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United States v. Nickerson/Opinion of the Court

This case comes before us upon a certificate of division of opinion by the judges of the circuit court of the United States for the district of Massachusetts.

At the March term, 1854, of the district court of the United States for the district of Massachusetts, Nickerson was indicted for the crime of perjury. The indictment charged, that in order to obtain the allowance of bounty money, on account of the employment of a vessel in the cod fishery, of which vessel he was the agent, he made oath before the collector of the district of Barnstable, where the vessel was enrolled and licensed, that a certain paper, produced by him to the collector, was the original agreement made with the fishermen employed on board the vessel during the fishing season then last past; that three fourths of the crew so employed were citizens of the United States, or not subjects of any foreign prince or state; and that these statements were false, and known to the defendant to be so when he made the oath.

Upon this indictment Nickerson was tried and acquitted.

At the May term, 1854, of the circuit court for the district of Massachusetts, Nickerson was again indicted, and to this last indictment pleaded specially his former acquittal, and the plea was demurred to.

The question raised by this demurrer, and upon which the opinions of the judges were opposed, is, whether the same evidence, which is competent and essential to support the indictment in the circuit court, might have been admitted in support of the former indictment in the district court.

The demurrer admits that the defendant is the same person charged by the former indictment, and that the oath alleged in the former indictment to have been taken, is the same oath alleged in this indictment. It appears from a comparison of the two indictments that the same occasion of taking the oath is alleged in both; that occasion being to obtain an allowance of money from the United States, as bounty, on account of the employment of a vessel called The Silver Spring, in the cod fishery, during the season then last past.

Each indictment contains, substantially, the same allegation respecting the authority of the collector to administer the oath; that allegation being that the collector had competent power and authority to administer the same. Under the 19th section of the crimes act of April 30, 1790, 1 Stat. at Large, 116, this averment would let in any legal evidence of the lawful power of the collector to administer the oath.

The false swearing alleged in each indictment is the same, and the only question is, whether the indictment in the district court was so drawn as to preclude the United States from offering evidence to prove that the defendant knowingly and wilfully swore falsely that the paper produced was the original agreement, and that three fourths of the crew were citizens.

The argument is, that the former indictment, by its terms, limited the government to proof of false swearing in an oath required to be taken by the act of July 29, 1813, 3 Stats. at Large, 49; that this act does not require either the verity of the agreement with the crew, or the citizenship of three fourths of the crew, to be sworn to; and consequently, that neither of the perjuries charged could be proved under the former indictment.

The 7th section of the act of 1813 is as follows: 'That the owner or owners of every fishing vessel of twenty tons and upwards, his or their agent or lawful representative, shall, previous to receiving the allowance made by this act, produce to the collector, who is authorized to pay the same, the original agreement or agreements which may have been made with the fishermen employed on board such vessel, as is hereinbefore required, and also a certificate to be by him or them subscribed, thereon mentioning the particular days on which such vessel sailed and returned on the several voyages or fares she may have made in the preceding fishing season, to the truth of which he or they shall swear or affirm before the collector aforesaid.'

It is argued that this requires an oath to the truth of the certificate only, and not to the verity of the agreement.

This depends upon the meaning of the relative pronoun 'which.' Does it refer to and include both papers to be produced to the collector, or only one of them? It may refer only to the one last mentioned, or to both. Grammatically it is capable of either construction.

Considering the nature of the act, the objects which congress had in view, and the mischiefs to be guarded against, we are of opinion that it was intended to require an oath to the verity of both papers.

This section of the law is not penal; it is directory merely. It requires certain acts to be done in order to obtain an allowance of public money. The nature of the act, therefore, does not require a strict interpretation, rigidly confined to what is so clearly expressed as to admit of no doubt. It calls for such an interpretation as will guard the public treasury from fraud, so far as the language employed by congress, when fairly construed, is capable of doing so.

The inducement to the payment of these bounties was, the public policy of training a body of native seamen, by an industrious pursuit of the cod fishery during a fixed portion of the year. To accomplish this, it was deemed important that the seamen should participate directly in the profits of the voyage, in the manner pointed out by the act of June 19, 1813, 3 Stats. at Large, 2. And accordingly, the 8th section of the act in question provides that no vessel shall be entitled to bounty, unless an agreement should be made with the fishermen in conformity with that act. The production of the agreement was therefore the production of a paper, as essential to the claim as the certificate of the times of the departure and return of the vessel; and the verity of the agreement is as essential to the justice and legality of the claim, and to the accomplishment of the ends designed by congress, as the verity of the certificate. It is apparent, also, that the former, as well as the latter, may be false, and that the collector has no better means of knowledge of the truth or falsehood of the paper purporting to be the agreement, than he has of the truth or falsehood of the certificate. The mischiefs to be guarded against were therefore the same.

The case, therefore, is one where the law requires two documents to be produced to a public officer, to constitute a title to an allowance of public money. The verity of both is essential to the justice and legality of the claim. The officer has no means of testing the verity of either, except what is given by this law. Congress has considered it proper that an oath should be taken by the applicant. The question is, whether this security of an oath was intended to be confined to one of the documents. The language employed is capable of such a construction, but it is also capable of meaning that the security of an oath was to extend to both. In our judgment, the latter is to be deemed to have been intended by congress; and we therefore hold that so much of the first indictment as charged that an oath as to the agreement was required by the act of 1813, was correct in point of law. But this does not dispose of the whole question; because there can be no pretence that the act of 1813 required an oath to the fact that three fourths of the crew were citizens. In point of fact, there was no requirement on the subject of the citizenship of the crew when the act of 1813 was passed, nor until the act of March 1, 1817, (3 Stats. at Large, 351;) and the argument on the part of the United States is, that as the former indictment was limited to an oath required to be taken by the act of 1813, the defendant could not be tried thereon for false swearing as to the citizenship of the crew. But we are of opinion that the former indictment was not thus limited. The particular allegation supposed to have that effect, is as follows: -

'Which said oath so taken by the said Nickerson, jr., was required to be taken by the owner or agent of said fishing vessel, under and by virtue of an act of congress of the United States of America, approved July 29, 1813, and re enacted February 9, 1816, and in a matter and proceeding then and there required by law, in order to obtain the allowance aforesaid for said fishing vessel, it being then and there material and required by the act aforesaid, and by force of the statutes of the said United States therein provided, in order to obtain said allowance of money, that the owner of said fishing vessel, or his agent or representative, previous to receiving such allowance, should swear as aforesaid to the truth of the aforesaid declarations.'

The pleader here not only refers to the act of 1813, but also avers that the oath was taken, 'and in a matter and proceeding then and there required by law, in order to obtain the allowance aforesaid for said fishing vessel.' It is true, the whole allegation, if it is correctly copied in the record, is somewhat confused, but, according to any construction which we have been able to put upon it, it does not confine the requirement of the oath to the act of 1813 only.

It was not necessary to aver in the indictment what act or acts of congress required the oath to be taken. The averment that it was taken by the owner or agent to obtain an allowance of bounty, and the description of the oath which was taken, and of its occasion, were the only matters of fact necessary to be alleged to show the materiality of the oath, and that it was an oath required by law. The court was bound to take judicial notice of the requirements of all acts of congress respecting it. It was competent for the government, under these averments of facts, to rely on any act of congress which required the oath to be taken, without referring to it.

This was not a question respecting the authority of the collector to administer the oath. That, as has already been observed, was correctly averred in both indictments, pursuant to the act of 1790. And under that general averment of competent authority, any laws and any fact constituting that authority might have been shown. The question here was, whether such an oath as is described in the indictment, being taken before a collector who had competent authority to administer it, for the purpose of obtaining an allowance of bounty money, was an oath which, if wilfully false, would subject the defendant to be punished as for perjury. And we do not think this question was so narrowed, by the passage above extracted from the former indictment, that evidence of an oath required or authorized by any other act besides that of 1813 could not be given under that indictment; and we order it to be certified accordingly.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Massachusetts, and on the point or question on which the judges of the said circuit court were opposed in opinion, and which was certified to this court for its opinion, agreeably to the act of congress in such case made and provided, and was argued by counsel. On consideration whereof it is the opinion of this court that the special plea pleaded by the defendant is a good plea in bar to the indictment; whereupon, it is now here ordered and adjudged by this court that it be so certified to the said circuit court.


