text:
Cushing v. Laird Foster/Opinion of the Court

This is a libel in admiralty, filed in the district court for the southern district of New York by John N. Cushing and others against John Laird, Jr., to recover damages for the destruction of the libelants' vessel, the Sonora, by the Alabama. The defendant was not found and never appeared in the cause, and his credits and effects were attached in the hands of Foster & Thomson, garnishees.

The garnishees answered that they had in their hands a fund amounting to $31,441.62, known as the proceeds of the steamer Wren, which was the property of Charles K. Prioleau, and not of Laird. Upon the trial of the issue raised by this answer, the district court, in April, 1873, adjudged that the fund belonged to Laird, and ordered the garnishees to pay it into court. See 6 Ben. 408. From that decree the garnishees appealed to the circuit court. The district court afterwards, in September, 1873, entered a decree in favor of the libelants against Laird for the sum of $143,298.70, and costs, 'and that the libelants have execution thereon, to satisfy this decree, against the property of the said respondent, and especially against his property, credits, and effects in the hands of Foster & Thomson, garnishees.' From this decree also the garnishees appealed to the circuit court. The circuit court dismissed the first appeal, and retained the cause for hearing on the second appeal only; and, upon consideration, entered a decree by which it was adjudged that the fund in the hands of the garnishees was not the property of Laird, and could not be subjected to the payment of the decree against him, the attachments against the garnishees were discharged, and both decrees of the district court, so far as affected them and the fund in their hands, were reversed, with costs. See 15 Blatchf. C. C. 219. The findings of fact by the circuit court are printed at length in 15 Blatchf. C. C. 220-236, and, so far as they are material to be stated, are as follows:

The steamer Wren was built at Birkenhead, England, in 1864,     by Laird Bros., and was registered on the twenty-fourth of      December, 1864, at Liverpool, in accordance with the laws of      Great Britain, in the name of John Laird, Jr., as owner; a      certificate of the registry was issued in due form; the      vessel sailed from Liverpool, having the certificate on board      as part of her ship's papers, and it did not appear that she      ever again entered a British port. On the third of January,     1865, after she had left Liverpool, Laird executed to Charles      K. Prioleau, of Liverpool, a member of the firm of Fraser,      Trenholm & Co., for the consideration of £15,450, a bill of      sale of the vessel, which, on the first of May, 1865, was      duly entered at the custom-house in Liverpool, and the vessel      registered in the name of Prioleau as owner. On the     thirteenth of June, 1865, on the high seas, on a voyage from      Havana to Liverpool, by the way of Halifax, Nova Scotia, some      of the crew took forcible possession of the vessel, overcame      her officers, ran her into Key West, and there delivered her      to the naval authorities of the United States.

On the sixteenth of June, 1865, the attorney of the United States for the southern district of Florida filed in the     district court for that district an information against the      vessel as prize of war. She was taken into the custody of the     marshal, and a monition issued to all persons interested to      appear on the twenty-seventh of June and show cause against a      decree of condemnation. On the twenty-sixth of June, Edward     C. Stiles, master of the vessel, appeared in court and filed      a claim, stating that he was the master, and, as such, the      lawful bailee of the vessel, and claimed the same for the      owner thereof; and that Laird, a British subject, residing      the England, was the true and bona fide ower of the vessel,      and that no other person was the owner thereof, as appeared      by her register in the possession of the court, and as he was      informed and believed; denying that she was a prize of war,      and praying restitution and damages.

The only certificate of registry found on board was that     granted on the twenty-fourth of December, 1864, upon which      were noted, at the British consulate in Havana, changes of      masters on the twenty-fourth of March and the tenth of June,      1865, and at the foot of which was the following: 'Note. A     certificate of the registry granted under the merchant      shipping act, 1854, is not a document of title. It does not     necessarily contain notice of all changes of ownership, and      in no case does it contain an official record of any mortgage      affecting the ship.'

On the seventeenth, nineteenth, and twentieth of June, 1865,     the depositions of the master and other officers of the      vessel were taken in preparatorio, and on the twenty-seventh      of June the court proceeded to hear the case upon the      allegations and pleadings, the depositions taken in      preparatorio, and the papers, letters, and writings found on      board the vessel. On the twenty-ninth of June the court, of     its own motion, directed the prize commissioner to take      immediately the testimony of the officers, and of any other      witnesses who might be produced by the claimants from persons      on board the vessel, upon specified interrogatories; of two      persons named, and any others on board produced by the      captors, upon some of the same interrogatories; and of any      witnesses, produced either by the captors or the claimants      from persons not on board, upon certain other      interrogatories; and allowed two days to the parties to      produce witnesses. Under this order testimony was taken; and     on the third of July the court resumed the hearing upon the allegations and      pleadings, the depositions taken in preparatorio, the papers      found on board, and the depositions taken under the order      allowing further proof.

The court, on the eighth of July, announced its opinion,     condemning the vessel, but, on account of exceptions taken to      some rulings, delayed making a decree in form until the      fifteenth of August, when it was duly entered, reciting that      a claim had been interposed by the master in behalf of Laird,      that the case had been heard as aforesaid, and that it      appeared to the court that the Wren was, at the time of      capture, the property of enemies of the United States; and      adjudging her to be condemned and forfeited to the United      States as lawful prize of war, and to be sold by the marshal,      and the proceeds to be deposited with the assistant treasurer      of the United States, subject to the order of the court. From     that decree the claimant, on the same day, appealed to this      court. The vessel was afterwards sold, and the proceeds of     the sale deposited with the assistant treasurer.

Prioleau still resided in England, and it did not appear that     he had any actual knowledge of the proceedings for the      condemnation until after the entry of the decree. He     afterwards retained Foster & Thomson, the garnishees in this      case, attorneys and counselors at law in the city of New      York, to do whatever might be necessary for the protection of      his interests; and they procured a copy of the record of the      district court and had the appeal docketed in this court,      employed additional counsel, who argued the case here on the      record sent up. No additional testimony was taken, and no     change in the pleadings made or applied for. Upon the     argument in this court, the counsel for the United States      insisted that it appeared from the evidence that the vessel,      at the time of the capture, was the public property of rebel      enemies, and, in support of this position, referred to the      testimony of witnesses who swore that Fraser, Trenholm & Co. were her owners. The counsel for the appellant insisted that     there was not a particle of evidence that she was ever      enemies' property, but that the evidence was conclusive that      she was at all times the property of Laird, a British      neutral.

of the district court, and remanded the cause, with  directions to restore the vessel to the claimant,   without costs. Mr. Justice NELSON, in delivering the  opinion, said that the only question in the case was   whether the vessel was the property of enemies of the   United States; and, in discussing this question,   observed that upon the proofs that the claimant built   the vessel and put the master in command in this, her   first voyage, the presumption would seem to be very   strong, if not irresistible, (nothing else in the case,)   that he continued the owner for the short period of six   months that elapsed after she was built and before the   seizure took place; that in addition to this she was in   command of a master claiming to represent Laird as   owner; that these acts, in connection with the registry,   afforded strong evidence that the title of the vessel   was in the claimant; and that, although it was not   unnatural to suspect, from the surrounding facts and   circumstances, that the so-called confederate states or   their agents had some interest in or connection with   her, there was no sufficient legal proof that they owned   the vessel.

After that decree of this court, Foster & Thomson made and     sent to Prioleau a draft of a power of attorney to be      executed by Laird and by Stiles and in due time received from      Prioleau the power so executed, authorizing Foster & Thompson      to receive from the United States, or from any officer or      depo itary thereof, restitution of the proceeds of the sale      of the Wren; and obtailed a mandate from this court, and sent      it, together with a copy of their authority, to the attorney      of the United States for the southern district of Florida,      requesting him to see the appropriate decree entered and a      draft upon the assistant treasurer in New York for the      payment of the money to their order transmitted to them, and      also employed F. A. Dockray, an attorney in Florida, to aid      them in procuring the money from the registry of the court;      and did not, in any of their letters to the district attorney      or to Dockray, mention that any other person than Laird was      or pretended to be the owner of the fund in court.

