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First Footsteps in East Africa/Postscript

On Saturday, the 7th April 1855, the H. E. I. Company's Schooner "Mahi," Lieut. King, I. N., commanding, entered the harbour of Berberah, where her guns roared forth a parting salute to the "Somali Expedition." The Emporium of East Africa was at the time of my landing, in a state of confusion. But a day before, the great Harar caravan, numbering 3000 souls, and as many cattle, had entered for the purpose of laying in the usual eight months' supplies, and purchase, barter, and exchange were transacted in most hurried and unbusiness-like manner. All day, and during the greater part of night, the town rang with the voices of buyer and seller: to specify no other articles of traffic, 500 slaves of both sexes were in the market. [1] Long lines of laden and unladen camels were to be seen pacing the glaring yellow shore; rumours of plundering parties at times brought swarms of spear-men, bounding and yelling like wild beasts, from the town; already small parties of travellers had broken ground for their return journey; and the foul heap of mat hovels, to which this celebrated mart had been reduced, was steadily shrinking in dimensions. Our little party consisted of forty-two souls. At Aden I had applied officially for some well-trained Somali policemen, but as an increase of that establishment had been urged upon the home authorities, my request was refused. We were fain to content ourselves with a dozen recruits of various races, Egyptian, Nubian, Arab and Negro, whom we armed with sabres and flint muskets. The other members of the expedition were our private servants, and about a score of Somal under our rival protectors Jami Hasan and Burhale Nuh. The Ras or Captain of the Kafilah was one Mahmud of the Mijjarthayn, better known at Aden as El Balyuz or the Envoy: he had the reputation of being a shrewd manager, thoroughly acquainted with the habits and customs, as well as the geography, of Somaliland. Our camp was pitched near the site of the proposed Agency, upon a rocky ridge within musket-shot of the southern extremity of the creek, and about three quarters of a mile distant from the town. This position had been selected for the benefit of the "Mahi's" guns. Political exigencies required the "Mahi" to relieve the "Elphinstone," then blockading the seaboard of our old Arab foe, the Fazli chief; she was unable to remain upon the coast, and superintend our departure, a measure which I had strongly urged. Our tents were pitched in one line: Lieut. Stroyan's was on the extreme right, about a dozen paces distant was the "Rowtie" [2] occupied by Lieut. Herne and myself, and at a similar distance on the left of the camp was that in which Lieut. Speke slept. The baggage was placed between the two latter, the camels were tethered in front upon a sandy bed beneath the ridge our camping-ground, and in rear stood the horses and mules. During day-time all were on the alert: at night two sentries were posted, regularly relieved, and visited at times by the Ras and ourselves. I had little reason to complain of my reception at Berberah. The chiefs appeared dissatisfied with the confinement of one Mohammed Sammattar, the Abban who accompanied Lieut. Speke to the Eastern country: they listened, however, with respectful attention to a letter in which the Political Resident at Aden enjoined them to treat us with consideration and hospitality. There had been petty disputes with Burhale Nuh, and the elders of the Eesa Musa tribe, touching the hire of horse-keepers and camel-drivers: such events, however, are not worthy to excite attention in Africa. My friend at Harar, the Shaykh Jami, had repeatedly called upon us, ate bread and salt, recommended us to his fellow countrymen, and used my intervention in persuading avaricious ship-owners to transport, gratis, pauper pilgrims to Arabia. The people, after seeing the deaths of a few elephants, gradually lowered their loud boasts and brawling claims: they assisted us in digging a well, offered their services as guides and camel-drivers, and in some cases insisted upon encamping near us for protection. Briefly, we saw no grounds of apprehension. During thirty years, not an Englishman of the many that had visited it had been molested at Berberah, and apparently there was as little to fear in it as within the fortifications of Aden. [3] Under these favourable circumstances we might have set out at once towards the interior. Our camels, fifty-six in number, had been purchased [4], and the Ogadayn Caravan was desirous of our escort. But we wished to witness the close of the Berberah fair, and we expected instruments and other necessaries by the mid-April mail from Europe. [5] About 8 P.M., on the 9th April, a shower, accompanied by thunder and lightning, came up from the southern hills, where rain had been falling for some days, and gave notice that the Gugi or Somali monsoon had begun. This was the signal for the Bedouins to migrate to the Plateau above the hills. [6] Throughout the town the mats were stripped from their frameworks of stick and pole [7], the camels were laden, and thousands of travellers lined the roads. The next day Berberah was almost deserted except by the pilgrims who intended to take ship, and by merchants, who, fearful of plundering parties, awaited the first favourable hour for setting sail. Our protectors, Jami and Burhale, receiving permission to accompany their families and flocks, left us in charge of their sons and relations. On the 15th April the last vessel sailed out of the creek, and our little party remained in undisputed possession of the place. Three days afterwards, about noon, an Aynterad craft en route from Aden entered the solitary harbour freighted with about a dozen Somal desirous of accompanying us towards Ogadayn, the southern region. She would have sailed that evening; fortunately, however, I had ordered our people to feast her commander and crew with rice and the irresistible dates. At sunset on the same day we were startled by a discharge of musketry behind the tents: the cause proved to be three horsemen, over whose heads our guard had fired in case they might be a foraging party. I reprimanded our people sharply for this act of folly, ordering them in future to reserve their fire, and when necessary to shoot into, not above, a crowd. After this we proceeded to catechise the strangers, suspecting them to be scouts, the usual forerunners of a Somali raid: the reply was so plausible that even the Balyuz, with all his acuteness, was deceived. The Bedouins had forged a report that their ancient enemy the Hajj Sharmarkay was awaiting with four ships at the neighbouring port, Siyaro, the opportunity of seizing Berberah whilst deserted, and of re-erecting his forts there for the third time. Our visitors swore by the divorce-oath,--the most solemn which the religious know,--that a vessel entering the creek at such unusual season, they had been sent to ascertain whether it had been freighted with materials for building, and concluded by laughingly asking if we feared danger from the tribe of our own protectors. Believing them, we posted as usual two sentries for the night, and retired to rest in our wonted security. Between 2 and 3 A.M. of the 19th April I was suddenly aroused by the Balyuz, who cried aloud that the enemy was upon us. [8] Hearing a rush of men like a stormy wind, I sprang up, called for my sabre, and sent Lieut. Herne to ascertain the force of the foray. Armed with a "Colt," he went to the rear and left of the camp, the direction of danger, collected some of the guard,--others having already disappeared,--and fired two shots into the assailants. Then finding himself alone, he turned hastily towards the tent; in so doing he was tripped up by the ropes, and as he arose, a Somali appeared in the act of striking at him with a club. Lieut. Herne fired, floored the man, and rejoining me, declared that the enemy was in great force and the guard nowhere. Meanwhile, I had aroused Lieuts. Stroyan and Speke, who were sleeping in the extreme right and left tents. The former, it is presumed, arose to defend himself, but, as the sequel shows, we never saw him alive. [9] Lieut. Speke, awakened by the report of firearms, but supposing it the normal false alarm,--a warning to plunderers,--he remained where he was: presently hearing clubs rattling upon his tent, and feet shuffling around, he ran to my Rowtie, which we prepared to defend as long as possible. The enemy swarmed like hornets with shouts and screams intending to terrify, and proving that overwhelming odds were against us: it was by no means easy to avoid in the shades of night the jobbing of javelins, and the long heavy daggers thrown at our legs from under and through the opening of the tent. We three remained together: Lieut. Herne knelt by my right, on my left was Lieut. Speke guarding the entrance, I stood in the centre, having nothing but a sabre. The revolvers were used by my companions with deadly effect: unfortunately there was but one pair. When the fire was exhausted, Lieut. Herne went to search for his powder-horn, and that failing, to find some spears usually tied to the tent-pole. Whilst thus engaged, he saw a man breaking into the rear of our Rowtie, and came back to inform me of the circumstance. At this time, about five minutes after the beginning of the affray, the tent had been almost beaten down, an Arab custom with which we were all familiar, and had we been entangled in its folds, we should have been speared with unpleasant facility. I gave the word for escape, and sallied out, closely followed by Lieut. Herne, with Lieut. Speke in the rear. The prospect was not agreeable. About twenty men were kneeling and crouching at the tent entrance, whilst many dusk figures stood further off, or ran about shouting the war-cry, or with shouts and blows drove away our camels. Among the enemy were many of our friends and attendants: the coast being open to them, they naturally ran away, firing a few useless shots and receiving a modicum of flesh wounds. After breaking through the mob at the tent entrance, imagining that I saw the form of Lieut. Stroyan lying upon the sand, I cut my way towards it amongst a dozen Somal, whose war-clubs worked without mercy, whilst the Balyuz, who was violently pushing me out of the fray, rendered the strokes of my sabre uncertain. This individual was cool and collected: though incapacitated by a sore right-thumb from using the spear, he did not shun danger, and passed unhurt through the midst of the enemy: his efforts, however, only illustrated the venerable adage, "defend me from my friends." I turned to cut him down: he cried out in alarm; the well-known voice caused an instant's hesitation: at that moment a spearman stepped forward, left his javelin in my mouth, and retired before he could be punished. Escaping as by a miracle, I sought some support: many of our Somal and servants lurking in the darkness offered to advance, but "tailed off" to a man as we approached the foe. Presently the Balyuz reappeared, and led me towards the place where he believed my three comrades had taken refuge. I followed him, sending the only man that showed presence of mind, one Golab of the Yusuf tribe, to bring back the Aynterad craft from the Spit into the centre of the harbour [10]. Again losing the Balyuz in the darkness, I spent the interval before dawn wandering in search of my comrades, and lying down when overpowered with faintness and pain: as the day broke, with my remaining strength I reached the head of the creek, was carried into the vessel, and persuaded the crew to arm themselves and visit the scene of our disasters. Meanwhile, Lieut. Herne, who had closely followed me, fell back, using the butt-end of his discharged sixshooter upon the hard heads around him: in so doing he came upon a dozen men, who though they loudly vociferated, "Kill the Franks who are killing the Somal!" allowed him to pass uninjured. He then sought his comrades in the empty huts of the town, and at early dawn was joined by the Balyuz, who was similarly employed. When day broke he sent a Negro to stop the native craft, which was apparently sailing out of the harbour, and in due time came on board. With the exception of sundry stiff blows with the war-club, Lieut. Herne had the fortune to escape unhurt. On the other hand, Lieut. Speke's escape was in every way wonderful. Sallying from the tent he levelled his "Dean and Adams" close to an assailant's breast. The pistol refused to revolve. A sharp blow of a war- club upon the chest felled our comrade, who was in the rear and unseen. When he fell, two or three men sprang upon him, pinioned his hands behind, felt him for concealed weapons,--an operation to which he submitted in some alarm,--and led him towards the rear, as he supposed to be slaughtered. There, Lieut. Speke, who could scarcely breathe from the pain of the blow, asked a captor to tie his hands before, instead of behind, and begged a drop of water to relieve his excruciating thirst. The savage defended him against a number of the Somal who came up threatening and brandishing their spears, he brought a cloth for the wounded man to lie upon, and lost no time in procuring a draught of water. Lieut. Speke remained upon the ground till dawn. During the interval he witnessed the war-dance of the savages--a scene striking in the extreme. The tallest and largest warriors marched in a ring round the tents and booty, singing, with the deepest and most solemn tones, the song of thanksgiving. At a little distance the grey uncertain light disclosed four or five men, lying desperately hurt, whilst their kinsmen kneaded their limbs, poured water upon their wounds, and placed lumps of dates in their stiffening hands. [11] As day broke, the division of plunder caused angry passions to rise. The dead and dying were abandoned. One party made a rush upon the cattle, and with shouts and yells drove them off towards the wild, some loaded themselves with goods, others fought over pieces of cloth, which they tore with hand and dagger, whilst the disappointed, vociferating with rage, struck at one another and brandished their spears. More than once during these scenes, a panic seized them; they moved off in a body to some distance; and there is little doubt that had our guard struck one blow, we might still have won the day. Lieut. Speke's captor went to seek his own portion of the spoil, when a Somal came up and asked in Hindostani, what business the Frank had in their country, and added that he would kill him if a Christian, but spare the life of a brother Moslem. The wounded man replied that he was going to Zanzibar, that he was still a Nazarene, and therefore that the work had better be done at once:--the savage laughed and passed on. He was succeeded by a second, who, equally compassionate, whirled a sword round his head, twice pretended to strike, but returned to the plunder without doing damage. Presently came another manner of assailant. Lieut. Speke, who had extricated his hands, caught the spear levelled at his breast, but received at the same moment a blow from a club which, paralyzing his arm, caused him to lose his hold. In defending his heart from a succession of thrusts, he received severe wounds on the back of his hand, his right shoulder, and his left thigh. Pausing a little, the wretch crossed to the other side, and suddenly passed his spear clean through the right leg of the wounded man: the latter "smelling death," then leapt up, and taking advantage of his assailant's terror, rushed headlong towards the sea. Looking behind, he avoided the javelin hurled at his back, and had the good fortune to run, without further accident, the gauntlet of a score of missiles. When pursuit was discontinued, he sat down faint from loss of blood upon a sandhill. Recovering strength by a few minutes' rest, he staggered on to the town, where some old women directed him to us. Then, pursuing his way, he fell in with the party sent to seek him, and by their aid reached the craft, having walked and run at least three miles, after receiving eleven wounds, two of which had pierced his thighs. A touching lesson how difficult it is to kill a man in sound health! [12] When the three survivors had reached the craft, Yusuf, the captain, armed his men with muskets and spears, landed them near the camp, and ascertained that the enemy, expecting a fresh attack, had fled, carrying away our cloth, tobacco, swords, and other weapons. [13] The corpse of Lieut. Stroyan was then brought on board. Our lamented comrade was already stark and cold. A spear had traversed his heart, another had pierced his abdomen, and a frightful gash, apparently of a sword, had opened the upper part of his forehead: the body had been bruised with war-clubs, and the thighs showed marks of violence after death. This was the severest affliction that befell us. We had lived together like brothers: Lieut. Stroyan was a universal favourite, and his sterling qualities of manly courage, physical endurance, and steady perseverance had augured for him a bright career, thus prematurely cut off. Truly melancholy to us was the contrast between the evening when he sat with us full of life and spirits, and the morning when we saw amongst us a livid corpse. We had hoped to preserve the remains of our friend for interment at Aden. But so rapid were the effects of exposure, that we were compelled most reluctantly, on the morning of the 20th April, to commit them to the deep, Lieut. Herne reading the funeral service. Then with heavy hearts we set sail for the near Arabian shore, and, after a tedious two days, carried to our friends the news of unexpected disaster. FOOTNOTES [1] The Fair-season of 1864-56 began on the 16th November, and may be said to have broken up on the 15th April. The principal caravans which visit Berberah are from Harar the Western, and Ogadayn, the Southern region: they collect the produce of the numerous intermediate tribes of the Somal. The former has been described in the preceding pages. The following remarks upon the subject of the Ogadayn caravan are the result of Lieuts. Stroyan and Herne's observations at Berberah. "Large caravans from Ogadayn descend to the coast at the beginning and the end of the Fair-season. They bring slaves from the Arusa country, cattle in great quantities, gums of sorts, clarified butter, ivory, ostrich feathers, and rhinoceros horns to be made into handles for weapons. These are bartered for coarse cotton cloth of three kinds, for English and American sheeting in pieces of seventy-five, sixty-six, sixty-two, and forty-eight yards, black and indigo-dyed calicos in lengths of sixteen yards, nets or fillets worn by the married women, iron and steel in small bars, lead and zinc, beads of various kinds, especially white porcelain and speckled glass, dates and rice." The Ayyal Ahmed and Ayyal Yunis classes of the Habr Awal Somal have constituted themselves Abbans or brokers to the Ogadayn Caravans, and the rapacity of the patron has produced a due development of roguery in the client. The principal trader of this coast is the Banyan from Aden find Cutch, facetiously termed by the Somal their "Milch-cows." The African cheats by mismeasuring the bad cotton cloth, and the Indian by falsely weighing the coffee, ivory, ostrich feathers and other valuable articles which he receives in return. Dollars and even rupees are now preferred to the double breadth of eight cubits which constitutes the well known "Tobe." [2] A Sepoy's tent, pent-house shaped, supported by a single transverse and two upright poles and open at one of the long ends. [3] Since returning I have been informed, however, by the celebrated Abyssinian traveller M. Antoine d'Abbadie, that in no part of the wild countries which he visited was his life so much perilled as at Berberah. [4] Lieut. Speke had landed at Karam harbour on the 24th of March, in company with the Ras, in order to purchase camels. For the Ayyun or best description he paid seven dollars and a half; the Gel Ad (white camels) cost on an average four. In five days he had collected twenty-six, the number required, and he then marched overland from Karam to Berberah. I had taken the precaution of detaching Lieut. Speke to Karam in lively remembrance of my detention for want of carriage at Zayla, and in consequence of a report raised by the Somal of Aden that a sufficient number of camels was not procurable at Berberah. This proved false. Lieuts. Stroyan and Herne found no difficulty whatever in purchasing animals at the moderate price of five dollars and three quarters a head: for the same sum they could have bought any reasonable number. Future travellers, however, would do well not to rely solely upon Berberah for a supply of this necessary, especially at seasons when the place is not crowded with caravans. [5] The Elders of the Habr Awal, I have since been informed, falsely asserted that they repeatedly urged us, with warnings of danger, to leave Berberah at the end of the fair, but that we positively refused compliance, for other reasons. The facts of the case are those stated in the text. [6] They prefer travelling during the monsoon, on account of the abundance of water. [7] The framework is allowed to remain for use next Fair-season. [8] The attacking party, it appears, was 350 strong; 12 of the Mikahil, 15 of the Habr Gerhajis, and the rest Eesa Musa. One Ao Ali wore, it is said, the ostrich feather for the murder of Lieut. Stroyan. [9] Mohammed, his Indian servant, stated that rising at my summons he had rushed to his tent, armed himself with a revolver, and fired six times upon his assassins. Unhappily, however, Mohammed did not see his master fall, and as he was foremost amongst the fugitives, scant importance attaches to his evidence. [10] At this season native craft quitting Berberah make for the Spit late in the evening, cast anchor there, and set sail with the land breeze before dawn. Our lives hung upon a thread. Had the vessel departed, as she intended, the night before the attack, nothing could have saved us from destruction. [11] The Somal place dates in the hands of the fallen to ascertain the extent of injury: he who cannot eat that delicacy is justly decided to be in articulo. [12] In less than a month after receiving such injuries, Lieut. Speke was on his way to England: he has never felt the least inconvenience from the wounds, which closed up like cuts in Indian-rubber. [13] They had despised the heavy sacks of grain, the books, broken boxes, injured instruments, and a variety of articles which they did not understand. We spent that day at Berberah, bringing off our property, and firing guns to recall six servants who were missing. They did not appear, having lost no time in starting for Karam and Aynterad, whence they made their way in safety to Aden. On the evening of the 19th of April, unable to remove the heavier effects, and anxious to return with the least possible delay, I ordered them to be set on fire.