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

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Henshaw v. Miller

THIS case came up from the circuit court of the United States for the eastern district of Virginia, on a certificate of division in opinion between the judges thereof.

Henshaw was a citizen of Massachusetts, and brought an action on the case against Charles E. Miller, in his lifetime, for fraudulently recommending one Robinson as worthy of credit, in consequence of which the plaintiff had incurred considerable loss. After issue joined upon the plea of not guilty, Miller died, and on motion of the plaintiff a scire facias was issued for the purpose of reviving the suit against John R. Miller, his executor.

Upon the return of the scire facias, the executor moved to quash it, when the judges were divided in opinion whether the action survived the executor, or abated; and the question was certified to this court.

It was submitted, upon printed arguments, by Mr. Heath, for the plaintiff, and by Mr. Lyons and Mr. Stannard, for the defendant.

Mr. Heath, for the plaintiff, made the following points:--

For the plaintiff, Henshaw, it is insisted: That, under the law of Virginia, an action upon the case founded upon a tort by which the estate of the plaintiff was diminished or damaged, may be revived against the defendant's personal representative. That in Virginia, if the form of the action be trespass, or trespass upon the case, and if the loss or damage be merely pecuniary in its nature, and the remedy sought, being pecuniary, is entirely adequate, then the cause of action survives for or against the personal representative.

For the common-law doctrine, as modified by the statute 4, Edward III. ch. 7; Hambly v. Trott, 1 Cow. 375; Wheatley v. Lane, 1 Saund. 216, a; 1 Wms. Ex'ors, 668.

For the state of the law in Virginia on this point: See 1st vol. Rev. Code, 1819, 390, § 64; Supplement to Rev. Code, 1819, 258, ch. 196; Monroe v. Webb's Ex'ors, 4 Munford, 73; Lee v. Cooke's Ex'or, Gilmer, 331; Code of 1850, 544, § 20.

The common-law maxim, actio personalis moritur cum persona, unmodified by any statute, would undoubtedly apply to this case. But that rule was so manifestly unjust and unreasonable in its general application, that its operation has been constantly narrowed by statutory regulation, aided by liberal judicial construction in favor of right, until it is at this day almost reduced within bounds where reason and convenience would sutain it.

It was first confined by judicial interpretation to actions ex delicto, where the action sounded, merely in damages. It was afterwards still further restricted by the statute 4 Edward III. ch. 7, de bonis asportatis, which was extended by a wise and liberal construction to all cases supposed to come within the reason, though not within the words of the rule. So that this statute has been construed to extend to 'any injury to personal property, whereby it has been rendered less beneficial to the executor, whatever the form of the action may be.' Note (1) Wheatley v. Lane, 1 Saund. 217; 1 Wms. on Ex'ors, 668.

Under this construction of that statute, in England, the case under consideration would survive to the executor. That statute is not in force in Virginia, but the enactment contained 1 Rev. Code, 1819, § 64, 390, is founded upon it, and has been construed in the same equitable manner, to effect justice, by the courts of Virginia. The case of Monroe v. Webb's Ex'ors, 4 Munf. 73, was an action upon the case against the clerk of a court, for indorsing credits on an execution, to the injury of the plaintiff. It is true that case went off on other grounds, but it was not questioned by the court that the action would lie against the executor; and the conclusion is irresistible, that it was admitted on all hands that the cause of action survived. So, pursuing the same equitable construction, in Lee v. Cooke's Ex'or, Gilmer's Virginia R. 331, it was held, that § 64, ch. 104, 1 Rev. Code, 1819, is an extension of 4th Edw. III. ch. 7, de bonis asportatis, and that trespass for the mesne profits of land, recovered in ejectment against A., lies against his executor.

These authorities show the spirit in which the court of Appeals of Virginia are disposed to construe that remedial statute: that it has been decided to give it an equitable construction, so as to extend it to cases coming within the mischief intended to be prevented. Such is the case at bar. And it is insisted, that as the law was before the Code of 1850, which rules this case, the case at bar would have survived against the executor of the defendant. But the course of legislation, as well as of judicial construction, has been constantly to narrow the application of this technical maxim, Actio personalis, & c., and the act of the Virginia Assembly, ch. 131, § 20, 544, Code 1850, cuts it up by the roots, in all actions in respect of property or estate, real and personal, wherever the action is for a pecuniary or property injury, as contradistinguished from a personal injury, which can never be adequately compensated in damages. That enactment is as follows: 'An action of trespass, or trespass on the case, may be maintained by or against a personal representative, for the taking or carrying away any goods, or for the waste or destruction of, or damage to, any estate of, by his decedent.' Code, 1850, 544, § 20. This act is founded upon, and is an extension of the English statute, 3 and 4 Wm. IV. ch. 42, § 2, which, among other things, enacts: 'That an action of trespass, or trespass on the case, as the case may be, may be maintained against the executor or administrator of any person deceased, for any wrong committed by him in his lifetime to another, in respect of his property, real or personal.'

The case at bar is one where, by the wrongful act of the defendant, the plaintiff was damaged in his personal estate to the amount of $3,000. If he was entitled to compensation out of the estate of the defendant when alive, why is he not entitled to compensation out of the same estate in the hands of the defendant's executor? What principle of reason, convenience, or justice would be violated by affording such a remedy? The statute of Virginia just cited, plainly intended to afford such a remedy. The case at bar comes within the very letter of the statute. But even if the construction were doubtful, surely the court would adopt that view which so manifestly is essential to enable the court to do justice between these parties. The case of United States v. Daniel, 6 How. 11, has no direct application; that being a question under the laws of North Carolina. But the reasoning of that decision is in furtherance of the view here taken.

The following note of the argument for the defendant is taken from the brief of Mr. Stannard.

On behalf of the defendant, the court is referred to 1 Wm. Saund. 217(a), note (1), to show that in England, not only at common law, but even under the liberal construction given by their courts to statute 4 Edw. 3, ch. 7, such a case as the present would fall fully within the influence of the maxim Actio personalis moritur cum persona; for it is there expressly laid down 'that the statute of Edw. 3 does not extend to injuries done to the person or to the freehold of the testator, therefore an executor or administrator shall not have an action of assault and battery, false imprisonment, slander, deceit, diverting a watercourse, obstructing lights, cutting trees, and other actions of the like kind, for such causes of action shall die with the person.' And in the United States v. Daniel, 6 How. 13, this court expressly holds, that: 'No action where the plea must be that the testator was not guilty, can lie at common law against the executor. Upon the face of the record the action arises ex delicto, and all private criminal injuries or wrongs, as well as all public crimes, are buried with the offender.' It will, it is supposed, scarcely be contended, in the face of these authorities, that this action survived against the executor at common law.

Neither, it is submitted, is there any thing in the statute law of Virginia changing the rule of the common law in this respect. The only statutes in force, relating to this subject, at the institution of this suit will be found in the Revised Code of 1819, vol. 1, 390, § 64, and the Supplement to Revised Code, 258, ch. 196; and these statutes continued in force till the revisal of 1849, when they were substituted in the present Code of Virginia, (which took effect on the 1st July, 1850,) by the 20th section of chapter 130. See Code of Va., 544, § 20.

