he possesses in the land by purchase from John S. Preston in 1870.

To the maintenance of this suit there are insuperable objections. In the first place, the property of which a conveyance is sought has not been identified; and it would seem that at this day it is incapable of identification. Numerous witnesses were called to testify as to the locality and bounds of the Campbellsville tract; but no one of them could speak with knowledge on the subject. Most of them could give only impressions. Old residents in the neighborhood had never heard of the tract, and no deed or record could be found which referred to any property by that name. The bill, it is true, alleges that the tract was well known and distinguished from other parts of the salt-works estate, and could be easily marked out by metes and bounds; but no proof supported the allegation. The two Prestons, between whom the agreement was made, were examined in the case; and, though they stated that the tract could be easily identified, they both failed to show with any certainty what and where it was, further than that it was a part of the estate lying north of Holston River. But north of that river lay between seven and eight hundred acres, equally a portion of that estate, and no separation of the part sold from the rest was shown. Until the Campbellsville tract could be identified, adjoining lands could not be selected to make up the stipulated five hundred acres. It may be doubted whether, even in a controversy between the original parties, a court of equity would compel the execution of a conveyance with the vague description of the agreement. But as here the whole property, of which the land sold constitutes only a portion, had passed for a valuable consideration to third parties, it was essential that the complainant, seeking to enforce a conveyance from them, should be able to point out with distinctness the property which he claimed. It is a familiar rule in this branch of the law that a contract, which a court of equity will specifically enforce, must be certain as well as fair in its terms; and the certainty required has reference both to the description of the property and the estate to be conveyed. Uncertainty as to either, not capable of being removed by extrinsic evidence, is fatal to any suit for a specific performance.

In the second place, John S. Preston virtually consented to a sale of the premises in controversy. Although his brother upon his purchase had agreed to convey back to him this portion of the estate, he at once transferred the whole property to a trustee to secure the purchase-money. To this transfer John made no objection, either to the form of the deed of trust or to its contents. Executed as it was for his security, it will be presumed to have been executed with his knowledge. If he had any objection to the use made of the property, it was his duty to declare it at the time. Silence then was acquiescence.

Subsequently, in April, 1848, the other brother, William C. Preston, for the consideration of $25,000, also conveyed his interest in the estate to Thomas L. Preston; and in January, 1850, the latter executed to the same trustee a deed of trust of the interest thus acquired and his previous interest to secure the purchase-money. In July, 1859, having become embarrassed, he made a general deed of trust, b which he conveyed the entire salt-works estate, and adjoining lands and other property, to a new trustee, in trust, among other things, to secure the payment of incumbrances and liens upon the property held by John S. Preston, amounting to about $110,000, and by William C. Preston, amounting to about $25,000. In June, 1862, this new trustee sold the property, with other interests, to Stuart, Palmer, and Parker for the consideration of $425,000, and soon afterwards they went into its possession. Neither to this deed of trust did John S. Preston make any objection in respect either to its form or contents; and for years afterwards he received from the trustee large sums of money. Under these circumstances, he must be held to have waived any right to a conveyance of the Campbellsville tract, whatever that might have been, and adjoining lands, or at least to have subordinated it to that of the trustees named in the deeds of trust and of purchasers under them.

In the third place, the present suit is brought too late. By the law of Virginia, the limitation to real actions for land lying west of the Alleghany Mountains is ten years. By analogy with that law, a court of equity will, under circumstances like the present, treat as barred within the same period a suit for the conveyance of lands situated as these are in that part of the State. That period had elapsed after the purchase of the defendants before this suit was instituted, and more than a quarter of a century had passed since the contract was made the enforcement of which is sought. The delay of one to this extent in prosecuting his rights under a contract is, except under special circumstances not existing here, such laches as disentitle him to the aid of a court of equity.

Decree affirmed.

title: Preston v. Preston/Opinion of the Court


text: Talk:Preston v. Preston/Opinion of the Court


text:
Bates v. Clark

ERROR to the Supreme Court of the Territory of Dakota.

The facts are stated in the opinion of the court.

Mr. Assistant Attorney-General Smith for the plaintiffs in error.

Mr. John B. Sanborn, contra.

MR. JUSTICE MILLER delivered the opinion of the court.

title: Bates v. Clark


text: Talk:Bates v. Clark

title: Talk:Bates v. Clark


text:
Bates v. Clark/Opinion of the Court

The plaintiff in error, Bates, was a captain in the army of the United States, in command at Fort Seward, in the Territory of Dakota, near the crossing of the James River by the North Pacific Railroad; and Yeckley, the other plaintiff in error, was a lieutenant under him at the time of the commission of the trespass for which the judgment in this case was recovered against them. The defendants in error, plaintiffs below, were doing a general mercantile business on the James River, also near said crossing, when a lot of whiskey, part of their stock of goods, was seized by defendants. They brought this action to recover damages for the trespass. The defendants pleaded their official character, that the place where the seizure was made was Indian country, and it was, therefore, their duty to seize the whiskey which was kept there for purpose of sale, and that, in accordance with the acts of Congress on that subject, they had delivered the whiskey to the marshal of the United States, under a writ from the proper court, on a proceeding instituted by the United States attorney for that district. They further pleaded, that before the commencement of this action the goods had been delivered to plaintiffs by the marshal, and that plaintiffs had suffered no damage. They also set up an order of the commanding officer of the department of Dakota.

The act of June 30, 1834, entitled 'An Act to regulate trade and intercourse with the Indian tribes and to preserve peace on the frontier,' which is a very long and important act, begins by describing in its first section the country or territory in which that act shall be operative. It is in these words:--

'Be it enacted, that all that part of the United States west of the Mississippi, and not within the States of Missouri and Louisiana, or the Territory of Arkansas, and also that part of the United States east of the Mississippi River, and not withi any State to which the Indian title has not been extinguished, for the purposes of this act, be taken and deemed Indian country.' 4 Stat. 729.

The twentieth section of that act forbids the introduction of wines or spirituous liquors within this Territory. By the act of 1864, amending this section, it is made lawful for any Indian agent or commanding officer of a military post, who has reason to suspect that spirituous liquors or wines have been, or are about to be, introduced into Indian country in violation of law, to search for and seize the same, to be delivered over to the proper officer, and proceeded against by libel in the proper court, and forfeited, one half to the informer and the other half to the use of the United States. 13 id. 29.

