text:
Ex parte McCardle (73 U.S. 318)/Opinion of the Court

The motion to dismiss the appeal has been thoroughly argued, and we are now to dispose of it.

The ground assigned for the motion is want of jurisdiction, in this court, of appeals from the judgments of inferior courts in cases of habeas corpus.

Whether this objection is sound or otherwise depends upon the construction of the act of 1867.

Prior to the passage of that act this court exercised appellate jurisdiction over the action of inferior courts by habeas corpus. In the case of Burford this court, by habeas corpus, aided by a writ of certiorari, reviewed and reversed the judgment of the Circuit Court of the District of Columbia. In that case a prisoner brought before the Circuit Court by the writ had been remanded, but was discharged upon the habeas corpus issued out of this court.

By the writ of habeas corpus also, aided by a certiorari, this court, in the case of Bollman and Swartwout, again revised a commitment of the Circuit Court of the District. The prisoners had been committed on a charge of treason by order of the Circuit Court, and on their petition this court issued the two writs, and, the prisoners having been produced, it was ordered that they should be discharged on the ground that the commitment of the Circuit Court was not warranted in law.

But, though the exercise of appellate jurisdiction over judgments of inferior tribunals was not unknown to the practice of this court before the act of 1867, it was attended by some inconvenience and embarrassment. It was necessary to use the writ of certiorari in addition to the writ of habeas corpus, and there was no regulated and established practice for the guidance of parties invoking the jurisdiction.

This inconvenience and embarrassment was remedied in a small class of cases arising from commitments for acts done or omitted under alleged authority of foreign governments, by the act of August 29th, 1842, which authorized a direct appeal from any judgment upon habeas corpus of a justice of this court or judge of a District Court to the Circuit Court of the proper district, and from the judgment of the Circuit Court to this court.

This provision for appeal was transferred, with some modification, from the act of 1842 to the act of 1867; and the first question we are to consider, upon the construction of that act, is whether this right of appeal extends to all cases of habeas corpus, or only to a particular class.

It was insisted on argument that appeals to this court are given by the act only from the judgments of the Circuit Court rendered upon appeals to that court from decisions of a single judge, or of a District Court.

The words of the act are these: 'From the final decision of any judge, justice, or court inferior to the Circuit Court, an appeal may be taken to the Circuit Courts of the United States for the district in which said cause is heard, and from the judgment of said Circuit Court to the Supreme Court of the United States.'

These words, considered without reference to the other provisions of the act, are not unsusceptible of the construction put upon them at the bar; but that construction can hardly be reconciled with other parts of the act.

The first section gives to the several courts of the United States, and the several justices and judges of such courts within their respective jurisdictions, in addition to the authority already conferred by law, power to grant writs of habeas corpus in all cases where any person may be restrained of liberty in violation of the Constitution, or of any treaty or law of the United States.

This legislation is of the most comprehensive character. It brings within the habeas corpus jurisdiction of every court and of every judge every possible case of privation of liberty contrary to the National Constitution, treaties, or laws. It is impossible to widen this jurisdiction.

And it is to this jurisdiction that the system of appeals is applied. From decisions of a judge or of a District Court appeals lie to the Circuit Court, and from the judgment of the Circuit Court to this court. But each Circuit Court, as well as each District Court, and each judge, may exercise the original jurisdiction; and no satisfactory reason can be assigned for giving appeals to this court from the judgments of the Circuit Court rendered on appeal, and not giving like appeals from judgments of Circuit Courts rendered in the exercise of original jurisdiction. If any class of cases was to be excluded from the right of appeal, the exclusion would naturally apply to cases brought into the Circuit Court by appeal rather than to cases originating there. In the former description of cases the petitioner for the writ, without appeal t this court, would have the advantage of at least two hearings, while in the latter, upon the hypothesis of no appeal, the petitioner could have but one.

These considerations seem to require the construction that the right of appeal attaches equally to all judgments of the Circuit Court, unless there be something in the clause defining the appellate jurisdiction which demands the restricted interpretation. The mere words of that clause may admit either, but the spirit and purpose of the law can only be satisfied by the former.

We entertain no doubt, therefore, that an appeal lies to this court from the judgment of the Circuit Court in the case before us.

Another objection to the jurisdiction of this court on appeal was drawn from the clause of the first section, which declares that the jurisdiction defined by it is 'in addition to the authority already conferred by law.'

This objection seems to be an objection to the jurisdiction of the Circuit Court over the cause rather than to the jurisdiction of this court on appeal.

The latter jurisdiction, as has just been shown, is coextensive with the former. Every question of substance which the Circuit Court could decide upon the return of the habeas corpus, including the question of its own jurisdiction, may be revised here on appeal from its final judgment.

But an inquiry on this motion into the jurisdiction of the Circuit Court would be premature. It would extend to the merits of the cause in that court; while the question before us upon this motion to dismiss must be necessarily limited to our jurisdiction on appeal.

The same observations apply to the argument of counsel that the acts of McCardle constituted a military offence, for which he might be tried under the Reconstruction Acts by military commission. This argument, if intended to convince us that the Circuit Court had no jurisdiction of the cause, applies to the main question which might arise upon the hearing of the appeal. If intended to convince us that this court has no appellate jurisdiction of the cause, it is only necessary to refer to the considerations already adduced on this point.

We are satisfied, as we have already said, that we have such jurisdiction under the act of 1867, and the motion to dismiss must therefore be

DENIED.


text: Talk:Ex parte McCardle (73 U.S. 318)/Opinion of the Court

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


text:
Selz v. Unna

APPEAL from the Circuit Court for the Northern District of Illinois.

Unna sued four different parties, of whom Selz and Leopold were one, for a tortious levy which they had made on his property, assuming it to be the property of one of their debtors. When the suit was about to be tried a second time-the jury having once been unable to settle upon a verdict-Unna agreed with Selz and Leopold (as they alleged) that if they would desist and abstain from all participation in the preparation and conduct of the defence thereof, he would protect and save them harmless from all loss and damage, under whatever judgment he might recover, and would so control and direct the collection thereof that no part of the same should be paid by or collected from them under any execution issued thereon. In pursuance of the agreement, Selz and Leopold and their counsel did withdraw from the defence of the suit. Judgment having gone in favor of Unna and against all four parties,-and all four standing on the record as convict alike, Unna after a certain time assigned the judgment to two persons whom this court regarded, upon the evidence, as purchasers in good faith, and without knowledge of the secret agreement; his assignment covenanting 'that he had neither made, done or suffered any act or thing by which the said judgment is in any manner impaired or lessened in value.' The assignees having issued execution, proceeded to levy on property of some of the three defendants. The whole three then agreed to pay him three-fourths of the judgment, it being understood that for the remaining fourth the assignees should look to Selz and Leopold. For that fourth th assignees accordingly resorted to them, levying upon and selling certain real estate as the property of Leopold. Thereupon Selz and Leopold filed bills in equity against Unna and the three other defendants and the assignees, setting up the agreement with Unna; alleging that the three other defendants had paid the whole amount of the judgment, which was therefore satisfied; that the assignees were but covers for these other defendants who had had the assignment made in order to obtain contribution from them, Selz and Leopold. It was alleged as well that the real estate levied on, though once Leopold's, was not so now, it having been sold by his assignees for creditors some time ago. The prayer was for an injunction against the marshal's making any deed for Leopold's interest in the real estate, and from further proceedings to collect the judgment, and that it should be declared satisfied of record, as it was alleged to be in fact.

The answers denied the equities of the bill generally, and especially all knowledge of 'the fraudulent agreement;' denied that the judgment had been paid, on the contrary asserted that it was unpaid; and asserted also that the assignment was bona fide. The court below dismissed the bills. Appeal accordingly.

Messrs. Gookins and Roberts, for the plaintiff in error:

Even assuming as opposite counsel does, that the assignment was bona fide, and without knowledge of the agreement of Unna with Selz and Leopold, which is assuming what we regard as against the evidence, still the decree below was wrong. Surely, Unna cannot, in a court of equity, say that this agreement is not binding on him. His assignees are in no better situation than himself.