The first of the above-cited statutes provides, that actions of trespass for goods taken or carried away in the lifetime of the testator or intestate, may be maintained against, as well as by executors, &c.; and in that respect it extends the provisions of the statute of 4 Edw. III. which gives a remedy only to executors, and not against them. But, in other respects, its language is much less comprehensive than that of the English statute, as was remarked by Judge Green, in the case of Thweatt v. Jones, 1 Rand, 331, where he says that: 'Our statute, without any such title or general words as are found in the title and in the enacting clause of the English statute, gives the action of trespass for goods taken or carried away, and provides for that case only substantively, and not by way of example.' And therefore that eminent jurist doubted whether the statute in question was susceptible of the broad and liberal construction which had been given by the English courts to the statute of 4 Edw. III. It was probably to remove the doubt thus expressed by such high authority, that shortly after the report of the case Thweatt v. Jones, decided in 1823, namely, on 9th March, 1827, the second of the above-cited acts was passed. Supp't R. C. 258, ch. 196. That statute provides: 'That if any person shall commit a trespass, either by injuring or destroying the slaves or other personal property of another, &c., the action shall survive,' and thus establishes by legislative enactment the same rule which prevailed in England, by judicial construction, under the common law, as modified the statute of 4 Edw. III. ch. 7. It certainly did not establish a more liberal rule, unless some distinction can be drawn between the words 'personal property' and 'personal estate.' Under the statute law of Virginia, then, as it stood at the institution of this suit, it is submitted that the case at bar falls fully within the influence of Lord Mansfield's judgment, in Hambly v. Trott, Cow. 372, recognized and acted on by this court in United States v. Daniel, above cited.

It only remains then to inquire whether the 20th section of the 130th chapter of the Code of Virginia, 544, § 20, which took effect pending this suit, has made any change in the law affecting the question under consideration, supposing for the present, for the sake of the argument, that that 20th section rules this case. A very slight examination of that section will, it is submitted, be sufficient to show it was designed to have, and can have, no such effect, even in a case to which it is clearly applicable. It was compiled from the Virginia acts of 1819 and 1827, above cited; and the English statute of 3 and 4 Will. IV. ch. 42, § 2, (see Eng. Statutes at Large, vol. 13, p. 141,) and was designed to extend the remedies given to and against executors to cases of injury or damage to real as well as to personal estate, which former were not embraced either by 4 Edw. III. in England, or by the Virginia statute, as will appear from Harris v. Crenshaw, 3 Rand. 14, in which it was held that 'An action of trespass quare clausum fregit, is not converted into an action de bonis asportatis, by an allegation in the declaration that the trees cut were carried away, and therefore the rule actio personalis moritur cum persona applies to such an action.' But it was never designed by the 20th section of Code of 1850, to abolish all distinction between personal torts and injuries and damage to property or estate, whether real or personal, between actions ex delicto and actions ex contractu, or to provide that because, in some sense, a man may be said to be injured or damaged in his estate or means of livelihood by an assault and battery or by slanderous words spoken, therefore actions of assault and battery, or actions of slander, shall survive for or against an executor or administrator. Upon this point, also, it is submitted the case of the United States v. Daniel is a direct authority for the statute of North Carolina, relied upon to sustain the action in that case, 1 Rev. Stat. N. C. ch. 2, § 10, expressly provided, among other things, that 'no action of trespass in the case, &c., brought to recover damages done to property, real or personal, should abate by death,' &c.; and yet this court held that the statute above cited did not affect the question presented and passed upon in that case. Neither, it is submitted, does the 20th section of 130th chapter of the Code of Virginia affect the question arising in this case, unless the term 'estate,' used in the one statute, can be distinguished from the terms 'property, real or personal,' employed in the other.

It will be insisted, therefore, on behalf of the defendant, that this court should certify to the circuit court that this action, in the form in which it is prosecuted, does not survive against the executor of the defendant.

Mr. Justice DANIEL delivered the opinion of the court.

title: Henshaw v. Miller


text: Talk:Henshaw v. Miller

title: Talk:Henshaw v. Miller


text:
Henshaw v. Miller/Opinion of the Court

This case is brought before this court upon a certificate of division in opinion between the judges of the circuit court of the United States for the eastern district of Virginia.

The facts of this case, and the question of law arising thereon, upon which the judges were divided, are shown in the following statement:--

John Henshaw, the plaintiff in the circuit court, instituted in that court an action on the case against Charles E. Miller, to recover of him damages for fraudulently recommending to the plaintiff, by letter, one Porter Robinson as a person worthy of confidence, and thereby inducing the plaintiff to make sale on credit to the said Robinson of a considerable amount of merchandise, when the defendant knew that Robinson was unworthy of credit, and intended fraudulently to deceive the plaintiff, who, in fact, had been deceived by the recommendation given by the defendant to Robinson, and upon the faith thereof had made sales to him, the whole amount whereof had been lost. In this case, after issue joined upon the plea of not guilty, and after several attempts at a trial of the cause, rendered fruitless by disagreement amongst the jury, the defendant departed this life, and on the motion of the plaintiff a writ of scire facias was awarded him to revive the suit against John R. Miller, the executor of the original defendant.

Upon the return of the scire facias executed, the executor moved the court to quash the process. This motion was continued until the May term of the court, 1853, when, upon the argument of the motion to quash the scire facias, the question occurred whether the action survived against the executor of the original defendant, or abated by the death of the latter; and opinions of the judges being opposed on this question, at the request of the counsel for the defendant it was ordered, that the division be certified to the supreme court as its next session.

In considering the question presented by the certificate of division in the circuit court, we must adopt for our guidance the following principle, namely, that this question is to be determined by the rule of the common law with respect to the revival of suits, except so far as that rule has been modified, either by restriction of enlargement, by the statutory provisions of the Virginia laws.

To the principle just mentioned we are bound to adhere, for the following causes:--

By an ordinance of the Virginia convention, passed on the 3d of July, 1776, it was declared: 'That the common law of England, all statutes or acts of parliament made in aid of the common law prior to the fourth year of the reign of James I., and which are of a general nature and not local to that kingdom, together with the several acts of the general assembly of this colony now in force, so far as the same may consist with the several ordinances, declarations, and resolutions of the general convention, shall be the rule of decision, and shall be in full force until the same shall be altered by the legislative power of his colony.'

At a subsequent period, namely, on the 27th of December, 1792, the legislature of Virginia, by an act of that date, after reciting the ordinance above mentioned, declared and enacted as follows, namely: 'Sec. 2. That whereas the good people of this commonwealth may be ensnared by an ignorance of acts of parliament, which have never been published in any collection of the laws, and it hath been thought advisable by the general assembly during their present session, specially to enact such of the said statutes as to them appear worthy of adoption, and do not already make a part of the public code of the laws of Virginia.' 'Sec. 3. Be it therefore enacted by the general assembly of Virginia, that so much of the above-recited ordinance as relates to any statute or act of parliament shall be and the same is hereby repealed; and that no such statute or act of parliament shall have any force or authority within this commonwealth.' These provisions are followed by savings with respect to rights arising under any of the above-mentioned statutes, and as to any crimes committed against them before this repeal, and also of the benefit of all writs, remedial or judicial, which might have been legally obtained or sued out of any court, or the clerk's office of any court, of the commonwealth, prior to the commencement of the statute.

These two enactments have been continued in force, and will be found to be re enacted in the revisal of 1819, vol. 1, chapters 38 and 40.

The statutes, therefore, of 4 Edw. III. ch. 7, or of 3 and 4 Will. IV., or any other English statute as such, cannot govern this case, nor in anywise influence its decision, except so far as by parity the courts of Virginia may have applied the interpretation of those statutes by the English courts to similar provisions, if such there be, in the laws of Virginia.

The maxim of the common law is 'actio personalis moritur cum persona,' and as this maxim is recognized both in England and in Virginia, the interpretation of it in the former country becomes pertinent to its exposition or application here. In England it has been expounded to exclude all torts when the action is in form ex delicto, for the recovery of damages, and the plea not guilty. That in case of injury to the person, whether by assault, battery, false imprisonment, slander, or otherwise, if either party who received or committed the injury die, no action can be supported either by or against the executors or other personal representatives. 1 Saund. 217, n. 1; 2 M. and Sel. 408. And so express and strict have been the applications of this maxim of the common law by the English judges, as to have established the rule, that for the breach of a promise to marry, although the action is in form ex contractu, yet the cause of action being in its nature personal, the executor of the party to whom the promise was made cannot sue.