If this whiskey was seized in Indian country, within the meaning of the act of 1834 and the amendment of 1864, the plea which set up that the defendants acted in good faith under that statute ought to be sustained. This, the principal question in the case, is raised by the action of the court below in striking out the plea which set up these defences as sham and frivolous, and because the locus in quo was not Indian country. This mode of disposing of a plea which fairly raises a most important issue of law seems to be growing in favor in the territorial courts. It is an unscientific and unprofessional mode of raising and deciding a pure issue of law. This should always be done, when it can, by a demurrer, which is the recognized and appropriate mode in the common law; or by exception, which amounts to the same thing in the civil law, as it is applied to answers in chancery practice. A motion to strike out a plea is properly made when it has been filed irregularly, is not sworn to, if that is required, or wants signature of counsel, or any defect of that character; but if a real and important issue of law is to be made, that issue should be raised by demurrer.

In the present case, this is unimportant, as the same question is presented by the prayer for instructions and by the charge of the court.

What, then, is Indian country, within the meaning of the acts of Congress regulating intercourse with the Indians?

The first act of Congress on the subject is that of March 30, 1802. 2 Stat. 139. The first section of that act describes a boundary, the description occupying over a page of the statute-book, and declares that this shall be distinctly marked under orders of the President, and considered as the line of the Indian territory, or Indian country as it is called indifferently in several sections of the act. The country west of the Mississippi then belonged to France or Spain. The boundary above mentioned, commencing at the mouth of the Cayahoga River, on Lake Erie, now Cleveland, runs in a wonderfully tortuous course through the country north-west of the Ohio River to the falls of that river, now Louisville, then down that river to a point between the mouths of the Cumberland and Tennessee Rivers, and thence through Kentucky, Tennessee, and Georgia, to the St. Mary's River, pursuing all the way the lines represented by treaties with various Indian tribes.

Though many statutes concerning intercourse with the Indians and prescribing offences within the Indian country were passed, no other attempt to define what was Indian country was made by Congress until the act of 1834, the first section of which we have given verbatim. In the mean time, we had purchased the country west of the Mississippi, and had organized two States and a Territory there, and most of the Indians with whom we had to deal lived there. The country east of the Mississippi, and not within any State, was the region north of Illinois and Indiana, and north-west of Ohio, now constituting the States of Michigan and Wisconsin, and then under the government of the Michigan Territory.

Notwithstanding the immense changes which have since taken place in the vast region covered by the act of 1834, by the extinguishment of Indian titles, the creation of States and the formation of territorial governments, Congress has not thought it necessary to make any new definition of Indian country. Yet during all this time a large body of laws has been in existence, whose operation was confined to the Indian country, whatever that may be. And men have been punished by death, by fine, and by imprisonment, of which the courts who so punished them had no jurisdiction, if the offences were not committed in the Indian country as established by law. These facts afford the strongest presumption that the Congress of the United States, and the judges who administered those laws, must have found in the definition of Indian country, in the act of 1834, such an adaptability to the altered circumstances of what was then Indian country as to enable them to ascertain what it was at any time since then.

If the section which we have given verbatim be read with a comma or semicolon inserted after the word 'State,' or if, without the insertion of any point there, we read it so as to apply the words, 'to which the Indian title has not been extinguished,' to all the region mentioned in the section, we have a criterion which will always distinguish what is Indian country from what is not, so long as the existing system governing our relations with Indians is continued. Read hastily, it might appear that these words were limited in their application to that part of the United States east of the Mississippi River. But a strict reading in that sense is that it is the State to which the Indian title has not been extinguished that governs the matter. 'And not within any State to which the Indian title has not been extinguished.' implies that Indians had title to some State then in existence, and that there were other States to which their title had been extinguished. This meaning is too absurd to be considered.

On the other hand, if the section be read as describing lands west of the Mississippi, outside of the States of Louisiana and Missouri, and of the Territory of Arkansas, and lands east of the Mississippi not included in any State, but lands alone to which the Indian title has not been extinguished, we have a description of the Indian country which was good then, and which is good now, and which is capable of easy application at any time.

The simple criterion is that as to all the lands thus described it was Indian country whenever the Indian title had not been extinguished, and it continued to be Indian country so long as the Indians had title to it, and no longer. As soon as they parted with the title, it ceased to be Indian country, without any further act of Congress, unless by the treaty by which the Indians parted with their title, or by some act of Congress, a different rule was made applicable to the case.

In the case of The American Fur Company v. The United States, 2 Pet. 358, decided in 1829, the goods of the company had been seized for violating the laws by their introduction into the Indian country under the act of 1802. This court held that if, by treaties made with the Indians after the passage of that act, their title to the region where the offence was committed had been extinguished, it had thereby ceased to be Indian country, and the statute did not apply to it.

So in the case of United States v. Forty-three Gallons of Whiskey, decided at the last term, 93 U.S. 188, where this act of 1834 was fully considered; while the court holds that by a certain clause in the treaty by which the locus in quo was ceded by the Indians, it remained Indian country until they removed from it, the whole opinion goes upon the hypothesis that when the Indian title is extinguished it ceases to be Indian country, unless some such reservation takes it out of the rule. When this treaty was made, in 1864, the land ceded was within the territorial limits of the State of Minnesota. The opinion holds that it was Indian country before the treaty, and did not cease to be so when the treaty was made, by reason of the special clause to the contrary in the treaty, though within the boundaries of a State.

It follows from this that all the country described by the act of 1834 as Indian country remains Indian country so long as the Indians retain their original title to the soil, and ceases to be Indian country whenever they lose that title, in the absence of any different provision by treaty or by act of Congress.

The plaintiffs below violated no law in having the whiskey for sale at the place where it was seized; and the twentieth section of the act of 1834, as amended by the act of 1864, conferred no authority whatever on the defendants to seize the property.

It is a sufficient answer to the plea, that the defendants were subordinate officers acting under orders of a superior, to say that whatever may be the rule in time of war and in the presence of actual hostilities, military officers can no more protect themselves than civilians in time of peace by orders emanating from a source which is itself without authority. The authority of the commandant of the post in the case was precisely the same as the Indian agent or sub-agent, or superintendent; and it will hardly be maintained that if either of them, wholly mistaking their powers, had seized the goods, he would have incurred no liability.

So the plea that they had good reason to believe that this was Indian country, and that they acted in good faith, while it might excuse these officers from punitory damages, is no defence to the action. If it had been Indian country, and it had turned out that the plaintiffs had a license, or did not intend to sell or introduce the goods, the fact that defendants acted on reasonable ground would have exempted them from liability.

