text:
Pearson v. Duane

IN the month of June, 1856, the steamship Stevens, a common carrier of passengers, of which Pearson was master, on her regular voyage from Panama to San Francisco, arrived at the intermediate port of Acapulco, where Duane got on board, with the intention of proceeding to San Francisco. He had, shortly before this, been bunished from that city by a revolutionary, yet powerful and organized body of men, called 'The Vigilance Committee of San Francisco,' upon penalty of death in case of return. This committee had, in the fore part of June, against his will, placed him on the Golden Age, a steamer in the harbor of San Francisco, destined for Panama, with directions that he should be conveyed beyond the limits of California; and he was forcibly carried to the Mexican port of Acapulco. The presence of the Stevens afforded the first opportunity to get back, which he was anxious to embrace, being willing to encounter the risk to which his return might expose him. Duane went openly on the boat, at the public gangway, and talked freely with some of the officers and passengers. It is not certain that the master knew of his being aboard until after the ship got to sea, but no directions had been given for his exclusion, and although he was without a ticket, or money to buy one, yet a passenger, who had the means, offered to pay the purser his fare, who declined receiving it.

It was usual for those persons who wished to secure a passage, to procure a ticket at Acapulco, but there was no imperative rule of the ship requiring it, and the customary fare was often paid to the purser after the boat had left the port.

There was no evidence that Duane would have been excluded, had the master been aware that he was on board before he left Acapulco, for it was quite clear that the circumstances of his banishment were unknown at that time.

The master, Pearson, was aware that the Vigilance Committee were in control of San Francisco, and ascertained in some way that Duane had been expelled by them from California, and if he returned, would be in danger of losing his life. Having learned this, he resolved to put Duane aboard the first down ship he met, and send him back to Acapulco. The steamer Sonora, commanded by Captain Whiting, and one of the same line of steamers of which Pearson was master, very soon came in sight, and was stopped. Whiting informed Pearson that he had orders not to carry back any banished person, and that Duane would certainly be executed if he returned, and advised that he should be sent to the Sonora, and he would endeavor to persuade him to go on with him.

Thereupon Duane was transferred to the Sonora, and landed at Acapulco. The transfer was effected without any personal indignity to Duane, who at first resisted, but was induced to yield to superior force, by friendly counsels.

Duane did not return to California until the month of February, 1860. The Vigilance Committee no longer existed, and he then filed a libel in admiralty for damages, in the District Court of the Northern District there, setting forth essentially the facts above stated; that having been expelled as he was from the Stevens, all efforts to get aboard vessels going to San Francisco were unavailing; that he went thus to Aspinwall, in the Republic of New Grenada, to try and get passage thence to San Francisco, but that a line of steamers previously existing there and on which he expected to go, had been discontinued, its last vessel having set off two or three days before his arrival. That finally, through charity, he obtained a passage to New York, in which city he was without money or means, his character and reputation blasted, and himself a dependent on charity for subsistance, and was for several months confined in the hospital there, physically unable to attempt the voyage to San Francisco until February, 1860.

By the 12th article of his libel, he assigned as a reason for delay in bringing his action, the state of things in San Francisco, the numerous executions there by the Vigilance Committee, and his own belief that if he returned his life would be put in jeopardy; a belief which, he alleged, 'existed up to the time of his departure from New York to California.'

The answer, besides a defence from lapse of time, asserted that the libellant was not 'a good or law-abiding citizen of San Francisco,' and that he had 'secretly and without any right or authority so to do, got on board of the Stevens and remained secreted on board as a stowaway;' and that the defendant in sending the libellant back on the Sonora, had been influenced by humane motives.

The District Court decreed in favor of Duane, with $4000 damages; a decree affirmed in the Circuit Court. Appeal.

Messrs. Lyon and Alexander Hamilton, Jr., for the appellant:

I. The condition of affairs in San Francisco, in July, 1856, is a matter of public history. It was that of an organized rule of anarchy, irresistible from its force, and unyielding in the execution of its purposes. It was submitted to, if not created by, a body of men otherwise supporters of law, and was formed to correct an evil which the law could not or did not reach. In whatever way it judged, it executed its judgments with inflexible certainty. The defendant could not disregard the existence of this power, nor defy its edicts because they emanated from an unlawful source. His duty, in common with every other citizen, was to abstain from participating in anything which this tribunal had pronounced against until the supremacy of the law should be re-established. To have taken back an obnoxious exile, would have been a direct challenge to the Vigilance Committee, which they would have answered by hanging the victim, under a sentence already pronounced.

To sustain a recovery, under such a state of facts, for the refusal of the defendant to carry this exile to the allows, would be to disregard the principles on which the law of common carriers is founded.

The first and most general obligation on the part of the public carriers of passengers is, without doubt, to carry persons who apply for passage. The obligation is, nevertheless, subject to several qualifications.

In Jencks v. Coleman, a case before Story, J., it was said:

'The right of passengers to a passage is not an unlimited right; but is subject to such reasonable regulations as the proprietor may prescribe for the due accommodation of passengers, and for the due arrangement of their business. The proprietors have not only this right, but the further right to consult and provide for their own interests in the management of such boats as a common incident to their right of property.'

'They are not bound to admit passengers on board, who refuse to obey the reasonable regulations of the boat, or who are guilty of gross and vulgar habits of conduct, or who make disturbance on board, or whose characters are doubtful, or dissolute or suspicious, and a fortiori whose characters are unequivocally bad; nor are they bound to admit passengers on board, whose object it is to interfere with the interest or patronage of the proprietors so as to make the business less lucrative to them. While, therefore, I agree that steamboat proprietors, holding themselves out as common carriers, are bound to receive passengers on board under ordinary circumstances, I at the same time insist that they may refuse to receive them, if there be a reasonable objection.'

The report of this case shows that Mr. Webster, who tried the case for the plaintiff, made no exception to any of the propositions involved in this part of the charge.

In Cook v. Gourdon, a South Carolina case, Mr. Justice Bay, in delivering the opinion of the court, speaking of the rights and liabilities of ferrymen, says:

'In fact, the law gives him the right of judging when it is safe and proper for him to cross or not.'

In Bennett v. Dutton, in the Supreme Court of New Hampshire, Chief Justice Parker says:

title: Pearson v. Duane


text: Talk:Pearson v. Duane

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

title: Talk:Pearson v. Duane


text:
Pearson v. Duane/Opinion of the Court

'We are of opinion that the proprietors of a stage-coach for the regular transportation of passengers for hire, are bound to take all passengers who come, so long as they have convenient accommodation for their safe carriage, unless there is a sufficient excuse for them for a refusal.'

Like innkeepers, carriers of passengers are not bound to receive all comers.

'The character of the applicant, or his condition at the time, may furnish just grounds for his exclusion, and his object at the time may furnish a sufficient excuse for a refusal, as if it be to commit an assault upon another passenger, or to injure the business of the proprietor.'

The fact that the libellant was willing and desirous to return to San Francisco, makes no difference as to the defendant's duty. His conduct in acting like a madman did not justify the master of the ship in imitating it. The value or worthlessness of the libellant's life is not involved in the question. The crime of murder or any lesser breach of the peace, is an offence against the body politic; in any measures taken to avoid this, the civil rights of individuals are subordinate to the requirements of a public duty.

An agent of a railway would be justified in refusing to sell a ticket to a pugilist on his way to participate in a prize fight, as would the conductor of a train in putting him off before reaching the place where the fight is to take place. Will it be asserted that a disappointed prize-fighter could recover damages against the carrier for thus averting a flagrant breach of the peace? The case before the court is stronger against a recovery.

If a carrier has reason to suppose that a passenger is engaged in canvassing for another line, the law excuses him for refusing to carry the passenger; or if he is of dissolute habits and not a fit companion for other passengers, he may be excluded; how much more is the carrier justified in excluding a person, who he well knew would meet, at the end of the route, with death at the hands of an armed and organized body of men in open rebellion against the constituted authorities?

Questions affecting the carriage of persons are comparatively of modern date, the first case coming under the notice of the court being in 1791, before Lord Kenyon. The carrier of goods, as will be conceded, is held to sider obligations than the carrier of passengers. Yet, if the goods offered are of a nature which will at the time expose them to extraordinary danger or popular rage, he need not take them. This was decided in the King's Bench, in Edwards v. Sherrat, a case where the plaintiff had a lot of wheat at Wolverhampton to be sent to Birmingham. There was a great disposition to riot manifested in the neighborhood, on account of the prevailing scarcity. The mob had pulled down a corn-mill not far distant, and it was understood that they had threatened to come to the warehouse where this corn was deposited. The defendant was a common carrier, by water, between Birmingham and Wolverhampton, and on to Radford. The plaintiff's agents, finding one of the defendant's boats going by, without any intention of staying at Wolverhampton, or seeking to take in goods there, stopped the boat, and prevailed upon the boatman to take in the corn, which was seized by the rioters at a distance of four or five miles from Wolverhampton. The defendant had a verdict, and opinions were delivered by Lord Kenyon and Barons Gross, Lawrence, and Le Blanc. Lord Kenyon said:

'All the circumstances and urgency of the case should have been disclosed to the boatman at the time, and he should have been asked whether he chose to undertake the risk. Common honesty would have suggested this; for no man in his senses would, under these circumstances, have taken the corn under a liability as common carrier.'