Some of the libelants in this case having filed a libel in     that court to recover for the wrong complained of in the      present suit, with a prayer for an attachment of the fund in the      registry, and an attachment having been made accordingly, an      arrangement was made between Foster & Thomson and J. L. Ward,      proctor for the libelants, with a view of transferring the      litigation to New York for the convenience of the parties,      and of having the fund transmitted to Foster & Thomson, in      New York, as authorized attorneys in fact of Laird, to be      held by them long enough to enable process to be served upon      them in behalf of the libelants. Pursuant to that     arrangement, Dockray, acting under his employment by Foster &      Thomson, appeared in behalf of Laird in the libel filed      against him in Florida, and claimed the proceeds of the Wren      in the registry of that court, and exhibited the mandate of      this court; and upon his motion, with Ward's consent, the      attachment was dismissed, and a decree entered, by which,      after reciting the decree of this court reversing the decree      of condemnation and ordering the property to be restored to      the claimant, it was ordered, adjudged, and decreed that the      proceeds of the Wren, after deducting costs, charges, and      expenses, and amounting to $31,441.62, on deposit with the      assistant treasurer of the United States at New York, be paid      to said John Laird, claimant, and, it appearing that Foster &      Thomson were his lawfully-authorized attorneys, that said      proceeds be paid to them. That sum was accordingly     transmitted to Foster & Thomson, and is the matter in      controversy in this case. In the course of the negotiations     which preceded that arrangement, Ward was in no manner given      to understand that there was any ownership or claim of      ownership of the fund, other than such as appeared on the      face of the record and the power of attorney filed with the      mandate, and in point of fact he did not know or have any      reason to believe that Foster & Thomson were acting in any      other capacity than as attorneys for Laird and Stiles,      representing their several interests, as disclosed by the      record in this court. Foster & Thomson never had any personal     communication with Laird, nor received any instructions from      him, but were actually employed by Prioleau, and communicated      with Laird through him only.

The libelants requested the circuit court to make the following conclusions of law:

'(1) The prize court in Florida condemned the Wren as enemy property. (2) The supreme court     in reversing that decree decided that the Wren was not enemy      property, but was property of John Laird, Jr. (3) the      garnishees, acting for Prioleau, procured the supreme court      to make that decision. (4) Prioleau is chargeable with notice     of all the proceedings in the prize court and in the supreme      court. (5) The proceeds of the Wren in the prize court were     subject to the attachment served upon them in the district      court of Florida at the time when the consent of the      libelants' proctor to the dissolution of such attachment was      obtained. (6) The decision of the supreme court binds the     garnishees herein and Prioleau, and is conclusive against      them, and cannot be re-examined in the suit. (7) Prioleau is     estopped from denying in this suit that John Laird, Jr., was      the owner of the Wren, and of the proceeds thereof when the      same were attached herein. (8) The garnishees are estopped     from setting up that these funds in their hands are not      subject to the attachment in this suit; and also from setting      up that John Laird, Jr., was not the owner thereof, or that      Prioleau was the owner thereof when the attachment herein was      served.'

The circuit court declined to make the conclusions of law proposed by the libelants, and made and filed the following conclusions of law:

'(1) As Prioleau was in fact the owner of the Wren at the     time of her capture, he was in law the owner of the proceeds      in the registry of the court after her sale. (2) The sentence     of acquittal in the prize cause relieved the fund in court      from all claim on the part of the captors, and left the      owners free to assert their rights as against the world. (3)     The decree in the prize suit did not adjudge the fund to      Laird as owner, or deprive Prioleau of his interest. (4) The     delivery of the fund to Foster & Thomson, as agents of Laird,      placed them in the same situation in respect to it that would      have been occupied by Laird if it had been put into his hands      instead of theirs. (5) As Laird was not the real, but only     the apparent, owner of the fund, he would have taken it, if      payment had been made to him, in trust for Prioleau. (6)     Foster & Thomson, as his agents, hold it upon the same trust,      and are not accountable to the libelants in this action. (7)     The decree of the district court requiring Foster & Thomson      to pay the find into court, and subjecting it to the payment of the amount      found due the libelants from Laird, was wrong and should be      reversed.'

The circuit court allowed a bill of exceptions tendered by the libelants, in which they excepted to each of its conclusions of law, and to its refusal to make each of the conclusions of law proposed by them.

The libelants appealed from the last decree of the circuit court in favor of the garnishees; the garnishees appealed from the earlier decree of that court, dismissing their appeal from the first order of the district court against them; and the two appeals have been argued together.

In a court of admiralty, as in a court of common law, a process of foreign attachment is auxiliary and incidental to the principal cause. Second Rule of Practice in Admiralty, 3 How. 3; Manro v. Almeida, 10 Wheat. 473; Atkins v. Fiber Disintegratiny Co. 18 Wall. 272. Neither the principal defendant nor the garnishees can appeal until after a final decree against them. The first decree against these garnishees, ascertaining their liability, was interlocutory only, and, if the libelants had ultimately failed to recover judgment against the principal defendant and execution against the garnishees, would have been of no avail to the libelants, and of no effect against the garnishees. The appeal of the garnishees from this interlocutory order of the district court was therefore rightly dismissed by the circuit court, and the order of dismissal must be affirmed.

Upon the merits of the case, as presented by the appeal of the libelants from the final decree of the circuit court in favor of the garnishees, this court, after full consideration of the elaborate arguments of counsel, is satisfied of the correctness of that decree upon principle and authority.

Prize courts are not instituted to determine civil and private rights, but for the purpose of trying judicially the lawfulness of captures at sea, according to the principles of public international law, with the double object of preventing and redressing wrongful captures, and of justifying the rightful acts of the captors in the eyes of other nations. The ordinary course of proceeding in prize causes is ill adapted to the ascertainment of controverted titles between individuals. It is wholly different from those which prevail in municipal courts of common law or equity, in the determination of questions of property between man and man.

In Lindo v. Rodney, 2 Doug. 613, 614, Lord MANSFIELD said:

'The end of a prize court is to suspend the property till     condemnation; to punish every sort of misbehavior in the      captors; to restore instantly, velis levatis, (as the books      express it, and as I have often heard Dr. Paul quote,) if,      upon the most summary examination, there don't appear a      sufficient ground; to condemn finally if the goods really are      prize, against everybody, giving everybody a fair opportunity      of being heard. A captor may, and must, force every person     interested to defend, and every person interested may force      him to proceed to condemn, without delay.'

From the necessity of the case, and in order to interrupt as little as may be the exercise of the belligerent duties of the captors, or the voyage and trade of the captured vessel if neutral, the proceedings are summary. The libel is filed as soon as possible after the prize has been brought into a port of the government of the captors, and does not contain any allegation as to title, nor even set forth the grounds of condemnation, but simply prays that the vessel may be forfeited to the captors as lawful prize of war. The monition issued and published upon the filing of the libel summons all persons interested to show cause against the condemnation of the property as prize of war, and is returnable within a very few days,-too short a time to allow of actual notice to, or appearance or proof in behalf of, owners residing abroad.

The law of nations presumes and requires that in time of war every neutral vessel shall have on board papers showing her character, and shall also have officers and crew able to testify to facts establishing her neutrality. The captors are therefore required immediately to produce to the prize court the ship's papers, and her master, or some of her principal officers or crew, to be examined on oath upon standing interrogatories, and without communication with or instruction by counsel. The cause is heard in the first instance upon these proofs, and they show clear ground for condemnation or for acquittal, no further proof is ordinarily required or permitted. If the evidence in preparatorio shows no ground for condemnation, and no circumstances of suspicion, the captors will not ordinarily be allowed to introduce further proof, but there must be an acquittal and restitution. The Aline & Fanny, Spinks, Prize Cas. 322, and 10 Moore, P. C. 491; The Sir William Peel, 5 Wall. 517, 534. When further proof is ordered, it is only from such witnesses and upon such points as the prize court may in its discretion think fit.

It is doubtless true, as said by Chief Justice MARSHALL in the passage cited by these libelants from Jennings v. Carson, 4 Cranch, 2, 23, that 'the proceedings of that court are in rem, and their sentences act on the thing itself. They decide who has the right, and they order its delivery to the party having the right. The libelant and the claimant are both actors. They both demand from the court the thing in contest.' But the point there adjudged was that, pending the proceedings, the property was in the possession of the court, and not left in the possession of either party, without security; and there is no intimation that a claimant, who proves his right as against the captors to have the possession of the vessel restored to him, must also prove his title in the vessel as against other persons not before the court.

The prize court will not, indeed, permit a stranger to dispute the right of the captors, and generally requires a claim to be made by or in behalf of the general owner, and upon oath. But the claimant is required to give evidence of a title to the property, not for the purpose of having that title established by the decree of the prize court, but only for the purpose of showing that he is acting in good faith, and is entitled to contest the question of prize or no prize, and to have restitution of possession in case of acquittal. From the necessity of the case, the claim is often put in by the master on behalf of the owner, and it is sufficient if the master's oath is to belief only.

By the practice prevailing in England at the time of the declaration of independence, and for some years before and after, the master often put in a general claim for himself and all others interested, without naming them. The Hendric & Alida, Marriott, 96, 99, 123; The Prosperite, Id. 164; The Jungfre Maria, Id. 273, 283. In the report made in 1753 by Sir GEORGE LEE, judge of the prerogative court, Dr. PAUL, advocate general, Sir DUDLEY RYDER, attorney general, and afterwards chief justice, and Mr. MURRAY, solicitor general, and afterwards Lord MANSFIELD, which was embodied in the famous answer to the Prussian memorial, the only requisite mentioned of a claim of ship or goods is that it 'must be supported by the oath of somebody, at least as to belief.' 1 Collectanea Juridica, 129, 135. Sir WILLIAM SCOTT and Sir JOHN NICHOLL, in their letter to Chief Justice JAY, when minister to England in 1794, stating the general principles of proceeding in prize causes in British courts of admiralty, observed that those principles could not be more correctly or succinctly stated than in an extract which they gave from that report, including the passage just quoted; and, in describing the measures which ought to be taken by the neutral claimant, said: 'The master, correspondent, or consul applies to a proctor, who prepares a claim, supported by an affidavit of the claimant, stating briefly to whom, as he believes, the ship and goods claimed belong, and that no enemy has any right or interest in them.' Wheat. Captures, 311, 314.