But the objection fatal to all this class of defences is that in that locality they were utterly without any authority in the premises; and their honest belief that they had is no defence in their case more than in any other, where a party mistaking his rights commits a trespass by forcibly seizing and taking away another man's property.

There was here no process from a competent court, nor any order from any source having authority, and there is, therefore, no defence.

As the damages found in the verdict are measured by the difference in value of the property at the time and place where seized, and the time and place where returned to the possession of the plaintiffs, we see no error in the rule by which they were ascertained.

Judgment affirmed.

title: Bates v. Clark/Opinion of the Court


text: Talk:Bates v. Clark/Opinion of the Court


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Radich v. Hutchins

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

This was an action brought by Radich against Hutchins and Wells. He alleges in his petition that he is a subject of the Emperor of Russia, and that he was, in 1864, the owner of four hundred and fifty bales of cotton, of the value of $50,000, which he designed to export from Texas, where he then resided, to Mexico, and which were then in transit on their way to Matamoras; that the defendant Hutchins, claiming to be a lieutenant-colonel in the army of the Confederate States, and chief of the cotton office at Houston in that State, combining with the defendant Wells and others, had, without warrant of law, by a public notice, prohibited the exportation of cotton from the State, except upon written permits from his office; that such permits would not be issued, except upon condition that the person desiring to export cotton should sell to them an equal amount, at a nominal and arbitrary price, for the benefit of the Confederate States; that, being desirous to export and sell his cotton, because of the risk incurred of its destruction or loss during the war, and knowing that if he should attempt to send it beyond the frontier of the State into Mexico the armed forces of the Confederate States, provided to carry out the illegal exactions of the defendants and their confederates, would capture and confiscate it, he was compelled to submit, and did submit, to the condition imposed, and accordingly elivered to the defendants one-half of his cotton, namely, two hundred and twenty-five bales, at a nominal and arbitrary price, as a consideration for a permit to export the other half, but upon a stipulation, however, insisted upon by himself, that he should have the privilege of re deeming the bales sold, and exporting them upon the payment of such sum as the defendants might demand; and that afterwards he paid them $13,357 in specie, and in goods, wares, and merchandise at specie values, in redemption of the bales and for a permit to export them. He alleges that the amount thus paid was illegally and oppressively exacted, and that he submitted to the wrong because of the armed forces to support and enforce it.

The defendants demurred. The demurrer was sustained and the petition dismissed. Radich thereupon sued out this writ of error.

The case was argued for the plaintiff in error by Mr. Thomas J. Durant, who cited Cutner v. United States, 17 Wall. 517; The Santissima Trinidad, 7 Wheat. 283; United States v. Guillem, 11 How. 47; Sprott v. United States, 20 Wall. 459; Hickman v. Jones, 9 id. 197; The Venice, 2 id. 258.

Mr. Philip Phillips, contra.

MR. JUSTICE FIELD delivered the opinion of the court.

title: Radich v. Hutchins


text: Talk:Radich v. Hutchins

title: Talk:Radich v. Hutchins


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Radich v. Hutchins/Opinion of the Court

If at the time the transaction took place, which has given rise to the present action, the plaintiff was a subject of the Emperor of Russia, as he alleges, that fact cannot affect the decision of the case, or any question presented for our consideration. He was then a resident of the State of Texas, and engaged in business there. As a foreigner domiciled in the country, he was bound to obey all the laws of the United States not immediately relating to citizenship, and was equally amenable with citizens to the penalties prescribed for their infraction. He owed allegiance to the government of the country so long as he resided within its limits, and can claim no exemption from the statutes passed to punish treason, or the giving of aid and comfort to the insurgent States. The law on this subject is well settled and universally recognized. Carlisle v. United States, 16 Wall. 147.

The case presented by the petition is without merit.

The substance of the complaint is that the defendants, as officers of the Confederate government, by a public notice, had prohibited the exportation of cotton from the State of Texas to Mexico, except upon condition that the exporter should sell to them an equal amount for the benefit of the Confederate government; and that the plaintiff, being the owner of cotton which he desired to export, and fearing that if he attempted to export it without such permit it would be seized and confiscated by the armed forces of that government, complied with the condition, and obtained a permit from the officers to export two hundred and twenty-five bales, and sold to them an equal amount for the Confederate government, obtaining at the same time the privilege of redeeming the cotton sold, and receiving a permit to export it, upon payment of such sum as they might demand; that he took advantage of this privilege and redeemed the cotton, paying in money and goods the sum mentioned in the petition.

There is nothing in these allegations showing that the defendants subjected the plaintiff to any coercion or duress, which would justify an action against them, either for the return of the money paid or for the value of the goods delivered in place of the money, or for damages of any kind. There is no averment that either of the defendants ever made, or attempted to make, any seizure of the cotton, or that either of them was an impressing or other officer, exercising or claiming to exercise any power for its seizure, or had any thing to do with the command or operations of the armed forces of the insurgents in the State of Texas. All that is directly charged against them is the publication of a notice that the exportation of cotton was forbidden, except on permits from the cotton office. The armed force § not stated to have been under the direction of that office. The whole proceeding set forth in the petition was a voluntary one by the plaintiff. He applied to the cotton office, and sold the cotton subsequently redeemed. It is not pretended that either of the defendants made any application for its purchase.

To constitute the coercion or duress which will be regarded as sufficient to make a payment involuntary,-treating now the redemption of the cotton as made in money, goods being taken as equivalent for a part of the amount,-there must be some actual or threatened exercise of power possessed, or believed to be possessed, by the party exacting or receiving the payment over the person or property of another, from which the latter has no other means of immediate relief than by making the payment. As stated by the Court of Appeals of Maryland, the doctrine established by the authorities is, that 'a payment is not to be regarded as compulsory, unless made to emancipate the person or property from an actual and existing duress imposed upon it by the party to whom the money is paid.' Mayor and City Council of Baltimore v. Lefferman, 4 Gill (Md.), 425; Brumagim v. Tillinghast, 18 Cal. 265; Mays v. Cincinnati, 1 Ohio St. 268.

Tested by these cases, the allegation of coercion or duress becomes frivolous. It is plain that the plaintiff entered voluntarily upon the negotiation with the defendants, and subsequently paid the redemption money without any constraint which would in law change the voluntary character of the payment. Such being the case, the transaction is one which is fatally tainted. The sale of the cotton was to the Confederate States; the money paid and goods delivered for its redemption were for the benefit of those States, to assist them in their war against the government and authority of the United States. The money paid and the goods delivered constituted, therefore, nothing less than a direct contribution to the support of the insurgents: they gave aid and comfort to the enemy. No demand arising out of such a transaction can have any standing in the courts of the Union.