That is, there being a disposition to riot in the neighborhood, and a reasonable probability that the corn would be seized by the rioters in case it was taken on board the boat, the boatman would have been justified in acting upon the belief, and in refusing to take the corn.

'What are the facts? A boatman, in the night, is induced to take goods on board under such circumstances as, if the defendant had been apprised of them, it is clear that he would not have contracted to receive them as a common carrier.'

Almost all legal propositions which are true in the abstract have their exceptions in applying them. Thus, no feature of the common law is more conspicuous than the tenacity with which it has maintained the sacredness of a man's person. Yet in an indictment for an assault and battery, the defendant may justify laying his hands upon another to prevent him from fighting or committing a breach of the peace; or to prevent him rescuing goods taken in execution; or the like. 'A man may justify an assault and battery in preventing the commission of a felony, or a breach of the peace, or the suppression of a riot.'

In fact, the mere belief, if sincere, that the danger existed, was enough to justify the captain's conduct.

In the Commonwealth v. Power, in the Supreme Court of Massachussets, a person named Hall, actually had a ticket, intending to take passage. He had, however, on a former occasion, while on the passage, violated the rules of the company, and Power, the superintendent, now put him out of the car. The Chief Justice, referring to Hall's former conduct, uses this language:

'And if he, Hall, gave no notice of his intention to enter the car as a passenger, and of his right to do so, and if Power believed that his intention was to violate a subsisting, reasonable regulation, then he and his assistants were justified in forcibly removing him from the depot.'

In addition, carrying the libellant to San Francisco was calculated not only to endanger the safety of the ship and passengers, but would have subjected the cargo to risk, for which the owners would have been responsible. It has been held, that the phrase, 'king's enemies,' does not include the violence of a mob, or riot, or civil commotion of any nature.

II. But if the court should hold that the libellant is entitled to recover, then the damages allowed are excessive. No special damage is averred or proved; no unnecessary violence was used in removing him from the ship; nor did he receive bodily harm. He does not show a pecuniary injury of a dollar resulting from the act.

I. 'A common carrier for passengers,' says Professor Parsons, citing Bennett v. Dutton, quoted on the other side, 'is bound to receive all passengers who offer, to carry them the whole route, to demand no more than the usual and established compensation, to treat all his passengers alike, to behave to all with civility and propriety, to provide suitable carriages and means of transportation.'

The libellant went publicly on board the Stevens, at Acapulco, and was not refused his passage, and having been carried from Acapulco, after coming publicly on board, with the knowledge of Pearson, the captain, and having tendered his fare, was as much entitled to his passage as any other person, and his rights were as grossly violated as would have been those of any other, the most respectable and most respected passengers on board, if the captain had taken a freak against them and tendered them back their fare, and then forcibly put them on board the Sonora.

In Coppin v. Braithwaite, a leading case in England, the plaintiff was reported to be a pickpocket and associate of what was called the 'swell mob,' and as such, being found on board the vessel, though by consent of the officers, it was determined by the master that he was unfit to be a passenger. He was accordingly disembarked against his will at an intermediate point; the act of expelling him being accompanied with contemptuous and insulting language. At nisi prius judgment was for the plaintiff, and a motion in arrest of judgment, on the ground that the declaration was bad in that it alleged as breach that the defendant, by his agent, had caused the disembarkation to be conducted in a scandalous and improper manner, &c., whereby the plaintiff suffered injury, &c., was emphatically overruled by the court.

It is not pretended that the libellant did anything on the Stevens that was improper. The only argument is that if he arrived at San Francisco he would have been maltreated. But that was a risk which he had a right to take. The matter all rested in uncertainty. He had a right to be the sole judge of it.

II. The damages are a matter which are in the nature of a finding by a jury, and belonged properly to the case below. As on questions of fact, brought up here on appeal, this court, even where it may strictly have a right to reverse, will be slow to exercise its action, so here, it will consider that this matter belonged rather to the court below than to the appellate tribunal. The question of law, that is to say, the question whether, under the circumstances, Pearson had a right to expel Duane, is the only proper question for this tribunal.

Independently, however, of this, the damages cannot be regarded as grossly excessive. The expulsion of Duane was a great and mortifying indignity to him. It was an injury, too. He had been banished from San Francisco on the shortest notice. He was without funds, of course; and was unable to return to his former home for years; suffering the greatest hardships in the mean time over the whole continent.

The act of expulsion by Pearson was, in addition, a great breach of public rights; rights, at least, which every man is interested to maintain. The master of a ship has powers practically despotic. It is of great importance that every such person be taught that his powers must be exercised in subjection to law.

Mr. Justice DAVIS delivered the opinion of the court.

This case is interesting, because of certain novel views which this court is asked to sustain.

Two questions arise in it: 1st, was the conduct of Pearson justifiable? 2d, if not, what should be the proper measure of damages? It is contended, as the life of Duane was in imminent peril, in case of his return to San Francisco, that Pearson was justified, in order to save it, in excluding him from his boat, notwithstanding Duane was willing to take his chances of being hanged by the Vigilance Committee.

Such a motive is certainly commendable for its humanity, and goes very far to excuse the transaction, but does not justify it. Common carriers of passengers, like the steamship Stevens, are obliged to carry all persons who apply for passage, if the accommodations are sufficient, unless there is a proper excuse for refusal.

If there are reasonable objections to a proposed passenger, the carrier is not required to take him. In this case, Duane could have been well refused a passage when he first came on board the boat, if the circumstances of his banishment would, in the opinion of the master, have tended to promote further difficulty, should he be returned to a city where lawless violence was supreme.

But this refusal should have preceded the sailing of the ship. After the ship had got to sea, it was too late to take exceptions to the character of a passenger, or to his peculiar position, provided he violated no inflexible rule of the boat in getting on board. This was not done, and the defence that Duane was a 'stowaway,' and therefore subject to expulsion at any time, is a mere pretence, for the evidence is clear that he made no attempt to secrete himself until advised of his intended transfer to the Sonora. Although a railroad or steamboat company can properly refuse to transport a drunken or insane man, or one whose character is bad, they cannot expel him, after having admitted him as a passenger, and received his fare, unless he misbehaves during the journey. Duane conducted himself properly on the boat until his expulsion was determined, and when his fare was tendered to the purser, he was entitled to the same rights as other passengers. The refusal to carry him was contrary to law, although the reason for it was a humane one. The apprehended danger mitigates the act, but affords no legal justification for it.

But, the sum of four thousand dollars awarded as damages, in this case, is excessive, bearing no proportion to the injury received. Duane is entitled to compensation for the injury done him by being put on board the Sonora, so far as that injury arose from the act of Pearson in putting him there. But the outrages which he suffered at the hands of the Vigilance Committee, his forcible abduction from California and transportation to Acapulco, the difficulties experienced in getting to New York, and his inability to procure a passage from either Acapulco or Panama to San Francisco, cannot be compensated in this action. The obstructions he met with in returning to California were wholly due to the circumstances surrounding him, and were not caused by Pearson. Every one, doubtless, to whom he applied for passage, knew the power of the Vigilance Committee, and were afraid to encounter it, by returning an exile, against whom the sentence of death had been pronounced.

Pearson had no malice or ill-will towards Duane; and, as the evidence clearly shows, excluded him from his boat, in the fear that, if returned to San Francisco, he would be put to death. It was sheer madness for Duane to seek to go back there. Common prudence required that he should wait until the violence of the storm blew over, and law and order were restored.

This course he finally pursued, and he did not return to California until February, 1860. If he believed, when expelled from the Stevens, that Pearson had done him a great wrong, he certainly did not when he filed the libel in this case, for the 12th article is as follows:

'That when libellant was so banished from the State of California, as aforesaid, by the said Vigilance Committee, he was threatened with the penalty of death should he ever return to said State; that libellant was aware that said committee had caused to be executed a number of persons, without color or warrant of law or right, and that the said committee had the power and ability to put in execution their threats, and libellant believed and had reason to believe from the conduct of said R. H. Pearson as aforesaid, and the treatment he received from the hands of said Vigilance Committee, and their threats as aforesaid, which were well known to said Pearson, that should he return to said State, his return, if attempted or if successful, would be impeded and resisted, and his life put in peril and jeopardy, which belief existed up to the time of his departure from New York to California.'

This is the sworn statement of Duane, that his life was in peril if he returned to California at an earlier day, for the conduct of Pearson, to which he refers, was predicated on a corresponding belief.

It is true, this article in the libel was introduced, by way of excuse, for not having sooner brought the suit, but the admissions in it are proper evidence for all purposes. If so, it is clear that the legal injury which Duane suffered at the hands of Pearson, can be compensated by a small amount of money. On a review of the whole case, we are of opinion that the damages should be reduced to fifty dollars.

It is ordered that this cause be remitted to the Circuit Court for the District of California, with directions to enter a decree in favor of the appellee for fifty dollars. It is further ordered that each party pay his own costs in this court.

ORDER ACCORDINGLY.

title: Pearson v. Duane/Opinion of the Court


text: Talk:Pearson v. Duane/Opinion of the Court


text:
Ware v. United States

ERROR to the Circuit Court of the United States for the Eastern District of Pennsylvania, to reverse a judgment of that court affirming the judgment of the District Court in an action of debt instituted by the United States on the official bond of one Ware, as deputy postmaster at Kensington, in the county of Philadelphia, for $8000.