It has often been said by judges of high authority that the claimant has the burden of proving his title to the property. But in the leading cases in which this was said there was but a single claimant, and either, as in The Walsingham Packet, 2 C. Rob. 77, 87, and The Bremen Flugge, 4 C. Rob. 90, 92, the words 'support his title' were used as equivalent to the general expression 'prove the neutrality of the property,' (Croudson v. Leonard, 4 Cranch, 434, 437; The Mary, 9 Cranch, 126, 146; Story's note, 1 Wheat. 506; The Amiable Isabella, 6 Wheat. 1, 77;) or else the neutral claimant asserted a title in property appearing to have once belonged to an enemy, as in The Rosalie & Betty, 2 C. Rob. 343, 359; The Countess of Lauderdale, 4 C. Rob. 283; and The Soglasia, 2 Spinks, 101; S.C.. Spinks, Prize Cas. 104. And in The Maria, 11 Moore, P. C. 271, 286, 287, Lord Chief Justice COCKBURN, delivering the judgment of himself, Lords Justices KNIGHT, BRUCE, and TURNER, Sir EDWARD RYAN, Sir JOHN DODSON, and Mr. Justice MAULE, reversing upon the facts a decree of Dr. LUSHINGTON, emphatically declined to assent to the application of the rule to a case in which the property appeared to be neutral, although not shown to belong to the claimant.

The proceedings of a prize court being in rem, its decree, as is now universally admitted, is conclusive, against all the world, as to all matters decided and within its jurisdiction. Williams v. Armroyd, 7 Cranch, 423; Bradstreet v. ''Neptune Ins. Co.'' 3 Sumn. 600. But it does not, as Chief Justice MARSHALL observed, 'establish any particular fact, without which the sentence may have been rightfully pronounced.' If the vessel is condemned as prize, and sold by order of the court, the decree of condemnation and sale is conclusive evidence of the lawfulness of the capture and of the title of the purchaser. But if, as is usual, it does not state the ground of condemnation, it is not even conclusive that the vessel is enemy's property, for it may have been neutral property condemned for resisting a search, or attempting to enter a blockaded port; and, 'of consequence, this sentence, being only conclusive of its own correctness, leaves the fact of real title open to investigation.' Maley v. Shattuck, 3 Cranch, 458, 488.

So a decree of acquittal and restitution conclusively determines as to all the world that the vessel is not lawful prize of war. The Apollon, 9 Wheat. 362; Magoun v. ''New England Ins. Co.'' 1 Story, 157. But, as it operates in rem, it is not invalidated by the fact that pending the proceedings the sole claimant has died and his representatives have not been made parties. Penhallow v. Doane, 3 Dall. 54, 86, 91; Story's note, 2 Wheat. App. 68; 3 Phill. Int. Law, § 492. It does not establish the title of any particular person, unless conflicting claims are presented to the court and passed upon. In Penhallow v. Doane, Mr. Justice IREDALL said:

'In case of a bona fide claim, it may appear to be good by     the proofs offered to the court, but another person living at      a distance may have a superior claim which he has no      opportunity to exhibit. It is true, a general monition     issues, and this is considered notice to all the world; but,      though this be the construction of the law from the necessity      of the case, it would be absurd to infer in fact that all the      world had actual notice and therefore no superior claimant to the one before the      court could possibly exist.' 3 Dall. 91.

When no other person interposes a claim, restitution of ship or goods is ordinarily decreed to the master as representing the interests of all concerned, or to the person who by the ship's papers or by the master's oath appears to be the owner. As said by Mr. Justice STORY, and repeated by Sir ROBERT PHILLIMORE: 'The property, upon a decree of restitution, may be delivered to the master as agent of the shipper, for in such case the master is agent of the shipper, and is answerable to him.' 2 Wheat. App. 70; 3 Phill. Int. Law, § 495. See letter of Sir WILLIAM SCOTT and Sir JOHN NICHOLL to Chief Justice JAY, above cited; and Rose v. Himely, 4 Cranch, 241, 277, in which Chief Justice MARSHALL said:

'Those on board a vessel are supposed to represent all who     are interested in it, and if placed in a situation which      requires them to take notice of any proceedings against a      vessel and cargo, and enables them to assert the rights of      the interested, the cause is considered as being properly      heard, and all concerned are parties to it.'

Even when conflicting claims of title are put in, the prize court will not ordinarily determine between them, unless one of the claimants is a citizen of its own country.

Thus, in a case in which an American vessel was taken by the Danes and captured from them by an English ship of war, and brought into the high court of admiralty as prize, the master made affidavit that he had previously sold her, under the pressure of necessity, by reason of injuries from perils of the sea, to one Ormsby, an American, from whom the Danes took her; and separate claims were presented in behalf of Ormsby, and of Coit and Edwards, also Americans, who were admitted to be the original owners, and whose names appeared as such in the register and other papers of the ship. Sir WILLIAM SCOTT, after observing upon the circumstances attending the sale by the master, said:

'But the court is not called upon to determine upon the     validity of the title, which may be matter of discussion      hereafter in the American courts. It is only required to give     possession.' 'The ship's register, and all the papers, point      to Coit and Edwards as the owners of the vessel, * and I have no hesitation in restoring the possession to      them.' 'I therefore restore the possession of the vessel to      the persons appearing by the register and ship's papers to be      the owners, without prejudice to such rights as Mr. Ormsby,      or any other persons, may have acquired by purchase or      otherwise, as shall appear to the proper court of justice in      America.' The Fanny & Elmira, Edw. Adm. 117, 120, 121.

In The Lilla, 2 Spr. 177, affirmed on appeal, 2 Cliff. 169, an American vessel owned by Maxwell, a citizen and resident of Maine, was taken by a confederate privateer and carried into Charleston, South Carolina, and there condemned and sold by a tribunal, acting under the assumed authority of the confederate states, to persons who took her to England, where she was registered in the name of one Bushby, after which she was captured on the high seas and brought in by a United States gun-boat. Claims were presented by Maxwell and by Bushby, and after hearing counsel in behalf of each claimant, as well as of the captors, the court decided against the claim of Bushby, and ordered the vessel to be restored to Maxwell, on condition of payment of salvage to the recaptors. But the opinion of Judge SPRAGUE shows that jurisdiction over the question of title was exercised only to protect the rights of one of our own citizens against foreigners to property in the possession of the court, and that if the question of ownership were wholly between foreigners, the court might refuse to decide it. 2 Sprague, 187.

As incidental to the question of the lawfulness of the capture, prize courts have doubtless jurisdiction to determine the liability of the captors for damages, expenses, and costs occasioned by their own wrongful acts, or by the fault of those in charge of the prize while in their custody. Le Caux v. Eden, 2 Doug. 594, 610; The Siren, 7 Wall. 152; 1 Kent, Comm. 359. But the learning and research of counsel have failed to furnish a single case where there was but one claimant of property libeled as prize of war, in which a prize court has undertaken to pass upon the validity of his title as against other persons, or in which its decree has been set up in a subsequent suit as an adjudication of that title as between him and them.

All the proceedings in the case of The Wren were according to the usual practice in prize causes. The libel was filed within three days, and the monition was returnable, and the hearing upon the evidence in preparatorio had, within 14 days, after the capture. The only claim put in was by the master under oath, stating positively that he was the master and as such lawful bailee of the vessel, and claimed her for the owner. The further statement in the claim that Laird, and no other person, was the true and bona fide owner of the vessel, was only upon information and belief, and reference to her register in the possession of the court. That register was dated at Liverpool six months before, showed Laird to have been the owner, and had at its foot a memorandum stating that by the Merchant Shipping Act 1854, (St. 17 & 18 Vict. c. 104,) it was not a document of title, and did not necessarily contain notice of all changes of ownership. The court ordered further proof from certain witnesses on specified interrogatories to be taken forthwith, and, after a final hearing upon the whole evidence, announced, within 22 days from the filing of the libel, its decree of condemnation, which was afterwards entered in form.

The decree of this court on appeal merely reversed the decree of condemnation and directed the vessel to be restored to the claimant. The references in the argument of counsel before this court, and in its judgment delivered by Mr. Justice NELSON, to the evidence upon the question whether she was the property of Laird or of other persons, were only by way of assisting in the determination of the sole question at issue, whether she was or was not enemy's property and therefore lawful prize. The Wren, 6 Wall. 582. The final decree of the district court recited the decree and mandate of this court, and in conformity therewith ordered the proceeds to be paid to Laird, the person appearing to be the owner by the ship's papers and according to the best information and belief of the master, as stated in the claim put in by him. Neither the decree of this court nor the subsequent decree of the district court determined, or assumed to determine, any question of title as between Laird and Prioleau, or other persons who had not appeared in the cause nor contested Laird's claim.