At this time, also, it was the declared policy of the United States to prevent all intercourse between the insurgent States and the loyal States, and also between them and foreign countries, and thus to cut off from the insurgents the means of prolonging the existing war. In pursuance of this policy, the ports and coasts of those States were blockaded, commerce with their inhabitants was prohibited, except as specially authorized under regulations of the Treasury Department, and property which eluded the blockade was subject to seizure and condemnation. The attention of the authorities was specially directed to prevent the exportation of cotton, upon which the insurgents chiefly relied to obtain the means for the continuance of their struggle. The plaintiff alleges that he paid money and delivered goods to the defendants for the use of the Confederate government, in order to obtain permission to violate this policy and legislation, and now he modestly asks that he should be allowed in the courts of the United States to recover damages from them because they took what he offered for the permission.

The demurrer was properly sustained.

Judgment affirmed.

title: Radich v. Hutchins/Opinion of the Court


text: Talk:Radich v. Hutchins/Opinion of the Court


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Roemer v. Simon (95 U.S. 214)

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

This is a suit by William Roemer against the appellee for the infringement of letters-patent No. 56,801, granted to him July 31, 1866, for an improvement in travelling-bags.

The answer set up among the defences the want of novelty of the improvement, and the knowledge and use of it prior to the alleged invention of the complainant.

Upon the final hearing, the court below dismissed the bill whereupon the complainant appealed here.

The other facts are set forth in the opinion of the court.

Mr. Arthur v. Bries n for the appellant.

Mr. Frederic H. Betts, contra.

MR. JUSTICE CLIFFORD delivered the opinion of the court.

title: Roemer v. Simon (95 U.S. 214)


text: Talk:Roemer v. Simon (95 U.S. 214)

title: Talk:Roemer v. Simon (95 U.S. 214)


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Roemer v. Simon (95 U.S. 214)/Opinion of the Court

Patentees or assignees in a suit for infringement, where the patent described in the bill of complaint is introduced in evidence, are presumed to be the original and first inventors of the described improvement; and, if they have proved the alleged infringement, the burden of proof is cast upon the respondents to show that the patent is invalid, unless the patent is materially defective in form.

Parties defendants sued as infringers are not allowed, in an action at law, to set up the defence of a prior invention, knowledge, or use of the thing patented, unless they have given notice of such defence in writing thirty days before the trial, and have stated in that notice 'the names of the patentees and the dates of their patents alleged to have been invented, and the names and residences of the persons alleged to have invented or to have had the prior knowledge of the thing patented, and where and by whom it had been used.' 16 Stat. 208; Rev. Stat., sect. 4920; Seymour v. Osborne, 11 Wall. 516; Blanchard v. Putnam, 8 id. 420.

Since the passage of the act of the 8th of July, 1870, the regulation in equity suits is that defences such as are described in sect. 61 of that act 'may be pleaded in any equity suit for relief against an alleged infringement, and that proof of the same may be given upon like notice in the answer of the respondent, and with like effect.' 16 Stat. 208.

Service was made; and the respondents appeared and filed an answer, in which they deny that they have ever in any way infringed the letters-patent described in the bill of complaint; and they also set up several other defences, as follows: 1. That the specification filed in the Patent Office contains less than the whole truth relative to the invention, or more than is necessary to produce the described effect. 2. That the patent was surreptitiously and unjustly obtained for that which was in fact invented by another. 3. That the alleged invention had been patented prior to the supposed invention by the complainant. 4. That the alleged invention had been described in a certain publication prior to the alleged invention by the patentee. 5. That the complainant was not the original and first inventor of the supposed improvement; that the same had been previously invented and known and used by the persons named in the answer, and by many other persons whose names are unknown to the respondents, which, when discovered, the respondents pray leave to insert and set forth in the answer.

Proofs were taken on both sides; and the parties went to hearing upon bill, answer, replication, and the proofs exhibited in the record. Both parties were fully heard; and the court entered a decree in favor of the respondents, dismissing the bill of complaint; and the complainant appealed to this court.

Three errors are assigned, in substance and effect as follows:

1. That the court did not give due effect to the agreement between the parties which was introduced in evidence by the complainant. 2. That the evidence introduced by the respondents to prove use and knowledge of the thing patented prior to the patent granted to the complainant was insufficient to establish that defence. 3. That the court erred in admitting evidence to prove such prior use and knowledge, or which no notice had been given in the answer.

Questions not involved in the assignment of errors will be passed over without examination.

1. By the articles of agreement, the respondents agreed that 'they will not manufacture or use the clasp or catch manufactured by a certain firm therein mentioned without the consent of the complainant, his executors, administrators, or assigns.' They did not agree not to manufacture or use the thing patented in the complainant's patent. Instead of that, the charge in the bill of complaint is that the respondents have manufactured and sold to others large quantities of travelling-bags in violation of he complainant's rights and privileges under his letters-patent. Attempt is made to show that the clasp or catch manufactured by the firm referred to in the agreement is the same as that of the complainant; but that is a question of fact open to controversy, which is sufficient to show that the agreement does not work an estoppel, as supposed by the respondents. Curtis on Patents (4th ed.), sect. 217.

Much reference to the specification is unnecessary, as the defence, that the respondents have not infringed the supposed invention, is not pressed in the argument for the appellee. My invention, says the patentee, consists in the application of two staples or clamps, one at or near each end, to the frame of a traveling-bag in such a manner that when the bag is packed full the staples or clamps shall fasten the ends or corners together. In the same connection he also describes a mode of fastening the staples or clamps to the frame of the bag by a strap which passes over the centre of each staple; and he adds, that the staple or clamp 'is made of strong iron turned down at each end.' Sufficient description is given of the staple or clamp; but the strap is not described, except by being exhibited in the drawings.

Clamps, the patentee admits, have before been applied to small and fancy bags instead of a lock at or near the centre of the frame, and therefore he does not claim the application of clamps or staples broadly; but, says the patentee, what I claim as my invention and desire to secure by letters-patent is a frame for travelling-bags having staples and straps, meaning the described staple and strap adjusted at the top thereof, relieving the lock from strain, as combined, arranged, and described.