The declaration alleged that there was due to the United States from the said postmaster, according to his quarterly accounts of receipts and expenditures for the last quarter of the year 1861 and the first quarter of the year 1862, a balance of $3380.43.

The only question in the cause arose upon the defendant's second plea, which alleged that the defendant, Ware, being postmaster at Kensington, and still continuing to exercise that office, and not having been lawfully removed therefrom, held and retained in his possession the sum of $3450, part of the sum demanded by the United States, as and for his commissions on the postages collected at that office, and for rent of office during the space of eighteen months, commencing April 1st, 1862, and ending September 30th, 1863.

The replication of the United States was a special traverse of this plea, averring in the inducement that on March 13, 1862, the Postmaster-General of the United States discontinued the post-office at Kensington, and that afterwards no letters were deposited in or forwarded by mail from that office; but that all such letters, &c., as had previously been deposited in and mailed at the Kensington office were, after the date aforesaid, deposited in and mailed at the Philadelphia post-office; and that the said Ware, since the 19th of March, 1862, had collected no postages at the said late post-office at Kensington, and, since his quarterly account for the first quarter of the year 1862, had rendered no accounts of receipts and expenditures at the said Kensington post-office; and, concluding: 'Without this, that the said Samuel Ware, for the space of eighteen months, from the 1st day of April, 1862, to the 30th day of September, 1863, was deputy postmaster at Kensington, in the manner and form,' &c.

The defendants, in the rejoinder filed to this replication, averred that, after the said unlawful discontinuance of the post-office at Kensington, the postmaster at Philadelphia received and delivered letters and other mailable matter which, but for the said discontinuance, would have passed through the Kensington post-office, sufficient in quantity to authorize and justify an allowance of commissions to the said Ware, over and above expenditures, at the rate of $2000 per annum, which said commissions, so wrongfully withheld from him, exceed in amount the balance claimed by the United States.

To this rejoinder the United States demurred, and the demurrer was sustained by the District Court. A jury having been called to assess the damages found for the plaintiffs in the sum of $2366.22, for which the court entered judgment.

This judgment was affirmed, on writ of error, by the Circuit Court.

To understand the matter more completely it may be well to state the facts, not disputed, of the case, and also to mention certain acts of Congress in reference to the subject of postmasters.

I. The facts were these:

Previous to 1854, Kensington was a district adjoining the municipality of Philadelphia proper, possessing a distinct municipal organization. In 1854 it was consolidated with the city of Philadelphia, under an act of Assembly of the State of Pennsylvania. The post-office established at Kensington, before the consolidation of the districts, continued to be maintained there until March, 1862, when it was discontinued by the Postmaster-General in the manner stated in the plaintiff's replication.

At the time of this order the accounts of Ware had not been finally adjusted at the department.

After this, the mails were no longer supplied to or distributed through the Kensington office, but through the Philadelphia office and its sub-offices. No postages were collected or received thereafter by the postmaster of Kensington, and no accounts were rendered by him, after the abolition of his office, to the department at Washington.

II. As respected the acts of Congress:

1. The Constitution confers upon Congress power 'to establish post-offices and post-roads.' An act of March 3d, 1825, provides that the Postmaster-General 'shall establish post-offices and appoint postmasters at all such places as shall appear to him expedient on the post-roads that are or may be established by law.' This act was changed by an act of July 2d, 1836, which authorized the President, by and with the consent of the Senate, to appoint a deputy postmaster at each office at which the commissions amounted to or exceeded one thousand dollars a year. And this law (under which Ware had been appointed) declares that the appointee 'shall hold his office for the term of four years, unless sooner removed by the President.' But no other repeal of the act of 1825 was made by this act of 1836.

2. By an act of June 22d, 1854, the compensation authorized or allowed by law, during the period mentioned in the defendant's second plea, to deputy postmasters, was certain commissions on the postages collected at their respective offices in each quarter of the year.

By an act of March 3d, 1847, no compensation in addition, excepting the receipts from boxes, could be given to deputy postmasters by the Postmaster-General.

Mr. G. M. Wharton, by brief, for the plaintiff in error, Ware.

I. Ware held his office for the term of four years, and was entitled to its emoluments during that term unless sooner removed by the President.

There is no evidence on the record of any such removal, nor is there any proof of express removal even by the Postmaster-General. There is, therefore, no room for an inference that the defendant was removed by order of the President, as consequent on the act of the Postmaster-General.

The alleged power in the Postmaster-General to discontinue any post-office can hardly be construed to carry with it the removal of the postmaster not appointed by himself, else he might do indirectly what he could not do directly. This power in the Postmaster-General ought, therefore, to be construed to apply only to those offices where he has the power to appoint the postmaster.

The power of removal should be coextensive with the power of appointment. The Postmaster-General neither appointed Ware nor established the Kensington office.

II. If illegally removed, Ware was not removed at all, but still continued postmaster at Kensington, de jure, and was entitled to the emoluments of the office, although wrongfully withheld from him. He was, consequently, further entitled to a credit on the books of the department for those emoluments.

III. In a suit by the United States against him for money alleged to be in his hands, he was entitled to claim credit for the amount in which the government was thus equitably indebted to him, the law being, that any credits may be claimed by the defendant when so sued, which had been previously submitted to the consideration of the accounting officers of the Treasury, and been rejected.

IV. The damages claimed to be set off by the defendant, need not arise out of the same transaction, which is the subject of suit.

V. Any claim within the discretion of the head of a department may be set off. A court and jury may do what the head of the department should have done.

VI. The restrictions on this right of set-off appear to be: First. The defendants cannot set off unliquidated damages; nor, secondly, and claim which requires legislative sanction. But these exceptions do not apply to the present case.

Unliquidated damages are such as rest in opinion only, and must be ascertained by a jury, the verdict being regulated by peculiar circumstances of each particular case; which cannot be ascertained by computation or calculation, as damage for not using a farm in a workmanlike manner, for not building a house in a good and sufficient manner, on warranty in the sale of a horse, for not skilfully amputating a limb, and other cases of like character.

In our case the measure of compensation to the defendant, Ware, is to be found in the receipts of the office prior to its discontinuance, and in the allowance theretofore made to him at the post-office department, to wit, at the rate of two thousand dollars per annum.

After the discontinuance, the same mailable matter, yielding the same returns to the treasury, passed through the office at Philadelphia, and in the eye of the law, if the discontinuance and removal complained of were illegal, would stand to the credit of the Kensington post-office, and would be the basis of the salary or commissions of the defendant, Ware. The United States cannot contend that, by their own wrongful act, no revenue was received at the Kensington post-office after 13th of March, 1862; the revenue from the mailable matter which ought to have passed through that office, wheresoever received, would be considered in law as received thereat. The Kensington post-office had been established for many years, and yielded an annual return to the treasury, of which an average could be readily taken. Of course the receipts would increase with the increase of population.

Numerous decisions of this court may be cited as authority for the foregoing legal propositions.

Mr. Ashton, Assistant Attorney-General, contra:

I. The argument of the other side assumes, as a concessum of the case, that if the Postmaster-General had no authority, under the acts of Congress, to discontinue the office at Kensington, the defendant, Ware, was unquestionably entitled to receive, and can claim by way of defence in this suit, the compensation, allowance, or emolument that he demands for the period subsequent to the discontinuance of that office.

But under the system established by the act of 1854, which was in full force during the period for which the defendant sets up a claim for compensation, no postmaster received or was entitled to any compensation unless he actually collected postages at his office; and, therefore, if for any reason a postmaster failed to collect postages at his office, he earned no compensation. If no postages were collected, he was entitled to no commissions; and commissions were the only compensation allowed or payable to the officers.

Certainly after March 31st, 1862, Ware collected no postages at the Kensington Post-Office, nor were postages collected at that office by any one; so that, whether the action of the Postmaster-General was lawful or unlawful, the defendant cannot make good the claim as he sets it up, for compensation after the discontinuance of his office.

II. Independently of this, the Postmaster-General had authority to discontinue this post-office.

1. By the act of March 3d, 1825, the entire constitutional power of Congress 'to establish post-offices and post-roads,' in so far as post-offices are concerned, was given to the Postmaster-General.

The power to discontinue post-offices is incident to the power to establish them. This was established by this court in Ex parte Hennen. The Postmaster-General may lawfully do, under the power conferred on him by the act of 1825 to 'establish post-offices,' whatever Congress might lawfully do under the same power conferred on it by the Constitution.

2. Moreover, the power to discontinue post-offices has been in constant exercise by the Postmaster-General, and it is too late, in a collateral way like this, to call in question the legality of his acts in that particular.

3. In addition, Congress has repeatedly recognized the power as one subsisting in the Postmaster-General. Thus the act of July 2d, 1836, section 11, requires him to cause to be certified to the Auditor of the Post-Office Department, 'all establishments and discontinuances of post-offices,' &c. And again, the act of March 3d, 1851, provided that 'no post-office now in existence shall be discontinued in consequence of any diminution of the revenues that may result from this act.'

III. The post-office having been discontinued in fact and in law, such discontinuance operated to determine the incumbency of the defendant in the office of postmaster at Kensington, to which he was appointed by the President.