And again, that for the breach of the implied promise of an attorney to investigate the title to a freehold estate, the executor of the purchaser cannot sue without stating that the testator had sustained some actual damage. Vide 4 Moore, 532; 2 B. and B. 102, and 2 M. and Sel., before mentioned. This has been ruled even under the alleged relaxation of the commonlaw maxim in virtue of the statutes of 4 Edw. III. cap. 7, and 3 and 4 Will. IV. cap. 42. By the English courts it has been also ruled, that although the statutes which have conferred upon executors the right to maintain actions in certain cases arising ex delicto, do not limit that right to instances of a literal asportation of the goods or assets, yet they confer the right of action upon the executor in instances solely of actual injury to personal property, whereby that property has been rendered less beneficial to the executor. 2 M. and Sel. 416.

Let us see how far the common-law maxim has been modified in Virginia, either by express statutory longuage or by judicial construction.

By the 38th section of chapter 128, vol. 1 of the Revised Code of 1819, it is provided: 'That where any personal action or suit in equity is now or shall be depending in any court of this Commonwealth, and either of the parties shall die before verdict rendered or final decree be had, such action or suit shall not abate, if the same were originally maintainable by or against an executor or administrator, but the plaintiff; or if he be dead, his executor or administrator, or the sheriff, sergeant, or other curator of the decedent's estate, shall have a scire facias aginst the defendant; or if he be dead, against his executor, administrator, sheriff, sergeant, or other curator of his estate, to show cause generally, why such action or suit shall not be proceeded in to a final judgment or decree.'

This section of the statute provides merely against the abatement of actions at law or suits in equity by the death of parties, as a matter of course, but it gives no further description of actions or suits than by reference to such designation of them and their capacity for revival as may be deducible either from the common law or by some statutory regulation.

By the 64th section of chapter 104, vol. 1, 390, of the same code, it is declared: 'That actions of trespass may be maintained by or against executors or administrators, for any goods taken or carried away in the lifetime of the testator or intestate, and that the damages recovered shall be in the one case for the benefit of the estate, and in the other out of the assets.'

This provision of the Virginia statute, in so far as it authorizes an action against the personal representative as well as in his favor, is unquestionably an extension of the statute of Edward III., which confers the right of action upon the executor or administrator, but does not authorize an action against him. But, although the former statute is certainly an extension of the latter, with respect to the parties for or against whom the right of action is given, it has been doubted, and upon very high authority upon the point, whether with respect to the class of subjects to which the right of action is authorized, the statute of Virginia does not operate a material restriction upon the provision of the English statute. The statute of Edward III. is thus entitled: 'Executors shall have an action of trespass for a wrong done to the testator,' and reciting 'that in times past executors have not had actions for a trespass done to their testators, as of goods and chattels carried away in their life, and so such trespasses have hitherto remained unpunished.' It is enacted, that the executors in such cases shall have an action against the trespassers, and recover their damages in like manner as they whose executors they be should have had if they were in life.'

In the interpretation of this statute, the courts in England have ruled, that the right conferred on the executor to maintain trespass for a wrong done to the testator, must, with reference to the language of the times when the statute was passed, signify any wrong; and that the instance put, namely: 'as of the goods and chattels of the same testators carried away in their life,' was put in the statute only as an instance or illustration, and by way of limiting the right to injuries to personal property, and not as restrictive to the single or particular form of injury; and that the statute must be construed to extend to every description of injury to personal property by which it has been rendered less beneficial to the executor, so that the executor may support trespass or trover, case for a false return to final process, and case or debt for an escape. Ld. Raym. 973.

The provision of the statute of Virginia by which the right of action by or against the personal representative as to torts is conferred, is introduced by no preamble or declaration by which any object or purpose beyond its literal terms may be implied. It is a simple section of the statute concerning wills, intestacy, and distribution, and clearly defines the single instance in which trespass may be maintained by the personal representative; the instance of 'goods taken or carried away in the lifetime of the testator or intestate;' no other species of trespass or wrong is enumerated or alluded to. Vide 1 Rev. Co. of 1819, § 64, 390.

In reference to this section, and in comparing it with the statute 4 Edw. III., it has been remarked by Green, Justice, in the supreme court of Virginia, that in the construction of the latter statute, 'it has been decided that the word trespass, as it was then understood, embraced all cases of tort; that the word wrong in the title is general, and that the words 'as of the goods,' &c., were inserted only by way of example, so as to confine the remedy to case in which the wrong affected the goods and chattels. But our statute, without any such title or general words as are found in the title and in the enacting clause of the English statute, gives the action of trespass for goods taken and carried away, and provides for that case only substantively, and not by way of example. Vide Thweatt's Administrator v. Jones's Administrator, 1 Randolph, 331.'

But this 64th section would seem to have received a more explicit and definitive interpretation by the decision of the supreme court of Virginia in the case of Harris v. Crenshaw, reported in the 3d of Randolph, 14. That was an action of trespass quare clausum fregit, in which there was a verdict and judgment in favor of the defendant who died, and whose representative was made a party by consent. The case was carried by appeal as is the practice in Virginia, at law as well as in equity, to the supreme court by the plaintiff, upon exceptions taken to instructions from the judge at nisi prius. In delivering the opinion of the court, Tucker, President, says: 'This is nothing more than an ordinary action of trespass quare clausum fregit. The allegation that the trees were cut and carried away, is always inserted in the declaration when it is intended to be proved. It did not convert the action into an action of trespass de bonis asportatis, and take it out of the rule actio personalis, &c. If the defendant had died before verdict, the writ would have abated, and the plaintiff would have been deprived of damages if he had sustained any. But there being a verdict and judgment against him, by which he may be hereafter affected in some other controversy respecting the premises, he has a right to reverse that judgment if he can, and was entitled to a scire facias against the personal representative of the appellee.' Then in commenting upon the exceptions to the instructions from the judge at nisi prius, the court proceeds thus: 'The second instruction of the judge was therefore erroneous, and the judgment is to be reversed and the verdict set aside; and as by the death of the appellee the appeal abated here, and there can be no prosecution of the suit in the court below, it coming within the rule before stated, that is to say, the rule of the common law, actio personalis, &c., it is to be abated here, and the proceedings certified to the court below.'

By this decision of the supreme court of Virginia, the following positions must be taken as having been affirmed:--

1. That by the rule of the common law the right of action founded upon torts of any and every description terminated with the life of either participant in such tort. That this maxim or rule of the common law governed all causes of action arising ex delicto in Virginia, except so far as it may have been modified by statute.

2. That the provision of the statute of Virginia, authorizing actions for or against executors and administrators, for torts done or suffered by those whom they represent, limits those actions to instances which are essentially or rather directly cases of trespass de bonis asportatis, and cannot be made to embrace ordinary cases of trespass quare clausum fregit, or cases of tort generally, by attempting to connect with them as an incident the asportation of goods and chattels; much less can it be made to cover an indirect or consequential injury to the welfare or prosperity of a testator or intestate resulting from a fraud practised upon him.

There is one case from the supreme court of Virginia, cited by plaintiff, and relied on to sustain the right of action in the executor. It is the case of Lee v. Cooke's Executor, reported in Gilmer, 331. This was an action for mesne profits of land which had been recovered in ejectment. After issue made up in the cause, the defendant died. At a subsequent term of the court the executors appeared by attorney, and the cause was continued. At the term next ensuing, the cause was directed to be struck off the docket, the court thinking that the action abated by the death of the defendant.