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First Footsteps in East Africa/Appendices

APPENDIX III METEOROLOGICAL OBSERVATIONS IN THE COLD SEASON OF 1854-5, BY LIEUTENANTS HERNE, STROYAN, AND BURTON. [Editor's note: This appendix contains tables of numbers that are too wide to be reproduced accurately following PG standards.]

APPENDIX IV. It has been found necessary to omit this Appendix. [Editor's note: This appendix, written in Latin by Burton, contained descriptions of sexual customs among certain tribes. It was removed by the publisher of the book, who apparently considered it to be too risque for the Victorian public.]

APPENDIX V. A CONDENSED ACCOUNT OF AN ATTEMPT TO REACH HARAR FROM ANKOBAR. The author is Lieutenant, now Commander, WILLIAM BARKER of the Indian Navy, one of the travellers who accompanied Sir William Cornwallis, then Captain, Harris on his mission to the court of Shoa. His services being required by the Bombay Government, he was directed by Captain Harris, on October 14th, 1841, to repair to the coast via Harar, by a road "hitherto untrodden by Europeans." These pages will reward perusal as a narrative of adventure, especially as they admirably show what obstacles the suspicious characters and the vain terrors of the Bedouins have thrown in the way of energy and enterprise.

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


text: A Book of the Riviera

title: A Book of the Riviera


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Page:Sophocles - Seven Plays, 1900.djvu/11

 THE

SEVEN PLAYS IN ENGLISH VERSE

BY

LEWIS CAMPBELL, M.A.

The World's Classics logo.png

NEW EDITION, REVISED


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HIS little book has for its object to interest the many winter visitors to the Ligurian coast in the places that they see. A consecutive history of Provence and Genoese Liguria was out of the question; it would be long and tedious. I have taken a few of the most prominent incidents in the history of the coast, and have given short biographies of interesting personages connected with it. The English visitor calls the entire coast—from Marseilles to Genoa—the Riviera; but the French distinguish their portion as the Côte d'Azur, and the Italians distinguish theirs as the Riviera di Ponente. I have not included the whole of this latter, so as not to make the book too bulky, but have stayed my pen at Savona.

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HEN a gambler has become bankrupt at the tables of Monte Carlo, the Company that owns these tables furnish him with a railway ticket that will take him home, or to any distance he likes, the further the better, that he may hang or shoot himself anywhere else save in the gardens of the Casino. On much the same principle, at the beginning of last century, the physicians of England recommended their consumptive patients to go to Montpellier, where they might die out of sight,

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Martinsburg Company v. March

Wayne MacVeagh, for plaintiff in error.

No appearance for defendant in error.

HARLAN, J.

title: Martinsburg Company v. March


text: Talk:Martinsburg Company v. March

title: Talk:Martinsburg Company v. March


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Martinsburg Company v. March/Opinion of the Court

This case is within the principles announced in Kihlberg v. U.S. 97 U.S. 398, and Sweeney v. U.S. 109 U.S. 618, S.C.. 3 SUP. CT. REP. 344. Kihlberg sued the United States upon a contract for the transportation of military, Indian, and government stores and supplies from points on the Kansas Pacific Rail way to posts and stations in certain states and territories. The contract provided for payment for transportation 'in all cases according to the distance from the place of departure to that of delivery, the distance to be ascertained and fixed by the chief quarter-master of the district of New Mexico, and in no case to exceed the distance by the usual and customary route.' One of the issues in that case was as to the authority of that officer to fix, conclusively for the parties, the distances which should govern in the settlement of the contractor's accounts for transportation. There was neither allegation nor proof of fraud or bad faith upon the part of that officer in his discharge of the duty imposed upon him by the mutual assent of the parties. This court said: 'In the absence of fraud, or such gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment, his action in the premises is conclusive upon the appellant as well as upon the government.' This principle was affirmed and applied in Sweeney's Case, in which he sought to recover from the United States the price of a wall built by him around a national cemetery. The contract provided that the wall should be received, and become the property of the United States, after an officer or civil engineer, to be designated by the government to inspect the work, should certify that it was in all respects such as the contractor agreed to construct. The officer designated for that purpose refused to so certify, on the ground that neither the material nor the workmanship was such as the contract required. As the officer exercised an honest judgment in making his inspections, and as there was on his part neither fraud, nor such gross mistake as implied bad faith, it was adjudged that the contractor had no cause of action on the contract against the United States.

Those decisions control the determination of the claim arising out of the contract here in suit, whereby the defendant in error, who was plaintiff below, covenanted and agreed that he would furnish all the material required,-which should be sound, durable, and of good quality, and approved by the company's chief engineer,-and perform all the labor necessary to construct and finish, in every respect, in the most substantial and workman-like manner, the grading and masonry of a certain section of the Martinsburg & Potomac Railroad.

The contract provides that, to prevent all disputes, the engineer of the company 'shall, in all cases, determine' the quantity of the several kinds of work to be paid for under the contract, and the amount of compensation that the appellee should earn at the rates therein specified; that he 'shall, in all cases,' decide every question which can or may arise relative to the execution of the contract, and 'his estimate shall be final and conclusive;' that in order to enable the contractor to prosecute the work advantageously, the engineer 'shall make an estimate from time to time, not oftener than once per month, as the work progresses, of the work done,' for which the company 'will pay in current money within twenty per cent. of the amount of said estimate on presentation;' that, in calculating the quantity of masonry, walling, and excavation, the most rigid geometrical rules should be applied, any custom to the contrary notwithstanding; and that 'whenever this contract shall be wholly completed on the part of the said contractor, and the said engineer shall have certified the same, they [the company] will pay for said work' the prices in the contract named. These stipulations were emphasized by this additional provision in the agreement: 'And it is further agreed that whenever the contract shall be completely performed on the part of the contractor, and the said engineer shall certify the same in writing under his hand, together with his estimate aforesaid, the said company shall, within thirty days after the receipt of said certificate, pay to the said contractor, in current notes, the sum which according to this contract shall be due.'

The plaintiff, in his declaration, which is in assumpsit, sets out the written contract in full, and counts specially upon its various provisions. The other count is the ordinary one of indebitatus assumpsit. A general demurrer y the company to the whole declaration, and to each count, was overruled. This action of the court below cannot be upheld without disregarding the express conditions of the written agreement; for it does not appear from the declaration that the engineer ever certified in writing the complete performance of the contract by the plaintiff, together with an estimate of the work done, and the amount of compensation due him according to the prices established by the parties. Until after the expiration of 30 days from the receipt of such a certificate, the company did not, by the terms of the agreement, come under a liability to pay the plaintiff the balance, if any, due to him under the contract. Nor does the declaration state any facts entitling him to sue the company, on the contract, in the absence of such a certificate by the engineer, whose determination was made by the parties final or conclusive. And upon the supposition that the engineer made such a certificate as that provided by the contract, there is no allegation that entitled the plaintiff to go behind it; for there is no averment that the engineer had been guilty of fraud, or had made such gross mistake in his estimates as necessarily implied bad faith, or had failed to exercise an honest judgment in discharging the duty imposed upon him. The first count of the declaration was, therefore, defective for the want of proper averments showing plaintiff's right to sue on the contract, and the demurrer to that count should have been sustained.

As, for this reason, the case must be remanded for a new trial, it is proper to say that if the declaration had been good on demurrer, we should have been compelled to reverse the judgment for errors in the instructions given to the jury. Several instructions were asked by the defendant embodying the general proposition that the final estimate of the engineer was to be taken as conclusive, unless it appeared from the evidence that, in respect thereto, he was guilty of fraud or intentional misconduct. These instructions were modified by the court by adding after the words 'fraud or intentional misconduct' the words 'or gross mistake.' This modification was well calculated to mislead the jury, for they were not informed that the mistake must have been so gross, or of such a nature, as necessarily implied bad faith upon the part of the engineer. We are to presume from the terms of the contract that both parties considered the possibility of disputes arising between them in reference to the execution of the contract. And it is to be presumed that in their minds was the possibility that the engineer might err in his determination of such matters. Consequently, to the end that the interests of neither party should be put in peril by disputes as to any of the matters covered by their agreement, or in reference to the quantity of the work to be done under it, or the compensation which the plaintiff might be entitled to demand, it was expressly stipulated that the engineer's determination should be final and conclusive. Neither party reserved the right to revise that determination for mere errors or mistakes upon his part. They chose to risk his estimates, and to rely upon their right, which the law presumes they did not intend to waive, to demand that the engineer should, at all times, and in respect of every matter submitted to his determination, exercise an honest judgment, and commit no such mistakes as, under all the circumstances, would imply bad faith.

There is one other error in the instructions to which it is proper to call attention. The contract provided that for 'bridge masonry' the contractors should receive $7.50 per perch of 25 cubic feet. In reference to certain pier masonry, for which plaintiff charged, in his account, $14 per perch, the court instructed the jury as follows: 'The jury are instructed that in respect to the item of 'pier masonry,' and the charge of $14 per perch therefor by the plaintiff, as shown in his estimate or bill of particulars, that if they find that the defendant's chief engineer ordered such masonry to be made, and saw and inspected or examined the same after its completion, and considered the same in his final estimate, and therein treated the said 'pier masonry' as 'bridge masonry,' to be paid for by the defendant at the price of $7.50 per perch, under the terms of the contract, then such determination and judgment of the engineer is final and binding on the plaintiff, unless the jury find that the price and value of the masonry fixed and returned by the engineer was inadequate and unjust to the contractor, in which event the jury may presume fraud, and disregard the price fixed by the engineer in his final estimate.'