The libelants, in this suit against Laird personally, and against Foster & Thomson as his garnishees, have the burden of proving that the fund in the hands of the garnishees belongs to Laird. There is nothing in the acts of Prioleau, or of the garnishees as his attorneys, which estops the garnishees to deny that fact and to put the libelants to proof of it. He had no knowledge of the prize proceedings until after the decree of condemnation. Having a title to the vessel under the bill of sale from Laird, he prosecuted the appeal from that decree in Laird's name and by Laird's authority. Whatever effect Prioleau's omission to disclose his own interest might have had, if discovered, upon the issue in the prize cause, or might have by way of estoppel, if the present suit were brought by the United States, he has done nothing which Laird or Laird's creditors have been misled by or have acted upon. The title in the vessel, as between Laird and Prioleau, was in Prioleau. The garnishees, being attorneys both of Laird and Prioleau, received the proceeds in the name of Laird, but for Prioleau. There being no estoppel, either of record or in pais, the libelants fail to prove that the fund belongs to Laird, and cannot, therefore, maintain their attachment.

This case does not present the question whether, if Prioleau were plaintiff or actor, seeking affirmative relief against Laird or against these libelants, he must be considered as standing in such a position, by reason of his having concealed from the prize court his own title to the vessel, and of his having permitted restitution to be decreed to Laird, that the court would decline to assist him, upon the principle applied in De Metton v. De Mello, 12 East, 233, and 4 Campb. 420.

Decrees affirmed.

BLATCHFORD, J., did not sit in this case, and took no part in its decision.


text: Talk:Cushing v. Laird Foster/Opinion of the Court

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


text:
Schmidt v. Badger

C. W. Hornor, for appellant in error.

''Sol. Gen. Phillips'', for defendant in error.

BLATCHFORD, J.

title: Schmidt v. Badger


text: Talk:Schmidt v. Badger

title: Talk:Schmidt v. Badger


text:
Schmidt v. Badger/Opinion of the Court

This suit was brought to recover back customs duties paid under protest on glass bottles containing beer and ale, imported from abroad. The collector exacted a duty of 30 per cent. ad valorem on the bottles. The plaintiffs contended that as a duty of 35 cents per gallon had been paid on the contents of the bottles, such duty covered all the duty which the law imposed on the bottles. There was a verdict for the defendant under a charge by the court to the jury that, although a duty of 35 cents per gallon had been paid on the contents of the bottles, a further duty of 30 per cent. ad valorem was chargeable on the bottles. After a judgment for the defendant the plaintiffs sued out this writ of error. The importations in question were made in February and March, 1881. In order to a clear understanding of the statutory provisions in force at that time it will be useful to trace the course of legislation on the subject.

It was enacted by section 3 of the act of January 29, 1795, (1 St. at Large, 411,) that the duty on any wines imported into the United States shall not be less than 10 cents per gallon, 'and that the bottles in which any liquor is imported shall be subject to the payment of the like duty as empty bottles.' By section 8 of the act of August 30, 1842, (5 St. at Large, 559,) duties were imposed on various liquors and wines, in casks and in bottles, at so much per gallon, the duty on importations in casks being never higher than on importations in bottles, and generally much lower, and it was enacted that 'when wines are imported in bottles, the bottles shall pay a separate duty.' The same section provided that ale, porter, and beer in bottles should pay 20 cents per gallon, and otherwise than in bottles, 15 cents per gallon. The same act imposed a duty on bottles. By section 6 of the act of March 2, 1861, (12 St. at Large, 180,) it was provided that 'brandies or other spirituous liquors may be imported in bottles, when the package shall contain not less than one dozen, and all bottles shall pay a separate duty, according to the rate established by this act, whether containing wines, brandies, or other spirituous liquors.' The same section imposed a duty on ale, porter, and beer in bottles, of 25 cents per gallon, and otherwise than in bottles, 15 cents per gallon. The seventeenth section of the same act imposed a duty of 30 per cent. ad valorem on 'all glass bottles or jars filled with sweetmeats, preserves, or other articles.' Here was a duty on the bottles containing liquors, wines, or ales, as well as on the contents. By section 2 of the act of June 30, 1864, (13 St. at Large, 203,) it was provided that the separate duty on bottles 'containing wines, brandies, or other spirituous liquors subject to duty' should be two cents each; and that the duty on ale, porter, and beer in bottles should be 35 cents per gallon, and otherwise than in bottles, 20 cents per gallon. By section 9 of the same act, a duty of 40 per cent. ad valorem was imposed on 'all manufactures of glass * *  * not otherwise provided for, and all glass bottles or jars filled with sweetmeats, or preserves, not otherwise provided for.' Here was a duty on the bottles containing liquors and ales, in addition to the duties on their contents, although the duty on bottles containing ale was expressed as an ad valorem duty on manufactures of glass, not otherwise provided for, and the duty on bottles containing liquors was expressed as a duty of two cents each. By section 21 of the act of July 14, 1870, (16 St. at Large, 262,) the same rate of duty per gallon was imposed on wines imported in bottles as on wines imported in casks, and a duty of three cents in addition was imposed on each bottle; and the same section further provided that 'wines, brandy, and other spirituous liquors imported in bottles shall be packed in packages containing not less than one dozen bottles in each package, and all such bottles shall pay an additional duty of three cents for each bottle.' Under this act it was held by this court, in De Bary v. Arthur, 93 U.S. 420, that each bottle containing champagne wine was subject to a duty of three cents in addition to the duty on the champagne wine.

We now come to the Revised Statutes, under which the duties in the present case were collected. Schedule D of section 2504 imposes the following duties: 'Ale, porter, and beer in bottles, 35 cents per gallon; otherwise than in bottles, 20 cents per gallon.' This is taken from section 2 of the act of June 30, 1864. The same schedule contains the foregoing provisions from the act of July 21, 1870, as to the duty per gallon on wines imported in bottles, and as to the additional duty of three cents on each bottle, and as to the additional duty of three cents for each bottle on bottles containing wines, brandy, and other spirituous liquors. Schedule B of the same section imposes the following duties: 'Glass bottles or jars filled with articles not otherwise provided for, 30 per centum ad valorem.' 'All manufactures of glass * *  * not otherwise provided for, and all glass bottles or jars filled with sweetmeats or preserves, not otherwise provided for, 40 per centum ad valorem.' The act of 1861 had imposed a duty of 30 per cent. on 'glass bottles or jars filled with sweetmeats, preserves, or other articles.' The act of 1864 had imposed a duty of 40 per cent. on 'glass bottles or jars filled with sweetmeats or preserves,' thus leaving a 30 per cent. duty on glass bottles filled with articles other than sweetmeats or preserves. So the act of 1864 had imposed a duty of 40 per cent. on manufactures of glass not otherwise provided for. Thus these provisions went into the Revised Statutes. In the sentence 'glass bottles or jars filled with articles not otherwise provided for,' there is no comma between 'jars' and 'filled,' and there is no comma between 'articles' and 'not.' Yet the sentence must be read as if there were a comma in each place. The act of 1861 imposed a duty of 30 per cent. on glass bottles filled with sweetmeats, preserves, or other articles. This was not a duty on the contained articles and on the bottles also. It was not a duty of 30 per cent. on the contents of every glass bottle. It was a duty merely on the bottles. The articles imported in the bottles were subject to such duty, if any, as was elsewhere imposed on them. The act of 1864 imposed a duty of 40 per cent. on glass bottles filled with sweetmeats or preserves, thus raising the duty on such bottles by 10 per cent., while the duty on glass bottles filled with other articles than sweetmeats or preserves was left to stand at 30 per cent.; and in that shape these provisions went into Schedule B of section 2504 of the Revised Statutes. They are found in a schedule which relates solely to earths and earthenware and glass. The act of 1864 imposed a duty of 40 per cent. on all manufactures of glass not otherwise provided for, and that provision, being in force, went into the same Schedule B.

The principle of imposing a duty on the sack, box, or covering of any kind in which a dutiable article is imported, separate from and additional to the duty on such article, is applied by section 2907 of the Revised Statutes, which declares that the value of the sack, box, or covering of any kind in which imported merchandise is contained shall be added in determining the dutiable value of such merchandise. This provision is enacted from section 9 of the act of July 28, 1866, (14 St. at Large, 330.) Where the covering is a glass bottle, and the duty on its contents is a specific duty per gallon, and not an ad valorem duty, a duty on the bottle, when added, is to be added as a duty of so much per bottle or as an ad valorem duty, as the statute may enact. But it is no reason for saying that the bottles are not dutiable in addition to their contents, that a higher rate of duty is imposed on the contained article when imported in bottles than when imported otherwise than in bottles. If a reason is to be sought for, it may well be found in the fact that while imposing a duty on the bottle, in analogy to the duty on the sack, box, or covering, the statute desired to encourage the bottling here of the article imported in the bottles, by imposing a higher duty on the importation of it in bottles than on the importation of it otherwise than in bottles. Under this view the statute reads and means that glass bottles which are not otherwise provided for, and are filled with articles, shall pay a duty of 30 per cent. If they were to be regarded as manufactures of glass, not otherwise provided for, they would pay 40 per cent,; or if, under Schedule B of section 2504, they were to be regarded as plain, or mould, or press glass, they would pay 35 per cent. But as they are clearly bottles they are to pay only 30 per cent.