The existence of the office of deputy postmaster at Kensington depended upon the existence of a post-office at Kensington. It could continue not a day after the abolition of the post-office at that place. Now, we have seen that the continuance of a post-office at Kensington was made dependent by Congress upon the will of the Postmaster-General. And when, therefore, he exercised his discretion and discontinued the post-office there, the office to which he was appointed ceased. And unless it is possible to entertain the legal conception of an officer without a subsisting office, we must conclude that the defendant ceased to be deputy postmaster at Kensington on the 19th of March, 1862.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Ware v. United States


text: Talk:Ware v. United States

title: Talk:Ware v. United States


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

Deputy postmasters, where the commissions allowed to the office amount to or exceed one thousand dollars, are appointed by the President, by and with the advice and consent of the Senate, and hold their offices for the term of four years, unless sooner removed by the President.

Principal defendant was, on the sixteenth day of July, 1861, duly appointed in that manner deputy postmaster at Kensington, in the County of Philadelphia; and the record shows that he was in the performance of the duties of that office on the thirteenth day of March, 1862, when the same was decided to be unnecessary by the Postmaster-General, and was discontinued. When appointed, he gave bond with sureties as required by law for the faithful performance of his duties, and that he would render a quarter-yearly account of receipts and expenditures, and pay over to the proper officer the balance of all moneys which should come to his hands for postages, in the manner prescribed by the department.

Substantial charge against the defendant was, that he had neglected and refused to pay over certain moneys received for postages, as exhibited in his quarterly accounts for the last two quarters next preceding the discontinuance of the office. Refusing to pay over those sums, the United States sued him in an action of debt, declaring on his official bond against him and his surety.

Defendants appeared and pleaded several pleas; but it is unnecessary to refer particularly to any one of them except the second, as all the others resulted in issues of fact, and present no question for decision in this record. Second plea of the defendants alleged that the postages annually received at that office amounted to a sum which authorized an annual allowance to him of two thousand dollars, and entitled him to retain that sum, as and for commissions, to his own use, besides the rent of his office, from and out of the moneys so collected and received for postages; and they also averred that the principal defendant was never lawfully removed from his office, and that the moneys not paid over, as set forth in the declaration, were properly retained by him for rent of his office and as commissions for postages, from the first day of April, 1862, to the thirtieth day of September in the following year. Replication of the plaintiffs alleged that the office was discontinued by the Postmaster-General as unnecessary, on the thirteenth day of March, 1862; that the incumbent of the office was duly notified of that fact; that proper directions were given that the public property, keys, and books of the office should be transmitted to the Post-office Department; that letters and all other mailable matter then ceased to be delivered through or by that post-office, and that the defendant thereafter never collected any postages or rendered any quarterly accounts.

Rejoinder of the defendants denied that the office was ever lawfully discontinued, and averred that letters and other mailable matter addressed to the office, and which, but for the unlawful discontinuance of the same, would have passed through it, were received and delivered by the postmaster at Philadelphia, sufficient in number and quantity to justify the annual allowance to the defendant as commissions, of two thousand dollars, and that the commissions so wrongfully withheld from the defendant exceeded in amount the alleged balance due to the plaintiffs, and tendered an issue to the country. Plaintiffs demurred to the rejoinder of the defendants, and the defendants joined in demurrer. Parties were heard, and the court rendered judgment for the plaintiffs for the damages as found by the jury. All of the foregoing proceedings took place in the District Court; but the judgment was affirmed, on writ of error, in the Circuit Court, and the defendants removed the cause into this court.

I. Theory of the defendants is, that the discontinuance of the post-office, even if it was the exercise of a lawful authority, did not carry with it the removal of the postmaster; and inasmuch as he was never removed by the President, they contend that he continued to be the postmaster de jure at that office, and that as such he was entitled to the commissions which the office would have earned if it had been regularly supplied with the mails as theretofore, and the defendant had performed all the duties which were devolved upon him prior to its discontinuance. Suppose all that could be admitted, still it is obvious that it would not, without more, establish a valid defence to the action, as it would yet be incumbent upon the defendant to show that he had a right to retain the amount which came to his bands before the office was discontinued, and to set off against that sum the damages he sustained by the subsequent refusal of the Postmaster-General to allow him a credit equal to the commissions for the year and a half next following the time when the order of discontinuance was carried into effect.

Demand of the plaintiffs is for damages for not paying over moneys which came to the hands of the incumbent of the office during the six months next preceding its discontinuance, and they insist that he had no right to retain the amount so received for any purpose, but was bound by law to pay it over under the regulations to the department. On the other hand, the defendants insist, in argument, that lhe properly retained it, and might lawfully and as matter of right prove his supposed claim for commissions in set-off as an answer to the action of the plaintiffs. Nothing of the kind was alleged in the rejoinder, and nothing of the kind, therefore, was admitted by the demurrer. All that the rejoinder alleged was, that the commissions of the office, if it had not been unlawfully discontinued, would have been sufficient to justify an allowance to the incumbent of two thousand dollars per annum, and that the commissions were wrongfully withheld from him by the department.

Taken separately from the other averments of the rejoinder, those allegations might afford some countenance to the proposition that the demurrer admitted away the plaintiffs' case; but the whole must be considered together, and when so considered, it is evidence that the pleader, when he alleged that the commissions were wrongfully withheld from the incumbent of the office, meant nothing more than that he was wrongfully prevented from earning commissions, as the clear and indisputable inference from the introductory allegations of the rejoinder are that the office was never supplied with the mails after it was discontinued.

II. Commissions are allowed to deputy postmasters, at prescribed rates, on the postage collected at their respective offices in each quarter of the year, or in due proportion for any period less than a quarter, and they are required by law and the regulations of the department to render accounts quarter-yearly of the receipts and expenditures of their offices, which are expected to show the extent of their liability and the amount of the commissions to which they are entitled. Viewed in the light of these suggestions, it is undeniable that the real claim of the principal defendant, as exhibited in the pleadings, was not for commissions in the sense in which that word is employed in the acts of Congress and the regulations of the department, but was, in truth and fact, a claim for damages, based on the assumption that he had been wrongfully prevented from earning such commissions by the neglect and refusal of the Postmaster-General to supply his office with the mails, and by its unlawful discontinuance. Assuming such to be the character of the claim as described in the rejoinder, then it follows, as a necessary consequence, that there are at least two difficulties in the way of the theory of the defendants which cannot be overcome.

1. Where a deputy postmaster collects no postages, there can be no commissions allowed under the acts of Congress in force during the period embraced in this controversy, and as the office was not supplied with the mails there could be no receipts from boxes, as there were no letters or other mail matter to be delivered. Postage commissions, as ascertained by the quarterly accounts of deputy postmasters and the receipts from boxes, during that period, were the only sources of compensation to those officers allowed by law, and those sources having entirely failed in this case-yielding nothing-the department possessed no authority whatever to make any other allowance.

2. Claim of the principal defendant being for damages, and not for commissions or receipts from boxes, as ascertained in his quarterly accounts, the court below, if the case had been tried on the merits, could not have sustained the claim as a credit unless it had appeared affirmatively that it had been presented to the Auditor of the Post-office Department, and had been by him disallowed in whole or in part, or that he had been prevented from so presenting it by some unavoidable accident. Such has been the rule in respect to credits claimed by individuals at the Treasury Department, almost from the foundation of the government, and the original provision upon that subject is still in full force.

Same rule, substantially, has been prescribed by Congress in the trial of suits against delinquent postmasters and mail contractors, except that the party claiming the credit is required to present the claim to the Auditor of the Post-office Department. No claim not having been so presented and disallowed in whole or in part can be sustained at the trial, unless it appear that the defendant is then in possession of vouchers, not before in his power to procure, and that he was prevented from presenting the claim for credit to the auditor by some unavoidable accident.

Testing the rejoinder by these requirements it is too plain for argument that it is defective in substance, as the facts shown in the allegations are in several respects insufficient to constitute a defence to any part of the plaintiff's claim. Plain inference from the facts, as alleged in the rejoinder, is that the defendant had neither collected any postages nor earned anything as receipts from boxes, and there is no pretence, even in argument, that he ever, during the period embraced in this controversy, rendered any quarterly account. Neglecting to allege those facts, or any of them, he utterly fails to show any claim to commissions, and having omitted to allege that his claim for credit on account of damages sustained was ever presented to the auditor and disallowed, he fails to make a case in which any such credit can be sustained in a Federal court.

III. But suppose it were otherwise, still we are of the opinion that the plaintiffs must prevail, because, in our judgment, the post-office at Kensington was lawfully discontinued. A general post-office was established on the twenty-sixth day of July, 1775, the year before the Declaration of Independence. By that ordinance it was directed that a line of posts be appointed under the direction of the Postmaster-General, from Falmouth, now Portland, to Savannah, with as many cross-posts as he shall think fit; and he was authorized to appoint as many deputies as to him might seem proper and necessary. Amendments were made to that ordinance from time to time to the twenty-eighth day of October, 1782, when it was repealed, and a supplemental ordinance was adopted in its place, conferring substantially the same powers upon the Postmaster-General. Those powers were continued, with certain alterations and additions, until the Constitution of the United States was adopted. Congress, on the twenty-second day of September, 1789, made provision for the appointment of a Postmaster-General, and enacted that his powers and salary, and the compensation to the assistant or clerk and deputies which he may appoint, and the regulations of the post-office, shall be the same as they last were under the regulations and ordinances of the late Congress.