Then, as to the matter of contribution. Since the well-known case of Merryweather v. Nixan, in the time of Lord Kenyon, C. J., the authorities bearing upon the question of contribution in like cases to this, are almost uniform that it will not be enforced at law, or in equity.

Mr. McKinnon, contra:

It may be remarked, primarily (though this matter was not relied on below), that the complainants have no right, title or interest in or to the real estate, in respect to which they seek to enjoin the marshal from making a deed. The bill states that it was sold long ago. But passing to other matters:

1. The consideration whereon the complainants found their claims to the relief prayed, is inequitable. Look at the case: Honest creditors engaged in a common defence against a suit for a levy which they believed that they had a right to make, and where they have been so far successful that one jury has failed to agree on a verdict. These complainants, Selz and Leopold, just as the case was called for trial a second time, secretly, and without the knowledge of their co-defendants, by agreement with the common prosecutor, Unna, desist and abstain from all further participation in the defence, and with their counsel retire from the courtroom, leaving their confederates to suffer, while they went free. 'Equality is equity.' That is one maxim of equity, old as equity itself. Another is, 'He that hath committed iniquity shall not have equity.'

2. Are these assignees within the meaning of the rule that the assignee of a chose in action takes it subject to all the equities existing between the original parties? In no just sense. We here rely on what was said in the court below (Drummond, J.):

'Admit the general rule, that the assignee of a judgment takes it with all the equities that there may e, and that these equities can be set up as well against the assignees as against the assignor. Yet such an agreement as this, which is not an equitable, but an inequitable agreement, so far as the other defendants are concerned, cannot be set up in a case like this, to protect them from a liability which, when the judgment was obtained, was as binding on them as on the other parties, defendants in the case.'

So too as to the question of contribution, we adopt its remarks:

'The general rule undoubtedly is, that there can be no contribution between wrongdoers, and this was an action of trespass against these parties. This rule has been qualified considerably; many exceptions already exist under it, and it is doubtful whether the rule could be said to operate in a case like this. At any rate, I am not disposed to grant these plaintiffs relief until I am satisfied that they have done equity as to the other defendants.'

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Selz v. Unna


text: Talk:Selz v. Unna

title: Talk:Selz v. Unna


text:
Selz v. Unna/Opinion of the Court

Material facts are that David Sternberg and Edward Isidor, doing business at Chicago under the firm name and style of Sternberg & Isidor, became largely indebted, and being unable to make payments as promptly as certain of their creditors desired, they confessed judgments in their favor. Judgments were thus obtained by Morris Selz and Abraham Cohen, doing business under the name and style of Selz & Cohen; by Henry A. Kohn and Joseph Kohn, under the name and style of H. A. Kohn & Brother; by William M. Ross and John H. Ross, under the name and style of William M. Ross & Company; and by Leonard B. Shearer, William W. Strong, and John S. Paine, doing business under the name and style of Shearer, Paine & Strong.

Executions were issued on these several judgments, and they were placed in the hands of the sheriff of the county, with directions to levy the same on certain goods and chattels, as the property of the judgment debtors.

Doubts being entertained by the sheriff as to the ownership of the property, the judgment creditors gave him a bond to save him harmless, and the complainant, Henry Leopold, became the surety of Selz & Cohen in that bond. Indemnified against loss, the sheriff, by the direction of John M. Huntington, attorney of Selz & Cohen, seized and sold the goods and chattels, as the property of the junior member of the firm of Sternberg & Isidor, the judgment debtors.

The property sold was subsequently claimed by Levi J. Unna, and he brought trespass in the Circuit Court against those who signed the bond of indemnity, and the attorney who gave the directions to make the sale.

Defendants appeared at the October term of the court, 1858, and went to trial, but the jury being unable to agree, they were discharged, and the case was continued. Before the next trial the plaintiff agreed with the complainants in this suit, that if they would make no further defence in that action, he, the plaintiff, would save them harmless from all loss or damage, and that no part of the judgment he might recover in the suit should be collected of them or be levied on their property. Complainants admit that they accepted the proposition, and that their attorney withdrew from the defence, and it appears that the plaintiff, on the fifth day of March, 1859, recovered judgment in the suit against all the defendants in the sum of six thousand three hundred and seven dollars and eighty-nine cents, and costs of suit.

Four of the defendants, to wit, William Ross, John H. Ross, Leonard B. Shearer, and William W. Strong, sued out a writ of error to this court. Pending the writ of error, Daniel L. Shearer and William Clark purchased the judgment for the sum of six thousand five hundred and forty-six dollars and twenty-eight cents, and took an assignment of the same from the judgment creditor. Covenants of the assignor were in substance and effect that the judgment was whl ly unsatisfied, and that he had done no act to impair, in any way or manner, its force and effect, and he added the unusual stipulation that he intended to make the representations so full and explicit, that if false they would bring him within certain provisions of the Crimes' Acts passed by the State legislature.

By the advice of counsel the writ of error was not prosecuted, and for that reason was dismissed under the rules of this court. Danger from the writ of error being removed, the assignees of the judgment caused execution to be issued on the same, and placed the execution in the hands of the marshal for the purpose of having the money collected. Pursuant to the commands of the writ, the marshal proceeded to levy the same on the property of Kohn & Brother, when they proposed a compromise as a means of saving their property from sacrifice. Substance of the proposition was, that they would pay one-fourth of the amount, and that Ross & Company, and Shearer, Strong & Paine, should each pay one-fourth; and that the marshal should levy the remaining one-fourth on certain real estate formerly belonging to Henry Leopold, who was the surety of Selz & Cohen. They accepted the proposition, and the payments were made as proposed.

Levy was accordingly made by the marshal on that real estate to satisfy the balance of the execution which belonged to Selz & Cohen, or their surety to pay, but before the sale was completed the complainants filed their bill of complaint.

In the bill they set up the suit in trespass, the agreement made by them with the plaintiff, their withdrawal from the defence, the recovery of the judgment by the plaintiff, and the assignment of the judgment, and charge that Ross & Co. and Shearer and Strong paid the whole amount of the judgment, and that the assignment was not bona fide, but that it was made with intent to enforce contribution against the complainants. Prayer of the bill of complaint was, that the other judgment defendants, and the plaintiff in the trespass suit, and the assignees of the judgment, might be made parties, and that they might be enjoined from completing the sale of the real estate, and from all proceedings to collect the judgment.

Answers were filed by William Clark, William M. Ross, John H. Ross, and William Strong, denying the entire equity of the bill of complaint, whereupon the complainants moved the court for an injunction to stay the sale, which was denied by the court, and the marshal sold the premises to Henry A. Kohn, and gave him the proper certificate of sale. Subsequently the complainants filed a supplemental bill, in which they alleged that these respondents had agreed that the lot in question should be sold, that Henry A. Kohn should bid it off for the purpose of compelling the complainants to pay their proportion of the judgment, and prayed that the purchaser might be enjoined from receiving any deed of the lot, or from interfering in any manner with the premises. Statement of the original bill of complaint was, that the premises formerly belonged to the complainant, Henry Leopold, and his copartner in business, and that the owners thereof became embarrassed, and made an assignment of all their property and effects for the benefit of their creditors, and that the assignee sold and conveyed the premises to a third person for the sum of three thousand dollars.

Suppose the allegations of the bill of complaint are true, then it is clear that the decision of the Circuit Court was correct, as the complainants have no title or interest in the land sold by the marshal, and described in the certificate which he gave to the purchaser. They, under such a state of the case, have no such standing in the pleadings as will enable them to ask the interposition of a court of equity to enjoin the respondents or any other parties, as their own allegations show that they have no title in the premises.

Interposition of a court of equity cannot be successfully invoked in a case like the present unless the party asking relief is able t show that he has a legal or equitable right or title in the subject-matter of the controversy. But the want of title in the complainants was not the ground assumed by the Circuit Court; and inasmuch as the marshal sold the land as the property of Leopold, we are inclined to examine some of the other issues between the parties as disclosed in the pleadings.