In section 2 of the act of February 8, 1875, (18 St. at Large, 307,) it is expressly enacted that no separate or additional duty shall be collected on the bottles in which still wines are imported. The additional duty on bottles in which other articles than still wines are imported is left undisturbed.

It is manifest, we think, in view of the course of legislation by congress, that an enactment that the duty on ale, porter, and beer in bottles shall be so much per gallon, cannot be regarded as an enactment that there shall be no additional duty on the bottles, when there is another provision of law which imposes an ad valorem duty on bottles not otherwise provided for, filled with articles.

It is contended by the plaintiffs in error that all duty on the bottles is included in the duty of 35 cents per gallon on the ale 'in bottles.' Reliance for this view is had on the decision of Chief Justice TANEY in Karthaus v. Frick, Taney, Dec. 94, in 1840, where it was held that, under a statute imposing a duty on salt of 10 cents per 56 pounds, an ad valorem duty could not in addition be imposed on the sacks in which the salt was imported, as manufactures of hemp. That decision is placed expressly on the ground that there was no instance where a separate duty had been laid on the vessel or receptacle containing an article, when a specific duty was laid upon the article. That case arose under the act of July 14, 1832, (4 St. at Large, 583,) and stress was laid in the decision on the analogous fact that while there was in the act a duty on bottles, there was no duty on bottles containing any article, but only a duty on the article in the bottles. This has all now been changed, and there is a duty on coverings, and a duty on bottles containing articles, as well as duty on the same articles imported in bottles.

The judgment of the circuit court is affirmed.

title: Schmidt v. Badger/Opinion of the Court


text: Talk:Schmidt v. Badger/Opinion of the Court


text:
Hall v. Macneale

E. N. Dickerson and ''Thos. A. Logan'', for appellant.

James Moore, for appellees.

BLATCHFORD, J.

title: Hall v. Macneale


text: Talk:Hall v. Macneale

title: Talk:Hall v. Macneale


text:
Hall v. Macneale/Opinion of the Court

This suit is brought on letters patent No. 67,046, granted to Joseph L. Hall, the appellant, July 23, 1867, for an 'improvement in connecting doors and casings of safes.' The only claim alleged to have been infringed is claim 3, which is in these words:

'(3) The concial or tapering arbors, 1, in combination with     two or more plates of metal, in the doors and casings of      safes and other secure receptacles, the arbors being secured      in place in the plates by keys, 2, or in other substantial      manner.'

In regard to what is embraced in this claim the specification says:

'The nature of this invention consists in * *  * securing a      series of plates forming a casing or door of the safe by      means of conical or tapering arbors, which, being tapped in      from the outside of the door or casing, and keyed upon the      inside, present serious obstacles to the removal of      successive plates forming the body of the safe. Figure 1     represents a perspective view of a safe embodying my      invention. Figure 2 is a horizontal section of part of the     same. Figure 3 is a detail view, in cross-section, of the     door of the safe, showing the shape of, and manner of      securing, an arbor. The most approved manner of securing     together the numerous plates forming the casings and doors of      safes is by means of screws tapped in from one series of      pairs or triplets of plates from the inside presenting no      rivet heads upon the outside surface of the safes. * *  * In      the doors of safes the outer plate, D, is secured to the      plate, E, F, by screws, b, countersunk in the plate, F. *  *  *      The fourth plate, I, has about the same area as the plate, E.      It is secured to the plate, F, by screws, e, which pass      through the inner plate, K, in which they are countersunk. *     *  * In order to still further secure together the plates      forming the door of the safe, I use a conical arbor, 1, or a      number, if necessary; they are introduced in openings through      the series of plates, being tapped into the two innermost of      all the plates, and keyed in position. A smooth surface in     the plane of the outer face of the door is presented, giving      no means of removing the arbors, I, even should the key, 2,      be removed. * *  * Since the doors of safes are more exposed      than any other part of them, it is necessary to embody in      their construction such devices, which in themselves are the      simplest, as shall effectually bar forcible entrance to the      safes. The introduction of arbors for the purpose of more     effectually binding in one compact mass the series of      alternate iron and steel plates in the doors or bodies of      safes will very much protract the labors of the burglar;      indeed, it will be necessary, in order to remove one sheet in      succession, to cut out the arbors, which are made of the      hardest steel. The arbors may be tapped through the entire     series of plates, and the inner end rivet-headed instead of      keyed, as shown in the drawing, or the inner plate, as well      as other in the series of plates, may be put together in      sections, and, fitting into notches in the arboror arbors, secure them in position. In this latter     construction the arbors need not be conical, but may have any      cross-section, tapering longitudinally.'

When the specification says that the conical arbors are 'tapped in from the outside,' it means that screw-threads are cut on them and take into screw-threads in the body, and that the arbors are screwed in and have their smaller end towards the inside. The drawing, figure 3, shows this, there being five plates, and the arbor being in position, and tapering from the outside to the inside, the larger end being towards the outside, and a screw-thread being cut on the arbor for the distance of the thickness of the two innermost plates, and the arbor extending through the five plates, from the outer surface of all to the inner surface of all, and a key extending from the inside lengthwise of the arbor, the distance of the length of the screw-thread. The arbors, the specification says, 'may be tapped through the entire series of plates;' that is, the entire length of the arbor may have a screw-thread cut on it, and the inner end may be rivet-headed; that is, headed down into a rivet instead of being keyed. A peculiarity of the conical arbors is stated in the specification to be that they are tapped in 'from the outside,' and 'keyed upon the inside,' in contradistinction to the then existing most approved method of having screws with conical heads, the heads being countersunk in one of the plates, and the cone shape of the heads holding the screws so as to make it unnecessary to rivet them on the outside of the safe, the screws not going through all the plates, the head of the screw being towards the inside of the safe and the other end of it not projecting beyond the outside. Whether claim 3, in claiming 'the conical or tapering arbors, 1, in combination,' etc., is to be held, in view of the description in the text of the specification, and of the drawing, figure 3, to necessarily claim arbors which are tapped into two or more plates, or whether that claim excludes as a part of it screw-threads cut on the arbors, is not material to this case. If the former, the appellees are not shown to have used arbors with screw-threads on any part of the arbor that is within the plates. If the latter, then, infringement being shown, we are satisfied that claim 3 cannot be sustained. The contention of the appellant is that the invention covered by that claim requires only a conical hole, conical through the entire series of plates to be secured, and a conical bolt corresponding thereto, and secured in place in the plates by a key, or in any other substantial manner.

A patent was issued to the appellant September 25, 1860, for an 'improvement in locks.' The specification of that patent says:

'Resting upon the front plate, B, of the lock, as shown in     figure 4, are seen two conical blocks, I, I', a plan of which      is represented in figure 11. These are precisely alike in     their construction, and they are adapted to the two stems, G      and H, as will appear. They are of a length corresponding     with the thickness of the door, M, to which the lock is      applied, so that, when introduced into appropriate apertures      in the door, their outer faces will be flush with the outer      face of the door, and their inner faces flush with the inner      face of the door, and against the front face of the lock,      when the same is properly fixed upon the door. The blocks, I,     I, enter their apertures in the door by a screw-thread, and      they are held from turning therein, so as to return      outwardly, by an ordinary key driven into a key-seat drilled      from the inside of the door before the lock is applied to its      place. * *  * The conical blocks are cored or drilled out in a      peculiar manner to receive the two-part revolving arbor, as      shown, the part, p, (p,) entering the narrow end of the      conical blocks, being of a cylindrical form, and the part, q,      (q,) entering the large end of the conical blocks, being of      a conical form.'

These revolving arbors turn the stems, G and H, and thus the tumblers are adjusted and the bolt of the lock is thrown. The drawing of the patent shows the conical blocks, I, I', as passing entirely through the door, the larger end of the cone on the outside, and each end flush with its proper face. These conical blocks were screw-threaded on their surface in the door, and were keyed from the inside. They were cored, to admit the revolving arbors, but their bodies operated in all respects like the conical arbors of the patent sued on.