Throughout that period post routes were established by Congress, but the deputy postmasters were invariably appointed by the Postmaster-General, and they were required to receive and distribute the mails at the places designated by the appointing power. When the last-named act was passed it was entitled 'An act for the temporary establishment of the post-office;' but it was continued in force, from time to time, without any material alteration, until the twentieth day of February, 1792, when the act was passed to establish the post-office and post-roads within the United States. Authority was conferred upon the Postmaster-General, by the third section of that act, 'to appoint an assistant and deputy postmasters where such shall be found necessary.' Same authority was continued in the same terms in the act of the eighth of May, 1794, with the further provision that where there was more than one road between the places mentioned in the act, he might direct the route to be considered the post-road. Express authority was conferred upon the Postmaster-General, by the act of the second of March, 1799, to establish post-offices and appoint postmasters at all such places on the post-roads that are or may be established by law, as shall appear to him expedient. Like power was conferred upon that officer by the first section of the act of the thirtieth of April, 1810, which also enacted that he should provide for the carrying of the mail on all post-roads that are or may be established by law, and as often as he, having regard to the productiveness thereof, and other circumstances, shall think proper.

Power to establish post-offices and post-roads is conferred upon Congress, but the policy of the government from the time the General Post-office was established, has been to delegate the power to designate the places where the mails shall be received and delivered to the Postmaster-General. Sufficient evidence of that fact is seen in the references already made to acts of Congress; but if more be needed it will be found in the first section of the act of the third of March, 1825, entitled 'An act to reduce into one the several acts establishing and regulating the Post-office Department.' Provision is there made that the Postmaster-General 'shall establish post-offices and appoint postmasters at all such places as shall appear to him expedient, on the post-roads that are or may be established by law.' No part of that provision has been repealed except the clause as to the appointment of postmasters for offices where the commissions amount to or exceed one thousand dollars. Such appointments must be made by the President, by and with the advice and consent of the Senate; but in all other cases the power of appointing postmasters is still vested in the Postmaster-General, and his power to establish post-offices, as there conferred, is neither repealed nor modified. We concur with the plaintiffs, that the power to discontinue post-offices is incident to the power to establish them, unless there is some provision in the acts of Congress restraining its exercise.

Undoubtedly Congress might discontinue a post-office which they had previously established by law, and it is difficult to see why the Postmaster-General may not do the same thing when acting under an act of Congress expressed in the very words of the Constitution from which Congress derives its power. Strong necessity exists that the power of the Postmaster-General in this behalf should be upheld so long as the offices are established by his authority. New facilities for transportation may call for change of location, or it may appear that the location was unadvisedly selected, either from want of proper information or through misrepresentation. Some of these causes must be constantly operating in a sphere of action so vast and diversified as that of the Post-office establishment. Probably it was such reasons and others of a like character that gave rise to the practice which is believed to have been coeval with the creation of the department. Such a practice, which it is understood has been in constant exercise for more than three-fourths of a century, is certainly entitled to weight in the construction of an act of Congress appertaining to the powers of a department of the government. Much support to that view of the subject is also derived from the acts of Congress recognizing the power as one subsisting in the Postmaster-General. Section eleven of the act of the second of July, 1836, requires the Postmaster-General to cause to be certified to the auditor of the department 'all establishments and discontinuances of post-offices, and all appointments, deaths, resignations, and removals of postmasters,' and the second section of the act of the third of March, 1851, provides that no post-office now in existence shall be discontinued. . . in consequence of any diminution of the revenues that may result from that act. When weighed in connection with the immemorial usages of the department, those acts of Congress recognizing the existence of the power, may well be regarded as a legislative interpretation of the provision authorizing the Postmaster-General to establish post-offices, and as sanctioning a construction in conformity to that well-known usage.

Possessing that power it was lawful for the Postmaster-General to exercise it, notwithstanding the postmaster had been appointed by the President, by and with the advice and consent of the Senate, because the incumbent accepted the appointment subject to the legal contingency that the post-office might be discontinued. Congress, therefore, by necessary implication, authorized the Postmaster-General to discontinue any such post-office whenever it should appear to him to be expedient and proper, and having exercised that discretion it is not possible to hold that the discontinuance was unlawful.

Learned counsel will hardly contend that Congress might not have discontinued that office, and our conclusion is that the same effects flow from the discontinuance in this case as if it had been directly declared by an act of Congress.

Defendant, when the post-office was discontinued, ceased to be postmaster at Kensington, because there was no longer any post-office at that place. He was never entitled to any compensation except commissions and receipts from boxes, and those sources of compensation were extinguished when the post-office was discontinued, and he lost nothing to which he was entitled.

The judgment of the Circuit Court is therefore

AFFIRMED.


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


text:
The Nassau

APPEAL from the Circuit Court of the United States for the Southern District of New York; the case being thus:

On the 17th of June, 1862, Harlan, Hollingsworth & Co., a mercantile firm doing business at Wilmington, Delaware, filed a libel in admiralty, on the instance side of the District Court for the Southern District of New York, against the steamship Nassau, then in the port of New York, for repairs done to, ad materials furnished for, the said vessel, in June, 1860. On the same day, in obedience to a monition properly issued, the marshal attached the vessel, and made return that she was at the time in the custody of the prize commissioners. Afterwards, on the 27th day of June, the prize commissioners certified that the steamer, an alleged prize of war, arrived at the port of New York on the 2d day of June, and was delivered into their hands, and was then in their custody. These commissioners, it may be here stated, were officers acting under the authority of an act of Congress, which directs, that when any property captured as prize is brought into any district of the United States for adjudication, it shall be the duty of the prize commissioners to receive and keep it until by proper process of the court it shall be placed in the custody of the marshal.

A motion having been made by the district attorney, intervening for the United States, to dismiss the libel-on the ground that a vessel under arrest as prize of war was within the cognizance of the prize court, and could not be attached in a private action, and that all legal and equitable demands against her must be adjudicated in the prize court-the District Court sustained the motion, and dismissed the libel; and the Circuit Court, on appeal, affirmed the decree. The case was now brought here to review that decision; the libellants insisting that the order of dismissal was without authority of law.

Mr. J. T. Williams, for the appellants:

It will be readily inferred from the dates in this case-and the fact will doubtless be conceded to be so-that it was in consequence of the Rebellion, and the suspension of the authority of the Federal courts in the Southern ports, the ports between which the Nassau was doubtless plying,-that the libellants were forced to wait from June, 1860, when the repairs, which are the foundation of this suit, were made, till June, 1862, when they filed their libel, before they could pursue their claim. In the beginning of our civil war the vessel, no doubt, sailed from a Southern port, and nothing more seems to have been heard of her by these libellants who had given their labor to her until June, 1862, when she came into the port of New York, and was delivered into the hands of the 'prize commissioners.' The case shows that thereupon, immediately, on the 17th June, 1862, and before any prize suit had been commenced, or the prize commissioners had certified that she was in their hands, the libellants filed their libel in the District Court for New York, setting up their claim and maritime lien, and praying the usual process and sale for payment.

For the purposes of the present argument, the claim of the libellants must, of course, be taken to be just and legal, and one that would have been pronounced for, had not the libel been, at the instance of the government, summarily dismissed. The government cannot here argue that the claim was unjust or doubtful, and so beg the question upon a hearing of which it has deprived the party asserting the claim.

This being so, is it law-while a vessel is in the hands of prize commissioners, no otherwise than as an alleged prize of war it not being shown how she came into the hands of such commissioners, nor in any respect how, or on what, the government claim is founded-that no private citizen can proceed against her in a civil action, to bring her into the District Court upon a claim confessedly legal and meritorious?

Such a proposition cannot be maintained.

At the time when the libellants filed their libel for repairs and materials, no libel in prize had been filed. The vessel was not within the jurisdiction of any court. Certainly, until a libel in prize had been filed, any one had a right to proceed against the vessel for a meritorious claim. Suppose the government had never filed a libel. How then? This libel of ours was not only filed before the government filed any of theirs, but, for aught that appears, before it had a design of filing one. Even the commissioners had not acted.

Of course, there can be no pretence of a conflict of jurisdiction. The libellants did not seek to take the vessel out of the jurisdiction of one court and bring her into the jurisdiction of another. They first brought her within the jurisdiction of a court having general jurisdiction, not only of their claim, but of the claims of their antagonists.

It cannot be questioned that the District Courts of the United States have concurrent jurisdiction in prize as well as in admiralty. The jurisdiction of the prize court in England-which is a special jurisdiction, conferred by a special commission from the Crown, and only when the exigencies of war seem to require it extends, no doubt, only to cases of prize. But in this country prize courts and the courts of admiralty are blended-consolidated under one and the same statutory jurisdiction-and although the practice in prize cases varies somewhat, in some particulars, from that which obtains in admiralty cases, the jurisdiction is one and the same.