Principal charge in the bill of complaint is, that the assignment of the judgment was procured as the means to compel the complainants to pay their proper proportion of the amount therein recovered. Proofs in the suit do not establish that proposition, but if they did it would not benefit the complainants in this case, because the judgment had been recovered against the complainants as well as the respondents, and the former, as well as the latter, were liable for the whole amount recovered. Pending the suit in which the judgment was recovered, it is true the plaintiff had agreed that, if these complainants would make no further defence to his action of trespass, his judgment, in case he prevailed, should be levied on the property of the other defendants, and the record shows that they accepted that secret proposition, and gave their associates no aid in conducting the defence at the second trial. But they were not discharged from their joint liability, and the verdict and judgment were against them as well as against the other parties. Conceded intention of the plaintiff was to collect his whole claim, but he was willing to agree secretly with the complainants to collect the whole amount of the other parties to facilitate his recovery in the suit. Theory of the suit was, that the defendants were joint trespassers, and if such was the fact the plaintiff must have known that he could not release one without discharging all the rest, who were jointly liable for the same wrongful act.

Present complainants were defendants in that judgment, and became liable with the other defendants to pay the whole amount. Prior to the rendition of the judgment any agreement between the plaintiff in the suit and these complainants, such as is now alleged in the bill of complaint, would, if construed to be a discharge, have been a good defence for all the other joint wrongdoers. Such a secret agreement entered into between a plaintiff and a part of the defendants in a suit is inequitable, as tending to promote injustice both as between the plaintiff and the other defendants, and as between those who were jointly liable for an error committed in an attempt to enforce their legal rights.

Parties are not only bound to act fairly in their dealings with each other, but they are not to expect the aid of a court of equity to enforce an agreement made with the intent that it shall operate as a fraud upon the private rights and interests of third persons.

Better opinion from the evidence is, that the purchase of the judgment by the assignees was made in good faith, and that they had no knowledge of the secret agreement between the judgment creditor and the complainants. Grant that the fact is so, still the complainants contend that the assignees of the judgment acquired no greater rights by the assignment than the assignor possessed at the time the assignment was made. General rule undoubtedly is, that the assignee of a judgment takes it subject to all defences which existed against it in the hands of the assignors at the time the instrument of assignment was executed.

When the assignees took the judgment in this case the complainants were legally liable, with the other defendants, and they were without any defence against the same, other than what arises from the agreement made by them in the trespass suit. Inequitable as that agreement was, it constituted n legal obstacle to the purchase of the judgment, and cannot be made the foundation for relief in this case. Payment of one-fourth of the judgment, as between the defendants in that suit, belonged to the complainants, and they having failed to pay their just proportion of the same, cannot complain that the assignees of the judgment have seen fit to levy that proportion of the same upon their property. Equal contribution to discharge a joint liability is not inequitable, even as between wrongdoers, although the law will not, in general, support an action to enforce it where the payments have been unequal. Where the liability is joint equal contribution is just, and it would afford the complainants no ground of relief if it appeared that the arrangement with the marshal was such as is alleged in the bill of complaint. Having collected three-fourths of the amount of the other defendants, it was quite right that he should, if possible, levy the balance so as to effect equal justice between the parties.

DECREE AFFIRMED WITH COSTS.

title: Selz v. Unna/Opinion of the Court


text: Talk:Selz v. Unna/Opinion of the Court

title: Talk:Selz v. Unna/Opinion of the Court


text:
Lorings v. Marsh

APPEAL from the Circuit Court for the District of Massachusetts.

The 25th section of chapter 92, of the Revised Statutes of Massachusetts, A. D. 1860,-a re-enactment, essentially of earlier statutes,-thus enacts:

'When any testator shall omit to provide in his will for any of his children, or for the issue of any deceased child, they shall take the same share of his estate, both real and personal, that they would have been entitled to, if he had died intestate, unless it shall have been provided for by the testator in his lifetime, or, unless it shall appear that such omission was intentional, and not occasioned by any accident or mistake.'

With this statute in force, Mrs. Loring made her last will. She had, living at this time, a son (Josiah), who had, living, three children, Mrs. Loring's grandchildren, of course; and two daughters, one married (Mrs. Cornelia Thompson), but not having issue, and the other single, Miss Abby Loring. By her last will, Mrs. Loring left the bulk of her estate to two persons, Marsh and Guild, of Boston—

'To have and to hold the same to them and the survivor of them, and their and his heirs and assigns forever, to their own use, but in trust, &c.; to hold, manage, invest and re-invest the same according to their best discretion; and to pay over one-third of the net income therefrom to my daughter, Abby, during her life; to pay over another third of said income to my daughter, Cornelia Thompson, during her life; and to pay over another third of said income to my son, Josiah, during his life; so that the said income shall go to them personally, and shall not be liable for their debts, or to the control of any other person; and upon the decease of my said children, severally, the shares of said income which they would continue to take if living shall be retained and invested by the trustees until the decease of my last surviving child, and shall then, with the principal, or trust fund, be disposed of for the benefit of the poor, in the manner hereinafter provided.'

The will proceeded:

'It is my will that when, upon the decease of all my children, the trust fund is to be disposed of as aforesaid, the said Marsh and Guild, or their successors, as trustees, shall select and appoint three or more gentlemen, who shall be informed of the facts by the trustees, and shall determine how, by the payments to permanently established and incorporated charitable institutions, my wish to benefit the poor will be best carried into effect, and my gift may be made most productive of benefit to the poor; and that thereupon the said trust fund shall be disposed of and paid over, in accordance with the determination of the said gentlemen, certified by them in writing, to the trustees.'

The daughter, Mrs. Thm pson, having died during the life of the testatrix, Mrs. Loring made a codicil to her will, which, after reciting the former disposition of the income, proceeded:

'I revoke so much of my will as provides for the said division of the said income, and its payment in three parts; and order and direct that the said income be paid, under the conditions and provisions in my said will contained, to my daughter, Abby, and my son, Josiah, they me surviving, in equal shares during their joint lives, and one-half thereof to the survivor of them, during his or her life, it being my intention that my said two children shall have the whole of the said income in equal shares during their joint lives, if they shall both survive me, and the survivor of them one-half of the said income during his or her life.'

After this codicil was made (the testatrix, however, yet living), the son, Josiah, died, leaving three children. Soon afterwards, July 16th, 1862, Guild, one of the trustees named in the will, died; and, last of all, about four months after this, Mrs. Loring herself. Guild, having thus died in the lifetime of the testatrix, Marsh, the surviving trustee, appointed the committee of three persons whom the testatrix had designated as the persons to determine the charitable institutions among whom her estate should go, and the committee named them.

Miss Abby Loring, the single daughter of the testatrix, having died soon after her mother, unmarried and intestate, the three children of Josiah Loring, these being the sole heirs-at-law of Mrs. Loring, the testatrix, now filed their bill against Marsh and others, to have the estate, or their share of it.

The grounds of the claim as made here, and in the court below, were:

1. That the omission of Mrs. Loring was 'unintentional, and occasioned by accident or mistake;' and the case so within the statute.

2. That the power conferred by the will upon the trustees, Marsh and Guild, to appoint persons to designate the objects of the testatrix's charity, had not been and could not, owing to the death of Guild, in Mrs. Loring's lifetime, be legally executed.

3. That the devise to the charitable uses was void, because, from defect of capacity to appoint, they were now uncertain and incapable of being ascertained.

In accordance with the law of Massachusetts, oral evidence was taken on both sides as to the intention of Mrs. Loring to exclude her son's children. On the one hand there was the positive testimony of a girl or young woman, named Pratt, who stated that she had lived in Mrs. Loring's family for over seven years, as a 'companion' to Mrs. Loring, but whose services, Mr. Thompson, the son-in-law of Mrs. Loring, testified were purely servile. This person, who the record showed had been called by Mrs. Loring as a witness to her will, testified that she had often, very often, heard Mrs. Loring say that her son's children should not derive any benefit from her estate after her death; that this was said both when the will and after the will and codicil were made; the cause being a dislike which she had of her son's wife's family. On the other hand there was testimony by the same son-in-law, that Mrs. Loring exhibited no dislike to her grandchildren, the complainants, and never expressed to him any intention of the sort above mentioned. But beyond this there was no attempt to impeach the testimony of the first witness, and her character appeared to be fair.

The court below dismissed the bill.