In 1868 John Farrell and Jacob Weimar applied for a patent for the same thing covered by claim 3 of the patent sued on, and the patent-office declared an interference between their application and that patent. The appellant was examined as a witness on his own behalf, in October, 1868, in that interference, and testified as follows:

'Third interrogatory. State what knowledge you have had, in     manufac turing safes, of the use of a series of plates united      by conical bolts made drill-proof, and when and where you      first had knowledge of their use. Answer. The first was in     the year 1858 or 1859. I came across one John P. Lord's lock,     which was said to be a combination, no-key-hole bank lock. I     negotiated with the parties representing it, to try and      introduce it and manufacture it. I then began to examine into     it more particularly, and found that the knob or dial      projecting through the door seemed to be very insecure in its      construction. I set myself about so as to invent some better     way of securing the protection to the lock and also the      plates of the doors. I then invented a double and single     conical-shaped arbor or plug, made drill-proof, composed of      wrought-iron and steel welded together, the design of which      was to fully protect the lock against sledge-hammers or other      tools for driving the plug or plugs in, or from being drilled      into, they being hardened. The further design of the said     drill-proof plugs or arbors was to secure together a series      of plates of wrought-iron and steel, or other suitable metal,      whereby they could not be separated or pulled apart, more      firmly binding them together than had been our former method      of making safes, or joining together such series of plates. Some time after, during the year 1859 or 1860, the exact     period of time I cannot remember fully, we made burglar-proof      safes of a series of plates composed of iron and steel joined      together, in which we had used more of the conical      drill-proof bolts or arbors than we had formerly been in the      habit of doing, for the express purpose of more securely      fastening the plates together. We made them in the city of     Cincinnati, in our factory, which was situated about the      middle of the square bounded by Columbia, Sycamore, Front,      and Main streets. We have also used them to a very     considerable extent since that time, in our factory situated      at the south-west corner of Plum and Pearl streets. I secured     a patent for my double conical drill-proof arbor in the year      1860. My design of that was to secure full protection to     combination no-key-hole bank locks. My single arbor I don't     think I made any claim on at that time, but used it for the      express purpose of binding the series of plates together. This was also a conical drill-proof bolt, made of iron and steel. Our modes of fastening the above-described arbors were in     different ways. Some we made conical, at the smaller end were     made soft, so that we could rivet them down into a      countersunk plate; others we cut a thread upon at the small      end of the arbor or drill-proof bolt, which was done, and,      when fitted up, the conical-shaped arbor or bolt was      tempered; others were made with a thread cut upon the end of      them, designed for a nut, which was designed to be used on      the smaller end of them to fasten them more securely, so that      they could not be withdrawn from the outside. The     conical-shaped arbor, with the thread cut upon the arbor, was      designed to be screwed into the inner plate of a series of      plates, and then a key-seat cut in each of the threads of the      plate and of the arbor, so that keys could be driven in to      prevent their being unscrwed and withdrawn from the outside,      thereby making them secure against the drill or the use of      the sledge-hammer or other tools for forcing them in, being      of a conical shape, or from removing any of the series of      plates through which they passed.'

It is apparent from this testimony that the appellant regarded the double conical-shaped arbor or plug, that is, the cored conical block, and the single conical-shaped arbor or plug, as being the same invention. He was endeavoring to carry back to 1858 or 1859 the invention covered by claim 3 of his patent of 1867. The only difference he makes between the double and the single arbor is that the former had a core removed from it. The latter was solid. Both, he says, were drill-proof, and had the same further design or object, namely, to secure together a series of plates in safes. He also says that in 1859 or 1860 he made burglar-proof safes of a series of plates composed of iron and steel joined together, using in them these single conical bolts or arbors, for the express purpose of more securely fastening the plates together. He then describes the cutting of a thread upon the arbor and one of the plates to screw the arbor into the inner plate, and cutting a key-seat in the two threads, and putting in a key to prevent the arbor from being unscrewed from the outside. All this describes exactly what is covered by claim 3 of the patent sued on. In his testimony in the present suit the appellant states that he made three safes between 1859 and 1864 which were burglar-proof, and had conical bolts for fastening together the different plates of metal. One of them had the double conical bolt and no single bolt, and was sold to a firm in Dayton, Ohio. One was made in 1858 or 1859, to be exhibited at a fair in Ohio, and was sold to a banker in Lafayette, Indiana. It had the single drill-proof conical arbors in the doors. The third one was made to be exhibited at a fair held in 1860, and was sold to the treasurer of Loraine county, Ohio. It had a few of the single conical arbors. It does not distinctly appear that the single conical bolts in the Lafayette and Loraine county safes had screw-threads cut on them, but the appellant testifies in this case that the double arbor of his patent of 1860 had a screw-thread cut upon it running through one or more of the inner plates, for the purpose of holding it. It clearly appears, from the testimony of the appellant himself, that the idea of making a claim to the invention covered by claim 3 of the patent sued on arose from the introduction into safes, in 1866 or early in 1867, of plates of steel and iron welded together. This enabled the value of the screw-threaded conical bolt to be more fully developed, because the screw-thread could be made more effective the whole length of the bolt. But the whole invention existed in the bolt of the patent of 1860. There was no invention in adding to the solid conical bolt the screw-thread of the cored conical bolt.

Moreover, the use and sale of the solid conical bolts in the Lafayette and Loraine county safes, even though those bolts had no screw-threads on them, constituted a use and sale of the invention covered by claim 3 of the patent in suit. The application for that patent was made in March, 1867, and the patent was granted under the provisions of the act of July 4, 1836, (5 St. at Large, 117,) and of the act of March 3, 1839, (Id. 353.) Within the meaning of sections 7 and 15 of the act of 1836, as modified by section 7 of the act of 1839, the invention covered by claim 3 of the patent in suit was in use and on sale more than two years before the appellant applied for that patent, and such use and sale were, also, with the consent and allowance of the appellant, and the use was a public use. It is contended that the safes were experimental, and that the use was a use for experiment. But we are of opinion that this was not so, and that the case falls within the principle laid down by this court in Coffin v. Ogden, 18 Wall. 120. The invention was complete in those safes. It was capable of producing the results sought to be accomplished, though not as thoroughly as with the use of welded steel and iron plates. The construction and arrangement and purpose and mode of operation and use of the bolts in the safes were necessarily known to the workmen who put them in. They were, it is true, hidden from view, after the safes were completed, and it required a destruction of the safe to bring them into view. But this was no concealment of them or use of them in secret. They had no more concealment than was inseparable from any legitimate use of them. As to the use being experimental, it is not shown that any attempt was made to see if the plates of the safes could be stripped off, and thus to prove whether or not the conical bolts were efficient. The safes were sold, and, apparently, no experiment and no experimental use were thought to be necessary. The idea of a use for experiment was an afterthough. An invention of the kind might be in use and no burglarious attempt be ever made to enter the safe, and it might be said that the use of the invention was always experimental until the burglarious attempt should be made, and so the use would never be other than experimental. But it is apparent that there was no experimental use in this case, either intended or actual. The foregoing views, which are controlling to show that claim 3 of the patent in suit cannot be sustained, are in accordance with those announced by this court in Egbert v. Lippmann, 104 U.S. 333.

The decree of the circuit court dismissing the bill is affirmed, and the same decision is made in No. 165.

title: Hall v. Macneale/Opinion of the Court


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


text:
Green Bay Minnesota Company v. Union Steam-Boat Company

W. C. Larned, for plaintiff in error.

F. J. Lamb, for defendant in error.

GRAY, J.


text: Talk:Green Bay Minnesota Company v. Union Steam-Boat Company


text:
Green Bay Minnesota Company v. Union Steam-Boat Company/Opinion of the Court

This is an action brought by the Union Steam-boat Company, a corporation established by the laws of the state of New York at Buffalo, in that state, against the Green Bay & Minnesota Railroad Company, a corporation established by the laws of the state of Wisconsin, and having its principal place of business in this state.

The declaration alleges that the defendant was chartered in 1866, and was organized to construct and operate a railroad across the state of Wisconsin, east and west from the city of Green Bay to the Mississippi river, and its road was built and actually opened for business in December, 1873; that 'it became important for said defendant to make arrangements in regard to the business of carrying passengers and freight carried eastwardly over its road, and destined for points east of said city of Green Bay and out of the state, for their transportation east, as well as to secure business of carrying passengers and freight arriving at or being moved west by way of the defendant's route and railway;' and on the ninth of September, 1873, the plaintiff and defendant entered into a contract under seal, whereby, in consideration that the plaintiff would, during the season of navigation in 1876 and 1877, run between Buffalo and Green Bay, by way of the great lakes, and touching at intermediate ports, two steampropellers, then belonging to the plaintiff, for the purpose of carrying passengers and freight to and from Green Bay in connection with the defendant's railway and business and docks at that place, the defendant duly undertook and guarantied to the plaintiff that the gross earnings of each propeller in such business should be for each of the two years the sum of $45,000 at least, and that if it should be less, the defendant would pay the difference to the plaintiff on or before the first of January next succeeding the close of navigation in each year.

The plaintiff further alleges that it duly put the propellers on the route and kept them running thereon, in connection with the defendant's business and in accordance with the contract, during the seasons of 1876 and 1877, and in all respects duly performed all the conditions of the contract on its part; that the gross earnings of each propeller for each season fell short of the amount guarantied by a certain sum named, which thereupon became due and payable to the plaintiff from the defendant, according to the contract on the first of January following; and that the two corporations were duly authorized and empowered by their respective charters and the laws of Wisconsin to make the contract.