This instruction, to which defendant excepted, was clearly erroneous; for, if the masonry was of the class described in the contract as bridge masonry, or if the parties by subsequent agreement, express or implied, authorized it to be put in that class,-the determination of which questions might be controlled by special circumstances not appearing on the face of the agreement,-then the estimate of the engineer, upon the basis of the contract price, was conclusive, unless impeached on the ground of fraud, or such gross mistake as necessarily implied bad faith. The test was not whether the price and value of the masonry fixed and returned by the engineer was inadequate and unjust. Much less did the jury have the right to presume fraud and disregard the engineer's estimate, merely because the price, upon which the parties originally agreed for bridge masonry, proved to be inadequate and unjust; for that would have enabled them to make for the parties a contract which they did not themselves choose to make.

Without expressing an opinion upon other questions of a subordinate character, discussed in the brief of the defendant's counsel, and which may not arise upon another trial, the judgment is reversed, and the case remanded, with directions to set aside the verdict and grant a new trial, and for such further proceedings as may be consistent with this opinion. Reversed.


text: Talk:Martinsburg Company v. March/Opinion of the Court


text:
Strang v. Bradner

G. H. Forster, for plaintiffs in error.

''Wm. F. Cogswell'', for defendants in error.

HARLAN, J.

title: Strang v. Bradner


text: Talk:Strang v. Bradner

title: Talk:Strang v. Bradner


text:
Strang v. Bradner/Opinion of the Court

On the first day of June, 1877, each of the appellants, who were defendants below, received from the district court of the United States for the Southern district of New York his discharge from all debts and demands, which, by the Revised Statutes of the United States, title 'Bankruptcy,' were made provable against his estate, and which existed on the third day of July, 1875,-other than such debts as were by law excepted from the operation of a discharge in bankruptcy. The statute excepts from the operation of a discharge any 'debt created by the fraud or embezzlement of the bankrupt, or by defalcation as a public officer, or while acting in a fiduciary capacity; but the debt may be proved, and the dividend thereon shall be a payment on account of such debt.' Rev. St. § 5117. To this action, brought by appellees against appellants upon a cause of action accruing prior to July 3, 1875, the latter made defense, in part, upon the ground that their respective discharges in bankruptcy relieved them from all liability to plaintiffs. In the supreme court of New York there was a verdict and judgment in favor of the plaintiffs for the sum of $17,517.86. That judgment having been affirmed in the court of appeals, the question to be determined upon this writ of error is whether the claim or demand of the plaintiffs is one from which they were relieved by their discharges in bankruptcy. If the debt was of that character, the judgment below must be reversed; otherwise, affirmed.

The evidence before the jury tended to establish the following facts: That for some years prior to June, 1875, the plaintiffs were doing business in he city of Rochester, New York, as partners, under the style of Lowery & Bradner, while, during the same period, the defendants were engaged in business in the city of New York, under the style of Strang & Holland Bros.; that the special business of plaintiffs was the purchase of wool, which they forwarded to the defendants, as commission merchants, to sell on account; that plaintiffs, for the accommodation of defendants, often furnished them with promissory notes, for the purpose of enabling them to carry on business; that the defendants took care of these notes, paying the same at maturity out of the proceeds of the property consigned, and with money remitted by the plaintiffs; that in the transactions between the parties the plaintiffs were credited with those notes, with the proceeds of property sold on their account, and with money remitted by them, and were charged with the amounts paid to take up the notes; that on or about March 1, 1875, the defendants requested the plaintiffs to furnish them with four promissory notes, of about $4,000 each, to enable them to raise money thereon, and to be credited to plaintiffs on their account, in accordance with the course of business existing between the parties,-such notes to be of odd amounts, and made as of different dates, before the time they were transmitted to the defendants, so that they might appear to be given for real indebtedness; that, pursuant to that request, the plaintiffs made and transmitted to defendants their four promissory notes, for $4,325.50, $4,326.25, $4,327.13, and $4,327.15 each, at four months, dated, respectively, on the first, ninth, fifteenth, and twentieth days of February, 1875, and each payable to the plaintiffs at the office of the defendants, in the city of New York, and indorsed by the plaintiffs; and that, on or about April 4, 1875, Strang represented to plaintiffs that his firm had not used, nor been able to use, those notes, because they were made payable at their office, and requested plaintiffs to lend them four other notes of the same amount, payable at the Metropolitan National Bank, in New York city, to be used in the place of those dated in February.

There was also evidence tending to prove that the plaintiffs, relying upon the representation that the February notes had not been used, and that the defendants desired other notes to be used in their place, executed and delivered to the latter four other promissory notes, each at four months, for $4,850, $4,951.25, $4,860.30, and $4,970, respectively, dated thirteenth, fourteenth, sixteenth, and twentieth of March, 1875, payable four months after date to their own order at the Metropolitan National Bank, New York, and by them indorsed; that, at the time defendants requested to be furnished with the notes last described, they had, in fact, discounted and put in circulation the February notes, whereby the plaintiffs, as makers and indorsers, were compelled to pay the same to the holders; that when Strang applied for the March notes, the defendants knew that they were insolvent, but that fact was not known to plaintiffs; that he made such representations and procured said notes with the intent to defraud the plaintiffs; and that the latter was compelled to pay such part of the March notes as amounted, principal and interest, to the sum for which they obtained judgment below. In the misrepresentations made by Strang to Lowery & Bradner there was no active participation by his partners, the Messrs. Holland. But it was proven that the proceeds of the notes last obtained from plaintiffs, as well as the proceeds of the February notes, all went into the business of Strang & Holland Bros.

The present suit, brought to recover a judgment for the amount plaintiffs were compelled to pay to bona fide holders of the March notes, proceeds upon the ground that the appellees have sustained damages by reason of the false and fraudulent representations made by Strang, on behalf of his firm, whereby the appellees were induce to execute and deliver to that firm the four notes dated in March, 1875. Is that claim for damages of the class from which the bankrupts were relieved by their respective discharges in bankruptcy?

In Neal v. Clark, 95 U.S. 709, it was held that, looking to the object of congress in enacting a general law by which the honest citizen might be relieved from the burden of hopeless insolvency, the term 'fraud,' in the clause defining the debts from which a bankrupt is not relieved by a discharge under the bankrupt act, should be construed to mean positive fraud, or fraud in fact, involving moral turpitude or intentional wrong, and not implied fraud or fraud in law, which may exist without the imputation of bad faith or immorality. This principle was affirmed in the recent case of Hennequin v. Clews, 111 U.S. 682, S.C.. 4 SUP. CT. REP. 576, where will be found a reference to the leading cases in this country and in England. Under this rule it is impossible to avoid the conclusion that the debt in question was created by positive fraud upon the part of Strang, representing his firm, if it be true-and the jury proceeded upon the ground that such was the fact-that he procured the notes, dated in March, by representing that the February notes had not been, and could not be, used by his firm, and that they desired other notes, so drawn as to be readily negotiated, to take their place, when, in fact, the February notes had been previously put into circulation by the firm, and had then become obligations upon which the appellees were liable to the holders. There is no pretense in the evidence that the course of business between Strang & Holland Bros. and the plaintiffs would have entitled the former to obtain the March notes, so long as those dated in February were outstanding obligations against the latter. Hence the necessity of deluding the plaintiffs by the false representation that the February notes had not been negotiated at the time the notes in question were obtained. That representation-as the jury, in effect, found-was made with the intent to deceive the plaintiffs in reference to the actual state of things, and to induce them to do what defendants knew they would not otherwise have done, or been asked to do. If Strang's conduct does not constitute positive fraud, or fraud in fact, involving intentional wrong, it is difficult to conceive what circumstances would have amounted to fraud of that character.

It is contended, however, that as Strang & Holland Bros. were under a legal obligation, apart from any responsibility for the alleged fraudulent representations by Strang, to protect the plaintiffs against liability on the notes dated in March, the latter could have made a claim against the estates of the several bankrupts, for such amounts as they were compelled to pay on account of their being accommodation makers and indorsers; consequently, it is argued, the defendants are released, by their respective discharges in bankruptcy, from the present claim for damages. To this proposition there are two answers: (1) While the plaintiffs might have based their claim entirely upon the legal obligation of defendants to take up the notes at their respective maturities, they were not bound to waive their right to proceed against the defendants for damages on account of fraud in procuring their execution. This action is brought to recover damages for the deceit practiced upon plaintiffs. The claim here asserted is not one from which the bankrupts are protected by their discharges; for it is not a claim provable against their estates in bankruptcy. Rev. St. §§ 5067-5072, inclusive; Id. §§ 5117, 5119. (2) But had the plaintiffs waived their right to claim damages specifically for the deceit practiced upon them, and made a claim against the estate of the bankrupts, based wholly upon their legal obligation to save plaintiffs harmless on account of their being the makers and indorsers of the notes in question, or if the present action had been based upon that obliga ion, and not upon the fraud committed by defendants, it would not follow that the defendants would be protected by their discharges in bankruptcy; for the statute expressly declares that a discharge is subject, even in respect of claims provable in bankruptcy, to the limitation that no debt created by the fraud of the bankrupt shall be discharged by the proceedings in bankruptcy, and that a debt so created may be proved, and the dividend thereon shall be a payment on account of such debt. Rev. St. §§ 5117, 5119. It is therefore clear that, whether the claim asserted by plaintiffs is regarded as one arising out of the deceit or fraud of the defendants, or as a debt created by their fraud, the discharges in bankruptcy do not constitute a defense.