Messrs. B. R. Curtis and Cushing, with Hutchins and Wheeler, for the appellants:

I. The first question is, whether the grandchildren are not entitled, by force of the statute, to the same share of Mrs. Loring's estate as they would have been had Mrs. Loring died intestate.

1. The time to which the question of omission applies is the time of Mrs. Loring's death. Not having then made any provision by her will, or anyc odicil for the issue of her deceased son, the case of the statute arises. She had made a will and left issue of a deceased child without having made any provision for them. Bancroft v. Ives, is in point. That was the case of a son born after the making of the will, but it cannot be distinguished from the case of grandchildren, who became the issue of a deceased son, and so within the statute, by the death of their father after the making of the will.

2. It does not appear that such omission was intentional, and was not occasioned by accident or mistake.

(a) The evidence of intention to disinherit an heir should be such as to leave no reasonable doubt of the existence of a formed and settled intention. The common law always favors the heir, and one of its well-known rules is that an heir cannot be disinherited, even by a will, unless there are express words or a necessary implication to that effect. A fortiori, where the disherison is to be effected by parol evidence of mere declarations of the testator.

(b) It is the office of such evidence to supply the omission of a clause in the will declaring the intention of the testator to disinherit the heir. It is like the proof of the contents of a lost will by parol evidence, and the courts have held that this requires 'the clearest and most stringent evidence.'

If what was actually written, in a duly executed will, cannot be proved to disinherit the heir but by 'the clearest and most stringent evidence,' a fortiori, the heir cannot be disinherited by an intention never written at all, unless such intention shall be made out by this same evidence.

3. The true inquiry is this: Does it appear, by the clearest and most stringent evidence, that the testatrix had a formed and settled intention to disinherit the children of her deceased son; and that by reason of such intention they were not named in her will or its codicil?

(a) Looking at the will and codicil. The will was made plainly on the assumption that the son would survive the testatrix, and on no other. And the conduct of the testatrix when Mrs. Thompson died is in accordance with this; for when she died an alteration was made. But none when the son died: yet by the death of the father his children stood in a new position, and it is obligatory on the other side to show that in making her will the testatrix foresaw and meant to act in regard to this new position; a thing which cannot be shown.

(b) Then the oral testimony is insufficient to make a case for respondents.

title: Lorings v. Marsh


text: Talk:Lorings v. Marsh

title: Talk:Lorings v. Marsh


text:
Lorings v. Marsh/Opinion of the Court

The false account which the only important witness gives of her relation to Mrs. Loring; the great improbability that that lady would make a young servant girl the confidant of her settled intentions respecting her only grandchildren, which she imparted to no one else; the lapse of time; the infirmity and treachery of the human memory, even under favorable circumstances, as to mere casual declarations,-which so many rules of law are framed to guard against, and judicial experience recognizes,-all combine not only to deprive the testimony of this witness of the character of 'the clearest and most stringent evidence,' but to place it below the level of ordinary credibility. No member or connection of the family, no person standing in such a relation to the testatrix as to be likely to be the depositary of her serious and settled intentions respecting her only grandchildren, has been produced by the respondents. Her son-in-law had no knowledge of an intention to disinherit them.

The testatrix executed a will and a codicil before the decease of her son. These were ambulatory, and whether she intentionally omitted the complainants from them is not material, as no case under the statute then existed. And an intention to disinherit either children born after the making of a will, or the issue of a child dying after the making of a will, canno be proved by parol. It can be manifested only by making another will or codicil, from which the person is intentionally ommitted.

II. As to the execution of the power. Marsh alone could not execute it. This was not a power to appoint or select the donees of the property, nor to appoint the uses of the property. It was not a power over property. It was a naked authority, to nominate and appoint persons, who were to act for the testatrix in choosing the objects of her bounty, and to make known to them such facts as the two trustees should judge to be proper to guide or influence their judgment in the selection. From the nature of the case it must be a mere naked power, in contradistinction to a power coupled with an interest. A power coupled with an interest, means coupled with an interest in the property which is the subject of the power; and where, as in this case, property is not the subject of the power, the power cannot be coupled with an interest.

A naked power to two persons by name, cannot be executed by one.

The intention of the testatrix to give this property to charitable institutions, was never perfected. She intended to speak only through persons selected and informed by both Marsh and Guild. There being no such persons, there is no expressed will of the testatrix in behalf of the institutions who are respondents.

III. The devise is void for uncertainty. There being no mode, consistent with the will of the testatrix, of ascertaining the objects of her bounty, there is necessarily a resulting trust in favor of the complainants who are her heirs-at-law. The case will be rested on the other side on the power of acting cy pres; the power exercised by the Lord High Chancellor in England to make a will for a testator, simply because his will manifests some intention to make charitable bequests. But this is not a judicial power, and does not exist in any court of Massachusetts. Cy pres is not a doctrine of jurisprudence at all; it is an exercise of sovereign power; and with us, where the three powers of government are kept distinct, cannot be exercised by courts.

Messrs. S. Bartlett, F. C. Loring, and C. W. Loring, contra:

I. The statute under which the first question in this case arises is, it is well known in Massachusetts, but a re-enactment of earlier statutes, and by an unbroken series of decisions the Supreme Court of the State has given a uniform exposition of the true intent of those earlier statutes. This exposition is stated in Wilder v. Goss, thus:

'Whenever it appears that the testator has, through forgetfulness or mistake, omitted to bestow anything upon his child or grandchild, the legislature wisely intended to effect that which it is highly reasonable to believe the testator, but for such forgetfulness, would himself have done. To go further than this would be in its measure to defeat the principal intention of the legislature in the first section of the statute, which authorizes every person seized of an estate. . . to devise the same as he shall think fit. Whenever, then, it may fairly be presumed from the tenor of the will, or any clause in it, that the testator intentionally omitted to give a legacy or make a devise to his child or grandchild (whose parent is dead) the court will not interfere.'

This doctrine is reiterated down to the latest decision.

From the tenor of this will may it 'fairly be presumed' that the testatrix intentionally omitted to give a legacy to her grandchildren?

1. These grandchildren were in esse at the execution of the will and codicil, as was also their father, for whom proviso n is made. It is not, therefore, the case of grandchildren born after the making of the will and before the death of testator, and so 'forgotten' by her.

2. The cases are clear that where the gift is to grandchildren, omitting their parent, the mere statement that the grandchildren are the children of the son or daughter omitted, is conclusive that such son or daughter was not forgotten. So here; the father is named and provided for by the will for life, to the exclusion of his living children.

3. The studied exclusion of these grandchildren, then alive, by the provision that the gift to the father should, upon his death, go over to charity, and this again repeated in the codicil executed the year following, would seem conclusive of the intent of the testatrix. She must have anticipated the very event which has happened, viz., that, in the course of nature, the appellants or some of them would survive their father; but, notwithstanding this, she bequeaths the remainder of the estate, given for life to their father, to charity. To use the language of Sedgwick, J., in Terry v. Foster, 'He had not forgotten them (grandchildren), he makes complete disposition of his property. This shows he did not intend they should come in for their portion.'

The attempted answer of the appellants to this course of judicial decisions upon the statute is, that an intention to omit these grandchildren, in order to be legally effective, must be shown to have existed after the death of their father,-because it was only upon the happening of that event in the lifetime of testatrix that they become heirs apparent of the testatrix.

This proposition assumes that it is not possible by even express terms to manifest in a will an intention to exclude persons who may in future contingencies fill the relation of heirs of a testator. For if it be possible to manifest such intention in terms, then it is possible to do so by clear and just implication, and we thus come back to the question of what upon the authorities is to be deemed such just implication. Now in Prentiss v. Prentiss, a recent case, it is settled that a testator may by will exclude parties who in future contingencies will become his heirs. The will there excluded after-born children, and the plaintiff was subsequently born in the lifetime of his father, the testator. The court say:

'The sole inquiry is, whether it is sufficiently made to appear that such omission was intended and not occasioned by accident or mistake; all that is necessary to be shown is that the matter was in the mind of testator, and by him deliberately acted on.'