The answer denies that the defendant was so empowered, and avers that it has no information or knowledge sufficient to form a belief as to whether the plaintiff was so empowered; admits the making of the contract stated in the declaration, and sets forth other provisions of that contract, with which it alleges that the plaintiff had not complied. The plaintiff filed a replication denying the allegations of the answer. Upon a trial in June, 1878, a verdict was returned for the plaintiff for $78,876.13, and judgment rendered thereon, and the defendant sued out this writ of error.

No bill of exceptions having been seasonably tendered, the only question presented by the record is whether, under the general laws of the state of Wisconsin, and the defendant's charter, which by those laws (as existing at the times of the granting of the charter, and of the trial; Rev. St. 1858, c. 5, § 2) was declared to be a public act, the contract sued on, as set forth in the declaration and admitted in the answer, is ultra vires of the defendant corporation.

The general doctrine upon this subject is now well settled. The charter of a corporation, read in connection with the general laws applicable to it, is the measure of its powers, and a contract manifestly beyond those powers will not sustain an action against the corporation. But whatever, under the charter and other general laws, reasonably construed, may fairly be regarded as incidental to to the objects for which the corporation is created, is not to be taken as prohibited. Thomas v. Railroad Co. 101 U.S. 71; Attorney General v. ''Great Eastern Ry. Co.'' 5 App. Cas. 473; Davis v. Old Colony R. Co. 131 Mass. 258.

The railroad of this corporation extends across the state of Wisconsin from its eastern boundary on Lake Michigan to the Mississippi river; and its charter empowers the directors to make such agreements with any person or corporation whatsoever 'as the construction of their railroad, or its management, and the convenience and interest of the company, and the conduct of its affairs, may in their judgment require.' Priv. Laws, Wis. 1866, c. 540, § 7. It was within the powers of the corporation, as incidental to its own proper business, to agree to transport as a carrier, over connecting railroad and steam-boat lines, passengers and freight intrusted to it for carriage over its own line. Railway Co. v. McCarthy, 96 U.S. 258. The general laws of Wisconsin, in force at the time of the grant of this charter, authorize any railroad company in this state to make such contracts with any railroad company, whose road terminates on the eastern shore of Lake Michigan, within the state of Michigan, 'as will enable said companies to run their roads in connection with each other in such manner as they shall deem most beneficial to their interest,' and 'to build, construct, and run, as a part of their corporate property, such number of steam-boats or vessels as they may deem necessary to facilitate the business operations of such company or companies.' Gen.Laws Wis. 1853, c. 76. And, by the general railroad act of 1872, 'any railroad company, heretofore or hereafter incorporated by or under the laws of this state, may exercise all its rights, franchises, and privileges in any other state or territory of the United States, under and subject to the laws of the state or territory where it may exercise, or attempt to exercise, the same, and may accept from any other state or territory and use any additional or other powers or privileges applicable to the carrying of persons and property by railway or steam-boat in said state or territory, or otherwise, applicable to the doings of said company in said state or territory.' Gen. Laws Wis. 1872, c. 109, § 51.

These statutes show that the legislature of Wisconsin, recognizing the fact that, from the geographical situation of the state, the railroads which traverse it from east to west form part of a line of transportation extending across the continent, intended to confer upon the corporations owning such railroads very large powers of contracting with other corporations owning railroads or steam-boats, whose course includes connecting parts of the same great line of transportation.

To build and run, as part of the defendant's corporate property, such number of steam-boats on Lake Michigan as it might deem necessary to facilitate its business, would be within the power expressly conferred by the statute of 1853; and we are of opinion that, taking into consideration all the statutes above quoted, it was equally within its corporate powers to hire, either by the trip or by the season, steam-boats belonging to others, running from its eastern terminus along the great lakes eastward; or to employ such steamboats to carry passengers and freight, in connection with its own railroad and business, under an agreement by which it guarantied to the proprietors of the boats that their gross earnings for the season should not fall below a certain sum.

There is, therefore, nothing in the record before us to show that the agreement sued on was beyond the corporate powers of this railroad company. Judgment affirmed.


text: Talk:Green Bay Minnesota Company v. Union Steam-Boat Company/Opinion of the Court


text:
Michigan Cent Company v. Myrick

This is an action for breach of two alleged contracts of the Michigan Central Railroad Company with the plaintiff, Paris Myrick, each to carry for him 202 head of cattle from Chicago to Philadelphia, and there deliver them to his order. It arises out of these facts:

Myrick was in 1877 engaged, at Chicago, in the business of buying cattle, sometimes on his own account and sometimes for others, and forwarding them by railway to Philadelphia. The company is a corporation created by the state of Michigan, and its line extends from Chicago to Detroit, where it connects with the Great Western Railroad, which, by its connections, leads to Philadelphia. In November, 1877, Myrick purchased two lots of cattle, each consisting of 202 head, and shipped them over the road of the company. One of the purchases and shipments was made on the seventh and the other on the fourteenth of the month. It will suffice to give the particulars of the first of these transactions, as they were identical in all respects, except in the amount of the draft negotiated and the weight of the cattle. On the shipment of the cattle Myrick took from the company a receipt, as follows:

'MICHIGAN CENTRAL RAILROAD COMPANY,

'CHICAGO STATION, November 7, 1877.

'Received from Paris Myrick, in apparent good order, consigned order Paris Myrick, (notify J. and W. Blaker, Philadelphia, Pa.:)

Articles. Weight or

measure.

Two hundred and two (202) cattle... 240,000

'Advance charges, $12. Marked and described as above (contents and value otherwise unknown) for transportation by the Michigan Central Railroad Company to the warehouse at _____.

'WM. GEAGAN, Agent.'

On the margin of the receipt was the following:

'This company will not hold itself responsible for the accuracy of these weights as between buyer and seller, the approximate weight having been ascertained by track-scales, which is sufficiently accurate for freighting purposes, but may not be strictly correct as between buyer and seller. This receipt can be exchanged for a through bill of lading.

'NOTICE.-See rules of transportation on the back hereof. Use separate receipts for each consignment.'

On the back of the receipt the rules were printed, one of which, the eleventh, was as follows:

'Goods or property consigned to any place off the company's line of road, or to any point or place beyond the termini, will be sent forward by a carrier or freightman, when there are such, in the usual manner, the company acting, for the purpose of delivery to such carrier, as the agent of the consignor or consignee, and not as carrier. The company will not be liable or responsible for any loss, damage, or injury to the property after the same shall have been sent from any warehouse or station of the company.'

On the day this receipt was obtained, Myrick drew and delivered to the Commercial National Bank, at Chicago, a draft, of which the following is a copy:

'$12,287.57. CHICAGO, November 7, 1877.

'Pay to the order of Geo. L. Otis, cashier, twelve thousand two hundred and eighty-seven 57-100 dollars, value received, and charge the same to account of

PARIS MYRICK.

To J. and W. Blaker, Newtown, Pa.

As security for its payment Myrick indorsed the receipt obtained from the railroad company and delivered it, with the draft, to the bank, which thereupon gave him the money for it. The cattle were carried on the road of the Michigan Central to Detroit, and thence over the road of the Great Western Railroad Company to Buffalo, and thence over the roads of other companies to Philadelphia, the last of which was the road of the North Pennsylvania Railroad Company. They arrived in Philadelphia in about four days after their shipment, where, according to the uniform custom in the course jof business of the railroad company, they were uniform custom in the course of business which was formed for the purpose of receiving cattle arriving there taking care of them, and delivering them to their owners or consigness. This company notified the Blakers of the arrival of the cattle, and delivered them to those parties without the production of the carrier's receipt transferred by Myrick to the Commercial National Bank. The Blakers paid the expense of the transportation, took possession of the cattle, sold them, and appropriated the proceeds. The lot shipped on the fourteenth of November were delivered in like manner to the Blakers by the drove-yard company without the production of the carrier's receipt, given to the bank, and were in like manner disposed of. Soon afterwards the Blakers failed, and the two drafts on them, one made upon the shipment of November 7th and the other on the shipment of November 14th, were not paid. Hence the present action for the value of the cattle thus lost to the bank, Myrick suing for its use.