The only other question to be determined is whether the defendants John B. Holland and Joseph Holland can be held liable for the false and fraudulent representations of their partner, it being conceded that they were not made by their direction nor with their knowledge. Whether this action be regarded as one to recover damages for the deceit practiced upon the plaintiffs, or as one to recover the amount of a debt created by fraud upon the part of Strang, we are of opinion that his fraud is to be imputed, for the purposes of the action, to all the members of his firm. The transaction between him and the plaintiffs is to be deemed a partnership transaction, because, in addition to his representation that the notes were for the benefit of his firm, he had, by virtue of his agency for the partnership, and as between the firm and those dealing with it in good faith, authority to negotiate for promissory notes and other securities for its use. Each partner was the agent and representative of the firm with reference to all business within the scope of the partnership. And if, in the conduct of partnership business, and with reference thereto, one partner makes false or fraudulent misrepresentations of fact to the injury of innocent persons who deal with him as representing the firm, and without notice of any limitations upon his general authority, his partners cannot escape pecuniary responsibility therefor upon the ground that such misrepresentations were made without their knowledge. This is especially so when, as in the case before us, the partners, who were not themselves guilty of wrong, received and appropriated the fruits of the fraudulent conduct of their associate in business. Stockwell v. U.S. 13 Wall. 547, 548; Story, Partn. §§ 1, 102, 103, 107, 108, 166, 168; Chester v. Dickerson, 54 N. Y. 1; Locke v. Stearns, 1 Metc. 560; Lothrop v. Adams, 133 Mass. 481; Blight's Heirs v. Tobin, 7 T. B. Mon. 617; Durant v. Rogers, 87 Ill. 508; Colly. Partn. (Wood's Ed.) §§ 446, 449, 450; Lindl. Partn. (Ewell's Ed.) § 302.

The judgment is affirmed.

title: Strang v. Bradner/Opinion of the Court


text: Talk:Strang v. Bradner/Opinion of the Court


text:
Alling v. United States

C. W. Hornor and W. L. McGary, for appellant.

Asst. Atty. Gen. Maury, for appellee.

MILLER, J.

title: Alling v. United States


text: Talk:Alling v. United States

title: Talk:Alling v. United States


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

This is an appeal from the court of claims. Belden & Co., having a claim for seizure and confiscation of goods by the Mexicans during or shortly after the Mexican war, preferred their claim to the United States for presentation to the Mexican government. The goods having been imported into Matamoras while that city was in the possession of the American forces, on which Belden & Co. had paid duties to the amount of $18,347, the United States refunded this sum to Belden & Co. and took an assignment pro tanto of their claim against Mexico. By the convention or treaty of July 4, 1868, between Mexico and the United States, (15 St. 679,) a commission was organized for the adjustment of the claims of the citizens of the respective countries against the government of the other for injuries to persons and property. To this commission Belden & Co.'s claim was submitted by the United States, and its award was that the Mexican government should pay to the United States, on account of this claim, the sum of $53,099.25, of which the United States might retain out of this gross award the sum of $35,920.81, on account of the tax which it had refunded to Belden & Co. and its interest. An act of congress provided that the distribution of the money received by the United States under all the awards m de by this commission should be distributed under the order of the secretary of state.

Claimants in this case having received the sum specifically awarded to them, appealed to the secretary for the whole or a part of the sum for customs duties, which was awarded to the United States under the assignment of Belden & Co. This was refused, and this suit is brought to enforce the claim. It is clearly a claim founded on and growing out of a treaty with a foreign nation, within the provisions of section 1066 of the Revised Statutes. It is in all respects like the case of the ''Great Western Ins. Co. v. U.S.'' 112 U.S. 193, S.C.. ante, 99, which holds that the court of claims had no jurisdiction by reason of that section. That was a case of a claim submitted to the United States for reclamation against Great Britain. A treaty between the two powers provided, as in the present case, for an arbitration, under which the claim was allowed and paid to the United States. On appeal from the court of claims we decided that it was, within the meaning of section 1066 of this Revision, 'a claim growing out of and dependent on a treaty stipulation entered into with a foreign government' of which that court could not entertain jurisdiction. The present case is stronger than that, because the act of congress of June 18, 1878, (20 St. 144,) confers on the secretary of state the authority to distribute these awards among the several claimants. Frelinghuysen v. Key, 110 U.S. 63; S.C.. 3 SUP. CT. REP. 462. Not only is the court of claims forbidden to entertain jurisdiction of this claim, but the secretary of state is by law authorized and directed to do all the can be done for claimants, without further legislation.

It is apparent from the record that the court of claims entertained jurisdiction of the case and decided against the claimants on the merits. As that court had no such authority, its judgment must be reversed, with direction to dismiss the petition for want of jurisdiction.


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


text:
Page:Book of the Riviera.djvu/18

2 and not bring discredit on their doctors. As Murray well puts it:—

"It is difficult to understand how it came to be chosen by the physicians of the North as a retreat for consumptive patients, since nothing can be more trying to weak lungs than its variable climate, its blazing sunshine alternating with the piercingly cold blasts of the mistral. Though its sky be clear, its atmosphere is filled with dust, which must be hurtful to the lungs."

The discovery of a better place, with equable temperature, and protection from the winds, was due to an accident. In 1831, Lord Brougham, flying from the fogs and cold of England in winter, was on his way to Italy, the classic land of sunshine, when he was delayed on the French coast of the Mediterranean by the fussiness of the Sardinian police, which would not suffer him to pass the frontier without undergoing quarantine, lest he should be the means of introducing cholera into Piedmont. As he was obliged to remain for a considerable time on the coast, he spent it in rambling along the Gulf of Napoule. This was to him a veritable revelation. He found the sunshine, the climate, the flowers he was seeking at Naples where he then was, at Napoule. He went no farther; he bought an estate at Cannes, and there built for himself a winter residence. He talked about his discovery. It was written about in the papers. Eventually it was heard of by the physicians, and they ceased to recommend their patients to go to Montpellier, but rather to try Cannes. When Lord Brougham settled there, it was but a fishing village; in thirty years it was transformed; and from Cannes stretches a veritable

title: Page:Book of the Riviera.djvu/18


text:
Wales v. Whitney

S. Shellabarger, J. M. Wilson, and F. P. B. Sands, for appellant.

John S. Blair, for appellee.

MILLER, J.

title: Wales v. Whitney


text: Talk:Wales v. Whitney

title: Talk:Wales v. Whitney


text:
Wales v. Whitney/Opinion of the Court

This is an appeal from a judgment of the supreme court of the District of Columbia, which refused to make an order on a writ of habeas corpus relieving appellant from the custody of the appellee, who, it is alleged, held the appellant in restraint of his liberty unlawfully. Upon the decision of the supreme court of the district, adverse to petitioner, an application for an original writ of habeas corpus was made to this court by counsel for appellant, but on a suggestion from the court that an act of congress, at its session just closed, had restored the appellate jurisdiction of this court in habeas corpus cases over decisions of the circuit courts, and that this necessarily included jurisdiction over similar judgments of the supreme court of the District of Columbia, counsel, on due consideration, withdrew their application, and, appealing from the judgment of that court, bring here the record of it for review.

Section 846 of the Revised Statutes of the District of Columbia, which makes the jurisdiction of this court over judgments and decrees of the circuit courts of the United States the measure of its jurisdiction (except as regards the sum in controversy) over judgments and decrees of the supreme court of the district in similar cases, justifies the exercise of our appellate jurisdiction in the present case. The original petition for the writ was addressed to Mr. Justice COX of the supreme court of the district, and alleged that on the second day of March, 1885, the petitioner was arrested and imprisoned, and ever since has so remained in arrest and imprisonment, and restrained of his liberty in the District of Columbia, illegally. The petition sets out an order of the secretary of the navy, under which this restraint is exercised, which order is in the following terms:

'WASHINGTON, February 28, 1885.

'SIR Transmitted herewith you will receive charges, with     specifications, preferred against you by the department. A     general court-martial has been ordered to convene in rooms      numbered 32 and 33, at the navy department, Washington, D.      C., at 12 o'clock noon, on Monday, the ninth proximo, at      which time and place you will appear and report yourself to      Rear Admiral Edward Simpson, United States navy, the      presiding officer of the court, for trial. The judge advocate     will summon such witnesses as you may require for your      defense.

'You are hereby placed under arrest, and you will confine     yourself to the limits of the city of Washington.

'Very respectfully,

'WM. E. CHANDLER,

'Medical Director

Secretary of the Navy.

'PHILIP S. WALES,

'U.S. N., Washington, D. C.' It also makes an exhibit to the petition a copy of the charges and specifications accompanying this order. It is unnecessary to say more of these charges at present, than that they relate to derelictions of duty on the part of the appellant while he was surgeon general of the navy, and as such had charge of the bureau of medicine and surgery in the navy department, which office he held from August 20, 1879, to January 26, 1884. He had therefore ceased to be surgeon general, and was in the exercise of his functions as medical director of the navy when this order was served on him. Judge COX issued the writ directed to William C. Whitney, secretary of the navy, who had become such by succession to Secretary Chandler. To this writ Secretary Whitney made return, stating the ction of Secretary Chandler, and the history of the appellant's connection with the navy since he was appointed medical inspector in June, 1873; the charges preferred against him as chief of the bureau of medicine and surgery, and the order of arrest of Secretary Chandler, and closes his return as follows:

'Your respondent respectfully submits that the said Philip S.     Wales is not now, nor was at the time of issuing the annexed      writ, in the custody or possession of, or confined or      restrained of his liberty by, your respondent, other than as      appears by the papers marked A, B, and C, attached hereto and      made part of this return, and that the cause of such      detention, if any there be, is fully shown in said exhibits.