Suffice it to say, that it is obvious from an inspection of the specification that the real invention, if any, is in the staples or clamps, and perhaps in the arrangement of two of them at the top of the frame. Doubtless one method of arrangement may be better than another; but the particular method of attachment to the frame cannot be very material, as any mechanic, if furnished with the clamps, could affix the device in various equivalent ways.

Five witnesses admitted to be credible were examined by the respondents, whose testimony clearly shows that the thing patented had been previously known and used very extensively in this country by the persons named in the answer and by many others.

Exclusive rights of the kind are granted only to inventors or discoverers of some new and useful art, machine, manufacture, or composition of matter, or some new and useful improvement thereof; and the law is well settled that nothing short of invention or discovery will support a patent for any such alleged new and useful improvement. Certain other important conditions are also annexed to the exercise of the right to obtain such a muniment of title for such an invention or discovery; as, for example, the improvement must not only be new and useful, but it must be one not known or used by others in this country and not patented, or described before the invention or discovery in any printed publication in this or any foreign country, and must not have been in public use or an sale more than two years prior to the application for a patent. 16 Stat. 201; Rev. Stat. sect. 4886; Collar Company v. Van Duse, 23 Wall. 531; Dunbar v. Myers, 94 U.S. 196.

Antecedent patents here or elsewhere are not set up in the answer; and it is clear that proof of prior use in a foreign country will not supersede a patent granted here, unless the alleged invention was patented in some foreign country. Proof of such foreign manufacture and use, if known to the applicant for a patent, may be evidence tending to show that he is not the inventor of the alleged new improvement; but it is not sufficient to supersede the patent if he did nt borrow his supposed invention from that source, unless the foreign inventor obtained a patent for his improvement, or the same was described in some printed publication.

Doubt upon that subject cannot be entertained; but it is equally clear, that if the alleged improvement had been previously patented here or in a foreign country, or if it had been previously known or used by others in this country, or if it had been in public use or on sale for more than two years prior to his application for a patent, the letters-patent cannot be sustained. 16 Stat. 201.

Competent proof of a prior patent anywhere is entirely wanting, nor is there any satisfactory evidence that the invention was previously described in any printed publication; but the evidence shows beyond any reasonable doubt that the thing patented was known and used extensively by others in this country before the invention or discovery made by the patentee, as set forth and described in the bill of complaint. Such was the finding of the court below; and the evidence is so full to the point, and is so fully set forth in the record and in the opinion delivered in the Circuit Court, that it is not necessary to reproduce it in the present opinion.

Suppose that is so, still it is insisted by the complainant that the testimony of two of the witnesses should have been excluded, because their names and residences were not set forth in the answer as persons alleged to have had a prior knowledge of the thing patented.

Written notice of the names of the witnesses intended to be called by the defendant or respondent to prove such a defence is not required by the act of Congress. Instead of that, the requirement is that the defendant party shall state the names of the patentees, and the dates of their patents and when granted, and 'the names and residences of the persons alleged to have invented or to have had the prior knowledge of the thing patented, and where and by whom it had been used.' 16 Stat. 208.

Notice of the kind is required, in order to guard the moving party from being surprised at the trial by a defence of a nature which he could not be presumed to know or be prepared to meet; and, to prevent such consequences, the defendant or respondent is required to state 'the names and residences of the persons alleged to have previously invented the improvement, or to have the prior knowledge of the thing patented, and where and by whom it had been used.' Teese et al. v. Huntington et al., 23 How. 2.

Prior use and knowledge of the thing patented may be pleaded as a defence to a suit for infringement; but the respondent cannot be allowed to give evidence to support such defence, if seasonable objection be made, unless it appears that he gave notice in his answer of the names and residences of the persons alleged to have had such prior knowledge of the thing patented. Blanchard v. Putnam, 8 Wall. 420.

Seasonable objection was made in that case by the plaintiff, the suit being an action at law, and the court held that the evidence was not admissible without an antecedent compliance with the conditions of the patent act; but the case before the court is clearly distinguished from that in several particulars. Due notice was given in the answer that the invention and every material and substantial part thereof had been previously invented and used by and was known to certain persons therein named, twelve in all; and the respondents in due form stated the names and residences of the persons alleged to have had such prior knowledge, and where and by whom the invention had been used. Superadded to that, they also alleged that the supposed invention had previously been known to and used by many other persons to the respondents unknown; and they prayed leave, as before remarked, that, when discovered, they might be permitted to insert and set forth their names in the answer. Pursuant to that reservation, two witnesses were examined upon that subject by the respondents without objection; nor does the record, irrespective of the opinion of the court, show that any objection to the admissibility of the evidence was ever made.

Previous notice of the examination of those two witnesses, i seems, was not given; but the presiding justice states that, if seasonable objection had been made, the evidence would have been excluded. None such was made; and it is well-settled law that the failure to interpose any such objection before the final hearing is a waiver of the required notice in an equity suit. Brown v. Hall, 6 Blatch. 405.

Explicit notice was given in the answer that such a defence would be made, and that leave to amend the answer would be asked in case the names and residences of other persons having like knowledge in that regard should be discovered; and, when such a discovery was made, the respondents in due form applied to the court for leave to insert their names and residences in the answer. Viewed in the light of these circumstances, we are all of the opinion, that it was clearly competent to allow the proposed amendment. Teese et al. v. Huntington et al., supra.

Authority to grant the amendment being established, it follows that the court might properly allow it to be entered nunc pro tunc, as originally prayed in the answer. Due notice was there given that such defence would be made, and that the respondents would move to insert the names and residences of other persons when discovered. Such notice prevented surprise, and fully justified the court in allowing the amendment and making the order in the form exhibited in the record.

Suppose the rule were otherwise, still a new hearing would not benefit the complainant, as the testimony of the other three witnesses is abundantly sufficient to establish the defence of prior knowledge and use.

Decree affirmed.


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Ex parte Railroad Company

PETITION for a writ of mandamus to the Circuit Court of the United States for the Middle District of Alabama.

The facts important to the determination of this case are as follows:--

The Montgomery and Eufaula Railroad Company, in 1860, borrowed $30,000 from the State of Alabama, and executed a mortgage upon its property and franchises to secure the payment. Afterwards, the State indorsed bonds of the company to the amount of $1,280,000, and a statutory lien was created upon the same property and franchises as further security for the bonds. In 1870, the company issued a series of bonds to the amount of $500,000, and secured the payment of them by a deed of trust upon the same property.