It appeared on the trial that Myrick had made previous shipments of cattle from Chicago to Philadelphia, and taken similar receipts from the Michigan Central Railroad Company; that the cattle shipped had always been delivered by the Pennsylvania Company, at Philadelphia, to the drove-yard company there, and by that company delivered to the Blakers without the production of the carrier's receipt or any bill of lading; that the Blakers were dealers in cattle, and had particular pens in the yards assigned to them; that the cattle of the shipments of November 7th and November 14th were, on their arrival, placed by the superintendent of the drove-yards in those pens and were sold by the Blakers on the following day, and that the carrier's receipt was not called for either by the railroad or the stockyard company. It also appeared on the trial that Myrick bought the cattle for the Blakers, and that a person employed by them accompanied the cattle from Chicago until their delivery at the drove-yard at Philadelphia; that the through rate from Chicago to Philadelphia on the cattle was 58 cents per hundred; that notice of this rate was posted in the station of the defendant company at Chicago, and that it was not the custom of the railroad company at Philadelphia to look to the consignee for freight, but collected it from the drove-yard company. The court was requested to give to the jury various instructions, one of which, though presented under many forms, amounts substantially to this: That as the road of the Michigan Central Railroad Company terminates at Detroit, the company was not bound, in the absence of special contract, to transport the cattle beyond such termination, and that the receipt of freight for a point beyond and an agreement for a through fare did not of themselves establish such a contract. The court refused to give this instruction, or any embodying the principle which it expresses. On the contrary, it instructed the jury that the receipt, termed 'bill of lading,' under the circumstances in which it was made, was a through contract, whereby the defendant agreed to transport the cattle named in it from Chicago the Philadelphia, and there deliver them to the order of Paris Myrick, and to notify the Blakers from Chicago to Philadelphia, and the undertaking on the part of the defendant company with the plaintiff Myrick, and with any assignee or holder of the contract. The facts attending the transaction not being disputed, there could be only one result from this instruction-a recovery by the plaintiff. From the judgment entered thereon the case is brought to this court for review.

''Geo. F. Edmunds and A. L. Osborn'', for plaintiff in error.

W. C. Larned and John N. Jewett, for defendant in error.

FIELD, J.

title: Michigan Cent Company v. Myrick


text: Talk:Michigan Cent Company v. Myrick

title: Talk:Michigan Cent Company v. Myrick


text:
Michigan Cent Company v. Myrick/Opinion of the Court

The principal question presented by the instruction requested by the defendant has been elaborately considered and adjudged by this court. It is only necessary, therefore, to state the conclusion reached.

A railroad company is a carrier of goods for the public, and as such is bound to carry safely whatever goods are intrusted to it for ransportation, within the course of its business, to the end of its route, and there deposit them in a suitable place for their owners or consignees. If the road of the company connects with other roads, and goods are received for transportation beyond the termination of its own line, there is superadded to its duty as a common carrier that of a forwarder by the connecting line; that is, to deliver safely the goods to such line-the next carrier on the route beyond. This forwarding duty arises from the obligation implied in taking the goods for the point beyond its own line. The common law imposes no greater duty than this. If more is expected from the company receiving the shipment there must be a special agreement for it. This is the doctrine of this court, although a different rule of liability is adopted in England and in some of the states. As was said in Railroad Co. v. Manufacturing Co.: 'It is unfortunate for the interests of commerce that there is any diversity of opinion on such a subject, especially in this country, but the rule that holds the carrier only liable to the extent of his own route, and for the safe storage and delivery to the next carrier, is in itself so just and reasonable that we do not hesitate to give it our sanction.' 16 Wall. 324. This doctrine was approved in the subsequent case of Pratt v. Railroad Co. 22 Wall. 123, although the contract there was to carry through the whole route. Such a contract may of course be made with any one of different connecting lines. There is no objection in law to a contract of the kind, with its attendant liabilities. See, also, ''Ins. Co. v. Railroad Co.'' 104 U.S. 157.

The general doctrine, then, as to transportation by connecting lines, approved by this court, and also by a majority of the state courts, amounts to this: That each road, confining itself to its common-law liability, is only bound, in the absence of a special contract, to safely carry over its own route and safely to deliver to the next connecting carrier, but that any one of the companies may agree that over the whole route its liability shall extend. In the absence of a special agreement to that effect, such liability will not attach, and the agreement will not be inferred from doubtful expressions or loose language, but only from clear and satisfactory evidence. Although a railroad company is not a common carrier of live animals in the same sense that it is a carrier of goods, its responsibilities being in many respects different, yet when it undertakes generally to carry such freight it assumes, under similar conditions, the same obligations, so far as the route is concerned over which the freight is to be carried.

In the present case the court below held that by its receipt, construed in the light of the circumstances under which it was given, the Michigan Central Railroad Company assumed the responsibility of transporting the cattle over the whole route from Chicago to Philadelphia. It did not submit the receipt with evidence of the attendant circumstances to the jury to determine whether such a through contract was made. It ruled that the receipt itself constituted such a contract. In this respect it erred. The receipt does not, on its face, import any bargain to carry the freight through. It does not say that the freight is to be transported to Philadelphia, or that it was received for transportation there. It only says that it is consigned to the order of Paris Myrick, and that the Blakers at Philadelphia are to be notified. And, after the description of the property, it adds: 'Marked and described as above (contents and value otherwise unknown) for transportation by the Michigan Central Railroad Company to the warehouse at _____,' leaving the place blank. This blank may have been intended for the insertion of some place on the road of the company, or at its termination. It cannot be assumed by the court, in the absence of evidence on the point, that it was intended for the place of the final destination of the cattle. On the margin of the receipt is the following: 'NOTICE.-See rules of transportation on the back hereof.' And among the rules is one declaring that goods consigned to any place off the company's line, or beyond it, would be sent forward by a carrier or freightman, when there are such, in the usual manner, the company acting for that purpose as the agent of the consignor or consignee, and not as carrier; and that the company would not be responsible for any loss, damage, or injury to the property after the same shall have been sent from its warehouse or station. Though this rule, brought to the knowledge of this shipper, might not limit the liability imposed by a specific through contract, yet it would tend to rebut any inference of such a contract from the receipt of goods marked for a place beyond the road of the company.

The doctrine invoked by the plaintiff's counsel against the limitation by contract of the common-law responsibility of carriers, has no application. There is, as already stated, no common-law responsibility devolving upon any carrier to transport goods over other than its own lines, and the laws of Illinois restricting the right to limit such responsibility do not, therefore, touch the case. Nor was the common-law liability of the defendant corporation enlarged by the fact that a notice of the charges for through transportation was posted in the defendant's station-house at Chicago. Such notices are usually found in stations on lines which connect with other lines, and they furnish important information to shippers, who naturally desire to know what the charges are for through freight, as well as for those over a single line. It would be unfortunate if this information could not be given by a public notice in the station of a company without subjecting that company, if freight is taken by it, to responsibility for the manner in which it is carried on intermediate and connecting lines to the end of the route. Nor was the liability of the company affected by the fact that the notice on the margin of the receipt stated that the ticket given might be 'exchanged for a through bill of lading.' It would seem to indicate that the receipt was not deemed of itself to constitute a through contract. The through bill of lading may also have contained a limitation as to the extent of the route over which the company would undertake to carry the cattle. Besides, if weight is to be given to this notice as characterizing the contract made, it must be taken with the rule to which it also calls attention, that the company assumed responsibility only for transportation over its own line. It follows from the views expressed that the court below erred in its charge that the ticket or bill of lading was a through contract, whereby the defendant company agreed to transfer the cattle to Philadelphia, and safely deliver them there to the order of Myrick.

Our attention has been called to some decisions of the supreme court of Illinois which would seem to hold that a railroad company which receives goods to carry, marked for a particular destination, though beyond its own line, is prima facie bound to carry them to that place and deliver them there; and that an agreement to that effect is implied by the reception of goods thus marked. ''Illinois Cent. R. Co. v. Frankenberg'', 54 Ill. 88; Same v. Johnson, 34 Ill. 389. Assuming that such is the purport of the decisions they are not binding upon us. What constitutes a contract of carriage is not a question of local law upon which the decision of a state court must control. It is a matter of general law, upon which this court will exercise its own judgment. Chicago City v. Robbins, 2 Black, 429; Railroad Co. v. ''Nat. Bank, 102 U.S. 14; and Hough v. Ry. Co.'' 100 U.S. 213.

If the doctrine of the supreme court of Illinois, as to what constitutes contract of carriage over connecting lines of roads, is sound, it ought to govern, not only in Illinois, but in other states; and yet the tribunals of other states, and a majority of them, hold the reverse of the Illinois court, and coincide with the views of this court. Such is the case in Massachusetts. Nutting v. Railroad Co. 1 Gray, 502; Burroughs v. Railroad Co. 100 Mass. 26. If we are to follow on this subject the ruling of the state courts, we should be obliged to give a different interpretation to the same act-the reception of goods marked for a place beyond the road of the company-in different states, holding it to imply one thing in Illinois and another in Massachusetts.

The judgment must be reversed, and the case remanded for a new trial; and it is so ordered.


text: Talk:Michigan Cent Company v. Myrick/Opinion of the Court


text:
Bush v. Commonwealth of Kentucky

L. P. Tarleton, Jr., for plaintiff in error.

I. D. Hunt and W. C. P. Breckinridge, for defendant in error.

HARLAN, J.

title: Bush v. Commonwealth of Kentucky


text: Talk:Bush v. Commonwealth of Kentucky

title: Talk:Bush v. Commonwealth of Kentucky