'And your respondent further answers that neither he, nor any     one by his authority, has exercised any physical restraint      over the said Philip S. Wales before or since the issue of      said writ.

'Your respondent further answers that by virtue of his office     as secretary of the navy, the said Philip S. Wales being a      medical director in the navy, was, at the time of the issuing      of the said writ, and has since continually been, in the      power of your respondent, so far as the statutes of the      United States and the regulations of the navy, not      inconsistent therewith, have vested him with authority over      the said Philip S. Wales.

'Your respondent further says that he knows of no  obstacle or impediment to prevent the said Philip S.   Wales from being present before your honor at the time   and place fixed in the said writ; but, in order to   comply with the order of your honor, and under and by   virtue of his authority as secretary of the navy, he has   ordered the said Philip S. Wales to be present at the   time and place so fixed. Wherefore the said William C.  Whitney, secretary of the navy, has here, before your   honorable court, the body of the said Philip S. Wales,   together with the said writ, as therein he is commanded.

'W. C. WHITNEY,

'Secretary of the Navy.'

To this return the petitioner, by his counsel, demurred, when, on this demurrer, and after motion of the respondent to discharge the writ, Mr. Justice Cox certified the case into the court in general term. That court, after full hearing and due consideration, made the following order:

'''Habeas Corpus. Ex relatione'' PHILIP S. WALES.-No. 15,780.

'This cause coming on for hearing, and having been argued by     counsel and duly considered, it is, this fourteenth day of      April, 1885, ordered and adjudged that the petition be      dismissed, with costs, the court being of opinion that the      relator has not been, nor is he at this present, deprived of      his personal liberty by virtue of the orders of the secretary      of the navy set out in the petition.

'By the court:

A. WYLIE.

It is from this order that the present appeal is taken.

The only other matter apparent in the record necessary to be stated at this time is that the court-martial referred to in the order of arrest was duly appointed, assembled, and organized, and that appellant appeared before it, and, at his request, it has been adjourned from time to time to await the result of these proceedings in habeas corpus. Two questions have been elaborately argued before us, namely: (1) Does the return of the secretary of the navy to the writ and its accompanying exhibits show such restraint of the liberty of the petitioner by that officer as justifies the use of the writ of habeas corpus? (2) If there is a restraint, which in its character demands the issue of the writ, are the charges for which the petitioner is required to answer before the naval court-martial of the class of which such a court has jurisdiction? The latter is a question of importance and not free from difficulty, since its solution requires the court to decide whether the surgeon general of the navy, as chief of the bureau of medicine and surgery in the department of the navy, under the immediate supervision of the secretary, is liable for any failure to perform is duties as surgeon general, to be tried by a military court, under the articles of war governing the navy, or has a right for such offenses to be tried alone by the civil courts, and according to the law, for offenses not military. Is he, in that character, in the civil or military service of the United States? The difficulty of stating the question shows the embarrassment attending its decision. The other question, however, has precedence, both because it is the one on which the court of the district decided it, and because, if there was no such restraint, whether legal or illegal, as to call for the use of the writ, there is no occasion to inquire into its cause.

It is obvious that petitioner is under no physical restraint. He walks the streets of Washington with no one to hinder his movements, just as he did before the secretary's order was served on him. It is not stated as a fact in the record, but it is a fair inference, from all that is found in it, that, as medical director, he was residing in Washington and performing there the duties of his office. It is beyond dispute that the secretary of the navy had the right to direct him to reside in the city in performance of these duties. If he had been somewhere else the secretary could have ordered him to Washington as medical director, and, in order to leave Washington lawfully, he would have to obtain leave of absence. He must, in such case, remain here until otherwise ordered or permitted. It is not easy to see how he is under any restraint of his personal liberty by the order of arrest which he was not under before. Nor can it be believed that, if this order had made no reference to a trial on charges against him before a court-martial, he would have felt any restraint whatever, though it had directed him to remain in the city until further orders. If the order had directed him so to remain, and act as a member of such court, can any one believe he would have felt himself a prisoner entitled to the benefit of a writ of a writ of habeas corpus?

On the other hand, there is an obvious motive on the part of the petitioner for construing this order as making him a prisoner in the custody of the secretary. That motive is to have himself brought before a civil court, which, on inquiry into the cause of his imprisonment, may decide that the offense with which the secretary charges him is not of a millitary character, is not one of which a naval court-martial can entertain jurisdiction, and, releasing him from the restraint of the order of arrest, it would incidentally release him from the power of that court. But neither the supreme court of the district nor this court has any appellate jurisdiction over the naval court-martial, nor over offenses which such a court has power to try. Neither of these courts is authorized to interfere with it in the performance of its duty, by way of a writ of prohibition or any order of that nature. The civil courts can relieve a person from imprisonment under order of such court only by writ of habeas corpus, and then only when it is made apparent that it proceeds without jurisdiction. If there is no restraint there is no right in the civil court to interfere. Its power, then, extends no further than to release the prisoner. It cannot remit a fine, or restore to an office, or reverse the judgment of the military court. Whatever effect the decision of the court may have on the proceedings, orders, or judgments of the military court, is incidental to the order releasing the prisoner. Of course, if there is no prisoner to release, if there is no custody to be discharged, if there is no such restraint as requires relief, then the civil court has no power to interfere with the military court, or other tribunal over which it has by law no appellate jurisdiction.

The writ of habeas corpus is not a writ of error, though in some cases in which the court issuing it has appellate power over the court by whose order the petitioner is held in custody, it may be used with the writ of certiorari for that purpose. In such case, however, as the one before us, it is not a writ of error. Its purpose is to enable the court to inquire, first, if the petitioner is restrained of his liberty. If he is not, the court can do nothing but discharge the writ. If there is such restraint, the court can then inquire into the cause of it, and if the alleged cause be unlawful, it must then discharge the prisoner. There is no very satisfactory definition to be found is the adjudged cases of the character of the restraint or imprisonment suffered by a party applying for the writ of habeas corpus, which is necessary to sustain the writ. This can hardly be expected from the variety of restraints for which it is used to give relief. Confinement under civil and criminal process may be so relieved. Wives restrained by husbands, children withheld from the proper parent or guardian, persons held under arbitrary custody by private individuals, as in a mad-house, as well as those under military control, may all become proper subjects of relief by the writ of habeas corpus. Obviously, the extent and character of the restraint which justfies the writ, must vary according to the nature of the control which is asserted over the party in whose behalf the writ is prayed.

In the case of a man in the military or naval service, where he is, whether as an officer or a private, always more or less subject in his movements, by the very necessity of military rule and subordination, to the orders of his superior officer, it should be made clear that some unusual restraint upon his liberty of personal movement exists to justify the issue of the writ: otherwise every order of the superior officer directing the movements of his subordinate, which necessarily to some extent curtails his freedom of will, may be held to be a restraint of his liberty, and the party so ordered may seek relief from obedience by means of a wrot of habeas corpus.

Something more than moral restraint is necessary to make a case for habeas corpus. There must be actual confinement or the present means of enforcing it. The class of cases in which a sheriff or other officer, with a writ in his hands for the arrest of a person whom he is required to take into custody, to whom the person to be arrested submits without force being applied, comes under this definition. The officer has the authority to arrest, and the power to enforce it. If the party named in the writ resists or attempts to resist, the officer can summon by-standers to his assistance, and may himself use personal violence. Here the force is imminent and the party is in presence of it. It is physical power which controls him, though not called into demonstrative action. It is said in argument that such is the power exercised over the appellant under the order of the secretary of the navy. But this is, we think, a mistake. If Dr. Wales had chosen to disobey this order, he had nothing to do but take the next or any subsequent train from the city and leave it. There was no one at hand to hinder him. And though it is said that a file of marines or some proper officer could have been sent to arrest, and bring him back, this could only be done by another order of the secretary, and would be another arrest, and a real imprisonment under another and distinct order. Here would be a real restraint of liberty, quite different from the first. The fear of this latter proceeding, which may or may not keep Dr. Wales within the limits of the city, is a moral restraint which concerns his own convenience, and in regard to which he exercises his own will.

The present case bears a strong analogy to Dodge's Case in 6 Mart. (La.) 569. It appeared there that the party who sued out the writ had been committed to jail on execution for debt, and having given the usual bond by which he and his sureties were bound to pay the debt if he left the prison bounds, he was admitted to the privilege of those bounds. The plaintiff in executi n failing to pay the fees necessary to the support of the prisoner, the latter sued out a writ of habeas corpus. That eminent jurist, Chief Justice MARTIN, said, on appeal to the supreme court: 'It appears to us that the writ of habeas corpus was improperly resorted to. The appellee was under no physical restraint, and there was no necessity to recur to a court or judge to cause any moral restraint to cease. The sheriff did not restrain him, since he had admitted him to the benefit of the bounds; the doors of the jail were not closed on him, and if he was detained it was not by the sheriff or jailer. If his was a moral restraint it could not be an illegal one. The object of the appellee was, not to obtain the removal of an illegal restraint from a judge, but the declaration of the court that the plaintiffs in execution had by their neglect lost the right of detaining him. A judgment declaring such neglect, and pronouncing on the consequences of it, was what the appellee had in view.' The judgment awarding the writ was reversed. The analogy to the case before us is striking.