The Judiciary Act provides that the District Courts shall 'have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction;' and similar provision is made by the act of 1812, 'concerning letters of marque, prize, and prize goods,' which enacts that 'the District Courts of the United States shall have exclusive original cognizance of all prizes brought into the United States, as in civil causes of admiralty and maritime jurisdiction.' In Glass v. Sloop Betsy, which was a decision prior to the act of 1812, the court says:

'The truth is, Admiralty is the genus; Instance and Prize Courts are the species, comprehended in the grant of admiralty jurisdiction.'

We must beware, then, how we attempt to apply to our courts the dicta, or even the adjudications, of English tribunals. The foundations of the respective jurisdictions being wholly different, nothing but confusion and error can, by such attempts, ensue.

These matters being settled, we may confidently argue that no title, whether it be derived from capture as prize of war or otherwise, can be higher than that which is acquired by purchase. Whatever may be the legal altitude of the claim of the government to the vessel in question, a citizen may ask of a court that it hear him as a citizen suitor, asserting a superior prior claim to the whole, or some portion of it; and his claim, in such a case, ought not to be dismissed without a hearing.

Between a claim from purchase and a lien for repairs made in good faith, in furtherance of the public interest, in full reliance upon a universal principle of law, which has had the sanction of all nations for a thousand years-law which, unlike a contract, bends to no local interpretation, but is alike uniform and universal-there can be no essential difference.

But were it never so well settled that a valid prize claim overrides a lien and claim like that of a libellants, no one will pretend that an invalid prize claim will have the same effect. And will the court assume that this 'prize claim' was valid when no fact appears upon the record to show it, and the government was not able to assert that the vessel was anyhing more than 'an alleged prize of war?' Or assume that, had the libellants been permitted to do so, they would not have been above to show that this alleged claim was not a valid one? If invalid, can the government be heard to dispute the claim of the libellants?

What the libellants did in this case was in accordance with ancient practice. A vessel can be libelled by as many and as various parties and actions as a man can be sued by. Coming in as a claimant or petitioner in the suit of another is permitted only in special cases, and the practice is not favored. It was competent for the government to intervene in the suit of the libellants, and to contest the validity of their claim and lien, or whatever ground they saw fit, and, if successful, they had the field to themselves, so far as the libellants were concerned. They could probably, even in that suit, have asked for a sentence of condemnation of the vessel; or, perhaps more orderly, they should have filed a separate libel for that purpose. But the libellants had no possible way of presenting their claim to the adjudication of the court but by filing an original libel. It cannot be suggested that their situation would have been better if they had waited till after the government had filed its libel. As we have already asked, what if the government had never done so? Or how can it be said that the government had a right to file its libel first; or that, if the libellants had filed theirs after the government had filed its, a motion to dismiss would not have been granted with equal propriety?

The action of the District Court proceeded, of course, on the ground that a prize condemnation had the effect to efface all maritime liens; the court forgetting that a prize condemnation had not taken place, and that there was as yet no evidence upon which the court could pronounce such condemnation.

II. A valid claim to a vessel as prize of war, does not efface or override the claim and lien upon her, given to a material-man by the general maritime law.

The principle that a forfeiture, as prize, has no such effect upon a maritime lien given by the general maritime law, was admitted by Sir William Scott, in the Vrow Sarah, also in The Constantia, and claims founded on such liens were allowed, even in an English prize court. In The Belvidere, the same learned judge admitted that prize did not override a 'positive lien upon the ship.'

The Tobago, and some other cases cited upon the brief of the other side, are distinguishable.

[The learned counsel then went into a critical and very learned examination of these cases, endeavoring to distinguish them from the present.]

Mr. Ashton, Assistant Attorney-General, contra:

1. The vessel having been, at the time of the filing of the libel, in the possession of the prize commissioners, was in the custody of the law, and subject only to the orders and decrees of the prize court of admiralty.

2. Whether a mere lien on property captured jure belli is or is not an interest sufficient to support a claim in a court of prize-a point that opposing counsel have argued so learnedly-is a question which really does not arise in the case as it now stands here. The District Court-as an instance court of admiralty-had no jurisdiction of the libel filed by these libellants in a case where the vessel had been captured and was plainly about to be proceeded in as prize of war. The point made need not, therefore, be replied to.

Yet we apprehend it to be clear, on the authority of American not less than of English cases, that such mere lien is not maintainable on the prize side of the District Courts against the vessel, or the proceeds thereof, and hence that the order of the court below dismissing the one set up in this case, was right.

Mr. Justice DAVIS delivered the opinion of the court.

title: The Nassau


text: Talk:The Nassau

title: Talk:The Nassau


text:
The Nassau/Opinion of the Court

It is the practice with civilized nations, when a vessel is captured at sea as a prize of war, to bring her into some convenient port of the government of the captor for adjudication. The title is not transferred by the mere fact of capture, but it is the duty of the captor to send his prize home, in order that a judicial inquiry may be instituted to determine whether the capture was lawful, and if so, to settle all intervening claims of property. Until there is a sentence of condemnation or restitution, the capture is held by the grovernment in trust for those who, by the decree of the court, may have the ultimate right to it.

But it is argued that the libel in this case was sustainable, because no libel in prize had been filed, and until this was done any one had the right to proceed against the vessel for a meritorious claim. If this were so, it would greatly lessen, with captors, the stimulus to activity so necessary in time of war, for they could never tell how many private actions they would have to defend before they could reap the fruits of their enterprise and valor. Sound policy, as well as the law of prize, therefore, requires that all demands against captured property must be adjusted in a prize court, and that the property arrested as prize shall not be attachable at the suit of private parties. If such parties have claims which, in their view, override the rights of captors, they must present them to the prize court for settlement.

The fact of capture determines the jurisdiction, and not the filing of a libel. When captured as prize of war the property is in the custody of the law, and remains there to await the decision of a prize court, and, if condemned, all claims to the property are by it adjusted. Any other rule would work great hardship to captors, and tend to cripple the operations of government during time of war. Under the provisions of the act of Congress for the better administration of the law of prize, it is directed that, whenever any property captured as a prize is brought into any district of the United States for adjudication, it shall be the duty of the prize commissioners to receive it and keep it, until by the proper process of the court, it shall be placed in the custody of the marshal of the district.

When, therefore, in this case, the prize commissioners certified to the court below that the prize steamer Nassau had arrived in the District of New York, and was delivered into their hands, there was sufficient evidence before the court that the vessel was claimed as prize of war, and in the jurisdiction of a prize court; and the motion to dismiss this libel, filed by private parties, was properly entertained and decided.

Whether a maritime lien, like the one in this case, is lost, when the property is captured jure belli, would have been a proper question for investigation and decision by the prize court that condemned the Nassau, and which the libellants, on presentation to that tribunal, could have had decided.

Not having done so, the question is not before this court for review.

AFFIRMED.

title: The Nassau/Opinion of the Court


text: Talk:The Nassau/Opinion of the Court

title: Talk:The Nassau/Opinion of the Court


text:
United States v. Le Baron (71 U.S. 642)

ERROR to the Circuit Court for the Southern District of Alabama.

This was an action of debt brought by the United States against Le Baron, surety of Beers, deputy postmaster at Mobile, on an official bond, dated the first of July, 1850.

The declaration set out—

'For that whereas, heretofore, to wit, on the first day of July, A. D. 1850, at Mobile, to wit, in the State aforesaid and within the jurisdiction of this court, the said Le Baron, by his certain writing obligatory sealed with his seal, &c., acknowledged himself to be held and firmly bound to the United States in the sum of $20,000.'

The assignments of the breaches were laid in these words:

'That while the said Beers was deputy postmaster as aforesaid under said writing obligatory, and after the making and delivery thereof, to wit, on the 10th day of July aforesaid, and divers other days before the commencement of the suit,' &c.

The case had been already before this court at December Term, 1856, and is reported in 19 Howard. The facts then thus appeared:

Beers was appointed deputy postmaster at Mobile by the President during the recess of the Senate, and received a commission bearing date in April, 1849, to continue in force until the end of the next session of the Senate, that is to say until the 30th of September, 1850.

In April, 1850, before the old term had expired, he was nominated by the President to the Senate for the same office; and the nomination having been confirmed, a commission was made out and signed by President Taylor, but the President dying, it had not been transmitted to him at the date of the bond, July 1st. The condition of the bond was simply that whereas Beers was 'deputy postmaster at Mobile,' 'now, if he should well and truly execute the duties of the said office,' the bond should be void. There was nothing therefore in the bond to show to which term of office it meant to apply; whether to the earlier one which underlaid the second, or to the second which overlapped partially the first. The default assigned as a breach of the bond was admitted to have occurred under the second appointment; and the principal question on the writ of error then before this court, was, whether the bond secured the faithful performance of the duties of the office under the first or under the second appointment.

The third plea of the defendant alleged that from the 1st July until the 30th September, Beers was deputy postmaster, under an Executive appointment, made by the President during the recess of Congress, and that the bond sued on was intended to apply to that appointment and to that term alone, and that during that term no default had occurred. The replication was 'that on and after the delivery by the defendant of the bond aforesaid, to wit, on the 1st day of July,' and from thenceforward for four years, Beers held under the appointment confirmed by the Senate, and that the bond was made for the faithful discharge of duty under this appointment-the last one. The rejoinder was, that 'at the time of the execution of the bond,' Beers was not postmaster under the appointment set forth in the replication, but under the Executive appointment-and that the bond secured the performance of duty only during the time mentioned in the plea. Issue was joined on this rejoinder of the defendant.