The appellants' theory being thus unsound, the question again recurs, whether, having regard to the judicial decisions of Massachusetts, a will and a subsequent codicil giving to a son an estate for life, excluding his then living children from taking the remainder, but devising it over to charities, presents, as to such children, a case in which, because their father died before testator, to use the language of the court in Goss v. Wilder, 'it is highly reasonable to believe that the testator but for forgetfulness' would have given them the inheritance, or a case of intended exclusion?-and it is submitted by us that it leaves nothing for doubt.

Some reliance is placed on that which is but a dictum of Shaw, C. J., in Bancroft v. Ives, that the 'time to which the question of omission applies is the time of testator's decease.' This was said in a case where the sole question was, whether children born after the making of a will should inherit, there being children alive when the will was made; and it was in answer to the argument that intention to omit should be construed to apply only to children in existence. Doubtless it is true that actual omission is only determined by the state of things t testator's death, but the intention to omit, as to parties alive, may be expressed by a will whensoever made.

The oral evidence of the actual intent of testatrix that these grandchildren should in no event share in her estate, is too strong to be disposed of in the way attempted on the other side. That evidence is unimpeached.

But the appellants object that the oral evidence, to be admissible, must be confined to declarations of testatrix after they become, by the death of their father, her heirs apparent; that the intention of testatrix must be shown as it existed after this change of condition, and that this subsequent intention can only be shown by a new will and not by oral declarations. The error of this position is, that it assumes that the testatrix could not by law, at the time she made her will, have foreseen this most natural and probable event, and have intended to provide for it by omitting these grandchildren and giving her estate to charities, and that, having this intention, as she may not have explained in her will the purpose of omitting them, her declarations of its being intentional is inadmissible. It proceeds on the ground that testatrix could by law have no such intent until after the event happened which made the grandchildren heirs apparent, for if she could, then her oral declarations of such intention are clearly admissible within the settled rule.

In view of the case of Prentiss v. Prentiss, it is unnecessary to again discuss the question whether the testatrix might not by law foresee and provide for the exclusion of future heirs, and, if this be lawful, then her oral declarations of intent to do so are as admissible as they would be in any case where the omission in a will to provide for an heir is, by the settled rule, open to explanation by such testimony. The principle, as stated in that case, shows that the intent to exclude future heirs needs no express provision in a will.

It is said by appellants that the oral testimony, if not confined to declarations after the death of the father, must be restricted to declarations of intention existing when the will was made. This is hardly accurate, since testimony of declared intention before the will was made, as well as after, is clearly admissible.

II. As to the execution of the power. If this were a case of a naked power (which it is not), and if the object of this gift were not (as it is) a public charity, but the property had been directed to be distributed among individuals to be selected from the public at large in the mode provided by the will, yet the power might be well executed by the surviving trustee, since the gift in trust is to 'Marsh and Guild, and the survivor of them.' And although this phraseology is not repeated in the clause as to the selection 'of three or more gentlemen,' yet such is the necessary legal implication. Again, the terms are, 'said Marsh and Guild, or their successors as trustees, shall select,' and this settles conclusively that it is not a 'personal trust' in the parties named, but a trust virtute officii, and then, by the terms of the trust and by law, the power remains to the survivor.

Again (aside from the fact that this is a gift to charity), if its purpose was to benefit individuals, and if there were no words of survivorship, and the power was joint and personal to Marsh and Guild, it is submitted that it is a power in nature of a trust, and the court would require its execution by the survivor. But here the trustees were seized and possessed of the property, and the power to be exercised was not a naked one, but incident to and coupled with the disposition by them of their title in the trust property. It was a power coupled with an interest, and that disposes of the question.

It is said by the appellants, that the power in u estion was not to dispose of property, but to select others according to whose direction the property was to be disposed of, and that such a power cannot be one coupled with an interest, but must be a mere naked power. If the title had not been vested in these trustees, but had remained in the heirs-at-law, perhaps the appellants' position would be true. But the fact that it was thus vested, brings the case directly within the definition of a power coupled with an interest, and it is none the less so by reason of the fact that the power coupled with this interest is to select others to designate the object, as well as to convey the estate to the objects thus designated.

III. But if this were otherwise, yet this is a gift to charity, which is never allowed to fail.

'Where there is a general intention shown by the donor to give to charity, the failure of the particular mode in which the charity is to be effectuated will not destroy the charity. The law will substitute another mode of devoting the property to charitable purposes, though the formal intention as to the mode cannot be accomplished. This principle of construction, it will be observed, differs entirely from that applicable to a bequest to individuals, when on failure of the mode the gift fails altogether.'

'The same will follow when a testator, after making a bequest to such charitable uses as his executor shall appoint, revokes the appointment of the executor, or the executor himself renounces probate, or when the testator, after making a bequest to said charitable uses as A. shall appoint, A. dies in the lifetime of the testator or neglects or refuses to make an appointment.'

The above are the settled doctrines of courts of equity in England, in carrying into effect the statute of Elizabeth. This suatute is fully administered as part of the common law of Massachusetts, and it has been recently decided by its highest tribunal, that where the charitable gift is devised to trustees, the court will not allow it to fail, but apply, if necessary, the cy pres doctrine.

Mr. Justice NELSON delivered the opinion of the court.

The first question in the case arises on the following provision of a statute of the State of Massachusetts: 'When any testator shall omit to provide in his will for any of his children, or for the issue of any deceased child, they shall take the same share of his estate, both real and personal, that they would have been entitled to, if he had died intestate, unless it shall have been provided for by the testator in his lifetime, or, unless it shall appear that such omission was intentional, and not occasioned by any accident or mistake.' As it is admitted that no provision was made by the testatrix in her lifetime for the issue of the deceased son, the question turns on the remaining clause of the statute; and, so far as regards an examination of it with reference to the terms of the will, depends on facts, which may be stated as follows: At the date of the will, in which a life estate was given to the son, his children were living, but were not noticed therein by the testatrix, nor in the codicil of the 14th July, the year following, in which the life income of the son was increased.

There is, therefore, an entire omission to make any provision for the issue, or, even to notice them in the will, which brings the complainants directly within the enacting clause of this statute, and entitles them to a share of the estate h e same as if the testatrix had died intestate, unless, in the language of the act, 'it shall appear that such omission was intentional, and not occasioned by any accident or mistake.' Whether or not the omission was intentional, or by mistake, may be ascertained from a careful perusal of the terms of the will, or by parol. This is the settled construction of the statute by several decisions in the courts of Massachusetts, where, it is said, that whenever it appears the testator has, through forgetfulness or mistake, omitted to bestow anything upon the child or grandchild, the legislature intended to effect that which it is highly reasonable to believe, but for such forgetfulness, he would, himself, have done. And, speaking of an examination of the will as bearing upon the subject, it is observed, that whenever it may fairly be presumed from the tenor of the will, or from any clause in it, that the testator intentionally omitted to give a legacy, or make a devise to a child or grandchild (whose parent is dead), the court will not interfere.

In the present case it is claimed, that by a perusal of the will, or by the parol proof, or both, it satisfactorily appears, that the omission by the testatrix was intentional, so as to cut off the grandchildren, the complainants.

The grounds upon which this is urged on the part of defendants are—

(1) That the grandchildren were living at the time of the execution of the will, and of the codicil, as was also their father, for whom particular provision was made out of the estate. It is insisted that the testatrix, in settling upon the portion thus devised to the father on both of these occasions, must have had present to her mind the grandchildren; that it is not natural, or reasonable to suppose, she could, on each of them, have deliberately and solemnly made provision for the father, without taking into consideration the state and condition of his family, which then consisted of his wife and the three grandchildren, and, in confirmation of this view, cases are referred to where the gift was to the grandchildren, omitting the parent, and the mere statement in the will that the grandchildren were the children of the son or daughter omitted, was held conclusive that the son or daughter was not forgotten, but intentionally omitted-such as a gift 'to the children of her son Edward'-or 'to grandchildren of his daughter Sarah.'

(2) The studied exclusion of the grandchildren, then living, by limiting the provision made for the father to a life estate, and, at his death, giving it over to charitable uses-and repeating the same limitation in the following year on the execution of the codicil. In view of these circumstances, and this posture of the case, it is insisted that the testatrix must have had called to her mind the children of the son, and also the further fact, that, in the ordinary course of nature, the children, or some of them, would survive the father; notwithstanding all which, she limited the provision for the father to a life estate, and devised the remainder over from the children.