Default having been made in the payment of the interest upon the last-named bonds, Samuel A. Strang, claiming to be the holder of some of them, filed May 10, 1872, a bill for the foreclosure of the mortgage, in the District Court of the United States for the Middle District of Alabama, then possessing circuit court powers. To this bill, the trustees named in the mortgage, the railroad company, and one of its judgment creditors, were alone made parties. No mention was made of the first mortgage to the State. On the 17th January, 1874, the South and North Alabama Railroad Company was, upon its own petition, admitted as a defendant in the suit, with leave to answer and file a cross-bill. In its answer it set forth its ownership of the $30,000 mortgage to the State, and insisted upon the priority of its security; and, in the cross-bill, prayed a sale of the mortgaged property, for the purpose of paying the debt.

On the 1st of April, 1875, Mason Young and others, claiming to be the owners of certain of the bonds secured by the statutory lien, filed a bill in the Circuit Court of the United States for the Middle District of Alabama to enforce that lien. To this bill the Montgomery and Eufaula Railroad Company, the South and North Alabama Railroad Company, and the trustees under the Strang mortgage, were made parties. The South and North Alabama Railroad Company answered, setting up its lien, and asking that it might be enforced as superior to that of any other claimants. In the answer, it was stated that, on the 20th April, 1876, the company had transferred its claim to the Louisville and Nash ille Railroad Company. In June, 1876, the Strang suit was, by operation of law, transferred to the Circuit Court of the United States for the Middle District of Alabama.

After this transfer, the Strang and Young suits, with the cross-bill, were submitted to the court upon the pleadings, proof, and admissions of the solicitors for the determination of the question, whether the mortgage claim of the South and North Alabama Railroad Company was paramount and superior to the other claims and liens asserted and disclosed in the pleadings of the other parties to the several causes; and, upon this submission, the court decided in favor of that company, finding the amount due to be $61,212, and entered an interlocutory decree to that effect, reserving all further questions. At a subsequent term, on the 6th of June, 1877, each of the several causes came on to be heard upon the prayer of the cross-bill of the South and North Alabama Company, for an order to sell the mortgaged property, and pay its debt out of the proceeds, and upon the motion of the several complainants in the original bills for a reference to ascertain the amount due for costs, solicitors' fees, and outstanding unpaid receiver's certificates. Upon this hearing, a decree was entered in each of the suits directing the sale, as asked for, and the application of the proceeds to the payment of the claim of the Alabama Company in preference to that of the other mortgage creditors. From these decrees Young and his co-complainants appealed, and filed the necessary bond for a supersedeas; but at the same term, and the next day after the appeal was taken, the court again considered the cause, upon the motion of those holding claims adverse to that company for a decree settling their equities as between themselves, and directing a sale of the property subject to the claim or lien of that company, 'to the end that this litigation, except in so far as it concerns the South and North Alabama Railroad Company, may be terminated;' and it appearing to the court that the parties to such motion were entitled to a decree as to their several equities as between each other, the two suits of Strang and Young were consolidated, and a decree was rendered, July 3, 1877, settling the equities of the parties, exclusive of the Alabama Company, ordering a sale of the property, subject to the lien of that company, and directing that the purchaser take title subject to such lien, as the same might finally be adjudicated and determined. It was also adjudged that all the rights and equities of that company should remain the same in all respects as if that decree had not been rendered, such company 'not being a party to the submission, and, in the opinion of the court, as a matter of law, not a party to the decree, although appearing and claiming to be a party, and insisting upon the right as a party to object thereto.'

On the same day with the rendition of this decree, the South and North Alabama Company prayed an appeal to this court to operate as a supersedeas upon the filing of the necessary bond; but the court refused to grant the appeal or accept a bond, being of the opinion that the company had no right to appeal, or to supersede the execution of the decree.

The South and North Alabama Railroad Company now petitions for a mandamus requiring the Circuit Court to grant the appeal and accept a good and sufficient supersedeas bond.

Mr. Thomas G. Jones for the petitioner.

The decree of July 3, 1877, is final, and the petitioner, as a party to the suit, had the right to an appeal to this court. Stovall v. Banks, 10 Wall. 583; Railroad Company v. Bradleys, 7 id. 575; The Douro, 3 id. 564; United States v. Adams, 6 id. 101; Ex parte Jordan, 94 U.S. 248; Phillips's Practice, 76-81.

The assignment of the debt by the petitioner to the Louisville and Nashville Railroad Company did not take away that right. Partridge v. Partridge, 38 Pa. St. 78; Adams v. Parker, 12 Gray (Mass.), 53; Warden v. Adams, 15 Mass. 233; Smith v. Kelley, 27 Me. 237; Lyford v. Ross, 33 id. 197; Crinion v. Nelson, 7 Mo. 466; Davies v. Austin, 1 Ves. 247; Thomas on Mortgages, 104; Story, Eq. Pl., sects. 156, 351.

The appeal having been improperly denied, mandamus is the proper remedy. United States v. Gomez, 3 Wall. 752; Ex parte Jordan, supra; Life and Fire Insurance Company of New York v. Adams, 9 Pet. 571.

Mr. D. S. Troy, contra.

The appeal was properly denied. Simpson v. Greeley, 20 Wall. 152; Stratton v. Jarvis & Brown, 8 Pet. 4; Neal v. Singleton, 26 Ark. 491; Combs v. Jefferson Pond Draining Co., 3 Metc. (Ky.) 72; Strong v. Winslow, 3 Chand. (Wis.) 21; Amery v. Amery, 26 Wis. 152; High, Extraordinary Remedies, sects. 8-10.

The petitioner having assigned its debt, and thus transferred its interest in the subject-matter in controversy, lost any right it might otherwise have had to an appeal. Story, Eq. Pl., sects. 156, 349, 351, 352; Mitford & Tyler, Eq. Pl., p. 164; Mills v. Hoag, 7 Paige (N. Y.), Ch. 18; Card v. Bird, 10 id. 427; People v. Wilson, 26 Cal. 127; Griggs v. Detroit, 10 Mich. 117; Solomon v. Solomon, 13 Sim. 516; Johnson v. Thomas, 11 Beav. 502.

Moreover, its lien, whatever it might be, was expressly saved from the operation of the decree.