The court held that the bond being an official and statutory bond, spoke, not like ordinary bonds, from its date, but from the time when it reached the Postmaster-General and was accepted by him. The judgment was reversed and a venire de novo awarded.

On a subsequent trial it was proved that the bond was accepted July 15th. Thereupon Circuit Court instructed the jury that if the bond given in evidence was not approved until July 15th, 1850, there was a variance between the allegation and the proof. And a verdict having gone accordingly for the defendant, the instruction just mentioned was the chief matter now assigned as error. A few exceptions to the admission of evidence also appeared upon the record.

Messrs. Reverdy Johnson, E. S. Dargan, and G. N. Stewart, for the defendants in error:

The substance of the issue was, whether Beers was, on the first day of July, 1850, deputy postmaster under his appointment confirmed by the Senate. Whether he was or not, depended on the question whether the bond was accepted on that day, and thus became a perfect obligation on the said first day. The proof showing that the bond was not accepted until the 15th, there could, under the decision in 19th Howard, when the case was here before, be no other instructions given than were given by the court. The declaration described one bond and proved another.

Suppose that the pleader had in his replication alleged the true day on which the bond was accepted, and the office, to which it was intended to apply, vested, that is to say that he had alleged in his replication that the bond was accepted by the Postmaster-General on the 15th of July, 1850; this replication would have been a clear departure from the declaration, which described a bond operative from the first of that month.

In Hall v. Matthew Denbigh and others, reported so far back as Croke Elizabeth, the declaration described a deed as bearing date the first of November (39 Eliz.), but did not aver when it was delivered. After judgment, there was a motion in arrest of judgment, because it was not averred when the deed was delivered: after several arguments, the court said the declaration was well enough, because it must be intended that the deed was delivered on the day of its date, and further, if it had been delivered on a subsequent day, and so averred in the replication, this would have been a departure.

The later case of Williams v. Jones, is to the same effect and in principle similar to ours. The declaration in our case describes a bond dated the 1st July. By implication, this means delivery on that day. A delivery on another day may be proved, it is true, by parol, because as this court has decided in regard to this particular bond, there is a case of exception to the general rule, and such proof is held not to contradict the instrument; but when it is proved, the bond is varied, and no longer conforms to the bond described nor to the profert, and is therefore fatally variant from both.

It is true that the replication to the third plea asserts that the bond was made for the proper discharge of the duties of the second office, and the rejoinder says it applied to and covered only the time set forth in the plea, and no other. But these are only the legal conclusions of the pleaders, and not averments of fact. These allegations are not traversable nor issuable, involve questions of law only depending on the facts alleged and proved, which alone can determine the duties involved by the contract. These assertions, then, on both sides, are wholly immaterial.

The plaintiff undertook, therefore, by his pleadings, to establish before the jury four propositions: 1. That the bond was made and delivered on the 1st of July, 1850, and was operative from that day. 2. That Beers was in office on that day under the second appointment. 3. That the senatorial term of office, or second term, embraced the time as early as the 1st July, 1850. 4. That as a consequence the defendant was liable for moneys received by the postmaster on the 1st and 10th of July, 1850.

But with the admitted fact that the bond was not accepted till July 15th, and the decision when the case was here before, that it operated but from that day, he undertook an impossibility.

Mr. Ashton, Assistant Attorney-General, for the plaintiff in error:

The bond given in evidence sustained the declaration. The time of the making it is laid under a videlicet. It was not, therefore, necessary to prove it as averred. Though a deed takes effect only from its delivery, yet the delivery need not be stated in pleading. A plaintiff may reply or show in evidence that a deed was really made on a different day from that of its date as stated in the body of it.

In the plaintiff's replication to the third plea the time of the making and delivery of the bond are laid under a videlicet.

The issue was joined on the rejoinder of the defendant to this replication. The rejoinder was: 'That at the time of the execution' of the bond 'Beers was not postmaster in the manner and for the term of office set forth in the replication, but was postmaster by Presidential appointment.'

The execution of the bond included its signing, sealing, and delivery. The making of the bond would seem to be the writing of it. This rejoinder, then, tendered the substantial issue in the case, and upon that the parties went to trial.

The former decision of this court covers the merits of the case now.

Mr. Justice MILLER delivered the opinion of the court.

title: United States v. Le Baron (71 U.S. 642)


text: Talk:United States v. Le Baron (71 U.S. 642)


text:
United States v. Le Baron (71 U.S. 642)/Opinion of the Court

It was decided, when this case was in this court before, that the bond, which is the foundation of the suit, was obligatory from the time of its acceptance by the Postmaster-General, and not from its date; and also that the term of office of Beers commenced, under his appointment, by and with the advice and consent of the Senate, on the day of that acceptance.

The case having been remitted to the Circuit Court for a new trial, that court directed a verdict for the defendant, on the ground that there was a variance between the bond offered in evidence and the one set out in the pleadings. The variance is supposed to have reference to the time the bond took effect. It is claimed that the bond is described as being dated and taking effect on the 1st day of July, 1850, whereas the evidence showed, that while it bore that date on its face, it was not approved by the Postmaster-General until the fifteenth day of that month, and, therefore, under the decision in 19th Howard, did not become the bond of defendant until the last-mentioned date.

Upon an examination of the declaration, it will be seen that the plaintiff declares on the bond, according to its legal effect, namely, that on July 1st, 1850, the defendant, by his certain writing obligatory, acknowledged himself indebted to the plaintiff in the sum of $20,000. This manner of declaring gives no date to the bond, and merely gives the time when defendant became bound by it to the plaintiff. The rule that allegations of time, quantity, value, &c., need not be proved with precision, but that a very large departure from the time, quantity, &c., alleged, is allowable, is so well understood, and is so much a matter of every-day practice, that no citation of authority to sustain it is necessary. An indictment charging a prisoner with murder on the first day of July would be sustained by proving a murder committed on the fifteenth of that month. How much more reasonable that a contract alleged to have been made on the first, may be supported by evidence of the same contract made on the fifteenth of the month?

But it is also a rule of evidence that when words used in a declaration are descriptive of the instrument declared on, it must, when offered in evidence, conform strictly to that description; and we concede that if it is alleged as part of the description of such an instrument that it bears such a date, or is dated of such a day, that no instrument will be admissible which does not bear that date.

It is said by counsel that this declaration gives such a description of the date of the bond. A careful examination of it, however, shows no attempt at such description, and merely the usual necessary allegation of the time when the contract was made. If, however, counsel are correct in their construction of the declaration, still there is no variance, because the bond read in evidence actually bears the date which it is claimed that the declaration ascribes to it, and it therefore conforms to the supposed description.

It is no variance, however, from the substance of the issue to show that, though dated the first of July, it took effect only on the fifteenth, because, as we have already shown the precise time when the contract became obligatory need not be proved on trial.

The attempt to show that, by the pleadings subsequent to the declaration, it became necessary to prove that the contract became obligatory on the very day alleged, is equally unsuccessful.

The defendant, by his third plea, alleges that from July 1st to September 30th his principal was deputy postmaster, under an appointment not confirmed by the Senate, and that the bond sued on was applicable to this appointment and to this period alone, and that during that time no default or breach of its condition occurred. The replication is, that on the day of the date of the bond, and from thenceforward for four years, Beers, the deputy postmaster, held under the appointment confirmed by the Senate, and that the bond covered his transactions during that time. To this defendant rejoined that Beers was not postmaster under the appointment set forth in the replication, but under the first-a Presidential appointment-and that the bond covered only the time mentioned in the plea.

As it was proved on the trial that the bond was accepted on the 15th July, 1850, it follows, under the former decision of this court, that from that time forth the bond covered his liability, and that it was under the last appointment. The plea of the defendant fails, therefore, except as to the time between the first and fifteenth of July. It is not perceived how the precise day when the bond took effect is material otherwise than this, and the court, by refusing to permit any breach to be proved within those fifteen days, would have fully protected the defendant.

All these pleas have relation to the legal effect of the bond, and none of them describe a bond different from the one offered in evidence. After the day had been fixed by proof at which the contract became binding, it was material that no breach should be proved before that time; but the proof which fixed that date was no variance from any pleading of the plaintiff, nor from the substance of any issue made in the case.

As these principles require a reversal of the case, it is not deemed necessary to notice the other exceptions which are unimportant, and may not arise on a new trial.

JUDGMENT REVERSED.


text: Talk:United States v. Le Baron (71 U.S. 642)/Opinion of the Court


text:
Railroad Company v. Lindsay

LINDSAY & Co., ship-brokers, of London, filed their petition in the Circuit Court for the Eastern District of Louisiana, in which-alleging a written contract between themselves and the New Orleans, &c., Railroad Company, the company bound itself to pay them 'freights,' at the rate of 25s. per ton, 'in consideration of freightage to be furnished to Algiers, opposite New Orleans, for certain iron rails,' &c.-they averred that, in pursuance of the aforesaid contract, they did furnish freightage for several thousand tons of such rails, from Wales to Louisiana, and that the balance of the freight upon the rails due them was $18,000, &c.

The defendants denied that the contract had been performed; claimed damages by way of 're-convention,' and 'pleaded the prescription of one year and three years;' that is to say, set up, in argument, the bar of limitation of one year, under article 3499 of the Civil Code, which prescribes, that actions 'for the payment of the freight of ships and other vessels are prescribed by one year;' and the limitation of three years, to which an act of the Louisiana legislature limits actions upon open accounts.