This decision was reversed by the supreme court, the latter tribunal being of the opinion that the case was within the equity of the 64th section of the Virginia statute, cap. 104, 1 Rev. Co. 390, and that the action, so far at least as regarded the mesne profits, did not die with the testator. The case is very succinctly given in the report, and is accompanied with no argument showing explicitly the grounds on which it was contested. It may have been regarded by the supreme court as resting upon an implied obligation or assumption to pay or account for profits ascertained by the judgment in ejectment to belong to the plaintiff, and therefore, as partaking essentially of the character of a contract. Or, if in any sense the right of action could be understood as arising from the asportation by the defendant, it must be by such an acceptation of the phrase as will apply it to the mesne profits specifically, as being personal property belonging to the plaintiff, and actually injured by the testator of the defendant in his lifetime. If more than this is sought to be deduced from the case of Lee v. Cooke's Executor, the attempt would bring the case in conflict with that of Harris v. Crenshaw, and with the opinion of Green, Justice, in the case of Thweatt's Administrator v. Jones's Administrator, both more recent in point of time, as well as more explicit in their interpretation alike of the English statute and that of Virginia.

In cases analogous to the one before us, or which rather must be viewed as identical in their essential features, the principles hereinbefore deduced from the laws and decisions of Virginia have been directly affirmed. Thus, in the case of Coker v. Crozier, in the 5th vol. of Alabama Rep. 369, it was ruled, that in an action on the case for a fraud committed in the exchange of horses, upon the death of the defendant the suit could not be revived against his personal representative, the rule of the common law forbidding such revival, and there being no statute of the State to authorize it.

The case of Read et al. v. Hatch, from the 19th vol. of Pickering's Rep. 47, bears a still stronger resemblance to the case before us than does that just cited from the supreme court of Alabama. So exact, indeed, is this resemblance, that it might with justice be said, of the case of Read v. Hatch, in comparison with this under our consideration, mutato nomine historia narratur de te. The former was an action for fraudulently recommending a trader as in good credit, by meeans whereof the plaintiff was induced to sell him goods on credit, and thereby sustained damage. This action was founded on the 7th section of the 93d chapter of the Revised Statutes of Masschusetts, which provides that actions of trespass and trespass on the case for damage done to real or personal estate shall survive. Pending the suit the defendant died, and the plaintiff moved to cite in his administrator. Shaw, Chief Justice, said, in pronouncing the judgment of the court: 'The question whether the plaintiffs can cite in an administrator, and proceed with their action, depends on Revised Stats. ch. 93, § 7. It is contended that a false representation, by which one is induced to part with his property by a sale on credit to an insolvent person, by means of which he is in danger of losing it, is a damage done to him in respect to his personal property. But we are of opinion that this would be a forced construction. If this were the true construction, then every injury by which one should be subjected to pecuniary loss would, directly or indirectly, be a damage to his personal property. But we are of opinion that it must have a more limited construction, and be confined to damage done to some specific personal estate of which one may be the owner. A mere fraud or cheat by which one sustains a pecuniary loss, cannot be regarded as a damage to personal estate. The action is abated at common law, and, not surviving by force of the statute, must be deemed to stand abated.'

Upon full consideration of the statutes of Virginia, and of the interpretation placed by the courts of that State upon those statutes, and of every analogy which can be applied from similar provisions elsewhere, we are of the opinion, that in the circuit court this action did not survive the death of the defendant, but abated upon the occurrence of that event; and we order it to be certified accordingly to the circuit court, in reply to the certificate of division.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the eastern district of Virginia, and on the point or question on which the judges of the said circuit court were opposed in opinion, and which was certified to this court for its opinion agreeably to the act of congress in such case made and provided, and was argued by counsel. On consideration whereof it is the opinion of this court that this action did not survive against the executor of the defendant, and that it did abate by the defendant's death. Whereupon, it is now here ordered and adjudged by this court that it be so certified to the said circuit court.

title: Henshaw v. Miller/Opinion of the Court


text: Talk:Henshaw v. Miller/Opinion of the Court


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United States v. Seaman

THIS case was brought up, by writ of error, from the circuit court of the United States for the District of Columbia, holden in and for Washington county.

The question was, whether the Report of the Commissioner of Patents relating to arts and manufactures and also to agriculture, which was divided into the two branches, and made to congress at different times, was, or was not, one document, and whether the delivery of it to the public printer of one or the other house of congress was, or was not, a mere ministerial duty.

The facts are stated in the opinion of the court.

It was argued by Mr. Chilton and Mr. Johnson, for the plaintiff in error, and by Mr. Cushing, (attorney-general,) for the defendant.

The counsel for the plaintiff in error made the following points:--

The judgment of the court below, refusing the relief asked, found on pages seven to eight of of the record, shows the grounds upon which said court rested its judgment in the premises.

The existence or non-existence of the facts upon which, when applied to an act of congress, the petitioner insisted he was entitled to the relief he prayed for, the court below, it will be seen by their judgment, declined to consider or decide. For the purposes of this case, we insist that the facts alleged in the petition must be held to have existed.

The sole question, then, for this court to decide is, whether or not the court below erred in refusing the relief asked, upon the ground that said court had no jurisdiction of the case stated in the petition, or, in other words, that said petition was demurrable. We suppose that if any well-founded objection to the grant of the relief prayed for was to be found upon the face of the petition, although different from those stated in the judgment, which seem, one of them, to have governed the judgment of both judges, and the other to have weighed only with one of them, still, the judgment of the court below would be held valid.

In this view, the whole business of this court, we submit, will be to interpret the act of the 26th August, 1852, ch. 91, referred to in the judgment, and ascertain whether or not, by that act, the appellee, as superintendent of public printing, was or was not, in the matter complained of, a ministerial executive officer, within the meaning of the definition of such officer to be found in the opinion of the court, at the present term, in Goodrich's case.

We treat Goodrich's case as having definitively settled the law, so far as the facts of any case shall be found to bring it within the scope of the principles therein declared. And if, in the judgment of this court, the present case shows the appellee to have been invested with official discretion in the matter complained of, then the appellant is not entitled to relief.

We insist that the seventh section of the act of congress aforesaid gives to the printer of that house of congress in which a document is first ordered to be printed, the absolute title to print all the copies ordered by both houses, without reservation, or subject in any manner to the decision or discretion of any one.

Next, that such absolute and unreserved right is not restrained, modified, or affected, by any other section of that act, or of any act of congress.

Next, that there is nothing to be found in the portion of said act creating the office held by appellee, nor in any portion or portions of said act conferring and defining the powers, duties, liabilities, or responsibilities of said officer, any language qualifying, restraining, or subjecting to the judgment of said officer, directly or indirectly, to any extent, the right secured to the printer by the said 7th section.

Next, that there is no word in the portion of said act providing for a joint-committee of printing and subjecting said superintendent to the duty of reporting to said committee or to the control of said committee, as specified in the act, which, by any fair construction, can affect, limit, restrain, or submit to the judgment of said superintendent, or to that of the said committee, the right secured to the printer by the said 7th section.

We submit, finally, that the question, which of two houses of congress first orders a document to be printed, is a question of fact which could not by possibility require judicial discretion in its determination. It is a question of fact to be determined only by an inspection of the journals (records) of the houses of congress; and we submit, the question of identity of documents is susceptible of as little difficulty in determining it as the question of the time of the order to print; that congress, so considering, failed wholly by said act to vest any such discretion in any one.

The first point made by Mr. Cushing, for the defendant, was, that the circuit court had not the power to grant the mandamus asked for, either by statute or the common law.

2. The duties devolved upon Seaman are not those of a mere ministerial character: and, ther fore, the circuit court had no authority to direct in relation to them.

If we concede that the circuit court can order the performance of a mere ministerial duty, the omission complained of in this case was not of a ministerial character. Seaman was appointed superintendent of public printing under the 2d section of the act of August, 1852, (ch. 91,) and his duties are prescribed by the 3d.