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

title: Ex parte Railroad Company


text: Talk:Ex parte Railroad Company

title: Talk:Ex parte Railroad Company


text:
Ex parte Railroad Company/Opinion of the Court

This petition for a mandamus is resisted, upon the general ground that the South and North Alabama Railroad Company cannot appeal, because its rights are not injuriously affected by the decree. That company was a party to each of the suits consolidated for the purposes of the decree. It was, therefore, a party to the consolidated suit, and entitled to be heard upon the pleadings as they stood before the consolidation, since no change in that particular was ordered or deemed necessary by the court. Among the pleadings in the Strang suit, thus brought into the consolidated suit, was the cross-bill of this company praying affirmative relief in the final determination of the cause. It matters not that at a former day in the term a special decree had been rendered upon the subject-matter of the cross-bill, and that an appeal from that decree had been taken; for 'a cross-bill is a mere auxiliary suit and a dependency of the original.' Cross v. DeValle, 1 Wall. 5. As we have said in Ayres et al. v. Carver et al., 17 How. 591, 'both the original and cross-bill constitute one suit,' and ought to be heard at the same time. Consequently, 'any decision or decree in the proceedings upon the cross-bill is not a final decree in the suit, and. . . not the subject of an appeal to this court. . . . The decree, whether maintaining or dismissing the bill, disposes of a proceeding simply incidental to the principal matter in litigation, and can only be reviewed on an appeal from the final decree disposing of the whole case. That appeal brings up all the proceedings for re-examination, when the party aggrieved by any determination in respect to the cross-bill has the opportunity to review it, as in the case of any other interlocutory proceeding in the case.' A cross-bill must grow out of the matters alleged in the original bill, and is used to bring the whole dispute before the court, so that there may be a complete decree touching the subject-matter of the action. 2 Daniell, Ch. 1548. The South and North Alabama Company deemed it necessary, for the protection of its rights in the mortgaged property, that in any sale which might be ordered provision should be made for the payment of its claim out of the proceeds, insisting, for that purpose, that its lien was prior in time to that of either of the other mortgage creditors. To accomplish this, a cross-bill was necessary, and it was accordingly filed. The decree upon this bill being, under the ruling in Ayres v. Carver, inter ocutory only, was superseded by that of July 3, which finally disposed of the cause in a manner entirely inconsistent with its provisions. It is clear, therefore, that the decree as rendered did, in effect, deny the company the relief it asked, and that, if there were nothing more in the case, redress might be had by an appeal.

But it is claimed that, as in the answer of the South and North Alabama Company to the bill of Young, it was stated that pending that suit, and consequently pending that of Strang and the cross-bill, the company had assigned its debt, it had now no right to insist upon affirmative relief in the action, and, therefore, could not appeal. In both the suits it was a defendant against whom relief was asked. It defended against the claims of the several complainants, and, as an incident to that defence, sought to obtain protection for its own rights. It is well settled that an assignment by a defendant of his interest in a litigation does not necessarily defeat a suit. His assignee taking pendente lite is bound by what is done against him. The assignee may, at his own election, come in by an appropriate application, and make himself a party, so as to assume the burden of the litigation in his own name, or he may act in the name of his assignor. A pendente lite assignment carries with it an implied license by the assignor for the use of his name in the cause by the assignee to protect the rights assigned. Of this, the plaintiffs in the action cannot complain, because the assignee is bound by all that is done, whether a party by name or not. Acting upon this principle, notwithstanding the statement in the answer, the company has all the time, in the whole course of the subsequent proceedings, been treated as the representative of the interest of its assignee. Subsequent to the answer, and during the May Term, 1876, the cause was submitted by consent of all parties for decision and decree upon the question whether the mortgage claim or lien asserted and disclosed in the answer and cross-bill in the Strang suit and in the answer in the Young suit was, and still continued to be, paramount and superior to the claims and liens of the other parties. Upon this submission, the court found that the lien was paramount, and entered an interlocutory decree to that effect. In addition to this, on the 6th June, 1877, the parties stipulated, for the purposes of evidence in the cause, that the South and North Alabama Company was the owner of the bonds and the mortgage to secure them. It is thus apparent that, for the purposes of the suit, by the understanding of all the parties, that company represented the claim which was being enforced in its name, and was entitled to take such steps as might be deemed necessary for the protection of those in whose behalf it was acting.

A writ of mandamus may issue directing the circuit judge, or the Circuit Court of the United States for the Middle District of Alabama, to allow the appeal prayed for as of July 3, 1877, and, upon the allowance of the appeal, to accept as of the same date good and sufficient security for a supersedeas if offered; and it is.

So ordered.


text: Talk:Ex parte Railroad Company/Opinion of the Court


text:
Insurance Company v. Express Company

ERROR to the Circuit Court of the United States for the Southern District of New York.

The facts are stated in the opinion of the court.

Mr. N. B. Hoxie for the plaintiff in error.

Mr. S. P. Nash, contra.

MR. JUSTICE STRONG delivered the opinion of the court.

title: Insurance Company v. Express Company


text: Talk:Insurance Company v. Express Company


text:
Insurance Company v. Express Company/Opinion of the Court

This was an action upon two policies of insurance against fire, issued by the defendants to the plaintiffs below, an express company, and covering goods, wares, and merchandise in their care for transportation while on board cars or other conveyances, including water and stage routes, embracing the entire routes of the company designated on a map specified. The policies, though differing in the sums insured, were alike in all other particulars. To the action two defences were set up, both founded upon certain provisions of the policies. The material parts out of which the first of these defences is thought to arise are the following:--

'It is a further condition of this insurance, that no loss is to be paid in case of collision, except fire ensue, and then only for the loss and damage by fire. And that no loss is to be paid arising from petroleum or other explosive oils.'

'Petroleum, rock, earth, coal, kerosene, or carbon oils of any description, whether crude or refined; benzine, benzole, naphtha, camphene, spirit gas, burning fluid, turpentine, phosgene, or any other inflammable liquid, are not to be stored, used, kept, or allowed on the above premises, temporarily or permanently, for sale or otherwise, unless with written permission indorsed on this policy, excepting the use of refined coal, kerosene, or other carbon oil for lights, if the same is drawn and the lamps filled by daylight, otherwise this policy shall be null and void.'

'If any property covered by this insurance be damaged by lightning, or the bursting of a boiler, or by explosion from any cause, this company shall not be liable therefor, unless fire ensues, and then for the loss by fire only, which shall be determined by the value of the damaged property after the casualty by explosion or lightning.'

It is claimed that by force of these provisions the loss which occurred was excepted from the risk undertaken by the insurers, or, in other words, that the loss was not covered by the policies. This is one of the defences set up against any recovery by the plaintiffs.