The court found, on a submission of the case to them, in accordance with the Louisiana practice, that a large portion of the rails had not been delivered within the time stipulated for; and that of these a portion had been sent, not to Algiers but to New Orleans, for the cost of removing which to New Orleans the plaintiffs were entitled to re-coup; that the time within which the freightage was to be furnished had been extended and limited by a subsequent agreement to a date fixed; that the railroad company refused to receive any rails delivered after that date; that the manufacturers resumed possession of these; that the company had not proved any special damage as resulting from the delay mentioned, and that this delay had been owing to the acts of Lindsay & Co., who had found, during the Crimean war, a more profitable employment for the ships.

The court declared that the contract was not a contract for the payment of the freight of ships and other vessels, within article 3499 of the Civil Code set up; and overruling also the prescription of three years given by statute for open accounts, gave judgment in favor of the plaintiff below 'for the whole amount of freightage, at the rates specified in the contract,' allowing certain credits and the cost of transferring to Algiers those rails which had been improperly landed at New Orleans.

The case came here on error, two errors being assigned.

1. That the court allowed the plaintiffs, Lindsay & Co., to recover on an express agreement, when it was found that they had never performed it.

2. That they had overruled the plea of prescription.

Messrs. Carlisle and McPherson, for the plaintiff in error:

I. As to the special contract. It is a settled principle of law that a party cannot recover upon a contract without proving performance of all conditions precedent, and their performance within the limited time, when a time is limited.

It is true, the court found that the defendants had not proved 'any special damage' by the delay; but under this issue they were not bound to prove any damage, special or other. To require it was to shift the burden of proof, and relieve the plaintiffs from the exigencies of their own case.

We agree that in the civil, as well as at common law, a recovery may be had, although there be a failure to prove performance of the special contract, if the defendant have derived any benefit in the premises. But such recovery can only be ex equo ex bono, and undeniably must be founded on some proof tending to show some service performed and accepted, other than that stipulated in the contract, and what the plaintiff reasonably deserved to have from the defendant therefor. The objection here is, that all such proof is absolutely wanting. The court does not find that the defendant below derived any benefit from the services of the plaintiff, or what was the value of the service rendered, or that it was of any value.

II. As to the statute of limitations, or prescription of one year. The court proceeded, doubtless, on the ground that the special contract was in the nature of a brokerage contract, the plaintiffs below being middle-men between the defendant and the shipowners. But we have seen that the plaintiffs wholly failed to make any case upon the special contract; and if they could recover at all, must do so upon the implied contract arising out of the service performed by them, to wit: the transportation of the goods. In other words, it was an implied contract for the freight of ships merely, which arose directly between the parties to the suit, to the exclusion of all third persons, and, consequently, was within the letter as well as the spirit of the article of the Civil Code above cited.

Mr. Janin, contra:

I. As to the basis of the recovery.

The objection is really an allegation of variance. But it is far too technical to prevail. No objection of this sort was made below. It must be considered as waived.

II. The plea of the prescription.

As to the one year, this case is different from that of a ship-owner or captain contracting for the freight of goods shipped by his vessel. The plaintiffs are ship-brokers; they bound themselves to provide vessels to transport a large quantity of iron from Wales to New Orleans, an obligation which the iron-masters probably were not able or willing to assume. It might not have been possible for the iron-masters or the agents of the defendants to find a sufficient number of vessels for this purpose. It may only have been possible for large ship-brokers to influence such a number of vessels to undertake this business. So, no doubt, the defendants thought when they made the contract of 1853. It was, in short, a legitimate commercial undertaking on the part of plaintiffs, who thought that, owing to their position, they could undertake such a duty with advantage, and were willing to run the risk of it.

This is different from the case of a captain of a vessel who agrees to take freight for one trip at a fixed price. A contract for a fixed freight, such as is contemplated by article 3499 of the Civil Code of Louisiana, is evidenced by a bill of lading, and not by an agreement extending over years and involving the employment of many vessels, like that upon which this suit was brought. It is therefore clear that that article is not applicable to the present case.

And it is equally clear that the act of the legislature of Louisiana, which limits actions upon open accounts to three years, is not applicable to this case. The account was not an open account, but an admitted account, which it was attempted to extinguish by a counter-claim.

In the case of the New Orleans Railroad Company v. Estlin, the defendant was sued for the unpaid balance of his subscription to the stock, and pleaded the prescription of three years, contending that he was sued upon an open account. The court said: 'The defendant was not sued upon an open account. The demand is based upon an express and written contract.' In Cooper v. Harrison, an agent was sued for the price of land sold by him for his principal during a number of years. The prescription of three years of actions upon open accounts having been pleaded under the statute of 1852, the court said: 'We are of opinion that the accounts due by an agent for the selling of lands cannot be considered as embraced in the sense of the statute in the words 'open accounts.' And as they are not enumerated in the articles in the Civil Code on the prescription of one, three, and five years, they are consequently subject to that of ten years.'

Mr. Justice SWAYNE delivered the opinion of the court.

title: Railroad Company v. Lindsay


text: Talk:Railroad Company v. Lindsay

title: Talk:Railroad Company v. Lindsay


text:
Railroad Company v. Lindsay/Opinion of the Court

The plaintiffs in error were the defendants in the court below. The plaintiffs in that court filed their petition, setting forth a contract between them and the defendants, whereby the plaintiffs agreed to transport from Wales, and deliver at Algiers, opposite to New Orleans, certain railroad iron for the defendants, and the defendants agreed to pay them a stipulated compensation for such transportation and delivery. The petition averred performance, and sought to recover the specified compensation, less the amount which the plaintiffs had already received. The defendants, by their answer, denied performance, claimed damages by reconvention for non-performance, and pleaded the statute of limitations.

The parties waived the intervention of a jury, and submitted the case to the court. The court found the facts specially, and gave judgment for the plaintiffs below. The findings of the court are set forth in the record, and are to be regarded as a special verdict. The court found, among other things, that the iron had not been delivered within the contract time, but that it had been agreed between the parties, in September, 1854, that the plaintiffs should allow the defendants eight hundred pounds, on account of past delays, and that the time for the further deliveries should be extended to the first of December following; that the defendants refused to receive the iron tendered or shipped after the last-mentioned time, and that it was thereupon disposed of, with the assent of all concerned; that the defendants had not shown any damage arising from the delays; that the delivery of the iron at New Orleans was a breach of the contract, and that the defendants were entitled to recoup the cost of removing it to Algiers. Upon these principles, the amount to be recovered was computed, and judgment was rendered accordingly. The court was of opinion that the contract was 'not a contract for the payment of the freight of ships and other vessels within the 3449th article of the Civil Code,' of the State, and overruled the defence that the action was thereby barred. No bill of exceptions was taken, and but a small part of the evidence appears in the record.

Two errors are relied upon; one of them relates to the statute of limitations. We think the ruling of the court upon this subject was correct. The findings show that the plaintiffs were not ship-owners, and that their contract was wholly different from one of affreightment. The article of the Code relied upon had, therefore, no application to the case. Nor can the demand be regarded as an open account. The contract was the foundation of the claim, and though not fulfilled according to its letter, either as to the time or place of delivery, yet, with the qualifications which the law under such circumstances imposes, it determined the respective liabilities of the parties. The plaintiffs could not recover more than the contract price, and the recoupment of the defendants was governed by its requirements on the part of the plaintiffs. Its provisions were elements in the case, vital to the rights of both parties. By their light, and the law arising upon the facts as developed in the evidence, the court was to be guided in coming to its conclusions.

The other error insisted upon is, that there is a fatal variance between the facts as found by the court, and by the case made by the plaintiffs' petition.

It does not appear that any of the evidence offered by the plaintiffs in the court below was objected to by the defendants, nor does it appear that any exception was taken when the court announced its findings, or subsequently, when the judgment was entered.

It was in the power of the court to permit the petition to be amended, and the proper amendments would doubtless have been made if the objection had been stated. It is presented for the first time in this court. Under these circumstances, it must be held to have been waived by the plaintiffs in error in the court below, and they are concluded by that waiver in this court.

There is another ground upon which this exception must be overruled. It is not alleged that the findings of the court were unwarranted by the proofs, nor that the judgment does not conform to the law and justice of the case, as the case is thus presented. The objection is purely technical. It lies wholly in the variance between the averments of the petition and the facts as found by the court.

The thirty-second section of the Judiciary Act of 1789, declares that the courts of the United States, 'respectively, shall proceed and give judgment according as the right of the cause and the matter in law shall appear unto them, without regarding imperfections, defects, or want of form in such writ, declaration, or other pleading, return process, or judgment, or course of proceeding whatsoever, except those only in case of demurrer, which the party demurring shall specially set down and express, together with his demurrer as the cause thereof.' The effect of this provision is decisive. No case more proper than the one before us, for its application, can be presented.

AFFIRMED, WITH COSTS.


text: Talk:Railroad Company v. Lindsay/Opinion of the Court


text: Robbins v. Chicago City

title: Robbins v. Chicago City


text: Talk:Robbins v. Chicago City

title: Talk:Robbins v. Chicago City