(Then followed a recital of the act.)By the 7th section, it will be seen that, when a document is ordered to be printed by both houses, the entire printing is to be done by the printer of that house which first ordered it. By the 3d, he is to keep an account of the orders received from each house, to deliver out the printing, in conformity therewith, to the proper public printer, and to issue his certificate for the amount due for such printing. These provisions devolve upon him the duty of determining: 1. Which house actually first ordered the printing of a particular document; and, 2. What was included in the document itself, by the terms of the order for printing. These duties involved considering and determining facts, and the construction of written orders. In the discharge of these functions, Seaman determined that the printing of the document in question was first ordered by the house of representatives, and that the previous order, by the senate, did not include this document, which was not then before either house. He decided that the senate order was confined to what was before the senate when it was made, and could not include those not sent to that body, and which might not even have been prepared. A decision upon such questions is not reviewable in, nor subject to the control of, the circuit court. Decatur v. Paulding, 14 Pet. 497; Brashear v. Mason, 6 How. 92; Goodrich v. Guthrie, Dec. Term, 1854; McElrath v. McIntosh, 1 Law Rep. N. S. 399; Worthington v. Bicknell, 1 Bland. Ch. R. 186; Pascault v. The Commissioners of Baltimore, Ib. 584; Bardley v. Lloyd, 1 Harris and McH. 27; Runkle v. Winemiller, 6 Ib. 429; Ellicott v. The Levy Court, H. and J. 184; Williams v. Cadman, 1 G. and Q. 559.

3. Where the superintendent is not clothed with power to determine questions concerning the printing ordered by the two houses of congress, the duty of deciding them necessarily rests with congress itself, and not with the judiciary.

The 12th section of the act of 1852 makes provision, by which the joint committee on printing is clothed with full power to determine, in relation to disputes between the superintendent and the public printers. If the power thus conferred upon the joint committee is not broad enough to reach this case, then, from necessity, its decision must rest with one or both houses of congress. They are fully competent to determine their wants, and the construction and extent of their orders, and how they require them to be executed, and by whom. If a mandamus can issue in the present case, it may lead to most ruinous consequences. If the document in question has been printed under the house order, it may, if the mandamus issues, be reprinted under the senate order, and thus double the number of copies ordered, as well as the expense, contrary to law, and the intention and orders of the two houses. The writ of injunction is of a more comprehensive character, issuing from the equity side of this same circuit court, forbidding certain acts to be done. If a mandamus will lie, which, in effect, orders printing to be done, an injunction may also be granted to prohibit printing. In that case, if the superintendent should refuse to deliver a document to the senate printer, the latter might enjoin against delivery to the house printer, and thus congress would fail in its printing altogether. A controversy between the public printers might thus, by the use of the mandamus and injunction, retard, if not defeat, legislation. A like controversy might wholly prevent the publication of the laws. It is respectfully submitted, that the matters involved in the present controversy pertain exclusively to the legislative department, and that the judiciary have no authority over them.

Mr. Chief Justice TANEY delivered the opinion of the court.

title: United States v. Seaman


text: Talk:United States v. Seaman

title: Talk:United States v. Seaman


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United States v. Seaman/Opinion of the Court

The defendant in error, at the times hereinafter mentioned, was, and still is, superintendent of public printing of the two houses of congress; and the relator printer to the senate, and O. A. P. Nicholson printer to the house of representatives.

By the act of August 26, 1852, it is made the duty of the superintendent to receive, from the secretary of the senate and the clerk of the house of representatives, all matter ordered by congress to be printed, and to deliver it to the public printer or printers. And the 12th section provides, that when any document shall be ordered to be printed by both houses of congress, the entire printing of such document shall be done by the printer of that house which first ordered the printing.

On the 31st of January, 1854, the commissioner of patents communicated to the senate that portion of his annual report for 1853 which relates to arts and manufactures, which that body, on the same day, ordered to be printed; and, on the following day, it was communicated to the house of representatives, who passed a similar order. This communication was delivered by the superintendent to the relator.

On the 20th of March, 1854, the commissioner communicated to both houses the agricultural portion of his report, which each house, on the same day, ordered to be printed; the order of the house of representatives being, it is admitted, first made.

The relator claimed, that the report of the commissioner of patents was but one document, within the meaning of the act of congress above referred to, and that, by virtue of the order of the senate of the 31st of January, 1854, he was entitled to the printing of the agricultural portion of the report, although the printing of this part was first ordered by the house of representatives. The superintendent, however, refused to deliver it; and the relator thereupon applied to the circuit court for the District of Columbia for a mandamus, to compel the delivery. That court was of opinion that it had, not jurisdiction of the case, and refused the mandamus; and this writ of error is brought by the relator.

The power of the circuit court of this district to issue writs of mandamus to an officer of the government in Washington, has frequently been the subject of discussion in this court. It was before the court in Kendall v. Stokes, 12 Pet. 524; in Decatur v. Paulding, 14 Ib. 497; in Brashear v. Mason, 6 How. 92; and again, in Goodrich v. Guthrie, at the present term. The rule to be gathered from all of these cases is too well settled to need further discussion. It cannot issue in a case where discretion and judgments are to be exercised by the officer; and it can be granted only where the act required to be done is merely ministerial, and the relator without any other adequate remedy.

Now, it is evident that this case is not one in which the superintendent had nothing to do but obey the order of a superior authority. He had inquiries to make, before he could execute the authority he possessed. He must examine evidence; that is to say, he must ascertain in which house the order to print was first passed. He may, it is true, generally obtain this from the journals of the two houses, but yet he must examine them, and compare the dates of the orders; and, in this particular case, it may even have been necessary to take oral testimony, before he could determine the fact of priority, as the order was passed in each house on the same day. And, after he had made up his mind upon this fact, it was still necessary to examine into the usages and practice of congress, in marking a communication in their proceedings as a document; and to make up his mind whether separate communications upon the same subject, or on different subjects from the same office, when made at different times, were, according to the usages and practice of congress, described as one document, or different documents, in printing and publishing their proceedings. He was obliged, therefore, to examine evidence, and form his judgment before he acted; and, whenever that is to be done, it is not a case for a mandamus.

Nor is there any reason of public policy or individual right, which requires that this remedy should be extended beyond its legitimate bounds, in order to embrace cases of this description; for it would embarrass the operations of the legislative and executive departments of the government, if the court of this district was authorized to interfere, by this summary process, in controversies between officers, in their respective employments, whenever differences of opinion as to their respective rights may arise. If these differences cannot be adjusted by the authorities under which they are acting, an ordinary action at law would be an adequate remedy for any injury sustained.

It seems to be supposed that the case of Kendall v. Stokes justified this application; but it is altogether unlike it. The award of the solicitor of the treasury, in that case, was an official act; he was the officer appointed by act of congress to settle that account, and determine the amount of credit to which Stokes was entitled, if to any; and all that the postmaster-general was required to do was, to enter it in the books of the department, when reported to him by the solicitor of the treasury. He was merely to record it. His duty, under that act of congress, was like that of a clerk of a court, who is required to record its proceedings; or, of an officer appointed by law to record deeds, which a party has a right by law to place on record; or of the register of the treasury of the United States, to record accounts transmitted to him by the proper accounting officers, to be recorded. The duty, in such cases, is merely ministerial; as much so as that of a sheriff or marshal to execute the process of a court.

This was the point decided in Kendall v. Stokes, and the subsequent cases have all been decided upon the same principles. They are in no degree in conflict with it; on the contrary, they have followed it.

But the case before us, for the reasons above stated, is unlike that of Kendall v. Stokes, and the circuit court were right in refusing the mandamus. The judgment must, therefore, be affirmed.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the District of Columbia, holden in and for the county of Washington, and was argued by counsel. On consideration whereof it is now here ordered and adjudged by this court that the judgment of the said circuit court in this cause be and the same is hereby affirmed with costs.


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


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McBlair v. Gibbes

THIS was an appeal from the circuit court of the United States for the district of Maryland, sitting as a court of equity.

The controversy related to a share in the Mexican Company, which was held by Goodwin, and also to a claim on his behalf, to a commission of five per centum upon the proceeds in virtue of his agency, and under an agreement with the company.