The other defence is, that the suit was not brought within the term of twelve months next after the loss or damage occurred, and was, therefore, barred by an express stipulation contained in the policies. Both these defences were overruled in the Circuit Court, and the jury was instructed to return a verdict for the plaintiffs. It is obvious that, if either of the defences was maintainable,-if the loss was not covered by the policies, or if the suit was barred by any stipulation contained in them,-the instruction given to the jury was erroneous. And, as we think the loss was excepted from the risk assumed by the insurance company, it will be unnecessary to consider whether the action was brought too late.

There is no controversy about the facts. They were agreed upon and admitted at the trial. During the years 1870 and 1871, the New York Central and Hudson River Railroad was one of the routes of the plaintiff denoted on the map referred to in the policies of insurance.

On Feb. 6, 1871, an oil freight-train of said railroad was on its way from the city of Albany to the city of New York, on the westerly track of the railroad. The train was composed mainly of oil-cars, so called, the same being trucks or platforms, having upon them, respectively, two large wooden tanks, with iron hoops; one of the tanks at each end of the trucks or platforms, and each tank containing several thousand gallons of petroleum.

By the breaking of an axle, one of the oil-cars was thrown from or left the westerly track, and so left and situated that it stood across the easterly track of the railroad, upon the bridge next south of the tunnel at New Hamburgh.

While the oil-car was so situated, an express passenger-train of the railroad company, composed of locomotive and tender, baggage-car, express freight-car, five sleeping-cars, and one ordinary passenger-car, connected in the order stated, was on its way from the city of New York to the city of Albany, upon the easterly track of the railroad. In the express freight-car was a large quantity of merchandise in the possession of the plaintiffs, and in the course of transportation by them.

The express passenger-train was proceeding at a high rate of speed, and while so proceeding, at or about the hour of ten o'clock in the evening of the said sixth day of February, 1871, struck one of the oil-tanks upon the oil-car standing across the easterly track of the railroad upon the bridge, as before mentioned.

Immediately upon the collision, the petroleum in said tank so struck was in some way ignited and burst into flames, which surrounded and enveloped the locomotive and tender, baggage-car, express freight-car, and first, second, and third sleeping-cars of the express passenger-train, and consumed the bridge, the baggage-car and its contents, the express freight-car and most of its contents, and the first, second, and third sleeping-cars, with many of the passengers therein.

There was no petroleum or other explosive oil in or upon either of said trains in the possession or under the control of the plaintiffs.

In view of the facts thus stated, it is an inevitable inference that the destruction of the express-car and its contents arose from the burning petroleum, or was caused by it; and it makes no difference to this case how the petroleum was ignited, whether by burning coals from the locomotive, or by heat generated in the collision.

The policies insured only against fire, and the excepting clause we have quoted was plainly intended to exclude from the risk taken certain possible fires. It stated, as a condition of the insurance, that no loss should be paid in case of collision, except fire ensued, and then only for the loss and damage by fire, and that no loss should be paid arising from petroleum or other explosive oils. This plainly implies that, in contemplation of the parties, a loss by fire might arise or be caused by petroleum. That would be impossible, unless the petroleum were ignited in some way. It must, therefore, have been understood that burning petroleum, distinguished from the match, coals, or collision that ignited it, might originate a fire, and that a loss might arise from it. Such a loss, therefore, must have been the one intended to be excepted, as truly as the excepting a loss from gunpowder would mean from ignited gunpowder, not merely from the loss caused by the match which ignited it. Keeping in mind the general intent of the contract, which was insurance against fire, we may, perhaps, arrive at the understanding of the parties by following the succession of provisions the policy contains. After having acknowledged the receipt of the premium for insurance of the property against fire generally, the thought seems to have occurred that railroad collisions might take place, causing damage and resulting in fire. The policy, therefore, stipulated that in such cases only the damage caused by fire, as distinguished from that caused by the collision, should be covered by the policies. Then it seems to have been considered that collisions might result in setting fire to petroleum, a known dangerous substance, which, when ignited, produces uncontrollable fires; and, therefore, it was stipulated that no loss arising from petroleum should be paid for, even though its ignition should ensue as a consequence of collision. Looking at the position in the contract of these excepting provisions, being in juxtaposition, as they are, and in one policy parts of the same sentence, it is evident that such must have been the process of thought of the parties. The meaning of the language used by the insurers, then, is this: We will insure you against fire; and, if fire ensues from a collision, we will pay the damages caused by the fire, though not that caused by the collision; but if a fire ensuing a collision arise from petroleum or other explosive oils, we do not undertake to pay the loss. All other losses caused by fire resulting from collision we will pay. Such, we think, is the most natural construction of the excepting clause.

The circuit judge was of opinion that what the parties contemplated was exemption from liability for loss occasioned by explosion. This he inferred from the expression, 'no loss is to be paid arising from petroleum or other explosive oils' (severing it from the sentence of which it is really a part). Hence, he concluded that the parties treated petroleum as an explosive substance; and that when, as generally, in case of fire, if an explosion occur which is caused by the fire, the insurers might be liable for the whole damage caused by the explosion, in this case they were exempted by the exception from all loss except that immediately communicated by fire. To us this appears to be a strained and unnatural construction, and it is decisive against it that the parties have clearly and expressly stipulated for the case of loss by explosion in another part of the policy. It is a fair and necessary inference from this that the parties had in mind, when they inserted the clause, other causes of loss and other limitations of liability.

The defendants in error have argued that the exempting clause may fairly be construed so as to read, 'No loss is to be paid arising from petroleum or other explosive oils carried by the parties insured,' or 'carried upon the same train of cars or other conveyance used by the parties insured.' But such a construction would be making a contract, instead of interpreting one already made. Another section of the policies contains a condition that petroleum, rock, earth, coal, kerosene, or carbon oils of any description, whether crude or refined, benzine, benzole, naphtha, comphene, spirit gas, burning fluid, turpentine, phosgene, or any other inflammable liquid, shall not be stored, used, kept, or allowed on the premises insured (that is, in the cars or conveyances employed), either permanently or temporarily, for sale or otherwise. The petroleum referred to in the excepting clause must, therefore, have been some other than such as might be carried by the assured, or on the conveyances used by them. Collisions of express trains with petroleum-oil trains, and the consequent frightful destruction of property and life by fire, had occurred before these policies were issued, and manifestly the contracting parties intended to take out of the risk assured the damages which might result from such a possible catastrophe.

We are, therefore, led to the conclusion that the loss sustained by the plaintiff was not covered by the policies, and that the Circuit Court erred in charging the jury to return a verdict against the defendants.

Judgment reversed.


text: Talk:Insurance Company v. Express Company/Opinion of the Court