It has been argued that the time to which the question of omission has reference, is the time of Mrs. Loring's decease. This, in a general sense, may be true, because, till then, it was possible for her to make provision in a codicil, or by a new will, for the grandchildren. It could not, therefore, be absolutely known before her decease that such provision would not be made. But, whether the omission was intentional, or by mistake, is not confined to this period; on the contrary, when the question is answered from a perusal of the will, it is necessarily limited to the time of its execution. And, even when it depends on oral proof, that proof is received for the purpose of ascertaining the mind of the testatrix at the same period. For, it is the state of her mind at the time of the execution, generally speaking, that is to be looked to in the contemplation of the statute, with a view to determine whether the omission was intentional, or by mistake.

This case has been likened, in the argument, to that of a child born after the making of the will, because the grandchildren only became the issue of a deceased son after the death of their father, and which occurred subsequent to the execution of the will and codicil. Whether this be so or not, cannot change the aspect of the case, or the principles that must govern it.

Undoubtedly, in the case of a son born after the making of the will, and before the death of the father, the omission to provide for him cannot be known till the death of the father, for, till then, it was competent for him to make the suitable provision. This was the case of Bancroft v. Ives. But, even in that case, it was conceded to be competent for the adverse party to prove that the omission was intentional, and evidence was received and examined on the point. It was held to be insufficient for the purpose. But, in the case of Prentiss v. Prentiss, it was held, that a child born after the will, and before the decease of the father, was intentionally omitted, as appeared plainly on the face of the instrument. It is, doubtless, more difficult to establish that the omission was intentional, in the case of children born after the will, than if born before, and living at its date. But it would seem from the course of decisions that this is the only distinction, if it be one, in the statute.

Our conclusion on this branch of the case is, that upon a perusal of the provisions of the will, regard being had to the course of decision under the statute in the courts of the State, it sufficiently appears, especially in connection with the oral proof, that the omission to provide for the issue of the deceased son in the will was intentional, and not by accident or mistake.

The next question in the case is, whether or not the power conferred by the testatrix upon the trustees, L. H. Marsh and S. E. Guild, to appoint three or more persons to designate the objects of her charities under the will, has been legally executed.

It is insisted, on the part of the complainants, that the power of appointment is a naked authority to appoint persons who were to act for the testatrix in choosing the objects of her bounty, and to make known to them such facts as the two trustees should deem proper to guide or influence them in the selection; that it was a personal power which looked to the merit and qualification of the individuals for the discharge of the particular duty; and, that being a naked power, the survivor was incompetent to execute it.

If the premises are well founded the conclusion is undeniable.

We are satisfied, however, that this is a mistaken view of the authority conferred on the trustees. They were invested with the whole of the legal estate, and were to hold the same in trust to 'manage, invest and reinvest the same according to their best discretion,' and pay over the income to the three children of the testatrix during their lives; and, on their decease, the said Marsh and Guild, or their successors, as trustees, shall select and appoint the three persons, &c., and thereupon the said trust fund shall be disposed of and paid over in accordance with the determination of the said persons, as certified by them in writing. And then direction is given in the will to the trustees to sell and convey any and all the real estate which may be in their hands, at their discretion, for the benefit of the charities.

Now, it is quite clear, from this reference to the will that the trust conferred upon Marsh and Guild could not have been intended as a personal trust looking to the fitness of the donees of the power, as it is conferred upon them and their successors; and, as the execution of the trust for charitable uses was postponed by the terms of h e will until after the decease of the three children of the testatrix, it was natural and reasonable to have supposed that it would not take place in the lifetime of the trustees named, but would descend to their successors.

But what is more decisive of the question is, that inasmuch as the trustees are invested with the legal estate, in order to enable them to discharge the various trusts declared, it is well settled that the power conferred is a power coupled with an interest, which survives, on the death of one of them, and may be executed by the survivor. (See the authorities above referred to.) It is not necessary that the trustees should have a personal interest in the trust; it is the possession of the legal estate, or a right virtute officii in the subject over which the power is to be exercised, that makes an interest, which, when coupled with the power, the latter survives. A trust, therefore, will survive when in no way beneficial to the trustee.

We have said the trustees were invested with the legal estate for the purpose of enabling them to perform the various trusts devolved, such as managing the estate, investing and reinvesting the funds belonging to it, paying over the income to the children during their lives, converting the real estate into personal, and, among others, the selection and appointment of the committee of gentlemen who were to designate the donees of the charity. This was one of the incidental trusts or duties devolved upon them by the testatrix, as trustees of the estate, upon whom she had conferred such large powers over it, and which, on the death of Guild, survived with the other trusts to the co-trustee. No well-grounded distinction can be made between these trusts. If the power survives as to one of them it survives as to all, as it is apparent on the face of the will that the trustees were to act in the same capacity in the execution of all of them.

As it respects this devise to charitable institutions there can be no doubt upon the law of Massachusetts, as habitually administered in her courts, but that the objects of the bounty are made sufficiently certain by the mode pointed out in the will; and as the question is to be determined by the local law of the State there is an end of the objection.

DECREE AFFIRMED.

title: Lorings v. Marsh/Opinion of the Court


text: Talk:Lorings v. Marsh/Opinion of the Court


text:
Mussina v. Cavazos

MOTION to dismiss a writ of error to the District Court for the Eastern District of Texas; the case being thus:

The twenty-second section of the Judiciary Act provides that

'Judgments and decrees of the District Courts may be re-examined, and affirmed or reversed in a Circuit Court, upon a writ of error, whereto shall be annexed and returned therewith, at the day and place therein mentioned, an authenticated transcript of the record, an assignment of errors, and a prayer for reversal; with a citation, &c. And upon like process may judgment in the Circuit Courts be re-examined in the Supreme Court.'

In this case there was only a copy of the writ annexed to the transcript; but the plaintiff in error had filed an affidavit by which it appeared that during the late civil war, the records of the court had been almost entirely burnt up, and he swore that, as he verily believed, there were none of the original papers of the cause now in existence. Assuming the copy of the writ of error thus returned with the transcript to have been a true copy, then the clerk had made his writ to run thus:

'Because in the record and proceedings, as also in the rendition of judgment of a plea which is in said District Court before you, in which Simon Mussina is plaintiff in error and Maria Josefa Cavazos and Estefana Goascochea de Cortina are defendants in error, manifest error hath happened to the great damage of the said Simon Mussina,' &c.

The writ, it will be observed, did not say who was plaintiff below and who there defendants; though the description of the parties, as they appeared in this court, was correct. The petii on for the writ of effor, as contained in the transcript of the record, describes the parties thus:

'In a certain cause wherein Maria Josefa Cavazos and Estefana Goascochea de Cortina were plaintiffs and Simon Mussina defendant, a final judgment was rendered,' &c.

The bond given by plaintiff in error described the parties in the same manner.

Messrs. Robinson and Hale rested their motion to dismiss on the ground, 1st, that the twenty-second section of the Judiciary Act above quoted made it indispensable to the jurisdiction of this court that the writ of error itself annexed to the transcript, should be returned therewith; that here the writ of error was not returned, relying in support of their view on this point upon Castro v. United States, and the previous case of Villabolos v. Same; and 2d, that admitting that a copy might be substituted for the writ, and that the copy here was a true one, the parties to the suit had been fatally misdescribed in the original.

Messrs, Sherwood and Edmunds, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Mussina v. Cavazos


text: Talk:Mussina v. Cavazos

title: Talk:Mussina v. Cavazos


text:
Mussina v. Cavazos/Opinion of the Court

We are of opinion that the original writ should always be returned to this court with the transcript of the record. The writ of error is the writ of this court, and not of the Circuit Court, whose clerk may actually issue it. The early practice was, that it could only issue from the office of the clerk of the Supreme Court, and in the case of West v. Barnes, at the August term, 1791, it was so decided. This decision led to the enactment of the ninth section of the act of 1792, by which it was provided that the clerk of the Supreme Court, assisted by any two justices of said court, should prescribe the form of a writ of error, copies of which should be forwarded to the clerks of the Circuit Courts; and that such writs might be issued by these clerks, under the seals of their respective courts. The form of the writ provided under this act has been in use ever since. It runs in the name of the President, and bears the teste of the chief justice of this court. It is in form and in fact, the process of this court, directed to the judges of the Circuit Court, commanding them to return with said writ, into this court, a transcript of the record of the case mentioned in the writ.