The nature of this case has already been explained in the preceding volumes of these reports, and is again touched upon in the opinion of the court in the present case. The reader is referred to 11 How. 529; 12 Ib. 111; and 14 Ib. 610.

The bill was originally filed by McBlair, in a state court, but was removed into the circuit court of the United States by Gibbes and Oliver, who stated themselves to be citizens of the State of New York.

On the 13th of March, 1852, McBlair took out letters of administration upon the estate of Lyde Goodwin, from the orphans' court of Baltimore city; and filed his bill to recover from the executors of Oliver, the proceeds of Goodwin's share in the company, and also his commission of five per centum. The claim rested upon the allegation that all the assignments which Goodwin had made to Oliver were void, as was also the purchase by Oliver, of Goodwin's interest from his trustee in insolvency. If these were void, the proceeds of the share would of course belong to Goodwin's personal representatives.

On the 3d of December, 1853, the circuit court dismissed the bill with costs, whereupon the complainant appealed to this court.

It was argued by Mr. Davis and Mr. Robert N. Martin, for the appellant, and by Mr. Campbell and Mr. John on, for the appellees. Only those points of the argument will be noted, upon which the opinion of the court rested, viz: the validity or invalidity of the assignments to Oliver.

The counsel for the appellant contended that the assignment from Goodwin to Oliver, made in 1829, was void, because:--

It must be considered as settled by this court—

1. That the purposes and dealings of the Mexican Company, were illegal, and by the laws of the United States, not less than those of Maryland, void.

2. That till some change was wrought the claim of the company was not assignable, but that any assignment was void.

3. That no such change as made the claim either valid or assignable, was wrought by any act prior to the treaty of 1839.

4. That neither the treaty nor the award operated retroactively to make valid prior acts. Therefore the assignments are void, and nothing passed by them. Gill v. Oliver, 11 How. 529; Williams v. Oliver, 12 Ib. 111; Deacon v. Oliver, 14 Ib. 610; Kennet v. Chambers, 14 Ib. 38, 49, 51, 52. The assignment of 1829 was not binding on Goodwin, because there is no proof of the release of the debt on the books of Oliver.

Upon this branch of the case, the counsel for the appellee contended, as a 5th point:--

5. But conceding, for argument sake, that the appellant may urge without impediment the illegal act of him whom he represents, on what ground does he assail the assignment of Goodwin of 1829?

That the claim was not validated till 1839, if true, will not avail him, because equity will not permit an assignor to defeat his own assignment by procuring a good title subsequently for his own benefit, but will hold such subsequent acquisition to enure to the assignee's benefit.

2 Smith's Leading Cases, 464; 1 McLean, 384; 2 Story, 630; 11 How. 325; 3 Story, 175; 2 Serg. and Rawle, 507; 2 Barr, 325.

Mr. Justice NELSON delivered the opinion of the court.

title: McBlair v. Gibbes


text: Talk:McBlair v. Gibbes

title: Talk:McBlair v. Gibbes


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Page:Copyright, Its History And Its Law (1912).djvu/175

 fragment is not a work, and a part of a work cannot be copyrighted, especially as this would nullify the manufacturing clause, as set forth in the opinion of the Attorney-General, February 9, 1910.

A work may be published and deposited in typewriting copies, as set forth in the opinion of the Attorney-General of May 2, 1910, but this will not operate to avoid the manufacturing clause when the work is published in print.

The completion of the copyright by deposit of copies is covered by the provision (sec. 12): "That  after copyright has been secured by publication of the work with the notice of copyright as provided in section nine of this Act, there shall be promptly deposited in the Copyright Ofifice or in the mail addressed to the Register of Copyrights, Washington, District of Columbia, two complete copies of the best edition thereof then published, which copies, if the work be a book or periodical, shall have been produced in accordance with the manufacturing provisions specified in section fifteen of this Act; or if such work be a contribution to a periodical, for which contribution special registration is requested, one copy of the issue or issues containing such contribution; or if the work is not reproduced in copies for sale, there shall be deposited the copy, print, photograph, or other identifying reproduction provided by section eleven of this Act, such copies or copy, print, photograph, or other reproduction to be accompanied in each case by a claim of copyright. No action or proceeding shall be maintained for infringement of copyright in any work until the provisions of this Act with respect to the deposit of copies and registration of such work shall have been complied with."

In case of failure to deposit, the law of 1909 provides for penalties and finally voiding of the


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McBlair v. Gibbes/Opinion of the Court

This is an appeal from a decree of the circuit court of the United States for the district of Maryland.

The bill was filed by the administrator of Lyde Goodwin against the executors of Robert Oliver, to recover the proceeds of a share in an association called the Baltimore Company, which had a claim against the Mexican government, that was allowed under the convention of 1839, 'for the adjustment of claims of citizens of the United States against the Mexican Republic.' The claim of the company was founded on a contract with General Mina, in 1816, for advances and supplies in fitting out a military expedition against the dominions of the King of Spain. The bill also sought to recover a commission of five per centum, which the members of the company had agreed to give to Goodwin, for his services as agent in soliciting the claim against Mexico. The share and commissions, as charged, amount to $67,337.15.

The executors of Oliver set up a right to retain the fund for the benefit of the estate, under and by virtue of a purchase of Goodwin's share in this company, and also of his right to the commissions, by their testator, in 1829. The purchase and transfer took place the 30th May, in that year, for a good and valuable consideration.

A question was made on the argument, whether or not the assignment of Goodwin was sufficiently comprehensive to include a right to the commissions as well as to the proceeds of the share. We are satisfied that it is. The language is very broad: 'All my undivided ninth part, right, title, and interest, of every kind whatever, in the claim on the government of Mexico,' &c. And again: 'The object and intention of this agreement is to make a full and complete transfer to the said Robert Oliver, of all my right, title, and interest aforesaid,' &c. The commissions were dependent upon the allowance of the claims of the company against Mexico, and, of course, an interest intimately connected with them; without the allowance of the one, the other would be valueless.

The understanding of Goodwin himself, of the intention and effect of the assignment, accords with this view, as derived from his deposition taken in behalf of the claims of the company, and used before the board of commissioners; and also from his testimony in the proceedings before the Baltimore county court, for the distribution of the fund among the several claimants.

This share of Lyde Goodwin in the company, and his commissions, have heretofore been the subject of consideration in this court. The case is reported in 11 How. 529. George M. Gill, the permanent trustee of Goodwin, who had taken the benefit of the insolvent laws of Maryland in 1817, claimed this fund before the Baltimore county court as part of the estate of the insolvent, against the right and title of the executors of Oliver, claiming under this assignment of 1829. The Baltimore county court held that the fund passed by the insolvent assignment of 1817, to Gill, the permanent trustee. The case was taken to the court of appeals of Maryland, where the decree was reversed, and the fund distributed to Oliver's executors, the appellate court holding that the contract of the company with General Mina was made in violation of the neutrality act of the United States of 1794, and, being thus founded upon an illegal transaction, constituted no part of the property or estate of the insolvent within the meaning of the Maryland insolvent laws. Gill brought the case to this court under the 25th section of the judiciary act, for the purpose of revising that decision; but the court dismissed the case for want of jurisdiction, a majority of the judges holding that the only question involved in the decision below was the true construction of a statute of the State, and that it belonged to the Maryland court to interpret its own statutes. Whether that interpretation was right or wrong, was a matter with which this court had no concern.

Gill, the permanent trustee, having thus failed to establish a title to the fund under the Maryland insolvent laws, the litigation is again revived respecting the fund, in behalf and for the benefit of the personal representatives of Goodwin, on the ground that the moneys realized upon the contract with General Mina, from the Mexican government, is to be regarded as a subsequent acquisition of property by the insolvent, belonging to his estate, and to be dealt with accordingly.