A very similar case was passed upon by the supreme court of Pennsylvania in Respublica v. Arnold, 3 Yeates, 263. A party who had been indicted for arson, and had given bail for his appearance to answer the indictment, applied, while out under bail, to be discharged by writ of habeas corpus, on the ground of delay in the prosecution. The court held that the statute of Pennsylvania, which was a re-enactment of the habeas corpus act of 31 Charles II., c. 2, spoke of persons committed or detained, and clearly did not apply to a person out on bail. And Mr. Justice YEATES very pertinently inquires, 'Would not a habeas corpus directed to the bail of a supposed offender be perfectly novel?' And SMITH, J., said that the inclination of his mind was that habeas corpus could not lie to the bail.

In a note to the cases of Rex v. Dawes and Rex v. Kessel, 1 Burr. 638, the same principle is stated, though by whom the note is made does not appear. Both these persons were brought before Lord MANSFIELD, in the king's bench, on a rule against the commissioners to enforce an act of parliament to increase the army. In both cases the ground on which the discharge was asked, was that they were illegally pressed into the service. Lord MANSFIELD discharged one because his statement was found to be correct, and refused the other because his statement was not true. The note to the report, apparently in explanation of the fact that they were not brought before the court by writ of habeas corpus, and that no objection was taken to the rule by the commissioner, says: 'Neither of these could have brought a habeas corpus; neither of them was in custody. Dawes had deserted and absconded, and Kessel had been made a corporal. No objection was made by the commissioner to the propriety of the method adopted.' Chief Baron COMYN cites the cases as showing that the parties could not bring habeas corpus, because they were not in custody. 4 Com. Dig. 313, 'Habeas Corpus' B.

While the acts of congress concerning this writ are not decisive, perhaps, as to what is a restraint of liberty, they are evidently framed in their provisions for proceedings in such cases on the idea of the existence of some actual restraint. Section 754, Rev. St., says the application for the writ must set forth 'in whose custody he [the petitioner] is detained, and by virtue of what claim or authority, if known;' section 755, that 'the writ must be directed to the person in whose custody the party is;' section 757, that this person shall certify to the court or justice before whom the writ is returnable, the true cause of the detention; and by section 758 he is required 'at the same time to bring the body of the party before the judge who granted the writ.' All these provisions contemplate a proceeding against some person who has the immediate custody of the party detained, with the power to produce the body of such party before the court or judge, that he may be liberated if no sufficient reason is shown to the contrary.

In case of a person who is going at large, with no one controlling or watching him, or detaining him, his body cannot be produced by the person to whom the writ is directed, unless by consent of the alleged prisoner, or by his capture and forcible traduction into the presence of the court. The record in the present case shows that no such thing was done. The secretary denies that Wales is in his custody, and he does not produce his body; but Wales, on the direction of the secretary, appears without any compulsion, and reports himself to the court and to Justice Cox, as he did to the court-martial. We concur with the supreme court of the district in the opinion that the record does not present such a case of restraint of personal liberty as to call for discharge by a writ of habeas corpus. In thus deciding we are not leaving the appellant without remedy, if his counsel are right in believing the court-martial has no jurisdiction of the offense of which he is charged. He can make that objection to that court before trial. He can make it before judgment after the facts are all before that court. He can make it before the reviewing tribunal. If that court finds him guilty, and imposes imprisonment as part of a sentence, he can then have a writ to relieve him of that imprisonment. If he should be deprived of office, he can sue for his pay and have the question of the jurisdiction of the court which made such an order inquired into in that suit. If his pay is stopped, in whole or in part, he can do the same thing. In all these modes he can have relief if the court is without jurisdiction, and the inquiry into that jurisdiction will be more satisfactory after the court shall have decided on the nature of the offense for which it punishes him than it can before. And this manner of relief is more in accord with the orderly administration of justice and the delicate relations of the two classes of courts, civil and military, than the assumption in advance by the one court that the other will exercise a jurisdiction which does not belong to it.

The judgment of the supreme court of the District of Columbia is affirmed.

title: Wales v. Whitney/Opinion of the Court


text: Talk:Wales v. Whitney/Opinion of the Court


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Richmond Mining Company of Nevada v. Rose

Page 578

''Thos. Wren and Walter H. Smith'', for plaintiff in error.

A. T. Britton, J. H. McGowen, A. B. Browne, and C. J. Hillyer, for defendants in error.

MILLER, J.


text: Talk:Richmond Mining Company of Nevada v. Rose


text:
Richmond Mining Company of Nevada v. Rose/Opinion of the Court

This is a writ of error to the supreme court of Nevada. The case presents a conflict of mining claims. The contest began in the state district court for the county of Eureka, Nevada, by defendants in error filing in that court, as plaintiffs, a petition against the Richmond Mining Company. To save repetition and confusion, the parties will be mentioned in this opinion as they are throughout the record, and as they actually were in the state courts, namely, Rose and others as plaintiffs, and the Richmond Mining Company as defendant. This petition or complaint was filed October 21, 1873. A demurrer was filed to it by the defendants November 1st, and an answer November 26th. The complaint alleged that plaintiffs were, and ever since January 20, 1872, had been, the owners of the UncleSam mining claim, ledge, lode, and deposit of mineral-bearing rock in the Eureka Mining District, county of Eureka, and state of Nevada, on the western slope of 'Ruby Hill.' A minute description of the claim is then given, with courses and distances with reference to the shaft. It is then alleged that the defendant, unjustly and adversely to plaintiffs, claims an estate in fee in said premises, and has filed in the United States land-office an application for a patent thereto, under the name of the 'St. George Ledge and Mine.' Plaintiffs, therefore, pray judgment that defendant be barred from all estate o interest in the premises, or any part thereof, or any right of possession. The answer of defendant, filed November 26, 1873, denies any claim to plaintiffs' location, except as it is covered by their claim, the St. George, which does cover a small part of it. As to so much of plaintiffs' claim as is covered by the St. George it asserts a superior right.

The next pleading is an amended answer of the defendant, which sets out the fact that since the commencement of the suit defendant has acquired title by patent from the United States to all that portion of the mining ground in controversy covered by the application for the patent for the St. George claim. This amended answer was filed April 20, 1881, which is seven years and a half after the first or original answer. In September, 1881, the case was tried before the court without a jury, and a judgment was rendered, from which plaintiffs appealed to the supreme court. That court modified the judgment of the court below materially in favor of plaintiffs, and to that judgment the Richmond Mining Company, the defendant below, prosecutes this writ of error. The judge of the district court of the state made a full finding of the facts in the case on which he rendered judgment, and on those facts the case was heard and decided in the supreme court of the state, and so it must be here. According to this finding the plaintiffs sunk their shaft on a mineral lode, staked and marked out their claim, gave due notice of it, and did the necessary work on it to perfect their right to the mine. In all this they were prior in point of time to the operations of defendant on their St. George claim. It may, therefore, be assumed that unless some of the objections to the claim of plaintiffs set up by defendant are valid, the judgment of the state court must stand. We shall examine these objections in such order as seems convenient.

1. The one much, if not chiefly, relied on is that the claim covers 800 lineal feet of the lode; when, there being only three locators, both by the act of congress and the local laws of that mining district, only 200 feet could be appropriated to each locator, and therefore this excess of 200 feet over the 600, which these three could locate, renders the whole claim void. The law, however, allowed to each locator who was the discoverer of the vein on which the location was made, 200 feet additional for his merit as discoverer. We hardly think it needs discussion to decide that the inclusion of a larger number of lineal feet than 200, renders a location, otherwise valid, totally void. This may occur, and often must occur, by accident of the surveyor, or other innocent mistake, where there exists no intention to claim more than the 200 feet. Must the whole claim be made void by this mistake, which may injure no one, and was without design to violate the law? We can see no reason, in justice or in the nature of the transaction, why the excess may not be rejected and the claim be held good for the remainder, unless it interferes with rights previously acquired. It appears by the facts found that 140 feet of the east end of plaintiffs' location is lost to them by the superior right of the Tip Top claim, leaving only 60 feet of excess; and this, if it were necessary, might be excluded by the government at the other or western end of the claim when it comes to issue the patent; which would leave plaintiffs only the 600 feet in one body, in regular form. This also would interfere with no prior rights, and would give plaintiffs the benefit of their claim to the extent of 200 feet for each locator. But, if it were necessary, we should agree with the supreme court of Nevada that Rose, one of the plaintiffs, was entitled to an additional 200 feet, as discoverer of the vein on which the claim is located. At the time this location was made there were many claims asserted for veins discovered in Ruby Hill, and most of the claimants believed that they were in each instance the discoverer of a new vein or lode. Rose entertained the same belief when he made his claim, and therefore asserted his right to 200 additional feet along this vein as discoverer. It was supposed some five or six years after this, and after Rose and his companions had spent their money and labor in developing their mine, that the whole Ruby Hill deposit was one zone or lode of great width, and it has been held in the Erueka Case, 4 Sawy. 302, that, though there were many small, detached fissures or veins, distinct from each other, composing this zone, it is, within the meaning of the act of congress concerning locations, to be treated as one lode or vein. But Rose, or his vendor, Phillips, was the discoverer of this vein within the lode, and as such asserted in good faith his right to an addition 200 feet. We do not see any reason, within the spirit of the law, where the claim as discoverer injures no one at the time it is made, and it has been made in good faith in the reliance on the actual discovery of one of these constituent veins, and acted on for five years before knowledge of any mistake, it should not justify the claim for the 200 feet as discoverer.