When deposited with the clerk of the court, to whose judges it is directed, it is served; and the transcript which the clerk sends here, is the return to the writ, and should be accompanied by it.

In the case before us, the plaintiff in error, by way of substitute for a writ of certiorari, has filed an affidavit, from which it appears, that, without his fault, the writ has been destroyed by burning, during the late civil war. Taking the copy of the writ found in the record to be a true copy, it may be considered as established, that a writ of error was issued and served, and that a transcript of the record, with a copy of the writ, was returned and filed in this court, before the first day of the next term after it was issued, and that the original writ is destroyed.

We have repeatedly held that the writ of error in cases at law is essential to the exercise of the appellate jurisdiction of this court. And it is undoubtedly true that this court has gone very far in requiring strict compliance with the acts of Congress under which cases are transferred from inferior tribunals to this court.

In the case of Castro v. United States, we held, on consideration of the previous cases, and on principle, that unless the transcript from the court below was returned before the end of the term next succeeding the allowance of the appeal, this court had no jurisdiction. Although the question there arose on an appeal, the principle decided is equally applicable to a writ of error; for the act of 1803, which first authorized appeals, subjects them to the rules and regulationsw hich govern writs of error. The ground of that decision, and also of the case of Villabolos v. United States, which preceded it, is the general principle, that all writs, which have not been served, and under which nothing has been done, expire on the day to which they are made returnable. They no longer confer any authority; an attempt to act under them is a nullity, and new writs are necessary, if the party wishes to proceed. Hence we have the alias writ, and others in numerical succession indefinitely.

It is now insisted, upon the authority of these cases, and of the language of the twenty-second section of the Judiciary Act, that the absence of the original writ in the case deprives this court of the power to decide it. It is said that, by force of the words 'returned therewith,' contained in this twenty-second section, it is made essential to our jurisdiction that the original writ and the transcript must both be returned.

If this be a sound construction, then it is equally necessary that there shall be returned, at the same time, an assignment of errors, a prayer for the reversal of the judgment, and a citation to the adverse party. But an examination of all the records of cases decided in this court will show that, in four cases out of five, there has been neither an assignment of errors, nor any prayer for reversal. We have also held, frequently, that if the appeal is taken in the open court, during the term at which it was rendered, in the presence of the appellee, no citation is necessary, and that a general appearance in this court for defendant in error, or in appeal, waives the necessity of a citation.

The act referred to also says, that all these things must be returned together at the 'time and place mentioned in the writ,' that is to say, on the first day of the term next after the issuing of the writ. Yet we have repeatedly held, that if returned on any day during that term, we will hear and decide the cause. It cannot, therefore, be maintained, that a rigid and literal fulfilment of everything prescribed in that section, is an absolute and indispensable requisite to the appellate jurisdiction of this court.

Nor does the case come within the principle which we have already stated as governing the cases of Villabolos v. United States, and Castro v. United States. In these cases the appeals were dismissed, because no returns of the transcripts to this court were made, until by analogy to the writ of error, the time for making such returns had passed: and the writs, if writs had been issued, would have become functus officio. In the case before us, on the contrary, it fully appears that during the life of the writ, a good and sufficient return to it was made, by sending to this court an authenticated transcript of the record. Shall we now hold, because with this return there did not come the writ itself, that what has been done under it is void, and we are without jurisdiction? This would be contrary to the uniform practice of other courts in regard to their writs. For it is believed to be well settled, that rights acquired under a valid writ or process, while it was in force, cannot be defeated by the loss or destruction of the writ; if its existence, and the acts done under it, can be substantiated by other testimony. It is as reasonable to hold that a judge of this court would lose his right to sit in this place, if his commission was burned up, as to hold that the court loses the right to hear a case, because the writ was burned before it reached the court, but after it had effected its purpose, by bringing here the transcript.

In the case of Brooks v. Norris, the court, in speaking of bringing a writ of error within the time allowed by the statute of limitation, says: 'The writ of error is not brought, in the legal meaning of the term, until it is filed in the court which rendered the judgment. It is the filing of the writ that removes the record from the inferior to the appellate court, and the period prescribed b the act of Congress must be calculated accordingly.' In Ableman v. Booth, the writ of error, which issued from this court, was filed with the clerk below. No return being made to it, a rule from this court was served on him by the marshal, to which he paid no attention. This court then, on motion of the Attorney-General, permitted him to file a copy of the record, duly authenticated, which had been secured for his private use; 'to have the same effect and legal operation as if returned by the clerk with the writ of error;' and on this record the case was heard and decided, although the original writ of error was never returned.

We are, therefore, of opinion, both on principle and authority, that the case should not be dismissed for the nonproduction of the writ of error. The cases dismissed under rule nine of this court, are governed by the rule, and raise no question of jurisdiction.

But it is said, that conceding the copy of the writ of error in the record to be a true copy, and to be rightfully substituted for the original, it is fatally defective, because it does not correctly describe the parties to the suit. The parties are correctly described in the writ as they must appear and be styled in this court, but we are not told by the writ who was plaintiff and who was defendant below. The full names of all the parties to the judgment below are given, and their relations to the suit as it stands in this court are given. We are also told, that the error (if any) committed by the District Court, was to the manifest injury of Simon Mussina, plaintiff in error. Is the writ then void because it does not say which of these parties was plaintiff in that court and which defendant?

We think that the description, although not in the usual or even the most appropriate form, is sufficient. If there is any doubt about the relation of the parties to the suit below, it can be solved by the record. Having that before us, we see that Mussina was defendant below, and is properly described as plaintiff in error in the new proceedings instituted by the writ, and that the others were plaintiffs below, and are also properly described as to their relations to the new proceeding which that writ commences.

But many cases have been dismissed by this court, because the writ of error described either plaintiff or defendant as 'A. B., and others,' or 'A. B. & Co.,' or other partnership style, or as 'Heirs of C. D.,' and such other descriptions as did not give the names of all the persons who were supposed to be brought before the court by the writ. Of late years these cases have simply been dismissed upon the authority of previously adjudged cases, without giving other reasons for so doing.

It is claimed that the case before us falls within this class, in the matter we are now considering. To determine if this be so, we must go back to the earlier of these cases to discover the principle on which they were decided.

Early in the history of the court it was ruled that unless all the parties in the court below, to a joint judgment or decree, were made parties in this court by the writ of error or by the appeal, the cause would not be entertained. This was first held as to judgment at law, in the case of Williams v. Bank of United States, and as to decrees in chancery, in the case of Owings v. Kincannon. At the next term of the court after this last decision, we have the first of the class of cases to which we have alluded. It is the case of Deneale v. Stump's Executors. The writ described the plaintiffs in error as 'Mary Deneale and others,' and the reasons given for dismissing it are two: 1st, that all the parties against whom the judgment was rendered must join in the writ, which is not done by naming some of them merely as 'others;' and, 2d, that the names should be set forth, that this court might render the proper judgment in the case. The opinions in the three cases last cited were delivered b C. J. Marshall.

The next of this class of cases is that of Wilson's Heirs v. The Insurance Company, in which the court holds that a writ in the name of the 'Heirs of Nicholas Wilson,' must be dismissed. The court simply says, that this is done on the authority of Owings v. Kincannon, and of Deneale v. Stump's Executors. The subsequent cases are all based on the authority of these decisions. In all of them it appeared by the writ that there were parties to the judgment below, not personally named in the writ. But an examination of this writ of error raises no such presumption. Nor can the court be at any loss from this writ, to properly name the party or parties for and against whom it will render its judgment, when it has decided the merits of the controversy.

The present case, therefore, does not fall within the principle of any of the numerous cases cited by counsel, or of others examined by the court.

MOTION OVERRULED.