Hence this bill filed against the executors of Oliver to recover possession of the fund. The defence set up to this demand of the administrator of Goodwin, and which it is insisted is conclusive against him, is the assignment of the contract of General Mina, by Goodwin himself, to Robert Oliver, in 1829, which has been already referred to; that having thus parted with all his right or claim to that contract, for a full and valuable consideration, the proceeds thereof derived from the recognition and fulfilment by the Mexican government belong to the estate of Oliver, and not to that of Goodwin; and vested his executors with the equitable right to receive the moneys, and which have been paid accordingly under the decree of the court of appeals of Maryland, in making a distribution of the fund.

It is urged, however, in answer to this view, that the contract with General Mina being illegal, the sale and assignment of it from Goodwin to Oliver must also be illegal, and consequently that no interest therein, equitable or legal, passed to Oliver's executors.

But this position is not maintainable. The transaction, out of which the assignment to Oliver arose, was uninfected with any illegality. The consideration paid was not only legal, but meritorious, the relinquishment of a debt due from Goodwin to him. The assignment was subsequent, collateral to, and wholly independent of, the illegal transactions upon which the principal contract was founded. Oliver was not a party to these transactions, nor in any way connected with them.

It may be admitted that even a subsequent collateral contract, if made in aid and in furtherance of the execution of one infected with illegality, partakes of its nature, and is equally in violation of law; but that is not this case. Oliver, by the assignment, became simply owner in the place of Goodwin, and as to any public policy or concern supposed to be involved in the making, or in the fulfilment of such contracts, it was a matter of entire indifference to which it belonged. The assignee took it, liable to any defence, legal or equitable, to which it was subject in the hands of Goodwin. In consequence of the illegality the contract was invalid, and incapable of being enforced in a court of justice. The fulfilment depended altogether upon the voluntary act of Mina, or of those representing him.

No obligation existed, except what arose from a sense of honor on the part of those deriving a benefit from the transaction out of which it arose. Its value rested upon this ground, and this alone. The demand was simply a debt of honor. But if the party who might set up the illegality chooses to waive it, and pay the money, he cannot afterwards reclaim it. And, if even the money be paid to a third person for the other party, such third person cannot set up the illegality of the contract on which the payment has been made, and withhold it for himself. In Faikney v. Renous, 4 Burr. 2069, where two persons were jointly concerned in an illegal stock-jobbing business with a third, and a loss having arisen, one of them paid the whole, and took a security from the other for his share, the security was held to be valid as a new contract, uninfected by the original transaction. And in Petrie v. Hannay, 3 T. R. 418, where one of the partners, under similar circumstances, paid the whole at the instance of the other, he was allowed to recover for the proportionate share. These cases are examined and approved in Armstrong v. Toler, 11 Wh. 258.

In Tenant v. Elliot, 1 B. and P. 3, the defendant, a broker, effected an insurance for the plaintiff which was illegal, being in violation of the navigation laws; but on a loss happening, the underwriters paid the money to the broker, who refused to pay it over to the insured, setting up the illegality, upon which an action for money had and received was brought. The plaintiff recovered, on the ground that the implied promise of the defendant, arising out of the receipt of the money for the plaintiff, was a new contract, not affected by the illegality of the original transaction. The same principle was applied and enforced in the case of Farmer v. Russell, 1 B. and P. 296.

In Thomson v. Thomson, 7 Ves. 470, there had been a sale of the command of an East India ship to the defendant, and as a consideration he stipulated to pay an annuity of 200 to the previous commander so long as he should continue in command of the ship.

This contract of sale was illegal. Subsequently the defendant relinquished the command, and another person was appointed in his place. But, under the regulation adopted by the East India Company to prevent the sale of the commands of their ships, an allowance was made to the defendant, on his retiring, of 3,540.

The bill in this case was filed for the purpose of procuring a decree for the investment of a portion of this fund to satisfy the annuity of 200, praying that the value of it might be ascertained and paid out of the money allowed by the company.

The objection made was, that the contract providing for the annuity was illegal, and a court of equity therefore would not interfere.

The master of the rolls, Sir William Grant, agreed that the contract was illegal; he admitted there was an equity against the fund, if it could be reached by a legal agreement; but observed, 'you have no claim to this money, except through the medium of an illegal agreement, which, according to the determinations, you cannot support.' 'If the case,' he further observed, 'could have been brought to this, that the company had paid this into the hands of a third person for the use of the plaintiff, he might have recovered from that third person, who could not have set up this objection as a reason for not performing the trust;' 'but in this instance the money is paid to the party.' 'There is nothing collateral in respect to which, the agreement being out of the question, a collateral demand arises, as in the case of stock-jobbing differences.'

So, in Sharp v. Taylor, 2 Ph. Ch. R. 801, the bill was filed, among other things, to recover a moiety of the freight money, the whole of which had come into the hands of one of the joint owners. The defence set up was, that the trade in which the vessel had been engaged, and in which the freight had been earned, was in violation of the navigation laws, and illegal. But Lord Chancellor Cottenham answered, that the plaintiff was not asking for the enforcement of an agreement adverse to the provision of the act of parliament, nor seeking compensation and payment for an illegal voyage; that, he observed, was disposed of when Taylor (the defendant) received the money; the plaintiff was seeking only his share of the realized profit.

Again, he observed, can one of two partners possess himself of the property of the firm, and be permitted to retain it, if he can show that, in realizing it, some provision in some act of parliament has been violated? The answer is, that the transaction alleged to be illegal is completed and closed, and will not be in any manner affected by what the court is asked to do as between the parties. The difference, he observes, between enforcing illegal contracts, and asserting title to the money which has arisen from them, is distinctly taken in Tenant v. Elliot, and Farmer v. Russell, and recognized by Sir William Grant, in Thompson v. Thompson.

These cases show that the assignment of Lyde Goodwin to Robert Oliver, in 1829, being collateral to, and disconnected from the illegal transaction out of which the Mina contract arose, was valid and binding upon Goodwin, and vested in Oliver all the benefits and advantages, whatever they might be, derived from that contract.

The assignment from Goodwin to Oliver, though the assignment of an illegal contract-which contract, therefore, imposed no legal obligation, and rested simply upon the honor of the parties-was not within the condemnation of the Maryland insolvent laws, as expounded by her courts, as the right was not derived under but entirely independent of them. Those laws have no application to this assignment.

And further, that the money having been realized by his executors, according to the purpose and object of the assignment, becomes a part of the assets of the estate, which belong to the personal representatives.

Another ground may be briefly stated, which, in our judgment, is equally conclusive against the complainant. The assignment of 1829, of the Mina contract, not being tainted with illegality, and therefore obligatory upon Goodwin, if he were alive and claiming the fund against the representatives of Oliver, having parted with all his right in the subject to their testator, for a valuable consideration, would be estopped from setting up any such claim, and, of course, his personal representatives can be in no better situation.

We have not deemed it necessary to look into the case for the purpose of ascertaining whether Goodwin, at the time of the proceedings in the Baltimore county court, had such notice of them as required that he should have appeared there and asserted his right; and hence, that the decree of that court, in the distribution of the fund, was conclusive upon such right. That question is unimportant, inasmuch as, in our opinion, the executors of Oliver have, independently of that ground, established a complete title to the fund in controversy.

We think the decree of the court below was right, and should be affirmed.

Mr. Chief Justice TANEY.

I shall state my opinion in this case, in the cases of Williams's administrator, and Gooding's administrator, as the three cases are nearly connected, and depend on the same principles.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Maryland, and was argued by counsel. On consideration whereof it is now here ordered, adjudged, and decreed by this court, that the decree of the said circuit court in this cause be and the same is hereby affirmed with costs.

title: McBlair v. Gibbes/Opinion of the Court


text: Talk:McBlair v. Gibbes/Opinion of the Court


text: Williams v. Gibbes (58 U.S. 239)

title: Williams v. Gibbes (58 U.S. 239)


text: Talk:Williams v. Gibbes (58 U.S. 239)

title: Talk:Williams v. Gibbes (58 U.S. 239)