2. The next objection to be noticed is that the court should have held that the patent obtained by defendant from the United States, which covered all that defendant claimed, should prevail, as it conveyed the legal title. This proposition goes to the merits of the case, and, if sould, covers the field of controversy. Its soundness depends on the statutes of the United States, and mainly on sections 6 and 7 of the act of congress of May 10, 1872, (17 St. 92,) which are embodied in the Revised Statutes in sections 2325 and 2326. By the first of these sections the applicant for a patent for a mining claim is required to file with his applicat on the evidence of his right to it, and the register is to cause a publication of the application to be made for 60 days, during which time any adverse claimant to any part of the location described in this application is required to give notice of contest by filing a protest in the land-office.

As no question is raised in this case that defendant filed his claim properly, and plaintiffs made due protest within the 60 days, and as the controversy arises out of the subsequent proceedings under the next section, that is copied here in full:

'Where an adverse claim is filed during the period of publication, it shall be upon oath of the person or persons making the same, and shall show the nature, boundaries, and extent of such adverse claim, and all proceedings, except the publication of notice and making and filing of the affidavit thereof, shall be stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived. It shall be the duty of the adverse claimant, within thirty days after filing his claim, to commence proceedings in a court of competent jurisdiction, to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment; and a failure so to do shall be a waiver of his adverse claim. After such judgment shall have been rendered, the party entitled to the possession of the claim, or any portion thereof, may, without giving further notice, file a certified copy of the judgment roll with the register of the land-office, together with the certificate of the surveyor general, that the requisite amount of labor has been expended or improvements made thereon, and the description required in other cases, and shall pay to the receiver five dollars per acre for his claim, together with the proper fees, whereupon the whole proceedings and the judgment roll shall be certified by the register to the commissioner of the general land-office, and a patent shall issue thereon for the claim, or such portion thereof as the applicant shall appear, from the decision of the court, to rightly possess. If it appears from the decision of the court that several parties are ent tled to separate and different portions of the claim, each party may pay for his portion of the claim, with the proper fees, and file the certificate and description by the surveyor general, whereupon the register shall certify the proceedings and judgment roll to the commissioner of the general land-office, as in the preceding case, and patents shall issue to the several parties according to their respective rights. Nothing herein contained shall be construed to prevent the alienation of the title conveyed by a patent for a mining claim to any person whatever.'

Under this provision plaintiffs filed with the register, on the twenty-fourth of September, 1873, their protest, to which no objection is perceived. On October 21st their complaint was filed in the proper court of Nevada in support of their protest. But they did not pay any docket fee, nor any other fee, and no fees were paid by them until August, 1874. It is argued that, by reason of the failure to pay these fees within the time required by the statute of Nevada, the court acquired no jurisdiction of the case until after the 30 days within which, by the foregoing section, the action was to be commenced; and also that, because no process to appear was issued or served on the defendants within 30 days, the whole proceeding is void. There are several sufficient answers to these suggestions. (1) We do not doubt that within the meaning of the act of congress the plaintiffs did commence proceedings by filing their complaint on the twenty-first of October, eight days inside of the 30 days which it allowed. (2) Defendants, having demurred within a few days after this commencement of the suit, and answered, and gone to trial without raising this objection in the proper time, cannot be permitted to do it now. (3) What constitutes the commencement of an action in a state court, being matter of state law, the decision of that court on this point is not a federal question, and is not therefore reviewable here. These propositions also answer the objection of non-payment of fees to the state, which is purely a matter of state concern, and if it could in any manner avail the defendant, it must have been by motion at the time, and before demurring or answering to the merits. It may also be added that, as the clerk paid the fees into the county treasury in due time, it became simply a matter of debtor and creditor between him and plaintiffs.

A question of more difficulty arises out of the facts that, after the answer of defendant in 1873, the cause was put on the calendar for trial, but no trial was had for several terms by reason of negotiations for a settlement of the controversy; and the last order for continuance was had in March term, 1874, on motion of counsel for defendant. In September, 1876, the defendant produced before the register and receiver of the land-office the certificate of the clerk of the court to the effect that this action had not been placed upon the trial calendar, nor any proceedings been had thereon from the March term, 1874, to the date of the certificate. The section already cited, regulating the proceedings in this class of cases, enacts that, after the protest shall have been duly filed in the land-office, 'all proceedings, except the publication of notice, and making and filing of the affidavit thereof, shall be stayed until thecontroversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived.' The land-officer to whom the defendant presented this certificate of the clerk, holding it to be sufficient evidence that 'the adverse claim had been waived,' proceeded to prepare the necessary papers on which the commissioner issued the patent, whose effect is now under consideration.

It must be admitted that if the land-officer had the right, while this action was pending in the courts, never dismissed, and yet undecided, to determine that plaintiffs' claim, adverse to defendants, had been waived, and to resume action in the ca e on that decision, the court was in error in holding the patent void as to the interfering claims. For, though the court of first jurisdiction finds facts sufficient to show that this delay was not the fault of plaintiffs, and in no way implied a waiver of their claim, these facts could only be shown probably in some proceeding directly to impeach the patent, or set it aside. At all events, if the land department had any right to decide that there was a waiver while the action was still pending and undecided, the presumption that it decided rightly must be conclusive in an action at law, and if this action is of that character it must be conclusive here. Whether this patent can be thus impeached under the course of proceedings in the Nebraska courts, we need not inquire here, for we are of opinion that the land-officers had no such power.

Looking at the scheme which this statute presents, and which relates solely to securing patents for mining claims, it is apparent that the law intended, in every instance where there was a possibility that one of these claims conficted with another, to give opportunity to have the conflict decided by a judicial tribunal before the rights of the parties were foreclosed or embarrassed by the issue of a patent to either claimant. The wisdom of this is apparent when we consider its effect upon the value of the patent, which is thereby rendered conclusive as to all rights which could have been asserted in this proceeding, and that it enabled this to be done in the form of an action in a court of the vicinage, where the witness could be produced, and a jury, largely of miners, could pass upon the rights of the parties under instruction as to the law from the court. It is in full accord with this purpose that the law should declare, as it does, that when this contest is inaugurated the landofficers shall proceed no further until the court has decided, and that they shall then be governed by that decision; to which end a copy of the record is to be filed in their office. They have no further act of judgment to exercise. If the court decides for one party or the other the land department is bound by the decision. If it decides that neither party has established a right to the mine or any part of it, this is equally binding as the case then stands. With all this these officers have no right to interfere. After the decision they are governed by it. Before the decision, once the proceeding is initiated, their function is suspended.

What, then, is meant by the phrase, 'all proceedings shall be stayed until the controversy is settled or decided by a court, of competent jurisdiction, or the adverse claim waived?' We can imagine several ways in which it can be shown that the adverse claim is waived without invaliding the jurisdiction of the court while the case is still pending. One of these would be the production of an instrument signed by the contestant, and duly authenticated, that he had sold his interest to the other party, or had abandoned his claim and his contest. Or, since the act says that all proceedings shall be stayed in the land-office from the filing of the adverse claim, and not from the commencement of the action in the court, within 30 days, such delay of 30 days is made by the statute conclusive of a waiver. A filing in the records of the court by the plaintiff of a plea that he abandons his case or waives his claim might authorize the land-office to proceed. But all these are very far removed from the assumption by that officer that, because there have been delays in the court, plaintiff has waived his claim. It is for the court, while it has jurisdiction of the case, that is, until it is decided or dismissed, to pass upon the rights of the parties,-to decide whether either party has lost his right by laches or failure to proceed with diligence, and to act accordingly. If defendant in this case was dissatisfied with the delay, he had all the remedies usual in courts in such cases. A motion to dismiss or want of prosecution would have relieved him if he was entitled to treat the case as abandoned. Or he could, in all the ordinary ways, require the plaintiff to go to trial or show good cause for continuance. But, while all this was in the hands of the court, with full power to do what was necessary to establish judicially the rights of the parties, the land-office could not resume control of the case upon the idea which might be there entertained of an implied waiver of the claim from delay in the court. It had no power over the case, and its action and its patent, so far as it affects the rights of plaintiffs, are void. The rejection of the patent as influencing the judgment of the court was not therefore an error.

3. Another error is assigned, growing out of the fact that the defendant, during the time this litigation was pending, located another claim, called the Victoria, on this lode, outside of and parallel with the St. George. Without notice to plaintiffs, and with no opposition, they procured a patent for this claim, and set it up against plaintiffs on the trial of this action. It is insisted that, though this claim does not come on the surface in conflict with the Uncle Sam location, it is in the same vein, and gives the right to pursue that vein under the Uncle Sam claim, and, being a patent about which there was no contest, it must prevail in this action. But without deciding the question of their right to pursue the vein under ground as against a prior valid location, by reason of the earlier date of patent, we concur with the supreme court that the right to that part of this very vein being in contest between these parties in reference to the Uncle Sam and the St. George claims, the decision of this controversy cannot be rendered nugatory by the introduction of a new claim by one of the parties, whose claim of right from the government for this same location is initiated while this litigation is going on. The parties were all in court. The subject-matter was before the court. The thing to be decided was the right to the conflicting claims to this lode. This was within the jurisdiction of the court, and any patent issued to one, or the other, or both these parties, under this proceeding for this property, must relate back to the date of their claims, and overide the new patent. This result cannot be defeated by producing this new patent to destroy it. The claim was initiated by a party to this suit pendente lite, and must abide the result of the litigation in this case. These are the principles which control the decision of the case. There may be others suggested by counsel which are not here specially noticed, but they are not deemed sufficient to vary the result.

The judgment of the supreme court of Nevada is affirmed.


text: Talk:Richmond Mining Company of Nevada v. Rose/Opinion of the Court