This case came on afterwards to be argued on its merits, and was elaborately so argued by the same counsel who had argued the motion to dismiss; but it being discovered by the court that the bill of exceptions, which occupied seven-tenths of a closely-printed record of 522 pages, had not been either signed or sealed by the judge below—

Mr. Justice SWAYNE delivered the following opinion of the court.

Whatever might be our opinion of the exceptions which appear in the record, if they were presented in such a way that we could consider them, we find them beyond our reach. The bill of exceptions, or what purports to be a bill of exceptions, covering more than three hundred and fifty pages of the printed record, is neither signed nor sealed by the judge who tried the case; and there is nothing which shows that it was submitted to him or in any way received his sanction.

We are therefore constrained to affirm the judgment, and it is

AFFIRMED ACCORDINGLY.

title: Mussina v. Cavazos/Opinion of the Court


text: Talk:Mussina v. Cavazos/Opinion of the Court


text:
Grisar v. McDowell

ERROR to the Circuit Court for California; the action there having been to recover possession of a tract of land within the by of San Francisco.

The plaintiff claimed as seized in fee under title from the city of San Francisco. The defendant claimed possession as an officer of the United States; setting up that the property was public property of the United States reserved for military purposes.

The city's title was thus: It seemed to be sufficiently plain, from historical evidences and from adjudicated cases, that at the time of the conquest of California by the United States, there was at the present site of San Francisco a pueblo of some kind; that is to say, that there was a settlement or collection of individuals there having an ayuntamiento composed of alcaldes, regidores, and other municipal officers.

It seemed sufficiently plain also that there were general Mexican laws governing the subject, which authorized territory to an extent not exceeding four square leagues to be marked out and dedicated to the use of pueblos and of their inhabitants for certain purposes.

What, however, was the precise nature of this pueblo at San Francisco, or what the nature of its rights or of pueblo rights generally in any four leagues, and by what lines these particular four leagues were to be defined, was not so clear, nor at all conceded: though it was asserted by the plaintiff that the four leagues in immediate connection with San Francisco, were to be measured from the presidio of the old pueblo, the place occupied by the garrison of the town; and hence were to be bounded of necessity on three sides by waters of the ocean, the bay and the Golden Gate. And it was shown that a line drawn from water to water, east and west, would segregate in the easiest manner the four leagues to which, as successor of the former pueblo, the city was entitled.

If such a line had ever been drawn, the tract now in controversy would have been included within it. But there was no evidence that any assignment of land had ever in any way been made to the pueblo where San Francisco now stands, under the former government.

On the 3d of March, 1851, Congress passed the act to ascertain and settle private land claims in California. This act by its eighth section makes it the duty of every person having claims to lands there, to present them for investigation and the evidence in support of them, to a board of commissioners, which was created by the act. The fourteenth section declared, however, that the general requirements of this eighth section should not extend to 'any town lot, farm lot or pasture lot held under any grant from any corporation to which lands may have been granted for the establishment of a town by the Spanish or Mexican government, or the lawful authorities thereof, nor to any city, town, or village lot, which city, town, or village, existed on the 7th day of July, 1846, but that the claim for the same shall be presented by the corporate authorities of said town,' and that 'the fact of the existence of the said city, town, or village, on the said 7th of July, 1846, being duly proved, shall be prima facie evidence of a grant to such corporation.'

In July, 1852, the city presented to this board a claim for the four leagues, praying a confirmation; and in December, 1854, the board confirmed the claim to a portion of the land, in which portion were embraced the premises now in controversy.

In June, 1855, in virtue of an ordinance known as the Van Ness Ordinance, passed by the common council of the city of San Francisco, and subsequently, in 1868, ratified and confirmed by the legislature of California, whatever right the city had to the premises in controversy, on the 1st January, 1855, passed to a party under whom the plaintiff claimed.

Such was the plaintiff's case.

By the defendant's, it appeared, that in November, 1850, the President of the United States made, through the War Department, and in a usual way, an order that a certain parcel of land described by him, situated on the bay of San Francisco, California, and which, it was said by one side here, did, in point of fact, embrace the premises in controversy, and by the other that it did not-should be exempted from sale and reserved for public purposes. A private claimant to this tract proposing subsequently that certain other bounds should be substituted, with the understanding that if this was agreed to by the government he would resign all pretensions to title within the reservation, as fixed by the modified boundary proposed, the President, in December, 1851, in compliance with a recommendation to that effect from the Engineer Department, made in October, 1851, modified and reduced the reservation, describing it more particularly, and in such a way as to divide the tract originally reserved into two separate tracts, and, as it was said on one side here, to include also, land not included in the original order. In one of these tracts, the premises in controversy were embraced.

The fact, therefore, that the President had reserved the tract for the purposes of the Federal government, was one part of the defendant's case. Another was this:

In stating the city's title it has been said that the board of land commissioners, in December, 1854, confirmed the claim of the city to a part of the four leagues claimed by it as a pueblo, which part included these premises. If the matter had stopped there, the case of the plaintiff might have been free from question. But it did not stop there. The sequel was thus:

In March, 1856, a transcript of the proceedings and decision of the board was filed in the District Court of the United States; this opr ating under the statute of August 31st, 1852, as an appeal by the party against whom the decision was given. Both City and United States in this case considered the decision as against them, and both gave notice of their intention to appeal. The appeal of the United States was, however, on notice of the Attorney-General and the stipulation of the district attorney, dismissed, and the city alone prosecuted its appeal. While the appeal was thus pending in the District Court, Congress passed an act by virtue of which the case became transferred to the Circuit Court of the United States. That court, in May, 1865, confirmed the claim of the city to the four leagues, excepting, among others, such parcels of land as had been previously 'reserved or dedicated to public uses by the United States;' meaning by this, the tracts reserved as above mentioned by the then President, Mr. Fillmore. From this decree of the Circuit Court, the United States appealed to the Supreme Court at Washington.

After the appeal taken (but previous to the trial in the present case), Congress relinquished all right of the United States to land situated within the city of San Francisco, and confirmed to it by the decree just mentioned, to the city, and confirmed the city's claim; subject, however, to the reservations and exceptions designated in that decree, and also subject to certain specified trusts. The appeal of the United States to the Supreme Court was accordingly dismissed.

On the trial of the present case the plaintiff objected to the admission of the evidence of the first reservation of the President, on account of its indefiniteness of description, and because the President could not make a reservation out of pueblo lands; and of the second one among other reasons because it was the result of a compromise between the government and an adverse claimant.

He objected also, to the admission of the decree mentioned as having been made in the Circuit Court, it being admitted on the other side that an appeal was taken to it by the United States and was still pending.

The objections were all overruled; and judgment having been given for the defendant, the case was now here on error.

The case, it will be seen, involved essentially the question of the nature of the title and ownership of lands held by Mexican pueblos under the laws of Mexico in force in California, at the date of the conquest of that country, and, to some extent, of the nature of a pueblo itself.

Messrs. Cushing, Cole, and Reverdy Johnson, for the plaintiff in error, contended that, at the time of and long before the American occupation, San Francisco was an organized pueblo; that as such she was by the Mexican law proprietor in fee of four square leagues of land; that the limits of the land were certain; that the title was not an inchoate or imperfect title, but that the entire fee and use-the dominion both direct and useful-was in the pueblo; a matter on which they cited the Partidas and other Spanish authorities; that being private property, the President had no power to make a reservation out of it; that the fourteenth section of the act of March 3d, 1851, was a recognition by the United States of the pre-existing title of the city, and estopped them from pretending to title after that; that the decree of the Circuit Court of the United States in the case of United States v. The City of San Francisco, was not admissible in evidence, an appeal having been taken therefrom, which destroyed its effect as evidence of title; that the decree entered by consent in the United States District Court, on motion of the United States District Attorney, that the United States would not prosecute an appeal from the decree of the board of land commissioners, and that the city should have leave to proceed upon that decree as upon a final decree, was a final adjudication of the title to the land embrc ed within it, and vested the title absolutely in the city.

Mr. Stanbery, A. G., and Mr. Lake, contra.

Mr. Justice FIELD delivered the opinion of the court.

title: Grisar v. McDowell


text: Talk:Grisar v. McDowell

title: Talk:Grisar v. McDowell